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Learned Senior Counsel invited our attention to the proposal dated 7th January, 2011 of the State Government for promotion of the petitioner as Deputy Director. In the said proposal, it is mentioned that as no officer from ST category was available and also if it is not possible to fill in the post even by rotation then the post should be filled in from amongst the candidate belonging to the SC as per the circular dated 27/10/2008 This was pursuant to the opinion given by the General Administrative Department. In his submission, a detailed procedure was followed WP 8859-16 with wp 8860-16 with wp 9291-16.doc before the actual order of promotion dated 11/8/2011 promoting the petitioner as JDTP was issued. He submits that therefore, the appointment order dated 11/8/2011 has an imprint of legality on it. According to him it cannot be said to be a void order at its inception having regard to the fact that the post of JDTP was very much available for a reserved category and the roster point was changed after following the due procedure contemplated by the circular dated 27/10/2008. In his submission, the appointment of the petitioner cannot be said to be fortuitous appointment and in fact the same is a regular promotion as the petitioner was selected for appointment to the said post in accordance with the selection procedure laid down by the rules for appointment as JDTP. In his submission, though the word "Ad-hoc" is mentioned in the order of promotion but the same is only styled in that fashion, for even State Government has recognized the said order as a regular order of promotion. He invited our attention to the order dated 2/7/2013 promoting the respondent No.1 to the post of JDTP, which order is of a similar nature as that of the petitioner. The State Government has taken a stand WP 8859-16 with wp 8860-16 with wp 9291-16.doc that the order dated 11/8/2011 as well as the order dated 2/7/2013 promoting the petitioner as well as the respondent No.1 are regular orders of promotion. (B) Learned Senior Counsel therefore submits that the respondent No.1 having not challenged the promotion order dated 11/8/2011 which is a basic order, challenging the consequential order viz. the seniority list is not permissible. In the submission of the learned Senior Counsel once the petitioner is validly appointed, the issue of seniority follows as a consequence as contemplated by the Seniority Rules referred hereafter.

In the submission of the learned Senior Counsel this was impermissible. Once the circular dated 27/10/2008 itself is quashed and set aside, the promotion of the petitioner itself became an illegal appointment and contrary to the WP 8859-16 with wp 8860-16 with wp 9291-16.doc Service Rules. In his submission, the right to seniority derives from an appointment which is lawfully made. (B) Learned Senior Counsel would further submits that as the petitioner's appointment in the face of Section 4, Section 6 and Section 11 of the Reservation Act is null and void, the said appointment of the petitioner made contrary to the Rules is merely fortuitous and such fortuitous appointment cannot confer a benefit of seniority on the petitioner over and above the regular/substantive appointees to the service.

(a) Sanjay K. Sinha-II v/s. State of Bihar, ((2004) 10 SCC 734);

(b) Ajit Singh (II) vs. State of Punjab, ((1999) 7 SCC

209);

(c) Bhupendra Nath Hazarika vs. State of Assam, ((2013) 2 SCC 516), in support of his submission that if the order of promotion itself is void then what required to be challenged is only the seniority granted to the petitioner on account of such fortuitous appointment. (I) Learned Senior Counsel also would submit that Rule 4 (1) of the Rules of 1982 provides that the service rendered as a result of a fortuitous appointment shall be excluded for the purpose of seniority and the appointee shall be deemed to be appointed to the post only on the date on which his regular appointment is made in accordance with the provisions of Recruitment Rules. In his submission, it WP 8859-16 with wp 8860-16 with wp 9291-16.doc was therefore, not necessary for the respondent No.1 to have challenged the promotion of the petitioner and challenge to petitioner's seniority by respondent No.1 by filing O.A. was sufficient.

WP 8859-16 with wp 8860-16 with wp 9291-16.doc

39. We, therefore, are of the opinion that without challenging the promotion order dated 11/8/2011 of the petitioner, the Tribunal was not justified in proceeding on the footing that the appointment of the petitioner is a fortuitous appointment being in contravention of the Recruitment Rules. Whether the order of promotion is valid or invalid is required to be adjudicated before going into the question of legality of the seniority list. In our opinion, the Tribunal ought to have dismissed the O.A. on the count that the order of promotion dated 11/8/2011 which forms the basis of the seniority has not been challenged.