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

PETITIONER: SMT. ANURADHA MUKHERJEE & ORS. ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS. ETC.

DATE OF JUDGMENT:       12/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (3)   576        1996 SCALE  (3)135

ACT:

HEADNOTE:

JUDGMENT:                             WITH CIVIL APPEAL  NOS, 4745,4744,4800,4815,4723-27 AND 4814/1996 [Arising out  of SLP  (C) Nos.15119/93,  13547/94, 14571/93, 1818/94, 2473-77/95, 3930/93]                       J U D G M E N T K. Ramaswamy, J.      Leave granted.      These appeals  by special  leave filed  by some  of the employees and  by the  Union of India, arise from the orders of Calcutta, Allahabad. New Delhi and Lucknow Benches of the Central Administrative  Tribunal.  The  facts  in  the  main appeal filed  by Mrs. Anuradha Mukherjee, are sufficient for disposal of the controversy raised in all these appeals.      The  appellants   are  graduates   appointed  as  Lower Division Clerks  - Grade  II on different dates between 1968 to  1982.   The  Railway   Administration  restructured  the ministerial  cadres   in  the   Railways;  determined  their gradewise percentage  of the posts and made distribution. We are concerned  in these  cases with  Clerks [Grade I] in the pay-scale of Rs.330-560/-. 40% of the the vacancies existing prior to  October  1,  1980  in  the  Clerks  category  were earmarked for  Clerks [Grade II by by Railway Board’s letter dated June  1, 1979.  Subsequently it was revised by Board’s letter dated November 10, 1981 to 57.5&.      Under the  Board’s letter  dated November  10, 1980  to bring about  qualitative improvement  in the  functioning of the restructured  cadres in the Personnel Department, it was decided to fill up 20% of those total posts of Senior Clerks [Grade I]  by direct recruitment through the Railway Service Commission. Out  of balance 80% of the in-service graduates, 13-1/3% posts were made available to the in-service graduate Grade II  Clerks to  compete for  those vacancies  in  their quota.  Existing   graduate  employees   in  the   Personnel Department, subsequently extended to Accounts Department and other Departments, were also permitted to compete for direct recruitment quota  and age qualification was relaxed. It was

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

decided that  Seniority of  directly recruited Senior Clerks vis-a-vis those  promoted to  the Grade  would be determined with reference to the date of entry into the Grade.      By letter dated June 18, 1981, the Board had decided to fill up  13.1/3% of  the posts  of Senior  Clerks  from  in- service  graduate   Clerks   [Grade   II]   by   competitive examination to be held by the Railway Service Commission. In the event  of their  non-availability it was decided to fill up the  residue vacancies  by direct  recruitment along with 20% direct  recruitment quota  from open  market. The orders issued thereunder  were made  effective from October 1, 1980 but no  arrears are  payable on that account. The pay of the employees so appointed was decided to be fixed proforma from October 1,  1980 but  the actual  payment of  emoluments  as Senior Clerks  was allowed  from the  date of their actually taking over  the charge in that post. It was further decided that  40%  vacancies  in  the  said  posts  existing  as  on September 30,  1980 would be filed up in accordance with the orders in  force prior to the issue of letter dated June 18, 1981. These  orders were made applicable to the non-Accounts Department as well as Personnel Department and this ratio of 20 and  13.1/3  per  cent  between  direct  recruitment  and promotion  of   in-service  graduate   candidates  was  made applicable to all in-service graduate Clerks, [Grade II].      Letter dated  January 20, 1981 clarified in para 2 [ii] that 10%  of the  vacancies of  Senior Clerks existing as on October 1,  1980 as  per Board’s letter of November 10, 1980 were to  be filled up by promotion from amongst the existing Clerks [Grade  II] of the Personnel Department on seniority- cum-suitability basis.  The direction  was  to  obviate  the confusion that  direct recruitment  from open  market  would always be  by merit.  The existing  Clerks [Grade II] in the Personnel Department  were also made eligible for 20% direct recruitment quota.      In the  letter dated  July 31,  1981 it  was decided in para 2  [ii] that  13.1/3% of  the vacancies in the posts of Senior Clerks  existing as on October 1, 1980 made available by order  dated June  18, 1981 were directed to be filled up from amongst the in-service graduate Clerks [Grade I] in the manner indicated in para 1 [ii] of the letter dated June 18, 1981. In other words, out of 57.5% if the vacancies, 13-1/3% vacancies would  be available  to  the  in-service  graduate Clerks [Grade II] for recruitment by competitive examination by Railway  Service Commission. The unfilled vacancies would be thrown  open to candidates from open market. Para 2 [iii] of this letter indicates that 10% vacancies thereof would be filled up  by direct  recruitment  through  Railway  Service Commission. The  balance  10%  vacancies  having  arisen  on October  1,  1980  against  direct  recruitment  quota  were decided to be filled up by promotion of Clerks [Grade II] on the basis  of  seniority-cum-suitability  as  per  the  then existing procedure.  13.1/3% plus  10%, i.e., 23.1/3% of the vacancies were  to be  filled up from amongst the in-service graduate Clerks  [Grade II]  by recruitment  through limited departmental examination.  In other  words,  recruitment  of graduate  in-service  Grade-II  Clerks  as  Grade  I  Clerks through Railway  Service Commission  was dispensed with. 10% of the vacancies out of 57.5% were to be filled up by direct recruitment  from   open  market.  These  orders  were  made applicable to non-Personnel Departments also and this order, it was  clarified, was in supersession of their letter dated January 20,  1981. All graduate Clerks [Grade II] working in any Department  were made eligible to compete in the limited recruitment for  selection as  Grade I Clerks. This was open to all  in-service graduate  Clerks [Grade II] including SCs

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

and  STs   by  open  competition  as  well  as  by  rule  of reservation applicable  to them. In para 3, it was clarified that limited reservation to the extent of 13-1/3% by limited departmental examination  or 10% by direct recruitment would be applicable only if candidates from graduate Clerks [Grade II] were available. 80% of the posts should be kept unfilled for available non-graduate  Grade II Clerks for promotion as Grade I Clerks.      By its  letter dated January 5, 1982, Railway Board had modified its  earlier letter dated July 31, 1981 relating to paras 2(ii)  2(ii) and  4 and stated that  vacancies arising on October  1, 1980  should be  filled up  as per the manner indicated in  para 2  [ii] of their letter dated January 20, 1981, i.e.,  Vacancies arising on October 1, 1980, i.e., 10% of the  vacancies should  be filled  up by existing graduate Junior Clerks  [Grade II] by limited competitive examination by Railway  Service Commission.  The  balance  vacancies  by promotion of non-graduate Clerks [Grade II] on the principle of seniority-cum-suitability. Vacancies existing on and from October 2,  1980 should be filled up in the manner indicated in para  2 [iv]  of their  letter dated July 31, 1981, i.e., 20% of vacancies by direct recruitment while graduate Clerks [Grade II]  who are  still available are eligible to compete in open  competition  on  the  principle  of  seniority-cum- suitability  but   not  on   pure  merit  like  open  market candidates. It was made applicable to all ministerial staff, Junior Clerks  [Grade II]  in all  non-Personnel Departments also but not to Accounts Department.      In the  letter dated  August 10,  1983  the  Board  has stated that  pursuant to  the order  dated June 18, 1981 the promotion of  personnel as  Senior Clerks would be effective from October  1, 1980  but no  arrears were  payable on that account. However,  they  clarified  that  the  "pay  of  the Railway servants  appointed to  the upgraded  post was fixed proforma from  1.10.1980 but actual payment of emoluments in the upgraded  posts was  allowed only  from  the  date  they actually took  over charge  of the  upgraded post"  and that "pro forma  pay only  in particular  cases covered under the above-quoted order  dated June 18, 1981 would by counted for pensionary benefits as a special case in relaxation of  Rule 2545-P.II & para 501 MRHR 1950".      In letter  July 26,  1985 in  para 1 it was stated that the limited  recruitment to in-service candidates and direct recruitment from open market would be done on the same basis referred to  above, namely, seniority-cum-suitability to in- service candidates  and merit  to open market candidates and this would  be done  on one time basis, through departmental competitive examination  as one  time measure  for  the  in- service candidates.      Thus we  have three streams to fill up vacancies in the cadre of  Senior Clerks,  i.e., Grade  I Clerks  in the pay- scale of  Rs.330-560/-, viz.,  [i] direct recruits from open market [20%  of the  Cadre strength]; [ii] graduate Grade II Clerks   [13.1/3%   direct   limited   recruitment   through departmental  examination]   and  [iii]   80%   non-graduate promotee-Grade II  Clerks. These  three streams continued to remain throughout  the period.  Though the counsel on either side contended  that their  inter  se  seniority  should  be determined with effect from October 1, 1980 or from the date of taking  actual charge  of the posts, the above letters do not deal with that controversy.      The inter  se seniority  of the candidates is regulated under para  302 of  the Railway  Establishment [Volume  I  - Revised Edition, 1989] which reads as under:      "302.    Seniority    in    initial

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

    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 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 date of regular      promotion after  the process in the      case of promotion after the process      in the  case of  promotee  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  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 recruitment shall      be the  date he would have normally      come  to   a  working   post  after      completion of the prescribed period      of training." A narration  of these  facts clearly indicates the following conclusions: [1]  Vacancies in  the posts of Senior Clerks existing prior to October  1, 1980  were 40%  of them 20% were reserved for direct   recruits by  competitive  examination  through  the recruitment agency, viz., Railway Service Commission and 80% for promotees. [2]  Vacancies in  the posts of Senior Clerks arising on and from October  1, 1980  were 57.5%.  O them  20% would  go to direct recruits and 80% to promotees. [3]  Among the  in-service graduates  out  of  80%,  13.1/3% posts are reserved for graduate Clerks [Grade II]. They were eligible for  competition  as  open  candidates  subject  to relaxation of  age qualification. The unfilled posts will be thrown open to open market candidates. [4]  The balance  vacancies would be available to in-service non-graduate  candidates.   Senior-cum-suitability  was  the basis on  which they  were entitled  to  be  considered  for promotion. [5]  For the  vacancies which  had arisen  after October  2, 1980, 13.1/3%  and 10%  were reserved  for graduates Clerks, [Grade II]  subject to  their availability.  They  would  be recruited on  the principle of seniority-cum-suitability. If no suitable  in-service candidate  is available  the balance vacancies will  be filled  up along  with 10%  vacancies  by

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

candidates from open market. 80% vacancies will be available to  non   graduates,  senority-cum-suitability   being   the principle for  promotion of  non-graduate Clerks, [Grade II] also. [6]  As  one   time  measure,  recruitment  through  Railway Service  Commission   was   dispensed   with   and   limited recruitment by departmental competitive examination would be conducted for selection of the graduate Grade II Clerks. [7]  All in-service graduate Clerks, [Grade II] appointed to Grade I  scale would get only pro forma promotion as Grade I Clerks from  October 1,  1980 without  any monetary benefits except for  the purposes  of pension.  They are  entitled to emoluments with effect from the date they actually took over the  charge.  It  would  be  available  for  computation  of pensionary benefits.  The inter se seniority would be as per para 302  i.e., the  date of  seniority in  the grade is the date of  appointment to  a post  in that grade. The grant of higher pay,  as a  rule, does not confer seniority above the existing incumbents  regularly appointed  to the post. Among direct recruits  and promotees,  the date  of  joining.  The working post   is  the date for the direct recruits and date of regular  promotion, after  completion of  the process  to order promotion,  is the  date for  the promotees.  Inter se seniority is  alternative, i.e.,  promotee first  and direct recruit would  be below  him and  the same would continue in the order  of merit  in the  respective lists and the roster maintained by  the Railway  Administration. In  other  words promotee would be senior to direct recruits.      It is  seen that  such of  the graduate  Clerks  though appointed as  Grade II  Clerks  after  October  1,  1980  by process of selection through open competitive examination or limited  recruitment   by  departmental   examination   were upgraded under  the aforesaid  rules, they would not get the promotion with  effect from the pro forma date of October 1, 1980 but  only from  the date of their actual appointment as Grade II  Clerks, nationally  as Grade  I Clerks since their appointments  are  after  October  1,  1980.  The  inter  se seniority of  the 20%  direct recruits  on the  one hand and limited recruitment  graduate Grade  II Clerks and promotees on the  other, shall  be determined  in accordance with para 302 of  the Railway  Establishment [Volume  I] in the manner indicated above.      We have  yet  another  source  who  claim  parity  with others. They  are ad hoc appointees de hors  the rules. They are  the   appellant  in   C.A.  Nos.@  SLP  Nos.2473-77/95. Admittedly,  they   were  appointed   de  hors   the  rules. Therefore, they can get seniority not from the date of their initial appointment  but from  the date  on which they are a 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 and they  would be  junior to  in-service as  well as direct recruit-candidates.  The   inter  se   seniority  should  be reckoned accordingly.      It would  be  clear  that  the  directions  in  various letters of  the Board  should be  worked out  in  the  above manner and the seniority should be determined accordingly.      Before parting  with these  appeals, we place on record the valuable assistance rendered by S/Shri Dushyant Dave and Rajiv Dhavan,  learned senior  counsel  for  the  respective direct recruit-graduate  Grade II Clerks and promotee Junior Clerks. But  for the  private parties fighting in this case, we would not have received such an assistance to clarify the above legal position. Had it been by the Union as usually we come  across,   it  would  have  been  difficult  since  the

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

assistance is  scanty. This  unhappy  situation  would  have resulted in  injustice to  several persons.  It is  our  sad experience that in some cases even after reserving the cases for judgment  and  directing  them  to  give  their  written arguments no  one would  take responsibility  to assist  the Court. We  hope that  the Union  of India  and  the  Railway Administration would  take steps  to see  that necessary and needed assistance  would  forthcome  to  the  Court  or  the Tribunal to  avoid undue  burden on  this Court  for  proper adjudication  of   disputes.  We  hope  that  this  unsavory situation would  not be repeated hereafter. We indicate that they should  make a particular officer responsible to assist the counsel  appearing for them by placing all the necessary rules or  instructions so  as to  enable this  Court or  the Tribunal  to   adjudicate  the  disputes  and  reach  proper decision expeditiously.      The appeals  are disposed  of accordingly  but, in  the circumstances, without costs.