AD HOC- EMPLOYEES AND THEIR REGULARISATION
Article 309 of the Constitution of India enables the executive to regulate the recruitment and to make recruitment to the government service. But this power is not absolute it is subjected to the provisions of the constitution and statutes enacted by the appropriate legislature.
The executive has the power to create and abolish any post under government, however, provisions of the Indian constitution (especially articles 14 and 16) and provisions of relevant statutes and statutory rules control this power of the executive.
The appointments to government services are made through the prescribed agency. But, exigencies of administration may sometimes call for the making of ad hoc or temporary appointments. The object behind the exercise of this power is to run smooth administration.
As per Black’s Law Dictionary term “ad hoc” means “something which is formed for a particular purpose”.
If an appointment was made to meet the contingency arising on an account of delay in completing the process of regular recruitment the post due to any reason and it was not possible to leave the post vacant till then, and to meet that contingency an appointment was made, then it could appropriately have called as a “stop gape arrangement” and appointing in the post as “ad hoc”.
Whether an appointment is “ad hoc”, has to be answered on the basis of relevant factors, namely
- Nature of the post,
- The nature of test or selection held for filling up the post,
- The period of the duration with which incumbent availed the post and all the other relevant materials.[1]
DIFFERENCE BETWEEN AD HOC AND REGULAR EMPLOYEES
Supreme Court in State of Rajasthan v. Jagdish Narain Chaturvedi[2], distinguished ad hoc appointment and regular appointment and explained that in order to become an “a member of service”, candidate must conditions, namely:
- The appointment must be in a substantive capacity;
- To a post in the service i.e., in a substantive vacancy;
- Made according to rules;
- Within the quota prescribed for the source.
The court said that ad hoc appointment was always to a post but not to the cadre/service and was also not made in accordance with the provisions contained in the recruitment rules for regular appointment.
STATUS OF AD HOC EMPLOYEES
- The ad hoc employee does not acquire the right to hold the post or to continue in employment indefinitely in contrast to a regular employees, the ad hoc employees are said to form a distinct class.[3]
- Ad hoc have no right to claim regularization of their services. However, they are entitled to be considered along with other eligible candidate. If for any reason such ad hoc employee is continued for a fairly long time, the authorities must consider his case for regularization provided he is eligible for and qualified according to the rules.[4]
- In K.S.P. College Stop-Gap Lecturers association v. state of Karnataka[5] the apex court said that regularization of ad hoc without following regular procedure was an abuse of power which was unpardonable. The court has deprecated the practice as it had become a common method of allowing back door entries.
- In Rattan Lal v. state of Haryana[6], the Supreme Court held that the policy of “adhocism” followed by the state government for a long period has led to the Breach of article 14 of the constitution. If ad hoc employees unnecessarily subjected to an arbitrary “hiring and firing” policy. The Apex court held that though the Government was expected to function as a model employer, yet it appeared to be exploiting the situation, the court said, could not be permitted to last any longer.
COURT RULING ON TERMINATION OF AD HOC EMPLOYEES
- Termination of ad hoc employee at any time is inherent in the nature of service. It had been said that ad hoc employees have no right to the post.[7]
- Merely because in industrial adjudication, an order of termination was quashed as it was not in accordance with law, the workman was held to have no substantive right to hold the post. The apex court held him not entitled to be regularized as permanent employees.[8]
- Ad hoc employee or where the appointment was made de hors the rules and constitutional scheme of public employment the holder of the post does not acquire any rights to hold his post. His service cannot be terminated without affording him any opportunity of hearing.[9]
- No enquiry need to be held before terminating the services of an ad hoc employees.[10]
- Where the terms of appointment order require the issue of a notice of termination, the termination done without such a notice would be bad and cannot be held proper.[11]
- In Babu lal v. State of Haryana[12]The court ruled that where an ad hoc employees was placed under suspension on the sole ground that criminal proceeding was pending against him, which ultimately ended in acquittal, he was entitled to be reinstated in service on being acquitted of the charge.
- In Sumati P. Shere v. Union of India,[13] Supreme Court held that if service of an ad hoc employee were to be discontinued on ground of unsuitability. Timely communication of the assessment of work in such cases might put the employee on the right track, without communication it would be arbitrary to give a movement order to the employee on the ground of unsuitability.
REGULARIZATION OF AD HOC EMPLOYEES
- The executive should make provisions of regularization with the requirement of Article 14 and16 of the constitution. The state should not make 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.[14]
- Appointment made by pick and choose method in an arbitrary manner inconsistent with the requirement of Article 16 are liable to be quashed by the court.[15] And person should ordinarily be drawn from the employment exchange for making ad hoc appointments.
- When the authority before making appointment, neither intimated employment exchange about existing vacancies not issued any advertisement, appointment made without following rules cannot be regularized. The appointment would be void ab initio. An irregularity can be regularized but not an illegality. An illegal appointment, cannot be regularized even by the Supreme Court on sympathetic consideration in exercise of its jurisdiction under Article 142 on misplaced sympathy.[16]
- Deprecating the practice of making back door entry in government jobs, the Apex court held that “those who come by the back door should go through that door.”[17]
- A person appointed on temporary capacity has no right to continue till regular selection. Long continuance of such employees on irregular basis, would not entitle them, to claim equality with regularly recruited employees.[18]
- In case of ad hoc promotion, done without complying with the rules, the promotees, on being regularized cannot claim seniority from the date of their ad hoc promotion.[19] Only regular and not ad hoc service is to be counted towards seniority and grant of higher pay scale.[20]
- Recruitment of temporary, contractual, casual, daily wagers or ad hoc employees dehors the constitutional scheme of public employment, does not entitle them to claim regularization. Such person have no right of legitimate expectation. A temporary appointee is held not to be a member of the service until duly appointed.[21]
- Ad hoc employee did not hold status of Government servant, so the dependents of the said employees, were not entitled to family pension.[22]
- In State of Haryana v. Piara Singh,[23] Supreme Court gave following directions for the regularization of Ad hoc employees;
- The court while giving directions for regularization of ad hoc employees, must act with due care and attention.
- Mere continuance of an ad hoc employee for one year cannot be presumed that there is need for a regular post.
- There can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as the other.
- The employee must have possessed prescribed qualification at the time of ad hoc appointment.
- The condition that employee must have been sponsored by Employment Exchange would be reasonable and wholesome requirement designed to curb back door entry.
- The court cannot direct regularization to help employee who could not satisfy the stipulated conditions.
- Ad hoc should always be replaced by regular selected employee as early as possible. Such a temporary employee may also compete along with others for such regular appointment/selection. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc employee.
- Ad hoc employee is continued for a fairly long spell, the authorities must consider his case for regularization provided, he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the state.
- Also in State of Karnataka v. Umadevi[24] Apex Court expounded the law relating to regularization of daily wagers or those working on casual basis as follows;
- The adherence of the rule of equality in public employment is a basic feature of our constitution. A court would certainly be disabled from passing an order upholding a violation of article 14 and 16.
- That, consistent with the scheme for public employment, unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee
- If it is a contractual appointment, engagement or appointment on daily wages or casual basis the appointment comes to an end when it is discontinued.
The question of regularization of daily wages/temporary/contractual employee was to be considered on merits, in the light of the principles settled in the said decision as a “one-time measure”.
Supreme Court in State of Karnataka v. M.L.Kesari[25] explained “one-time measure” as:
- The term “one time measure” mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time measure exercise and prepare a list of all casual, daily wages or ad hoc employees,
- Who have been working for more than ten years
- That they have so worked in a duly sanctioned post without the benefit of the interim order of any court or tribunal;
- and possess the requisite qualification for the post and if so, regularize their services.
In-state of M.P. v. Md. Ibrahim,[26] t
- The Court distinguished “irregular appointment” and “illegal appointment”, the court said that in the event the appointment was made in total disregard of the constitutional scheme, as also the Recruitment Rules, the recruitment would be an “illegal one”, whereas there might be cases when although substantial compliance with the constitutional scheme as also the Rules had been made, the appointment might be “irregular” in the sense that some provisions of some rules might not have been strictly adhered to.
- Where a person is not appointed against a sanctioned post and not possessing the requisite qualifications for the post and his appointment being in violation of Article 14, without advertisement affording equal opportunity to all eligible for being considered, the question of regularization in such a case would not arise.[27]
In-state of Rajasthan v. Daya lal,[28] ruled that the high court would not give any direction for the creation of posts or to frame a scheme for regularization and that such a direction could not only be given by the Supreme court in the exercise of their powers under Article 142 of the constitution.
[1] Ramesh K. Sharma v. Rajhasthan v. Rajhasthan Civil services, AIR 2001 SC 362wes
[2] AIR 2010 SC 157
[3] Saroj Kumari v. State of Punjab, 1998 SLR (P&H)
[4] Faculty Association P.G.I v. Union of India, 1995 SLR 473 (P&H)
[5] AIR 1992 SC 677
[6] AIR 1987 SC 478
[7] Sunil Kumar v. State of Haryana, 1994 SLR (P&H)183.
[8] Hindustan Petroleum Corporation Ltd. v. Ashoke Rangbha Ambre, 2008 SLR 321 (SC)
[9] Girish Kumar Mishra v. Director Inspector of Schools, 1999 SLR (Raj.) 561.
[10] State of U.P v. Kamla Devi, 1996 SLR (S.C.) 455
[11] Haryana State v. Jagdish Chander, 1997 SLR (P&H) 41.
[12] AIR 1991 SC 1310
[13] AIR 1989 SC 1431
[14] State of Haryana v. Piara Singh, AIR 1992 SC 2130
[15] Sukhdershan Pal Sehgal v. State of Punjab, 1994 SLR (P&H) 228
[16] Municipal Corporation Jabalpur v. O.P. Dubey, AIR 2007 SC 893
[17] State of U.P. v. U.P. State law officers Association, (1994) 2SCC 204
[18] State of U.P. v. Ram Adhar, AIR 2008 SC 3243
[19] Md, Israil v. state of W.B. AIR 2002 SC 511
[20] State of Punjab v. Ashwini Kumar, AIR 2009 SC 186
[21] V. Srinivasa Reddy v. Government of A.P. AIR 1995 SC 586
[22] State of Haryana v. shakuntala devi, AIR 2009 SC 869
[23] AIR 1992 SC 2130
[24] AIR 2006 SC 1806
[25] (2011) SLR 598 (SC)
[26] AIR 2009 SC 3306
[27] Ram Sevak Yadav v. State of Bihar, (2013) SLR 4
[28] AIR 2011 SC 1193