IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 15374 of 1999 Between: Sanathan Goud S/o.Late Somanath Goud O/o. The Medical Director , Railway Hospital Lalaguda , Secunderabad. R/o.Secunderabad. ..... PETITIONER AND 1 The Union Of india Rep by its General Manager south Central railways, Rail Nilayam Lalaguda , Secunderabad. 2 The Chief Personnel Officer South Central Railway , Rail Nilayam Lalaguda , Secunderabad. 3 The Asst.Personnel Officer South Central Railway , Head quarters Office Personnel Branch , Secunderabad. 4 The Mediacl director South Central Railway , Rail Nilayam Lalaguda , Secunderabad. 5 Fraices Anurew James S/o. F.Harry M.D.Office , South Central Railway , Railway Hospital Lalaguda , Secunderabad. 6 The Registrar , CAT Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to To issue a writ order or direction more particularly in the nature of writ of Certiorari. a). calling for all the relevant and connected records relating to the judgement Dt: 5-3-99 in O.A.No.780/97 on the file of the Central Administrative Tribunal , Hyderabad Bench , Hyderabad and quash or set aside the same holding it at unjust and unsustainable. b). Consequently direct the respondents to regularise the services of the petitioner adopting the same principles of one time dispensation as has been followed by the South Central Railway in certain cases. c). Consequently direct the respondents to release all the benefits pecuniary and others like consideration for further promotion etc. that flow out od such a regularisation and pass scuh other or further order or orders. Counsel for the Petitioner:MR.SIVA Counsel for the Respondent No.: MR.R.S.MURTHY The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 15374 of 1999 Oral Order : (Per Sri GM, J ) This Writ Petition has been filed challenging the order dated 5-3-1999 in O.A.No.780 of 1997 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad and consequently seeks direction to regularize the service of the petitioner adopting the same principles of one time dispensation as has been followed by the South Central Railway in certain cases, and to release all consequential benefits. The petitioner, ( hereinafter referred to as “ the applicant” ) while working as Peon, was promoted purely on adhoc basis as Office Clerk with effect from 13-2- 1989 in the respondents-South Central Railway. The applicant’s adhoc promotion was continued from time to time. On 20-3-1995, the applicant submitted a representation to the authorities for regularization of his services in the cadre of Clerk. His representation was not considered, therefore, the applicant approached the Tribunal in O.A.No.1052 of 1995 and the same was disposed of directing the respondents-South Central Railway to consider the representation of the applicant. Accordingly, the respondents disposed of the representation of the applicant and informed him that regularization was not permissible. The applicant again approached the Tribunal and the Tribunal directed the respondents to take a decision on the representation of the applicant within a period of two months. The respondents rejected the claim of the applicant, by their order dated 5-7-1996. Against the said order of rejection dated 5-7-1996, the applicant approached the Tribunal in O.A.No.938 of 1996. On 8-8-1996 the said O.A. was disposed of with an observation that it was open to him to qualify at future selections and avail of the opportunity of promotion if he successfully clears the selections. It is stated that the applicant failed to qualify himself in the examination for promotion as Clerk, and on the other hand he submitted a representation dated 20-12-1996 seeking regularization. The 4th respondent sent the recommendation letter to the 2nd respondent through his letter dated 31-12-1996. In the meanwhile, the respondent- authorities by their order dated 16-6-1997 reverted the applicant to the post of Peon in the scale of pay of Rs.750-940/-. The applicant therefore filed the present O.A. challenging the reversion order dated 16-6-1997 as illegal, arbitrary and violation of Article 14 and 16 of the Constitution of India and to regularize his services as Junior clerk in the office of the 4th respondent. The Tribunal on consideration of the material available on record opined that as the applicant is being continued as an adhoc employee as Junior Clerk, no positive direction can be given in this regard and therefore dismissed the O.A. Hence, this writ petition. Sri Shiva, learned counsel for the petitioner strenuously contends that the petitioner was promoted on adhoc basis on 13-2-1989, and as per the scheme formulated by the Railway Board governing in situ promotions vide letter dated 5-5-1992 of the Railway Board, an employee who has been directly recruited to a member post and does not get promotions to the next higher post even after completion of one year of attaining the higher stage in that pay scale, he could be promoted to the next promotion scale. It is further submitted by the learned counsel that with regard to similarly placed persons one time concession was given by the Chief Personnel Office vide letter dated 14-3-1988 dispensing the requirement to pass the examination. The petitioner is presently continuing as an Office Clerk without there being any break and as per the exigency of the work, it shall be presumed that there is vacancy of Office Clerk in view of the fact that the applicant has been continuing in the post. Learned counsel relied on the decision reported in M.A. HAMEED v. STATE OF A.P. ( (1) 2001(9) SCC 261). There is no dispute with regard to the proposition laid down in this judgment. Sri R.S. Murthy, learned Standing Counsel appearing for the respondents- Railways would contend that the Tribunal has not committed any jurisdictional error warranting interference of this Court, since as per the exigency of the work the applicant has been continuing as a Office Clerk from 1989 till date, and hence, no positive direction can be given to the respondents to regularize the services of the applicant in the cadre of Office Clerk. On hearing the learned counsel on either side and on perusal of the material available on record, it is seen that the applicant wrote examination on two occasions but he failed to qualify the examination for promotion to the cadre of Junior Clerk. Again in the year 1998 though the applicant was permitted to sit for the examination, he did not appear for the examination. Since the adhoc promotion cannot give any right to continue in that post on regular basis, the Tribunal declined to entertain the O.A. That apart, the applicant’s case has not been stagnated in the maximum scale of pay for more than a year and therefore the applicant cannot aspire for in-situ promotion for higher scale. The applicant was promoted as Clerk purely on adhoc measure, and though he was permitted to appear for the qualifying examination, the applicant failed to qualify himself and in the year 1998 the applicant did not appear for the examination. The Tribunal therefore came to the conclusion that he cannot be promoted as Junior Clerk on the premise that he worked on temporary basis. It was also further observed by the Tribunal that if the applicant is the senior most eligible for consideration for adhoc promotion to the post of Junior Clerk, his case should not be left out in future if such a situation arises. Considering the these circumstances, we do not see any ground to interfere with the order passed by the Tribunal. The Writ Petition is meritless and is dismissed. No costs. Before parting with the case we are constrained to observe that the respondents-authorities have to act as a model employer. The action of the respondents in allowing the applicant to continue in service for such a long period on adhoc basis as office Clerk and thus extracting the work in the higher category would make it clear that the respondents-Railway did not adhere to their own manual. It is also brought to our notice that the with regard to similarly situated persons like the petitioner, the appointments and promotions, which were made contrary to Railway Manual, were made and ratified without following the relevant recruitment rules and the procedure contemplated there under, contrary to the decisions of the Apex Court in this regard. Hence we deprecate the action of the respondent-Railways, and hope that the Railways would follow the recruitment rules in this regard. _____________ GM, J _____________ SK, J Dt: 11/2/2009 KK