Narendra Bahadur Srivastava v. Public Service Commission U. P
1970-09-02
D.S.MATHUR
body1970
DigiLaw.ai
JUDGMENT Mathur, J. - This order shall govern Writ Petitions Nos. 4079 and 4080 of 1969, by Narendra Bahadur Srivastava and Ramesh Chandra, respectively, in which common questions of fact and law arise. They were, therefore, heard together and are being decided by one judgment. 2. Both the petitioners were, on completion of the training from Small Industries Services Institute and Khadi Gram Udyog Mahavidyalaya, appointed as Assistant Development Officers (Industries) grade II at Rs. 120- per month in the scale of pay of Rs. 120-8-200-EB-10-300 plus usual dearness allowance at State Government rates, under order dated 7-8-1961, annexure 'A' to the Writ Petition. The appointment was purely temporary and was governed by the conditions set forth in the Government Notification No. 0-230/11-B-1953 dated January 30, 1953, and was subject to the approval of the Public Service Commission, U. P., Allahabad, if and when necessary for which they will have to apply on their own accord. The petitioners had to give an undertaking on the prescribed form to serve on the post of a period of at least three years. 3. Narendra Bahadur Srivastava took over charge on 18-8-1961 while Ramesh Chandra on 16-8-1961. The posts of Assistant Development Officer (Industries) Grade II were abolished with the result that the temporary service' of the petitioners were terminated under annexure B to the Writ Petition. Under annexure B the petitioners were given one months' notice of termination of service to be counted from the date of the receipt of the order. The services of Narendra Bahadur Srivastava were thus terminated on 22-5-1968 and of Ramesh Chandra on 1-5-1968. The certificate contemplated by Government Notification No. 41 12167 (Apptt.) (B) Department dated 24-10-1967 was granted to both the petitioners by the joint Director of Industries (Extension) acting for the Director of Industries, U. P. 4. The date of birth of Narendra Bahadur Srivastava is 8-7-1939 and of Ramesh Chandra 2-10-1936. 5. In case the above Notification No. 41 12167 dated October 24, 1967, introducing the Uttar Pradesh Retrenched Employees Recruitment Rules, 1967, applicable to the petitioners, they shall be entitled to the benefit of Rule 4 thereof. Rule 4 (1) is as below : "4.
The date of birth of Narendra Bahadur Srivastava is 8-7-1939 and of Ramesh Chandra 2-10-1936. 5. In case the above Notification No. 41 12167 dated October 24, 1967, introducing the Uttar Pradesh Retrenched Employees Recruitment Rules, 1967, applicable to the petitioners, they shall be entitled to the benefit of Rule 4 thereof. Rule 4 (1) is as below : "4. Reservation in favour of retrenched employees :- (1) Subject to the provisions of sub-rules (2) and (3) fifty per cent of the total vacancies in any service or posts to be filled by direct recruitment ,hall, at every such recruitment; be reserved for employees retrenched from the same or any other department who, taking into account the provisions of Rule 5 also, are otherwise qualified for recruitment to that service or those posts, and are found suitable : Provided that where a retrenched employee who immediately before his retrenchment was serving in a temporary or officiating capacity, is selected for appointment to a permanent post as a result of the said reservation, he will be eligible for appointment against that post initially in a temporary capacity, and for purposes of substantive appointment or confirmation against that post, his case will be considered, in accordance with the rules applicable to that service or post, along with that of-other persons holding appointment from before in a temporary or officiating capacity in that service or those posts." 6. Both the petitioners applied to the Public Service Commission for the post of Naib Tahsildars, the maximum age limit for which was 25 years on 1-1-1969. The applications of the petitioners were accepted by the Public Service Commission and they were permitted to appear in the written test. They qualified in the written examination and were called for interview. They were interviewed in the month of July, 1969 but later, their candidature was cancelled on account of their being overage for appointment to the post of Naib Tahsildars. 7. The petitioners were selected as Assistant Development Officer (Indus. tries) Grade II by an ad hoc committee. 8. None of these facts are in dispute and the only point for consideration is whether the petitioners are governed by the U. P. Retrenched Employees Recruitment Rules 1967". In other words, are they "retrenched employees" as defined in Rule 2 (b) thereof ?
tries) Grade II by an ad hoc committee. 8. None of these facts are in dispute and the only point for consideration is whether the petitioners are governed by the U. P. Retrenched Employees Recruitment Rules 1967". In other words, are they "retrenched employees" as defined in Rule 2 (b) thereof ? "Retrenched employee" has been defined to mean "a person who was employed in any service or on any post under the rule-making control of the Governor, whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated or are certified as liable to termination, on account of reduction of establishment, but does not include a person who was appointed on an ad hoc basis." 9. The certificate contemplated by Rule 2 (b) is for a limited purpose to show that the services were liable to termination. Consequently, a person granted a certificate as contemplated by Rule 2 (b) does not automatically fall in the category of a "retrenched employee. What shall have to be seen is whether his case falls within the definition contained in Rule 2 (b) . 10. An employee shall fall is the category of a "retrenched employee" only if he fulfils the following conditions : (1) he was employed in any service or on any post under the rule making control of the Governor; (2) he was so employed in a substantive, officiating or temporary capacity; (3) had served continuously for a period of not less than one year. (4) his services were, whether before or after the commencement of the rules, terminated or are certified as liable to termination on account of reduction of establishment; and (5) he is not a person who was appointed on an ad hoc basis. 11. There are invariably two categories of posts, permanent or temporary. A temporary post may be for an indefinite period or for a specified period. Against permanent post there is either substantive or officiating appointment. There can also be an officiating appointment in a leave vacancy or on account of a person having a lien on the post going on deputation. There can be substantive appointment against a temporary post or the appointment be purely temporary.
Against permanent post there is either substantive or officiating appointment. There can also be an officiating appointment in a leave vacancy or on account of a person having a lien on the post going on deputation. There can be substantive appointment against a temporary post or the appointment be purely temporary. It shall thus be found that the appointment is invariably in a substantive, officiating or temporary capacity, irrespective of whether the post is permanent or temporary. The first two ingredients are, therefore, fulfilled in the case of almost every Government servant under the rule making control of the Governor. The petitioners had served continuously for a period exceeding one year and their services were terminated on the abolition of the posts of the Assistant Development Officer. Consequently, the petitioners' would fall in the category of "retrenched employee" provided that they were not appointed on an ad hoc basis. 12. What is meant by appointment on ad hoc basis has not been detailed in the U. P. Retrenched Employees Recruitment Rules, 1967; but if these rules are read along with the instructions. contained in G.O. No. 88 (1)166-0 & M dated March 2, 1967, it shall be evident that ad hoc appointment is one which is detailed in clause (c) of para. 2 of this G.O., meaning thereby persons who are "recruited or specified" jobs expected to last for a specified period or whose services are terminated in the normal course in accordance with the terms and conditions of their service such as additional copyists, seasonal peons attached to collection amins etc. Clause (c) of para. 2 of the G.O. does not cover posts which are permanent and also temporary posts which are created for an unspecified period. Where a person is appointed to a temporary post created or to a vacancy to exist, for a specified period,'he shall know that the appointment is for that period and not more. He enters the service with open eyes knowing fully well that his services shall be terminated on the expiry of that period. The same can be said of appointments made may be to substantive posts, under a Contract for a specified period.
He enters the service with open eyes knowing fully well that his services shall be terminated on the expiry of that period. The same can be said of appointments made may be to substantive posts, under a Contract for a specified period. Such Government servants cannot claim on the basis of equity to be re-employed on another post on the abolition of the post to which, or on the expiry of the specified period for which, they had been originally appointed. 13. The same inference can be drawn from the words "appointed on an ad hoc basis" used in Rule 2 (b) of the U. P. Retrenched Employees Recruitment Rules. 14. Reference is to appointment on an ad hoc basis and not appointment by an ad hoc committee. Appointment on the recommendations of an ad hoc committee shall not necessarily be on ad hoc basis; it can be in a substantive capacity also. -Instances of substantive appointments on the recommendations of Special Committees are not unknown. For example, there has been special recruitment to the Indian Administrative Service on the recommendations of a Special Committee 'constituted for the purpose. In other words, the manner of recruitment shall not: determine whether the appointment is or is not on ad hog: basis. Whether the appointment is on ad hoc basis shall depend upon other factors. 15. The word ad hoc has been defined in "Websters New International Dictionary" Vol. I Second Edition as, "Pertaining to, or for the sake. of, this case alone; and of a hypothesis or reason adduced to explain a phenomenon or class of phenomena, and having no other application by which its validity and significance can be tested." Similarly, this word has been given the following meaning in "Webster's Third New International Dictionary" Latest Unabridged Edition : "Ad hoc : for the particular end or purpose at hand and without reference to wider application or employment (a special number appointed ad hoc according to the problem under consideration) "ad hoc: Adj : made, established, acting, or concerned with a particular end or purpose (a coordinated policy instead of ad hoc decision) (an ad hoc commission of inquiry)." Appointments made for a particular purpose at hand without reference to wider application or employment would fall in the category of appointments on ad hoc basis.
Such appointments must be considered in the context of the services under the rule-making control of the Governor. If a very wide meaning is given to the term ad hoc. it can be said that all posts requiring specialised knowledge are ad hoc as appointments are made thereto for a particular purpose and not for any general purpose. This will frustrate the very objection of the U. P. Re. trenched Employees Recruitment Rules, all the more, when appointment to a temporary post is invariably for the purpose for which the post was created and not generally for all the services. We must, therefore, give that meaning to the word ad hoc which shall further the cause for which the Rules were framed i.e., to re-employ those employees who had been retrenched on abolition of posts, employees who had entered service expecting to remain in service for an unspecified period, possibly till attaining the age of superannuation. 16. There can be no difficulty in applying the above Rules in respect of permanent posts or posts to which appointment has been made on substantive basis. Controversy arises, in applying this rule to the incumbents of temporary posts. In case the expression "particular purpose" is co-related to the period for which the temporary post has been created, it shall be evident that ad hoc appointment is one where the incumbent knows that his appointment is for a specified period. Where no period has been specified and the appointment is for an unspecified period, the incumbent expects to remain in service till the continuance of the temporary post which may last for an unspecified period. 17. No Government servant can say that a particular work be assigned to him. A person appointed as Assistant Development Officer can, if considered necessary, be assigned a work not done by Assistant Development Officers in the past. Consequently, the work originally assigned to persons holding the post can be no criterion for determining the purpose for which a particular appointment was made.
A person appointed as Assistant Development Officer can, if considered necessary, be assigned a work not done by Assistant Development Officers in the past. Consequently, the work originally assigned to persons holding the post can be no criterion for determining the purpose for which a particular appointment was made. I am, therefore, of opinion that an appointment can be said to be on ad hoc basis only when it is known at the time of the appointment that the appointment is for a specified period, on a temporary post being created for a specified period of an officiating or temporary appointment being made in a leave vacancy or an officer going on deputation or for some similar reasons. Where a person appointed to the post, whether permanent or temporary, has the expectation to remain in service for an unspecified period, his appointment cannot be said to be on ad hoc basis. 18. Annexure 'A' to the Writ Petition whereunder the petitioners were appointed Assistant Development Officers does not lay down the period of appointment. One of the conditions of service is that the person appointed shall serve on the post for a period of at least three years. 19. Another condition of service is that the appointment is subject to the approval of the Public Service Commission. However, this clause is succeeded by the words "if and when necessary for which they will have to apply on their own accord." These words suggest that approval of the Public Service Commission is not a condition precedent to the appointment being made on a long term basis. If the approval of the Public Service Commission was a condition precedent to the Government servant continuing in service, the words 'if and when necessary' would not have been used. The word 'if' also suggests that approval of the Public Service Commission is not obligatory. Further, whenever the approval of the Public Service Commission is considered necessary, it shall be necessary for the Government servant to apply afresh on his own accord, which, in the eye of law, would amount to a fresh appointment and not a continuance of the initial appointment. Annexure 'A' thus suggests that the appointment was not on ad hoc basis.
Further, whenever the approval of the Public Service Commission is considered necessary, it shall be necessary for the Government servant to apply afresh on his own accord, which, in the eye of law, would amount to a fresh appointment and not a continuance of the initial appointment. Annexure 'A' thus suggests that the appointment was not on ad hoc basis. However, it is not necessary for this Court to express a final opinion on this point keeping in mind that while exercising jurisdiction under Article 226 of the Constitution the High Court does not usurp the functions of a court of appeal : it usually lays down the law to be followed when the matter is reconsidered by the subordinate authority. Consequently, after the order of the Public Service Commission dated August 3, 1969, is quashed, it should reconsider the matter in the light of the observations made above. However, to avoid necessary litigation it is made clear that on the basis of Annexure 'A' to the Writ Petition, which is the appointment order issued by the joint Director of Industries (Extension) for Director of Industries, U. P., the petitioners cannot be said to have been appointed on an ad hoc basis and on the basis of this annexure they would fall within the definition of "retrenched employee" and shall be entitled to the benefits of the U. P. Retrenched Employees Recruitment Rules, 1967. The Public Service Commission shall, however, have the power to take a contrary view if other material is brought to its notice. 20. Both the writ petitions are hereby allowed with costs and the order dated August 3, 1969, of the Public Service Commission whereby-the candidature of the petitioners for the posts of Naib Tahsildars was cancelled, is quashed. It is further ordered that the claims of the petitioners for appointment to the post of Naib Tahsildars on the basis of the written examination held in December, 1968 and the interview already conducted in 1969 shall be considered afresh.