A. K. SIKRI, J. ( 1 ) THE facts are not in dispute. Controversy revolves around in a narrow compass. To appreciate the same, let us scan through the first: ( 2 ) PETITIONER as well as Respondent No. 3 are working as Assistant Engineer (Civil) with Respondent No. 1, Municipal Corporation of Delhi (MCD ). Petitioner is, however, a diploma holder whereas respondent No. 3 is a degree-holder. Petitioner is senior to respondent No. 3. Both are aspiring for promotion to the post of Executive Engineer. Five years service as degree-holder and 10 years service as diploma holder is required. ( 3 ) IT is a matter of record that MCD has not been calling the regular procedure for promotion to the post of Executive Engineer for quite some time and giving ad hoc promotions. Non-action on the part of MCD in filling up of the post of Executive Engineer on regular basis has come up for discussion before this Court in some cases earlier as well. The leading case being Kapoor Chand Vs. M. C. D. and Ors. CWP. No. 4598/95. Certain applications were filed in this petition and direction given from time to time. It is not necessary to refer various interim orders passed. Our purpose would be served in referring to orders dated 11. 9. 96 and 17. 4. 98. Order dated 1 1. 9. 96 was passed on the application moved by MCD seeking clarification/ modification of earlier order dated 22. 5. 96 as there appears to be some conflict in the interim order passed in three matters pending before the Court. After discussing the matter at length into alia, following observations were made: "in our opinion the Rules read along with the relevant DPC instructions leave, no manner of doubt in holding that the list of eligible Candidate has to be prepared yearwise the crucial cut-off date for determining eligibility has to be 1st October of the year, as admittedly in the-MCD, the ACRs are written financial yearwise. We are also of the opinion that the original seniority cannot be disturbed. It has to be retained. Therefrom eligible candidates have to be picked up and ineligible candidates excluded so as to prepare a list of eligible candidates. What has to be seen is eligibility or ineligibility as on 1st October of the year. We are also of the opinion that the original seniority cannot be disturbed. It has to be retained. Therefrom eligible candidates have to be picked up and ineligible candidates excluded so as to prepare a list of eligible candidates. What has to be seen is eligibility or ineligibility as on 1st October of the year. Any one eligible on that day, if falling within the zone of consideration, is entitled to have his name forwarded to the UPSC. The list of the eligible candidates has to confirm to the seniority in the cadre. There is no question of the order of seniority being altered by reference to date of acquisition of the eligibility". ( 4 ) HOWEVER, even after passing the order dated 11. 9. 96, still some doubts persisted and applications were filed for clarification of order dated 11. 9. 96 also. On these applications order dated 17. 4. 98 was passed wherein it was observed that the post should not be kept vacant for wrong and steps be taken to fill up the post on regular basis. It was also noticed that without fulfilling the post on regular basis, ad hoc current charge appointments are made which continue for a length of time thereby resulting in denying regular promotions and placing favourites on such key posts. Afterconsidering the submissions of all the parties and relevant instructions on ad hoc promotions issued by the Government, the Court passed the following clarification and further directions in continuation of order dated 11. 9. 96: " (I) The order dated 11. 9. 96 applies to regular appointments to the post of Executive Engineer (Civil) to be made during the pendency of the petition. In so far as ad hoc\current charge appointments are concerned, it would not be necessary to hold and convene the DPC. (ii) Such ad hoc\current charge appointment\promotions shall be limited to a period of one year only and shall automatically cease on the expiry of the term appointed or one year from the date of appointment-whichever be earlier. (iii) Rule of seniority-cum-fitness shall be followed; (iv) Such appointments\promotions shall not be continued or renewed as a camouflage on regular appointments. (v) MCD would observe the Government instructions regarding initiation of regular appointment\promotions at least four months prior to anticipated vacancies. (vi) Intimation shall be given to UPSC of all such appointments\promotions". (iii) Rule of seniority-cum-fitness shall be followed; (iv) Such appointments\promotions shall not be continued or renewed as a camouflage on regular appointments. (v) MCD would observe the Government instructions regarding initiation of regular appointment\promotions at least four months prior to anticipated vacancies. (vi) Intimation shall be given to UPSC of all such appointments\promotions". ( 5 ) THE MCD on the basis of the aforesaid direction issued Circular letter dated 20. 7. 98 incorporating the aforesaid direction which included that Rule of Seniority- cum-fitness shall be followed while making any ad hoc arrangements. ( 6 ) REVERTING to the facts of this case, it may be stated that eligibility list is prepared each year for promotion to the post of Executive Engineer-Petitioner completed 10 years of service as Assistant Engineer on 18. 8. 99 and become eligible for promotion w. e. f. 1-10-99 in the year 1999-2000 under the Recruitment Rules. Respondent No. 3 who is a degree-holder although junior to the petitioner completed 5 years of service as Assistant Engineer and became eligible for promotion on 1. 10. 95 i. e. in the year 1995-96, 1996-97, 1997-98 and 1998-99, thus for the years 1995 to 1999 respondent No. 3 was eligible for the post of Executive Engineer, petitioner was not eligible. However, when the ad hoc appointments were made during this period, respondent No. 3 could not be promoted as he was facing disciplinary action due to which his name could not be considered for promotion whereas his juniors were granted promotion. Some punishment was also imposed upon respondent No. 3 which continued till 1999. Two vigilance cases pending against him were finalised in April, 1999 and third case was finalised by imposing a minor penalty of warning on 29. 9. 99. Thus till September, 1999 due to the pendency of the aforesaid cases, he could not be promoted even on ad hoc basis. For the year 1999 and 2000 petitioner also became eligible and in the eligibility list of 1999-2000 petitioner would admittedly rank above respondent No. 3 as he is senior to respondent No. 3. On 12. 1. 2000 an Office Order was passed promoting respondent No. 3 to the post of Executive Engineer on ad hoc basis for a period of one year or till such time the post is filled up on regular basis whichever is earlier. On 12. 1. 2000 an Office Order was passed promoting respondent No. 3 to the post of Executive Engineer on ad hoc basis for a period of one year or till such time the post is filled up on regular basis whichever is earlier. Aggrieved against this order petitioner has filed this present petition and his contention is that he being senior to the respondent No. 3 should have been given ad hoc promotion as per the directions of Division Bench contained in the order dated 17. 4. 98 quoted above which were circulated by the respondents in their Circular dated 20. 7. 98. ( 7 ) THE position which emerges from the aforesaid facts is as under: ( 8 ) PETITIONER is senior to respondent No. 3 in the seniority list. Respondent No. 3, however, being degree-holder completed 5 years of service in 1995 and became eligible for promotion as on 1. 10. 95. He could not be promoted to the post of Executive Engineer on ad hoc basis till 1999 as he was facing disciplinary action. In 1999-2000 petitioner also becomes eligible and in the eligibility list for 1999-2000 petitioner ranks above respondent No. 3. At this juncture when the ad hoc promotion is made whether it is petitioner who is to be treated as senior to respondent No. 3 or it is respondent No. 3 who is to be treated as senior as he became eligible earlier than the petitioner. On determination of this question the fate of this case hinges. ( 9 ) SETTING highest standards of professional ethics, Mr. Rakesh Dwivedi, learned senior counsel appearing for respondent No. 3 cited the recent judgment of Hon ble Supreme Court in the case of R. B. Desai and another Vs. S. K. Khanolker and others, reported in (1999) 7 SCC 54 which conclusively determines the aforesaid question posed in this case and answers the question against respondent No. 3. In that case the Court held as under: "if on the date of consideration, the appellants did not have the eligibility then certainly it is the first respondent who ought to have been considered for the said promotion and if he was so promoted earlier than the appellants he would have acquired a higher ranking in the seniority list of ACFs. That not being the case, we are unable to agree with the view taken by the High Court, as stated above, because on the date on which the avenue for promotion to the cadre of ACFs opened both the appellants as well as the first respondent had the necessary eligibility and their names figured in the eligibility list. That being so, as stated above, it is the appellants whose case ought to have been considered first and it was so done and they having been found otherwise suitable, they were rightly promoted earlier than the first respondent. Consequently, they are entitled to a higher ranking in the cadre of ACFs visa-vis the first respondent. The view taken by us also finds support from the judgment of this Court in Union of India Vs. B. Jayaraman wherein considering a similar argument this Court held: (SCC Headnote) "the note in column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade II for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all. " with which view we respectfully agree. " ( 10 ) I may state here that Full Bench of Punjab and Haryana High Court in the case entitled Punjab State Electricity Board, Patiala and Another Vs. Ashok Kumar Sehgal and Others reported in AIR 1990 Punjab and Haryana 117 had taken contrary view and appeal filed against that judgment was also dismissed by Supreme Court vide order dated September 14, 1994. This was a decision rendered by two Judges of Supreme Court which it appears was not brought to the notice of the Court while deciding the case of R. B. Desai (Supra ). It was fairly conceded by Mr. Dwivedi that since R. B. Desai case is a judgment rendered by three Judges and also later in point of time, it is this decision which binds this Court. Following the ratio of R. B. Desai (Supra), it is clear that even if respondent No. 3 acquired eligibility prior to the petitioner, facts remains that he could not get promotion all these year due to pendency of disciplinary case pending against him. Following the ratio of R. B. Desai (Supra), it is clear that even if respondent No. 3 acquired eligibility prior to the petitioner, facts remains that he could not get promotion all these year due to pendency of disciplinary case pending against him. In the year 1999-2000 when both petitioner and respondent No. 3 are eligible, petitioner because of his seniority would rank above respondent No. 3 in the eligibility list and would have preferential claim ( 11 ) THE post of Executive Engineer is a selection post. Regular appointments are not made. By the impugned order respondent No. 3 is promoted to this post on ad hoc basis for a period of one year. As per the directions dated 17. 4. 98 contained in the case of Kapoor Chand (Supra) while making ad hoc promotions, Rule of Seniority- cum-fitness follow. Petitioner being senior to respondent No. 3 could not have been ignored and respondent No. 3 given preference. ( 12 ) IN the counter-affidavit filed by the MCD, the MCD has justified the impugned promotion order on the ground that although respondent No. 3 became eligible for promotion on 1. 10. 95 he could not be promoted till 1999 because of pendency of disciplinary cases against him and when he became free from any currency of punishment, his case was considered for promotion "as a left out case. " This course of action adopted by the MCD is clearly erroneous and against the ratio of Supreme Court in the case of R. B. Desai case. The respondent No. 3 could not get promotion from 1995 till 1999 because of disciplinary cases pending against him. This was valid ground for not promoting him at that time. Therefore, he becomes eligible for promotion only as on 1. 10. 99 after the disciplinary cases pending against him were concluded. However, as on that date petitioner also becomes eligible and petitioner being senior to respondent No. 3 has a prior claim, when for ad hoc promotion seniority-cum-fitness is the consideration. By treating "as a left out case" MCD is giving weightage to the fact that respondent No. 3 became eligible for promotion prior to the petitioner and, therefore, is to be given preference which cannot be done in view of the decision of the Supreme Court in the aforesaid judgment of R. B. Desai (supra ). ( 13 ) THIS petition, accordingly, succeeds. ( 13 ) THIS petition, accordingly, succeeds. Rule is made absolute. Impugned order dated 12. 1,2000 is hereby set-aside. Respondents are directed to make ad hoc promotion keeping in view the ratio laid down in the case of R. B. Desai (Supra) and the direction dated 17. 4. 98 passed by Division Bench of this Court in Kapoor Chand case. If the petitioner is senior most and is otherwise fit for promotion, he should be considered for promotion, on ad hoc basis in preference to respondent No. 3. ( 14 ) NO orders as to costs.