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CASE NO.: Appeal (civil)  4884-4885 of 2007

PETITIONER: S.P. Indu

RESPONDENT: The General Manager, Metro Railway and Another

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos.21224-21225 of 2004)

S.B. Sinha, J.

1.      Leave granted. 2.      Seniority in the post of Assistant Law Officer in the Metro Railways  is in question in these appeals which arise out of a judgment and order dated  14.8.2003 passed by a Division Bench of the Calcutta High Court reversing  a judgment and order dated 14.12.2001 of the Central Administrative  Tribunal, Calcutta. 3.      Appellant joined South Eastern Railways as a Clerk in the year 1964.   He was transferred in public interest to Metropolitan Transport Project  (Railway) in Calcutta on 17.10.1970.  P.K. Gangopadhyay, the third  respondent herein, was appointed as a Junior Stenographer in the South  Eastern Railways on 4.2.1978.  He was also transferred to the Metro  Railways Calcutta on 12.5.1978.  Third respondent was promoted as Law  Assistant on 28.3.1979 in the scale of pay of Rs.550-750/- on an ad hoc  basis.  The said ad hoc promotion was regularized w.e.f. 28.3.1979.  He was  again promoted as Law Assistant on 10.12.1985.  Appellant, while keeping  his lien in the Southern Railway Administration was appointed as Chief Law  Assistant in the Metro Railways n the scale of pay of Rs.700-900/- on an ad  hoc basis w.e.f. 23.7.1986.  Respondent was promoted as Chief Law  Assistant on 28.3.1990.   4.      It is not in dispute that the principles which were applicable for  promotion to the post of Assistant Law Officer were as under : \023The following principles should be followed in  determination of seniority and promotion of staff  in the Metropolitan Transport Project, Calcutta : 1.      SENIORITY : The Metropolitan Transport  Project is a purely temporary work charged  organization and, as such all posts in this  organization are purely temporary, ex-cadre  and work-charged ones.  These posts are  normally filled by drafting staff from  different seniority groups of different  Railways.  The seniority of such staff will be  reckoned on the basis of joining this Project.   For the purpose of this rule all employees  will be treated as having joined on the same  date.  As a consequence of this principle, the  relative seniority of employees joining in a  particular grade will be fixed based on the  length of service rendered in that grade other  than fortuitous service.  Periods of  officiating service rendered in the higher  grade as a regular measure other than

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periods of promotions against ex-cadre or  work-charged posts will be taken into  consideration while fixing his seniority on  re-promotion in the same higher grade in  this project. 1.1     The seniority of staff now working in this  Project will be prepared on the above  principles and placed on record.  On arrival  of any new staff, their names will be  interpolated on the basis of their length of  non-fortuitous service in the respective  grade. 2.      PROMOTION : All posts under  Metropolitan Transport Project have been  classified as either selection or non- selection.  Promotion to selection posts will  be made as per extant orders in connection  with the filling of selection posts.   Promotions to non-selection posts will be  made on the basis of seniority-cum- suitability, suitability being judged by the  authority competent to fill the post by oral  and/or written test or a departmental  examination as considered necessary and the  record of service.  The only exception would  be in cases where for administrative  convenience the competent authority  considers it necessary to promote a railway  servant other than an empanelled staff or  senior most staff to officiate in a short term  vacancy. 2.1     A staff who has already been promoted  against a vacancy other than fortuitous  promotion will not be disturbed even if  another staff who becomes senior to him as  per policy in para 1.1 joins Metropolitan  Transport Project in the lower grade after  the promotion of the junior.  The senior staff  will have to wait for his chance of  promotion according to his seniority  position fixed in accordance with para 1.1  above.  On promotion to the higher grade,  his seniority position will be restored and  the name interpolated in the seniority list of  the higher grade provided he qualifies for  such promotion either through selection or  suitability test in the first chance.  This  seniority list will then be followed for  subsequent promotions to still higher grades.   The same principle will also be adopted  when a staff joins MTP on transfer in the  intermediate grade. 3.      SELECTION/SUITABILITY TEST : Even  if an employee has already qualified himself  in a Selection/Suitability test on the Open  Line, no weightage in seniority will be given  to him in the MTP, but he will not be  required to re-appear for further test for  promotion when his turn for promotion  comes according to his seniority position in  the MTP.  However, the inter se seniority of  staff coming from the same seniority unit  will not be disturbed. 3.1     The above principles for fixing seniority will  be followed till the completion of the two

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surveys entrusted to this Project.  This  principle will be reviewed in due course if  the construction work is sanctioned and  undertaken by this Project.\024

5.      Indisputably, appellant herein appeared in the departmental  examination but did not succeed.  He again appeared in the said examination  in 1992.  Although he passed the written test, but failed to qualify the viva  voce.  Third respondent, on the other hand, became a Law Assistant on a  regular basis in 1991 upon passing the suitability test conducted therefor.   He was promoted to the post of Assistant Law Officer on 30.1.1994.   6.      Appellant, being not been promoted, filed an Original Application  before the Central Administrative Tribunal, Calcutta (CAT).  By an order  dated 30.8.1994, the General Manager (Metro Railway) was directed by  CAT to pass a speaking order.  Appellant was personally heard by the said  authority.  A speaking order was passed which is to the following effect : \023In compliance with the Hon\022ble Central  Administrative Tribunal, Calcutta Bench\022s order  dated 30th August, 1994 in O.A. No.937 of 1994 \026  S.P. Indu \026 Vs \026 Union of India & Ors.; Shri S.P.  Indu and P.K. Gangopadhyay have been given  personal hearing by me on 17th November, 1994 at  11:40 hrs.  After hearing the oral submission of the  said employees and going through the entire  records and considering the facts and  circumstances of the case, I am satisfied that the  contention of the applicant is not acceptable. Shri Indu is Head Clerk in the pay scale of  Rs.1400-2300/- and Shri P.K. Gangopadhyay is  Chief Law Assistant in the scale of Rs.2000-3200/-  in the parent Railway i.e. in South Eastern  Railway.  Both of them are having non-fortuitous  service in the respective grades in the parent  Railway. In terms of Para 203.5 of Indian Railway  Establishment Manual, Vol.I (Revised Edition  1989) promotion as Asstt. Law Officer in Group  \021B\022 can be considered on seniority on the basis of  total length of non-fortuitous service rendered in  grade Rs.2000-32000/- (RS) and above.  Shri Indu  who holds the position of Head Clerk in his parent  Railway is, therefore, not eligible for being  considered. In terms of Estt.Srl.No.212/85 dt.19.09,85 issued  by the Ministry of Railways, double ad hoc  promotion should not normally be given.  Shri  Indu is clearly enjoying the benefit of double ad- hoc promotion whereas Shri Gangopadhyay ceased  to get benefit of even a single ad hoc promotion  w.e.f. 18.11.92.  His promotion w.e.f. 01.07.94 as  Asstt. Law Officer gives him a single ad hoc  promotion in conformity with the directives of the  Ministry of Railways and being the senior-most  amongst the employees similarly placed (that is  regular Chief Law Assistants on their parent  Railway) he was correctly promoted as the Asstt.  Law Officer. The orders already issued, therefore, stand.\024

7.      Aggrieved by and dissatisfied with the said order dated 30.8,1994,  another original application was filed by the appellant before the CAT. By  an order dated 14.12.2001, CAT, inter alia, considering the fact that the  appellant had joined the Metro Railway much prior to the third respondent  and proceeding on the premise that he had already been placed in the pay

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scale of Rs.2000-3200/- (RS), held : \023It is not disputed that the Metro Railway was  constituted under the Central Act of Metro  Railway (Construction and Work) Acts, 1978 (as  amended by Act 42 of 1987) and that both the  applicant and the respondent were recruited in the  open line in different time and job but were posted  under Metro Railways respectively with effect  from 17.10.70 and 12.5.78.  Whereas the applicant  was recruited in the year 16.12.64, as U.D. Clerk,  it is now stated that Respondent Shri P.K. Ganguly  was recruited on 4.2.78 as Law Asstt. in a different  grade of Group-C job.  From the records we are  able to come to the conclusion that both these  incumbents came to be posted in the Metro  Railways from open line on different dates and  with different designations.  When the respondent  statedly recruited on 4.2.78 came to Calcutta and  joined the Metro Railway project from 12.5.78, the  applicant had come and joined in Metro Railways  on 17.10.70 with clearly 8 years before the  respondent. In this connection, the applicant has submitted a  separate seniority list for officers posted in Metro  Railways which was separate, self contained and is  dated 17.11.88.  There the applicant has been  shown to have become Law Asstt. with effect from  30.3.79 and thereafter he was promoted as Chief  Law Officer on ad hoc basis with effect from  1.7.86.  In this seniority list the position of the  respondent is shown as Law Asstt. with effect  from 10.12.85 and his promotion as Chief Law  Assistant is not at all shown.  In fact as stated by  the applicant, the respondent was promoted as  Chief Law Assistant with effect from 28.2.90 but  this position has been disputed by the respondent  who has submitted another open line seniority list  dated 28.2.93 (Annexure R1).  In this seniority list  the position of respondent is shown against No.30  and his date of promotion as Chief Asst. Law Asst.  on regular basis is shown with effect from  18.11.92 and marked to be posted in Metro  Railways.  In this seniority list his date of  appointment has been indicated to be 4.2.78 under  Column 3 but the post in which he was appointed  has not been indicated specifically.  It was,  however, clarified that he was appointed as Asstt.  Law Officer.  If this seniority list in the open line  is considered as the only seniority list for Law  Officer and Chief Law Assistant, it becomes  evident that the respondent came to Calcutta  probably on deputation to Metro Railways in a  lower post where he was promoted as Law Officer  with effect from 10.12.85.  In other words, he  worked as Law Asstt. in open line only for 3  months i.e. from February to May 1978.  Hence he  was not holding the post of Law Assistant in the  scale of Rs.1400-2660/- continuously since  February 1978 being his date of recruitment.\024

8.      On the said findings, the Original Application filed by the appellant  herein was allowed setting aside the speaking order passed by the General  Manager (Metro Railway) on 29.11.1994.   9.      Two writ petitions were filed thereagainst before the Calcutta High  Court; one by the Union of India and the other by the third respondent.  A

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Division Bench of the Calcutta High Court reversed the said judgment of  CAT saying that the appellant had never held the post of Chief Law  Assistant on a substantive basis in the open line where he had the lien. 10.     Appellant is, thus, before us. 11.     Mr. Rana Mukherjee, learned counsel appearing on behalf of the  appellant, in support of this appeal, contended that the High Court  committed a manifest error in passing the impugned judgment insofar as it  failed to take into consideration that the appellant having been placed in the  pay scale of Rs.2000-3200/- by the Metro Railway was eligible to be  considered for promotion to the post of Assistant Law Officer, particularly,  in view of the fact that therefor only seniority-cum-suitability test was to be  applied.  It was further submitted that the High Court, in opining that the  appellant had been holding a post of Head Clerk, committed a serious error   as the fact that he had been holding the post of Chief Law Assistant for four  years whereas the private respondent had not even completed three years of  regular service, was totally ignored.  It was furthermore submitted that  whereas the appellant was holding the feeder grade to the promotion of  Assistant Law Officer since 10.12.1985, the respondent held the post of  Chief Law Assistant only from 28.3.1990.   12.     When questioned, Mr. Mukherjee could not deny or dispute that, at all  material times, the appellant had retained the lien of the South Eastern  Railway Administration.  From the records, it appears that he was  permanently absorbed in the Metro Railway Project as governed by an Act  known as the Calcutta Metro Railway (Operation and Maintenance)  Temporary Provisions Act, 1985 ;  Section 18 whereof reads as under :

\023Save as otherwise expressly provided in this Act,  the provisions of the Indian Railways Act, 1890,  and the rules, orders or notifications made or  issued thereunder shall, so far as may be and  subject to such modifications as may be necessary,  apply to the operation and maintenance of the  metro railway, as if such metro railway were a  railway as defined under that Act, and the  references to \023railway administration\024 and  \023inspector\024 in that Act shall be construed as  references to the \023metro railway administration\024  and \023Commissioner\024 respectively.\024

13.     It is, however, not in dispute that no Rules had been framed at the  relevant time and the Office Order issued on 19.9.1970 was applicable.        We may notice some of the relevant provisions of the said Office  Order dated 19.9.1970 : \023The Metropolitan Transport Project is a purely  temporary work-charged organization and, as such,  all posts in this organization are purely temporary,  ex-cadre and work-charged ones.  These posts are  normally filled by drafting staff from different  seniority groups of different Railways. 1.1     The seniority of staff now working in this  Project will be prepared on the above principles  and placed on record.  On arrival of any new staff,  their names will be interpolated on the basis of  their length of non-fortuitous service in the  respective grade.\024

14.     Third respondent, in terms of the said Rules carried with him the  seniority in the open line when he joined the Metro Railway.  He having  passed the departmental examination was in the cadre of Chief Law  Assistant in the open line.  Appellant, however, having not passed the said  examination held his lien in the post of Head Clerk in the open line.   15.     Paragraph 203.5 of the Indian Railway Establishment Manual reads as  under : \023Since employees from the different streams will

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be eligible to appear for the selection, their  integrated seniority for purposes of the selection  should be determined on the basis of total length of  non-fortuitous service rendered in grade Rs.2000- 3200(R.S.) & above.  In other words the date of  appointment to the grade Rs.2000-3200(R.S.) on a  non-fortuitous basis will be the criterion.\024

16.     Submissions of Mr. Mukherjee that the said Rule will have no  application to the employees of the Metro Railway being not an  establishment of the Indian Railways cannot be accepted.  Employees from  different streams were eligible to appear at the competitive examination.   Their inter se seniority was, therefore, required to be determined in terms of  the said Rule.  Although Metro Railway was an independent organization, it  used to recruit people on deputation from different Railway Administrations.        The General Manager of the Metro Railways also had rejected the  representation of the appellant, inter alia, on the basis thereof.   17.     It is one thing to say that the appellant was in the scale of pay of  Rs.2000-3200/- but it is another thing to say that he was holding the  substantive post of Chief Law Assistant.  He might be working in the said  post in the Metro Railways but the same would not mean that despite the  fact that he had not passed the departmental examination, would still be  eligible for being considered for promotion to higher post in the open line  although he was not qualified therefor.   18.     The premise adopted by the Tribunal in allowing the original  application filed by the appellant herein, therefore, was not correct.   Appellant was not appointed on substantive basis in terms of the provisions  of the said Act.  He was merely on deputation and, therefore, for the purpose  of considering his eligibility to be appointed on an existing post, he was  required to hold the post of Chief Law Assistant in a substantive capacity for  a period of three years.  Cases of the appellant and the third respondent,  therefore, were not comparable and in that view of the matter although the  appellant joined the services of the South Eastern Railway Administration as  also the Metro Railways earlier, he could not be treated to be senior to the  third respondent.      For the reasons aforementioned, there is no merit in these appeals.   They are dismissed accordingly.  In the facts and circumstances of the case,  however, there shall be no order as to costs.