Rashi Mani Mishra and Others vs State of Uttar Pradesh and Others

HELD: 1.1 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). It appears that thereafter within a period of four years from their appointment as ad hoc, their services came to be regularised under the 1979 Rules, extended from time to time and they were appointed and their services were regularised vide notification dated 14.12.1989. At this stage, it is required to be noted that their services were regularised vide notification dated 14.12.1989 as per the 1979 Rules, as extended in 1989. Therefore, the contesting respondents-ad hoc appointees, having taken the benefit of the 1979 Rules were bound by the conditions mentioned in the 1979 Rules. 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. 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 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 instant case, from 14.12.1989. [Para 7][455-D-F; 456-B-D; 457-G-H; 458-A-F]

1.2 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 Engineering (Group ‘B’) Service Rules, 1993 came to be enacted. 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 instant case, Seniority Rules clearly provide that seniority in any category or cadre post shall be determined from the date of order of “substantive appointment”. 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, is very clear and the service rendered as ad hoc cannot be treated as “substantive appointment”. [Para 7.1][458-G; 459-C-E]

1.3 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, 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 re- determination 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][459-F-H; 460-A]

1.4 In the instant 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. 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”. [Para 9][460-D-E]

1.5 In the instant 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. 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 14.12.1989, 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][460-H; 461-A-E]

1.6 The impugned judgments and orders passed by the High Court of Judicature at Allahabad and judgments and orders passed by the High Court of Uttarakhand are 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 14.12.1989 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 14.12.1989 is hereby restored. [Para 11] [461-E-G]

Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi (2015) 11 SCC 8 – per incuriam.

Dr. Chandra Prakash and others v. State of U.P. (2002)

10 SCC 710 : [2002] 4 Suppl. SCR 574; Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra (1990) 2 SCC 715:[1990] 2 SCR 900; Rudra Kumar Sain v. Union of India (2000) 8 SCC 25:[2000] 2 Suppl. SCR 573 – distinguished.

Santosh Kumar and others v. G.R. Chawla and others (2003) 10 SCC 513; State of Uttarakhand v. Archana Shukla (2011) 15 SCC 194: [2011] 15 SCR 615;

Debabrata Dash v. Jatindra Pradsad Das (2013) 3 SCC 658:[2013] 2 SCR 331; P.P.C. Rawani (Dr.) and others v. Union of India (2008) 15 SCC 332: [2008] 16 SCR 61; R.K. Mobisana Singh v. Kh. Temba Singh (2008) 1 SCC 747:[2007] 13 SCR 434; Union of India v. Satish Chandra Mathur (2001) 10 SCC 185; Keshav Chandra Joshi v. Union of India 1992 Supp. (1) SCC 272: [1990]

2 Suppl. SCR 573; P.D. Aggarwal v. State of U.P. (1987)

3 SCC 622:[1987] 3 SCR 427; State of West Bengal v. Aghore Nath Dey (1993) 3 SCC 371:[1993] 2 SCR 919; Chandra Prakash and others v. State of U.P. (2002) 4 SCC 234:[2002] 2 SCR 913; U.P. v. Dr. R.K. Tandon (1995) 3 SCC 616: [1995] 2 SCR 995; State of U.P. v. Dr. R.K. Tandon (1996) 10 SCC 247:[1996] 4 Suppl. SCR 149 – Referred to