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Judgment
Valmiki J Mehta, J.—This writ petition is filed by 11 petitioners. These 11 petitioners seek quashing of the seniority list dated 8.3.1991 whereby the petitioners have been placed lower to the direct recruits. In substance what the petitioners claim is that the length of their services must be calculated taking into account the period of service which they rendered as adhoc promotees in the post of Aerodrome Officer. The following chart will show the factual position with respect to the initial appointment and the dates of promotion and adhoc promotions of the petitioners.
S. No. in the Seniority List
Name of Ptr.
Civil Aviation Deptt. Joining date
Date of regular-appointment as A.A.O.
Date of Adhocapptt. as AO
Date of regular-appointment as AO
76
G.B.Singh
12.3.56
19.9.81
31.5.82
13-2-85
79
J.P. Kapoor
22.02.65
19.9.81
31.5.82
13-2-85
92
D.K. Jain
04-01-65
19.9.81
29.6.82
13.2.85
100
Gurmukh Singh
01.08.67
29.01.82
19.9.82
13.02.85
119
P.S. Jaswal
18.8.67
23.04.83
29.11.83
1-7-86
121
N.J. Framewala
27.4.55
23.04.83
29.11.83
1-7-86
125
Amar Chand
01.08.67
23.04.83
29.11.83
1-7-86
126
R.Y. Pol
04.03.65
23.04.83
24.04.84
01.07.86
127
Trilok Singh
06.12.65
23.4.83
19.04.84
01.07.86
128
R.D. Bajpai II
27.12.65
23.4.83
27.05.84
01.07.86
129
G.B. Purohit
01.08.67
23.4.83
29.11.83
19.06.92
The name of Shri G.B. Purohit has yet not been shown in the seniority list impugned herein.
It is not, and could not be disputed that the relevant rules which dealt with promotion of the petitioners when they were given adhoc promotions (when they were working in the Department of Civil Aviation predecessor-in-interest of the respondent no. 2) read as under:-
SCHEDULE
Name of post
No. of posts
Classification
Scale of pay
Whether selection post or Non-Selection post
Age limit for direct recruits
Educational and other qualifications required for direct recruits
Whether age and educational qualifications prescribed for the direct recruits will apply in the case of promotees
Period of probation if any
Method of recruitment whether by direct recruitment or by promotion or transfer and percentage of vacancies to be filled by various methods
In case of recruitment by promotion to be made
If Departmental Promotion Committee, exists what is its composition
Circumstances in which Union Public Service Commission is to be consulted in making recruitment
1
2
3
4
5
6
7
8
9
10
11
12
13
42(a) Aerodrome Officer
1.8
General Central Service Class I Gazetted
Rs. 400-400-450 30-600-35-670 EB-35-950
Selection
Not applicable
Not applicable
No
2 years
By promotion
Promotion: Assistant Aerodrome Officer with three years service in the grade
Class I Departmental Promotion Committee
As required under the Rules
A reference to the aforesaid facts and the relevant rules shows that before a person could be appointed as an Aerodrome Officer, he had to have 3 years of service as an Assistant Aerodrome Officer. The chart of the petitioners reproduced above, and which is taken from para 2.4 of the writ petition, shows that on the various dates, the petitioners were appointed as adhoc Aerodrome Officers, they had not rendered three years of service as Assistant Aerodrome Officers. At the very best, these persons have rendered about one year of service as Assistant Aerodrome Officers and some of the petitioners had not completed even one year of service as an Assistant Aerodrome Officer. Thus when the petitioners were given adhoc promotions they did not meet the criteria of three years of service for promotion to Aerodrome Officers.
Learned counsel for the petitioners relies upon the judgment of a learned Single Judge of Jammu and Kashmir High Court in the case of V.P. Saini Vs. Union of India and Ors. S.W.P. No. 835/1992 decided on 21.4.1995 for the proposition that whatever years of services are performed in an adhoc post, such adhoc services should be counted for promotion of a person. The relevant issue dealt with by the learned Single Judge is issue no. 2, at internal page 12 of the judgment (running page 245 of the writ paper book) and this issue has been dealt with from the internal pages 17 to 24 of the judgment (running page 249 to 256), ending with the following finding:-
In the first judgment cited by Mr. Raina, the post in question was a selection post to be filled in by a regular process of selection through UPSC and the adhoc appointment of the candidate against a higher post in his own pay and grade was considered by the Hon''ble Supreme Court, it was held that the same would not bestow any right upon him for his seniority for the period he occupied the post on adhoc basis there is a clear distinction between the said judgment and the present case. The question before the Hon''ble Supreme Court was where a person occupied a higher post and that too of selection category, without the benefit of any pay scale, grade etc, attached to the post, and he was not found entitled to the officiating period or period spent on adhoc post to be counted for purposes of seniority. In the present case, however the petitioner''s promotion was clearly against an available vacancy which was to be filled in by promotion along and not by holding any process of selection. Holding of DPC was only for limited purposes of weeding undesirable candidates against whom there may be any disciplinary proceedings pending or who were not otherwise eligible on account of any deficiency in the qualification. Since the petitioner when promoted as Aerodrome Officer of for that matter as Asstt. Aerodrome Officer, was fully eligible and qualified to hold the post, and the vacancy against which he was promoted was a substantive vacancy belonging to the quota of promotees and therefore, merely because the DPC did not consider him at the time of his adhoc promotion it does not dis-entitle him for claiming the benefit of officiating on the said post. The facts of the second judgment relied upon by Mr. Raina are also clearly distinguishable. In that case, Junior Engineers who were promoted as Asstt. Engineers purely on adhoc basis were not possessing qualifying service for such promotion as per the requirement of the rules. As held hereinabove, the petitioner was having qualifying service of his credit on both the occasions when he was promoted as Asstt. Aerodrome Officer and subsequently as Aerodrome Officer. Therefore, in the present case his officiating against the higher post has to be counted towards his seniority keeping in view the ratio of judgment referred to hereinafter, particularly the constitution bench judgment of the Hon''ble Supreme Court reported in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, .
Thus, the petitioner is entitled to the seniority as Aerodrome Officer w.e.f. 30.11.83 when he was promoted against the clear vacancy and was having the requisite qualifying service. Now the question is whether the stipulation in the promotion order of the petitioner that his promotion is adhoc and for a period of seniority, can deprive him from claiming the seniority. It is admitted position that though the order of promotion was for a period of six months but the petitioner was allowed to continue to hold the post of Aerodrome Officer uninterruptedly for a period of more than six years till he was ordered to be confirmed vide communication dt. 26th Feb., 1990 retrospectively with effect from 1.7.1986. If the intention of the respondents was to allow the benefit for the post to the petitioner only for a period of six months than with the expiry of the said period he should have been allowed to continue to occupy that post with all consequential benefits attached to it and subsequently having confirmed him on the post they cannot deprive him of his seniority merely because of stipulation in the promotion order. As a matter of fact stipulation was meant only for a period the order was to remain operative, i.e. for six months. Admittedly after the expiry of six months, no fresh order was passed prescribing any conditions for holding the post by the petitioner, therefore, the respondents cannot be permitted to put in aid such an arbitrary condition and deprive the petitioner of the benefit of his officiating promotion under the circumstances of the case. Therefore, the period of service rendered by the petitioner on adhoc basis from 30.11.1983 till his confirmation/regularization on the recommendation of the DPC shall be counted towards his seniority.
I am afraid I cannot agree with the arguments as urged on behalf of the petitioners and aforesaid judgment inasmuch as, before adhoc service in a post is counted as qualifying service for the purpose of promotion, it is necessary that the promotion which is made adhoc to a post must be in accordance with the relevant rules as applicable i.e. the promotion may be adhoc without following the regular procedure for promotion, but otherwise, the persons were qualified as per the rules. Reference in this regard is invited to the following judgments of the Supreme Court:-
(i) J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc.,
(ii) D.N. Agrawal and another Vs. State of Madhya Pradesh and others,
(iii) Union of India (UOI) Vs. Dharam Pal Etc.,
In the case of Narinder Mohan (supra), the Hon''ble Supreme Court has held that persons who were appointed on adhoc basis in violation of statutory rules and regularized in service, the actions being ultra vires the rules, the persons who were appointed on adhoc basis have to be replaced by persons who have been regularly recruited in accordance with the rules. The Supreme Court observed that in order to meet the constitutional requirements, appointments have to be fair i.e. such appointments have to be made according to the statutory recruitment rules, where such rules are in force and the Government cannot use its executive powers to circumvent the requirements of statutory recruitment rules.
In D.N. Agrawal''s case (supra), the Supreme Court was dealing with the issue of an adhoc promote and when should the period of service in the adhoc post be included for determining their seniority in the promotion post. The Supreme Court held that when persons who are not eligible for promotion inasmuch as they have not completed the qualified period of service, promotions accordingly made purely on adhoc basis, cannot prevail over those people who are regularly selected later on by a regular DPC and appointed pursuant to the result of the DPC. The Supreme Court has held that the service period in the adhoc post cannot be counted for the purpose of their seniority in the higher post.
In Dharam Pal''s case (supra), the Supreme Court has held that benefit of adhoc promotion which is made dehors the rules, cannot be granted to an employee.
In the present case, since the undisputed position which emerges is that at the time petitioners were granted adhoc promotions none of the petitioners were qualified as per the relevant service rules for their being entitled to promotion as an Aerodrome Officer because they did not have the period of 3 years in service as Assistant Aerodrome Officer. Hence, the reliefs as claimed in the present writ petition cannot be granted. In view of the above, there is no merit in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.