JAMIA MILLIA ISLAMIA

Faculty of law

SEMINAR - II

Topic
STATUS OF AD-HOC EMPLOYEES

Submitted to:

Dr. Musadir Farooq Ma’am,

(Faculty of Law, Jamia Millia Islamia, New Delhi)

Submitted by:

Naman Jain

Roll no:41

Enroll ID: 20188896

B.A.LL. B (Hons) Self-Financed

10th Semester

Batch: 2018-202

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 ACKNOWLEDGEMENT

I would like to convey my heartiest thanks to our service law lecturer “Dr. Musadir Farooq
Ma’am,” for giving me project on the topic “STATUS OF 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.

NAMAN JAIN

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 CONTENTS

SERIAL NAME OF TOPIC PAGE

NO. NO.

1. Introduction 5
2. Meaning of Ad hoc appointment 5
3. Adhocism- Arbitrary and Discriminatory 6
4. Status of Ad hoc employees 7
5. Rights of Ad hoc appointees 7,8
6. Procedure for making ad hoc appointments 8
7. Protection available to ad hoc employees 9
8. Termination of service 9,10
9. Regularization of ad hoc employees 10
10. Counting of service towards seniority 12
11. Benefit of seniority, promotion, pension to ad hoc employees 13
12. 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)

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 ● 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

A. Introduction

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.

B. Literature Review :

1 J.&K Public Service Commission V. Narinder Mohan AIR 1994 SC 1808

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For this article, the author undertook a literature review of the subject to gain a deep
understanding of the idea of adhoc employees and their situation in regular life. The author
also referred to various articles of constitution, case laws and recent updates and judicial
pronouncements. The author studied and reviewed relevant Statutes, Rules, Standard
Operating procedures, Regulations, and Government Notifications and Policies released by
the concerned authorities pertaining to the aforementioned subject matter. The research is
based around various Committee Reports, Government Schemes, policies, survey reports,
studies and researches conducted by various public and private bodies, law experts,
policymakers, etc. The authors also took help from several newspaper reports and articles to
gather the facts and figures about the on-ground realities.

C. Hypothesis:

The tentative assumption on which this study proceeds is that “Basic idea about the meaning
of ad hoc employees their rights and articles by which they governs.”

D. Chapterization:

The underlying aim of this research paper is to explain the status of ad hoc employees. For
this purpose, the paper has been divided into 12 chapters. Chapter One introduces the reader
to the topic of research, research methodology, hypothesis, and research objectives. Chapter
Two deals with the very concept of ad hoc appointment. Chapter Three talks about how this
is arbitrary in nature and discriminatory. Chapter four discusses the status and rights of ad
hoc employees whereas Chapter Five deals with the procedure for making an appointment
of ad hoc employees. Chapter Six deals with cases of what are the protections available to
the ad hoc employees. Chapter Seven basically deals with termination of service of ad hoc
employees. Chapter Eight lays down regularization of ad hoc employees and counting of
services towards seniority. Chapter Ten talks about the benefits of seniority, promotion,
position, pension to ad hoc employees. Chapter Eleven discusses the latest guidelines given

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the supreme court and latest updates on ad hoc employees. Chapter Twelve is the concluding
part of the research paper which ends with certain constructive suggestions.

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 Black’s 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
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

2 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

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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

5 J.M. Puthnparambil V. Kerala Water Authority, AIR 1990 SC 2228

6 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

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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
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 citizens 11, 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

10 Rattan lal V. State of Haryana AIR 1987 SC 478

11 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

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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,14 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 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.15

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. iii. 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

14 (1992)4 SCC 33
15 P.K. Majumdar and O.P. Tiwari, “Service Laws in India”, 3rd ed, Orient Publishing Company, pg-189

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 reduction in rank so as to attract Article 311(2) of the Constitution of India, unless it is
shown that it was:
a) intended to be a measure of punishment,
b) the cast any stigma,
c) was otherwise malafide; or
d) it inflicts upon the delinquent civil consequences of a penal nature.
iv. 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.

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
Employment Exchange, some appropriate method consistent with Articles 14 and 16 should
be followed16.

PROTECTION AVAILABLE TO AD HOC APPOINTEES

The ad hoc appointees are entitled to twin protections:

16 Supra 8 pg- 178

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 a) Minimum of pay scale;
b) Continuance till regular incumbents joins.17
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

17 Supra 3 pg-757

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of appointment i.e. permanent, temporary or ad hoc, a person eligible for promotion has a
right to be considered.18

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 Ambre19, 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, 20the 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
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
18 O.P. Gupta V. M.C. Delhi, 1973(1) SLR 209
19 2008(2) SLR 321 (SC)
20 1967(1)SLR 128 (SC)
AIR SC

12
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.

22
1989 1431
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.

AIR SC

13
 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

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1992 2130
temporary employee may also compete along with others for
such regular appointment/selection.
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 Mohan 24, 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,

AIR SC

14
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.

24
1994 1808
In Ashwani Kumar V. State of Bihar, 21 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
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.

21 AIR 1997 SC 1628

26
1990 1607
AIR SC

15
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 Maharashtra 26, 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.

AIR SC

16
In Ram Paul Khajuria V. State of Jammu and Kashmir22, 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 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

22 (J&K) 1999 (1) SCT 729

17
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.

AD-HOC APPOINTMENTS/PROMOTIONS IN CENTRAL CIVIL POSTS AND

SERVICE
Note:- While due care has been taken to compile this document, however, if any omissions or
correction are noticed, the same may be brought to the notice of the Department of Personnel &
Training.

18
28
State of Jharkhand V. Manshu Kumbhkar, 2008 (1) SLR 1 29
Supra 3 pg- 764
30
1999 (5) SLR 497 (P. & H).
31
(2006) 6 SCC 558
(I) GENERAL PRINCIPLE
All posts are required to be filled in accordance with the prescribed procedure, in terms of the
Recruitment Rules (RRs) and on a regular basis. However, at times, for reasons beyond the
control of the Cadre Controlling Authority/Administrative Ministry/ Department, it may not
be possible to make regular appointments/promotions in the normal course. While such posts
should ideally be kept vacant till they can be filled on regular basis, in exceptional
circumstances, where a post cannot be kept vacant for functional reasons/exigencies of work,
or where ‘Deputation as an alternative method of recruitment has not been prescribed in the
RRs, the post may be filled up on ad-hoc basis as the last resort. Thus, ad-hoc
appointment/promotions are to be made in rare cases, in order to meet the functional
requirement of the organisation while keeping the policy imperative that all posts have to be
filled on regular basis. While making ad-hoc appointment/promotion, it may be noted that
persons appointed on ad-hoc basis to a grade are to be replaced by persons approved for
regular appointment by Direct Recruitment, promotion or deputation, as the case may be, at
the earliest opportunity.

(II) GROUNDS FOR MAKING AD-HOC APPOINTMENT/PROMOTION

(a) Where any service matter relating to regular promotions, viz. seniority list of feeder
grade, etc., has been challenged in any Tribunal/Court and the matter is sub-judice and where
the Tribunal/Court might have given injunction not to make regular appointment/ promotions
till the matter is disposed of by the Tribunal/ Court, making regular appointments/
promotions, may not be possible. In such rare circumstances, where the cases have been
pending for long before the Tribunal/Court and the Cadre Controlling Authority/
administrative Ministry/Department is unable to make regular appointment/ promotion and
where the post cannot be kept vacant on functional grounds, ad-hoc promotion may be
resorted to. (b) Where short-time vacancies have arisen due to the regular incumbent having
proceeded on leave for more than 45 days, or on short-term deputation, etc. (of less than one
year) and the post cannot be kept vacant on functional grounds, the vacant post may be filled
on ad-hoc basis.

19
(c) Where Direct Recruitment quota has not been filled and the RRs do not provide for filling
it up by transfer on deputation temporarily, and if the post also cannot be kept vacant on
functional grounds, the post may be filled on ad-hoc basis.
III. CIRCUMSTANCES WHERE AD-HOC APPOINTMENT/PROMOTION MAY
NOT BE RESORTED TO

(a) ABSENCE OF RECRUITMENT RULES –

Ad-hoc appointments are frequently resorted to on the grounds that Recruitment Rules (RR)
for the post are in the process of being framed. In terms of DoPT O.M. No.39021/5/83-Estt.
(B) dated 09.07.1985 and OM No. AB 14017/79/2006-Estt.(RR) dated 06.09.2007,
Ministries/Departments can make regular appointments in Group ‘A’ or Group ‘B’ posts
under ‘One Time Method’ by making a reference to the Union Public Service Commission
(UPSC) for
deciding the method of recruitment to that post. Further action to fill the post may be taken
according to the advice tendered by the UPSC. All such appointments will be treated as
regular appointments. Further powers have been delegated to Ministries/Departments to
frame/amendment Recruitment Rules for Group ‘C’ posts without consultation with DoPT.
Such posts are in any case outside the purview of the UPSC. Therefore, no ad-hoc
appointment may be made on the grounds that RRs for the post do not exist.

(b) REVISION OF RECRUITMENT RULES –

Ad-hoc appointments are also frequently resorted to on the grounds that proposals are under
consideration to amend the existing RRs. The legal position is that posts are required to be
filled as per eligibility conditions prescribed in the rules in force at the time of occurrence of
the vacancies, unless the amended RRs are brought into force with retrospective effect. In
fact, the practice has been to give effect to the amendments in the recruitment rules only
prospectively. Therefore, it is incumbent that appointment to a post is made strictly in
accordance with the provisions of the RRs in force at the time when the vacancy arises. No
ad-hoc appointment/promotion may be made on the grounds that RRs are being revised/
amended.

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(c) SHORTAGE IN DIRECT RECRUITMENT QUOTA
(i) Ad-hoc appointment/promotions are also made on the grounds that adequate number of
qualified candidates has not been recommended by the recruiting agency (UPSC/SSC etc.)
against the direct recruitment quota. In some cases, the candidates recommended by the
SSC/UPSC do not join or they join only to resign thereafter, resulting in posts remaining
unfilled. It has been provided in DoPT’s O.M. No. 39020/18/2016-Estt.(B)/3127101 dated
19.12.2016 that all Cadre
Controlling Authorities are required to take advance action for reporting direct recruitment
vacancies to the recruiting agency for timely filling up of these vacancies. Further, in terms
of DoPT OM No.22011/4/2013-Estt(D) dated 08.05.2017, the Vacancy Year has been
changed to calendar year wise with effect from 2019. Consequently, all Cadre Controlling
Authorities are required to calculate vacancies falling under each method of recruitment i.e.
promotion quota and direct recruitment quota for the entire vacancy year. It would therefore
imply that the Cadre Controlling Authorities would correctly calculate all direct recruitment
vacancies and thereafter report, all the vacancies so calculated falling under direct
recruitment quota in a particular vacancy year, to the recruiting agency (UPSC/SSC) for
selection. Hence, the occasion for continuation of ad-hoc promotion or for making fresh ad-
hoc appointment/promotion should not arise, due to under reporting of direct recruitment
vacancy.
(ii) Wherever feasible, posts may be allowed to remain vacant until qualified candidates
become available at the next examination.
(iii) Wherever the Recruitment Rules for the posts provide alternative method of recruitment
i.e. not only by direct recruitment but also by on deputation, efforts may be made to fill those
vacancies by the alternative method of deputation, if the post cannot be kept vacant {until
candidates recommended by UPSC/SSC are available} rather than fill the post on ad-hoc
basis.

IV. CONDITIONS FOR MAKING AD-HOC APPOINTMENTS/ PROMOTIONS

(a) Where ad-hoc appointment is by promotion from the feeder grade(s), only those officers
who fulfil the eligibility conditions prescribed in the Recruitment Rules, should be

21
considered for ad-hoc appointment/promotions and such appointment/promotion may be
made only after proper screening of the records of the officer by the Selection Committee (in
lieu of Departmental Promotion Committee) and acceptance by the Appointing Authority. If,
however, there are no eligible officers, necessary relaxation should be obtained from the
competent authority in exceptional circumstances.
(b) If the appointment proposed to be made on an ad-hoc basis involves the approval of the
Appointments Committee of the Cabinet (ACC), prior approval of ACC may be obtained
before making an ad-hoc appointment/ promotion.
(c) The claims of Scheduled Castes and Scheduled Tribes in ad-hoc promotions shall be
considered in accordance with the guidelines contained in the DoPT’s O.M. No.
36011/14/83-Estt.(SCT) dated 30.04.1983. Reservation in promotion in general have to be
considered in accordance with provisions of DoPT’s O.M. No. 36012/16/2019-Estt. (Res.)
dated 12.04.2022.
(d) No ad-hoc appointment shall be made from the open market. Where the vacant posts
cannot be kept vacant for functional considerations, efforts may be made to entrust the
additional charge of the post to a serving officer under provisions of FR-49, failing which
only appointment by adhoc promotion/ ad-hoc deputation may be considered.
(e) Further, Ministries/ Departments may desist from making ad-hoc deputation, till
finalization of the selection of candidate by the UPSC for appointment on deputation basis.
(f) Where the appointing authority is not the Ministry, the authorities competent to approve
ad-hoc appointments may be decided by the Administrative Ministries themselves. The
competent authority so authorized by the Ministry should be one level higher than the
appointing authority prescribed for that post.
(g) The ad-hoc promotion of officials who are under Suspension or in respect of whom
charge sheet has been issued and disciplinary proceedings are pending or in respect of whom
prosecution for a criminal charge is pending shall be governed by instructions contained in
DoPT’s OM No. 22011/4/91-Estt. (A) dated 14.9.1992 on ‘sealed cover’ procedure. (h) The
appointment made on ad-hoc basis, will not bestow upon the official a claim for regular
appointment and the service rendered on ad-hoc basis in the grade would not count for the
purpose of seniority in that grade or eligibility for promotion to the next higher grade.
Absence of mention of this provision in the Order on ad-hoc appointment/promotion may

22
lead to adverse judgements of Tribunal/Courts where the Government may be forced to
regularise the services of an ad-hoc appointee. Hence, this provision should be mandatorily
incorporated in all the orders of ad-hoc appointment/ promotion.
(i) The total period for which the appointment/promotion may be made by the respective
Ministries / Departments on an ad hoc basis will be limited to one year only. The practice
of giving a break periodically and reappointing the same person on an ad-hoc basis may
be strictly avoided.
In case there are compulsions for extending the ad-hoc appointment/promotion beyond one
year, the approval of DoPT would be required. Reference to DoPT in this regard may be
made along with proper justification and detailed information as per the prescribed proforma
circulated vide OM No. 28036/3/97-Estt.(D) dated 26.08.1997 at least two months in
advance before the expiry of the one-year period. If the approval of DoPT to the continuance
of the ad-hoc arrangements beyond one year is not received before the expiry of the one-year
period the ad hoc appointment /promotion shall automatically cease on the expiry of the one-
year term.
(j) For posts in Group ‘C’, the total period to make and continue ad-hoc
appointment/promotion would be three years subject to fulfilment of all other norms.
(k) In terms of DoPT’s O.M. No. 39036/02/2007-Estt(B) dated
14.11.2008,
Ministries/Departments are to comply with the regulation-4 of the UPSC (Exemption from
Consultation) Regulations, 1958, which provide that if a temporary or officiating
arrangement made by ad-hoc appointment to a post falling within the purview of UPSC is
likely to continue for a period of more than one year from the date of appointment, the
Commission shall immediately be consulted in regard to filling up of the post. Requisite
monthly and six-monthly returns, in terms of DoPT’s OM No. 39021/1/94-Estt.(B) dated
22.07.1994, are to be submitted by the Ministries/Departments to the Commission showing
all such Group 'A' and ’B' Gazetted appointments and promotions made without reference to
the Commission as per the time schedule prescribed so as to effectively monitor the ad-hoc
appointments being resorted to by various Ministries/Departments without consulting the
UPSC.

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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.23

Latest Updates About Ad Hoc Employess :

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

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 ● Article 226 | Court Cannot Re-Appreciate Evidence Already Considered
By Departmental Authorities: Delhi High Court24

Court can't go into proportionality of punishment unless it shocks the conscience.

The Delhi High Court has held that it cannot, while exercising jurisdiction under Article 226 or
227 of the Indian Constitution, in cases of departmental enquiries, re-appreciate evidence which
has already been reasonably considered by the departmental authorities.

A bench of Justice Chandra Dhari Singh also noted that it was not up to the High Court to adjudge
upon the proportionality of the punishment in such cases. It observed,

"It is not at all open to this Court to re-appreciate the evidence in exercise of its jurisdiction under
Articles 226/227 of the Constitution of India. Equally, it is not open to the High Court, in exercise
of its jurisdiction Under Article 226/227 of the Constitution of India, to go into the proportionality
of punishment so long as the punishment does not shock the conscience of the court."

The facts of the case are that the petitioner, working as an employee of the Canara Bank was
charged on grounds of irregularities in some group accounts. The charges against the petitioner
included recommending enhancement without assessing the proposal or verifying the party's merit
for enhancement, permitting overdrawings of huge value to party even though DP in the account
was not available, releasing enhanced limit to party without complying with sanction terms and
conditions, misrepresenting facts to circle office, not classifying an account NPA despite it being
one, among other things.

After inquiry, the Petitioner was removed from the services. He preferred an appeal against the
same but the Appellate Authority rejected the same on the ground that it found no reason to
interfere with the orders of the Disciplinary Authority.

In the instant proceedings before the High Court, it was noted that in the departmental
proceedings, the misconduct alleged against the petitioner regarding irregularities in the group
accounts were proved. It also noted that the findings of the Disciplinary Authority and the
Appellate Authority were given after giving appropriate opportunities to the Petitioner to defend
his case.
24 Siba Prasanna Pathy v. State of Odisha & Ors 2022 LiveLaw (Ori) 94.

25
The petitioner had submitted that CBI had initiated proceedings in the matter and acquitted him
from all the charges levelled against him. Here, the court noted that the criminal court acquitted
the Petitioner on the ground that the prosecution failed to prove the case against him beyond
reasonable doubt. On the contrary, in the departmental proceedings, the misconduct of the
Petitioner had been established and proved. The court stated that-

"As per the Principles of Law, an acquittal in criminal trial has no bearing or relevance on the
disciplinary proceedings, since both the cases are different in nature and proceedings operate in
different fields with different objectives."

The court also noted that when the disciplinary authority and the appellate authority had both
gauged the evidence, it was settled law that the High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the
evidence.

26
The
court noted that the Disciplinary Authority, after dealing with the inquiry report, discussing
the available and admissible evidence on the charge by way of giving detailed reasoning and
findings, had found that the Inquiry Officer reached on the conclusion that the Petitioner was
guilty for the charges levelled against him, after considering all the aspect pertaining to the case
and the entire evidence on record. The Appellate Authority had also, while dealing with the
appeal, passed a well-reasoned order upholding the finding of the Inquiry Officer and Disciplinary
Authority.

Therefore, the court held that it was not open to it to re-appreciate the evidence.

"Where the person deals with public money or is engaged in financial transactions or acts in a
fiduciary capacity, the highest degree of integrity and trustworthiness is a must and
unexceptionable...No doubt, there are no measurable standards as to what is integrity in service
jurisprudence but certainly there are indicators for such assessment."

● Ad Hoc Employee Can't Be Replaced By Another Ad Hoc Employee;

Can Be Replaced Only By Regular Employee : Supreme Court25

The Supreme Court has reiterated that an ad hoc employee cannot be replaced by another ad hoc
employee and can be replaced by only a regularly appointed candidate.

"It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc
employee and he can be replaced only by another candidate who is regularly appointed by
following a regular procedure prescribed", the Court observed.

Reliance in this respect was placed on the judgment of the Supreme Court in the case of Rattan

Lal and others vs. State of Haryana(1985) 4 SCC 43 and others and on the order in the case of
Hargurpratap Singh vs. State of Punjab and others (2007) 13 SCC 292.

25 Manish Gupta and another versus Jan Bhagidari Samiti and others 2022 LiveLaw (SC) 406

27
The
A Bench comprising Justices L Nageswara Rao and BR Gavai made this observation while
considering appeals related to appointment of teachers in colleges in Madhya Pradesh.

appellants were appointed as guest teachers on contractual basis under the "Jan Bhagidari
Scheme" in Madhya Pradesh. After the end of the academic year, their services were terminated
and a fresh notification was issued. Aggrieved with that, the appellants approached the High
Court. A Single Bench granted them relief by directing that they should be allowed to continue to
work on their respective posts till regular selections were made. The Single Bench direction was
set aside by a Division Bench on State's appeal. This led the appellants to approach the Supreme
Court.

The Supreme Court observed that even though it was strenuously urged by the State that the
appointments of the appellants were as guest lecturers and not as ad hoc employees, from the
nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc

basis.

Therefore, the court did not fine any error in single judge's direction directing the writ petitioners
to continue to work on their respective posts till regular selections are made.

The Bench however held that the direction issued by the single judge of the High Court that the
writ petitioners would be entitled to get the salary in accordance with the UGC circular is not
sustainable, as the advertisements clearly provided that the selected candidates would be paid the
honorarium to be determined by the Jan Bhaghidari Committee.

The Court has held that the appellants would be entitled to continue on their respective posts till
they are replaced by regularly selected candidate.

Further, they would be entitled to honorarium at the rate of Rs.1,000/ per hour as is being paid to
them presently.

28
The
● Denying Pension To Ad-hoc Employee After 30 Years Service Is
Unreasonable: Supreme Court26

The Supreme Court recently expressed its displeasure on State of Gujarat denying pension to an
ad hoc employee who rendered 30 years of continuous service.

bench of Justices MR Shah and BV Nagarathna was considering a SLP assailing Gujarat
High Court's order wherein the High Court had directed the State to pay pensionary benefits to the
respondent who has retired after rendering more than 30 years service.

Remarking that taking the Services continuously for 30 years and thereafter to contend that an
employee who has rendered 30 years continuous service shall not be eligible for pension is
nothing but unreasonable, the bench dismissed State's SLP.

"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30
years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he
is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of
its own wrong. To take the Services continuously for 30 years and thereafter to contend that an
employee who has rendered 30 years continues service shall not be eligible for pension is nothing
but unreasonable. As a welfare State, the State as such ought not to have taken such a stand,"
bench said in its order.

The court also said that the High Court had not committed any error in directing the State to pay
pensionary benefits to the respondent who had retired after rendering more than 30 years service.

26 The State of Gujarat & Ors v Talsibhai Dhanjibhai Patel 2022 LiveLaw (SC) 187.

29
 BIBLIOGRAPHY:
BOOKS :

● 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.

WEBSITES :

● http://indianexpress.com/article/india/india-others/apex-court-sets-guidelines-to-
curbad-hoc-appointments/ (visited on – 16th march) ● www.indiankanoon.com.
● https://www.livelaw.in/search?search=updates+on+adhoc+employess.

STATUTES :
● Constitution Of India, 1950.

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