Adhoc or Temporary Services Rendered Prior to Absorption Cannot Be Counted For Seniority, If it was Dehors the Rules: Allahabad HC

The Allahabad High Court at Lucknow while dismissing a Writ Petition challenging seniority list has held that where the initial appointment was not as per Rules, then such services cannot be counted for the purposes of Seniority.

Justice D.K. Singh has delivered this Judgment in the case of Dhananjay Singh & Ors vs State of U.P. & Ors.

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Background

Petitioners were working as Junior Engineer (Civil) and their services are governed under The Uttar Pradesh Development Authorities Centralized Services Rules, 1985. The petitioners were appointed on 23.11.1984 on a temporary basis on the posts of Junior Engineer (Civil) at Kanpur Development Authority by the said development authority.

After promulgation of Rules of 1985, applications were invited for direct appointment on the posts of Junior Engineer (Civil) and advertisements were issued in April and May, 1986. 

The petitioners as well as private respondents applied in pursuance of the said advertisements. The petitioners and private respondents were selected by the selection committee and were recommended for appointment on the posts of Junior Engineer (Civil). 

The State Government vide office order dated 31.07.1986 had appointed the petitioners and private respondents on the posts of Junior Engineers (Civil) on purely temporary and ad hoc basis.

On 02.02.1992 by way of an amendment, Rule 20A was inserted in Rules of 1985 for facilitating regularization of ad-hoc appointments.  On the basis of the recommendation of the Selection Committee, the State Government granted approval for the regularization of services of 176 Junior Engineers (Civil), which included the names of the petitioners and private respondents. 

Ultimately the Government prepared a Seniority list in which the Petitioners were placed below Respondents as their services as Adhoc and temporary employee was not counted.

Issue

  1. ​​Whether an employee, whose appointment on a post included in the Centralized Services was void, could he be said to have been provisionally absorbed on coming into force on creation of the U.P. Development Authority Centralized Services.

Decision

Justice D.K. Singh while dismissing the Petition observed:

If the appointment of a person in the development authority before creation of centralized services was void, his seniority cannot be determined under Rule 7 of the Rules of 1985.

If the petitioners’ initial appointment dated 23.11.1984 was valid, they were not required to undertake the selection process commenced with the advertisement dated 30.04.1986. The petitioners knew their appointment was void in view of the Government Orders and, therefore, they appeared in the selection process and, were declared successful along with the private respondents. It is not in dispute that the petitioners’ names were below the names of the private respondents in the select list prepared by the selection committee for their appointment on the post of Junior Engineer (Civil) on temporary/ad hoc basis.

The Court rejected the submission of the Petitioner that  that under deeming provision of Section 5(A)(2) of the 1973 Act, the petitioners are deemed to have been absorbed in the centralized services subject to the judging of their suitability as per Section 5-A(4) because the Court found that thee petitioners’ initial appointment was void ab initio and, therefore, they cannot be treated to have been absorbed.

The Court also held that where initial appointment is only ad hoc and not according to the Rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. 

Since the appointments of the petitioners dated 23.11.1984 were not made in compliance with the Government instructions and should be treated only for fortuitous. Therefore, they Court opined that they cannot claim any benefit of their appointment made on 23.11.1984 for counting their seniority treating it to be date of appointment. 

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