Tripathi & Ors Vs. State of U.P. & Ors  INSC 1626 (17 December
G.T. Nanavati Nanavati, J.
spite of serious criticism by the High Court, in the earlier proceedings
between the parties, that the Government had abused its powers and indulged
into favouritism and nepotism, the Government has again tries to frustrate the
legitimate rights of the direct recruits in order to favour and protect those
ad hoc promotees who are alleged to be relations and favourites of Ministers,
Members of Legislative Assemblies and Secretaries to the Government.
wrong committed is not only required to be set at naught, but the Government
also deserves to be criticised for acting in that manner.
though U.P. Palika (Centralised) Service Rules (for short the Rules) were
framed in 1966 for recruitment to the various posts mentioned therein and even
though under Rule 20 the posts of Sahayak Nagar Adhikaris had to be filled up
in equal numbers by promotion and direct recruitment, the Government went on
making ad hoc appointments to those posts for ten years. Even when the process
of recruitment for the said posts had started in 1976 and in all 14 persons
were selected by the Public Service Commission (hereinafter referred to as the
PSC) the Government appointed only four persons, selected candidates who were
not given appointments, therefore, filed Writ Petition No. 279 of 1980 in the
Allahabad High Court for a writ of mandamus directing the Government to appoint
to the interim order passed in that petition, Appellant Nos. 4 and 13 and other
regularly selected candidates were given appointments. In order to accommodate
those direct recruits, the Government was really required to terminate the
services of as many ad hoc appointees, including the respondents. Instead of
doing so, with a view to favour them, the Government promoted them to the
higher posts of Up Nagar Adhikaris on ad hoc basis. The appellants, therefore,
challenged promotions of those respondents and other promotees by filling Writ
Petition No. 2808 of 1980 in the Allahabad High Court on 4.3.82. The High Court
allowed the writ petition, quashed the promotion of the respondents and
directed the Government to prepare a seniority list and make promotion to
higher posts of Up Nagar Adhikaris in accordance with Rules 20 and 21 of the
Rules. That order was challenged by the State Government and ad hoc appointees
in this Court but their special leave petitions were dismissed.
23.5.84, the Government issued an order prescribing that only those who had
permanently and substantively served in the capacity of Sahayak Nagar Adhikaris
for six years will be eligible for promotion to the posts of Up Nagar Adhikaris
and that only those officers who had permanently served on the posts of Up Nagar
Adhikaris would be eligible for selection grade for those posts provided they
have completed 15 years of service as Up Nagar Adhikari/Sahayak Nagar Adhikari
and five years` service as Up Nagar Adhikari.
on 30.8.84, the Government inserted Rule 21A in the Rules for regularising the
services of ad hoc employees.
on 20.11.84, the Government amended its earlier order dated 23.5.84 and
provided that only those officers who have permanently or substantively served
as Up Nagar Adhikaris will be eligible for the selection grade provided they
have completed 15 years` service as Up Nagar Adhikari/Sahayak Nagar Adhikari
and five years` service as Up Nagar Adhikari.
23.3.1995, the Government amended the seniority list of Sahayak Nagar Adhikaris.
It rightly included only those who were directly recruited and those who were
regularly promoted to those posts. Those who were ad hoc appointees were not
included in the said list. But soon thereafter on 17.5.85, the Government,
exercising its power under the newly introduced Rule 21A, regularised the
services of respondents and other ad hoc appointees. Even though regular
appointees on the posts of Sahayak Nagar Adhikaris were entitled to substantive
promotion to the posts of Up Nagar Adhikaris, they were given promotions on ad
the Government granted ad hoc promotions to the respondents and other ad hoc
appointees even though they were not eligible and in order to favour teem, the
Government on 29.7.86 passed an order that selection grade in any post will be
available only on 20 per cent posts and that the minimum service. On 13.10.93,
the Government granted selection grade to the respondents and other ad hoc
employees who were regularised only on 17.5.85, but denied benefit to the
appellants and other regular employes even though they were seniors.
appellants, therefore, challenged the said order dated 13.10.93 by filing Writ
Petition No. 39776 of 1993 in the Allahabad High Court. During the pendency of
the petition the Government published a seniority list showing the appellants
as seniors to the respondents. The High Court, therefore, held that in view of
that seniority list the lis between the parties did not survive. As regards
their specific grievance that in spite of showing them as seniors in the
seniority lists they are not given selection grade, the High Court observed
that for getting that relief the appellants should move the authorities
concerned. So without considering the propriety and legality of the order dated
13.10.93 which was challenged in the petition, the High Court disposed of the
petition with that observation.
appellants have, therefore, filed this appeal.
difficult to appreciate how the High Court could hold that in view of the
seniority list dated 31.12.94 the grievance of the appellants did not survive.
The appellants had challenged the action of giving selection grade to the
respondents and other ad hoc appointees who were regularised only on 17.5.85
and thus were their juniors. They had also sought a mandamus directing the
Government to grant them selection grade from the date they have become
entitled to it in accordance with the Government order dated July 29, 1986. It was their grievance that the
Government was wrongly treating those ad hoc appointees as regular appointees
from a date earlier than 17.5.85. In view of these facts and circumstances it
was not proper for the High Court to dismiss the petition on the ground that
the list did not survive and leave the appellants again to the mercy of the
Government which was out to defeat their legitimate claims.
21A provides for regularisation of service of ad hoc employees by treating them
as persons appointed in the service on the date of their regularisation. Rule 9
provides that a person appointed under that Rule shall be entitled to seniority
only from the date of appointment after selection in accordance with the said
rules and shall, in all cases, be placed below the employees appointed in
accordance with the procedure for direct recruitment prior to the appointment
of such persons under those Rules. In view of these statutory Rules, the
Government could not have treated the respondents and other ad hoc employees
whose services were regularised on 17.5.85 as persons regularly appointed from
an earlier date. Nor could the Government have counted seniority from an
earlier dated either for promotion to the higher post or for the purpose of
giving selection grade.
spite of this clear position, the Government by its letter dated March 23, 1993
informed the Director of Local Bodies, U.P., Lucknow that the Government, in
exercise of powers under Rule 40(2) of the Rules, has passed and order to the
effect that the date of confirmation of the employees working in the U.P. Palika
(Central) Service since before the year 1977 and who have not been selected
through PSC and who have not been regularised on the posts but are continuously
working, shall be determined as under:
(i) The employees appointed on ad hoc basis and working continuously shall be
made permanent on that just 2 years after the date of joining on which post the
employee joined his after being appointed." The Government thereby has
tried to give seniority to the respondents and those other ad hoc employees by
treating them as permanently appointed promotees since 2 years after the date
of their joining the posts as Sahayak Nagar Adhikaris. Thus the respondents and
other ad hoc employees who had been appointed temporarily and whose services
were not regular and were regularised only on 17.5.85, will have to be treated
as permanently appointed in 1974, as they were for the first time appointed on
those posts in 1972. The said order was not challenged in the writ petition as
it had not come to the notice of the appellants. It has been filed in this
Court along with the counter affidavit of Respondent Nos. 3,7,8 and 9 and is
relied upon by all the respondents.
order also deserves to be quashed as it is not consistent with the statutory
Rules. It appears to have been passed by the Government to oblige the
respondents and similarly situated ad hoc appointees.
therefore, allow this appeal and direct the Government not to treat any ad hoc Sahayak
Nagar Adhikari who was originally appointed on ad hoc basis and whose service
was regularised only on 17.5.85 as senior to the direct recruits who were
appointed before that date. We also quash and set aside the order passed by the
Government under Rule 40(2) of the Rules whereby the employees appointed on ad
hoc basis and working continuously have been made permanent on those posts with
effect form 2 years after the date of joining on those posts. The Government is
Directed to consider the seniority of the appellants and respondents as stated
above and further consider the case of the appellants for selection grade
accordingly and also in accordance with the Government order dated July 29, 1986.
Government shall grant them the said benefit immediately if they are found to
be eligible for the same. The Government shall complete the whole exercise
within a period of two months from today. In the facts and circumstances of the
case, there shall be no order as to costs.