Supreme Court settles seniority of ad hoc Assistant Engineers: Rashi Mani Mishra vs. State of Uttar Pradesh (28 July 2021)

Introduction

Date of the Judgment: 28 July 2021

Citation: (2021) INSC 475

Judges: Dr. Dhananjaya Y. Chandrachud, J., M.R. Shah, J.

Can prior service as an ad hoc employee be counted when determining seniority after regularization? This question was at the heart of a dispute involving Assistant Engineers in Uttar Pradesh and Uttarakhand. The Supreme Court addressed this issue, clarifying the rules for calculating seniority in such cases.

The core issue revolved around whether the period of service an Assistant Engineer spent in an ad hoc position before being officially regularized should be included when calculating their seniority. The court had to reconcile conflicting interpretations of the relevant service rules and previous judgments.

The judgment was delivered by a two-judge bench consisting of Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah, with the opinion authored by Justice M.R. Shah.

Case Background

In 1985, 108 Assistant Engineers were appointed on an ad hoc basis in the Rural Engineering Department of Uttar Pradesh, following an advertisement. Their services were later regularized on 14 December 1989, under the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 (1989 Rules). These rules extended the provisions of the earlier 1979 Rules.

A final seniority list was prepared on 14 December 2001, which did not count the ad hoc service for seniority purposes. This meant that the engineers’ seniority was determined from the date of their regularization in 1989, not from the date of their initial ad hoc appointment in 1985.

Narendra Kumar Tripathi, one of the engineers, challenged this decision, arguing that his ad hoc service should be counted for seniority. His initial petition was successful, with the High Court directing his seniority to be counted from his initial appointment in the Work Charge Establishment on 18 January 1983, prior to his ad hoc appointment on 12 June 1985. Other writ petitions were also filed challenging the seniority list of 2001.

A Division Bench of the High Court dismissed a similar petition filed by other ad hoc Assistant Engineers. Due to conflicting decisions, the matter was referred to a Full Bench. The Full Bench ruled that ad hoc services, rendered without following proper procedures, could not be counted for seniority. This decision upheld the seniority list of 2001.

Narendra Kumar Tripathi then filed a Special Leave Petition before the Supreme Court against the Full Bench decision. The State also filed a Special Leave Petition against the High Court’s decision in Tripathi’s favor. The Supreme Court, in its 2015 judgment, allowed Tripathi’s appeal, holding that ad hoc service should be counted for seniority from the initial date of appointment. The State was directed to redetermine the seniority, which led to a revised seniority list in 2016 that downgraded many of the original petitioners.

Timeline:

Legal Framework

The case primarily revolves around the interpretation of the following rules:

• Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 (1979 Rules): These rules governed the regularization of ad hoc appointments. Rule 7 of the 1979 Rules states: “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.”
• Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 (1989 Rules): These rules extended the 1979 Rules.
• U.P. Government Servants Seniority Rules, 1991 (1991 Rules): These rules determine seniority based on the date of “substantive appointment.” The term “substantive appointment” is defined as “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.”
• Uttar Pradesh Rural Engineering (Group ‘B’) Service Rules, 1993 (1993 Rules): These rules govern the service conditions of Assistant Engineers in Rural Engineering. Rule 3(i) defines “substantive appointment” similarly to the 1991 Rules. Rule 21 states that seniority shall be determined according to the 1991 Rules.

These rules, especially Rule 7 of the 1979 Rules and the definition of “substantive appointment” in the 1991 and 1993 Rules, are central to the dispute. The Supreme Court had to determine whether ad hoc service could be considered a “substantive appointment” for the purpose of seniority.

Arguments

Appellants’ Arguments (Original Writ Petitioners):

• Per Incuriam Decision: The appellants argued that the Supreme Court’s decision in Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi, (2015) 11 SCC 80, was per incuriam (made in ignorance of existing law) because it did not consider earlier binding decisions of the Supreme Court.

  • The decision in Narendra Kumar Tripathi failed to consider Santosh Kumar and others v. G.R. Chawla and others, (2003) 10 SCC 513, and State of Uttarakhand v. Archana Shukla, (2011) 15 SCC 194, which interpreted the 1979 Rules and held that ad hoc service should not be counted for seniority.
  • The Court in Narendra Kumar Tripathi did not consider the entire Rule 7 of the 1979 Rules, which specifies that seniority is to be counted from the date of appointment after selection according to the rules.

• Ad Hoc vs. Substantive Appointment: The appellants contended that ad hoc appointments are not “substantive appointments” as defined in the 1991 and 1993 Rules. They argued that seniority should be counted only from the date of regularization under the 1979 Rules, which is when they were substantively appointed.

  • They emphasized that the 1979 Rules require a selection process for regularization, and only after this process can an appointment be considered substantive.
  • They cited various decisions of the Supreme Court that held that ad hoc service cannot be counted for seniority when the initial appointment was not according to rules.

• Terms of Appointment: The appellants pointed out that their initial ad hoc appointment orders specifically stated that they would not have any claim for seniority based on the date of the ad hoc appointment. They further cited that even in the regularization order, it was mentioned that seniority will be fixed later.

• Impact of Redetermination: The appellants argued that the redetermination of seniority based on the Narendra Kumar Tripathi decision had unfairly pushed them down the seniority list, contrary to the observation in that judgment that holding of posts will not be disturbed.

Respondents’ Arguments (Ad Hoc Appointees):

• Reliance on Narendra Kumar Tripathi: The respondents argued that the re-determination of seniority was done as per the directions of the Supreme Court in Narendra Kumar Tripathi, and therefore, no error was committed. They contended that the issue had attained finality.

• Consideration of Earlier Decisions: The respondents submitted that the Supreme Court in Narendra Kumar Tripathi considered the earlier decisions in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715, and Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25, which held that ad hoc service should be counted for seniority.

• Selection Process: The respondents argued that their ad hoc appointments in 1985 were made after due selection by a duly constituted Selection Committee, and therefore, their ad hoc service should be counted for seniority.

• Reliance on Dr. Chandra Prakash: The respondents relied on Dr. Chandra Prakash and others v. State of U.P., (2002) 10 SCC 710, which held that temporary service should be considered for seniority.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following key issue for consideration:

1. Whether the services rendered by the Assistant Engineers as ad hoc should be counted for the purpose of seniority, or whether their seniority should be counted from the date of their regularization.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issue:

Authorities

The Supreme Court considered the following authorities while deciding the case:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The decision in Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi, (2015) 11 SCC 80* was overruled as per incuriam.
• The decisions in Santosh Kumar and others v. G.R. Chawla and others, (2003) 10 SCC 513* and State of Uttarakhand v. Archana Shukla, (2011) 15 SCC 194* were followed.
• The decisions in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715*, Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25* and Dr. Chandra Prakash and others v. State of U.P., (2002) 10 SCC 710* were distinguished.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The Court emphasized that the decision in Narendra Kumar Tripathi was made without considering the binding precedents of Santosh Kumar and Archana Shukla, rendering it per incuriam.
• The Court placed significant weight on the language of Rule 7 of the 1979 Rules, which clearly states that seniority is to be counted from the date of appointment after selection under those rules.
• The Court also highlighted the definitions of “substantive appointment” in the 1991 and 1993 Rules, which exclude ad hoc appointments.
• The Court distinguished the cases relied upon by the respondents, finding them inapplicable to the facts of the case.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio Analysis:

The Court’s decision was primarily based on a legal interpretation of the relevant rules and precedents, with a lesser emphasis on the factual aspects of the case.

Logical Reasoning

Key Takeaways

• Seniority Calculation: The Supreme Court clarified that ad hoc service prior to regularization should not be counted for seniority purposes. Seniority is to be counted from the date of regularization under the 1979 Rules.
• Per Incuriam: The Court reaffirmed the principle that a decision made in ignorance of binding precedents is per incuriam and not binding.
• Substantive Appointment: The Court emphasized that ad hoc appointments are not “substantive appointments” as defined in the relevant service rules.
• Rule Interpretation: The Court highlighted the importance of interpreting rules in their entirety, rather than selectively.

Potential Future Impact:

• This judgment sets a clear precedent for calculating seniority in cases involving ad hoc appointments followed by regularization, particularly in Uttar Pradesh and Uttarakhand.
• It reinforces the importance of following proper procedures for appointments and regularization.
• It may lead to a review of seniority lists in other departments where similar issues exist.

Directions

The Supreme Court issued the following directions:

• The impugned judgments of the High Courts were quashed and set aside.
• The redetermination of seniority and the revised seniority list dated 22 March 2016 were quashed and set aside.
• The final seniority list dated 14 December 2001, which counted the services of ad hoc appointees from 14 December 1989, was restored.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that ad hoc service prior to regularization cannot be counted for seniority when the relevant rules specify that seniority is to be counted from the date of appointment after selection under the rules and the definition of “substantive appointment” excludes ad hoc appointments. The Court also held that a judgment made in ignorance of binding precedents is per incuriam.

Change in Previous Positions of Law: This judgment overrules the Supreme Court’s own decision in Narendra Kumar Tripathi, which had held that ad hoc service should be counted for seniority. This represents a significant change in the legal position regarding the calculation of seniority in cases of ad hoc appointments followed by regularization.

Conclusion

The Supreme Court’s judgment in Rashi Mani Mishra vs. State of Uttar Pradesh clarifies that ad hoc service prior to regularization should not be counted for seniority. The Court overruled its previous decision in Narendra Kumar Tripathi, holding it to be per incuriam. The Court emphasized the importance of adhering to the relevant service rules, particularly the definition of “substantive appointment” and the specific provisions of the 1979 Rules. This judgment restores the seniority list of 2001 and provides a clear legal framework for calculating seniority in similar cases.