PROJECT REPORT ON AD HOC EMPLOYEESSUBMITTED TO: Mrs. SUPREET GILL SERVIVE LAW LECTURER UILS PANJAB UNIVERSITY SUBMITTED BY: GAYATRI BHIKHAN ROLL NO - 25/10 SECTION – A UILS 1 Supreet Gill” for giving me project on the topic “AD HOC EMPLOYEES” and also for providing me guidance in completing this project.ACKNOWLEDGEMENT I would like to convey my heartiest thanks to our service law lecturer “Mrs. 2 . I would also like to thank our library staff for providing us with good books which also enabled me to complete this project. pension to ad hoc 13 employees Latest guidelines by the Supreme Court 14 3 . 7. 8. 9. NAME OF TOPIC PAGE NO.8 Procedure for making ad hoc appointments 8 Protection available to ad hoc employees 9 Termination of service 9. 6. 1. 11. 10.10 Regularization of ad hoc employees 10 Counting of service towards seniority 12 Benefit of seniority.Arbitrary and Discriminatory 6 Status of Ad hoc employees 7 Rights of Ad hoc appointees 7. 3.CONTENTS SERIAL NO. 4. 2. 12. 5. promotion. Introduction 5 Meaning of Ad hoc appointment 5 Adhocism. Union of India AIR 1989 SC 1431 State of Haryana V. State of Jammu and Kashmir (J&K) 1999 (1) SCT 729 State of Jharkhand V. Gupta V. Madalaimuthu V.&K Public Service Commission V.P. S. Union of India AIR 2000 SC 2808 J.M. AIR 2001 SC 362 State of Karnataka V. 1973(1) SLR 209 State of Mysore V.State of Punjab. State of Tamil Nadu(2006) 6 SCC 558 INTRODUCTION 4 . State of Haryana AIR 1987 SC 478 Saroj Kumar V . Piara Singh AIR 1992 SC 2130 Ashwani Kumar V. Narayanappa 1967(1)SLR 128 (SC) Sumati P. Officers Association V. AIR 2006 SC 1806 Rattan lal V. Puthnparambil V. Rajasthan Civil Services. & H).)266 Rabinarayana Mohapatra V.Shere V. 1998(5) SLR (P. M. Pushpa Srivstava (1992)4 SCC 33 Hindustan Petroleum corporation Ltd. Manshu Kumbhkar.V. Ashok Rangbha Ambre 2008(2) SLR 321 (SC) O.TABLE OF CASES: Rudra Kumar sain V. Delhi. Union of India (1997)11 SCC 619 Ramesh K. State of Bihar AIR 1997 SC 1628 Direct Recruit Class II Engg. V. State of Orissa AIR 1991 SC 1286 Director. Institute of Management Development V. State of Maharashtra AIR 1990 SC 1607 Ram Paul Khajuria V.C. &H. Sharma V. AIR 1990 SC 2228 Raj Kishore V. 2008 (1) SLR 1 Nasib Singh V. Narinder Mohan AIR 1994 SC 1808 J. Umadevi. State of Punjab1999 (5) SLR 497 (P. Kerala Water Authority. K. It may also be that the service rules may themselves provide for the making of ad hoc appointment. 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”. 3 Ad hoc appointments are generally made when there is temporary vacancy.” Referring to Black’s Law Dictionary. 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. Normally. Nagpur. “stop-gap” and “fortuitous”.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. which are in frequent use in service jurisprudence.755 5 .4th edition. Such appointments must be considered in the context of the services under the rule making control of the government. It has been held that the creation and abolition of a post is the prerogative of the Executive. It enables the Executive to make recruitment to the government services. Narinder Mohan AIR 1994 SC 1808 AIR 2000 SC 2808 3 Justice T.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. this power of the Executive is subjected to the provisions of the Constitution and the provisions of any statute enacted by the appropriate Legislature. pg-756 4 Ibid at pg. However. the apex court in Rudra Kumar sain V. vol1. Union of India. 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. the appointments to government services are made through the prescribed agency. and to meet that contingency 1 2 J.S Doabia. Appointments made for a particular purpose without reference to wider application or employment would fall in the category of appointments on ad hoc basis.1 The object behind the exercise of this power is to run smooth administration.2 distinguished between the terms “ad hoc”. 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. The Apex court said: “The expression “fortuitous” means “occurring by chance”.” It means “something which is formed for a particular purpose. “The law of Services and dismissals”. If a very wide meaning is given to the term ad hoc.&K Public Service Commission V. MEANING OF AD HOC APPOINTMENT Literally the term “ad hoc” means “arranged or done for a particular purpose only. medical leave. The period of such appointment. as such appointment would attract the expression “ad hoc”. at times even in disregard of rules and regulations. The question. They were unnecessarily subjected to an arbitrary “hiring and firing” policy.ARBITRARY AND DISCRIMINATORY8 Ad hoc appointments. AIR 2001 SC 362 8 Prof. are comparatively recent innovations to the service jurisprudence. a convenient way of entry. Narender Kumar. then it could appropriately be called as a “stop -gap” arrangement and appointment in the post as “ad hoc” appointment. pg-173 9 State of Karnataka V.. namely. Under this policy. where the same was continuous and was followed by selection through Public Service Commission would count towards seniority. The infection is said to be widespread in government or semi-government departments or state financed institutions. the period of duration with which incumbent availed the post and all other relevant materials. The Apex Court has deprecated the regularisation and absorption of persons working as part-time employees or on ad hoc basis. the nature of test or selection held for the filling up the post. In some cases the appointments were made for a period of six months only and they were renewed after a break of few days. 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.7 ADHOCISM. unreasonably on account of this pernicious system of appointment adopted by the State Government. The Apex court held that though the Government was expected to function as a model 5 6 J. without the process of selection. by relaxing the rules. etc.an appointment was made. it cannot be assumed that such appointment has been made without any selection and. AIR 2006 SC 1806 6 . the nature of the post. AIR 1990 SC 2228 Raj Kishore V. 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. Sharma V.5 Appointment of typist in Railways made. 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. Umadevi. “Law relating to Government Servants & Management of Disciplinary Proceedings”. 2008. in which an ad hoc appointment could be made. the state government had been appointing teachers for quite some time on ad hoc basis for short periods without justifiable reason. Union of India (1997)11 SCC 619 7 Ramesh K. Puthnparambil V.M. usually from back door. Rajasthan Civil Services.6 But merely because there was no relevant service rules for recruitment to the post. Kerala Water Authority. would be ad hoc. as to whether an appointment is “ad hoc”. has to be answered on the basis of relevant factors. RIGHTS OF AN AD HOC APPOINTEE The rights of an ad hoc appointee may be stated as under:14 i. the court said. was wholly arbitrary and suffered from the vice of discrimination. In order to make the existing educational set up effective and efficient. State of Orissa. NO RIGHT TO THE POST: An ad hoc appointee or promotee has no right to the post. The Court held that an appointment on 89 days basis with one day break. 1998(5) SLR (P. yet it appeared to be exploiting the situation. The ad hoc employees are said to form a distinct class. 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 . quasi-permanent and temporary employees. Such a situation.12 disapproved Adhocism in teaching appointments.employer.756 15 (1992)4 SCC 33 7 . could not be permitted to last any longer. the ad hoc employees virtually stand at the lowest rung as against permanent. But it is equally true that even though an ad hoc appointee 10 11 Rattan lal V. 13 It being a stop-gap arrangement. In Director. &H. which deprived the teachers of his salary for the period of summer vacation and other service benefits. the Supreme Court in Rabinarayana Mohapatra V. the Apex Court ruled that it was necessary to do away with adhocism in teaching appointments.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.State of Punjab.)266 14 Supra 3 pg. It is only transient in nature pending the allotment of employees selected according to the prescribed rules and regulations.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 person holding such post can have no right to continue in the post. an ad hoc appointment does not automatically give any vested right to the appointee to claim continuity in service till it is regularized. Institute of Management Development V. 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. Pushpa Srivstava. An ad hoc appointment does not by itself confer any right on the ad hocist for regular appointment in such a post. STATUS OF AD HOC EMPLOYEES As regards the status. pg-189 rd 8 . In case no candidate is sponsored by the 16 P.P. he would be entitled to challenge it and seek enforcement of his right. subject of course. It has been emphasized that for making ad hoc appointments. Orient Publishing Company. selection of a regular incumbent or other exigencies of public service. Even in making ad hoc appointments. 3 ed.has no right to hold that post to which he is so appointed. except in extraordinary situations where the appointments brook no delay whatsoever. to make provisions for regulating the recruitment to public services. LIABLE TO BE DISCHARGED: They are liable to be discharged or reverted to make room for a regular appointee or promotee. iii. 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. he can nevertheless be reverted to his lower substantive post only for valid reasons such as his unsuitability to hold the post. to a law made by the appropriate Legislature. Termination on the ground of alleged illegality of the regularisation has been held to be bad.16 ii. 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. was otherwise malafide. 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. This power. 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.K. Majumdar and O. pending which the ad hoc arrangement was resorted to. unless it is shown that it was: intended to be a measure of punishment. 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. a) b) c) d) iv. the availability of the person holding a lien on the post. Tiwari. “Service Laws in India”. person should ordinarily be drawn from the Employment Exchange. the State must adopt some procedure consistent with the requirement of Article 16. however. the cast any stigma. PROCEDURE FOR MAKING AD HOC APPOINTMENTS The Executive is vested with power. An ad hoc appointment. should be exercised fairly and ensuring a fair deal to every person consistent with the requirements of Article 14 and 16 of the Constitution. or it inflicts upon the delinquent civil consequences of a penal nature. 19 TERMINATION OF SERVICE Termination of ad hoc employee at any time is inherent in the nature of service.21the court stated that regularisation would not mean that the appointment would have to be considered as permanent. he filed a writ petition in the High court by invoking Article 226. The apex court held that merely because in industrial adjudication. Gupta V. a person eligible for promotion has a right to be considered.f. But. some appropriate method consistent with Articles 14 and 16 should be followed17. the eligible person had no right to be considered for promotion. The court held him not entitled to be regularized as permanent employee. Ashok Rangbha Ambre20. an order of termination was quashed. 1973(1) SLR 209 20 2008(2) SLR 321 (SC) 21 1967(1)SLR 128 (SC) 9 . It explained that the words “regular” or “regularisation” did not connote “permanence”. it was proper and 17 18 Supra 8 pg. permanent.Shere V. 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. PROTECTION AVAILABLE TO AD HOC APPOINTEES The ad hoc appointees are entitled to twin protections: a) Minimum of pay scale.e. The appointment of the respondent was not found to be legal and lawful. the respondent was engaged by the corporation in 1984.178 Supra 3 pg-757 19 O.18 Article 14 and 16 to be complied with even in the case of stop-gap or ad hoc appointments. temporary or ad hoc. Whatever be the nature of appointment i. as an unskilled workman at its refinery at Bombay. In 1992. M.Employment Exchange. 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. In Sumati P.C. Narayanappa. the workman was not held to have substantive right to hold the post.P.V. on casual basis. V. Delhi. the tribunal quashed the termination order. In State of Mysore V. In Hindustan Petroleum corporation Ltd. June 6. 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. S. b) Continuance till regular incumbents joins. the Supreme Court emphasized that if services of an ad hoc employee were to be discontinued on the grounds of unsuitability. The services were terminated by the corporation.e. Union of India22. 1987 in the corporation. praying that he be declared as permanent workman on the post of compounder/dressor w. necessary that he should be told in advance that his work and performance were not upto the mark. must act with due care and caution. the courts have emphasized that a person should not be kept in a temporary or ad hoc appointment status for long. were heard together. it cannot be presumed that there is a need for a regular post. f) The condition that employee must have been sponsored by Employment Exchange would be reasonable and wholesome requirement designed to curb back door entry. It is for this reason. 22 23 AIR 1989 SC 1431 AIR 1992 SC 2130 10 . the court ruled. Where a temporary or ad hoc appointment is continued for long. h) Exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Without any such communication. effort should always be to replace such an ad hoc employee by a regularly selected employee as early as possible. it would be arbitrary to give a movement order to the employee on the ground of unsuitability. the court presumes that there is a need and warrant for regular post. In such a situation. Such a temporary employee may also compete along with others for such regular appointment/selection. The directions may be summarized as follows: a) The court while giving directions for regularisation of ad hoc employees. d) The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. Piara Singh23. Timely communication of the defects might put the employee on the right track. by the Apex Court and a common judgment was delivered. In that event the court may direct regularisation of ad hoc employees. b) From the mere continuance of an ad hoc employee for one year. REGULARISATION OF AD HOC EMPLOYEES It has been often said that the State must be a model employer. In State of Haryana V. a large number of writ petitions. The employee should be made aware of the defect in his work and deficiencies in his performance. e) The employees must have possessed prescribed qualification at the time of ad hoc appointment. arising from both the states of Punjab and Haryana. It cannot be a mechanical act but a judicious one. c) There can be no rule of thumb in such matters. giving certain directions in the matter of regularisation of the ad hoc and other temporary employees. g) The court cannot direct regularisation to help employees who could not satisfy the stipulated conditions. The conditions or rules relating to length of temporary/ad hoc service requisite for regularisation need not be uniform in each state. Conditions and circumstances of one unit may not be the same as of the other. the appointees cannot seek regularisation of their services. the Supreme Court explained the effect of the decision in State of Haryana V. therefore held that a little leeway to make ad hoc appointment due to emergent exigencies. as a general rule. The court explained that the question of regularisation in any service might arise in two contingencies. the rules of recruitment should be relaxed and the appointment by regularisation be made. as the case may be. j) An ad hoc employee should not be replaced by another ad hoc employee. being in total disregard of the recruitment rules or being not on existing vacancies. Piara Singh. 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. The Court. whose entry in service was illegal. k) Even where an ad hoc appointment is necessitated on account of the exigencies of the administration. 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 . if on any available clear vacancy which was of a long duration. m) An unqualified person ought to be appointed only when qualified persons are not available through the above processes. & K. State of Bihar. had no case for regularisation. In J. Firstly. 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. In Ashwani Kumar V. that in every category of ad hoc appointment. some appropriate method consistent with the requirements of Article 16 should be followed.25 the Apex Court held that the employees.i) The appointment of a regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc employee. Public Service Commission V. Again. where initial ad hoc appointment is made not in accordance with the service rules. if the ad hoc employee appointed continued for long period. 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. class of service. Narinder Mohan24. and observed that the Apex court did not appear to have intended to lay down. l) If no candidate is available or is not sponsored by the Employment Exchange. he should ordinarily be drawn from the Employment Exchange unless it cannot brook delay. he should be placed immediately below the last regularly appointed employee in that category. n) If and when an ad hoc employee is regularized. he must be replaced by a regularly selected candidate. appointment was made on ad hoc basis. State of Maharashtra26. does not entitle them to claim regularisation. placing reliance on the decision given by the Supreme Court in Direct Recruit Class II Engg. COUNTING OF AD HOC SERVICE TOWARDS SENIORITY It has been stated that where an ad hoc appointment is continued for long. the further question needs to be determined as to the counting of ad hoc service towards seniority. 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. State of Jammu and Kashmir27. Officers Association V. the officiation in such post could not be taken into account for considering the seniority. if any. c) Where ad hoc appointment is made and the vacancies have been referred to the Public Service Commission or to the Departmental Promotion Committee. 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. Recruitment of temporary. The question has engaged the attention of the courts on many occasions. regularized or granted permanent continuance.person appointing was competent to effect such initial recruitment and had otherwise followed due procedure for such recruitment. Even long 26 27 AIR 1990 SC 1607 (J&K) 1999 (1) SCT 729 12 . In such cases the courts have considered the circumstances under which and the manner in which the ad hoc appointment has been made. Officers Association V. State of Maharashtra. b) Ad hoc period of service can be counted if the initial appointment is made under the rules. In Ram Paul Khajuria V. to be absorbed. 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. casual. on the basis of such relief having been granted to similarly placed employees in certain orders of the Supreme Court. the court presumes that there is need and warrant for regular post and accordingly the court directs regularisation of service. On regularisation. contractual. Such persons are said to have no right to invoke legitimate expectation. In Direct Recruit Class II Engg. then the ad hoc appointees cannot be given the benefit of the service rendered by them on ad hoc basis. daily wages or ad hoc employees de hors the Constitutional scheme of public employment. if the initial entry itself was unauthorized and was not against any sanctioned vacancy. 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. 31 (2006) 6 SCC 558 13 . It is a trite law that where neither the initial appointment nor the confirmation was done by following the prescribed procedure.29 In Nasib Singh V. purely ad hoc and temporary service. to claim equality with regularly recruited employees. Madalaimuthu V. 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. 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. It would amount to decorating a stillborn baby. State of Punjab30. & H). would not entitle them. 2008 (1) SLR 1 Supra 3 pg. Manshu Kumbhkar.continuance of such employees on irregular basis. State of Tamil Nadu31. would be clear violation of Articles 14 and 16(1).764 30 1999 (5) SLR 497 (P. it would be an exercise in futility. In K. being illegal. This would be from the date of order of appointment after selection in accordance with the regulations. would never survive for consideration and if such purported regularisation or confirmation was given. regularisation of such an appointment.28 BENEFIT OF SENIORITY. 28 29 State of Jharkhand V. 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. question of regularizing the incumbent on such a non-existing vacancy. if the candidate concerned was appointed in an irregular manner or on ad hoc basis against an available vacancy which was already sanctioned. But. the court held that the entire service shall be counted for the period of pension. if a temporary or ad hoc service is followed. It has also been ruled that question of confirmation or regularisation of an irregularly appointed candidate would arise. which would extend for the same period after the same interval.” The order came on a bunch of petitions relating to appointment of class IV employees in courts subordinate to the Delhi HC. therefore. 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.LATEST GUIDELINES BY THE SUPREME COURT Recently on 14 Feb. The Bench said: “There can be no doubt that employment. whether of class IV. III. A Bench led by Justice B S Chauhan said all posts shall be filled by issuing advertisements in at least two newspapers. 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. Such employment. 2014. II or any other class in the High Court or courts subordinate to it falls within the definition of public employment.” it said. “The exercise to fill vacancies at the earliest must start in advance to ensure the selected person joins immediately on availability of the post. The dispute had arisen over the continuity of employees appointed an ad hoc basis for 89 days.32 32 http://indianexpress. and hence. has to be made under rules and orders of the competent authority. one of which must be in a regional language with wide circulation. The court said this will also control the menace of ad-hocism. 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.com/article/india/india-others/apex-court-sets-guidelines-to-curb-ad-hoc-appointments/ (visited on – 16th march) 14 . com/article/india/india-others/apex-court-sets-guidelines-to-curbad-hoc-appointments/ (visited on – 16th march) www.indiankanoon.P. Doabia. R. Nagpur: Lexis Nexis Butterworths Wadhwa. Prof. Law relating to Government Servants & Management of Disciplianry Proceedings.S. 2008. Service Laws in India. New Delhi: Orient Publishing Company. The Law of Services and Dismissals.Tiwari. faridabad: allahabad law agency. Justice T. 2011.com 15 . http://indianexpress. Kumar.BIBLIOGRAPHY: D. Majumdar . Narender.K.