J U D G M E N T

V. KAMESWAR RAO, J

1. Vide this order/judgment; we shall decide the aforesaid two writ petitions which arise from an order dated August 30, 2006 passed in Original Application being O.A. 2785/2004 ( „O.A‟, for short) and order dated October 16, 2006 passed in Review Application being RA

152/2006 („ RA‟, for short) in OA 2785/2004.

2. For convenience, the petitioners in W.P.(C) 1736/2007 shall be referred to as ad hoc appointees and the petitioners in W.P.(C)

4762/2007 shall be referred to as direct recruits.

3. Vide W.P. (C) 1736/2007, the ad hoc appointees have challenged the aforesaid order dated August 30, 2006, of the Tribunal to the extent that the Tribunal has set aside the seniority list issued by the Election Commission of India/respondent No.1 („ECI‟, for short) in the grade of Lower Division Clerk („LDC‟, for short) with a further direction to the respondent No.1 to re-determine the seniority of the applicants in the O.A., who are the direct recruits/respondent Nos. 3 to 12 in W.P.(C) 1736/2007 and also the petitioners in W.P.(C)

4762/2007.

4. The O.A. was filed by direct recruits before the Tribunal challenging the final seniority list dated June 11, 2004 issued by the ECI wherein ad hoc appointees were shown senior to the direct recruits. It is that seniority list, which has been set aside by the Tribunal by directing the ECI to re-determine the seniority of the ad hoc appointees/direct recruits in the light of the principles of law, rules, instructions and the observations made by it.

5. To appreciate the issue which arises for consideration it is necessary to delineate the facts, in paragraph 7 onwards.

6. At this stage, it is necessary to state that the direct recruits who succeeded before the Tribunal had also challenged the impugned order of the Tribunal dated August 30, 2006 to the extent that the Tribunal has upheld the order of regularisation of the ad hoc appointees (petitioners in W.P.(C) 1736/2007) and declined to disturb the order(s) of promotion which is already issued in favour of the ad hoc appointees to the post of Upper Division Clerk („UDC‟, for short).

7. On August 26, 1988, the ECI /the respondent No.1 introduced the Election Commission (Group C and Group D posts) Recruitment Rules, 1988. The Rules provides that 90% of the posts of LDC to be filled by direct recruitment, failing which by transfer / deputation. The Rules also contemplate that 10% of the vacancies shall be filled by Group D employees (borne on regular establishment) of the ECI in the following manner:-

a. 5% of the vacancies shall be filled through departmental examination to be held by ECI confine to such Group D employees who fulfill the requirement of minimum education qualification namely matriculation or equivalent.

b. 5% of the vacancies shall be filled by promotion on the basis of seniority cum fitness basis from amongst the Group D employees who fulfill the requirement of minimum education qualification namely matriculation or equivalent.

8. It was the case of the ad hoc appointees that the ECI had appointed them as LDCs on ad hoc basis through Employment Exchange in view of the Lok Sabha Election and Presidential Election in the year 1991. It was also their case that the ECI had approached the Staff Selection Commission („SSC‟, for short) for 20 dossiers for appointment as LDC and the SSC has sent only five dossiers in the year 1993 and the five dossiers were returned by the ECI. It was also their case that, as they were having sufficient experience in the conduct of elections, the ECI regularised their appointment in temporary capacity w.e.f., October 11, 1993 with probation of two years.

9. In 1993, the SSC has sent 15 dossiers which were also returned by the ECI. It is also stated that the ECI in 1993 appointed the ad hoc appointees on temporary basis with probation for two years. On completion of probation period during 1995, they were made permanent.

10. That on August 28, 1996, the ECI decided to fill 25 vacancies