Sh. T.V. Sharma vs Government Of N.C.T., Ministry Of ...
2013 Latest Caselaw 1647 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP(C) No.523/1997

%                                                       April 10, 2013

SH. T.V. SHARMA                                    ..... Petitioner
                          Through:       Mr. Ashok Kumar Mahapotra,
                                         Advocate.


                          versus

GOVERNMENT OF N.C.T., MINISTRY OF TOURISM &
DEVELOPMENT CORPORATION AND ANR.           ..... Respondents

Through: Mr. P.C. Sen, Advocate with Ms. Sara Sundaram, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by one Sh. T.V. Sharma against his

employer-respondent No.2/DTTDC claiming benefits of promotion from the

year 1991. The petitioner in the year 1991 was a Junior Salesman and he

claims that w.e.f 1991 he should be promoted to Salesman Grade-I.

2. The recruitment rules for promotion from a Junior Salesman to

Salesman Grade-I are as under:-

In case of recruitment by promotion/deputation/transfer to be made

Graduate with 5 years experience as Jr. Salesman or Non Graduate with 8 years experience as Jr. Salesman in the ratio of 1:1. In case graduate Jr. Salesman are not available the post will go to non graduate Jr. Salesman with the requisite experience as mentioned above."

3. A reading of the aforesaid recruitment/promotion rules shows

that before being promoted to Salesman Grade-I from a Junior Salesman,

a person must be a graduate with five years experience as a Junior Salesman.

Since it is not disputed by the respondents that the petitioner was a graduate,

the issue which remains is as to whether petitioner had five years experience

as a Junior Salesman.

4. The petitioner was employed by the respondent No.2 in an ad

hoc manner de hors the rules in the year 1981. This is not disputed before

me by the counsel for the petitioner. The petitioner was regularized in

services as a Junior Salesman w.e.f 15.6.1989. What is argued before me

on behalf of petitioner is that the services of the petitioner as an ad hoc

appointee from July, 1981 to June, 1989 should be considered as his

experience for his promotion in the year 1991 from Junior Salesman to

Salesman Grade-I.

5. I am afraid I cannot agree with the arguments as urged on

behalf of the petitioners inasmuch as, before adhoc service in a post is

counted as qualifying service for the purpose of promotion, it is necessary

that the promotion which is made adhoc to a post must be in accordance

with the relevant rules as applicable ie the promotion may be adhoc without

following the regular procedure for promotion, but otherwise, the persons

have to be qualified as per the rules. Reference in this regard is invited to the

following judgments of the Supreme Court:-

(i) J & K Public Service Commission etc. Vs. Narinder Mohan & Ors.

(1994) 2 SCC 630

(ii) D.N. Agrawal and Anr. Vs. State of Madhya Pradesh & Ors (1990) 2

SCC 553

(iii) Union of India (UOI) Vs. Dharam Pal etc. (2009) 4 SCC 170

6. In the case of Narinder Mohan (supra), the Hon'ble Supreme

Court has held that persons who were appointed on adhoc basis in violation

of statutory rules and regularized in service, the actions being ultra vires the

rules, the persons who were appointed on adhoc basis have to be replaced by

persons who have been regularly recruited in accordance with the rules. The

Supreme Court observed that in order to meet the constitutional

requirements, appointments have to be fair ie such appointments have to be

made according to the statutory recruitment rules where such rules are in

force and the Government cannot use its executive powers to circumvent the

requirements of statutory recruitment rules.

7. In D.N.Agrawal's case (supra), the Supreme Court was

dealing with the issue of an adhoc promotee and when should the period of

service in the adhoc post be included for determining their seniority in the

promotion post. The Supreme Court held that when persons who are not

eligible for promotion inasmuch they have not completed the qualified

period of service, promotions accordingly made purely on adhoc basis,

cannot prevail over those people who are regularly selected later on by a

regular DPC and appointed pursuant to the result of the DPC. The Supreme

Court has held that the service period in the ad hoc post cannot be counted

for the purpose of their seniority in the higher post.

8. In Dharam Pal's case (supra), the Supreme Court has held that

benefit of ad hoc promotion which is made de hors the rules, cannot be

granted to an employee.

9. Therefore, the Supreme Court has said that period of services in

an ad hoc post which is de hors the applicable rules, cannot be counted as

experience in service for promotion to a higher post. Since in the present

case the services of the petitioner from July, 1981 to 15.6.1989 were only on

ad hoc appointment de hors the rules, benefits of such services cannot be

given to the petitioner and counted as experience of the petitioner for

appointment from the post of Junior Salesman to Salesman Grade-I.

Requirement of rules was of five years experience and the petitioner in the

year 1991 would have had just about two years experience i.e with effect

from 15.6.1989 till 1991. Once the petitioner instead of having five years

experience has only two years experience he is not qualified as per the

relevant rules to get promotion.

10. In view of the above, there is no merit in this petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J APRIL 10, 2013 Ne