Nayak, J
The 3rd respondent in the Writ Petition being aggrieved by the order of the learned Single Judge dated 8.10.1999 passed in W.P.N. 336/95 has preferred this Writ Appeal. The 4th respondent herein namely, Sri D. Lingappa filed W.P.No. 336 of 1995 praying for the following reliefs:
(a) Issue a writ of certiorari, quashing Annexure-K, the Final Gradation List of J.Es as on 1.1.1981, prepared by the 1st respondent and also Annexure-Q, the Final Gradation List of J.Es as on 1.12.95 published by the 1st respondent. (amended as per Court Order dated 16.8.99 on I.A.No. II)
(b) To issue a writ of mandamus to prepare a fresh gradation list of J.Es by placing respondents 2 to 4 below the last member of service in the Cadre of J.E.s as on 9.12.77.
(c) To review the promotion made to the cadre of A.EEs in the light of the seniority to be assigned in the fresh gradation list of J.Es., so prepared.
(d) To consider the case for promotion of the petitioner as on 7.12.89, the date on which, the 2nd respondent was promoted - to promote the petitioner to the post of A.E.E.
(e) To direct the 1st respondent to place the petitioner above respondents 2, 3 and 4 in the case of A.E.E., by reviewing the list of seniority in the Cadre of A.E.Es. and
(f) Issue such other writ/direction as this Hon''ble Court may deem fit to issue in the circumstances of the case, including a direction for payment of costs of this proceeding to the petitioner in the interest of justice and equity.
2. The case of the 4th respondent in the Writ Petition, in brief,is as follows: The 4th respondent was appointed as Junior Engineer on a regular basis in the service of the Corporation of the City of Bangalore (for short ''the Corporation'') from 8.7.1975. On 17.7.1972 as per Annexure -E, the appellant herein and the respondents 2 and 4 in the Writ Appeal and certain others were appointed as Draftsmen against newly created posts sanctioned by the Government of Karnataka vide its Order dated 7.7.1972, after obtaining their names from the local Employment Exchange. As per the appointment orders issued to them, their appointments were purely temporary, ad-hoc, liable to be terminated without any notice and it was also made clear to them that their ad-hoc employment would not confer any right on them to claim for regular appointment in the cadre of Draftsmen. It was also incorporated in the appointment order that appointments were subject to approval by the Corporation and the Government. The Government of Karnataka issued an order as per Annexure-F dated 27.10.1977 merging the cadre of Draftsmen (3 years Diploma holders in Civil Engineering) in both Public Works Department and Irrigation Department with the cadre of Junior Engineers (Division-II)'' and directed preparation of a common seniority list. The Corporation in pursuance of the above Government Order, on 9.12.1977, passed a resolution as per Annexure -G adopting the above Government order for the benefit of its employees and this resolution was communicated to the Government of Karnataka, which as per Annexure-J accorded its approval to the decision of the Corporation and permitted the Corporation to re-designate the post of Draftsmen as Junior Engineers (Supervisors) and to merge the same with Draftsmen holding 3 years Diploma in Engineering into one cadre called Junior Engineers in the service of the Corporation. After this event, the Corporation prepared a combined seniority list of the personnel in the cadre of Junior Engineers as on 1.1.1981, by its proceedings dated 14.4.1986. In the said combined seniority list, the appellant herein was assigned rank 6, whereas the contesting respondents were assigned ranks below the appellant. The validity of the combined seniority list was called in question in W.P.No. 19142 of 1989. This Court by its order dated 17.6.1994 as per Annexure - L dismissed the Writ Petition, however, reserving liberty to the petitioners therein to question the legality and validity of any promotion that may be made by the Corporation on the basis of Annexure-K, the combined seniority list. In the meanwhile, the appellants were promoted as Asst. Executive Engineers on 7.12.1989, and as Executive Engineers with effect from 11.10.1991. When the matter stood thus, the present Writ Petition, i.e., W.P. No. 336 of 1995 was filed praying for the reliefs already noticed above.
3. The Writ Petition was opposed by the Corporation by filing statement of objections. The Corporation in para 29 of the statement of objections has claimed thus"
"The averments that neither the Resolution passed by the 1st respondents, nor the order of the concurrence passed by the Government; has laid down any made for counting the seniority of respondents 2, 3 and 4. No amendment to the Recruitment Rules was also made, in such circumstance, there was no rule under which, the 1st respondent could fix the seniority of respondents 2, 3 and 4 from 1972 is denied as false."
4. We are told that the contesting respondents have not filed statements of objections in the Writ Petition.
5. A learned Judge of this Court who heard the Writ Petition finally having opined that the initial appointment of the appellant herein and the contesting respondents in the Writ Petition, being purely ad-hoc, temporary, liable to be terminated at any time without notice and placing reliance on the judgments of the Apex Court reported in the case of
"The prayer(a) made in para 35 of the petition is granted. Consequently, the prayers at (b) to (e) are also granted. As prayed for the respondent No.1- Corporation is directed to consider the case of the petitioner for promotion as Asst. Executive Engineer, with effect from 7.12.1989 and pass appropriate orders in this behalf and thereafter redo the seniority list in the cadre of Asst. Executive Engineer and place the petitioner above respondent Nos. 2 to 4.
In terms stated above the Writ Petition is allowed. The first respondent - Corporation is directed to complete the process within three months from the date of receipt of the copy of this order or production of the certified copy of this order, which-ever event occurs earlier."
6. Hence, this appeal by the aggrieved respondent No.3. Wearer told that respondent nos. 2 and 4 in the Writ Petitions have not preferred any separate Writ Appeals.
7. We have heard Sri P.S. Manjunath, learned Counsel for the appellant and Sri Krishna Bhat, learned Counsel for the 4th respondent. Although the respondents 1 and 2 and respondent No.3 are represented by counsel, at the time of hearing, none appeared, nor any representation was made on behalf of them. Be that as it may, we have the aid of statement of objections filed by the Corporation who is the author of the action impugned in the writ proceedings.
8. Sri Manjunath, would contend that the learned Single seriously erred in law and on facts in treating the appointment of the appellant as purely ad-hoc, temporary and outside the recruitment rules. Sri Manjunath would also maintain that the decisions of the Apex Court on which the learned Judge has placed reliance have no application to the facts of this case. Sri Manjunath would further contend that the appointment of the appellant as Draftsman could not be regarded as ad-hoc or outside the recruitment rules governing that post for the reason that the appointment of the appellant to the post of Draftsmen was made after the post of Draftsman were created with the approval of the State Government. Since the post was created, according to Sri Manjunath, Sub-regulation(2) of Regulation 4 of the City of Bangalore Municipal Corporation Services (General) Cadre and Recruitment Regulations, 1971 (for short ''the Regulations'') is attracted and, therefore, the appointment of the appellant was under the Regulations and not de hors the Regulations. Sri Manjunath would maintain that in that view of the matter, all the case laws cited and relied upon by the learned Single Judge have no application to the facts and situation of the present case.
9. Sri Manjunath would alternatively contend that even in the event of the Court holding that initial appointment of the appellant as draftsman was purely on ad-hoc basis and as a stop-gap arrangement, even then, since the appellant has been continued in service till the two cadres were merged and single cadre was created, the service put in by him with effect from 17.7.1972 should be counted for determining the inter se seniority of the appellant by virtue of the judgment of the Supreme Court in the case of
10. Sri Krishna Bhat, learned Counsel for the 4th respondentwould, at the threshold, high -light the stipulation in the appointment orders, and drawing the attention of the Court to the same, would maintain that it was made abundantly clear to the appellant and others that their appointments are liable to be terminated without notice and their appointment would not enable them to claim appointment to the post of Draftsmen on regular basis and the appellant and similarly circumstanced others, with their eyes, wide open, having accepted the appointment, cannot be now heard to contend that their initial appointment as Draftsmen was on a regular basis and in accordance with the Regulations, simply, because, before the appointment of the appellant and others as Draftsmen, the posts were created with the concurrence of the State Government. Sri Bhat would conclude by contending that the facts of the case would clearly go to show that the appointment of the appellant and others vide Annexure-E dated 17.7.1972 was purely ad-hoc, temporary and as a stop- gap arrangement and de hors the Regulations and, therefore, the judgments on which the learned Single Judge has placed reliance have direct application. Sri Bhat would also draw our attention to what is stated by the Corporation in para 26 of the statement of objections and maintain that even according to the corporation, the appointment of the appellant and others vide Annexure-E was not on regular basis and thus the appointments were made as a stop-gap arrangement since there was an urgent need for the service of Draftsmen in the establishment of the Corporation, pending regular recruitment.
11. Having heard the learned Counsel for the parties, the only point that arises for our consideration and decision is, whether the appointment of the appellant could be regarded as purely ad-hoc, temporary and de hors of Rules and Regulations?
12. If answer to this question is in the positive, it goes without saying that the service rendered by the appellant as ad-hoc employer would not count for determining his seniority and no exception can be taken to the judgment of the learned Single Judge. On the other hand, if the Court were to find that the initial appointment of the appellant vide Annexure-E dated 17.7.1972 was under the Regulations, on a regular basis, then, no objection could be taken to the action of the Corporation is fixing the seniority of the appellant at Sl.No. 4 in the combined seniority list, Annexure-K dated 14.4.1986 or in promoting him on that basis to the next higher cadre or cadres.
13. Having heard the learned Counsel for the parties quiteextensively, we do not find anything on record on the basis of which we can possibly conclude that the appointment of appellant and similarly circumstanced others vide Annexure-E dated 17.7.1972 was not in accordance with the Regulations or purely on ad-hoc, temporary and stop-gap basis. In arriving at this conclusion we are very much guided by the facts rather than the law and undisputably before the appointment of the appellant as Draftsman with effect from 17.7.1972, certain posts of Draftsmen were created after due sanction from the Government as required under the Corporation Act. Having created the posts, the Corporation acting through the Commissioner issued the appointment orders. It is nobody''s case that the Government of Karnataka while according sanction for the posts of Draftsmen, has directed the Corporation to fill up the posts on ad-hoc or stop-gap basis pending recruitment of the posts on a regular basis in order to attract the ratio of the judgment of the Apex Court reported in
Regulation 4 reads as follows:
"4 (1) Appointment in respect of direct recruitment vacancies which are to be filled up either by competitive examination or by selection through the Commissioner shall be made in accordance with the procedure laid down in the Karnataka Public Service Commission Service of Local Authorities (Functions) Rules, 1963.
(2) In respect of posts not coming under sub-rule(1),appointments of direct recruitment except to Class IV shall be made by the Appointing Authority on the basis of the performance of the candidates out of lists sent by the Employment Exchange or the Director of Social Welfare in the case of candidates belonging to Scheduled Castes and Scheduled Tributes at the viva voce or such other test or tests as the Commissioner may deem fit to conduct in each case."
14. What is relevant for our consideration is Sub-regulation(2).Since the posts of Draftsman falls under sub-regulation(2), the Corporation sought the names of eligible candidates for the post of Draftsmen from the local Employment Exchange and on receipt of the same, the Corporation conducted viva voce and interview and selected the appellant and other candidates and appointed them as per Annexure-E.
15. We have carefully perused the statement of objections filed by the Corporation in Writ Petition. Except vaguely stating in para 26 that the appointment of the appellant was not a regular appointment, the remaining averments in the statement of objection would clearly go to show that the appointment was on regular basis. We say this, because of what the Corporation has chosen to state in paras 5, 6, 8,9 and 19. In para 8, it is stated by the Corporation that as per Cadre and Recruitment Rules the persons who have passed Diploma are eligible to be appointed to the post of Draftsman and there is no different qualification prescribed for the post of Junior Engineer and Draftsman and the appellant and others were appointed to the post of Draftsmen on the basis of the prescribed qualifications possessed by them. In para 9 it is stated that after appointment of the appellant and others as Draftsmen with effect from 17.7.1972, the Corporation has regularly granted increments to all those Draftsmen. The same thing is reiterated in para 18. When the appointments were made in the year 1972 posts of Draftsmen existed and the Commissioner appointed the appellant and others vide Annexure - E dated 17.7.1972.
16. Although Sri Bhat in the course of the argument made an attempt to point out that if the appointment of the appellant and others were to be on regular basis, the Commissioner was not a Competent Authority to make such appointments and in view of the fact that only the Commissioner made the appointments and not the Corporation, their appointments should be regarded as ad-hoc, temporary and a stop-gap arrangement and not on regular basis. No factual matrix is laid in the pleadings in support of this plea. Having carefully perused the pleadings filed in this case, we notice that nowhere these facts are stated. Realising this situation, Sri Bhat would meekly further contend that the appellant himself would have stated all these facts in his pleadings. It is the case of the appellant that he was appointed as Draftsman after the posts of Draftsmen were created with the approval of the State Government as required under the provisions of the Corporation Act and after seeking sponsorship of their names from the local Employment Exchange. These facts cumulatively taken, would not leave any doubt in anybody''s mind that it is the case of the appellant that his appointment was on regulars basis.
17. The learned Judge has placed reliance on number ofjudgments. There is no quarrel with the hypothesis stated by the learned Single Judge. It is true that if an appointment is made outside the Rules of Regulations governing recruitment to a post, on a temporary basis or a stop - gap arrangement, the service put in by such candidates in such post would not count in determining seniority in the said post. But, if employees are kept in such status for a larger number of years or decades, the Constitutional Courts may be justified in granting regularisation of services of such employees by applying the postulates of Articles 14 of the Constitution. However, there is no need for us to consider alternative request made by Sri Manjunath to sustain the rank assigned to the appellant in the combined seniority list and subsequent promotion on that basis, on the basis of ''B'' Summary in para 44 of the judgment reported in 1990 S.C.C. 1607. We are satisfied that the appointments of the appellant and others were made vide Annexure-E as Draftsmen after creation of the posts and in terms of the Regulations and not dehors the Regulations. It also needs to be noticed that when recruitment to a post is covered by statutory regulations, the Recruiting Agency is bound to recruit personnel to such post in terms of Regulations and it cannot resort to recruitment of posts de hors the Regulations unless the statutory Regulations themselves permit it to do so. Looking from that angle also, we do not find any substance in the contention of the respondent that the appointment of the appellant and others were made vide Annexure-E should be regarded as outside the Regulations. We do not find anything on record to exclude the application of Regulation 4, particularly Sub-Regulations (2) thereof, to the facts of this case and if sub regulation (2) of Regulation 4 applies, the Corporation appointed the appellant herein and others vide Annexure-E in accordance with the mandate of the Regulations by seeking sponsorship of names from the local Employment Exchange and after subjecting them to interview and viva-voce and on merit. In the result, with great respect and humility, we state, we cannot sustain the order of the learned Single Judge.
18. The appeal is, therefore, allowed with no order as to costs and the order of the learned Single Judge is set aside and the Writ Petition is dismissed.
19. Before parting with this case, a submission made by thelearned Counsel for the parties has to be noticed. It was brought to our notice that although the appellant and the 4th respondent, having attained the age of super-annuation, have retired from the service. Sri Bhat also told us that by virtue of the writ issued by the learned Single Judge, the 4th respondent was promoted and subsequently retired from service and his pensionary benefits are also determined and they are being paid. It is also brought to our notice that in pursuance of the writ issued by the learned Single Judge, no adverse action is taken against the appellant and he was also retired on attaining the age of superannuation. In view of these subsequent developments, we hope and trust that the Corporation would take this order of ours as a declaration of law only and would not resort to any further action on the basis of the same.
