M.R.SHAH, J. - (1.) As common question of law and facts arise in this group of appeals, all these appeals are decided and disposed of together by this common judgment and order. 1.1 Civil Appeal Nos. 10788 of 2016 and Civil Appeal No. 2898 of 2021 are with respect to the State of Uttar Pradesh and the rest of the civil appeals are with respect to the State of Uttarakhand. It is to be noted that the relevant rules applicable to the employees of the State of Uttarakhand are as such para materia to the relevant rules applicable to the employees of the State of Uttar Pradesh. 1.2 The dispute in all these appeals relates to determination of the seniority of Assistant Engineers working in the Rural Engineering Department and the common question involved in the present group of appeals is, whether the services rendered as ad hoc prior to their regularisation shall be counted for the purpose of seniority etc. or only from the date of their regularisation, regularising their services as per the relevant regularisation rules? 1.3 At the outset, it is required to be noted that as such the High Courts have heavily relied upon the decision of this Court in the case of Secretary, Minor Irrigation Department v. Narendra Kumar Tripathi, reported in (2015) 11 SCC 80 and have held that services rendered by the respective Assistant Engineers as ad hoc shall also be counted for the purpose of seniority, meaning thereby their seniority should be considered from the date of their initial appointment as ad hoc. The decision of this Court in the case of Narendra Kumar Tripathi (supra) shall be dealt with hereinbelow. Factual Matrix:
(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. 2.2 One Narendra Kumar Tripathi filed the petition even before the declaration of the final seniority list challenging the order rejecting his representation and according to him services rendered by him as ad hoc prior to 14.12.1989 shall also be counted for the purpose of seniority. The final seniority list dated 14.12.2001 was also challenged in various writ petitions. Writ Petition filed by Narendra Kumar Tripathi (first case) came to be allowed by the High Court 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 18.01.1983. At this stage, it is required to be noted that initially Narendra Kumar Tripathi was working in the department on work charge basis from 18.01.1983 before he was given an ad hoc appointment on 12.06.1985. As observed hereinabove, various other writ petitions were also filed challenging the final seniority list dated 14.12.2001. 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 writpetitions 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. 2.4 Thereafter, Narendra Kumar Tripathi filed a Special Leave Petition before this Court against the judgment rendered by the Full Bench on 10.12.2004. The Secretary, Minor Irrigation Department also filed a Special Leave Petition against the judgment rendered on 13.02.2003 in Narendra Kumar Tripathi (first case), taking the view that his seniority shall be counted from the date of his initial appointment in the Work Charge Establishment of department on 18.01.1983. The Special Leave Petitions were subsequently re-numbered as Civil Appeal Nos. 3348/2015 and 3349/2015 respectively. Before this Court, a submission was made on behalf of Narendra Kumar Tripathi that his seniority may be counted from 12.06.1985 and not from 18.01.1983 when he was appointed on work charge basis. 2.5 By judgment and order dated 7.4.2015, a two Judge Bench of this Court allowed the appeal preferred by Narendra Kumar Tripathi (supra) and set aside the judgment and order passed by the Full Bench of the High Court and held that services rendered by Assistant Engineers as ad hoc shall be counted for the purpose of seniority and their seniority should be counted from the date of their initial appointment and not from the date of regularisation of their services, as per the 1979 Rules/1989 Rules. This Court directed the State to redetermine the seniority after hearing the affected parties within six months. At this stage, it is required to be noted that this Court also made it clear that benefit of re-determination of seniority at this stage will not disturb holding of posts by any incumbent and except for the benefit in pension other benefits to which the writ petitioner may be found entitled will be given only on notional basis (paragraph 17 of the said judgment). 2.6 That thereafter, pursuant to the directions issued by this Court in the case of Narendra Kumar Tripathi (supra), the State Government issued an office order dated 31.12.2015 notifying the tentative seniority list and requiring all concerned to file objections, if any, within 15 days. That thereafter, after considering the objections filed, a final seniority list was published on 22.03.2016. The writ petitioners before the High Court were the candidates, who were at serial nos. 106, 109, 107, 122 and 108 in the seniority list dated 14.12.2001 and who were downgraded and placed at serial nos. 260, 208, 261, 274 and 262 in the seniority list dated 22.03.2016. Therefore, the appellants herein - original writ petitioners filed writ petition before the High Court praying for setting aside the seniority list dated 22.03.2016 and for reviving the earlier seniority list dated 14.12.2001. Mainly relying upon and following the decision of this Court in the case of Narendra Kumar Tripathi (supra), by the impugned judgment and order, the High Court has dismissed the writ petition, which has given rise to Civil Appeal No. 10788 of 2016. A similar view has been taken by the High Court of Judicature at Allahabad in the case of Brijesh Kumar Dubey, appellant in Civil Appeal No. 2898/2021 and by the High Court of Uttarakhand in the cases of Navin @ Naveen Chandra, Rakesh Kumar Tilara and others and Ramji Lal and others, appellant and respondents in Civil Appeal Nos. 4427, 4428 and 4429 of 2021 respectively. 2.7 Therefore, the short question which is posed for the consideration of this Court is, whether the services rendered by the Assistant Engineers as ad hoc should be counted for the purpose of seniority or their seniority shall be counted from the date of their regularisation. In other words, the question posed for the consideration is, whether their services shall be counted from the date of their initial appointments as ad hoc and the service rendered as ad hoc prior to regularisation is to be counted for the purpose of seniority or not? Submissions/Arguments:
(3.) S/Shri Anil Kumar Sangal and Rishabh Sancheti, learned Advocates have appeared on behalf of the respective appellants -original writ petitioners. Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocates have appeared on behalf of the State of Uttarakhand. Shri Tanmaya Agarwal, learned Advocate has appeared on behalf of the State of Uttar Pradesh and Shri Manoj Swarup, learned Senior Advocate, along with other learned Advocates, have appeared on behalf of the contesting respondents. 3.1 Learned counsel appearing on behalf of the respective appellants - original writ petitioners have vehemently submitted that the respective High Courts have clearly erred in relying upon and following the decision of this Court in the case of Narendra Kumar Tripathi (supra). 3.2 Shri Anil Kumar Sangal, learned Advocate appearing on behalf of the appellants - original writ petitioners has made the following submissions: i) that the decision of this Court in the case of Narendra Kumar Tripathi (supra), which has been relied upon and followed by the respective High Courts is a decision per incuriam; ii) that in the case of Narendra Kumar Tripathi (supra), a two Judge Bench of this Court did not consider the earlier binding decisions of this Court, taking he view that seniority of ad hoc appointees is to be reckoned from the date of their substantive appointments and that ad hoc services cannot be counted for the purpose of seniority; iii) that the binding decisions of this Court in the case of Santosh Kumar and others v. G.R. Chawla and others, reported in (2003) 10 SCC 513 and another decision of this Court in the case of State of Uttarakhand v. Archana Shukla, reported in (2011) 15 SCC 194, interpreting the very 1979 Rules and taking the view that the services rendered as ad hoc and prior to their regularisation as per the 1979 Rules shall not be counted for the purpose of seniority were not brought to the notice of this Court; iv) that in the case of Narendra Kumar Tripathi (supra), this Court did not even take into consideration the entire/whole Rule 7 of the 1979 Rules. It is submitted that as per Rule 7 of the 1979 Rules, which were subsequently extended in 1989, under which the contesting respondents came to be regularised specifically mentions that "a person appointed under the 1979 Rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with the said rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such persons". It is submitted that this Court in Narendra Kumar Tripathi (supra) considered Rule 7 only up to the wording, "date of order of appointment", however, did not consider the entire Rule 7 which specifically provides that a person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules. It is submitted that if the aforesaid entire/whole rule 7 would have been considered, in that case, the result would have been different; v) that in any case a binding decision of this Court in the case of Santosh Kumar and others (supra), interpreting the very 1979 Rules and taking the view that seniority of ad hoc appointees is to be reckoned from the date of their substantive appointments and that ad hoc appointments cannot be deemed to be "substantive appointments" and that such appointees are to be placed below the direct recruits appointed prior to their regularisation was not brought to the notice of this Court in the case of Narendra Kumar Tripathi (supra) and therefore the decision in the said case is a decision per incuriam. It is submitted that in the case of Santosh Kumar and others (supra), this Court also considered the Constitution Bench decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, reported in (1990) 2 SCC 715, which came to be considered by this Court in the case of Narendra Kumar Tripathi (supra), while taking a contrary view than the view taken in the case of Santosh Kumar and others (supra); vi) that in many earlier decisions, this Court including the three Judge Benches have consistently taken the view that period of ad hoc service cannot be reckoned for the purposes of seniority, where initial appointment is only ad hoc and not according to the rules. Reliance is placed upon the decisions of this Court in the cases of Debabrata Dash v. Jatindra Pradsad Das, reported in (2013) 3 SCC 658 (three Judge Bench); P.P.C. Rawani (Dr.) and others v. Union of India, reported in (2008) 15 SCC 332 (three Judge Bench); R.K. Mobisana Singh v. Kh. Temba Singh, reported in (2008) 1 SCC 747; Santosh Kumar and others (supra); Union of India v. Satish Chandra Mathur, reported in (2001) 10 SCC 185; Keshav Chandra Joshi v. Union of India, reported in 1992 Supp. (1) SCC 272 (three Judge Bench); and P.D. Aggarwal v. State of U.P., reported in (1987) 3 SCC 622. It is submitted that none of the aforesaid decisions have been considered by this Court in the case of Narendra Kumar Tripathi (supra) and therefore also the decision in the said case is per incuriam; vii) that even otherwise and in the facts and circumstances of the case, the services rendered as ad hoc and prior to regularisation are not required to be counted for the purpose of seniority. It is submitted that the private contesting respondents herein were appointed as Assistant Engineers in the year 1985 on ad hoc basis vide office memo dated 12.06.1985 on the basis of recommendations of the Selection Committee constituted for ad hoc appointments; that they were appointed on ad hoc basis on the temporary posts of Assistant Engineers in Rural Engineering Service Department; that in the appointment order itself it was specifically mentioned that the candidates will have no right to claim seniority in future on the basis of the date of this order of appointment (paragraph 2 of the office memo). It is submitted that thereafter their services came to be regularised as per the 1979 Rules/1989 Rules, vide notification/appointment order dated 23.02.1989. It is submitted that even in the said notification/appointment order, it was specifically observed that in Rural Engineering Service, the service rule of the Assistant Engineer has not been framed till date and therefore the continuation shall be made under the General Rules framed by the Personal Department and in the cadre of Assistant Engineer Civil, the seniority along with the other officers shall be fixed later on. It is submitted that the relevant 1979 Rules/1989 Rules under which their services were regularised specifically provided that a person appointed under the 1979 Rules shall be entitled to seniority from the date of order of appointment after selection in accordance with these rules, i.e., the 1979 Rules. It is submitted that as per the 1979 Rules/1989 Rules, the services of the ad hoc appointees were required to be regularised after following due procedure as per the 1979 Rules and only after the Selection Committee considers the cases of ad hoc appointees. It is submitted that only thereafter and after their names are cleared by the Selection Committee constituted specifically under the 1979 Rules, "Substantive Appointments" are made; viii) that thereafter the State Government framed the U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as the '1991 Rules') and as per the said rules, the seniority shall be determined from the date of their "substantive appointments". It is submitted that the "substantive appointments" has been defined under the 1991 Rules and means, an appointment not being an ad hoc appointment on a post in the cadre of service made after selection in accordance with the service rules relating to that service. It is submitted that thereafter the State Government framed the Uttar Pradesh Rural Engineering (Group 'B') Service Rules, 1993 (hereinafter referred to as the '1993 Rules'), which govern the appellants -Assistant Engineers in Rural Engineering. The 1993 Rules which include the Assistant Engineers and even as per the said rules "substantive appointments" means an appointment not being an ad hoc appointment, on a post in the cadre of service made after selection in accordance with the rules and if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the government. It is submitted that as per the said 1993 Rules, "member of service" means a person substantively appointed under the said rules or the orders prior to the commencement of the said rules to a post in the cadre of service. It is submitted that as per the 1993 Rules, as per clause 21, the seniority of the persons substantively appointed in the posts shall be determined in accordance with the 1991 Rules, as amended from time to time; ix) that on a conjoint reading of the aforesaid rules, it can be seen that services rendered as ad hoc cannot be considered as "substantive appointments" and on regularisation of their services under the 1979 Rules/1989 Rules after they were selected by the Selection Committee under the 1979 Rules, their appointment can be said to be "substantive appointments" and therefore their seniority is to be counted only from the date of their substantive appointments, i.e., regularisation under the 1979 Rules/1989 Rules. It is submitted that even the Seniority Rules, 1991, Service Rules, 1993 were also not placed before this Court for consideration when this Court decided Narendra Kumar Tripathi (supra). It is submitted that even the appellants - original writ petitioners were not before this Court and/or were not heard when this Court decided Narendra Kumar Tripathi (supra); x) that even as observed in paragraph 17 of the judgment in the case of Narendra Kumar Tripathi (supra), the benefit of re-determination of the seniority will not disturb holding of the posts by any incumbent. It is submitted that by re-determination of the seniority as per Narendra Kumar Tripathi (supra), the appellants herein - original writ petitioners are pushed below in the seniority list from serial nos. 106, 109, 107, 122& 108 to serial nos. 260, 208, 261, 274 and 262. It is submitted therefore also the subsequent re-determination of the seniority list in the year 2016 which was under challenge before the High Court is contrary to the observations made by this Court in paragraph 17 in Narendra Kumar Tripathi (supra); xi) Making the above submissions, it is prayed to hold that in the facts and circumstances of the case and considering the relevant rules the seniority of ad hoc appointees as Assistant Engineers shall be counted only from the date of their regularisation of service as per the 1979 Rules/1989 Rules and their initial service prior to their regularisation is not to be counted for the purpose of seniority, by holding that only on regularisation of their services as per the 1979 Rules/1989 Rules, they can be said to have been appointed on "substantive posts". 3.3 Dr. Rajiv Nanda and Ms. Vanshaja Shukla, learned Advocates appearing on behalf of the State of Uttarakhand have fully supported the appellants - original writ petitioners and have submitted that considering the applicable relevant rules and more particularly when the ad hoc appointees' services were regularised as per the 1979 Rules/1989 Rules, which specifically provide that the services rendered as ad hoc shall not been counted for the purpose of seniority and the earlier binding decisions of this Court interpreting the very Rules 1979 were not brought to the notice of this Court when this Court decided Narendra Kumar Tripathi (supra)., it is submitted that the services of the ad hoc Assistant Engineers are to be counted for the purpose of their seniority only from the date of their regularisation in the year 1989 and not from the date of their initial appointment in the year 1985. 3.4 Shri Tanmaya Agarwal, learned Advocate appearing on behalf of the State of Uttar Pradesh has, as such, not taken any specific stand and has submitted that ultimately it is left to the Court. However, has submitted that the State of Uttar Pradesh has redetermined the seniority in the year 2016 as per the directions issued by this Court in the case of Narendra Kumar Tripathi (supra).;