IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 9295 of 2008 Date of Decision: 19.4.2011. Pawan Kumar …Petitioner Versus. State of H.P. and another … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the petitioner: Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. Vivek Thakur, Addl. A.G. Deepak Gupta, J.(Oral). 1. By means of this petition, the petitioner has prayed that he be treated to be promoted on ad-hoc basis as Assistant Engineer w.e.f. 13.4.1999 when his juniors were promoted as Assistant Engineer on ad-hoc basis. 2. There is no denial of the fact that vide order Annexure A-4/A a number of persons were promoted as Assistant Engineers, out of whom some, such as, Prithvi Singh Katoch, Des Raj Bhardwaj, J.K.Gupta, etc. were admittedly juniors to the petitioner. The stand of the respondents appears to be that even while making ad-hoc promotion the relative merit of the employees was considered and a DPC held. The promotions were made on the basis of merit and the petitioner was superseded. It is 2 also apparent from the record that the petitioner made representation and his representation was accepted and he was granted ad-hoc promotion w.e.f. 10.3.2000. 3. In Dr. V.K.Bhargava vs. State of H.P. and others, ILR (HP) 1985 (358), a Division Bench of this Court considered this question in the light of the instructions issued by the State of H.P. from time to time. The instruction dated 11th July, 1973 provides that when ad-hoc appointments have to be made regardless of the reason for making such ad-hoc appointment the same should be made on the basis of seniority subject to rejection of unfit and barring those against whom vigilance cases are pending, irrespective of the duration of such ad- hoc appointments. This circular clearly indicates that while making ad-hoc appointments merit has not to be taken into consideration and seniority alone shall govern the field. Relevant portion of the instruction reads as follows:- “I am directed to say that ad-hoc appointments have to be made in various Departments either due to non-finalisation of recruitment rules or the seniority lists. Ad-hoc appointments have also to be made sometimes when the panel/select list has been exhausted and preparation of the panel/select list has to take some time. In accordance with the instructions contained in this Department’s letter number Apptt. 1-350/57, dated 14th January, 1970, ad-hoc appointments which were likely to continue for more than 3 months used to be made by convening a meeting of 3 the Departmental Promotion Committee, though ad- hoc appointments likely to be continued for 3 months and less were to be made without convening a meeting of the Departmental Promotion Committee. The matter in regard to the appropriate procedure to be adopted for making ad-hoc appointments has been engaging the attention of the Government for some time past. It has now been decided, in consultation with the Himachal Pradesh Public Service Commission, and in supersession of all previous orders/instructions that all ad-hoc appointments, whatever may be the consideration for making such ad-hoc appointments, should be made on the basis of seniority subject to rejection of unfit and barring those against whom vigilance cases are pending, irrespective of the duration of such ad-hoc appointments. This revised procedure may kindly be adopted with immediate effect. The adoption of this procedure, however, does not preclude consultation with the Public Service Commission wherever necessary.” 4. Second circular in this regard is dated 23.4.1985, which reads as follows:- “I am directed to refer to this Department’s letter No.1-350/57-DP (Apptt.) Vol. III dated the 11th July, 1973 according to which all ad-hoc appointments (whatever may be the consideration for making such ad-hoc appointments) should be made on the basis of seniority subject to rejection of the unfit. Now it has been observed that in certain R & P Rules either more than one feeder category for promotion to the next higher posts have been laid down or specific percentages for different 4 qualification holders have been given. For example, the seniority list of Assistant Engineers in P.W.D. includes Graduate Engineers and Diploma holders. Though, their seniority list is combined yet in the R&P Rules for promotion to the posts of Executive Engineers, different percentages have been fixed for Degree holders and Diploma holder Asstt. Engineers. It has been decided that in such cases, while making ad-hoc appointments, the provisions contained in R&P Rules shall be borne in mind and that such ad-hoc appointments will be made in conformity with such rules.” 5. All that the second circular states is that if there are various feeder categories to the post(s), such as, diploma holders engineers, graduate engineers, etc. then, even while making ad-hoc appointments the respective quota of these categories must be respected. The second circular does not in any manner affect the first circular of 1973. When both the circulars are read together the only interpretation which can be given is that when ad-hoc promotions are made from amongst a particular category then ad hoc promotion must be made strictly on the basis of seniority subject only to the condition that persons found unfit and the persons against whom vigilance cases are pending can be ignored. Merit cannot be assessed at the stage of making ad-hoc promotions. Therefore, the petitioner should have been granted ad-hoc promotion from 13th April, 1999. 5 6. In view of the above discussion, this petition is allowed to the limited extent that the petitioner shall be deemed to be an ad-hoc Assistant Engineer w.e.f. 13th April, 1999. It is made clear that this shall not in any way affect the regular promotions which were made lateron. The monetary benefits due and payable to the petitioner on account of this declaration be paid to him latest by 30th September, 2011. The petition is disposed of accordingly. No order as to costs. 19th April, 2011. ( Deepak Gupta ) ™ Judge.