Madhya Pradesh High Court
Ranjan Shrivastava vs The State Of Madhya Pradesh on 1 August, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 1 st OF AUGUST, 2023
WRIT PETITION No. 18563 of 2023
BETWEEN:-
1. RANJAN SHRIVASTAVA S/O LATE MAKHAN LAL
SHRIVASTAVA, AGED ABOUT 63 YEARS,
OCCUPATION: RETIRED ASSISTANT TEACHER
R/O WARD NO 8, OPPOSITE OF DR. SHISHIR
KHARE KI COLONY, LOHAR, GALI, BALAGHAT
(MADHYA PRADESH)
2. VIPIN LAL THAKRE S/O LATE PUNAJI, AGED
ABOUT 65 YEARS, OCCUPATION: RETIRED
ASSISTANT TEACHER VILLAGE HIRWA TOLA PO
NAGER DISTRICT BALAGHAT (MADHYA
PRADESH)
3. PREMTAM LAL RANA S/O LATE SUKHRAM, AGED
ABOUT 63 YEARS, OCCUPATION: RETIRED
ASSISTANT TEACHER R/O VILLAGE PO DEORI
(HATTA) DISTRICT BALAGHAT (MADHYA
PRADESH)
4. MADAN SINGH THAKUR S/O SHRI BANAJI
OCCUPATION: RETIRED ASSISTANT TEACHER
R/O VILLAGE CHIKLI POST OFFICE CHIKLI PO
KHAMI UGLY TEHSIL KHAIRLANJI DISTRICT
SEONI (MADHYA PRADESH)
5. MAHESH KUMAR MALYA S/O SHRI RAMU LAL
MALYA, AGED ABOUT 63 YEARS, OCCUPATION:
RETIRED ASSISTANT TEACHER R/O WARD NO 19
VILLAGE MARJHARE SEONI DISTRICT SEONI
(MADHYA PRADESH)
6. MAHENDRA SINGH TEMBHRE S/O LATE DHANNA
LAL TEMBHRE, AGED ABOUT 66 YEARS,
OCCUPATION: TEACHER RETIRED ASSISTANT
R/O VILLAGE UGLI TEHSIL KEOLARI DISTRICT
SEONI (MADHYA PRADESH)
.....PETITIONER
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
2
(BY SHRI ANIRUDDHA PRASAD PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY EDUCATION
DEPARTMENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. DISTRICT EDUCATION OFFICER BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
3. DISTRICT EDUCATION OFFICER SEONI DISTRICT
SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI G.P. SINGH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed
seeking the following prayers :-
1. Issue a writ in the nature of mandamus directing the
respondents to count his service rendered by the
petitioner as adhoc teacher for the purpose of
pensionary/ qualifying services benefits for all-
consequential benefit with interest in the interest of
justice.
2. Issue a writ directing the respondents to revised his
pension from time to time as per rules and provide
entire service benefits to the petitioner, including the
areas with interest from the date of his initial
appointment up to till the dated of payment.
3. Any order relief/ order direction may also be issued
including cost of petition.
It is submitted by counsel for the petitioners that they were appointed as
adhoc teachers and after attaining the age of superannuation they have stood
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retired but their services rendered by them as adhoc teachers are not being
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
counted for pensionary services.
Learned counsel for the petitioner has also relied upon Rule 15-A of
Madhya Pradesh Civil Services Pensionary rules, 1976 to contend that the
petitioner are entitled for counting of their service as adhoc employees for
pensionary services.
Heard learned counsel for the petitioner.
Rule 15-A of Civil Services Pension rules, 1976 reads as under :-
"15-A. Ad Hoc service count.-
१५ ए.- तदथ सेवा क गणना तदथ सेवा अहकारी होगी, यिद-
(क) तदथ िनयुि िनयिमत पद के िव थी तथा िनयुि िबना सेवा म यवधान
िनयिमत क गई है, अथवा
(ख) उ च पद पर तदथ िनयुि थायी, थानाप अथवा अ थायी है सयत मै
धा रत िन न पद से पदो ित होने पर क गई थी."
Thus it is clear that services rendered by an employee as an adhoc
employee shall be counted for pensionary services only if the adhoc
appointments were made against sanctioned/regular post. The petition is
completely silent as to whether the initial appointment of the petitioner was
against the sanctioned/regular post or not ?
The Supreme Court in the case of Malook Singh vs. State of Punjab
decided on 28.09.2021 in Civil Appeal No.6026-6028/2021, has held as
under:-
"20. The law on the issue of whether the period of ad hoc
service can be counted for the purpose of determining
seniority has been settled by this Court in multiple cases.
In Direct Recruits (supra), a Constitution Bench of this
Court has observed:
"13. When the cases were taken up for hearing before
us, it was faintly suggested that the principle laid
down in Patwardhan case [(1977) 3 SCC 399: 1977
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SCC (L&S) 391: (1977) 3 SCR 775] was unsound and
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
fit to be overruled, but no attempt was made to
substantiate the plea. We were taken through the
judgment by the learned counsel for the parties more
than once and we are in complete agreement with the
ratio decidendi, that the period of continuous
officiation by a government servant, after his
appointment by following the rules applicable for
substantive appointments, has to be taken into
account for determining his seniority; and seniority
cannot be determined on the sole test of confirmation,
for, as was pointed out, confirmation is one of the
inglorious uncertainties of government service
depending neither on efficiency of the incumbent nor
on the availability of substantive vacancies. The
principle for deciding inter se seniority has to
conform to the principles of equality spelt out by
Articles 14 and 16. If an appointment is made by way
of stop-gap arrangement, without considering the
claims of all the eligible available persons and
without following the rules of appointment, the
experience on such appointment cannot be equated
with the 4 W.P.No.3661/2016 experience of a regular
appointee, because of the qualitative difference in the
appointment. To equate the two would be to treat two
unequals as equal which would violate the equality
clause. But if the appointment is made after
considering the claims of all eligible candidates and
the appointee continues in the post uninterruptedly
till the regularization of his service in accordance
with the rules made for regular substantive
appointments, there is no reason to exclude the
officiating service for purpose of seniority. Same will
be the position if the initial appointment itself is made
in accordance with the rules applicable to substantive
appointments as
in the present case. To hold otherwise will be
discriminatory and arbitrary...
.......
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
47. To sum up, we hold that
(A) Once an incumbent is appointed to a post
according to a rule, his seniority has to counted from
the date of appointment and not according to date of
his confirmation. The corollary to 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 considering the seniority."
(emphasis supplied)
The decision in Direct Recruits (supra) stands for the
principle that ad hoc service cannot be counted for
determining the seniority if the initial appointment has
been made as a stop gap arrangement and not according to
rules. The reliance placed by the Single Judge in the
judgement dated 6 December 1991 on Direct Recruits
(supra) to hold that the ad hoc service should be counted
for conferring the benefit of seniority in the present case is
clearly misplaced. This principle laid down in Direct
Recruits (supra) was subsequently followed by this Court
in Keshav Chandra Joshi v. Union of India15 . Recently a
two judge Bench of this Court in Rashi Mani Mishra v.
State of Uttar Pradesh16 , of which one of us (Justice DY
Chandrachud) was a part, observed that the services
rendered by ad hoc employees prior to their regularization
cannot be counted for the purpose of seniority while
interpreting the Uttar Pradesh Regularization of Ad Hoc
Appointment Rules. This Court noted that under the
applicable Rules, "substantive appointment" does not
include ad hoc appointment and thus seniority which has
to be counted from "substantive appointment" would not
include ad hoc service. This Court also clarified that the
judgement in Direct Recruits (supra) cannot be relied upon
to confer the benefit of seniority based on ad hoc service
since it clearly states that ad hoc appointments made as
stop gap arrangements do not render the ad hoc service
eligible for determining seniority. This Court speaking
through Justice MR Shah made the following observations:
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
"36. The sum and substance of the above discussion
would be that on a fair reading of the 1979 Rules,
extended from time to time;
initial appointment orders in the year 1985 and the
subsequent order of regularization in the year 1989 of
the ad hoc appointees and on a
fair reading of the relevant Service Rules, namely
Service Rules, 1993 and the Seniority Rules, 1991, our
conclusion would be that the services rendered by the
ad hoc appointees prior to their regularization as per
the 1979 Rules shall not be counted for the purpose of
seniority, visà-vis, the direct recruits who were
appointed prior to 1989 and they are not entitled to
seniority from the date of their initial appointment in
the year 1985. The resultant effect would be that the
subsequent re- determination of the seniority in the
year 2016 cannot be sustained which was considering
the services rendered by ad hoc appointees prior to
1989, i.e., from the date of their initial appointment in
1985. This cannot be sustained and the same deserves
to be quashed and set aside and the seniority list of
2001 counting the services rendered by ad hoc
appointees from the date of their regularization in the
year 1989 is to be restored
37. Now so far as the reliance placed upon the
decision of this Court in the case of Direct Recruit
Class II Engg. Officers' Assn. (supra), relied upon by
the learned Senior Advocate appearing on behalf of
the ad hoc appointees is concerned, it is required to
be noted that even in the said decision also, it is
observed and held that where initial appointment was
made only ad hoc as a stop gap arrangement and not
according to the rules, the officiation in such post
cannot be taken into account for considering the
seniority. In the case before this Court, the
appointments were made to a post according to rule
but as ad hoc and subsequently they were confirmed
and to that this Court observed and held that where
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Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
appointments made in accordance with the rules,
seniority is to be counted from the date of such
appointment and not from the date of confirmation. In
the present case, it is not the case of confirmation of
the service of ad hoc appointees in the year 1989. In
the year 1989, their services are regularized after
following due procedure as required under the 1979
Rules and after their names were recommended by the
Selection Committee constituted under the 1979
Rules. As observed hereinabove, the appointments in
the year 1989 after their names were recommended by
the Selection Committee constituted as per the 1979
Rules can be said to be the "substantive
appointments". Therefore, even on facts also, the
decision in the case Direct Recruit Class II Engg.
Officers' Assn. (supra) shall not be applicable to the
facts of the case on hand. At the cost of repetition, it is
observed that the decision of this Court in the case of
Direct Recruit Class II Engg. Officers' Assn. (supra)
was considered by this Court in the case of Santosh
Kumar (supra) when this Court interpreted the very
1979 Rules.
The notification dated 3 May 1977 stated that the ad hoc
appointments were made in administrative interest in
anticipation of regular appointments and on account of
delay that takes place in making regular appointment
through the concerned agencies. In this regard, the
vacancies were notified to the Employment Exchange or
advertisements were issued, as the case maybe, by
appointing authorities. The appointments were not made
on the recommendation of the Punjab Subordinate Service
Selection Board. However, subsequently a policy decision
was made to regularize the ad hoc appointees since their
ouster after a considerable period of service would have
entailed hardship. Thus, the initial appointment was
supposed to be a stop gap arrangement, besides being not
in accordance with the rules, and the ad hoc service
cannot be counted for the purpose of seniority."
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
Since there is nothing on record to suggest that the adhoc appointment of
the petitioners was against the regular / vacant and sanctioned post, no case is
made out for giving direction to respondent to count the services of the
petitioners as adhoc employees for pensionary service.
Accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
DevS
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 8/3/2023
3:49:40 PM
