RASHI MANI MISHRA AND OTHERS versus STATE OF UTTAR PRADESH AND OTHERS

RASHI MANI MISHRA AND OTHERS

STATE OF UTTAR PRADESH AND OTHERS

(Civil Appeal No. 10788 of 2016)

JULY 28, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M.R. SHAH, JJ.]

Service law: Seniority – Determination of – Counting of adhoc services –Held: Seniority is to be counted only from the date oftheir regularisation and the services rendered by the ad hocappointees prior thereto, i.e., from the date of their initialappointments is not to be counted for the purpose of seniority – Onfacts, Assistant Engineers given ad hoc appointment in the year 1985– No consultation with the UPSC and as such there was norecommendation by the UPSC – Regularisation of services as perthe 1979 Rules in the year 1989 and thereafter they were selectedby the Selection Committee constituted under the 1979 Rules–Assuch their substantive appointments can be said to be only from thedate of their regularisation/appointment made in the year 1989 –Thus, the seniority is to be counted only from 14.12.1989, the dateof their regularisation– Services rendered by the ad hoc appointeesprior thereto, i.e., from the date of their initial appointments in theyear 1985 is not to be counted for the purpose of seniority, vis-à-vis, the direct recruits appointed prior to 1989 – Uttar PradeshRegularisation of Ad hoc Appointments (on posts within the purviewof the Public Service Commission) Rules, 1979 – Uttar PradeshRegularisation of Ad hoc Appointments (on posts within the purviewof the Public Service Commission) (Second Amendment) Rules, 1989– Uttar Pradesh Rural Engineering (Group ‘B’) Service Rules, 1993– Uttar Pradesh Government Servants’ Seniority Rules, 1991.

Allowing the appeals, the Court

HELD: 1.1 The respective ad hoc appointees were initiallyappointed in the year 1985 vide office memo dated 12.06.1985.They were appointed on the basis of the recommendations of theSelection Committee constituted for ad hoc appointment vide

DEF

AG.O. No. 1033/84/38-1- 3532/84 dated 29.01.1985. They wereappointed on ad hoc basis on the temporary post of AssistantEngineer in Rural Engineering Service Department. In the saidoffice memo, it was specifically mentioned that the candidateswill have no right to claim seniority in future on the basis of thesaid order of appointment (as ad hoc appointee). It appears thatBthereafter within period of four years from their appointment asad hoc, their services came to be regularised under the 1979Rules, extended from time to time and they were appointed andtheir services were regularised vide notification dated 14.12.1989.At this stage, it is required to be noted that their services wereCregularised vide notification dated 14.12.1989 as per the 1979Rules, as extended in 1989. Therefore, the contestingrespondents-ad hoc appointees, having taken the benefit of the1979 Rules were bound by the conditions mentioned in the 1979Rules. Even it is not the case on behalf of the contesting ad hocappointees that they are not governed by the 1979 Rules. RulesD1979 provide for regularisation of ad hoc appointees. Thus, asper the 1979 Rules, any person who was directly appointed on adhoc basis and continued in service and possessed requisitequalifications prescribed for regular appointment at the time ofsuch ad hoc appointment and has completed three yearsEcontinuous service shall be considered for regular appointmentin permanent or temporary vacancy as may be available on thebasis of his record and suitability before any regular appointmentis made in such vacancy in accordance with the relevant servicerules or order. It further provides that for the purpose ofregularisation, the appointing authority shall constitute SelectionFCommittee and thereafter the appointing authority shall preparean eligibility list of candidates, arranged in order of seniority, Thatthereafter the Selection Committee shall prepare the list ofselected candidates and the names in the list being arranged inthe order of seniority and forward to the appointing authority andGonly thereafter the appointing authority shall make an appointmentfrom the list prepared under sub-ule (6) in the order in whichtheir names stand in the list. As per rule 6, such appointmentswere 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 SelectionCommittee constituted under sub-rule 3 of Rule 4 of the 1979Rules. Therefore, “substantive appointments” can be said to beonly when they are appointed and their names are forwarded bythe Selection Committee and their services are regularised asper the 1979 Rules. Rule 7 of the 1979 Rules, as such, clinchesthe issue. It specifically provides that person appointed underthe 1979 Rules shall be entitled to seniority only from the date oforder of appointment after selection in accordance with the 1979Rules. It also further provides that in all cases they shall be placedbelow the persons appointed in accordance with the relevantservice rules, or as the case may be, the regular prescribedprocedure, prior to the appointment of such person under the1979 Rules. Therefore, as per the 1979 Rules, the persons whoseservices have been regularised and they are appointed after therecommendations by the Selection Committee as per the 1979Rules, their seniority shall be only from the date of order ofappointment 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 onad hoc basis on temporary posts nor at the time when theirservices were regularised in the year 1989, the service rules forGroup ‘B’ were in force. In the year 1993, Uttar Pradesh RuralEngineering (Group ‘B’) Service Rules, 1993 came to be enacted.As per Rule 21 of the 1993 Rules, the seniority of personssubstantively appointed to post in the service shall be determinedin accordance with the Uttar Pradesh Government Servants’Seniority Rules, 1991, as amended from time to time. Even asper the Service Rules, 1993, “substantive appointment” meansan appointment, not being an ad hoc appointment, on post inthe cadre of the service….. As per Seniority Rules, 1991, whichalso defines the “substantive appointment” as per rule 4(h), theseniority shall be counted only from the date of their “substantiveappointment”. In the instant case, Seniority Rules clearly providethat seniority in any category or cadre post shall be determinedfrom the date of order of “substantive appointment”. Ad hocappointments cannot be deemed to be substantive appointments.

[2021] 6 S.C.R.

AEven the definition of “substantive appointment” under theService Rules, 1993 and the Seniority Rules, 1991, is very clearand the service rendered as ad hoc cannot be treated as“substantive appointment”. [Para 7.1][458-G; 459-C-E]

1.3 On fair reading of the 1979 Rules, extended from timeBto time; initial appointment orders in the year 1985 and thesubsequent order of regularisation in the year 1989 of the ad hocappointees and on fair reading of the relevant Service Rules,namely Service Rules, 1993 and the Seniority Rules, 1991, theservices rendered by the ad hoc appointees prior to theirregularisation as per the 1979 Rules shall not be counted for theCpurpose of seniority, vis-à-vis, the direct recruits who wereappointed prior to 1989 and they are not entitled to seniorityfrom the date of their initial appointment in the year 1985. Theresultant effect would be that the subsequent re- determinationof the seniority in the year 2016 cannot be sustained which wasDconsidering the services rendered by ad hoc appointees prior to1989, i.e., from the date of their initial appointment in 1985. Thiscannot be sustained and the same deserves to be quashed andset aside and the seniority list of 2001 counting the servicesrendered by ad hoc appointees from the date of their regularisationin the year 1989 is to be restored. [Para 8][459-F-H; 460-A]E

1.4 In the instant case, it is not the case of confirmation ofthe service of ad hoc appointees in the year 1989. In the year1989, their services are regularised after following due procedureas required under the 1979 Rules and after their names wererecommended by the Selection Committee constituted under theF1979 Rules. The appointments in the year 1989 after their nameswere recommended by the Selection Committee constituted asper the 1979 Rules can be said to be the “substantiveappointments”. [Para 9][460-D-E]

1.5 In the instant case when the ad hoc appointees wereGappointed in the year 1985, there was no consultation with theUPSC and as such there was no recommendation by the UPSC.Their services came to be regularised as per the 1979 Rules andafter they were selected by the Selection Committee constituted

under the 1979 Rules, which specifically provides that for thepurpose of regularisation of ad hoc appointments, the appointingauthority shall constitute Selection Committee and consultationwith the Commission shall not be necessary. When the ad hocappointees were appointed in the year 1985, they were appointedon the basis of the recommendations of the Selection Committeeconstituted for ad hoc appointments and when subsequently theirservices were regularised and they were appointed in the year1989, they were appointed by the order of Governor. This is oneadditional ground to hold that their substantive appointments canbe said to be only from the date of their regularisation/appointmentmade in the year 1989 after their names were recommended bythe Selection Committee constituted under the 1979 Rules andtheir services were regularised as per the 1979 Rules afterfollowing the procedure as required under the 1979 Rules, i.e.,in the year 1989. Therefore, their seniority is to be counted onlyfrom 14.12.1989, the date of their regularisation and the servicesrendered by the ad hoc appointees prior thereto, i.e., from thedate of their initial appointments in the year 1985 is not to becounted for the purpose of seniority, vis-à-vis, the direct recruitsappointed prior to 1989. [Para 10][460-H; 461-A-E]

1.6 The impugned judgments and orders passed by the HighCourt of Judicature at Allahabad and judgments and orders passedby the High Court of Uttarakhand are quashed and set aside.The re-determination of the seniority and the revised senioritylist dated 22.03.2016 counting the services of the ad hocappointees prior to 14.12.1989 and counting the services as adhoc from 12.06.1985 for the purpose of seniority is hereby quashedand set aside and the final seniority list dated 14.12.2001 fixingthe seniority considering the services rendered by ad hocappointees from 14.12.1989 is hereby restored. [Para 11][461-E-G]

Secretary, Minor Irrigation Department v. NarendraKumar 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 RecruitClass II Engg. Officers’ Assn. v. State of Maharashtra

(1990) 2 SCC 715:[1990] 2 SCR 900; Rudra KumarSain 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. ArchanaShukla (2011) 15 SCC 194: [2011] 15 SCR 615;Debabrata Dash v. Jatindra Pradsad Das (2013) 3 SCC658:[2013] 2 SCR 331; P.P.C. Rawani (Dr.) and othersv. Union of India (2008) 15 SCC 332: [2008] 16 SCR61; R.K. Mobisana Singh v. Kh. Temba Singh (2008) 1SCC 747:[2007] 13 SCR 434; Union of India v. SatishChandra Mathur (2001) 10 SCC 185; Keshav ChandraJoshi 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) 4SCC 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

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.10788of 2016.

From the Judgment and Order dated 19.09.2016 of the High Courtof Judicature at Allahabad in Writ-A No.18925 of 2016.

With

Civil appeal nos.2898, 4427, 4428 and 4429 of 2021.

Manoj Swarup, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya,Anchit Bhandari, Ms. Shreya Gupta, K. Paari Vendhan, Dr. Rajiv Nanda,Ms. Rachna Gandhi, Anil Kumar Sangal, Siddharth Sangal, NilanjaniTandon, Tanmaya Agarwal, Wrick Chatterjee, Ashutosh Kumar Sharma,Neelmani Pant, Ankit Swarup, Azim H. Laskar, Rajiv Narain, ChandraBhushan Prasad, Ms. Vanshaja Shukla, Ms. Mrigna Shekhar, MukulKumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. As common question of law and facts arise in this group ofappeals, all these appeals are decided and disposed of together by thiscommon judgment and order.

1.1 Civil Appeal Nos. 10788 of 2016 and Civil Appeal No. 2898 of2021 are with respect to the State of Uttar Pradesh and the rest of thecivil appeals are with respect to the State of Uttarakhand. It is to benoted that the relevant rules applicable to the employees of the State ofUttarakhand are as such para materia to the relevant rules applicableto the employees of the State of Uttar Pradesh.

1.2 The dispute in all these appeals relates to determination of theseniority of Assistant Engineers working in the Rural EngineeringDepartment and the common question involved in the present group of

Aappeals is, whether the services rendered as ad hoc prior to theirregularisation shall be counted for the purpose of seniority etc. or onlyfrom the date of their regularisation, regularising their services as perthe relevant regularisation rules?

1.3 At the outset, it is required to be noted that as such the HighBCourts have heavily relied upon the decision of this Court in the case ofSecretary, Minor Irrigation Department v. Narendra Kumar Tripathi,reported in (2015) 11 SCC 80 and have held that services rendered bythe respective Assistant Engineers as ad hoc shall also be counted forthe purpose of seniority, meaning thereby their seniority should beconsidered from the date of their initial appointment as ad hoc. TheCdecision 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 isDtreated as lead matter and the facts from the said civil appeal arenarrated and considered for the purpose of deciding these appeals.

2.1 108 Assistant Engineers were given ad hoc appointments inthe year 1985 after an advertisement had been issued. Their serviceswere subsequently regularised on 14.12.1989 under the provisions ofEthe Uttar Pradesh Regularisation of Ad hoc Appointments (on postswithin the purview of the Public Service Commission) (SecondAmendment) Rules, 1989 (hereinafter referred to as the ‘1989 Rules’).At this stage, it is required to be noted that earlier the regularisation ofad hoc appointments was as per the Uttar Pradesh Regularisation ofAd hoc Appointments (on posts within the purview of the Public ServiceFCommission) 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 weregoverned by the 1979 Rules, which came to be extended by the 1989Rules. final seniority list was prepared on 14.12.2001. The servicesGrendered by such Assistant Engineers on ad hoc basis were not countedfor seniority purposes and their seniority was determined from the dateof their regularisation on 14.12.1989.

2.2 One Narendra Kumar Tripathi filed the petition even beforethe declaration of the final seniority list challenging the order rejectinghis representation and according to him services rendered by him as adH

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 variouswrit petitions. Writ Petition filed by Narendra Kumar Tripathi (first case)came to be allowed by the High Court and direction was issued to fixhis seniority from the date of his initial appointment in the Work ChargeEstablishment of the department on 18.01.1983. At this stage, it is requiredto be noted that initially Narendra Kumar Tripathi was working in thedepartment on work charge basis from 18.01.1983 before he was givenan ad hoc appointment on 12.06.1985. As observed hereinabove, variousother writ petitions were also filed challenging the final seniority list dated14.12.2001.

2.3 Division Bench of the High Court of Judicature at Allahabad,vide judgment and order dated 27.02.2004, in the case of Arjun RaviDas filed by ad hoc Assistant Engineers for counting their servicesrendered on ad hoc basis prior to regularisation in 1989 for the purposeof seniority, dismissed the writ petition. Thereafter, several other writpetitions including the writ petition by Narendra Kumar Tripathi (secondcase) were filed and finding conflict between the two Division Benches,in Narendra Kumar Tripathi (first case) and Arjun Ravi Das, the writpetitions were referred to Full Bench. The issue before the Full Benchwas as to whether the services rendered on ad hoc basis prior toregularisation should be counted for determining the seniority. The FullBench observed that ad hoc services rendered after appointment madedehors the rules and without following any procedure prescribed by lawcannot be counted for the purpose of seniority, after having noted thatthe services of such ad hoc Assistant Engineers appointed in 1985 weresubsequently regularised by order dated 14.12.1989 and final senioritylist was prepared on 14.12.2001 which did not count the services renderedby the Assistant Engineers on ad hoc basis. Thereafter, the Full Benchdismissed all the petitions holding that the ad hoc services renderedprior 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 Special LeavePetition before this Court against the judgment rendered by the Full Benchon 10.12.2004. The Secretary, Minor Irrigation Department also filed aSpecial Leave Petition against the judgment rendered on 13.02.2003 inNarendra Kumar Tripathi (first case), taking the view that his seniorityshall be counted from the date of his initial appointment in the WorkCharge Establishment of department on 18.01.1983.The Special Leave

APetitions were subsequently re-numbered as Civil Appeal Nos. 3348/2015 and 3349/2015 respectively. Before this Court, submission wasmade on behalf of Narendra Kumar Tripathi that his seniority may becounted from 12.06.1985 and not from 18.01.1983 when he wasappointed on work charge basis.B2.5 By judgment and order dated 7.4.2015, two Judge Bench ofthis Court allowed the appeal preferred by Narendra Kumar Tripathi(supra) and set aside the judgment and order passed by the Full Benchof the High Court and held that services rendered by Assistant Engineersas ad hoc shall be counted for the purpose of seniority and their seniorityshould be counted from the date of their initial appointment and not fromCthe date of regularisation of their services, as per the 1979 Rules/1989Rules. This Court directed the State to redetermine the seniority afterhearing the affected parties within six months. At this stage, it is requiredto be noted that this Court also made it clear that benefit of re-determination of seniority at this stage will not disturb holding of posts byDany incumbent and except for the benefit in pension other benefits towhich the writ petitioner may be found entitled will be given only onnotional basis (paragraph 17 of the said judgment).

2.6 That thereafter, pursuant to the directions issued by this Courtin the case of Narendra Kumar Tripathi (supra), the State GovernmentEissued an office order dated 31.12.2015 notifying the tentative senioritylist and requiring all concerned to file objections, if any, within 15 days.That thereafter, after considering the objections filed, final senioritylist was published on 22.03.2016. The writ petitioners before the HighCourt 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 andFplaced at serial nos. 260, 208, 261, 274 & 262 in the seniority list dated22.03.2016. Therefore, the appellants herein – original writ petitionersfiled writ petition before the High Court praying for setting aside theseniority list dated 22.03.2016 and for reviving the earlier seniority listdated 14.12.2001. Mainly relying upon and following the decision of this

Court in the case of Narendra Kumar Tripathi (supra), by the impugnedGjudgment and order, the High Court has dismissed the writ petition, whichhas given rise to Civil Appeal No. 10788 of 2016. similar view hasbeen taken by the High Court of Judicature at Allahabad in the case ofBrijesh Kumar Dubey, appellant in Civil Appeal No. 2898/2021 and bythe High Court of Uttarakhand in the cases of Navin @ Naveen Chandra,HRakesh Kumar Tilara and others and Ramji Lal and others, appellant

and respondents in Civil Appeal Nos. 4427, 4428 and 4429 of 2021respectively.

2.7 Therefore, the short question which is posed for theconsideration of this Court is, whether the services rendered by theAssistant Engineers as ad hoc should be counted for the purpose ofseniority or their seniority shall be counted from the date of theirregularisation. In other words, the question posed for the considerationis, whether their services shall be counted from the date of their initialappointments as ad hoc and the service rendered as ad hoc prior toregularisation is to be counted for the purpose of seniority or not?

Submissions/Arguments:

3. S/Shri Anil Kumar Sangal and Rishabh Sancheti, learnedAdvocates have appeared on behalf of the respective appellants – originalwrit petitioners. Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learnedAdvocates have appeared on behalf of the State of Uttarakhand. ShriTanmaya Agarwal, learned Advocate has appeared on behalf of theState of Uttar Pradesh and Shri Manoj Swarup, learned Senior Advocate,along with other learned Advocates, have appeared on behalf of thecontesting respondents.

3.1 Learned counsel appearing on behalf of the respectiveappellants – original writ petitioners have vehemently submitted that therespective High Courts have clearly erred in relying upon and followingthe decision of this Court in the case of Narendra Kumar Tripathi(supra).

3.2 Shri Anil Kumar Sangal, learned Advocate appearing on behalfof the appellants – original writ petitioners has made the followingsubmissions:

i) that the decision of this Court in the case of Narendra KumarTripathi (supra), which has been relied upon and followed by therespective High Courts is decision per incuriam;

ii) that in the case of Narendra Kumar Tripathi (supra), twoJudge Bench of this Court did not consider the earlier binding decisionsof this Court, taking the view that seniority of ad hoc appointees is to bereckoned from the date of their substantive appointments and that adhoc services cannot be counted for the purpose of seniority;

iii) that the binding decisions of this Court in the case of SantoshKumar and others v. G.R. Chawla and others, reported in (2003) 10

ASCC 513 and another decision of this Court in the case of State ofUttarakhand v. Archana Shukla, reported in (2011) 15 SCC 194,interpreting the very 1979 Rules and taking the view that the servicesrendered as ad hoc and prior to their regularisation as per the 1979Rulesshall not be counted for the purpose of seniority were not brought to thenotice of this Court;B

iv) that in the case of Narendra Kumar Tripathi (supra), thisCourt did not even take into consideration the entire/whole Rule 7 of the1979 Rules. It is submitted that as per Rule 7 of the 1979 Rules, whichwere subsequently extended in 1989, under which the contestingrespondents came to be regularised specifically mentions that “a personCappointed under the 1979 Rules shall be entitled to seniority only fromthe date of order of appointment after selection in accordance with thesaid rules and shall, in all cases, be placed below the persons appointedin accordance with the relevant service rules, or as the case may be, theregular prescribed procedure, prior to the appointment of such persons”.It is submitted that this Court in Narendra Kumar Tripathi (supra)Dconsidered Rule 7 only up to the wording, “date of order of appointment”,however, did not consider the entire Rule 7 which specifically providesthat person appointed under these rules shall be entitled to seniorityonly from the date of order of appointment after selection in accordancewith these rules. It is submitted that if the aforesaid entire/whole ruleE7 would have been considered, in that case, the result would have beendifferent;v) that in any case binding decision of this Court in the case ofSantosh Kumar and others (supra), interpreting the very 1979 Rulesand taking the view that seniority of ad hoc appointees is to be reckonedfrom the date of their substantive appointments and that ad hocFappointments cannot be deemed to be “substantive appointments” andthat such appointees are to be placed below the direct recruits appointedprior to their regularisation was not brought to the notice of this Court inthe case of Narendra Kumar Tripathi (supra) and therefore the decisionin the said case is decision per incuriam. It is submitted that in theGcase of Santosh Kumar and others (supra), this Court also consideredthe Constitution Bench decision of this Court in the case of Direct RecruitClass II Engg. Officers’ Assn. v. State of Maharashtra, reported in(1990) 2 SCC 715, which came to be considered by this Court in thecase of Narendra Kumar Tripathi (supra), while taking contraryview than the view taken in the case of Santosh Kumar and othersH(supra);

vi) that in many earlier decisions, this Court including the threeJudge Benches have consistently taken the view that period of ad hocservice cannot be reckoned for the purposes of seniority, where initialappointment is only ad hoc and not according to the rules. Reliance isplaced upon the decisions of this Court in the cases of Debabrata Dashv. Jatindra Pradsad Das, reported in (2013) 3 SCC 658 (three JudgeBench); P.P.C. Rawani (Dr.) and others v. Union of India, reportedin (2008) 15 SCC 332 (three Judge Bench); R.K. Mobisana Singhv. Kh. Temba Singh, reported in (2008) 1 SCC 747; Santosh Kumarand others (supra); Union of India v. Satish Chandra Mathur,reported in (2001) 10 SCC 185; Keshav Chandra Joshi v. Union ofIndia, 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 consideredby this Court in the case of Narendra Kumar Tripathi (supra) andtherefore also the decision in the said case is per incuriam;

vii) that even otherwise and in the facts and circumstances of thecase, the services rendered as ad hoc and prior to regularisation are notrequired to be counted for the purpose of seniority. It is submitted thatthe private contesting respondents herein were appointed as AssistantEngineers in the year 1985 on ad hoc basis vide office memo dated12.06.1985 on the basis of recommendations of the SelectionCommittee constituted for ad hoc appointments; that they wereappointed on ad hoc basis on the temporary posts of AssistantEngineers in Rural Engineering Service Department; that in theappointment order itself it was specifically mentioned that thecandidates will have no right to claim seniority in future on thebasis of the date of this order of appointment (paragraph 2 of theoffice memo). It is submitted that thereafter their services came to beregularised as per the 1979 Rules/1989 Rules, vide notification/appointment order dated 14.12.1989. It is submitted that even in the saidnotification/appointment order, it was specifically observed that in RuralEngineering Service, the service rule of the Assistant Engineerhas not been framed till date and therefore the continuation shallbe made under the General Rules framed by the PersonalDepartment and in the cadre of Assistant Engineer Civil, theseniority along with the other officers shall be fixed later on. It issubmitted that the relevant 1979 Rules/1989 Rules under which theirservices were regularised specifically provided that person appointed

Aunder the 1979 Rules shall be entitled to seniority from the date of orderof appointment after selection in accordance with these rules, i.e., the1979 Rules. It is submitted that as per the 1979 Rules/1989 Rules, theservices of the ad hoc appointees were required to be regularised afterfollowing due procedure as per the 1979 Rules and only after the SelectionCommittee considers the cases of ad hoc appointees. It is submitted thatBonly thereafter and after their names are cleared by the SelectionCommittee constituted specifically under the 1979 Rules, “SubstantiveAppointments” are made;

viii) that thereafter the State Government framed the U.P.Government Servants Seniority Rules, 1991 (hereinafter referred to asCthe ‘1991 Rules’) and as per the said rules, the seniority shall bedetermined from the date of their “substantive appointments”. Itis submitted that the “substantive appointments” has been defined underthe 1991 Rules and means, an appointment not being an ad hoc appointmenton post in the cadre of service made after selection in accordanceDwith the service rules relating to that service. It is submitted that thereafterthe State Government framed the Uttar Pradesh Rural Engineering(Group ‘B’) Service Rules, 1993 (hereinafter referred to as the ‘1993Rules’), which govern the appellants – Assistant Engineers in RuralEngineering. The 1993 Rules which include the Assistant Engineers andeven as per the said rules “substantive appointments” means anEappointment not being an ad hoc appointment, on post in the cadre ofservice made after selection in accordance with the rules and if therewere no rules, in accordance with the procedure prescribed for the timebeing by executive instructions issued by the government. It is submittedthat as per the said 1993 Rules, “member of service” means personFsubstantively appointed under the said rules or the orders prior to thecommencement of the said rules to post in the cadre of service. It issubmitted that as per the 1993 Rules, as per clause 21, the seniority ofthe persons substantively appointed in the posts shall be determined inaccordance with the 1991 Rules, as amended from time to time;

Gix) that on conjoint reading of the aforesaid rules, it can be seenthat services rendered as ad hoc cannot be considered as “substantiveappointments” and on regularisation of their services under the 1979Rules/1989 Rules after they were selected by the Selection Committeeunder the 1979 Rules, their appointment can be said to be “substantiveappointments” and therefore their seniority is to be counted only fromHthe 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 forconsideration when this Court decided Narendra Kumar Tripathi(supra). It is submitted that even the appellants – original writ petitionerswere not before this Court and/or were not heard when this Court decidedNarendra Kumar Tripathi (supra);

x) that even as observed in paragraph 17 of the judgment in thecase of Narendra Kumar Tripathi (supra), the benefit of re-determination of the seniority will not disturb holding of the posts by anyincumbent. It is submitted that by re-determination of the seniority asper Narendra Kumar Tripathi (supra), the appellants herein – originalwrit petitioners are pushed below in the seniority list from serial nos.106, 109, 107, 122&108 to serial nos. 260, 208, 261, 274 & 262. It issubmitted therefore also the subsequent re-determination of the senioritylist in the year 2016 which was under challenge before the High Court iscontrary to the observations made by this Court in paragraph 17 inNarendra Kumar Tripathi (supra);xi) Making the above submissions, it is prayed to hold that in thefacts and circumstances of the case and considering the relevant rulesthe seniority of ad hoc appointees as Assistant Engineers shall be countedonly from the date of their regularisation of service as per the 1979Rules/1989 Rules and their initial service prior to their regularisation isnot to be counted for the purpose of seniority, by holding that only onregularisation of their services as per the 1979 Rules/1989 Rules, theycan be said to have been appointed on “substantive posts”.

3.3 Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocatesappearing on behalf of the State of Uttarakhand have fully supportedthe appellants – original writ petitioners and have submitted thatconsidering the applicable relevant rules and more particularly when thead hoc appointees’ services were regularised as per the 1979 Rules/1989 Rules, which specifically provide that the services rendered as adhoc shall not be counted for the purpose of seniority and the earlierbinding decisions of this Court interpreting the very Rules 1979 were notbrought to the notice of this Court when this Court decided NarendraKumar Tripathi (supra)., it is submitted that the services of the ad hocAssistant Engineers are to be counted for the purpose of their seniorityonly from the date of their regularisation in the year 1989 and not fromthe date of their initial appointment in the year 1985.

A3.4 Shri Tanmaya Agarwal, learned Advocate appearing on behalfof the State of Uttar Pradesh has, as such, not taken any specific standand has submitted that ultimately it is left to the Court. However, hassubmitted that the State of Uttar Pradesh has redetermined the seniorityin the year 2016 as per the directions issued by this Court in the case ofNarendra Kumar Tripathi (supra).B

4. Shri Manoj Swarup, learned Senior Advocate appearing onbehalf of some of the contesting respondents – ad hoc appointees hasvehemently submitted that in the present case re-determination of theseniority is pursuant to the directions issued by this Court in the case ofNarendra Kumar Tripathi (supra) and therefore no error has beenCcommitted by the respective States in re-determining the seniority listcounting the services rendered by ad hoc appointees prior to theirregularisation. It is submitted that the seniority list has been re-determinedconsidering the services rendered by the ad hoc appointees from thedate of their initial appointments. It is submitted that in the case ofDNarendra Kumar Tripathi (supra), the very 1979 Rules came to beinterpreted and considered by two Judge Bench of this Court andtherefore the issue has attained finality. It is further submitted that whiledeciding the case in the case of Narendra Kumar Tripathi (supra), thisCourt considered two earlier binding decisions of this Court in the caseof Direct Recruit Class II Engg. Officers’ Assn. (supra) and RudraEKumar Sain v. Union of India, reported in (2000) 8 SCC 25, takingthe view that the services rendered as ad hoc are to be counted/consideredfor the purpose of seniority. It is submitted that in the case of DirectRecruit Class II Engg. Officers’ Assn.(supra), Constitution Benchof this Court held that once an incumbent is appointed to post according

Fto rule, his seniority has to be counted from the date of his appointmentand not according to the date of his confirmation. It is submitted that inthe case of Rudra Kumar Sain (supra), another Constitution Bench ofthis Court observed and held that appointment of employee possessingstatutory qualifications to the promotional post after due consultation

with or approval of, the competent authority, though initially ad hoc, cannotGbe ignored in computing the length of service for determining inter seseniority between such promotees and direct recruits. It is submittedthat in the case of Rudra Kumar Sain (supra), this Court interpretedthe appointment as “ad hoc/fortuitous/stopgap” and thereafter observedand held as above. It is submitted that while deciding Narendra KumarHTripathi (supra), this Court considered the aforesaid two decisions and

also interpreted and considered the very 1979 Rules. It is submitted thatin the present case when the contesting respondents – ad hoc appointeeswere appointed in the year 1985, they were appointed after due selectionby the duly constituted Selection Committee. It is submitted that thereforeservices rendered by them as ad hoc are to be counted for the purposeof seniority.

4.1 Shri Manoj Swarup, learned Senior Advocate has also heavilyrelied upon the decision of this Court in the case of Dr. Chandra Prakashand others v. State of U.P., reported in (2002) 10 SCC 710. It issubmitted that in the aforesaid decision in the case of Dr. ChandraPrakash (supra), it is specifically observed and held that service renderedas temporary is to be considered for the purpose of seniority. Therefore,heavy reliance is placed upon the decision of this Court in the case ofDr. Chandra Praksh (supra).

4.2 Shri Manoj Swarup, learned Senior Advocate has also reliedupon 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 madein paragraph 17 in the case of Narendra Kumar Tripathi (supra) thatthe benefit of the redetermination of the seniority will not disturb holdingof posts by any incumbent, it is submitted that in the present case whilere-determining the seniority in the year 2016 pursuant to the directionsissued by this Court in the case of Narendra Kumar Tripathi (supra),holding of the posts by none of the appellants shall be disturbed. It issubmitted that pushing down in the seniority list is the necessaryconsequence of re-determination of the seniority counting the servicesrendered by ad hoc appointees from the date of their initial appointments.

4.4 Making the above submissions and heavily relying upon thedecisions 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 thecontesting respondents in other appeals have fully supported thesubmissions made by Shri Manoj Swarup, learned Senior Advocate.

Consideration:

5. We have heard the learned counsel for the respective partiesat 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 bythis Court in the case of Narendra Kumar Tripathi (supra). In thecase of Narendra Kumar Tripathi (supra), this Court after consideringthe very 1979 Rules held that the services rendered by ad hoc appointeesprior to their regularisation and services rendered by them from the dateBof their initial appointments is to be counted for the purpose of seniority.It is not in dispute that in the impugned judgments and orders, therespective High Courtshave solely followed the decision of this Court inthe case of Narendra Kumar Tripathi (supra). However, it is requiredto be noted that earlier to the decision of this Court in the case ofCNarendra Kumar Tripathi (supra), there were two binding decisionsof this Court interpreting the very Rules 1979 in the cases of SantoshKumar (supra) and Archana Shukla (supra), under which the servicesof 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 ofDthe Public Service Commission) Rules, 1979, two Judge Bench of thisCourt observed and held that the seniority of ad hoc appointees to bereckoned from the date of their “substantive appointments” and adhoc appointments cannot be deemed to be “substantiveappointments” and hence such appointees to be placed belowEthe direct recruits appointed prior to their regularisation. In thecase of Santosh Kumar (supra), this Court interpreted the very Rule 7of the 1979 Rules. This Court also considered the decision of this Courtin 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 CourtFconsidered Seniority Rules, 1991 (which shall be discussed hereinbelow)and the High Court took the view that rule of seniority clearly providesthat seniority in any category or cadre post shall be determined from thedate of the order of “substantive appointment”. Subsequently, in the caseof Archana Shukla (supra), while interpreting the pari materia rulesGapplicable to the State of Uttarakhand, it is observed and held that adhoc appointees whose services were regularised subsequently are notentitled to the benefit of their service under rule 7 from 1988 to 2004 (asad hoc appointees) for the purpose of seniority. In the said decision, theDrug Inspectors were initially appointed as ad hoc in the year 1988 andthereafter they were regularised in the year 2004 under the UttaranchalH

Regularisation of Ad hoc Appointments (Posts under the purview ofPublic Service Commission) Rules, 2002 (applicable in other appeals inthe present case to the respective State of Uttarakhand). They claimedthe 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 oninterpretation of Rule 7 and observed that they were appointed after theselection under the Regularisation Rules in the year 2004 and hencethey 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 1979Rules and 2002 Rules taking the contrary view were not brought to thenotice of this Court. Therefore, to that extent, the decision of this Courtin the case of Narendra Kumar Tripathi (supra) can be said to be perincuriam.Even from the judgment in the case of Narendra Kumar Tripathi(supra), it appears that the entire Rule 7 has not been considered. Rule7 of the 1979 Rules under which the contesting respondents – ad hocappointees came to be regularised specifically mentions that “a personappointed under these rules shall be entitled to seniority only from thedate of order of appointment after selection in accordance with theserules. However, this Court took into consideration the rule 7 only up tothe wording “date of order of appointment”. Therefore, if entire Rule 7is read, it can be seen that it specifically provides that “a person appointedunder these rules (1979 Rules) shall be entitled to seniority only from thedate of order of appointment after selection in accordance with theserules (1979 Rules).

5.1 Learned counsel appearing on behalf of the ad hoc appointeeshas then heavily relied upon the decision of this Court in the case of Dr.Chandra Prakash (supra), reported in (2002) 10 SCC 710. He hasalso placed reliance upon the Constitution Bench decision of this Courtin the case of Chandra Prakash and others v. State of U.P., reportedin (2002) 4 SCC 234. However, it is required to be noted that theConstitution Bench in its decision reported in (2002) 4 SCC 234, as such,did not opine anything on merits. Earlier, three Judge Bench of thisCourt referred the matter to the five Judge Bench, having found theconflict between the two Judge Bench decision of this Court in the caseof 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

AState of U.P. v. Dr. R.K. Tandon, reported in (1996) 10 SCC 247,with another decision of three Judges Bench. Thereafter, the ConstitutionBench 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 conflictwith the larger Bench judgment. That thereafter, the Constitution Benchobserved and held that therefore the writ petitions from which theBreference has arisen will have to be decided dehors the law laid downby those two judgments of the Bench of two judges. That thereafter thematters were again referred to the three Judge Bench and ultimatelycame to be decided by the judgment reported in (2002) 10 SCC 710upon which the reliance has been placed by Shri Manoj Swarup, learnedCSenior Advocate appearing on behalf of the ad hoc appointees.

5.2 Having gone through the entire judgment in the case of Dr.Chandra Prakash (supra) and the relevant rules which fell forconsideration before this Court and considering the facts in the saiddecision, we are of the opinion that the decision of this Court in the caseDof Dr. Chandra Prakash (supra), reported in (2002) 10 SCC 710shall not be applicable to the facts of the case on hand and the sameshall not be of any assistance to the ad hoc appointees in the presentcase. In the case before this Court, it was found that the doctorspossessing requisite qualifications under the rules were temporarilyappointed in U.P. PMS by Governor against substantive vacancies.EThey continued in such vacancies for long periods (from 1965-76 to1983) enjoying all the benefits of regular service and meanwhile alsoselected by PSC. Therefore, it was found that in such circumstances astheir initial appointments were not dehors the rules and therefore it washeld that such doctors were not within the purview of 1979 Rules. Even

Fthe Seniority Rules applicable in that case (Rule 18 of the 1945 Rules)were different than the Seniority Rules, 1991, applicable in the presentcase. 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 theGdate of the order of appointment in substantive vacancy providedthat if two or more candidates are appointed on the same datetheir seniority shall be determined according to the order in whichtheir names are mentioned in the order of appointment.”

As per Rule 18 of the 1945 Rules, seniority in the serviceHshall be determined by the date of the order of appointment in

substantive vacancy. However, as per Seniority Rules 1991, applicablein 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 apost in the cadre of service, made after selection in accordancewith the service rules relating to that service. There is differenceand distinction between the “substantive vacancy” and the “substantiveappointment”. Therefore, the decision of this Court in the case of Dr.Chandra Prakash (supra) shall not be applicable to the facts of the caseon hand.

6. Having observed and held that the decision of this Court in thecase of Narendra Kumar Tripathi (supra) is per incuriam, as thebinding decisions of this Court in the cases of Santosh Kumar (supra)and Archana Shukla (supra) were not brought to the notice of thisCourt when this Court decided Narendra Kumar Tripathi (supra) andhaving 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 caseon hand, we shall now consider the issue on merits independently.

7. The respective ad hoc appointees were initially appointed inthe year 1985 vide office memo dated 12.06.1985. They were appointedon the basis of the recommendations of the Selection Committeeconstituted 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 thetemporary post of Assistant Engineer in Rural Engineering ServiceDepartment. In the said office memo, it was specifically mentioned thatthe candidates will have no right to claim seniority in future on the basisof the said order of appointment (as ad hoc appointee). The relevantparagraph 2 of office memo dated 12.06.1985 reads as under:

“2. Their aforesaid appointments are being made on purely adhoc basis with the conditions that their services are liable to beterminated on one month’s notice or salary in lieu of notice or onavailability of candidates duly selected through the Public ServiceCommission to the above post and they will not have any claimfor regular appointment in future in the department on the basis ofhis ad hoc appointment. When the names of the selected generalcategory candidate and above reserved category candidates aremade available by the Selection Committee after arranging thenames of the general category candidates in the list and after

456SUPREME COURT REPORTS

Agiving them appointment, the inter-se seniority will be determined.The candidates will have no right to claim seniority in future onthe basis of the date of this order of appointment.”

It appears that thereafter within period of four years from theirappointment as ad hoc, their services came to be regularised under theB1979 Rules, extended from time to time and they were appointed andtheir services were regularised vide notification dated 14.12.1989. Atthis stage, it is required to be noted that their services were regularisedvide notification dated 14.12.1989 as per the 1979 Rules, as extended in1989. Therefore, the contesting respondents herein – ad hoc appointees,having taken the benefit of the 1979 Rules were bound by the conditionsCmentioned in the 1979 Rules. At this stage, it is also required to be notedthat even it is not the case on behalf of the contesting ad hoc appointeesthat they are not governed by the 1979 Rules. Rules 1979 provide forregularisation of ad hoc appointees. Rules 4 to 7, which are relevant forour purpose, read as under:

D“4. Regularization of adhoc appointments: (1) any persons who-

(i) was directly appointed on ad-hoc basis before January 1, 1977and is continuing in service as such on the date of commencementof these rules;

E(ii) possessed requisite qualifications prescribed for regularappointment at the time of such ad-hoc appointment; and

(iii) has completed or, as the case may be, after he has completedthree years continuous service shall be considered for regularappointment in permanent or temporary vacancy as may beFavailable on the basis of his record and suitability before any regularappointment is made in such vacancy in accordance with therelevant service rules or order.

(2) In making regular appointments under these rules, reservationsfor the candidates belonging to the Scheduled Castes, ScheduledTribes, Backward classes and other categories shall be made inGaccordance with the order of the Government in force at the timeof recruitment.

(3) For the purpose of sub-rule’ (1) the appointing authority shallconstitute Selection Committee and consultation with theCommission shall not be necessary.H

(4) The appointing authority shall prepare an eligibility list of thecandidates, arranged in order of seniority, as determined from thedate of order of appointment and if two or more persons areappointed together from the order in which their names arearranged in the said appointment order, the list shall be placedbefore the Selection Committee along with their character rollsand such other records, pertaining to them as may be considerednecessary to judge their suitability.

(5) The Selection Committee shall consider the cases of thecandidates on the basis of their records referred to in sub-rule(4).

(6) The Selection Committee shall prepare list of the selectedcandidates, the names in the list being arranged in order of seniorityand forward it to the appointing authority.

5. Appointments:- The appointing authority shall, subject to theprovisions of sub-rule (2) of rule 4, make appointments from thelist prepared under sub-rule (6) of the said rule in the order inwhich their names stand in the list.

6. Appointments be deemed to be under the relevant service rulesetc.:- Appointments made under these rules shall be deemed tobe under the relevant service rules, or orders, if any.

7. Seniority”- (1) person appointed under these rules shall beentitled to seniority only from the date of order of appointmentafter selection in accordance with these rules and shall, in all casesbe placed below the persons appointed in accordance with therelevant service rules, or as the case may be, the regular prescribedprocedure, prior to the appointment of such persons under theserules.

(2) If two or more persons are appointed together, their seniorityinter se shall be determined in the order mentioned in the order ofappointment.”

Thus, as per the 1979 Rules, any person who was directlyappointed on ad hoc basis and continued in service and possessed requisitequalifications prescribed for regular appointment at the time of such adhoc appointment and has completed three years continuous service shallbe considered for regular appointment in permanent or temporary vacancy

Aas may be available on the basis of his record and suitability before anyregular appointment is made in such vacancy in accordance with therelevant service rules or order. It further provides that for the purpose ofregularisation, the appointing authority shall constitute SelectionCommittee and thereafter the appointing authority shall prepare aneligibility list of candidates, arranged in order of seniority, That thereafterBthe Selection Committee shall prepare the list of selected candidatesand the names in the list being arranged in the order of seniority andforward to the appointing authority and only thereafter the appointingauthority 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,Csuch appointments were deemed to be under the relevant service rulesetc. Thus, the appointments on regularisation of their services are madeonly after their names are recommended by the Selection Committeeconstituted under sub-rule 3 of Rule 4 of the 1979 Rules. Therefore,“substantive appointments”can be said to be only when they areappointed and their names are forwarded by the Selection CommitteeDand their services are regularised as per the 1979 Rules. Rule 7 of the1979 Rules, as such, clinches the issue. It specifically provides that aperson appointed under the 1979 Rules shall be entitled to seniority onlyfrom the date of order of appointment after selection in accordance withthe 1979 Rules. It also further provides that in all cases they shall beEplaced below the persons appointed in accordance with the relevantservice 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 regularisedand they are appointed after the recommendations by the SelectionCommittee as per the 1979 Rules, their seniority shall be only from theFdate of order of appointment after selection in accordance with the 1979Rules, i.e., in the present case, from 14.12.1989.

7.1 It is also required to be noted that neither in the year 1985when they were appointed on ad hoc basis on temporary posts nor at thetime when their services were regularised in the year 1989, the serviceGrules for Group ‘B’ were in force. In the year 1993,Uttar Pradesh RuralEngineering (Group ‘B’) Service Rules, 1993 came to be enacted. Rules3(g), 3(i) and rule 21, which are relevant for our purpose, read as under:

“3 (g) “member of the Service” means person substantivelyappointed under these rules or the rules or order in force prior toHcommencement of these rules to post in the cadre of the Service;

3 (i) “substantive appointment” means an appointment, not beingan ad hoc appointment, on post in the cadre of the service madeafter selection in accordance with the rules and, if there were norules, in accordance with the procedure prescribed for the timebeing, by executive instructions issued by the Government;

21. Seniority – The seniority of persons substantively appointedto post in the service shall be determined in accordance with theUttar Pradesh Government Servants’ Seniority Rules, 1991, asamended from time to time.”

As per Rule 21 of the 1993 Rules, the seniority of personssubstantively appointed to post in the service shall be determined inaccordance with the Uttar Pradesh Government Servants’ SeniorityRules, 1991, as amended from time to time. Even as per the ServiceRules, 1993, “substantive appointment” means an appointment, not beingan ad hoc appointment, on post in the cadre of the service….. As perSeniority 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 clearlyprovide that seniority in any category or cadre post shall be determinedfrom the date of order of “substantive appointment”. As observed andheld by this Court in the case of Santosh Kumar (supra), ad hocappointments cannot be deemed to be substantive appointments. Eventhe definition of “substantive appointment” under the Service Rules, 1993and the Seniority Rules, 1991, referred to hereinabove, is very clear andthe service rendered as ad hoc cannot be treated as “substantiveappointment”.

8. The sum and substance of the above discussion would be thaton fair reading of the 1979 Rules, extended from time to time; initialappointment orders in the year 1985 and the subsequent order ofregularisation in the year 1989 of the ad hoc appointees and on fairreading of the relevant Service Rules, namely Service Rules, 1993 andthe Seniority Rules, 1991, our conclusion would be that the servicesrendered by the ad hoc appointees prior to their regularisation as per the1979 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 notentitled to seniority from the date of their initial appointment in the year1985. The resultant effect would be that the subsequent re-determinationof the seniority in the year 2016 cannot be sustained which was consideringthe services rendered by ad hoc appointees prior to 1989, i.e., from the

Adate of their initial appointment in 1985. This cannot be sustained andthe same deserves to be quashed and set aside and the seniority list of2001 counting the services rendered by ad hoc appointees from the dateof their regularisation in the year 1989 is to be restored.

9. Now so far as the reliance placed upon the decision of thisBCourt in the case of Direct Recruit Class II Engg. Officers’ Assn.(supra), relied upon by the learned Senior Advocate appearing on behalfof the ad hoc appointees is concerned, it is required to be noted thateven in the said decision also, it is observed and held that where initialappointment was made only ad hoc as stop gap arrangement and notaccording to the rules, the officiation in such post cannot be taken intoCaccount for considering the seniority. In the case before this Court, theappointments were made to post according to rule but as ad hoc andsubsequently they were confirmed and to that this Court observed andheld that where appointments made in accordance with the rules, seniorityis to be counted from the date of such appointment and not from theDdate of confirmation. In the present case, it is not the case of confirmationof the service of ad hoc appointees in the year 1989. In the year 1989,their services are regularised after following due procedure as requiredunder the 1979 Rules and after their names were recommended by theSelection Committee constituted under the 1979 Rules. As observedhereinabove, the appointments in the year 1989 after their names wereErecommended by the Selection Committee constituted as per the 1979Rules can be said to be the “substantive appointments”. Therefore, evenon 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 caseon hand. At the cost of repetition, it is observed that the decision of thisCourt in the case of Direct Recruit Class II Engg. Officers’ Assn.F(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 KumarSain (supra), relied upon by the learned counsel appearing on behalf ofthe ad hoc appointees also shall not be applicable to the facts of the caseGon hand. In the case before this Court, the promotees appointed on adhoc were continued for fairly long periods and their appointments weremade after due consultation with, or approval of Service Commission,and therefore their appointments were held not to be ad hoc or fortuitousor stopgap. It is to be noted that in the present case when the ad hocHappointees 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 afterthey were selected by the Selection Committee constituted under the1979 Rules, which specifically provides that for the purpose ofregularisation of ad hoc appointments, the appointing authority shallconstitute Selection Committee and consultation with the Commissionshall not be necessary. It is also to be noted that when the ad hocappointees were appointed in the year 1985, they were appointed on thebasis of the recommendations of the Selection Committee constitutedfor ad hoc appointments and when subsequently their services wereregularised and they were appointed in the year 1989, they were appointedby the order of Governor. This is one additional ground to hold that theirsubstantive appointments can be said to be only from the date of theirregularisation/appointment made in the year 1989 after their names wererecommended by the Selection Committee constituted under the 1979Rules and their services were regularised as per the 1979 Rules afterfollowing the procedure as required under the 1979 Rules, i.e., in theyear 1989. Therefore, their seniority is to be counted only from14.12.1989, the date of their regularisation and the services rendered bythe ad hoc appointees prior thereto, i.e., from the date of their initialappointments in the year 1985 is not to be counted for the purpose ofseniority, vis-à-vis, the direct recruits appointed prior to 1989.

11. In view of the above and for the reasons stated above, all theappeals succeed. The impugned judgments and orders dated 19.09.2016passed 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 andjudgments 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 theHigh Court of Uttarakhand are hereby quashed and set aside. The re-determination of the seniority and the revised seniority list dated22.03.2016 counting the services of the ad hoc appointees prior to14.12.1989 and counting the services as ad hoc from 12.06.1985 for thepurpose of seniority is hereby quashed and set aside and the final senioritylist dated 14.12.2001 fixing the seniority considering the services renderedby ad hoc appointees from 14.12.1989 is hereby restored. Necessaryconsequence shall follow. No costs.

Appeals allowed.