Ad Hoc Promotion Creates No Right to Regularisation or Seniority, Supreme Court Rules

NEW DELHI — An employee promoted on an ad hoc, stop-gap basis acquires no vested right to be regularised in the higher post and cannot claim seniority from the date of the ad hoc order, the Supreme Court held on 14 October in State of Odisha v. Pradeep Nayak, setting aside a High Court direction to count five years of ad hoc service for seniority.

The respondent, a junior engineer in the state public works department, was promoted as assistant engineer "on ad hoc basis until further orders" in 2014 because the Departmental Promotion Committee had not met. He was regularly promoted in 2019 after the DPC convened, and then sought seniority in the cadre from 2014. The Orissa High Court granted it, reasoning that the delay was the department's and that he had discharged the higher duties throughout. The Supreme Court reversed.

"A stop-gap arrangement cannot ripen into a right by the passage of time," the bench said.

What is an ad hoc promotion?

Government recruitment rules prescribe how each post is filled: by direct recruitment, by promotion through a Departmental Promotion Committee that assesses eligibility and merit, or by a mix of the two. When a post falls vacant and the DPC cannot meet in time — because the seniority list is under challenge, the rules are being amended or the department is simply slow — the administration often promotes the senior-most eligible officer "on an ad hoc basis", "as a stop-gap arrangement" or "until further orders" so that the work is done.

Such an order is not a promotion under the rules. It is an administrative arrangement to fill a gap, made without the selection process the rules require, and it is expressly provisional. That is why the law treats it differently from a regular promotion.

What the Supreme Court held

1. No vested right to the post. An ad hoc promotee holds the higher post at the pleasure of the appointing authority and can be reverted when the regular selection is made, without any inquiry, because nothing has been taken away from him.
2. No right to regularisation. Regularisation in the promotional post can come only through the DPC under the rules. An order of the court directing regularisation from the ad hoc date would amount to promotion by judicial decree, bypassing the rules and prejudicing others in the feeder cadre.
3. Seniority from regular promotion. The respondent's seniority among assistant engineers runs from 2019. Counting the ad hoc period would place him above officers who were regularly promoted earlier on merit — the mischief the Constitution Bench warned against in Direct Recruit.
4. Delay is not a licence. Where the department's delay in holding a DPC prejudices an eligible officer, the remedy is a direction to convene the DPC within a fixed time, not a direction to treat ad hoc service as regular service.

A stop-gap arrangement cannot ripen into a right by the passage of time.

From the judgment

The settled law the bench applied

• Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715. A Constitution Bench laid down that once an incumbent is appointed to a post according to the rules, seniority counts from the date of appointment and not from confirmation; but where the initial appointment is only ad hoc or as a stop-gap arrangement, not according to the rules, the period of officiation cannot be counted for seniority.
• State of Haryana v. Haryana Veterinary & AHTS Association, (2000) 8 SCC 4. Ad hoc service rendered before regular appointment does not count for seniority unless the rules provide otherwise.
• Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. A Constitution Bench held that persons appointed irregularly or illegally have no right to regularisation because of long service, and that courts should not direct regularisation contrary to the rules; it permitted a one-time regularisation of irregular, but not illegal, appointees with more than ten years of service as on the date of the judgment.

The bench noted that some High Courts had read later decisions as creating an equitable exception where the delay was entirely the department's fault, and held that no such exception can override the rules governing the cadre.

When ad hoc service can count

The ruling leaves three situations untouched:

• where the service rules themselves provide that ad hoc or officiating service in the higher post will count for seniority or for the qualifying period for the next promotion;
• where the ad hoc promotion was in fact made according to the rules — against a clear vacancy, from the eligible feeder cadre, in order of seniority — and was followed by regularisation without a break, which Direct Recruit treats as regular service; and
• where the DPC, when it finally meets, assigns notional dates of promotion under the applicable instructions, a matter for the DPC rather than the court.

What it means for government employees

• If you are on an ad hoc promotion: ask in writing for the DPC to be convened and keep the acknowledgement. If nothing happens within a reasonable time, the tribunal or High Court can direct the department to hold the DPC, but it will not count your ad hoc years.
• If you are in the feeder cadre: an ad hoc promotee senior to you in the higher post gains no seniority over you; your inter-se position is decided at the DPC.
• If you are facing reversion: reversion of an ad hoc promotee on regular selection is not punishment and needs no inquiry. Reversion for misconduct does.

What it means for departments

The judgment is also a caution against leaving ad hoc arrangements in place for years. The bench observed that the state had allowed the DPC to lapse for five years, and that litigation of this kind is the predictable result. Ad hoc orders should state that they are made pending regular selection, carry no right to seniority and are liable to be reverted; and DPCs should be held on the calendar the rules prescribe.

The Counsel will update this report when the judgment is uploaded. Employees affected by an ad hoc promotion or a pending DPC should consult a qualified service-law practitioner about their own position, which depends on the recruitment rules of their cadre.

This report is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances. Case citations are to The Counsel Reports (TCR) unless otherwise stated.