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2010 DIGILAW 781 (RAJ)

Ashu Jain v. Union of India.

2010-04-06

A.M.KAPADIA, GOPAL KRISHAN VYAS

body2010
JUDGMENT 1. - In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the impugned judgment dated 10.03.2000 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 516/1995, filed by the respondent-original applicant, whereby while allowing the original application, the Tribunal passed the following order : "7. The O.A. is accordingly allowed. The impugned order dated 19.1.95 (Annexure A/1), seniority list dated 1.8.90 (Annexure A/5) and seniority list dated 26.7.91 (Annexure A/7) are set aside. The respondents are directed to assign seniority to the applicant above respondents Nos. 3 to 6 with all consequential benefits, like promotion, pay fixation, etc. etc." 2. We have heard learned counsel for the parties. 3. According to facts of the case, respondent-original applicant claimed his seniority on the post of D.S.K.P. - III with effect from the date when he was promoted on ad hoc basis. The applicant was promoted to the post of D.S.K.P. - III in a chain vacancy by adopting the prescribed procedure with effect from 20.06.1987. He was given officiating benefit with effect from 20.03.1987, the date from which one of his junior G.K. Bohra was promoted as D.S.K.P. - III. In the seniority list published earlier the respondent-original applicant was shown senior to respondents No. 3 to 6 (before the Tribunal). Subsequently, applicant was regularised on the said post with effect from 26.05.1988 without going through any selection process and applicant was promoted on a regular vacancy by adopting the prescribed procedure, therefore, it was claimed by him that period of officiating on ad hoc basis on the post of D.S.K.P. - III should be counted for the purpose of seniority. 4. Learned Tribunal held while observing certain judgment of the Hon'ble Supreme Court that promotee appointed to a post against permanent vacancy on ad hoc basis through regular process and direct recruits appointed in the same year though the promotee appointed on regular basis subsequently, the entire period of ad hoc services would count towards seniority of a promotee vis-a vis direct recruit. 5. Upon perusal of the pleadings, indisputably the petitioner was promoted in a chan vacancy, that too, on officiating basis and he was regularised subsequently in accordance with law vide order dated 26.05.1989 with effect from 26.05.1998. 5. Upon perusal of the pleadings, indisputably the petitioner was promoted in a chan vacancy, that too, on officiating basis and he was regularised subsequently in accordance with law vide order dated 26.05.1989 with effect from 26.05.1998. After perusing the judgments, we are unable to understand how the Tribunal has considered the fact that the petitioner was promoted on ad hoc basis after following the procedure laid down in the rules. It is nowhere pleaded by the respondent-original applicant that regular vacancy was in existence and he was within the zone of consideration and while following the procedure prescribed in the rules for the purpose of ad hoc promotion he was promoted on ad hoc/officiating basis. Without there being such pleadings on record, in a very casual manner, the learned Tribunal has allowed the original application and erroneously granted the benefit of seniority with effect from the date of promotion on officiating basis. 6. Learned counsel appearing on behalf of the petitioner invited our attention towards the following judgments of the Hon'ble Supreme Court ; (1) (2009) 1 S.C.C. (L & S) 790 (2) (1992) Supp (1) SCC 272 (3) (1990) 2 SCC 715 (4) (2007) 1 SCC (L&S) 116 (5) AIR 2004 S.C. (3) 3517. 7. In the above reported judgments, the Apex Court has held that ad hoc services cannot be counted for promotion especially when there is no regular vacancy and promotion is de-hors the rules. 8. Here, in this case also, there is no pleadings on record that any regular vacancy was in existence on the day when ad hoc arrangement by way of promotion on officiating basis of respondent-original applicant was made with effect from 20.06.1987. 9. In view of the aforesaid, this writ petition deserves to be allowed and the same is hereby allowed. Impugned judgment dated 10.03.2000 passed by the Central Administrative Tribunal in Original Application No. 516/1995 is quashed and set aside.Writ Petition allowed. *******