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Sanjay Kishore And Another v. State Of U.P. And Others - WRIT - A No. 27171 of 2006  RD-AH 1102 (17 January 2007)
Civil Misc. Writ Petition No. 27171 of 2006.
Sanjay Kishore and another........................................................ Petitioners.
State of U.P. and others...............................................................Respondents.
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice R.K. Rastogi)
For the Petitioners : Sri U.N. Sharma, Sr. Advocate,&
Sri Rahul Sripat.
For the Respondents : Sri Vijendra Singh,
Chief Standing Counsel.
Amitava Lala, J.-- Sri U.N. Sharma, learned Senior Counsel appearing on behalf of petitioners, contended before this Court that at the time of consideration of seniority the petitioners' seniority was ignored by the department taking a plea that their original appointment was on adhoc basis. But we find in the judgement reported in 1990 (2) SCC 715 (Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others) Five Judges Bench of the Supreme Court framed certain guidelines for the purpose of consideration of the cause. Out of such guidelines, two important guidelines are as follows:
"(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 ad hoc 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.
(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 regularisation of his service in accordance with the rules, the period of officiating service will be counted."
The contention of the learned Senior Counsel is that if appointment of the petitioners is ad hoc, they can not claim any right of seniority from their initial appointment. But factually herein the initial appointment on ad hoc basis was for a period of one year or so and thereafter continued uninterruptedly for a period about 14 years, therefore, their cases are falling under the Guideline (B), as aforesaid, which has also been held by the subsequent judgement of the Supreme Court reported in 2000 (8) SCC 25 (Rudra Kumar Sain and others Vs. Union of India and others). Learned Senior Counsel also stated before this Court that in a judgement of the Uttaranchal High Court in Writ Petition No. 140 of 2005 (S/B) (Smt. Archana Shukla and others Vs. State of Uttaranchal and others) dated 06th March, 2006 all the judgements of the Supreme Court were considered and held in favour of the petitioners' case. We have called upon the learned Chief Standing Counsel to make submission who, in turn, contended before this Court that it is settled position of law that we have to consider the case.
Thus, in disposing the writ petition we direct the petitioners to file a representation before the authority concerned within a period of seven days from the date of obtaining certified copy of this order and in such case the authority concerned will consider the representation of the petitioners within a period of two months from the date of filing representation upon giving adequate opportunity of hearing and by passing a reasoned order thereon. For the purpose of effective adjudication a copy of the writ petition along with its annexures can also be treated as part and parcel of the representation. Therefore, as a result whereof, the order impugned herein rejecting the representation made by the petitioners on earlier occasion stands quashed. It is expected that all the promotional steps will be taken after consideration of the representation and communication of the order to the petitioners.
Accordingly, the writ petition stands disposed of.
No order is passed as to costs.
(Justice Amitava Lala)
(Justice R.K. Rastogi)
Dt./-17th January, 2007.
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