ANIL DEV SINGH, J. - (1.) IN these batch of appeals, we are required to deal with the following question: "Whether the period of ad hoc service rendered by an employee should be calculated for the purpose of granting selection scale on completion of 9, 18, and 27 years of service or whether such service rendered prior to the date of regular appointment should not be counted? "
(2.) THE Supreme Court in State of Haryana vs. Haryana Veterinary & AHTS Association and Another (1), held that service rendered on ad hoc basis will not be counted for grant of selection scale. A Division Bench, however, in State of Rajasthan vs. Uma Shanaker Agarwal & Ors. (2), had distinguished the judgment of the Supreme Court and took the view that the period of ad hoc service rendered by an employee should be counted for the purpose of granting him selection scale. This view was taken on the ground that the Haryana Rules, on the basis of which AHTS case was decided by the Supreme Court were different than the rules with which we are concerned. Two of us doubting the correctness of the view of the earlier Division Bench referred the matters to the Full Bench. This is how the matters have come up before us. In order to appreciate the controversy it may be necessary to narrate the facts of one of the writ petitions, as the facts in all the cases broadly follow the same pattern with difference in the dates of the appointment of the petitioners on ad hoc or urgent temporary basis & dates of their regularization. For this purpose, we have selected appeal in writ petition No. 58/2004 as the lead case. The facts of the case reveal that on November 3, 1979 the first respondent Farooq Ahmed was initially appointed against the post of Lower Division Clerk on temporary basis in the office of the Settlement Officer, Kota until RPSC selected candidates became available for a period of one year, whichever was earlier. The first respondent was placed in the pay scale of Rs. 355-570. Besides he was also granted allowances permissible under rules. Pursuant to the order of his appointment he joined the post on November 7, 1979. The period of his appointment was extended from time to time. It is not in dispute that the first respondent had passed the typing test and was placed in regular pay scale w. e. f. November 7, 1980 by the order of the Settlement Officer, Kota dated January 4, 1981. According to the appellants, the first respondent qualified the proficiency test held on July 5, 1981. On September 17, 1982, the services of the first respondent were regularized. On June 30, 1994, the first selection grade was give to the first respondent w. e. f. November 7, 1992 i. e. after completion of 9 years service from the date of his initial appointment. On March 22, 2000, the first respondent was given second selection grade w. e. f. August 20, 1999 on completion of 18 years from the date of passing proficiency test. The first respondent preferred a representation to the appellants against the grant of selection grade with effect from the date of passing of the proficiency test. The grievance of the first respondent was that the he ought to have been granted second selection grade on completion of 18 years of service from the date of his initial appointment. It was inter alia, pointed our in the representation that the first respondent had been drawing increments regularly from the date of his initial appointment and there was no jurisdiction to calculate 18 years of service from the date of passing of the proficiency test. The representation did not have the desired effect, whereupon the first respondent filed an appeal before the Rajasthan Civil Services Appellate Tribunal. The Tribunal allowed the appeal holding that the benefit of selection grade ought to have been given by computing the service from the date of initial appointment of the respondent. The appellants feeling aggrieved of the order passed by the Tribunal filed writ petition in this court. The writ petition was dismissed by the learned Single Judge by order dated February 14, 2003. Not satisfied with the order passed by the learned Single Judge, the appellants filed the instant appeal. As already pointed out, the facts of the other appears are also similar. We may notice that all the respondents were appointed on ad hoc/temporary basis between 1979 & 1989. The determination of the question involved in these appeals will largely depend upon various notifications issued by the State Government on the subject and the Rules governing the conditions of service of the respondent employees. We have heard the learned counsel for the parties. In order to determine the question in these writ petitions, it may be necessary to refer to the various Government orders, on the basis of which Selection Scale of pay to law-paid employees is/was being given. The Deputy Secretary, Finance (Gr. 2), Government of Rajasthan, Jaipur issued the Order No. F. 17 (5) FD (Gr. 2)/84 dated January 23, 1985, with a view to provide relief to those categories of persons working against the posts where promotional avenues were limited or non-existent. The order to the extent has bearing on the question in issue reads as under :- "the State Government issued Revised Pay Scales Rules, 1983, making it effective from 1.09.1981. The Government while prescribing these Pay Scales enlarged the existing Scale by 3-5 stages in addition to merger of Dearness Allowance and fixation benefits. The main purpose of enlarging the maximum of Pay Scale was to provide some relief to those categories where promotional avenues were limited or non- existent. The Pay Scale of lowest category of employees in Pay Scale No. 1 & 2 and also that of Subordinate Police Service were substantially enlarged, for these reasons also. It has been represented to the Government that this has not afforded relief to some of the categories particularly to those Government servants who were holding isolated posts. It is has also been represented that Government servants have not been able to get promotion in the next higher grade even after lapse of 15-20 years after regular service. This has been engaging the attention of the Government for some time past, the matter has been looked into and with a view to provide some relief to the employees of the aforesaid categories drawing pay in the Revised Pay Scales maximum of which does not exceed Rs. 1550/- the Governor has been pleased to order that the Government servants in the Ministerial and Subordinate Services including isolated posts drawing pay in Rajasthan Civil Services (Revised Pay Scales) Rules, 1983 may be provided with Selection Scales as indicated above :- Ordinary Scale Scale No. Selection Scale Scale No. Remarks 370-530 3 380-610 4 380-610 4 400-700 5 400-700 5 420-740 6 420-740 6 450-840 7 460-840 7 520-925 9 500-860 8 520-925 9 570-985 9 610-1090 10 610-1090 10 640-1180 12 625-1120 11 660-1180 12 640-1180 12 660-1340 13 660-1240 13 660-1300 14 660-1300 14 740-1420 15 740-1420 15 820-1550 17 780-1550 16 820-1550 17 820-1550 17 860-1750 18 2. The appointment to the selection scale shall be subject to the fulfillment of the following conditions. (i) Selection scale will be confined only to the Ministerial & Subordinate Services, except the following : (a) Employees drawing pay in pay scale No. 1 & 2 of the Revised Pay Scale Rules, 1968 (b) Member of Rajasthan Police Subordinate Service including Wireless & CID. (c) Constable, Head-Constable, Platoon Commander of Home Guards. (d) Members of Rajasthan Jail Subordinate Service. (e) Members of Raj. Excise Subordinate Service. 3. The Selection Scale will not be admissible to those who do not possesses the requisite basic qualification for promotion to the higher post in regular line in accordance with relevant recruitment rules of the Service. 4. The number of posts of Selection Scale will be 10% of such category of post as on 1. 4. 84 including temporary posts under a particular appointing authority. In offices/departments where number of posts are less than ten or in fraction thereof, number of posts upto five shall be ignored and for six onwards shall be allowed one Selection Scale post. Note: In respect of categories of posts where seniority is maintained by an authority senior to the appointing authority, the appointing authority for the purpose of this order shall be that senior authority. 5. The admissibility of selection scale will be on completion of 15 years of service after regular appointment on that post. 6. The selection scale would be confined only to persons regularly appointed to the lowest grade of a particular service or on an isolated post having no promotional avenue. 7. The grant of selection scale will be admissible strictly on seniority subject to rejection of unfit persons. 8. Selection scale will not be allowed to Government servants whose record of service is not satisfactory or to those who have been superseded or oversighted on the basis of adverse record in the past. 9. Grant of Selection Scale will not affect the seniority of the persons in the cadre. . . . . . . . . '' The aforesaid order was subsequently modified by order No. F. 17 (5) FD (Gr. 2)/84 (RPS 20/85), dated March 29, 1985, whereby Selection Scale was made available to Government servants, drawing pay in the pay scales Nos. 1 & 2 of the Rajasthan Civil Services (Revised Pay Scales) Rules, 1983, belonging to subordinate services and Class IV Service and initially appointed to the ordinary scale as a lowest entry grade post of the service as indicated below :- "ordinary Scale No. Selection Scale Scale No. Remarks 350-440 (1) 360-460 (2)360-460 (2) 370-530 . . . . . . . . . . . '' On January 25, 1992, the Government of Rajasthan issued Order No. F. 20 (1)FD (Gr. 2)/92, dated January 25, 1992, for and on behalf of the Governor of Rajasthan, whereby it prescribed Selection Grades for employees in Class IV, Ministerial & Subordinate Services and those holding isolated posts. This order was issued since the Government order dated January 23, 1985 did not provide any relief to the employees who were recruited directly to a post which was not lowest in the cadre and also the order dated January 23, 1985 did not deal with problem of stagnation in many cadres due to absence or limited opportunity of promotion. The order, to the extent is relevant, reads as follows: "with a view to provide relief to the employees in Class IV, Ministerial and Subordinate Services and those holding isolated posts, Selection grades were prescribed for the lowest posts in these services and isolated posts vide this Department Order No. F. 17 (5)FD (Gr. 2), dated 23. 1. 1985. This order was amended from time to time to ensure availability of the intended relief, prescription of Selection Grades as above resolved the problem of stagnation at the maximum of the lowest scale in the cadre and allowed increase in pay scale of the employees who were covered by the order. The aforesaid order, however, does not provide any relief to the employees who are recruited directly to a post which is not the lowest in the cadre and also does not deal with the problem of stagnation in many cadres due to absence or limited opportunity of promotion. This has been engaging the attention of the Government for some time past. The matter has been considered and in supersession of all orders issued in this regard in the past, the Governor has been pleased to order that the Government servants of the categories mentioned hereunder and who are drawing pay in the pay scales prescribed under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 may be granted Selection Grades as indicated below: 1. This order shall be applicable to all Government servants in Class IV, Ministerial and Subordinate Services and those holding isolated posts and drawing pay in Revised Pay Scales, 1989, the maximum of which does not exceed Rs. 3220/ -. This order shall not apply to Government servants in the State Services as defined in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and to those who have got Selection Grade of Rs. 2200-4000 in terms of this order. 2 (i) The First Selection Grade shall be granted fro the day following the day on which one completes service of nine years, provided that the employee has not got one promotion earlier as is available in his existing cadre. (ii) The second Selection Grade shall be granted from the day following the day on which one completes service of eighteen years, provided that the employee has not got two promotions earlier as might be available in his existing cadre and the first Selection Grade granted to him was lower than the pay scale of Rs. 2200-4000. (iii) The third Selection Grade shall be granted from the day following the day on which one completes service of twenty seven years, provided that the employee has not got there promotions earlier as might be available in his existing cadre and the first or the second Selection Grade granted to him, as the case may be, was lower than the pay scale of Rs. 2200-4000. 3. The service of nine, eighteen or twenty seven years, as the case may be, shall be counted from the date of first appointment in the existing cadre service in accordance with the provisions contained in the Recruitment Rules; Provided that if an employee subsequent to his first appointment to a post in a cadre/service, as a result of direct recruitment, is appointed to some other post in the same cadre or any other cadre, service from the date of latter appointment shall be taken into consideration for the purpose of grant of Selection Grade. 7. Selection Grade in terms of this order shall be granted only to those employees whose record of service is satisfactory. The record of service which makes one eligible for promotion on the basis of seniority shall be considered to be satisfactory for the purpose of grant of the Selection Grade. 8. . . . . . . . . . . . . 9. Grant of Selection Grade shall not affect the seniority in the cadre nor the sanctioned strength of each category of posts in the cadre.'' Subsequently, the Finance Department, after a period of about one year, issued a clarificatory Order No. F. 20 (1)FD (Gr. 2)/92 dated April 03, 1993. The order is a long one and needs to be quoted to the extent the same is relevant for the purposes of disposal of the instant appeals. The order inter alia states as follows :- "attention is invited to Finance Department's order of even number dated 25. 1. 1992 as amended vide order dated 14. 2. 1992 on the subject mentioned above. Many Heads of Departments have solicited clarification on a number of points regarding grant of Selection Grades. Accordingly, the points in respect of which references were received are clarified as under : POINT OF DOUBT CLARIFICATION 1. . . . . . . 2 Years of service to be counted for the purpose of grant of Selection Grade Years of service to be counted for grant of the Grade from the date employee has regularly been recruited in the existing/cadre/service as per provisions contained in the relevant recruitment rules. For example the following period of service is not countable for grant of Selection Grade : (i) the period of service rendered in the order cadre/service before appointment in the existing cadre/service. (ii) the period of service rendered in the existing cadre/service before regular appointment i. e. appointment in accordance with relevant recruitment rules to the post. . . . . . . . . . . . . . . . . . . . . . . . . Sd/- Deputy Secretary to the Government.''
(3.) ON February 17, 1998, the Government of Rajasthan in supersession of all past orders on the subject issued a fresh order, prescribing Selection Grade to employees in Class IV, Ministerial and Subordinate Services and those holding isolated posts. The order to the extent is relevant, is reproduced below: "with a view to providing relief to the employees in Class IV, Ministerial and Subordinate Services and those holding isolated posts, three selection grades on completion of service of nine, eighteen and twenty seven years were prescribed vide this Department Order No. F. 20 (1) FD (Gr. 2)/92 dated 25. 1. 1992. This order was amended from time to time. Consequent upon revision of pay scale of the State Government employees from 1. 9. 1996 under Rajasthan Civil Services (Revised Pay Scales) Rules, 1998, the matter has been considered and in supersession of all orders issued in this regard in the past, the Governor has been pleased to order that the Government servants of the categories mentioned hereunder and who are drawing pay in the pay scales prescribed under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1998 may be granted Selection Grades as indicated below: 1. This order shall be applicable to all Government servants in Class-IV, Ministerial and Subordinate Services ad those holding isolated posts and drawing pay in Revised Pay Services and those holding isolated posts and drawing pay in Revised Pay Scales, 1998, the maximum of which does not exceed Rs. 10,500/ -. This order shall not apply to Government servants in the State Services as defined in the Rajasthan Civil Services (Classification, Control and Appeal Rules, 1958 and to those who have got selection grade equivalent to the pay scales of the lowest post of State Service to which they are eligible for promotion or selection grade of 8000-13500 whichever is lower in terms of this order. 2 (i) The first Selection Grade shall be granted from the day following the day on which one completes service of nine years, provided that the employee has not got one promotion earlier as is available in his existing cadre. (ii) The second Selection Grade shall be granted from the day following the day on which one completes service of eighteen years, provided that the employee has not got two promotions earlier as might be available in his existing cadre and the first Selection Grade granted to him was lower than the pay scale of the lowest post of State Service to which he is eligible for promotion or selection grade on 8000-13500 whichever is lower. (iii) The third Selection Grade shall be granted from the day following the day on which one completes services of twenty seven years, provided that the employee has not got three promotions earlier as might be available in his existing cadre and the first or the second selection grade granted to him, as the case may be, was lower than the pay scale of the lowest post of State Service to which he is eligible for promotion or selection grade of 8000-13500 whichever is lower. 3.The service of nine, eighteen or twenty seven years, as the case may be, shall be counted from the date of first regular appointment in the existing cadre/service in accordance with the provisions contained in the Recruitment Rules. The period during which a Government servant remained/remains on extraordinary leave with or without medical certificate shall also be counted for reckoning the period of service for grant of selection grade: Provided that if an employee subsequent to his first appointment to a post in a cadre/service, as a result of direct recruitment, is appointed to some other post in the same cadre or any other cadre, service from the date of latter appointment shall be taken into consideration for the purpose of grant of Selection Grade; Provided further that if an employee subsequent to his first appointment to a post in a cadre/service, in accordance with provisions contained in the relevant Service Rules, is promoted to a post in some other cadre, then in such a case service from the date of promotion shall be taken into consideration for the purpose of grant of selection Grade. . . . . . . . . . . . . . . . . . . . . . . . . 8. Grant of Selection Grade shall not affect the seniority in the cadre nor the sanctioned strength of each category of posts in the cadre.'' Most of the aforesaid notifications have been considered by a Division Bench of this Court, in the State of Rajasthan & Others vs. Uma Shanker Agarwal & Others (supra), State of Rajasthan & Others vs. Govind Hari Chaturvedi (3), State of Rajasthan & Others vs. Giriraj Vaishya & Another (4), State of Rajasthan & Others vs. Narendra Kumar Tyagi (5), State of Rajasthan & Others vs. Kapoor Chand Gaur (6); and State of Rajasthan & Others vs. Najir Miyan & Another In the common judgment rendered by the Division Bench in the said cases on January 03, 2003, it was held that Selection Scale is to be granted by counting the period of service from the date of first appointment on the ad hoc/temporary service. In this regard, the Division Bench held as follows: ``we called upon learned Additional Advocate General to show as to how the ad hoc appointment as was given to the respondents/employees, was not an appointment in accordance with the relevant recruitment rules to the post. The only answer which was given by him was that their appointment was only ad hoc appointment and therefore, it cannot be treated as a regular appointment. It is certainly an appointment in accordance with the relevant recruitment rules and we do find that the relevant rules do provide for ad hoc appointment and such rules are required to be followed. Once the relevant rules, provide for ad hoc appointment and such appointment has been given to the concerned employees in accordance with the rules, if it is not a regular appointment, period of service rendered on the basis of such appointment in accordance with the recruitment rules has to be counted for the purpose of grant of selection scale and, therefore, the question of denying the period of service rendered on the basis of initial ad hoc appointment after completion of 9 years, 18 years and 27 years of service simply does not arise. '' While rendering the judgment, the Division Bench distinguished the decision of the Supreme Court in the case of State of Haryana vs. Haryana Veterinary & AHTS Association & Another (supra), (for short, "haryana Case''), wherein the Supreme Court examining the scope of expression "regular service'' occurring in the Haryana Government Circular No. 6/38/3pr (FD)-87, dated June 02, 1989 as modified by Circular dated May 16, 1990, held that service rendered on the basis of ad hoc appointment made de hors the recruitment rules, although without interruption following by regular appointment on selection by the Public Service Commission, cannot be considered as regular service. The Division Bench rendering the judgment in Uma Shanker Agarwal's case (supra), pointed out that the State was not able to show that the appointments of the petitioners on ad hoc basis were outside the rules. It found as a matter of fact that the appointments of the respondents were in conformity with the rules and, therefore, the Division Bench was of the view that the judgment rendered by the Supreme Court in the Haryana Case (supra), was not applicable. Similarly, the Division Bench distinguished the case of State of Punjab vs. Gurdeep Kumar Uppal (8), which was based on the decision rendered in the Haryana Cases (supra ). The Division Bench analyzing the decision of the Supreme Court rendered in Haryana Case (supra), was of the opinion that the services rendered on ad hoc basis were not to be counted, if the ad hoc appointment was de hors the recruitment rules. The Division Bench in Uma Shanker Agarwal's case (supra) held that in case the ad hoc appointment cannot be excluded for calculating the period of 9 years, 18 years and 27 years for earning the Selection Grade. On deep consideration and scrutiny of the circulars/notifications of the State of Rajasthan and the circulars relied upon by the Supreme Court in the Haryana Case (supra), we find that there is qualitative difference between the circulars of the State of Haryana considered by the Supreme Court and the circulars of the State of Rajasthan, which have been referred to above. There is also clear distinction between the fact-situations of the two cases, namely, the Haryana Case (supra), and Uma Shanker's case (supra ). While in the Haryana Case (supra), ad hoc appointments were made de hors the rules, in Uma Shanker's case (supra), this was not the position, as the ad hoc appointments were made in accordance with the rules. Coming to the cases in hand, the initial appointments of all the respondent-employees before us, were made in accordance with the rules. It is not the case of the State that the ad hoc/temporary appointments of the respondent-employees were outside the rules. This ia clear distinguishing feature between the instant case and the Haryana case (supra). It also needs to be pointed out that in the order dated January 23, 1985, issued by the Deputy Secretary, Finance (Gr. 2) Department, a provision was made for grant of Selection Scale to certain categories of employees in whose cases promotional avenues were limited or non-existent. This order, however, was restrictive in nature. It clearly stipulated the admissibility of Selection Scale on completion of 15 years of service after regular appointment on that post. The benefit was also not admissible to employees, who did not possess the requisite basic qualification for promotion to the higher post in the regular line in accordance with the relevant recruitment rules of the service. Significantly, the words "regular appointment'' were deliberately omitted in the Government order dated January 25, 1992, whereby Selection Scales for employees in Class-IV, Ministerial and Subordinate Services and those holding isolated posts were prescribed. This order was of a wider amplitude and it contemplated reliefs to the employees, who were recruited directly to a post, which was not the lowest in the cadre. ;