Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
T. VIJAYAN AND ORS.
Vs.
RESPONDENT:
DIV. RAILWAY MANAGER AND ORS.
DATE OF JUDGMENT: 05/04/2000
BENCH:
S.S.Ahmad, D.P.Wadhwa
JUDGMENT:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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. iii.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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.