IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 233 of 2010 (S/B) Sunil Chandra Tripathi and others ….…… Petitioners. Versus State of Uttarakhand and others ………. Respondents. Mr. Manoj Tiwari, Senior Advocate with Mr. Manish Basnal, Advocate for the petitioners. Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for the State / respondent Nos. 1 to 3. Mr. B.D. Kandpal, Advocate for respondent No. 4. Ms. Bina Pande, Standing Counsel for the U.P. Govt. / respondent Nos. 5 and 6. Mr. Vinay Kumar, Advocate for respondent Nos. 7, 10, 11, 13 and 14. Mr. M.C. Pant, Advocate for respondent Nos. 8, 9, 16 to 18. Mr. I.D. Paliwal, Advocate for respondent Nos. 12, 19 to 21. Date of Judgment: 30.12.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) In terms of the directions issued earlier, the seniority list of Junior Engineers, belonging to hill sub-cadre of Rural Engineering Department, Uttar Pradesh, prepared in 1994, has been produced. Therefrom, it appears that respondent Nos. 7 to 23, except respondent Nos. 9 and 17, were listed above the petitioners, but respondent Nos. 7 to 23, except respondent Nos. 9 and 17, were shown to have been working as such Junior Engineers since 27th July, 1980 until 22nd January, 1983. Admittedly, before 1st May, 1983, none of the respondent Nos. 7 to 23 was regularized, and as such, the said seniority list is of no help to the State or to the private respondents. 2. The fact remains that respondent Nos. 7 to 23 were engaged as Junior Engineers on ad hoc basis during the period between 27th July, 1980 and 22nd January, 1983. According to the statutory Rules, governing appointment of Junior Engineers in Rural Engineering Department of the State of Uttar Pradesh, a person could be appointed as Junior Engineer only on being selected by the Public Service Commission as a person fit to be appointed as such. The fact remains that none of the respondent Nos. 7 to 23 was found fit to be appointed as Junior Engineer by the Public Service Commission. On 14th May, 1979, the U. P. Regularization of Ad hoc 2 Appointments (on Posts Within the Purview of the Public Service Commission) Rules, 1979 came into effect. Rule 2 thereof gave overriding effect to the said Rules by declaring that the said Rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders. The said Rules initially governed only those ad hoc employees who had been appointed on ad hoc basis before 1st January, 1977 and were continuing in service on the date of commencement of the said Rules, i.e., upto 14th May, 1979. Subsequently, on 8th September, 1984, Rule 9 was added to the said Rules and thereby, provisions of the said Rules were directed to apply, mutatis mutandis, also to any person directly appointed on ad hoc basis on or before 1st May, 1983 and continuing in service as such until 8th September, 1984, i.e., until the date Rule 9 was added to the said Rules. 3. The said Rules prescribed the eligibility of an ad hoc appointee to be regularized. It provided that any person, who is thus eligible, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability “before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.” Therefore, one of the objects of the said Rules was to consider suitability of an eligible ad hoc employee for being regularized before any regular appointment is made. The said Rules prescribed that the person appointed / regularized under the said Rules shall be entitled to seniority only from the date of order of appointment. The said Rules, therefore, made it absolutely clear that the eligible ad hoc employee shall be considered for regular appointment on the basis of suitability to be determined in accordance with the mandate contained in the said Rules and shall be entitled to count seniority from the date he is so appointed / regularized and, until then, no regular appointment shall be made. As aforesaid, initially the said Rules covered those who had been appointed on ad hoc basis before 1st January, 1977 and continued in service until 14th May, 1979. On 8th September, 1984, Rule 9 was inserted in the said Rules and thereby, ad hoc appointees, appointed on or before 1st May, 1983, also acquired a right to be considered for regular appointment in permanent or 3 temporary vacancy, as may be available, before any regular appointment is made. 4. As it appears, before 8th September, 1984, steps were taken to fill up permanent or temporary vacancies in terms of the cadre rules through the Commission. Despite insertion of Rule 9 in the said Rules on 8th September, 1984, such steps were not kept in suspension, until suitability of respondent Nos. 7 to 23 for being regularized was considered and decided in accordance with the said Rules. In consequence thereof, petitioners, on being selected by the Commission, were appointed in two batches on 23rd September, 1986 and 30th October, 1986. Subsequent thereto, in 1987 and thereafter until 1989, orders were issued and thereby, respondent Nos. 7 to 23 were regularized. 5. In the present writ petition, it is the contention of the petitioners that respondent Nos. 7 to 23, having been regularized after the petitioners were appointed, petitioners should be deemed to be senior to respondent Nos. 7 to 23. Petitioners have contended that the action taken by the Chief Engineer to issue notifications, in 1995 and subsequent thereto, and thereby preponing regularization of the petitioners, is not just and has no legal standing in view of the provisions contained in the said Rules, which clearly stipulates that the appointment pursuant to regularization should be counted prospectively. 6. We feel that, while a reading of Rule 7 of the said Rules would make it clear that an ad hoc employee, appointed in permanent or temporary vacancy, on being regularized in terms of the said Rules, would be entitled to count seniority from the date of such appointment, but the fact remains that the said Rules also mandated that until such appointment is made, no regular appointment can be made. In the instant case, that part of the direction, contained in the said Rules that until suitability of the ad hoc employees is considered, no regular appointment can be made, was not adhered to and as a result, in breach of law, petitioners were appointed, on being selected by the Commission, before the respondents were regularized. 7. In the circumstances, in order to give due benefit to respondent Nos. 7 to 23, to which they were entitled in terms of the mandate of the said Rules, the Chief Engineer, as entitled to, duly and correctly clarified in the years 4 1995 and 1999 that respondent Nos. 7 to 23 shall always be regarded as senior to the petitioners. 8. We, accordingly, conclude the matter and refuse to interfere with the decision of the official respondents to treat respondent Nos. 7 to 23 as senior to the petitioners. 9. After we had dictated the judgment, learned counsel for the petitioners cited a judgment of the Hon’ble Supreme Court, rendered in the case of R.K. Modisana Singh Vs. Kh. Temba Singh and others, where the Hon’ble Supreme Court has held, that no retrospective effect can be given to an order of regularization. 10. We do not think that the ratio of the said judgment has any application to the instant case. It is settled law that the rights, privileges and status of an employee is either governed by the contract of employment or by the Statute applicable thereto. In that case, there was absence of seniority rules. Despite that, on the basis of understanding as recorded in the said judgment, the State purported to give retrospective effect to certain promotions. The Hon’ble Court pointed out that the same could not be done without affording an opportunity of hearing to the direct recruitees, who were likely to suffer by reason of retrospective promotion of the promotees. In the instant case, we have declared the rights, privileges and status inter se the petitioners and respondent Nos. 7 to 23 based on the said Rules, where it has been specifically mentioned that the petitioners, direct recruitees, will come only after the case of ad hoc employees is considered and decided. Because their case was considered subsequent to appointment of the petitioners, the right, granted by the Statute in favour of respondent Nos. 7 to 23, cannot be taken away and in such circumstances, there was no question of giving any opportunity of hearing to the petitioners. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 30.12.2011 30.12.2011 Amit