JUDGMENT The petitioner has filed this writ petition under Article 226 of the Constitution of India with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned award, of the Labour Court dated 30.11.1999, published on 10.5.2000 and received by the petitioner on 24.5.2000, Annexure No.7 to the petition. 2. The petitioner is District Co-operative Bank registered under U.P. Cooperative Societies Act, 1965. The respondent No.2 Sri Kewala Nand Joshi was appointed as Class - IV employee by the V.P. Co-operative Institutional Service Board and an appointment letter was issued by the petitioner to the respondent No.2 vide order dated 3.1.1976 (Annexure No.1). He was confirmed on the post of peon vide order dated 7.1.1997. A post of clerk fell vacant Whereupon he submitted application dated 21.9.1978 (Annexure No.2) seeking appointment on the post of clerk. Pursuant to the request the Chairman of the petitioner bank passed an order on 7.10.1978 whereby the respondent No.2 was allowed to work of' the post of clerk stipulating that the said incumbent will have no right against the post of clerk and he can be asked to join on his substantive post (Annexure No.3). On .21.1.1986 vide resolution No) (Annexure No.4) request was made by the petitioner to the Institutional Service Board, per regulation No. 5 (1)(b) and 5(VII), of Co-operative Societies Employees Service Regulations 1975 forgiving promotion to 12 class IV employees named therein. The secretary of the Board by means of an order dated 13.3.1986 intimated that incumbents for whom request was made stand finally selected, for promotion as class-III employees and in it the name of respondent No.2 was shown at serial No.8 (Annexure No.5). A seniority list of class-III employees showing the respondent No.2 at serial No. 44 was published on 11.1.1991 (Annexure No.6). The respondent No.2 was confirmed on the post of clerk/cashier after completion of one year of probation period by order dated 21.9.1987 passed by the petitioner. 3. Aggrieved by the above seniority list respondent No. 2 raised an industrial dispute and the same was referred by the State Government in exercise of the powers under section 4(K) of U.P. Industrial Disputes Act, 1947 to the Labour Court. 3. Aggrieved by the above seniority list respondent No. 2 raised an industrial dispute and the same was referred by the State Government in exercise of the powers under section 4(K) of U.P. Industrial Disputes Act, 1947 to the Labour Court. The disputed referred was as under : "Whether non placement of Sri Kewala Nand Joshi at serial No. 11 of the seniority list of the clerk/cashier by not treating the date of his promotion as 7.10.1978 is improper and illegal? If so, to what relief, if any the said employee is entitled?" 4. The respondent No.2 in support of his claim has submitted that his officiating period may-be counted and all the consequential benefits be given to him from 1978, the date from which he was officiating on the post of clerk/ cashier. The petitioner submitted that the power to make regular appointment either by direct or through promotion exclusively vests in the Institutional Service Board and the Board had finally selected the respondent No.2 for promotion as class-III employee by means of order dated 13.3.1986 and therefore the petitioner was not legally entitled to claim his seniority from 7.10.1978. 5. The petitioner also contended that the officiating period cannot legally be counted towards the seniority in the case of the respondent No. 2 and the impugned award given by the Labour Court is illegal, arbitrary and without jurisdiction. The petitioner also raised the plea that since the services of the respondent No.2 are governed by the statutory regulations known as U.P. Cooperative Societies Employees Service Regulations, 1975 which has been framed under section 122(2) of the U.P. Co-operative Societies Act, 1965, therefore the provisions of U.P. Industrial Disputes Act, 194~1 are not applicable and the Labour Court has no jurisdiction to adjudicate the case of the respondent No.2. 6. The respondent No.2 filed counter affidavit wherein the contentions raised by the petitioner have been refuted and the petition has been resisted on the grounds, inter alia, that subsequent to the section of 12 class-IV employees for promotion as class-III employees, the co-operative Bank Staff Association, Haldwani vide its letter No. 6896 dated 15.8.1987 asked the employer to do the needful in respect of correct fixation of the seniority and thereafter the respondent No.2 again requested the employer to look into his matter through its association, vide letter dated 30-8-1987 but did not receive any reply. The petitioner bank vide its letter dated 11.1.1991 rejected the objection of the respondent No.2 by a non reasoned order and on 11.1.1991 published the seniority list in which he was placed at serial No. 44 although he ought to have been placed at serial No. 11 in the seniority list. 7. The respondent No.2 further contended that the work of clerk was taken from him right from 7.10.1978 and there is nothing on record to show that the petitioner bank made any reference to the Institutional Service Board before 21.1.1986 i.e. after more than 7 years of promotion. The act and omission of the petitioner bank had caused loss and grave injustice to him by not treating 7-10-1978 as the date of his seniority and placing his juniors above him in the seniority list. According to him the award given by the Labour Court is perfectly just and proper and in conformity with the settled law of the land and that the Labour Court has jurisdiction to adjudicate the dispute on a valid reference made to it. 8. In the supplementary counter affidavit the respondent No.2 averred that in the year 1977 four substantive vacancies existed in the cadre of clerk cashier and an advertisement for filling these vacancies was made in the edition of Swatantra Bharat on 6.2.1977 by the Institutional Service Board. The Board should have filled these vacancies by making direct recruitment on two vacancies and by promotion on other two as the regulations provide for 50% vacancies to be filled by promotion but the Board advertised for filling the four vacancies by direct recruitment. The Board vide its letter dated 3.4.1978 (Annexure- S.C.A.1) informed the petitioner bank and these 4 persons joined the services in the month of May 1978. However, one of them Sri Uma Shankar Dabral resigned from the post in August 1978 and as such one substantive vacancy occurred in August 1978. He urged that the was given officiating promotion against this substantive vacancy on 7.10.1978 and he was therefore entitled to be placed in the seniority list on the basis of his officiation from 7.10.1978. 9. Heard Sri K.K. Shah learned counsel for the petitioner and Sri Lalit Belwal learned counsel for the respondent No.2. 10. He urged that the was given officiating promotion against this substantive vacancy on 7.10.1978 and he was therefore entitled to be placed in the seniority list on the basis of his officiation from 7.10.1978. 9. Heard Sri K.K. Shah learned counsel for the petitioner and Sri Lalit Belwal learned counsel for the respondent No.2. 10. The learned counsel for the petitioner argued that since respondent No.2 was allowed to work as officiating clerk by order dated 7.10.1978 and further that it was stipulated that he will have no right against said post and he can be asked to join on his substantive post he was not entitled to claim any benefit of the said post from 7.10.1978. Learned counsel also pointed out that, in fact, the respondent No. 2 was only legally promoted vide order of the Institutional Service Board dated 13.3.1986 as per the provisions of the U.P. Cooperative Societies Service Regulations, 1975 and therefore he was legally entitled to claim his seniority from the said date and was rightly placed at serial No. 44 of the seniority list, Annexure-6 to the petition. The learned counsel also submitted that the respondent No.2 was also not entitled to regular promotion in view of the bar created by the provision of section 27 of the U.P. Co-operative Societies Employees Service Regulations, 1975 in as much as the respondent No.2 has not put in three years of service to his credit on 7.10.1978. It may be mentioned that the respondent No.2 was appointed as class IV employee on 3.1.1976 only and such as not put in three years service on 7.10.1978. In view of the above the learned counsel submitted that the fixation of the seniority of the respondent No. 2 was according to the rules and that' all the incumbents who were approved for promotion by the Service Selection board vide its order dated 13.3.1986 (Annexure-5) were given seniority 'as such in the seniority list according to quota. 11. In view of the above the learned counsel submitted that the fixation of the seniority of the respondent No. 2 was according to the rules and that' all the incumbents who were approved for promotion by the Service Selection board vide its order dated 13.3.1986 (Annexure-5) were given seniority 'as such in the seniority list according to quota. 11. On the other hand learned counsel for the respondent No.2 submitted that even if the initial appointment was not made according to the regulations but the respondent No. 2 continued to work as clerk, cashier un-interruptedly since 7.10.1978 and by virtue of the order of the Board dated 13.3.1986 regarding the promotion of number of incumbents including the respondent No.2, his period of continuous officiation should have been counted while fixing his seniority. It was also submitted that under these circumstance the stipulation in the order dated 7.10.1978 that the respondent No.2 will f1ave no right against the post of clerk/cashier and he can be asked to join on his substantive post and even the agreement that he would not claim higher salary would not effect his seniority. 12. It is not in dispute that the respondent No.2 was temporarily promoted to the post of clerk/cashier on 7.10.1978 and no period in the order for such promotion was mentioned. Respondent No.2 there fore continued to work on the said post till regular order of promotion was made by the Institutional Service Board on 13.3.1986 under the provisions of regulation No.5 (l)(b) and 5(vii) of the Regulations 1975. It is also not in dispute that whim the respondent No. 2 was promoted on 7.10.1978 he has not put in three years service as contemplated by regulation No. 27 of the Regulations 1975. In these circumstances the basic question which arose for consideration was:- Whether the ad-hoc officiation on the post of clerk/cashier count for seniority. 13. As stated above on reference the Labour Court on the facts of the case found the answer to the question in favour of the respondent No.2. 14. It need to be mentioned at the out set that normal principle is that adhoc service does not count for seniority. However as a exception to this rule, the adhoc service shall count for seniority if the following conditions are satisfied, namely:. 14. It need to be mentioned at the out set that normal principle is that adhoc service does not count for seniority. However as a exception to this rule, the adhoc service shall count for seniority if the following conditions are satisfied, namely:. (A) (1) The appointee was not ineligible for appointment to that cost in regard to age, educational qualifications and expenence prescribed by the recruitment rules; and (2) the appointment was not stop gap arrangement or of fleeting nature; (3) the initial ad-hoc appointment was made by following the procedure according to rules; and (4) he is, eventually appointed to that post by the regular process. (B) Where the conditions mentioned at serial Nos. 1, 2 and 4 above are satisfied but the initial appointment was not made by following the procedure prescribed by the rules, the ad-hoc service sha.1I count for seniority if the appointee has worked un-Interruptedly In the said post, over a long period of time till he was regularized on that very post. 15. The above proposition is precipitated by the leading case of the Direct Recruit, Class-II Engineering Officers service Association Vs. State of Maharastra; A.I.R. 1990 Supreme Court 1607 which has also been placed reliance in this case by the learned counsel for the petitioner. The facts of the case were that the recruitment rules provided for appointment both by methods of promotion as well as direct recruitment on quota basis. The direct recruits contended that the promotees will have to go down below the direct entrants who had joined the service in accordance with the quota under the rules. The contention of the promotees was that since they were appointed in accordance with the rules and had continuously been officiating in the post they were entitled to count their entire officiating service towards seniority. On the facts of the case the Constitution Bench decided that since the initial appointments were according to the rules, the promotees were entitled to seniority from the date of initial promotion. The Hon'ble Supreme Court laid down the following propositions which are binding precedents for all subsequent cases:- (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 Hon'ble Supreme Court laid down the following propositions which are binding precedents for all subsequent cases:- (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 ad-hoc and not according to rules and made as a stop gap arrangement, the officiation in such post can not 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 regularization of his service in accordance with the rules, the period of officiating service will be counted. 16. The proposition "A" lays down that to enable seniority to be counted from the date of initial appointment the incumbent of the post has to be initially appointed according to rules. The later part as a corollary to the rule postulates that where the initial appointment is only ad hoc and not according to rules and is made as a stop gap arrangement the period of officiation in such post can not be taken into account for considering the seniority. It is not in dispute that respondent No.2 was not promoted according to rules i.e. Co-operative Societies Employees Service Regulations, 1975 on the post of clerk/cashier on 7.10.1978 and therefore his seniority can not be counted from the date of his appointment as envisaged by the first part of the above proposition "A". His promotion as clerk/cashier was in fact only ad hoc and not according to rules and as a stop gap arrangement, the officiation therefore in such post can not be taken in to account for considering the seniority as the later part of the above proposition make this situation clear. 17. So far as the case to fall under proposition "B" the conditions to be satisfied are such as have been mentioned in the earlier part of the judgment with reference to counting the ad hoc service for seniority. 17. So far as the case to fall under proposition "B" the conditions to be satisfied are such as have been mentioned in the earlier part of the judgment with reference to counting the ad hoc service for seniority. In the instant case the respondent No. 2 was ineligible for promotion in view of the proviso to section 27 of the Regulations, 1975 which provide that no employee shall, unless he has put in three years of service to his credit be entitled for promotion to higher post. The respondent No. 2 was working as class IV employee since 3.1.1976 and on the date of ad hoc promotion i.e. 7.10.1978 he has not put in three years of service to his credit and therefore he was ineligible for promotion to higher post of clerk/cashier. His promotion was merely stop gap arrangement and even if he was eventually promoted to the post of clerk by the regular process on 13.3.1986 his period of officiating service can not be counted for considering the seniority. 18. In view of above the case of the respondent No.2 on all considerations fall in the category of the incumbent whose officiation on a post can not be taken into account for considering the seniority in view of the initial promotion being only ad hoc and not according to rules and made as a stop gap arrangement as envisaged by the corollary set out in proposition "A" above. 19. In other words in the face of the above settled legal principle the inference drawn by the Labour Court in favour of the respondent No.2 can not be said to be just and proper. The officiation of the respondent No.2 on the post of clerk/cashier cannot be taken into account for considering the seniority and he was not rightly placed at serial No. 11 of the seniority list on the basis of his initial promotion on 7.10.1978. He was promoted according to rules by an order dated 13.3.1986 and as per prescribed quota rules he was rightly placed at serial No. 44 of the seniority list, Annexure-6 to the petition. On the face of the facts of the case it will make little difference that on 3.4.1978 four vacancies of c1erk/ cashier were filled by direct recruitment vide, Annexure 5.C.A.-1 to the supplementary counter affidavit of the respondent No.2. On the face of the facts of the case it will make little difference that on 3.4.1978 four vacancies of c1erk/ cashier were filled by direct recruitment vide, Annexure 5.C.A.-1 to the supplementary counter affidavit of the respondent No.2. When the vacancies were filled by the said order the respondent No.2 has not even completed a period of three years continuous service as peon and by virtue of the disability under rule 27 of the Regulation, 1975 he could not have been considered for promotion against those vacancies. 20. For the above reasons it is obvious that the impugned award is illegal, arbitrary and without jurisdiction and the same cannot therefore be maintained. 21. The writ petition therefore succeed and is allowed. The impugned award dated 30.11.1999, published on the notice board on 10.5.2000, Annexure7 to the writ petition is therefore quashed. No order as to costs.