1 CWP(T) No.8779/2008 11.5.2010 Present: Mr. S.S.Sood, vice counsel for the petitioner. Mr. R.M.Bist,Deputy Advocate General with Mr. P.M.Negi,Deputy Advocate General for the respondents. In terms of order dated 18.10.1989 petitioner was promoted as an Assistant Public Relation Officer on ad hoc basis. The order itself clarified that he would not claim any right to seniority or regularization to the post. He continued to officiate as such till the year 1994, when in terms of order dated 24.3.1994 he was regularized. On 16.6.1994 the respondents/State issued provisional seniority list of Assistant Public Relation Officers as on 31.5.1994. In the said list, petitioner’s name was shown at Sr. No. 35, whereas persons junior to him were shown at Sr. No.25 to 34/ Aggrieved of the same, he made a detailed representation to the concerned Secretary which was dismissed in terms of order dated 12.8.1994, which reads as under:- “From The Director Public Relation, Himachal Pradesh,Shimla-2. To Distt. Public Relation Officer, Nahan,Distt. Sirmour,H.P. Subject: Application of Shri Utrtam Kumar, Asstt. Public Relation Officer regarding seniority. Memorandum: With reference to your office letter No. P.R.S.(Estt)-P.F.512 dated 15th July,1994 vide which application of Shri Uttam Kumar, 2 Asstt.Public Relation Officer regarding seniority was forwarded, it is stated that the representation of Shri Uttam Kumar was considered and the points raised by him were not found correct and, therefore, representation is rejected. Shri Uttam Kumar may be informed in this connection. Sd/- Director of Public Relation, Himachal Pradesh.” The respondents/State issued final seniority list in terms of office order dated 7.1.1995, reiterating the situation as it stood in terms of office order dated 16.6.1994. Petitioner has thus assailed the same. It is also his prayer that the respondents/State be directed to re-fix his seniority w.e.f. 23.10.1989 by giving him the benefit of adhoc services and also give consequential benefits. The petition was filed before the erstwhile Himachal Pradesh Administrative Tribunal in the year 2002. The same now stands transferred to this Court. Original private respondents No.3 to 12 have shown no interest to contest the petition. Respondents No.7 and 11 expired and their names were deleted. It is argued by Mr. Negi, learned Deputy Advocate General that since petitioner’s pay scale was lower than that of the private respondents, he was not entitled to the benefits of adhoc services for the purpose of determining seniority. It is further argued that in view of clear bar contained in order dated 18.10.1989 petitioner could not claim any right to seniority. He 3 has also invited my attention to the proceedings of the Departmental Promotion Committee from which it is clear that even though petitioner’s name was included in the list of candidates prepared to be considered for promotion, but, however, the same could not be considered. Mr. S.S.Sood, learned counsel for the petitioner has invited my attention of the following case law: - (i) AIR 1990 SC 1607 titled as The Direct Recruit Class-II Engineering Officers’ Association and others v. State of Maharashtra and others, (ii) 2000 (8) SCC 25. titled as Rudra Kumar Sain & Others versus Union of India and others In my considered view, the stand taken by the State is untenable in law. In terms of letter dated 28.11.1998 (Annexure A-8) the State itself conveyed the policy decision that ad hoc services followed by regular service rendered after 31.3.1991 shall be taken into consideration for the purpose of promotion and confirmation up to 31.3.1998. In terms of this letter, the petition’s services rendered at least up to 31.3.1998 ought to have been considered for the purpose of promotion. That apart, vide subsequent letter dated 30.6.2001, the State took a conscious decision for counting of temporary/adhoc service for the purpose of determining the seniority of the employees. The relevant extract of the letter reads as under:- 4 “Subject: Counting of temporary/adhoc service towards seniority Instructions regarding. Sir, I am directed to say that the matter regarding counting of temporary/adhoc service towards seniority has been engaging attention of the State Government for considerable long time. Keeping in view the law laid down by the Supreme Court in cases(i) Direct Recruitment Class-II Engineering Officers Association Versus State of Maharashtra( AIR 1990SC 1607),(ii) State of West Bengal Versus Aghore Lay Dey(1993) 3 SCC 371,(iii) Shri L.Chander Kishore Singh Versus State of Manipur( AIR 1999 S.C. 3616) and (iv) Rudra Kumar Sain Versus Union of India ( AIR 2000 SC 2808), the State Government after careful consideration has decided to issue following guidelines/principles for counting temporary/adhoc service rendered namely:- (i) Where an incumbent is eligible to be promoted in accordance with relevant Recruitment and promotion Rules but initially promotion on adhoc/temporary basis is made against existing vacancy, by not following the procedure laid down in relevant rules for adjudging suitability of promotee for the post and the promoted continued in the post uninterruptedly till regularization of his promotion in accordance with the rules, in that even his subsequent regularization after adjudging suitability shall relate back to the date of his initial, promotion and entire adhoc/ temporary service shall be counted towards seniority.” 5 In view of the Government’s policy decision to take into account the entire adhoc service rendered by the employees for the purpose of determining the seniority, the condition imposed in the letter of promotion dated 18.10.1989 cannot be held to be a bar against the petitioner. The decision is uniformly and unconditionally applied in the State. No rules/instructions, have been brought to my notice to substantiate the other defence taken by the State. Simply because the employees are getting different pay scales, that fact by itself, in the facts and circumstances of the present case, cannot be an impediment in considering the petitioner’s case for seniority and promotion in accordance with policy decision taken by the State. Petition was filed long back. Valuable rights of parties have fructified. Now, it would be inequitable to unsettle the settled position. Hence, I am not inclined to interfere and quash the seniority list. Some of the private respondents may have also retired or even died during the pendency of the petition. However, a direction is issued to the respondents to consider the petitioner’s case by taking into account the period of adhoc services rendered by him w.e.f. 23.10.1989 and accord all benefits to him in accordance with law. The respondents are also directed to do the needful within a period of 12 weeks from the date of receipt of the certified copy of this order. 6 For the aforesaid reasons, the petition is allowed in the aforesaid terms. (Sanjay Karol), May 11, 2010(R) Judge.