Mukherjee & Ors Vs. Union of India & Ors  INSC 374
(12 March 1996)
K.Ramaswamy, K.G.B. Pattanaik (J) K. Ramaswamy, J.
JT 1996 (3) 576 1996 SCALE (3)135
APPEAL NOS, 4745,4744,4800,4815,4723-27 AND 4814/1996 [Arising out of SLP (C)
Nos.15119/93, 13547/94, 14571/93, 1818/94, 2473-77/95, 3930/93]
appeals by special leave filed by some of the employees and by the Union of India,
arise from the orders of Calcutta, Allahabad. New
Delhi and Lucknow Benches of the Central
Administrative Tribunal. The facts in the main appeal filed by Mrs. Anuradha Mukherjee,
are sufficient for disposal of the controversy raised in all these appeals.
appellants are graduates appointed as Lower Division Clerks - Grade II on
different dates between 1968 to 1982. The Railway Administration restructured
the ministerial cadres in the Railways; determined their gradewise percentage
of the posts and made distribution. We are concerned in these cases with Clerks
[Grade I] in the pay-scale of Rs.330-560/-. 40% of the the vacancies existing
prior to October 1,
1980 in the Clerks
category were earmarked for Clerks [Grade II by by Railway Board's letter dated
June 1, 1979. Subsequently it was revised by Board's
letter dated November
10, 1981 to 57.5&.
the Board's letter dated November 10, 1980 to bring about qualitative
improvement in the functioning of the restructured cadres in the Personnel
Department, it was decided to fill up 20% of those total posts of Senior Clerks
[Grade I] by direct recruitment through the Railway Service Commission. Out of
balance 80% of the in-service graduates, 13-1/3% posts were made available to
the in-service graduate Grade II Clerks to compete for those vacancies in their
quota. Existing graduate employees in the Personnel Department, subsequently
extended to Accounts Department and other Departments, were also permitted to
compete for direct recruitment quota and age qualification was relaxed. It was
decided that Seniority of directly recruited Senior Clerks vis-a-vis those
promoted to the Grade would be determined with reference to the date of entry
into the Grade.
letter dated June 18,
1981, the Board had
decided to fill up 13.1/3% of the posts of Senior Clerks from in- service
graduate Clerks [Grade II] by competitive examination to be held by the Railway
Service Commission. In the event of their non-availability it was decided to
fill up the residue vacancies by direct recruitment along with 20% direct
recruitment quota from open market. The orders issued thereunder were made
effective from October
1, 1980 but no arrears
are payable on that account. The pay of the employees so appointed was decided
to be fixed proforma from October 1, 1980 but the actual payment of emoluments
as Senior Clerks was allowed from the date of their actually taking over the
charge in that post. It was further decided that 40% vacancies in the said
posts existing as on September
30, 1980 would be
filed up in accordance with the orders in force prior to the issue of letter
dated June 18, 1981. These orders were made applicable
to the non-Accounts Department as well as Personnel Department and this ratio
of 20 and 13.1/3 per cent between direct recruitment and promotion of
in-service graduate candidates was made applicable to all in-service graduate
Clerks, [Grade II].
dated January 20, 1981 clarified in para 2 [ii] that 10% of the vacancies of
Senior Clerks existing as on October 1, 1980 as per Board's letter of November
10, 1980 were to be filled up by promotion from amongst the existing Clerks
[Grade II] of the Personnel Department on seniority- cum-suitability basis. The
direction was to obviate the confusion that direct recruitment from open market
would always be by merit. The existing Clerks [Grade II] in the Personnel
Department were also made eligible for 20% direct recruitment quota.
letter dated July 31, 1981 it was decided in para 2 [ii] that 13.1/3% of the
vacancies in the posts of Senior Clerks existing as on October 1, 1980 made
available by order dated June 18, 1981 were directed to be filled up from
amongst the in-service graduate Clerks [Grade I] in the manner indicated in para
1 [ii] of the letter dated June 18, 1981. In other words, out of 57.5% if the
vacancies, 13-1/3% vacancies would be available to the in-service graduate
Clerks [Grade II] for recruitment by competitive examination by Railway Service
Commission. The unfilled vacancies would be thrown open to candidates from open
market. Para 2 [iii] of this letter indicates
that 10% vacancies thereof would be filled up by direct recruitment through
Railway Service Commission. The balance 10% vacancies having arisen on October
1, 1980 against direct recruitment quota were decided to be filled up by
promotion of Clerks [Grade II] on the basis of seniority-cum-suitability as per
the then existing procedure. 13.1/3% plus 10%, i.e., 23.1/3% of the vacancies
were to be filled up from amongst the in-service graduate Clerks [Grade II] by
recruitment through limited departmental examination. In other words,
recruitment of graduate in-service Grade-II Clerks as Grade I Clerks through
Railway Service Commission was dispensed with. 10% of the vacancies out of
57.5% were to be filled up by direct recruitment from open market. These orders
were made applicable to non-Personnel Departments also and this order, it was
clarified, was in supersession of their letter dated January 20, 1981. All graduate Clerks [Grade II]
working in any Department were made eligible to compete in the limited
recruitment for selection as Grade I Clerks. This was open to all in-service
graduate Clerks [Grade II] including SCs and STs by open competition as well as
by rule of reservation applicable to them. In para 3, it was clarified that
limited reservation to the extent of 13-1/3% by limited departmental
examination or 10% by direct recruitment would be applicable only if candidates
from graduate Clerks [Grade II] were available. 80% of the posts should be kept
unfilled for available non-graduate Grade II Clerks for promotion as Grade I
letter dated January 5, 1982, Railway Board had modified its earlier letter
dated July 31, 1981 relating to paras 2(ii) 2(ii) and 4 and stated that
vacancies arising on October 1, 1980 should be filled up as per the manner
indicated in para 2 [ii] of their letter dated January 20, 1981, i.e.,
Vacancies arising on October 1, 1980, i.e., 10% of the vacancies should be
filled up by existing graduate Junior Clerks [Grade II] by limited competitive
examination by Railway Service Commission. The balance vacancies by promotion
of non-graduate Clerks [Grade II] on the principle of
seniority-cum-suitability. Vacancies existing on and from October 2, 1980
should be filled up in the manner indicated in para 2 [iv] of their letter
dated July 31, 1981, i.e., 20% of vacancies by direct recruitment while
graduate Clerks [Grade II] who are still available are eligible to compete in
open competition on the principle of seniority-cum- suitability but not on pure
merit like open market candidates. It was made applicable to all ministerial
staff, Junior Clerks [Grade II] in all non-Personnel Departments also but not
to Accounts Department.
letter dated August 10, 1983 the Board has stated that pursuant to the order
dated June 18, 1981 the promotion of personnel as Senior Clerks would be
effective from October 1, 1980 but no arrears were payable on that account.
However, they clarified that the "pay of the Railway servants appointed to
the upgraded post was fixed proforma from 1.10.1980 but actual payment of
emoluments in the upgraded posts was allowed only from the date they actually
took over charge of the upgraded post" and that "pro forma pay only
in particular cases covered under the above-quoted order dated June 18, 1981
would by counted for pensionary benefits as a special case in relaxation of
Rule 2545-P.II & para 501 MRHR 1950".
letter July 26, 1985 in para 1 it was stated that the limited recruitment to
in-service candidates and direct recruitment from open market would be done on
the same basis referred to above, namely, seniority-cum-suitability to in-
service candidates and merit to open market candidates and this would be done
on one time basis, through departmental competitive examination as one time
measure for the in- service candidates.
we have three streams to fill up vacancies in the cadre of Senior Clerks, i.e.,
Grade I Clerks in the pay- scale of Rs.330-560/-, viz.,
recruits from open market [20% of the Cadre strength];
Grade II Clerks [13.1/3% direct limited recruitment through departmental
80% non-graduate promotee-Grade II Clerks. These three streams continued to
remain throughout the period. Though the counsel on either side contended that
their inter se seniority should be determined with effect from October 1, 1980 or from the date of taking actual
charge of the posts, the above letters do not deal with that controversy.
inter se seniority of the candidates is regulated under para 302 of the Railway
Establishment [Volume I - Revised Edition, 1989] which reads as under:
Seniority in initial recruitment grades. –
specifically stated otherwise the seniority among the incumbents of a post in a
grade is governed by the date of appointment to the grade.
grant of pay higher than the initial pay should not, as a rule, confer on
railway servant seniority above those who are already appointed against regular
posts. In categories of posts partially filled by direct recruitment and partially
by promotion, the criterion for determination of seniority should be date of
regular promotion after the process in the case of promotion after the process
in the case of promotee and the date of joining the working post after due
process in the case of direct recruit, subject to maintenance of inter se
seniority of promotees and direct recruits among themselves. When the dates of
entry into a grade of promoted railway servants and direct recruits are the
same, they should be put in alternate positions, the promotees being senior to
the direct recruits, maintaining inter- se seniority of each group.
NOTE: In case the training period of a
direct recruit is curtailed in the exigencies of service, the date of joining
the working post in case of such a direct recruitment shall be the date he
would have normally come to a working post after completion of the prescribed
period of training." A narration of these facts clearly indicates the
Vacancies in the posts of Senior Clerks existing prior to October 1, 1980 were 40% of them 20% were reserved
for direct recruits by competitive examination through the recruitment agency,
viz., Railway Service Commission and 80% for promotees.
Vacancies in the posts of Senior Clerks arising on and from October 1, 1980 were 57.5%. O them 20% would go to
direct recruits and 80% to promotees.
Among the in-service graduates out of 80%, 13.1/3% posts are reserved for
graduate Clerks [Grade II]. They were eligible for competition as open
candidates subject to relaxation of age qualification. The unfilled posts will
be thrown open to open market candidates.
The balance vacancies would be available to in-service non-graduate candidates.
Senior-cum-suitability was the basis on which they were entitled to be
considered for promotion.
For the vacancies which had arisen after October 2, 1980, 13.1/3% and 10% were reserved for
graduates Clerks, [Grade II] subject to their availability. They would be
recruited on the principle of seniority-cum-suitability. If no suitable
in-service candidate is available the balance vacancies will be filled up along
with 10% vacancies by candidates from open market. 80% vacancies will be
available to non graduates, senority-cum-suitability being the principle for
promotion of non-graduate Clerks, [Grade II] also.
one time measure, recruitment through Railway Service Commission was dispensed
with and limited recruitment by departmental competitive examination would be
conducted for selection of the graduate Grade II Clerks.
All in-service graduate Clerks, [Grade II] appointed to Grade I scale would get
only pro forma promotion as Grade I Clerks from October 1, 1980 without any monetary benefits except for the purposes of
pension. They are entitled to emoluments with effect from the date they
actually took over the charge. It would be available for computation of pensionary
benefits. The inter se seniority would be as per para 302 i.e., the date of
seniority in the grade is the date of appointment to a post in that grade. The
grant of higher pay, as a rule, does not confer seniority above the existing
incumbents regularly appointed to the post. Among direct recruits and promotees,
the date of joining. The working post is the date for the direct recruits and
date of regular promotion, after completion of the process to order promotion,
is the date for the promotees. Inter se seniority is alternative, i.e., promotee
first and direct recruit would be below him and the same would continue in the
order of merit in the respective lists and the roster maintained by the Railway
Administration. In other words promotee would be senior to direct recruits.
seen that such of the graduate Clerks though appointed as Grade II Clerks after
October 1, 1980 by process of selection through open competitive examination or
limited recruitment by departmental examination were upgraded under the
aforesaid rules, they would not get the promotion with effect from the pro
forma date of October 1, 1980 but only from the date of their actual
appointment as Grade II Clerks, nationally as Grade I Clerks since their
appointments are after October 1, 1980. The inter se seniority of the 20%
direct recruits on the one hand and limited recruitment graduate Grade II
Clerks and promotees on the other, shall be determined in accordance with para
302 of the Railway Establishment [Volume I] in the manner indicated above.
have yet another source who claim parity with others. They are ad hoc
appointees de hors the rules. They are the appellant in C.A. Nos.@ SLP Nos.2473-77/95.
they were appointed de hors the rules.
they can get seniority not from the date of their initial appointment but from
the date on which they are a 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 and they would be junior to
in-service as well as direct recruit-candidates. The inter se seniority should
be reckoned accordingly.
be clear that the directions in various letters of the Board should be worked
out in the above manner and the seniority should be determined accordingly.
parting with these appeals, we place on record the valuable assistance rendered
by S/Shri Dushyant Dave and Rajiv Dhavan, learned senior counsel for the
respective direct recruit-graduate Grade II Clerks and promotee Junior Clerks.
But for the private parties fighting in this case, we would not have received
such an assistance to clarify the above legal position. Had it been by the Union as usually we come across, it would have been
difficult since the assistance is scanty. This unhappy situation would have
resulted in injustice to several persons. It is our sad experience that in some
cases even after reserving the cases for judgment and directing them to give
their written arguments no one would take responsibility to assist the Court.
We hope that the Union of India and the Railway Administration would take steps
to see that necessary and needed assistance would forthcome to the Court or the
Tribunal to avoid undue burden on this Court for proper adjudication of
disputes. We hope that this unsavory situation would not be repeated hereafter.
We indicate that they should make a particular officer responsible to assist
the counsel appearing for them by placing all the necessary rules or
instructions so as to enable this Court or the Tribunal to adjudicate the
disputes and reach proper decision expeditiously.
appeals are disposed of accordingly but, in the circumstances, without costs.