N. N. PARMAR v. J. K. DAVE — 1984 DIGILAW 284 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) IN these two petitions under Article 226 of the Constitution the validity and legality of the order dated 26-2-79 passed by the Manager Government Photo Litho Press and Photo Registry Ahmedabad which is at Annexure C to Special Civil Application No. 573 of 1979 has been brought in challenge by the petitioner of that petition. The petitioner of Special Civil Application No. 3567 of 1983 on the other hand challenges the action of the Respondent-State of Gujarat and the Manager Government Photo Litho Press by which the aforesaid order has not been implemented pending Special Civil Application No. 573 of 1979 on account of the interim directions given by this court in that petition and which according to the petitioner of Special Civil Application No. 3567 of 1983 have been misinterpreted by the concerned authorities. Some other reliefs have been prayed for by the petitioner of this petition which will be referred in the later part of this judgment an appropriate stage. ( 2 ) IN order to appreciate the grievance of the concerned petitioners in these two petitions it will be necessary to note a few introductory facts leading to the present petitions. The petitioner in Special Civil Application No. 573 of 1979 is Mr. N. N. Parmar. Respondent No. 3 in that petition is Mr. M. J. Patel. These two employees are working under the Manager Photo Litho Press at Ahmedabad who in his turn is acting under the control of the Secretary Department of Industries Mines and Power Department State of Gujarat. Mr. Parmar and Mr. Patel are the main contesting parties in these proceedings. In Special Civil Application No. 3567 of 1983 Mr. Patel is the petitioner while Mr. Parmar is respondent No. 4. One Mr. S. R. Singh is joined as Respondent No. 5 in Special Civil Application No. 3557 of 1983. For the sake of convenience I will refer to Mr. Parmar as the petitioner and Mr. In Special Civil Application No. 3567 of 1983 Mr. Patel is the petitioner while Mr. Parmar is respondent No. 4. One Mr. S. R. Singh is joined as Respondent No. 5 in Special Civil Application No. 3557 of 1983. For the sake of convenience I will refer to Mr. Parmar as the petitioner and Mr. Patel as Respondents No. 3 in the light of the sequence in which they are arraigned as respective parties in Special Civil Application No. 573 of 1979 It is the contention of the petitioner that by the impugned order dated 26-2-1979 Annexure C to Special Civil Application No. 573 of 1979 the petitioner is sought to be reverted from the post of camera operator to the post of Helio printer in the same press while Respondent No. 3 is sought to be promoted vice the petitioner in the said post with effect from 1-1-1973. This act on the part of the respondents according to the petitioner is illegal and unconstitutional. It violates the petitioners fundamental rights under Article 16 of the Constitution. The petitioner submits that before passing of the impugned order the petitioner had been holding the post of camera operator since 1970 and there is no reason to abruptly revert the petitioner to the lower post and to push up Respondent No. 3 in that post retrospectively from 1-1-1973. . . . . . . . . ( 3 ) BEFORE the main grievances canvassed by the respective petitioners in these petitions are highlighted it would be necessary to quickly glance through the service history of petitioner Mr. Parmar and Respondent No 3-Mr. Patel who is the petitioner in the cross petition. ( 4 ) SERVICE History of the Petitioner Mr. Parmar: He was appointed as a peon in the Government Litho Press in 1965. Thereafter he was appointed as auxiliary on 11-6-1966. It is an admitted position between the parties that the post of auxiliary is a class III post. The petitioner was thereafter appointed as Technical Assistant in the same Press on 5-8-1969 and thereafter on 2-5-1970 the petitioner was promoted without prejudice to the seniority of other employees on ad hoc basis for three months on probation as a camera operator. The petitioner was thereafter appointed as Technical Assistant in the same Press on 5-8-1969 and thereafter on 2-5-1970 the petitioner was promoted without prejudice to the seniority of other employees on ad hoc basis for three months on probation as a camera operator. Thereafter he has continued as a camera operator in the same press till the date of passing of of the impugned order at Annexure C to Special Civil Application No. 573 of 1979 on 26-2-1979. He is sought to be reverted to the post of helio printer for making room for Mr. Pate-Respondent No. 3 who is treated to be appointed as a camera operator vice the petitioner with effect from 1 ( 5 ) SERVICE History of Respondent No. 3-Mr. Patel: He was appointed as auxiliary in Government Photolitho Press on 21-12-1964. He was thereafter promoted to the post of Technical Assistant on 25 and thereafter he was further promoted to the post of Helio printer on 5-8-1969 i. e. the date on which the petitioner-Mr. Parmar was promoted as Technical Assistant. Respondent No. 3 continued as Helio printer all throughout thereafter till the date of the impugned order whereunder he is sought to be treated to have been posted as a camera operator with effect from 1 As seen above even though the order was passed on 26-2-1979 because of the interim order of status-quo granted by this court in Special Civil Application No 573 of 1979 Respondent No. 3 has not actually worked as a camera operator pursuant to the order at Annexure C. Even at present he is working as a Helio printer in Government Photolitho Press. The aforesaid service history shows that as compared to the petitioner Respondent No. 3 had remained senior all throughout the service career of both these rival contestants. The petitioner entered class III service on 6-6-1983 about 1 1/2 years after Respondent No. 3 entered the said cadre of auxiliary. Thus as auxiliary employees in the same Photolitho Press Respondent No. 3 was senior to the petitioner. Then on 25-5-1966 that is about a month prior to the appointment of the petitioner as auxiliary Respondent No. 3 got further promoted as a Technical Assistant. It is thereafter that on 5-8-1969 the petitioner was promoted as Technical Assistant and on that very day Respondent No. 3 was further promoted as Helio printer. Then on 25-5-1966 that is about a month prior to the appointment of the petitioner as auxiliary Respondent No. 3 got further promoted as a Technical Assistant. It is thereafter that on 5-8-1969 the petitioner was promoted as Technical Assistant and on that very day Respondent No. 3 was further promoted as Helio printer. Thus all throughout the service career of both the contestants Respondent No. 3 remained ahead to the petitioner. It is in this background of the service history of the contesting parties that the main grievances canvassed by them in the present proceedings will have to be analysed and redressed. ( 6 ) XXX xxx xxx ( 7 ) XXX xxx xxx ( 8 ) MR. Dave raised the following cotentions in support of the petition of the petitioner: (1) The petitioner was promoted and appointed on 2-5-1970 as camera operator and was placed on probation for three months. Thus by 2-8-1970 the petitioner became entitled to be confirmed and as his probation was not extended and as there was no service rule enabling any extension of probation on the expiry of three months the petitioner became confirmed camera operator and as such he continued there-after for more than 8 years till the impugned order came to be passed. As the petitioner was a confirmed employee he could not have been reverted save and except on the ground of mis-conduct for which proper proceedings had to be initiated against him. But that was not done and it is not the case of the respondents that there was any misconduct on the part of the petitioner. Consequently the reversion order at Annexure C is null and void. (2) The impugned reversion order of the petitioner is ex-facie bad in law as there is no occasion to revert the petitioner to make room for Respondent No. 3 who might be admittedly senior in the lower cadre of Technical Assistant for the simple reason that in 1970 when the petitioner got promoted as camera operator Respondent No. 3 had already got promoted earlier from the cadre of Technical Assistant and had become helio printer from 5-8-1969. Thus in May 1970 Respondent No. 3 was out of arena of contest as he was already occupying a higher post as compared to the Technical Assistant. The petitioner who was a Technical assistant was promoted as camera operator. Thus in May 1970 Respondent No. 3 was out of arena of contest as he was already occupying a higher post as compared to the Technical Assistant. The petitioner who was a Technical assistant was promoted as camera operator. When he was so promoted in 1970 there was no question of Respondent No. 3s seniority being kept in view or being given any over-riding effect. (3) As a sequitur to the second contention Mr. Dave submitted that in any case the petitioner could not be reverted in 1979 to make room for Respondent No. 3 as Respondent No. 3 had no occasion to aspire for being appointed as camera operator in 1970 as by that time he had already become Helio printer which was the post on par with camera operator. Thus there was no question of retrospective reshuffling of postings of the concerned parties in view of the aforesaid peculiar features of the case and hence also the impugned order is misconceived and illegal. (4) In any case Respondent No. 3 has waived his right to be considered for being appointed retrospectively as camera operator from 1970 or from 1-1-1973 as till 1975 he sat silent and made no grievance about the same. That he sat on fence and consequently his alleged right to be reconsidered for being retrospectively appointed or being given deemed date of promotion as camera operator from 1-1-1973 or for that matter from 1970 is a stale claim which could not have been countenanced by the State authorities. Consequently the impugned order recognising such a stale claim must fail through. (5) For no fault of the petitioner he is being pushed back after 9 years of service as camera operator. It is not the case of the respondents that the working of the petitioner as camera operator is found to be unsatisfactory or that any misconduct has been committed by him as such and still he is being reverted after 9 years from the post of camera operator only for making room for Respondent No. 3 retrospectively from 1-1-1973. That the petitioner is being reverted from the post of camera operator to the post of Helio printer retrospcetively from 1-1-1973 vice Respondent No. 3 who is given that post. That the petitioner is being reverted from the post of camera operator to the post of Helio printer retrospcetively from 1-1-1973 vice Respondent No. 3 who is given that post. In equity and fair play such type of exercise should not be countenanced and even on that ground the order at Annexure C should be quashed and set aside. (6) It was lastly contended by Mr. Dave that even assuming that all these earlier contentions fail and if it is found necessary to consider the eligibility of the petitioner vis-a-vis Respondent. No. 3 for the post of camera operator in 1979 when the impugned order was passed the rival claims of these parties should have been considered in the light of the relevant Recruitment Rules to the post of camera operator which had come into force from 1976. As per these rules promotion to the post of camera operator was to be given to the candidates of proved merits and efficiency. The first respondent ought to haw undertaken that exercise and ought to have considered relative merits and demerits of the petitioner and Respondent No. 3 qua the post of camera operator and then only proper order appointing or continuing either of them as camera operator could haw been passed. The impugned order at Annexure C is therefore liable to be quashed and set aside also on the ground that it is contrary to the relevant Recruitment Rules governing appointment to the post of camera operator. ( 9 ) XXX xxx xxx ( 10 ) XXX xxx xxx ( 11 ) XXX xxx xxx ( 12 ) SO far as the first contention is concerned a strong reliance was placed by Mr. Dave on the wording of the earlier appointment order given to the petitioner in May 1970 The said order is Annexure A to the Special Civil Application No. 573 of 1979. The order recites that Mr. N. N. Parmar who was working as Technical Assistant was being promoted as camera operator in the pay-scale of Rs. 125-4-145-EB-5-165-7-200 on probation for three months on a purely temporary bash and without affecting the seniority of others. It has been further recited that if the working of the employee or his conduct was not found to be satisfactory he was liable to be reverted. 125-4-145-EB-5-165-7-200 on probation for three months on a purely temporary bash and without affecting the seniority of others. It has been further recited that if the working of the employee or his conduct was not found to be satisfactory he was liable to be reverted. Now it is an admitted position between the parties that in 1970 there were no separate Recruitment Rules framed by the State Government so far as the post of camera operator was concerned. The affidavit-in-reply filed by the Manager of the Government Photolitho Press points out in para 4 that the Recruitment Rules for the post of camera operator as framed under Article 309 of the Constitution came into force from 1-11-1976. But prior thereto the Recruitment Rules published as per the then Development Department Resolution of the erstwhile State of Bombay dated 6-12-1952 were holding the field. Thus in 1970 when the order of promotion was given to the petitioner 1952 Rules were holding the field. A copy of the Recruitment Rules was made available to me by the learned counsel for the parties. Rule 8 of 1952 recruitment rules is the only relevant rule which reads as under:"helio photographer process operator process etcher transfer:appointment shall be made either- (a) by promotion from amongst technical assistants who have a thorough working knowledge of wet plate photo graph in the case of Helio photographer; dry and wet plate photography applicable to line half tone and tri-colour blocks in the case of process operator line half tone engraving and printing in the case of process etcher. Coating printing washing of transfers and joining in the case of transfers. or (b) by nomination from amongst persons who- (1) are not less than 18 or more than 25 years of age. (2) possess the qualifications mentioned at (a) above". There is no dispute between the parties that the post of process operator mentioned in Rule 8 is the same pout as the post of camera operator with which I am concerned in the present petition. The mandate of the said rule is that appointment could be made by promotion to the post of process operator (camera operator) or helio photographer from amongst technical assistants who had thorough working knowledge of the concerned type of photography mentioned therein. The mandate of the said rule is that appointment could be made by promotion to the post of process operator (camera operator) or helio photographer from amongst technical assistants who had thorough working knowledge of the concerned type of photography mentioned therein. It is also an agreed position between the parries that in 1952 rules no provision was made about the period of probation on which promoted employee need be placed nor was there any other rule laying down any ceiling on probation period. It is in the light of the aforesaid rule that scope and ambit of the petitioners appointment order of May 1970 has to be examined. It is true that the order in question mentions that the petitioner was placed on probation for three months on purely temporary basis without affecting seniority of others. But it must be kept in view that at that time post of Helio printer which was already occupied by Respondent No. 3 was on par with the post of camera operator. Respondent No. 3 was already occupying that higher post. All that happened in the light of the promotion order at Annexure A so far as the petitioner was concerned was that he was also promoted to the post of camera operator in the same time-scale and for which there was a common seniority list. Thus Respondent No. 3 remained senior to the petitioner in the higher time-scale of Rs. 125-200 which was common to the post of Helio printer as well as camera operator. Thus he remained a senior employee in the same time-scale though in the equivalent post of Helio printer. It is not possible to agree with the contention of Mr. Dave that on expiry of three months automatically the petitioner became a confirmed employee. It is now well settled that in absence of any specific provision in the appointment order or in any statutory rules holding the field laying down any ceiling on the probation period the concerned employee even though promoted on ad-hoc basis and placed on probation for a given period does not automatically become a confirmed employee on the expiry of that period in the absence of any express order of confirmation given to him. It is not disputed that all throughout from May 1970 till the date of the impugned order under which the petitioner was sought to be reverted from the post of camera operator to the post of Helio printer no confirmation order was ever given to the petitioner so far as post of camera operator went. It is precisely for that reason that Mr. Dave seeks invocation of doctrine of deemed confirmation on the expiry of the probationary period as mentioned in the appointment order. The legal position on this aspect is settled by a catena of decisions of the Supreme Court I may refer to only one such decision rendered in the case of State of U. P. v. Akbar Ali AIR 1966 SC 1842 A Constitutional Bench of the Supreme Court speaking through Shah J. has made the following pertinent observations in para 6 of the report: Confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation and so long as the order of confirmation is not made the holder of the post remains a probationer. It has been held by the court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases in the absence of such an order or in the absence of such a service rule an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation the only possible view to take is that by implication the period of probation has been extended and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. Various earlier Supreme Court judgments have been pressed in service if propounding the aforesaid view. It is not necessary to burden this judgment with series of other judgments of the Supreme Court taking the same view. It must therefore be held that in the absence of any specific rule laying down any ceding on the period of probation for any employee for the post of camera operator and in the absence of any specific direction in the appointment order itself indication that the petitioner will be automatically confirmed on expiry of the probation period it must be held that the petitioner continued on ad-hoc basis as a camera operator all throughout thereafter till the date of the impugned order. It is also pertinent to note that the appointment order itself shows that the appointment is purely provisional and without affecting the seniority of others. Thus it was a stop-gap arrangement and was not a regular promotion given to the petitioner on any substantive basis. It was an ad-hoc promotion which continued to remain as ad-hoc during the subsequent years till the impugned order of reversion came to be passed against the petitioner. It is also not possible to agree with Mr. Dave when he submits that as there was no rule permitting extension of probation the petitioner got automatically confirmed after the expiry of period of probation as mentioned in the order of appointment. If there was no rule permitting extension of probation them was equally no rule requiring an employee to be put on probation. Thus it was left to the sweet will of the employer State to confirm an employee or not as to when to confirm him. Before parting with the first contention of Mr. Dave I must also note that Mr. Dave placed strong reliance on a decision of N. H. Bhatt J. in Special Civil Application No. 1063 of 1978 decided on 3-4-1980. In that petition the petitioner was selected at the competitive examination by the Gujarat Public Service Commission as a clerk in the Fishery Department. After selection he was put on probation for a period of two years from 16 The period of probation was therefore expiring on 15-7-77. There was a recruitment rule which in terms provided that 9elected candidate would be on probation for a period of two years. After selection he was put on probation for a period of two years from 16 The period of probation was therefore expiring on 15-7-77. There was a recruitment rule which in terms provided that 9elected candidate would be on probation for a period of two years. It is in that light that N. H. Bhatt J. took the view that on expiry of the period of probation as mentioned in the appointment order and in the light of the relevant recruitment rule the petitioner of that period could not have been treated to have continued as a probationer after number of years in the absence of any specific order of extension of probation and notwithstanding absence of any express order of confirmation. It is difficult to appreciate how the aforesaid decision can be of any assistance to Mr. Dave on the facts of the present case. There is no rule so far as the present case is concerned which is analogous to the recruitment rule laying down the limit of probation on which selected candidate need be placed as was present before N. H. Bhatt J. So far as the facts of the present case are concerned they are squarely governed by the ratio of the judgment of the Supreme Court in Akbar Alis Case (supra) especially in the light of the express wording of the appointment order given to the petitioner in 1970 which in terms provided that it was purely an ad-hoc appointment subject to the seniority of others meaning thereby that as and when in future the question of the concerned promotees giving way to his real senior arose he had to make room for his real senior as is found in the present case in retrospect so far as Respondent No. 3 is concerned. In fact the impugned order clearly flows from the express wording of the petitioners appointment order of 1970 itself which was made subject to the seniority of the petitioners seniors. Respondent No. 3 was admittedly petitioners senior all throughout. Under these circumstances the order of promotion at Annexure A cannot be treated to have resulted into confirmation of the petitioner as a camera operator after expiry of three months Mr. Dave therefore stands rejected. from 2-5-1970. Respondent No. 3 was admittedly petitioners senior all throughout. Under these circumstances the order of promotion at Annexure A cannot be treated to have resulted into confirmation of the petitioner as a camera operator after expiry of three months Mr. Dave therefore stands rejected. from 2-5-1970. The first contention of ( 13 ) XXX xxx xxx ( 14 ) XXX xxx xxx ( 15 ) THAT takes me to the consideration of the 5th contention He submitted that the petitioner was promoted even though on ad-hoc basis as camera operator years back in 1970. He has worked as camera operator efficiently and without any blemish for all these years till 1979 when the impugned order was passed. In these circumstances equity and fair play required that the petitioner should not be disturbed after so many years. Mr. Dave in this connection vehemently relied upon the last part of the order at Annexure A appointing the petitioner as camera operator on three months probation from 2-5-1970. He stated that the order itself made it clear that the employee so promoted would be liable to be reverted if his work was not satisfactory. That the respondents have not come forward with any such case. Hence in justice and fairness the petitioner should not be disturbed after passage of so many years. So far as the aforesaid contention of Mr. Dave is concerned it must be kept in view that what is sought to be done by the respondents by passing the order at Annexure C is to give a deemed date of appointment to Respondent No. 3 as camera operator from 1-1-1973 in the revised time-scale of camera operator as subsequently fixed by the State of Gujarat after the Desai Pay Commission recommendations. In retrospect is is tried to be seen at to whether between the petitioner and Respondent No. 3 who was entitled to be placed in the higher time scale of camera operator from 1-1-1973. Now it is not disputed that the petitioner was junior to Respondent No. 3 all throughout in his service career. Even the appointment order given to him at Annexure A provisionally promoting the petitioner as camera operator from 2-5-1970 itself made it clear that it was on ad-hoc basis and without prejudice to the seniority of others. Thus the order itself did not give him any right to substantively hold the post of camera operator. Even the appointment order given to him at Annexure A provisionally promoting the petitioner as camera operator from 2-5-1970 itself made it clear that it was on ad-hoc basis and without prejudice to the seniority of others. Thus the order itself did not give him any right to substantively hold the post of camera operator. It was an ad-hoc arrangement. If the petitioner who is admittedly junior to respondent No. 3 has to make room for Respondent No. 3 from 1-1-1973 in the post of camera operator which ultimately got upgraded and if his earlier ad-hoc appointment is accordingly reshuffled it cannot be said that any unfairness is being shown to the petitioner. It must be kept in view that the petitioner is never confirmed as a camera operator. Respondent No. 3 is admittedly senior to the petitioner. Earlier Respondent No. 3 had no occasion to make any grievance regarding the appointment of the petitioner as camera operator by passing Respondent No. 3. That grievance arose only when partly was disturbed between these two posts as observed earher. In the light of this grievance if the State Government on the application of correct principle of seniority seeks to do justice between the concerned employees it cannot be said that the effect thereof result in any inequity or unfairness to the petitioner who is admittedly junior Respondent No. 3 and who otherwise would not haw become camera operator if Respondent No. 3 had put forward his claim to be appointed as camera operator at the relevant time. It is now well settled that ad hoq appointments do not confer any rights to the appointees as such and such appointees have to make room for better qualified or suitable persons who are entitled to hold those posts and if that exercise is undertaken after passage of time such exercise cannot be treated to be unconstitutional unfair or inequitable. I may refer to a few decisions on the point to which my attention was invited by Mr. N. J. Mehta for respondent No. 2. I may refer to a few decisions on the point to which my attention was invited by Mr. N. J. Mehta for respondent No. 2. In the majority decision of the Full Bench of the Punjab and Haryana High Court in the case of Sunder Lal v. State of Punjab J. speaking for the majority made the following pertinent observations :" If owing to some bonafide mistake the Government has taken a decision regarding the confirmation of an officer it can certainly revise its decision at a subsequent stage when the mistake comes to its notice. The mistake can be corrected and it cannot be said that it should be allowed to perpetrate even when the same is discovered. The consequent reduction of the officer could not amount to reduction in rank and attract the applicability of Article 311 of the Constitution. Such a reduction is the necessary result of any routine administrative decision". In the aforesaid case certain assistant clerks in the Irrigation Department of P. W. D. of the Punjab Government were wrongly confirmed on misapplication of the rule of confirmation whereunder war service weightage was given to them. It was ultimately found that they were not entitled to such weightage. Under these circumstances their confirmation was sought to be withdrawn. Their challenge against the said action was repelled in the aforesaid decision. It is pertinent to note that such confirmations were given to them with effect from 1-2-1949 and pursuant to that they got further benefits in the service and they got promoted to higher post. It is only thereafter that in 1960 that is after 11 years notices were issued to the to show cause why the service benefits which were erroneously given to them be not withdrawn and they be not de-confirmed. The aforesaid action of the State of Punjab was upheld by the majority decision of the Full Bench even though such a decision was rendered 11 years after the original confirmation It goes without saying that a mere erroneous decision even though it has lingered on for number of years does not give any vested right to any one who is ultimately found to be not entitled to such benefit. In the case of (1979) 2 SLR 726. In the case of (1979) 2 SLR 726. Pathak C. J. (as he then was) speaking for the Himachal Pradesh High Court took the view that adhoc appointees do not by force of such appointments get any vested right and such adhoc appointments can be subsequently reshuffled on proper legal ground. My attention was also invited to a decision of a Full Bench of the Kerala High Court in the case of M. K. Mohmed v. State of Kerala 1984 (2) SLR 472. In that case the Full Bench of the Kerala High Court was concerned with the claim of the appointees in service who had been given adhoc appointments ignoring qualifications and quota rules laid down in the service conditions. It was held that such appointees did not get any right to such posts and on the contrary such appointments could be considered to be arbitrary and unjust and hit by Article 14. The aforesaid decisions there-fore clearly indicate that if adhoc appointments were made ignoring other qualified persons at the instance of such qualified persons such adhoc appointments can be quashed and set aside by courts. If that is so there is no reason why the State of Gujarat itself cannot redress the grievance of Respondent No. 3 vis-a-vis the petitioner and cannot give him justice which he otherwise deserved. The impugned order at Annexure C purport to do the very same thing. Under these circumstances it cannot be said that the impugned order at Annexure C has treated the petitioner in any unfair manner or unjustly. My attention was also drawn to a decision of the Supreme Court in the case of B. S. Vadra v. Union of India AIR 1969 SC 118 . In the case before the Supreme Court certain assistants working in the railway service were sought to be reverted pursuant to coming into operation of the Railway Boards Secretariat Clerical Service (Reorganization) Scheme under which the petitioner were found liable to be reverted. Their challenge to the reversion was turned down by the Supreme Court in writ petitions filed by them under Article 32 of the Constitution. Vaidialingam J. speaking for the Supreme Court observed that the concerned petitioners were in the first instance appointed as upper division clerks and later on as assistants. Their challenge to the reversion was turned down by the Supreme Court in writ petitions filed by them under Article 32 of the Constitution. Vaidialingam J. speaking for the Supreme Court observed that the concerned petitioners were in the first instance appointed as upper division clerks and later on as assistants. Their order of appointment clearly showed that it was temporary arrangement on officiating basis and hence no claim could be made on the bash of that promotion. Their promotions were made on provisional basis. Under these circumstances if ultimately on coming into operation of the scheme the petitioners were reverted by uniform application of the scheme it cannot be said that any of their fundamental rights were affected. It is pertinent to note that original promotions on adhoc basis were effected in the case of the petitioners before the Supreme Court as early as in 1957 and thereafter they were further promoted as assistants. They where sought to be reverted years thereafter on the coming into force of the scheme. In the light of the afore-said factual background and despite the passage of numbers of years reversions of the concerned petitioners were upheld by the Supreme Court in the aforesaid decision. It is therefore too late in the day for Mr. Dave to contend for the petitioner that merely because the petitioner was appointed on ad-hoc basis as camera operator on 2-5-1970 subject to the seniority of others the State of Gujarat on the applicability of the correct principle of seniority cannot revert him after passage of number of years. It would have been a different matter it on merits the petitioner would has been able to point out that the petitioner had a better claim to occupy the post of camera operator as compared to Respondent No. 3. But that is not so. Neither in 1970 when the original order of promotion of the petitioner as camera operator was passed nor even on 1-1-1973 with respect to which year relative rights of the petitioner vis-a-vis the Respondent No. 3 to occupy the said post came to be considered by the respondent-State it can be urged with any emphasis by Mr. Dave that Respondent No. 3 was less suitable or less qualified to occupy that post as compared to the petitioner. Dave that Respondent No. 3 was less suitable or less qualified to occupy that post as compared to the petitioner. As seen above Respondent No. 3 was admittedly senior to the petitioner not only in the lower grade but also in the post of Helio printer which was prior to 1 on par with camera operator. In this context the only rule which applied for appointment to the post of camera operator was Rule 8 of 1952 Rules which has been seen earlier otherwise general rule of seniority-cum-merit applied. Even strictly speaking Rule 8 cannot apply to the situation of 1973 as promotion was not being effected to the post of camera operator from amongst Technical Assistants. Neither the petitioner nor Respondent No. 3 was a Technical Assistant in 1973. Under these circumstances Rule 8 was out of picture. There was no other rule which held the field. Under the circumstances seniority of Respondent No. 3 would be the major factor which would displace the petitioner so Ar as the post of camera operator went in 1973. Under these circumstances if respondent-State has itself done justice to Respondent No. 3 and has given him his just dues from 1-1-1973 by displacing the petitioner who was otherwise not entitled to be the recepient of these dues it cannot be said that he is treated unjustly or unfavourably or any of his vested rights have been affected. It is pertinent to note that by order at Annexure C no difference in higher salary drawn by the petitioner from 1-1-1973 as camera operator till the date of his reversion is sought to be recovered. Order of Annexure C notionally treats the petitioner as Helio operator via-a-vis Respondent No. 3 from 1-1-1973 who is also not to receive any difference of higher salary as camera operator from 1-1-1973. Thus salary-wise both the petitioner and Respondent No. 3 are to be affected prospectively from the date of the order at Annexure C. What happened prior thereto from 1 till order at Annexure C is only subjected to a notional adjustment and regularisation of the holding of the concerned post by respective contestants. No inequity or unfairness has therefore resulted from the impugned order. The fifth contention of Mr. Dave also has therefore to be repelled. ( 16 ) THAT takes me to the last contention of Mr. Daw. No inequity or unfairness has therefore resulted from the impugned order. The fifth contention of Mr. Dave also has therefore to be repelled. ( 16 ) THAT takes me to the last contention of Mr. Daw. He submitted that the impugned order at Annexure C was passed in 1979. Pursuant to the said order the petitioner is being reverted from the post of camera operator while Respondent No. 3 is being appointed on that post. That by that time Recruitment Rules of 1976 had come into force. Pursuant to these Rules camera operators post had to be filled up. That admittedly Respondent No. 1-State had not undertaken that exercise before passing the impugned order at Annexure C. Hence the order at Annexure C is liable to be quashed and set aside being contrary to Recruitment Rules. Even this contention of Mr. Dave does not bear scrutiny. In the affidavit-in-reply filed by the Manager of the Government Press it has been in terms mentioned that recruitment rules at Annexure B came into force from the date of publication i. e. 1 As the petitioner was promoted to the post of camera operator earlier to the publication of the camera operators recruitment rules 1976 these rules will not be applicable in his case. In his case recruitment rules published by the Development Department Resolution No. PST-7850 on 6-12-1952 would be applicable. The same stand is reiterated in para 10 of the said affidavit-in-reply. The aforesaid stand of the respondents is quite justified. A mere look at the recruitment rules framed under Article 309 of the Constitution which are annexed at Annexure B to the petition shows that appointment to the post of camera operator shall be made by promotion of a person of proved merit and efficiency from amongst the persons working as Helio printer Vendayke operator or technical assistant in the Gujarat Subordinate Service Class III of the Government Printing and Stationery Department. The aforesaid Recruitment Rules are obviously prospective in nature and will govern all future appointments to the posts of camera operators. So far as the petitioner and Respondent No. 3 are concerned the petitioner was appointed as camera operator years back in 1970. Obviously in those days these rules were not on the scene. The aforesaid Recruitment Rules are obviously prospective in nature and will govern all future appointments to the posts of camera operators. So far as the petitioner and Respondent No. 3 are concerned the petitioner was appointed as camera operator years back in 1970. Obviously in those days these rules were not on the scene. Recruitment Rules of 1976 therefore could not be applied retrospectively for judging the legality of the appointment of the petitioner as camera operator in 1970. Even this is not the contention of Mr. Dave. If that is so in retrospect when that question arose as to who between the petitioner and Respondent No. 3 was entitled on the ground of seniority to be appointed as camera operator from 1970 or at least from 1-1-1973 when camera operators post got upgraded and was placed in the higher time-scale question of applicability of 1976 Rules would obviously not arise for consideration. Neither in 1970 nor in 1973 these recruitment rules of 1976 were born on the scene. They were not even in the embryo. Consequently there is no question of applicability of these rules for judging the legality and propriety of the adhoc promotion given to the petitioner as camera operator and for deciding the question as to whether Respondent No. 3 can displace the petitioner as camera operator latest from 1-1-1973 in the revised time scale. As already discussed earlier in deciding the question in controversy about the relative rights of the contestants qua post of camera operator in retrospect in the light of situation existing in 1973 subsequent Recruitment Rules which are prospective in nature cannot be pressed in service. If any authority were needed to support this conclusion it is supplied by the decision of a learned Single Judge of the Punjab and Haryana High Court in the case of Joginder Singh v. State of Punjab 1984 (2) SLR 594. In the aforesaid case an employee working in the Public Works Department claimed to be promoted as Executive Engineer with effect from 22-8-1957. Four years thereafter rules of 1961 were promulgated whereunder passing of departmental examination was prescribed as a criterion for eligibility for promotion. In the aforesaid case an employee working in the Public Works Department claimed to be promoted as Executive Engineer with effect from 22-8-1957. Four years thereafter rules of 1961 were promulgated whereunder passing of departmental examination was prescribed as a criterion for eligibility for promotion. The question was whether subsequent rules can be pressed in service for deciding eligibility of the candidate for being promoted in 1957 when his juniors were promoted and whether non-passing of the departmental examination by such employee can be treated to be a disqualification for giving him promotion retrospcetively from 1957. Insistence of the State of Punjab for applying subsequent rules of 1961 laying down passing of departmental examination as condition for promotion was held to be illegal and invalid. Sukhdev Singh Keng J. speaking for the High Court in para 4 of the report made the following observations:"no inference could be drawn against the petitioner for not having passed the departmental professional examination. This examination was prescribed by the Punjab Service of Engineers Class I (P. W. D.) Public Health Branch (Recruitment Rules) which were enforced on June 9 1961 and the petitioners suitability had to be determined on August 22 1957 when there was no such condition prescribed for promotion to the post of Executive Engineer. The considerations of the petitioner for promotion have therefore been vitiated". It is therefore obvious that subsequent Recruitment Rules of 1976 for effecting appointment to the post of camera operator cannot be pressed in service for deciding the moot question as to who between the petitioner and Respondent No. 3 was entitled to be given deemed date of appointment as camera operator from 1 in the revised time-scale. The last contention of Mr. Dave therefore fails. Rule discharged. .