PROJECT REPORT ON AD HOC EMPLOYEES

SUBMITTED TO: Mrs. SUPREET GILL SERVIVE LAW LECTURER UILS PANJAB UNIVERSITY

SUBMITTED BY: GAYATRI BHIKHAN ROLL NO - 25/10 SECTION A UILS

ACKNOWLEDGEMENT
I would like to convey my heartiest thanks to our service law lecturer Mrs. Supreet Gill for giving me project on the topic AD HOC EMPLOYEES and also for providing me guidance in completing this project. I would also like to thank our library staff for providing us with good books which also enabled me to complete this project.

CONTENTS
SERIAL NO. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. NAME OF TOPIC PAGE NO.

Introduction 5 Meaning of Ad hoc appointment 5 Adhocism- Arbitrary and Discriminatory 6 Status of Ad hoc employees 7 Rights of Ad hoc appointees 7,8 Procedure for making ad hoc appointments 8 Protection available to ad hoc employees 9 Termination of service 9,10 Regularization of ad hoc employees 10 Counting of service towards seniority 12 Benefit of seniority, promotion, pension to ad hoc 13 employees Latest guidelines by the Supreme Court 14

TABLE OF CASES:
Rudra Kumar sain V. Union of India AIR 2000 SC 2808 J.&K Public Service Commission V. Narinder Mohan AIR 1994 SC 1808 J.M. Puthnparambil V. Kerala Water Authority, AIR 1990 SC 2228 Raj Kishore V. Union of India (1997)11 SCC 619 Ramesh K. Sharma V. Rajasthan Civil Services, AIR 2001 SC 362 State of Karnataka V. Umadevi, AIR 2006 SC 1806 Rattan lal V. State of Haryana AIR 1987 SC 478 Saroj Kumar V .State of Punjab, 1998(5) SLR (P. &H.)266 Rabinarayana Mohapatra V. State of Orissa AIR 1991 SC 1286 Director, Institute of Management Development V. Pushpa Srivstava (1992)4 SCC 33 Hindustan Petroleum corporation Ltd. V. Ashok Rangbha Ambre 2008(2) SLR 321 (SC) O.P. Gupta V. M.C. Delhi, 1973(1) SLR 209 State of Mysore V. S.V. Narayanappa 1967(1)SLR 128 (SC) Sumati P.Shere V. Union of India AIR 1989 SC 1431 State of Haryana V. Piara Singh AIR 1992 SC 2130 Ashwani Kumar V. State of Bihar AIR 1997 SC 1628 Direct Recruit Class II Engg. Officers Association V. State of Maharashtra AIR 1990 SC 1607 Ram Paul Khajuria V. State of Jammu and Kashmir (J&K) 1999 (1) SCT 729 State of Jharkhand V. Manshu Kumbhkar, 2008 (1) SLR 1 Nasib Singh V. State of Punjab1999 (5) SLR 497 (P. & H). K. Madalaimuthu V. State of Tamil Nadu(2006) 6 SCC 558

INTRODUCTION
4

Article 309 of the Constitution of India confers power on the appropriate authority to regulate the recruitment to the public services of the Union or of any State. It enables the Executive to make recruitment to the government services. However, this power of the Executive is subjected to the provisions of the Constitution and the provisions of any statute enacted by the appropriate Legislature. It has been held that the creation and abolition of a post is the prerogative of the Executive. The Executive may exercise this power either by making rules under the proviso to Article 309 or (in the absence of such rules) by issuing rules/instructions in the exercise of its executive power. Normally, the appointments to government services are made through the prescribed agency. But exigencies of administration may sometimes call for making of ad hoc or temporary appointments. It has been held that the power to make ad hoc appointments may be visualized to tide over unforeseen exigencies.1 The object behind the exercise of this power is to run smooth administration. MEANING OF AD HOC APPOINTMENT Literally the term ad hoc means arranged or done for a particular purpose only. It means something which is formed for a particular purpose. Referring to Blacks Law Dictionary, the apex court in Rudra Kumar sain V. Union of India,2 distinguished between the terms ad hoc, stop-gap and fortuitous, which are in frequent use in service jurisprudence. The Apex court said: The expression fortuitous means occurring by chance, the expression ad hoc means something which is formed for a particular purpose and the expression stop -gap means a temporary way of dealing with the problem or satisfying a need. Appointments made for a particular purpose 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 government. If a very wide meaning is given to the term ad hoc, it can be said that all post requiring specialized knowledge are ad hoc as appointments are made thereto for a particular purpose and not for any general purpose. 3 Ad hoc appointments are generally made when there is temporary vacancy. It may also be that the service rules may themselves provide for the making of ad hoc appointment.4 The court further elucidated that if an appointment was made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it was not possible to leave the post vacant till then, and to meet that contingency
1 2

J.&K Public Service Commission V. Narinder Mohan AIR 1994 SC 1808 AIR 2000 SC 2808 3 Justice T.S Doabia, The law of Services and dismissals,4th edition, vol1, Nagpur, pg-756 4 Ibid at pg- 755

an appointment was made, then it could appropriately be called as a stop -gap arrangement and appointment in the post as ad hoc appointment. The court further said that it was not possible to neither lay down any straight jacket formula nor give an exhaustive list of circumstances and situations, in which an ad hoc appointment could be made.5 Appointment of typist in Railways made, without the process of selection, by relaxing the rules, would be ad hoc. The period of such appointment, where the same was continuous and was followed by selection through Public Service Commission would count towards seniority.6 But merely because there was no relevant service rules for recruitment to the post, it cannot be assumed that such appointment has been made without any selection and, as such appointment would attract the expression ad hoc. The question, as to whether an appointment is ad hoc, has to be answered on the basis of relevant factors, namely, the nature of the post, the nature of test or selection held for the filling up the post, the period of duration with which incumbent availed the post and all other relevant materials.7

ADHOCISM- ARBITRARY AND DISCRIMINATORY8 Ad hoc appointments, a convenient way of entry, usually from back door, at times even in disregard of rules and regulations, are comparatively recent innovations to the service jurisprudence. The infection is said to be widespread in government or semi-government departments or state financed institutions. The Apex Court has deprecated the regularisation and absorption of persons working as part-time employees or on ad hoc basis, as it has become a common method of allowing back door entries9 The Supreme Court held that the policy of adhocism followed by the State Government for a long period had led to the breach of Article 14 of the Constitution. Under this policy, the state government had been appointing teachers for quite some time on ad hoc basis for short periods without justifiable reason. In some cases the appointments were made for a period of six months only and they were renewed after a break of few days. These ad hoc teachers were denied the benefit of summer vacations as also the salary and allowances payable in respect to that period and to all other privileges such as casual leave, medical leave, etc., unreasonably on account of this pernicious system of appointment adopted by the State Government. They were unnecessarily subjected to an arbitrary hiring and firing policy. The Apex court held that though the Government was expected to function as a model

5 6

J.M. Puthnparambil V. Kerala Water Authority, AIR 1990 SC 2228 Raj Kishore V. Union of India (1997)11 SCC 619 7 Ramesh K. Sharma V. Rajasthan Civil Services, AIR 2001 SC 362 8 Prof. Narender Kumar, Law relating to Government Servants & Management of Disciplinary Proceedings, 2008, pg-173 9 State of Karnataka V. Umadevi, AIR 2006 SC 1806

employer, yet it appeared to be exploiting the situation. Such a situation, the court said, could not be permitted to last any longer.10 Emphasizing that education was dire need of the country and the constitutional obligation of the State to secure right to education for all the citizens11, the Supreme Court in Rabinarayana Mohapatra V. State of Orissa,12 disapproved Adhocism in teaching appointments. The Court held that an appointment on 89 days basis with one day break, which deprived the teachers of his salary for the period of summer vacation and other service benefits, was wholly arbitrary and suffered from the vice of discrimination. In order to make the existing educational set up effective and efficient, the Apex Court ruled that it was necessary to do away with adhocism in teaching appointments.

STATUS OF AD HOC EMPLOYEES As regards the status, the ad hoc employees virtually stand at the lowest rung as against permanent, quasi-permanent and temporary employees. It has been held that an ad hoc employee does not acquire the right to hold the post or to continue in employment indefinitely in contrast to a regular employee. The ad hoc employees are said to form a distinct class. 13 It being a stop-gap arrangement, an ad hoc appointment does not automatically give any vested right to the appointee to claim continuity in service till it is regularized. It is only transient in nature pending the allotment of employees selected according to the prescribed rules and regulations.

RIGHTS OF AN AD HOC APPOINTEE The rights of an ad hoc appointee may be stated as under:14 i. NO RIGHT TO THE POST: An ad hoc appointee or promotee has no right to the post. In Director, Institute of Management Development V. Pushpa Srivstava,15 it was held that where the appointment is purely on ad hoc basis and is contractual and any efflux of time the appointment comes to an end, the person holding such post can have no right to continue in the post. An ad hoc appointment does not by itself confer any right on the ad hocist for regular appointment in such a post. But it is equally true that even though an ad hoc appointee

10 11

Rattan lal V. State of Haryana AIR 1987 SC 478 Articles 41 and 45 of the Constitution of India 12 AIR 1991 SC 1286 13 Saroj Kumar V .State of Punjab, 1998(5) SLR (P. &H.)266 14 Supra 3 pg- 756 15 (1992)4 SCC 33

has no right to hold that post to which he is so appointed, he can nevertheless be reverted to his lower substantive post only for valid reasons such as his unsuitability to hold the post, the availability of the person holding a lien on the post, selection of a regular incumbent or other exigencies of public service. An ad hoc appointment, though by its nature a precarious tenure nevertheless carries a limited right to that extent and if such an appointee is reverted illegally and arbitrarily, he would be entitled to challenge it and seek enforcement of his right.16 ii. LIABLE TO BE DISCHARGED: They are liable to be discharged or reverted to make room for a regular appointee or promotee, pending which the ad hoc arrangement was resorted to. DISCHARGE WOULD NOT ATTRACT ARTICLE 311(2) OF CONSTITUTION: The discharge and reversal of an ad hoc appointee even after an employee has continued for any length of time would not amount to a dismissal or reduction in rank so as to attract Article 311(2) of the Constitution of India, unless it is shown that it was: intended to be a measure of punishment, the cast any stigma, was otherwise malafide; or it inflicts upon the delinquent civil consequences of a penal nature. Termination on the ground of alleged illegality of the regularisation has been held to be bad. The employee should be continued as ad hoc employees after the order of regularisation is revoked as was done in respect of certain other similarly situated employee.

iii.

a) b) c) d) iv.

PROCEDURE FOR MAKING AD HOC APPOINTMENTS The Executive is vested with power, subject of course, to a law made by the appropriate Legislature, to make provisions for regulating the recruitment to public services. This power, however, should be exercised fairly and ensuring a fair deal to every person consistent with the requirements of Article 14 and 16 of the Constitution. Further the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees as the case may be. Even in making ad hoc appointments, the State must adopt some procedure consistent with the requirement of Article 16, except in extraordinary situations where the appointments brook no delay whatsoever. Appointments made by pick and choose method in an arbitrary manner inconsistent with the requirement of Article 16 are liable to be quashed by the courts. It has been emphasized that for making ad hoc appointments, person should ordinarily be drawn from the Employment Exchange. In case no candidate is sponsored by the

16

P.K. Majumdar and O.P. Tiwari, Service Laws in India, 3 ed, Orient Publishing Company, pg-189

rd

Employment Exchange, some appropriate method consistent with Articles 14 and 16 should be followed17. PROTECTION AVAILABLE TO AD HOC APPOINTEES The ad hoc appointees are entitled to twin protections: a) Minimum of pay scale; b) Continuance till regular incumbents joins.18 Article 14 and 16 to be complied with even in the case of stop-gap or ad hoc appointments. Where the infringement of fundamental right guaranteed under Article 16 of the Constitution of India to be considered for promotion is complained, it is no answer to say that because appointments were made from time to time until the finalization of rules only on ad hoc basis, the eligible person had no right to be considered for promotion. Whatever be the nature of appointment i.e. permanent, temporary or ad hoc, a person eligible for promotion has a right to be considered.19 TERMINATION OF SERVICE Termination of ad hoc employee at any time is inherent in the nature of service. In Hindustan Petroleum corporation Ltd. V. Ashok Rangbha Ambre20, the respondent was engaged by the corporation in 1984, on casual basis, as an unskilled workman at its refinery at Bombay. In 1992, he filed a writ petition in the High court by invoking Article 226, praying that he be declared as permanent workman on the post of compounder/dressor w.e.f. June 6, 1987 in the corporation. It appeared from the record that he was engaged purely on ad hoc basis without following proper procedure of law and without there being any right in his favor. The services were terminated by the corporation. But, the tribunal quashed the termination order. His name was never sponsored by the Employment Exchange nor was an advertisement issued for the purpose of filling the post to which the respondent was appointed. The appointment of the respondent was not found to be legal and lawful. The apex court held that merely because in industrial adjudication, an order of termination was quashed, the workman was not held to have substantive right to hold the post. The court held him not entitled to be regularized as permanent employee. In State of Mysore V. S.V. Narayanappa,21the court stated that regularisation would not mean that the appointment would have to be considered as permanent. It explained that the words regular or regularisation did not connote permanence. In Sumati P.Shere V. Union of India22, the Supreme Court emphasized that if services of an ad hoc employee were to be discontinued on the grounds of unsuitability, it was proper and
17 18

Supra 8 pg- 178 Supra 3 pg-757 19 O.P. Gupta V. M.C. Delhi, 1973(1) SLR 209 20 2008(2) SLR 321 (SC) 21 1967(1)SLR 128 (SC)

necessary that he should be told in advance that his work and performance were not upto the mark. The employee should be made aware of the defect in his work and deficiencies in his performance. Timely communication of the defects might put the employee on the right track. Without any such communication, the court ruled, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.

REGULARISATION OF AD HOC EMPLOYEES It has been often said that the State must be a model employer. It is for this reason, the courts have emphasized that a person should not be kept in a temporary or ad hoc appointment status for long. Where a temporary or ad hoc appointment is continued for long, the court presumes that there is a need and warrant for regular post. In that event the court may direct regularisation of ad hoc employees. In State of Haryana V. Piara Singh23, a large number of writ petitions, arising from both the states of Punjab and Haryana, were heard together, by the Apex Court and a common judgment was delivered, giving certain directions in the matter of regularisation of the ad hoc and other temporary employees. The directions may be summarized as follows: a) The court while giving directions for regularisation of ad hoc employees, must act with due care and caution. b) From the mere continuance of an ad hoc employee for one year, it cannot be presumed that there is a need for a regular post. c) There can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other. d) The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. The conditions or rules relating to length of temporary/ad hoc service requisite for regularisation need not be uniform in each state. e) The employees must have possessed prescribed qualification at the time of ad hoc appointment. f) The condition that employee must have been sponsored by Employment Exchange would be reasonable and wholesome requirement designed to curb back door entry. g) The court cannot direct regularisation to help employees who could not satisfy the stipulated conditions. h) Exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular appointment/selection.

22 23

AIR 1989 SC 1431 AIR 1992 SC 2130

10

i) The appointment of a regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc employee. j) An ad hoc employee should not be replaced by another ad hoc employee; he must be replaced by a regularly selected candidate. k) Even where an ad hoc appointment is necessitated on account of the exigencies of the administration, he should ordinarily be drawn from the Employment Exchange unless it cannot brook delay. l) If no candidate is available or is not sponsored by the Employment Exchange, some appropriate method consistent with the requirements of Article 16 should be followed. m) An unqualified person ought to be appointed only when qualified persons are not available through the above processes. n) If and when an ad hoc employee is regularized, he should be placed immediately below the last regularly appointed employee in that category, class of service, as the case may be. In J. & K. Public Service Commission V. Narinder Mohan24, the Supreme Court explained the effect of the decision in State of Haryana V. Piara Singh, and observed that the Apex court did not appear to have intended to lay down, as a general rule, that in every category of ad hoc appointment, if the ad hoc employee appointed continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. The Court, therefore held that a little leeway to make ad hoc appointment due to emergent exigencies, did not clothe the Executive government with power to relax the recruitment or to regularize such appointment nor to claim such appointment to be regular or in accordance with rules. It is thus well established that any appointment made on ad hoc basis or as a stop-gap arrangement does not automatically give any vested right to such an employee to claim continuity in service till it is regularized. Again, where initial ad hoc appointment is made not in accordance with the service rules, the appointees cannot seek regularisation of their services. In Ashwani Kumar V. State of Bihar,25 the Apex Court held that the employees, whose entry in service was illegal, being in total disregard of the recruitment rules or being not on existing vacancies, had no case for regularisation. The court explained that the question of regularisation in any service might arise in two contingencies. Firstly, if on any available clear vacancy which was of a long duration, appointment was made on ad hoc basis, by a competent authority and the appointee continued on ad hoc basis for a given substantial length of time with a pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation would be when the initial entry against an available vacancy was found to have suffered from some flaw in the procedural exercise though the

24 25

AIR 1994 SC 1808 AIR 1997 SC 1628

11

person appointing was competent to effect such initial recruitment and had otherwise followed due procedure for such recruitment. The Apex Court made it clear that the so-called regularisation and confirmation could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods of making recruitment.

COUNTING OF AD HOC SERVICE TOWARDS SENIORITY It has been stated that where an ad hoc appointment is continued for long, the court presumes that there is need and warrant for regular post and accordingly the court directs regularisation of service. On regularisation, the further question needs to be determined as to the counting of ad hoc service towards seniority. The question has engaged the attention of the courts on many occasions. In such cases the courts have considered the circumstances under which and the manner in which the ad hoc appointment has been made. In Direct Recruit Class II Engg. Officers Association V. State of Maharashtra26, a Constitution bench of the Supreme Court ruled that where the initial appointment was only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post could not be taken into account for considering the seniority. In Ram Paul Khajuria V. State of Jammu and Kashmir27, placing reliance on the decision given by the Supreme Court in Direct Recruit Class II Engg. Officers Association V. State of Maharashtra, it was concluded: a) That the policy of making appointment on ad hoc basis which leads to breach of Articles 14 and 16 of the Constitution of India should not be permitted for unduly long period; b) Ad hoc period of service can be counted if the initial appointment is made under the rules; c) Where ad hoc appointment is made and the vacancies have been referred to the Public Service Commission or to the Departmental Promotion Committee, then the ad hoc appointees cannot be given the benefit of the service rendered by them on ad hoc basis. Recruitment of temporary, contractual, casual, daily wages or ad hoc employees de hors the Constitutional scheme of public employment, does not entitle them to claim regularisation. Such persons are said to have no right to invoke legitimate expectation, if any, to be absorbed, regularized or granted permanent continuance, on the basis of such relief having been granted to similarly placed employees in certain orders of the Supreme Court. Even long

26 27

AIR 1990 SC 1607 (J&K) 1999 (1) SCT 729

12

continuance of such employees on irregular basis, would not entitle them, to claim equality with regularly recruited employees. It is a trite law that where neither the initial appointment nor the confirmation was done by following the prescribed procedure, regularisation of such an appointment, being illegal, would be clear violation of Articles 14 and 16(1). It has also been ruled that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned was appointed in an irregular manner or on ad hoc basis against an available vacancy which was already sanctioned. But, if the initial entry itself was unauthorized and was not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy, would never survive for consideration and if such purported regularisation or confirmation was given, it would be an exercise in futility. It would amount to decorating a stillborn baby.28 BENEFIT OF SENIORITY, PROMOTION AND PENSION TO AD HOC EMPLOYEES An ad hoc appointee whose services have been regularized by the regularization rules framed under proviso to Article 309 of the Constitution of India after being duly selected by the selection committee and becoming member of the services would be entitled to seniority. This would be from the date of order of appointment after selection in accordance with the regulations. The purely ad hoc employees or employees on purely officiating basis or employees purely for a temporary employment period in the cadre being not members of the service in accordance with the service rules are not entitled to have the benefit of their adventitious, purely ad hoc and temporary service. Even appointments to temporary post would not be reckoned for determination of seniority unless and until they become members of the services according to the provision of the service rules.29 In Nasib Singh V. State of Punjab30, the court held that the entire service shall be counted for the period of pension, if a temporary or ad hoc service is followed. In K. Madalaimuthu V. State of Tamil Nadu31, the court held that the seniority of a person appointed temporarily to a particular post without recourse to the Recruitment Rules can be counted only from the date on which his services are regularized.

28 29

State of Jharkhand V. Manshu Kumbhkar, 2008 (1) SLR 1 Supra 3 pg- 764 30 1999 (5) SLR 497 (P. & H). 31 (2006) 6 SCC 558

13

LATEST GUIDELINES BY THE SUPREME COURT Recently on 14 Feb, 2014, the Supreme Court has issued a slew of guidelines for high courts and trial courts to curb the menace of ad hoc appointments and to ensure availability of staff. A Bench led by Justice B S Chauhan said all posts shall be filled by issuing advertisements in at least two newspapers, one of which must be in a regional language with wide circulation. The exercise to fill vacancies at the earliest must start in advance to ensure the selected person joins immediately on availability of the post, and hence, there may be no occasion to appoint any person on ad hoc basis for the reason that the problem of inducting daily labourers who are ensured of a regular appointment subsequently has to be avoided and a fair procedure must be adopted giving equal opportunity, it said. The Bench asked high courts and subordinate courts to undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies likely to occur within a said period. The court said this will also control the menace of ad-hocism. The Bench said: There can be no doubt that employment, whether of class IV, III, II or any other class in the High Court or courts subordinate to it falls within the definition of public employment. Such employment, therefore, has to be made under rules and orders of the competent authority. The order came on a bunch of petitions relating to appointment of class IV employees in courts subordinate to the Delhi HC. The dispute had arisen over the continuity of employees appointed an ad hoc basis for 89 days, which would extend for the same period after the same interval.32

32

http://indianexpress.com/article/india/india-others/apex-court-sets-guidelines-to-curb-ad-hoc-appointments/ (visited on 16th march)

14

BIBLIOGRAPHY:
D.P.Tiwari, R.K. Majumdar . Service Laws in India. New Delhi: Orient Publishing Company. Doabia, Justice T.S. The Law of Services and Dismissals. Nagpur: Lexis Nexis Butterworths Wadhwa, 2011. Kumar, Prof. Narender. Law relating to Government Servants & Management of Disciplianry Proceedings. faridabad: allahabad law agency, 2008.

http://indianexpress.com/article/india/india-others/apex-court-sets-guidelines-to-curbad-hoc-appointments/ (visited on 16th march) www.indiankanoon.com

15