It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside.

 NON­REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 177 OF 2014 PRUTHIVIRAJ JAYANTIBHAI VANOL         ...APPELLANT(S) Vs. DINESH DAYABHAI VALA AND OTHERS      ...RESPONDENT(S) J U D G M E N T NAVIN SINHA, J. This appeal arises from an order of acquittal, reversing the conviction of respondents 1 to 4 under Sections 302, 34, 120B of   the   Indian   Penal   Code   (IPC)   sentencing   them   to   life imprisonment   and   fifteen   days   imprisonment   under   Section 135(1) of the Bombay Police Act. 2. The deceased was assaulted on 01.10.2003 at 2:30 am while he was returning on a motorcycle along with PW­2 who was   the   pillion   rider.     The   respondents   are   said   to   have assaulted with iron pipe, steel rod and stick, causing three stab wounds and nine incised wounds.  The acquittal is premised on 1 the reasoning that the evidence of the eye­witnesses PW­2 and PW­10, is inconsistent with the medical evidence, regarding the nature of injuries vis­à­vis the weapons of offence. 3. Shri Shikhil Suri, the learned amicus curie appearing on behalf of the appellant submitted that the First Information Report was lodged promptly at 5:15 am the same day by PW­2 naming the four respondents.   The deceased, PW­2, and the four respondents were well known to each other from earlier. Relations between them had soured, leading to the occurrence. PW­12 had deposed that the respondents had threatened the deceased earlier also.  The deposition of PW­2 is corroborated by an   independent   witness,   PW­10   the   security   guard   of   the bungalow near which the occurrence took place. There were street lights near the place of occurrence.  4. The deceased was brought to the hospital emergency ward by PW­2 at 2:45 am, with serious injuries and expired at 8:00 am, as deposed by the Doctor PW­14.  The witness deposed that Dr. Vishwamitra, whose signatures he identified, had noted that the injuries to the deceased were caused by sharp weapons.   2 5. The postmortem report, as deposed by the Doctor PW­1, revealed three stab wounds and nine incised injuries.  Injuries 1 to 4 which were on the head, were sufficient to cause death. The witness deposed that the iron rod used for assault had a turned sharp edge which could cause incised injuries.  The stab wounds were possible by a sharp instrument.  6. It was submitted that there was no inconsistency between the ocular and medical evidence.  The High Court erred in the appreciation of evidence by failing to take not that the iron rod had a sharp edge by which the injuries on the deceased were possible.     It   is   only   if   the   medical   evidence   was   totally inconsistent with the ocular evidence, the former was to be given   precedence.     Reliance   was   placed   on  Solanki Chimanbhai Ukabhai vs. State of Gujarat, 1983 (2) SCC 174 and State of U.P. vs. Krishna Gopal and Another,  1988 (4) SCC 302 and Baleshwar Mahto vs. State of Bihar, 2017 (3) SCC 152. 7. Shri   Kanwaljit   Kochar,   learned   counsel   appearing   on behalf of the first three respondents, the fourth one absconding 3 till   date,   relying   on  Ramesh   Babulal   Doshi   vs.   State   of Gujarat,1996 (9) SCC 225,  Dhanna   vs.   State   of  M.P. with Kanhiyalal and another vs. State of M.P., 1996(10) SCC 79, and  Ghurey  Lal   vs.  State  of  Uttar  Pradesh, 2008(10) SCC 450, submitted that in an appeal against acquittal if two views are   possible,   the   benefit   of   doubt   should   be   given   to   the accused.   It was submitted that stab and incised injuries were not possible by a steel rod or iron pipe.     The genesis of the occurrence was therefore itself in doubt.   The acquittal by High Court therefore calls for no interference.   The recovery of the weapons from the place of occurrence is doubtful as the seizure witnesses, PW­4 and PW­5 have both turned hostile.  There is no FSL report with regard to the finger prints on the weapons of assault to link them with the respondents.  The occurrence is stated to have taken place in an open area near a bungalow and not on the street where street lights may be available.  It was a dark   night   with   no   moonlight   even.     Identification   of   the respondents is therefore doubtful. Disputing that PW­2 was an eye witness to the assault, it was submitted that he had run away from the spot.   4 8. PW­14 did not mention the presence of any stab or incised injuries on the person of the deceased.   PW­1 acknowledged that stab or incised injuries could not be caused by an iron rod. In   view   of   the   variation   between   the   ocular   and   medical evidence, the High Court rightly opined that the Doctor was in a confused state of mind.  There was no motive and it was a mere chance  meeting of  the  respondents  with  the  deceased.      In absence of any specific allegations with regard to which of the respondents assaulted in what manner, and also considering that respondent nos. 1 to 3 have undergone approximately eight and half years of custody, in the entirety, their conviction may be altered to one under Section 304 Part II IPC, sentencing them to the period already undergone.   9. We   have   considered   the   submissions   on   behalf   of   the parties and have been taken through the records.  10. The occurrence took place at 2:30 am.  It is not in dispute that   PW­2   who   was   accompanying   the   deceased   on   the motorcycle, took him to the hospital at 2:45 am.  The deceased was unconscious and in a precarious condition as deposed by PW­14.  The FIR was lodged barely hours later by PW­2 at 5:15 5 am naming the respondents.  There was no time for the witness to consider and ponder for naming the accused except to state the truth.   PW­2 deposed that the respondents stopped them near the bungalow of one Chimanbhai Patel.   He was pushed down by Dipak who hit the deceased on his head with the iron pipe.     Thereafter   all   the   respondents   started   assaulting   the deceased with iron pipes, sticks and iron rods.  Thereafter, the witness ran away and returned with his friends.  The credibility of PW­2 as an eye witness has not been doubted by the High Court.  11. The respondents were not strangers, but well known to PW­2 and the deceased.  PW­12 deposed that the respondents had threatened the deceased earlier also, and were compelling him to withdraw the case and would also demand money from him because of which the deceased had shifted from the locality where they all they lived earlier.  12. There is evidence about the availability of light near the place of occurrence.  Even otherwise, that there may not have been any source of light is hardly considered relevant in view of the fact that the parties were known to each other from earlier. 6 The criminal jurisprudence developed in this country recognizes that the eye sight capacity of those who live in rural areas is far better than compared to the town folks.  Identification at night between   known   persons   is   acknowledged   to   be   possible   by voice, silhouette, shadow, and gait also.  Therefore, we do not find much substance in the submission of the respondents that identification was not possible in the night to give them the benefit of doubt. 13.  In Nathuni Yadav vs State of Bihar, (1998) 9 SCC 238,  with regard to identification in the dark, this court observed: “9…. Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates   of   the   tragedy­bound   house,   the   eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom   they   targeted   without   any   mistake   from among those who were sleeping on the terrace. If the 7 light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly   have   pointedly   focussed   their   eyes   on   the faces of the intruders standing in front of them.” 14. PW­10   was   an   independent   witness.   Neither   has   his presence   been   doubted   nor   his   impartiality   been   suspected. Sitting at the gate, he saw two persons on a motorcycle passing through the ground.   Four persons stopped them and started beating the person who was driving the motorcycle while the pillion rider ran away and then returned with four to five people. The assailants had pipes, sticks and an iron rod with a turn. The assailants ran away throwing the weapons of assault at the place of occurrence. The witness has corroborated PW­2 in all material particulars.  15. PW­1, the Doctor who conducted the post­mortem, found the following injuries on the person of the deceased:    “…(vi) 2.5 cm long cut wound on middle of right ear. (vii)   One   stitched   wound   one   centimeter   below   the injury No. 5, its size was 8 cm x .25 cm, it was stitched with black thread. (viii) One cut wound going oblique from lip to ear, its size was 1.5 cm, it was deep upto muscle. (ix) One cut wound, 2 cm below the right lip going towards backside of ear, its size was 2.5 cm, it was deep upto muscle. (x) One stitched oblique wound on right side of chin going towards backside, its size was 3.5 cm x .25 cm, 8 it was stitched with black thread. (xi) One stabbed wound on right occipital protuberance (at middle of the backside of skull), its size was 1 cm x .5 cm, it was deep upto muscles of scalp. (xii) One stabbed wound on right hand at upper 1/3 and lower 2/3 level, its size was 2 cm x 1.5 cm, deep upto   muscles,   both   the   edges   were   T   square   and wound margin was sharp. (xiii) One stabbed wound at 2.5 cm below injury No.2, its size was 2.5 cm x 1 cm, deep up to muscles, both the   edges   were   T­square   and   wound   margin   was sharp. (xiv) Innumerous cut wounds on middle of arm region of right hand and cutting each other at outside, its size was 15 cm x 20 cm. (xv) One cut wound on douser aspect of right forearm (towards outside), it was starting from right wrist and going upwards, its length was 10 cm and was deep upto muscles. (xvi)   One   cut   wound   found   in   the   middle   of   right forearm,   which   was   oblique   and   upward   on   the anterior aspect, its size was 6.6 cm, it was deep upto subcutaneous tissue. (xvii) One cut wound on index finger of left hand, on douser aspect near base of second and third finger, its size was 4.5 cm, it was deep upto muscles. (xviii) One cut wound on base of left thumb oblique on palmer aspect i.e. on palm, its size was 3.5cm, it was deep upto muscles. (xix) One cut wound found on base of left index. finger, its size was 2.5 cm and was deep upto muscles.” He deposed that the iron rod used for assault, shown to him, had a turn and that injuries nos. 1 to 4 caused on the head were possible by it.  In his cross­examinations, he deposed that the sharp cutting injuries were possible with the iron rod which had a turn. 9 16. The recovery of the weapons of assault from the place of occurrence stands established from the evidence of PW­4 and PW­5 who had not denied their signatures on the seizure memo and neither have they said that they were coerced into signing the   seizure   memo.     Cumulatively,   in   view   of   the   nature   of evidence available, the absence of any FSL report with regard to finger prints on the seized weapons is considered irrelevant. 17. Ocular evidence is considered the  best  evidence  unless there are reasons to doubt it.  The evidence of PW­2 and PW­10 is unimpeachable.  It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved.  In the present case, we find no inconsistency between the ocular and medical evidence.  The High Court grossly erred in appreciation of evidence by holding that muddamal no.5 was a simple iron rod without noticing the evidence that it had a sharp turn edge.  18. The aforesaid discussion leads us to the conclusion that the acquittal by the High Court is based on misappreciation of 10 the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion.  It is not a case where two views are   possible   or   the   credibility   of   the   witnesses   is   in   doubt. Neither is it a case of a solitary uncorroborated witness.  The conclusion of the High Court is therefore held to be perverse and   irrational.     The   acquittal   is   therefore   held   to   be unsustainable and is set aside.   In the nature of the assault, Section 304 Part II, IPC has no application.  The conviction of respondent nos. 1 to 4 by the Trial Court is restored. 19. The   respondent   nos.   1   to   3   are   directed   to   surrender within two weeks to serve out the remaining period of their sentence.  The Director General of Police, State of Gujarat shall take all necessary steps to apprehend the absconding, fourth accused and bring him to justice.  A report shall be submitted to this Court in this regard within a period of 8 weeks when the present matter shall be listed for that limited purpose. 20.  The appeal is allowed. .............................J. (NAVIN SINHA) …..........................J.                     (R. SUBHASH REDDY) NEW DELHI, July 26, 2021 11

NON­REPORTABLE

  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 177 OF 2014

PRUTHIVIRAJ JAYANTIBHAI VANOL         ...APPELLANT(S)

Vs.

DINESH DAYABHAI VALA AND OTHERS      ...RESPONDENT(S)

J U D G M E N T

NAVIN SINHA, J.

This appeal arises from an order of acquittal, reversing the

conviction of respondents 1 to 4 under Sections 302, 34, 120B

of   the   Indian   Penal   Code   (IPC)   sentencing   them   to   life

imprisonment   and   fifteen   days   imprisonment   under   Section

135(1) of the Bombay Police Act.

2. The deceased was assaulted on 01.10.2003 at 2:30 am

while he was returning on a motorcycle along with PW­2 who

was   the   pillion   rider.     The   respondents   are   said   to   have

assaulted with iron pipe, steel rod and stick, causing three stab

wounds and nine incised wounds.  The acquittal is premised on

1

the reasoning that the evidence of the eye­witnesses PW­2 and

PW­10, is inconsistent with the medical evidence, regarding the

nature of injuries vis­à­vis the weapons of offence.

3. Shri Shikhil Suri, the learned amicus curie appearing on

behalf of the appellant submitted that the First Information

Report was lodged promptly at 5:15 am the same day by PW­2

naming the four respondents.   The deceased, PW­2, and the

four respondents were well known to each other from earlier.

Relations between them had soured, leading to the occurrence.

PW­12 had deposed that the respondents had threatened the

deceased earlier also.  The deposition of PW­2 is corroborated by

an   independent   witness,   PW­10   the   security   guard   of   the

bungalow near which the occurrence took place. There were

street lights near the place of occurrence. 

4. The deceased was brought to the hospital emergency ward

by PW­2 at 2:45 am, with serious injuries and expired at 8:00

am, as deposed by the Doctor PW­14.  The witness deposed that

Dr. Vishwamitra, whose signatures he identified, had noted that

the injuries to the deceased were caused by sharp weapons.  

2

5. The postmortem report, as deposed by the Doctor PW­1,

revealed three stab wounds and nine incised injuries.  Injuries 1

to 4 which were on the head, were sufficient to cause death.

The witness deposed that the iron rod used for assault had a

turned sharp edge which could cause incised injuries.  The stab

wounds were possible by a sharp instrument. 

6. It was submitted that there was no inconsistency between

the ocular and medical evidence.  The High Court erred in the

appreciation of evidence by failing to take not that the iron rod

had a sharp edge by which the injuries on the deceased were

possible.     It   is   only   if   the   medical   evidence   was   totally

inconsistent with the ocular evidence, the former was to be

given   precedence.     Reliance   was   placed   on  Solanki

Chimanbhai Ukabhai vs. State of Gujarat, 1983 (2) SCC 174

and State of U.P. vs. Krishna Gopal and Another,  1988 (4)

SCC 302 and Baleshwar Mahto vs. State of Bihar, 2017 (3)

SCC 152.

7. Shri   Kanwaljit   Kochar,   learned   counsel   appearing   on

behalf of the first three respondents, the fourth one absconding

3

till   date,   relying   on  Ramesh   Babulal   Doshi   vs.   State   of

Gujarat,1996 (9) SCC 225,  Dhanna   vs.   State   of  M.P. with

Kanhiyalal and another vs. State of M.P., 1996(10) SCC 79,

and  Ghurey  Lal   vs.  State  of  Uttar  Pradesh, 2008(10) SCC

450, submitted that in an appeal against acquittal if two views

are   possible,   the   benefit   of   doubt   should   be   given   to   the

accused.   It was submitted that stab and incised injuries were

not possible by a steel rod or iron pipe.     The genesis of the

occurrence was therefore itself in doubt.   The acquittal by High

Court therefore calls for no interference.   The recovery of the

weapons from the place of occurrence is doubtful as the seizure

witnesses, PW­4 and PW­5 have both turned hostile.  There is

no FSL report with regard to the finger prints on the weapons of

assault to link them with the respondents.  The occurrence is

stated to have taken place in an open area near a bungalow and

not on the street where street lights may be available.  It was a

dark   night   with   no   moonlight   even.     Identification   of   the

respondents is therefore doubtful. Disputing that PW­2 was an

eye witness to the assault, it was submitted that he had run

away from the spot.  

4

8. PW­14 did not mention the presence of any stab or incised

injuries on the person of the deceased.   PW­1 acknowledged

that stab or incised injuries could not be caused by an iron rod.

In   view   of   the   variation   between   the   ocular   and   medical

evidence, the High Court rightly opined that the Doctor was in a

confused state of mind.  There was no motive and it was a mere

chance  meeting of  the  respondents  with  the  deceased.      In

absence of any specific allegations with regard to which of the

respondents assaulted in what manner, and also considering

that respondent nos. 1 to 3 have undergone approximately eight

and half years of custody, in the entirety, their conviction may

be altered to one under Section 304 Part II IPC, sentencing

them to the period already undergone.  

9. We   have   considered   the   submissions   on   behalf   of   the

parties and have been taken through the records. 

10. The occurrence took place at 2:30 am.  It is not in dispute

that   PW­2   who   was   accompanying   the   deceased   on   the

motorcycle, took him to the hospital at 2:45 am.  The deceased

was unconscious and in a precarious condition as deposed by

PW­14.  The FIR was lodged barely hours later by PW­2 at 5:15

5

am naming the respondents.  There was no time for the witness

to consider and ponder for naming the accused except to state

the truth.   PW­2 deposed that the respondents stopped them

near the bungalow of one Chimanbhai Patel.   He was pushed

down by Dipak who hit the deceased on his head with the iron

pipe.     Thereafter   all   the   respondents   started   assaulting   the

deceased with iron pipes, sticks and iron rods.  Thereafter, the

witness ran away and returned with his friends.  The credibility

of PW­2 as an eye witness has not been doubted by the High

Court. 

11. The respondents were not strangers, but well known to

PW­2 and the deceased.  PW­12 deposed that the respondents

had threatened the deceased earlier also, and were compelling

him to withdraw the case and would also demand money from

him because of which the deceased had shifted from the locality

where they all they lived earlier. 

12. There is evidence about the availability of light near the

place of occurrence.  Even otherwise, that there may not have

been any source of light is hardly considered relevant in view of

the fact that the parties were known to each other from earlier.

6

The criminal jurisprudence developed in this country recognizes

that the eye sight capacity of those who live in rural areas is far

better than compared to the town folks.  Identification at night

between   known   persons   is   acknowledged   to   be   possible   by

voice, silhouette, shadow, and gait also.  Therefore, we do not

find much substance in the submission of the respondents that

identification was not possible in the night to give them the

benefit of doubt.

13.  In Nathuni Yadav vs State of Bihar, (1998) 9 SCC 238, 

with regard to identification in the dark, this court observed:

“9…. Even assuming that there was no moonlight

then, we have to gauge the situation carefully. The

proximity at which the assailants would have confronted with the injured, the possibility of some light

reaching there from the glow of stars, and the fact

that the murder was committed on a roofless terrace

are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and

above those factors, we must bear in mind the further fact that the assailants were no strangers to the

inmates   of   the   tragedy­bound   house,   the   eyewitnesses being well acquainted with the physiognomy

of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there

was possibility for making a wrong identification of

them. We are keeping in mind the fact that even the

assailants had enough light to identify the victims

whom   they   targeted   without   any   mistake   from

among those who were sleeping on the terrace. If the

7

light then available, though meagre, was enough for

the assailants why should we think that the same

light was not enough for the injured who would certainly   have   pointedly   focussed   their   eyes   on   the

faces of the intruders standing in front of them.”

14. PW­10   was   an   independent   witness.   Neither   has   his

presence   been   doubted   nor   his   impartiality   been   suspected.

Sitting at the gate, he saw two persons on a motorcycle passing

through the ground.   Four persons stopped them and started

beating the person who was driving the motorcycle while the

pillion rider ran away and then returned with four to five people.

The assailants had pipes, sticks and an iron rod with a turn.

The assailants ran away throwing the weapons of assault at the

place of occurrence. The witness has corroborated PW­2 in all

material particulars. 

15. PW­1, the Doctor who conducted the post­mortem, found

the following injuries on the person of the deceased:

   “…(vi) 2.5 cm long cut wound on middle of right ear.

(vii)   One   stitched   wound   one   centimeter   below   the

injury No. 5, its size was 8 cm x .25 cm, it was stitched

with black thread.

(viii) One cut wound going oblique from lip to ear, its

size was 1.5 cm, it was deep upto muscle.

(ix) One cut wound, 2 cm below the right lip going

towards backside of ear, its size was 2.5 cm, it was

deep upto muscle.

(x) One stitched oblique wound on right side of chin

going towards backside, its size was 3.5 cm x .25 cm,

8

it was stitched with black thread.

(xi) One stabbed wound on right occipital protuberance

(at middle of the backside of skull), its size was 1 cm

x .5 cm, it was deep upto muscles of scalp.

(xii) One stabbed wound on right hand at upper 1/3

and lower 2/3 level, its size was 2 cm x 1.5 cm, deep

upto   muscles,   both   the   edges   were   T   square   and

wound margin was sharp.

(xiii) One stabbed wound at 2.5 cm below injury No.2,

its size was 2.5 cm x 1 cm, deep up to muscles, both

the   edges   were   T­square   and   wound   margin   was

sharp.

(xiv) Innumerous cut wounds on middle of arm region

of right hand and cutting each other at outside, its size

was 15 cm x 20 cm.

(xv) One cut wound on douser aspect of right forearm

(towards outside), it was starting from right wrist and

going upwards, its length was 10 cm and was deep

upto muscles.

(xvi)   One   cut   wound   found   in   the   middle   of   right

forearm,   which   was   oblique   and   upward   on   the

anterior aspect, its size was 6.6 cm, it was deep upto

subcutaneous tissue.

(xvii) One cut wound on index finger of left hand, on

douser aspect near base of second and third finger, its

size was 4.5 cm, it was deep upto muscles.

(xviii) One cut wound on base of left thumb oblique on

palmer aspect i.e. on palm, its size was 3.5cm, it was

deep upto muscles.

(xix) One cut wound found on base of left index. finger,

its size was 2.5 cm and was deep upto muscles.”

He deposed that the iron rod used for assault, shown to him,

had a turn and that injuries nos. 1 to 4 caused on the head

were possible by it.  In his cross­examinations, he deposed that

the sharp cutting injuries were possible with the iron rod which

had a turn.

9

16. The recovery of the weapons of assault from the place of

occurrence stands established from the evidence of PW­4 and

PW­5 who had not denied their signatures on the seizure memo

and neither have they said that they were coerced into signing

the   seizure   memo.     Cumulatively,   in   view   of   the   nature   of

evidence available, the absence of any FSL report with regard to

finger prints on the seized weapons is considered irrelevant.

17. Ocular evidence is considered the  best  evidence  unless

there are reasons to doubt it.  The evidence of PW­2 and PW­10

is unimpeachable.  It is only in a case where there is a gross

contradiction between medical evidence and oral evidence, and

the medical evidence makes the ocular testimony improbable

and rules out all possibility of ocular evidence being true, the

ocular evidence may be disbelieved.  In the present case, we find

no inconsistency between the ocular and medical evidence.  The

High Court grossly erred in appreciation of evidence by holding

that muddamal no.5 was a simple iron rod without noticing the

evidence that it had a sharp turn edge. 

18. The aforesaid discussion leads us to the conclusion that

the acquittal by the High Court is based on misappreciation of

10

the evidence and the overlooking of relevant evidence thereby

arriving at a wrong conclusion.  It is not a case where two views

are   possible   or   the   credibility   of   the   witnesses   is   in   doubt.

Neither is it a case of a solitary uncorroborated witness.  The

conclusion of the High Court is therefore held to be perverse

and   irrational.     The   acquittal   is   therefore   held   to   be

unsustainable and is set aside.   In the nature of the assault,

Section 304 Part II, IPC has no application.  The conviction of

respondent nos. 1 to 4 by the Trial Court is restored.

19. The   respondent   nos.   1   to   3   are   directed   to   surrender

within two weeks to serve out the remaining period of their

sentence.  The Director General of Police, State of Gujarat shall

take all necessary steps to apprehend the absconding, fourth

accused and bring him to justice.  A report shall be submitted

to this Court in this regard within a period of 8 weeks when the

present matter shall be listed for that limited purpose.

20.  The appeal is allowed.

.............................J.

(NAVIN SINHA)

…..........................J.

                    (R. SUBHASH REDDY)

NEW DELHI,

July 26, 2021

11

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?

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.

1

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

5

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

7

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.

8

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;

10

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

14

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