T. Vijayan & Ors Vs. Div. Railway
Manager & Ors [2000] INSC 189 (5 April 2000)
S.S.Ahmad, D.P.Wadhwa
S.SAGHIR AHMAD, J.
The dispute in the present appeals relates to
the question of inter se seniority between direct recruits and promotees on the
post of First Fireman working under the Divisional Railway Manager, South
Central Railway, Hubli, Karnataka. Recruitment on the post of Fireman
"A", as indicated in the Railway Establishment Manual, was to be made
originally to the extent of 50 per cent by direct recruitment and remaining 50
per cent by promotion.
Subsequently, the rule of recruitment was
altered and it was provided that post of Fireman "A" would be filled
up 100 per cent by promotion. On 15.11.1985, Railway Recruitment Board
advertised 66 posts of Apprentice Fireman "A". The appellants applied
for the posts and were ultimately selected by the Railway Recruitment Board. In
1988, they were appointed as Apprentice Fireman and were placed on two years'
training. After completion of training, they were appointed as First Fireman on
18.7.1990 except appellants 10 and 28 who were absorbed on 20.10.1990 and
21.3.1991 respectively. Another direct recruit who has been arrayed as
respondent No.148 in this appeal, was appointed on 5.9.1990. The process of
recruitment to the other 50 per cent of vacancies by promotion was started
sometime in April, 1987 and respondents 4 to 143 who were working as Fireman
"B" were appointed, pending regular selection for promotion, on ad
hoc basis, between 1987-1990. It may be mentioned here that pursuant to the
recommendation of the Fourth Pay Commission, the posts of Fireman "A"
and Fireman "B" were merged and designated as First Fireman while the
post of Fireman "C" was redesignated as Second Fireman with effect
from 1.1.1986 vide Notification dated 3.11.1987. In 1990, the appellants after
completion of two years' training were appointed as First Fireman and were
placed on probation. The process of selection for promotion on the post of
First Fireman continued and as a result of that selection, respondents 4 to 143
were promoted and by order dated 18.1.1992, their ad hoc promotion was
regularised with effect from 16.12.1991. On 11th of January, 1993, a
provisional seniority list of First Fireman, as on 31.12.1992, was published wherein
all the appellants were shown below the contesting respondents 4 to 143. This
seniority list was challenged by the appellants before the Central
Administrative Tribunal but the Tribunal by its impugned judgment dated
13.3.1996 dismissed the petition.
The Tribunal found that the placement of
appellants below respondents 4 to 143 was perfectly valid. It is this judgment
which is challenged before us in this appeal.
Learned counsel for the appellants has
contended that the appellants were appointed on the post of First Fireman in
1990 while the respondents 4 to 143 were regularised on the post of First
Fireman by order dated 18.1.1992 and, therefore, the appellants would rank
senior to respondents 4 to 143 in terms of para 302 of the Railway Establishment
Manual. Learned counsel for the contesting respondents has contended that
respondents who were subsequently selected for regular promotion had been
promoted to the post of First Fireman in 1987 on ad hoc basis which was
permissible under the Rules and the process of selection for making promotion
on the post of First Fireman consumed sufficiently long time and on being
ultimately selected for promotion, services of respondents 4 to 143 were
regularised. They, it is contended, would be entitled to reckon their seniority
on the post of First Fireman with effect from the date of their ad hoc
appointment. The entire period of service for which they worked in ad hoc
capacity will have to be counted towards seniority as these respondents could
legally be promoted to the post of First Fireman in ad hoc capacity.
Ad hoc promotions were permissible under the
Railway Establishment Manual and, therefore, the promotion of respondents 4 to
143 to the post of First Fireman being in consonance with the provision of the
Railway Establishment Manual would enure to the benefit of these respondents
for purpose of determination of their seniority vis-a-vis the direct recruits.
The only question which is involved in these appeals is whether respondents 4
to 143 are entitled to reckon the period of ad hoc service towards their
seniority and whether they have been properly shown as senior to the present
appellants and respondent No. 148 in the seniority list issued by the Railway
Administration.
From the facts as brought on record, it
appears that prior to 1.1.1986, recruitment to the post of First Fireman was
made in the following manner: "i. 50% of the vacancies filled by selection
procedure from fireman B studied up to 8th standard and below 45 years of age.
ii. 50% by Departmental Examination from all Fireman B and C who are
Matriculate and have three years of Railway Service.
If the Departmental examination failed to
provide enough Matriculate for the 50% quota, direct recruitment to be made
through RRB." But, with effect from 1.1.1986, the post of First Fireman in
the scale of Rs.950-1500 was to be filled up 100 per cent by promotion from
amongst Second Fireman in the scale of Rs.825-1200. The shortfall, if any, was
to be made good by direct recruitment through Railway Recruitment Board. These
instructions were issued through the Railway Board`s letter dated 3.11.1987.
Pending issuance of this letter, the Headquarter Office of the South Central
Railway, Secunderabad, issued instructions in April, 1987, that the vacancies
of First Fireman in the scale of Rs.950-1500 shall be filled up by promoting
Second Fireman in the scale of Rs.825-1200 purely on ad hoc and temporary
basis. On the recommendations of the Fourth Pay Commission, which were given
effect to from 1.1.1986, the cadres of Fireman `A' and Fireman `B' were merged
and were re-designated as `First Fireman' while the post of Fireman `C' was
redesignated as `Second Fireman'. The appellants were appointed as Apprentice
Fireman and deputed for training for a period of two years from 24.6.1988.
After completion of two years' training, the appellants were subjected to
suitability test and were posted as First Fireman in the scale of Rs.950-1500
vide letter dated 18.7.1990 issued by the Divisional Officer of the South
Central Railways (Personnel Branch). This letter, relating to the absorption of
the appellants on successful completion of the prescribed training, contains a
note at the foot, that the absorption of the Apprentice Fireman on the post of
First Fireman was subject to the conditions, inter alia, that : "Their
absorption and seniority is subject to the outcome of the Application pending
before CAT/Bangalore and finalisation of the selection to the post of First
Fireman in progress." The appellants have also filed a copy of letter
dated 22.10.1990 relating to the absorption of an Apprentice Fireman, P.P.Sailendran,
and in this letter also, it is mentioned that his absorption was subject to the
condition, inter alia, that : "(i) His absorption and seniority is subject
to the outcome of the Application 430/421/90 pending before CAT/Bangalore and
finalisation of the Selection to the post of First Fireman in progress."
It is not disputed that all the appellants were individually issued similar
letters and in all the letters, the above condition was clearly indicated. In
the counter affidavit filed on behalf of the official respondents in this
Court, it has been stated, inter alia, as under : "the petitioners were
informed that their absorption and seniority would be subject to finalisation
of selection to the post of I Fireman by promotion from departmental candidates
which was under process." It is also to be noticed that the existing mode
of recruitment which provided that "50 per cent of the vacancies were to
be filled up by selection from amongst Fireman `B' and the remaining 50 per
cent were to be filled through departmental examination from amongst Fireman
`B' and `C' who were Matriculates and had three years' regular service, while
the shortfall, if any, was to be be made good by direct recruitment", was
altered in 1987 by the Railway Board by its letter dated 3.11.1987 and it was
provided that the vacancies in the grade of First Fireman (Rs.950-1500) would
be filled up cent per cent by promotion of Second Fireman (Rs.925- 1200),
without any restriction as to age or qualification and the shortfall, if any,
would be made good by direct recruitment through Railway Recruitment Board.
Pending issuance of Railway Board`s letter
dated 3.11.1987, since the posts of First Firemen were needed to be urgently
filled up in the exigencies of administration, the Headquarters Office of the
South Central Railway issued instructions in April, 1987 to fill up those
vacancies by promoting Second Fireman on ad hoc and temporary posts.
While some of the respondents had already
been appointed on ad hoc basis, the remaining came to be appointed in that
capacity after the issuance of Railway Board`s letter dated 3.11.1987 as
regular selection was not immediately possible on account of non-availability
of the respondents who were on duty as First Fireman "on line". In
order to make regular selection on the post of First Fireman, the Selection
Committee had to meet eighteen times on different dates between 31.5.1990 and
14.10.1991. Respondents 4 to 143 were consequently selected and their
appointment on the post of First Fireman was regularised on 18.1.1992 with
effect from 16.12.1991. Now, para 216 of the Railway Establishment Manual
provides as under : "216. A. Ad hoc promotion against selection and non-selection
posts :-- (i) Ad hoc promotions should be avoided as far as possible both in
selection and non- selection posts, and where they are found inescapable and
have to be made in the exigency of service, they should be resorted to only
sparingly and only for a short duration of 3 to 4 months. The ad hoc promotion
should be ordered only from amongst senior most suitable staff. As a rule a
junior should not be promoted ignoring his senior. (ii) The following further
guidelines should be adhered to while ordering ad hoc promotions:- (a) In case
of non-selection posts which are filled on the basis of seniority cum
suitability while there is no provision for any lengthy waiting list. The
processing involved being not unduly cumbersome or time consuming the post
shall be filled after following the prescribed procedure quickly. When these
posts are to be filled by trade test, this should be conducted systematically.
Necessity for adhoc promotion is thus obviated. (b) In regard to selection
posts, it is essential that all the selection should be conducted regularly as
per extant instructions. While there is no objection to adhoc promotions being
made in leave vacancy and short duration vacancy, ad hoc promotion against
regular promotion should be made only after obtaining Chief Personnel Officer`s
approval. Proposal sent to Chief Personnel Officer for ad hoc promotion against
regular vacancy should indicate detailed justification as to why regular
selection could not be held. Chief Personnel Officer should keep record of
having accorded approval to such ad hoc promotion and review the progress made
in filling up these posts by selected persons every month.
Chief Perssonel Officer should also review
selection to all posts afresh, whether such posts are controlled either at the
Divisional level or at extra Divisional level. He should also keep the record
of the categories where he has to approve ad hoc promotions and these records
should be available to the Board`s Officer on their visit to Railways.
(Board's letter No. E(NG) II/81/RC-1/1 dated
1.4.1981) (c) Notification for adhoc promotions against selection posts should
specifically include a remark to the effect that the person concerned has not
been selected for promotion and that his temporary promotion gives him no right
for regular promotion and that his promotion is to be treated as provisional.
For the purpose of drawing his pay which should not be drawn for more than
three months without General Manager specific sanction. The General Manager
should issue provisional sanction for periods exceeding six months at a time
and these powers should be exercised by the General Managers/Additional General
Managers personally or by his senior Dy. General Manager. (Board`s letter No.E(NG)
1-73-PM-1/222 dated 23.2.1974; E-55/PM-1/19/3 dated 11.1.1955; E(NG) I-79-PM
1-105 dated 26.4.79 & E(NG) I-77-PM 1-117 dated 17.10.77) (iii) In any case
no second ad hoc promotion shall be allowed. (Board`s letter NO. E(NG)
1-85/PM/5-III dated 23.8.1985)" The above para indicates that ad hoc
promotion is permissible pending regular selection. Once ad hoc promotion is
found to be permissible under the Rules and respondents 4 to 143 were promoted
on ad hoc basis in the exigencies of service, pending regular selection, which,
incidentally, took sufficient time as respondents 4 to 143 who were on official
duty "on line" were not available at one point or at one time to
facilitate the selection, the entire period of ad hoc service will have to be
counted towards their seniority, particularly as all the respondents (4 to 143)
were duly selected and their services were also regularised with effect from
16.12.1991 by order dated 18.1.1992. The concerned employees, including
respondents 4 to 143 had already been alerted for the process of selection
which had been started in 1988.
While making direct recruitment against posts
which were advertised in 1985, it was given out to the present appellants that
their absorption and seniority was subject, inter alia, to the finalisation of
the selection to the post of First Fireman which was in progress. The
appellants, as stated earlier, were selected in 1988 and were put on two years`
training as Apprentice whereafter they were absorbed by order dated 18.7.1990
and were issued separate and individual appointment letters in which, it was
clearly mentioned that their seniority was subject to the finalisation of the
selection for promotion to the post of First Fireman which was in progress. The
appellants, in this situation, cannot claim seniority over respondents 4 to 143
who had already been appointed to the posts of First Fireman on ad hoc basis
and were after due selection regularised on those posts. This Court in Direct
Recruit Class-II Engineering Officers Association & Ors. v. State of
Maharashtra & Ors. (1990) 2 SCC 715 = 1990 (2) SCR 900 has laid down in
principles (A) and (B) as under : "(A) Once an incumbent is appointed to a
post according to rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation. The corollary of
the above rule is that where the initial appointment is only ad hoc and not
according to rules and made as a stop-gap arrangement, the officiation in such
post cannot be taken into account for considering the seniority. (B) If the
initial appointment is not made by following the procedure laid down by the
rules but the appointee continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules, the period of
officiating service will be counted." Applying the above principles to the
instant case, since respondents 4 to 143 were promoted on ad hoc basis, and
that too in a situation where regular promotion was not immediately possible
and since ad hoc promotion was permissible in view of Para 216 of the Railway
Establishment Manual quoted above, they are clearly entitled to the benefit of
ad hoc service rendered by them on the post of Fireman `A' or `First Fireman'
for the purpose of reckoning their seniority vis-a-vis the appellants. It may be
stated here that a 3-Judge Bench of this Court in State of West Bengal &
Ors.v. Aghore Nath Dey & Ors. (1993) 3 SCC 371 considered the principles
(A) and (B) as set out above and explained as under : "There can be no
doubt that these two conclusions have to be read harmoniously and conclusion
(B) cannot cover cases which are expressly excluded by conclusion (A). We may,
therefore, first refer to conclusion (A). It is clear from conclusion (A) that
to enable seniority to be counted from the date of initial appointment and not
according to the date of confirmation, the incumbent of the post has to be
initially appointed `according to rules.' The corollary set out in conclusion
(A), then is, that `where the initial appointment is only ad hoc and not
according to rules and made as a stop-gap arrangement, the officiation in such
posts cannot be taken into account for considering the seniority.' Thus, the
corollary in conclusion (A) expressly excludes the category of cases where the
initial appointment is only ad hoc and not according to rules, being made only
as a stopgap arrangement. The case of the writ petitioners squarely falls
within this corollary in conclusion (A), which says that the officiation in
such posts cannot be taken into account for counting the seniority. The
conclusion (B) was added to cover a different kind of situation, wherein the
appointments are otherwise regular, except for the deficiency of certain
procedural requirements laid down by the rules. This is clear from the opening
words of the conclusion (B), namely, `if the initial appointment is not made by
following the procedure laid down by the `rules' and the latter expression
`till the regularisation of his service in accordance with the rules'.
We read conclusion (B), and it must be so read
to reconcile with conclusion (A), to cover the cases where the initial
appointment is made against an existing vacancy, not limited to a fixed period
of time or purpose by the appointment order itself, and is made subject to the
deficiency in the procedural requirements prescribed by the rules for adjudging
suitability of the appointee for the post being cured at the time of
regularisation, the appointee being eligible and qualified in every manner for
a regular appointment on the date of initial appointment in such cases.
Decision about the nature of the appointment, for determining whether it falls
in this category, has to be made on the basis of the terms of the initial
appointment itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the rule has to be cured
at the first available opportunity, without any default of the employee and the
appointee must continue in the post uninterruptedly till the regularisation of
his service, in accordance with the rules. In such cases, the appointee is not
to blame for the deficiency in the procedural requirements under the rules at
the time of his initial appointment, and the appointment not being limited to a
fixed period of time is intended to be a regular appointment, subject to the
remaining procedural requirements of the rules being fulfilled at the
earliest." In Keshav Dev & Anr. v. State of U.P. & Ors. (1999) 1
SCC 280 as also Shri L. Chandrakishore Singh v. State of Manipur & Ors. (1999)
8 SCC 287 = JT 1999 (7) SC 576, the Constitution Bench decision of this Court
in Direct Recruit Class-II Engineering Officers Association`s case (supra) was
followed. In another decision in Ajit Kumar Rath v. State of Orissa & Ors.
AIR 2000 SC 85 = JT 1999(8) SC 578, to which one of us (S.Saghir Ahmad, J.) was
a party, the entire case law was reviewed and it was held that if the ad hoc
promotion had been made in accordance with the service rules, the promotees
would be entitled to reckon the period of ad hoc service towards their
seniority. Learned counsel for the appellants has placed reliance upon a
decision of this Court in C.K. Antony v. B. Muraleedharan & Ors.(1998) 6
SCC 630 and has drawn our attention to paragraph 6 on page 638. Having regard
to the facts of this case and the Service Rules involved therein, the reliance
on that decision is wholly misplaced as that decision does not answer the
problem involved in the present case which, as pointed out above, is covered by
the decisions already discussed above. The Tribunal has also found that
according to the mode of recruitment, the shortfall, if any, in the post of
First Fireman, which could not be filled up by promotion, would be filled up by
direct recruitment and, therefore, direct recruits have to be placed below the
promotees in the matter of seniority. This also appears to be reasonable. But
since we have already held above that the promotion of respondents 4 to 143 was
made in accordance with the Rules and they are entitled to reckon the period of
ad hoc service on the post of First Fireman towards their seniority, we need
not delve into that question any further.
For the reasons aforesaid, we do not find any
merit in these appeals which are dismissed, but without any order as to costs.
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