IMPORTANT POINT
The services rendered by the promotees on an ad hoc basis in the post of senior clerk cannot be allowed to be counted for the purpose of their seniority in the cadre of senior clerk in Railway Establishment.

Headnote:(i) Railway Establishment Manual -Para 302-Seniority in initial recruitment grades-Whether the services rendered by promotees on ad hoc basis in the post of Senior Clerk can be allowed to be counted for the purpose of their seniority in the cadre of senior clerk as held by CAT? (No).
       Held : On a plain reading of the aforesaid provision, (Para 302 of REM) it is crystal clear that date of regular promotion after due process of selection would be the date from which seniority in the cadre of Senior Clerk would count. In the case in hand, the appointment of the respondents in the cadre of Senior Clerk against 66-2/3 quota as well as the appointment of the appellants in the said grade against 13-1/3 quota, through limited departmental competitive examination are by way of promotion from the cadre of Office Clerk. The inter se seniority, therefore, of these two category of personnel in the cadre of Senior Clerk, would be from the date on which each one of them were promoted after their regular selection by due process of selection. In other words, when promotion is given after holding the suitability test, on adjudging the suitability of the employee, then the promotion can be held to be a regular promotion and not earlier. In the case in hand, so far as the appellants are concerned, the relevant date would be 18.1.1985 and so far as the respondents are concerned, the relevant date would be 28.2.1985. The ad hoc services rendered by the respondents for different periods from 9.12.1982 till they were regularly absorbed on adjudging their suitability by holding test, cannot be reckoned for the purposes of their seniority in the cadre of senior clerk. The conclusion of the tribunal is contrary to the aforesaid provision of the Railway Establishment Manual and cannot be sustained. (Para 7)
       (ii) Railway Establishment Manual -Paras 213 and 214(c)(v)-Promotion-The so-called ad hoc promotion of the respondents to the scale of senior clerk, whether can be held to be a regular promotion, after due process of selection, merely because the suitability test had not been held at regular intervals, as was required to be held under paragraph 214(c)(v) of REM?-Case law referred.
       Held : In the aforesaid premises, we have no hesitation in coming to the conclusion that merely because a suitability test had not been held at regular intervals, an employee promoted on ad hoc basis can claim that it is a regular promotion after due process of selection. As such the seniority of promotees in the cadre of Senior Clerk can be counted only from the date of regular promotion, after due process of selection. (Para 8)
       (iii) Railway Establishment Manual-The inter se seniority in the cadre of senior clerk-Is it possible to hold that on regular promotion being given, after adjudging the suitability of the ad hoc employees by holding test, it dates back to the date of ad hoc appointment? (No).
       Held : So far as the third question is concerned, it is no doubt true that the respondents, who got their ad hoc promotion between the period 9th December, 1982 to 7th January, 1984, were later on found suitable in the test that was held and the result of the said test was published on 28th February, 1985. It is also true that they had been continuing from their respective date of ad hoc promotion till they were regularised, after being selected through due process. But that by itself cannot confer a right on them to claim the ad hoc period of service to be tagged on, for the purpose of their seniority inasmuch as there is no provision which says that an employee on being regularly promoted, such regular promotion would date back to the date of original promotion in the cadre, which might have been on ad hoc basis. When the service conditions are governed by a set of rules, in the absence of any rules, it is difficult to hold that regular promotion would date back to the date of ad hoc promotion itself. We, therefore, answer the question in the negative. (Para 9)
       (iv) Railway Establishment Manual-Promotion-Inter se seniority in the cadre of senior clerk-Can it be said that the earlier decision of Supreme Court in Anuradha Mukherjee s case will have no application to the fact situation of the present case?
       Held : So far as the earlier decision of this Court in Anuradha Mukherjee s case, [1996(9) SCC 591, is concerned, to which, one of us (G.B. Pattanaik, J.), was a party, the Court was considering the question of seniority in the very cadre, as in the case in hand. On consideration of the relevant provisions, it did consider the case of appointees de hors the rules, in paragraph 15 of the said judgment, and it was held that appointees de hors the rules can get seniority not from their initial appointment, but from the date on which they are actually selected and appointed, in accordance with the rules and their appointment and seniority would take effect from the date of selection, after due completion of the process. Mr. Rao contends that in the case of Anuradha Mukherjee s case, the Court had never faced the question of non-holding of suitability test, as required under law. But that in our view, will not change the effect of the judgment. The ad hoc promotion made in the present case, without holding any test for adjudging the suitability, has to be held promotion/appointment de hors the rules, and therefore, the ratio of the aforesaid judgment would apply also to the case in hand. Consequently, any period served by any promotee prior to 28.2.1985 on ad hoc basis cannot be counted for the purposes of seniority in the cadre of Senior Clerk. (Para 10)
       Held finally : In view of our conclusion on the aforesaid four questions, we unhesitatingly hold that the impugned judgment of the tribunal is wholly unsustainable in law, and we, accordingly set aside the same. Necessarily, therefore, the seniority list as on 1.6.1989 and published on 2.11.1989 is affirmed and O.A.No. 1360 of 1990 stands dismissed. (Para 11)
       However, held : Before we part with this case, it would be necessary also to examine a situation which arises subsequent to the impugned judgment of the tribunal, while the appeal was pending in this Court. On behalf of the respondents, an interlocutory application had been filed, appending the letters dated 25.2.1999 and 17.7.2000. Mr. P.P. Rao, the learned senior counsel, appearing for the respondents placed reliance on the aforesaid document dated 17.7.2000 and contended that the competent authority having approved the regularisation of ad hoc officiating promotion, as a one time measure and as a special case, there would not be any justification not to treat that period for the purpose of seniority and, therefore, the conclusion of the tribunal can be sustained on this ground also. It is true that the document has come into existence while the appeal was pending and the appellants have not taken any steps by way of amending the memorandum, but the very proposal for regularisation of ad hoc period of service, as indicated in the letter of the Divisional Railway Manager dated 25.2.99 would establish the purpose behind such regularisation. The competent authority felt that unless the ad hoc period is regularised, future complications, consequent upon the retirement may arise. It is, therefore, not to deny any retiral benefit, the ad hoc promotion was sought to be regularised and the appropriate authority did approve the same as a one time measure with the caution that it should not happen in future. But that would not change the principle of inter se seniority, which is governed by the provisions, contained in paragraph 302 of the Railway Establishment Manual, which we have already considered and answered. Then again, from the aforesaid letter of approval dated 17.7.2000, it is not clearly discernible, as to whether under the order in question, it is the service of these respondents which was sought to be regularised. We need not further delve into the matter, as in our view the so-called regularisation of ad hoc officiating promotion would only confer the retiral benefit to the concerned employees and would not count for the purposes of seniority in the cadre which has to be determined in accordance with the rules, as already discussed. These appeals are accordingly allowed. There would be no order as to costs. (Para 12)

JUDGMENT

Pattanaik, J.-The appeal filed by the private persons and the Special Leave Petition filed by the Union of India, are directed against one and the same judgment of the Central Administrative Tribunal, Calcutta Bench in O.A. No. 1360 of 1990. Though, the special leave petition by the Union of India is barred by limitation, but in view of the fact that the leave has been granted by this Court at the instance of the private persons and the judgment of the tribunal is under challenge in appeal, it would be meet and proper to condone the delay in filing the special leave petition, and we accordingly condone the same and grant leave therein.

2. The inter se seniority in the cadre of Senior Clerk under the Railway Administration between the promotees from the grade of Office Clerk (Clerk Grade II) against 66-2/3 quota and the in-service graduates, working as Junior Clerks, who were promoted through a limited departmental examination against 13-1/3 quota is the subject matter of dispute. By the impugned order of the tribunal, the promotees who were initially promoted on ad hoc basis and later on, whose services were regularised, have been held to be entitled to count their ad hoc period also for the purpose of reckoning their seniority in the cadre of Senior Clerk, whereas, according to the Railway Administration as well as according to the appellants in Civil Appeal No. 247/97, the criterion for determination of seniority being the date of regular promotion after due process, the ad hoc period would not count for reckoning the seniority in the promotional grade, which is the grade of Senior Clerk in the case in hand. Thus, the sole question that arises for consideration is whether the services rendered by the promotees on ad hoc basis in the post of Senior Clerk can be allowed to be counted for the purpose of their seniority in the cadre of Senior Clerk?

3. The cadre of Office Clerk in the scale of Rs. 950-1500 is filled up, 66-2/3 by direct recruitment through the agency of the Railway Recruitment Board and 33-1/3 by promotion by selection of specified Group D staff, the minimum educational qualification for a direct recruit being matriculate or its equivalent examination with not less than 50 marks in the aggregate. The next promotional post is the senior clerk in the scale of pay of Rs. 1200-2040. Under the Railway Establishment Manual, Paragraph (174), of the total vacancies in the grade, 20 of the posts are filled up by direct recruitment through the Agency of the Railway Recruitment Board, 13-1/3 through a limited departmental competitive examination from amongst the serving graduates clerks in the scale of pay of Rs. 950-1500 through the agency of the Railway Recruitment Board and 66-2/3 are filled up by promotion from the Office Clerks. The present appellants were appointed on different dates as Office Clerks (Clerk Grade II) in the year 1981-82, and all of them are graduates. The private respondents were non-graduates and were serving as Office Clerks in the scale of pay of Rs. 950-1500. On diverse dates between 9.12.1982 to 07.1.1984, these private respondents were promoted to the post of Senior Clerk on ad hoc basis, as no regular recruitment could be made by holding suitability test, because of certain stay orders passed by different Courts. On 18.1.85, the appellants were declared suitable for promotion to the grade of Senior Clerk against 13-1/3 meant for in-service graduate office clerks. The suitability test of the private respondents, who had been promoted on ad hoc basis was held and the result was declared on 28.2.1985. The Railway Administration published a seniority list on 1.1.88, but the same had not been prepared in accordance with the relevant provisions for determination of seniority, as contained in paragraph 302 of the Railway Establishment Manual. A revised seniority list, therefore, was prepared on 2.11.89, in which list, the appellants were shown senior to the private r

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2001 Supreme(SC) 884

IMPORTANT POINTThe services rendered by the promotees on an ad hoc basis in the post of senior clerk cannot be allowed to be counted for the purpose of their seniority in the cadre of senior clerk in Railway Establishment.

Cases Referred (5)

IMPORTANT POINT
The services rendered by the promotees on an ad hoc basis in the post of senior clerk cannot be allowed to be counted for the purpose of their seniority in the cadre of senior clerk in Railway Establishment.