ORDER
The Court
1. In this writ application the petitioners have prayed for issuance of appropnate direction upon the respondents to consider the ad hoc Promotion period from 17.11.1981 to 4.9.1993 for the purpose of their seniority as they have discharged the duty of Sub-Inspector (A) on the basis of ad hoc promotion and insert their names after serial No. 9 of the Seniority list dated 4.12.1999 and further to consider their case for promotion in the post of Inspector as their juniors have been promoted.
2. Petitioners’ case inter alia is that in
1963 and 1964 they were appointed as Con
stable in Bihar Military Police. In 1975
petitioner No. 1 passed the Senior Promotion Course, while petitioner No. 2 passed the said course in 1977. In 1976 petitioner No. 1 was promoted on the post of Naik and similarly in
1978 petitioner No. 2 was promoted to the post of Naik. In the year 1979 both the petitioners were promoted as ‘hawaldars’ and on
19.2.1980 they were confirmed as Hawaldars. On 17.11.1981, the concerned respondent namely, the Inspector General of Police, Bihar Military Police issued officer Order, whereby petitioners were given ad hoc Promotion on the post of Jamadars (Instructors) which is equivalent to the post of Sub-Inspector. Both the petitioners alleged to have been working on the said post from 1979 and 1980 respectively without any break and they were paid salary of the post of Sub-Inspector regularly. Petitioners therefore claimed that they are entitled to the benefit of the period of their ad hoc services for the purpose of determining their intere se seniority. Their grievance is that in view of their promotion in 1981 on ad hoc basis, they should be placed just after Sl. No. 9 in the seniority list but they were left out and on the other hand large number of juniors have been placed over and above of the petitioners in the seniority list.
3. The case of the respondents’ in the counter affidavit is that in 1981 Twelve Havaldars of B.M.P. including the petitioners were selected as Instructors and they were temporarily promoted out of turn on the post of Jamadar, i.e. S.I. (A) subject to the condition that the promotion will be purely temporary and ad hoc and they shall be reverted at any time without assigning any reason. The promotion order issued on 17.11.1981 therefore cannot be construed to be officiating promotion of petitioner to the higher post for the purpose of counting the seniority. It is further stated in the counter-affidavit that in 1999, a seniority list S.T. (A) was issued in which names of the petitioners have been placed at Serial No. 231 and 252, since the promotion of the petitioners were made regular in 1993, the seniority has been counted from 4.9.1993 and not from 17.11.1981.
4. Admitted facts are that these petitioners were appointed as constables in 1963 and 1964. In 1976 petitioner No. 1 was promoted on the post of Naik and in 1978 petitioner No. 2 was also promoted to the post of Naik. In 1979, both the petitioners were promoted as Havildars and the said promotion was confirmed in 1980. Just in the next year i.e. in 1981 these two petitioners alongwith others were given ad hoc promotion on the post of Jamadars (Instructors) which is equivalent to the post of Sub-Inspector. From 17.11.1981 to 4.9.1993 petitioners said to have been continued on the post of Jamadars on the basis of ad hoc promotion. It is also not disputed that the ad hoc promotion granted to the petitioners on 17.11.1981 was confirmed with effect from 4.9.1993. Petitioners therefore claimed that the ad hoc promotion period from 17.11.1981 to 4.9.1993 be counted for the purpose of their seniority so that they can now be promoted to the post of Inspector. The stand taken by the respondents is that since the promotion of the petitioners were made regular in 1993 vide Order No. 59/93 dated 4.9.1993 the seniority has been counted from 4.9.1993 and not from 17. 11.1981:
5. Mr. Tapan Sen, learned counsel appearing for the petitioners mainly put heavy reliance on the decision of the Supreme Court in the case of Sh. I.K. Sukhija and Ors. v. Union of India and Ors. (1998) 2 BLJR 1464. Learned counsel also relied upon other decisions of the Supreme court in the case of L. Chandrakishore Singh v. State of Manipur and Ors. (1999) 8 SCC 287. In the case of Ajit Kumar Rath v. State of Orissa and Ors. AIR 2000 SC 85 and in the case of T. Vijayan and Ors. v. Div. Railway Managers and Ors., (2000) 3 PLJR (SC) 29.
6. Before appreciating the submissions of the learned counsel. I shall first discuss the ratio decided by the Supreme Court in various decisions referred to hereinabove.
7. In the case of Sh. I.K. Sukhija and Ors., (supra) the fact of the case was that the appellants were promoted as Assistant Engineer on ad hoc basis between 1970 to 1977. All of them were appointed on regular basis with effect from 20.3.1978. Subsequently provisional seniority list of Assistant Engineers was prepared in 1986 and finalised in 1987. The said seniority list was challenged by the appellants on the ground that their seniority be determined taking into consideration their un-interrupted continuous and ad hoc service. It was submitted on behalf of the appellants that although their appointment were on purely ad hoc basis that
was not by way of stop gap arrangement rather they were eligible for promotion and their merits were duly considered by (he D.P.C. When they were promoted as Assistant Engineers regular vacancies in the promotion quota were available. The only reason why they were not regularly promoted and their promotions were described as ad hoc was the delay on the part of the department in finalising the draft recruitment rules. The Supreme Court on the basis of the said fact held as under :–
“What emerges from the above discussion is that the promotions of the appel-lants as A.E. (E) were not contrary to any statutory recruitment rules. Even if we proceed on the basis that in absence of statutory rules the draft recruitment rules of 1969 were applicable, what we find is that the appellants were eligible for promotions and their cases were duly considered by the D.P.C. They were promoted after they were found suitable by the D.P.C. and their promotions were made according to their placement in the merit list and not according to their seniority. When the appellants were promoted. though on ad hoc basis, clear vacancies were available in the promotion quota. The only reason for making their appointments as temporary and ad hoc was that the draft recruitment rules could not be finalised till 1975. There was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reasons stated above, it is not possible to accept that the appointments of the appellants as A.Es.. though temporary and ad hoc, were by way of stop-gap arrangements only the tribunal was, therefore, wrong in holding that the case of the appellants was governed by the corollary to. the Rule stated by this Court as Proposition ‘A’ in Direct Recruits case (supra). The appellants are in a better position than the situation contemplated by Proposition ‘B’ in that case. If the appoints contemplated by Proposition ‘B’ in the case. If the appointees contemplated by Proposition “B” arc held entitled to the benefit of the period of officiating service we see no reason why the appellants should not be held entitled to such a benefit. The learned counsel for the
respondents had relied upon the decisions of this Court in A.P.M, Mayakutty v. Secretary, Public Service Department,
1977 (2) SCR 937; D.N. Agarwal v. State of Madhya Pradesh. 1990 (2) SCR 131 and Masood Akhtar Khan v. State of Madhya Pradesh/ 1990 (4) SCC 24 but they have no application to the facts of these cases. In the first two cases it was found by this Court that the appointments were ad hoc and by way of stop-gap or emergency arrangement and. therefore, the appointees were not entitled to the benefit of the period of their ad hoc service for the purpose of counting their seniority. In Masood Akhtar Khan’s case (supra) it was held that the appointments were not made in accordance with the recruitment rules.”
8. In the case of L. Chandraklshore Singh. (supra) the fact of the case was that the appellant was promoted as Inspector of Police vide order dated 3.6.1980. He was further promoted to the Manipur Police Service in officiating capacity vide order dated 12.10.1983. This officiating promotion was ordered under Rule 24 of the Manipur Police Service Rules. 1965. Subsequently, another order was issued on 16.8.1989. purporting to promote the appellant to the Manipur Police Service (Junior Grade) in terms of Rule 5(1)(b) read with Rule 16 of the Manipur Police Service Rules. The question was whether the appellant was entitled to seniority in Manipur Police Service in accordance with his promotion under Rule 24 vide order dated 12.10.1983 or according to promotion order dated 16.8.1989 purported to be issued in terms of Rule 5(1)(b) read with Rule 16 of the said Rule. Their Lordships held :
“It is no well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on. the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to
be computed in reckoning the seniority according to the length of continuous officiating. In this regard we fortify our view by the judgment of this Court in G.P. Doval v. Chief Secy., Govt. of U.P..”
“In the light of what we have noted hereinabove it is apparent that the order i..ipugned in the High Court dated 16.8.1989 (Annexure P-5) was issued by the Government under a mistaken belief by completely ignoring the mandate of Rule 24 and the verdict of this Court in Bhatla case. Once the appellant had been appointed to the service in terms of Rule 24 of the rules, it was presumed that his name had been included in the list after compliance with the provisions of sub-rules (3) and (4) of Rules 14 and 15 of the MPS Rules, there being no difference in substance between the list prepared as contemplated under Rules 14 and 16 on the one hand and as visualised under Rule 24 on the other. Promotion made after compliance with Rules 14 and 15 is contemplated to be a selection in terms of Rule 5(1)(b) of the rules. The respondent State, therefore, was not justified in reap-pointing, on promotion, the officers mentioned in the government order dated 16.8.1989 to the Manipur Police Service (Junior Grade) with effect from that date.”
9. In the case of Ajit Kumar Rath. (supra) the appellant alongwith other officers were promoted as Assistant Engineer (Civil) on ad hoc basis. Since the post of Assistant Engineers were within the purview of Orissa Public Service Commission, it was indicated in the order of promotion that the promotion was for a period of six months or till receipt of concurrence of Orissa Public Service Commission which ever was earlier. The service of the appellants on the post of Assistant Engineers were regularised in 1976 as concurrence of the Commission had, in the meantime been received. On the other han;., the private respondents were directly recruited as Assistant Engineers on various dates between 7.1.1972 and 12.9.1972. The dispute of seniority between the promotee officers including the appellants on the one hand and the direct recruited namely the respondents on the other hand arose and the seniority list issued by the State Government was challenged. Their Lordships considering the facts of the case observed :–
“These facts cleariy indicate that the promotion of the appellant was a regular, though provisional, promotion made against a permanent vacancy in accordance with the Service Rules. The Chief Engineer was the officer authorised under the Rules to make the selection on the basis of merit. In the instant case, such selection was made by the Chief Engineer and pending concurrence of the Commission, the selected persons were appointed by the Govt. on ad hoc basis. It has already been indicated above that the Govl. is the final authority in making the selection of officers for promotion to the post of Asstt. Engineer on the basis’ of the recommendations made by the Commission. There is no dispute that the appellant and respondent No. 12 were appointed as Asstt. Engineers by the Govt. in 1972 and four years later, that is to say. in 1976 they were appointed on a regular basis on the recommendation of the Orissa Public Service Commission.”
“It is thus clear that the appellant was promoted on a regular, though provisional. basis pending concurrence from the Orissa Public Service Commission. The promotion having been made in accordance with the Rules, the entire period of ad hoc service beginning from 1972 to 1976, when the appellant was appointed on a regular basis on the concurrence of the Commission, would have to be counted towards the seniority of the appellant vis-a-vis the contesting respondents. The Tribunal, in these circumstances, had rightly invoked the principles laid down by this Court in Direct Recruit Class-II Engg. Officers, Association’s, case AIR 1990 SC 1607 : 1990 Lab IC 1304 (supra). There was no scope to deviate from this Rule as it has been clearly laid down by this Court in principles (A) and (B) set out therein as under :
“(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his confirmation appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering the seniority.”
“(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.”
“On these principles, the Tribunal had held, and in our opinion rightly, that appellant and respondent No. 12 were senior to the respondents.”
10. In the case of T. Vijayon and Ors., (supra) similar question with regard to inter se seniority between the direct recruits and promotees was challenged and the question arose was whether the period of ad hoc promotion given to the promotees shall be reckoned for the purpose of determining their seniority. Their Lordships observed :
“The above para indicates that ad hoc promotion is permissible pending regular selection. Once ad hoc promotion is found to be permissible under the Rules and respondents 4 to 143 were promoted on ad hoc basis in the exigencies of service, pending regular selection, which, incidentally, took sufficient time as respondents 4 to 143 who were on official duty “on line” were not available at one point or at one time to facilitate the selection, the entire period of ad hoc service will have to be counted towards their seniority, particularly as all the respondents (4 to 143) were duly selected and their services were also regularised with effect from 16.12.1991 by order dated 18.1,1992. The concerned employees, including respondents 4 to 143 had already been alerted for the process of selection which had been started in 1988. While making direct recruitment against posts which were advertised in 1985, it was given out to the present appellants that their absorption and seniority was subject, inter alia, to the finalisation of the selection to the post of First Fireman which was in progress. The appellants, as stated earlier, were selected In 1988 and were put on two years training as Apprentice whereafter they were absorbed by order dated 18.7.1990 and were issued separate and individual appointment letters in which, it was clearly
mentioned that their seniority was subject to the finalisation of the selection for promotion to the post of First Fireman which was in progress. The appellants, in this situation, cannot claim seniority over respondents 4 to 143 who had already been appointed to the posts, of First Fireman on ad hoc basis and were after due selection regularised on those posts.” “Applying the above principles to the instant case, since respondents 4 to 143 were promoted on ad hoc basis, and that too in a situation where regular promotion was not immediately possible in view of para 216 of the Railway Establishment Manual quoted above, they are clearly entitled to the benefit of ad hoc service rendered by them on the post of Fireman ‘A’ for ‘First Fireman’ for the purpose of reckoning their seniority vis-a-vis the appellants.”
11. In the light of ratio decided by the Supreme Court, I shall one examine the case made out by the petitioner in the instant writ petition. As noticed above, the petitioners were appointed as constable in Bihar Military Police in 1963 and 1964. In 1975-77 the petitioners were passed senior promotion course and thereafter promoted to the post of Nayak in 1976-78. In 1979 both the petitioners were promoted as Hawaldars and were confirmed in the said post in 1980. In 1981 petitioners were given ad hoc promotion alongwith others on the post of Jamadars (instructors) which is equivalent to the post of Sub- Inspector. Copy of the Office order dated 17.11.1981, by which petitioners and others have been promoted has been annexed as Annexure 1 to the writ application. It would be worth to reproduced the relevant portion of the office order as under :–
lS-iq-
izf’k{k.k dsUnz] inek ds fy;s jkT; ljdkj us 20 ¼chl½ vk-fu- dk in l`ftr fd;k
gS mu 20 ¼chl½ inksa esa 8 ¼vkB½ inksa ds fo:) lwcsnkj vuqns’kd dk inLFkkiu
nwljs vkns’k ls fd;k tk pqdh gS A izf’k{k.k dsUnz us vHkh blls vf/kd lwcsnkj
vuqns’kdksa dh vko’;drk ugha gS A blfy;s ‘ks”k 12 ¼ckjg½ vk-fu- ds inksa
ds fo:) fudkyk tk;sxk A ;g O;oLFkk vkUrfjd ,oa vLFkk;h gS A
mä
teknkj vuqns’kd ds inksa ij inLFkkiu gsrq xfBr tk¡p i”kZn us fuEefyf[kr
goynkjksa dks teknkj vuqns’kd in esa inksUuksfr gsrq ;ksX; ?kksf”kr fd;k
x;k gS A i”kZn ds vuqlaLFkkvksa ls fger gksrs gq, mUgssa rnFkZ :i ls teknkj vuqns’kd ds in ij dk;ZHkkj xzg.k
dh frfFk ls ikjh ls ckgj vLFkk;h izksUufr nh tkrh gS A ;g izksUufr fo’ks”k
ifjfLFkfr esa nh tk jgh gS A bldk izHkko izksUufr ik jgs goynkjksa ds ewy ojh;rk
lwph ij ugh gksxk A lkekU; lEoxZ esa budk pquko] inksUufr ,oa lEiqf”V gsrq
buds ewy ojh;rk lwph ds vk/kkj ij gh gksxh A ;s izf’k{k.k dsUnz ls okil gksus ij
Lor% vius ekSfyd in ij iz;kofrZr gks tk;sxsa A
;g
izksUufr fcYdqy gh vLFkkbZ ,oa rnFkZ :i ls nh tkrh gS A rFkk dHkh Hkh fcuk dkj.k
crk;s lS- iq- ds fdlh Hkh okfguh esa izR;ofrZr dj okil fd;k tk ldrk gS A ;s
inLFkkiu lkekUr% 5 ¼ikap½ o”kks± dh gksxh A
12. From perusal of the aforesaid office order, it appears that admittedly in 1981, 20 posts of jamadars (instructors) were sanctioned by the Government. By another office order, 8 persons were already promoted to the post of instructors. For the 12 posts of instructors, the Inquiry Committee examined the cases of several Hawaldars and found 12 Hawaldars including the petitioners fit for promotion. The Government concurred recommendation of the Committee and promoted these 12 Hawaldars including the petitioners to the post of Instructors. However, in the order it was mentioned that promotion of these 12 persons will be provisional and will not in any way effect the seniority of other persons. It is therefore, clear that in 1981 vacancy in the post of Instructors (Sub-Inspector) was existing and against those vacancies, a Committee was constituted by the Govt. who examined the cases of other persons posted as Hawaldars and finally found 12 Hawaldars including the petitioners fit for promotion to the post of Instructors.
13. Admittedly, the petitioners have been working in the promoted post for the last 12 years though by way of ad hoc promotion. In my opinion, therefore, merely because the ad hoc promotion was subject to the condition that the same shall be purely temporary and they can be reverted back without assigning any reason, period of 12 years of continuous service of the petitioners (1981 to 1993) on the promoted post of Instructors (Sub-Inspector) cannot be ignored in the matter of determining inter se seniority. It is not the case where in 1981 petitioners, though not eligible for promotion, have been given promotion ad hoc basis by way of stop gap arrangement rather they were eligible for promotion and their merits were duly con-
sidered by the Committee duly constituted by the Govt. Their promotion was however confirmed in 1993. These 12 years of continuous service on the promoted post of Sub-Inspector cannot be ignored merely because of the fact that promotion was ad hoc and subject to condition mentioned in the order of promotion. The claim of the petitioners therefore needs consideration by the respondents lor the purpose of their seniority.
14. This writ application is therefore allowed and the respondents are directed to consider the claim of the petitioners for their placement at a right position in the seniority list and take a decision in accordance with law after giving opportunity of hearing to the petitioners and other interested persons within a period of three months from the date of receipt of copy of this order.
15. Petition allowed.