In the High Court of Uttaranchal, at Nainital. Writ petition No. 140 of 2005 (S/B) 1- Smt. Archana Shukla W/o H.P. Shukla, Presently posted as Lecturer (English) in Government Polytechnic, Nainital. 2- Anil Kumar S/o Sri Bharat Prasad Singh, Presently posted as Lecturer (Pharmacy) in Government Polytechnic, Srinagar Pauri Garhwal. 3- Jagdish Prasad Pathak, S/o H.G. Pathak, Presently posted as Lecturer (Physics) in Government Polytechnic, Narendra Nagar, Tehri Garhwal. 4- Sunil Kumar S/o D.K. Bijawan Presently posted as Lecturer (Physics) in Government Politechnic Srinagar Pauri Garhwal. 5- Raghuvar Dutt Pandey S/o R.K. Pandey Presently posted as Lecturer (Physics) in Govt. Polytechnic, Takula, District Almora. 6- Surendra Kumar S/o Late Ram Awtar Gupta Presently posted as Lecturer (Pharmacy) in Govt. Polytechnic, Narendra Nagar, Tehri Garhwal. 7- Smt. Anupurna Negi W/o Ashok Negi, Presently posted as Lecturer (English) in Govt. Polytechnic, Kashipur, District U.S. Nagar. 8- Surendra Kumar Dhyani S/o H.L. Dhyani Presently posted as Lecturer (Maths) in Govt. Polytechnic Narendra Nagar Tehri Garhwal. 9- Dr. Ishwari Dutt Joshi S/o late Chandra Dutt Joshi Presently posted as Lecturer (Physics) in Govt. Polytechnic, Kashipur, District Udham Singh Nagar -- Petitioners. Versus State of Uttaranchal and 6 others - Respondents. Sri S.N. Babulkar, Senior Advocate, learned counsel for the Petitioners. Sri K.P. Upadhyaya, learned S.C. for the State. 2 Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 06-03-2006 By means of this writ petition the petitioner have challenged the impugned seniority list dated 13-2-2004, (Annexure No. 3 to the writ petition) so far as it denies to the petitioners the benefit of past officiation period in determining their seniority, gradation and placement in the seniority list. The petitioners have also prayed for a writ in the nature of mandamus directing the respondents to refix the seniority of the petitioners in the department from the date of their initial appointment with all consequential benefits. 2- Brief facts giving rise to the present petition are that the petitioners applied for the post of Lecturers in the year 1987-88 in the different subjects in Polytechnic Institutions in pursuance of the advertisement. The respondents after scrutinizing the applications of the petitioners found them fit for the interview and they were called for the same. The petitioners were finally selected for the posts of Lecturers in different subjects, by the Selection Committee, after their interview. 3- In pursuance to the recommendation of the Selection Committee the petitioners were appointed as Lecturers in the different Polytechnic Institutions and the petitioner joined their services in their respective places and since then the petitioners are continuously working in the departments against they were appointed. The appointments of the petitioners were made against the permanent substantive vacant posts. The petitioners after their appointment have been given all service benefits like increment etc. 4- On 13-2-2004, the services of the petitioners have been regularized and there is no adverse entry in their service record till now. The U.P. Technical Education Gazetted Officers Service Rules 1990 has come in to force in the year 1990 by the Notification dated 22-4-1990. The petitioners have filed the aforesaid Rules as Annexure-2 to this writ petition. 5- The claim of he petitioners is that they are entitled to get their seniority from the date of their initial appointment as the 3 service rules governing the service conditions of the Gazetted Officers of Technical Education Service Rules 1990 came in to force much after the petitioners’ initial appointment. As petitioners are working in the various departments of different Polytechnic Institutions since 1989 without any break and their services have been regularized, therefore, the petitioners have claimed that they are entitled to get their seniority from the date of their initial appointment. 6- The departments prepared the seniority list of the Lecturers working in various departments of different Polytechnic Institutions on 8-5-2005, therefore, the petitioners requested the Secretary of the department by way of the representation to re-fix the seniority from the date they were appointed in the department by the Selection Committee. As the representation filed by the petitioners has not been considered by the department and the department is going to make promotion on the basis of the seniority list prepared on 8-5-2005, hence the writ petition before this Court. 7- The counter affidavit has been filed by the respondent Nos. 1 and 2 stating posts therein that the erstwhile State of Uttar Pradesh advertised various posts of Lecturers in various subjects including the posts in which the petitioners were selected for direct recruitment on ad hoc basis against the post for one year or till the duly selected candidates from Public Service Commission joins, whichever happens earlier. However it is admitted in the counter affidavit that the petitioners were selected by the Selection Committee on adhoc basis and appointment letters were given to them stipulating therein the conditions of adhoc appointment. It has also been admitted that the petitioners are continuously working since the date of their joining on the basis of the appointment letters issued to them. It has also been pleaded in the counter affidavit that since the services of the petitioners have only be regularized by the Government Order dated 13-2-2004 under the provisions of Uttaranchal Regularization of Adhoc Appointments (Posts under the Purview of Public Service Commission) Rules, 2002, according to the provisions of these Rules the seniority of the petitioners can only be determined from the date of regularization of their services 4 irrespective of the fact of continuance as adhoc incumbent in the department. 8- The petitioners have filed their rejoinder affidavit reiterating the facts mentioned in the writ petition. 9- It would be relevant to mention the pertinent regularization rules with the procedure for regularization of adhoc appointees which are reproduced as hereinafter:- “4- Regularization of ad hoc appointment (1) Any person who- (i) was directly appointed on ad hoc basis before 30-6- 1998 and is continuing in service as such on the date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such adhoc appointment; and (iii) has completed or, as the case may be, after he 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 in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward classes and other categories shall be made in accordance with the order of the Govt. in force at the time of recruitment. (3) For the purpose of sub-rule (1) the appointing authority shall constitute Selection Committee and consultation with the Commission shall not be necessary. (4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority, as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said 5 appointment order, the list shall be placed before the Selection Committee along with their character rolls and such other records, pertaining to them as may be considered necessary to judge their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4). (6) The selection committee shall prepare a list of the selected candidates, the names in the list being arranged in order or seniority, and forward it to the appointing authority. 5. Appointments:- The appointing authority shall, subject to the provisions of sub-rule (2) of Rule 4 make appointments from the list prepared under sub-rule (6) of the said rule in the order in which their names stand in the list. 7- Seniority: (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, 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 these rules. (2) If two or more persons are appointed together, their seniority inter-se shall be determined in the order mentioned in the order of appointment.” 10- Admittedly the petitioners were appointed after due advertisement in Newspapers, which has not been denied by the respondents and they were duly selected by the Selection Committee in accordance with the provisions and conditions contained in the advertisement. 11- Now the question falls for consideration as to whether the services rendered by the petitioners from the date of initial appointment till the date of their regularization is to be counted for the purpose of reckoning their seniority or it is liable to be ignored. 12- The Apex Court in the case of State of U.P. and another Vs. Dr. M.J. Siddiqui and others, And Dr. C.B. Aggarwal and others 6 Vs. Dr. M.J. Siddiqui and others reported in (1980) 3 S.C.C. 174, in para no. 11 observed as under: “There does not appear to be any magical formula or special charm in the word ‘Substantive’. The mere use of the term ‘appointment in a temporary vacancy’ by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to be a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we have to look into the heard and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors.” The Apex Court in the case of Baleshwar Dass and others Versus State of U.P. and others reported in (1980) 4 SCC 226 gave the meaning of appointment in substantive capacity and held as under: “What, in the context, is a substantive capacity vis-à-vis an appointment to a post? In our view, the emphasis imparted by the adjective “substantive” is that a thing is substantive if it is “an essential part or constituent or relating to what is essential.” We may describe a capacity as substantive if it has “independent existence” or is of “considerable amount or quantity.” What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of along duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.” 7 In the case of G.P. Doval and others vs. Chief Secretary Government of U.P. and others, reported in A.I.R. 1984 SC 1527 Division Bench of the Supreme Court in para 15 observed as under:- “In fact a fair rule of seniority should ordinarily take into account the past service if the stop gap arrangement is followed by confirmation. This view which we are taking is borne out by the decision of this Court in Baleshwar Dass Vs. State of U.P. (1981) 1 SCR 449: AIR 1981 SC 41), wherein this court observed that the principle which has received the sanction of this Court’s pronouncement is that ‘officiating service in a post for all practical purposes of seniority is as good as service on a regular basis.” In the case of Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra and others reported in (1990) 2 Supreme Court Cases 715, in para no. 13, the Constitution Bench of the Apex Court observed as under:- “…The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Article 14 and 16. If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position of the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This 8 principle has been followed in innumerable cases and has been further elaborated by this court in several judgments including those in Baleshwar Dass Vs. State of U.P. and Delhi Water Supply and Sewage Disposal Committee Vs. R.K. Kashyap with which we are in agreement. In Narender Chadha Vs. Union of India, the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long period of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Article 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” In para 47 of the above judgment, the Apex Court concluded authoritatively in clause (B) as under:- “…(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his services in accordance with rules, the period of officiating service will be counted. In the case of Union of India and another Vs. Harish Chaneder Bhatia and others reported in (1995) 2 S.C.C. 48, in para- 7, the Apex Court observed as under:- “….An officiating appointment for over a decade cannot be treated as fleeting appointment with no service benefits to be given. Any other view would very seriously prejudice such a service holder who, even after having rendered service equal to those of permanent appointees for a long period, and that too for proper functioning of the service, would be denied the benefit of the same for no cogent reasons. Any other view is bound to have a demoralizing effect in the service as a whole.” 9 The Apex Court in State of U.P. and others Vs. R.K. Tandon and others reported in (1995) 3 SCC 616 in para-4 observed as under: “….If, however, the initial appointments are according to rules, though on ad hoc or temporary basis, then the seniority would be counted from the date of initial appointment.” The Apex Court in L. Chandrakishore Singh Vs. State of Manipur and others reported in (1999) 8 Supreme Court Cases 287 in para 12 observed as under: “… The touchstone then is the substantive capacity of the appointment. The Court further held that the substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. Even appointment to a temporary post for a long duration would be sufficient to hold that such person was holding the post in a substantive capacity. A person shall be held to be holding a post in a substantive capacity when he is found to be not holding the post for indefinite period.” In para 15 of the aforesaid judgment, the Apex Court observed as under: “..It is now well settled that even in cases of probation or officiating appointments which are following by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved lateron, the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to length of continuous officiation. In this regard, we fortify our view by the judgment of this Court in G.P. Doval vs. Chief Secretary Government of U.P.” 10 The constitution Bench of the Apex Court in the case of Rudra Kuamr Sain and others Vs. Union of India and others reported in (2000) 8 Supreme Court Cases 25 considered the dictionary meaning of “ad hoc”, “stop gap” and “fortuitous” terms and conclusively laid down the law thus: “In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be “stop gap or fortuitous or purely ad hoc.” In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be “fortuitous/ ad hoc/ stopgap” are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” In Dr. Chandra Prakash and others Vs. State of U.P. and another reported in (2002) 10 Supreme Court Cases 710 the Apex Court upheld that the seniority should be reckoned from the date of initial ad hoc appointment, which was approved by appropriate authority i.e. Governor relying on the case of Rudra Kumar Sain Vs. Union of India (Supra).” 13- In view of the aforesaid decisions of the Hon’ble Apex Court it is quite clear that a person is said to hold the post in substantive vacancy when he holds it for an indefinite period especially for long duration in contradiction to a person who holds it for a definite period. A fair rule of seniority should ordinarily be taken into account on the basis of the past services if stop gap arrangement is followed by confirmation. The Hon’ble Apex Court in the decisions cited by us has also confirmed the principle of counting towards seniority, the period of continuous officiation following the appointment made in accordance with the rules for regular substantive appointment in the service. The Hon’ble Apex Court has also held in the decision noted above that if the initial 11 appointments are according to the rules, though on ad hoc or temporary basis, then the seniority would be counted from the date of initial appointment. It is also held by the Constitution Bench of Apex Court in the case of Rudra Kumar Sain and others Vs. Union of India and others (Supra) that a person who possesses requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be stop gap or fortuitous or purely ad hoc. Therefore, in view of the law propounded by the Apex Court in the above cited cases, we are of the definite opinion that in the facts and circumstances of the present case the petitioners are entitled to get the benefit of past services rendered as Lecturers in various departments of different Polytechnic Institutions. 14- The petitioners were initially appointed in the year 1998-89 by the Selection Committee constituted according to rules by the departments. The posts were advertised in Newspapers and various persons applied for the posts in question and the duly constituted Selection Committee recommended the names of the petitioners as Lecturers in various departments of different Polytechnic Institutions and the petitioners accordingly were appointed on the posts of Lecturers and they had been continuously working on their posts and their services were regularized vide order dated 13-2- 2004. 15- It is thus clear that the petitioners rendered their services as Lecturers for sufficiently long period which were subsequently regularized on 13-2-2004, hence this period cannot be excluded in determining the seniority of the petitioners. The past services rendered by the petitioners till their regularization must be counted for reckoning their sonority. 16- In the aforesaid circumstances the impugned seniority list dated 13-2-4004 (Annexure No.3 to the writ petition) so far as it denies to the petitioners the benefit of past officiation period in determining their seniority, gradation and placement in the seniority list, is liable to be quashed. 12 17. Accordingly the writ petition is allowed. The impugned seniority list dated 13-2-2004 is hereby quashed and the respondents are directed to re-fix the seniority of the petitioners in the departments from the date of their initial appointment. (B.C. Kandpal, J.) (P.C. Verma, J.) ISB