- (1.) R. A. Sharma. J. What is the date with reference to which seniority of the petitioners is to be determined. Is it the date of their temporary/officiating ap pointment or is it the date of regularisa tion of their services this is the question, which is involved in this writ petition.
(2.) PETITIONER No. 1 was appointed temporarily as Sub-Deputy Inspector of Schools (hereinafter referred to as the S. D. I.) subject to his selection sub sequently by the Public Service Commis sion, U. P. (hereinafter referred to as the Commission) vide appointment letter dated 12-10-1965. But he was never selected subsequently by the Commission. PETITIONERs Nos. 1, 2, 3 and 4 were ap pointed as temporary/officiating S. D. Is. vide appointment letter dated 15-10-1968, 5-3-1970 and 10-8-1972 respectively. These petitioners were also not selected by the commission. By order dated 10-6-1980 service of the petitioner Nos. 1 and 2 was regularised under the U. P. Regularisation of ad hoc Appointments (on posts within the purview of Public Service Commis sion) Rules, 1979. The service of the petitioner Nos. 3 and 4 was also regularised under the said rules by orders dated 18-1-1981 and 27- 4-1980 respective ly. In 1973 the Commission issued an ad vertisement inviting applications for the posts of S. D. Is pursuant to which the Commission held the selection and recommended the names to be Govern ment for appointment. On the recommen dation of the Commission the Govern ment appointed 177 S. D. Is on temporary basis vide appointment letter dated 22-1-1976. The services of these appointees were confirmed and made permanent by orders dated 22-5-1980,8-10-1980 and 20-5-1981. The Government prepared a seniority list in 1985 in which 177 S. D. Is who were selected by the Commission, were shown seniors to the petitioners. Being aggrieved, the petitioners have filed this writ petition. Although the petitioners are aggrieved by the seniority list in which they have been shown junior to the S. D. Is. who were appointed on the recommendation of the Commission, but they have neither prayed for its quashing nor have they impleaded those who have been shown as senior to them. The petitioners have merely prayed lor fixation of their seniority from the dates of their temporary appointments. The consequen tial relief of grant of the selection grade has also been claimed. The Sub-Deputy Inspector of Schools Service Rules, 1945 (hereinafter referred to as the Service Rules) provide for mode of recruitment and have also laid down the terms and conditions of service of S. D. Is. Rule 3 (i) defines "the service" as the Sub-Deputy Inspector schools ser vice. "member of the service" has beend defined by rule 3 (e) as under: "3. (e) "member of the service" means a person appointed in a substantive capacity under the provisions of these rules to a post in the cadre of the service. Persons holding posts in the cadre of the service in a substantive capacity on the date on which these rules come into force shall be deemed to be members of the service. ". Rule 4 has laid down the sanctioned strength of the service. By sub-rule (b) of the said rule, the power has been given to the Government to increase the cadre by creating additional, permanent or tem porary posts from time to time. Rule 5 lays down that the recruitment to the service shall be direct and as per Rule 11 such recruitment is to be made through the Commission and the candidates selected by the Commission are issued orders of appointment under Rule 16 (1 ). Sub-rule (2) of Rule 16 provides for appointment in temporary and officiating vacancy. Rule 16 is reproduced below: "16. Appointment.- (1) A person recom mended by the Commission for appointment to the service shall be appointed thereto on the occur rence of a vacancy by the Director in the order in which he is recommended by the Commission. (2) The Director may make appointments in temporary and officiating vacancies from per sons who are eligible for permanent appoint ment to the service under these rules. " Rule 17 deals with the period of probation. Rule 19 provides for confirma tion after completion of the period of probation or extended period of probation and passing of the examination prescribed in Rule 18. Rule 25, which deals with the seniority is as under: "25- Seniority.- The seniority of a member of the service shall be determined by the date of the order of his substantive appointment to the service, provided that if two more candidates are appointmented on the same date, their seniority shall be determined according to the order in which their appointments have been notified. " According to the said rule the seniority of a member of service is to be determined from the date of the order of his substantive appointment. In Baleshwar Das v. State of UP. , AIR 1981 SC 41, the Hon'ble Supreme Court has laid down that the appointment of the temporary appointee can also be in substantive capacity if he fulfills the necessary condi tions/tests for regular appointment, such as, consultation with the commission. Rule 4 (h) of the U. P. Government Ser vants Seniority Rules, 1991 has also defined the 'substantive appointment' as follows: "4 (h ). . "substantive appointment" means an appointment, not being, an ad hoc appoint ment, on a post in the cadre of the service, made after selection in accordance with the service rules relating to that service. " These rules apply to all U. P. Govern ment servants and have the over riding effect over other rules. Petitioners were not selected by the Commission for appointment on tem porary/officiating basis. They applied before the Director, who straight away is sued appointment letters to them. They were not appointed on the posts in the cafre of the service after the selection in accordance with the service rules. They were, therefore not appointed in substan tive capacity. It paragraph 14 of the writ petition, petitioners have stated that they were appointed temporarily against the clear vacant posts by the Director.-Against such posts even temporary/officiating appointments could not have been made by the Director, because Rule 16 (2) enables the Director to make such appointments "in temporary and officiating vacancies" Under Rule 25 of the service rules the seniority is to the determined from the date of order of the substantive appoint ment, Confirmation in service is not relevant for this purpose. Temporary ap pointments of the petitioners were de-hors the service rules and were not in substan tive capacity. Therefore, the service rendered by them under such appoint ments cannot be taken into consideration for the purposes of the seniority. But the temporary appointments of S. D. Is. , who were appointed on the recommendation of the Commission, being in accordance with service rules, were in substantive capacity and therefore their seniority has to be determined from the dates of their temporary appointment.
(3.) THE U. P. Regularisation of Ad-hoc Appointments (on posts within the pur view of Public Service Commission) Rules, 1979 (hereinafter referred to as the Regularisation Rules) provides for regularisation of the service of the tem porary hoc appointees. Rule 2 gives over-riding effect to these rules. Rule 4, being relevant is reproduced below: "4. Regularisation of ad-hoc appoint ment.- (1) Any person who - (1) was directly appointed on ad-hoc basis before 1-1-1977 and is continuing in service, as such, on date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad-hoc appointment and (iii) has completed or, as the case may be after he has completed three years continuous service, shall be considered for regular appoint ment to permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointment under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories,-shall be made in accordance with the orders of the Government in force at the time of recruit ment. (3) For the purpose of sub-rule (i), the appointing authority shall constitute a Selection Committee and consulation with the Commis sion shall not be necessary. (4) THE appointing authority shall prepared an eligibility list of the candidates, ar ranged in order of seniority as determined from the date of order of appointment and, if two or more persons are appointed together from the ordej in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee alongwith their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability. (5) THE Selection Committee shall con sider the cases of the candidates on the basis of their records referred to in sub-rule (4 ). (6) THE Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniorityand forwarded it to the appointing authority. " THE Rule 4 provides for considera tion of the cases of ad hoc appointees for their regular appointment on the basis of their record and suitability by a Selection Committee. THE candidates so selected are appointed under Rule 5, which is reproduced below: "5. Appointments.- THE appointing authority shall subject to the provisions of sub-rule (2) of Rule 4 make appointments from the list prepared under sub-rule (6) of the said rule in the order in which their names stand in the list. " In view of Rule 6 the appointments made under Rule 5 care deemed to be the appointments under the relevant service rules or orders. Rule 8 has laid down that if ad hoc appointee is not found suitable for regular appointment his service is to be terminated forthwith and such an employee is entitled to one month's salary. Rule 7, which dales with the fixation of seniority of the employees, who have been given substantive appointment under the Regularisation Rules is a under:' "7. (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed proce dure, prior to the appointment of such person under these rules. (2) If two or more persons are appointed together, their seniority inter se shall be deter mined in the order mentioned in the order of appointment. " In view of Rule 7 person, who is ap pointed under Rule 5 is entitled to seniority "only frcai the date of order of appointment after selection in accordance with these rules. " Such a person, there fore, gets the seniority from the date of regularisation of his service/the date of order of appointment under Rule 5. THE petitioners services were regularised under the regularisation rules and they were issued appointment letters under Rule 5 on 18-6-1980, 24-6-1980 and 18-1-1981. THEy will, therefore get the seniority from the said dates of their appointment letters issued under Rules 5. Rule 7 has statutory force and it cannot be ignored. THEy are, therefore, not entitled to get the seniority from the dates of their tem porary/officiating appointments. When the regularisation rules have fixed the date with reference to which the seniority of the employees, who have been given substantive appointment there under, is to be determined, it is not open to determine their seniority from any other date, because these rules have statutory force and are binding. But as the learned counsel for the petitioners has argued about the general principles for determining the seniority of the temporary appointees, we consider it proper to deal this question also.;