H.L. Anand, J.
(1) By this petition under Article 226 of the Constitution of India the petitioner claims superior seniority over respondents 2 to 57, challenges the promotion of some of the respondents and prays for certain consequential declarations in relation to revision of seniority and the promotions.
(2) The facts and circumstances leading to the petition may be briefly stated. The petitioner joined the Directorate of Education as Trained Graduate Teacher on January 6, 1956. He was later confirmed in that grade. By order No. 968 of October 8, 1959-(Annexure 2) the Director of Education made a number of appointments and postings. This order is in two parts. By the first part of the order seven persons, including respondents 3 to 5, were appointed to the post of Post Graduate Teachers in the 'direct recruitment quota' in the scale of Rs. 200-400 in a 'temporary capacity' until further orders and were posted to different schools shown against their names. By the second part of the order a number of persons, including the petitioner and respondent No. 2, were 'provisionally appointed to officiate as Post Graduate Teachers' in the scale of Rs. 200-400 with effect from October 12, 1959 for a period of three months or till the candidates selected by the Central Staff Selection Board on regular basis became available and were posted to the various schools. The name of the petitioner appears at Seriall No. 23 in the list of the appointees. There is, however, an endorsement against his name to the effect that he was transferred and posted against 'a vacant post of Post Graduate Teacher' and will 'draw his pay in the scale of Rs. 120-300 against that post until further orders'. It is a common case of the parties that all these appointments were effective from October 12, 1959. Subsequently by an office order No. 62P. of Octaber 23 1959 (Annexure 3) the petitioner and certain others were 'provisionally appointed to officiate as Post Graduate Teachers' in the scale of Rs. 200-400 with immediate effect for a period of three months or till the candidates selected by the Central Staff Selection Board on regular basis becomes available. It was further stated that the appointment was 'purely temporary' and 'would confer no right whatsoever upon the promotees for appointment as Post Graduate Teachers'. Against the name of the petitioner it is mentioned that he was 'allowed the scale of Post Graduate Teacher in Rs. 200-400 w.e.f. the date of his posting against the post of P.G.T.', reference apparently being to October 12, 1959. The petitioner has since been working in the P.G.T. grade and was confirmed Along with other P.G.T. teachers by an order of May 13, 1966, with retrospective effect from September 1, 19(13. The confirmation order was made apparently as a sequel to the promulgation of the Delhi Administration (Seniority) Rules, 1965 (for short, the Rules of 1965). In the said confirmation order (Annexure 6) the date of appointment of the petitioner is shown as October 12, 1959.
(3) The first seniority list relating to Post Graduate Teachers was issued on April 12, 1966. Relevant extracts from this list are Annexure 5 to the petition. In this list the petitioner was shown at Seriall No. 146 and his date of appointment in the grade is shown as 12-10-59. By an order of May 12, 1970 (Annexure 1) the Additional Secretary (Edu- cation). Delhi Administration, Delhi promoted and appointed respondents 2 to 6 as Vice-Principals of various schools. Aggrieved by this appointment the petitioner filed the present petition on May 26, 1970 challenging the legality of the order on the ground that it was vocative of the petitioner's fundamental right in the matter of employment. During the pendency of the petition respondent No. 1 issued three further orders of June 30, 1970, July 3, 1970 and July 7, 1970 (Annexurcs 1 A, 1A1 and 1A2) promoting respondents 2 to 9 to the posts of Principals and respondents 7 to 10 as Vice Principals. These promotions were sought to be justified on behalf of the Administration on the basis of a seniority list of July 20, 1970 and it was alleged that the first list was not in accordance with the Rules and, thereforee, had to be revised. In the revised list the petitioner was shown at Seriall No. 219. The list further purported to convey that the petitioner had been appointed on an ad hoc basis to the P.G.T. grade on October 12, 1959 and that the appointment was regularised on December 17, 1970. On account of these subsequent events the petitioner sought leave for and was allowed to amend the petition and the first amended petition was filed on July 14, 1971. In the return filed on behalf of the Administration it was disclosed that there was a tentative seniority list of October 20, 1971, which had been circulated to elicit objections. At the hearing of the petition it was pointed out that the tentative list had since been finalised and the Court allowed the final list to be brought on record. In the tentative list as well as in the final list, which is of April 12, 1972. petitioner was shown at seriol No. 180. The petitioner sought leave to further amend the petition and the leave being allowed the second amended petition was filed by the petitioner in September, 1972. The petitioner prays for a declaration that the petitioner is, on account of a variety of reasons, entitled to be placed between Seriall No. 118 and 119 in the list and in the alternative between Seriall No. 125 and 126 and seeks to challenge the promotion and appointment of respondents 2 to 10 to the posts of Vice Principals and Principals which the petitioner characterised as being based on improper determination of seniority and by his consequential supersession. The petitioner also prays for a mandamus requiring the Administration to promote the petitioner to the post of Vice Principal with retrospective effect from May 12, 1970 and as Principal with retrospective effect from June 30. 1970 and to give all consequential benefits to the petitioner. The petitioner, having since been promoted the relief claimed is primarily intended to obtain monetary advantage.
(4) The first question that requires consideration is if the petitioner could be said to be senior to respondents 2 to 10.
(5) The determination of seniority was to be regulated by three different sets of rules during the period 1954 to 1965 and thereafter. Between December 30, 1954 and July 13, 1960 the seniority was to be determined with reference to the Delhi State Service (Seniority) Rules, 1954, (for short, the 1954 Rules) which were promulgated on December 30, 1954 (Annexure R-3). Between July 14, 1960 and July 30, 1965 the method of recruitment was to be regulated by the Recruitment Rules which were promulgated by notification of June 28, 1960 (for short, the 1960 Rules). These rules provided for a quota of 50 per cent for direct recruits. The Rules of 1965 were promulgated on July 31, 1965 and made not only provision for the direct quota but also a system of rotation and detailed provisions with regard to relative seniority of direct recruits and promotees. According to sub-rule (2) of Rule 4 of the 1954 Rules 'the inter-se seniority among members of a grade who became permanent on or after the 1st January, 1944 and temporary 'qualified' members of the grade shall be fixed in accordance with the continuous length of their service in that grade'. Explanationns to this rule and sub-rule (3) of Rule 4 are in the following term's :-
'Aperson who is selected by the Union Public Service Commission or Central Staff Selection Board (as a result of a test, interview or otherwise) and is declared to be approved for a grade shall be deemed to be 'qualified'.
(3)The inter-se seniority of temporary 'unqualified' members of a grade shall be fixed on the basis of length of continuous service in the grade and such members shall rank junior those referred to in sub-rule (2) of this Rule.'
Rule 5 is in the following terms :-
'THElength of service in a grade referred to in Rule 4 shall include service in an equivalent grade irrespective of the fact whether latter service was rendered in a substantive or officiating capacity or was under the Central Government, the Government of any State or the Government of any province as constituted prior to the 15th August, 1947. Provided that as between any two Government servants with the same length of service reckoned as above, the one who is older in age shall rank senior to the other.'
It is significant that until the rules of 1960 there was no provision in the Rules either for a system of quota or a system of rotation to regulate seniority between the direct recruits and the promotees or a system of determination of such seniority. The 1960 Rules for the first time recognised that 50 per cent of the vacancies will be filled by direct recruitment. It nevertheless made no provision with regard to the determination of the seniority between the direct recruits and the promotees. Detailed provisions with regard to the system of rotation between the direct recruits and the promotees, as indeed provisions for the determination of seniority between direct recruits and promotees, were made for the first time in the Rules of 1965.
(6) Between 1966 and 1972 as many as 4 seniority lists were prepared. The first seniority list is of April 12, 1966 a relevant extract of which is Annexure 5 to the first amended petition, in which the petitioner is shown at Seriall No. 146. The date of appointment of the petitioner in the grade is shown in this list as October 12, 1959. There is a list of July 20, 1970 (Annexure R-2) on the basis of which the impugned promotions were sought to be justified. The petitioner is shown at Seriall No. 219 in this list. In the tentative list of October 20, 1971 (Annexure R-3), which eventually became the final list of April 12, 1972 (Annexure R1-A), the petitioner was, however, shown at Seriall No. 182. In these lists the date of ad hoc appointment of the petitioner is shown as October 15, 1959 and the date of regular appointment as July 15, 1960, which is apparently the result of a clerical error. The selection is shown as on December 17, 1960. While it is not clear as to the basis on which the earlier lists were prepared, from the communication of the Directorate of October 20, 1971, with which this tentative list was circulated, it appears that the seniority of teachers appointed before July 31, 1965 had been determined on the basis of the 1954 Pules, while the seniority of those appointed after that date was based on the 1965 Rules. According to this communication ' only regular service has been made the basis of determining the seniority and no advantage has been given for ad hoc service'. According to para 3 of this letter 'those teachers working against the vacant posts of P.G.Ts. in previous years before their promotion as P.G.Ts. have been given seniority from the year of their promotion'. It further appears from the communication that those P.G.Ts. who had been promoted as P.G.Ts. in a particular year and were regularised by the D.P.C. in that year had been given seniority from the date of their promotions. It is further disclosed that the seniority list of departmental promotion in a year and those of direct recruits in the same year has been prepared on the basis of a system of rotation.
(7) It is not disputed that respondents 2 to 5 were appointed on October 12, 1959 in the grade of P.G.T. by direct recruitment, having been selected earlier for the post and the appointment was in a tem- porary capacity. It is also not disputed that by a different part of the same order, by which the said respondents were appointed, the petitioner was appointed to a post in the grade, even though 'provisionally', and in an 'officiating' capacity until a regular incumbent became available or for a period of three months whichever was earlier. It is also not in dispute that although the petitioner was appointed with effect from October 12, 1959 he was to draw the pay in a lower scale and it was only subsequently by an order of October 23, 1959 that the petitioner's appointment to the grade was described as 'purely temporary' and he was allowed to draw the pay in the scale of P.G.T. with retrospective effect from the date of his posting i.e. October 12, 1959. It is also not in dispute that the other respondents were appointed on various dates subsequent to October 12, 1959. It is also a common case of the parties that even though the petitioner was provisionally appointed with effect from October 12, 1959 and continued to work in the grade his promotion to the grade was regularised only on December 17, 1960 by a formal selection. It was not disputed on behalf of the Administration that in case a provisional or ad hoc appointment to the grade was followed by a regular selection, it would relate back to the date of actual appointment and that in determining inter-se seniority the period of service during which appointment was held on an ad hoc or provisional basis was taken into account in determining seniority in a number of cases. It was, thereforee, not disputed that ordinarily, on the provisional or ad hoc appointment of the petitioner with effect from October 12, 1959 getting galvanised into a regular appointment on selection on December 17, 1960, the regular appointment would relate back to the date of provisional appointment, with the consequential right of the petitioner to the period, during which he was working in a provisional or ad hoc capacity, being taken into account in determining seniority. These concessions were apparently made because during the material period the governing principle in the matter of seniority was as incorporated in the Home Ministry's Office Memorandum of December, 1949, which accepted the entire length of service in. a grade as a criterion for determining seniority until it was revoked by the December, 1959 memorandum. The benefit of December, 1949 memorandum was extended to pre-December, 1959 entrants on the basis of the judgment of the Supreme Court in the case of Ravi Verma (1) to the effect that the December, 1959 memorandum was only prospective. The right of the petitioner, however, to the said period being taken into account in the matter of determining seniority is sought to be denied to the petitioner on the ground that the relation back of regularisation to the provisional appointment could take place only where the provisional or ad hoc appointment was made against a 'regularly vacancy' and that the petitioner was not entitled to the benefit because he was not appointed initially against a regular vacancy hut either in a leave vacancy or otherwise without a vacant post. This contention of the Administration appears to be devoid of merit, both on fact and in law. A /&ference; to the order of October 8, 1959 (Annexure 2), as indeed the subsequent order of October 23, 1959 (Annexure 3), leaves no manner of doubt that the appointment of the petitioner, and the consequential posting, was against a vacant post, and that being so, it is not possible to accept the contention that the rule of relation back would not apply to the case of the petitioner. The petitioner was clearly appointed, even though without a selection and on a provisional or on an ad hoc basis, against a vacant post and continued to work against that post until his formal selection on December 17, 1960. It is true that the provisional or ad hoc appointment does not by itself confer any right on an appointee, and about this there was no controversy between the parties and is obvious from the language of the two orders referred to above and is even otherwise an accepted principle in service under the State. Where, however, a person appointed on a provisional or on an ad hoc basis, without reference to a selection or in anticipation of Rules or otherwise de'hors the statutory Rules, is eventually selected or confirmed or his initial appointment is regularised, the selection, regularisation or confirmation, as the case may be, relate back to the initial appointment because what is confirmed or regularised is the appointment already made. The regularisation or the selection is not a fresh appointment but is the affirmation of the appointment already made and held by the appointee. On such regularisation the appointee would be deemed to have throughout been regularly appointed. The regularisation, thereforee, relates back to the date of initial appointment. If that be so, the petitioner was for all intents and purposes at par with respondents 2 to 5, who were appointed on the same date, even though after a prior selection. Once the appointment of the petitioner was regularised the quality of the appointment or the nature of tenure that he held until regularisation was wholly irrelevant in determining the in,ter-se seniority of the petitioner and the respondents and would not justify differential treatment.
(8) The result would be no different if the problem is examined with reference to the 1954 Rules. It is true that in terms of sub-rule (2) of Rule 4 of the said Rules the inter-se seniority among members of a grade who are permanent and temporary qualified members of the grade, has to be fixed in accordance with the continuous length of their service in that grade. According to the Explanationn to sub-rule (2) a person who is selected by the U.P.S.C. or the Central Staff Selection Board shall be deemed to be qualified. According to sub-rule (3) of Rule 4 inter-se seniority of temporary unqualified members of a grade is to be fixed on the basis of length of continuous service in the grade 'and such members shall rank junior to those referred to in sub-rule (2) of this rule'. It is not in dispute that at the time of their respective appointments respondents 2 to 5 were temporary 'qualified' members of the grade while the petitioner, having been appointed without a selection, was a temporary 'unqualified' member of the grade and, thereforee, on that basis the petitioner would rank junior in terms of sub-rule (3) of Rule 4 to respondents 2 to 5 but such a situation obtained only until a qualitative change is brought about by the eventual regularisation of the appointment of the petitioner by selection. If the regularisation relates back to the initial appointment on such regularisation the petitioner ceased to be a mere temporary unqualified member of the grade. It is significant that in terms of Rule 5(1) of the said Rules the length of service need not be in a substantive capacity and service rendered even in an officiating capacity would qualify. That being so, on the application of the principle of relation back the petitioner would be elevated to the same position as the said respondents and, thereforee, had to be equally treated.
(9) It follows, thereforee, that in determining the inter-se seniority of the respondents and the petitioner, the petitioner was entitled to be placed Along with respondents 2 to 5 and above respondent 6 whose name appears at Seriall No. 124, and who was appointed on November 3,1959.
(10) The further question that, however, arises is as to how the seniority of the petitioner should have been determined vis-a-vis respondent 2 to 5, since all of them were appointed or be deemed to have been appointed on the same date. It is true that respondents 2 to 5 are direct entrants while the petitioner is a promotee but this classification, to my mind, was irrelevant because the Rules of 1954, while were applicable during the relevant time, made no provision with regard to any weightage or reservation for direct recruitment nor did the Rules contain any provision, with regard to inter-se seniority between the direct recruits and the promotees. It is the 1960 Rules which for the first time laid down the quota of 50 per cent for direct recruits. That being so, the petitioner and these respondents must be treated alike. In the absence of any other criterion to determine their seniority. the rational basis would be their comparative dates of birth. Such a basis would also be consistent with the provisions contained in the 1st proviso to Rule 5 of the 1954 Rules. According to the proviso if two Government servants have the same length of service, their respective age is determinative of their rank in seniority. It was not disputed that on the basis of the comparative dates of birth of the petitioner and these respondents, the petitioner was eldest in age to all these respondents and that being so the petitioner was entitled to be placed next above respondent No. 4 whose name appears at Seriall No. 119. The petitioner was, thus, entitled to be placed between Seriall Nos. 118 and 119 on a proper determination of his seniority.
(11) The next question for consideration is as to the impact of the improvement of the seniority of the petitioner on the validity of the impugned orders by which respondents 2 to 10 were promoted to the next higher posts in 1970 ignoring the claim of the petitioner. With the improvement in the seniority of the petitioner the petitioner was obviously senior to all these respondents when the said respondents were considered for promotion and were promoted to the next higher posts. That being so, the non-consideration of the candidature of the petitioner for these promotions would be vocative of the petitioner's fundamental right in the matter of employment which would extend to the benefit of being considered for promotion and would, thereforee, render these promotions liable to be struck down.
(12) It is, however, unnecessary in the peculiar circumstances of this case to either quash the seniority list or to void the promotion of the respondents. The petitioner could be given adequate relief by a mere revision of the seniority list so as to upgrade him in the list in terms of the observations made above and to make a direction that the petitioner's candidature for promotion to the said next higher posts be considered on the basis of the revised seniority list as on the dates on which the promotions were made. If the petitioner is selected for promotion the necessary adjustments would be made in the promotions of respondents already made so as to accommodate the petitioner, giving all benefits to the petitioner to which he would have been entitled, if he had been considered and promoted on the dates on which the promotions took place. Until the consideration of the candidature of the petitioner and his promotion or deemed promotion the respondents would continue to hold the posts, to which they were promoted, so that the work of the Administration is not unnecessarily disturbed. The necessary process for the consideration of the petitioner for promotion and for his promotion would be initiated and completed within a period of three months.
(13) In the way I have looked at the entitlement of the petitioner to superior seniority and his consequential right to be considered for promotion with retrospective effect it is unnecessary to consider the various other contentions, which were raised on behalf of the petitioner such as the validity of the system of field of choice and the true criteria for the determination of seniority between the direct entrants and the promotees. It is also unnecessary to deal with the other reasons on the basis of which superior seniority was claimed on behalf of the petitioner.
(14) The petitioner would also have his costs. Counsel's fee is assessed at Rs. 500.
(1)Union of India and others v. M. Ravi Varma and others, : 2SCR992 .