Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5807 OF 2003
Arjun Sopan Gaikwad )
Aged 54 years, son of Shri Sopan, )
presently working as Office )
Superintendent at the Office of CGHS, )
Mukund Nagar, Pune and resdiing at )
18/9, Defence colony, Lullanagar, )
Pune – 411 040. .. .. .. ).. .. .. Petitioner.
Versus
1) The Union of India )
through the Secretary, Ministry )
of Health & Family Welfare, )
Nirman Bhavan, New Delhi - )
110 011 . .. .. .. )
2) The Director, C.G.H.S., Nirman )
Bhavan, New Delhi – 110 011. )
3) The Additional Director )
C.G.H.S., Mukund Nagar, )
Pune – 411 037. )
4) Shri M. C. Shrivastava, )
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Office Superintendent, Office )
of Additional Director, Sangam )
Palace, Allahabad. ).. .. .. Respondents.
Mr. S. P. Saxena for Petitioner.
Mr. Suresh Kumar for Respondent Nos.1 to 3.
None for the Respndents.
CORAM : V. G. PALSHIKAR and
V. R. KINGAONKAR, JJ.
DATED : 17TH MARCH, 2006.
JUDGMENT (Per: Kingaonkar, J.) :
This petition is preferred against dismissal of Original
Application No. 129 of 2000 by the Central Administrative Tribunal (for
short `Tribunal') whereby the Petitioner's claim for placement of his
name in the seniority list above the name of Respondent No.4 was
rejected.
2. There is no dispute about the fact that the Petitioner was
appointed on regular basis to the post of Lower Division Clerk w.e.f.
th th
16 October, 1978 and was promoted as Upper Division Clerk w.e.f. 9
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April, 1984. The next promotion available to him was in the post of
Office Superintendent. The criteria for such promotion is ''Seniority-
cum- Fitness'' by non-selection method from amongst Upper Division
Clerks / Stenographers Grade II employees with 5 years service in the
grade and minimum 2 years experience of administrative work.
3. One Shri R. Kailash was promoted as Administrative Officer
and as such post of Office Superintendent in CGHS Office at Pune had
fallen vacant. The Petitioner was appointed as Office Superintendent in
th
the said vacant post w.e.f. 10 July, 1992. His promotion was effected
with a rider that the appointment will not confer any right for
regularisation of the same or for benefits such as seniority, etc. on a
future date. It was made clear that the Appointing Authority reserved
right to terminate the adhoc appointment without assignng any reason
or giving notice to the Petitioner.
4. Subseqeuntly, the Petitioner was selected by Departmental
Promotion committee as per the rules and his appointment to the
th
promotional post was regularised w.e.f. 14 March, 1996. Respondent
No.4 came to be promoted to the post of Office Superintednent w.e.f.
th
4 August, 1996, during the period the Petitioner was officiating on
such promotional post as an adhoc promotee.
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5. The Petitioner has come out with the case that though he
ranked senior to Respondent No.4, yet in the seniority list he is
wrongly shown below the name of Respondent No.4. He made
representation for correction of the seniority list which request,
however, was rejected. He preferred Original Application No. 129 of
2002 before the Central Administrative Tribunal, Bombay Bench,
Bombay. By the impugned order the Tribunal dismissed the Original
Application and rejected the claim of Petitioner for seniority over and
above Respondent No.4.
6. We have heard learned Counsels for the Petitioner and
Respondent Nos.1 to 3. None appeared for Respondent No.4. We are at
a loss to know the stand adopted by Respondent No.4. For, he has not
filed reply affidavit too. On behalf of the Petitioner, learned Counsel
contended that the seniority of the Petitioner in the cadre should have
been counted from the date he joined the promotinal post and not
from the date of regularisation of his services in the promotinoal post.
It is argued that exclusion of the period for which the Petitioner held
the promotional post on adhoc basis is per se illegal and incorrect. It is
contended that when the Petitioner was appointed by following due
procedure and continued to work on the promotional post since much
before Respondent No.4 was promoted, his claim for seniority could
not have been rejected. It is pointed out that the adhoc promotion of
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the Petitioner was continued from time to time until it was regularisd
after selection by the Departmental Promotion Committee. On the
other hand, learned Counsel for Respodnent Nos.1 to 3 submitted that
the benefits of adhoc services were not available to the Petitioner and
his claim has been rightly rejected by the Tribunal.
7. Before we proceed to examine merits of the Petitioner's
claim, it may be noticed that he was promoted from time to time and
the post of Office Superintednent could be filled by promotion in
accordance with the instructions contained in the Notification No.
A.12018/37/85- RR/CGHS.I/CGHS(P) issued by the Government of India.
These Rules (Exhibit `A') regulate the method of recruitment to the
Group `C' post of Office Superintendent in the Central Government
Health Scheme, outside Delhi. Rule 7(2) reads as follows:
``(2) The regular continuous service of officers mentioned
in Sub-Rule (1) above, prior to their appointment to
the posts shall count for the purpose of probation
period, qualifying service for promotion, confirmation
and pension.''
These rules do not exclude, in any manner, the period spent on
promotinal post between adhoc appointment and regularisation of
promotion. There is no rule to reckon seniority from the date of
regularisation or confirmation of a promotee.
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8. It is undisputed that post of Office Superintendent at Pune
was a permanent substantive post as shown in the Schedule appended
with Rules ( Exhibit- A) and there were similar posts at other places
like Allahabad, Delhi, Meerut, Nagpur and so on and so forth. There are
in all 15 such posts in the same scale of pay. The post of Office
Superintendent is a non-selection post. Further, there is no direct
recruitment provided for the said post. Thus the post could be filled
only by promotion from amongst those who were working as
U.D.C./Stenographer with experience as mentioned in column 12 of the
Schedule. The petitioner was admittedly qualified for such
promotional post. His promotion to the post of Administrative Officer
cannot be regarded as the promotion contrary to any recruitment
de hors
Rules or the Rules.
9. At this juncture, we shall turn to the affidavit of Dr. M.D.
Mohapatra, Joint Director, Government of India, C.G.H.S. It is stated in
the affidavit of Dr. Mohapatra that there was no post of Administrative
Officer available in C.G.H.S., Pune, prior to promotion of Shri R.
Kailash, since that post was newly created. The promotion of Shri R.
Kailash, who was predecessor in chair of the petitioner, was also made
on ad-hoc basis because had that post been abolished at subsequent
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point of time, then he could be reverted to the substantive post. It is
for such reason that the petitioner was also given ad-hoc promotion. It
is further stated that on appointment of Shri R. Kailash to the post of
Administrative Officer on regular basis, the petitioner was also
promoted on regular basis but both of them were not entitled to claim
the benefit of ad-hoc services as per the terms and conditions of their
th
appointment. True, the office order No. 36 (Exh. R-2) dated 27 July,
1992, reveals that the petitioner was promoted on ad-hoc basis and
he was not entitled to claim any right for regularisation of the
promotion or for benefits such as seniority, etc. on a future date.
10. The question is not as to whether the petitioner had any
right to claim regularisation of promotion when the initial promotion
was on an ad-hoc basis. The real issue is as to whether after
regularisation of the promotion, the seniority relates back to the date
of initial promotion. We are aware that benefit of ad-hoc service is not
admissible if appointment/promotion was in violation of the service
Rules. The general rule is that length of service in the cadre would
count for reckoning seniority of an employee. The date from which
seniority is to be reckoned may be laid down by rules or instructions.
If the seniority rule did provide for recognition of seniority from the
date of regularisation of promotion, then the stand of Respondent Nos.
1 to 3 could be proper. On behalf of respondent Nos. 1 to 3, reliance is
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State of W.B. and others
placed on certain observations in the case of vs.
I Aghore Nath Dey and others [ (1993) 3 SCC 371] . The Apex Court
has held that benefit of ad-hoc service is not admissible, if
appointment was in violation of rules. It is further held that the
corollary set out in Direct Recruitment Class II Engineering Officers'
Association's case [ (1990) 2 SCC 715] disallows benefit of ad-hoc
appointment made as a stop gap arrangement, whereas it allows
benefit of service in cases where there was procedural irregularity in
making appointments according to rules and this irregularity was
subsequently rectified. This authority is of no much help to the case of
respondent Nos. 1 to 3.
11. Rule of continuous officiation is duly recognised as a
criteria for counting of seniority in the parlance of service
G.P. Doval and others Chief Secretary,
jurisprudence. In case of vs.
Government of U.P. and others, [ (1984) 4 SCC 329] it is observed :
“ ``Where officiating appointment is followed by
confirmation, unless a contrary rule is shown, the service
rendered as officiating appointment cannot be ignored
for reckoning length of continuous officiation for
determining the place in the seniority list. If the first
appointment is made by not following the prescribed
procedure but later on the appointee is approved making
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his appointment regular, then in the absence of a
contrary rule, the approval which means confirmation by
the authority which had the authority, power and
jurisdiction to make appointment or recommend for
appointment, will relate back to the date on which first
appointment is made and the entire service will have to be
computed in reckoning the seniority according to the length of
continuous officiation
. If a stopgap appointment is made
and the appointee appears before the Public Service
Commission when the latter proceeds to select the
candidates and is selected, there is no justification for
ignoring his past service. At any rate, there is no
justification for two persons selected in the same manner
being differently treated.''” (emphasis supplied)
It need not be reiterated that the petitioner was promoted to a
substantive post although the promotion was termed as ad-hoc since
it depended on the fate of the promotional post of Administrative
Officer being formally approved after the creation thereof. The
petitioner was borne in the cadre of Office Superintendent from the
date of his promotion. If this hypothesis is to be ignored, then the
question may arise as to in which cadre the petitioner was working
during the period between the date of his promotion and the date of
subsequent regularisation. It cannot be said that he was neither
borne in the cadre of Office Superintendent or that of Upper Division
Clerk. His seniority could not be considered in the cadre of U.D.C. for
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the relevant period and as such it follows that his seniority ought to
have been reckoned in the cadre of Office Superintendent.
12. In case of Baleshwar Dass and others vs. State of U.P. and others ,
(AIR 1981 SC 41) , it is observed as under:
``A cadre post can be permanent or temporary and if an
engineer was appointed substantively to a temporary or
permanent post he becomes a member of the Service.
The touchstone then is the substantive capacity of the
appointment. The rules of procedure for direct
recruitment and kindred matters are provided by an
Office Memorandum of December, 1961. While
temporary and permanent posts have great relevancy in
regard to the career of Government servants, keeping
posts temporary for long, some times by annual renewals
for several years, and denying the claims of the
incumbents on the score that their posts are temporary
makes no sense and strikes as arbitrary, especially when
both temporary and permanent appointees are
functionally identified. If, in the normal course, a post is
temporary in the real sense that the appointee knows
that his tenure cannot exceed the post in longevity, there
cannot be anything unfair or capricious in clothing him
with no rights.''
By applying the ratio of ``Baleshwar Dass and others'' (supra), it
can be said that ad-hoc appointment can be made for a short period if
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administrative exigency demands such an appointment/promotion.
The ad-hoc appointment also can be made when the post is a tenure
post or that the Rules so permit such appointment/promotion. We find
that in case of the petitioner, his initial appointment was for a period of
six months and it was extended from time to time. Eventually, his
promotion was regularised w.e.f. 14-3-1996. The long duration of
approximately 4 years cannot be termed as a stopgap arrangement.
14. Respondent Nos. 1 to 3 have not pinpointed any rule of
seniority which allows them to reckon seniority from the date of
regularisation of the petitioner's posting as Office Superintendent. The
th
seniority list circulated along with letter dated 27 November, 2001
(Exhibit R-3) clearly shows that the petitioner was shown at serial No.8
only because regularisation of his promotion was at a subsequent
date, though he was promoted to the post of Office Superintendent on
th
10 July, 1992. Respondent no.4 was promoted as Office
th
Superintendent on 4 August, 1992. The argument advanced by
respondent Nos. 1 to 3 is that there was clear vacancy available for the
post of Office Superintendent in C.G.H.S. Office at Allahabad at the
relevant time, whereas in case of the post of Office Superintendent at
th
Pune, the post was available as on 10 July, 1992, but the earlier
incumbent viz. Shri R. Kailash had a lien over the said post due to his
ad-hoc promotion as Administrative Officer in the newly created post at
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C.G.H.S. Pune. The recruitment Rules do not support such kind of
discriminatory treatment to the petitioner. The question of seniority
has to be determined in the context of facts which are available on
record. The eclipse on the seniority issue of the petitioner did vanish
immediately after regularisation of his promotion and, therefore, his
seniority would relate back to the date of initial promotion in the
absence of any contrary Rule.
15. In case of Chief Commissioner of Income tax and others vs.
V.Subba Rao and others
[ (2003) 10 SCC 265], relying upon earlier the
decision in S.B. Patwardhan vs. State of Maharashtra [ (1977) 3 SCC
399] , it is observed by the Apex Court as under:
“ It has been in Patwardhan case that the principle that
seniority should be determined on the basis of
confirmation is a wholly unsound principle and therefore it
was indicated that the seniority has to be determined on
the test of continuous service and not on the basis of
confirmation, inasmuch as confirmation is one of the
inglorious uncertainties of government service which does
not necessarily depend upon efficiency of the incumbent
nor on the availability of the substantive vacancies.”
16. The settled legal position may be summarised as follows:-
I. The date of common seniority is to be reckoned may be laid
down by rules or instructions:
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(a) on the basis of the date of appointment,
(b) on the basis of confirmation,
(c) on the basis of regularisation of service,
(d) on the basis of length of service, or
(e) on any other reasonable basis.
II. (a) In the absence of any rule, the length of continuous
officiation is a valid principle of determining the seniority;
(b) If ad-hoc appointment or temporary appointment is made
without considering the claims of seniors in the cadre, the
service rendered in such post cannot be counted for seniority
in the cadre;
(d) If an ad-hoc appointment/promotion has continued
uninterruptedly till regularisation of service by Departmental
Promotion Committee or the Public Service Commission, there
is no reason to exclude such service for determining seniority.
The foregoing discussion leads to the only deducible conclusion
that the petitioner's seniority must be reckoned from the date of his
promotion i.e. 10-7-1992 in the cadre of Office Superintendent in the
absence of any contrary Rule to exclude such period between his
initial adhoc appointment and regularisation of the promotional
appointment to the post of Office Superintendent. It follows that his
application should have been allowed by the Tribunal. The impugned
order is, therefore, unsustainable. Hence, we are inclined to set aside
the same.
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17. In the result, the petition succeeds. The impugned order
is quashed and set aside and the Original Application filed by the
Petitioner is allowed. Respondent Nos. 1 to 3 are directed to modify
the seniority list by reckoning seniority of the petitioner from 10-7-
1992 i.e. initial date of his promotion as Office Superintendent. There
shall be no order as to costs.
Sd/-
(V. G. PALSHIKAR, J.)
Sd/-
(V.R. KINGAONKAR, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5807 OF 2003
Arjun Sopan Gaikwad )
Aged 54 years, son of Shri Sopan, )
presently working as Office )
Superintendent at the Office of CGHS, )
Mukund Nagar, Pune and resdiing at )
18/9, Defence colony, Lullanagar, )
Pune – 411 040. .. .. .. ).. .. .. Petitioner.
Versus
1) The Union of India )
through the Secretary, Ministry )
of Health & Family Welfare, )
Nirman Bhavan, New Delhi - )
110 011 . .. .. .. )
2) The Director, C.G.H.S., Nirman )
Bhavan, New Delhi – 110 011. )
3) The Additional Director )
C.G.H.S., Mukund Nagar, )
Pune – 411 037. )
4) Shri M. C. Shrivastava, )
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Office Superintendent, Office )
of Additional Director, Sangam )
Palace, Allahabad. ).. .. .. Respondents.
Mr. S. P. Saxena for Petitioner.
Mr. Suresh Kumar for Respondent Nos.1 to 3.
None for the Respndents.
CORAM : V. G. PALSHIKAR and
V. R. KINGAONKAR, JJ.
DATED : 17TH MARCH, 2006.
JUDGMENT (Per: Kingaonkar, J.) :
This petition is preferred against dismissal of Original
Application No. 129 of 2000 by the Central Administrative Tribunal (for
short `Tribunal') whereby the Petitioner's claim for placement of his
name in the seniority list above the name of Respondent No.4 was
rejected.
2. There is no dispute about the fact that the Petitioner was
appointed on regular basis to the post of Lower Division Clerk w.e.f.
th th
16 October, 1978 and was promoted as Upper Division Clerk w.e.f. 9
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April, 1984. The next promotion available to him was in the post of
Office Superintendent. The criteria for such promotion is ''Seniority-
cum- Fitness'' by non-selection method from amongst Upper Division
Clerks / Stenographers Grade II employees with 5 years service in the
grade and minimum 2 years experience of administrative work.
3. One Shri R. Kailash was promoted as Administrative Officer
and as such post of Office Superintendent in CGHS Office at Pune had
fallen vacant. The Petitioner was appointed as Office Superintendent in
th
the said vacant post w.e.f. 10 July, 1992. His promotion was effected
with a rider that the appointment will not confer any right for
regularisation of the same or for benefits such as seniority, etc. on a
future date. It was made clear that the Appointing Authority reserved
right to terminate the adhoc appointment without assignng any reason
or giving notice to the Petitioner.
4. Subseqeuntly, the Petitioner was selected by Departmental
Promotion committee as per the rules and his appointment to the
th
promotional post was regularised w.e.f. 14 March, 1996. Respondent
No.4 came to be promoted to the post of Office Superintednent w.e.f.
th
4 August, 1996, during the period the Petitioner was officiating on
such promotional post as an adhoc promotee.
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5. The Petitioner has come out with the case that though he
ranked senior to Respondent No.4, yet in the seniority list he is
wrongly shown below the name of Respondent No.4. He made
representation for correction of the seniority list which request,
however, was rejected. He preferred Original Application No. 129 of
2002 before the Central Administrative Tribunal, Bombay Bench,
Bombay. By the impugned order the Tribunal dismissed the Original
Application and rejected the claim of Petitioner for seniority over and
above Respondent No.4.
6. We have heard learned Counsels for the Petitioner and
Respondent Nos.1 to 3. None appeared for Respondent No.4. We are at
a loss to know the stand adopted by Respondent No.4. For, he has not
filed reply affidavit too. On behalf of the Petitioner, learned Counsel
contended that the seniority of the Petitioner in the cadre should have
been counted from the date he joined the promotinal post and not
from the date of regularisation of his services in the promotinoal post.
It is argued that exclusion of the period for which the Petitioner held
the promotional post on adhoc basis is per se illegal and incorrect. It is
contended that when the Petitioner was appointed by following due
procedure and continued to work on the promotional post since much
before Respondent No.4 was promoted, his claim for seniority could
not have been rejected. It is pointed out that the adhoc promotion of
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5
the Petitioner was continued from time to time until it was regularisd
after selection by the Departmental Promotion Committee. On the
other hand, learned Counsel for Respodnent Nos.1 to 3 submitted that
the benefits of adhoc services were not available to the Petitioner and
his claim has been rightly rejected by the Tribunal.
7. Before we proceed to examine merits of the Petitioner's
claim, it may be noticed that he was promoted from time to time and
the post of Office Superintednent could be filled by promotion in
accordance with the instructions contained in the Notification No.
A.12018/37/85- RR/CGHS.I/CGHS(P) issued by the Government of India.
These Rules (Exhibit `A') regulate the method of recruitment to the
Group `C' post of Office Superintendent in the Central Government
Health Scheme, outside Delhi. Rule 7(2) reads as follows:
``(2) The regular continuous service of officers mentioned
in Sub-Rule (1) above, prior to their appointment to
the posts shall count for the purpose of probation
period, qualifying service for promotion, confirmation
and pension.''
These rules do not exclude, in any manner, the period spent on
promotinal post between adhoc appointment and regularisation of
promotion. There is no rule to reckon seniority from the date of
regularisation or confirmation of a promotee.
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8. It is undisputed that post of Office Superintendent at Pune
was a permanent substantive post as shown in the Schedule appended
with Rules ( Exhibit- A) and there were similar posts at other places
like Allahabad, Delhi, Meerut, Nagpur and so on and so forth. There are
in all 15 such posts in the same scale of pay. The post of Office
Superintendent is a non-selection post. Further, there is no direct
recruitment provided for the said post. Thus the post could be filled
only by promotion from amongst those who were working as
U.D.C./Stenographer with experience as mentioned in column 12 of the
Schedule. The petitioner was admittedly qualified for such
promotional post. His promotion to the post of Administrative Officer
cannot be regarded as the promotion contrary to any recruitment
de hors
Rules or the Rules.
9. At this juncture, we shall turn to the affidavit of Dr. M.D.
Mohapatra, Joint Director, Government of India, C.G.H.S. It is stated in
the affidavit of Dr. Mohapatra that there was no post of Administrative
Officer available in C.G.H.S., Pune, prior to promotion of Shri R.
Kailash, since that post was newly created. The promotion of Shri R.
Kailash, who was predecessor in chair of the petitioner, was also made
on ad-hoc basis because had that post been abolished at subsequent
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point of time, then he could be reverted to the substantive post. It is
for such reason that the petitioner was also given ad-hoc promotion. It
is further stated that on appointment of Shri R. Kailash to the post of
Administrative Officer on regular basis, the petitioner was also
promoted on regular basis but both of them were not entitled to claim
the benefit of ad-hoc services as per the terms and conditions of their
th
appointment. True, the office order No. 36 (Exh. R-2) dated 27 July,
1992, reveals that the petitioner was promoted on ad-hoc basis and
he was not entitled to claim any right for regularisation of the
promotion or for benefits such as seniority, etc. on a future date.
10. The question is not as to whether the petitioner had any
right to claim regularisation of promotion when the initial promotion
was on an ad-hoc basis. The real issue is as to whether after
regularisation of the promotion, the seniority relates back to the date
of initial promotion. We are aware that benefit of ad-hoc service is not
admissible if appointment/promotion was in violation of the service
Rules. The general rule is that length of service in the cadre would
count for reckoning seniority of an employee. The date from which
seniority is to be reckoned may be laid down by rules or instructions.
If the seniority rule did provide for recognition of seniority from the
date of regularisation of promotion, then the stand of Respondent Nos.
1 to 3 could be proper. On behalf of respondent Nos. 1 to 3, reliance is
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State of W.B. and others
placed on certain observations in the case of vs.
I Aghore Nath Dey and others [ (1993) 3 SCC 371] . The Apex Court
has held that benefit of ad-hoc service is not admissible, if
appointment was in violation of rules. It is further held that the
corollary set out in Direct Recruitment Class II Engineering Officers'
Association's case [ (1990) 2 SCC 715] disallows benefit of ad-hoc
appointment made as a stop gap arrangement, whereas it allows
benefit of service in cases where there was procedural irregularity in
making appointments according to rules and this irregularity was
subsequently rectified. This authority is of no much help to the case of
respondent Nos. 1 to 3.
11. Rule of continuous officiation is duly recognised as a
criteria for counting of seniority in the parlance of service
G.P. Doval and others Chief Secretary,
jurisprudence. In case of vs.
Government of U.P. and others, [ (1984) 4 SCC 329] it is observed :
“ ``Where officiating appointment is followed by
confirmation, unless a contrary rule is shown, the service
rendered as officiating appointment cannot be ignored
for reckoning length of continuous officiation for
determining the place in the seniority list. If the first
appointment is made by not following the prescribed
procedure but later on the appointee is approved making
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9
his appointment regular, then in the absence of a
contrary rule, the approval which means confirmation by
the authority which had the authority, power and
jurisdiction to make appointment or recommend for
appointment, will relate back to the date on which first
appointment is made and the entire service will have to be
computed in reckoning the seniority according to the length of
continuous officiation
. If a stopgap appointment is made
and the appointee appears before the Public Service
Commission when the latter proceeds to select the
candidates and is selected, there is no justification for
ignoring his past service. At any rate, there is no
justification for two persons selected in the same manner
being differently treated.''” (emphasis supplied)
It need not be reiterated that the petitioner was promoted to a
substantive post although the promotion was termed as ad-hoc since
it depended on the fate of the promotional post of Administrative
Officer being formally approved after the creation thereof. The
petitioner was borne in the cadre of Office Superintendent from the
date of his promotion. If this hypothesis is to be ignored, then the
question may arise as to in which cadre the petitioner was working
during the period between the date of his promotion and the date of
subsequent regularisation. It cannot be said that he was neither
borne in the cadre of Office Superintendent or that of Upper Division
Clerk. His seniority could not be considered in the cadre of U.D.C. for
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the relevant period and as such it follows that his seniority ought to
have been reckoned in the cadre of Office Superintendent.
12. In case of Baleshwar Dass and others vs. State of U.P. and others ,
(AIR 1981 SC 41) , it is observed as under:
``A cadre post can be permanent or temporary and if an
engineer was appointed substantively to a temporary or
permanent post he becomes a member of the Service.
The touchstone then is the substantive capacity of the
appointment. The rules of procedure for direct
recruitment and kindred matters are provided by an
Office Memorandum of December, 1961. While
temporary and permanent posts have great relevancy in
regard to the career of Government servants, keeping
posts temporary for long, some times by annual renewals
for several years, and denying the claims of the
incumbents on the score that their posts are temporary
makes no sense and strikes as arbitrary, especially when
both temporary and permanent appointees are
functionally identified. If, in the normal course, a post is
temporary in the real sense that the appointee knows
that his tenure cannot exceed the post in longevity, there
cannot be anything unfair or capricious in clothing him
with no rights.''
By applying the ratio of ``Baleshwar Dass and others'' (supra), it
can be said that ad-hoc appointment can be made for a short period if
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administrative exigency demands such an appointment/promotion.
The ad-hoc appointment also can be made when the post is a tenure
post or that the Rules so permit such appointment/promotion. We find
that in case of the petitioner, his initial appointment was for a period of
six months and it was extended from time to time. Eventually, his
promotion was regularised w.e.f. 14-3-1996. The long duration of
approximately 4 years cannot be termed as a stopgap arrangement.
14. Respondent Nos. 1 to 3 have not pinpointed any rule of
seniority which allows them to reckon seniority from the date of
regularisation of the petitioner's posting as Office Superintendent. The
th
seniority list circulated along with letter dated 27 November, 2001
(Exhibit R-3) clearly shows that the petitioner was shown at serial No.8
only because regularisation of his promotion was at a subsequent
date, though he was promoted to the post of Office Superintendent on
th
10 July, 1992. Respondent no.4 was promoted as Office
th
Superintendent on 4 August, 1992. The argument advanced by
respondent Nos. 1 to 3 is that there was clear vacancy available for the
post of Office Superintendent in C.G.H.S. Office at Allahabad at the
relevant time, whereas in case of the post of Office Superintendent at
th
Pune, the post was available as on 10 July, 1992, but the earlier
incumbent viz. Shri R. Kailash had a lien over the said post due to his
ad-hoc promotion as Administrative Officer in the newly created post at
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C.G.H.S. Pune. The recruitment Rules do not support such kind of
discriminatory treatment to the petitioner. The question of seniority
has to be determined in the context of facts which are available on
record. The eclipse on the seniority issue of the petitioner did vanish
immediately after regularisation of his promotion and, therefore, his
seniority would relate back to the date of initial promotion in the
absence of any contrary Rule.
15. In case of Chief Commissioner of Income tax and others vs.
V.Subba Rao and others
[ (2003) 10 SCC 265], relying upon earlier the
decision in S.B. Patwardhan vs. State of Maharashtra [ (1977) 3 SCC
399] , it is observed by the Apex Court as under:
“ It has been in Patwardhan case that the principle that
seniority should be determined on the basis of
confirmation is a wholly unsound principle and therefore it
was indicated that the seniority has to be determined on
the test of continuous service and not on the basis of
confirmation, inasmuch as confirmation is one of the
inglorious uncertainties of government service which does
not necessarily depend upon efficiency of the incumbent
nor on the availability of the substantive vacancies.”
16. The settled legal position may be summarised as follows:-
I. The date of common seniority is to be reckoned may be laid
down by rules or instructions:
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(a) on the basis of the date of appointment,
(b) on the basis of confirmation,
(c) on the basis of regularisation of service,
(d) on the basis of length of service, or
(e) on any other reasonable basis.
II. (a) In the absence of any rule, the length of continuous
officiation is a valid principle of determining the seniority;
(b) If ad-hoc appointment or temporary appointment is made
without considering the claims of seniors in the cadre, the
service rendered in such post cannot be counted for seniority
in the cadre;
(d) If an ad-hoc appointment/promotion has continued
uninterruptedly till regularisation of service by Departmental
Promotion Committee or the Public Service Commission, there
is no reason to exclude such service for determining seniority.
The foregoing discussion leads to the only deducible conclusion
that the petitioner's seniority must be reckoned from the date of his
promotion i.e. 10-7-1992 in the cadre of Office Superintendent in the
absence of any contrary Rule to exclude such period between his
initial adhoc appointment and regularisation of the promotional
appointment to the post of Office Superintendent. It follows that his
application should have been allowed by the Tribunal. The impugned
order is, therefore, unsustainable. Hence, we are inclined to set aside
the same.
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17. In the result, the petition succeeds. The impugned order
is quashed and set aside and the Original Application filed by the
Petitioner is allowed. Respondent Nos. 1 to 3 are directed to modify
the seniority list by reckoning seniority of the petitioner from 10-7-
1992 i.e. initial date of his promotion as Office Superintendent. There
shall be no order as to costs.
Sd/-
(V. G. PALSHIKAR, J.)
Sd/-
(V.R. KINGAONKAR, J.)
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