Service Law 1

STATUS AND RIGHTSOF ADHOC EMPLOYEES

AND DAILY WAGERSAND THEIR

REGULARISATION

SUBMITTED TO: SUBIMTTED BY:

Mrs. Gurjinder Harkiran Singh Brar 87/10

VIIIth Semester

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Acknowledgement

I owe a great many thanks to a great many people who helped and supported me during the

writing of this project.

My deepest thanks to my Service Law Lecturer, Mrs. Gurjinder, the Guide of the project for

guiding me and correcting various documents of mine with attention and care. She has taken

pain to go through the project and make necessary corrections as and when needed.

I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.

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Contents

Introduction................................................................................................................................4

Adhocism- Arbitrary and Discriminatory..................................................................................5

Status of Ad hoc Employees.......................................................................................................7

Termination of Service...............................................................................................................7

Procedure for Making Ad hoc Appointments...........................................................................10

Regularisation of Ad hoc Employees- Principles Therefor......................................................11

Bibliography.............................................................................................................................20

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IntroductionArticle 309 of the Constitution of India confers power on the appropriate authority to regulate the recruitment to the public services of the Union or of any State. It enables the Executive to make recruitment to the governmental services. However, this power of the Executive is subjected to the provisions of the Constitution and the provisions of any Statute enacted by the appropriate Legislature. It has been held that, the creation and abolition of a post is the prerogative of the Executive.

The Executive may exercise this power, either by making rules under the proviso to Article 309 or by issuing rules/instructions in the exercise of its executive power.1 However, while exercising its power, the Executive must act fairly, consistent with the provisions of the Constitution, as also the provisions of relevant Statutes and Statutory Rules.2

Normally, the appointments to government services are made through the prescribed agency. But exigencies of administration may sometimes call for making of ad hoc or temporary appointments. It has been held that the power to make ad hoc may be visualised to tide over unforeseen exigencies.3 The object behind the exercise of this power is to run smooth administration.

Literally the term “ad hoc” means “arranged or done for a particular purpose only.” It means “something which is formed for a particular purpose.” Referring to Black’s Law Dictionary, the Supreme Court in Rudra Kumar Sain v Union of India,4 distinguished between the terms “ad hoc”, “stop-gap” and “fortuitous”, which are in frequent use in service jurisprudence. The Apex Court said:

“the expression “fortuitous” means “occurring by chance”, a fortuitous event may be highly unfortunate. It indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression “ad hoc” means “something which is formed for a particular purpose”. The expression “stop-gap” means “a temporary way of dealing with a problem or satisfying a need”.

The Court further explained that the meaning to be assigned to these terms while interpreting provisions of a Service rule would depend on the provisions of that Rule and the context in and the purpose for which the expressions were used. In the absence of definition of these terms in the Rules, the Court would look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters.

1 State of Haryana v Piara Singh, AIR 1992 SC 2130.2 A. B. Krishna v State of Karnataka, AIR 1998 SC 1050.3 J. & K. Public Service Commission v Narinder Mohan, AIR 1994 SC 1808.4 AIR 2000 SC 2808.

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It would be necessary, therefore, to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicated that the post was created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post, the Court said, could be aptly described as “ad hoc” or “stop-gap”. If a post was created to meet a situation which had suddenly arisen on account of happening of some event of a temporary nature, then the appointment to such a post, the Court ruled, could aptly be described as “fortuitous” in nature.

The Court further elucidated that if an appointment was made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it was not possible to leave the post vacant till then, and to meet that contingency an appointment was made, then it could appropriately be called as a “stop-gap” arrangement and appointment in the post as “ad hoc” appointment. The Court further said that it was not possible to neither lay down any strait-jacket formula nor give an exhaustive list of circumstances and situations, in which as “ad hoc” or “stop-gap” appointment could be made. Such appointments are intended to be stop-gap temporary appointments to serve the stated purposes and not long term ones.5

But merely because there was no relevant Service Rules for recruitment to the post, it cannot be assumed that such appointment has been made without any selection and, as such appointment would attract the expression “ad hoc”. The question, as to whether an appointment is “ad hoc”, has to be answered on the basis of relevant factors, namely, nature of post, the nature of test or selection held for filing up the post, the period of duration with which incumbent availed the post and all other relevant materials.6

Adhocism- Arbitrary and Discriminatory

Ad hoc appointments, a convenient way of entry, usually from back door, at times even in disregard of rules and regulations, are comparatively recent innovations to the service jurisprudence. The infection is said to be widespread in Government or semi-government departments or State financed institutions. The Apex Court has deprecated the regularisation and absorption of persons working as part-time employees or on ad hoc basis, as it has become a common method of allowing back door entries.7

In K. S. P. College Stop-Gap Lecturers Association v State of Karnataka,8 the Apex Court said that the infection of making ad hoc appointment ‘arises either because the appointment authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under

5 J. M. Puthnparambil v Kerala Water Authority, AIR 1990 SC 2228.6 Ramesh K. Sharma v Rajasthan Civil Services, AIR 2001 SC 362.7 Ashwani Kumar v State of Bihar, AIR 1997 SC 1628.8 AIR 1992 SC 677.

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emergency measure or to avoid loss of work etc. The rules of circulars issued by the department might itself empower the authority to do so as a stop-gap arrangement. The former the court held was an abuse of power which was unpardonable. The court has deprecated the practice as it had become a common method of allowing back door entries.

In Rattan Lal v State of Haryana,9 the Supreme Court held the policy of “adhocism” followed by State Government for a long period had led to breach of Article 14 of the Constitution. Under this policy the State Government had been appointing teachers for quite some time on ad hoc basis for short periods within justifiable reasons. In some cases the appointments for short period without justifiable reason. In some cases the appointments were made for a period of six months only and there were renewed after break of few days. These ad hoc teachers were denied the benefit of summer vacations as also the salary and allowances payable in respect to that period and to all other privileges such as casual leave, medical leave , etc. unreasonably on account of this pernicious system of appointment adopted by the State Government. They were unnecessarily subjected to an arbitrary “hiring and firing “policy. The apex Court held that though the Government was expected to function as a model employer, yet it appeared to be exploiting the situation. Such a situation, the Court said, could not be permitted to last any longer.10

Emphasizing that education was dire need of the country and the constitutional obligation of the State to secure right to education for all citizens, the Supreme Court in Rabinarayan Mohapatra v State of Orissa,11 disapproved the adhocism in teaching appointments. The Court held that an appointment on 89 days basis with one day break, which deprived the teachers of his salary for the period of summer vacations and other services benefits, was wholly arbitrary and suffered from the vice of discrimination. In order to make the existing educational set –up effective and efficient, the Apex Court ruled that it was necessary to do away with adhocism in teaching appointments.

Directing the ad hoc employee be replaced as expeditiously as possible by direct recruits. The Supreme Court in J. & K. Public Services Commission v Narinder Mohan,12 observed:

Otherwise and recruitment according to the rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play. The latter are the products of order and regularity.

Status of Ad hoc Employees

9 AIR 1987 SC 478.10 Daily Rated Casual Labour (P. & T.) v Union of India, AIR 1987 SC 2342. 11 AIR 1991 SC 1286.12 AIR 1994 SC 1808.

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As regard the status, the ad hoc employees virtually stand at the lowest rung as against a permanent, quasi-permanent and temporary employee. It has been held that an ad hoc employee does not acquire the right to hold the post or to continue in employment indefinitely in contrast to a regular employee. The ad hoc employees are said to form a distinct class.13

The Punjab and Haryana High Court in Faculty Association P.G.I. v Union of India,14 has held that the ad hoc appointees have no right to claim regularisation of their services. However, they are entitled to be considered along with other eligible candidates.

Again, the Andhra Pradesh High Court in V.J. Balready v Andhra Bank,15 ruled that when an ad hoc appointment was made for a particular time and not in accordance with the prescribed rules, it being merely a stop-gap arrangement, the appointees had no right to claim continuance in service after the expiry of the period of appointment.

It being a stop-gap agreement, an ad hoc appointment does not automatically give any vested right to the appointee to claim continuity in service till it is regularised.16 It is only transient in nature pending the allotment of employees selected according to the prescribed rules and regulations.17

However, if for any reason such an ad hoc employee is continued for a fairly long time, the authorities must consider his case for regularisation provided he is eligible for and qualified according to rules.

Termination of Service

Termination of ad hoc employee at any time is inherent in the nature of service. It has been said that ad hoc employees have no right to the post.18 The Punjab and Haryana high Court in Sunil Kumar v State of Haryana,19 ruled that it was for the State Government to see if there was requirement for the services of a person. Merely because the post was there or for such post some work was there, was no ground per se to hold the order of termination to be illegal, mala fide or against the terms of the appointment letter.

In Hindustan Petroleum Corporation Ltd. v Ashok Ranghba Ambre,20 the respondent was engaged by the corporation in 1984, on casual basis, as an ‘unskilled workman’ as its refinery at Bombay. In 1992, he filed a writ petition in the High Court by invoking Article 226, inter alia, praying that he be de cared as permanent workman on the post of compounder/dresser 13 Saroj Kumari v State of Punjab, 1998 (5) SLR (P. & H.) 266.14 1995 (5) SLR (P. & H.) 682.15 1997 (6) SLR (A. P.) 734.16 Dr. Smt Sunanda Satya v University of Rajasthan, 1991 (1) SLR (Raj.) 659.17 Prabhat Kumar Sharma v State of U. P., AIR 1996 SC 2638.18 Sunil Kumar v State of Haryana, 1994 (2) SLR (P. & H.) 183.19 P. Ramachandra Rao v State of A. P., 1997 (2) SLR (A. P) 541.20 2008 (2) SLR 321 (SC).

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with effect from June 6, 1987 in the corporation. It appeared from the record , that he was engaged purely on ad hoc and temporary basis without following proper procedure of law and without them corporation and without them being any right in his favour. The services were terminated by the Corporation. But, the tribunal quashed the termination order. His name was never sponsored by the Employment Exchange nor was an advertisement issued for the purpose of filling the post to with the respondent was appointed. Cases of other similarity situated persons were not considered. The appointment of the respondent was therefore, not found to be legal and lawful.

Merely because in industrial adjudication, an order of termination was quashed as it was not in accordance with law, the workman was held to have no substantive right to hold the post. The Apex Court held him not entitled to be regularised as permanent employee. Since he had been serving the corporation for more than two decades, the Court required the appellant to consider his case for permanency sympathetically.

The Apex Court has distinguished between regularisation and permanence.

In State of Mysore v S.V. Narayanappa,21 the Court stated that regularisation would not mean that the appointment would have to be considered as permanent. The Court explained in B.N. Nagarajan v State of Karnataka,22 that the words “regular” or “regularisation” did not connote “permanence”. They were terms calculated to condone any procedural irregularity and were meant to be cure only such defects or were attributable to the methodology followed in making the appointments and could not be constructed so as to convey an idea of the nature of tenure of appointments, the Court said.23

In Union of India v S. K. Bhargava,24 the letter of appointment of the respondent appointing him as Assistant Medical Officer on ad hoc basis provided. In case your services were continued on ad hoc basis beyond six months due to shortage of candidates duly selected by UPSC, and if you fail to get selected in the selection/competition examinations held by the UPSC on three successive occasions or do not avail of three chances successively, your Services shall be terminated. The officer did not avail the three successive chances for regularisation of service, as also found unsuitable for regularisation of services by the Service Commission in special selection, his removal from service was held to be proper. Again, where the petitioner took part in interview but was not selected, the termination of his service cannot be said to be arbitrary or unreasonable.25

In Jagbir Singh v Punjab Backward Classes Land Dev. & Finance Corporation, Chandigarh,26 the petitioner appointed an ad hoc basis, was duly interviewed along with

21 1967 (1) SLR 128 (SC).22 1979 (4) SCC 507.23 State of Orissa v P. K. Sahoo, AIR 2007 SC 2588.24 AIR 1997 SC 2845.25 Satish v Jind Coopt. Sugar Mills, 1994 (1) SLR (P. & H.) 406.26 1998 (1) SLR (P. & H.) 407.

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persons sponsored by Employment Exchange. Candidates with more merit appointed, while the services of the petitioner were terminated. It was held neither to be illegal nor arbitrary.

Likewise, in State of U.P. v Brij Nath Misra,27 the termination of service of the respondent, working on ad hoc basis after his case was considered by the Committee duly constituted under the Rules, was held proper when the Committee found him not fit to be regularised.

As ad hoc employee has no lien or right to the post. Again, it has been held that an ad hoc employer has to give place to a candidate who is duly elected and posted, whether directly or by transfer.28 An ad hoc appointment, being a stop –gap arrangement, does not create a vested right for regularisation.29

It has been stated that an ad hoc employee or where the appointment was made de hors Rules and constitutional scheme of public employment,30 the holder of the post does not acquire any right to hold his post. His services can be terminated without affording him any opportunity of hearing.31 No enquiry need to be held before terminating the services of an ad hoc employee.32 However, where the terms of appointment order require the issue of a notice of termination, the termination done without such a notice would be bad and cannot be upheld as proper.33

Again, it has been held that where the petitioner is appointed on purely ad hoc basis, a condition that he would stand relieved on the expiry of the term specified in the order of appointment, has been held to be unconscionable and the termination of service on the expiry of the term of appointment as arbitrary, oppressive and unconstitutional.34

In Babu Lal v State of Haryana,35 the Apex Court ruled that the Court could see whether order of termination of service of an ad hoc employee was penal in nature, though it was couched in accordance with the terms and solutions of the order of appointment.

In the instant case the appellant was appointed as Sub- Inspector, Food and Supplies on ad hoc basis for six months against the ex-servicemen quota. As per the service Rules and the terms and conditions of the order of appointment, his services were liable to be terminated at any time during that period without any notice and without assigning any reason. His services were liable to be terminated at any time without notice on arrival of regular candidates from the SSB. He had been continuing in service for more than five years without break, when he was suspended in view of criminal proceedings pending against him. He was acquitted of the charge made against him. During the pendency of the criminal proceedings, he was served with an order of termination. The order was held illegal. 27 AIR 1997 SC 2393.28 Dr. Kishore v State of Maharashtra, 1997 (1) SLR (SC) 107.29 D. P. Sharma v AIIMS, 1999 (8) SLR (Del.) 407.30 State of Karnataka v Umadevi, AIR 2006 SC 2296.31 Girish Kumar Misra v Director Inspector of Schools, 1999 (6) SLR (Raj.) 561.32 State of U. P. v Kamla Devi, 1996 (4) SLR (SC) 455.33 Haryana State v Jagdish Chander, 1997 (1) SLR (P. & H.) 41.34 Gordhan Singh Gulia v State of Haryana, 1997 (1) SLR (P. & H.) 353.35 AIR 1991 SC 1310.

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The Court ruled that where an ad hoc employee was placed under suspension on the sole ground that criminal proceedings was pending against him, which ultimately ended in acquittal, he was entitled to be reinstated in service of being acquitted of the charge. The Government could have after reinstating him initiated disciplinary proceedings and after giving an opportunity of hearing passed an order of termination on the basis of the terms and condition of the order of his appointment but could not have straight away terminated his services.36

In Sumati P. Shere v Union of India,37 The Supreme Court emphasized that if services of an ad hoc employee were to be discontinued on ground of unsuitability, it was proper and necessary that he should be told in advance that his work and performances were not up to the mark. The employee should be made aware of the defect in his work and deficiencies in his performance. Timely communication of the assessment of work in such cases might put the employee on the right track, the Court said. Without any such communication, the Court ruled, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. In the relationship of master and servant, the Court observed, there was a moral obligation of act fairly.

Procedure for Making Ad hoc Appointments

The executive is vested with power, subject of course, to a law made by the appropriate Legislature, to make provisions for regulating the recruitment to public services. This power, however, should be exercised fairly and ensuring a fair deal to every person consistent with the requirements of Article 14 and 16 of the constitution. Further, the State should not exploit its employees nor should it seek to take advantage of helplessness and misery of either the unemployed persons or the employees as the case may be.38

Even in making ad hoc appointments, the State must adopt some procedure consistent with the requirement of Article 16, except in extraordinary situations where the appointments brook no delay whatsoever Appointments made by pick and choose method in an arbitrary manner inconsistent with the requirement of Article 16 are liable to be quashed by the Courts.39 It has been emphasized that for making ad hoc appointments person should ordinarily be drawn from the employment Exchange. In case no candidate is sponsored by the Employment Exchange, some appropriate method consistent with Article 14 and 16 should be followed.

Regularisation of Ad hoc Employees- Principles Thereof

36 Rajinder Kaur v State of Punjab, AIR 1986 SC 1790.37 Darshan Singh V State of Punjab, AIR 1998 (4) SLR (P. & H.) 292.38 State of Haryana v Piara Singh, AIR 1992 SC 2130.39 Sukhdarshan Pal Sehgal v State of Punjab, 1994 (2) SLR (P. & H.) 228.

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It has been said that the State must be a model employer. It is for this reason, the Courts have emphasized that a person should not be kept in a temporary or ad hoc appointment status for long. Where a temporary or ad hoc appointment is continued for long, The Court presumes that there is need and warrant for a regular post. In that event the Court may direct regularisation of the ad hoc appointee.

In State of Haryana v Piara Singh,40 a large number of writ petitions, arising from both the State of Punjab and Haryana, were heard together by the Apex Court and common judgement was delivered, giving certain directions in the matter of regularisations of the ad hoc and other temporary employees. The directions may be summarised as follows:

The Court while giving directions for regularisation of ad hoc employees, must act with due care and caution.

From the mere continuance of an ad hoc employee for one year, it cannot be presumed that there is a need for a regular post.

There can be no rule of thumb in such matters, Conditions and circumstances of one unit may not be the same as the other.

The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. The conditions or rules relating to length of temporary/ad hoc service requisite for regularisation need not be uniform in each State.

The employees must have possessed prescribed qualification at the time of ad hoc appointment.

The condition that employee must have been sponsored by Employment Exchange would be reasonable and wholesome requirement designed to curb back door entry.

The Court cannot direct regularisation to help employees who could not satisfy the stipulated conditions.

Exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effect should always be to replace such an ad hoc employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular appointment/selection.

The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc employee.

As ad hoc employee should not be replaced by another ad hoc employee; he must be replaced by a regularly selected employee.41

40 AIR 1992 SC 2130.41 V. S. Malik v Haryana State, 1994 (5) SLR (P. & H.)

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Even where an ad hoc employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the Employment Exchange unless it cannot break delay in which can the pressing cause must be stated on the file.

If no candidate is available or is not sponsored by the Employment Exchange, some appropriate method consistent with the requirement of Article 16 should be followed.

An unqualified person ought to be appointed only when qualified persons are not available through the above process.

If for any reason, an ad hoc employee is continued for a fairly long time, the authorities must consider his case for regularisation provided, he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not counter to the reservation policy of the state.42

If and when an ad hoc employee is regularised, he should be placed below the last regularly appointed employee in the category, class of service, as the case may be.

The Apex Court further suggested that the proper course would be that State might prepare a scheme, if one did already in vogue, for regularisation of ad hoc or temporary employees consistent with its reservation policy. If a scheme was already framed , the same might be made consistent with the above mentioned observations so as to reduce avoidable litigation in this behalf.

In K.S.P. College Stop-Gap Lectures Association v State of Karnataka,43 the Apex Court directed that such temporary teachers who had worked as such for three years including break till the date of judgement should be regularised even by creating additional posts.

Where the Government takes a policy decision to regularise the service of ad hoc employees, the employees would acquire the right to be considered in accordance with the policy decision.44

In Bhalle Ram v Haryana State Electricity Board Ltd.,45 the appellant was appointed as Store Mate on work charge basis in March 1969 and on attaining the age of superannuation got retired in 1991.The State Government had in 1987 and 1990, issued two circulars, where under the work charge employees were required to be regularised and brought on the regular establishment of the Board. In view of this policy decision, the petitioner was held entitled to be regularised and to all pensionary benefits.

In J. & K. Public Service Commission v Narinder Mohan,46 the Supreme Court explained the effect of the decision in State of Haryana v Piara Singh,47 and observed that the Apex

42 Rabinarayan Mohapatra v State of Orissa, AIR 1991 SC 1286.43 AIR 1992 SC 677.44 Kesar Chand v State of Punjab, 1988 (5) SLR 27 (P. & H.).45 2008 (2) SLR 524 (P. & H.).46 AIR 1994 SC 1808.47 AIR 1992 SC 2130.

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Court did not appear to have intended to lay down, as a general rule, that in every category of ad hoc appointment, if ad hoc appointed continued for a long period, the rule of recruitment should be relaxed and the appointment by regularisation be made. The Court, therefore, held that a little leeway to make an ad hoc appointed due to emergent exigencies, did not clothe the executive Government with power to relax the recruitment to be regular or in accordance with rules.

In the instance case, lecturers were appointed on ad hoc basis in different disciplines of medical education. The Government subsequently relaxed the rules of recruitment and appointed these lecturers on regular basis. These appointments were held de hors the rules and not in the accordance with the rules, which required the recruitment to be made by public Service Commission. The Court thus ruled that where the Rules required selection through Public Service Commission, the Executive could not relax the rules in the exercise of its genera powers.

In Ashwani Kumar v State of Bihar,48 the Apex Court held that the employees, whose entry in the service was illegal, being in total disregard of recruitment Rules or being not on existing vacancies, had no case for regularisation. The Court explained that the question of regularisation in any service might arise in two contingencies. Firstly, if on any available clear vacancy which was of long duration, appointment was made on ad hoc basis, by a competent authority and the appointee was continued on ad hoc basis for a given substantial length of time with pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following rules and regulations governing such entry. The second type of situation would be when initial entry against an available vacancy was found to have suffered from some flaw in the procedural exercise though the person appointing was competent to effect such initial recruitment and had otherwise followed due procedure for such recruitment.

The court further ruled that there would never arise any occasion for regularising the appointment of an employee whose initial entry itself was tainted and was in total breach of the requisite procedure of recruitment and especially when there was no vacancy on which such an initial entry of the candidate could even be effected.

The Apex Court made it clear that the so-called regularisation and confirmation could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods of making recruitment.49

In Hindustan Shipyard Ltd. v P. Sambasiva Rao,50 the Recruitment Selection Committee. The direction given by the High Court for regularization of medical Officers working on ad hoc basis giving go by to procedure prescribed by the Rules, was set aside by the Apex Court. The Court further held that regularization of the respondent on the post of medical offers

48 AIR 1997 SC 1628.49 Prabhat Kumar Sharma v State of U. P., AIR 1996 SC 2638.50 AIR 1996 SC 3230.

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could be made only after they were considered and found suitable for such appointment by a duly constituted Selection Committee.

It is thus well established that any appointment made an ad hoc basis or as a stop-gap arrangement does not automatically give any vested right so such an employee to continuity in service till it is regularized.51 Again, where initial ad hoc appointment is made not in accordance with the Service Rules, the appointees cannot seek regularization of their services.

In case the State frames Rules for regularization of ad hoc appointments, benefit of such Rules would be available only if ad hoc employees are in service. Thus, where the services of the ad hoc appointees are terminated before the data on which the Rules came to be introduced, they would not be entitled to be regularized under those Rules.52 Any illegal or irregular appointees, working on ad hoc basis cannot claim regularization even if their appointment is continued for a long period.53 It has been held that the services rendered by an ad hoc appointee appointed de hors Services Rules, who subsequently gets appointed on regular basis without any interruption in the service, cannot be treated as regular service.54

Continuing of Ad hoc Service Towards Seniority

It has been stated that where an ad hoc appointment is continued for long, the Court presumes that there is need and warrant for a regular post and according the court directs regularization of service. On , the further question needs to be determined as to the counting of ad hoc service towards seniority. The question has engaged the attention of the Courts on many occasions. In such cases the Courts have considered the circumstances under which and the manner in which an ad hoc appointment has been made.

In Direct Recruit Class II Eng. Officers Association v State of Maharashtra,55 a Constitution Bench of the Supreme Court rules that where the initial appointment was only ad hoc and not according to rules and made as a stop-gap arrangement, the officiate in such post could not be taken into account for considering the seniority.

In State of W.B. v Aghore Nath Dey,56 a three judge panel of the Apex Court reiterated the observations made in Direct Recruit Class had been made as the stop-gap arrangement and where there was a procedural irregularity in making appointments according to Service Rules and that irregularity was subsequently rectified, the benefit of ad hoc service could not be admissible.

51 G. Sudhakar v L. I. C. of India, 1999 (1) SLR (A. P) 355.52 Ramchander v Addl. Dist. Magistrate, AIR 1999 SC 1543.53 Subedar Singh v District Judge, Mirzapur, AIR 2001 SC 201.54 State of Haryana v Haryana V and A. H. T. S. Association, AIR 2000 SC 3020.55 AIR 1990 SC 1607.56 1993 (3) SCC 371.

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In Chief of Naval Staff v G. Gopalakrishna Pillai,57 Sri Pillai was given ad hoc appointment to the post of Store-keeper and while he had been continuing in such ad hoc appointment, he was regularized in the post of storekeeper. While he was given appropriate fitment in the scale of seniority to the cadre of storekeeper was concerned, the seniority had been given only from the date when he was regularized in that post. It was noticed that the Sri Pillai was not selected by regularly constituted selection body for giving ad hoc service till regular appointments to such post was made. This apart, the ad hoc appointment was given to him by clearly indicating in the order of ad hoc appointment that such appointment on ad hoc would not confer nay right to claim seniority in the said post. Since the initial ad hoc appointment was not made by regularly constituted selection body. The Apex Court ruled that his seniority could not be fixed giving benefit of continuous officiation on ad hoc post.

In M.K. Shanmugan v Union of India,58 the respondents were directly thorough the Union Public Service Commission of Assistant Executive Engineers class 1, while the appellants were recruited as Asst. Engineers Class. Subsequently both, the respondents as well as the applicants, were promoted on ad hoc basis and thereafter they were regularized as Executive Engineers. A question having arisen as to seniority between the respondent and the appellants, the Central Administrative Tribunal held the view that the appellants could not take advantage of ad hoc promotions made purely as a stop-gap arrangement. The Apex Court approved the decision of the Tribunal and held the ad hoc service in the post could not be counted for seniority, confirmation, promotion, etc. The Court said that the ad hoc service could be reckoned for the purpose of seniority only in those cases where initially the appointees had been recruited even though they had been appointed ad hoc the recruitment was subject to the same process as it had been done in the case of regular appointment and that the same was not a stop-gap arrangement.

In the matters of recruitment, it has been ruled that “recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-passing of the Public Service Commissions are permitted, it will not open a back door for illegal recruitment without limit. This note of warning was issued by the Apex Court in Dr. M. A. Haque v Union of India.59

In Swapan Kumar Pal v Samitabhar Chakraborty,60 a Division Bench of the Supreme Court has ruled that ad hoc promotion given to the respondents due to inability of Railways to hold suitability test regularly would not entitle ad hoc promotee to claim that his promotion was “regular”.

In the instant case, the respondents were promoted to the post of senior clerk on ad hoc basis as no regular promotion could be made by holding suitability test. Subsequently, the appellants were held suitable for promotion and promoted as senior clerks. Suitability test of respondents, already promoted on ad hoc basis was held and its result was declared after the 57 AIR 1996 SC 2904.58 AIR 2000 SC 2705.59 1993 (2) SCC 213.60 AIR 2001 SC 2353.

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date of promotion of appellants. The Railway Administration published a seniority list in which the respondents were shown junior to the appellants in the cadre of Senior Clerk, on the basis of the date of regular promotion, after due process of selection.

Upholding the seniority list, the Apex Court ruled that ad hoc services rendered by the respondents till they were regularly absorbed on adjudging their suitability by holding test, could not be reckoned for the purposes of their seniority in the cadre of Senior Clerk. The ad hoc promotion made in the present case, without holding any test for adjudging the suitability, the Court ruled, had to be held promotion de hors the Rules.

It may thus be stated that where the initial appointment/promotion is only ad hoc and not according to Rules or is de hors the Rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority

However, where an incumbent is appointed to a post according to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

In I. K. Sukhija v Union of India,61 the appellants were promoted as Asstt. Engineers against regular vacancies on their being found fit and suitable by the Department Promotion Committee and their promotion was made on ad hoc for the only reason that there was delay on the part of the Department in finalizing the Draft Recruitment Rules on 1969 till 1975. There was no unusual spurt in the construction activity between 1970 and 1977, which necessitated giving of urgent temporary promotions. For all the reasons stated above, the Court said that it was not possible to accept that the appointments of the appellants as Asstt. Engineers, though temporary and ad hoc, were by way of stop-gap arrangement. The appellants were held entitled to the benefit of period of ad hoc services for the purpose of counting seniority.

Likewise, in Keshav Deo v State of U. P.,62 the appellants fully qualified were promoted in 1979 to the post of Assistant Engineers on ad hoc basis. The said promotions were made within the quota of posts reserved for the promotees according to the relevant Service Rules by the Departmental Promotion Committee. The appointment orders stated that the promotion was being made to cope up with the work-load in the Department since the Asstt. Engineers approved by the Commission were not available and that the promotions were only for a period of one year. Since then the appellants had been working uninterruptedly on the said posts. In the year 1980, they were interviewed by the Commission and were duly approved and selected. Consequently, they were confirmed as Assistant Engineers. In the controversy inter se these promotees and the direct recruits, the appellants were held entitled to claim seniority in the post of Asst. Engineer from the date of initial appointments and officiation on the said posts.

61 AIR 1997 SC 2714.62 AIR 1999 SC 44.

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In Ajit Kumar Rath v State of Orissa,63 a Division Bench of the Supreme Court reviewed the entire case law and held that if the ad hoc promotion had been made in accordance with the Service Rules, the promotees would be entitled to reckon the period of ad hoc service towards their seniority. In this case the appellant was promoted on a regular though provisional basis, against permanent vacancy in accordance with the Service Rules. The selection was made by the Chief Engineer, authorised under the Rules to make the selection. Pending concurrence of the Orissa Public Services Commission, he was appointed by the Government on ad hoc basis. The promotion having been made in accordance with the Rules, the entire period of ad hoc service beginning from 1972 to 1976, when the appellant was appointed on a regular basis on the concurrence of the Commission, was held to be counted towards the seniority of the appellant.

It may thus be stated that if the ad hoc promotion had been made in accordance with the Service Rules and the promotee continued on ad hoc promotee uninterruptedly till duly regularised, he would be entitled to the benefit of ad hoc service rendered by him towards seniority vis-à-vis direct recruits.

In T. Vijayan v Divisional Railway Manager,64 the Apex Court applied the principles laid down by the Constitution Bench in Direct Recruitment Class II Engineering Officers Association v State of Maharashtra,65 and explained by a three Judge Bench of the Court in State of West Bengal v Aghora Nath Dey,66 held that the appellants could not claim seniority over the respondents ad hoc promotees who had already been appointed to the posts on ad hoc basis and were after due selection regularised on those posts.

But, in State of Karnataka v B. Suvarna Malini,67 the Court said that it would not be justified to strike down such process of regularisation in every case. Upholding the Karnataka Education Department of College Education Special Rules, 1996, the Apex Court held that such regularisation and absorption of ad hoc employees would not amount to discrimination when it had been made as a legislative measure and that also as a onetime measure and at the same time insisting upon the essential qualifications to be duly complied with, by the person intended to be absorbed on regular basis.

Where, the authority, before making appointment, neither intimated Employment Exchange about existing vacancies nor issued any advertisement, appointment made without following rules cannot be regularised. The appointment would be void ab initio. It was ruled that what could be regularised was an irregularity and not an illegality. Such an illegal appointment cannot be regularised even by the Supreme Court on sympathetic consideration in exercise of its jurisdiction under Article 142 on misplaced sympathy.68

63 AIR 2000 SC 85. 64 AIR 2000 SC 1766.65 AIR 1990 SC 1607.66 1993 (3) SCC 371.67 AIR 2001 SC 606.68 State of U. P. v Ajay Kumar, 1997 (4) SCC 88.

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Again, where persons are appointed on temporary basis on consolidated pay, by not following due process of selection, or made de hors Rules and constitutional scheme of public employment, regularisation cannot be claimed. Long satisfactory service would be no ground to sustain plea of regularisation. Also, in case of ad hoc promotion, done without complying with the rules, the promotees, on being regularised cannot claim seniority from the date of their ad hoc promotion. Where the State Government frames a policy or scheme for regularisation, the benefit of such policy/scheme, whether available to the applicant, needs to be considered by the Government.

Recruitment of temporary, contractual, casual, daily wages or ad hoc employees de hors the constitutional scheme of public employment, does not entitle them to claim regularisation.69 Such persons are said to have no right to invoke legitimate expectation, if any, to be absorbed, regularised or granted permanent continuance, on the basis of such relief having been granted to similarly placed employees in certain orders of the Supreme Court. Even long continuance of such employees on irregular basis, would entitle them, to claim equality with regularly recruited employees. In a catena of cases, it has been ruled that a daily wager does not hold a post.

Also, ad hoc or temporary promotion granted to the appellants on non-existent posts of Asstt. Executive Engineers does not confer any right of seniority on them. Likewise, a deputationist has no right to be absorbed in the post, though there is no bar, thereto, as well.70

Likewise, the employees selected on daily wage basis, not recruited according to the Rules made under Article 309 after selection, do not automatically become regular employees from day one, even if they performed duties similar to regular employees.

Where, for the absorption of the casual labourers, minimum educational qualifications and minimum days of employment already put in, were prescribed, it has been held that the qualification so stipulated were relatable to the individual workman at the time of leaving the service of the employer. Acquiring the qualifications subsequent to his ceasing to be an employee, would not entitle him to obtain the job under the absorption scheme.

Again, where persons are appointed under a project, such appointments being not against regularly sanctioned posts, on the closure of the project, the persons appointed will have to go along with its closure. They have not been held entitled to claim regularisation of their services.

But, where persons are appointed as part-time Border Wing Home Guards (BWHGs) for three months under a Scheme promulgated by the Government of India, patrolling borders in all weathers, without any facilities as provided to permanent staff of BWHGs and performing same duties, were continued for 10 to 15 years, without break, it was held that the Scheme

69 State of Orissa v P. K. Sahoo, AIR 2007 SC 2588. 70 Union of India v Ramakrishnan, AIR 2003 SC 3935.

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had lost character of voluntary nature on account of non-relieving part-time BHWGs, after expiry of 3 months and continuing them for 10/15 years.71

It is a trite law that where neither the initial appointment nor the confirmation was done by following the prescribed procedure, regularisation of such an appointment, being illegal, would be clear violation of Articles 14 and 16(1).72 It has also been ruled that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned was appointed in an irregular manner or on ad hoc basis against an available vacancy which was already sanctioned. But, if the initial entry was unauthorised and was not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy, would never survive for consideration and if such purported regularisation or confirmation was given, it would be an exercise in futility. It would amount to decorating a stillborn baby, the Court said.73

Bibliography KUMAR, Narender, Law Relating to Government Servants & Management of

Disciplinary Proceedings, 3rd Edition. Faridabad: Allahabad Law Agency. 2012

71 State of H. P. v Nodha Ram, AIR 1997 SC 1445.72 State of Jharkhand v Manshu Kumbhkar, 2008 (1) SLR 1.73 Ashwani Kumar v State of Bihar, 1997 (2) SCC 1.