Sh. T.V. Sharma v. Government of N.C.T., Ministry of Tourism & Development Corporation and Anr.

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 2013:DHC:1828 Salesman Grade-I are as under:- In case of recruitment by promotion/deputation/transfer to be made (11) 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.

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

(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