By the Court.—Heard learned Standing counsel appearing for the State-petitioner and Sri V. S. Tripathi and Sri Arshad Rizvi for respondent No. 1.

2. This petition challenges the judgment and order passed by State Public Services Tribunal, U.P. dated 6.2.1997 whereby the claim put forth by respondent No. 1 for counting the entire adhoc services for the purposes of reckoning seniority, has been allowed and he has been ordered to be placed at a proper place in the seniority and further his case has been ordered to be considered for promotion to the post of Executive Engineer w.e.f. 28.1.1995 i.e. the date from which the incumbents junior to him were promoted on the said post.

3. We have perused the judgment and order of the Tribunal and other relevant records available in the writ petition and have given our anxious consideration to the arguments raised by learned counsel appearing for the respective parties.

4. The sole question for consideration in this case is as to whether the services rendered by the petitioner-respondent No. 1 in adhoc capacity from the date of his initial appointemnt i.e. from 21st August, 1981 till the date of his regularization i.e. 23rd August, 1986 is to be reckoned for the purposes of giving benefit of seniority or not ?

5. The law in respect of counting such services for the purposes of seniority has been summarized by Hon’ble Apex Court in the case of Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra and others, (1990) 2 SCC 715. Hon’ble Apex Court in this case has summed up that once an incumbent is appointed to a post according to rule, his seniority is to be counted from the date of his appointment and not from the date of his confirmation. The Apex Court further stated in the said judgment that 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. Hon’ble Apex Court in the said judgment has further observed as under :

“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.”

6. So far as the facts of the instant case are concerned, they appear undisputed amongst the parties. The respondent No. 1 was appointed after having been subjected to selection process which was held pursuant to an advertisement. Initial appointment of the respondent No. 1 was made on adhoc basis on 21st August, 1981 and thereafter in terms of the provisions contained in U.P. Regularization of Adhoc Appointment (On posts within purview of (U.P.) Public Services Commission Rules, 1979 amended from time to time, the services of respondent No. 1 were regularized on the post of Assistant Engineer on 23rd August, 1986. It is also not in dispute that the respondent No. 1 having continued for a period of about 5 years from the date of his initial appointemnt in adhoc capacity, was regularized on 23rd August, 1986 without any interruption. Thus, emphasis has been laid by learned counsel appearing for respondent No. 1 that respondent No. 1 was entitled to be given the benefit of adhoc services rendered by him from 21st August, 1981 till 23rd August, 1986 in terms of law laid down by Hon’ble Apex Court in the case of Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra and others (Supra).

7. At this juncture, learned Standing counsel appearing for the State-petitioner has submitted that the conclusion drawn by Hon’ble Apex Court in the case of Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra and others (Supra) in para 47 A and B are to be read harmoniously as has been held by Hon’ble Apex Court in the case of State of West Bengal v. Aghor Nath Dey, 19