Ad-Hoc Appointments Are Not Contractual: SC Relief To Ad-Hoc Judges Who Were Denied Retiral Benefits [Read Judgment]
‘Although temporary, ad-hoc and contractual appointments are used in contradiction to a regular and permanent appointment but between ad-hoc appointment and contract appointment, distinction is there in service jurisprudence and both the expressions cannot be interchangeably used.’
In a relief to ad-hoc judges who were battling with the Madras High court claiming retiral benefits, the Supreme Court has held that they are entitled to it and directed it to be computed and paid to them within a period of two months.
The bench of Justice AK Sikri and Justice Ashok Bhushan also observed that mere fact that the advertisement as well as the appointment was made initially for a period of five years, the nature of appointment of cannot be termed as contractual appointment.
K. Anbazhagan, G. Savithri, R. Radha, A.S. Hassina and PG Rajagopal were appointed as Fast Track in the State of Tamil Nadu. Their initial ad hoc appointment was for five years, which was extended and they were subsequently relieved from their assignments in the year 2011/2012. Their writ petitions challenging the relieving order was dismissed. They later filed writ petitions claiming retiral benefits including pension, gratuity, and leave encashment, which was dismissed by the High Court on the following grounds
- The Fast Track Courts created under Eleventh Finance Commission cannot be said to have been created in a 'pensionable establishment'.
- Rule 11 of 1978 Rules, which provides for commencement of qualifying service does not cover appointment on contractual basis. The appointments of appellants were appointments on contract basis, hence they are not covered by Rule 11 of 1978 Rules.
- Division Bench of High court in its judgment dated 20.07.2012 rendered in Writ Petition No.13703¬13705 of 2012 treated the appointment of appellants as contractual appointment.
The bench in an elaborate discussion on the basis of materials on record, and also disagreeing with reasons cited by the High court observed that their appointment was in pensionable department.
Ad-Hoc Isn’t Contractual
The bench also observed: “In service jurisprudence, the appointments are made by employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against permanent post or temporary post. The appointment can also be made on ad¬hoc basis on permanent or temporary post. There is one common feature of appointments of permanent, temporary or ad¬hoc appointment i.e. those appointments are made against the post whether permanent or temporary. On the contrary, for contractual appointment, there is no requirement of existence of any post. A contractual appointment is not normally made against a post. Further, contractual appointments are also not normally on Pay Scale. On the mere fact that the advertisement as well as the appointment was made initially for a period of five years, the nature of appointment of the appellants cannot be termed as contractual appointment. When a Government servant is contemplated to hold a certain post for a limited period it is a Tenure Post.”
The bench further observed: “The fact that the advertisement limited the appointment for a period of five years only because the posts were contemplated for five years only, the appointment of the appellants at best can be said as “Tenure appointment”. Although temporary, ad¬hoc and contractual appointments are used in contradiction to a regular and permanent appointment but between ad¬hoc appointment and contract appointment, distinction is there in service jurisprudence and both the expressions cannot be interchangeably used. When the advertisement against which the appellants were appointed and the appointment order mentions the appointment as ad¬hoc appointment, we cannot approve the view of the High Court that the nature of the appointment of the appellants was only a contractual appointment.”
The bench issued these directives:
- The judgment of the High Court dated 01.04.2015 is set aside and the Civil Appeals filed by the appellants are allowed.
- The respondents are directed to sanction superannuation pension to appellants K. Anbazhagan and P.G. Rajagopal in accordance with 1978 Rules
- The respondents are directed to sanction compensation pension to the appellants, namely, Selvi G. Savithri, R. Radha and A.S. Hassina.
- All the appellants are entitled for payment of gratuity in accordance with 1978 Rules
- The respondents are also directed to permit encashment of earned leave to the credit of the appellants subject to a maximum of 240 days.
- All above retiral benefits be computed and paid to the appellants within a period of two months from today. In the event payments are made after two months, the appellants shall be entitled for such payments alongwith the simple interest @ 7% per annum.
Read Judgment here