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Judgment
M. Sathyanarayanan, J.—The writ petition is filed for the issuance of writ of certiorari to quash the order dated 3.9.2002 passed by the
Central Administrative Tribunal (in short ""Tribunal""), made in O.A. No. 1077 of 2001.
The petitioners herein who are not parties to the said Original Application obtained leave and filed this writ petition.
The facts in brief which are necessary for the disposal of this writ petition are as follows:
The petitioners herein joined the services of the -Department of Customs and Central Excise, Mumbai Customs House. In Chennai Customs
House, certain 100% ""Export Oriented Units"" (EOU) and ""Container Freight Stations"" are functioning on cost recovery basis and Preventive
Officers and Examiners of the Customs Department are being posted in those places and the cost of posting these officers being recovered from
the Container Freight Stations and Export Oriented Units. Consequent upon the said requirement, there were short term vacancies and the same
were filled by promoting officers the feeder cadres namely Tax Assistants, Upper Division Clerks and Stenographers on ad-hoc basis.
In view of the vacancies created in the feeder cadre, the same were filled up by making promotions on ad-hoc basis and Lower Division Clerks
with prescribed qualifying service were promoted as Upper Division Clerks on ad-hoc basis. The said arrangement has been done only to tide
over the urgent situations and it is purely temporary in nature and it would not confer any permanent right to continue in the said post.
The respondents 1 to 7 herein were initially appointed as Lower Division Clerks in the year 1988 and in the year 1995 and they were appointed
as Upper Division Clerks on ad-hoc basis due to ad-hoc promotion of regular Upper Division Clerks as Preventive Officers.
The respondents 1 to 7, whose services as Upper Division Clerks on ad-hoc basis were not regularised, filed O.A. No. 1077 of 2001 before
the Tribunal, praying for the relief of regularisation of their services in the post of Upper Division Clerk with effect from their initial date of ad-hoc
promotion in the year 1995 with all consequential benefits. The Tribunal by its order dated 3.9.2002, allowed the said application and directed the
respondents 8 and 9 to regularise the services of respondents 1 to 7 from the date of their initial date of ad-hoc promotion and it was implemented
on 1.10.2002. Therefore, by virtue of the order of regularisation, respondents 1 to 7 along with 43 others were regularised with retrospective
effect. The respondents 8 and 9 placing reliance upon the above said order of the Tribunal, further regularised the services of 55 Lower Division
Clerks as Upper Division Clerks from the date of their initial ad-hoc promotion on the ground that they are similarly placed like that of respondents
1 to 7. Thereafter, respondents 1 to 7 along with other Upper Division Clerks were promoted as Preventive Officers on ad-hoc basis vide order
dated 20.12.2002. The petitioners herein aggrieved by the above said order of the Tribunal has filed this writ petition.
Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioners submitted that respondents 1 to 7 cannot be granted regularisation
from their initial date of ad-hoc promotion since there were no substantive vacancies in the cadre of Upper Division Clerk in the year 1995. It was
further submitted by the learned senior counsel that the Upper Division Clerks on regular basis had been promoted on ad-hoc basis as Preventive
Officers in the year 1995, but their services were regularised only in the year 2002 and therefore it is clear that they were holding the post of
Upper Division Clerk till the year 2002 and substantive vacancies in the said cadre arose only after their regularisation in the higher post of
Preventive Officer in the year 2002.
The learned senior counsel appearing for the petitioners also submitted that the ad-hoc post of Preventive Officer/Examiner on cost recovery
basis is purely a temporary arrangements and it is always possible for those Container Freight Stations and Extra Oriented Units to become sick
and in that event, persons holding the ad-hoc post are liable for reversion. The learned senior counsel appearing for the petitioner stressed the point
that total number of Upper Division Clerks working on ad-hoc basis and regular basis did not exceed the sanctioned strength and the impugned
order of the Tribunal is contrary to law. The learned senior counsel further contended that the regularisation with effect from the date of their initial
promotion, is contrary to Recruitment Rules for the reason that in the year 1999 itself the issue was examined and since there were no regular
vacancies in the cadre of Upper Division Clerks, regularisation of Upper Division Clerks promoted on ad-hoc basis could not be done. The sum
and substance of the arguments advanced on behalf of the petitioners is that the Tribunal ought not to have ordered regularisation as the regular
vacancies are not available and that the ad-hoc promotion is purely temporary in character, regularising the candidates promoted on ad-hoc basis
amounts to actual promotion to the post, which is not at all possible.
The learned senior counsel appearing for the petitioners placed reliance upon the judgments of the Hon''ble Supreme Court of India reported in
(i) Keshav Chandra Joshi and others etc. Vs. Union of India and others, ,
(ii) Ayyasami Vs. State of Tamil Nadu, ,
(iii) Sanjay K. Sinha-II and Others Vs. State of Bihar and Others, and
(iv) (2006) 10 SCC 346 - Uttaranchal Forest Rangers'' Association and Ors. v. State of U.P. and Ors.
In those decisions it has been held that fortuitous circumstances of their holding the grade post carrying the same designation or scale of pay or
discharging the same duty, would not entile them to be included in the service and that criteria followed in ad-hock promotions was not same as
that for regular promotions. It was also held that when the promotion is outside the quota, the seniority has to be reckoned from the date of the
vacancy within the quota, rendering the previous service fortuitous and the previous promotion would be regular only from the date of the vacancy
which arose within quota and seniority is to be counted from that date and not from the date of his earlier promotion or subsequent confirmation.
The ad-hoc/stopgap promotion made in case of promotion quota and regularisation of such promotion was also held to be invalid.
In the judgment reported in Sanjay K. Sinha-II and Others Vs. State of Bihar and Others, it has been held that ""when the posts to which
appointments were to be made were not available or non-existent, there was no appointment to the service, much less substantive appointment
and, therefore, such appointees cannot be given seniority from the purported date of their appointment"".
In the judgment reported in (2006)10 SCC 346 Uttaranchal Forest Rangers'' Association and Ors. v. State of U.P. and Ors. it has been held
that ""promotion given in excess of quota must be treated as ad hoc and seniority cannot be given on the basis of such ad hoc promotion and
retrospective seniority cannot be granted to promotees from the date vacancies arose when they had not even borne on the cadre so as to
adversely affect direct recruits, who had been appointed validly in the meantime"". Therefore, according to the learned senior counsel for the
petitioner the impugned order passed by the Tribunal is unsustainable in law and is against the service jurisprudence.
Per contra Mr. P.V.S. Giridhar, learned Counsel appearing for the respondents 1 to 7 submits that the official respondents aggrieved by the
order dated 3.9.2002, made in O.A. No. 1077 of 2001 had filed W.P. No. 19871 of 2004 and the same was dismissed by this Court on
13.9.2004 holding that respondents 1 to 7 were promoted to the post of Upper Division Clerks on ad-hoc basis in accordance with Rules only
after they were selected by DBC. The official respondents aggrieved by the dismissal of writ petition No. 19871 of 2004 had filed SLP in SLP
No. 15828 of 2005 before the Hon''ble Supreme Court of India and the same is pending adjudication and the writ petitioners herein have also
been allowed to intervene in the said SLP The learned Counsel appearing for the respondents 1 to 7 further submitted that various
pronouncements of the Hon''ble Supreme Court of India reported in
(i) State Bank of India Vs. Yogendera Kumar Srivastava and Others, ,
(ii) Jagdish Ch. Patnaik and Others Vs. State of Orissa and Others, ,
(iii) V-1990 (2) - The Direct Recruit Class (II) Engineers Officers'' Association and Ors. v. State of Maharashtra and Ors.,
(iv) (2008) 8 SCC 25 - Rudra Kumar Sain and Ors. v. Union of India and Ors. and
(v) P.N. Premachandran Vs. The State of Kerala and Others, , wherein it has been held that ""a person who was not part of a particular cadre, has
no locus standi to assail the promotion or seniority of a person in that cadre"". The learned Counsel appearing for the respondents 1 to 7 further
submits that respondents 1 to 7 belonged to ministerial cadre during the relevant period and even though there was restructuring of post whereby
two cadres have been merged into restructured post of Tax Assistant on 13.1.2003, the writ petitioners herein were not part of the Ministerial
cadre either in the year 1995 or when the respondents 1 to 7 were initially promoted as Upper Division Clerks or on 3.9.2002, the date on which
the Tribunal directed their regularisation with effect from 1995. The learned Counsel for the respondents 1 to 7 also submitted that in view of the
judgment reported in (2000) 8, Supreme Court Cases 25, even if a person is promoted to a post in accordance with the Rules, the entire period of
his service would count for seniority unless the initial appointment is a stop-gap arrangement. It was further submitted by the learned Counsel
appearing for the respondents 1 to 7 that the writ petitioners are guilty of delay and latches as they have chosen to invoke jurisdiction of this Court
after an unexplained delay of four years. Therefore, it was prayed that the writ petitions deserve to be dismissed.
We have carefully considered the rival submissions and also perused the materials available on record. The fact remains that challenging the
vires of the impugned order passed by the Tribunal in O.A. No. 1077 of 2001, the respondents 8 and 9 herein had filed W.P. No. 19871 of 2004
and this Court vide order dated 13.9.2004 has dismissed the same and challenging the vires of the same, a SLP was filed in SLP No. 15828 of
2005 and is pending adjudication and the writ petitioners herein were also allowed to intervene in the said S.L.P., since the challenge to the vires of
the order passed in O.A. No. 1077 of 2001, which is also the subject matter of challenge in this writ petition, has ended in finality in the form of
dismissal by this Court, we are not inclined to interfere with the order passed by the Tribunal. Moreover, the order dated 13.9.2004 in dismissing
the W.P. No. 19871 of 2004 filed by the official respondents challenging the vires of the order passed in the said original application is pending
adjudication before the Hon''ble Supreme Court of India in SLP No. 15828 of 2005, in which the petitioners herein were also allowed to
intervene, they can work out their remedy in the said Special Leave Petition.
Therefore, the writ petition is dismissed. But in the circumstances, there will be no order as to costs.