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Sri Ashok Khare, learned Senior Counsel appearing for the private respondents, however, submitted :-

(i) the State Government was obliged to prepare a fresh seniority list keeping in mind the principle that ad hoc services rendered by the Assistant Engineers prior to their regularization was required to be counted for determining the seniority in view of the law laid down by the Supreme Court in Secretary, Minor Irrigation Department ;

(ii) the view taken by the Full Bench of the High Court in Farhat Hussain Azad that ad hoc services rendered prior to regularisation cannot be counted for the purpose of determining the seniority was specifically overruled by the Supreme Court and it was held that ad hoc services rendered prior to regularisation should be counted for the purpose of seniority and so this principle was required to be applied to all the Assistant Engineers ;

Sri Manu Khare, learned counsel appearing for the private respondents adopted the arguments of Sri Ashok Khare, learned Senior Counsel and also placed reliance upon the decision of the Supreme Court in Amrit Lal Berry v. Collector of Central Excise, New Delhi and Others15.

We have considered the submissions advanced by the learned counsel for the parties.

The dispute in this petition is about the seniority of Assistant Engineers working in the Department. As noted above, 108 Assistant Engineers were given ad hoc appointments in 1985 after an advertisement had been issued. Their services were subsequently regularized on 14 December 1989 under the provisions of the Uttar Pradesh Regularization of Ad hoc Appointments (on posts within the purview of Public Service Commission) (Second Amendment) Rules, 1989. A final seniority list was thereafter prepared on 14 December 2001. The services rendered by such Assistant Engineers on ad hoc basis were not counted for seniority purpose and their seniority was determined from the date of their regularization on 14 December 1989. This seniority list was challenged in various writ petitions. In fact Narendra Kumar Tripathi, in the first petition filed by him even before the declaration of the final seniority list, had challenged the order rejecting his representation that he had filed for adding the ad hoc services rendered by him prior to 14 December 1989. The order of the State Government was set aside in this writ petition filed by Narendra Kumar Tripathi and a direction was issued to fix his seniority from the date of his initial appointment in the work-charge establishment of the Department on 18 January 1983. It may be stated that initially Narendra Kumar Tripathi was working in the Department on work-charge basis from 18 January 1983 before he was given ad hoc appointment on 12 June 1985. The seniority list dated 14 December 2001 was also challenged in various Writ Petitions. A Division Bench of this Court on 27 February 2004 in Ravi Arjun Das filed by ad hoc Assistant Engineers for counting the service rendered on ad hoc basis prior to regularisation in 1989 for the purposes of seniority was dismissed on 27 February. Thereafter, certain other Writ Petitions, including the second Writ Petition by Narendra Kumar Tripathi were filed and finding a conflict between the two Division Benches in Narendra Kumar Tripathi and Arjun Ravi Das, these 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 purposes of seniority. The Full Bench, thereafter decided the petitions on merit in view of the statement made by the learned counsel for the parties. The Full Bench found that all the petitioners had been initially appointed on ad hoc basis as Assistant Engineers in the year 1985 except Narendra Kumar Tripathi who had been initially engaged in the work-charge establishment in 1983 and was thereafter appointed on 12 June 1985 as an Assistant Engineer on ad hoc basis. The Full Bench noted that the services of all such ad hoc Assistant Engineers appointed in 1985 were subsequently regularized by the order dated 14 December 1989 and a final seniority list was prepared on 14 December 2001. This seniority list did not count the services rendered by the Assistant Engineers on ad hoc basis. The Full Bench dismissed all the petitions holding that the ad hoc services rendered prior to regularization could not be counted for the purposes of seniority. The seniority list was, therefore, not disturbed by the Full Bench.

The main contention of Sri T.P. Singh, learned Senior Counsel appearing for the petitioners was that the directions that were issued by the Supreme Court related to Narendra Kumar Tripathi and, therefore, his seniority was only required to be re-determined. There was, in such circumstances, no occasion for the State Government to re-determine the seniority of all the Assistant Engineers who had been working on ad hoc basis.

The contention of learned Standing Counsel appearing for the State and the learned Senior Counsel appearing for the private respondents is that the Supreme Court did not accept the stand of the State Government that the ad hoc services rendered prior to regularisation should not be counted for the purpose of seniority and a specific direction was issued that ad hoc services rendered from 1985 upto the date of regularisation should also be counted for the purpose of seniority. It was, therefore, contended that it was incumbent upon the State Government to have re-determined the seniority by giving the benefit to all the Assistant Engineers who had rendered such ad hoc services and not to Narendra Kumar Tripathi alone, more particularly when such a direction was subsequently issued by the Supreme Court in two Special Leave Petitions and one Writ Petition filed by other Assistant Engineers as also the directions issued by the High Court as well as the Tribunal subsequently to prepare a fresh seniority list in the light of the directions issued by the Supreme Court on 7 April 2015 in Secretary, Minor Irrigation Department.

It is not a case where there was a factual error committed by the Department while placing Narendra Kumar Tripathi in the seniority list. The principle that ad hoc services rendered prior to the regularisation should not be counted formed the basis on which the seniority list dated 14 December 2001 was prepared but this did not find favour of the Supreme Court and it was specifically held that ad hoc services rendered prior to the regularisation should be counted for the purpose of seniority. Narendra Kumar Tripathi was amongst the 108 Assistant Engineers who had been appointed on ad hoc basis in 1985. In fact, the appointment order dated 12 June 1985 related to a number of Assistant Engineers and Narendra Kumar Tripathi was placed at Serial No.32. Three other similar orders were issued in 1985 as a result of which 108 ad hoc appointments were made.