Supreme Court of India

Swapan Kumar Pal & Ors vs Samitabhar Chakraborty & Ors on 9 May, 2001

Equivalent citations: AIR 2001 SUPREME COURT 2353, 2001 (5) SCC 581, 2001 AIR SCW 2223, 2001 LAB. I. C. 2076, 2001 (3) SERVLJ 1 SC, 2001 (1) JT (SUPP) 449, 2001 (4) SCALE 85, 2001 (3) LRI 62, 2001 (6) SRJ 249, (2001) 3 SERVLJ 1, 2001 SCC (L&S) 880, (2001) 3 LAB LN 5, (2001) 2 SCT 1104, (2001) 4 SERVLR 654, (2001) 4 SUPREME 200, (2001) 4 SCALE 85

Author:
B.N. Agrawal

Bench:
B.N. Agrawal

CASE NO.:
Appeal (civil) 247 of 1997

PETITIONER:
SWAPAN KUMAR PAL & ORS.

Vs.

RESPONDENT:
SAMITABHAR CHAKRABORTY & ORS.

DATE OF JUDGMENT: 09/05/2001

BENCH:
G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

WithCivil Appeal No. 3767/2001.

[@ Petition for Special Leave to Appeal (Civil) No. 6089 of 1998]
(With Appln. For condonation of delay in filing SLP)

JUDGMENT

PATTANAIK,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The appeal filed by the private persons and the Special
Leave Petition filed by the Union of India, are directed
against one and the same judgment of the Central
Administrative Tribunal, Calcutta Bench in O.A. No.1360 of
1990. Though, the special leave petition by the Union of
India is barred by limitation, but in view of the fact that
the leave has been granted by this Court at the instance of
the private persons and the judgment of the tribunal is
under challenge in appeal, it would be meet and proper to
condone the delay in filing the special leave petition, and
we accordingly condone the same and grant leave therein.

The inter se seniority in the cadre of Senior Clerk
under the Railway Administration between the promotees from
the grade of Office Clerk (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 cadre of Senior
Clerk, whereas, according to the Railway Administration 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. Thus, the sole question that arises for
consideration is whether the services rendered by the
promotees on ad hoc basis in the post of Senior Clerk can be
allowed to be counted for the purpose of their seniority in
the cadre of Senior Clerk?

The cadre of Office Clerk in the scale of Rs.950-1500 is
filled up, 66-2/3% by direct recruitment through the agency
of the Railway Recruitment Board and 33-1/3% by promotion by
selection of specified Group D staff, the minimum
educational qualification for a direct recruit being
matriculate or its equivalent examination with not less than
50% marks in the aggregate. The next promotional post is
the senior clerk in the scale of pay of Rs.1200-2040. Under
the Railway Establishment Manual, Paragraph (174), of the
total vacancies in the grade, 20% of the posts are filled up
by direct recruitment through the Agency of the Railway
Recruitment Board, 13-1/3% through a limited departmental
competitive examination from amongst the serving graduates
clerks in the scale of pay of Rs. 950-1500 through the
agency of the Railway Recruitment Board and 66-2/3% are
filled up by promotion from the Office Clerks. The present
appellants were appointed on different dates as Office
Clerks (Clerk Grade II) in the year 1981-82, and all of them
are graduates. The private respondents were non-graduates
and were serving as Office Clerks in the scale of pay of
Rs.950- 1500. On diverse dates between 9.12.1982 to
07.1.1984, these private respondents were promoted to the
post of Senior Clerk on ad hoc basis, as no regular
recruitment could be made by holding suitability test,
because of certain stay orders passed by different Courts.
On 18.1.85, the appellants were declared suitable for
promotion to the grade of Senior Clerk against 13-1/3% meant
for in-service graduate office clerks. The suitability test
of the private respondents, who had been promoted on ad hoc
basis was held and the result was declared on 28.2.1985.
The Railway Administration published a seniority list on
01.01.88, but the same had not been prepared in accordance
with the relevant provisions for determination of seniority,
as contained in paragraph 302 of the Railway Establishment
Manual. A revised seniority list, therefore, was prepared
on 02.11.89, in which list, the appellants were shown senior
to the private respondents in the cadre of Senior Clerk, on
the basis of the date of regular promotion, after due
process of selection. The private respondents herein,
challenged the legality of the aforesaid seniority list by
filing O.A. 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.

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
tribunal, therefore, committed serious error in counting the
said ad hoc period and directing the private respondents to
be senior to the appellants. It is further contended that
the promotion of a railway servant to fill any post, whether
a selection post or a non-selection post being subject to
his found fit and only after passing the test, which is
condition precedent for being considered fit to hold the
promotional post and such a test in case of promotees having
been made only in the year 1985 and the results thereof
having been declared only on 28.2.1985, so far as the
private respondents are concerned, the period prior to that
date, during which they were holding the promotional post on
ad hoc basis, could not have been counted for determining
their seniority in the cadre of Senior Clerk and the
impugned order of the tribunal, therefore is erroneous. It
was then contended that in view of the provisions contained
in the Railway Establishment Manual, providing the procedure
for promotion to the post of Senior Clerk, the ad hoc
promotion given to the private respondents cannot, but be
held to be promotion de hors the rules, and the conclusion
of the tribunal to the contrary, solely on the ground that
the suitability test had not been held at regular intervals,
as provided in paragraph 214(c)(v) of the rules and the
employees had no fault, is erroneous. Lastly, it is
contended that in view of the decision of this Court in the
case of
Anuradha Mukherjee and Ors. vs. Union of India and
Ors.
, 1996(9) S.C.C. 59, clearly indicating that ad hoc
appointees being appointees de hors the rules, cannot get
their seniority from the date of their ad hoc appointment,
but only from the date on which they were actually selected
and appointed, in accordance with the rules, interpreting
the very provisions of the Railway Establishment Manual, the
impugned decision of tribunal is unsustainable.

Mr. P.P. Rao, the learned senior counsel, appearing
for the private respondents, on the other hand contended
that inaction on the part of the Railway Administration, to
hold the suitability test for adjudging the eligibility of
the Office Clerks for promotion to the post of Senior Clerk
against their quota of 66-2/3% and the promotions granted to
such office clerks on ad hoc basis, who were eligible and
found suitable, cannot be a ground for not counting the ad
hoc period for 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
cadre 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 the 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 them and in
fact, there having been no impediment for granting regular
promotion, which was not done because of the latches on the
part of the Railway Administration in holding the
suitability test, there is no rhyme or reason, not to count
the ad hoc services for the purposes of seniority in the
promoted cadre of Senior Clerk. Mr. Rao urged that the
decision of this Court in
Anuradha Mukherjees
case will
have no application to the case in hand as the Court
in that
case
was not dealing with the fact situation, where the
Administration is guilty of not having the suitability test
at regular intervals, as required under the Establishment
Manual. Mr. Rao lastly submitted that during the pendency
of this appeal, the competent authority having approved and
regularised the ad hoc officiating promotion, as a one time
measure and as a special case, as per the letter of the
Chief Personnel Officer dated 17th July, 2000, in the eye of
law, it cannot be said that they continued as ad hoc, and
therefore, the conclusion of the tribunal is unassailable.

In view of the rival submissions made by the counsel for
the parties, the following questions arise for our
consideration:

(a) What is the Rule, which governs the inter se
seniority between the two competitive claimants in the cadre
of Senior Clerk?

(b) The so-called ad hoc promotion of the respondents to
the cadre of Senior Clerk, whether can be held to be a
regular promotion, after due process of selection, merely
because the suitability test had not been held at regular
intervals, as was required to be held under paragraph
214(c)(v) of the Railway Establishment Manual?

(c) Is it possible to hold that on regular promotion
being given, after adjudging the suitability of the ad hoc
employees by holding test, it dates back to the date of ad
hoc promotion?

(d) Can it be said that the earlier decision of this
Court in
Anuradha Mukherjees
case, will have no application
to the fact situation of the present case?

So far as the first question is concerned, the post of
Senior Clerk in the scale of pay of Rs.1200-2040 being
filled up by direct recruitment, by promotion and by limited
departmental competitive examination from amongst serving
graduates, the provisions of paragraph 302 of the IREM would
govern the seniority in the grade. The aforesaid provision
is extracted herein below in extenso:

302. 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
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 recruit shall be
the date he would have normally come to a working post after
completion of the prescribed period of training.

On a plain reading of the aforesaid provision, it is
crystal clear that date of regular promotion after due
process of selection would be the date from which seniority
in the cadre of Senior Clerk would count. In the case in
hand, the appointment of the respondents in the cadre of
Senior Clerk against 66-2/3% quota as well as the
appointment of the appellants in the said grade against
13-1/3% quota, through limited departmental competitive
examination are by way of promotion from the cadre of Office
Clerk. The inter se seniority, therefore, of these two
category of personnel in the cadre of Senior Clerk, would be
from the date on which each one of them were promoted after
their regular selection by due process of selection. In
other words, when promotion is given after holding the
suitability test, on adjudging the suitability of the
employee, then the promotion can be held to be a regular
promotion and not earlier. In the case in hand, so far as
the appellants are concerned, the relevant date would be
18.1.1985 and so far as the respondents are concerned, the
relevant date would be 28.2.1985. The ad hoc services
rendered by the respondents for different periods from
9.12.1982 till they were regularly absorbed on adjudging
their suitability by holding test, cannot be reckoned for
the purposes of their seniority in the cadre of senior
clerk. The conclusion of the tribunal is contrary to the
aforesaid provision of the Railway Establishment Manual and
cannot be sustained.

Coming to the second question, the relevant provision
dealing with this aspect is paragraph 214 of the Railway
Establishment Manual. Paragraph 213 also deals with the
question of promotion. Both the above-said paragraphs are
quoted herein below in extenso:

213. Promotion.

(a) A Railway servant may be promoted to fill any post
whether a selection post or a non- selection post only if he
is considered fit to perform the duties attached to the
post. The General Manager or the Head of Department or
Divisional Railway Manager may prescribe the passing of
specified departmental or other tests as conditions
precedent to a Railway servant being considered fit to hold
specified post; such rules should be published for the
information of the staff concerned.

(b) Unless specifically provided otherwise, 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 filling 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. The condition of two years service should
stand fulfilled at the time of actual promotion and not
necessarily at the stage of consideration.

(ii)The number of eligible staff called for
consideration should be equal to the number of existing
vacancies plus those anticipated during the next four months
due to normal wastage (i.e. retirement/superannuation),
likely acceptance of request for voluntary retirement, staff
approved to go on deputation to other units, staff already
empanelled for the ex-cadre posts, creation of additional
posts already sanctioned by the competent authority, and
staff likely to go out on transfer to other
Railways/Divisions.

(iii)Where non-selection posts are filled from different
categories of staff, no hard and fast limits need be
prescribed as to the number of the candidates to be admitted
from each eligible category. In cases where posts are to be
filled on the quota basis it should be ensured that each
category is adequately represented within the overall number
of candidates called up. Employees passing the suitability
test should only be placed in the select list. Employees
not qualifying in the test should not be taken merely to
make up the quota fixed.

(iv)An employee who has passed a suitability test once
need not be called for the test again and should be eligible
for promotion as and when vacancies arise.

(v)A suitability test should be held at the interval
which should not be less than six months. All the eligible
candidates as per their seniority including those who failed
at the last test should be called. The period of six months
is reckoned from the date of announcement of the result.

(vi)If an employee fails in a suitability test but is
called up again, a suitability test, after a time lag of six
months and he passes the same, he should be given preference
over his junior who had passed the suitability test earlier
than him but is still waiting to be promoted for want of a
vacancy.

It is thus apparent that a promotion can be given only
when the employee concerned is considered fit to perform the
duties of the higher post and a person can be considered fit
only after he passes the prescribed test held for the
purpose. The post of Senior Clerk being a non-selection
post, it is required to be filled up by promotion of the
senior-most suitable railway servant in the feeder cadre. A
senior railway servant can be superseded when he/she is
declared unfit for holding a promotional post. The rules
also further provide that 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(c)(iii) is held and the concerned employee
qualifies the said test. It is necessary in this connection
to notice some of the decisions relied upon by Mr. Rao,
appearing for the respondents, in support of the conclusion
of the tribunal that the suitability test not having been
held earlier, ad hoc promotion must be held to be regular
promotion.
The first case which Mr. Rao relied upon is the
case of
G.P.Doval and Ors. vs. The Chief Secretary,
Government of U.P.
and ors., 1985(1) S.C.R.70. In the said
case, the inter-se seniority amongst the Khandsari
Inspectors was the subject matter of dispute. There was no
rule, governing the inter se seniority and in the absence of
any specific rule of seniority, governing a cadre of a
service, the Court held that length of continuous
officiation will provide a more objective and fair rule of
seniority. It is in this context, this Court had observed
that if a stop-gap appointment is made and the appointee
appears before the Public Service Commission, when the
latter proceeds to select the candidates and is selected,
there is no justification for ignoring his past service.
But this decision will have no application where a rule
subsists, governing the inter se seniority in a cadre and in
the case in hand, the rule is paragraph 302 of the IREM.
Therefore, the general principles enunciated in the
aforesaid decision will have no application.
The next case
relied upon by Mr. Rao was the case of S.L.Kaul and Ors.
vs. Secretary to Govt. of India, Ministry of Information
and Broadcasting, New Delhi and Ors., 1989 Supp.(1) S.C.C.

147. In this case, the seniority in the cadre of Monitor in
All India Radio was the subject matter for consideration.
The post of Monitor was upgraded and made equivalent to the
post of Central Information Service Grade IV and was
re-designated as Sub- Editors (Monitoring). The Central
Government did the upgradation and enhancement of pay by
order dated 29th June, 1968. But the relevant schedule was
amended and the posts were included in the Central
Information Service Grade IV by Notification dated 9th May,
1972. It is in this context, this court held that the
Monitors in All India Radio could be legitimately held to be
in Central Information Service Grade IV w.e.f. 29.6.1968
and not from 09.5.1972, as they had been inducted into Grade
IV of the Central Information Service from 29th June, 1968,
when the post was brought at par with 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
Clerk 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 Bihar and Ors.,1996
(11) S.C.C. 342. In this
case the year of allotment of an officer was the subject
matter of consideration. The concerned authority had
committed error by not preparing the select list for the
year 1983 and pursuant to the directions of the Supreme
Court, the appropriate authority on re-consideration,
included the names in the select list for the year 1986.
The Court on consideration of the facts of that case came to
hold that in the eye of law, the select list can be held to
be a select list for the year 1983 and, therefore, the year
of allotment of the employee concerned is required to be
determined on the basis that he was in the select list for
the year 1983, though that list was prepared in the year
1985 and was approved by the Union Public Service Commission
in the year 1986. We fail to understand, how the aforesaid
judgment will be of any application to the case in hand,
when because of interim direction in pending cases, regular
promotion had not been given and the cadre of Senior Clerk
was being managed by granting ad hoc promotion to the
respondents.
The next case relied upon by Mr. Rao is the
case of Suraj Parkash Gupta and Ors. vs. State of J & K
and Ors., 2000(7) S.C.C. 561. In the aforesaid case, on
consideration of the relevant rules governing the service
conditions of the Assistant Engineers of the J & K
Government, the Court had observed that ad hoc or temporary
service of a person, appointed by transfer as an Assistant
Engineer or by promotion as an Assistant Executive Engineer
can be regularised through the Publics Service Commission
and Departmental Promotion Committee from an anterior date
in a clear vacancy in his quota, if he is eligible and found
suitable for such transfer or promotion, as the case may be,
and his seniority will count from that date. The aforesaid
conclusion was drawn because of the provisions of Rule 23
and Rule 15 of the J & K Rules but in the case in hand,
there is no provision, which has been brought to our notice,
which enables the appointing authority to regularise a
promotion from an anterior date, though the suitability test
is held at a later date. In the absence of any such
provision in the rules in question, the ratio of the
aforesaid decision, on interpretation of the relevant rules
of J & K Engineering Rules will have no application. In the
aforesaid premises, we have no hesitation in coming to the
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 conditions are governed by a
set of rules, in the absence of any rules, it is difficult
to hold that regular promotion would date back to the date
of ad hoc promotion itself. We, therefore, answer the
question in the negative.

So far as the earlier decision of this Court in
Anuradha
Mukherjees
case, [1996 (9) S.C.C. 59], is concerned, to
which, one of us (G.B.Pattanaik, J), was a party, the Court
was considering the question of seniority in the very cadre,
as in the case in hand. On consideration of the relevant
provisions, it did consider the case of appointees de hors
the rules, in paragraph 15 of
the said judgment
, and it was
held that appointees de hors the rules can get seniority not
from their initial appointment, but from the date on which
they are 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.

Mr. Rao contends that in the case of
Anuradha
Mukherjees
case, the Court had never faced the question of
non-holding of suitability test, as required under law. But
that in our view, will not change the effect of the
judgment. The ad hoc promotion made in the present case,
without holding any test for adjudging the suitability, has
to be held promotion/appointment de hors the rules, and
therefore, the ratio of the aforesaid judgment would apply
also to the case in hand. Consequently, any period served
by any promotee prior to 28.2.1985 on ad hoc basis cannot be
counted for the purposes of seniority in the cadre of Senior
Clerk.

In view of our conclusion on the aforesaid four
questions, we unhesitatingly hold that the impugned judgment
of the tribunal is wholly unsustainable in law, and we ,
accordingly set aside the same. Necessarily, therefore, the
seniority list as on 01.6.1989 and published on 02.11.1989
is affirmed and O.A.No. 1360 of 1990 stands dismissed.

Before we part with this case, it would be necessary
also to examine a situation which arises subsequent to the
impugned judgment of the tribunal, while the appeal was
pending in this Court. On behalf of the respondents, an
interlocutory application had been filed, appending the
letters dated 25.2.1999 and 17.7.2000. Mr. P.P. Rao, the
learned senior counsel, appearing for the respondents placed
reliance on the aforesaid document dated 17.7.2000 and
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
Establishment Manual, which we have already considered and
answered. Then again, from the aforesaid letter of approval
dated 17.7.2000, it is not clearly discernible, as to
whether under the order in question, it is the service of
these respondents which was sought to be regularised. We
need not further delve into the matter, as in our view the
so-called regularisation of ad hoc officiating promotion
would only confer the retiral benefit to the concerned
employees and would not count for the purposes of seniority
in the cadre which has to be determined in accordance with
the rules, as already discussed. These appeals are
accordingly allowed. There would be no order as to costs.