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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3348 OF 2015 (ARISING OUT OF SLP (CIVIL) NO.18683 OF 2004)

SECRETARY, MINOR IRRIGATION DEPTT. & R.E.S.              …APPELLANT

VERSUS

NARENDRA KUMAR TRIPATHI                            …RESPONDENT

WITH

CIVIL APPEAL NO.3349 OF 2015 (ARISING OUT OF SLP (CIVIL) NO.8330 OF 2005)

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

2. These appeals have been preferred against judgment and order  

dated  13th February,  2003  in  Civil  Miscellaneous  Writ  Petition  

No.9940  of  2001  and  dated  10th December,  2004  in  Civil  

Miscellaneous Writ  Petition No.11542 of  2003 passed by the High  

Court  of  Judicature  at  Allahabad.    Special  Leave  Petition  (Civil)  

No.18683 of 2004 has been filed by the Minor Irrigation Department  

of State of Uttar Pradesh (“the Department”) and SLP (Civil) No.8330  

of  2005  has  been  filed  by  Narendra  Kumar  Tripathi  (“the  writ  

petitioner”)  employed  as  engineer  with  the  Department  of  Minor

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Irrigation, Rural Engineering in the State of Uttar Pradesh.  In both  

the matters, the question involved is whether the writ petitioner is  

entitled to count his service as Assistant Engineer from 12th June,  

1985, the date of his initial appointment on an ‘ad hoc’ basis, for  

purposes of seniority or his service will  be counted only from 14th  

December, 1989, the date on which approval to his appointment was  

given by the State Government under the provisions of  the Uttar  

Pradesh Regularisation of Ad hoc Appointments (on posts within the  

purview  of  the  Public  Service  Commission)   Rules,  1979  (“1979  

Rules”)  as  amended  on  7th August,  1989  by  the  Uttar  Pradesh  

Regularisation of Ad Hoc Appointments (on posts within the purview  

of the Public Service Commission) (Second Amendment) Rules, 1989  

(“1989” Rules).

3. The writ petitioner was first appointed as Work Engineer (Work  

Charge) on a fixed pay of Rs.650/- on 18th January, 1983.  Later, vide  

Office  Memo  dated  12th June,  1985  issued  by  the  Secretary,  

Government  of  Uttar  Pradesh,  Rural  Development  Section  on  the  

basis  of  recommendations  of  the  Selection  Committee,  he  was  

appointed on temporary post of Assistant Engineer in regular scale  

on ad hoc basis.  The letter of appointment, inter alia, provided that  

the appointment was purely on ad hoc basis and his services could  

be terminated by notice or on availability of candidates duly selected  

through Public Service Commission and the appointee had no claim

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for regular appointment.  The said appointment, however, continued  

and  was  followed  by  “Notification/Regularization”  dated  14th  

December, 1989 as per the 1979 Rules as amended by 1989 Rules.  

4. The  1979  Rules  provided  for  regularization  of  ad  hoc  

appointment  of  persons  possessing  requisite  qualifications  for  

regular  appointment  on  completion  of  three  years  continuous  

service.   Rule  7  provides  for  seniority  from the  date  of  order  of  

appointment  after  selection.   The  said  Rules  though  initially  

applicable  to  appointments  made prior  to  January  01,  1977 were  

extended from time to time and on 7th August, 1989, the said rules  

were extended to persons directly appointed on ad hoc basis on or  

before 1st October, 1986 and who continued in service.

5. Rules 4 and 7 are as under :

“4. Regularisation of adhoc appointments : (1) any person  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  

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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. (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.”

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 person 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.”

6. The 1989 amendment to the Rules inserted Rule 10 as follows :

“10.   Extension to the rules: - The provisions of these rules   shall  apply  mutatis  mutandis,  also  to  any  person  directly   appointed on ad hoc basis on or before October 1, 1986 and   continuing in service as such, on the date of commencement   of the Uttar Pradesh Regularization of Ad hoc Appointments   (on  posts  within  the  purview  of  the  Public  Service   Commission) (Second Amendment) Rules, 1989.”

7. The  writ  petitioner  filed  Civil  Miscellaneous  Writ  Petition  

No.9940  of  2001  with  the  grievance  that  in  the  seniority  list

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published on 4th January, 1995 his name was placed at Serial No.274  

showing his service w.e.f. 14th December, 1989.   In doing so, he was  

not given benefit  of past service, while such benefit  was given to  

other similarly placed persons.  This contention was noticed by the  

High Court as follows :

“A perusal of the seniority list shows that persons placed at   Serial No.8 to 64 were regularized vide order dated 15-4-1985  w.e.f.  14-5-1979,  and  similarly  the  person  placed  at  serial   No.132 was regularized by order dated 17-1-1990 w.e.f. 13-5- 1984.  One Subhash Singh whose name is at serial No.8 was   given  the  benefit  of  his  previous  service  and  his  seniority   fixed  accordingly.   However  petitioner  was  not  given  any   benefit of his previous service in the department.”

The High Court  held  that  the  writ  petitioner  was  entitled  to  

benefit  of  past  service  in  view of  the  law down by  this  Court  in  

Direct  Recruit  Class  II  Engineering  Officers  Association vs.  

State of Maharashtra  1  .    Accordingly, the High Court directed that  

the initial date of appointment of the writ petitioner be taken as 18 th  

January,  1983.   Aggrieved  by  the  said  view,  the  State  has  

approached this Court.   

8. However,  during  pendency  of  the  matter  in  this  Court,  the  

issue arose in other pending matters before the High Court including  

the  second  writ  petition  by  the  writ  petitioner  Narendra  Kumar  

Tripathi  being  Civil  Miscellaneous  Writ  Petition  No.11542  of  2004  

which was filed to seek compliance of earlier order of the High Court.  

The  matter  was  referred  to  a  larger  Bench  and  was  heard  and  

1 1990 (2) SCC 715

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decided  by  a  Bench  of  three  Judges  vide  Judgment  dated  10th  

December, 2004 “Farhat Hussain Azad versus State of U.P. & Ors.”  

against which the department has approached this Court.

9. Referring  to  the  decision  of  this  Court  in  State  of  West  

Bengal & Ors. vs. Aghore Nath Dey & Ors  .  2   laying down that, to  

count past service, initial appointment has to be according to rules  

and if  initial appointment is ad hoc, not according to rules and is  

made  as  a  ‘stop  gap  arrangement’,  the  officiation  in  such  posts  

cannot be taken into account for counting the seniority,  the High  

Court held that appointment on ad hoc basis dehors the rules and  

without following the procedure prescribed under the law could not  

be  counted  for  seniority.   Accordingly,  it  was  held  that  the  writ  

petitioner was not entitled to count ad hoc service for his seniority.  

The judgment dated 12th February, 2003 rendered in the case of the  

writ  petitioner  which is  the subject  matter  of  appeal  filed by the  

State  was  held  to  be  per  incuriam.   Aggrieved  thereby,  the  writ  

petitioner has approached this Court by way of appeal arising out of  

Special Leave Petition (Civil) No.8330 of 2005.

10. We have heard learned counsel for the parties.

11. Learned counsel for the writ petitioner submitted that the view  

taken by the larger Bench of the High Court is based on erroneous  

assumption that the appointment of the writ petitioner was stop gap  

2 1993 (3) SCC 371

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arrangement and dehors the rules.  Careful perusal of the scheme of  

the  rules  and  their  working  shows  that  the  appointment  of  writ  

petitioner  was  neither  against  the  rules  nor  by  way  of  stop  gap  

arrangement.   It  was made clear by learned counsel  for  the writ  

petitioner  that  the  claim  of  the  writ  petitioner  was  limited  for  

counting service from 12th June, 1985 when he was appointed after  

due selection in regular pay scale.  It is pointed out that under the  

1979 Rules to meet exigency of service, appointments were being  

made without approval of the Public Service Commission and were  

being  thereafter  regularized.  Service  of  such  persons  was  being  

counted  from  the  date  of  initial  appointment  made  after  due  

selection.   In  the  present  case also,  the  writ  petitioner  was  duly  

selected  and  though  the  terms  of  appointment  provided  for  his  

service  being  terminated  on  a  person  selected  by  Public  Service  

Commission  joining  service,  such  a  situation  never  arose  and  

services  of  the  writ  petitioner  continued  and  were  regularized  

thereafter.   In  these  circumstances,  the  past  service  of  the  writ  

petitioner could not be ignored.

12. Learned counsel for the State however, submitted that the view  

taken by the larger Bench was the correct view and ad hoc service as  

stop gap arrangement could not be taken into account.  At the time of  

appointment no rules had been framed.

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13. After giving due consideration to the rival submissions, we are  

of  the  view  that  the  contention  of  the  writ  petitioner  has  to  be  

upheld.  No doubt, ad hoc service, when appointment was against  

rules and purely as stop gap arrangement, cannot be counted for the  

purposes of seniority, as held by the larger Bench of the High Court  

and  in  several  judgments  of  this  Court,  including  in  Keshav  

Chandra Joshi vs. Union of India  3   but the present is not the case  

where the ad hoc service is purely by way of stop gap arrangement  

or against the rules.   

14. At this stage, observations of this Court in some of the leading  

judgments  may  be  referred  to.   In  Direct  Recruit  Class  II   

Engineering Officers’ Association, it was observed:-   

“47. To sum up, we hold that: (A) 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.

The 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.

(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.”

15. In Aghore Nath Dey, the above observations were explained  

as follows:-

3 1992 Supp.(1) SCC 272

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“25. In our opinion, the conclusion (B) was added to cover a  different  kind  of  situation,  wherein  the  appointments  are  otherwise  regular,  except  for  the  deficiency  of  certain   procedural requirements laid down by the rules. This is clear   from the opening words of the conclusion (B), namely, ‘if the  initial appointment is not made by following the procedure laid   down  by  the  ‘rules’  and  the  latter  expression  ‘till  the   regularisation of his service in accordance with the rules’. We   read conclusion (B), and it must be so read to reconcile with   conclusion  (A),  to  cover  the  cases  where  the  initial   appointment is made against an existing vacancy, not limited  to a fixed period of time or purpose by the appointment order   itself, and is made subject to the deficiency in the procedural   requirements prescribed by the rules for adjudging suitability   of  the  appointee  for  the  post  being  cured  at  the  time  of   regularisation,  the  appointee  being  eligible  and  qualified  in   every manner for a regular appointment on the date of initial   appointment in such cases. Decision about the nature of the  appointment, for determining whether it falls in this category,   has  to  be  made  on  the  basis  of  the  terms  of  the  initial   appointment  itself  and  the  provisions  in  the  rules.  In  such  cases, the deficiency in the procedural requirements laid down  by the rules has to be cured at the first available opportunity,   without any default of the employee, and the appointee must   continue in the post uninterruptedly till the regularisation of his   service,  in  accordance  with  the  rules.  In  such  cases,  the   appointee is not to blame for the deficiency in the procedural   requirements  under  the  rules  at  the  time  of  his  initial   appointment, and the appointment not being limited to a fixed   period of time is intended to be a regular appointment, subject   to the remaining procedural  requirements of  the rules being   fulfilled at the earliest. In such cases also, if there be any delay   in curing the defects on account of any fault of the appointee,   the  appointee  would  not  get  the  full  benefit  of  the  earlier   period on account  of  his  default,  the benefit  being confined   only to the period for which he is not to blame. This category of   cases  is  different  from  those  covered  by  the  corollary  in   conclusion  (A)  which relates  to  appointment  only  on ad hoc   basis as a stopgap arrangement and not according to rules. It   is, therefore, not correct to say, that the present cases can fall   within  the  ambit  of  conclusion  (B),  even  though  they  are  squarely covered by the corollary in conclusion (A).”

16. In Rudra Kumar Sain & Ors. vs. Union of India & Ors.  4  , it was  

observed:-

4 2000 (8) SCC 25

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“15. So far as the terminology used in  Singla case [1984 (4)  SCC 450], namely “ad hoc”, “fortuitous” and “stopgap”, the   same is quite familiar in the service jurisprudence. Mr Rao,   appearing  for  the  High  Court  of  Delhi  however  contended   before us that the said terminology should be given the same  meaning, as was given in  Parshotam Lal Dhingra v.  Union of  India [AIR 1958 SC 36 : 1958 SCR 828]. In  Dhingra case the  Court was examining whether removal of an employee can be   held  to  be  penal  and  whether  Article  311(2)  of  the   Constitution  can  at  all  be  attracted  and  the  Court  also   observed that certain amount of confusion arises because of   the indiscriminate use of the words “provisional”, “officiating”   and  “on  probation”.  We  do  not  think  that  the  concept  or   meaning given to those terminology in Dhingra case will have  any application to the case in hand, where the Court is trying   to work-out an equitable remedy in a manner which will not   disentitle an appointee, the benefit of his fairly long period of   service for the purpose of seniority, even though he possesses   the requisite qualification and even though his appointment   has been made after due consultation and/or approval of the  High Court. 16. The three terms “ad hoc”, “stopgap” and “fortuitous” are   in  frequent  use in  service  jurisprudence.  In  the absence of   definition of these terms in the Rules in question we have to   look to the dictionary meaning of the words and the meaning   commonly assigned to them in service matters. The meaning  given  to  the  expression  “fortuitous”  in  Stroud’s  Judicial  Dictionary is  “accident  or  fortuitous  casualty”.  This  should  obviously  connote  that  if  an  appointment  is  made  accidentally, because of a particular emergent situation and  such appointment obviously  would not  continue for  a fairly   long period. But an appointment made either under Rule 16 or   17 of the Recruitment Rules, after due consultation with the   High  Court  and  the  appointee  possesses  the  prescribed   qualification  for  such  appointment  provided  in  Rule  7  and  continues  as  such  for  a  fairly  long  period,  then  the  same  cannot be held to be “fortuitous”. In  Black’s Law Dictionary,  the expression “fortuitous” means “occurring by chance”, “a   fortuitous event may be highly unfortunate”. It thus, indicates   that  it  occurs  only  by chance or  accident,  which could  not   have been reasonably foreseen. The expression “ad hoc” in   Black’s Law Dictionary, means “something which is formed for   a particular purpose”. The expression “stopgap” as per Oxford  Dictionary,  means  “a  temporary  way  of  dealing  with  a   problem or satisfying a need”. 17. In  Oxford  Dictionary,  the  word  “ad  hoc”  means  for  a   particular purpose; specially. In the same dictionary, the word   “fortuitous” means happening by accident or chance rather   than design.

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18. In P. Ramanatha Aiyar’s Law Lexicon (2nd Edn.) the word  “ad  hoc”  is  described  as:  “For  particular  purpose.  Made,   established, acting or concerned with a particular (sic) and or  purpose.” The meaning of word “fortuitous event” is given as   “an event which happens by a cause which we cannot resist;   one which is unforeseen and caused by superior force, which  it is impossible to resist; a term synonymous with Act of God”. 19. The  meaning  to  be  assigned  to  these  terms  while   interpreting provisions of  a service rule will  depend on the  provisions of that rule and the context in and the purpose for   which the expressions are used. The meaning of any of these   terms in the context of computation of inter se seniority of   officers  holding  cadre  post  will  depend  on  the  facts  and   circumstances in which the appointment came to be made.   For that purpose it will be necessary 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  indicates  that  the  post  is   created to meet a particular temporary contingency and for a   period specified in the order, then the appointment to such a   post can be aptly described as “ad hoc” or “stopgap”. If a post   is created to meet a situation which has suddenly arisen on   account of happening of some event of a temporary nature  then the appointment of such a post can aptly be described as   “fortuitous” in nature. If an appointment is 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 is not possible to leave the post vacant till then, and to   meet this contingency an appointment is  made then it  can  appropriately  be  called  as  a  “stopgap”  arrangement  and  appointment in the post as “ad hoc” appointment. It  is  not   possible  to  lay  down  any  strait-jacket  formula  nor  give  an   exhaustive list of circumstances and situation in which such  an appointment (ad hoc, fortuitous or stopgap) can be made.   As  such,  this  discussion  is  not  intended  to  enumerate  the   circumstances or situations in which appointments of officers   can be said to come within the scope of any of these terms. It   is only to indicate how the matter should be approached while   dealing with the questions of inter se seniority of officers in   the cadre. 20. In  service  jurisprudence,  a  person  who  possesses  the   requisite qualification for being appointed to a particular post   and then he is appointed with the approval and consultation   of the appropriate authority and continues in the post for a   fairly long period, then such an appointment cannot be held to   be “stopgap or fortuitous or purely ad hoc”. In this view of the   matter, the reasoning and basis on which the appointment of   the promotees in the Delhi Higher Judicial Service in the case   in  hand  was  held  by  the  High  Court  to  be  “fortuitous/ad  

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hoc/stopgap” are wholly erroneous and, therefore, exclusion   of those appointees to have their continuous length of service   for seniority is erroneous.”

17. The  above  principles  are  undisputed.   Question  of  their  

application has arisen from time to time in different fact situations.  

Question  to  be  decided  in  each  case  was  whether  the  ad  hoc  

appointment  was  stop gap and fortuitous  as  against  being to  an  

existing vacancy which continued and initial appointment was made  

after due selection without violating the rules, if any.

18. The scheme of  the  working of  the Rules  in  the Department  

shows that right from 1979, the Department has been making direct  

recruitment   after  due  selection  and by  applying  the 1979 Rules  

which rules have been extended from time to time to subsequent  

recruitments, services were regularized.  Validity of the scheme of  

these recruitments is not under challenge.  In such circumstances,  

when the rules provide that such ad hoc appointments have to be  

regularized and seniority counted from the date of appointment, the  

writ petitioner could not be deprived of the past service rendered by  

him from 12th June, 1985 till the date of regularization.  It is not a  

case  of  appointments  made  without  due  selection  or  without  

vacancy or without qualification or in violation of rules.  The larger  

Bench failed to observe that the appointment of the writ petitioner  

was not dehors the rules nor by way of stop gap arrangement.  The  

rules  had  the  effect  of  treating  the  appointment  as  a  regular

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appointment  from  initial  date  of  appointment.    In  these  

circumstances,  the  principle  laid  down  in  K.C.  Joshi was  not  

applicable.   It  is  not  a  case  where  service  rendered  is  either  

fortuitous or  against  rules  or  by  way  of  stop  gap  arrangement.  

Applying  the  principle  laid  down  in  Direct  Recruit  Class  II  

Engineering Officers’ Association,  the writ petitioner is entitled  

to count service from 12th June, 1985.  Moreover, the department has  

allowed  the  benefit  of  past  service  to  other  similarly  placed  

incumbents as observed in the judgment giving rise to the appeal of  

the department.      

19. Accordingly, we are unable to approve the view taken by the  

larger Bench to the extent it proceeds on the assumption that past  

service of the writ petitioner was by way of stop gap arrangement or  

contrary to the rules.   

20. We,  therefore,  direct  the  State  to  redetermine  the  seniority  

after hearing the affected parties within six months.  It is made clear  

that  benefit  of  redetermination  of  seniority  at  this  stage  will  not  

disturb holding of posts by any incumbent and except for benefit in  

pension other benefits  to which the writ  petitioner may be found  

entitled will be given only on notional basis.

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21. The appeal of the writ petitioner is accordingly allowed to the  

above extent and appeal of the State is accordingly dismissed.

……..…………………………….J.     [V. GOPALA GOWDA]

.….………………………………..J.       [ ADARSH KUMAR GOEL ]

NEW DELHI APRIL 7, 2015