Holding

Ad‑hoc appointments to posts earmarked for direct recruitment are temporary and do not confer probation or seniority; regularisation of service is effective only from the date of substantive appointment under the Rules.

Summary

A.G. Sainath Reddy, a Welfare Officer in the Andhra Pradesh Jail Department, was promoted to Deputy Superintendent of Jails on an ad‑hoc basis while the posts were earmarked for direct recruitment by the State Public Service Commission. After the direct recruits joined, the Government regularised service of all, back‑dating the seniority of the direct recruits to their joining dates but back‑dating Reddy’s seniority to his ad‑hoc appointment date. The direct recruits challenged this before the Andhra Pradesh Administrative Tribunal, which held that ad‑hoc appointments are temporary, do not confer probation or seniority, and that regularisation should be from the date of substantive appointment under the Rules. Reddy appealed to the Supreme Court. The Court affirmed the Tribunal’s view, holding that posts reserved for direct recruitment must be filled by such recruitment; ad‑hoc appointments are merely stop‑gap measures and do not give a right to probation or seniority, so Reddy’s claim for back‑dated seniority was rejected.

Issues considered

Whether an ad‑hoc appointment to a post reserved for direct recruitment confers a right to probation and seniority from the date of such appointment.
Whether the date of regularisation of service for an ad‑hoc appointee can be back‑dated to the ad‑hoc appointment date.
Whether the service rules and the Administrative Tribunals Act permit counting ad‑hoc service for seniority purposes.

Legislation cited

Administrative Tribunals Act, 1985s. 19

Subjects

service lawprobationseniorityad‑hoc appointmentdirect recruitmentregularisationadministrative tribunalAndhra Pradesh Jail Service Rules

Judgment

t

A A.G. SAINATH REDDY
v.
THE GOVT. OF A.P. AND'ORS.

FEBRUARY 28, 2003

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Service Law:

Andhra Pradesh Deputy Superiflltendents of Jails Service Rules, 1974;
C Rules 3 & 4:

Appointment of Junior Departmental Officers as Dy. Superintendent of
Jails on adhoc basis and appointment of direct recruiis thereafter-
Regularisation of services of the appointee from the respective date ofjoining
D ofservice on adhoc/direct recruitment-Challenged by direct recruits-Allowed
by Administrative Tribunal-On appeal, held, since posts were required to be
filled up by direct appointment by the Service Commission, appointment of
promotees on adhoc basis to the posts did not confer any right of probation
on them-Since probation starts from actual date of joining of duty on
substantive appointment to the post, there is no question of deemed probation
E on adhoc appointment-Hence promotee officer can not claim regularisation
of his services/seniority to the postfrom the date of joining on adhoc
appointment to the post.

Appellant-employee was appointed as Welfare Officer in Andhra
Pradesh Jail Deptt. and subsequently promoted/appointed as Dy.
F Superintendent, Jails on adhoc basis pending direct recruitment to the said
post by the Service Commission. Subsequently, some of the direct recruits
also joined the post. State Government regularized their services from the
date of joining on appointment either on ad hoc or on direct recruitment.
This was challenged by the direct recruits before the Administrative
G Tribunal. Tribunal allowed the O.A. Hence the present appeal.

It was conten<ied for the appellant that since he was appointed to
the post of Dy. Superintendent, Jails on transfer basis, he was required to
serve on probation and that merely because his appointment was on adhoc
basis would not make any differl!nce.
H, 416
A.G. SAJNATH REDDY v. GOVT. OF A.P. 417
On behalf of the respondents, it was submitted that adhoc A
appointment could not be treated as appointment under the Rules; and
that probation period starts only on appointment to the post on regular
basis and not otherwise.

Dismissing the appeals, the Court
B
HELD: 1.1. Since the posts were to be filled up by direct recruits on
the basis of acceptance of recommendations of Service Commission, any
arrangement to fill up those posts on officiating basis does not confer any
right of probation on the person so appointed as there was no P?St to which
there could be appointment of a promotee after requisitions were sent to C
the Commission to such posts earmarked for direct rec.ruitment. Any
officiating arrangement is really of no consequence. (420-E, F)

1.2. The effective date of appointment has to be reckoned when the
regular appointment is made on the basis of the Rules. Once the post is
earmarked for direct recruit, it goes out of reach of the department for D
effecting promotions o.n regular basis and comes to the hands of the Service
Commission. Their recommendation which is subject to acceptance by the
Government alone governs such posts for appointment. (420-H; 421-A)

State of West Bengal and Ors. etc. v. Aghore Nath Dey and Ors., (1993)
3 SCC 371; Direct Recruit Class II Engineering Officers' Association v. State E
of Maharasthra and Ors., (1990) 2 SCC 715 and A.P.H. Mayankutty v. The
Secretary and Anr., (1997) 2 SCC 360, referred to.

1.3. The orders of appointment on adhoc basis which were issued to
the appellant and others were conditional order and their promotion to F
the posts lasts till direct recruits recommended by the Service Commission
joins. If any vacancy remained after joining of the selected direct recruits,
same was available to be filled up from other sources ofappointment. Rule
2(3) of the Rules is applicable when departmental candidates are not
available. Since no qualified departmental candidates.were available, the
vacancies were notified to the Se~ice Commission. It is further to be noted G
that the crucial words in Rule 4 are "shall from the date on which he joins
duty be on probation ... ". There is no question of any deemed probation
or notional date of probation as probation starts from I
the actual date of
joining duty. T~e question of joining duty on probation shall arise only
when there is a substantive 11ppointment against a post available and not H
any ad hoc or officiating ~rrangement. (423-A, D-F)
).
r

r

A
418 SUPREME COURT REPORTS

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12578-12582
[2003) 2 S.C.R.
J
of 1996.

From the Judgment and Order dated 30.12.1994 of the Andhra Pradesh
Administrative Tribunal at Hyderabad in O.A. Nos. 41070-74 of 1991.

B S.K. Dholakia, N.M. Popli and B. Kanta Rao, for the Appellant.

Gururaja Rao, Ms. Bina Madhavan, Prasanth P., Ms. Meena C.R.,
Mangesh Kale, S.U.K. Sagar, V. Balaji, Ms. T.S. Samthi, Ms. Aarthi
Radhakrishnan. P.N. Ramalingam, Guntur Prabhakar, Ms. T. Anamika, Mrs.
Sudha Gupta and B. Kanta Rao, for the Respondents.
c
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Challenge in these appeals is to the order passed
by the Andhra Pradesh Administrative Tribunal at Hyderabad (in short 'the
D Tribunal'). The controversy lies within a very narrow compass i.e. the date
of seniority of the appellant and, therefore, a brief reference to the factual
aspei::ts would suffice.

Appellant joined as Welfare Officer in Andhra Pradesh Jails Department
on 8.9.1978. He completed his probation on 5.10.1981. On 16.6.1983, nine
E posts of Deputy Superintendent of Jails were notified to be filled up and on
25.8.1983 an advertisement was issued by a requisite Gazette Notification by
the Andhra Pradesh Public Service Commission (in short the 'Commission')
for filling up the aforesaid vacancies by direct recruitment. Five years' service
is required for an employee other than a direct recruit to be eligible for
consideration for the said post. On 16. l 0.1984, 11 prisons welfare officers
F and jailors were appointed as Deputy Superintendents of Jails on ad hoc
basis. Appellant joined as Deputy Superintendent of Jails on 20.10.1984 on
the aforesaid ad hoc basis. The Commission conducted the written examination
in October 1985 and interviews were conducted in October 1986. The results
were declared in 1987. By Government Order dated 17.12.1987, four persons
G were given appointment, but only three· joined. Subsequently, two persons
were appointed on 4.5.1988 and 19.6.1989. A Government Order No. 595
dated 1.10.1990 was issued by the Government where the date from which
service as Deputy Superintendent of Jails was to be regularised was indicated.'
While the dates of regularisation for direct recruits were indicated to be the
date they joined, so far as the appellant is concerned, it was indicated to be
H the date when he had joined on ad hoc basis in 1984. This was questioned
A.G. SAINATH REDDY v. GOVT. OF A.P. [ARJJIT PASAYAT, J.) 419

by the direct recruits before the Tribunal. They raised two coritentions in the A
applications filed under Section 19 of the Administrative Tribunals Act, 1985
(in short 'the Act'). They were (i) their seniority should be counted from the
date of notification i.e. 16.6.1983; (ii) and in any event, the dates fixed by
the non-direct recruits were not legal as their appointments were on purely
ad hoc basis and merely as stop gap arrangement since they were appointed B
in respect of the posts for which requisitions had been sent to the Commission
by the State Government. The Tribunal accepted the second contention. It
came to hold that there was no scope for retrospective regularisation and
deemed probation. Reference was made to Rule 4 of the Andhra Pradesh
Deputy Superintendents of Jails Service Rules, 1974 (in short 'the Rules').
These rules are framed under Article 309 of the Constitution of India, 1950 C
(in short 'the Constitution'). As afore-noted, the judgment of the Tribunal
disposing of the 5 original applications is the subject 111atter of challenge in
these appeals.

Mr. S.K. Dholakia, learned senior counsel appearing for the appellant D
submitted that the• approach of the Tribunal is erroneous. The method of
appointment is indicated in Rule 2 of the Rules. There are three sources of
appointment, i.e. (i) recruitment by transfer of jailors in jails other than sub-
jails in Andhra Pradesh Jail Subordinate Services; (ii) recruitment by transfer
of Welfare Officers of Branch II of the aforesaid Services and (iii) by direct
recruitment if no qualified or suitable person is available by any of the other E
two methods. Where the recruitment is by transfer, the concerned officer is
required to have served as a Jailor in jail other than sub-jails or as Welfare
Officer for not less than five years. There is a requirement that every person
appointed to the post by transfer has to be on probation for a specified
period. Appellant was recruited in terms of the Rules and merely because his p
appointment was styled as an ad hoc appointment the same will not make a
difference. The appointment was on the basis of the Rules and not on t.he
basis of the Government Order. Since there was vacancy the appointments
could have been made and have been made in terms of the Rules. Strong
reliance was placed on Direct Recruit Class II Engineering Officers' G
Association v. State of Maharashtra and Ors., (1990) 2 SCC 715, more
particularly, para 47, conclusions (A) and (B) which read as follows:

• "(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 riot
according to the date of his confirmation. H
420 SUPREME COURT REPORTS (2003] 2 S.C.R.

A 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
B laid down by the rules but the appointee continues in the post
uninterruptedly till the regularization -0f his service in accordance
with the rules, the period of officiating service will be counted."

In response, learned counsel for the respondents submitted that the Tribunal
C has rightly analysed the legal position. The appointments were stop-gap,
emergency or fortuitous arrangements and it cannot be treated to be
appointment under the Rules. The probation period started only when there
was a regular appointment in terms of the Rules and not on any point of time
before that date.

D One basic feature which needs to be considered is that the posts were
advertised by the Commission in 1983 for direct recruits. Requisitions were
sent to the Commission by the government before that. Since the posts were
to be filled up by direct recruits on the basis of acceptance of recommendations
of Commission, any arrangement to fill up those posts on officiating basis
E does not confer any right of probation on the person appointed as there was
no post to which there could be appointment of a promotee after requisitions
were sent to the Commission to such posts earmarked for direct recruitment.
Any officiating arrangement is really of no consequence. Rule 4 of the Rules
relating to "Probation" reads is as follows:

F "Every person appointed to the post by transfer shall from the
date on which he joins duty, be on probation for a total period of one
year on duty within a continuous period of two years and every
person appointed by direct recruitment shall, from the date on which
he joins duty, be on probation for a total period of two years on duty
within a continuous period of three years."
G
Obviously, the date to be reckoned when the regular appointment is made
on the basis of the Rules. Orice the post is earmarked for direct recruit, it
goes out of reach of the department for effecting promotions on regular basis
and comes to the hands of the Commission. Their recommendation which is
H subject to acceptance by the Government alone governs such posts for
A.G. SAIN ATH REDDY v. GOVT. OF A.P. [ARIJIT PASA YAT, J.] 421

appointment. The decision in the Direct recruits' case (supra) was considered A
later by this Court, more particularly, relating to conclusions (A) and (B) in
State of West Bengal and Ors. etc. v. Aghore Nath Dey and Ors., [1993] 3 ·
SCC 371. At paras 21 to 25. it was held as follows:

"21. We shall now deal with conclusions (A) and (B) of the constitution.
bench in the Maharashtra Engineers case quoted above. B
22. There can be no doubt-that these two conclusions have to be read
h~rrnoniously, and conclusion (B) cannot cover cases which are
expressly excluded by conclusion (A). We may, therefore, first refer
to conclusion· "(A). It is clear fro1:1 conclusion (A) that to enable
seniority to be counted from the date of initial appointment and not C
according to the date of confirmation, the incumbent oft.he post has
to be ipitially appointed 'according to niles?. The corollary set out in
conclusion (A), then is, that 'where the initial appointment is only ad
hoc and· not according to rules and made as a stop-gap arrangement,
the officiation iil such posts cannot be taken into account for D
considering the seniority'. Thus, the corollary in conclusion {A)
expressly excludes the category of cases where the initial appointment
is only ad hoc and not according to rules, being made only as a
stopgap arrangement. The case of the writ petitioners squarely falls
within this corollary in conclusion (A), which says that the officiation
in such posts cannot be taken into account for counting the seniority. E

23. This being the obvious inference from conclusion (A), the question
is whether the present case can also fall within conclusion (B) which
deals with cases in which period of officiating service will be counted
from seniority. We have no doubt that conclusion (B) cannot include,
within its ambit, those cases which are expressly covered by ihe F
corollary in conclusion (A), since the two conclusions cannot be read
in conflict with each other.

24. The question, therefore, is of the category which would be ~vered
by conclusion (B) excluding therefrom the cases covered by corollary G
in conclusion {A).

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 · H
422 SUPREME COURT REPORTS [2003] 2 S.C.R.

A (B), namely, 'if the initial appointment is not made by following the
procedure laid down by the 'rules' and the latter expression 'till the
regularization or' his service in accordance with the rules'. We read
conclusion (B), and it must be so rt(ad 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
B 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 posi being cured at the time of
regularization, the appointee being eligible and qualified in every
manner for a regular appointment on the date of initial appointment
c '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
D must continue in the post uninterruptedly till the regularization 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 iime of his initial appointment, and the appointment
not befog limited to a fixed period of time is intended to be a regular
E 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
F 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)."

G Reference can also be made to A.P.M Mayankutty v. The Secretary and Anr,,
[1977] 2 SCC 360. In paragraphs 7, 8 and 9 of the said decision the position
as to when a person can be treated as probationer and what happens relating
to appointments on emergency or fortuitous arrangement were analysed.

H Additionally, it is to be noted that the orders of appointments on ad hoc
f I
J..
A.G. SAINATH REDDY v. GOVT. OF A.P. (ARIJIT PASAYAT, J.J423

basis dated 1.12.1983 and 16.10.1984 which,were issued to the appellant and A
O!hers contained the following stipulations respectively.

"The temporary promotions of. the following officers may be ordered
till such time as these posts are regularly fill in by direct recruitment
.for which notification has already been issued. by the APPSC."
B
xxx xxx xxx xxx xxx
"The appointments ordered in para-I above are purely temporary
and provisional and do not confer any right whatsoever on the persons
for continuance in the posts and do not entitle them to any preferential
claim to future appointments thereto, and are liable to be terminated C
at any time without assigning any reason and without any notice."

If any vaparicy remained after joining of the selected direct recruits,
same was available to be filled up from other sources of appointment.

One thing further is to be noted. Rule 2(3) of the Rules is appl.icable D
when departmental candidates are not available. Since no qualified
departmental candidates were available, the vacancies were notified to the
Commission. It is further to be noted that the crucial words in Rule 4 are
"shall from the date on which he joins duty be on probation... ". There is no
question of any deemed probation or notional date of probation as probation
starts from the actual date of joining duty. The question of joining duty on E
probation shall arises only when there is a substantive appointment against a
post available and not any ad hoc or officiating arrangement.

That being the position, the Tribunal was justified in allowing the original
applications filed before it. We find no merit in these appeals. The appeals F
fail and are dismissed. Costs made easy.

S.K.S. Appeals dismissed.