RAM GANESH TRIPATHI AND ORS.versusSTATE OF U.P. AND ORS.

A                    RAM GANESH TRIPATHI AND ORS.
                                         v.
                           STATE OF U.P. AND ORS.

                              DECEMBER 17. 1996

B
                [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

            Service Law-U.('. Palika (Centralised) Service Rules, 1966--Rules 9,
     21-A-Promotion to post of UP Nagar Adhikaris-Selection Grade--
C    Eligibility.

            In U.P. Palika (Centralised) Service, the posts of Sahayak Nagar
     Adhikari 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. In the year 1976, only 14 persons were selected
D    by the Public Service Commission, the Government appointed only four
     persons, including appellants 1 to 3 in 1979. The other selected candidates
     who were not given appointments filed Writ Petition for a writ of man-
     damus directing the Government to appoint them. Appellants 4 and 13 and
     other regularly selected candidates were given appointments. On 23.5.84,
     the Government issued an order prescribing that only those who had
'E   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 who had permanently served in 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
F    Adhikari/Sahayak Nagar Adhikari and five years service as UP Nagar ·
     Adhikati. Thereafter, on 30.8.84, the Government inserted Rule 21A in the
     U.P. Palika (Centralised) Service 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
G     selection grade provided they have ~ompleted 15 years service as UP Nagar
     Adhikari/Sahayak Nagar Adhikari and five years' service as UP Nagar
     Adhikari. On 23.3.1985, the Government amended the seniority list of
      Sahayak Nagar Adhikaris including only those who were directly recruited
      and those who were regularly promoted to those posts, not including ad
 H    hoc appointees in the list. However, on 17.5.85, the Government, exercising
                                         248
              R.G. TRIPATHiv. STATE[NANAVATI,J.)                     249

its power under Rule 21-A, regularised the services of respondents and A
other ad hoc appointees. Regular appointees on the posts of Sahayak
Nagar Adhikaris, entitled to substantive promotion to the posts of UP
Nagar Adhikari, were given promotions on ad hoc basis. The Government
granted ad hoc promotions to the respondents and other ad hoc appointees
even though they were not ~ligible and the Government on 29.7.86 passed B
an order that selection grade in any post will be available only on 20
percent posts and the minimum eligibility will be the 12 years of regular
service. On 13.10.93, the Government granted the selection grade to th~
respondents and other ad hoc employees who. were regularised only on
17.5.85 but denied benefit to the appellants and other regular employees
even though they were seniors. The appellants challenged the order by C
filing Writ Petition. During the pendency of the Petition the Government
published seniority list showing the appellants as seniors to the respon·
dents. However, the appellants alleged that in spite of showing them as
seniors in the seniority lists they were not given selection grade. The High
Court disposed of the petition holding that for getting that relief the D
appellants should move the authorities concerned. The appellants filed,
this appeal against the order of the High Court.

      Disposing of the appeal, this Court

      HELD : The appellants had challenged the action of giving selection E
grade to the respon.dents 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 had become entitled to it in accordanc11 with the
Government order dated July 29, 1986. It was their grievance that the p
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. [253-A·C]                                                          G

      1.2. Rule 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 H
    250                   SUPREME COURT REPORTS[1996) SUPP.10 S.C.R.
A 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
B regularised on 17.S.85 as persons regularly appointed from an earlier date.
  Nor could the Government had counted seniority from an earlier date
  either for promotion to the higher· or for the purpose of giving selection
  grade. The Government by order dated 23.3.1993 had 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 or their
C 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
D in the writ petition as it had not come to the notice of the appellants. It
  had been filed in this Court along with the counter affidavit of respondents
  3, 7, 8 and 9 and was relied upon by all the respondents. This order also
  deserved to be quashed as it was not consistent with the statutory Rules.
  It appeared to have been passed by the Government to oblige the respon·
  dents and similarly situated ad hoc appointees. [253-D-F; 254-B-DJ
E
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.16750 of
    1996.

         From the Judgment and Order dated 16.10.95 of the Allahabad High
    Court in W.P. No. 39776 of 1993.
F
            Sunil Gupta and P.D. Tyagi for the Appellants.

           D.V. Sehgal, M.C. Dhingra, Ms. Monica Gosain, V.J. Francies and
    P.I. Jose for the Respondents.

G           The Judgment of the Court was delivered by

            NANAVATI, J.: Leave granted.

        In spite of serious criticism by the High Court, in the earlier proceed-
  ings between the parties, that the Government had abused its powers and
H indulged into favouritsm and nepotism, the Government had again tried to
                R.G. TRIPATHiv. STATE [NANAVATI,J.]                      251
frustrate the legitimate rights of the direct recruits in order to favour and   A·
protect those ad hoc promotees who are alleged to be relations and
favourites of Ministers, Members of Legislative Assemblies and Secretaries
to the Government. The wrong committed is not only required to be set at
naught, but the Government also deserves to be criticised for acting in that
manner.
                                                                                B
                                                                  0



       Even 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               C
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, including Appellant Nos. 1 to 3
in 1979. The other selected candidates who were not given appointments          D
therefore, filed Writ Petition No. 279 of 1980 in the Allahabad High Court
for a writ of mandamus directing the Government to appoint them. Pur-
suant 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 dire~t recruits, the Governm;nt was really required
to terminate the services of as many ad hoc appointees, including the           E
respondents. Instead of doing so, with a view to favour them, the Govern-
ment promoted them to the higher posts of UP Nagar Adhikaris on ad hoc
basis. The appellants, therefore, challenged promotions of those respon-
dents 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,       p
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.
                                                                                G
      On 23.5.84, the Government issued on order prescribing that only
those who had yermanentiy· and substantively served in the capacity of
Sahayak Nagar A"tlhikaris for six years will be eligible for promotion to the
posts of UP Nagar Adhikaris and that only those officers who had per-
manently served on the posts of UP Nagar Adhikaris would be eligible for H
    252                  SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.

A 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. Thereafter, on 30.8.84, the Government
    inserted Rule 21A in the Rules for regularising the services of ad hoc
    employees. Again, on 20.11.84, the Government amended its earlier 'order          -.
B   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. On 23}.1985, the Government amended the seniority list
    of Sahayak Nagar Adhikaris. It rightly included only those who were
c   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 service of respondents and
    other ad hoc appointees. Even though regular appointees on the posts of '
D   Sahayak Nagar Adhikaris were entitled to substantive promotion to the
     posts of UP Nagar Adhikaris, they were given promotions on ad hoc basis.
    Again, 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 them, 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
E    minimum eligibility will be the same i.e. 12 years of regular 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 employees even though they
     were seniors.
F
          The 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 list between the parties
G 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
H · Court disposed of the petition with that observation. The appellants have,
                R.G.1RIPATHI v. STATE [NANAVATI, J.)                    253

therefore, filed this appeal.                                                  A

       It is 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 regulaiised
only on 17.5.85 and thus were their juniors. They had also sought a mandainus B
directing the Government to grant them selection grade from the d~te 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 circumstanctes it was not proper for the C
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.

       Rule 21A provides for regularisation of service of ad hoc employees
by treating them as person appointed in the service on the date of their D
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 to such persons under those E
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 date
either for promotion to the higher post or for the purpose of giving •
selection grade.                                                               F
      In 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 an order to the effect that the date of confirmation of the employees   G
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 continuou~ly working, shall be determined
  .
as under:
                                            '

        "(i) The employees appointed on ad hoc basis and working con- H
         254                   SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.

     A           tinuously shall be made permanent on that post just 2 years after
                 the date of joining on which post the employee joined his duty
                 after being appointed."

               The Government by order dt. 23.3.1993 has tried to give seniority to
         the respondents and those other ad hoc employees by treating them as
     B   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
     C   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. This 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
     D   and similarly situated ad hoc appointees.

               We, 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
     E   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 from 2
         years after the date of jointing on those posts. The Government is directed
         to consider the seniority of the appellants and respondents as stated above
     F   and further consider the case of the appellants for selection grade accord-
         ingly and also in accordance with the Government order dated July 29,
         1986. The 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
     G   circumstances of the case, there shall be no order as to costs.

         R.A.                                                    Appeal disposed of.

J
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