Ad hoc appointments cannot be deemed to be substantive appointments: SC

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.(Para.3.2 ix)

RASHI MANI MISHRA AND OTHERS V. STATE OF UTTAR PRADESH AND OTHERS

CIVIL APPEAL NO. 10788 OF 2016.

Decided on July 28, 2021.

The two-judge bench comprising Justice Dr Dhananjaya Y Chandrachud and Justice M.R Shah decided the present case. The Supreme Court allowed the appeal overruling the impugned judgement passed by the High Court.

In 1985, 108Assistant Engineers were given ad hoc appointments after an advertisement. On 14.12.1989 under the provisions of the Uttar Pradesh Regularisation of Ad hoc Appointments their services were regularised. The respective ad hoc employees were governed by the Ad hoc Appointments Rules, 1979. As part of the final seniority list prepared on 14.12.2001, the services rendered by the Assistant Engineers on an ad hoc basis were not considered for purposes of seniority, and their seniority was determined from their regularization date of 14.12.1989.

One Narendra Kumar Tripathi filed the petition challenging the final seniority list, stating that the services rendered by him as ad hoc prior to 14.12.1989 shall also be counted for the purpose of seniority. The High Court allowed the appeal directing to fix the issue of his seniority from the date of his initial appointment in the Work Charge Establishment of the department on 18.01.1983. Subsequently various writ petitions were filed before the High Court. In one such case, filed by Arjun Ravi Das, the Division Bench on its judgment dated 27.02.2004, dismissed the petition. With difference of view in two petitions, both were referred to the full bench and they dismissed all the petition 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.

Narendra Kumar Tripathi filed a Special Leave Petition before the Supreme Court, which overruled the order passed by the High Court 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. With the order passed by the Supreme Court, the State Government issued an office order dated 31.12.2015 to publish a seniority list. Another writ petition was filed before the High Court stating that they were downgraded in the seniority list published on 22.03.2016 and praying before the high court to set aside the list published on 22.03.16 and consider the list published on 14.12.2001. The High Court dismissed the petition. Aggrieved by the decision of the High Court, the appeal was before the Supreme Court.

S/Shri Anil Kumar Sangal and Rishabh Sancheti, learned Advocates have appeared on behalf of the respective appellants argued 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. They stated that the courts have consistently taken the view that the 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. They argued that the services rendered as ad hoc and prior to regularisation are not required to be counted for the purpose of seniority. Further they stated 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.

Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocates appearing on behalf of the State of Uttarakhand have fully supported the appellants.

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)(Para.3.2 ix).

The Court stated that, “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 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.” (Para 8)

The Court further stated that, “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 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.” (Para 9)

The Court concluded by stating that, “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 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.” (Para 10)

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Utkarsh Kumar Jayaswal