Ad-Hoc Service Can't Be Ignored For Promotion If Appointment Was Not Illegal: Allahabad High Court

The Allahabad High Court has held that ad-hoc service of an employee cannot be ignored by the government for promotion if appointment was not illegal. It also held that promotion must be awarded to an employee, whose claim was illegally ignored, from the date on which his juniors were given promotion.

Holding that an ad-hoc appointment made pursuant to the rules can at best be irregular and not illegal, the bench of Justice Shekhar B. Saraf and Justice Manjive Shukla has held,

“….if claim of an employee has been illegally ignored and juniors have been promoted, the said employee is bound to be promoted from the date his juniors were given such promotion…”

In 1986, Respondent-petitioners were appointed on ad-hoc basis pursuant to an advertisement in the newspaper and the appointments were approved by the Governor. The appointments were not made in consultation with U.P. Public Service Commission, as was required under the relevant rules for making regular appointment on the post of Junior Engineer. Petitioners were regularized in 2002 and 1997.

One Siraj Ahmad challenged denial of his promotion, and was granted promotion from the date of his original ad-hoc appointment by the Supreme Court. This case was relied on by the petitioners claiming parity with Siraj Ahmad. However, their claim for promotion and seniority was denied by the State Government. They approached the writ court which allowed their claims. Subsequently, State Government challenged the order of the Single Judge in special appeal.

In special appeal, the Court relied on Siraj Ahmad Vs. State of U.P. & Others, where the Supreme Court held that,

“It can thus be seen that this Court has held that the distinction between irregular appointment and illegal appointment is clear. It has been held that in the event appointment is made in total disregard to the constitutional scheme and the recruitment rules framed by the employer, where the employer is "State" within the meaning of Article 12 of the Constitution of India, d the recruitment will be illegal one. It has, however, been held that where although, substantial compliance with the constitutional scheme, as also the Rules have been made, the appointment would become irregular inasmuch as some provisions of some rules have been adhered to.”

The Apex Court further held that,

“The only ground on which the High Court has refused to consider the case of the appellant is that in Rajendra Prasad Dwivedi, the Court had not considered the issue with regard to non- concurrence of the UP Public g Service Commission. At the cost of repetition as discussed hereinabove, the appointment of the appellant at the most can be considered as irregular and

not illegal.”

Noting that the petitioners were also appointed through advertisement on ad-hoc posts, the Court held that there was parity in claims of Siraj Ahmad and the petitioners.

“The Hon'ble Supreme Court on identical facts in the case of Siraj Ahmad (supra) had given its verdict that Mr. Siraj Ahmad must be considered for promotion from the post of Junior Engineer to the post of Assistant Engineer w.e.f. 18.01.1995 i.e. the date prior to date of his regularization of services on the post of Junior Engineer. The law laid down by the Hon'ble Supreme Court in the case of Siraj Ahmad (supra) is binding on us, therefore, there is no occasion for this Court to reconsider those issues which had already been considered in its threadbare and had been decided by the Hon'ble Supreme Court.”

Accordingly, the appeal by the State was dismissed,

Case Title: State of U.P. Thru.Prin./Addl.Chief Secy.Deptt.Housing and Urban Planning Govt. U.P. Lko.and Anr Versus Anil Kumar

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