HARIHAR PRASAD v. STATE OF U P — 1997 DIGILAW 786 (ALL)

R. A. SHARMA, J. What are the dates with reference to which the seniority of ad hoc Assistant Prosecuting Officers ap pointed in 1977/1978 and the temporary As sistant Prosecuting Officers appointed in 1984/1985, is to be determined, is the ques tion involved in this writ petition. 2. Before the commencement of the Code of Criminal Procedure, 1973 Public Prosecutors used to be appointed under the Police Act and the Regulations framed thereunder. Section 25 of the said Code banned the appointment of the police offi cials as Assistant Public Prosecutors. The Government of U. P. accordingly framed rules known as the Uttar Pradesh (Appoint ment of Assistant Public Prosecutors) Rules, 1974 (hereinafter referred to as the 1974 Rules ). Rule 3 provided for absorption of the existing Public Prosecutors and Assis tant Public Prosecutors. Rule 4 deals with the appointment of Assistant public Prosecutors in future. The post of Assistant Public Prosecutors was redesignated as As sistant Prosecuting Officers (hereinafter referred to as APOs ). The Government ap pointed a number of, AP. Os. on ad hoc/temporary basis. Vide order dated 8-2-1977, 192 ad hoc/temporary AP. Os. were appointed by the Government and vide another order passed on 24-12-1977, 51 more such officers were appointed on similar terms and conditions. Respondents No. 4 to 222 to this writ petition are the A. P. Os. appointed in 1977/1978 by the aforementioned orders. All these appoint ments were made initially for a period of one year or till regularly selected candidates join the posts, whichever is earlier. But the periods of their appointments were ex tended from time to time. In 1980 tem porary posts of A. P. Os. were confirmed and on 27-11-1980 Directorate of Prosecution was constituted by the State Government. Earlier the AP. Os. posts were not within the purview of the U. P. Public Service Com mission (hereinafter referred to as the Com mission), but on 27-1-1980 they were brought within the purview of the Commis sion. 3. On requisition of the State Govern ment, the Commission on 14- 5-1982 adver tised 460 posts of AP. Os. which included the posts on which the respondents No. 4 to 222 were appointed on ad hoc basis in 1977/1978. Some of the ad hoc A. P. Os. filed writ petition No. 6157 of 1982 before this Court challenging the above advertisement and seeking direction for regularisation of their service. Os. which included the posts on which the respondents No. 4 to 222 were appointed on ad hoc basis in 1977/1978. Some of the ad hoc A. P. Os. filed writ petition No. 6157 of 1982 before this Court challenging the above advertisement and seeking direction for regularisation of their service. While entertaining the writ petition this Court passed the following in terim order: "process of the selection may go on but the services of the petitioners shall not be terminated on the ground of the new selection. " As this Court did not stay the examina tion, the Commission conducted the written test in 1982, the result of which was declared on 26-11-1983. By letter dated 16-1-1984 the Government informed the Commission that it has decided to regularise the service of the ad hoc AP. Os. appointed in 1977/1978. The Commission was according ly requested to declare the result of 253 candidates instead of 460. In February and March 1984 the Commission interviewed the candidates who were successful in the written test and on 24-3-1984 it declared the result of the examination of A. P. Os. , on the basis of which the Commission recom mended the names of 450 candidates in stead of 253, as required by the Govern ment, vide its letter dated 16-1-1984. 4. In 1979 the Government of U. P. framed The Uttar Pradesh Regularisation of ad hoc Appointments (on Posts within the purview of Public Service Commission) Rules, 1979 (hereinafter referred to as the Regularisation Rules ). Rule 4 of these Rules casts an obligation on the Govern ment to consider the claims of the Govern ment servants appointed on ad hoc basis on or before 1-1-1977, for regularisation of their service before making regular ap pointments. These Rules were amended vide notification dated 22-3-1984 changing the cut-off date from 1-1-1977 to 1-5-1983, giving benefits of regularisation of service to those ad hoc appointees also who were ap pointed on or before 1-5-1983. 5. As before the declaration of the result of the examination of AP. Os. by the Commission, the Regularisation Rules have been amended giving benefits of regularisation of service to all ad hoc appointees, who were appointed before 1-5-1983, the Government did not make any appointment on the basis of the recommendation of the Commission dated 24-3-1984. 5. As before the declaration of the result of the examination of AP. Os. by the Commission, the Regularisation Rules have been amended giving benefits of regularisation of service to all ad hoc appointees, who were appointed before 1-5-1983, the Government did not make any appointment on the basis of the recommendation of the Commission dated 24-3-1984. On 17-4-1984 the Government constituted a Selec tion Commission for considering the cases of regularisation of ad hoc A. P. Os. ap pointed in 1977/1978. However, the Selec tion Committee could not do much in the matter initially due to non-availability of the service records and thereafter because of the interim orders granted by this Court in several writ petitions filed from time to time, reference of which has been given in the counter-affidavit filed on behalf of the State. Reference of some of the writ peti tions has also been given in the writ petition as well as in the counter-affidavit filed by private respondents. As illustration it may be mentioned that writ petition No. 1146 of 1984 was filed in which an interim order was passed staying the appointments under the Regularisation Rules. Yet another writ peti tion No. 1483 of 1985 was filed on 15-4-1985 in which similar interim order was passed. The stay order in writ petition No. 1146 of 1984 was vacated on 3-9-1985, but the stay order in other writ petition remained in force. On 21-1-1987 another writ petition No. 491 of 1987 was filed in which also stay was granted, which was vacated on 5-5-1993. As the service of ad-hoc AP. Os. could not be regularised in view of the interim orders passed by this Court in writ petitions filed from time to time, the Government ap pointed on 28- 12-1984, 178 candidates from the list of the candidates sent by the Com mission on temporary basis, subject to the orders which may be passed by this Court in pending writ petitions. It was further men tioned in the appointment order that the question of their seniority will be decided latter on. On 25-1-1985 and5-2-1985 30 and 8 more such appointments were made on similar conditions. 6. After the interim order against the regularisation of service of ad hoc A. P. Os. was vacated by this Court on 5-5-1993, the Government of U. P. on 15-3-1994 regularised the service of ad hoc AP. Os. On 25-1-1985 and5-2-1985 30 and 8 more such appointments were made on similar conditions. 6. After the interim order against the regularisation of service of ad hoc A. P. Os. was vacated by this Court on 5-5-1993, the Government of U. P. on 15-3-1994 regularised the service of ad hoc AP. Os. appointed in 1977/1978. After regularising their service the Government passed an order dated 7-7- 1994 laying down the criteria for determining seniority of the A. P. Os. on the basis of which a draft seniority list was prepared. By the same order the Government also invited objec tions against the draft seniority list. The petitioners, who were appointed as tem porary A. P. Os. in 1984 and 1985 have filed this writ petition challenging the said order dated 7-7-1994. 7. Dr. R. G. Padia learned Counsel for the petitioners has made the following sub missions in support of the writ petition: (i) In view of the provisions contained in Rule 7 of the Regularisation Rules the seniority of the ad hoc appointees whose service has been regularised, is to be counted from the date of regularisation/appointment orders passed under Rules. (ii) No artificial date of appointment for the purpose of fixing the seniority can be fixed by the Government. (iii) Officiating service of the ad hoc appoin tees cannot be taken into consideration for deter mination of their seniority. 8. Sri S. C. Budhwar and Sri Sudhir Agarwal, learned Counsel for the respon dents, apart from disputing the above con tentions, have made the following submis sion: (i) As the ad hoc appointments made in 1977/1978 were made in accordance with the 1974 Rules, seniority of these appointees is liable to be counted from the dates of their ad hoc appointments; and (ii) The petitioners and others, who were appointed in 1984 and 1985, could not have been appointed before deciding the question of regularisation of service of the ad hoc appointees and the appointments of the petitioners and their batch mates, being contrary to Rule 4 of the Regularisation Rules, cannot confer any right on them to claim seniority over the ad hoc appointees of 1977/1978 batch. Learned Counsel for the respondents have also raised a preliminary objection about the maintainability of the writ peti tion on the ground that by the impugned order the Government has merely prepared and published a draft seniority list for inviting objections and, therefore, such an order cannot be challenged under Article 226 of the Constitution of India, because the petitioners should raise their grievances in the form of objections against the said order before appropriate authority. 9. Before dealing with the controversy on merit it is appropriate to decide the preliminary objection regarding main tainability of the writ petition at the thresh-hold. By the impugned order dated 7-7-1994 the Government has accepted the following criteria formulated by a Committee ap pointed by it for determining the seniority of the ad hoc appointees of 1977 and 1978 and those who were appointed on the basis of the recommendation of the Com mission : (i) The date for determining seniority of the ad hoc appointees will be 22-3-1984 on which date the Government issued a notification amending the Regularisation Rules by which the Govern ment changed the cut off date from 1-1-1977 to 1-5-1983. (ii) The seniority of those who were ap pointed on the basis of recommendation of the Commission will be counted from the date of their appointments. On the basis of the said criteria the Government prepared and published a draft seniority list inviting objections. By the said order the Government has not merely prepared and published a draft seniority list for inviting objections, but it has also laid down the criteria for fixing the seniority. Petitioners challenge is to the criteria adopted by the Government. If this criteria is accepted, the foling of the objection against the draft seniority list will be empty ritual. In such a case the writ petition is maintainable. In this connection reference may be made to The General Manager South Central Railway v. A. V. R. Siddhanti and others, AIR 1974 SC 1755 , wherein the Supreme Court had laid down as fol lows: "as regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administra tive rules of general application, regulating ab sorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain-shop departments. of the employees of the erstwhile Grain-shop departments. The Respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a rest of the re- adjustment of the petitioners seniority in accordance with the principles laid down in the Boards decision of October 16, 1952, were, at the most, proper parties and not necessary parties and their non- joinder could not be fatal to the writ petition. " In A. Janardhana v. Union of India, AIR 1983 SC 769 , the Supreme Court has reiterated the same rule as under:- "in this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and there lief is claimed against the Union Government retrain ing it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In the background, we consider it un necessary to have all direct recruits to be im pleaded as respondents. We may in this connec tion refer to General Manager, South Central Rly. , Secundrabad v. A. V. R. Sidhanti, (1974)3 SCR207 at p. 212: AIR 1974 SC 1755 at p. 1759. In the background, we consider it un necessary to have all direct recruits to be im pleaded as respondents. We may in this connec tion refer to General Manager, South Central Rly. , Secundrabad v. A. V. R. Sidhanti, (1974)3 SCR207 at p. 212: AIR 1974 SC 1755 at p. 1759. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected, by the decision in the case, this Court observed that the respondents (original petitioners) arc impeaching the validity of those policy assertions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of Government servants is assailed. In such proceed ings, the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. " Recently in V. P. Srivastava and others v. The State of Madhya Pradesh and others, JT 1996 (2) SC 374, the same principle was reiterated holding that "in other words the very principle of determining seniority made by the State Government is under challenge and in such case the State is neces sary party, who has been impleaded. " In this case the Supreme Court has placed reliance on its aforesaid two decisions in General Manager, South Central Railway v. A. V. R. Sidhanti and A. Janardhana v. Union of India. (Supra) 10. As the petitioners have challenged the very criteria adopted by the Govern ment for fixing seniority their writ peti tion is maintainable and it cannot be dis missed merely on the ground that by the same order Government has prepared and published the draft seniority list inviting objections. As long as the criteria for deter mination of seniority remains intact filing of the objection against the draft seniority list may not be of much utility. The prelimi nary objection is accordingly rejected. Hence the decision on merits becomes necessary. 11. The settled legal position is that the temporary/ad hoc appointee is entitled to seniority from the date of his temporary/ad hoc appointment only if his appointment is in accordance with relevant service rules. The prelimi nary objection is accordingly rejected. Hence the decision on merits becomes necessary. 11. The settled legal position is that the temporary/ad hoc appointee is entitled to seniority from the date of his temporary/ad hoc appointment only if his appointment is in accordance with relevant service rules. If temporary/ad hoc appointment is de hors the service rules, the period of service of such appointee cannot be taken into con sideration for the purposes of seniority. The Supreme Court in Direct Recruits Class II Officers Association v. State of Maharashtra, AIR 1990 SC 1607 and various other cases following that decision, has laid down that if the ad hod temporary appointments are made in accordance with relevant rules, the entire period of temporary service of such appointees is to be counter for determining their seniority, but if such appointments are made de hors the service rules the entire period of their service is liable to be ignored. It is not necessary to refer all the cases decided by the Supreme Court after the Direct Recruits Class II Officers Associa tion case (supra) and it is sufficient to refer to the following three cases: In State of West Bengal v. Aghore Nath Dey and others, (1993) 3 SCC 371 . In this case the Supreme Court explained the con clusions (A) and (B) of Direct Recruit case (supra) as under: "there can be no doubt that these two con clusions have to be read harmoniously and con clusion (B) cannot cover cases which are expressly excluded by conclusion (A ). We may, therefore, first refer to conclusion (A ). It is clear from con clusion (A) that enable seniority to be counted from the date of initial appointment and not ac cording to the date of confirmation, the incum bent of the post has to be initially appointed ac cording to rules. The corollary set out in con clusion (A), then is, that where the initial appoint ment is only ad hoc and not according to rules and made as a stopgap arrangment, the officiation in such posts cannot be taken into account for con sidering the seniority. Thus, the corollary in con clusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. Thus, the corollary in con clusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for count ing the seniority. This being the obvious inference from con clusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two con clusions cannot be read in conflict with each other. The question, therefore, is of the category which would be covered by conclusion (B) exclud ing therefrom the cases covered by the corollary is conclusion (A ). In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, "if the initial appointment is not made by following the procedure laid down by the rules and the latter expression till the regularisation of his service in accordance with the rules. We read conclusion (B) and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudg ing suitability of the appointee for the post being cured at the time of regularisation the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appoint ment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficien cy in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee and the appointee must continue in the post uniterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment and the appoint ment not being limited to a fixed period of time is intended to be a regular appointment, subject to there maining procedural requirements of the rules being fulfilled at the earliest. " (2) In V. P. Srivastava v. State of Madhya Pradesh and others, JT 1996 (2) SC 374, the Supreme Court has laid down as follows: "in the direct Decruitscase the Constitution Bench of this Court summaried the legal position in paragraph 44 as follows: " (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where 4he initial appointment is only ad hoc and not according to rules and made as a stop-gap arran gement, the officiation in such post cannot be taken into account for considering the seniority. (B) It the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterrup tedly till the regularisation of his service in accord ance with the rules, the period of officiating ser vice will be counted. " We are not concerned with the other propositions laid down by this Court in the present case. In the case in hand the initial appointment of the respondents on promotion not having been made following the procedure laid down by the Recruitment Rules of 1965 and even though they are continuing in the post uninterruptedly but the Public Service Commission having not approved their appointments as yet, proposition B above will have no application. Consequently applying proposition. In the case in hand the initial appointment of the respondents on promotion not having been made following the procedure laid down by the Recruitment Rules of 1965 and even though they are continuing in the post uninterruptedly but the Public Service Commission having not approved their appointments as yet, proposition B above will have no application. Consequently applying proposition. A above, the appellants direct recruits must be held senior to the respondents-private respondents ad hoc promotees. The Tribunal obviously erred in law in not following the aforesaid authoritative pronouncement this Court for determination of the inter se seniority between direct recruits and the promotees. In the three Judge Bench decision this Court in the case of State of W. B. and others v. Aghore Nath day and others, (1993) 3 SCC 371 , this Court held : that to enable his seniority to be counted from the date of initial appointment the incumbent of the post has to be initially appointed according to rules. There where initial appoint ment is only ad hoc and not according to rules and made as stop gap arrangement, the officiation in such posts cannot be taken into account for con sidering the seniority: It was thus held that conclusions A and B of the Constitution Bench in Direct Recruits case have to be read harmoniously and conclusion B cannot cover cases which are expressly excluded by conclusion A. In a more recent case of V. Sreenivasa Reddy and others v. Government of A. P. and others, 1995 Suppl (1) SCC 572, where one of us (brother Ramaswamy, J.) was a member, all the decisions of this Court on the point have been considered and it has been laid down that temporary or ad hoc appointments are not appointments in accord ance with the rules and the temporary service cannot be counted toward the seniority. " (3) In State of U. P. and others v. Dr. R. K. Tendon and others, (1995)3 SCC 616 , the Supreme Court reiterated the same rule in paragraph 4 of its judgment, which is reproduceds below: "it is settled law that all ad hoc appoint ments made de hors the rules do not confer any right to permanency or seniority. They acquire the rights only from the date of their regular appoint ment according to rules. They acquire the rights only from the date of their regular appoint ment according to rules. If, however, the initial appointments are according to rules, though on ad hoc or temporary basis, then the seniority would be counted from the date of initial appoint ment. The ad hoc appointments here were de hors the rules. It would thus be clear that though the doctors have put in more than 33 years they are ad hoc hands. All wound not get seniority from the respective dates of appointments. It is seen that some of the doctors have retired and some had the benefit of direction given by the courts to regularise their services with effect from the dates on which they were appointed and the orders have become final. So, they are entitled to count their seniority from the respective dates of initial ap pointments. " 12. Therefore, the question is as the whether the ad hoc/temporary appoint ments of there spondents made in 1977 and 1978 were in accordance with Service Rules. Relevant service rules are 1974 rules, Rule 4, which deals with future appointment, is reproduced below: "4. Future appointments to the post of APPs, senior Grade, First Grade and Second Grade. Further appointments to the posts of As sistant Public Prosecutors, Senior Grade, Assis tant Public Prosecutors, Second Grade shall be made by the State Government in accordance with such Rules or general orders as the State Government may from time to time make in that behalf. " Rule 4 has itself not laid down the method mode for making appointments, but has left it to the Government to regulate it by Rules or General order which may be issued by it from time to time. It is admitted case of both the parties that the Govern ment has not issued any rule, pursuant to Rule 4 for appointment of A. P. Os. But ac cording to the respondents the Government has issued order for future appointments. Learned Counsel for the petitioners has disputed the same saying that there is no "general order" issued by the Government in exercise of the power conferred by Rule 4 for making appointments of A. P. Os. in fu ture. 13. "general order" is different from individual order. Learned Counsel for the petitioners has disputed the same saying that there is no "general order" issued by the Government in exercise of the power conferred by Rule 4 for making appointments of A. P. Os. in fu ture. 13. "general order" is different from individual order. By the "general order" source of recruitment, eligibility qualifica tions, method/mode of selection and the matters connected therewith are laid down for making appointments in future. Such an order unlike individual order is not con fined to any particular selection or vacan cies. The "general order" contemplated by Rule 4 is not a statutory order of the kind of subordinate legislation, but it is an order legislative in character laying down norms and other requisites for future appoint ments. 14. In support of their claim that the Government has passed general order under Rule 4, reliance was placed by the respondents on a document which has been filed as annexure-2 to the counter-affidavit of Sri K. M. L. Srivastava filed on behalf of the Government. But it is an order dated September 23, 1976 issued by the Police Head Quarter, U. P. Allahabad and is not a Government order. Neither the Govern ment nor the private respondents could produce any Government order passed under Rule 4 till the arguments were con cluded on 9-9-1996 on which date we reserved the judgment. While reserving the judgment we gave liberty to the learned Counsel for the parties to bring it on record if they find any Government order issued under Rule 4. On 1-10-1996 a supplemen tary affidavit containing four orders issued by the Government alongwith an applica tion, was filed in the Court by respondent No. 113 through Sri Sudhir Agarwal, Advo cate. We, therefore, directed the case to be listed for further hearing and when the case was so listed we granted time to learned Counsel for petitioners and the State Government to file their reply to the aforementioned supplementary affidavit. An affidavit in reply was filed on behalf of the petitioners disputing the above orders filed by respondent No. 113. We, therefore, directed the learned Standing Counsel to produce the original record before the Court in order to verify the correctness of those documents. Learned Standing Coun sel, however, did not produce the original record and we after hearing the learned Counsel for the parties again reserved the judgment on 21-3- 1997. We, therefore, directed the learned Standing Counsel to produce the original record before the Court in order to verify the correctness of those documents. Learned Standing Coun sel, however, did not produce the original record and we after hearing the learned Counsel for the parties again reserved the judgment on 21-3- 1997. While reserving the judgment we directed the learned standing Counsel to produce the original record in our Chamber in presence of learned Coun sel for the parties. Learned Standing Coun sel thereafter produced the original record in the Chamber in presence of learned Counsel of all the parties. From perusal of the original record we found that the four order filed by the respondent No. 113 alongwith supplementary affidavit are cor rect orders excepting that there is mistake in numbers of those orders. We, therefore, directed the learned Standing Counsel to file photostat copies of those orders alongwith an affidavit. Learned Standing Counsel has accordingly filed those orders alongwith supplementary counter- affidavit (II) which has been placed on record. A rejoinder- affidavit, in reply to the sup plementary counter-affidavit filed by the State, has also been filed alongwith an ap plication by the petitioners. 15. The four Government orders filed by the respondents cannot be said to be "general orders" under Rule 4 of 1974 Rules. Two of these orders are the Radiograms dated November 10, 1976 sent with reference to the Government order dated 3rd November, 1976 regarding selec tion of A. P. Os. for second ad hoc appoint ments, against the existing and 167 con templated vacancies. This is a letter dated November 24, 1976 written by the Deputy Secretary, Home Department, to the Deputy Inspector General of Police, Police Headquarters, U. P. Allahabad, regarding short-term ad hoc appointments of A. P. Os. in the existing vacancies. In this letter it was mentioned that the Government has no ob jection if four names from each district are sent for short-term appointments on ad hoc basis. There was also reference of reserva tion for Scheduled Caste and Schedule Tribes. The last letter is dated December 7, 1976, which also relates to short-term ad hoc appointments against the existing vacancies regarding which Police Head quarters was informed that a Selection Committee consisting of District Magitrate, Superintendent of Police and Senior Prosecuting Officer to be constituted in each district for making selection for such appointments. The last letter is dated December 7, 1976, which also relates to short-term ad hoc appointments against the existing vacancies regarding which Police Head quarters was informed that a Selection Committee consisting of District Magitrate, Superintendent of Police and Senior Prosecuting Officer to be constituted in each district for making selection for such appointments. By the aforesaid four let ters/orders of the Government directions were issued to the State police for making selection for short-term ad hoc appoint ments against existing vacancies only. These orders have nothing to do with the appoint ments other than the short termed ad hoc appointments in existing vacancies. Such orders, therefore, cannot be treated to be "general orders" under Rule 4 of 1974 Rules. Any appointment made pursuant to such orders cannot be said to be the ap pointments made in accordance with the Rules and the "general orders" issued there under. Consequently the seniority of the ad hoc appointees cannot be counted from the dates of their ad hoc appointments. The first submission of Sri S. C. Budhwar learned Counsel for the respondents is, therefore, rejected. The third submission of Dr. R. G. Padia learned Counsel for the petitioners also stands disposed of accordingly. 16. The first submission for Dr. R. G. Padia and the second submission of Sri S. C. Budhwar, being inter- linked with each other, the being dealt with together as under: Under the Regularisation Rules the Government is required to constitute a Selection Committee for considering the ad hoc appointees appointed on or before 1-5-1983 for regular appointments in per manent or temporary vacancies on the basis of their record and suitability before making any regular appointment. Persons so selected by the Selection Committee are given substantive appointments under Rule 5 and such appointments are treated to be the appointments made under the relevant service rules. Rules 4, 5 and 6 of these Rules, being relevant, are reproduced below: "4 (1) Any person who- (1) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in ser vice, as such, on date of commencement of these rules; (ii) possessed requisite qualifications prescribe for regular appointment at the time of such ad hoc appointment; and (iii) has completed or as the case may be, after he has completed three years continuous service. Shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointment under these rules, reservation for the candidates belong ing to the Scheduled Caste, Scheduled Tribes, Backward Classes and other categories, shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of sub-rule (i), the ap pointing authority shall constitute a Selection Committee and consultation with the Commis sion shall not be necessary. (4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment and, if two or more persons are appointed together from the order in which this names are arranged in the said appointment | order. The list shall be placed before the Selection Committee alongwith their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4 ). (6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority and forward it to the appointing authority. 5. The appointing authority shall, subject to the provisions of sub-rule (2) of Rule 4, make appointments from the list prepared under sub-rule (5) of the said rule in the order in which their names stand in the list. 6. Appointments made under these rules shall be deemed to be under the relevant Service Rules or orders, if any. " If an ad hoc appointee is not selected by the Selection Committee, his service is liable to be terminated forth with under Rule 8. Rule 7 has laid down that a person appointed under these rules will be entitled to seniority from the date of the order of appointment under Rule 5 and will be placed below the persons appointed in ac cordance with relevant service rules or regular prescribed procedure, prior to the appointment of such person under these Rules. Rule 7 has laid down that a person appointed under these rules will be entitled to seniority from the date of the order of appointment under Rule 5 and will be placed below the persons appointed in ac cordance with relevant service rules or regular prescribed procedure, prior to the appointment of such person under these Rules. Rule 7 is quoted below: "7 (1) A person appointed a under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accord-ance-with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules. (2) If two or more persons are appointed together, their seniority inter se shall be deter mined in the order mentioned in the order of appointment. " 17. As mentioned earlier, the Commis sion on requisition from the State Govern ment advertised 460 posts of A. P. Os. which included the posts against which ad hoc ap pointments have been made in 1977/1978. This position is not disputed and it is also clear from the Government letter dated January 16, 1984, by which the Commission was asked to select candidates for 253 instead of 460 posts, as the Government has decided to regularised the service of ad hoc A. P. Os. appointed before 1-5-1983. As Rule 4 has cast statutory duty on the Government to consider ad hoc appointees for regular appointments in permanent or temporary vacancies before making any regular appointment in such vacancies, it was not open to the Government to make regular appointments before deciding claims of the ad hoc appointees for regularisation of their services. This is also the stand taken by the Government, in its counter-affidavit. In paragraph 16 of the said counter-affidavit it has been stated that on 22-3-1984 the Government has issued an order (Annexure CA 12) directing to regularise the service of ad hoc appointees appointed before 1-5-1983 at the earliest. In paragraph 17 of the same counter- affidavit it has been stated that the Government has also issued a circular dated 16-7-1985 (An nexure CA-13) directing that the appoint ment on the basis of the recommendation of the Commission be made only after grant ing regularisation to the ad hoc appointees. In paragraph 17 of the same counter- affidavit it has been stated that the Government has also issued a circular dated 16-7-1985 (An nexure CA-13) directing that the appoint ment on the basis of the recommendation of the Commission be made only after grant ing regularisation to the ad hoc appointees. It has further been stated that as a special case the Government has also relaxed the requirement and has permitted the appoint ments from the list of the candidates recom mended by the Commission in the vacancies which may arise in future in the next two years. Therefore, on account of Rule 4 and the Government orders prohibiting regular appointments until the question of regularisation of ad-hoc appointees has been decided, the petitioner and others who were selected by the Commission, could not have been appointed on regular basis before the question of regularisation of the service of ad hoc AP. Os. has been decided. 18. The contention of the learned Counsel for the petitioners to the effect that if the vacancies are more than the ad hoc appointees, regular appointments can be made against the vacancies which remains after reserving and keeping apart the vacan cies for the ad hoc appointees, cannot be accepted. Rule 4 has not only imposed the duty on the Government to consider the ad hoc appointees for regularisation of their services but has also restricted its power to make regular appointments till the question of regularisation of service of ad hoc appointees has been decided. The object of this Rule is that the ad hoc appointees should be considered for regularisation of their service before any regular appoint ment is made irrespective of the number of vacancies. Even when the vacancies are more than the ad hoc appointees the ques tion of regularisation of service of ad hoc appointees has to be considered first before any regular appointment is made. If the sub mission of the learned counsel for the petitioner is accepted, the very object of Rule 4 will be frustrated to a great extent. Delay on the part of the Government, deliberate or otherwise, in considering the claims of the ad hoc appointees for regularisation of their services, will serious ly prejudice them as regards seniority and future prospects in service. Delay on the part of the Government, deliberate or otherwise, in considering the claims of the ad hoc appointees for regularisation of their services, will serious ly prejudice them as regards seniority and future prospects in service. It will also lead to manipulation sand unfair practice for getting the consideration of the claims of the ad hoc appointees for regularisation of their services postponed. 19. In this connection it may be men tioned that Rule 4 only prohibits appoint ment before considering the cases of ad hoc appointees for regularisation of their ser vices, but it does not ban the recruitment for regular appointments. Supreme Court in Prafulla Kumar Swain v. Prakash Chandra Misra and others, JT 1993 (1) SC 360, has pointed out the distinction between the ap pointment and recruitment, as under: "ai this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies en listment, acceptance, selection or approval for ap pointment. Certainly, this is not actual appoint ment or posting in service. In contradiction the word "appointment" means an actual act of post ing a person to a particular office. " Although no exception can be taken to the selection of the petitioners and others by the Commission, but they could not have been appointed on regular basis before the claims of ad hoc A. P. Os. were considered for regularisation under Rule 4. 20. In the instant case it is quite clear that the Government was conscious of the aforesaid legal position and, therefore, it did not make may regular appointment on the basis of selection made by the Commission. Instead the Government appointed on 17-4- 1984, a Selection Committee under Rule 4 for considering the cases of regularisation of ad hoc A. P. Os. Immedi ately after its constitution the Selection Committee could not proceed with the con sideration of the claims of ad hoc A. P. Os. for regularisation of their service for want of relevant record, but after it has received the record it could not pass any effective order for regularising their service because of the interim orders passed in the various writ petitions. Reference of these writ petitions has been given in the Governments counter- affidavit as well as in the affidavits filed by the other parties. Reference of these writ petitions has been given in the Governments counter- affidavit as well as in the affidavits filed by the other parties. In paragraphs 21, 28 and 29 of the counter- affidavit of the Government it has been stated that the Selection Committee met and made recom mendation on 17-4-1985 for regularising the service of the ad hoc A. P. Os. , but in view of the stay order passed by this Court the result of the same could not be declared. Although in some writ petitions the stay orders were vacated and or modified, but the stay order passed in the last writ petition remained in operation upto May 5, 1993 on which date that order was vacated. The Government thereafter passed the order dated March 15, 1994 regularising the service of the ad hoc A. P. Os. 21. As the Government was not able to consider the claims for regularisation of the ad hoc A. P. Os. in view of the stay orders passed by this Court and there was dire necessity for more A. P. Os. to conduct the criminal cases in the Courts of the Magistrates, the Government vide order dated 28-12-1984 appointed 178 AP. Os. from the list sent by the Commission, purely on temporary basic with the condition that their appointments are subject to the orders which may be passed in the pending writ petitions and the question of their seniority will be decided latter on. By two other others dated 25-1- 1985 and 5-2-1995, 30 and 8 more appointments of A. P. Os. were made on similar conditions. It appears that sub sequently some more A. P. Os. were ap pointed on the same conditions. The ap pointment of the petitioners and others by the aforementioned orders were purely for tuitous temporary appointments by way of interim arrangements during pendency of the writ petitions in this Court in order to cope with the work in the Magistrates courts. These appointments were not made in accordance with the service rules. Such appointments do not confer any right on the appointees to claim seniority from the dates of those appointments. The petitioners therefore, cannot claim seniority over the ad hoc A. P. Os. on the basis of such appoint ments. 22. That apart, it is well settled that the act of the Court shall prejudice no one. Such appointments do not confer any right on the appointees to claim seniority from the dates of those appointments. The petitioners therefore, cannot claim seniority over the ad hoc A. P. Os. on the basis of such appoint ments. 22. That apart, it is well settled that the act of the Court shall prejudice no one. In Gursharan Singh and others v. New Delhi Municipal Committee and others, JT 1996 (1) SC647, the Supreme Court has laid down as follows: "in view of the legal maxim "actus curiae neminem gravabit" which means that an act of court shall prejudice no man. N. D. M. C. is jus tified in making a claim for interest over the ar rears which have remained unpaid for more than 12 years because of the interim orders passed by this Court. This aspect of the matter has been examined by this Court in the case of Raj Kumar Dey and others v. Tarapada Dey and others, JT 1987 (3)SC555: (1987)4 SCC 398 . " Same rule was reiterated in Kerala State Electricity Board v. M. R. F. Limited (1996) 1 SCC 597 , wherein it was laid down as under: "mr. Poti has also referred to another decision of the Privy Council in Jai Berham v. Kedar Nath Marwari. In the said decision, the earlier decision of the Privy Council in Rodger case was referred to and relied upon and it has been held by the Privy Council that one of the first and highest duties of all the courts is to take care that act of the court does not cause injury to any of the suitors. It would be inequitable and contrary to justice that the judgment debtor should be restored the property without making good to the auction-purchaser the money which has been ap plied for his benefit. Mr. Poti has also referred to another decision of the Privy Council in L. Guran Ditta v. T. R. Ditto. In that case also, the decision in Rodger case was referred to and it has been held by the Privy Council that the duty of the Court when awarding restitution under Section 144 of the Code of Civil Procedure is imperative. The Court shall place the applicant in the position in which he would have been if the order had not been made and for this purpose the Court is armed with powers. The Court shall place the applicant in the position in which he would have been if the order had not been made and for this purpose the Court is armed with powers. " Recently in Mis. Kanoria Chemicals and Industries Ltd. v. U. P. State Electricity Board and others, JT 1997 (3) SC 545, the Supreme Court has held thus: "it is equally well settled that an order of stay granted pending disposal of a writ peti tion/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean regarding a writ petitioner inspite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. " 23. The respondents, therefore, cannot be made to suffer on account of the interim orders passed by this Court in several writ petitions filed against their regularisation from time to time. The petitioners and others who were appointed in 1984/1985 on temporary basis cannot be permitted to take advantage of their own acts of filing writ petitions and obtaining interim orders therein against the regularisation of ad hoc A. P. Os. which have already been vacated. In a case like the present one, equities are to be adjusted. When the consideration of the ad hoc appointees for regularisation of their service is held up on account of the orders of the Court, it is the duty of the Government as well as of this Court to put the parties in the same position they would have been, but for the interim orders of the Court. As held by the Supreme Court any other view would result in the act or order of the Court prejudicing a party for no fault on its part. As held by the Supreme Court any other view would result in the act or order of the Court prejudicing a party for no fault on its part. Rule 7 of the Regularisation Rules does not contemplate to cover a case like the present case, where the process of regularisation has been stopped/held up for considerable long time due to the order passed by the Court and the order of regularisation could be passed only after vacation of the interim order. Therefore, the seniority of the respondents cannot be determined with ref erence to the date on which the order was passed under Rule 5. The Government has, therefore, passed the impugned order laying down criteria for determination of seniority which is in consonance with equity and is quite fair and reasonable. 24. That apart, as mentioned herein before, the appointments of the petitioners and their batch mates were fortuitous tem porary appointments made by way of inter im arrangement in order to cope with the work in the Magistrates Courts. Such ap pointments not being in accordance with the service rules, the petitioners and their colleague cannot get their seniority counted from the dates of those appointments. The petitioners should thank the Government for passing the impugned order directing the fixation of their seniority form the dates of such appointments. 25. For the reasons given above the first submission of Dr. R. G. Padia is rejected. Consequently the second sub mission of Sri S. C. Budhwar has to be accepted. 26. In this connection it may be men tioned that the Government of U. P. has framed U. P. Prosecuting Officers Service Rules, 1991. These rules are prospective in operation and there is no dispute between the learned Counsel for the parties on this issue. Although these will not affect the seniority of the A. ROs. appointed before their enforcement, but presuming that these Rules will apply in the present case also, the petitioners cannot get any benefit from them, because Rule 22, which deals with the seniority, states that the seniority of the appointees made in substantive capacity shall be determined in accordance with the U. P. Government Servants Seniority Rules, 1991. The appointments of A. P. Os. from the list of the Commission made in 1984/1985 were not in substantive capacity and in fact they were appointed by way of interim ar rangement on temporary basis. The appointments of A. P. Os. from the list of the Commission made in 1984/1985 were not in substantive capacity and in fact they were appointed by way of interim ar rangement on temporary basis. But it is not necessary to go into this matter any further, because learned Counsel for the parties have agreed that the seniority of the parties in the present case cannot be determined on the basis of these rules. 27. In principle there is no difficulty in accepting the second submission of Dr. Padia, but in the instant case it cannot be applied. On account of non-availability of record at the initial stage after constitution of Selection Committee under Rule 4 of the Regularisation Rules and thereafter in view of the interim orders passed by this court in writ petitions filed from time to time, the Government could not carry out its statutory obligation of regularising the ser vice of ad hoc appointees before making any direct appointment. The Government has already written letter dated 22-3-1984 directing for considering ad hoc appointees for regularisation of their service before making regular appointments. The Governments further orders dated 16-7-1985 and 5-11-1985 to the same effect could not be of any help to the ad hoc A. P. Os. even though by those orders the concerned authorities were directed to grant regularisation to them before making fresh appointments. But as mentioned herein before the Governments efforts failed be cause of the interim orders passed by this Court in several writ petitions. The ad hoc A. P. Os. were not at fault and, therefore, they cannot be made to suffer on account of the interim orders obtained by the petitioners and their colleagues which were ultimately vacated. In view of the facts and circumstances of the case and the provisions of the Regularisation Rules the Government has to adjust equities between the parties and for this reason it had fixed 22-3-1984 as the date with reference to which the seniority of the respondents is to be counted. By the same order the Government has directed that the seniority of the petitioners and their colleagues is to be determined with reference to the dates of their appointments. As the ser vice of the ad hoc A. P. Os. By the same order the Government has directed that the seniority of the petitioners and their colleagues is to be determined with reference to the dates of their appointments. As the ser vice of the ad hoc A. P. Os. has to be regularised first before making any regular appointment, the date with reference to which their seniority is to be determined must be prior to the date with reference to which the seniority of the petitioners and others like them is to be determined. In view of the facts and circumstances of the case the impugned order is quite fair and reasonable and it is not a fit case to interfere with under Article 226 of the Constitution of India. 28. For the reasons given above this writ petition is dismissed. In view of the facts and circumstances of the case there shall be no order as to costs. Petition dismissed. .