D.K. Kapur, J.
(1) The question with which we are concerned in this appeal is the seniority of various Assistant Engineers who were promoted to the post of Executive Engineer. There were two contentions raised on behalf of the petitioners in the writ petition which was eventually rejected by the learned single Judge The first contention was that the appellants were entitled to get seniority on the basis of the service rendered as Assistant Engineer even prior to their joining the Corporation, it appears that all the petitioners had worked as Assistant Engineers in different Government or other departments such as Hindustan Chemical and Fertilisers Aera, Municipal Committee, U.P. Irrigation Department and so on. According to the petitioners, as they were Assistant Engineers even before they joined the Corporation, they had to get the advantage of that period of service. The second point raised by the petitioners was that they had rendered service on an ad hoc basis prior to their regular selection by the Departmental Promotion Committee and this period should be taken into account in determining the inter se seniority of the petitioners and the other officers The second question thereforee boiled down to determining whether the seniority of the petitioners was to be taken from the date of selection by the Departmental Promotion Committee or was to be based on the ad hoc service even prior to that.
(2) As far as the first question is concerned the learned single Judge rejected the same and we are unable to find any principle on which the services rendered with another Department can be taken into consideration for determining the seniority. Actually, the point arises in this case in a difficult way. When the petitioners were promoted to the post of Executive Engineer on an ad hoc basil, the rule of eligibility was five years service when some of the petitioners were promoted on an ad hoc basis So, S. Parkash was given an ad hoc appointment at a later date The final seniority list under challenge in the petition had made S Parkash senior to the petitioners, and the petitioner had raised this point with a view to show that the seniority had been wrongly settled. As we find that we have to decide the seniority for the post of Executive Engineer and not for the post of Assistant Engineer, this point does not appear to have much relevance at this stage. In our view the question of seniority has to be determined on the basis of a Rule or on principles, as we shall presently deal with.
(3) Turning now to the second question, the learned single Judge accepted the contention of the petitioners that, in fact, the Dpc had merely regularised the appointments already made and it was also accepted that the decision in Ishwar Chander Sanger v. Desu Lpa 110/69, decided by a Division Bench on 28th May, 1970, applied and, thereforee, the subsequent confirmation of the petitioners would relate back to the date of initial appointment. The conclusion was that once a selection was regularised, the officer concerned would be deemed to be in regular service throughout the period starting from the date of ad hoc promotion.
(4) Other questions raised by the Corporation to justify an opposite conclusion were rejected by the learned tingle Judge It was also held by the learned single Judge that consultation with the UPSC was a mere 'directory' provision and Section 96 of the Delhi Municipal Corporation Act did not make it obligatory to consult the UPSC to a degree so as to render void any appointment made without such consultation. In other words, the conclusion was that the delay in confirmation on account of difficulties in consulting the UPSC was to be disregarded and the petitioners' service was to date back. However, the learned single Judge also held that Rule 6 of Delhi Administration Seniority Rules 1965 appeared and according to these Rules, where a person was promoted initially and confirmed subsequently in an order different from the order of merit indicated at the time of promotion, then seniority has to follow the order at the time of confirmation and not the original order at the time of appointment It was argued before the learned single Judge that the matter was not governed by the Delhi Administration Seniority Rules, 1965. but by Delhi State Service Seniority Rules 1954 - The learned single Judge held that 1954 Rules would not apply after they were repealed by the 1965 Rules
(5) In support of this appeal, it is urged by the learned counsel for the appellant that the writ petition succeeded before the learned single Judge on the question of seniority dating back to the date of appointment on an ad hoc basis, but failed only because the court held that the Delhi Administration Seniority Rules 1965. governed the principles on which seniority was to be determined. It is contended by the learned counsel that these Rules have no application to the Delhi Municipal Corporation and Rules made under Article 309 have no application to the question of determination of seniority of the petitioners and the respondents who are serving under the Municipal Corporation of Delhi. The other point urged is that even the previous service in certain cases has to be taken into consideration for determining the seniority.
(6) The first question is : what is the rule about seniority applicable to persons serving under the Corporation When the Corporation was set up service Regulations were framed in 1959, called the Delhi Municipal Corporation Service Regulations 1959. They were framed by the Government of India Under Clauses (a) and (e) of Section 98(1), and Section 480(1) of Delhi Municipal Corporation Act, 1957 Paragraph No. 4 of these Regulations states as follows :-
'4(1).Unless otherwise provided in the Act or these regulations, the Rules for the time being inforce and applicable to Govt. servants in the service of the Central Govt. shall, as far as may be regulate the conditions of service of Municipal Officers and other Municipal employees except in respect of matters relating to provident funds, subject to the modifications that any reference in the Rules to a Govt. servant the consolidated fund of India Civil, Surgeon and the Medical Committee shall be construed as a reference reference to a Municipal Officer of other Municipal employee, and Municipal Fund and Municipal Health Officer and any medical board constituted by the Commissioner.'
There is a definition of 'Rules' given in Regulation 2(b), which reads :
'2(B),'Rules' means :- i. the fundamental Rules and the supplementary Rules; ii. The Central Civil Services (Temporary Service) Rules 1949 , and iii. The Central Civil Services (Conduct Rules, 1955,) and includes orders issued there under by the Central Govt. of the instructions issued by the Comptroller and Auditor-General of India from time to time.'
(7) We are unable to find how the Delhi Administration Seniority Rules, can be said to be part of these 'Rules'. So, the conclusion of the learned single Judge that seniority has to be governed by the order in which the Dpc selects officers does not find a place here. The normal rule is that seniority is governed by the period of continuous officiating service in the absence of any other seniority rule. The period of continuous officiation in the case of the present petitioners will, thereforee, be the governing. principle.
(8) It may be mentioned now that this appeal has been heard along with a number of other appeals and writ petitions which raise a somewhat similar question. We have cases dealing with persons directly recruited to the poet of Assistant Engineer. We have also cases of persons promoted to the post of Executive Engineer from the post of Assistant Engineer. Various judgments by different learned single Judges have been dealt with by us. In some cases, the case of Ishwar Chander Sanger v. Desu, Lpa 110/69 had been followed. In others it had been distinguished, but we have found that the said judgment applies to all the cases. The reason we have found is that the delay in making recruitment rules and making regular appointments in accordance with the procedure envisaged by the Act has really been the result of a conflict between the Corporation and the Union Public Service Commission. In the result, for years on end, persons have continued on an ad hoc basis. This has happened even in cases where the appointment was not on ad hoc basis initially. In such cases, the period of continuous ad hoc service cannot be treated as a stop gap arrangement. This is, infact, a regular appointment, which is held in abeyance because the recruitment rules were not settled and the procedure not finalised. These appointments have eventually been regularised after the recruitment rules had been settled and the procedure laid down. The period prior to the so-called regular appointment is also a period of regular service as held by the Division Bench in Ishwar Chander Sanger's case. The judgments we have delivered are in the cases of M.CD. v. K.K. Bhatia Lpa 119/77 Lashkar Singh & Ors. v. MC.D. and J.P. Gupta & Ors v. M.CD., the present case. We have also taken the same view in the case of M C D. which is a case of a direct recruit and also B C. Gupta & ors. v. M.C.D.CW 327/71 and other connected writs and Rameshwar Aggarwal and Ors v. M.CD. Lpa 154 of 1977. thereforee, the petitioners will succeed in this appeal and their seniority will relate back to the date of initial appointment. The appeal is allowed. The petitioners will get costs. Counsel fee Rs. 250.00