IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10659 of 2008 ***** SHRI ANIL KUMAR, SON OF SHRI GAJENDRA SHARMA, RESIDENT OF BIRLA COLONY, PHULWARISHARIF, PATNA, WORKING AS J.E.I. (DRAWING), E.C.RAILWAY, DANAPUR. …. …. Petitioner Versus 1.THE UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAZIPUR. 2. THE DIVISIONAL RAILWAY MANAGER, EAST CENTRAL RAILWAY, DANAPUR. 3. THE SENIOR DIVISIONAL PERSONAL OFFICER, E.C.RAILWAY, DANAPUR. 4. THE SENIOR DIVISIONAL ENGINEER, CO-ORDINATION, E.C. RAILWAY, DANAPUR. 5. SHRI K.C. VERMA, SECTION ENGINEER, (DRAWING), E.C. RAILWAY, DANAPUR. …. …. Respondents ----------- For the Petitioner : Mr. M.P.Dixit, Advocate Mr. Nityanand Mishra, Advocate For the Respondents : Mr. Mahesh Prasad, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 15th December, 2008. We heard the counsel for the petitioner. The Tribunal has held that the case of the petitioner was devoid of any substance in the light of the decision given by the Tribunal in the case of Giridhar Prasad vs, Union of India and others, 1996(2) SLJ (CAT) 38. In paragraph 15 of the report the Tribunal considered the matter thus: - “15. This matter stands settled by this Tribunal by order of Division Bench in the case of Giridhar Prasad vs. Union of India and others. 1996(2) SLJ (CAT) 38. It may be mentioned here that it has been pointed out that it is the - 2 - same Giridhar Prasad, whose name figures in the written statement of R/5 claiming that his case was the same as that of the applicant but he had been held to be junior to R5 Giridhar Prasad had claimed seniority over certain persons including R5 who was also a party to the case aforesaid. Similarly, Giridhar Prasad was posted to work as ADM in the scale of Rs.1200-2040, on ad hoc basis prior to joining of R5 at Danapur on his own request accepting bottom seniority in his cadre. After dealing with the cases of the respective parties including that of Giridhar Prasad and K.C.Verma, who is R5 in this application, the Hon‟ble Members of this Tribunal had held as follows:- “10. We have carefully considered the submissions of Shri N.G.Mishra and Shri Gautam Bose, learned counsel for the petitioner and the respondents respectively. We are of the view that the applicant is not entitled to succeed. It is specifically mentioned in the Office Order No.934 of 1986 dated 2.9.86 which had conferred ad hoc appointment to the applicant that the applicant along with others cannot claim seniority over those who get promotion on account of possessing qualifications and on account of passing examination. It is further stipulated that the promotion of the applicant is both temporary and ad hoc although he shall receive salary of the post after taking over charge. This stipulation categorically defeats the claim of the applicant for seniority in the cadre of Assistant Draftsmen over and above those who are promoted on account of fulfilling the criteria. We are satisfied that Assistant „Draftsman is a superior post and grade. Annexure-3 had clearly stipulated that the existing incumbents of tracers of all the four disciplines will be promoted in the following manner:- (i) Those who possess the diploma in Draftsmanship from recognised institutions will be upgraded as Junior Draftsman scale Rs.330-560. (ii) Those who do not possess diploma in Drafsmanship but have completed 5 years of service as on 1.1.84 will be upgraded as Junior Draftsman in scale of Rs.330-560. (iii) The balance non-qualified Tracers will be progressively promoted by upgrading their posts as Junior Draftsman (Rs.330-560) as an when they complete 5 years of service or acquire the - 3 - necessary qualification. The review will be done every six months commencing from 1.7.86. (iv) The vacancies which occur in the normal course in scale Rs.330-560 will continue to be filled as per existing pattern.” “The applicant did not come under the first category. He came in the second category as are others. Therefore, the seniority of those who are promoted to Assistant Draftsman shall be governed by condition No.(ii). It is settled law that seniority in the promoted grade will count from the date from which the incumbent gets promoted. Persons who get promoted earlier will rank senior to that person who get promoted later. As the applicant under condition No.(ii) completed five years of service on 21.3.89 he was junior to Shri S.S.D.Gupta who completed five of service on 5.3.89 and also junior to Shri R.K.Pandey who completed five years of service on 26.12.88. The question now is whether ad hoc service should be counted for seniority. This matter is settled by the Hon‟ble Supreme Court in the case of Direct Recruit Class II Engineering Officers‟ Association and Others vs. State of Maharashtra and Others; JT 1990 (2) Supreme Court 264, wherein their Lordships have held that “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 regularization of his service in accordance with the rules, the period of officiating service will be counted.” No doubt the applicant‟s case derives lot of strength from these observations, but para 13 of the Judgment at page 271 their Lordships observed as under:- “The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible - 4 - candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority……. “In the ad hoc appointment of the applicant the Railway Board‟s letter dated 25.6.85 was not considered as a test to decide whether the applicant is fit for promotion to the cadre of Assistant Draftsman. Secondly, all other eligible candidates were not also considered along with the applicant when such ad hoc appointment was made. Further the appointment order itself contained stipulation about the purely temporary and ad hoc nature without any prescriptive right for seniority. This principle also has been considered at a great length in OA 409 of 1992 – Mr. Bachey Lal Yadav and Another v. Union of India and Others by the CAT, Patna Bench, in which one of use, Shri A.K. Sinha, was a Member.” So holding, this Bench had rejected the claim of seniority of Giridhar Prasad.” 4. Counsel for the petitioner is not able to show that the case of Giridhar Prasad is not applicable to the petitioner. 3. Consequently, the writ petition has not merit. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-