ORDER
Chitra Chopra, Member (A)
1. This Review Application has been filed against the order dated 23.05.2007 passed in OA-1372/2005.
2. The applicants have filed the present Review Application primarily on the grounds that the Tribunal has failed to appreciate the various grounds, which had been pleaded in the O.A.
3. Learned Counsel Sh. B.S. Mainee has submitted that the applicants at the time of arguments had relied upon the following five judgments and unfortunately these judgments have escaped the notice of the Tribunal and there is neither reference nor any finding of the Tribunal in the judgment. Therefore, this is an error on the face of the judgment:
(i) Direct Recruit Class II, Engineering Officers’ Association v. State of Maharashtra and Ors. .
(ii) T. Vijayan and Ors. v. Divl. Railway Manager and Ors. ATJ 2000(3) 89
(iii) State of West Bengal and Ors. v. Aghore Nath Dey and Ors.
(iv) Rudra Kumar Sai and Ors. v. UOI and Ors. 2001(1) AISLJ Page-1
(v) Mohinder Singh and Ors. v. U.O.I. and Ors. OA-1649/1997 decided on 09.07.2003
4. In fact, all these judgments have been considered while deciding the O.A. but the facts and circumstances being not similar, these were not discussed elaborately. However, we again recapitulate the ratio of these judgments. In Direct Recruit Class II, Engineering Officers’ Association’s case (supra), the issue as well as the facts and circumstances were quite different as it related to inter-se-seniority between direct recruits and promotees and the question was whether seniority was to be counted from the date of appointment and/or from the date of confirmation. In T. Vijayan’s case (supra), the issue was fixation of seniority between the regularly appointed Fireman A and the respondents who had been promoted to the post of First Fireman on ad hoc basis as the process of selection for making for promotion was taking a long time. Subsequently, the posts for Fireman A and Fireman B. were merged after recommendation of 5th CPC. The ad hoc promotion being permissible under the IREM was held to be permissible for determining seniority of promotees vis-`-vis direct recruits. In the instant case, the issue is not regarding inter-se-seniority of promotes and direct recruits. The facts and circumstances in the instant case are clearly distinguishable in so far as the applicants were required to undergo and pass written test before their names could be placed in the regular promotion list. Hence, ad hoc promotion given, the case cited (T. Vijayan) would be different as apparently no written test was prescribed therein. In State of West Bengal and Ors.’s case (supra), it has been clearly held that benefit of adhoc appointment made as a stop gap arrangement is to be disallowed. In Rudra Kumar Sain’s case (supra), the Hon’ble Apex Court has critically examined in Para-16 the meaning and import of the terms adhoc, stop gap, fortuitous. In Para-18A, it has been held that:
The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se-seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ‘ad hoc’ or ‘stop-gap’. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as ‘fortuitous’ in nature. If an appointment is 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 is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a ‘stop-gap’ arrangement and appointment in the post as ‘ad-hoc’ appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made.
In Mohinder Singh’s case, the applicants had already been subjected to a written test, which they had qualified but could not be regularised, although regularly selected, due to zone of consideration and limited vacancies. The facts are totally different and not comparable.
5. As already clarified in the order passed in the OA, the order by which the applicants had been given ad hoc promotion clearly states that they are promoted against resultant vacancy purely on ad hoc basis and further they are not eligible to get seniority and any other benefits over their seniors.
6. It is also an admitted position that regular promotion was to be accorded after passing the requisite written test and the promotion date would be the date on which the candidate has successfully passed the written test and his name has been placed in the regular promotion list. While the private respondents had passed test on 16.10.1996, which was followed by their regular promotion letter dated 22.11.1996 whereas the applicant had been given regular promotion w.e.f. 10.11.1997. It would thus be clear that such regular appointment/rpomotion required, inter alia, passing of a written test, promotion given on ad hoc basis without passing of the test cannot entitle the applicants for seniority. Thus, the ratio of the judgments cited by learned Counsel of the applicant would not support the case of the applicants.
7. Learned Counsel of applicants has, in the Review Application, also cited the decision of Hon’ble Apex Court in S.M. Bhagwat and Ors. v. U.O.I. and Ors. 2001(2)CAT AISLJ 91 to advance his argument that the judgement of the Apex Court have been missed in the order of the Tribunal. In that case the order in the Review Application was quashed on the ground that the binding judgment of the Hon’ble Supreme Court having been missed, amounted to an error apparent on record, which called for review of the order. However, the facts and circumstances in the instant case are clearly distinguishable from the case cited.
8. We have again carefully considered the submissions made by learned Counsel of the applicants in the RA and do not find any error apparent in the Tribunal’s order dated 23.05.2007. Accordingly, we are inclined to dismiss the RA in Circulation. MA-1566/2007 for hearing the Review Application in open Court also dismissed.