http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: DAVINDER BATHIA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       12/05/1998

BENCH: C.B. PATTANAIK, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 2734 OF 1991                       J U D G M E N T PATTANAIK, J.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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  &

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

    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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    (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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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.