Holding

Ad‑hoc promotions regularised subsequently do not count for seniority unless the ad‑hoc appointment was made by the same process as a regular appointment and was not a stop‑gap arrangement; in this case they do not count.

Summary

The appellants, Assistant Engineers (Electrical) Class II, were promoted on an ad‑hoc basis to Executive Engineer (Electrical) and later regularised. The Department’s seniority list counted their ad‑hoc service for seniority, which was challenged by directly recruited Assistant Executive Engineers (Electrical) Class I. The Central Administrative Tribunal held that ad‑hoc promotions made as a stop‑gap arrangement, without following the regular selection process, cannot be counted towards seniority. The Supreme Court affirmed this view, stating that ad‑hoc service counts for seniority only when the initial appointment follows the same procedure as a regular appointment and is not merely a temporary measure. Consequently, the appellants were not entitled to seniority credit for their ad‑hoc service, and the appeals were dismissed.

Issues considered

Whether ad‑hoc promotions that are later regularised count towards seniority for purposes of promotion, confirmation and other service benefits.
Whether the nature of the ad‑hoc appointment (stop‑gap arrangement versus regular selection process) affects its eligibility for seniority credit.

Subjects

service lawseniorityad‑hoc promotionregularisationrecruitment rulesdepartmental promotion committeestop‑gap arrangement

Judgment

A M.K. SHANMUGAM AND ANR. ETC. "';(

v.
UNION OF INDIA AND ORS.

APRIL 25, 2000 ..
B [S. SAGHIR AHMAD, S. RAJENDRA BABU AND
N. SANTOSH HEGDE, JJ.]
~
Service Law :

Seni01ity-Dete1mination of-Ad-hoc pmmotions-Regularised subse-
c quently-Held does not count for senio1ity in all cases-It counts only where
ad-hoc pmmotion is made by the same pmcess which is applicable to regular
appointment and is not a stop gap arrangement-Posts & Telegraphs Civil
Engineering (Electrical Gazetted Officers) Recruitment (Amendment) Rules,
_.._
1984.
D
Appellants, Assistant Engineers (Electrical) Class II were promoted
on ad-hoc basis as Executive Engineers (Electrical which were subsequently
regularised. The said ad-hoc promotions were taken into consideration by
the Department while preparing the seniority list. Respondents, dil_'.ectly
recruited Assistant Executive Engineers (Electrical) Class I challenged the ~
E said seniority list before the Central Administrative Tribunal. Molding that
the ad-hoc promotion~ made purely as a stop gap arrangements cannot be
counted towards seniority, the Tribunal allowed the applications. Hence the
present appeals.

Dismissing the appeals, the Court
F
~
Held : 1.1. Tribunal was justified in holding that the appellants were
not entitled to count their ad-hoc service in the post of Executive Engineers
(Electrical) for the purpose of seniority. [557 -F]

1.2. Ad-hoc promotions regularised subsequently does not count for
G seniority in all cases. It is only in those cases where initial appointment
though ad-hoc were made by the same process as applicable to regular _. _,
appointment and the same was not a stop gap arrangement. However, in '
the instant case, the ad-hoc promotions were made only as a stop gap
arrangement in administrative exigencies, without consideration by the
H Departmental Promotion Committee. [557-D]
554
M.K. SHANMUGAM 1i U.O.I. [RAJENDRA BABU, J.] 555
Direct Recruit Class II Engineering Officers' Association, [1990] 2SCC A
715; State of West Bengal & Ors. v. Aghore Nath Day & Ors., [1993] 3 SCC
371; Dr. Anuradha Bodi & Ors. v. Municipal Corporation of Delhi & Ors.,
[1998] 5 SCC 293; Keslzav Dea & Anr. v. State of U.P. & Ors., [1999) 1 SCC
280; Major Yogendra Narain Yadav & 01:~. v. Bindeshwar Prasad & Or.~.,
[1997] 2 SCC 150; I.K. Suklzija & Or.~. v. Union ofIndia & Ors., [1997] 6 SCC
B
406; Govemment ofA.P. & Am: v. Y. Sagareshivara Rao, [1995] Supp. 1 SCC
16, relied on.

2. However, it is made clear that while amending the Posts & Tel-
egraphs Engineering (Electrical Gazetted Officers) Recruitment (Amend-
ment) Rules, 1984, all those who are already in service will be borne in mind C
in adjusting seniority amongst the promotees inter se and suitable adjust-
ments could be made and so far as the direct recruits are concerned, their
cases will go by their quota rule and the view taken by the Tribunal in this
.A- regard cannot be taken exception of. [562-EJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5086 of 1994 D
Etc. Etc.

From the Judgment and Order dated 5.11.93 of the Central Administra-
tive Tribunal, Bombay in O.A. No. 286 of 1992.

V.R. Reddy, Additional Solicitor General, Soli J. Sorabjee, V.C. Mahajan, E
P.P. Rao, Shankar Ghosh, Anoop Choudhary, P.S. Misra, S. Sivasubramanium,
Raj Kumar Gupta, Hemant Sharma, Anil Katiyar, Arvind Sharma, B.K.
Prasad, Himanshu Shekhar, S.K. Verma, S. Chandrashekhar, Ms. Chandan
Ramamurthi, C. V. Subba Rao, Prag Tripathi, K.K. Mani, Mrs. Lalita Kaushik
and Naresh Kaushik for the appearing parties. F
The Judgment of the Court was delivered by

RAJENDRA BABU, J. Civil Appeal No. 5086 of 1994.

This appeal is directed against the order made by the Central Admin- G
istrative Tribunal, Bombay Bench [hereinafter referred to as 'the Tribunal'] on
November 5, 1993 in 0.A. No. 286/92. Respondents Nos. 3 and 4 filed an
application 0.A. No. 286/92 before the Tribunal. The pleadings raised in the
application, briefly stated, are as under.

The respondents were directly recruited through the Union Public H
556 SUPREME COURT REPORTS [2000) 3 S.C.R.
A Service Commission as Assistant Executive Engineers (Electrical) Class I in
the Ministry of Communications, while respondents Nos. 3 to 5 before the
Tribunal were recruited as Assistant Engineers (Electrical) Class II and both
the applicants and the other respondents were subsequently promoted on ad
hoc basis and thereafter they were regularised as Executive Engineers (Elec-
trical). The two respondents were aggrieved by the letter sent on February 6,
B
1992 which was accompanied by a seniority list of the Department of
Telecommunications whereby the ad hoc; 'services rendered by respondents 3
to 5 before the Tribunal as Executive Engineers from May 25, 1977, February
21, 1982 and April 16, 1982 respectively being treated as regular services and
counted for the purpose of seniority in that grade and proposed to re-fix that
c position in the final seniority list of Executive Engineers as on April 1, 1985
and thus the applicants before the Tribunal being pushed down in the seniority
list.

There are two channels of recruitment under the relevant recruitment
D mies and promotions to the post of Executive Engineer are to be made from
two categories, namely, Assistant Executive Engineer Class I with five years
regular service on seniority-cum-fitness basis (non-selection) in the 2/3rd
quota and the other being Assistant Engineer Class II with eight years regular
service on seniority-cum-merit basis (selection method) in the 1/3rd quota
selection being made by the Departmental Promotion Committee with a
E member of the UPSC as Chairman.

The stand taken by the applicants before the Tribunal is that while
regular promotions to the grade of Executive Engineers from the Assistant
Executive Engineers cadre was made regularly from 1976. However, the
F seniority in respect of Assistant Engineers Class II was not finalised till
November 1987 in view of certain disputes inter se the promotees in the cadre.
The D.P.C. thereafter selected from the category of Assistant Engineers Class
II in a meeting held only in May 1988 when the D.P.C. selected the appellants
for the vacancies belonging to their quota for the years 1977 to 1982. The
appellants had thus worked for long period varying from 6 to 11 years in the
G post of Executive Engineer on ad hoc before the D.P.C. could meet for
finalising regular promotion. The revision of the seniority list which was
challenged before the Tribunal, it was submitted, was only a corrective action
though belated to render justice to the affected persons and is in compliance
of the judgment of the Madras Bench of the Tribunal dated October 12, 1990
H in O.A. No. 113/89 directing disposal of the representation regarding the
M.K. SHANMUGAM v. U.0.1. [RAJENDRA BABU, J.] 557
¥ seniority of one of the appellants. It was further made clear in the said A
direction that it has to be decided after ta1cing into account the decision of the
Principal Bench of the Tribunal in N.N. Cha1craborty case in O.A. No. 978/
87 and of this Comt in Direct Recruit Class II Engineering Officers'
Association v. State~{ Mahamshtra & Ors., [1990) 2 SCC 715. Afternoticing
several decisions of this Court and of the Tribunal, it was held that under the B
statutory recruitment rules promotions to the post of Executive Engineer were
to be made from among the Assistant Engineers Class II with eight years
regular service on seniority-cum-merit by selection method in the l/3rd quota
and admittedly the appellants were promoted on ad hoc basis as Executive
Engineers on different dates mentioned earlier. The relevant appointments
were purely temporary and on ad hoc basis and were for a limited duration c
and it was also made clear that services on ad hoc basis will not confer any
claim in the matter of seniority, confirmation, etc. Thus it was noticed that the
~ ad hoc promotions were made in administrative exigencies since seniority lists
of Assistant Engineers could not be finalised in view of pending litigation and,
therefore, the D.P.C. meeting for regular selection could not be atranged. Non-. D
selection for a selection post can hardly be considered to be a minor procedural
deficiency and, therefore, the Tribunal concluded that selection was not by a
competent D.P.C. and the ad hoc promotion was itself for a limited time and,
therefore, does not fulfil the conditions mentioned in the decision in State of
West Bengal & Ors. v. Aghore Nath Dey & Ors., [1993) 3 SCC 371. The E
Tribunal is of the view that ad hoc service to count for seniority must be
rendered continuous!; till the date of regularisation for 15 years or more and,
therefore, it held that the appellants could not take advantage of the ad hoc
promotions made purely as a stop gap arrangement and it is only in special
circumstances such ad hoc service could be counted for purpose of seniority
as noticed in some of the decisions of this Court. Consequently, the application F
filed by the contesting respondents was allowed and it was declared that the
appellants were not entitled to count their ad hoc service in the post of
Executive Engineers (Electrical) for seniority, confinnation, promotion, etc.

It is contended before us that regular promotions from Executive G
Engineers, which is a feeder cadre, to the grade of Superintending Engineer
could not take place immediately and four vacancies of Superintending
Engineers had arisen by the time the meeting of D.P.C. was held on October
17, 1984. Strong reliance was placed on the com1ter afiidavit filed before the
Tribunal which is to the following effect :- H
558 SUPREME COURT REPORTS (2000] 3 S.C.R.
A "The first two points after Point No. 7 of seniority list dated 10-4- -...
· 85 thus, go to the officers promoted from the rank of AEE(E) and SL
No. 10 goes to the officer promoted from the rank of AE(E). A point
was left blank in seniority list to accommodate an officer promoted
~
from Group B. This was erroneously shown as Sl No. 9 instead of
SL No. 10. This mistake has later on been rectified. The applicant
B
cannot presume that in the selection process, he will find the top most
position on the panel. The DPC chaired by a Member of UPSC will
draw a select panel according to statutory Recruitment Rules." ~

Appellant No. 1 claimed that he was assigned top most position by
c the D.P.C. held on May 13, 1988 but the provisional seniority list dated
January 12, 1989 did not reflect his position and in those circumstances he
sought permission to withdraw the pending application with liberty to file
a fresh application. So far as appellant No. 2 is concerned, he filed an O.A.
before the Madras Bench of the Tribunal claiming seniority from the year
_..
1982 when he was promoted on ad hoc basis to the grade of Executive
D
Engineer (Electrical). The Tribwial rejected the contention raised by the
Department that he is deemed to be on regular basis only with effect from
May 13, 1988 when the D.P.C. met. Since the seniority list dated January
12, 1989 was only provisional the Tribunal directed appellant No. 2 to make
another representation to the Department which the Department was directed ~
E to dispose of in accordance with law. Pursuant to this direction given by
the Madras Bench of the Tribunal it is stated that the seniority had to be I

re-fixed and, therefore, it is contended that inasmuch as they had rendered J1
service for a long period at any rate in higher cadre and their promotions
having been subsequently regularised ought to be treated as giving them
F seniority in the matter.

The stand taken by the contesting respondents is that under the relevant
rules the D.P.C. should be headed by a member of UPSC which was not done
in t11e case of the appellants at the time of their ad hoc appointment and
appellant No. 1 was duly considered in 1978 and was not found suitable and
G for that reason his name did not figure in tl1e selection list and there was no
additional quota vacancy in the grade of Executive Engineer (Electrical) meant _..
for group B cadre officers upto 1985. As a matter of fact, B.V. Ramanamurthy,
who is admittedly senior to both the appellants, was only regularised on June
28, 1985 with effect from Ap1il 1, 1975 as he came under the purview of
H clause 4C of amended rules published on September 22, 1984. Since the
I '.
M.K. SHANMUGAM v. U.0.1. [RAJENDRA BABU, J.] 559
appellants herein were not covered under clause 4C of amended rules 1984 A
and also additi9nal quota was not available as such, they could not be
regularised prior to 1985. The Tribunal has taken note of the fact that the ad
hoc promotions given to the appellants were not de hors the rules. It was
contended that there were four vacancies against Assistant Engineers' quota
but Department had informed the D.P.C. to fill two vacancies from direct
B
recruitment and the D.P.C. accordingly selected K. Subramanian and T.Mohan
Rao though B. V. Ramanamurthy and the first appellant were also eligible and
vacancies were existing they were not regularly promoted by wrong interpre-
tation of rules and separately reserving two vacancies for promotee cadre.
Such provision is not existing in recruitment rules and the petitioners are the
initial constituents in Assistant Engineer (Electrical) grade and are much above c
promotees in the Assistant Engineer (Electrical) seniority list. There was
considerable delay in the introduction of initial constitution clause and the
~ same was published only in 1984 after a gap of 9 years and came into force
with effect from April 5, 1975. The Screening Committee was thereafter
convened by the Department on August 16, 1985 and appellants and officers, D
including B.V. Ramanamorthy and several other officers, were promoted on
the dates indicating against their names. Appellant No. 1 and R. Ravindran
were not included as initial constituents since they neither completed eight
years of service nor on ad hoc before April 5, 1975. Their promotions fall
under maintenance clause 4A and 4B of amended rules 1984. They, however,
formed the initial constituents in Assistant Engineer (Electrical) or Assistant E
Executive Engineer (Electrical) cadre separately. On that basis it was con-
tended that the seniority list published is in order.

The Union-of India has also filed two appeals - one (Civil Appeal No.
3018 of 1997) arising out of judgment dated June 27, 1996 in O.A. No. 108/ F
96 passed by the Madras Bench of the Central Administrative Tribunal and
other (Civil Appeal No. 5081 of 1994) against judgment and order dated
November 5, 1993 passed by the Tribunal in O.A. No. 286/92. In 0.A. No.
108/96 the Madras Bench of the Central Administrative Tribunal merely
followed the judgment of the Tribunal which is under appeal before us in Civil
Appeal No. 3018 of 1997. G

There is another dimension to the case by reason of the introduction of
the Rules called "The Posts ~ Telegraphs Civil Engineering (Elecuical
Gazetted Officers) Recruitment (Amendment) Rules, 1984'', which were given
retrospective effect from April 5, 1975. It is explained that the reason for H
I
i~
l.

560 SUPREME COURT REPORTS [2000] 3 S.C.R.
A introduction of these Rules is that for recruitment to the various posts in the -...
Electrical Branch of the Civil Wing of the Posts & Telegraphs Department, the
rules ofrecruitment were published on the April 5, 1975. Prior to commence-
ment of the said Rules, there were otlicers who had joined directly as Assistant
k::
Executive Engineer (Electrical) through the Combined Engineering Services
Examination held by the Union Public Service Commission. Those who had
B
come on deputation from C.P.W.D. were also deemed to have been regularly
appointed in the Posts & Telegraphs Department pursuant to a decision of the
~-
High Court of Allahabad. Some of the officers were promoted to the higher
grades on ad hoc basis. In order to ensure that these officers are not deprived
of the service rendered by them before commencement of the rules, it was
c proposed to incorporate retrospectively a provision for initial constitution of
these posts. Therefore, though the rules were amended by a notification issued
on April 22, 1984 published in the Gazette of India and it was given
retrospective effect but the purpose of giving retrospective effect to the .....
provision relating to the initial constitution of these posts would not prejudi-
D cially affect the interests of any person already in service. It is in this
· background, it is contended before us, that the cases of the appellants could
not be considered to the post of Superintendent Engineers although they were
functioning as the Executive Engineers without determining their position in
the initially constituted cadre and that could be done with reference to the
rules, as amended in 1984 which came into effect from April 5, 1975. Though ~
E there may have been some ·delay and complications arising thereto there is
another factor which needs to be considered in these cases. The case of the
1st appellant was considered by the Departmental Promotion Committee in
which Air Marshal T.S.Virk was present on behalf of the UPSC and who
presided over that meeting for selection of officers for officiating promotion
F to the grade of Executive Engineer (Electrical) and it was noticed that out of
four vacancies, two vacancies are to be filled by promotion of direct recruit
Assistant Engineer (Electrical) and the remaining two vacancies were kept
reserved for the promotion of Assistant Engineer (Electrical). As no officer
was available for consideration at present and the Committee accordingly
considered.the 4 eligible officers and assessed them. While K.Subramanian,
G T.Mohan Rao and B.V.Rarnnamurthi were found to be 'very good', the 1st
appellant was assessed to be only 'good'. This was recorded in the minutes _..
of the meeting of the Departmental Promotion Committee held on June 2,
1978 in the office of the UPSC. Thereafter, in the minutes of the meeting of
the Departmental Promotion Committee held on May 13, 1988, the 1st
H appellant was found to be 'very good' for the year 1977 as an Executive
M.K. SHANMUGAM v. U.0.1. [RAJENDRA BABU, 1.J 561
-
Engineer (Electrical) Group A. It is in thes~ circumstances, It IS to be A
considered whether the case of the lst appellant could have been considered
earlier to the date he was found fit to be promoted. The initially constituted
cadre is of the date April 5, 1975 and on that date the 1st appellant had not
been considered for promotion to the post of Executive Engineer and he was
found fit to be promoted as Executive Engineer only with effect from 1977,
B
i.e., much later to the promulgation of these rules. Reliance has been placed
on the decision of this Court in Direct Recruit Class II Engineering Officers'
r4 41(
Association [supra]. That is a pase where the quota rule between the direct
recruits and the promotees had broken down and the appointments were made
from one source in excess of the quota, but were made after following the
procedure prescribed by the rules for the appointment; therefore, it was held c
that the appointees should not be pushed down below the appointees from the

... other source inducted in the service at a later date. In that case the direct
recruits were not available in adequate number for appointment and appropri-
ate candidates in the subordinate rank capable of efficiently discharging the
duties of Deputy Engineers were waiting ii:J. their queue. The development
D
work of the State pre-emptorily required experienced and efficient hands and
in that situation the State Government took a decision to fill up the vacancies
by promotion in excess of the quota, but only after subjecting the officers to
the test prescribed by the rules. Therefore, in those peculiar conditions certain
directions had been given by this Court inasmuch as the rigours of the quota
rule having been neutralised and the seniority being dependent on continuous E
officiation, the seniority so fixed would not be defeated by the ratio fixed by
the rules. It is difficult to appreciate as to how the principle stated in that case
could be extended to the case of 1st appellant in the present case as the quota
rule had not broken down in any manner nor is there any material before the
court to show that he has not been duly considered by the Departmental F
Promotion Committee before appointment to the higher grade. Again in the
case of State of West Bengal & Or-s. v. Aghore Nath Dey [supra] the same
question arose. In that case it was noticed that when reckoning seniority the
length of the service may be a relevant factor. If the ad hoc selection is
followed by regular selection, then the benefit of ad hoc service is not
admissible if ad hoc appointment is in violation of the rules. If the ad hoc G
._ appointment has been made as the stop gap arrangement and where there was
a procedural iITegularity in making appointments according to rules and that
iITegularity was subsequently rectified, the principle to be applied in that case
was stated once again. There is difficulty in the way of the appellants to fight
out their case for senioiity should be reckoned by reason of the length of the H
562 SUPREME COURT REPORTS [:2000] 3 S.C.R.
A service whether ad hoc or otherwise inasmuch as they had not been recruited ....,.
regularly. As stated earlier, the appellants were regularly found fit for
promotion only in the year 1977 and if that period is reckoned their cases
could not be considered as found by the Tribunal. The view expressed by this
Court in these cases have been again considered in the decisions in Dr.
Anuradha Bodi & Ors. v. Municipal Corporation of Delhi & Ors., [1998] 5
B
SCC 293; Keshav Deo & Anr. v. State of U.P. & Ors., [1999] 1 SCC 280;
Major Yogendra Narain Yadav & Ors. v. Bindeshwar Prasad & Ors., [1997]
2 SCC 150; l.K. Sukhija & Ors. v. Union of India & Ors., [1997] 6 SCC 406;
Government of A.P. & Anr. v. Y. Sagareshwara Rao, [1995] Supp. 1 SCC 16,
but all these decisions do not point out that in case the promotions had been
C made ad hoc and they are subsequently regularised in the service in all the
cases, ad hoc service should be reckoned for the purpose of seniority. It is only
in those cases where initially they had been recruited even though they have
been appointed ad hoc the recruitment was subject to the same process as it
had been done in the case of regular appointment and that the same was not
a stop gap arrangement. That is not the position in the present cases at all.
D
Therefore, we are of the view that conclusions reached by the Tribunal appear
to us to be correct and call for no interference. However, we make it clear, as
noticed earlier, that while amending the rules of recruitment in the 1984 all
those who are already in service will be borne in mind in adjusting the
seniority amongst the promotees inter se and suitable adjustments could be
E made and so far as the direct recruits are concerned, their cases will go by their
quota rule and the view tak.en by the T1ibunal in this regard cannot be taken
exception of.

Appeals stand dismissed accordingly.

F S.V.K. Appeals dismissed.