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PETITIONER: T.  VIJAYAN AND ORS.

       Vs.

RESPONDENT: DIV.  RAILWAY MANAGER AND ORS.

DATE OF JUDGMENT:       15/04/2000

BENCH: D.P.Wadhwa, S.S.Ahmad

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.

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The  Tribunal  found that the placement of appellants  below 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

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vide letter dated 18.7.1990 issued by the Divisional Officer 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

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should  be  ordered only from amongst senior  most  suitable 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,

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inter alia, to the finalisation of the selection to the post 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

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by  the  ‘rules’  and  the   latter  expression  ‘till   the 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.