RASHI MANI MISHRA AND OTHERS versus STATE OF UTTAR PRADESH AND OTHERS
[2021] 6 S.C.R. 435, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
435
RASHI MANI MISHRA AND OTHERS
v.
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 ad
hoc services –Held: Seniority is to be counted only from the date of
their regularisation and the services rendered by the ad hoc
appointees prior thereto, i.e., from the date of their initial
appointments is not to be counted for the purpose of seniority – On
facts, Assistant Engineers given ad hoc appointment in the year 1985
– No consultation with the UPSC and as such there was no
recommendation by the UPSC – Regularisation of services as per
the 1979 Rules in the year 1989 and thereafter they were selected
by the Selection Committee constituted under the 1979 Rules–As
such their substantive appointments can be said to be only from the
date of their regularisation/appointment made in the year 1989 –
Thus, the seniority is to be counted only from 14.12.1989, the date
of their regularisation– Services rendered by the ad hoc appointees
prior thereto, i.e., from the date of their initial appointments in the
year 1985 is not to be counted for the purpose of seniority, vis-à-
vis, the direct recruits appointed prior to 1989 – Uttar Pradesh
Regularisation of Ad hoc Appointments (on posts within the purview
of the Public Service Commission) Rules, 1979 – Uttar Pradesh
Regularisation of Ad hoc Appointments (on posts within the purview
of 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 initially
appointed in the year 1985 vide office memo dated 12.06.1985.
They were appointed on the basis of the recommendations of the
Selection Committee constituted for ad hoc appointment vide
[2021] 6 S.C.R. 435
435
A
B
C
D
E
F
G
H
436
SUPREME COURT REPORTS
[2021] 6 S.C.R.
G.O. No. 1033/84/38-1- 3532/84 dated 29.01.1985. They were
appointed on ad hoc basis on the temporary post of Assistant
Engineer in Rural Engineering Service Department. In the said
office memo, it was specifically mentioned that the candidates
will have no right to claim seniority in future on the basis of the
said order of appointment (as ad hoc appointee). It appears that
thereafter within a period of four years from their appointment as
ad hoc, their services came to be regularised under the 1979
Rules, extended from time to time and they were appointed and
their services were regularised vide notification dated 14.12.1989.
At this stage, it is required to be noted that their services were
regularised vide notification dated 14.12.1989 as per the 1979
Rules, as extended in 1989. Therefore, the contesting
respondents-ad hoc appointees, having taken the benefit of the
1979 Rules were bound by the conditions mentioned in the 1979
Rules. Even it is not the case on behalf of the contesting ad hoc
appointees that they are not governed by the 1979 Rules. Rules
1979 provide for regularisation of ad hoc appointees. Thus, as
per the 1979 Rules, any person who was directly appointed on ad
hoc basis and continued in service and possessed requisite
qualifications prescribed for regular appointment at the time of
such ad hoc appointment and has completed three years
continuous service shall be considered for regular appointment
in permanent or temporary vacancy as may be available on the
basis of his record and suitability before any regular appointment
is made in such vacancy in accordance with the relevant service
rules or order. It further provides that for the purpose of
regularisation, the appointing authority shall constitute a Selection
Committee and thereafter the appointing authority shall prepare
an eligibility list of candidates, arranged in order of seniority, That
thereafter the Selection Committee shall prepare the list of
selected candidates and the names in the list being arranged in
the order of seniority and forward to the appointing authority and
only thereafter the appointing authority shall make an appointment
from the list prepared under sub-ule (6) in the order in which
their names stand in the list. As per rule 6, such appointments
were deemed to be under the relevant service rules etc. Thus,
the appointments on regularisation of their services are made
A
B
C
D
E
F
G
H
437
only after their names are recommended by the Selection
Committee constituted under sub-rule 3 of Rule 4 of the 1979
Rules. Therefore, “substantive appointments” can be said to be
only when they are appointed and their names are forwarded by
the Selection Committee and their services are regularised as
per the 1979 Rules. Rule 7 of the 1979 Rules, as such, clinches
the issue. It specifically provides that a person appointed under
the 1979 Rules shall be entitled to seniority only from the date of
order of appointment after selection in accordance with the 1979
Rules. It also further provides that in all cases they shall be placed
below the persons appointed in accordance with the relevant
service rules, or as the case may be, the regular prescribed
procedure, prior to the appointment of such person under the
1979 Rules. Therefore, as per the 1979 Rules, the persons whose
services have been regularised and they are appointed after the
recommendations by the Selection Committee as per the 1979
Rules, their seniority shall be only from the date of order of
appointment after selection in accordance with the 1979 Rules,
i.e., in the instant case, from 14.12.1989. [Para 7][455-D-F;
456-B-D; 457-G-H; 458-A-F]
1.2 Neither in the year 1985 when they were appointed on
ad hoc basis on temporary posts nor at the time when their
services were regularised in the year 1989, the service rules for
Group ‘B’ were in force. In the year 1993, Uttar Pradesh Rural
Engineering
(Group ‘B’) Service Rules, 1993 came to be enacted.
As per Rule 21 of the 1993 Rules, the seniority of persons
substantively appointed to a post in the service shall be determined
in accordance with the Uttar Pradesh Government Servants’
Seniority Rules, 1991, as amended from time to time. Even as
per the Service Rules, 1993, “substantive appointment” means
an appointment, not being an ad hoc appointment, on a post in
the cadre of the service….. As per Seniority Rules, 1991, which
also defines the “substantive appointment” as per rule 4(h), the
seniority shall be counted only from the date of their “substantive
appointment”. In the instant case, Seniority Rules clearly provide
that seniority in any category or cadre post shall be determined
from the date of order of “substantive appointment”. Ad hoc
appointments cannot be deemed to be substantive appointments.
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
438
SUPREME COURT REPORTS
[2021] 6 S.C.R.
Even the definition of “substantive appointment” under the
Service Rules, 1993 and the Seniority Rules, 1991, is very clear
and the service rendered as ad hoc cannot be treated as
“substantive appointment”. [Para 7.1][458-G; 459-C-E]
1.3 On a fair reading of the 1979 Rules, extended from time
to time; initial appointment orders in the year 1985 and the
subsequent order of regularisation in the year 1989 of the ad hoc
appointees and on a fair reading of the relevant Service Rules,
namely Service Rules, 1993 and the Seniority Rules, 1991, the
services rendered by the ad hoc appointees prior to their
regularisation as per the 1979 Rules shall not be counted for the
purpose of seniority, vis-à-vis, the direct recruits who were
appointed prior to 1989 and they are not entitled to seniority
from the date of their initial appointment in the year 1985. The
resultant effect would be that the subsequent re- determination
of the seniority in the year 2016 cannot be sustained which was
considering the services rendered by ad hoc appointees prior to
1989, i.e., from the date of their initial appointment in 1985. This
cannot be sustained and the same deserves to be quashed and
set aside and the seniority list of 2001 counting the services
rendered by ad hoc appointees from the date of their regularisation
in the year 1989 is to be restored. [Para 8][459-F-H; 460-A]
1.4 In the instant case, it is not the case of confirmation of
the
service of ad hoc appointees in the year 1989. In the year
1989, their services are regularised after following due procedure
as required under the 1979 Rules and after their names were
recommended by the Selection Committee constituted under the
1979 Rules. The appointments in the year 1989 after their names
were recommended by the Selection Committee constituted as
per the 1979 Rules can be said to be the “substantive
appointments”. [Para 9][460-D-E]
1.5 In the instant case when the ad hoc appointees were
appointed in the year 1985, there was no consultation with the
UPSC and as such there was no recommendation by the UPSC.
Their services came to be regularised as per the 1979 Rules and
after they were selected by the Selection Committee constituted
A
B
C
D
E
F
G
H
439
under the 1979 Rules, which specifically provides that for the
purpose of regularisation of ad hoc appointments, the appointing
authority shall constitute a Selection Committee and consultation
with the Commission shall not be necessary. When the ad hoc
appointees were appointed in the year 1985, they were appointed
on the basis of the recommendations of the Selection Committee
constituted for ad hoc appointments and when subsequently their
services were regularised and they were appointed in the year
1989, they were appointed by the order of Governor. This is one
additional ground to hold that their substantive appointments can
be said to be only from the date of their regularisation/appointment
made in the year 1989 after their names were recommended by
the Selection Committee constituted under the 1979 Rules and
their services were regularised as per the 1979 Rules after
following the procedure as required under the 1979 Rules, i.e.,
in the year 1989. Therefore, their seniority is to be counted only
from 14.12.1989, the date of their regularisation and the services
rendered by the ad hoc appointees prior thereto, i.e., from the
date of their initial appointments in the year 1985 is not to be
counted for the purpose of seniority, vis-à-vis, the direct recruits
appointed prior to 1989. [Para 10][460-H; 461-A-E]
1.6 The impugned judgments and orders passed by the High
Court of Judicature at Allahabad and judgments and orders passed
by the High Court of
Uttarakhand are quashed and set aside.
The re-determination of the seniority and the revised seniority
list dated 22.03.2016 counting the services of the ad hoc
appointees prior to 14.12.1989 and counting the services as ad
hoc from 12.06.1985 for the purpose of seniority is hereby quashed
and set aside and the final seniority list dated 14.12.2001 fixing
the seniority considering the services rendered by ad hoc
appointees from 14.12.1989 is hereby restored. [Para 11]
[461-E-G]
Secretary, Minor Irrigation Department v. Narendra
Kumar Tripathi (2015) 11 SCC 8 – per incuriam.
Dr. Chandra Prakash and others v. State of U.P. (2002)
10 SCC 710 : [2002] 4 Suppl. SCR 574; Direct Recruit
Class II Engg. Officers’ Assn. v. State of Maharashtra
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
440
SUPREME COURT REPORTS
[2021] 6 S.C.R.
(1990) 2 SCC 715:[1990] 2 SCR 900; Rudra Kumar
Sain v. Union of India (2000) 8 SCC 25:[2000] 2 Suppl.
SCR 573 – distinguished.
Santosh Kumar and others v. G.R. Chawla and others
(2003) 10 SCC 513; State of Uttarakhand v. Archana
Shukla (2011) 15 SCC 194: [2011] 15 SCR 615;
Debabrata Dash v. Jatindra Pradsad Das (2013) 3 SCC
658:[2013] 2 SCR 331; P.P.C. Rawani (Dr.) and others
v. Union of India (2008) 15 SCC 332: [2008] 16 SCR
61; R.K. Mobisana Singh v. Kh. Temba Singh (2008) 1
SCC 747:[2007] 13 SCR 434; Union of India v. Satish
Chandra Mathur (2001) 10 SCC 185; Keshav Chandra
Joshi v. Union of India 1992 Supp. (1) SCC 272: [1990]
2 Suppl. SCR 573; P.D. Aggarwal v. State of U.P. (1987)
3 SCC 622:[1987] 3 SCR 427; State of West Bengal v.
Aghore Nath Dey (1993) 3 SCC 371:[1993] 2 SCR 919;
Chandra Prakash and others v. State of U.P. (2002) 4
SCC 234:[2002] 2 SCR 913; U.P. v. Dr. R.K. Tandon
(1995) 3 SCC 616: [1995] 2 SCR 995; State of U.P. v.
Dr. R.K. Tandon (1996) 10 SCC 247:[1996] 4 Suppl.
SCR 149 – Referred to
Case Law Reference
(2003) 10 SCC 513
referred to
Para 3.2 (iii)
[2011] 15 SCR 615
referred to
Para 3.2 (iii)
[2013] 2 SCR 331
referred to
Para 3.2 (vi)
[2008] 16 SCR 61
referred to
Para 3.2 (vi)
[2007] 13 SCR 434
referred to
Para 3.2 (vi)
(2001) 10 SCC 185
referred to
Para 3.2 (vi)
[1987] 3 SCR 427
referred to
Para 3.2 (vi)
[2000] 2 Suppl. SCR 573
referred to
Para 4
[1993] 2 SCR 919
referred to
Para 4.2
(2015) 11
SCC 8
per incuriam
Para 5
A
B
C
D
E
F
G
H
441
[2002] 2 SCR 913
referred to
Para 5.1
[1995] 2 SCR 995
referred to
Para 5.1
[1996] 4 Suppl.SCR 149
referred to
Para 5.1
[2002] 4 Suppl. SCR 574
distinguished
Para 5.2, 6
[1990] 2 SCR 900
distinguished
Para 9
[1990] 2 Suppl. SCR 573
distinguished
Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No.10788
of 2016.
From the Judgment and Order dated 19.09.2016 of the High Court
of 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, Nilanjani
Tandon, Tanmaya Agarwal, Wrick Chatterjee, Ashutosh Kumar Sharma,
Neelmani Pant, Ankit Swarup, Azim H. Laskar, Rajiv Narain, Chandra
Bhushan Prasad, Ms. Vanshaja Shukla, Ms. Mrigna Shekhar, Mukul
Kumar, 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 of
appeals, all these appeals are decided and disposed of together by this
common judgment and order.
1.1 Civil Appeal Nos. 10788 of 2016 and Civil Appeal No. 2898 of
2021 are with respect to the State of Uttar Pradesh and the rest of the
civil appeals are with respect to the State of Uttarakhand. It is to be
noted that the relevant rules applicable to the employees of the State of
Uttarakhand are as such para materia to the relevant
rules applicable
to the employees of the State of Uttar Pradesh.
1.2 The dispute in all these appeals relates to determination of the
seniority of Assistant Engineers working in the Rural Engineering
Department and the common question involved in the present group of
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
442
SUPREME COURT REPORTS
[2021] 6 S.C.R.
appeals is, whether the services rendered as ad hoc prior to their
regularisation shall be counted for the purpose of seniority etc. or only
from the date of their regularisation, regularising their services as per
the relevant regularisation rules?
1.3 At the outset, it is required to be noted that as such the High
Courts have heavily relied upon the decision of this Court in the case of
Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi,
reported in (2015) 11 SCC 80 and have held that services rendered by
the respective Assistant Engineers as ad hoc shall also be counted for
the purpose of seniority, meaning thereby their seniority should be
considered from the date of their initial appointment as ad hoc. The
decision of this Court in the case of Narendra Kumar Tripathi (supra)
shall be dealt with hereinbelow.
Factual Matrix:
2. For the sake of convenience, Civil Appeal No. 10788 of 2016 is
treated as a lead matter and the facts from the said civil appeal are
narrated and considered for the purpose of deciding these appeals.
2.1 108 Assistant Engineers were given ad hoc appointments in
the year 1985 after an advertisement had been issued. Their services
were subsequently regularised on 14.12.1989 under the provisions of
the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts
within the purview of the Public Service Commission) (Second
Amendment) Rules, 1989 (hereinafter referred to as the
‘1989 Rules’).
At this stage, it is required to be noted that earlier the regularisation of
ad hoc appointments was as per the Uttar Pradesh Regularisation of
Ad hoc Appointments (on posts within the purview of the Public Service
Commission) Rules, 1979 (hereinafter referred to as the ‘1979 Rules’),
which came to be subsequently extended from time to time. Therefore,
for all practical purposes, the respective ad hoc employees were
governed by the 1979 Rules, which came to be extended by the 1989
Rules. A final seniority list was prepared on 14.12.2001. The services
rendered by such Assistant Engineers on ad hoc basis were not counted
for seniority purposes and their seniority was determined from the date
of their regularisation on 14.12.1989.
2.2 One Narendra Kumar Tripathi filed the petition even before
the declaration of the final seniority list challenging the order rejecting
his representation and according to him services rendered by him as ad
A
B
C
D
E
F
G
H
443
hoc prior to 14.12.1989 shall also be counted for the purpose of seniority.
The final seniority list dated 14.12.2001 was also challenged in various
writ petitions. Writ Petition filed by Narendra Kumar Tripathi (first case)
came to be allowed by the High Court and a direction was issued to fix
his seniority from the date of his initial appointment in the Work Charge
Establishment of the department on 18.01.1983. At this stage, it is required
to be noted that initially Narendra Kumar Tripathi was working in the
department on work charge basis from 18.01.1983 before he was given
an ad hoc appointment on 12.06.1985. As observed hereinabove, various
other writ petitions were also filed challenging the final seniority list dated
14.12.2001.
2.3 A Division Bench of the High Court of Judicature at Allahabad,
vide judgment and order dated 27.02.2004, in the case of Arjun Ravi
Das filed by ad hoc Assistant Engineers for counting their services
rendered on ad hoc basis prior to regularisation in 1989 for the purpose
of seniority, dismissed the writ petition. Thereafter, several other writ
petitions including the writ petition by Narendra Kumar Tripathi (second
case) were filed and finding a conflict between the two Division Benches,
in Narendra Kumar Tripathi (first case) and Arjun Ravi Das, the writ
petitions were referred to a Full Bench. The issue before the Full Bench
was as to whether the services rendered on ad hoc basis prior to
regularisation should be
counted for determining the seniority. The Full
Bench observed that ad hoc services rendered after appointment made
dehors the rules and without following any procedure prescribed by law
cannot be counted for the purpose of seniority, after having noted that
the services of such ad hoc Assistant Engineers appointed in 1985 were
subsequently regularised by order dated 14.12.1989 and a final seniority
list was prepared on 14.12.2001 which did not count the services rendered
by the Assistant Engineers on ad hoc basis. Thereafter, the Full Bench
dismissed all the petitions holding that the ad hoc services rendered
prior 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 a Special Leave
Petition before this Court against the judgment rendered by the Full Bench
on 10.12.2004. The Secretary, Minor Irrigation Department also filed a
Special Leave Petition against the judgment rendered on 13.02.2003 in
Narendra Kumar Tripathi (first case), taking the view that his seniority
shall be counted from the date of his initial appointment in the Work
Charge Establishment of department on 18.01.1983.The Special Leave
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
444
SUPREME COURT REPORTS
[2021] 6 S.C.R.
Petitions were subsequently re-numbered as Civil Appeal Nos. 3348/
2015 and 3349/2015 respectively. Before this Court, a submission was
made on behalf of Narendra Kumar Tripathi that his seniority may be
counted from 12.06.1985 and not from 18.01.1983 when he was
appointed on work charge basis.
2.5 By judgment and order dated 7.4.2015, a two Judge Bench of
this Court allowed the appeal preferred by Narendra Kumar Tripathi
(supra) and set aside the judgment and order passed by the Full Bench
of the High Court and held that services rendered by Assistant Engineers
as ad hoc shall be counted for the purpose of seniority and their seniority
should be counted from the date of their initial appointment and not from
the date of regularisation of their services, as per the 1979 Rules/1989
Rules. This Court directed the State to redetermine the seniority after
hearing the affected parties within six months. At this stage, it is required
to 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 by
any incumbent and except for the benefit in pension other benefits to
which the writ petitioner may be found entitled will be given only on
notional basis (paragraph 17 of the said judgment).
2.6 That thereafter, pursuant to the directions issued by this Court
in the case of Narendra Kumar Tripathi (supra), the State Government
issued an office order
dated 31.12.2015 notifying the tentative seniority
list and requiring all concerned to file objections, if any, within 15 days.
That thereafter, after considering the objections filed, a final seniority
list was published on 22.03.2016. The writ petitioners before the High
Court 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 and
placed at serial nos. 260, 208, 261, 274 & 262 in the seniority list dated
22.03.2016. Therefore, the appellants herein – original writ petitioners
filed writ petition before the High Court praying for setting aside the
seniority list dated 22.03.2016 and for reviving the earlier seniority list
dated 14.12.2001. Mainly relying upon and following the decision of this
Court in the case of Narendra Kumar Tripathi (supra), by the impugned
judgment and order, the High Court has dismissed the writ petition, which
has given rise to Civil Appeal No. 10788 of 2016. A similar view has
been taken by the High Court of Judicature at Allahabad in the case of
Brijesh Kumar Dubey, appellant in Civil Appeal No. 2898/2021 and by
the High Court of Uttarakhand in the cases of Navin @ Naveen Chandra,
Rakesh Kumar Tilara and others and Ramji Lal and others, appellant
A
B
C
D
E
F
G
H
445
and respondents in Civil Appeal Nos. 4427, 4428 and 4429 of 2021
respectively.
2.7 Therefore, the short question which is posed for the
consideration of this Court is, whether the services rendered by the
Assistant Engineers as ad hoc should be counted for the purpose of
seniority or their seniority shall be counted from the date of their
regularisation. In other words, the question posed for the consideration
is, whether their services shall be counted from the date of their initial
appointments as ad hoc and the service rendered as ad hoc prior to
regularisation is to be counted for the purpose of seniority or not?
Submissions/Arguments:
3. S/Shri Anil Kumar Sangal and Rishabh Sancheti, learned
Advocates have appeared on behalf of the respective appellants – original
writ petitioners. Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned
Advocates have appeared on behalf of the State of Uttarakhand. Shri
Tanmaya Agarwal, learned Advocate has appeared on behalf of the
State of Uttar Pradesh and Shri Manoj Swarup, learned Senior Advocate,
along with other learned Advocates, have appeared on behalf of the
contesting respondents.
3.1 Learned counsel appearing on behalf of the respective
appellants – original writ petitioners have vehemently submitted that the
respective High Courts have clearly erred in relying upon and following
the decision of this Court in the case of Narendra Kumar Tripathi
(supra).
3.2 Shri Anil Kumar Sangal, learned Advocate appearing on
behalf
of the appellants – original writ petitioners has made the following
submissions:
i) that the decision of this Court in the case of Narendra Kumar
Tripathi (supra), which has been relied upon and followed by the
respective High Courts is a decision per incuriam;
ii) that in the case of Narendra Kumar Tripathi (supra), a two
Judge Bench of this Court did not consider the earlier binding decisions
of this Court, taking the view that seniority of ad hoc appointees is to be
reckoned from the date of their substantive appointments and that ad
hoc services cannot be counted for the purpose of seniority;
iii) that the binding decisions of this Court in the case of Santosh
Kumar and others v. G.R. Chawla and others, reported in (2003) 10
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
446
SUPREME COURT REPORTS
[2021] 6 S.C.R.
SCC 513 and another decision of this Court in the case of State of
Uttarakhand v. Archana Shukla, reported in (2011) 15 SCC 194,
interpreting the very 1979 Rules and taking the view that the services
rendered as ad hoc and prior to their regularisation as per the 1979Rules
shall not be counted for the purpose of seniority were not brought to the
notice of this Court;
iv) that in the case of Narendra Kumar Tripathi (supra), this
Court did not even take into consideration the entire/whole Rule 7 of the
1979 Rules. It is submitted that as per Rule 7 of the 1979 Rules, which
were subsequently extended in 1989, under which the contesting
respondents came to be regularised specifically mentions that “a person
appointed under the 1979 Rules shall be entitled to seniority only from
the date of order of appointment after selection in accordance with the
said 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 persons”.
It is submitted that this Court in Narendra Kumar Tripathi (supra)
considered Rule 7 only up to the wording, “date of order of appointment”,
however, did not consider the entire Rule 7 which specifically provides
that 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. It is submitted that if the aforesaid entire/whole rule
7 would have been considered, in that case, the result would have been
different;
v) that in any case a binding decision of this Court in the case of
Santosh Kumar and others (supra), interpreting the very 1979 Rules
and taking the view that seniority of ad hoc appointees is to be reckoned
from the date of their substantive appointments and that ad hoc
appointments cannot be deemed to be “substantive appointments” and
that such appointees are to be placed below the direct recruits appointed
prior to their regularisation was not brought to the notice of this Court in
the case of Narendra Kumar Tripathi (supra) and therefore the decision
in the said case is a decision per incuriam. It is submitted that in the
case of Santosh Kumar and others (supra), this Court also considered
the Constitution Bench decision of this Court in the case of Direct Recruit
Class II Engg. Officers’ Assn. v. State of Maharashtra, reported in
(1990) 2 SCC 715, which came to be considered by this Court in the
case of Narendra Kumar Tripathi (supra), while taking a contrary
view than the view taken in the case of Santosh Kumar and others
(supra);
A
B
C
D
E
F
G
H
447
vi) that in many earlier decisions, this Court including the three
Judge Benches have consistently taken the view that period of ad hoc
service cannot be reckoned for the purposes of seniority, where initial
appointment is only ad hoc and not according to the rules. Reliance is
placed upon the decisions of this Court in the cases of Debabrata Dash
v. Jatindra Pradsad Das, reported in (2013) 3 SCC 658 (three Judge
Bench); P.P.C. Rawani (Dr.) and others v. Union of India, reported
in (2008) 15 SCC 332 (three Judge Bench); R.K. Mobisana Singh
v. Kh. Temba Singh, reported in (2008) 1 SCC 747; Santosh Kumar
and others (supra); Union of India v. Satish Chandra Mathur,
reported in (2001) 10 SCC 185; Keshav Chandra Joshi v. Union of
India, 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 considered
by this Court in the case of Narendra Kumar Tripathi (supra) and
therefore also the decision in the said case is per incuriam;
vii) that even otherwise and in the facts and circumstances of the
case, the services rendered as ad hoc and prior to regularisation are not
required to be counted for the purpose of seniority. It is submitted that
the private contesting respondents herein were appointed as Assistant
Engineers in the year 1985 on ad hoc basis vide office memo dated
12.06.1985 on the basis of recommendations of the Selection
Committee constituted for ad hoc appointments; that they were
appointed on ad hoc basis on the temporary posts of Assistant
Engineers in Rural Engineering Service Department; that in the
appointment order itself it was specifically mentioned that the
candidates will have no right to claim seniority in future on the
basis of the date of this order of appointment (paragraph 2 of the
office memo). It is submitted that thereafter their services came to be
regularised as per the 1979 Rules/1989 Rules, vide notification/
appointment order dated 14.12.1989. It is submitted that even in the said
notification/appointment order, it was specifically observed that in Rural
Engineering Service, the service rule of the Assistant Engineer
has not been framed till date and therefore the continuation shall
be made under the General Rules framed by the Personal
Department and in the cadre of Assistant Engineer Civil, the
seniority along with the other officers shall be fixed later on. It is
submitted that the relevant 1979 Rules/1989 Rules under which their
services were regularised specifically provided that a person appointed
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
448
SUPREME COURT REPORTS
[2021] 6 S.C.R.
under the 1979 Rules shall be entitled to seniority from the date of order
of appointment after selection in accordance with these rules, i.e., the
1979 Rules. It is submitted that as per the 1979 Rules/1989 Rules, the
services of the ad hoc appointees were required to be regularised after
following due procedure as per the 1979 Rules and only after the Selection
Committee considers the cases of ad hoc appointees. It is submitted that
only thereafter and after their names are cleared by the Selection
Committee constituted specifically under the 1979 Rules, “Substantive
Appointments” are made;
viii) that thereafter the State Government framed the U.P.
Government Servants Seniority Rules, 1991 (hereinafter referred to as
the ‘1991 Rules’) and as per the said rules, the seniority shall be
determined from the date of their “substantive appointments”. It
is submitted that the “substantive appointments” has been defined under
the 1991 Rules and means, an appointment not being an ad hoc appointment
on a post in the cadre of service made after selection in accordance
with the service rules relating to that service. It is submitted that thereafter
the State Government framed the Uttar Pradesh Rural Engineering
(Group ‘B’) Service Rules, 1993 (hereinafter referred to as the ‘1993
Rules’), which govern the appellants – Assistant Engineers in Rural
Engineering. The 1993 Rules which include the Assistant Engineers and
even as per
the said rules “substantive appointments” means an
appointment not being an ad hoc appointment, on a post in the cadre of
service made after selection in accordance with the rules and if there
were no rules, in accordance with the procedure prescribed for the time
being by executive instructions issued by the government. It is submitted
that as per the said 1993 Rules, “member of service” means a person
substantively appointed under the said rules or the orders prior to the
commencement of the said rules to a post in the cadre of service. It is
submitted that as per the 1993 Rules, as per clause 21, the seniority of
the persons substantively appointed in the posts shall be determined in
accordance with the 1991 Rules, as amended from time to time;
ix) that on a conjoint reading of the aforesaid rules, it can be seen
that services rendered as ad hoc cannot be considered as “substantive
appointments” and on regularisation of their services under the 1979
Rules/1989 Rules after they were selected by the Selection Committee
under the 1979 Rules, their appointment can be said to be “substantive
appointments” and therefore their seniority is to be counted only from
the date of their substantive appointments, i.e., regularisation under the
A
B
C
D
E
F
G
H
449
1979 Rules/1989 Rules. It is submitted that even the Seniority Rules,
1991, Service Rules, 1993 were also not placed before this Court for
consideration when this Court decided Narendra Kumar Tripathi
(supra). It is submitted that even the appellants – original writ petitioners
were not before this Court and/or were not heard when this Court decided
Narendra Kumar Tripathi (supra);
x) that even as observed in paragraph 17 of the judgment in the
case of Narendra Kumar Tripathi (supra), the benefit of re-
determination of the seniority will not disturb holding of the posts by any
incumbent. It is submitted that by re-determination of the seniority as
per Narendra Kumar Tripathi (supra), the appellants herein – original
writ 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 is
submitted therefore also the subsequent re-determination of the seniority
list in the year 2016 which was under challenge before the High Court is
contrary to the observations made by this Court in paragraph 17 in
Narendra Kumar Tripathi (supra);
xi) Making the above submissions, it is prayed to hold that in the
facts and circumstances of the case and considering the relevant rules
the seniority of ad hoc appointees as Assistant Engineers shall be counted
only from the date of their regularisation of service as per the 1979
Rules/1989 Rules and their initial service prior to their regularisation is
not
to be counted for the purpose of seniority, by holding that only on
regularisation of their services as per the 1979 Rules/1989 Rules, they
can be said to have been appointed on “substantive posts”.
3.3 Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocates
appearing on behalf of the State of Uttarakhand have fully supported
the appellants – original writ petitioners and have submitted that
considering the applicable relevant rules and more particularly when the
ad hoc appointees’ services were regularised as per the 1979 Rules/
1989 Rules, which specifically provide that the services rendered as ad
hoc shall not be counted for the purpose of seniority and the earlier
binding decisions of this Court interpreting the very Rules 1979 were not
brought to the notice of this Court when this Court decided Narendra
Kumar Tripathi (supra)., it is submitted that the services of the ad hoc
Assistant Engineers are to be counted for the purpose of their seniority
only from the date of their regularisation in the year 1989 and not from
the date of their initial appointment in the year 1985.
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
450
SUPREME COURT REPORTS
[2021] 6 S.C.R.
3.4 Shri Tanmaya Agarwal, learned Advocate appearing on behalf
of the State of Uttar Pradesh has, as such, not taken any specific stand
and has submitted that ultimately it is left to the Court. However, has
submitted that the State of Uttar Pradesh has redetermined the seniority
in the year 2016 as per the directions issued by this Court in the case of
Narendra Kumar Tripathi (supra).
4. Shri Manoj Swarup, learned Senior Advocate appearing on
behalf of some of the contesting respondents – ad hoc appointees has
vehemently submitted that in the present case re-determination of the
seniority is pursuant to the directions issued by this Court in the case of
Narendra Kumar Tripathi (supra) and therefore no error has been
committed by the respective States in re-determining the seniority list
counting the services rendered by ad hoc appointees prior to their
regularisation. It is submitted that the seniority list has been re-determined
considering the services rendered by the ad hoc appointees from the
date of their initial appointments. It is submitted that in the case of
Narendra Kumar Tripathi (supra), the very 1979 Rules came to be
interpreted and considered by a two Judge Bench of this Court and
therefore the issue has attained finality. It is further submitted that while
deciding the case in the case of Narendra Kumar Tripathi (supra), this
Court considered two earlier binding decisions of this Court in the case
of
Direct Recruit Class II Engg. Officers’ Assn. (supra) and Rudra
Kumar Sain v. Union of India, reported in (2000) 8 SCC 25, taking
the view that the services rendered as ad hoc are to be counted/considered
for the purpose of seniority. It is submitted that in the case of Direct
Recruit Class II Engg. Officers’ Assn.(supra), a Constitution Bench
of this Court held that once an incumbent is appointed to a post according
to rule, his seniority has to be counted from the date of his appointment
and not according to the date of his confirmation. It is submitted that in
the case of Rudra Kumar Sain (supra), another Constitution Bench of
this Court observed and held that appointment of employee possessing
statutory qualifications to the promotional post after due consultation
with or approval of, the competent authority, though initially ad hoc, cannot
be ignored in computing the length of service for determining inter se
seniority between such promotees and direct recruits. It is submitted
that in the case of Rudra Kumar Sain (supra), this Court interpreted
the appointment as “ad hoc/fortuitous/stopgap” and thereafter observed
and held as above. It is submitted that while deciding Narendra Kumar
Tripathi (supra), this Court considered the aforesaid two decisions and
A
B
C
D
E
F
G
H
451
also interpreted and considered the very 1979 Rules. It is submitted that
in the present case when the contesting respondents – ad hoc appointees
were appointed in the year 1985, they were appointed after due selection
by the duly constituted Selection Committee. It is submitted that therefore
services rendered by them as ad hoc are to be counted for the purpose
of seniority.
4.1 Shri Manoj Swarup, learned Senior Advocate has also heavily
relied upon the decision of this Court in the case of Dr. Chandra Prakash
and others v. State of U.P., reported in (2002) 10 SCC 710. It is
submitted that in the aforesaid decision in the case of Dr. Chandra
Prakash (supra), it is specifically observed and held that service rendered
as temporary is to be considered for the purpose of seniority. Therefore,
heavy reliance is placed upon the decision of this Court in the case of
Dr. Chandra Praksh (supra).
4.2 Shri Manoj Swarup, learned Senior Advocate has also relied
upon 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 made
in paragraph 17 in the case of Narendra Kumar Tripathi (supra) that
the benefit of the redetermination of the seniority will not disturb holding
of posts by any incumbent, it is submitted that in the present case while
re-determining the seniority in the year 2016 pursuant to the directions
issued by this Court in the case of
Narendra Kumar Tripathi (supra),
holding of the posts by none of the appellants shall be disturbed. It is
submitted that pushing down in the seniority list is the necessary
consequence of re-determination of the seniority counting the services
rendered by ad hoc appointees from the date of their initial appointments.
4.4 Making the above submissions and heavily relying upon the
decisions 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 the
contesting respondents in other appeals have fully supported the
submissions made by Shri Manoj Swarup, learned Senior Advocate.
Consideration:
5. We have heard the learned counsel for the respective parties
at length.
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
452
SUPREME COURT REPORTS
[2021] 6 S.C.R.
 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 by
this Court in the case of Narendra Kumar Tripathi (supra). In the
case of Narendra Kumar Tripathi (supra), this Court after considering
the very 1979 Rules held that the services rendered by ad hoc appointees
prior to their regularisation and services rendered by them from the date
of their initial appointments is to be counted for the purpose of seniority.
It is not in dispute that in the impugned judgments and orders, the
respective High Courtshave solely followed the decision of this Court in
the case of Narendra Kumar Tripathi (supra). However, it is required
to be noted that earlier to the decision of this Court in the case of
Narendra Kumar Tripathi (supra), there were two binding decisions
of this Court interpreting the very Rules 1979 in the cases of Santosh
Kumar (supra) and Archana Shukla (supra), under which the services
of 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 of
the Public Service Commission) Rules, 1979, a two Judge Bench of this
Court observed and held that the seniority of ad hoc appointees to be
reckoned from the date of their “substantive appointments” and ad
hoc appointments cannot be deemed to be
“substantive
appointments” and hence such appointees to be placed below
the direct recruits appointed prior to their regularisation. In the
case of Santosh Kumar (supra), this Court interpreted the very Rule 7
of the 1979 Rules. This Court also considered the decision of this Court
in 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 Court
considered Seniority Rules, 1991 (which shall be discussed hereinbelow)
and the High Court took the view that rule of seniority clearly provides
that seniority in any category or cadre post shall be determined from the
date of the order of “substantive appointment”. Subsequently, in the case
of Archana Shukla (supra), while interpreting the pari materia rules
applicable to the State of Uttarakhand, it is observed and held that ad
hoc appointees whose services were regularised subsequently are not
entitled to the benefit of their service under rule 7 from 1988 to 2004 (as
ad hoc appointees) for the purpose of seniority. In the said decision, the
Drug Inspectors were initially appointed as ad hoc in the year 1988 and
thereafter they were regularised in the year 2004 under the Uttaranchal
A
B
C
D
E
F
G
H
453
Regularisation of Ad hoc Appointments (Posts under the purview of
Public Service Commission) Rules, 2002 (applicable in other appeals in
the present case to the respective State of Uttarakhand). They claimed
the 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 on
interpretation of Rule 7 and observed that they were appointed after the
selection under the Regularisation Rules in the year 2004 and hence
they 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 1979
Rules and 2002 Rules taking the contrary view were not brought to the
notice of this Court. Therefore, to that extent, the decision of this Court
in the case of Narendra Kumar Tripathi (supra) can be said to be per
incuriam.
 Even from the judgment in the case of Narendra Kumar Tripathi
(supra), it appears that the entire Rule 7 has not been considered. Rule
7 of the 1979 Rules under which the contesting respondents – ad hoc
appointees came to be regularised specifically mentions that “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. However, this Court took into consideration the rule 7 only up to
the wording “date of order of appointment”. Therefore, if entire Rule
7
is read, it can be seen that it specifically provides that “a person appointed
under these rules (1979 Rules) shall be entitled to seniority only from the
date of order of appointment after selection in accordance with these
rules (1979 Rules).
5.1 Learned counsel appearing on behalf of the ad hoc appointees
has then heavily relied upon the decision of this Court in the case of Dr.
Chandra Prakash (supra), reported in (2002) 10 SCC 710. He has
also placed reliance upon the Constitution Bench decision of this Court
in the case of Chandra Prakash and others v. State of U.P., reported
in (2002) 4 SCC 234. However, it is required to be noted that the
Constitution Bench in its decision reported in (2002) 4 SCC 234, as such,
did not opine anything on merits. Earlier, a three Judge Bench of this
Court referred the matter to the five Judge Bench, having found the
conflict between the two Judge Bench decision of this Court in the case
of 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
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
454
SUPREME COURT REPORTS
[2021] 6 S.C.R.
State of U.P. v. Dr. R.K. Tandon, reported in (1996) 10 SCC 247,
with another decision of three Judges Bench. Thereafter, the Constitution
Bench 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 conflict
with the larger Bench judgment. That thereafter, the Constitution Bench
observed and held that therefore the writ petitions from which the
reference has arisen will have to be decided dehors the law laid down
by those two judgments of the Bench of two judges. That thereafter the
matters were again referred to the three Judge Bench and ultimately
came to be decided by the judgment reported in (2002) 10 SCC 710
upon which the reliance has been placed by Shri Manoj Swarup, learned
Senior 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 for
consideration before this Court and considering the facts in the said
decision, we are of the opinion that the decision of this Court in the case
of Dr. Chandra Prakash (supra), reported in (2002) 10 SCC 710
shall not be applicable to the facts of the case on hand and the same
shall not be of any assistance to the ad hoc appointees in the present
case. In the case before this Court, it was found that the doctors
possessing requisite qualifications under the rules were temporarily
appointed
in U.P. PMS by Governor against substantive vacancies.
They continued in such vacancies for long periods (from 1965-76 to
1983) enjoying all the benefits of regular service and meanwhile also
selected by PSC. Therefore, it was found that in such circumstances as
their initial appointments were not dehors the rules and therefore it was
held that such doctors were not within the purview of 1979 Rules. Even
the Seniority Rules applicable in that case (Rule 18 of the 1945 Rules)
were different than the Seniority Rules, 1991, applicable in the present
case. 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 the
date of the order of appointment in a substantive vacancy provided
that if two or more candidates are appointed on the same date
their seniority shall be determined according to the order in which
their names are mentioned in the order of appointment.”
 As per Rule 18 of the 1945 Rules, seniority in the service
shall be determined by the date of the order of appointment in a
A
B
C
D
E
F
G
H
455
substantive vacancy. However, as per Seniority Rules 1991, applicable
in 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 a
post in the cadre of service, made after selection in accordance
with the service rules relating to that service. There is a difference
and distinction between the “substantive vacancy” and the “substantive
appointment”. Therefore, the decision of this Court in the case of Dr.
Chandra Prakash (supra) shall not be applicable to the facts of the case
on hand.
6. Having observed and held that the decision of this Court in the
case of Narendra Kumar Tripathi (supra) is per incuriam, as the
binding decisions of this Court in the cases of Santosh Kumar (supra)
and Archana Shukla (supra) were not brought to the notice of this
Court when this Court decided Narendra Kumar Tripathi (supra) and
having 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 case
on hand, we shall now consider the issue on merits independently.
7. The respective ad hoc appointees were initially appointed in
the year 1985 vide office memo dated 12.06.1985. They were appointed
on the basis of the recommendations of the Selection Committee
constituted for ad hoc appointment vide G.O. No. 1033/84/38-1-3532/
84 dated 29.01.1985. They were appointed on ad hoc basis on
the
temporary post of Assistant Engineer in Rural Engineering Service
Department. In the said office memo, it was specifically mentioned that
the candidates will have no right to claim seniority in future on the basis
of the said order of appointment (as ad hoc appointee). The relevant
paragraph 2 of office memo dated 12.06.1985 reads as under:
“2. Their aforesaid appointments are being made on purely ad
hoc basis with the conditions that their services are liable to be
terminated on one month’s notice or salary in lieu of notice or on
availability of candidates duly selected through the Public Service
Commission to the above post and they will not have any claim
for regular appointment in future in the department on the basis of
his ad hoc appointment. When the names of the selected general
category candidate and above reserved category candidates are
made available by the Selection Committee after arranging the
names of the general category candidates in the list and after
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
456
SUPREME COURT REPORTS
[2021] 6 S.C.R.
giving them appointment, the inter-se seniority will be determined.
The candidates will have no right to claim seniority in future on
the basis of the date of this order of appointment.”
 It appears that thereafter within a period of four years from their
appointment as ad hoc, their services came to be regularised under the
1979 Rules, extended from time to time and they were appointed and
their services were regularised vide notification dated 14.12.1989. At
this stage, it is required to be noted that their services were regularised
vide notification dated 14.12.1989 as per the 1979 Rules, as extended in
1989. Therefore, the contesting respondents herein – ad hoc appointees,
having taken the benefit of the 1979 Rules were bound by the conditions
mentioned in the 1979 Rules. At this stage, it is also required to be noted
that even it is not the case on behalf of the contesting ad hoc appointees
that they are not governed by the 1979 Rules. Rules 1979 provide for
regularisation of ad hoc appointees. Rules 4 to 7, which are relevant for
our purpose, read as under:
“4. Regularization of adhoc appointments: (1) any persons who-
(i) was directly appointed on ad-hoc basis before January 1, 1977
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 ad-hoc 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 made in such vacancy in accordance with the
relevant service rules or order.
(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 Government in force at the time
of recruitment.
(3) For the purpose of sub-rule’ (1) the appointing authority shall
constitute a Selection Committee and consultation with the
Commission shall not be necessary.
A
B
C
D
E
F
G
H
457
(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 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 of 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.
6. Appointments be deemed to be under the relevant service rules
etc.:- Appointments made under these rules shall be deemed to
be under the relevant service rules, or orders, if any.
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 persons 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.”
 Thus, as per the 1979 Rules, any person who was directly
appointed on ad hoc basis and continued in service and possessed requisite
qualifications prescribed for regular appointment at the time of such ad
hoc appointment and has completed three years continuous service shall
be considered for regular appointment in permanent or temporary vacancy
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2021] 6 S.C.R.
as may be available on the basis of his record and suitability before any
regular appointment is made in such vacancy in accordance with the
relevant service rules or order. It further provides that for the purpose of
regularisation, the appointing authority shall constitute a Selection
Committee and thereafter the appointing authority shall prepare an
eligibility list of candidates, arranged in order of seniority, That thereafter
the Selection Committee shall prepare the list of selected candidates
and the names in the list being arranged in the order of seniority and
forward to the appointing authority and only thereafter the appointing
authority shall make an appointment from the list prepared under sub-
ule (6) in the order in which their names stand in the list. As per rule 6,
such appointments were deemed to be under the relevant service rules
etc. Thus, the appointments on regularisation of their services are made
only after their names are recommended by the Selection Committee
constituted under sub-rule 3 of Rule 4 of the 1979 Rules. Therefore,
“substantive appointments”can be said to be only when they are
appointed and their names are forwarded by the Selection Committee
and their services are regularised as per the 1979 Rules. Rule 7 of the
1979 Rules, as such, clinches the issue. It specifically provides that a
person appointed under the 1979 Rules shall be entitled to seniority only
from the date of order
of appointment after selection in accordance with
the 1979 Rules. It also further provides that in all cases they shall be
placed below the persons appointed in accordance with the relevant
service rules, or as the case may be, the regular prescribed procedure,
prior to the appointment of such person under the 1979 Rules. Therefore,
as per the 1979 Rules, the persons whose services have been regularised
and they are appointed after the recommendations by the Selection
Committee as per the 1979 Rules, their seniority shall be only from the
date of order of appointment after selection in accordance with the 1979
Rules, i.e., in the present case, from 14.12.1989.
7.1 It is also required to be noted that neither in the year 1985
when they were appointed on ad hoc basis on temporary posts nor at the
time when their services were regularised in the year 1989, the service
rules for Group ‘B’ were in force. In the year 1993,Uttar Pradesh Rural
Engineering (Group ‘B’) Service Rules, 1993 came to be enacted. Rules
3(g), 3(i) and rule 21, which are relevant for our purpose, read as under:
“3 (g) “member of the Service” means a person substantively
appointed under these rules or the rules or order in force prior to
commencement of these rules to a post in the cadre of the Service;
A
B
C
D
E
F
G
H
459
3 (i) “substantive appointment” means an appointment, not being
an ad hoc appointment, on a post in the cadre of the service made
after selection in accordance with the rules and, if there were no
rules, in accordance with the procedure prescribed for the time
being, by executive instructions issued by the Government;
21. Seniority – The seniority of persons substantively appointed
to a post in the service shall be determined in accordance with the
Uttar Pradesh Government Servants’ Seniority Rules, 1991, as
amended from time to time.”
As per Rule 21 of the 1993 Rules, the seniority of persons
substantively appointed to a post in the service shall be determined in
accordance with the Uttar Pradesh Government Servants’ Seniority
Rules, 1991, as amended from time to time. Even as per the Service
Rules, 1993, “substantive appointment” means an appointment, not being
an ad hoc appointment, on a post in the cadre of the service….. As per
Seniority Rules, 1991, which also defines the “substantive appointment”
as per rule 4(h), the seniority shall be counted only from the date of their
“substantive appointment”. In the present case, Seniority Rules clearly
provide that seniority in any category or cadre post shall be determined
from the date of order of “substantive appointment”. As observed and
held by this Court in the case of Santosh Kumar (supra), ad hoc
appointments cannot be deemed to be substantive appointments. Even
the definition of “substantive
appointment” under the Service Rules, 1993
and the Seniority Rules, 1991, referred to hereinabove, is very clear and
the service rendered as ad hoc cannot be treated as “substantive
appointment”.
8. The sum and substance of the above discussion would be that
on a fair reading of the 1979 Rules, extended from time to time; initial
appointment orders in the year 1985 and the subsequent order of
regularisation in the year 1989 of the ad hoc appointees and on a fair
reading of the relevant Service Rules, namely Service Rules, 1993 and
the Seniority Rules, 1991, our conclusion would be that the services
rendered by the ad hoc appointees prior to their regularisation as per the
1979 Rules shall not be counted for the purpose of seniority, vis-à-vis,
the direct recruits who were appointed prior to 1989 and they are not
entitled to seniority from the date of their initial appointment in the year
1985. The resultant effect would be that the subsequent re-determination
of the seniority in the year 2016 cannot be sustained which was considering
the services rendered by ad hoc appointees prior to 1989, i.e., from the
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2021] 6 S.C.R.
date of their initial appointment in 1985. This cannot be sustained and
the same deserves to be quashed and set aside and the seniority list of
2001 counting the services rendered by ad hoc appointees from the date
of their regularisation in the year 1989 is to be restored.
9. Now so far as the reliance placed upon the decision of this
Court in the case of Direct Recruit Class II Engg. Officers’ Assn.
(supra), relied upon by the learned Senior Advocate appearing on behalf
of the ad hoc appointees is concerned, it is required to be noted that
even in the said decision also, it is observed and held that where initial
appointment was made only ad hoc as a stop gap arrangement and not
according to the rules, the officiation in such post cannot be taken into
account for considering the seniority. In the case before this Court, the
appointments were made to a post according to rule but as ad hoc and
subsequently they were confirmed and to that this Court observed and
held that where appointments made in accordance with the rules, seniority
is to be counted from the date of such appointment and not from the
date of confirmation. In the present case, it is not the case of confirmation
of the service of ad hoc appointees in the year 1989. In the year 1989,
their services are regularised after following due procedure as required
under the 1979 Rules and after their names were recommended by the
Selection Committee constituted
under the 1979 Rules. As observed
hereinabove, the appointments in the year 1989 after their names were
recommended by the Selection Committee constituted as per the 1979
Rules can be said to be the “substantive appointments”. Therefore, even
on 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 case
on hand. At the cost of repetition, it is observed that the decision of this
Court in the case of Direct Recruit Class II Engg. Officers’ Assn.
(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 Kumar
Sain (supra), relied upon by the learned counsel appearing on behalf of
the ad hoc appointees also shall not be applicable to the facts of the case
on hand. In the case before this Court, the promotees appointed on ad
hoc were continued for fairly long periods and their appointments were
made after due consultation with, or approval of Service Commission,
and therefore their appointments were held not to be ad hoc or fortuitous
or stopgap. It is to be noted that in the present case when the ad hoc
appointees were appointed in the year 1985, there was no consultation
A
B
C
D
E
F
G
H
461
with the UPSC and as such there was no recommendation by the UPSC.
Their services came to be regularised as per the 1979 Rules and after
they were selected by the Selection Committee constituted under the
1979 Rules, which specifically provides that for the purpose of
regularisation of ad hoc appointments, the appointing authority shall
constitute a Selection Committee and consultation with the Commission
shall not be necessary. It is also to be noted that when the ad hoc
appointees were appointed in the year 1985, they were appointed on the
basis of the recommendations of the Selection Committee constituted
for ad hoc appointments and when subsequently their services were
regularised and they were appointed in the year 1989, they were appointed
by the order of Governor. This is one additional ground to hold that their
substantive appointments can be said to be only from the date of their
regularisation/appointment made in the year 1989 after their names were
recommended by the Selection Committee constituted under the 1979
Rules and their services were regularised as per the 1979 Rules after
following the procedure as required under the 1979 Rules, i.e., in the
year 1989. Therefore, their seniority is to be counted only from
14.12.1989, the date of their regularisation and the services rendered by
the ad hoc appointees prior thereto, i.e., from the date of their initial
appointments in the year 1985 is not to be counted for the purpose of
seniority,
vis-à-vis, the direct recruits appointed prior to 1989.
11. In view of the above and for the reasons stated above, all the
appeals succeed. The impugned judgments and orders dated 19.09.2016
passed 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 and
judgments 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 the
High Court of Uttarakhand are hereby quashed and set aside. The re-
determination of the seniority and the revised seniority list dated
22.03.2016 counting the services of the ad hoc appointees prior to
14.12.1989 and counting the services as ad hoc from 12.06.1985 for the
purpose of seniority is hereby quashed and set aside and the final seniority
list dated 14.12.2001 fixing the seniority considering the services rendered
by ad hoc appointees from 14.12.1989 is hereby restored. Necessary
consequence shall follow. No costs.
Nidhi Jain
Appeals allowed.
RASHI MANI MISHRA  v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]