Ad-hoc service not to be counted for the purpose of seniority

The Supreme Court in its recent judgment delivered on 28.07.2021 in Rashi Mani Mishra and others vs. State of Uttar Pradesh, Civil Appeal 10788/2016 has held that the services rendered by the ad hoc appointees prior to their regularization shall not be counted for the purposes of seniority vis a vis the direct recruits.

The matter pertained to the dispute of seniority of the Assistant Engineers working in the Rural Engineering Department, Uttar Pradesh.

Brief time line of the case: -

1. 1985: 108 Assistant Engineers were appointed in 1985 in ad hoc capacity to temporary posts of Assistant Engineer in Rural Engineering Service department after an advertisement was issued. The relevant office memo dated 29.01.1985 stated that candidates will have no right to claim seniority in future on the basis of said appointment. Till 1979, the regularisation of the ad hoc appointments was as per Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 [hereinafter as "1979 Rules"]. The Rules came to be extended from time to time. The aforesaid appointments were therefore regulated under the 1979 Rules. The 1979 Rules came to be extended by the 1989 Rules (infra).

2. 23.02.1989: The services of these 108 Engineers were regularized under the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 [hereinafter as "1989 Rules"] vide Notification dated 23.02.1989.

3. One Narendra K Tripathi filed a writ petition before the declaration of final seniority list challenging the Order rejecting his representation as per which his ad hoc services prior to 14.12.1989 should have been counted for the purposes of seniority. The said writ was allowed with a direction to fix his seniority from the date of his initial appointment.

4. 14.12.2001: The final seniority list was prepared. Services in the ad hoc capacity were not counted for the purposes of seniority. Their seniority was determined from the date of their regularisation i.e. on and from 23.02.1989.

5. Several Writ Petitions were filed before the High Court challenging the Seniority List dated 14.12.2001.

6. The Writ Petition filed by one Arjun Das who was also an ad hoc appointee was dismissed by the Allahabad High Court.

7. Since there was a conflict between two division benches, the matter was referred to Full bench of the Allahabad High Court. The Full bench observed that ad hoc services rendered after appointment made dehors the rules can not be counted for the purposes of seniority. The Writ Petitions were dismissed and the seniority list was not disturbed.

8. Narendra K Tripathi filed a SLP before the Supreme Court challenging the decision dated 10.12.2004 rendered by the Full bench. By a judgment dated 07.04.2015 a two judge bench in Civil Appeal 3348/2015 allowed the appeal and held that the ad hoc services can be counted for the purposes of seniority. The same has to be counted from the date of their initial appointment and not from the date of their regularisation. The State was directed to re-determine the seniority after hearing the affected persons. The Court however clarified that the benefit of re-determination of seniority at that stage would not disturb holding of posts by any incumbent and except for the benefit in pension, other benefits would only be given on notional basis.

9. 22.03.2016: As per the directions of the Apex Court, the seniority was re-determined.

10. Since the present writ petitioners were downgraded in the seniority list, they challenged the 22.03.2016 seniority list before the High Court and prayed for restoration of the seniority list dated 14.12.2001.

11. The Allahabad High Court vide the impugned order held that the ad hoc services shall also be counted for the purpose of seniority, meaning thereby that their services should be considered from the date of their initial appointment as ad hoc. The High Court placed heavy reliance on Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi, reported in (2015) 11 SCC 80 [hereinafter as “Narendra K Tripathi’s case”].

Taking a contrary view from the Narendra K Tripathi’s case, the Supreme Court held that the 1976 rules prescribed the conditions under which the ad hoc services of any person can be regularised. It provided that for the purposes of regularisation, the appointing authority shall constitute a selection committee and thereafter the appointing authority shall prepare an eligible list of candidates arranged in order of seniority.

The Court held that substantive appointment would be when they are appointed as per rules, their names are forwarded by the Selection Committee and their services regularised as per the 1979 Rules. The Rule 7 therein specifically provided that a person appointed as per 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 provided 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 persons under the 1979 Rules. In the present case such regular appointment could only be from 23.02.1989.

The Court held that the services rendered by the ad hoc appointees prior to their regularisation as per the 1979 Rules shall not be counted for the purposes of seniority vis a vis the direct recruits who were appointed prior to the 1989.

It is relevant to mention here that the issue of determination of seniority among the Assistant Engineers had been adjudicated earlier in the matter of Narendra K Tripathi’s case. The writ petitioner in the present matter though were not made parties therein. The said decision was held to be per incurium the decisions already rendered in the cases of Santosh Kumar and Others v. G.R. Chawla and others, reported in (2003) 10 SCC 513 & State of Uttarakhand v. Archana Shukla, reported in (2011) 15 SCC 194. The said decisions were on interpretation of the 1979 Rules w.r.t the seniority of the candidates wherein it has been held that ad hoc services prior to regularisation would not be counted for the purposes of seniority. The Court further held that in Narendra K Tripathi’s case, the two-judge bench even though dealing with the same issue did not consider 1979 Rules in totality and in particular Rule 7 has been considered only partially.

The Court further distinguished the case of Direct Recruits Class II Engg Officers Association vs. State of Maharashtra, (1990) 2 SCC 715 by observing that in the said judgement it was observed that “where initial appointment was made only ad hoc-as a stop gap arrangement and not according to the rules, the officiation in such a post cannot be taken into account for considering the seniority.” In the said case the appointments were made to a post according to rule but as ad hoc and were subsequently confirmed. The Court had therefore held that where appointments were made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation.

However, in the present case, it was not a case of confirmation but the ad-hoc services being regularised in 1989 by following the due procedure as required under the 1979 Rules i.e. their names were recommended by a Selection Committee duly constituted. The Court held that only these appointments can be said to be “substantive appointments” since they were made in accordance with the 1979 Rules.

The Court held that the seniority therefore has to be calculated from 23.02.1989. In light of the above facts and circumstances, the Apex Court allowed the appeal and quashed the seniority list dated 22.03.2016 and restored the seniority list dated 14.12.2001.