(1.) This reference has been made to a Larger Bench by the order dated 14.7.2004 of the learned Chief Justice, for resolving the issue as to whether the service rendered by an employee on ad hoc basis can be counted for the purposes of determining the seniority, promotion etc. as two Division Benches of this Court in Writ Petition No. 2605 of 2002 (Arjun Ravi Das v. Secretary, Minor Irrigation Department and Rural Engineering Service and Ors., decided on 27.2.2004), [Reported in (2004) 2 UPLBEC 1248 (DB)] and in Writ Petition No. 9940 of 2001 (N.K. Tripathi v. The Secretary, Minor Irrigation Department, decided on 13.2.2003) [Reported in (2004) 1UPLBEC 674 (DB)], have taken contrary views. Both the aforesaid cases relate to the same department. As large number of cases have been referred for determining the issue involved, Writ Petition No. 10504 of 2004, Farhat Hussain Azad v. State of U.P. and Ors., has been taken to be the leading case.
(2.) The Rural Engineering Department was constituted in the year 1972, in view of the fact that there had been an immense increase in the Engineering work in rural development. Initially no separate Rules were framed in respect of the officers of the said department particularly officers who subsequently stood designated as Junior Engineers, Assistant Engineers and all of them were to be governed by the General Rules applicable to other Government Servants. In the beginning large number of officers came on deputation from Public Works Department and Minor Irrigation and stood absorbed in rural engineering service. Direct recruitment was also made through the U.P. Public Service Commission (hereinafter called the "Commission") on the regular basis. In order to regularise the officers working purely on ad hoc basis, the U.P. Regularization of ad hoc Appointments (On Post within the Purview of the Public Service Commission) Rules, 1979 (hereinafter called the "Rules 1979") were enforced. The said Rules, 1979 provided for regularization of those ad hoc employees who had been in service before 1st January, 1977 and continued thereafter as such on the date of commencement of the said Rules, 1979. The said Rules stood extended vide notification dated 7.8.1989 for considering the cases of regularization of those ad hoc employees who had been in service on 1st October, 1986 and before and were continuing in service as such till 7.8.1989, i.e., the commencement of the amendment/extension of the Rules. Rule 6 thereof provided that appointment made under Rules, 1979 would be deemed to be under the relevant Service Rules or orders, if any. The U.P. Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970 (hereinafter called the Rules, 1970) were also applicable and the said Rules provided for promotion purely on merit after preparing the eligibility list by the Selection Committee as provided under the said Rules, 1970. The U.P. Regularization of ad hoc Promotions (On Post within the Purview of the Public Service Commission) Rules, 1988, hereinafter called the Rules, 1988 also provided for regularization of ad hoc promotions provided the officer concerned was promoted on ad hoc basis before 1st January, 1985 and was continuing on promotion post as such or on a higher post on the date of commencement of the said Rules, 1988, if he fulfilled the other conditions prescribed therein. The said Rules were given overriding effect. Similarly, U.P. Government Servants Seniority Rules, 1991 were also applicable which provided that seniority of an officer shall be determined from the date of substantive appointment. Ultimately the "U.P. Rural Engineering Service Rules, 1993" were published on 10th June, 1993 and were subsequently amended on 28th January, 2000.
(3.) The present petitioners, except N.K. Tripathi had been appointed initially as Junior Engineers in the year 1972 on ad hoc basis and subsequently appointed as Junior Engineers with effect from 13.1.1981. They were promoted as Assistant Engineers on ad hoc basis on 13.8.2001, w.e.f, 17.5.1984 and were regularized vide order dated 17.6.1992 under the Rules, 1988. A seniority list was published on 19.2.1995 which was revised vide order dated 14.12.2001, after considering the representations. As some of the petitioners were pushed down in the seniority list these petitions were filed. The cases of the petitioners for regularization have not been considered on the post of Executive Engineers and so they have claimed the promotion on the post of Executive Engineers considering their cases for regularization as Assistant Engineers by giving them seniority reckoning the entire period they have served on ad hoc basis.
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