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CASE NO.: Appeal (civil) 247  of  1997

PETITIONER: SWAPAN KUMAR PAL & ORS.

       Vs.

RESPONDENT: SAMITABHAR CHAKRABORTY & ORS.

DATE OF JUDGMENT:       09/05/2001

BENCH: G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

WithCivil Appeal No. 3767/2001. [@ Petition for Special Leave to Appeal (Civil) No. 6089 of 1998] (With Appln. For condonation of delay in filing SLP)

JUDGMENT

PATTANAIK,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appeal filed by the private persons and the Special Leave  Petition  filed by the Union of India,  are  directed against   one  and  the  same   judgment  of   the   Central Administrative  Tribunal, Calcutta Bench in O.A.  No.1360 of 1990.   Though,  the special leave petition by the Union  of India  is barred by limitation, but in view of the fact that the  leave has been granted by this Court at the instance of the  private  persons  and the judgment of the  tribunal  is under  challenge  in appeal, it would be meet and proper  to condone  the delay in filing the special leave petition, and we accordingly condone the same and grant leave therein.

   The  inter  se  seniority in the cadre of  Senior  Clerk under  the Railway Administration between the promotees from the  grade of Office Clerk (Clerk Grade II) against  66-2/3% quota  and  the  in-service  graduates,  working  as  Junior Clerks,  who  were promoted through a  limited  departmental examination  against 13-1/3% quota is the subject matter  of dispute.   By  the  impugned  order  of  the  tribunal,  the promotees  who  were initially promoted on ad hoc basis  and later on, whose services were regularised, have been held to be  entitled  to  count  their ad hoc period  also  for  the purpose  of reckoning their seniority in the cadre of Senior Clerk,  whereas, according to the Railway Administration  as well  as  according  to the appellants in Civil  Appeal  No. 247/97,  the criterion for determination of seniority  being the  date of regular promotion after due process, the ad hoc period  would  not count for reckoning the seniority in  the promotional grade, which is the grade of Senior Clerk in the case  in  hand.   Thus, the sole question  that  arises  for consideration  is  whether  the  services  rendered  by  the promotees on ad hoc basis in the post of Senior Clerk can be

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allowed  to be counted for the purpose of their seniority in the cadre of Senior Clerk?

   The cadre of Office Clerk in the scale of Rs.950-1500 is filled  up, 66-2/3% by direct recruitment through the agency of the Railway Recruitment Board and 33-1/3% by promotion by selection   of  specified  Group   D  staff,  the  minimum educational   qualification  for  a  direct  recruit   being matriculate or its equivalent examination with not less than 50%  marks  in the aggregate.  The next promotional post  is the senior clerk in the scale of pay of Rs.1200-2040.  Under the  Railway  Establishment Manual, Paragraph (174), of  the total vacancies in the grade, 20% of the posts are filled up by  direct  recruitment  through the Agency of  the  Railway Recruitment  Board,  13-1/3% through a limited  departmental competitive  examination from amongst the serving  graduates clerks  in  the  scale of pay of Rs.  950-1500  through  the agency  of  the  Railway Recruitment Board and  66-2/3%  are filled  up by promotion from the Office Clerks.  The present appellants  were  appointed  on different  dates  as  Office Clerks (Clerk Grade II) in the year 1981-82, and all of them are  graduates.  The private respondents were  non-graduates and  were  serving as Office Clerks in the scale of  pay  of Rs.950-  1500.   On  diverse   dates  between  9.12.1982  to 07.1.1984,  these  private respondents were promoted to  the post  of  Senior  Clerk  on  ad hoc  basis,  as  no  regular recruitment  could  be  made by  holding  suitability  test, because  of certain stay orders passed by different  Courts. On  18.1.85,  the  appellants  were  declared  suitable  for promotion to the grade of Senior Clerk against 13-1/3% meant for in-service graduate office clerks.  The suitability test of  the private respondents, who had been promoted on ad hoc basis  was  held and the result was declared  on  28.2.1985. The  Railway  Administration published a seniority  list  on 01.01.88,  but the same had not been prepared in  accordance with the relevant provisions for determination of seniority, as  contained in paragraph 302 of the Railway  Establishment Manual.   A revised seniority list, therefore, was  prepared on 02.11.89, in which list, the appellants were shown senior to  the private respondents in the cadre of Senior Clerk, on the  basis  of  the  date of regular  promotion,  after  due process  of  selection.   The  private  respondents  herein, challenged  the legality of the aforesaid seniority list  by filing  O.A.   No.   1360/90 in the  Central  Administrative Tribunal,  Calcutta  Bench.  By the impugned  judgment,  the tribunal having allowed the O.A.  on the conclusion that the period  of ad hoc service of the respondents would count for their  seniority, since the suitability test was delayed  by the Administration over which the private respondents had no hand  and  having  quashed the seniority list  published  on 2.11.89,  and  the private respondents having been  declared senior  to  the present appellants, the present  appeal  has been  filed  by  grant  of special  leave  and  the  Railway Administration has also filed the special leave petition.

   Mr.   L.N.   Rao, the learned senior counsel,  appearing for the appellants and Mr.  P.P.Malhotra, the learned senior counsel,  appearing for the Railway Administration,  contend that  the  question  of inter se seniority in the  cadre  of Senior  Clerk being governed by the provisions contained  in paragraph  302  of the Railway Establishment Manual  and  in case  of  promotees,  the  criterion  for  determination  of seniority  being  the date of regular promotion,  after  due process, the period of service rendered as ad hoc appointees cannot  be  counted  for the purpose of  seniority  and  the

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tribunal, therefore, committed serious error in counting the said  ad hoc period and directing the private respondents to be  senior to the appellants.  It is further contended  that the promotion of a railway servant to fill any post, whether a  selection  post or a non-selection post being subject  to his  found  fit  and only after passing the test,  which  is condition  precedent  for being considered fit to  hold  the promotional post and such a test in case of promotees having been  made  only  in the year 1985 and the  results  thereof having  been  declared  only  on 28.2.1985, so  far  as  the private  respondents are concerned, the period prior to that date, during which they were holding the promotional post on ad  hoc  basis, could not have been counted for  determining their  seniority  in  the  cadre of  Senior  Clerk  and  the impugned  order of the tribunal, therefore is erroneous.  It was  then contended that in view of the provisions contained in the Railway Establishment Manual, providing the procedure for  promotion  to  the  post of Senior Clerk,  the  ad  hoc promotion  given  to the private respondents cannot, but  be held to be promotion de hors the rules, and the conclusion of  the tribunal to the contrary, solely on the ground  that the suitability test had not been held at regular intervals, as  provided  in  paragraph 214(c)(v) of the rules  and  the employees  had  no  fault,  is  erroneous.   Lastly,  it  is contended  that in view of the decision of this Court in the case of Anuradha Mukherjee and Ors.  vs.  Union of India and Ors.,  1996(9)  S.C.C.  59, clearly indicating that  ad  hoc appointees  being  appointees de hors the rules, cannot  get their  seniority from the date of their ad hoc  appointment, but  only from the date on which they were actually selected and  appointed,  in accordance with the rules,  interpreting the very provisions of the Railway Establishment Manual, the impugned decision of tribunal is unsustainable.

   Mr.   P.P.   Rao, the learned senior counsel,  appearing for  the  private respondents, on the other  hand  contended that  inaction on the part of the Railway Administration, to hold  the suitability test for adjudging the eligibility  of the  Office Clerks for promotion to the post of Senior Clerk against their quota of 66-2/3% and the promotions granted to such  office  clerks on ad hoc basis, who were eligible  and found  suitable, cannot be a ground for not counting the  ad hoc  period  for reckoning seniority in the cadre of  Senior Clerk,  when these promotees were otherwise suitable and  in fact continuously holding the post of Senior Clerk on ad hoc basis  till  their suitability was adjudged by  holding  the test.   The tribunal, therefore, was justified in  reckoning the  ad hoc period for the purpose of their seniority in the cadre  of  Senior  Clerk.  Mr.  Rao further  contended  that these  promotees  having been promoted on ad hoc  basis  and being  otherwise duly qualified to hold the promotional post and, thereafter having passed the suitability test later on, the past services rendered by them on ad hoc basis has to be given  credit, and the tribunal, therefore was right in  its conclusion.   Mr.  Rao also urged that on account of  lapses on  the  part  of  the administration  in  not  holding  the suitability test at regular intervals, as required under the relevant provisions of the Railway Establishment Manual, the respondents  cannot  be made to suffer and  great  injustice would be meted out to them, if the period rendered as ad hoc is not taken into account for the purpose of seniority.  Mr. Rao,  further  urged  that the promotees,  not  having  been promoted  beyond  66-2/3%  quota available for them  and  in fact,  there having been no impediment for granting  regular

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promotion,  which was not done because of the latches on the part   of   the  Railway   Administration  in  holding   the suitability  test, there is no rhyme or reason, not to count the  ad  hoc services for the purposes of seniority  in  the promoted  cadre  of Senior Clerk.  Mr.  Rao urged  that  the decision  of  this Court in Anuradha Mukherjees  case  will have no application to the case in hand as the Court in that case  was  not  dealing with the fact situation,  where  the Administration  is guilty of not having the suitability test at  regular  intervals, as required under the  Establishment Manual.   Mr.  Rao lastly submitted that during the pendency of  this appeal, the competent authority having approved and regularised  the ad hoc officiating promotion, as a one time measure  and  as  a special case, as per the letter  of  the Chief Personnel Officer dated 17th July, 2000, in the eye of law,  it  cannot be said that they continued as ad hoc,  and therefore, the conclusion of the tribunal is unassailable.

   In view of the rival submissions made by the counsel for the   parties,  the  following   questions  arise  for   our consideration:

   (a)  What  is  the  Rule, which  governs  the  inter  se seniority between the two competitive claimants in the cadre of Senior Clerk?

   (b) The so-called ad hoc promotion of the respondents to the  cadre  of  Senior Clerk, whether can be held  to  be  a regular  promotion,  after due process of selection,  merely because  the  suitability test had not been held at  regular intervals,  as  was  required  to be  held  under  paragraph 214(c)(v) of the Railway Establishment Manual?

   (c)  Is  it possible to hold that on  regular  promotion being  given, after adjudging the suitability of the ad  hoc employees  by holding test, it dates back to the date of  ad hoc promotion?

   (d)  Can  it be said that the earlier decision  of  this Court in Anuradha Mukherjees case, will have no application to the fact situation of the present case?

   So  far as the first question is concerned, the post  of Senior  Clerk  in  the scale of pay  of  Rs.1200-2040  being filled up by direct recruitment, by promotion and by limited departmental  competitive  examination from amongst  serving graduates, the provisions of paragraph 302 of the IREM would govern  the seniority in the grade.  The aforesaid provision is extracted herein below in extenso:

   302.   Seniority in initial recruitment grades - Unless specifically  stated  otherwise,  the  seniority  among  the incumbents  of a post in a grade is governed by the date  of appointment  to the grade.  The grant of pay higher than the initial  pay  should  not, as a rule, confer  on  a  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 the date of  regular  promotion  after  due process in  the  case  of promotees 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

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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 recruit shall  be the date he would have normally come to a working post after completion of the prescribed period of training.

   On  a  plain reading of the aforesaid provision,  it  is crystal  clear  that  date of regular  promotion  after  due process  of selection would be the date from which seniority in  the  cadre of Senior Clerk would count.  In the case  in hand,  the  appointment of the respondents in the  cadre  of Senior   Clerk  against  66-2/3%  quota   as  well  as   the appointment  of  the  appellants in the said  grade  against 13-1/3%  quota,  through  limited  departmental  competitive examination are by way of promotion from the cadre of Office Clerk.   The  inter  se seniority, therefore, of  these  two category of personnel in the cadre of Senior Clerk, would be from  the date on which each one of them were promoted after their  regular  selection by due process of  selection.   In other  words,  when  promotion is given  after  holding  the suitability  test,  on  adjudging  the  suitability  of  the employee,  then  the promotion can be held to be  a  regular promotion  and not earlier.  In the case in hand, so far  as the  appellants  are concerned, the relevant date  would  be 18.1.1985  and so far as the respondents are concerned,  the relevant  date  would  be 28.2.1985.  The  ad  hoc  services rendered  by  the  respondents for  different  periods  from 9.12.1982  till  they were regularly absorbed  on  adjudging their  suitability  by holding test, cannot be reckoned  for the  purposes  of  their seniority in the  cadre  of  senior clerk.   The  conclusion of the tribunal is contrary to  the aforesaid  provision of the Railway Establishment Manual and cannot be sustained.

   Coming  to  the second question, the relevant  provision dealing  with  this aspect is paragraph 214 of  the  Railway Establishment  Manual.   Paragraph 213 also deals  with  the question  of promotion.  Both the above-said paragraphs  are quoted herein below in extenso:

   213.  Promotion.

   (a)  A Railway servant may be promoted to fill any  post whether a selection post or a non- selection post only if he is  considered  fit  to perform the duties attached  to  the post.   The  General  Manager or the Head of  Department  or Divisional  Railway  Manager  may prescribe the  passing  of specified   departmental  or  other   tests  as   conditions precedent  to a Railway servant being considered fit to hold specified  post;   such  rules should be published  for  the information of the staff concerned.

   (b)   Unless   specifically   provided  otherwise,   the promotion  shall be made without any regard for communal  or racial consideration.

   214.(a) Non-selection posts will be filled by promotion of  the senior most suitable Railway servant .   Suitability whether  an individual or a group of Railway Servants  being determined  by the authority competent to fill the posts  on the basis of the record of service and/or departmental tests

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if  necessary.  A senior Railway servant may be passed  over only  if he/she has been declared unfit for holding the post in  question.  A declaration of unfitness should  ordinarily have  been  made  sometime  previous to the  time  when  the promotion of the Railway servant is being considered.

   (b)When,  in  filling of a non-selection post, a  senior Railway  servant  is  passed over the authority  making  the promotion   shall  record  briefly   the  reason  for   such supersession.

   (c)In  respect  of promotion to non-selection post,  the following principles should be followed:-

   (i)Staff  in the immediate lower grade with a minimum of 2  years  service  in that grade will only be  eligible  for promotion.   The service for this purpose includes  service, if  any rendered on ad hoc posts followed by regular service without  break.   The condition of two years service  should stand  fulfilled  at  the time of actual promotion  and  not necessarily at the stage of consideration.

   (ii)The   number   of   eligible    staff   called   for consideration  should  be  equal to the number  of  existing vacancies plus those anticipated during the next four months due  to  normal wastage  (i.e.   retirement/superannuation), likely acceptance of request for voluntary retirement, staff approved  to go on deputation to other units, staff  already empanelled  for  the ex-cadre posts, creation of  additional posts  already  sanctioned by the competent  authority,  and staff   likely   to   go   out    on   transfer   to   other Railways/Divisions.

   (iii)Where non-selection posts are filled from different categories  of  staff,  no  hard and  fast  limits  need  be prescribed as to the number of the candidates to be admitted from each eligible category.  In cases where posts are to be filled  on  the quota basis it should be ensured  that  each category is adequately represented within the overall number of  candidates called up.  Employees passing the suitability test  should  only be placed in the select list.   Employees not  qualifying  in the test should not be taken  merely  to make up the quota fixed.

   (iv)An  employee who has passed a suitability test  once need not be called for the test again and should be eligible for promotion as and when vacancies arise.

   (v)A  suitability  test should be held at  the  interval which  should not be less than six months.  All the eligible candidates as per their seniority including those who failed at the last test should be called.  The period of six months is reckoned from the date of announcement of the result.

   (vi)If  an  employee fails in a suitability test but  is called up again, a suitability test, after a time lag of six months and he passes the same, he should be given preference over  his junior who had passed the suitability test earlier than  him but is still waiting to be promoted for want of  a vacancy.

   It  is thus apparent that a promotion can be given  only when the employee concerned is considered fit to perform the duties of the higher post and a person can be considered fit only  after  he  passes  the prescribed test  held  for  the

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purpose.   The  post of Senior Clerk being  a  non-selection post,  it  is required to be filled up by promotion  of  the senior-most suitable railway servant in the feeder cadre.  A senior  railway  servant  can be superseded when  he/she  is declared  unfit  for holding a promotional post.  The  rules also  further provide that when a senior railway servant  is passed  over, the authority must record briefly the  reasons for  supersession.   The procedure for making  promotion  to non-selection  post  has been indicated in paragraph  214(c) referred   to   above.   Clause   (iii)  of   para   214(c), unequivocally  indicates  that  the   employees  only  after passing the suitability test, should be placed in the select list and further those, who do not pass the qualifying test, they  cannot be given promotion merely to make-up the  quota fixed  for them.  It is no doubt true that under Clause  (v) of  paragraph  214(c), a suitability test is required to  be held  at interval, which should not be less than six months. But in a case where such suitability test had not been held, as  in  the case in hand and persons are promoted  from  the Junior  Clerk  to  Senior  Clerk,  on  the  basis  of  their seniority  on  ad  hoc basis, such ad hoc  promotion  by  no stretch  of imagination can be held to be regular  promotion after  due  process of selection.  It can be a promotion  by due  process only when the suitability test, as indicated in paragraph  214(c)(iii)  is held and the  concerned  employee qualifies the said test.  It is necessary in this connection to  notice  some of the decisions relied upon by  Mr.   Rao, appearing  for the respondents, in support of the conclusion of  the  tribunal that the suitability test not having  been held  earlier,  ad hoc promotion must be held to be  regular promotion.  The first case which Mr.  Rao relied upon is the case  of  G.P.Doval  and  Ors.  vs.   The  Chief  Secretary, Government of U.P.  and ors., 1985(1) S.C.R.70.  In the said case,   the  inter-se  seniority   amongst   the   Khandsari Inspectors  was the subject matter of dispute.  There was no rule, governing the inter se seniority and in the absence of any  specific  rule  of seniority, governing a  cadre  of  a service,   the   Court  held   that  length  of   continuous officiation  will provide a more objective and fair rule  of seniority.   It is in this context, this Court had  observed that  if  a stop-gap appointment is made and  the  appointee appears  before  the  Public Service  Commission,  when  the latter  proceeds  to select the candidates and is  selected, there  is  no justification for ignoring his  past  service. But  this  decision  will have no application where  a  rule subsists, governing the inter se seniority in a cadre and in the  case  in hand, the rule is paragraph 302 of  the  IREM. Therefore,   the  general  principles   enunciated  in   the aforesaid  decision will have no application.  The next case relied  upon  by Mr.  Rao was the case of S.L.Kaul and  Ors. vs.   Secretary to Govt.  of India, Ministry of  Information and  Broadcasting, New Delhi and Ors., 1989 Supp.(1)  S.C.C. 147.  In this case, the seniority in the cadre of Monitor in All  India  Radio was the subject matter for  consideration. The  post of Monitor was upgraded and made equivalent to the post  of  Central  Information  Service  Grade  IV  and  was re-designated  as  Sub- Editors (Monitoring).   The  Central Government  did  the upgradation and enhancement of  pay  by order  dated 29th June, 1968.  But the relevant schedule was amended  and  the  posts  were   included  in  the   Central Information  Service Grade IV by Notification dated 9th May, 1972.   It  is  in this context, this court  held  that  the Monitors in All India Radio could be legitimately held to be in  Central  Information Service Grade IV w.e.f.   29.6.1968 and not from 09.5.1972, as they had been inducted into Grade

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IV  of the Central Information Service from 29th June, 1968, when  the post was brought at par with Group IV and the post was  re-designated  as  Sub-Editor  and  the  employees  had received  that post and pay after obtaining the approval  of the  department  of  Personnel as well as the  Union  Public Service  Commission.  It is in that context, this Court  had observed  that even though, the actual inclusion of the post of  Monitor in the Central Information Service was made much later, but the fact remains that they were to all intent and purposes,   treated  as  Grade  IV   post  in  the   Central Information  Service with effect from the date when the post of  Monitor  was re-designated with revised pay  scales  and became  equivalent  to Grade IV in the  Central  Information Service.   Therefore, on account of the lapse on the part of the  Government,  the  employees cannot be made  to  suffer. This  decision  also in our considered opinion will have  no application  inasmuch as under the relevant rules, holding a test  and  passing of the test is a condition precedent  for promoting  an  employee from the Office Clerk to the  Senior Clerk  and any promotion in contravention of the same cannot be  a promotion on regular basis.  The next case relied upon by  Mr.  Rao was the case of Devendra Narayan Singh and Ors. vs.   State of Bihar and Ors.,1996(11) S.C.C.  342.  In this case  the  year of allotment of an officer was  the  subject matter  of  consideration.   The   concerned  authority  had committed  error  by not preparing the select list  for  the year  1983  and  pursuant to the directions of  the  Supreme Court,   the  appropriate   authority  on  re-consideration, included  the  names in the select list for the  year  1986. The Court on consideration of the facts of that case came to hold  that in the eye of law, the select list can be held to be  a select list for the year 1983 and, therefore, the year of  allotment  of the employee concerned is required  to  be determined  on the basis that he was in the select list  for the  year  1983, though that list was prepared in  the  year 1985 and was approved by the Union Public Service Commission in  the year 1986.  We fail to understand, how the aforesaid judgment  will  be of any application to the case  in  hand, when  because of interim direction in pending cases, regular promotion  had not been given and the cadre of Senior  Clerk was  being  managed  by  granting ad hoc  promotion  to  the respondents.   The next case relied upon by Mr.  Rao is  the case  of  Suraj Parkash Gupta and Ors.  vs.  State of J &  K and  Ors.,  2000(7) S.C.C.  561.  In the aforesaid case,  on consideration  of  the relevant rules governing the  service conditions  of  the  Assistant  Engineers  of  the  J  &   K Government,  the Court had observed that ad hoc or temporary service  of a person, appointed by transfer as an  Assistant Engineer  or by promotion as an Assistant Executive Engineer can  be  regularised through the Publics Service  Commission and  Departmental Promotion Committee from an anterior  date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and  his seniority will count from that date.  The aforesaid conclusion  was  drawn because of the provisions of Rule  23 and  Rule  15  of the J & K Rules but in the case  in  hand, there is no provision, which has been brought to our notice, which  enables  the  appointing authority  to  regularise  a promotion from an anterior date, though the suitability test is  held  at  a  later date.  In the  absence  of  any  such provision  in  the  rules  in question,  the  ratio  of  the aforesaid  decision, on interpretation of the relevant rules of J & K Engineering Rules will have no application.  In the aforesaid  premises, we have no hesitation in coming to  the conclusion  that  merely because a suitability test had  not

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been  held at regular intervals, an employee promoted on  ad hoc basis can claim that it is a regular promotion after due process of selection.  As such the seniority of promotees in the  cadre of Senior Clerk can be counted only from the date of regular promotion, after due process of selection.

   So  far  as  the third question is concerned, it  is  no doubt  true  that  the  respondents, who got  their  ad  hoc promotion  between  the  period  9th December  1982  to  7th January, 1984, were later on found suitable in the test that was  held  and the result of the said test was published  on 28th  February,  1985.  It is also true that they  had  been continuing  from  their respective date of ad hoc  promotion till they were regularised, after being selected through due process.   But that by itself cannot confer a right on  them to  claim the ad hoc period of service to be tagged on,  for the  purpose  of  their seniority inasmuch as  there  is  no provision  which  says that an employee on  being  regularly promoted, such regular promotion would date back to the date of original promotion in the cadre, which might have been on ad hoc basis.  When the service conditions are governed by a set  of rules, in the absence of any rules, it is  difficult to  hold that regular promotion would date back to the  date of  ad  hoc  promotion itself.  We,  therefore,  answer  the question in the negative.

   So far as the earlier decision of this Court in Anuradha Mukherjees  case,  [1996 (9) S.C.C.  59], is concerned,  to which,  one of us (G.B.Pattanaik, J), was a party, the Court was considering the question of seniority in the very cadre, as  in  the case in hand.  On consideration of the  relevant provisions,  it did consider the case of appointees de  hors the  rules, in paragraph 15 of the said judgment, and it was held that appointees de hors the rules can get seniority not from  their initial appointment, but from the date on  which they are 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.  Mr.  Rao contends that in the case of Anuradha Mukherjees  case, the Court had never faced the question of non-holding of suitability test, as required under law.  But that  in  our  view,  will  not change  the  effect  of  the judgment.   The  ad hoc promotion made in the present  case, without  holding any test for adjudging the suitability, has to  be  held  promotion/appointment de hors the  rules,  and therefore,  the ratio of the aforesaid judgment would  apply also  to the case in hand.  Consequently, any period  served by any promotee prior to 28.2.1985 on ad hoc basis cannot be counted for the purposes of seniority in the cadre of Senior Clerk.

   In  view  of  our  conclusion   on  the  aforesaid  four questions, we unhesitatingly hold that the impugned judgment of  the  tribunal is wholly unsustainable in law, and  we  , accordingly set aside the same.  Necessarily, therefore, the seniority  list as on 01.6.1989 and published on  02.11.1989 is affirmed and O.A.No.  1360 of 1990 stands dismissed.

   Before  we  part with this case, it would  be  necessary also  to examine a situation which arises subsequent to  the impugned  judgment  of  the tribunal, while the  appeal  was pending  in  this Court.  On behalf of the  respondents,  an interlocutory  application  had  been filed,  appending  the

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letters  dated 25.2.1999 and 17.7.2000.  Mr.  P.P.  Rao, the learned senior counsel, appearing for the respondents placed reliance  on  the  aforesaid document  dated  17.7.2000  and contended  that the competent authority having approved  the regularisation  of  ad hoc officiating promotion, as  a  one time  measure and as a special case, there would not be  any justification  not  to treat that period for the purpose  of seniority and, therefore, the conclusion of the tribunal can be  sustained  on  this ground also.  It is  true  that  the document  has  come  into  existence while  the  appeal  was pending  and the appellants have not taken any steps by  way of  amending  the  memorandum,  but the  very  proposal  for regularisation  of ad hoc period of service, as indicated in the  letter of the Divisional Railway Manager dated  25.2.99 would establish the purpose behind such regularisation.  The competent  authority  felt that unless the ad hoc period  is regularised,  future  complications,   consequent  upon  the retirement  may  arise.  It is, therefore, not to  deny  any retiral  benefit,  the  ad hoc promotion was  sought  to  be regularised  and  the appropriate authority did approve  the same  as a one time measure with the caution that it  should not  happen  in  future.   But that  would  not  change  the principle  of  inter se seniority, which is governed by  the provisions,  contained  in  paragraph  302  of  the  Railway Establishment  Manual, which we have already considered  and answered.  Then again, from the aforesaid letter of approval dated  17.7.2000,  it  is  not clearly  discernible,  as  to whether  under  the order in question, it is the service  of these  respondents  which was sought to be regularised.   We need  not further delve into the matter, as in our view  the so-called  regularisation  of ad hoc  officiating  promotion would  only  confer  the retiral benefit  to  the  concerned employees  and would not count for the purposes of seniority in  the cadre which has to be determined in accordance  with the   rules,  as  already   discussed.   These  appeals  are accordingly allowed.  There would be no order as to costs.

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