JUDGMENT : 1. In this writ application the petitioner prays that the respondents be directed to give him promotion on the basis of his seniority as calculated on and from 4 July, 1984 and also all consequential and other service benefits. Contention of the petitioner:- 2. Learned Counsel for the petitioner submitted that the petitioner was appointed as a Medical Officer of the respondent Corporation (in short KMC) on 4 July, 1984 in terms of sanction of the administrator dated 29 June, 1984. On 21 August, 1986 the petitioner was made an Epidemic Officer in terms of the Municipal Commissioner’s sanction dated 13 August, 1986. On and from 21 October, 1987 the petitioner rendered service as a Medical Officer (Epidemic Control). The ad hoc appointment of the petitioner to the post of Medical Officer (Epidemic Control) was confirmed with effect from 30 January, 1988. By an office order dated 28 February, 2012, the OSD & DMC (Personnel) promoted the petitioner and five other Medical Officers to the post of Executive Health Officer under the Health Department. 3. Learned Counsel for the petitioner submitted that though two disciplinary proceedings had been initiated against the petitioner, none of them was pending at the time of issuance of the office order dated 28 February, 2012 whereby the petitioner was promoted to the post of Executive Health Officer. It was specifically mentioned in the said office order that promotion of the petitioner is to be given effect after fixing up his pay in terms of the orders of the Disciplinary Authority dated 11 January, 2001 and 11 May, 2011. 4. Learned Counsel submitted that in terms of the said office order, although the promotions of the other Officers mentioned therein have been given effect to, no effect has been given to the promotion of the petitioner. On enquiry, the petitioner was informed by the Concerned Chief Municipal Health Officer that the order of petitioner’s promotion could not be given effect to as another officer being the respondent no. 9 (private respondent) has disputed their inter se seniority. 5. Learned Counsel submitted that the private respondent joined on 11 December, 1986. He is contending that 30 January, 1988 should be reckoned as the petitioner’s date of joining since on that date the petitioner’s promotion as Medical Officer (Epidemic Control) was confirmed. However, this contention is meritless. 9 (private respondent) has disputed their inter se seniority. 5. Learned Counsel submitted that the private respondent joined on 11 December, 1986. He is contending that 30 January, 1988 should be reckoned as the petitioner’s date of joining since on that date the petitioner’s promotion as Medical Officer (Epidemic Control) was confirmed. However, this contention is meritless. The petitioner’s seniority is required to be calculated from the date of his appointment i.e. from 4 July, 1984. In this connection learned Counsel referred to the Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984 and in particular Regulation 4 thereof, which reads as follows:- “4. Determination of Seniority of direct recruits: The relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determined by the order of merit in which they are selected for such appointment on the recommendation of Commission or other selecting authority, persons appointed on the results of an earlier selection being senior to those appointed on the results of a subsequent selection: Provided that where appointments of persons initially made otherwise than in accordance with the relevant recruitment regulations or in the absence of any prescribed recruitment regulations are subsequently regularized in consultation with the Commission, where necessary, seniority of such persons shall be determined from the very date of appointment. Provided further that if any person selected for appointments to any post does not join within 2 (two) months of the offer of appointment his seniority shall count from the date on which he joins the post unless the appointing authority for reasons to be recorded in writing condones the delay at the time of joining. Note:- 1. A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority when there will be recruitment in a single process of selection of more than one person. 2. Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these regulations, seniority shall, on the coming into force of these regulations, be determined on the basis of actual date of their joining. When the date of joining of all such persons is the same, the seniority shall be determined on the basis of date of birth, persons retiring earlier being adjudged as senior. When the date of joining of all such persons is the same, the seniority shall be determined on the basis of date of birth, persons retiring earlier being adjudged as senior. When the date of birth is the same, seniority shall be determined on the basis of total mark obtained by each in the examination, passing of which is the academic qualification prescribed in/for recruitment to the particular post, cadre of payscale/grade. 3. In so far as the determination of relative seniority of persons selected either by the Commission or by selecting authority for appointment to different posts in the same pay-scale with different qualifications such as Assistant Engineers in Civil, Mechanical, and Electrical Engineering etc. is concerned, seniority shall be determined from the date of joining.” Learned Counsel submitted that going by the said Regulation, the petitioner’s date of joining should be taken as 4 July, 1984 and thus, the petitioner is senior to the private respondent. Accordingly, the prayers in the writ application should be allowed. KMC’s Contention:- 6. Learned Counsel for the KMC submitted that on 4 July, 1984 the petitioner was appointed in the leave vacancy as Medical Officer in a permanent post (Officiating) under the Health Department on daily wage basis as per sanction of the administrator. In the year 1986 for the post of filing up the vacancy in the post of Medical Officer, Palta Water Works Dispensary, the name of the petitioner was considered but the Municipal Service Commissioner did not select him. As per the order of the Municipal Commissioner dated 13 August, 1986 and the recommendation of CMHO dated 13 August, 1986 the writ petitioner was appointed temporarily as Epidemic Officer under Health Department for a period of six months on ad hoc basis or till the post is filled up in a regular manner. For such appointment the file was not routed through the Personnel Department as the Epidemic Officer being a ‘Category A’ post is under the purview of Municipal Service Commissioner. Neither the recommendation of MSC under Sec. 19(1) of the KMC Act, 1980 nor the prior approval of the State Government under Sec. 19(3) of the said Act was obtained before appointment of the writ petitioner as Epidemic Officer though this was a direct recruitment. Neither the recommendation of MSC under Sec. 19(1) of the KMC Act, 1980 nor the prior approval of the State Government under Sec. 19(3) of the said Act was obtained before appointment of the writ petitioner as Epidemic Officer though this was a direct recruitment. As per the orders of the Municipal Commissioner dated 19 June, 1987 and 11 September, 1987, the ad hoc appointment of the writ petitioner to the post of Medical Officer (Epidemic Control) was extended for further periods of six months with effect from 21 February, 1987 and with effect from 21 August, 1987 respectively. By MSC’s letter dated 18.01.1988 the writ petitioner was called upon to appear before the MSC for an interview on 22 January, 1988 in view of his application for the post of Medical Officer (Epidemic Control). The Secretary of the MSC by his letter dated 29/30 January, 1988 recommended the petitioner’s name for regular appointment to the post of Medical Officer (Epidemic Control). As per the Municipal Commissioner’s order dated 8 March, 1988 the petitioner was appointed as Medical Officer (Epidemic Control) with effect from 30 January, 1988. All the appointments of the petitioner prior to 30 January, 1988 were ad hoc appointments and for limited periods of time and the same cannot be treated as regular appointments and cannot be counted for continuity of service. Hence, 30 January, 1988 has to be taken as the date of petitioner’s appointment. 7. Learned Counsel submitted that when the KMC issued the appointment letter dated 9/12 March, 1988, the petitioner accepted the same without any demur or protest. He did not lodge any claim that his appointment should be reckoned from 1984 or 1986. Hence, the petitioner cannot be permitted to raise that issue now. 8. Learned Counsel further submitted that Regulation 4 of the 1984 Regulations would not apply to the instant case. The petitioner’s case is not one of regularization of earlier appointment. The case is one of fresh appointment in March, 1988 pursuant to recommendation dated 29/30 January, 1988. 9. Learned Counsel further submitted that there can be no question of determination of inter se seniority between the writ petitioner and the private respondent. The private respondent was appointed earlier. He further submitted that in 1986, the petitioner was unsuccessful in the selection process and hence his tenure of service cannot be raked up after so many years. 9. Learned Counsel further submitted that there can be no question of determination of inter se seniority between the writ petitioner and the private respondent. The private respondent was appointed earlier. He further submitted that in 1986, the petitioner was unsuccessful in the selection process and hence his tenure of service cannot be raked up after so many years. In this connection he relied on a decision of the Hon’ble Apex Court in the case of B. S. Bajwa-vs.-State of Punjab, AIR 1999 SC 1510. Learned Counsel relied on paragraph 7 of the reported judgment which reads as follows:- “7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the order aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D.Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.” 10. In support of his submission that a stale issue cannot be raked up on a belated stage, learned Counsel relied on a decision of the Apex Court in the case of Gian Singh Mann-vs.-The High Court of Punjab, AIR 1980 SC 1894 . Reliance was placed on paragraph 3 of the reported judgment which reads as follows:- “3. In support of his submission that a stale issue cannot be raked up on a belated stage, learned Counsel relied on a decision of the Apex Court in the case of Gian Singh Mann-vs.-The High Court of Punjab, AIR 1980 SC 1894 . Reliance was placed on paragraph 3 of the reported judgment which reads as follows:- “3. In regard to the petitioner's claim for promotion to the Selection Grade post in the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966, and to a post in the Punjab Superior Judicial Service with effect from 1st May, 1967 on the basis that a post had been reserved in each of the services for a member of the Scheduled Castes, it seems to us that the claim is grossly belated. The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed. There is no valid explanation for the delay. That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay. Relief must be refused on that ground. It is not necessary, in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.” 11. In support of his submission that the period spent on ad hoc appointment dehors the rules cannot be counted for determining seniority, learned Counsel relied on a decision of the Apex Court in the case of Union of India-vs.-Dharam Pal, (2009) 4 SCC 170 . At paragraphs 24 and 25 of the reported judgment the Apex Court observed as follows:- “24. It is now a well settled principle of law and in respect whereof there is absolutely no quarrel that in view of the decision of this Court in Direct Recruit Class-II Engineering Officers' Association & ors. vs. State of Maharashtra & ors.[ (1990) 2 SCC 715 ] an employee appointed to a post according to rule would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation. 25. vs. State of Maharashtra & ors.[ (1990) 2 SCC 715 ] an employee appointed to a post according to rule would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation. 25. It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.” In this connection learned Counsel also relied on a decision in the case of P.P.C. Rawani (Dr.)-vs.-Union of India, (2008) 15 SCC 332 , wherein at paragraph 10 of the judgment the Apex Court held in the facts of that case that if all the ad hoc doctors were to be regularized with effect from the date of their initial appointment, with seniority also from the date of initial appointment, there will be no difference between regular recruitment and regularization of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad hoc or stopgap appointees were not normally regularized and given seniority from the date of initial appointment. They were usually given regularization and seniority only after a certain period of service. Relying on the aforesaid submissions learned Counsel prayed for dismissal of the writ petition. Petitioner in reply:- 12. Counsel for the petitioner submitted that there is no delay on the part of the petitioner in initiating the present proceeding. It is not a stale issue that the petitioner is seeking to rake up. The petitioner has challenged the non-implementation of the office order dated 28 February, 2012. The gradation list is dated 19 August, 2010. He further submitted that at paragraph 7 of the affidavit filed on behalf of the KMC, the stand of KMC is not that the petitioner’s appointment was a fresh appointment but that his appointment was regularized with effect from 30 January, 1988. Hence, Regulation 4 of the 1984 Regulations will definitely apply. Court’s View: 13. The short question that falls for determination is whether the seniority of the petitioner should be reckoned from 4 July, 1984 i.e. when he was first appointed as Medical Officer of KMC or whether his seniority should be calculated from 30 January, 1988 when his appointment as Medical Officer (Epidemic Control) was confirmed. 14. Court’s View: 13. The short question that falls for determination is whether the seniority of the petitioner should be reckoned from 4 July, 1984 i.e. when he was first appointed as Medical Officer of KMC or whether his seniority should be calculated from 30 January, 1988 when his appointment as Medical Officer (Epidemic Control) was confirmed. 14. No regulations for recruitment of officers/employees of KMC appear to be in existence. At least my attention was not drawn to any such regulation by either of the parties. Learned Counsel for the KMC relied on Sec. 19(1) of the KMC Act, 1980 in support of his submission that the post of Medical Officer in which the petitioner was appointed on 4 July, 1984 being a category ‘A’ post, no permanent appointment to such post could have been made without the recommendation of the Municipal Service Commission (in short ‘MSC’). He submitted that the initial appointment of the petitioner and all subsequent appointments till the confirmation of his appointment as Medical Officer (Epidemic Control) were ad hoc appointments and the tenure of his service as such an ad hoc appointee could not be counted for computing his seniority. In this connection learned Counsel relied on the Apex Court’s decisions in Union of India-vs.-Dharam Pal (supra) and P.P.C Rawani (Dr.)-vs.-Union of India (supra). 15. I am unable to agree with the contention of Learned Counsel for the KMC. It is not that the initial appointment of the petitioner or his subsequent appointments prior to the confirmation of his appointment as Medical Officer (Epidemic Control) were illegal. Sec. 24 of the KMC Act reads as follows:- “S. 24. 15. I am unable to agree with the contention of Learned Counsel for the KMC. It is not that the initial appointment of the petitioner or his subsequent appointments prior to the confirmation of his appointment as Medical Officer (Epidemic Control) were illegal. Sec. 24 of the KMC Act reads as follows:- “S. 24. Dispensation of consultation with State Public Service Commission or Municipal Service Commission._ Notwithstanding anything contained in this Chapter, it shall not be necessary to consult the State Public Service Commission or the Municipal Service Commission, as the case may be, in the case of appointment of a person as an officer or employee of the Corporation,_ (a) If the person to be appointed is or has been in service of Government, or (b) If the post to be filled up is for a term of six months, or (c) If the period for which the appointment is made does not exceed six months.” Thus, appointment to a category ‘A’ post could be made without consulting the MSC if the period for which the appointment was made did not exceed six months. In the present case, the initial appointment of the petitioner as also all his subsequent appointments were for a period of not exceeding six months. Such ad hoc appointments were finally regularized by confirming the petitioner’s appointment as Medical Officer (Epidemic Control) with effect from 30 January, 1988. That the petitioner’s case was not one of fresh appointment but that his appointment was regularized with effect from 30 January, 1988 is also admitted by the KMC at paragraph 7 of its affidavit. 16. Thus, the situation was that the appointment of the petitioner was by way of direct recruitment and there were no prescribed regulations. Subsequently the petitioner’s appointment was regularized with effect from 30 January, 1988 by way of confirmation of his appointment as Medical Officer (Epidemic Control). Hence, the petitioner’s case is squarely covered by the first proviso to Regulation 4 of the KMC (Determination of Seniority) Regulations, 1984 which has been extracted above. Since, the initial ad hoc appointment and all subsequent ad hoc appointments of the petitioner were made in the absence of any prescribed recruitment regulations or, assuming that there were such regulations, otherwise than in accordance with such regulations, and since his appointment was subsequently regularized, his seniority has to be determined from the date of his initial appointment. Since, the initial ad hoc appointment and all subsequent ad hoc appointments of the petitioner were made in the absence of any prescribed recruitment regulations or, assuming that there were such regulations, otherwise than in accordance with such regulations, and since his appointment was subsequently regularized, his seniority has to be determined from the date of his initial appointment. In am unable to agree with the submission of learned Counsel of KMC that Regulation 4 shall not apply since the petitioner’s case was not one of regularization of initial ad hoc appointment but was a case of fresh appointment with effect from 30 January, 1988. This is also not the stand of the KMC in its affidavit. 17. The decisions of the Hon’ble Apex Court in the cases of Union of India-vs.-Dharam Pal (supra) and P.P.C. Rawani-vs.-Union of India (supra), in my opinion, would have no application in the facts of the present case since in those cases there was no regulation similar to Regulation 4 of the KMC (Determination of Seniority) Regulations, 1984. 18. The other contention of learned Counsel of the KMC was that the issue of inter se seniority between the petitioner and the private respondent is a stale issue which can not be raked up after a long period of time. In this connection learned Counsel relied on the Hon’ble Apex Court’s decisions in B.S. Bajwa-vs.-State of Punjab (supra) and Gian Singh Mann-vs.-The High Court of Punjab (supra). In the first case, the Hon’ble Apex Court held that in service matters the issue of seniority should not be reopened after a lapse of reasonable period because that results in disturbing the settled position. In the second case, the Hon’ble Apex Court dismissed the petitioner’s claim for promotion on the ground of delay since the writ petition had been filed 11 years after the date from which the promotion was being claimed. In the present case, there does not appear to be any such delay on the part of the petitioner. The petitioner has in effect prayed for implementation of the office order dated 28 February, 2012. The writ petition has been filed in December, 2012. Hence, it cannot be said that the petitioner is seeking to rake up a stale issue. 19. In view of the aforesaid, this writ application succeeds. The petitioner has in effect prayed for implementation of the office order dated 28 February, 2012. The writ petition has been filed in December, 2012. Hence, it cannot be said that the petitioner is seeking to rake up a stale issue. 19. In view of the aforesaid, this writ application succeeds. The respondents are directed to compute the seniority of the petitioner from his date of initial appointment i.e. 4 July, 1984 and to extend all consequential pecuniary and service benefits to the petitioner. This order shall be implemented within three months from date. 20. WP No. 1050 of 2012 is accordingly disposed of, without, however, any order as to costs.