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CASE NO.: Appeal (civil)  1256 of 2008

PETITIONER: Z. AJEESUDEEN

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT: 12/02/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT

O R D E R CIVIL APPEAL NO. 1256 OF 2008 [Arising out of SLP(C) No.22049/2005]

       Leave granted.  

       Heard learned counsel for the parties.

       By an order dated 30/9/1993, the appellant was appointed as Assistant Engineer  purely on adhoc basis and as a stopgap arrangement w.e.f. 1/10/1993.  Subsequently, his  service was regularised w.e.f. 21/6/1997.  His grievance is that his seniority as Assistant  Engineer was not counted w.e.f. 1/10/1993.  In other words, he prayed that his seniority  as Assistant Engineer should be counted from 1/10/1993, the date from which he was  appointed on adhoc basis.  In this connection, learned counsel for the appellant referred  to a decision of this Court rendered in T. Vijayan & Ors. Vs. Divisional Railway  Manager & Ors., (2000) 4 SCC 20.   While referring to an earlier judgment of this Court  rendered in Direct Recruit Class II Engineering Officers Association Vs. State of  Maharashtra & Ors., (1990) 2 SCC 715, it was held  ........2.

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that once an incumbent is appointed to a post according to the relevant rule, his seniority  has to be counted from the date of his appointment and not according to the date of his  regularisation. This Court further pointed out that 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  stopgap arrangement, the officiation in such post cannot be taken into account for  considering the seniority.

       Learned counsel for the appellant strongly relied on the direction (B) which reads a s  under:-         (B)  If the initial appointment is not made by  following the procedure laid down by the rules but the  appointee continues in the post uninterruptedly till the  regularisation of his service in accordance with the rules, the  period of officiating service will be counted."

We regret, we cannot agree with the learned counsel.  The decision in T. Vijayan’s case  (supra) was by a two-Judge Bench of this Court, but a somewhat different view has been  taken in a three-Judge Bench decision of this Court in M.K. Shanmugam Vs. Union of  India, (2004) 4 SCC 476 in para 8 of which it was observed -- "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  .....3.

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been done in the case of regular appointment and that the same was not a stopgap  arrangement."  Thus, all adhoc service prior to regular appointment cannot be counted  for seniority, etc.  It counts only where the initial adhoc appointment is made by the  same process as is applicable to regular appointment.  

       In the case at hand, the initial appointment of the appellant is, as already noted,  purely on adhoc basis and that too not in accordance with the rules for regular  appointment.  The consistent view taken by this Court is that even if an appointment is  made on adhoc basis by following procedure according to the rules for regular selection,  the   period   of   such  adhoc  appointment could be counted.  However, if the adhoc  appointment, as in the case at hand, is made purely on adhoc basis without following the  procedure prescribed under the rules for regular appointment such period spent as  adhoc appointee cannot be counted.  This is the law settled by M.K. Shanmugam’s case  (supra).

       Learned counsel for the appellant submitted that there is a rule for adhoc  appointment, and the appellant was appointed under that rule. Hence, he submitted that  his adhoc service be counted.  We regret we cannot agree.  In our opinion, for adhoc  service to be counted it is not enough that there is a rule  permitting  adhoc    appointment.   It is also  ......4.

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necessary that the appointment was made after following the procedure prescribed for  making a regular appointment.  Only then will the adhoc service be counted, otherwise it  will not.

       In view thereof, there is no merit in this appeal.  It is, accordingly, dismissed.