Biswanath Bain vs Union of India and others

Ashim Kumar Banerjee, J.—The Petitioner abovenamed joined the Administration as an Extension Officer on October 27, 1989. Since then there had been protracted litigations on the issue of preparation of seniority list. Since litigations were pending, the authority gave him promotion on ad hoc basis as a Block Development Officer with effect from August 14, 1995. It appears that his initial appointment as Block Development Officer was in leave vacancy. Ultimately on May 23, 2007 his promotion was regularized with effect from April 30, 2007. The promotion to the next post requires six years'' experience in the feeder post. Ms. Ganguly however contended that it required three years qualifying service in the feeder post. Petitioner''s grievance is that although he worked in the post of Block Development Officer since 1995 after being promoted from the post of Extension Officer he was not considered for further promotion as his past service in the post of Block Development Officer for the period 1995-2007 was not being considered by the authority. He claims that his promotion should be regularized at least with effect from January 14, 1999 when he was considered by the Selection Committee who recommended him for the said post subject to finalization of the seniority list.

He approached the Tribunal. The Tribunal held that his promotion as a Block Development Officer with effect from January 14, 1999 was on ad hoc basis. Such period could not be counted for qualifying service being contrary to the Service Rules. The Tribunal held that the decision in the case of Rudra Kumar Sain and Others Vs. Union of India and Others, relied on by the applicant had no application in the instant case. The Tribunal considered the dictionary meaning of the word "ad hoc" and came to conclusion that it was not a regular promotion. The application was dismissed.

Being aggrieved by and dissatisfied with the judgment and order of the Tribunal the applicant came up before us by filing the above writ application.

Ms. Ganguly, learned Counsel appearing in support of the application contended that the writ Petitioner was promoted in the post of Block Development Officer on ad hoc basis in leave vacancy in 1995. However, his case was formally considered by the selection committee in 1999 when he was recommended for promotion on regular basis. In view of the litigations with regard to the preparation of seniority list the authority was not in a position to implement such recommendation, and for that the Petitioner should not suffer. She contended that the Petitioner was otherwise entitled to regular promotion with effect from January, 1999. Hence, his promotion ultimately regularized with effect from May 14, 2007 should be altered by giving it retrospective effect on and from January 14, 1999. She prayed for alteration of the seniority list accordingly and as a consequence the Petitioner should be considered as qualified for the next promotion having more than nine years'' working experience in the feeder post.

Mr. A.K. Ray, learned senior Counsel appearing for the Administration in his usual fairness contended that if was true that the Administration was in difficulty in preparation of the final seniority list in view of protracted litigations. It was also true that the process of giving regular promotion to the eligible candidates including the Petitioner might have been delayed therefor. However, such fact per se would not entitle the Petitioner to claim promotion with retrospective effect as a matter of right.

In Rudra Kumar Sain (supra), law was laid down by the Apex Court in the following word.

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 "stopgap". 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 "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.

In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc. *****

It is not in dispute that the Petitioner had been promoted to the post of Block Development Officer in 1999 after he was selected by the Departmental Promotion Committee. It is not that the promotion of the Petitioner was through the backdoor. It is also not the case of the Respondents that there were no substantive vacancies. It was ad hoc because the authorities had not been able to prepare the seniority list of Extension Officers. The Tribunal clearly erred in holding that the principle of law laid down in Rudra Kumar Sain (supra) would have no application in the Petitioner''s case. Having regard to the principle of law settled by the Supreme Court, the Tribunal also erred in law in refusing relief to the Petitioner on the ground that his tenure of appointment as Block Development Officer from 1999 to 2007 being ad hoc, the said period of service would not count towards eligibility for consideration of his candidature for promotion to a higher post.

While declining relief to the Petitioner, the learned Tribunal had also relied on the decision of the Supreme Court in Direct Recruit Class 11 The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, wherein it was laid down "that where initial appointment is only ad hoc 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." The Tribunal failed to notice the key words "not according to rules" and accordingly committed an error. On the contrary it would appear from paragraph 13 of the aforesaid decision that the Supreme Court found considerable force in the view expressed in Narender Chadha and Others Vs. Union of India and Others, where officers who were promoted without following procedure prescribed in the rules and had worked continuously for long periods without being reverted, it was held that their continuous officiation had to be counted for seniority and any other view would be arbitrary and violative of Articles 14 and 16.

For the reasons aforesaid, the impugned order of the Tribunal stands set aside.

The period from January 14, 1999 till May 14, 2007 shall be counted towards regular service put in by the Petitioner as Block Development Officer for the purpose of promotion and in the event the Respondents propose to appoint officers in the next higher post and the Petitioner is otherwise eligible for promotion thereto, his candidature shall be considered in accordance with law.

We also direct the official Respondents to treat the Respondent No. 8 at par with the Petitioner since we find that both the Petitioner and the Respondent No. 8 were promoted on ad hoc basis to the post of Block Development Officer after being selected by the Departmental Promotion Committee vide separate orders dated 14.1.1999 and that they had joined the respective promotional post on or about the same day. However, the question of their inter se seniority shall be determined by the Respondents in accordance with law.

The writ petition stands disposed of without any order as to costs.

Dipankar Datta, J.

I agree.