JUDGMENT
S.B. Wad, J.
(1) The petitioner was appointed Assistant Labour Welfare officer in June 1977 on ad hoc basic. According to him no regular Dpc met. till 1981. It is an admitted position that the Dpc met in 1981 for regular appointments to the post of Assistant Labour Welfare Officer. The Dpc made the selection on the basis of merit and the petitioner was placed at No. 7. Although there were several regular posts, the petitioner was not given the regular appointment but was asked to continue on ad hoc basis. The petitioner made various representations and also filed a civil suit. According to him the respondents assured him of a regular promotion and on that promise he withdrew the civil suit. However, nothing happened till 1986. On 2.4.86 the petitioner was appointed as Assistant Labour Welfare Officer on regular basis with effect from 10.4.81, i.e. the original date fixed by the Dpc and from which date some of the respondents were promoted. Thereafter he was due for promotion to the post of Deputy Assessor and Collector/Assistant Commissioner as on the basis of seniority from 1981 he had completed five years service. According to the petitioner, this time also he was passed over and 19 promotions were made, first on the basis of current duty charge and latter on ad hoc basis with effect from 19.9.86. Further promotions were effect on 22.9.87 but the petitioner was not given his rightful due or promotion. Then he made a representation against the said denial of promotion to the post or Deputy Assessor and Collector/Assistant Commissioner. The impugned order was passed on 20.8.87 withdrawing his regular promotion to the post of Assistant Labour Welfare Officer with retrospective effect from 10.4.81.
(2) The petitioner’s complaint is that he had been treated arbitrarily and discriminated against all along at each stage of promotion. He claims that he ought to have been appointed as the Assistant Labour Welfare Officer on regular basis Along with the other respondents on 10.4.81 as the regular constituted Dpc in 1981 had put him at No. 7 in the order of merit and when at least seven regular posts were available, if not eight. He further submits that the impugned order dated 2 ‘.8.87 was patently illegal. The order did not state any reason for the withdrawal of promotion; it was bad for its retrospective effect; was arbitrary and discriminatory; was violative of Articles 14 and 16 of the Constitution of India. The petitioner has prayed for a declaration that he should be treated as regularly appointed from 10.4.81 as Assistant Labour Welfare Officer; that he should be given the benefit of service from 1977 since when he started working as Assistant Labour Welfare Officer on ad hoc basis for the purposes of seniority in the post of Assistant Labour Welfare Officer; that on the basis or seniority and merit he was entitled to be considered and appointed to the post of Deputy Assessor and Collector/Assistant Commissioner Along with the other 19 people. He has prayed for the quashing of the impugned order and to give him the consequential benefits.
(3) From the counter-affidavit of the Municipal Corporation and the submission of their counsel it was found that there was utter confusion in the administration of the Municipal Corporation as to whether there were seven or eight posts of Assistant Labour Welfare Officer in 1981. The Dpc minutes show that they proceeded on the footing that there were seven regular vacancies. The Municipal Corporation was, therefore, directed to file an additional affidavit clarifying the exact number of posts available in 1981. It is now clear from the affidavit that there were only seven regular posts of Assistant Labour Welfare Officer in 1981 when the Dpc met. It is also admitted by the Municipal Corporation that the petitioner was placed at No. 7 in the order of merit by the Dpc of 1981. The Corporation has, however, tried to justify their denial of regular post to the petitioner (and asking him to continue on ad hoc basis) on the plea that the said seventh post was a leave vacancy created by the absence of one Mr. S.C. Singhal for a period of two years. During the course of arguments it transpired that the said Shri Singhal had gone on deputation and never returned to the Corporation employment. The submission on behalf of the Corporation is that the vacancy created in the lien period, if a person goes on deputation, can only be filled by ad hoc appointment and no officiating or regular appointment would be made. This is their justification for not giving the regular promotion to the petitioner and to make him continue on ad hoc basis.
(4) It is an admitted position that there were seven regular vacancies in 1981 and the petitioner was at position No. 7 in the order of merit. What only requires to be considered is whether the above submission on behalf of the Corporation in regard to the lien vacancy is correct or not. The Corporation has not brought to the notice of the Court any Rule prevalent in the Corporation which lays down that an appointment/promotion against a leave vacancy shall only be an ad hoc appointment. In absence of any such Rule of the Corporation the Fundamental Rules would govern the situation. Pr 9(19) defines what is meant by the word ‘officiate’-“A government servant officiates in a post when he performs the duties of a post in which another person holds the lien. The Central Government may, if it thinks fit, appoint a government servant to officiate in a vacant post on which no other government servant holds a lien.” It is thus clear that in a lien vacancy the appointment or promotion is ‘officiating’ promotion or appointment. As a matter of fact, Mr. Singhal, who was holding the post, had retired in 1985. Therefore, when an order appointing the petitioner on regular basis from 10.4.81 was passed in 1986 there was no obstacle whatsoever in the regular promotion and the Corporation was not justified in taking a view that the petitioner could be appointed only on ad hoc basis in 1981. The promotion of the petitioner from 10.4.81, in law, is a promotion by way of officiation and cannot be treated as ad hoc promotion.
(5) It has now been held by a catena of cases that where a person is initially appointed/promoted in ad hoc capacity and continues his service without break and is finally appointed/promoted in the said post on regular basis the entire service counts for the purposes of seniority. The petitioner was first appointed as Assistant Labour Welfare Officer in 1977 on ad hoc basis and was appointed on regular basis from 10.4.81. There was no break in the service of the petitioner. The petitioner’s continuous service in the post of Assistant Labour Welfare Officer has thus to be counted from 1977 and the seniority should be fixed accordingly.
(6) The impugned order dated 20.8.87 whereby the petitioner’s regular promotion was withdrawn with retrospective effect is patently illegal. No reasons are stated in the impugned order for the said action nor was any opportunity given to the petitioner to show cause against the said order. A vested right was created in favor of the petitioner to the post of Assistant Labour Welfare Officer and it could not have been taken away by the impugned order. The impugned order is arbitrary, illegal and violative of Articles 14 & 16 of the Constitution. In C.S. Dubey v. Union of India, Slr 1975 (1) 580, the D.B. of this Court has held that an officiating or ad hoc or temporary appointee can be reverted only for valid reasons and not otherwise. He cannot be reverted without any rhyme or reason. The D.B. has laid down that in three contingencies such reversions can be justified : 1.If a person is not found fit to hold a post; 2. If a person having lien on that post returns to that post; and 3. If a person who is senior or higher in merit according to the same selection replaces such a person in that post. The reversion of the petitioner ordered by the impugned order does not fall in any of these circumstances. In fact the Corporation has not even averred that any such circumstance existed justifying the impugned order.
(7) For the reasons stated above the impugned order is set aside. The petitioner shall be treated as holding the regular post of Assistant Labour Welfare Officer from 10.4.1981. He shall be entitled to the ad hoc service rendered by him from 1977 to be calculated for determining his seniority in the said post. The respondent Corporation is directed to re-fix his seniority in accordance with this direction. On the basis of the said seniority the petitioner was entitled to be considered for further promotion to the post of Deputy Assessor and Collector/Assistant Commissioner Along with the other 19 people who were promoted to the said post in 1987. Corporation is directed to hold a fresh Dpc for the year 1988 and to consider the petitioner for promotion to the post of Deputy Assessor and Collector/Assistant Commissioner on the basis of confidential record up to 1987.
(8) The writ petition succeeds with costs. Rule is made absolute. Counsel fee Rs. l,500.00 .