Jyotirmay Bhattacharya, J. - (1.) RE.:- CAN No.049 of 2011 On perusal of this application this Court holds that the documents which the appellant wants to bring on record by way of additional evidence, are relevant for deciding the instant appeal finally.
(2.) AS such, the appellant"s prayer for production of those documents by way of additional evidence stands allowed. This application is thus disposed of. This Mandamus appeal is directed against the judgement and /or order dated 25th November, 2010 passed by a learned Single Judge of this Court sitting in the Circuit Bench at Port Blair in WP No.335 of 2007 by which the seniority list published by the respondents which was impugned in the said writ petition was set aside and the Municipal Council was directed to refix the seniority list on the basis of substantive order of promotion having been granted to the respective parties without taking into consideration of the length of service rendered on ad-hoc basis. The propriety of the said order passed by the learned Single Judge of this Court is under challenge in this Writ Petition at the instance of the appellant who was affected by the impugned order by which the said seniority list was set aside. 3. The learned Single Judge held that there was no provision in the recruitment rules for giving promotion on ad-hoc basis. The learned Single Judge also held that there is no provision of regularization of the ad-hoc period of service in the promotional post in the recruitment rules. The learned Single Judge ultimately held that the period served by the appellant in the promotional post on ad-hoc basis ought not to have been counted for the purpose of seniority. Such conclusion was arrived at by the learned Single Judge by relying upon two decisions of Hon"ble Supreme Court; one of which was passed by the Constitutional Bench of the Hon"ble Supreme Court in the case of the Direct Recruit Class-II Engineering Officers Association and others Vs. State of Maharashtra reported in AIR 1990 SC 1607 and the other one was passed by the Hon"ble Supreme Court in the case of Ram Ganesh Tripathi and others v. State of U.P. and others reported in (1997) 1 SCC 621. Let us now consider as to how far the learned Single Judge was justified in passing the said order in the facts of the instant case.
(3.) THE only question which is involved in this appeal is as to whether the seniority should be given to the appellant by taking into consideration his initial promotional order on ad-hoc basis after regularization of his service. THE answer to the said question can be traced out from the Constitutional Bench judgment of the Hon"ble Supreme Court in the case of the Direct Recruit Class-II Engineering Officers Association and Ors "vs- State of Maharashtra reported in AIR 1990 SC 1607 wherein it was clearly laid down as to when and under what circumstances the appointee on promotional post on ad-hoc basis can get the benefits of the period of such service for the purpose of counting his seniority after regularization of his service. THE relevant part of the said judgment which is pertinent to the matter in issue in this appeal, is set out hereinunder. "44(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. THE corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority (emphasis supplied). (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted." The said decision of the Hon"ble Supreme Court thus makes it clear that once an incumbent is appointed to a post according to rule, his seniority has to be counted form the date of his appointment and not from the date of his confirmation. It was further held therein that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules the period of officiating service will be counted for fixing his seniority. (Emphasis supplied);