Skip to content


Manvirsingh Malkhan Singh Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case Number Spl. C.A. No. 561 of 1978
Judge
Reported in(1984)86BOMLR681
AppellantManvirsingh Malkhan Singh
RespondentUnion of India (Uoi)
DispositionPetition dismissed
Excerpt:
civil aviation department (class i and class ii posts) recruitment rules, 1969, schedule column 11, entry 42(a) - expression 'service in the grade' in entry 42(a)--connotation of--words 'service' and 'grade'--meanings of--ad hoc appointment - nature and effect of--service rendered by appointee on ad hoc basis prior to his appointment on regular basis whether can be taken into account as 'service in the grade'-- constitution of india, articles 309, 311.;an ad hoc appointment is in the nature of a stop-gap arrangement when it is not possible to make regular appointment for various reasons. normally, such appointments are made without considering all eligible persons for the posts and without prejudice to their claim for seniority, promotion or other benefits available to a regular.....ginwala, j.1. the petitioner, by this writ petition, assails his exclusion from consideration by the departmental promotion committee for promotion to the post of aerodrome officer in september 1976 and february 1978, when, according to him, he had become eligible for promotion to the said post. 2. in order to understand the grievance of the petitioner, we may take a brief survey of the hierarchy of posts in civil aviation department. upto 1968, aerodrome operators (grade i) and aerodrome operators grade i (selection grade) used to be promoted as assistant aerodrome officers as there was no intermediate step. in july 1968, 48 posts of aerodrome assistants were created by abolition of 41 temporary posts of aerodrome officers grade i (selection grade). pending finalisation of the.....
Judgment:

Ginwala, J.

1. The petitioner, by this writ petition, assails his exclusion from consideration by the departmental promotion committee for promotion to the post of Aerodrome Officer in September 1976 and February 1978, when, according to him, he had become eligible for promotion to the said post.

2. In order to understand the grievance of the petitioner, we may take a brief survey of the hierarchy of posts in Civil Aviation Department. Upto 1968, Aerodrome Operators (Grade I) and Aerodrome Operators Grade I (Selection Grade) used to be promoted as Assistant Aerodrome Officers as there was no intermediate step. In July 1968, 48 posts of Aerodrome Assistants were created by abolition of 41 temporary posts of Aerodrome Officers Grade I (Selection Grade). Pending finalisation of the recruitment rules, it was proposed that 75 per cent posts of Aerodrome Assistants would be filled by promotion from the cadre of Aerodrome Operators Grade I (Selection Grade) on the basis of seniority-cum-fitness and 25 per cent of the posts by promotion on the basis of seniority-cum-fitness subject to passing of qualifying examination from amongst the Aerodrome Officers, Grade I (Selection Grade) having 5 years service in the grade. On June 15, 1969, rules called Civil Aviation Department (Class I and Class II Posts) Recruitment Rules, 1969 (hereinafter referred to as 'the recruitment rules') for regulating the method of recruitment to Class I and Class If posts in Civil Aviation Department were made. Under these rules, posts of Assistant Aerodrome Officer was made selection post and could be filled in by promotion of Aerodrome Operator, Grade I (Selection Grade) with three years service in the grade fulfilling certain conditions. It may be pertinent to note at this stage that though the post of Aerodrome Assistant was proposed to be inserted between the post of Aerodrome Operator, Grade I (Selection Grade) and Assistant Aerodrome Officers, this position was not reflected in these recruitment rules probably because, by then recruitment rules for the .post of Aerodrome Assistants had not been finalised. Under these rules, the post of Aerodrome Officer was also made selection post and could 'be filled in only by promotion of 'Assistant Aerodrome Officers with three years service in the grade'. It seems that consequent to the creation of the post of Aerodrome Assistant, the recruitment rules were amended with effect from June 10, 1977 by substituting the entry at Serial No. 43 in the schedule relating to the post of Assistant Aerodrome Officer. By virtue of this amendment. 25 per cent of these posts had to be filled in by promotion and 75 per cent by direct recruitment. Under the amended rules 'Aerodrome Assistants with three years service in the grade rendered after appointment thereto on regular basis were made eligible for promotion to the post of Assistant Aerodrome Officer.

3. After undergoing the requisite training, the petitioner was appointed as Aerodrome Operator Grade I on September 16, 1959 and he was confirmed in this post in 1961. He passed the qualifying examination for promotion to the post of Aerodrome Assistant and under order dated June 20, 1970 he was promoted to officiate in that post. By subsequent order passed on March 23, 1973, the petitioner along with others was promoted to the post of Assistant Aerodrome Officer 'on purely ad-hoc basis'. In this order it was made clear to the promotees that they were promoted purely on ad-hoc basis with clear understanding that this promotion would not confer on them any sort of right and that as and when recruitment rules were finalised, meeting of the departmental promotion committee would be held and the panel of officers would be drawn up and regular appointments would be made on that basis. It was also stated that it was quite conceivable that some of the officers appointed on ad-hoc basis may not figure in the panel or there may be rearrangement in their inter-se seniority being selection post. He took charge on May 19, 1973.

4. The petitioner, along with others who had been officiating as Assistant Aerodrome Officers on ad-hoc basis, was appointed as Assistant Aerodrome Officer on regular basis with effect from July 1, 1977 'in officiating capacity and until further orders'. Since the petitioner was not considered for promotion to the post of Aerodrome Officer in September 1976 when the meeting of the Departmental Promotion Committee was convened and some of his colleagues were promoted in January 1977 consequent thereto, he, on August 20, 1977, made a representation to the Director General of Civil Aviation (respondent No. 2) against this exclusion from consideration. As he did not receive any reply to this representation and as he was not considered for promotion by the departmental promotion committee in February 1978, he pursued his earlier representation by telegram dated March 3, 1978 and further representation on March 4, 1978. By memorandum dated March 13, 1978 he was informed that according to government orders, service rendered on ad hoc basis does not count either for seniority in the grade or for promotion to the next higher grade. For this view, he was referred to the office memorandum dated October 29, 1975 issued by the Department of Personnel Administrative Reforms, Government of India.

5. In the seniority list of Assistant Aerodrome Officers as on August 1, 1978, July 1, 1977 was shown as the date from which seniority of the petitioner in the grade would be counted, though in the statement showing seniority of Assistant Aerodrome Officers, as on April 1, 1974 (ad-hoc promotees) the date from which seniority in the grade would count was given as May 19, 1973, on which date the petitioner had taken charge of the said post.

6. The petitioner filed the present writ petition on April 10, 1978 claiming various reliefs. He had impleaded respondents No 5, 6 and 7 because according to him, they were promoted to the post of Aerodrome Officer even though they had been working in the post of Assistant Aerodrome Officers on officiating basis and the period of their officiation was counted for the purpose of seniority and for promotion to the higher cadre.

7. During the pendency of this petition, some Assistant Aerodrome Officers including respondent Nos. 8 to 10 were promoted as Aerodrome Officers and that is why the petitioner amended the petition by impleading these respondents. His grievance against these respondents is that though they were appointed temporarily as Assistant Aerodrome Officers in 1974 and were thus junior to him in that post, they had been promoted as Aerodrome Officers disregarding the claim of his and thus discriminating him. However, he deleted the names of respondent Nos. 6 and 8 with the result that the petition proceeded against respondent Nos. 1 to 5, 7, 9 and 10.

8. While the petition was pending in this Court, the petitioner has been promoted to the post of Aerodrome Officer with effect from December 24, 1980.

9. Though the petition is rather prolix, the crux of the whole matter is that the petitioner was not considered for promotion to the post of Aerodrome Officer either in September 1976 or February 1978 because, according to respondent Nos. 1 and 2 (the Central Government and the Director General of Civil Aviation), he was not eligible and did not qualify for that post since he did not have '3 years service in the grade' of Assistant Aerodrome Officer since the service he had put in from May 19, 1973 to July 1, 1977 on ad hoc basis could not be counted as 'service in the grade' to qualify the petitioner for promotion. It is this stand of these two respondents which is mainly under challenge in this writ petition.

10. Mr. K. H. Deshpande, the learned Counsel for the petitioner, put forth three contentions before us at the time of hearing. He firstly contended that though the relevant recruitment rule requires three years service in the grade of Assistant Aerodrome Officer for promotion to the post of Aerodrome Officer, this rule does not specify the nature of such service and hence there was no bar for counting ad-hoc service which the petitioner has put in the post of Assistant Aerodrome Officer, for the purposes of qualifying him for the promotion. In this connection, he submitted that though at the most ad-hoc service may not count for seniority and other benefits, all the same it is service in the grade of Assistant Aerodrome Officer which is the only requirement under the relevant recruitment rule. He submitted that ad-hoc service rendered by the petitioner cannot be said to have been wiped out completely on his being regularised in the post.

11. Mr. Deshpande secondly submitted that the petitioner and others were promoted on ad-hoc basis simply because the recruitment rules were not finalised consequent to the creation of the cadre, of Aerodrome Assistants, for a long period of 8 years and if these rules, had been finalised within a reasonable time, the petitioner would have been regularised much earlier and would have been promoted in due course since eventually he has been found fit for the promotional post. Mr. Deshpande submitted that even though the promotion of the petitioner to the post of Assistant Aerodrome Officer has been termed as on ad-hoc basis, for all practical purposes it was an appointment on regular basis since an appointment on ad-hoc basis lasts only for a short period and does not continue for an indefinite period. He submitted that the fact that the petitioner was continued on so-called ad-hoc basis for more than three years itself indicates that his promotion to the post of Assistant Aerodrome Officer was on regular basis and the formal regularization was being deferred because revised recruitment rules for that post had not been finalised. Thus, according to Mr. Deshpande, the petitioner should be treated to have been promoted to the post of Assistant Aerodrome Officer on regular basis not from July 1, 1977, as has been done by the authorities concerned, but with effect from May 19, 1973 when the petitioner actually took charge of that post.

12. Thirdly Mr. Deshpande contends that the seniority list of Assistant Aerodrome Officers as on April 1, 1974, had correctly shown the date of the entry of the petitioner in the grade for the purpose of seniority as May 19, 1973. The subsequent seniority list showing the .position as on August 1, 1977 had wrongly shown this date as July 1, 1977. According to Mr. Deshpande, the date given in the earlier seniority list was binding on the government and could not be altered without due notice to the petitioner.

13. Respondent Nos. 1 and 2 have contested the petition by filing their return. The other respondents have not appeared. Mr. Darda, the learned Counsel for respondent Nos. 1 and 2, reiterated the stand of the said respondents and submitted that the service which the petitioner had put in on ad-hoc basis in the post of Assistant Aerodrome Officer could not be termed as requisite qualifying service for the post of Aerodrome Officer since the relevant recruitment rule requires three years qualifying service in the grade of Assistant Aerodrome Officer and the promotion of the petitioner to the post of Assistant Aerodrome Officer on ad-hoc basis cannot be treated as his entry in the grade of Assistant Aerodrome Officers. He further submitted that the Central Government had made this position clear not only in the order under which the petitioner was promoted to the post of Assistant Aerodrome Officer on ad-hoc basis but the office memorandum issued by the Department of Personnel and Administrative Reforms of the Government of India on October 29, 1975. Mr. Darda further submitted that the very promotion of the petitioner as Aerodrome Assistant was itself not legal since only Aerodrome Operators, Grade I (Selection Grade) could be promoted to the post of Aerodrome Assistants and not Aerodrome Operator, Grade I which post the petitioner was holding at the time of his promotion as Aerodrome Assistant. Thus, according to Mr. Darda, if promotion of the petitioner as Aerodrome Assistant itself was in jeopardy, he could not aspire for further promotions and on this count also, he was not entitled to be promoted to the post of Aerodrome Officer.

14. This last contention of Mr. Darda is without any substance. In this connection it has to be noted that in spite of this alleged defect in the appointment of the petitioner as Aerodrome Assistant the respondent Nos. 1 and 2 did not only promote him on regular basis as Assistant Aerodrome Officer but further promoted him as Aerodrome Officer on December 29, 1980. It is too late in the day of these respondents to contend that the petitioner could not have been promoted as Aerodrome Assistant.

15. Since the petitioner has already been promoted with effect from December 29, 1980, the question which survives for consideration is whether he is entitled to a deemed date of promotion retrospectively if he is found eligible and fit when in the past some Assistant Aerodrome Officers were promoted in January 1977 and May 1978 pursuant to selection by the Departmental Promotion Committees in September 1976 and February 1978. As seen above, the contesting respondents contend that at the time when these selections were made the petitioner was not eligible for promotion since the service he rendered as Assistant Aerodrome Officer pursuant to ad-hoc appointment cannot be' taken into account for the purpose of service criterion needed in the lower post for promotion to the post of Aerodrome Officer under the relevant recruitment rules. As said above, we have to test the validity of this stand taken by these respondents.

16. Before taking up this question for consideration we may dispose of the grievance of the petitioner that in column 10 of the seniority list of Assistant Aerodrome Officers as on August 1, 1977 (Annexure XVIII) the date from which his seniority in the grade counts has been wrongly shown as July 1, 1977 and according to him it should have been May 19, 1973 as shown in column 9. He contends that this date should be May 19, 1973 since when he has been continuously officiating in the post. If this contention of the petitioner is found a valid, it will have a great bearing on the question of his eligibility for promotion. However, we find little substance in it for the following reasons.

17. The order dated March 23, 1973 (Annexure III) under which the petitioner and 39 other Aerodrome Assistants had been promoted clearly states that this promotion was 'on purely ad-hoc basis'. In order to put this matter, beyond any pale of doubt, paragraph 3 of this order reads as follows:

3. The promotions of all the above persons and also of Sarvashri J. L. Victor, D. K. Guha and Saroop Singh, who were promoted earlier, are purely on AD HOC basis on the clear understanding that this will not confer on them any sort of right and that as and when the recruitment rules are finalised, a D.P.C. will be held and a panel of Officers drawn up and regular appointments made on that basis. It is quite conceivable that some of the officers appointed now on ad-hoc basis may not figure in the panel at all or there may be re-arrangement in their inter-an seniority being a selection post. All this should be made absolutely clear to all these persons.

18. It is abundantly clear from this paragraph that the petitioner and others along with him had been promoted on ad-hoc basis pending the finalisation of the recruitment rules for the post of Assistant Aerodrome Officers. Obviously, these promotions were not regular and were not routed through the D.P.C. Regular promotions were contemplated after the recruitment rules were finalised and the list of eligible officers drawn up according to these rules and submitted to the D.P.C. for its consideration. As stated by the contesting respondents in their return, the revision of the relevant recruitment rules could not be finalised early as it had to pass through some stages and depended on consideration of certain reports (see paragraph 5 of the return). It is needless to say that the posts of Assistant Aerodrome Officers could not have been kept vacant indefinitely at the cost of dislocation of work. It was for this reason that under the order dated March 23, 1973, as many as forty officers had been promoted on ad hoc basis to fill up these posts in order .to keep the operation at the Aerodromes going. An ad hoc appointment is in the nature of a stop-gap arrangement when it is not possible to make regular appointment for various reasons. Normally, such appointments are made without considering all eligible persons for the posts and without prejudice to their claim for seniority, promotion or other benefits available to a regular appointee. Having regard to the circumstances in which the petitioner and others along with him, were promoted on ad hoc basis, it is clear that this was done by way of stopgap arrangement 'for operational requirement', as stated by the first two respondents in paragraph 5 of the return. In A.P.M. Mavenkutty v. Secretary, Public Service Department (1972) 2 S.C.C. 360 the Supreme Court has held that service rendered consequent to temporary appointment as a matter of stop-gap or emergency arrangement cannot be taken into account for the purposes of seniority. It further observed that such tenures hardly ever count for seniority in any system of service jurisprudence (See paragraphs 7 and 8 of the report). The reason for this proposition is not far to seek. As is well known, ad-hoc or fortuitous appointments by way of stop-gap arrangement or otherwise are made to tide over an emergent situation without considering the claims of other eligible persons. If the service rendered by such ad-hoc appointees in the higher post is counted for the purpose of determining their seniority in that post vis-a-vis others senior to them in the lower cadre, they would gain advantage over the latter purely because of the fortuitous circumstance that the choice or ad-hoc promotion or appointment fell on them, without any fault on the part of the seniors who could also have been appointed regularly or on ad-hoc basis, at the time when such ad hoc appointees are so appointed or promoted. Moreover, unless an employee is regularly promoted either substantively or on temporary or officiating basis after considering all the eligible employees with him, he cannot be taken to be rendering service in the higher cadre on regular basis so as to give him advantages in the matter of determining his placement in the seniority list of the employees in the promotional cadre. It is for this reason that we do not find any substance in the contention of the petitioner that for the purpose of determining his seniority in the grade of Assistant Aerodrome Officer, his service should have been counted from May 19, 1973 when he was appointed on ad hoc basis and not from July 1, 1977 when he was appointed on regular basis. In our view, the date stated in Column 10 of the seniority list at Annexure XVIII is correct.

19. This then brings us to the question as to whether the service rendered by the petitioner from May 19, 1973 to July 1, 1977 on ad hoc basis could be counted for determining his eligibility for promotion to the post of Aerodrome Officer under the recruitment rules of 1969. The schedule annexed to these rules specifies the post to which they apply. The requirements for recruitment to the posts of Aerodrome Officers are stated against the entry at serial No. 42(a) in the schedule. Column 11 of the schedule is captioned 'In case of recruitment by promotion/transfer, grades from which promotion to be made'. Under this column, against entry at serial No. 41(a), following words appear:

Promotion:

Assistant Aerodrome Officer with three years service in the grade.

20. It would, therefore, appear that only those Assistant Aerodrome Officers who have put in three years service in the grade would be eligible for promotion to the post of Aerodrome Officer. The question is whether the words 'in the grade' occurring in the entry quoted above include Assistant Aerodrome Officers who are appointed on purely ad hoc basis or are restricted only to those who are appointed on regular basis. In other words, the question is whether those Assistant Aerodrome Officers who have put in three years service as such including the tenure on ad hoc basis would be eligible for promotion to the post of Aerodrome Officer. It is unnecessary to say that the grade referred to in the entry quoted above means the grade of Assistant Aerodrome Officers. The words 'service in the grade' in column 11 will have to be construed to mean service rendered in the regular grade of Assistant Aerodrome Officer. after being duly appointed to that post. Any other interpretation would be unjust to the employees who did not have the benefit of ad hoc appointment without any fault on their part. As said above ad hoc appointments are made by way of stop-gap arrangement for various reasons. If the service rendered by the ad hoc appointees is given credit for the purpose of their being made eligible for further promotion, they would have an edge over those who are senior to them and who did not have the good fortune of being appointed on ad hoc basis, but are subsequently appointed on regular basis. In a given case, the result may be that a junior employee, who has been lucky enough in being appointed to a post on ad hoc basis though his senior did not have the benefit of such appointment, because of such ad hoc appointment would become eligible for further promotion to a post where service criterion is necessary, before the senior, put in the above situation, becomes eligible for the promotional post, In such a situation, the junior will go much ahead in the hierarchy of services keeping his senior behind, though the latter may be more competent than him. Hence if the words 'service in the grade' occurring in column 11 are interpreted to mean service rendered not only after appointment on regular basis but also prior service on ad hoc basis, it would lead to manifestly unjust result which cannot be allowed by interpreting the words differently. If the construction leads to manifestly unjust result, it must be discarded. It is precisely for this reason that paragraph 3 of the appointment order made the position regarding the nature of the tenure for the promotion clear to the promotees. They were given a clear understanding that the promotion would not confer on them 'any sort of right'. This could also include the right to count the service rendered on ad hoc basis for the purpose of promotion to the higher post namely that of Aerodrome Officer. The learned Counsel for the petitioner submitted that the words 'any sort of right' occurring in paragraph 3 of the order of promotion related to seniority and other benefits, but not to the question of a eligibility for the higher post. In our opinion, this submission is without any force. The words are wide enough to include all rights without any reservation including the right, if any, to count such service for eligibility to the next promotional post. What has been said in paragraph 3 of the promotion order is not limited to seniority and other collateral benefits but embraces all rights whatsoever which promotion otherwise than on ad hoc basis could have conferred on the employee. In our opinion, therefore, the service which the petitioner rendered from May 19, 1973 to July 1, 1977 on ad hoc basis could not have been taken into account as 'service in the grade' for the purpose of fulfilling the service criteria for promotion to the post of Aerodrome Officer.

21. In support of the proposition that the service rendered by the petitioner on ad hoc basis should be taken into account for determining his eligibility for further promotion, the learned Counsel for the petitioner relied on the following passage from the decision of the Delhi High Court in Kuldeep Chand Sharma v. Delhi Administration (1978) 2 S.L.R. 372 (Delhi)

True, an ad hoc appointment is in the nature of a stop gap arrangement, made for a variety of reasons, on account of which it is not possible to make a regular appointment. It may be that the Rules under which a regular appointment has to be made have yet to be framed because the regular incumbent is not available or the process for regular selection involves time and the exigencies of service are such that the posts cannot be allowed to remain unmanned meanwhile. Such an appointment, however, does not affect the rights of those who were not considered for such appointment, though within the range of eligibility. In that sense ad hoc appointment does not by itself confer any right on the said appointee for regular appointment to such a post. But it is equally true that once an ad hoc appointee is eventually selected for the post in a regular selection, the regular appointment would relate back to the date of ad hoc appointment. To that extent, therefore, the period during which an ad hoc appointee has served as such in the appointment continues to his service career and, therefore, legitimately forms basis of a certain right that accrues by subsequent appointment.

22. With respect, it is difficult to agree with the propositions laid down in the last two sentences in the passage quoted above. If, as has been said by the Division Bench, an ad hoc appointment docs not affect the rights of those who have not been considered for such appointment, though within the range of eligibility, it is difficult to see how the regular appointment of such an ad hoc appointee could relate back to the date of his ad hoc appointment and how the period during which an ad hoc appointee has served as such could contribute to his service career without detriment to the rights of those who were not considered for ad hoc appointment and whose rights as rightly said by the Division Bench, would not be affected by such ad hoc appointment. In our view, the Division Bench, with respect, has not laid down the correct law in this behalf. As pointed out earlier, in Mavankutty's case, the Supreme Court has held otherwise. The appellants in that case were appointed under Rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules as temporary Junior Engineers in the Madras Highway Subordinate Service. This rule permitted the appointing authority to appoint a person temporarily otherwise in accordance with the said rules, where it was necessary in the public interest owing to an emergency which arose to fill immediately a vacancy in a post borne on the cadre of a service, class of category and there would be undue delay in making such appointment in accordance with the rules. The Supreme Court held that the appointment of the appellants in that case was a matter of stop-gap or emergency arrangement in face of the provisions of the Rule and the terms of their appointment. It was in this context that the Supreme Court said that such service could not be taken into account for purpose of seniority and that the appellants could not contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority. Not only this but the Supreme Court went on to further state that the fact that the appellants were qualified to hold posts could not entitle them to count, for the purposes of seniority, the period during which they served in a stop-gap or emergency arrangement and that such tenures hardly ever count for seniority in any system of service jurisprudence. This -ruling of the Supreme Court would apply with equal force to service rendered on ad hoc basis since as pointed out above an ad hoc appointment is made as a stop-gap arrangement for a variety of reasons, as has been said by the Delhi High Court in Kuldeep Chand Sharma's case (supra)

23. The learned Counsel for the petitioner submitted that provision for service criterion in recruitment rules is made with the object to promote officials with sufficient experience in the lower posts and in, that sense 'service' is tantamount to 'experience'. According to the learned Counsel, if an employee has gained experience of working in a particular post for the requisite period, that should be taken as service in the post or grade for the purpose of satisfying the service criteria for the promotional post. He further submitted that in the absence of any provision that the requisite service must be on regular appointment, the service put in on ad hoc appointment must count towards eligibility. For this proposition, the learned Counsel relied on the decision of the learned Single Judge of Punjab & Haryana High Court in Dr. Ravindra Paul Kaur v. State of Punjab [1979] 1 S.L.R. 554 ). Now the question in Ravindra Paul Kaur's case was whether the experience, which she had gained, on her promotion as Assistant Professor in Radiology on an ad hoc basis, could be considered as requisite qualification for appointment as Professor. The relevant recruitment rule required teaching experience as Assistant Professor in the speciality concerned of five years in a medical college after requisite post-graduate qualification, to qualify for appointment to the post of professor in medical college. Obviously, the rule speaks of 'experience' and not 'service'. These two cannot be equated for the simple reason that different considerations would arise in considering experience as a qualification and service as such. Normally, service criterion is provided in the recruitment rules not only with the object of ensuring, that the concerned employee gains sufficient experience in the lower pest but also with the object of seeing that an employee in the lower post does not get jump promotion within a very short time of his being appointed in that post. In his sense, experience would differ from service. In our view, therefore, the ruling in Ravinder Paul Kaur's case will not hold good in the present case.

24. The same can be said of the decision of the Supreme Court in Dr. Aseem Kumar v. Union of India (1982) 3 S.L.R. 97 as that was also a case of teaching, experience needed for promotion to the post of Professor or an Associate Professor.

25. The learned Counsel also relied on the decision of the learned Single Judge of the Kerala High Court in Bhaskarun v. State of Kerala (1982) 1 Lab. Jour. 43. There, the service qualification, required the candidate to 'have rendered his service under Government'. While interpreting these words, the learned Judge held that they did not relate to any particular kind of service but all kinds of service under the Government. The learned Judge observed that unless qualifying service is specifically denoted as either regular service or officiating service. The Officer claiming promotion will be entitled to his service when the word used is only 'service'. This observation of the learned Judge would not hold good in the present case for the reason that here the service needed is 'service in the grade' and the question is whether service rendered by an ad hoc appointee could be said to be service in the grade. For the reasons which we have stated above, we cannot subscribe to the proposition so widely laid down by the learned Single Judge of the Kerala High Court.

26. The learned Counsel for the petitioner also relied upon the decision of the Supreme Court in Harinandan v. S.N. Dikshit : [1970]1SCR421 to illustrate as to what is meant by the word 'Grade'. In that case, the Allahabad High Court, from whose judgment the Supreme Court was disposing of the appeal, had held that all officials working in the same scale of pay .in a department, although holding posts with different designations, should be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another. The Supreme Court has approved of this ruling of the Allahabad High Court, The question as to the meaning of the word 'grade' in that case arose in the context of Rule 7 of the United Provinces Legislative Department Rules which provides for recruitment to the post of .superintendent. The High Court was called upon to interpret the word 'grade' occurring in that rule and it was in this context that the Allahabad High Court came to interpret it in the way stated above. Obviously, neither the Allahabad High Court nor the Supreme Court was interpreting the word 'grade' generally in its application to all cases. The word will have to be interpreted and construed in the context of the provision where it is used and it would have different meanings in different situations.

27. As we said above, it is not possible to uphold the contention for the petitioner that the service rendered by him from May 19, 1973 to July 1, 1977 on ad hoc basis should have been taken into account as qualifying service for the promotion to the post of Aerodrome Officer. Refusal to consider this service as qualifying service has not, in any way, affected the petitioner vis-a-vis other officers who had been similarly appointed on ad hoc basis. The contesting respondents have specifically stated in their return that none was junior to the petitioner in promotion. If the service rendered by the petitioner as an ad hoc appointee is to be considered as qualifying service, the same benefit would go to other officers who had been so appointed and, in that case, the position, of the petitioner would not be any different. The petitioner makes a grievance about the promotion of respondent Nos. 5 to 10. However, he does not state that they were similarly circumstanced as he was. There is nothing to show that these respondents were appointed as Assistant Aerodrome Officers on ad hoc basis and their service, as such, was counted for making them eligible for the post of Aerodrome Officer. The averments made in the petition in this respect are vague and the petitioner has not produced the orders under which they had been appointed as Assistant Aerodrome Officers to show that their appointment was also on ad hoc basis, subsequent to his own appointment. In short, the petitioner has not put on record sufficient material to support his charge of discrimination. On the contrary, the contesting respondents have pointed out as to how' the cases of these respondents differ from the petitioner.

28. We, therefore, do not find any substance in this petition and it stands dismissed and the rule discharged. However, in the circumstances of the case, there shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //