Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 387

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
Rashi Mani Mishra and others - Appellants
Versus
State of Uttar Pradesh and others - Respondents
Civil Appeal No.10788 of 2016 With Civil Appeal No.2898 of 2021 (Arising out of SLP(C) No.32631 of 2018), Civil Appeal No.4427 of 2021 (Arising out of SLP(C) No.29294 of 2018), Civil Appeal No.4428 of 2021 (Arising out of SLP(C) No.682 of 2019), Civil Appeal No.4429 of 2021 (Arising out of SLP(C) No.926 of 2019)
Decided On : 28-07-2021

Advocates appeared:
For the Appellant(s) :Rajiv Nanda, Rachna Gandhi, Anil Kumar Sangal, Siddharth Sangal, Nilanjani Tandon, Rishabh Sancheti, Padma Priya, Anchit Bhandari, Shreya Gupta, K. Paari Vendhan, Advocates
For the Respondent(s):Chandra Bhushan Prasad, Vanshaja Shukla, Manoj Swarup, Neelmani Pant, Mukul Kumar, Tanmaya Agarwal, Wrick Chatterjee, Anil Kumar Sangal, Siddharth Sangal, Nilanjani Tandon, Ankit Swarup, Advocates

IMPORTANT POINT
Seniority is to be counted from date of substantive appointment and substantive appointment means, an appointment, not being an ad hoc appointment, on a post in cadre of service, made after selection in accordance with service rules relating to that service. There is a difference and distinction between substantive vacancy and substantive appointment.

Headnote:
Service Law – Seniority – Computation of – Ad hoc appointments cannot be deemed to be substantive appointments – Persons whose services have been regularised and they are appointed after recommendations by Selection Committee as per 1979 Rules, their seniority shall be only from date of order of appointment after selection in accordance with 1979 Rules – Seniority is to be counted from date of substantive appointment and substantive appointment means, an appointment, not being an ad hoc appointment, on a post in cadre of service, made after selection in accordance with service rules relating to that service – There is a difference and distinction between substantive vacancy and substantive appointment – Seniority is to be counted only from date of regularisation and services rendered by ad hoc appointees prior thereto, i.e., from date of their initial appointments in year 1985 is not to be counted for the purpose of seniority, vis-à-vis, direct recruits appointed prior to 1989. [Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 – Rules 4 to 7] (Paras 5.2, 7, 7.1 and 10)
Facts of the case:
Dispute in all these appeals relates to determination of 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?
Findings of Court:
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.
Result : Appeals allowed.

JUDGMENT :

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 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 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 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

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2021 Supreme(SC) 387

Cases Referred (15)