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TMI Blog2001 (5) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... e the same and grant leave therein. 2. The inter se seniority in the cadre of Senior Clerk under the Railway Administration between the promotees from the grade of Office Clark (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 chard of Senior Clerk, whereas, according to the Railway Administrations 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. This the sole question that arises for consideration is whether the services rendered by the promotees on ad hoc basis in the post Senior Clerk can be allowed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 4. 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 chard 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 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. 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 the same they should be put in alternate positions the promotes 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise, 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 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 filing 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant can be superseded when he/she is declared unfit for holding a promotional post. The rules also further provide than 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Clark 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 Biha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that merely because a suitability test had not 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 condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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