REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10788 OF 2016
Rashi Mani Mishra and others …Appellants
Versus
State of Uttar Pradesh and others …Respondents
WITH
CIVIL APPEAL NO. 2898 OF 2021
(Arising out of SLP(C) No.32631/2018)
CIVIL APPEAL NO. 4427 OF 2021
(Arising out of SLP(C) No.29294/2018)
CIVIL APPEAL NO. 4428 OF 2021
(Arising out of SLP(C) No.682/2019)
CIVIL APPEAL NO. 4429 OF 2021
(Arising out of SLP(C) No.926/2019)
J U D G M E N T
M.R. SHAH, J.
1. As common question of law and facts arise in this group of
appeals, all these appeals are decided and disposed of together by this
common judgment and order.
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1.1 Civil Appeal Nos. 10788 of 2016 and Civil Appeal No. 2898 of 2021
are with respect to the State of Uttar Pradesh and the rest of the civil
appeals are with respect to the State of Uttarakhand. It is to be noted
that the relevant rules applicable to the employees of the State of
Uttarakhand are as such para materia to the relevant rules applicable to
the employees of the State of Uttar Pradesh.
1.2 The dispute in all these appeals relates to determination of the
seniority of Assistant Engineers working in the Rural Engineering
Department and the common question involved in the present group of
appeals is, whether the services rendered as ad hoc prior to their
regularisation shall be counted for the purpose of seniority etc. or only
from the date of their regularisation, regularising their services as per the
relevant regularisation rules?
1.3 At the outset, it is required to be noted that as such the High
Courts have heavily relied upon the decision of this Court in the case of
Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi,
reported in (2015) 11 SCC 80 and have held that services rendered by
the respective Assistant Engineers as ad hoc shall also be counted for
the purpose of seniority, meaning thereby their seniority should be
considered from the date of their initial appointment as ad hoc. The
2
decision of this Court in the case of Narendra Kumar Tripathi (supra)
shall be dealt with hereinbelow.
Factual Matrix:
2. For the sake of convenience, Civil Appeal No. 10788 of 2016 is
treated as a lead matter and the facts from the said civil appeal are
narrated and considered for the purpose of deciding these appeals.
2.1 108 Assistant Engineers were given ad hoc appointments in the
year 1985 after an advertisement had been issued. Their services were
subsequently regularised on 14.12.1989 under the provisions of the
Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within
the purview of the Public Service Commission) (Second Amendment)
Rules, 1989 (hereinafter referred to as the ‘1989 Rules’). At this stage, it
is required to be noted that earlier the regularisation of ad hoc
appointments was as per the Uttar Pradesh Regularisation of Ad hoc
Appointments (on posts within the purview of the Public Service
Commission) Rules, 1979 (hereinafter referred to as the ‘1979 Rules’),
which came to be subsequently extended from time to time. Therefore,
for all practical purposes, the respective ad hoc employees were
governed by the 1979 Rules, which came to be extended by the 1989
Rules. A final seniority list was prepared on 14.12.2001. The services
rendered by such Assistant Engineers on ad hoc basis were not counted
3
for seniority purposes and their seniority was determined from the date
of their regularisation on 14.12.1989.
2.2 One Narendra Kumar Tripathi filed the petition even before the
declaration of the final seniority list challenging the order rejecting his
representation and according to him services rendered by him as ad hoc
prior to 14.12.1989 shall also be counted for the purpose of seniority.
The final seniority list dated 14.12.2001 was also challenged in various
writ petitions. Writ Petition filed by Narendra Kumar Tripathi (first case)
came to be allowed by the High Court and a direction was issued to fix
his seniority from the date of his initial appointment in the Work Charge
Establishment of the department on 18.01.1983. At this stage, it is
required to be noted that initially Narendra Kumar Tripathi was working in
the department on work charge basis from 18.01.1983 before he was
given an ad hoc appointment on 12.06.1985. As observed hereinabove,
various other writ petitions were also filed challenging the final seniority
list dated 14.12.2001.
2.3 A Division Bench of the High Court of Judicature at Allahabad, vide
judgment and order dated 27.02.2004, in the case of Arjun Ravi Das
filed by ad hoc Assistant Engineers for counting their services rendered
on ad hoc basis prior to regularisation in 1989 for the purpose of
seniority, dismissed the writ petition. Thereafter, several other writ
4
petitions including the writ petition by Narendra Kumar Tripathi (second
case) were filed and finding a conflict between the two Division Benches,
in Narendra Kumar Tripathi (first case) and Arjun Ravi Das, the writ
petitions were referred to a Full Bench. The issue before the Full Bench
was as to whether the services rendered on ad hoc basis prior to
regularisation should be counted for determining the seniority. The Full
Bench observed that ad hoc services rendered after appointment made
dehors the rules and without following any procedure prescribed by law
cannot be counted for the purpose of seniority, after having noted that
the services of such ad hoc Assistant Engineers appointed in 1985 were
subsequently regularised by order dated 14.12.1989 and a final seniority
list was prepared on 14.12.2001 which did not count the services
rendered by the Assistant Engineers on ad hoc basis. Thereafter, the
Full Bench dismissed all the petitions holding that the ad hoc services
rendered prior to regularisation should not be counted for the purpose of
seniority. The seniority list was therefore not disturbed by the Full
Bench.
2.4 Thereafter, Narendra Kumar Tripathi filed a Special Leave Petition
before this Court against the judgment rendered by the Full Bench on
10.12.2004. The Secretary, Minor Irrigation Department also filed a
Special Leave Petition against the judgment rendered on 13.02.2003 in
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Narendra Kumar Tripathi (first case), taking the view that his seniority
shall be counted from the date of his initial appointment in the Work
Charge Establishment of department on 18.01.1983. The Special Leave
Petitions were subsequently re-numbered as Civil Appeal Nos.
3348/2015 and 3349/2015 respectively. Before this Court, a submission
was made on behalf of Narendra Kumar Tripathi that his seniority may
be counted from 12.06.1985 and not from 18.01.1983 when he was
appointed on work charge basis.
2.5 By judgment and order dated 7.4.2015, a two Judge Bench of this
Court allowed the appeal preferred by Narendra Kumar Tripathi (supra)
and set aside the judgment and order passed by the Full Bench of the
High Court and held that services rendered by Assistant Engineers as
ad hoc shall be counted for the purpose of seniority and their seniority
should be counted from the date of their initial appointment and not from
the date of regularisation of their services, as per the 1979 Rules/1989
Rules. This Court directed the State to redetermine the seniority after
hearing the affected parties within six months. At this stage, it is
required to be noted that this Court also made it clear that benefit of redetermination of seniority at this stage will not disturb holding of posts by
any incumbent and except for the benefit in pension other benefits to
6
which the writ petitioner may be found entitled will be given only on
notional basis (paragraph 17 of the said judgment).
2.6 That thereafter, pursuant to the directions issued by this Court in
the case of Narendra Kumar Tripathi (supra), the State Government
issued an office order dated 31.12.2015 notifying the tentative seniority
list and requiring all concerned to file objections, if any, within 15 days.
That thereafter, after considering the objections filed, a final seniority list
was published on 22.03.2016. The writ petitioners before the High Court
were the candidates, who were at serial nos. 106, 109, 107, 122 & 108
in the seniority list dated 14.12.2001 and who were downgraded and
placed at serial nos. 260, 208, 261, 274 & 262 in the seniority list dated
22.03.2016. Therefore, the appellants herein – original writ petitioners
filed writ petition before the High Court praying for setting aside the
seniority list dated 22.03.2016 and for reviving the earlier seniority list
dated 14.12.2001. Mainly relying upon and following the decision of this
Court in the case of Narendra Kumar Tripathi (supra), by the impugned
judgment and order, the High Court has dismissed the writ petition,
which has given rise to Civil Appeal No. 10788 of 2016. A similar view
has been taken by the High Court of Judicature at Allahabad in the case
of Brijesh Kumar Dubey, appellant in Civil Appeal No. 2898/2021 and by
the High Court of Uttarakhand in the cases of Navin @ Naveen
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Chandra, Rakesh Kumar Tilara and others and Ramji Lal and others,
appellant and respondents in Civil Appeal Nos. 4427, 4428 and 4429 of
2021 respectively.
2.7 Therefore, the short question which is posed for the consideration
of this Court is, whether the services rendered by the Assistant
Engineers as ad hoc should be counted for the purpose of seniority or
their seniority shall be counted from the date of their regularisation. In
other words, the question posed for the consideration is, whether their
services shall be counted from the date of their initial appointments as
ad hoc and the service rendered as ad hoc prior to regularisation is to be
counted for the purpose of seniority or not?
Submissions/Arguments:
3. S/Shri Anil Kumar Sangal and Rishabh Sancheti, learned
Advocates have appeared on behalf of the respective appellants –
original writ petitioners. Dr. Rajiv Nanda and Ms. Vanshaja Shukla,
learned Advocates have appeared on behalf of the State of Uttarakhand.
Shri Tanmaya Agarwal, learned Advocate has appeared on behalf of the
State of Uttar Pradesh and Shri Manoj Swarup, learned Senior
Advocate, along with other learned Advocates, have appeared on behalf
of the contesting respondents.
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3.1 Learned counsel appearing on behalf of the respective appellants
– original writ petitioners have vehemently submitted that the respective
High Courts have clearly erred in relying upon and following the decision
of this Court in the case of Narendra Kumar Tripathi (supra).
3.2 Shri Anil Kumar Sangal, learned Advocate appearing on behalf of
the appellants – original writ petitioners has made the following
submissions:
i) that the decision of this Court in the case of Narendra Kumar
Tripathi (supra), which has been relied upon and followed by the
respective High Courts is a decision per incuriam;
ii) that in the case of Narendra Kumar Tripathi (supra), a two Judge
Bench of this Court did not consider the earlier binding decisions of this
Court, taking he view that seniority of ad hoc appointees is to be
reckoned from the date of their substantive appointments and that ad
hoc services cannot be counted for the purpose of seniority;
iii) that the binding decisions of this Court in the case of Santosh
Kumar and others v. G.R. Chawla and others, reported in (2003) 10
SCC 513 and another decision of this Court in the case of State of
Uttarakhand v. Archana Shukla, reported in (2011) 15 SCC 194,
interpreting the very 1979 Rules and taking the view that the services
rendered as ad hoc and prior to their regularisation as per the 1979
9
Rules shall not be counted for the purpose of seniority were not brought
to the notice of this Court;
iv) that in the case of Narendra Kumar Tripathi (supra), this Court did
not even take into consideration the entire/whole Rule 7 of the 1979
Rules. It is submitted that as per Rule 7 of the 1979 Rules, which were
subsequently extended in 1989, under which the contesting respondents
came to be regularised specifically mentions that “a person appointed
under the 1979 Rules shall be entitled to seniority only from the date of
order of appointment after selection in accordance with the said 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 persons”.
It is submitted that this Court in Narendra Kumar Tripathi (supra)
considered Rule 7 only up to the wording, “date of order of appointment”,
however, did not consider the entire Rule 7 which specifically provides
that 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. It is submitted that if the aforesaid
entire/whole rule 7 would have been considered, in that case, the result
would have been different;
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v) that in any case a binding decision of this Court in the case of
Santosh Kumar and others (supra), interpreting the very 1979 Rules and
taking the view that seniority of ad hoc appointees is to be reckoned
from the date of their substantive appointments and that ad hoc
appointments cannot be deemed to be “substantive appointments” and
that such appointees are to be placed below the direct recruits appointed
prior to their regularisation was not brought to the notice of this Court in
the case of Narendra Kumar Tripathi (supra) and therefore the decision
in the said case is a decision per incuriam. It is submitted that in the
case of Santosh Kumar and others (supra), this Court also considered
the Constitution Bench decision of this Court in the case of Direct
Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, reported
in (1990) 2 SCC 715, which came to be considered by this Court in the
case of Narendra Kumar Tripathi (supra), while taking a contrary view
than the view taken in the case of Santosh Kumar and others (supra);
vi) that in many earlier decisions, this Court including the three Judge
Benches have consistently taken the view that period of ad hoc service
cannot be reckoned for the purposes of seniority, where initial
appointment is only ad hoc and not according to the rules. Reliance is
placed upon the decisions of this Court in the cases of Debabrata Dash
v. Jatindra Pradsad Das, reported in (2013) 3 SCC 658 (three Judge
11
Bench); P.P.C. Rawani (Dr.) and others v. Union of India, reported in
(2008) 15 SCC 332 (three Judge Bench); R.K. Mobisana Singh v. Kh.
Temba Singh, reported in (2008) 1 SCC 747; Santosh Kumar and others
(supra); Union of India v. Satish Chandra Mathur, reported in (2001) 10
SCC 185; Keshav Chandra Joshi v. Union of India, reported in 1992
Supp. (1) SCC 272 (three Judge Bench); and P.D. Aggarwal v. State of
U.P., reported in (1987) 3 SCC 622. It is submitted that none of the
aforesaid decisions have been considered by this Court in the case of
Narendra Kumar Tripathi (supra) and therefore also the decision in the
said case is per incuriam;
vii) that even otherwise and in the facts and circumstances of the
case, the services rendered as ad hoc and prior to regularisation are not
required to be counted for the purpose of seniority. It is submitted that
the private contesting respondents herein were appointed as Assistant
Engineers in the year 1985 on ad hoc basis vide office memo dated
12.06.1985 on the basis of recommendations of the Selection
Committee constituted for ad hoc appointments; that they were
appointed on ad hoc basis on the temporary posts of Assistant
Engineers in Rural Engineering Service Department; that in the
appointment order itself it was specifically mentioned that the
candidates will have no right to claim seniority in future on the
12
basis of the date of this order of appointment (paragraph 2 of the
office memo). It is submitted that thereafter their services came to be
regularised as per the 1979 Rules/1989 Rules, vide
notification/appointment order dated 23.02.1989. It is submitted that
even in the said notification/appointment order, it was specifically
observed that in Rural Engineering Service, the service rule of the
Assistant Engineer has not been framed till date and therefore the
continuation shall be made under the General Rules framed by the
Personal Department and in the cadre of Assistant Engineer Civil,
the seniority along with the other officers shall be fixed later on. It
is submitted that the relevant 1979 Rules/1989 Rules under which their
services were regularised specifically provided that a person appointed
under the 1979 Rules shall be entitled to seniority from the date of order
of appointment after selection in accordance with these rules, i.e., the
1979 Rules. It is submitted that as per the 1979 Rules/1989 Rules, the
services of the ad hoc appointees were required to be regularised after
following due procedure as per the 1979 Rules and only after the
Selection Committee considers the cases of ad hoc appointees. It is
submitted that only thereafter and after their names are cleared by the
Selection Committee constituted specifically under the 1979 Rules,
“Substantive Appointments” are made;
13
viii) that thereafter the State Government framed the U.P. Government
Servants Seniority Rules, 1991 (hereinafter referred to as the ‘1991
Rules’) and as per the said rules, the seniority shall be determined from
the date of their “substantive appointments”. It is submitted that the
“substantive appointments” has been defined under the 1991 Rules and
means, an appointment not being an ad hoc appointment on a post in
the cadre of service made after selection in accordance with the service
rules relating to that service. It is submitted that thereafter the State
Government framed the Uttar Pradesh Rural Engineering (Group ‘B’)
Service Rules, 1993 (hereinafter referred to as the ‘1993 Rules’), which
govern the appellants – Assistant Engineers in Rural Engineering. The
1993 Rules which include the Assistant Engineers and even as per the
said rules “substantive appointments” means an appointment not being
an ad hoc appointment, on a post in the cadre of service made after
selection in accordance with the rules and if there were no rules, in
accordance with the procedure prescribed for the time being by
executive instructions issued by the government. It is submitted that as
per the said 1993 Rules, “member of service” means a person
substantively appointed under the said rules or the orders prior to the
commencement of the said rules to a post in the cadre of service. It is
submitted that as per the 1993 Rules, as per clause 21, the seniority of
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the persons substantively appointed in the posts shall be determined in
accordance with the 1991 Rules, as amended from time to time;
ix) that on a conjoint reading of the aforesaid rules, it can be seen that
services rendered as ad hoc cannot be considered as “substantive
appointments” and on regularisation of their services under the 1979
Rules/1989 Rules after they were selected by the Selection Committee
under the 1979 Rules, their appointment can be said to be “substantive
appointments” and therefore their seniority is to be counted only from the
date of their substantive appointments, i.e., regularisation under the
1979 Rules/1989 Rules. It is submitted that even the Seniority Rules,
1991, Service Rules, 1993 were also not placed before this Court for
consideration when this Court decided Narendra Kumar Tripathi (supra).
It is submitted that even the appellants – original writ petitioners were not
before this Court and/or were not heard when this Court decided
Narendra Kumar Tripathi (supra);
x) that even as observed in paragraph 17 of the judgment in the case
of Narendra Kumar Tripathi (supra), the benefit of re-determination of the
seniority will not disturb holding of the posts by any incumbent. It is
submitted that by re-determination of the seniority as per Narendra
Kumar Tripathi (supra), the appellants herein – original writ petitioners
are pushed below in the seniority list from serial nos. 106, 109, 107, 122
15
& 108 to serial nos. 260, 208, 261, 274 & 262. It is submitted therefore
also the subsequent re-determination of the seniority list in the year 2016
which was under challenge before the High Court is contrary to the
observations made by this Court in paragraph 17 in Narendra Kumar
Tripathi (supra);
xi) Making the above submissions, it is prayed to hold that in the facts
and circumstances of the case and considering the relevant rules the
seniority of ad hoc appointees as Assistant Engineers shall be counted
only from the date of their regularisation of service as per the 1979
Rules/1989 Rules and their initial service prior to their regularisation is
not to be counted for the purpose of seniority, by holding that only on
regularisation of their services as per the 1979 Rules/1989 Rules, they
can be said to have been appointed on “substantive posts”.
3.3 Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocates
appearing on behalf of the State of Uttarakhand have fully supported the
appellants – original writ petitioners and have submitted that considering
the applicable relevant rules and more particularly when the ad hoc
appointees’ services were regularised as per the 1979 Rules/1989
Rules, which specifically provide that the services rendered as ad hoc
shall not been counted for the purpose of seniority and the earlier
binding decisions of this Court interpreting the very Rules 1979 were not
16
brought to the notice of this Court when this Court decided Narendra
Kumar Tripathi (supra)., it is submitted that the services of the ad hoc
Assistant Engineers are to be counted for the purpose of their seniority
only from the date of their regularisation in the year 1989 and not from
the date of their initial appointment in the year 1985.
3.4 Shri Tanmaya Agarwal, learned Advocate appearing on behalf of
the State of Uttar Pradesh has, as such, not taken any specific stand
and has submitted that ultimately it is left to the Court. However, has
submitted that the State of Uttar Pradesh has redetermined the seniority
in the year 2016 as per the directions issued by this Court in the case of
Narendra Kumar Tripathi (supra).
4. Shri Manoj Swarup, learned Senior Advocate appearing on behalf
of some of the contesting respondents – ad hoc appointees has
vehemently submitted that in the present case re-determination of the
seniority is pursuant to the directions issued by this Court in the case of
Narendra Kumar Tripathi (supra) and therefore no error has been
committed by the respective States in re-determining the seniority list
counting the services rendered by ad hoc appointees prior to their
regularisation. It is submitted that the seniority list has been redetermined considering the services rendered by the ad hoc appointees
from the date of their initial appointments. It is submitted that in the case
17
of Narendra Kumar Tripathi (supra), the very 1979 Rules came to be
interpreted and considered by a two Judge Bench of this Court and
therefore the issue has attained finality. It is further submitted that while
deciding the case in the case of Narendra Kumar Tripathi (supra), this
Court considered two earlier binding decisions of this Court in the case
of Direct Recruit Class II Engg. Officers’ Assn. (supra) and Rudra Kumar
Sain v. Union of India, reported in (2000) 8 SCC 25, taking the view that
the services rendered as ad hoc are to be counted/considered for the
purpose of seniority. It is submitted that in the case of Direct Recruit
Class II Engg. Officers’ Assn.(supra), a Constitution Bench of this Court
held that 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. It is submitted that in the case
of Rudra Kumar Sain (supra), another Constitution Bench of this Court
observed and held that appointment of employee possessing statutory
qualifications to the promotional post after due consultation with or
approval of, the competent authority, though initially ad hoc, cannot be
ignored in computing the length of service for determining inter se
seniority between such promotees and direct recruits. It is submitted
that in the case of Rudra Kumar Sain (supra), this Court interpreted the
appointment as “ad hoc/fortuitous/stopgap” and thereafter observed and
held as above. It is submitted that while deciding Narendra Kumar
18
Tripathi (supra), this Court considered the aforesaid two decisions and
also interpreted and considered the very 1979 Rules. It is submitted that
in the present case when the contesting respondents – ad hoc
appointees were appointed in the year 1985, they were appointed after
due selection by the duly constituted Selection Committee. It is
submitted that therefore services rendered by them as ad hoc are to be
counted for the purpose of seniority.
4.1 Shri Manoj Swarup, learned Senior Advocate has also heavily
relied upon the decision of this Court in the case of Dr. Chandra Prakash
and others v. State of U.P., reported in (2002) 10 SCC 710. It is
submitted that in the aforesaid decision in the case of Dr. Chandra
Prakash (supra), it is specifically observed and held that service
rendered as temporary is to be considered for the purpose of seniority.
Therefore, heavy reliance is placed upon the decision of this Court in the
case of Dr. Chandra Praksh (supra).
4.2 Shri Manoj Swarup, learned Senior Advocate has also relied upon
the decision of this Court in the case of State of West Bengal v. Aghore
Nath Dey, reported in (1993) 3 SCC 371.
4.3 Now so far as the reliance placed upon the observations made in
paragraph 17 in the case of Narendra Kumar Tripathi (supra) that the
benefit of the redetermination of the seniority will not disturb holding of
19
posts by any incumbent, it is submitted that in the present case while redetermining the seniority in the year 2016 pursuant to the directions
issued by this Court in the case of Narendra Kumar Tripathi (supra),
holding of the posts by none of the appellants shall be disturbed. It is
submitted that pushing down in the seniority list is the necessary
consequence of re-determination of the seniority counting the services
rendered by ad hoc appointees from the date of their initial
appointments.
4.4 Making the above submissions and heavily relying upon the
decisions of this Court in the case of Narendra Kumar Tripathi (supra)
and the earlier decision of this Court in the case of Dr. Chandra Prakash
(supra), it is prayed to dismiss the present appeals.
4.5 The other learned Advocates appearing on behalf of the contesting
respondents in other appeals have fully supported the submissions
made by Shri Manoj Swarup, learned Senior Advocate.
Consideration:
5. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that in the present case, the
seniority has been re-determined pursuant to the directions issued by
20
this Court in the case of Narendra Kumar Tripathi (supra). In the case of
Narendra Kumar Tripathi (supra), this Court after considering the very
1979 Rules held that the services rendered by ad hoc appointees prior to
their regularisation and services rendered by them from the date of their
initial appointments is to be counted for the purpose of seniority. It is not
in dispute that in the impugned judgments and orders, the respective
High Courts have solely followed the decision of this Court in the case of
Narendra Kumar Tripathi (supra). However, it is required to be noted that
earlier to the decision of this Court in the case of Narendra Kumar
Tripathi (supra), there were two binding decisions of this Court
interpreting the very Rules 1979 in the cases of Santosh Kumar (supra)
and Archana Shukla (supra), under which the services of the ad hoc
appointees – private respondents herein are regularised. In the case of
Santosh Kumar (supra), interpreting the very U.P. Regularisation of Ad
hoc Appointments (on posts within the purview of the Public Service
Commission) Rules, 1979, a two Judge Bench of this Court observed
and held that the seniority of ad hoc appointees to be reckoned from the
date of their “substantive appointments” and ad hoc appointments
cannot be deemed to be “substantive appointments” and hence
such appointees to be placed below the direct recruits appointed
prior to their regularisation. In the case of Santosh Kumar (supra),
this Court interpreted the very Rule 7 of the 1979 Rules. This Court also
21
considered the decision of this Court in the case of Direct Recruit Class
II Engg. Officers’ Assn. (supra), considered by this Court in the case of
Narendra Kumar Tripathi (supra). In the case of Santosh Kumar (supra),
the High Court considered Seniority Rules, 1991 (which shall be
discussed hereinbelow) and the High Court took the view that rule of
seniority clearly provides that seniority in any category or cadre post
shall be determined from the date of the order of “substantive
appointment”. Subsequently, in the case of Archana Shukla (supra),
while interpreting the pari materia rules applicable to the State of
Uttarakhand, it is observed and held that ad hoc appointees whose
services were regularised subsequently are not entitled to the benefit of
their service under rule 7 from 1988 to 2004 (as ad hoc appointees) for
the purpose of seniority. In the said decision, the Drug Inspectors were
initially appointed as ad hoc in the year 1988 and thereafter they were
regularised in the year 2004 under the Uttaranchal Regularisation of Ad
hoc Appointments (Posts under the purview of Public Service
Commission) Rules, 2002 (applicable in other appeals in the present
case to the respective State of Uttarakhand). They claimed the benefit
of their services from 1988 to 2004 for the purpose of seniority. This
Court set aside the judgment and order of the High Court on
interpretation of Rule 7 and observed that they were appointed after the
selection under the Regularisation Rules in the year 2004 and hence
22
they can get seniority only from the year 2004 and not from 1988.
Unfortunately, when this Court decided Narendra Kumar Tripathi (supra),
the aforesaid two binding decisions interpreting the very 1979 Rules and
2002 Rules taking the contrary view were not brought to the notice of
this Court. Therefore, to that extent, the decision of this Court in the
case of Narendra Kumar Tripathi (supra) can be said to be per incuriam.
Even from the judgment in the case of Narendra Kumar Tripathi
(supra), it appears that the entire Rule 7 has not been considered. Rule
7 of the 1979 Rules under which the contesting respondents – ad hoc
appointees came to be regularised specifically mentions that “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. However, this Court took into consideration the rule 7 only up to
the wording “date of order of appointment”. Therefore, if entire Rule 7 is
read, it can be seen that it specifically provides that “a person appointed
under these rules (1979 Rules) shall be entitled to seniority only from the
date of order of appointment after selection in accordance with these
rules (1979 Rules).
5.1 Learned counsel appearing on behalf of the ad hoc appointees has
then heavily relied upon the decision of this Court in the case of Dr.
Chandra Prakash (supra), reported in (2002) 10 SCC 710. He has also
23
placed reliance upon the Constitution Bench decision of this Court in the
case of Chandra Prakash and others v. State of U.P., reported in (2002)
4 SCC 234. However, it is required to be noted that the Constitution
Bench in its decision reported in (2002) 4 SCC 234, as such, did not
opine anything on merits. Earlier, a three Judge Bench of this Court
referred the matter to the five Judge Bench, having found the conflict
between the two Judge Bench decision of this Court in the case of State
of U.P. v. Dr. R.K. Tandon, reported in (1995) 3 SCC 616, as modified by
another two Judge Bench of this Court in the case of State of U.P. v. Dr.
R.K. Tandon, reported in (1996) 10 SCC 247, with another decision of
three Judges Bench. Thereafter, the Constitution Bench held that the
two Judge Bench judgment in the case of Dr. R.K. Tandon (supra) does
not lay down the correct law, being in conflict with the larger Bench
judgment. That thereafter, the Constitution Bench observed and held
that therefore the writ petitions from which the reference has arisen will
have to be decided dehors the law laid down by those two judgments of
the Bench of two judges. That thereafter the matters were again
referred to the three Judge Bench and ultimately came to be decided by
the judgment reported in (2002) 10 SCC 710 upon which the reliance
has been placed by Shri Manoj Swarup, learned Senior Advocate
appearing on behalf of the ad hoc appointees.
24
5.2 Having gone through the entire judgment in the case of Dr.
Chandra Prakash (supra) and the relevant rules which fell for
consideration before this Court and considering the facts in the said
decision, we are of the opinion that the decision of this Court in the case
of Dr. Chandra Prakash (supra), reported in (2002) 10 SCC 710 shall not
be applicable to the facts of the case on hand and the same shall not be
of any assistance to the ad hoc appointees in the present case. In the
case before this Court, it was found that the doctors possessing requisite
qualifications under the rules were temporarily appointed in U.P. PMS by
Governor against substantive vacancies. They continued in such
vacancies for long periods (from 1965-76 to 1983) enjoying all the
benefits of regular service and meanwhile also selected by PSC.
Therefore, it was found that in such circumstances as their initial
appointments were not dehors the rules and therefore it was held that
such doctors were not within the purview of 1979 Rules. Even the
Seniority Rules applicable in that case (Rule 18 of the 1945 Rules) were
different than the Seniority Rules, 1991, applicable in the present case.
Rule 18 of the 1945 Rules, which was applicable in the case of Dr.
Chandra Prakash (supra) reads as under:
“Seniority - Seniority in the service shall be determined by the
date of the order of appointment in a substantive vacancy
provided that if two or more candidates are appointed on the
same date their seniority shall be determined according to the
25
order in which their names are mentioned in the order of
appointment.”
As per Rule 18 of the 1945 Rules, seniority in the service shall
be determined by the date of the order of appointment in a
substantive vacancy. However, as per Seniority Rules 1991,
applicable in the present case, seniority is to be counted from the
date of “substantive appointment” and “substantive appointment”
means, an appointment, not being an ad hoc appointment, on a
post in the cadre of service, made after selection in accordance
with the service rules relating to that service. There is a difference
and distinction between the “substantive vacancy” and the “substantive
appointment”. Therefore, the decision of this Court in the case of Dr.
Chandra Prakash (supra) shall not be applicable to the facts of the case
on hand.
6. Having observed and held that the decision of this Court in the
case of Narendra Kumar Tripathi (supra) is per incuriam, as the binding
decisions of this Court in the cases of Santosh Kumar (supra) and
Archana Shukla (supra) were not brought to the notice of this Court
when this Court decided Narendra Kumar Tripathi (supra) and having
held that on facts the decision of this Court in the case of Dr. Chandra
Prakash (supra) shall not be applicable to the facts of the case on hand,
we shall now consider the issue on merits independently.
26
7. The respective ad hoc appointees were initially appointed in the
year 1985 vide office memo dated 12.06.1985. They were appointed on
the basis of the recommendations of the Selection Committee
constituted for ad hoc appointment vide G.O. No. 1033/84/38-1-
3532/84 dated 29.01.1985. They were appointed on ad hoc basis on
the temporary post of Assistant Engineer in Rural Engineering Service
Department. In the said office memo, it was specifically mentioned that
the candidates will have no right to claim seniority in future on the basis
of the said order of appointment (as ad hoc appointee). The relevant
paragraph 2 of office memo dated 12.06.1985 reads as under:
“2. Their aforesaid appointments are being made on purely ad
hoc basis with the conditions that their services are liable to be
terminated on one month’s notice or salary in lieu of notice or
on availability of candidates duly selected through the Public
Service Commission to the above post and they will not have
any claim for regular appointment in future in the department on
the basis of his ad hoc appointment. When the names of the
selected general category candidate and above resaved
category candidates are made available by the Selection
Committee after arranging the names of the general category
candidates in the list and after giving them appointment, the
inter-se seniority will be determined. The candidates will have
no right to claim seniority in future on the basis of the date of
this order of appointment.”
It appears that thereafter within a period of four years from their
appointment as ad hoc, their services came to be regularised under the
27
1979 Rules, extended from time to time and they were appointed and
their services were regularised vide notification dated 23.02.1989. At
this stage, it is required to be noted that their services were regularised
vide notification dated 23.02.1989 as per the 1979 Rules, as extended
in 1989. Therefore, the contesting respondents herein – ad hoc
appointees, having taken the benefit of the 1979 Rules were bound by
the conditions mentioned in the 1979 Rules. At this stage, it is also
required to be noted that even it is not the case on behalf of the
contesting ad hoc appointees that they are not governed by the 1979
Rules. Rules 1979 provide for regularisation of ad hoc appointees.
Rules 4 to 7, which are relevant for our purpose, read as under:
“4. Regularization of ad hoc appointments: (1) any persons
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
28
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.
5. Appointments:- The appointing authority shall, subject to the
provisions of sub-rule (2) of rule 4, make appointments from the
list prepared under sub-rule (6) of the said rule in the order in
which their names stand in the list.
6. Appointments be deemed to be under the relevant service
rules etc.:- Appointments made under these rules shall be
deemed to be under the relevant service rules, or orders, if any.
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
persons 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.”
29
Thus, as per the 1979 Rules, any person who was directly
appointed on ad hoc basis and continued in service and possessed
requisite qualifications prescribed for regular appointment at the time of
such ad hoc appointment and 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. It further provides
that for the purpose of regularisation, the appointing authority shall
constitute a Selection Committee and thereafter the appointing authority
shall prepare an eligibility list of candidates, arranged in order of
seniority, That thereafter the Selection Committee shall prepare the list
of selected candidates and the names in the list being arranged in the
order of seniority and forward to the appointing authority and only
thereafter the appointing authority shall make an appointment from the
list prepared under sub-ule (6) in the order in which their names stand in
the list. As per rule 6, such appointments were deemed to be under the
relevant service rules etc. Thus, the appointments on regularisation of
their services are made only after their names are recommended by the
Selection Committee constituted under sub-rule 3 of Rule 4 of the 1979
30
Rules. Therefore, “substantive appointments” can be said to be only
when they are appointed and their names are forwarded by the Selection
Committee and their services are regularised as per the 1979 Rules.
Rule 7 of the 1979 Rules, as such, clinches the issue. It specifically
provides that a person appointed under the 1979 Rules shall be entitled
to seniority only from the date of order of appointment after selection in
accordance with the 1979 Rules. It also further provides that in all cases
they shall 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 the 1979
Rules. Therefore, as per the 1979 Rules, the persons whose services
have been regularised and they are appointed after the
recommendations by the Selection Committee as per the 1979 Rules,
their seniority shall be only from the date of order of appointment after
selection in accordance with the 1979 Rules, i.e., in the present case,
from 23.02.1989.
7.1 It is also required to be noted that neither in the year 1985 when
they were appointed on ad hoc basis on temporary posts nor at the time
when their services were regularised in the year 1989, the service rules
for Group ‘B’ were in force. In the year 1993, Uttar Pradesh Rural
31
Engineering (Group ‘B’) Service Rules, 1993 came to be enacted. Rules
3(g), 3(i) and rule 21, which are relevant for our purpose, read as under:
“3 (g) “member of the Service” means a person substantively
appointed under these rules or the rules or order in force prior
to commencement of these rules to a post in the cadre of the
Service;
3 (i) “substantive appointment” means an appointment, not
being an ad hoc appointment, on a post in the cadre of the
service made after selection in accordance with the rules and, if
there were no rules, in accordance with the procedure
prescribed for the time being, by executive instructions issued
by the Government;
21. Seniority – The seniority of persons substantively appointed
to a post in the service shall be determined in accordance with
the Uttar Pradesh Government Servants’ Seniority Rules, 1991,
as amended from time to time.”
As per Rule 21 of the 1993 Rules, the seniority of persons
substantively appointed to a post in the service shall be determined in
accordance with the Uttar Pradesh Government Servants’ Seniority
Rules, 1991, as amended from time to time. Even as per the Service
Rules, 1993, “substantive appointment” means an appointment, not
being an ad hoc appointment, on a post in the cadre of the service…..
As per Seniority Rules, 1991, which also defines the “substantive
appointment” as per rule 4(h), the seniority shall be counted only from
the date of their “substantive appointment”. In the present case,
Seniority Rules clearly provide that seniority in any category or cadre
32
post shall be determined from the date of order of “substantive
appointment”. As observed and held by this Court in the case of
Santosh Kumar (supra), ad hoc appointments cannot be deemed to be
substantive appointments. Even the definition of “substantive
appointment” under the Service Rules, 1993 and the Seniority Rules,
1991, referred to hereinabove, is very clear and the service rendered as
ad hoc cannot be treated as “substantive appointment”.
8. The sum and substance of the above discussion would be that on
a fair reading of the 1979 Rules, extended from time to time; initial
appointment orders in the year 1985 and the subsequent order of
regularisation in the year 1989 of the ad hoc appointees and on a fair
reading of the relevant Service Rules, namely Service Rules, 1993 and
the Seniority Rules, 1991, our conclusion would be that the services
rendered by the ad hoc appointees prior to their regularisation as per the
1979 Rules shall not be counted for the purpose of seniority, vis-à-vis,
the direct recruits who were appointed prior to 1989 and they are not
entitled to seniority from the date of their initial appointment in the year
1985. The resultant effect would be that the subsequent redetermination of the seniority in the year 2016 cannot be sustained
which was considering the services rendered by ad hoc appointees prior
to 1989, i.e., from the date of their initial appointment in 1985. This
33
cannot be sustained and the same deserves to be quashed and set
aside and the seniority list of 2001 counting the services rendered by ad
hoc appointees from the date of their regularisation in the year 1989 is to
be restored.
9. Now so far as the reliance placed upon the decision of this Court in
the case of Direct Recruit Class II Engg. Officers’ Assn. (supra), relied
upon by the learned Senior Advocate appearing on behalf of the ad hoc
appointees is concerned, it is required to be noted that even in the said
decision also, it is observed and held that where initial appointment was
made only ad hoc as a stop gap arrangement and not according to the
rules, the officiation in such post cannot be taken into account for
considering the seniority. In the case before this Court, the
appointments were made to a post according to rule but as ad hoc and
subsequently they were confirmed and to that this Court observed and
held that where appointments made in accordance with the rules,
seniority is to be counted from the date of such appointment and not
from the date of confirmation. In the present case, it is not the case of
confirmation of the service of ad hoc appointees in the year 1989. In the
year 1989, their services are regularised after following due procedure
as required under the 1979 Rules and after their names were
recommended by the Selection Committee constituted under the 1979
34
Rules. As observed hereinabove, the appointments in the year 1989
after their names were recommended by the Selection Committee
constituted as per the 1979 Rules can be said to be the “substantive
appointments”. Therefore, even on facts also, the decision in the case of
Direct Recruit Class II Engg. Officers’ Assn.(supra) shall not be
applicable to the facts of the case on hand. At the cost of repetition, it is
observed that the decision of this Court in the case of Direct Recruit
Class II Engg. Officers’ Assn. (supra) was considered by this Court in the
case of Santosh Kumar (supra) when this Court interpreted the very
1979 Rules.
10. Similarly, the decision of this Court in the case of Rudra Kumar
Sain (supra), relied upon by the learned counsel appearing on behalf of
the ad hoc appointees also shall not be applicable to the facts of the
case on hand. In the case before this Court, the promotees appointed
on ad hoc were continued for fairly long periods and their appointments
were made after due consultation with, or approval of Service
Commission, and therefore their appointments were held not to be ad
hoc or fortuitous or stopgap. It is to be noted that in the present case
when the ad hoc appointees were appointed in the year 1985, there was
no consultation with the UPSC and as such there was no
recommendation by the UPSC. Their services came to be regularised
35
as per the 1979 Rules and after they were selected by the Selection
Committee constituted under the 1979 Rules, which specifically provides
that for the purpose of regularisation of ad hoc appointments, the
appointing authority shall constitute a Selection Committee and
consultation with the Commission shall not be necessary. It is also to be
noted that when the ad hoc appointees were appointed in the year 1985,
they were appointed on the basis of the recommendations of the
Selection Committee constituted for ad hoc appointments and when
subsequently their services were regularised and they were appointed in
the year 1989, they were appointed by the order of Governor. This is
one additional ground to hold that their substantive appointments can be
said to be only from the date of their regularisation/appointment made in
the year 1989 after their names were recommended by the Selection
Committee constituted under the 1979 Rules and their services were
regularised as per the 1979 Rules after following the procedure as
required under the 1979 Rules, i.e., in the year 1989. Therefore, their
seniority is to be counted only from 23.02.1989, the date of their
regularisation and the services rendered by the ad hoc appointees prior
thereto, i.e., from the date of their initial appointments in the year 1985 is
not to be counted for the purpose of seniority, vis-à-vis, the direct recruits
appointed prior to 1989.
36
11. In view of the above and for the reasons stated above, all the
appeals succeed. The impugned judgments and orders dated
19.09.2016 passed in Writ-A No. 18925/2016 and 13.03.2018 passed in
SERB No. 13832/2017 passed by the High Court of Judicature at
Allahabad and judgments and orders dated 03.07.2018 in Writ Petition
(S/B) No. 204/2007 and 30.08.2018 in Writ Petition (S/B) No. 203/2007
passed by the High Court of Uttarakhand are hereby quashed and set
aside. The re-determination of the seniority and the revised seniority list
dated 22.03.2016 counting the services of the ad hoc appointees prior to
23.02.1989 and counting the services as ad hoc from 12.06.1985 for the
purpose of seniority is hereby quashed and set aside and the final
seniority list dated 14.12.2001 fixing the seniority considering the
services rendered by ad hoc appointees from 23.02.1989 is hereby
restored. Necessary consequence shall follow. No costs.
….…………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
New Delhi; …………………………………….J.
July 28, 2021. [M.R. Shah]
37
