Constitutional Provisions:                                                     

    

   (1) Promotions and protection of seniority: (Article 309)-

Where a person entitled to promotion under a Statutory Rule was unlawfully denied Consideration, he would be entitled to be considered for promotion with the retrospective effect and his seniority would also be re fixed on that basis. In such a case, those who, would be affected by such Order cannot complain of discrimination, but the court may issue suitable directions to avoid hardships to them [1- Ram Vs State of U.P; AIR (1991) SC 1818 (1991) Supp.

(2) SCC 114 ;( 1991) 17 ATC 346; 2- R.M.Ramaual Vs State of H.P. ;( 1991) Supp.1 SCC 198: AIR (1991) SC 1171(1991) Cri.LJ 1415-Para-3];

(2).Rules framed shall have the effect of Law- Constitute Law-(Articles-14,16,235,309):

A Rule made in exercise of the power under the proviso to Article 309, Constitute Law within the meaning of Article 235; ( without violation of Articles 14 and 16 of the Constitution);So long as a Rule framed under Article 309 is not duly amended, it is binding on the Government and its action in matter covered by the Rules must be regulated by the Rules: ( 1-Bhatnagar Vs UOI;(1991) 1 SCC 544; (1991) 16 ATC 501; (1991) 1 SLR 191; (1991)1 CLR 70-Para-13; 2-bansal Vs UOI;AIR (1993) SC 978; (1992 Supp.(2) SCCC 318; (1992) 21 ATC – 503; (1992) 4 SLR 445-Para-21);

(3) Effect of continuous officiating-(Ad Hoc arrangements for long period-number of years)-(Article309):

Even where the Order of appointment may have stated that the appointment was temporary or stop gap, etc., yet, where it is established that the appointee has been working in that post for a long period-number of years without break in service, the Court, may apply “ Principle of Continuous Officiation” and hold that the appointee be deemed to have been regularized. (1-Nayar Vs UOI; AIR (1992) SC 1574;(1992) supp.(2) SCC508;(1992) 21 ATC 695; 2-state of Haryana Vs Piara; AIR (1992) SC 2130; (1992) 4 SCC 118; (1992) 21 ATC 403 (1992)Lab IC 2168-Para-12);

(4) Effect of delay in holding selections (DPCs)- ( Article 309);

  A subsequent restructuring of the service or delay in holding the selection for which the employee was not responsible cannot take away his seniority for promotion; Nirmal Vs UOI;(1991) Supp.2 SCC 363-Para-4-6);

(5) Effect of wrong application of Rules or without any reasonable ground – (Article-309):

  The Court may direct the competent Authority to place the employee in the higher grade with effect from the date when his junior was placed therein, with consequential monetary benefits ;(Dharam Vs Administrator; (1991) 17 ATC 925;AIR (1991)SC 1924; (1991) Supp.(2) SCC 635; (1991) Lab IC 1695-Para-4);

(6) Interpretation of Rules- ‘Appointment date; Confirmation/ Regularizations’; ‘seniority’- (Article-309);

When a person is ‘appointed’ to a post according to the Rules, his seniority is to be counted from the date of his appointment and not according to the date of his confirmation /regularization; (1-Bhatnagar Vs UOI; (1991)1 SCC 544; (1991) 16 ATC 501; (1991) 1 SLR 191; (1991) 1 LLN 1 – Para-8-12; 2- direct Recruit Class –II Engg.Officers’ Assn. Vs State of Maharastra; (1990) 2 SCC 715;AIR (1990) SC 1607; (1990)13 ATC 348-Para-47l 3- (1990) 2 SCJ 377-Para-13; (1990) 2 SCC 715;(1990) 13 ATC 348; AIR (1991)SC 1607 (CB);

(7) Temporary or ad hoc service: ( Article-309);

The State, should not keep a person in a temporary or adhoc service for long period; (for a number of years). It should take steps for his regularization-

(Deharwad District PWD Literate daily Wage Employees’ Assn. Vs State of Karnataka;(1990) 2 SCC 396;AIR (1990)SC 883; (1990) Lab IC 625-Para-23);

(8). LIABILITY OF OFFICERS-(Articles-32, 14;16;309):

1.Bureaucracy is also accountable for the acts done illegally, when the Court exercises Judicial Review: (State of Bihar Vs Subhash Singh-AIR (1997) SC 1390-Para-3;(1997) 4 SCC 430);

2.‘ACTIONABLE WRONG-‘APPLICATION OF DOCTRINE OF parens patriae’;

Where the Petitioners’ Fundamental Rights’ are impaired by Legislation or Rules or ‘Government Orders’ ;

The Court’s can interfere even if it is a matter concerning service; [1. FCI workers Vs FCI- AIR (1990)-SC 2178; (1990) Supp.SCC 296; (1990) 4 SCR 745; (2).S.M.Mukharjee Vs UOI- AIR (1990) SC1984; (1990) 4 SCC 594; (1990) Cri.LJ 2148; 3. Shesharao Vs Govindrao; AIR (1991) SC 76; (1991) Supp.(1) SCC 367; (1991) 16 ATC-938; (1991) 2 LLJ 109-Para- 3)];

 (3) A Rule operates prospectively unless it is made retrospective by express provision or by necessary Intendment- (Article-309);(Mahendram Vs State of Karnataka; AIR (1990) SC 405- Para-5; (2). N.T.Bevin Katti Vs Karnatak PSCAIR (1990) SC 1233; (1990) 3 SCC (1990) Lab IC 1009-Para-13);

16) Some important Orders/OMs issued by the M/o Personnel, PG and Pensions, Dept. of Personnel and Training, Establishment on the issue of ad hoc appointments, conducting of DPCS, its guide lines; regularization, etc: (B):