Davinder
Bathia & Ors Vs. Union of India & Ors [1998] INSC 297
(12 May 1998)
C.B.
Pattanaik, A.P. Misra Pattanaik, J.
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO. 2734 OF 1991
Both
these appeals are directed against a common judgment of the Central
Administrative Tribunal, New
Delhi dated 7.12.1990
disposing of the two suits filed before the sub-Judge, Delhi but stood transferred to the
Central Administrative Tribunal in accordance with Section 29 of the
Administrative Tribunal Act. The plaintiffs in both these suits who are the
appellants herein have been working as Commercial Class-III staff in the Grade
of 260 - 430. The post of Enquiry and Reservation Clerk was in a higher grade
of 330 - 560. The railway administration promoted the respondents to officiate as
Enquiry and Reservation Clerk in the year 1978, though on ad-hoc basis. The
policy of filling up the post of Reservation Clerk has been changing form time
to time. Prior to 1978, there was no direct recruitment to the post of Enquiry
and Reservation Clerk and people from commercial side used to be posted as
Enquiry and Reservation Clerk on optional basis by obtaining declarations from
the employees that once they would be absorbed as Reservation Clerk they would
not claim to go back to their original cadre, namely, commercial side. On the
commercial category direct recruitment was made to the post of Junior
Commercial Clerk in the pay scale of Rs. 260 - 430 and from that post promotion
was being made to the post of Senior Commercial Clerk in the pay scale of Rs.
330 - 560 from which cadre a further promotion was available as a Head
Commercial Clerk in scale of pay of Rs. 425 - 640. On the reservation side, the
Junior Commercial Clerks were being engrafted by way of promotion by obtaining
their option and the declaration as already stated, in the post of Reservation
Clerk having the pay scale of Rs. 330 - 560 and from the said post further
promotion was available as Head Reservation Clerk. In accordance with the
Railway Board's Circular dated 29.2.1964, the post of Enquiry-cum- Reservation
Clerk was a selection post required to be filled up from amongst the staff who
volunteered for absorption in the category from Commercial categories, namely,
Ticket Collectors, T.T.Es, Goods, Luggage, Parcel and Booking Clerks with not
less than 3 years' service and in making the selection, the railway
administration was required to take into consideration the imperative need for
having the Enquiry and Reservation Offices manned by smart persons of integrity
who can maintain good public relations and whose record of service is
unexceptionable. It was also indicated that there would not be direct
recruitment to the posts of Enquiry-cum-Reservation Clerks but once staff from
other commercial categories have offered for selection and have been drafted as
Enquiry-cum-Reservation Clerks, they would seek further promotions in that
cadre only. The relevant portion of the aforesaid circular is extracted hereinbelow
in extenso :
ii)
The posts of Enquiry-cum-Reservation Clerks in grade Rs. 100-185
(PS)/150-240(AS) will be "Selection" posts to be filled from amongst
staff who volunteer for absorption in the category from Commercial categories,
namely, Ticket Collectors, T.T.Es, Goods, Luggage, Parcels and Booking Clerks
with not less than 3 years service. In making the selection, the Railway
Administrations would, no doubt, take into consideration the imperative need
for having the Enquiry and Reservation Offices manned by smart persons of
integrity who can maintain good public relations and whose record of service is
unexceptionable.
iii)
There will be no direct recruitment to the posts of Enquiry-cum-Reservation
Clerks in the initial grade Rs. 100-185(PS)/Rs.150-240(AS) but once staff from
other Commercial categories have offered for selection and have been drafted as
Enquiry-cum-Reservation Clerks, they would seek further promotions in that
cadre only. They will, however, be eligible for higher grade posts of
commercial Inspectors and above in the Commercial Department along with other
eligible staff.
Suitable
adjustments in the channels of promotions may be made as necessary.
iv)
For purposes of promotion, all the Enquiry and Reservation Offices on a
particular Railway shall be considered as one unit.
2. As
the cadre is being re-organised it will be necessary to give the existing
staff, an option either to continue in the re-organised cadre as above or to
return to their parent cadres.
Accordingly,
they may be given an option to indicate their choice. This will not, however,
apply to the direct recruits." The aforesaid Circular was revised by
another circular dated 5.8.1976 for revitalizing the cadre of Enquiry-cum-
Reservation Clerks and the said circular provided that 25% of the posts should
be filled up by direct recruitment with the minimum educational qualifications
for such recruitment being graduate. It was also stipulated that the women
candidates should be favourably considered for absorption in the cadre. The
said Circular of 1976 is extracted hereinbelow in extenso for better appreciation
of the point in issue:
The
Board have had under consideration for some time past the question of
revitalizing the cadre of Enquiry-cum-Reservation Clerks and its merger with
the cadre of other Commercial Clerks. After careful consideration of various
factors as well as the general set up obtaining at the more important Enquiry
& Reservation offices on Railways, the Ministry of Railways have decided as
under :-
i) the
entire cadre of ECRCs should be Headquarters controlled. However, the D.Ss may
still continue to order transfer of staff in the lowest grade (Rs.150-240 AS)
in the normal course within the division with intimation to Headquarters.
ii)
25% of the posts in the initial scale Rs.150-240 (AS) 330-560 (RS) should be
filled up by direct recruitment. The minimum educational qualifications for
such recruitment should be graduation.
iii)
Women candidates should be favourably considered for absorption in the cadre of
Enquiry-cum- Reservation Clerks not only on promotion from other categories to
the initial grade but also in the proposed recruitment quota.
In
1978, the railway administration took a decision that the Reservation offices
in the four metropolitan cities of Bombay, Calcutta, Delhi and Madras should constitute a seniority unit
separate from the rest of the Enquiry and Reservation cadre of the Railway and
these units will have only women employees as Reservation Clerks. The existing
quota of 25% by direct recruitment and 75% by selection from eligible staff was
held not to apply to these units and all vacancies in the post of
Enquiry-cum-Reservation Clerk were required to be filled up by the women staff
available with the railway and then by direct recruitment of women candidates.
The relevant part of the Circular of 1978 is extracted hereinbelow in extenso:
"Sub:
Employment of women as Reservation/Booking Clerks in the major Booking and
Reservation Offices in Metropolitan Cities.
Please
refer to Board's letter of even number dated 28.4.1978 and confidential letter
of even number dated 29.4.1978. The Ministry of Railways have since considered
the points raised at the meeting of Chief Commercial Superintendents at Bombay on 13/14.6.78 and decided that you
should immediately take action as follows to implement the Minister's
directive.
(i)
The Reservation offices in the four metropolitan cities of Bombay, Calcutta, Delhi and Madras should constitute a seniority unit separate from the rest
of the Enquiry and Reservation cadre on the Railway. It should be made clear
that Government's intention is to have in this unit only women employees as
Reservation Clerks and in due course as Supervisors. Male employees who
volunteer to move out will be given full protection of the pay and grade both
substantive and officiating in a non-fortuitous arrangement.
Subject
to vacancies being available they would also be given choice of the place of
posting.
(ii)
Existing vacancies of Enquiry & Reservation Clerks and those likely to
arise in the next one year by normal wastage or transfer of male volunteers,
should be assessed immediately.
(iii)
The existing quota of 25% by direct recruitment and 75% by selection from
eligible staff will not apply to this unit. All vacancies in the initial grade
of Rs. 330-560 may be filled by volunteers from serving women staff of all categories
on the Railway to the extent suitable candidates are available and the balance
by direct recruitment of women.
(iv)
Volunteers from women staff in all categories on your Railway for working as
Enquiry & Reservation Clerks Gr. 330-560 in the concerned metropolitan
city, should be called immediately (even before the assessment of vacancies is
finished) not later than 7th July, with last date for receipt of applications
as 17th July. A test should be held by a Committee of Officers which should be over
and the results made available by 31 st July.
Immediately
thereafter they should be given training for a month (for which arrangements
should be made in advance) from 10.8.78 to 9.9.78 after which they should be
posted as Enquiry and Reservation Clerks and be in position by 15th September, 1978.
(v)
For the balance of vacancies, direct recruitment may be undertaken by the
railway administration by issue of advertisements with the qualifications as
already prescribed for direct recruitment of Enquiry and Reservation Clerks
i.e., graduates.
This
advertisement need not await the selection mentioned in (ii) above or
assessment of vacancies, but should be immediately issued by 7th July with last
date for applications as 17th July and selections processed and completed by 31
st July by which time the vacancy position will be known. They should be given
training for 8 weeks from 7th August to 23rd September and successful
candidates should be in position in the Reservation offices by 25.9.1978.
Railways,
who have already got panels from the RSC or are likely to get such panel
shortly, should appoint the women candidates from those panel before resorting
to direct recruitment. It should, however, be ensured that where the RSC
selection has been a continued one, the men candidates higher in the merit
orders are also accommodated in other Reservation Offices on your Railway.
(vi)
At the moment only the Reservation work will be entrusted to women Enquiry and
Reservation Clerks.
Each
Reservation counter would have two staff - one a woman in charge of Reservation
work and a Booking Clerk to issue tickets as is the procedure in the Churchgate
Reservation Office of the Western Railway. Booking work in those offices may
continue as at present.
Note :
The target dates laid down in (iv) and (v) above are outer limits. Any Railway
Administration which is able to complete the work earlier, should do so.
The
General Manager's, the CCSs and CPOs should personally ensure that items (i) to
(vi) above are completed and the Upper and Lower Class Reservations Offices in
the metropolitan cities before 1st October, 1978.
In
view of the aforesaid change of policy decision several women candidates were
appointed either by way of direct recruitment or by promotion from the existing
staff, in super-session the claims of the appellants herein, who by that date
have been continuing on ad hoc basis. Subsequently these appellants also went
through the process of selection and their services regularised as Enquiry and
Reservation Clerk in the year 1982. But being aggrieved by the recruitment of
the women candidates in the year 1978 on account of the changed policy decision
and as in deciding the inter se seniority in the cadre of Enquiry-cum-
Reservation Clerk the services rendered by the appellants as
Enquiry-cum-Reservation Clerks on ad hoc basis had not been taken into account,
they filed the two suits in the court of sub-ordinate Judge, Delhi which suits
were ultimately transferred to the Central Administrative Tribunal under
Section 29 of the Administrative Tribunals Act and the Tribunal by the impugned
decision having rejected the claim of the appellants, the present appeals have
been preferred.
The
Tribunal has come to a conclusion that the appointment of the appellants as
Enquiry-cum-Reservation Clerks being purely on ad hoc basis as a stop gap
arrangement and thus appellants not having been appointed as Enquiry-cum-
Reservation Clerks after going through a process of selection, the period they
have served on such stop gap arrangement cannot be counted for reckoning their
seniority in the cadre of Enquiry-cum-Reservation Clerk, and therefore, the
railway administration rightly calculated their seniority in the cadre from the
date the appellants were regularised as Enquiry-cum-Reservation Clerks after
undergoing the process of selection.
The
learned counsel appearing for the appellants, Mr. Anis Suhrawardy in Civil
Appeal No. 2734 of 1991 and Mr. BB Sawhney who gave the written submissions in
Civil Appeal No. 2733 of 1991, challenged the decision of the Tribunal on the
ground that the appellants no doubt were appointed as Enquiry-cum-Reservation
Clerks on ad hoc basis but they have been duly recruited as Junior Commercial
Clerks through a process of selection by the Railway Service Selection Board and
they having continued uninterruptedly in the post of Enquiry-cum-Reservation
Clerk, there is no justification on the part of the railway administration to
ignore the period they have served as Enquiry-cum-Reservation Clerk on ad hoc
basis prior to their due absorption in 1982 in the cadre of
Enquiry-cum-Reservation Clerk. The learned counsel also urged that while
appointing them as Enquiry-cum-Reservation Clerks, the railway administration
having taken their option that they will not be permitted to go back to the
commercial side and thereafter having appointed as Enquiry-cum- Reservation
Clerk. Gross injustice has been meted out by not counting their services which
they have rendered as Enquiry- cum-Reservation Clerk on ad hoc basis, inasmuch
as their counter-parts in the commercial side have got accelerated promotion
whereas the appellants are suffering in the reservation side. Mr. Mahajan, the
learned senior counsel appearing for the railway administration, however,
vehemently contended that the post of Enquiry-cum- Reservation Clerk being a
selection post and the appellants prior to their selection in 1982 merely
having been promoted on ad hoc basis whereas the women candidates were
appointed by due process of selection in accordance with the changed circular
of the Railway Board of the year 1978, the ad hoc period of the appellants
cannot be taken into account for reckoning their seniority in the cadre of
Enquiry-cum- Reservation Clerk and in that view of the matter there is no
infirmity with the impugned decision of the Central Administrative Tribunal.
In
view of the rival submissions at the Bar, the only question that arises for our
consideration is : whether the ad hoc continuance of the appellants in the
cadre of Enquiry-cum-Reservation Clerk can be counted for the purpose of
seniority in the cadre, even though, they were regularly absorbed by a process
of selection only in the year 1982? The answer to this question depends upon
the relevant provisions of the Rules governing the manner of filling up of the
post of Enquiry-cum-Reservation Clerk. Undisputedly, the post of
Enquiry-cum-Reservation Clerk is a selection post and therefore the railway
administration would be entitled to select competent persons to man the cadre.
As it appears, prior to 1978, 25% of the posts were being filled up by way of
direct recruitment but rests of the 75% were being filled up by giving
promotion to the Junior Commercial Clerks those of whom wee exercising their
option and also were giving a declaration that they would not revert back to
the direct recruitment by women candidates only. The appellants, no doubt, have
been brought to the reservation side prior to 1978 but admittedly there had
been no process of selection in their case and they were posted as Enquiry-
cum-Reservation Clerks merely on ad hoc basis as a stop gap arrangement. The
post of Enquiry-cum-Reservation Clerk being a selection pot, the persons like
the appellants who were posted against those posts without going through the
process of selection on ad hoc basis do not have a right to be in the cadre
until and unless they are duly regularised after going through a process of
selection. In the case in hand, this process of selection was made only in the
year 1982 and the appellants have been absorbed in the cadre of Enquiry-
cum-Reservation Clerks after being duly selected. In this view of the matter,
their continuance on ad hoc basis from 1978 to 1982 cannot be counted for the
purpose of their seniority in the cadre of Enquiry-cum-Reservation Clerk nor
can they be held senior to the women candidates who were directly recruited as
Enquiry-cum-Reservation Clerks under the changed policy by undergoing a process
of selection. In the aforesaid premises, we see no infirmity with the order of
the Tribunal so as to be interfered with by this Court.
The
appeals are accordingly dismissed but in the circumstances there will no order
as to costs.
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