MASOOD AKHTAR KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The only question involved in the present petitions is whether the petitioners initial appointments were according to the rules. The petitioners are direct recruits. They were appointed as temporary Assistant Engineers in Public Health Department "temporarily till further orders for six months or for a fortnight till after the selection of candidates by the public service commission", (hereinafter referred to as the 'commission') , "in Public Health Engineering Department Services (Class II) " initially by an appointment letter dated 25/10/1972. These appointments were made pursuant to the advertisement which was issued on 4/06/1972 which had also made it clear that the appointments to the said posts "will be made for a period of six months only, in the first instance. In the meantime, the posts will be advertised by the public service commission, Madhya Pradesh and the candidates will berequired to appear before the Commission as fresh entrants at their own costs and, if selected, will be allowed to continue in service. The services a of others will stand automatically terminated". It appears that within about four months - to be precise, on 19/02/1973, the government changed its policy for recruitment to the said posts, and by its resolution of the even date decided that appointments to all the said posts would be made by promotion. The result was that no requisition was made to the Commission for direct recruitment of the said posts and the petitioners continued in their posts till the policy was relaxed some time before June 1975. As a consequence, the government wrote to the Commission on 3/06/1975 with a requisition for advertisement of 120 posts of Assistant Engineers [assistant Engineers, Civil - 113 plus Assistant Engineers, Mechanical -7]. This letter requested the Commission to advertise the said posts and communicate its recommendations to the government at an early date. Pursuant to this, the Commission advertised the posts on 16/09/1975. It may be mentioned here that since in the meanwhile statutory rule laying down the qualification of experience of a minimum two years as Assistant Engineers came into force, the advertisement also mentioned the said qualification. The petitioners applied for the said posts and they were selected by the Commission. As a result, they were appointed to the posts from 14/04/1977.

(2.) The contention of the petitioners is that they should be given Seniority from the date of their initial appointment on 25/10/1972 and not from 14/04/1977 because even their initial appointments were according to rules which were in existence at that time. We are not persuaded to accept this contention for the following reasons: In the first instance, both the advertisement of 4/06/1972 as well as the appointment letter of 25/10/1972 made it clear that the appointments of the petitioners were temporary and only for a period of six months or till the expiry of two weeks after the Commission had made the regular selection. According to Rule 7 of Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as the 'rules') whether the appointment was by direct recruitment or by promotion or by transfer, the Commission had to be consulted and any appointment made to the said posts without such consultation would not have been regular. Hence, in the advertisement and in the appointment letter, the government had rightly stated that the said appointments were pending the regular selection by the Commission. It is, therefore, clear, as held by the High court, that the appointments to the petitioners and others who were appointed along with them on 25/10/1972 were a stop-gap emergency arrangement pending the regular selection by the Commission. Although the words 'ad hoc are not mentioned either in the advertisement or in the appointment letter, the word 'temporary is mentioned there and read with the rest of the contents they leave nodoubt that the appointments were as and by way of stop-gap arrangement pending the regular selection by the Commission. Mr Ramamurthis contention that the said Rule 7 has to be read with the Madhya Pradesh public service commission (Limitation on Functions) Regulations, 1957 and if so read, it would show that the present posts were beyond the consultative jurisdiction of the Commission has no merit in it. Regulation 5 of the said Regulations, on which he places reliance for the said submission does not warrant the conclusion which he wants us to draw. The said regulation reads as follows:

(3.) Mr Ramamurthis second contention was that there were no special rules for appointment to the said posts and, therefore, it is the General Rules of 1961 (supra) which applied and according to Rule 12 of the said Rules, the seniority is to be counted from the date of initial appointment. We do not read any such provision in Rule 12. On the contrary, Rule 12 (a) (i) makes it clear that where the appointment has to be made in consultation with the Commission, the seniority is firstly from the date of the selection by the Commission and secondly according to the order of merits given by the Commission. Hence none of the authorities relied upon by Mr Ramamurthi, viz. Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra D. N. Agrawal v. State of Madhyapradesh and Union of India v. Ansusekhar Guin helps him. These authorities unequivocally make it clear that if the initial appointment is a not made according to the Rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority.