Roshan Lal vs Commissioner Of Police, Delhi And ...
2002 Latest Caselaw 467 Del

JUDGMENT

S.B. Sinha, C.J.

1. A judgment dated 1st September 1998 of Central Administrative Tribunal, Principal Bench in OA 231/96 and rejecting the Original Application filed by the petitioner herein, is in question in this writ petition. The issue involved in this writ petition is as to whether the period during which the petitioner was posted in as hoc temporary service as Assistant Sub Inspector (MT Fitter Grade-I) was to be calculated for the purpose of this seniority or not.

2. The petitioner was promoted as ASI (MT Fitter Grade-I) on ad hoc basis on 22nd February 1982. He was appointed on a regular basis as ASI (MT Fitter Grade-I) on or about 26th February 1988. On 3rd he was regularized as ASI (MT Fitter Grade-I).

3. The petitioner completed two years of probation as ASI (MT Fitter Grade-I) on 3rd March 1990. He was again promoted as MT/SI(Technical) w.e.f. 22nd November 1990 on ad hoc basis where after he was promoted in the said post on regular basis on 21st May 1996.

4. The contention of the petitioner is that as he had the requisite qualification and experience for promotion to the rank of MT/SI(technical)on 22nd November 1990, his seniority should be counted from the said date.

5. The contention of the respondents, on the other hand was that as the said promotion was only on ad hoc and temporary basis, his seniority could be counted only from the date when he was confirmed on the said post. The learned Tribunal by a cryptic judgment dated 1st September 1998 held:

"4. it is an admitted position that the applicant successfully completed his probation on 3.3.1990 as ASI (MT Fitter Grade I) as per the orders of the respondents, Annexure VII to the counter reply. In terms of rules as aforesaid, the applicant's service as confirmed assistant sub Inspector (MT Fitter Grade I) has to be reckoned only from 3.3.1990, and, therefore, the question of reckoning the service rendered prior to 1990 in as hoc and temporary capacity does not arise. Therefore, his prayer for regularizing him as Sub-Inspector from the date when the vacancy in the grade of Sub-Inspector (MT) (Technical), arose, has no merit and is rejected."

6. The learned counsel for the petitioner would contend that the petitioner became eligible for consideration for promotion on the expiry of five years from the date of his promotion as ASI (MT Fitter Grade-I). The learned counsel would contend that in terms of Rule 5(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, all promotions are made on the officiating basis only and thus the questions of reckoning the seniority from the date of confirmation would not arise. In support of the said contention, reliance has been placed on Shiv Kumar Sharma v. Haryana State Electricity Board, Chandigarh and Ors., AIR 1988 SC 1673 and The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., .

7. The learned counsel appearing on behalf of the respondents, on the other hand, would support the judgment of the learned Tribunal.

8. It is not in dispute that for the post of MT/SI (Technical), the following qualifications/experience was required:

    ``12. In case of recruitment by: Promotion
 Promotion/transfer/deputation
 grades from which   (a). From amongst confirmed
 promotion/deputation/transfer to M.T. Fitter Grade-I (ASI) with 6
 be made.    years service in the grade.
 
      (b). Should be capable of
      organizing rout to maintenance of
      vehicle.


      (c). Current driving license for
      heavy vehicle.
  
  

9. The petitioner was promoted on 22nd February 1982. All promotions, in terms of Rule 5(ii) of the said Rules, are made on officiating basis as would appear from Rule 5(ii) which is in the following terms:

``5. General principles of promotion-

(ii). All promotions from one rank to another against temporary or permanent vacancies, except in the case of ad-hoc arrangements shall be on officiating basis. The competent authority on completion of probation period of two yeas may assess the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully completed the period of probation. If the competent authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time, he may recruit him to the post or grade from which he was promoted, or extend the period of probation, as the case may be."

10. From the order dated 3rd March 1988 of the promotion of the petitioner, it appears that the petitioner, amongst others, was promoted to officiate as Asstt. Sub-Inspector (MT Fitter Grade-I). From the said order, it appears that their names were already on the ``Promotion List D (Technical)''.

11. It is not the case of the respondents that such promotion was made by way of ad hoc arrangement.

12. It is also not in dispute that the promotion of the petitioner had been effected in terms of the afore-said Rules which had been framed by the Administrator in exercise of his powers conferred upon him by Sub-section (1) of Section 147 of the Delhi Police Act.

13. The learned Tribunal, unfortunately, failed to take into consideration that in the event any promotion is made in terms of the statutory rules, the seniority would be counted from the said date despite the fact that such promotion had been made on officiating basis. The question raised in this writ petition is no longer a res integra having regard to various decisions of the apex court. In Shiv Kumar Sharma v. Haryana State Electricity Board, Chandigarh and Ors., AIR 1988 SC 1673, it has been held that in the absence of any guidelines for confirmation or any rules having been framed stating as to when an officer would be confirmed, his seniority would be counted from the date of initial appointment. It has been held therein that:

7. ``The archaic rule of confirmation, still in force, gives a scope to the executive authorities to act arbitrarily or mala fide giving rise to unnecessary litigations. It is high time that the Government and other authorities should think over the matter and relieve the government servants of becoming victims of arbitrary actions.''

14. In The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., , it was held:

"44(A). Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only as 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.''

15. Yet again, in Rudra Kumar Sain and Ors. v. Union of India and Ors., , it has been held:

11. ``... In this view of the mater, these promotees, who are appointed under Rule 16(2) of the Recruitment Rules on 19.12.1980, and continuously held the said post and further, such appointments have been made in consulation with the High Court of Delhi and they had the requisite qualifications under Rule 7 of the Recruitment Rules, their appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and necessarily, therefore, they must be held to be senior to Shri B.S. Chaudhary, a direct recruit of the year 1982, on the basis of continuous length of service, in accordance with the directions given by this Court in Singla's case.'' ( O.P. Singla and Anr. etc. v. Union of India and Ors., .

16. For the reasons afore-mentioned, the impugned judgment cannot be sustained which is accordingly set aside and the respondents are hereby directed to count the seniority of the petitioner from 3rd March 1988 and consider his case for promotion if he is otherwise eligible in accordance with law.

This writ petition is, thus, allowed.

There shall, however, be no orders as to costs.