The Himachal Pradesh High Court (Shimla Bench) has held that an ad hoc promotion made in excess of the prescribed quota, dehors the Recruitment and Promotion Rules, and as a purely stop-gap arrangement in exigencies of service, does not confer any legal right on the incumbent to claim the benefit of such service for the purpose of seniority. No mandamus can be issued in the absence of statutory rules or policy, and a claim for seniority based on ad hoc service rendered in excess of quota cannot be sustained, particularly where the terms of the original appointment order expressly excluded any such right.
The Court therefore upheld the reasoning given by the Single Judge as it did not suffer from any infirmity in denying the seniority claim, and that there were no plausible reasons to take a different view in light of the settled principles governing the matter.
The Division Bench comprising the Chief Justice Gurmeet Singh Sandhawalia and Justice Bipin C. Negi observed that the promotion was not made in accordance with the Recruitment and Promotion Rules, was in excess of the prescribed quota, and was only a stop-gap arrangement. Accordingly, the benefit of such ad hoc service could not be granted for the purpose of seniority.
The persons appointed as Clerks by way of direct recruitment and promotion between June 28, 1991 and Nov 17, 1995 had not been arrayed as party respondents, and that granting the relief claimed would unsettle their seniority and amount to passing an adverse order behind their back, which was impermissible in law, noted the Bench.
The Bench further noted that the appellant was well aware of the ad hoc exigencies on the basis of which she had been granted the benefit of promotion, and that the order dated May 20, 2010 reflected that the ad hoc promotions were necessitated due to a ban imposed by the State of Himachal Pradesh on direct recruitment, which had caused an acute shortage of Clerks in the HPSEB.
The Bench relied upon the settled principle that no mandamus can be issued in the absence of statutory rules or policy, and that no indulgence can be granted dehors any such instructions where the petitioner has no vested legal right to claim that the said period be counted for the purpose of seniority.
Briefly, the appellant’s claim was for grant of seniority as Clerk from the date of her initial ad hoc promotion on June 28, 1991, up to Nov 17, 1995, when her regular promotion to the said post was granted. This claim had been rejected by the authorities and the matter had originally been filed before the erstwhile H.P. State Administrative Tribunal and, upon its abolition, was transferred back to the High Court for decision. It was factually recorded that 143 Class-IV posts were in excess up to Aug 14, 1990, beyond the prescribed 15% quota meant for the category of the petitioner, i.e., Class-IV (Non-Technical Staff) in the promotional cadre.
The claim was rejected by the authorities vide order dated May 20, 2010, passed in pursuance of earlier directions issued in CWP No. 4653 of 2008, decided on March 28, 2010, wherein the Board had been directed to consider the petitioner’s case in light of her plea that the Board had issued instructions prescribing the manner in which services rendered on ad hoc basis were to be counted for seniority.
During the course of arguments, counsel for the petitioner conceded that there was nothing on record to show the existence of any such instructions. The Secretary, HPSEB, Shimla, while rejecting the claim, also noticed that despite having been afforded an opportunity to produce a copy of the instructions dated June 29, 2002, the petitioner failed to do so. The order dated June 28, 1991, whereby the appellant was promoted on ad hoc basis, contained a specific Clause 2 stating that the offer of appointment was purely on ad hoc basis and that the seniority of Class-III employees and their initial appointment, being considered in excess of quota, would have no bearing whatsoever on the matter of seniority.
