Hon'ble Kashi Nath Pandey, J.
1.We have heard Shri Vinay Kumar Srivastava, learned counsel for the petitioners. Shri Sandeep Kumar Srivastava appears for U.P. Power Corporation Limited.
2. The petitioners were serving as operating staff in technical grades under the Chief General Manager, Obra and Anpara Thermal Power Projects, District Sonebhadra and were in the employment of the U.P. State Electricity Board, which is now incorporated as U.P. Power Corporation Limited under the Electricity Reforms Act, 1999.
3. The U.P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations 1972 (in short the Regulations of 1972) provides for sources of recruitment classified in two categories in Regulation 5. Further Regulation 17 provides for procedure of promotion to the post of Junior Engineer from the personnel of operating staff.
4.A written examination was held on 27.10.1985 for promotion of the persons working in technical grades to the post of Junior Engineer (OG). All the persons appointed between 4.10.1970 to 7.4.1979, as Junior Electrician, Attendant Grade-I, Operator Grade-II, Electrician Grade-II, Operator Grade-I, Technician Grade-II, Attendant Grade-I and Fireman appeared in the written examinations and were declared successful amongst 234 candidates on 19.11.1985 and were called for interview. The interviews were held on 23.11.1985, 24.11.1985 and thereafter on 5.6.1986. A list of successful candidates was drawn under Regulation 13 (3) of the Regulations of 1972. All the petitioners were appointed as Junior Engineer (Ordinary Grade) on adhoc basis vide Office Memorandum dated 26.12.1986. The first list contained the names of 45 successful promotees and the second list contained 85 successfully promotees.
5. It is alleged that despite availability of substantive vacancies and the selections held under Regulations of 1972, the U.P. State Electricity Board (UPSEB) appointed the petitioners and other technical staff, who had been successful in the written examination and interviews on purely temporary and adhoc basis as Junior Engineer (Ordinary Grade) in the pay scale of Rs. 665-1130 plus other allowances. The General Manager, Opera Thermal & Hydel Projects, UPSEB by his order dated 26.12.1986 directed these appointments to be treated as purely temporary and adhoc in stop gap arrangement subject to conditions that on their regularisation the seniority shall be determined in accordance with the prescribed rules. The appointments were also made subject to orders of the High Court/Tribunal in various writ petitions pending in respective courts regarding promotion to the post of Junior Engineer (OG). The petitioners joined on the post of Junior Engineer (OG) in the last week of December, 1986.
6.The UPSEB recruited 118 trainee Junior Engineers on 9.3.1987. After completing of one year's training, they were appointed as Junior Engineer (Ordinary Grade) on 17.8.1988. By letter dated 27.6.1991 the Secretary of the UPSEB communicated to the General Managers of Obera and Anpara Thermal Power Projects that the Board had considered the question of regularisation and continuity of 130 Junior Engineers including the petitioners appointed on adhoc basis and allowed them continuity in service till 28.2.1992. The question of their regularisation was left open.
7.By Office Memorandums dated 18.12.1998 and 8.4.1997 all the Junior Engineers (Ordinary Grade) working on adhoc basis since 1986, were regularised w.e.f. 19.12.1997.
8.The petitioners through their association made a representation on 14.6.1999, to give them regularisation and seniority with effect from the date of their joining. A reminder was sent on 22.2.2000.
9. By an Office Memorandum dated 7.12.2000 a promotion list of Junior Engineers in Selection Grade (Electrical & Mechanical) was issued including the name of Junior Engineers, belonging to Scheduled Caste/Scheduled Tribe category of April 1988 batch. All these persons were junior to the petitioners. The petitioners filed a Writ Petition No. 2771 of 2001 claiming regularisation against substantive post from the date of their joining as Junior Engineer in 1986, and for setting aside the promotions for those Junior Engineers, who were promoted in subsequent years. By the order dated 22.1.2001 the High Court directed the petitioners to file representation before the Chairman-cum-Managing Director, U.P. Power Corporation Limited.
10. The representation was rejected on 04.1.2002. The only reason given in the order deciding the representation, was that the representation dated 16.4.2001 was considered in view of the then prevalent rules/orders and after consideration it was found that under the Regulations of 1972 applicable to the erstwhile Board applicable to the petitioners' services on the facts and evidence do not provide for any effective or forceful grounds for regularising them from the date of their adhoc appointment and to give them seniority.
11.By this writ petition the petitioners have prayed for directions to quash the Office Memorandums dated 18.12.1998 and 8.4.1999 issued by the Chief Engineer (Hydel), so far as it declares the cut of date of regulatisation of the petitioners as 19.12.1997, and for directions to the respondents to pass fresh orders of regularisation on the basis of their appointments in the year 1986, against the substantive posts. The petitioners have also prayed for restraining the respondents from implementing the list dated 22.5.2001, which shows number of Junior Engineers appointed after 1986 as Senior to the petitioners and to promote the petitioners from the post of Junior Engineer (OG) to the post of Assistant Engineer treating them to be regularised and made permanent w.e.f. 1986. The petitioners have also prayed for directions for sanction of selection grade and for designation as Junior Engineer (Selection Grade) when they completed 14 years' of service with effect from their date of joining as adhoc Junior Engineer in 1986.
12.The supplementary affidavit dated 25.3.2003 refers to Regulation 3 (10) of the Regulations of 1972. In paragraph-6 of the supplementary affidavit it is stated that after the UPSEB had conducted the test under Regulation 17, found them suitable and appointed them on promotion under Regulation 18, it matters little that they were designated as adhoc employees. There were substantive vacancies. The petitioners were selected, appointed and continued to discharge the work of permanent nature. They were never reverted back to their old posts and were allowed to continue. Their appointment was not made in any exceptional or pressing circumstances, and thus the denial to them of the period for which they worked upto 1997, and to regularise them on 19.12.1997, have violated their rights under Article 14 and 16 of Constitution of India.
13.It is stated in the supplementary affidavit, that even if the petitioners were appointed on adhoc basis, since they were appointed after facing selections in written test, and interviews, and they continued to serve, their regularisation could only be made with effect from the date of their appointment and not on any subsequent date making them juniors to the persons, who were appointed subsequent to them by way of direct recruitment.
14. In the counter affidavit of Shri Ram Autar Singh Kushwaha, Personal Assistant to the Executive Engineer in the office of Chief Engineer (Hydel), U.P.P.C.L, it is stated in paragraphs 9 and 10 as follows:-
"9.......
It is stated that Regulation-17 of SE and MES Regulation-1972 as amended from time to time provides for a quota of 31-1/3% for promotion to the posts of Junior Engineers from amongst the members of operating staff through departmental examination who fulfil qualifications prescribed in the Regulation. This departmental examination is conducted by Electricity Service Commission but it was observed that selection through Electricity Service Commission was time consuming as a result of which Junior Engineers could not be made available in time which obstructed operation of major power projects. Consequently, 130 numbers of the eligible incumbents of operating staff were promoted on ad-hoc basis as J.E and work of regular selection to the post of Junior Engineers was withdrawn from the ambit of Electricity Service Commission and unitwise selection committees were constituted to conduct interview and practical examination for selecting Junior Engineers under the provision of Regulation 17 as stated above. This examination was initially conducted in 1977-1979 and then again in the year 1985 in which the petitioners had also appeared. Since the selection process of 77-79 examination could not be finalised and Hon'ble High Court had restrained the Board from declaring result of the subsequent examination, the petitioners continued to work as ad-hoc Junior Engineers under the powers vested in the erstwhile Board in Regulation 31 of the aforesaid regulation, the Board in their XVIII (27)/1997 meeting held in December, 1997 resolved to regularise these 137 Junior Engineers on their consistent demand. The orders dated 19.12.97 were issued in pursuance of the Boards above resolution and had therefore the intent of regularisation 130 Junior Engineers which included petitioners also with immediate effect.
10. That the contents of paras 24, 25, 26 and 27 of the writ petition are misleading. It is also matter of record that the petitioners are availing time scale salary but they are not working as regular Junior Engineer Selection Grade. More so it is also clear that the promotion to the post of Junior Engineer Ordinary Grade or to the post of Assistant Engineer only depends on the seniority of the employee and not otherwise and thus it is apparently clear that the claim of the petitioner is wholly misconceived and incorrect. Moreso the grant of time scale is a matter, which depends on length of service of the employee but the promotion on the selection grade depends on seniority of the employee thus the claim of the petitioner based on the time scale is wholly misconceived. There is no right of the petitioners to claim such promotion and therefore, it is quite clear that there is no violation of the Regulations by the Power Corporation in the present case. It may also be noted here that the writ petition is wholly misconceived on the ground of not arraying the proper persons as a party if the claim of the petitioner is allowed then the large number of persons shall be adversely affected. In this case they should also be party. Thus it is apparently clear that the prayer of the petitioner is wholly misconceived on various grounds. Determination of seniority from the date of joining on adhoc basis on the post of Junior Engineer is not proper hence fixing of seniority w.e.f. 19.12.97 i.e. date of approval is in accordance with prevailing rules and regulation on the subject."
15. In the counter affidavit of Shri R.A.S. Kushwaha, E.E. &PA-VI to Chief Engineer (Hydel) U.P. Power Corporation Limited, Lucknow to the amendment application, it is stated in paragraphs 4 to 7 as follows:-
"4. That in reply to the contents of paragraph nos. 3, 4 and 5 of the amendment application it is submitted that the petitioners were appointed on ad-hoc basis and were regularized on the post of Junior Engineer (O.G) and their seniority was decided as per provisions laid down in S.E. and MES Regulation, 1972. It is further submitted that with regard to Office Memorandum No. 364 dated 17.6.2006 it is to say that seniority fixed of such kind of candidate placed at serial No. 54 to 166 was not correct and found that it is not in accordance with provisions regarding confirmation as laid down in Boards' Order No. 3392 NG (1)/SEB-77-IV-79NG/73, dated 31.12.1977. In this B.O. 3 years approved service in regular cadre is required for confirmation on a post where as candidates placed at Serial No. 54 to 166 was got confirmed wrongly on the post of Junior Engineer (OG) on the basis of their adhoc services. Therefore above referred O.M dated 17.6.2006 has been cancelled and the incumbent including petitioners were confirmed on the post Junior Engineer (OG) w.e.f. 01.04.2001 on the basis of three years approved service in regular cadre vide O.M. No. 903-Anu-Pratham/Sthaikaran/06 dated 06.12.2006.
5.That the contents of paragraph nos. 6 & 7 of the amendment application needs no comment at this stage. Proper reply will be made at the time of hearing.
6.That the contents of paragraph nos. 8 & 9 of the amendment application misleading and incorrect. It is further submitted that the petitioner were appointed on ad-hoc basis and were regularized only in the year 1997 on the post of Junior Engineer (OG) and thus petitioner were confirmed on the post of Junior Engineer (OG) w.e.f. 01.4.2001 on the basis of 3 years' approved service in regular cadre vide O.M. No. 903-Anu-Prathan/Sthaikaran/06 dated 06.12.2006.
7. That the contents of paragraph nos. 10 & 11 of the amendment application are misleading and incorrect. It is further submitted that from the perusal of Office Memorandum dated 31.12.1977 as well as Office Memorandum dated 06.12.2006, the plea taken by the petitioners are wholly misconceived and same may kindly be rejected. Since in Office Memorandum dated 31.12.1977 3 years' approved service in regular cadre is required for confirmation on a post where as candidates placed at Sl. No. 54 to 166 was got confirmed wrongly on the post of Junior Engineer (OG) on the basis of their adhoc services. Therefore above referred O.M. Dated 17.06.2006 has been cancelled and the incumbent including petitioners were confirmed on the post Junior Engineer (OG) w.e.f. 01.04.2001 on the basis of three years approved service in regular cadre vide O.M. No. 903-Anu-Pratham/Sthaikaran/06 dated 06.12.2006."
16.From the arguments addressed by learned counsels appearing for the parties, and the pleadings, we find that though the petitioners were appointed under the Regulations of 1972, after a written test and interviews in December 1986, the reason, for which they could not be appointed despite substantive vacancies on regular basis, has not been given either in the order deciding their representations, or in the counter affidavit. The Office Memorandum dated 4.1.2002 issued by the Chairman and Managing Director, UPSEB deciding the representation of the similarly situated petitioners claiming regularisation and seniority from the date of their adhoc appointments, does not give any reason at all. The Chairman and Managing Director has rejected the representation on the ground, that there is no effective or forceful ground to allow the representation. In the counter affidavit to the averments of the writ petition, and to the amendment application, the only reason given for appointing the petitioners on adhoc basis is that at the relevant time the UPSEB was of the opinion, that since the selection through the Electricity Service Commission through departmental examination was the time consuming process, and that there was need to appoint the eligible incumbents of the operating staff as Junior Engineers, the petitioners were appointed on adhoc basis, even after their selections by the department after written examination and interviews, in accordance with Regulation 17 of the Regulations of 1972.
17. On the material placed on record, we find that all the petitioners and other similarly situate persons, were eligible to be promoted as Junior Engineers, there were substantive vacancies and that the UPSEB was in need of the services of Junior Engineers. The departmental examination provided under the Regulations of 1972, were to be conducted by the Electricity Service Commission. Since the Electricity Service Commission was taking time to hold the selections, it was decided that 130 numbers of eligible incumbents on the vacancies in the quota of promotion for the post of Junior Engineer be promoted. By this time the examination conducted by the Electricity Service Commission in 1977-79, was challenged in the High Court. The Court had restrained the Board from declaring the result of the subsequent examinations namely the examinations held in the year 1985. In the circumstances, the work of regular selection to the post of Junior Engineer was withdrawn from the ambit of the Electricity Service Commission, and unit-wise Selection Committees were constituted to conduct interviews and practical examination for selecting Junior Engineers under Regulation 17 of the Regulations of 1972. Under these circumstances the petitioners were selected and continued to serve as Junior Engineers on adhoc basis.
18. The UPSEB in exercise of its powers under Regulation 31 of the Regulations of 1972 in its 18th meeting held in 1997 resolved to regularise the services of these 130 Junior Engineers and consequently the orders dated 19.12.1997 was issued. The petitioners were subsequently confirmed w.e.f. 1.4.2001 after completing three years service.
19. In Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715, the Supreme Court held:-
"47. To sum up, we hold that:-
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
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 stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(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."
20. The judgment in Direct Recruits case (supra), has been followed in State of W.B. v. Aghore Nath Dey (1993) 3 SCC 371, as follows:-
"24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
25.In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, `if the initial appointment is not made by following the procedure laid down by the `rules' and the latter expression `till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)"
21. In Narendra Chadha v. Union of India (1986) 2 SCC 157 benefit of seniority was given to all those who were working on the posts for more than 15 to 20 years.
22.In Rudra Kumar Sain and others vs. Union of India(2000) 8 SCC 25 the Supreme Court, in almost a similar situation dealing with the claim of the adhoc Additional District and Sessions Judges vis-a-vis their seniority amongst direct recruitment and promotees, held that in service jurisprudence a person, who possesses the requisite qualification for being appointed to a particular post and he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". The word 'adhoc' is described as "for particular purpose, made, established, acting or concerned with a particular and or purpose" vide P. Ramanatha Aiyer's Law Lexicon (2nd Edition). The meaning of word 'fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist'. Following O.P. Singla & another etc. v. Union of India & others 1985 (1) SCR 351 the High Court had taken a decision that adhoc services could not be taken into consideration as continuous service for promotion. It was held by the Supreme Court that the High Court of Delhi committed an error in allocating seniority on the basis of length of continuous officiation by excluding the persons on the ground that they had held posts on adhoc basis or for fortuitous reasons or by way of stop-gap arrangement. In substance the Supreme Court held that an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and appointees possess the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be fortuitous. While quashing the seniority list the Supreme Court directed the High Court to draw the seniority list afresh prior to the amendment of the Recruitment Rules in the year 1987 and to re-determine the seniority on the basis of continuous length of service in the cadre.
23. In Raj Kishore Vishwakarma v. Union of India (1997) 11 SCC 619 the Supreme Court held:-
"4. Mr. Vikram Mahajan, learned counsel appearing for the Railways, has very fairly stated that the appellants were appointed in relaxation of the Rules in exercise of the powers under Rule 113. He has taken us through the counter filed before the Tribunal and also before this Court wherein it is clearly stated that the appellants were appointed in relaxation of the Rules. We are of the view that the appellants having been appointed in relaxation of the Rules their appointments have to be treated under the Rules. When the appellants were appointed under the Rules even the ad hoc period, which is continuous, has to be taken into consideration for the purpose of fixation of seniority in the cadre of Typists."
24. In Union of India vs. Dharam Pal and others (2009) 4 SCC 170, the same principle was reiterated, that an employee appointed to a post according to rules will be entitled to seniority reckoned from the date of his appointment and not from the date of his confirmation.
25.In the absence of any rules or regulations to the contrary, in the present case we find that there were substantive vacancies available in the quota of 31.5% for promotion to the post of Junior Engineers from amongst the persons of the operating staff to be filled up through departmental examination from amongst those, who fulfills qualifications prescribed in the regulation. The examinations were to be conducted by the Electricity Service Commission. In the circumstances, prevailing at that time since the selection process of 1977-79 could not be finalised, and the High Court had restrained the Board from declaring the result of the examination of the year 1985, the UPSEB in exercise of its powers under Regulations of 1972 withdrew the work of regular selections to the post of Junior Engineer from the ambit of the Electricity Service Commission and constituted unit-wise selection committees. The petitioners were eligible and were selected for promotion through the written examination and interviews. They were, however, posted on adhoc basis and were allowed to continue without being reverted.
26. In the counter affidavit, nothing has been brought to our notice that the work and conduct of the petitioners was not satisfactory, and thus the petitioners though regularized in the year 1997 could not have been deprived of their continuous length of service for the purpose of determining seniority. They were eligible and were selected for promotion by the UPSEB. They were not at fault at any stage either for the delay caused by the Electricity Service Commission, or the interim orders of the High Court staying the declaration of the results of the examinations held by the Electricity Service Commission in the year 1985. They discharged their duties on the regular posts and thus a decision of their regularisation w.e.f. 19.12.1997 was arbitrary and highly discriminatory. The respondents erred in law in violating the petitioners' rights under Articles 14 and 16 of the Constitution of India in failing to give them regularisation with effect from the date they were appointed in the year 1986.
27. The writ petition is allowed. The respondents are directed to give to the petitioners seniority as Junior Engineer with effect from the date of their appointment in December 1986 on adhoc basis and to give them all consequential reliefs calculating seniority and promotion. Those, who have retired, will be given notional seniority. For others, who may be on the verge of retirement, the consequential orders will be passed within a period of three months.
Dt.16.12.2011 RKP/