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Friday, April 10, 2015

whether the writ petitioner is entitled to count his service as Assistant Engineer from 12th June, 1985, the date of his initial appointment on an 'ad hoc' basis, for purposes of seniority or his service will be counted only from 14th December, 1989, the date on which approval to his appointment was given by the State Government under the provisions of the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 ("1979 Rules") as amended on 7th August, 1989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 ("1989" Rules).- We, therefore, direct the State to redetermine the seniority after hearing the affected parties within six months. It is made clear that benefit of redetermination of seniority at this stage will not disturb holding of posts by any incumbent and except for benefit in pension other benefits to which the writ petitioner may be found entitled will be given only on notional basis.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3348 OF 2015
                (ARISING OUT OF SLP (CIVIL) NO.18683 OF 2004)


SECRETARY, MINOR IRRIGATION DEPTT. & R.E.S.              ...APPELLANT

                                   VERSUS

NARENDRA KUMAR TRIPATHI                                      ...RESPONDENT

                                    WITH

                        CIVIL APPEAL NO.3349 OF 2015
                (ARISING OUT OF SLP (CIVIL) NO.8330 OF 2005)


                               J U D G M E N T

ADARSH KUMAR GOEL, J.

Leave granted.

2.    These appeals have been preferred against  judgment  and  order  dated
13th February, 2003 in Civil Miscellaneous Writ  Petition  No.9940  of  2001
and dated 10th December, 2004 in Civil Miscellaneous Writ Petition  No.11542
of 2003 passed by the High  Court  of  Judicature  at  Allahabad.    Special
Leave Petition (Civil)  No.18683  of  2004  has  been  filed  by  the  Minor
Irrigation Department of State of Uttar Pradesh ("the Department")  and  SLP
(Civil) No.8330 of 2005 has been filed  by  Narendra  Kumar  Tripathi  ("the
writ  petitioner")  employed  as  engineer  with  the  Department  of  Minor
Irrigation, Rural Engineering in the State of Uttar Pradesh.   In  both  the
matters, the question involved is whether the writ  petitioner  is  entitled
to count his service as Assistant Engineer from 12th June,  1985,  the  date
of his initial appointment on an 'ad hoc' basis, for purposes  of  seniority
or his service will be counted only from 14th December, 1989,  the  date  on
which approval to his appointment was given by the  State  Government  under
the provisions of the Uttar Pradesh Regularisation of  Ad  hoc  Appointments
(on posts within the purview of the Public Service Commission)  Rules,  1979
("1979 Rules")  as  amended  on  7th  August,  1989  by  the  Uttar  Pradesh
Regularisation of Ad Hoc Appointments (on posts within the  purview  of  the
Public Service Commission) (Second Amendment) Rules, 1989
("1989" Rules).

3.    The writ  petitioner  was  first  appointed  as  Work  Engineer  (Work
Charge) on a fixed pay of Rs.650/-  on  18th  January,  1983.   Later,  vide
Office Memo dated 12th June, 1985 issued by  the  Secretary,  Government  of
Uttar Pradesh, Rural Development Section on the basis of recommendations  of
the Selection Committee, he was appointed on  temporary  post  of  Assistant
Engineer in regular scale on ad  hoc  basis.   The  letter  of  appointment,
inter alia, provided that the appointment was purely on  ad  hoc  basis  and
his services could be terminated by notice or on availability of  candidates
duly selected through Public Service Commission and  the  appointee  had  no
claim for regular appointment.  The  said  appointment,  however,  continued
and was followed by "Notification/Regularization" dated 14th December,  1989
as per the 1979 Rules as amended by 1989 Rules.

4.    The 1979 Rules provided for regularization of ad  hoc  appointment  of
persons possessing  requisite  qualifications  for  regular  appointment  on
completion  of  three  years  continuous  service.   Rule  7  provides   for
seniority from the date of order of appointment after selection.   The  said
Rules though initially applicable to appointments made prior to January  01,
1977 were extended from time to time and  on  7th  August,  1989,  the  said
rules were extended to persons directly appointed on  ad  hoc  basis  on  or
before 1st October, 1986 and who continued in service.

5.    Rules 4 and 7 are as under :

"4.   Regularisation of adhoc appointments : (1) any     person who -

(i)   was directly appointed on ad hoc basis before January 1, 1977  and  is
continuing in service as such on the date of commencement of these rules;

(ii)     possessed   requisite   qualifications   prescribed   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 order.

(2)   In making regular appointments under  these  rules,  reservations  for
the  candidates  belonging  to  the  Scheduled  Castes,  Scheduled   Tribes,
Backward classes and other categories shall be made in accordance  with  the
order of the Government in force at the time of recruitment.

(3)   For the  purpose  of  sub-rule  (1)  the  appointing  authority  shall
constitute a Selection Committee and consultation with the Commission  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 their names are arranged in the said  appointment  order,
the list shall be placed before the Selection  Committee  along  with  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  the  selected
candidates, the names in the list being arranged in order of  seniority  and
forward it to the appointing authority."



7.    Seniority :- (1)  A  person  appointed  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 accordance 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 determined in the order mentioned in the order of appointment."

6.    The 1989 amendment to the Rules inserted Rule 10 as follows :

"10.   Extension to the rules: - The provisions of these rules  shall  apply
mutatis mutandis, also to any person directly appointed on ad hoc  basis  on
or before October 1, 1986 and continuing in service as such, on the date  of
commencement of the Uttar Pradesh Regularization of Ad hoc Appointments  (on
posts  within  the  purview  of  the  Public  Service  Commission)   (Second
Amendment) Rules, 1989."

7.    The writ petitioner filed Civil Miscellaneous  Writ  Petition  No.9940
of 2001 with the grievance that in  the  seniority  list  published  on  4th
January, 1995 his name was placed  at  Serial  No.274  showing  his  service
w.e.f. 14th December, 1989.   In doing so, he was not given benefit of  past
service, while such benefit was given to  other  similarly  placed  persons.
This contention was noticed by the High Court as follows :

"A perusal of the seniority list shows that persons placed  at  Serial  No.8
to 64 were regularized vide order  dated  15-4-1985  w.e.f.  14-5-1979,  and
similarly the person placed at serial No.132 was regularized by order  dated
17-1-1990 w.e.f. 13-5-1984.  One Subhash Singh whose name is at serial  No.8
was given the benefit of  his  previous  service  and  his  seniority  fixed
accordingly.  However petitioner was not given any benefit of  his  previous
service in the department."

      The High Court held that the writ petitioner was entitled  to  benefit
of past service in view of the law down by  this  Court  in  Direct  Recruit
Class II Engineering  Officers  Association  vs.  State  of  Maharashtra[1].
Accordingly, the High Court directed that the initial  date  of  appointment
of the writ petitioner be taken as 18th January,  1983.   Aggrieved  by  the
said view, the State has approached this Court.

8.    However, during pendency of the matter in this Court, the issue  arose
in other pending matters before the High Court  including  the  second  writ
petition  by  the  writ  petitioner  Narendra  Kumar  Tripathi  being  Civil
Miscellaneous Writ Petition  No.11542  of  2004  which  was  filed  to  seek
compliance of earlier order of the High Court.  The matter was  referred  to
a larger Bench and was heard and decided by a Bench  of  three  Judges  vide
Judgment dated 10th December, 2004 "Farhat  Hussain  Azad  versus  State  of
U.P. & Ors." against which the department has approached this Court.

9.    Referring to the decision of this Court in  State  of  West  Bengal  &
Ors. vs. Aghore Nath Dey & Ors.[2] laying down that, to count past  service,
initial appointment has to be according to rules and if initial  appointment
is ad hoc, not according to rules and is made as a 'stop  gap  arrangement',
the officiation in such posts cannot be taken into account for counting  the
seniority, the High Court held that appointment on ad hoc basis  dehors  the
rules and without following the procedure prescribed  under  the  law  could
not be counted for seniority.   Accordingly,  it  was  held  that  the  writ
petitioner was not entitled to count ad hoc service for his seniority.   The
judgment dated 12th  February,  2003  rendered  in  the  case  of  the  writ
petitioner which is the subject matter of appeal  filed  by  the  State  was
held to be  per  incuriam.   Aggrieved  thereby,  the  writ  petitioner  has
approached this Court  by  way  of  appeal  arising  out  of  Special  Leave
Petition (Civil) No.8330 of 2005.
10.   We have heard learned counsel for the parties.

11.   Learned counsel for the writ petitioner submitted that the view  taken
by the larger Bench of the High Court is based on erroneous assumption  that
the appointment of the writ petitioner was stop gap arrangement  and  dehors
the rules.  Careful perusal of the scheme of the  rules  and  their  working
shows that the appointment of writ petitioner was neither against the  rules
nor by way of stop gap arrangement.  It was made clear  by  learned  counsel
for the writ petitioner that the claim of the writ  petitioner  was  limited
for counting service from 12th June, 1985 when he was  appointed  after  due
selection in regular pay scale.  It is  pointed  out  that  under  the  1979
Rules to meet exigency of service,  appointments  were  being  made  without
approval  of  the  Public  Service  Commission  and  were  being  thereafter
regularized. Service of such persons was being  counted  from  the  date  of
initial appointment made after due selection.  In  the  present  case  also,
the writ petitioner was duly selected and though the  terms  of  appointment
provided for his service being terminated on a  person  selected  by  Public
Service Commission  joining  service,  such  a  situation  never  arose  and
services of the writ petitioner continued and were  regularized  thereafter.
In these circumstances, the past service of the writ  petitioner  could  not
be ignored.

12.   Learned counsel for the State however, submitted that the  view  taken
by the larger Bench was the correct view and ad  hoc  service  as  stop  gap
arrangement could not be taken into account.  At the time of appointment  no
rules had been framed.

13.   After giving due consideration to the rival  submissions,  we  are  of
the view that the contention of the writ petitioner has to  be  upheld.   No
doubt, ad hoc service, when appointment was  against  rules  and  purely  as
stop gap arrangement, cannot be counted for the purposes  of  seniority,  as
held by the larger Bench of the High Court and in several judgments of  this
Court, including in Keshav Chandra Joshi  vs.  Union  of  India[3]  but  the
present is not the case where the ad hoc service is purely by  way  of  stop
gap arrangement or against the rules.

14.   At this stage, observations of this  Court  in  some  of  the  leading
judgments may be referred  to.   In  Direct  Recruit  Class  II  Engineering
Officers' Association, it was observed:-
"47. To sum up, we hold that:

      [pic](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 the initial  appointment
is only  ad  hoc  and  not  according  to  rules  and  made  as  a  stop-gap
arrangement, the officiation in such post cannot be taken into  account  for
considering the seniority.

      (B)   If  the  initial  appointment  is  not  made  by  following  the
procedure laid down by the rules but the appointee  continues  in  the  post
uninterruptedly till the regularisation of his service  in  accordance  with
the rules, the period of officiating service will be counted."



15.   In Aghore Nath Dey, the above observations were explained as follows:-

"25. 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
[pic]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 adjudging 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
appointment 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. In such cases, the  deficiency  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 uninterruptedly 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 appointment not being limited  to  a  fixed
period of time is intended to be  a  regular  appointment,  subject  to  the
remaining procedural requirements  of  the  rules  being  fulfilled  at  the
earliest. In such cases also, if there be any delay in  curing  the  defects
on account of any fault of the appointee, the appointee would  not  get  the
full benefit of the earlier period on account of his  default,  the  benefit
being confined only to the period  for  which  he  is  not  to  blame.  This
category of cases is different  from  those  covered  by  the  corollary  in
conclusion (A) which relates to appointment  only  on  ad  hoc  basis  as  a
stopgap arrangement and not  according  to  rules.  It  is,  therefore,  not
correct to say, that  the  present  cases  can  fall  within  the  ambit  of
conclusion (B), even though they are squarely covered by  the  corollary  in
conclusion (A)."


16.   In Rudra Kumar Sain & Ors. vs.  Union  of  India  &  Ors.[4],  it  was
observed:-
"15. So far as the terminology used in  Singla  case  [1984  (4)  SCC  450],
namely "ad hoc", "fortuitous" and "stopgap", the same is quite  familiar  in
the service jurisprudence. Mr Rao, appearing for the  High  Court  of  Delhi
however contended before us that the said terminology should  be  given  the
same meaning, as was given in Parshotam Lal Dhingra v. Union of  India  [AIR
1958 SC 36 : 1958 SCR 828]. In Dhingra case the Court was examining  whether
removal of an employee can be held to be penal and  whether  Article  311(2)
of the Constitution can at all be attracted  and  the  Court  also  observed
that certain amount of confusion arises because of  the  indiscriminate  use
of the words "provisional", "officiating" and  "on  probation".  We  do  not
think that the concept or meaning given  to  those  terminology  in  Dhingra
case will have any application to the case  in  hand,  where  the  Court  is
trying  to  work-out  an  equitable  remedy  in  a  manner  which  will  not
disentitle an appointee, the benefit of his fairly long  period  of  service
for the purpose  of  seniority,  even  though  he  possesses  the  requisite
qualification and even though  his  appointment  has  been  made  after  due
consultation and/or approval of the High Court.

[pic]16. The three  terms  "ad  hoc",  "stopgap"  and  "fortuitous"  are  in
frequent use in service jurisprudence.  In  the  absence  of  definition  of
these terms in the Rules in question we  have  to  look  to  the  dictionary
meaning of the words and the meaning commonly assigned to  them  in  service
matters. The meaning  given  to  the  expression  "fortuitous"  in  Stroud's
Judicial Dictionary  is  "accident  or  fortuitous  casualty".  This  should
obviously connote that if an appointment is made accidentally, because of  a
particular emergent situation  and  such  appointment  obviously  would  not
continue for a fairly long period. But  an  appointment  made  either  under
Rule 16 or 17 of the Recruitment Rules,  after  due  consultation  with  the
High Court and the appointee  possesses  the  prescribed  qualification  for
such appointment provided in Rule 7 and continues as such for a fairly  long
period, then the same cannot be held to  be  "fortuitous".  In  Black's  Law
Dictionary, the expression "fortuitous"  means  "occurring  by  chance",  "a
fortuitous event may be highly unfortunate".  It  thus,  indicates  that  it
occurs only by chance or accident, which  could  not  have  been  reasonably
foreseen.  The  expression  "ad  hoc"  in  Black's  Law  Dictionary,   means
"something which  is  formed  for  a  particular  purpose".  The  expression
"stopgap" as per Oxford Dictionary, means "a temporary way of  dealing  with
a problem or satisfying a need".

17. In Oxford Dictionary, the word "ad hoc" means for a particular  purpose;
specially. In the same dictionary, the word "fortuitous" means happening  by
accident or chance rather than design.

18. In P. Ramanatha Aiyar's Law Lexicon (2nd Edn.)  the  word  "ad  hoc"  is
described  as:  "For  particular  purpose.  Made,  established,  acting   or
concerned with a particular (sic) and  or  purpose."  The  meaning  of  word
"fortuitous event" is given as "an event which happens by a cause  which  we
cannot resist; one which is unforeseen and caused by superior  force,  which
it is impossible to resist; a term synonymous with Act of God".

19. The meaning to be assigned to these terms while interpreting  provisions
of a service rule will depend  on  the  provisions  of  that  rule  and  the
context in and the purpose for which the expressions are used.  The  meaning
of any of these terms in the context of computation of  inter  se  seniority
of officers holding cadre post will depend on the  facts  and  circumstances
in which the appointment came to be  made.  For  that  purpose  it  will  be
necessary to look into the purpose for which the post was  created  and  the
nature of the appointment of  the  officer  as  stated  in  the  appointment
order. If the appointment order itself indicates that the  post  is  created
to meet a particular temporary contingency and for  a  period  specified  in
the order, then the appointment to such a post can  be  aptly  described  as
"ad hoc" or "stopgap". If a post is created to meet a  situation  which  has
suddenly arisen on account of happening of some event of a temporary  nature
then the appointment of such a post can aptly be described  as  "fortuitous"
in nature. If an appointment is made to  meet  the  contingency  arising  on
account of delay in completing the process of  regular  recruitment  to  the
post due to any reason and it is not possible to leave the post vacant  till
then, and to meet this contingency  an  appointment  is  made  then  it  can
appropriately be called [pic]as a "stopgap" arrangement and  appointment  in
the post as "ad hoc" appointment. It is not possible to lay down any strait-
jacket formula nor give an exhaustive list of  circumstances  and  situation
in which such an appointment (ad hoc, fortuitous or stopgap)  can  be  made.
As such, this discussion is not intended to enumerate the  circumstances  or
situations in which appointments of officers can be said to come within  the
scope of any of these terms. It is only to indicate how  the  matter  should
be approached while dealing with the questions  of  inter  se  seniority  of
officers in the cadre.

20.  In  service  jurisprudence,  a  person  who  possesses  the   requisite
qualification for being appointed to  a  particular  post  and  then  he  is
appointed with the approval and consultation of  the  appropriate  authority
and  continues  in  the  post  for  a  fairly  long  period,  then  such  an
appointment cannot be held to be "stopgap or fortuitous or purely  ad  hoc".
In  this  view  of  the  matter,  the  reasoning  and  basis  on  which  the
appointment of the promotees in the Delhi Higher  Judicial  Service  in  the
case in hand was held by the High Court to  be  "fortuitous/ad  hoc/stopgap"
are wholly erroneous and, therefore, exclusion of those appointees  to  have
their continuous length of service for seniority is erroneous."


17.   The above principles are undisputed.  Question  of  their  application
has arisen from time to time in different fact situations.  Question  to  be
decided in each case was whether the ad hoc appointment  was  stop  gap  and
fortuitous as against being to  an  existing  vacancy  which  continued  and
initial appointment was made  after  due  selection  without  violating  the
rules, if any.

18.   The scheme of the working of the Rules in the  Department  shows  that
right from 1979, the Department has been making  direct  recruitment   after
due selection and by applying the 1979 Rules which rules have been  extended
from time to time to subsequent  recruitments,  services  were  regularized.
Validity of the scheme of these recruitments is  not  under  challenge.   In
such circumstances, when the rules provide that  such  ad  hoc  appointments
have to be regularized and seniority counted from the date  of  appointment,
the writ petitioner could not be deprived of the past  service  rendered  by
him from 12th June, 1985 till the date of regularization.  It is not a  case
of appointments made without due selection or  without  vacancy  or  without
qualification or in violation of rules.  The larger Bench failed to  observe
that the appointment of the writ petitioner was not dehors the rules nor  by
way of stop gap arrangement.  The rules  had  the  effect  of  treating  the
appointment as a regular appointment from initial date of appointment.    In
these  circumstances,  the  principle  laid  down  in  K.C.  Joshi  was  not
applicable.  It is not a case where service rendered  is  either  fortuitous
or against rules or by way of stop gap arrangement.  Applying the  principle
laid down in Direct Recruit Class II Engineering Officers' Association,  the
writ  petitioner  is  entitled  to  count  service  from  12th  June,  1985.
Moreover, the department has allowed the benefit of past  service  to  other
similarly placed incumbents as observed in the judgment giving rise  to  the
appeal of
the department.

19.   Accordingly, we are unable to approve the view  taken  by  the  larger
Bench to the extent it proceeds on the assumption that past service  of  the
writ petitioner was by way of  stop  gap  arrangement  or  contrary  to  the
rules.

20.   We, therefore, direct the State to  redetermine  the  seniority  after
hearing the affected parties within six  months.   It  is  made  clear  that
benefit of redetermination of seniority  at  this  stage  will  not  disturb
holding of posts by any incumbent and except for benefit  in  pension  other
benefits to which the writ petitioner may be found entitled  will  be  given
only on notional basis.





21.   The appeal of the writ petitioner is accordingly allowed to the  above
extent and appeal of the State is accordingly dismissed.



                                ..........................................J.
                                [V. GOPALA GOWDA]

                               ...........................................J.
                                                   [ ADARSH KUMAR GOEL ]
NEW DELHI
APRIL 7, 2015



-----------------------
[1]    1990 (2) SCC 715
[2]    1993 (3) SCC 371
[3]    1992 Supp.(1) SCC 272
[4]    2000 (8) SCC 25

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