H.B. Sharma vs Union Of India
1996 Latest Caselaw 541 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The short question relating to service jurisprudence which arises for consideration in the instant case is, when claims of all eligible candidates were considered at the time, the current duty charge of promotional post was given to the petitioner and later on the current duty charge was converted into ad-hoc appointment from the date of assumption of charge. This ad-hoc appointment continued uninterruptedly till regularisation of service by the Dpc or UPSC. Whether in a case of this nature the promotion should relate back to the date when the petitioner was given ad-hoc appointment and the length of such service should be the basis for determining seniority in absence of any statutory rule or order?

(2) The petitioner was appointed as an Assistant Assessor and Collector in the Municipal Corporation of Delhi, through direct recruitment in the year 1979. According to the petitioner, the first promotional avenue open to the petitioner was to the post of Assistant Commissioner/Deputy Assessor and Collector. According to the rules, the main requirement for being considered for promotion on regular basis to the said post is 5 years regular service as A.O./A.A. & C, subject to availability of vacancy. Therefore, in the instant case, the petitioner became eligible for appointment to the post of Assistant Commissioner/Deputy Assessor and Collector in the year 1984 when he completed 5 years of regular service on the post of A.O./A.A.& C.

(3) It is the further case of the petter that. though the vacancies were available, yet the petitioner was given current duty charge which was later on converted into ad-hoc appointment to the post of Assistant Commissioner/Deputy Assessor and Collector on 13th May, 1986. It is also submitted that the petitioner was appointed on ad-hoc basis to the said post after considering competing claims of all eligible and qualified candidates. It is the further case of the petitioner that the promotion was given against a regular vacancy and this promotion continued till the next D.P.C. selected the petitioner for promotion in the year 1992.

(4) It is submitted by the petitioner that under the Recruitment Rules, 50 per cent of the vacancies- were required to be filled in by promotion and the remaining 50 per cent by deputation. Respondents 2,3 and 4 were bound to calculate the vacancies in the category of Assistant Commissioner and Deputy Assessor and Collector, year-wise right from the date of notification of recruitment regulations, and then, rotate the vacancies, quota-wise for recruitment so that 50 per cent of the same are filled up by promotion and remaining 50 per cent by deputation. If the calculation is done in this manner, then there would be no breach of quota. On this basis, the first Vacancy would go to promotion quota, and the second vacancy to be filled in by transfer on deputation. Thus vacancies arising at first, third and fifth and so on would go to the promotees and those at second, fourth and sixth and so on would go to transferees on deputation. There is no provision for lapse of any vacancy under any quota and, therefore, there cannot be any relaxation. It was submitted on behalf of the petitioner that working out of vacancies correctly a quota-wise maintenance of recruitment rosters is required. Similar provision is in vogue for calculation of vacancies for giving the fixed percentage for reserved categories viz. Scheduled Castes, Schedules Tribes and other backward classes.

(5) The petitioner submitted that had the calculation of vacancies going to the promotional quota under rote-quota system of vacancies been adhered to, the petitioner would have become eligible for promotion much before his actual promotion on adhoc basis on 13.5.86.

(6) It is further submitted by the petitioner that according to the Departmental Promotion Committee Rules, it is mandatory that the D.P.C. is regularly convened year to year and to utilise the selected officers in panel drawn up by the D.P.C. for promotion against vacancies occurring during the course of that year. Holding of annual Dpc is mandatory and can be dispensed with only after issuing a certificate that no vacancy occurred during that particular year. It has been alleged by the petitioner that the respondents 2,3 and 4 have failed to convene the DPCs for the years 1986, 1987, 1988, 1989, 1990 and 1991. The grievance of the petitioner is that the respondents have failed to obtain concurrence before September, 1992 even for those who were promoted on ad-hoc basis way back in 1986 before September; 1992. Admittedly, the respondents had sent the present case to the U.P.S.C. for concurrence after 6 years of their appointment as Assistant Commissioner/Deputy Assessor and Collector on adhoc basis. Thereafter, the Dpc had taken place in September, 1992, (after six years) in which the Union Public Service Commission recommended a panel of 23 officers, including the petitioner. This panel included year-wise Dpc for the years 1986, 1987, 1988, 1989, 1990 and 1991. The petitioner on the basis of assessment of service record of 5 years prior to 1986 and also the subsequent years upto the date, the petitioner was selected and empanelled against one of the vacancy in the year 1986 and he was placed at serial no.4 of the said panel. The recommendation of the Dpc was approved by the respondent Municipal Corporation of Delhi, vide decision dated 12.10.1992.

(7) The petitioner has also made another grievance that the office order dated 12.10.1992 did not mention year-wise Dpc panel, against which the name of the petitioner was shown, even though the Departmental Promotion Committee has categorically ratified the adhoc promotion of the petitioner by empanelling his name for the year 1986. The petitioner also submitted that there is a clear discrimination and violation of Articles 14 and 16 of the Constitution of India, by the Municipal Corporation of Delhi.

(8) Mr. Gupta, learned counsel for the petitioner submitted that the petitioner's regularisation/confirmation to the post of the Assistant Commissioner should relate back to 1986 when he was promoted on ad hoc basis against the regular vacancy but in substantive capacity.

(9) The petitioner became eligible for consideration in 1984. Apparently in the Dpc of 1985, his case was not considered and subsequent vacancies from 1986 to 1991 were not considered in the respective years when vacancies arose.

(10) Mr. Gupta also submitted that the Municipal Corporation of Delhi cannot take advantage of its own wrong in not convening the DPCs for years and subsequently promoting officials like the petitioner on ad hoc basis and keeping them continuously for six years on that basis. Mr. Gupta also submitted that the Mcd cannot treat those officers who became due and eligible for consideration for promotion in the year 1984 at par with those officers, who became eligible for consideration and appointment in the year 1991. All those officers were ultimately promoted together in the year 1992 and were given benefit of promotion from that date, without properly considering the fact that the petitioner has been serving on the said post in ad hoc capacity right from May, 1986 against a regular vacancy and the others who became eligible after several years cannot be treated at par. This is clear discrimination and the same is violative of Articles 14 and 16 of the Constitution of India.

(11) Mr. Gupta placed reliance on some of the leading judgments of the Supreme Court to consider his submission. He placed reliance on a judgment of the Supreme Court, which emanated from a case decided by this High Court, and the case related to another wing of the respondent Mcd, Delhi Water Supply and Sewage Disposal Committee and Others v. R.K. Kashyap and others, 1989 Supp (I) Supreme Court Cases, 194. A similar question came up for consideration before the Supreme Court in this case. In this case, in 1964, four additional posts of Executive Engineers were created in the Undertaking. The Commissioner after considering the eligibility and suitability of the Assistant Engineers then available in the Undertaking recommended three names (1) J.P. Gupta (2) Mahboob Hussain and (3) R.K. Kashyap.

(12) Similarly, S.S. Ramrakhyani, P.T. Gurnard, working as Assistant Engineers in the general wing of the Corporation were selected as Executive Engineers in the Undertaking on 9.4.1965. They reported as Executive Engineers in the Undertaking on 12.4.1965 after they were relieved from the general wing of the Corporation. They were also appointed on ad hoc basis for one year in the first instance. On February 5, .1969, their lien was cancelled in the general wing. They were, however, given the benefit of their service rendered as Assistant Engineers for all purposes. The other respondents were also appointed on ad hoc basis on like terms on different dates. S. Parkash was appointed on December 21, 1965. Respondents 10 and 11 in 1966, respondent 12 in 1967 and respondents 8 and 9 were appointed in 1969. They worked continuously in their respective posts till their services were regularised by the Commission w.e.f. January 8, 1971. In this case, the court has held as under:-

"BUT if the claim of all eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninteruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission, there is no reason to exclude such service .for determining the seniority. Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy. In the absence of any rule or order the length of service should be the basis to determine the seniority."

(13) Mr. Gupta, learned counsel for the petitioner also placed reliance on Dr. A.K. Jain and others vs. Union of India and others, 1987 (Supp) Scc 497. This case related to regularisation of the officers (Class II) in Railways, who were working as Assistant Medical Officers. They were originally appointed during the period August, 1983 to July, 1986 for six months and were allowed to continue for a period upto 4 years. Their services were sought to be terminated for failure to avail of three chances for selection through U.P.S.C. and the rest facing termination enjoining of Assistant Divisional Medical Officers (Group A) selected by UPSC. The Department contested their claim to regularisation. The Supreme Court in its jurisdiction under Article 32 of the Constitution, regularised the services of the petitioner from 1.10.1984.

(14) Mr. Gupta also placed reliance on the Constitution Bench judgment reported as. Direct Recruit Class Ii Engineering Officers' Association vs. State of Maharashtra and others, . In this case, the Supreme Court has affirmed the view taken by the Supreme Court in the case of Delhi Water Supply and Sewage Disposal Committee (supra). In this case, the Supreme Court has made clear distinction between the cases where initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement and in cases where though the initial appointment is not according to the procedure laid down by the rules but the appointee continues in the post uninterruptedly till regularisation of service. The court has held as under:-

"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 cannot be taken into account for considering the seniority. 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."

(15) The learned counsel for the petitioner has also placed reliance on Union of India and another vs. Harish Chander Bhatia and others, . This case related to inter se seniority between promotees and direct recruits belonging to Delhi and Andaman and Nicobar Islands Police Service. Rule 25 of the said Rules came up for consideration in this case. It visualizes officiating appointment and not permanent appointment. In this case, though the appointments were made in officiating capacity but these continued for a very long period which in the case of one of the respondents was of about 12 years. The Supreme Court, in this case, observed as under:

"AN officiating appointment for over a decade cannot be treated as fleeting appointment with no service benefits to be given. Denial of such long period of' service for the purpose of seniority is an unjustified and arbitrary act which a model employer has to eschew Any other view would very seriously prejudice such a service holder who, even after having rendered service equal to those of permanent appointees for a long period, and that too for proper functioning of the service, would be denied the benefit of the same for no cogent reasons. Any other view is bound to have a demoralising effect in the Service as a whole. As the appointments under Rule 25 are also to duty posts, which may form part of the strength of Service because what has been stated in Rule 4(3), justice of the case and the need to preserve the efficient functioning of the Service would require to treat the appointments of the respondents as permanent, despite their having been first appointment on officiating basis."

(16) The Court directed that just and proper order to be passed, would be to direct the Union of India to treat the dates of officiating appointment of the respondents as the dates of their regular appointments and then to prepare a seniority list as required by rules. In other words, officiating period has been taken into consideration for giving seniority.

(17) Mr. Gupta also placed reliance on Gangadhar Kar vs. State of Orissa and others, 1995 Sapp (3) Scc 133. In this case, the question for consideration before the Supreme Court was whether the order of the High Court giving promotion with retrospective effect was correct or not. The Supreme Court has held that the High Court was justified in giving promotion retrospectively and directed the seniority to be fixed from the date on which the respondent is granted such promotion.

(18) Mr. Gupta further cited Vinod Kumar Sangal vs. Union of India and others, , for the proposition that the Municipal Corporation of Delhi was under an obligation to convene a Dpc in each year when vacancy arose. Mr. Gupta submitted that in the instant case, the Corporation was not justified in not convening the Dpc from 1986 to 1991. In the case of Vinod Kumar (supra), the court has held as under:-

"THE persons who were selected by the Dpc in 1985 for promotion to the post of Senior Technical Assistant (Drilling) are not parties in these proceedings. Their- selection cannot, therefore, be disturbed. Therefore, without disturbing the selection of the 6 officers who were selected by the Dpc in 1985 for the post of Senior Technical Assistant (Drilling), the respondents are directed to convene a Dpc for considering the appellant, for selection for promotion to the post of Senior Technical Assistant (Drilling) against the vacancies which occurred in the years 1980, 1982 and 1983. The said Dpc shall consider the appellant for such selection for the vacancies for each of these years separately as per the office memorandum dated 24.12.1980. In case the appellant is selected for such promotion against any of these vacancies, the reversion of the appellant made by order dated 18.2.1985 would stand revoked and he would be regularly promoted on the post of Senior Technical Assistant (Drilling) with all consequential benefits with effect from the date when 6 persons who were selected by the Dpc in 1985 were so promoted on the post of Senior Technical Assistant (Drilling). In case the appellant is not selected by the Dpc for any of the vacancies, his reversion under order dated 18.2.1985 would remain undisturbed. The Dpc should be convened within a period of four months."

(19) Mr. Gupta further referred to and relied upon case reported as Syed Khalid Rizvi and others vs. Union of India and others, . In this case, the Supreme Court was dealing with the inter se seniority between Indian Police Service direct recruits and U.P. State Police Service officials. The Supreme Court has held that preparation of the select-list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of wanton infraction.

(20) Mr. O.P. Mahajan, Administrative Officer filed counter-affidavit on behalf of the Municipal Corporation of Delhi. It is mentioned in the counter affidavit that the petitioner was entrusted only the current duty charge to the post of the Assistant Commissioner vide Office order dated 13.5.86 and later on this current duty charge was converted into ad hoc appointment vide order dated 19.9.86 from the date of assuming the current duty charge to the post, till 30th April, 1987 and the said ad hoc appointment in the cadre of the Assistant Commissioner' in respect of the petitioner and others were continued from 'time to time and ultimately, the petitioner along with other officials was given promotion w.e.f. 30th September, 1992. In reply to the allegation as. to why the Dpc has not been convened from 1986 to 1991, it is mentioned that because of multi ferious litigation in Delhi High Court, the Dpc could not take place from 1986 to 1991. This court on 31.8.88 in Cwp N0.1170/88, restrained the respondent/MCD from filling up the 50 posts of the Assistant Commissioner-cum-Deputy Assessor and Collector, and that the stay order continued upto 14th March, 1991. In reply to para 4 of the writ petition, the respondent mentioned that mere length of service in a particular grade is not the sole criterion for making promotion on that post and the petitioner cannot claim promotion as a matter of right. The respondent-MCD in the counter-affidavit has tried to justify the decision of the Corporation and said that the petitioner has been rightly promoted to the post of the Assistant Commissioner on regular basis w.e.f. 30th September, 1992 after the recommendation of the DPC. In reply to para 15 of the petition, it is mentioned that the answering respondent is empowered to make appointments keeping in view the exigencies of work in the public interest, wherein the regular appointments cannot be made for one reason or the other. It is further stated that the consultation of the Upsc is compulsory only at the time of making regular promotion. In reply to para 7, the answering respondent mentioned that in the light of the standing instructions, the petitioner is not entitled for regularisation of service retrospectively but is only entitled for the same prospectively.

(21) Ms. Madhu Tewatia, learned counsel who appeared on behalf of the Corporation, at the outset admitted that there are no statutory rules and regulations framed by the Corporation which govern the seniority and promotion of the officers of the MCD. She has placed on record the Departmental Promotion Committee (Instructions of Government of India, Department of Personnel Training) Office Memorandum no-22011/5/86 dated 10.8.89, which is being followed by the Corporation. Ms. Tewatia submitted that according to the said instructions, the promotions can only be made prospectively. She referred to clause 6.4.4. which is quoted as under:

"6.4.4 Promotions only prospective.- While promotions will be made in the order of the consolidated select list, such .promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s)."

She also placed reliance on clause 17.10, which is reproduced as under:

"17.10The general principle is that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later."

(22) She has also placed reliance on Guideline no.5 which is reproduced as under:

"5.Date of regular appointment when already holding post on ad hoc basis and subsequently selected for regular appointment.-The question recently arose as to the date from which an appointment should be deemed regular when a Government servant who is already holding the post on ad hoc basis is later selected by the Upsc for regular appointment thereto. The question has been examined and it has been decided that in such cases the appointment may be treated as regular from the date of advice of the Upsc i.e. the date of. the Commission's letter conveying their recommendations in the matter."

(23) There are certain other clauses which deal with various aspects of service jurisprudence in these instructions. From careful perusal of those instructions, it is clear that a large number of those instructions are not being followed by the Corporation. There are conditions for making ad hoc appointments. According to these, the ad hoc appointment cannot be made for more than a year but in the instant case, it has continued for more than six years. Similarly, Part Iii, deals with preparatory action for holding committees (Determination of regular vacancies). The entire procedure has been laid down and the relevant portion is set out as under:-

4.1It is essential that the number of vacancies in respect of which a panel is to be prepared by a Dpc should be estimated as accurately as possible. For the purpose the vacancies to be taken into account should be the clear vacancies arising in a post/grade/ service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc. should not be taken into account for the purpose of preparation of panel. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated year-wise separately."

(24) A bare reading of this clause would indicate that the respondents are required to hold Dpc every year and in any particular year, where the respondent has not been able to hold Dpc, the vacancies be indicated year-wise separately. When we make this administrative instruction applicable to this case, the conclusion becomes irresistible that in the instant case the Dpc has not met from 1986 to 1991. Further more, in accordance with the executive instructions the vacancies have not been indicated year-wise separately. Part Ii of the Departmental Promotion Committees deals with the aspect of the frequency at which DPCs should meet. Clause 3.1 which deal with this aspect reads as under:-

"3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs., integrity certificates, seniority list, etc., for placing before the DPC. DPCs could be convened every year if necessary on a fixed date, e.g. 1st April or May. .The Ministries/Departments should lay down a time-schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authoritied to ensure that they are held regularly. Holding the Dpc meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly, given retrospective effect. Since amendments to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force. Very often, action for holding Dpc meeting is initiated after a vacancy has arisen. This results in undue delay in the filling up of the vacancy causing dissatisfaction among those who are eligible for promotion. It may be ensured that regular meetings of Dpc are held every year for each category of posts so that an approved select panel is available in advance for making promotions against vacancies arising over a year. [G.I.Dept. of Per. & Trg.O.M.No.22011/3/91- Estt.(D) dated the 13th May, 1991 ] 3.2 The requirement of convening annual meetings of the Dpc should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question."

(25) It is clearly mentioned in these instructions that the Dpc must be held every year for each category of posts so that an approved select panel is available in advance for making promotion against vacancies arising over a year and the convening of annual meeting of the Dpc should be dispensed with only after a certificate has been issued by the appointing authority that there that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year.

(26) Mr. Gupta submitted that when these instructions are carefully examined, this can be safely concluded without any fear of contradiction that these executive instructions are also not followed by the Corporation. Even in the instant case, the Dpc has not met from 1986 to 1991 when there were vacancies to be filled in by promotion. Not even the process of promotion was initiated within the stipulated period. Therefore, the Corporation is hardly justified in placing reliance on few instructions which may suit their stand in a particular case at a particular point of time. If the Corporation wants to follow instructions, they must meticulously follow all the instructions in all the cases. In any event, the Corporation cannot be permitted to ignore the judgments of the Supreme Court.

(27) Mr. Gupta, learned counsel has mentioned in the rejoinder that these instructions are not applicable to the officials of the Municipal Corporation of Delhi. He referred to service regulations and mentioned that the officials of the Mcd are governed by fundamental rules and supplementary rules. According to Section-2, the officials of the Mcd are governed by no other rules. Section 2 reads as under:

"2.In these regulations, unless the content otherwise requires:-

a) 'Act' means the Delhi Municipal Corporation Act, 1957 (66 of 1957)

b) 'Rules' means:-

(i) the Fundamental Rules and the Supplementary Rules;

(ii) the Central Civil Services (Temporary Service) Rules, 1949; and

(iii) the Central Civil Services (Conduct). Rules, 1955; and includes orders issued thereunder by the Central Government or the instructions issued by the Controller and Auditor General of India from time to time;

(28) Mr. Gupta also submitted that according to the Circular dated 7.8.59 issued by the Deputy Commissioner of the Mcd, an inter se seniority of members of a grade shall ordinarily be fixed in accordance with the length of their service in that grade. Para (iv) of the said circular reads as under:-

"(IV)"Length of service in a grade" shall mean continuous service in that grade, except that in the case of the Lower Division Clerks, recruited by the erstwhile Delhi Municipal Committee, the date of continuous appointment will be the date from which the appointment was made or approved by the Executive & Finance Sub-Committee of some other authority empowered to make the appointment."

"4.The inter se seniority of members of a grade shall ordinarily be fixed in accordance with the length of their service in that grade, unless specifically ordered otherwise in any particular case by the Competent Authority."

(29) In view of this circular also, the petitioner is entitled to get benefit of continuous and uninterrupted service as an ad hoc appointee as Assistant Commissioner/Deputy Assessor and Collector from 13.5.1986 onwards.

(30) The learned counsel has referred to and relied upon the judgment of the Supreme Court delivered in the case of G. Gangarasniah vs. A. Narayanaswamy and others, 1994 Supp (2) Scc 669. In this case, the Supreme Court has held that the normal rule for calculating the seniority should be from the date of regular initial appointment. In this case, the direct recruits were appointed on 7.11.67 and were confirmed in 1969 (and not regularised, the expression being wrongly used by the Board in its order of 29.7.90), the confirmation would not postpone their date of initial appointment against the substantive vacancies, to the later date. On the basis of the normal rule of calculating the seniority from the date of regular initial appoint, it will have to be held that the direct recruits had started their regular services w.e.f. 7.11.67 when they were initially appointed. The seniority will, therefore, have to be counted from the said date and not from the date of their confirmation after the probation period was over.

(31) Ms. Madhu Tewatia, learned counsel for the Mcd very fairly pointed out that the case in which the Hon ble Supreme Court has followed the earlier decision given in Baleshwar Dass v. State of U.P. , in this case, the court has held that the period spent by the appellant, as temporary duty, prior to his regularisation was required to be taken into consideration for considering his eligibility for promotion and when so taken, it is apparent that the appellant possessed the requisite experience as a Trains Clerk for his eligibility to promotion as Goods Guard 'C'.

(32) I have heard learned counsel for the petitioner and the respondent and have perused the writ petition, reply and rejoinder. I have carefully comprehended import of the said circular dated 7.8.59 issued by the MCD. I have also carefully gone through the relevant Supreme Court judgments in support of the proposition of the learned counsel. In view of the clear enunciation of law as set out in the aforesaid cases, particularly in the cases of A.K. Jain and Gangadhar Kar's and Delhi Water Supply and Sewage Disposal Committee (supra) which has been approved later on by the Constitution Bench in the case of Direct Recruit Class Ii Engineering Officers' Association vs. State of Maharashtra and others. The conclusion seems to be irresistible. In the instant case the claims of all the eligible and qualified candidates were considered at the time of ad hoc appointment and such appointment continued uninterruptedly till the regularisation of service by the Departmental Promotion Committee or the Union Public Service Commission, there is no justification in excluding such service for determining the seniority. Of course, in absence of any statutory rules or executive order to the contrary in the instant case, when the current duty charge was given to the petitioner along with other officers in the year 1986, claims of all the eligible and qualified candidates were considered and after considering their claims, they were given ad hoc appointments and the ad-hoc appointments have continued from 13.5.86 till 30.9.92 when the appointments were regularised.

(33) On the basis of these large number of judgments of the Supreme Court, the petitioner and all others similarly placed who have continued uninterruptedly till the regularisation of service by the Dpc or the Upsc would be entitled to all get the benefit of the continuous uninterrupted service for determination of their seniority and consequently they would be entitled to promotion from the date when they were given current duty charge to the post of Assistant Commissioner vide order dated 13.5.86 and later on this current duty charge according to the assertions in the counter affidavit was converted into ad hoc appointment vide order dated 19.9.86 from the date of their assuming the current duty charge (13.5.1986). Therefore, in the instant case, the petitioner and similarly placed officials would be entitled to get the benefit of service from 13.5.1986 and all consequent benefits.

(34) The benefit which is being given to the petitioner because of the direction in this petition must also be given to the similarly placed officials in consonance with the principles of equity, fairness and good conscience. This approach of the respondent Mcd would certainly curtail avoidable litigation.

(35) The writ petition is accordingly allowed and dispose of in aforesaid terms. In the facts and circumstances of this case, the parties are directed to bear their own costs.