JUDGMENT ORDER : Honble Mr. V.K. Bhatnagar Member (Adm.) :- This original application has been filed by two applicants who after passing the Bachelor of Engineering Degree had joined the service of the respondent State as direct recruits on August 11, 1988 as Assistant Engineers. Their names appeared in the final seniority list circulated on November 30, 1995 showing the position as on March 16, 1995 at Serial Nos. 9 and 70 respectively as per Annexure-A/1. Subsequently respondent No.1 circulated on December 9, 1997 a provisional seniority list of Assistant Engineers as on October 31, 1997. In the said provisional seniority list the names of the applicants were shown at Serial Nos. 131 and 132. Earlier in the seniority list Annexure-A/1 the Diploma Holder Engineers who were placed en block below such to direct recruits who were appointed prior to the date of regularisation of Diploma Holders. However, in the provisional seniority list (Annexure-A/7), some of these diploma holders have allegedly been placed senior to the applicants, though the services of those diploma holders had been regularised only in 1995 or thereafter. The grievance of the applicants is that the provisional seniority list if finalised would adversely affect their chances of promotion to the post of Executive Engineer. 2. Another grievance of the applicants is that this Tribunal in OA-174/96 had directed for holding of a review Departmental Promotion Committee meeting for consideration of all eligible officers for promotion to the post of Executive Engineer on year wise basis vis-a-vis vacancies in each particular year during the period commencing from 1985 to 1993, separately, in accordance with the instructions/rules pertaining to rota and quota basis of each category within a period of three months from the date of that order, Further it was also ordered that while holding the meeting of the review Departmental Promotion Committee, persons who have retired or had died during the period in question, would also be considered. It has been contended that both these directions have not been complied with by the respondents. 3. It has been contended that both these directions have not been complied with by the respondents. 3. It has also been stated that final seniority list contained in Annexure-A/1 had become final and there was no reason to issue fresh provisional seniority list as Annexure-A/7 in which the Diploma Holders have been given seniority above the applicants, Further grievance of the applicants is that the proposed seniority list contained in Annexure-A/7 is not in accordance with the instructions issued by the respondent State on October 7, 1986 as per Annexure-A/8. Vide instructions contained in Annexure-A/8, the Government of Himachal Pradesh had stated that the revised instructions issued by Government of India on October 7, 1986 (Annexure-A/9) regarding the general principle for determining seniority of various categories of persons had been adopted by the State Government and these instructions would be applicable to the employees of the State with effect from the date of issue of Annexure-A/8. In the instructions issued by Government of India on February 7, 1986 (Annexure-A/6), the general principle for determining seniority between direct recruits and promotee officers have been spelled out. In brief, these instructions cover situations were the roster point fixed for direct recruits and promotee officers are not filled for a considerable period on account of non availability of officers of a particular category. Before issue of instructions in Annexure-A/9, the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees became available, such persons occupied these vacant slots. Thus such subsequently appointed persons became senior to persons who were already working in the grade on regular basis. This position was not approved by the courts and the fresh instructions (Annexure-A/9) were issued to give fair position to the direct and promotee officers according to their appointments. According to new instructions to the extent direct recruits (or promotees as the case may be) are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits quota vacancies (or promotees vacancies as the case may be) who were available. The unfilled direct quota vacancies (or promotee quota vacancies as the case may be) would be carried forward and added to the corresponding direct recruitment vacancies (or promotee vacancies as the case may be) of the next year (and to the subsequent years if necessary) for taking action for direct recruitment (promotion, as may be necessary) for the total number according to the usual practice. Thereafter, in that year while seniority will be determined between direct recruits and promotees, to the extent of number of vacancies for the two categories, as determined according to the quota for that year, the additional direct recruits (or promotees) against the carried forward vacancies of the previous year would be placed en bloc below the last promotee (or direct recruit, as the case may be) in the seniority list based on the rotation of vacancies for that year. 4. The grievance of the applicants is that while circulating the provisional seniority list as par Annexure-A/7, these instructions have not been followed. In view of this grievance welling relief has been claimed:- (i) that the respondents may be restrained from finalising the tentative seniority list issued on December 9, 1997. (ii) that the respondent department may be directed to make all promotions to the post of Executive Engineers on regular basis in accordance with the final seniority list as it stood on March 16, 1995 issued vide memorandum dated November 30, 1995. (iii) That the respondents may be directed to implement the judgment of Naresh Sharmas case in OA-174/96 after December 30, 1993 till the date and to convene review Departmental Promotion Committee by considering eligible Assistant Engineers for promotion to the post of Executive Engineers in accordance with Rules and law and to give benefit to the applicants in promotion to the posts of Executive Engineers with all consequential benefits. (iv) That no retrospective regularisation be given to the promotees who were promoted after 1995. 5. During the course of hearings Sarvshri Rattan Singh Dogra and I.S. Chandel both Assistant Engineers (Diploma Holder) filed Misc. applications No. 2301 of 1999 and 1704 if 1999 and requested to be impleaded as respondents. These Misc. applications were allowed and they were arrayed as respondents 2 and 3 respectively. 6. Respondent No. 1 filed a reply resisting the original application. This reply has been adopted by respondents 2 and 3. 7. applications No. 2301 of 1999 and 1704 if 1999 and requested to be impleaded as respondents. These Misc. applications were allowed and they were arrayed as respondents 2 and 3 respectively. 6. Respondent No. 1 filed a reply resisting the original application. This reply has been adopted by respondents 2 and 3. 7. Respondent No.1 has stated that some promotions to the post of Assistant Engineers on the year wise recommendations of the Departmental Promotion Committees from 1974 to 1994 were made in the joint cadre of Public Works Department and Irrigation and Public Health. The final seniority list of Assistant Engineers was circulated on November 30, 1995 and in this list, these promoted Assistant Engineers were placed en bloc junior to the direct recruits appointed during the period 1974 to 1995. Therefore, majority of the promotee Asstt. Engineers represented for re-casting of the seniority list and it was proposed to re-cast the seniority list as per advise of the Personnel Department and in accordance with the instructions issued by Personnel Department vide office memo No. 1-9/73 (Apptt.) dated September 28, 1973 and office memorandum No. 1-9/73 (DP) Apptt.-II dated October 7, 1986. That the provisional seniority list contained in Annexure-A/7 had been framed keeping these instructions in view and had been circulated for inviting objections. This list was to be finalised after deciding the representations received against this provisional seniority list. That the promotion to the post of Executive Engineers on year wise basis in accordance with the order of this Tribunal in IA-174/96 was possible only after re-casting the seniority list of Assistant Engineers on the basis of advise of the Personnel Department. That the fresh seniority list of the Assistant Engineers will be finalised in consonance with the judgment delivered by this Tribunal in case of Naresh Sharma (OA-174/96). That the provisional seniority list of Assistant Engineers circulated on December 9, 1997 was on the basis of yearwise recommendations made by the Departmental Promotional Committee and also instructions issued by the Department of Personnel from time to time. The respondents also submitted that the judgment delivered in OA- 174/96, titled as Naresh Sharma and others Versus State of Himachal Pradesh and others, would be kept in view while finalising the seniority list of the Assistant Engineers. The respondents prayed that the original application may be dismissed with costs. 8. The respondents also submitted that the judgment delivered in OA- 174/96, titled as Naresh Sharma and others Versus State of Himachal Pradesh and others, would be kept in view while finalising the seniority list of the Assistant Engineers. The respondents prayed that the original application may be dismissed with costs. 8. The learned counsel for the parties have been heard and pleadings have been gone into. 9. The learned counsel for the applicants have stated in their arguments that the final seniority list contained in Annexure-A/1 could not be changed on the basis of representations made by the Diploma Holder Assistant Engineers as this list was already in accordance with the instructions of the Department of Personnel. The learned counsel further argued that the adhoc service rendered by these Diploma Holder Assistant Engineers cannot be counted for giving them higher seniority or for promoting them to the post of Executive Engineers. 10. The learned Addl. Advocate General referred to the reply filed by respondent State and stated that the State Government in their reply had already undertaken to comply with the instructions contained in Annexure-A/9 and to take further action in finalising the seniority list of Assistant Engineers and in making promotions to the judgment announced in OA-174/96 (Naresh Sharma case). He stated that in view of this the present original application was pre-mature and has no merit. 11. The learned counsel for the private respondents however, referred to judgment of the Honble Supreme Court in The Direct Recruit Class-II Engineering Officers Association and others versus State of Maharashtra 3rd others reported in A.I.R. 1990 S.C. 1607. He also referred to the judgment or Honble Punjab & Haryana High Court in Bir Singh Kadian and others versus State of Haryana and another reported in 1994 (4) S.L.R. 424. The second case is, however, not relevant to the present case. In the first case the matter has been thoroughly considered by the Honble Apex Court. The Honble Apex Court while summing up the whole matter has observed as under :- "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Honble Apex Court while summing up the whole matter has observed as under :- "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only adhoc and 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. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." 12. According to these observations it is evident that the Honble Apex Court has held that even if the initial appointment is not made by following the procedure laid down by rules but such appointees continues in the post uninterruptedly till regularisation of their services in accordance with rules, the period of officiating service will be counted towards seniority, however, there is latest judgment of the Honble Apex Court in Rudra Kumar Sain and Other versus Union of India and other reported in 2000 (4) S.L.R. 787. In this case also, the entire matter as to whether the adhoc service rendered by an officer for a long period of time should be counted for seniority was being examined. After considering the entire matter the Honble Apex Court has held as under:- "In the 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 appointment cannot be held to be "stop-gap" or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/adhoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous." 13. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/adhoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous." 13. The entire controversy in the present original application is as to whether Diploma Holder Assistant Engineers who had rendered adhoc service for long period of time and were regularised only in the year 1995 and subsequently, could be given the benefit of their adhoc service. The law quoted above by the learned counsel for the respondents 3 and 4, and the latest case referred to above do indicate that the promotions of Diploma Holder Junior Engineers to the post of Assistant Engineers and their adhoc service in that capacity followed by regular appointment in the year 1995 has to be counted towards seniority. It has nowhere been stated by the applicants that the promotion/appointment of these Diploma Holder Junior Engineers to the post to Assistant Engineers was in violation of rules. They were duly qualified for the post and were promoted as such, after rendering service of required number of years in the feeder category. Once they were promoted to the posts of Assistant Engineer in accordance with Rules, though on adhoc basis, that adhoc service followed by their regularisation has made them eligible for counting of their adhoc service in terms of the judgments, referred to above. That being so, the benefit of adhoc service has to be given to these Diploma Holder Engineers. 14. The plea of the applicant that while finalising the provisional seniority list the instructions contained in Annexures-A/8 and A/9 have not been followed has been denied by the State Government. In fact, the State Government has stated that this instructions have been followed. Even otherwise from the pleadings of the applicants it is not the case that the Diploma Holder Assistant Engineers has become senior to them in the proposed seniority list on account of non compliance by the respondents of the instructions contained in Annexures-A/8 and A-9. In fact, the State Government has stated that this instructions have been followed. Even otherwise from the pleadings of the applicants it is not the case that the Diploma Holder Assistant Engineers has become senior to them in the proposed seniority list on account of non compliance by the respondents of the instructions contained in Annexures-A/8 and A-9. The applicants have stated in para 6 (vi) of the original application that "the process to make direct recruitment was initiated somewhere in the year 1987 and no steps were taken at that time by the Department to make regular promotions to the post of Assistant Engineer. The process to make regular promotion was initiated in the year 1993-94. In this view of the matter, the seniority of the applicants vis-a-vis diploma holder Assistant Engineers has to be fixed in accordance with the instructions annexed as Annexure-A/9... and any action taken in contravention to these instructions is ultra- vires and liable to be quashed." 15. The respondent state has already undertaken in their reply to comply with instructions contained in Annexure-A/9. However, these instructions deal with filling up roster positions when the promotions do not keep pace with direct recruitment or vice versa but do not say anything about counting of adhoc service rendered by a person. Benefit of adhoc service is a separate matter and has to be considered in accordance with the Law laid down by the Honble Apex Court. Counting of adhoc service will, however, fix the date of their appointment or promotion as assistant Engineer and on that basis, they will be placed in the yearwise available vacancies in accordance with roster in terms of instructions contained in annexure-A/9. The seniority list contained in Annexure-A/1 is rightly proposed to be revised after considering objections received by respondent No. 1. 16. In view of the aforementioned position of law and the reply affidavit filed by respondent No. 1 this original application is dismissed and the stay granted in Misc. application No. 2304 of 1999 on June 4, 1999 is vacated. -