Judgment G.R. Udhwani, J.—This group of petitions raise a common question of law to an effect as to whether a mere procedural irregularity will hold the councillors responsible for misapplication of municipal funds under Section 70 of the Gujarat Municipalities Act, 1963 (“the Act” for short). This issue is no more res-intergra in view of the decision rendered by this Court in Hinaben R. Chauhan vs. State of Gujarat ( 2002 (4) G.L.R. 3421 ), wherein this Court laid down the following principles which are reproduced hereinunder: “12. Coming to the next contention on merits, the statutory language makes it clear that a Councillor can be held to be personally liable for the misapplication of any fund (the funds of the Municipality) provided; [i] the misapplication is by or pursuant to the decision to which the concerned Councillor (including the President) was a party; or [ii] the misapplication takes place through, or was facilitated by, gross neglect or his duty by the Councillor (including the President). Misapplication of funds of the Municipality, is therefore, a sine qua non for initiation of proceedings under this provision and such proceedings would not lie merely on the ground of a mere procedural irregularity like not obtaining permission of the higher authority. It appears to the Court that there is considerable substance in the submission made by the learned Advocate for the petitioner that when the provision is enacted to compensate the Municipality for the loss caused to it on acount of any act or omission of the Councillor, the authority initiating or conducting the proceedings under Section 70 of the Act must satisfy itself that financial loss had in fact been occasioned to the Municipality. Of course the funds may be income of Municipality itself or the funds might have been made available by some other public body or agency by way of grant or it may even be any donation made to the Municipality, but it is only for misapplication of funds entrusted to the Municipality that the question of personal liability under this provision can arise. Hence, the proceedings cannot be initiated under Section 70(1) only on the ground of procedural irregularity like not obtaining prior permission from the higher authority. The actual loss must be shown to have been caused to the Municipality. It must be clarified at the same time that misappropriation need not necessarily involve misappropriation. Hence, the proceedings cannot be initiated under Section 70(1) only on the ground of procedural irregularity like not obtaining prior permission from the higher authority. The actual loss must be shown to have been caused to the Municipality. It must be clarified at the same time that misappropriation need not necessarily involve misappropriation. The two words are defined as under:— to misapply = to apply (esp. funds) wrongly to misappropriate = to apply (usually another’s money) to one’s own use, or to a wrong use. (The Concise Oxford Dictionary, 9th Edition, 1998) to misapply = to apply wrongly, to use for a wrong purpose to misappropriate = to put to a wrong use, especially to use another’s money for oneself. (Chamber’s Family Dictionary – 1990 Edition) Misapplication is thus a wider term than misappropriation. It is, therefore, not necessary for invoking the provisions of Section 70(1) that the Councillor is to be alleged to have derived any personal benefit. Use of the Municipality’s funds for a wrong purpose or causing financial loss to the Municipality through gross neglect of the Councillor is sufficient to fasten the liability of the Councillor to compensate the Municipality for the loss caused to it.” “15. The learned A.G.P. has however submitted that payment of salary of Rs. 1,00,989/to 20 daily-rated employees appointed without prior permission of the competent authority per se was misapplication of the funds of the Municipality, and therefore, the petitioner has been rightly held to be liable to make good the loss to the Municipality.” “16. The Court has already touched this aspect in Para 12 hereinabove. The Court would further like to observe that the submission of the learned A.G.P. not only overlooks the object of the statutory provision but reflects typical bureaucratic mentality and attitude which has been causing tremendous harm to public administration in our country. The impression seems to have gone round amongst various statutory functionaries and holders of public offices, high and low, functioning in the midst of a maze of procedural rules in any field that if any action required to be taken in public interest is likely to expose the functionary to the charge of violation of technical procedure, the functionary considers it safe in personal interest not to act at all rather from take the risk of facing any proceedings for such action. If no work is done, nobody is going to find fault with him, because if he does not work, there would be no possibility of charge of violation of procedural rules. This approach aggravated by insensitivity to the needs and hardships of the people has become so endemic that the initiative of a large number of public functionaries and officials has been curbed to the detriment of the society.” “17. This is not to say that public functionaries or officials in discharge of their public duties are not required to follow the prescribed procedure, but in a given case when there is any allegation of violation of the prescribed procedure, the disciplinary authority or the concerned authority must consider not only the factum of violation of the procedural rule but also the object of the procedural rule, the financial stakes involved in the transaction in question and in other transactions being ordinarily handled by the concerned individual as a party of his official duties, urgency of the work, timebeing ordinarily consumed in following the prescribed procedure or the timebeing ordinarily taken by the higher authority for granting prior sanction, whether the procedure is substantially complied with, whether the action is capable of expost facto approval, whether the decision was taken by an individual or a body, whether the body had relied upon the qualifications, skill and judgment of the individual in question, the nature and extent of the responsibilities cast upon such individual, the nature and extent of the positive work, if any, done by the public functionary/official, certainly and magnitude of the loss caused to the public authority by the act or omission in question, the nature and extent of the work not done by the concerned individual who is charged with not utilizing the funds for the purpose earmarked and the possibility of too pendantic an application of a procedural rule with only a fault finding approach paralysing honest public functionaries/official in the discharge of their discretionary duties for the fear of some proceedings being initiated against them. The authority will have to judge the cumulative effect of all such relevant considerations in the facts and circumstances of a given case. 2. The authority will have to judge the cumulative effect of all such relevant considerations in the facts and circumstances of a given case. 2. This is also nor to say that any mala fide act done by a public functionary/official in violation of a mandatory rule is as to condoned on the ground that the violation was only of a procedural rule. It is trite saying that bona fides or mala fides are not to be judged merely on the basis of compliance or violation of a procedural rule because an act may be in compliance with a procedural rule and still be mala fide, just as an act may be bona fide notwithstanding the violation of a procedural rule. What is being emphasized is the need not to overlook the broad perspective discussed earlier. Unless this perspective is kept in mind, too technical and pendantic an approach on the part of disciplinary authorities or authorities exercising similar powers with singleminded obsession to the breach of a procedural rule per se can do, and has been doing, considerable damage to the morale of the public functionaries and officials acting honestly and bona fide and their initiative has bee curbed; and has even been making a large number of honest and talented persons shun such responsible public offices.” 2. Further, this Court in Ghusalal Vaghjibhai Satani vs. State of Gujarat and another (in SCA No. 3547 of 2009, dated 19.07.2013), also made following pertinent observations: 10. To attract Section 70(1) it must be shown that there is (1) misapplication of any fund to which a Councillor is a party or (2) by deliberate gross neglect by a Councillor misapplication of municipal funds are facilitated. By resolution passed by the Municipality the funds were sought to be applied to the acquisition of a firefighter. The firefighter was a necessity and application of the funds to purchase firefighter cannot be said to be a misapplication. Further, there is nothing on record to show that the petitioner, with a knowledge that the contractor i.e. society would not deliver the firefighter, became a party to the resolution which resolved to make the above payment. It appears that the society did not comply with the contract; mere such fact would not lead to the inference that the funds were misapplied. It appears that the society did not comply with the contract; mere such fact would not lead to the inference that the funds were misapplied. The term misapplication would necessarily imply intention application of the funds for the purposes other than those contemplated under the Act. In other words, there must be a deliberate attempt to apply the funds purportedly for the purposes under the Act but in reality the intention is to cause deliberate loss to the Municipality. The phrase “facilitated by gross neglect” is a clear indicator that act of misapplication of municipal fund must be deliberate. There is nothing on record to attribute any deliberate act of misapplication of municipal fund against the petitioner in so far as purchase of firefighter is concerned, and none of the authorities below were able to see the above legal position. The purpose of purchasing a firefighter being necessity for a public body who is required to meet with fire emergency was legal and therefore the application of the funds for such purchase cannot be termed as misapplication of the funds.” 3. Undisputedly, allegations against the councillors were in relation to procedural lapses in making appointment of certain employees. No where it is explained in the show cause notice as to how such irregular appointment has resulted into misapplication of municipal funds. In fact, in one of the cases being Special Civil Application No. 5175 of 2009 filed against the State Government, the Lower Appellate Court while exercising powers under Section 70(2) of the Act found that on one hand, the Collector who is the supervising authority of Municipalities under Sections 257 and 258 of the Act himself insisted for the appointment and on the other hand, made grievance under Section 70 of the Act to the Regional Director of Municipalities as indicated above. 4. Still worse, in Special Civil Application Nos. 7695 of 2009, 13592 of 2010 and 9555 of 2009, the appointment of Food Inspector admittedly against the vacant post made on 16.02.1997 was sought to be questioned under Section 70 of the Act after 10 years. 5. In Special Civil Application Nos. 5175 of 2009, 7463 of 2009, 5083 of 2009, 5082 of 2009 and 12386 of 2009, the three resolutions passed in 1998 making appointments of daily-wagers were sought to be questioned after about four and half years under Section 70 of the Act. 6. 5. In Special Civil Application Nos. 5175 of 2009, 7463 of 2009, 5083 of 2009, 5082 of 2009 and 12386 of 2009, the three resolutions passed in 1998 making appointments of daily-wagers were sought to be questioned after about four and half years under Section 70 of the Act. 6. In all the cases, inference as to misapplication of municipal funds was drawn on the basis of mere procedural lapses in making appointments. It was not stated as to how the funds of municipalities were misapplied. Observations made in Para16 in Hinaben R. Chauhan (Supra) have been completely disregarded. By resorting to the wrong line of action, the authorities tend to waste public time, money and energy. Such practice is required to be deprecated. 7. In the group of petitions being Special Civil Application Nos. 7695 of 2009, 13592 of 2010 and 9555 of 2009, the councillors are aggrieved by order passed under Section 70(4) of the Act in appeal and in group of Special Civil Application Nos. 5175 of 2009, 7463 of 2009, 5083 of 2009, 5082 of 2009 and 12386 of 2009, either State or the municipalities is aggrieved by order passed under Section 70(4) of the Act. 8. In view of above discussion and the principles laid down by this Court in Hinaben R. Chauhan and Ghusalal Vaghjibhai Satani (both supra), in absence of any evidence to show any financial loss occasioned to the municipalities by illegal or irregular appointments, the orders under Section 70 of the Act cannot be sustained. Therefore, the arguments advanced by the learned counsel for the petitioners urging to sustain the liability fixed under Section 70 of the Act cannot be accepted. Consequently a group of petitions being Special Civil Application Nos. 7695 of 2009, 13592 of 2010 and 9555 of 2009 are required to be allowed and the rest deserve to be dismissed. Accordingly ordered. 9. It is directed that amount if any deposited in pursuant to the order passed by this Court in this group of petitions shall be refunded to the councillors concerned. T T T T T 2014 (1) GCD 314 (Guj) (DB) Hon’ble Mr. Justice Jayant Patel & Hon’ble Mr. Accordingly ordered. 9. It is directed that amount if any deposited in pursuant to the order passed by this Court in this group of petitions shall be refunded to the councillors concerned. T T T T T 2014 (1) GCD 314 (Guj) (DB) Hon’ble Mr. Justice Jayant Patel & Hon’ble Mr. Justice Mohinder Pal K.M. Bhut Versus High Court of Gujarat Special Civil Application No. 7284 of 2009—Decided on 11/10/2013 Subject : Promotion on ad hoc basis — Claim to consider the period of working on ad hoc basis as regular — Scope. Point in Issue : Whether the period of petitioner working on ad hoc basis on promotion post can be consider as on regular basis. Head Note : Service and Employment — Promotion on ad hoc basis — Claim to consider the period of working on ad hoc basis as regular — Scope — If clear vacancy on the respective date is not available and inspite of that the person is appointed on the post same can be termed as ad hoc promotion or irregular promotion for which no right would be available for asserting seniority — In the instant case petitioner came to be promoted on ad hoc basis in year 2000 which was subsequently regularised upon availability of post w.e.f. 01.05.2003 Besides there is no provision for ad hoc appointment under relevant Rules called Gujarat Judicial Service Rules, 1961 — The petitioner has also come to Court with undue delay of six yrs because action under challenge crystallised in year 2003 — Petitioner is therefore not entitled to relief claimed. Lkkufhe yLku hkusøkkh - yuznkuf Äkuhýu çkZíke - yuznkuf íkhefu fk{ fhu÷ Mk{Þøkk¤kLku rLkÞr{ík økýðk {kxuLkku Ëkðku - ÔÞkÃk - òu MÃkü ¾k÷e søÞk MktçktrÄík íkkhefu WÃk÷çÄ Lkk nkuÞ yLku íku{ Aíkkt ÔÞÂõíkLke íkuðe søÞk WÃkh rLk{ýqtf ÚkÞu÷ nkuÞ íkku íkuLku yuznkuf çkZíke yÚkðk yrLkÞr{ík çkZíke fnuðkþu suLkk {kxu MkeLkeÞkuhexeLkku Ëkðku yrÄfkh íkhefu ÚkE þfu Lkrn - «Míkwík fuMk{kt yhsËkhLku ð»ko 2000{kt yuznkuf íkhefu çkZíke yÃkkE níke su ÃkkA¤Úke søÞk WÃk÷çÄ ÚkðkÚke íkkhe¾ 01-05-2003Lke yMkhÚke rLkÞr{ík fhðk{kt ykðe níke. íku rMkðkÞ MktçktrÄík rLkÞ{ku{kt økwshkík LÞkrÞf Mkuðk rLkÞ{ku, 1961{kt yuznkuf rLk{ýwtf {kxu fkuE òuøkðkR LkÚke - yhsËkhu A ð»koLkk økuhÔÞksçke rð÷tçkÚke fkuxo Mk{ûk ykðu÷ Au fkhýfu MkLk ð»ko 2003{kt Ãkzfkh MÃkü ÚkÞu÷ Au - yhsËkh íkuÚke Ëkðku fhu÷e hkník {u¤ððk Ãkkºk LkÚke. íku rMkðkÞ MktçktrÄík rLkÞ{ku{kt økwshkík LÞkrÞf Mkuðk rLkÞ{ku, 1961{kt yuznkuf rLk{ýwtf {kxu fkuE òuøkðkR LkÚke - yhsËkhu A ð»koLkk økuhÔÞksçke rð÷tçkÚke fkuxo Mk{ûk ykðu÷ Au fkhýfu MkLk ð»ko 2003{kt Ãkzfkh MÃkü ÚkÞu÷ Au - yhsËkh íkuÚke Ëkðku fhu÷e hkník {u¤ððk Ãkkºk LkÚke. Held : The aforesaid factual aspect makes it clear that the promotion came to be given to the petitioner along with other officers on ad hoc basis in the year 2000 and the same came to be regularised upon the availability of the post w.e.f. 01.05.2003. Under the circumstances, if the post was not available, for the promotee District Judge, the promotion given to the petitioner in the year 2000 for all purposes can be said as ad hoc and irregular promotion which has been so considered and treated by the respondent. Another relevant aspect is that under Rules of 1961 there is no express provision for ad hoc appointment. [Para 8] Apart from the aforesaid, the another relevant aspect is that, in the year 2009, by the present petition, the petitioner has challenged the action which had already been crystallised in the year 2003 when his period as Joint District Judge on ad hoc basis was not treated on regular basis and he was treated as regular District Judge in the year 2003. The delay for the period of six years by no stretch of imagination can be said as reasonable, more particularly, when there is no explanation whatsoever for such delay stated in the petition which may lead the Court to take lenient view. The grievance as it appears has been raised for the first time in the year 2009. [Para 15] Law Laid Down : If the clear vacancy on the respective date is not available and inspite of that the person is appointed on the post same can be termed as ad hoc promotion or irregular promotion with no right to assest seniority. Case Law Analysis : T. Vijayan and Ors. vs. Divisional Railway Manager and Ors., AIR 2000 SC 1766 [Para 10];; B.S. Mathur vs. Union of India, AIR 2009 SC 137 [Para 11];; Ajit Kumar Rath vs. State of Orissa, AIR 2000 SC 85 [Para 12];; Direct Recruitment Class II Engineering Officers’ Association vs. State of Maharashtra and Ors., (1990) 2 SCC 715 [Para 13].—Distinguished Appearance : Mr. B.J. Trivedi, Advocate, for the Petitioner No. 1. Mr. B.J. Trivedi, Advocate, for the Petitioner No. 1. Mr. J.T. Trivedi, Advocate, for the Petitioner No. 1. Ms. Jignasa B. Trivedi, Advocate, for the Petitioner No. 1. Law Officer Branch, Advocate, for the Respondent No. 1. Mr. G.M. Joshi, Advocate, for the Respondent No. 1. Cases Referred : All India Judges Association vs. Union of India, (2002) 4 SCC 247 . Decided in Favour of : Respondent Petition Dismissed Judgment Jayant Patel, J.—The present petition has been preferred by the petitioner for appropriate writ to quash and set aside the order dated 01.05.2003/04.11.2004 for his promotion and it is prayed that the petitioner be treated as a regular District Judge with effect from 07.03.2000. Consequential, financial benefits are also prayed. 2. The short facts of the case are that the petitioner joined the judicial service with effect from 24.11.1981 as Civil Judge (JD) & Judicial Magistrate (First Class). Thereafter, in the year 1990, the petitioner was promoted as Civil Judge (SD) and in the year 1991, he was promoted as Assistant & Additional Sessions Judge. As per the petitioner, he served in the capacity as the Assistant & Additional Sessions Judge, until February 2000. On 07.03.2000, the petitioner was given promotion as the District Judge on ad hoc basis. On 01.05.2003, the petitioner was made as regular District Judge. From 01.05.2003 till May 20, 2009, the petitioner worked as District Judge and thereafter, he was compulsorily retired. As per the petitioner, he has challenged the decision for compulsory retirement separately. But, in the present petition, the limited challenge is for treating the period from 07.03.2000 to 01.05.2003 as that of regular District Judge and consequently, the benefit be conferred upon the petitioner and hence, the present petition. 3. We have heard Mr. J.T. Trivedi, learned Counsel appearing for the petitioner and Mr. G.M. Joshi for the respondent. 4. In our view, the only question to be considered and examined in the present petition is whether the period spent by the petitioner as Joint District Judge on ad hoc basis can be treated as that of Regular District Judge or in alternative, whether the promotion granted to the petitioner on 07.03.2000 can be termed as regular promotion for the post of District Judge or not? 5. 5. Before we further proceed to examine the other aspects, it may be recorded that the Gujarat Judicial Service Association, Ahmedabad, on behalf of the Judicial Officers in the cadre of District Judge who may be earlier working as the Assistant & Additional Sessions Judge and as Joint District Judge on ad hoc basis, had preferred Special Civil Application No. 4203/08 before this Court for the relief inter alia to quash the seniority list already prepared by the High Court on administrative side with a further prayer to refix the seniority from amongst the judicial officer. The principle basis in the said petition was the decision of the Apex Court in the case of All India Judges Association vs. Union of India reported in (2002) 4 SCC 247 . In the said petition, one of the contention raised was that all judicial officers who were granted promotion on ad hoc basis should be treated as on regular basis and their seniority be refixed accordingly. This Court, vide its decision dated 25.07.2013, had considered the scheme of the Gujarat Judicial Service Rules, 1961 (hereinafter referred to as “Rules of 1961”) as prevailing then prior to the enactment of Gujarat State Judicial Service Rules 2005 (hereinafter referred to as “Rules of 2005”) and thereafter, it was observed at Paras 12 to 21 as under: “12.The aforesaid shows that Sub-rule (2) of Rule 6 provided that the quota for promotion and for direct recruitment was equal, i.e., 50% by promotion and 50% by direct recruitment. It further appears that there was separate cadre of Assistant Judge by Rule (4) of Rule 6. However, the appointment of a member of the bar for the District Judge who is not more than the age of 45 years was to be made as Assistant Judge, by Rule 6 of Sub-rule (2)(i)(b) (proviso), but such Assistant Judge appointed from the bar on account of their age not more than 45 years would stand on different footing than that of a person regularly appointed as Assistant Judge under Sub-rule (4)(i) of Rule 6. In the case of the former, as and when he is appointed in substantive cadre of District Judge, his date of appointment is to be treated in the cadre of District Judge from the date on which he was appointed as Assistant Judge. 13. In the case of the former, as and when he is appointed in substantive cadre of District Judge, his date of appointment is to be treated in the cadre of District Judge from the date on which he was appointed as Assistant Judge. 13. Whereas, in the case of person appointed as Assistant Judge under Sub-rule (4)(i) of Rule 6, he is appointed in the regular cadre of Assistant Judge and therefore, his date of appointment as Assistant Judge is to be considered for the purpose of Assistant Judge only. The another aspect is that so far as the cadre of Assistant Judge is concerned, as per Rule 6(4)(i), there is no direct recruitment from the members of the bar and all posts of Assistant Judge in the regular cadre were to be filled from the promotees. 14. Further, if any person is appointed on the post of District Judge on account of non-availablity of the post as per the quota of the District Judge as promotee, his seniority is to be counted in the regular cadre only against the available clear vacancy as per the quota for the respective post. Further, the quota as per the Rules of 1961 was 50% for the members from the bar and 50% from the promotees. It appears that the seniority is accordingly fixed as per the Rules of 1961 of those persons who were appointed in the cadre of District Judges as the quota available of the post concerned. The seniority list if arranged in accordance with the Rules of 1961 in respect of those persons who came to be appointed prior to the effect given of Rules of 2005, the same cannot be said as illegal or arbitrary. The reason being that a person can be appointed on a substantive post provided substantive post is available as per the quota in such cadre. Further, it should also satisfy the date on which the vacancy arose in the cadre for such post. 15. As per Rules of 2005, Rule 24 reads as under: “24 Repeal and Savings: (a) The Gujarat Judicial Services Recruitment Rules, 1961 are hereby repealed. Further, it should also satisfy the date on which the vacancy arose in the cadre for such post. 15. As per Rules of 2005, Rule 24 reads as under: “24 Repeal and Savings: (a) The Gujarat Judicial Services Recruitment Rules, 1961 are hereby repealed. However, the said repeal shall not affect: (a) The previous operation of the said rules or any thing duly done or suffered there under or any right, liability or obligation acquired, accrued or incurred under the said Rules; (b) The validity of the list of selected candidates for the post of District Judges or Civil Judges (Junior Division), as the case may be, prepared under the repealed rules and appointment of such selected candidates. (1) All proceedings (including action taken to make recruitment and preparation of the list of selected candidates) commenced under the repealed rules and pending on the date of commencement of these rules shall be continued and completed in accordance with the repealed rules as if they have not been repealed.” 16. The aforesaid Rules show that the previous operation of rules or any thing duly done or suffered or any right, liability or obligation acquired, accrued or incurred, is not to be affected and is saved. Under these circumstances, the seniority as per the Rules of 1961, which had so accrued is saved and is not to be affected by the Rules of 2005. 17. Rule 19 of Rules of 2005 provides for maintenance of the seniority amongst the District Judges but such would apply in cases of appointment made pursuant to Rules of 2005. The contention that Rules of 2005 be applied even in respect of the officers who came to be appointed by Rules of 1961, cannot be accepted for the simple reason that the appointment of those officers are as per Rules of 1961 prevailing then. The rights so accrued to them even by virtue of section 24 of Rules of 2005 remains intact and unaffected. When Rule 19 is applicable only by virtue of Rules of 2005, it cannot be said made effective even in respect of those persons who came to be appointed as per Rules of 1961 prevailing then. The aforesaid does not appear to be even the intention of the Rule making authority and the said aspect is apparent from Rule 24 of the Rules of 2005. 18. The aforesaid does not appear to be even the intention of the Rule making authority and the said aspect is apparent from Rule 24 of the Rules of 2005. 18. In the decision of the Apex Court in the case of All India Judges Association (Supra), at paragraph 29, the Apex Court has used the language by putting the word of caution as under: “...It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future...” 19. Therefore, if the roster point is to be examined as appropriate under Rules of 2005, it has to meet with the observations made by the Apex Court in the case of R.K. Sabbarwal (Supra), but such cannot be read to alter the existing relevant seniority of the members of the higher judicial service. On the contrary, the Apex Court had observed that the roster has to be evolved for the future. 20. In view of the aforesaid observations and discussions, the contention cannot be accepted that Rule 19 of Rules of 2005 be made applicable with retrospective effect for maintenance of the seniority by ignoring the Rules of 1961. If such contention is accepted, it may run counter to Rule 24 of the Rules of 2005 and also against the intention of the Rule making authority. 21. The attempt to contend that Rules of 1961 cannot be considered as Rules for protection of the seniority, is also illfounded inasmuch as if the respondent No. 2 has proceeded to fix the seniority as per the clear vacancy available on the respective date as per the Rules of 1961, such an approach cannot be said to be arbitrary, as sought to be canvassed. If a clear vacancy on the respective date is not available and in spite of the same, a person is appointed on the post, same can be only termed as ad hoc promotion or an irregular promotion for which no right would be available for asserting seniority. In view of the aforesaid observations and discussions, the contention raised on behalf of the petitioner is devoid of merit and cannot be accepted.” (Emphasis supplied) 6. In view of the aforesaid observations and discussions, the contention raised on behalf of the petitioner is devoid of merit and cannot be accepted.” (Emphasis supplied) 6. The pertinent aspect is that even in respect of protection of seniority of the officers as per the clear vacancy on the respective date, as per the Rules of 1961, it was observed that if the respondent no.2, i.e., High Court has proceeded to fix the seniority as per the clear vacancy available on the respective date, such an approach cannot be said to be arbitrary, as sought to be canvassed. It was also observed that if the clear vacancy on the respective date is not available, and in spite of the same, the person is appointed on the post, the same can be termed as ad hoc promotion or irregular promotion, for which, no right would be available for asserting seniority. 7. The examination of the present case further goes to show that no evidence whatsoever has been produced by the petitioner nor has come out from the affidavit filed on behalf of the respondent that when the petitioner came to be promoted on ad hoc basis vide notification dated 17.02.2000, there was clear vacancy available for the post of promotee District Judge. On the contrary, as per the affidavit filed by the Deputy Registrar of the High Court, at paras 3, 4 and 5, it has been stated as under: “3. I state and submit that accordingly, on consideration of the matter, by Notification No. A. 1201/2000 dated 17.2.2000 inter alia, the petitioner was promoted to the cadre of District Judge purely on ad hoc basis as a stopgap arrangement and subject to seniority of direct recruits in the cadre of District Judges. The petitioner took charge as Joint District Judge with effect from 7/3/2000. 4. I state and submit that while considering the question of regularization of ad hoc appointment in the cadre of District Judges, it was noticed that as on 28/11/2003, there were 53 posts in the cadre of District Judges and out of these posts, 26 posts were fir Bar recruits and 27 posts were for service promotees. As on that date, i.e. 28/11/2003, 6 service promotees were working in the cadre of District Judges on regular basis. As on that date, i.e. 28/11/2003, 6 service promotees were working in the cadre of District Judges on regular basis. It was also noticed that, after 9/11/1995, i.e., date of last regularization, 15 vacancies had arisen in the category of service promotees. Moreover, 15 posts of Joint District Judges were created from the years 1990 to 2002. Out of these newly created posts, 8 posts were allotted to service promotees and 7 posts to direct recruits. 5. I state and submit that while considering the regularization of ad hoc appointment of service promotees, decision had been taken at the Standing Committee Meeting held on 20/10/1992 that, promotion of District Judges from the Assistant Judges as also regularization of temporary/ad hoc District Judges should be made on the basis of merits. Accordingly, on consideration of the matter, it was inter alia decided at the Standing Committee Meeting held on 22/2/2005 to approve the Office Note. Vide Notification No.A.1201/2005 dated 16/3/2005 ad hoc appointments of 30 Officers were regularized in the cadre of District Judges, and the appointment of petitioner was regularized with effect from 1/5/2003.” 8. The aforesaid factual aspect makes it clear that the promotion came to be given to the petitioner along with other officers on ad hoc basis in the year 2000 and the same came to be regularised upon the availability of the post w.e.f. 01.05.2003. Under the circumstances, if the post was not available, for the promotee District Judge, the promotion given to the petitioner in the year 2000 for all purposes can be said as ad hoc and irregular promotion which has been so considered and treated by the respondent. Another relevant aspect is that under Rules of 1961 there is no express provision for ad hoc appointment. As such, in our view, one may say that the issue is already covered by the above referred decision of this Court in the case of Gujarat Judicial Services Association, Ahmedabad (Supra) and more particularly, the observations referred to hereinabove. 9. Mr. Trivedi, learned Counsel appearing for the petitioner, relied upon the decisions which shall be considered hereinafter. 10. In the case of T. Vijayan and Ors. vs. Divisional Railway Manager and Ors. reported at AIR 2000 SC 1766 . 9. Mr. Trivedi, learned Counsel appearing for the petitioner, relied upon the decisions which shall be considered hereinafter. 10. In the case of T. Vijayan and Ors. vs. Divisional Railway Manager and Ors. reported at AIR 2000 SC 1766 . The distinguishing facts were that, as per Para 216 of Railway Establishment Manual, the benefit on ad hoc service rendered by the person on the post of first fireman was found as available for seniority. Therefore, the observations were made by the Apex Court. Such are not the fact situation, whereby the right is expressly conferred by the recruitment rules or otherwise for the ad hoc promotees in the present case. 11. In the decision of the Apex Court in the case of B.S. Mathur vs. Union of India reported at AIR 2009 SC 137 , the distinguishing circumstances are that Rule 17 of the Delhi Higher Judicial Service Rules expressly provided for filling up of vacancy by making temporary appointment amongst the members of Delhi Judicial Services. Whereas in the present, case, there is no express Rule whatsoever under the Rules of 1961 for filling up of the post on temporary or ad hoc basis. 12. In the decision of the Apex Court in the case of Ajit Kumar Rath vs. State of Orissa reported at AIR 2000 SC 85 , at Para 25, the Apex Court found that the promotion of the appellant was on regular basis, though provisional, pending the concurrence from the Orissa Public Service Commission. Further, under Rule 26 of Orissa Service of Engineer Rules, 1941, it was expressly provided that the promotion and direct recruitment if made during the same calendar year, the promotee officer would be ranked senior to the direct recruitee. Under those circumstances, the observations were made, but such is not the fact situation in the present case, inasmuch as, neither the promotion of the petitioner was on regular basis nor there is any express provision under the Recruitment Rules of 1961 prevailing then. 13. In the case of Direct Recruitment Class II Engineering Officers’ Association vs. State of Maharashtra and ors. 13. In the case of Direct Recruitment Class II Engineering Officers’ Association vs. State of Maharashtra and ors. reported at (1990) 2 SCC 715 , in the subpara of the main clause (A) of the concluding observations at Para 47, the Apex Court clearly observed that “The corollary of the above Rule is that where the initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.” 14. In view of the above, we find that none of the decisions upon which the reliance has been placed by the petitioner are of any help to the petitioner. 15. Apart from the aforesaid, the another relevant aspect is that, in the year 2009, by the present petition, the petitioner has challenged the action which had already been crystallised in the year 2003 when his period as Joint District Judge on ad hoc basis was not treated on regular basis and he was treated as regular District Judge in the year 2003. The delay for the period of six years by no stretch of imagination can be said as reasonable, more particularly, when there is no explanation whatsoever for such delay stated in the petition which may lead the Court to take lenient view. The grievance as it appears has been raised for the first time in the year 2009. 16. In view of the above, the petition fails. Hence, the same is dismissed. No order as to cost.