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2. For the sake of convenience, Civil Appeal No. 10788 of 2016 is treated as a lead matter and the facts from the said civil appeal are narrated and considered for the purpose of deciding these appeals. 2.1 108 Assistant Engineers were given ad hoc appointments in the year 1985 after an advertisement had been issued. Their services were subsequently regularised on 14.12.1989 under the provisions of the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 (hereinafter referred to as the ‘1989 Rules’). At this stage, it is required to be noted that earlier the regularisation of ad hoc appointments was as per the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as the ‘1979 Rules’), which came to be subsequently extended from time to time. Therefore, for all practical purposes, the respective ad hoc employees were governed by the 1979 Rules, which came to be extended by the 1989 Rules. A final seniority list was prepared on 14.12.2001. The services rendered by such Assistant Engineers on ad hoc basis were not counted for seniority purposes and their seniority was determined from the date of their regularisation on 14.12.1989.

2.3 A Division Bench of the High Court of Judicature at Allahabad, vide judgment and order dated 27.02.2004, in the case of Arjun Ravi Das filed by ad hoc Assistant Engineers for counting their services rendered on ad hoc basis prior to regularisation in 1989 for the purpose of seniority, dismissed the writ petition. Thereafter, several other writ petitions including the writ petition by Narendra Kumar Tripathi (second case) were filed and finding a conflict between the two Division Benches, in Narendra Kumar Tripathi (first case) and Arjun Ravi Das, the writ petitions were referred to a Full Bench. The issue before the Full Bench was as to whether the services rendered on ad hoc basis prior to regularisation should be counted for determining the seniority. The Full Bench observed that ad hoc services rendered after appointment made dehors the rules and without following any procedure prescribed by law cannot be counted for the purpose of seniority, after having noted that the services of such ad hoc Assistant Engineers appointed in 1985 were subsequently regularised by order dated 14.12.1989 and a final seniority list was prepared on 14.12.2001 which did not count the services rendered by the Assistant Engineers on ad hoc basis. Thereafter, the Full Bench dismissed all the petitions holding that the ad hoc services rendered prior to regularisation should not be counted for the purpose of seniority. The seniority list was therefore not disturbed by the Full Bench.

At the outset, it is required to be noted that in the present case, the seniority has been re-determined pursuant to the directions issued by this Court in the case of Narendra Kumar Tripathi (supra). In the case of Narendra Kumar Tripathi (supra), this Court after considering the very 1979 Rules held that the services rendered by ad hoc appointees prior to their regularisation and services rendered by them from the date of their initial appointments is to be counted for the purpose of seniority. It is not in dispute that in the impugned judgments and orders, the respective High Courts have solely followed the decision of this Court in the case of Narendra Kumar Tripathi (supra). However, it is required to be noted that earlier to the decision of this Court in the case of Narendra Kumar Tripathi (supra), there were two binding decisions of this Court interpreting the very Rules 1979 in the cases of Santosh Kumar (supra) and Archana Shukla (supra), under which the services of the ad hoc appointees – private respondents herein are regularised. In the case of Santosh Kumar (supra), interpreting the very U.P. Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979, a two Judge Bench of this Court observed and held that the seniority of ad hoc appointees to be reckoned from the date of their “substantive appointments” and ad hoc appointments cannot be deemed to be “substantive appointments” and hence such appointees to be placed below the direct recruits appointed prior to their regularisation. In the case of Santosh Kumar (supra), this Court interpreted the very Rule 7 of the 1979 Rules. This Court also considered the decision of this Court in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra), considered by this Court in the case of Narendra Kumar Tripathi (supra). In the case of Santosh Kumar (supra), the High Court considered Seniority Rules, 1991 (which shall be discussed hereinbelow) and the High Court took the view that rule of seniority clearly provides that seniority in any category or cadre post shall be determined from the date of the order of “substantive appointment”. Subsequently, in the case of Archana Shukla (supra), while interpreting the pari materia rules applicable to the State of Uttarakhand, it is observed and held that ad hoc appointees whose services were regularised subsequently are not entitled to the benefit of their service under rule 7 from 1988 to 2004 (as ad hoc appointees) for the purpose of seniority. In the said decision, the Drug Inspectors were initially appointed as ad hoc in the year 1988 and thereafter they were regularised in the year 2004 under the Uttaranchal Regularisation of Ad hoc Appointments (Posts under the purview of Public Service Commission) Rules, 2002 (applicable in other appeals in the present case to the respective State of Uttarakhand). They claimed the benefit of their services from 1988 to 2004 for the purpose of seniority. This Court set aside the judgment and order of the High Court on interpretation of Rule 7 and observed that they were appointed after the selection under the Regularisation Rules in the year 2004 and hence they can get seniority only from the year 2004 and not from 1988. Unfortunately, when this Court decided Narendra Kumar Tripathi (supra), the aforesaid two binding decisions interpreting the very 1979 Rules and 2002 Rules taking the contrary view were not brought to the notice of this Court. Therefore, to that extent, the decision of this Court in the case of Narendra Kumar Tripathi (supra) can be said to be per incuriam.

10. Similarly, the decision of this Court in the case of Rudra Kumar Sain (supra), relied upon by the learned counsel appearing on behalf of the ad hoc appointees also shall not be applicable to the facts of the case on hand. In the case before this Court, the promotees appointed on ad hoc were continued for fairly long periods and their appointments were made after due consultation with, or approval of Service Commission, and therefore their appointments were held not to be ad hoc or fortuitous or stopgap. It is to be noted that in the present case when the ad hoc appointees were appointed in the year 1985, there was no consultation with the UPSC and as such there was no recommendation by the UPSC. Their services came to be regularised as per the 1979 Rules and after they were selected by the Selection Committee constituted under the 1979 Rules, which specifically provides that for the purpose of regularisation of ad hoc appointments, the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary. It is also to be noted that when the ad hoc appointees were appointed in the year 1985, they were appointed on the basis of the recommendations of the Selection Committee constituted for ad hoc appointments and when subsequently their services were regularised and they were appointed in the year 1989, they were appointed by the order of Governor. This is one additional ground to hold that their substantive appointments can be said to be only from the date of their regularisation/appointment made in the year 1989 after their names were recommended by the Selection Committee constituted under the 1979 Rules and their services were regularised as per the 1979 Rules after following the procedure as required under the 1979 Rules, i.e., in the year 1989. Therefore, their seniority is to be counted only from 23.02.1989, the date of their regularisation and the services rendered by the ad hoc appointees prior thereto, i.e., from the date of their initial appointments in the year 1985 is not to be counted for the purpose of seniority, vis-à-vis, the direct recruits appointed prior to 1989.