important point
Unless a person holds a lower post in substantive capacity, he cannot be promoted to the next higher post.

Headnote:(a)Service Law – Seniority – The service conditions in Metro Railway at the relevant time were governed by Office Order issued on 19.9.1970 – Accordingly employees from different streams were eligible to appear at the competitive examination – Their inter se seniority was, therefore, required to be determined in terms of the said Rule – Respondent 3, in terms of the said Rules carried with him his seniority in the open line when he joined the Metro Railway and having passed the departmental examination was in the cadre of Chief Law Assistant in the open line – Appellant, on the other hand having not passed the said examination held his line in the post of Head Clerk in the open line – Appellant could not be held senior to Respondent 3 – Impugned order nor improper. (Paras 14, 16 and 18)
       (b)Service Law – Promotion – Working in a post and getting the pay is one thing; but holding the post in a substantive capacity is totally different – Unless one holds a lower post in substantive capacity, he cannot be promoted to the next higher more so when he did not qualify for the same. (Para 17)
       Facts of the case:
       Appellant joined South Eastern Railways as a Clerk in the year 1964. He was transferred in public interest to Metropolitan Transport Project (Railway) in Calcutta on 17.10.1970. P.K. Gangopadhyay, the third respondent herein, was appointed as a Junior stenographer in the South Eastern Railways on 4.2.1978. He was also transferred to the Metro Railways Calcutta on 12.5.1978. Third respondent was promoted as Law Assistant on 28.3.1979 in the scale of pay of Rs. 550-750/- on an ad hoc basis. The said ad hoc promotion was regularized w.e.f. 28.3.1979. He was again promoted as Law Assistant on 10.12.1985. Appellant, while keeping his line in the Southern Railway Administration was appointed as Chief Law Assistant in the Metro Railways in the scale of pay of Rs.700-900/- on an ad hoc basis w.e.f. 23.7.1986. Respondent was promoted as Chief Law Assistant on 28.3.1990.
       Indisputably, appellant appeared in the departmental examination but did not succeed. He again appeared in the said examination in 1992. Although he passed the written test, but failed to qualify the viva voce. Third respondent, on the other hand, became a Law Assistant on a regular basis in 1991 upon passing the suitability test conducted therefor. He was promoted to the post of Assistant Law Officer on 30.1.1994.
       Appellant, being not been promoted, filed an Original Application before the Central Administrative Tribunal, Calcutta (CAT). By an order dated 30.8.1994, the General Manager (Metro Railway) was directed by CAT to pass a speaking order. Appellant was personally heard by the said Authority which reaffirmed its earlier decision.
       Aggrieved by and dissatisfied with the said order dated 30.8,1994, another original application was filed by the appellant before the CAT. By an order dated 14.12.2001, CAT, inter alia, considering the fact that the appellant had joined the Metro Railway much prior to the third respondent and proceeding on the premise that he had already been placed in the pay scale of Rs.2000-3200/- (RS), allowed the O.A.
       A Division Bench of the Calcutta High Court reversed the said judgment of CAT saying that the appellant had never held the post of Chief Law Assistant on a substantive basis in the open line where he had the lien.
       Findings of the Court:
       Appellant cannot be held senior to third respondent.
       Result : Appeal dismissed.

judgment

S.B. Sinha, J. —

1.Leave granted.

2.Seniority in the post of Assistant Law Officer in the Metro Railways is in question in these appeals which arise out of a judgment and order dated 14.8.2003 passed by a Division Bench of the Calcutta High Court reversing a judgment and order dated 14.12.2001 of the Central Administrative Tribunal, Calcutta.

3.Appellant joined South Eastern Railways as a Clerk in the year 1964. He was transferred in public interest to Metropolitan Transport Project (Railway) in Calcutta on 17.10.1970. P.K. Gangopadhyay, the third respondent herein, was appointed as a Junior Stenographer in the South Eastern Railways on 4.2.1978. He was also transferred to the Metro Railways Calcutta on 12.5.1978. Third respondent was promoted as Law Assistant on 28.3.1979 in the scale of pay of Rs. 550-750/- on an ad hoc basis. The said ad hoc promotion was regularized w.e.f. 28.3.1979. He was again promoted as Law Assistant on 10.12.1985. Appellant, while keeping his lien in the Southern Railway Administration was appointed as Chief Law Assistant in the Metro Railways n the scale of pay of Rs.700-900/- on an ad hoc basis w.e.f. 23.7.1986. Respondent was promoted as Chief Law Assistant on 28.3.1990.

4.It is not in dispute that the principles which were applicable for promotion to the post of Assistant Law Officer were as under :

“The following principles should be followed in determination of seniority and promotion of staff in the Metropolitan Transport Project, Calcutta :

1.SENIORITY : The Metropolitan Transport Project is a purely temporary work charged organization and, as such all posts in this organization are purely temporary, ex-cadre and work-charged ones. These posts are normally filled by drafting staff from different seniority groups of different Railways. The seniority of such staff will be reckoned on the basis of joining this Project. For the purpose of this rule all employees will be treated as having joined on the same date. As a consequence of this principle, the relative seniority of employees joining in a particular grade will be fixed based on the length of service rendered in that grade other than fortuitous service. Periods of officiating service rendered in the higher grade as a regular measure other than periods of promotions against ex-cadre or work-charged posts will be taken into consideration while fixing his seniority on re-promotion in the same higher grade in this project.

1.1The seniority of staff now working in this Project will be prepared on the above principles and placed on record. On arrival of any new staff, their names will be interpolated on the basis of their length of non-fortuitous service in the respective grade.

2.PROMOTION : All posts under Metropolitan Transport Project have been classified as either selection or non-selection. Promotion to selection posts will be made as per extant orders in connection with the filling of selection posts. Promotions to non-selection posts will be made on the basis of seniority-cum-suitability, suitability being judged by the authority competent to fill the post by oral and/or written test or a departmental examination as considered necessary and the record of service. The only exception would be in cases where for administrative convenience the competent authority considers it necessary to promote a railway servant other than an empanelled staff or senior most staff to officiate in a short term vacancy.

2.1A staff who has already been promoted against a vacancy other than fortuitous promotion will not be disturbed even if another staff who becomes senior to him as per policy in para 1.1 joins Metropolitan Transport Project in the lower grade after the promotion of the junior. The senior staff will have to wait for his chance of promotion according to his seniority position fixed in accordance with para 1.1 above. On promotion to the higher grade, his seniority position will be restored and the name interpolated in the seniority list of the hig

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Judicial Analysis

SupremeToday

2007 Supreme(SC) 1371

2007(7) Supreme 324Supreme Court of india(From Calcutta High Court)S.B. Sinha & Harjit Singh Bedi, JJ.S.P. Indu — PetitionerversusThe General Manager, Metro Railway and Another — RespondentsAppeal (civil) 4884-4885 of 2007(Arising out of SLP (C) Nos. 21224-21225 of 2004)Decided on : 12-10-2007

important pointUnless a person holds a lower post in substantive capacity, he cannot be promoted to the next higher post.

Judicial Analysis

important point
Unless a person holds a lower post in substantive capacity, he cannot be promoted to the next higher post.