State of Uttar Pradesh vs Riyaz Ali

Heard learned Standing counsel appearing for the State-petitioner and Sri V.S. Tripathi and Sri Arshad Rizvi for respondent No. 1. This petition challenges the judgment and order passed by State Public Services Tribunal, U.P. dated 6.2.1997 whereby the claim put forth by respondent No. 1 for counting the entire ad-hoc services for the purposes of reckoning seniority, has been allowed and he has been ordered to be placed at a proper place in the seniority and further his case has been ordered to be considered for promotion to the post of Executive Engineer w.e.f. 28.1.1995 i.e. the date from which the incumbents junior to him were promoted on the said post.

We have perused the judgment and order of the Tribunal and other relevant records available in the writ petition and have given our anxious consideration to the arguments raised by learned counsel appearing for the respective parties.

The sole question for consideration in this case is as to whether the services rendered by the petitioner-respondent No. 1 in ad-hoc capacity from the date of his initial appointment i.e. from 21st August, 1981 till the date of his regularization i.e. 23rd August, 1986 is to be reckoned for the purposes of giving benefit of seniority or not?

The law in respect of counting such services for the purposes of seniority has been summarized by Hon''ble Apex Court in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, AIR 1990 SC 1607 : (1990) 60 FLR 918 : (1990) 2 JT 264 : (1990) 1 SCALE 839 : (1990) 2 SCC 715 : (1990) 2 SCR 900 : (1990) 2 SLJ 40 : (1990) 2 UJ 314 . Hon''ble Apex Court in this case has summed up that once an incumbent is appointed to a post according to rule, his seniority is to be counted from the date of his appointment and not from the date of his confirmation. The Apex Court further stated in the said judgment that corollary of the above rule is that where the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Hon''ble Apex Court in the said judgment has further observed as under:

"B. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

So far as the facts of the instant case are concerned, they appear undisputed amongst the parties. The respondent No. 1 was appointed after having been subjected to selection process which was held pursuant to an advertisement. Initial appointment of the respondent No. 1 was made on ad-hoc basis on 21st August, 1981 and thereafter in terms of the provisions contained in U.P. Regularization of Ad-hoc Appointment (On posts within purview of (U.P.) Public Services Commission Rules, 1979 amended from time to time, the services of respondent No. 1 were regularized on the post of Assistant Engineer on 23rd August, 1986. It is also not in dispute that the respondent No. 1 having continued for a period of about 5 years from the date of his initial appointment in ad-hoc capacity, was regularized on 23rd August, 1986 without any interruption. Thus, emphasis has been laid by learned counsel appearing for respondent No. 1 that respondent No. 1 was entitled to be given the benefit of ad-hoc services rendered by him from 21st August, 1981 till 23rd August, 1986 in terms of law laid down by Hon''ble Apex Court in the case of Direct Recruit Class II Engineering Officers'' Association v. State of Maharashtra and others (Supra).

At this juncture, learned Standing counsel appearing for the State-petitioner has submitted that the conclusion drawn by Hon''ble Apex Court in the case of Direct Recruit Class II Engineering Officers'' Association v. State of Maharashtra and others (Supra) in para 47A and B are to be read harmoniously as has been held by Hon''ble Apex Court in the case of State of West Bengal v. Aghor Nath Dey, 1993 SCC (L & S) 783. On the basis of the said judgment it has been contended by learned counsel for the State-petitioner that in the instant case, the conclusion drawn by Hon''ble Apex Court in the case of Direct Recruits in para 47B will not be applicable.

The entire controversy, however, appears to have been set at rest by Hon''ble Apex Court in the case of Secretary, Minor Irrigation Deptt. and R.E.S. Vs. Narendra Kumar Tripathi(2015) 4 AD (SC) 609 : (2015) 110 ALR 336 : (2015) 2 ESC 304 : (2015) 145 FLR 779 : (2015) 2 JLJR 360 : (2015) 3 LLN 273 : (2015) 3 MLJ 616 : (2015) 4 SCALE 569 : (2015) 6 SCJ 285 : (2015) 2 SCT 792 : (2015) 2 SLJ 16 : (2015) 2 UPLBEC 1161 , wherein the benefit of the principle propounded by Hon''ble Apex Court in para 47 - B in the case of Direct Recruit (supra) has been extended to Narendra Kumar Tripathi who like the respondent No. 1 was also initially appointed on ad-hoc basis and subsequently under the regularization rules, his services were also regularized.

The tentative senior list of the Assistant Junior Engineers working in the Rural Engineering Department shows the name of respondent No. 1 at serial No. 88 and his date of substantive appointment has been shown to be 23rd August, 1986. The name of Sri Narendra Kumar Tripathi in the said seniority list is shown at serial No. 172 and his date of substantive appointment has been shown to be 16.12.1989. The date of substantive appointment of respondent No. 1 as well as Sri Narendra Kumar Tripathi as mentioned in the seniority list referred to herein above, are the dates on which their services were regularized under the regularization rules.

The controversy raised before Hon''ble Supreme Court in the case of Secretary, Minor Irrigation Department RES (Supra) was akin to the controversy which is engaging the attention of this Court in this case. In the case of Narendra Kumar Tripathi Hon''ble Supreme Court has allowed all the benefits of ad-hoc services rendered by Sri Tripathi for the purposes of reckoning his seniority and other consequential benefits.

In view of the law laid down by Hon Tale Supreme Court in the case of Secretary, Minor Irrigation Department RES (Supra), we do not find any force in the submission made by learned Standing counsel for the State-petitioner. Accordingly, the writ petition being devoid of merit is hereby dismissed. Since, the petition is pending before this Court since 1998, we hereby direct the State to ensure compliance of the judgment and order dated 6.2.1997 passed by learned Public Services Tribunal in Claim Petition No. 2150 of 1995 (Riyaz Ali v. State of U.P. and another) within a period of three months from the date a certified copy of this judgment is produced before the competent authority.