Central Administrative Tribunal - Delhi
Trilok Chand S/O Shri Mohan Lal vs Union Of India Through The General ... on 10 April, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1000/2012 New Delhi this the 10th day of April, 2013 Honble Smt. Manjulika Gautam, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Trilok Chand S/o Shri Mohan Lal, R/o B-1745, Near Shiv Mandir, Shastri Nagar, New Delhi-52 Applicant (By Advocate Shri Yogesh Sharma) VERSUS 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Delhi Division, State Entry Road, New Delhi. 3. The Assistant Personnel Officer, Northern Railway, Delhi Division, State Entry Road, New Delhi. Respondents (By Advocate Shri P.K.Yadav ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
As has been alluded in the Original Application, the applicant was initially appointed in Bikaner Division of Northern Railway as Khallasi in the year 1974. He got promotions as Painter, Grade-III, Painter, Grade-II and Painter, Grade-1 in the said division itself w.e.f. 25.10.1983, 01.01.1991 and 25.02.1996 respectively. From 1.04.2003 a segment of Bikaner Division, i.e. Khalilpur to Delhi Sarai Rohilla, was segregated from Bikaner Division and merged in Delhi Division. The staff deployed in the segment so merged was deemed as transferred to Delhi Division on as is whereas basis. Since, as on the relevant date, applicant was also posted in the segment merged in Delhi Division, he was also deemed transferred from Bikaner Division to Delhi Division. In the seniority list OA 1000/2012 of Painter Grade-1 (Engg.) in pay scale Rs.4500-7000 (RSRP) in the Delhi Division issued on 3.01.2007, the applicant was placed at serial No.10. Being dissatisfied with the fixation of his seniority, he made a representation dated 25.01.2007 to Senior Divisional Personnel Officer, Northern Railway (Delhi Division) espousing that he had been promoted as Painter Grade-1 on 20.02.1996, thus was entitled to promotion to the post of MCM w.e.f. 1.11.2003. He also pressed for removal of anomaly in his seniority position and to assign him correct seniority as Painter, Grade-1. In acceptance of his request, the concerned authority changed his seniority position from serial No. 10 to 1 in the seniority list issued on 25.09.2008 (Annexure A/9). On the basis of seniority assigned to him in the seniority list dated 25.09.2008, the applicant put forth his claim for promotion as MCM by making representations dated 20.11.2008 and 12.06.2009. According to applicant, he was entitled to be promoted as MCM w.e.f. 1.11.2003. Thus vide Notice no. 847-E/565/Painter/Engg./P-4 dated 16.06.2009 (Annexure A/10), Divisional Personnel Officer, Northern Railway, New Delhi promoted him as MCM/Painter (Engg.) in pay band-II, i.e.Rs.9300-34800 plus grade pay Rs.4200/- with immediate effect and posted him in Construction Organization against the existing vacancy as advised by CAO/Cs letter No.940-E/Misc/Artisan/Const/09 dated 25.02.2009. The applicant was assigned the charge of the post of MCM w.e.f. 18.06.2009. In the seniority list of MCM issued in the year 2010, the applicant was assigned 9th position. Thereafter, the respondent No. 2 issued Notice dated 27.10.2010 (Annexure A/3) asking the applicant to show cause why his seniority as well as promotion as MCM-Painter should not be revised. In the said notice, it was alleged that the Painter, Grade-I placed at serial Nos, 2 to 10 of the seniority list dated 25.09.2008 were already working OA 1000/2012 as Painter, Grade-III at the time of promotion of applicant to said grade. For easy reference, relevant excerpt of said show cause notice are extracted hereinbelow:-
1. You were assigned seniority as Painter-I at item No. 1 vide this office notice No. 847-E/565/painter-Engg/P-4 dated 25-9-2008 whereas you were promoted as Painter-III on 25-10-1983 on Bikaner division whereas item No.2 to item No. 10 of the notice dated 25-9-2008 were already working as Painter-III from the date earlier to the date of you were promoted as Painter-III.
2. On the basis of wrong assignment of seniority of Painter-I you were erroneously promoted as MCM-Painter wef.31.12.2004 vide this office notice No.847E/565/Painter-Engg/P-4 dated 25-9-2008. In reply to show cause notice submitted on 19.01.2011, the applicant submitted that in terms of para 302 of the Indian Railway Establishment Manual (Volume I), the seniority of railway servant should be fixed on the basis of the date of entry in the grade, thus when as on 1.4.2003, he was working as Painter Grade-I on regular basis, the position assigned to him in the seniority list of Painter grade-1 dated 25-9-2008 was correct. In his reply, the applicant also took a plea that he had already been promoted as Painter, Grade-I in Bikaner division and on his deemed transferred to Delhi division, the date of his such promotion could not be altered. Having considered the reply to show cause notice, Assistant Personnel Officer, Delhi Division, Northern Railway passed order No. L.No.561-E/552/Part-II/P-4 dated 23.08.2011 (Annexure A/5) reverting the applicant to the post of Tech-1 in the pay band 1, i.e. Rs.5200-20200/- plus grade pay of Rs.2800. Questioning the show cause notice as well as the order of his reversion, applicant filed OA No.3128/2011, which was disposed of in terms of order dated 28.02.2012. Operative portion of the order reads as under:-
On face of it, it is clear that neither any reason has been assigned by the respondents as to why applicant has been reverted nor any of the contentions raised by the applicant in OA 1000/2012 his reply were taken into consideration, therefore, such an order cannot be sustained in law. The same is accordingly quashed and set aside. However, respondents are given liberty to pass fresh order within two months from the date of receipt of a copy of this order after dealing the contentions raised by the applicant in his reply, under intimation to the applicant. In implementation of the order passed by this Tribunal, the Assistant Personnel Officer, Northern Railway, DRM Office issued order no.561-E/552/Part-II/P-4 dated 16.03.2012 advising the applicant that his seniority as Painter, Grade-I was correctly altered and the order of his reversion from the post of MCM was in order. Thus the applicant filed present Original Application praying therein:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 16.3.2012, order dated 26.03.12 and impugned show cause notice dated 27.10.2010 declaring to the effect that the same are illegal, unjust, arbitrary and against the rules and consequently pass an order directing the respondent to grant all the consequential benefit to the applicant deeming no reversion order has been passed.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation. Subsequently, on issuance of the order dated 26.03.2012 the OA was amended to the effect that the said order was also challenged.
2. The salient grounds put forth by the applicant are:-
(i) the personal hearing by the Divisional Personnel Officer was mere camouflage as he only did the formality of handing over the order dated 16.03.2012 passed by APO to applicant. Besides in terms of letter dated 16.03.2012, respondent No.4 only justified the order dated 23.08.2011. The posts of Painter, Grade-I & II are in promotional hierarchy of the post of Painter, Grade-III and once the applicant had already been promoted as Painter, Grade-I in Bikaner Division long back, there can be no justification to relegate OA 1000/2012 him to the post of Painter, Grade III in Delhi Division and to remuster him first with Painter, Grade-III to determine his seniority as Painter, Grade-1.
(ii) There is no basis for the stand taken by respondents that the seniority in Delhi Division is fixed on the basis of date of joining as Tech-III. The rule and procedure for fixation of seniority is the same in all the divisions of Northern Railway.
(iii) In terms of the Para 302 of IREM (Vol. 1) as well as the Circular dated 16.03.2004, seniority of an employee should be determined in each grade on the basis of date of appointment or the length of service in the grade, thus when the applicant was deemed transferred from Bikaner Division to Delhi Division, the date of his appointment in said division should have been taken as 25.02.1996 for all purposes. There could be no justification to determine the seniority of applicant in the division of his transfer on the basis of the date of his promotion as Painter, Grade-III. All the persons shown above the applicant in the seniority list of Painter, Grade-1 issued in the year 2007 were so promoted only after the year 1996.
(iv) The order of reversion of the applicant could not have been issued by the authority lower in rank than the one who issued the order of his promotion.
(v) The impugned order is non speaking.
3. In the reply filed on behalf of respondents, it is explained that on his transfer to Delhi Division, the seniority of applicant was correctly fixed vide letter dated 3.01.2007 but in view of his representation, it could be revised incorrectly. In Delhi Division the post of Tech., Grade-III (Painter) is decentralized/ADEN-wise and the staff working in lower rank OA 1000/2012 under the respective ADENs are promoted to the post of Painter, Grade-III within the same seniority unit. The seniority of Tech. Grade-III (Painter) working under different ADENs need to be merged and the seniority of incumbent is required to be fixed as per the dates of their promotion to said grade. Since the applicant was promoted as Painter, Grade-III w.e.f. 25.10.1983, he could have been assigned the seniority from the said date alone. It is alluded in the reply filed by the respondents that General Manager (P) vide letter No. 939-E/228/New Zone/EIID dated 3.02.2005 (Annexure R/1), as a result of bifurcation of the existing division (the RE excluding DLI section of BKN Division became part of the Delhi Division w.e.f. 1.4.2003) the applicant came to Delhi division on transfer on usual terms and conditions issued following the General Manager/NRs instructions dated 13.05.2005.
4. In terms of the said letter dated 3.02.2005 (Annexure R/1), the staff transferred to Delhi Division and having divisional seniority could opt to go back in Bikaner division/NWR in their old seniority unit and if any staff had taken promotion in Delhi division after 2.4.2003 till 3.02.2005, had to go back in his substantive grade as on 01.04.2003, he could do so without carrying benefit of promotion extended by Delhi Division. For easy reference, the said letter is extracted hereinbelow:-
No. 939-E/228/New Zone/EIID dated 3.02.2005 The Divl. Railway Manager, Northern Railway, New Delhi.
Sub:- Transfer of RE (excl)-DLI Section of BKN Divn or NWR to Delhi Division (NR) and Rohtak (excl) Bhiwani Sec. from Delhi to BKN Divn.
As a result of bifurcation with existing division, the RE (excluding)-DLI Section of BKN Division became the part of the Delhi Division wef 01-04-2003 and also the staff working as on 01.04.2003 in the aforesaid section the employees of Delhi Division on the basis of as is where basis automatically.OA 1000/2012
In the light of the instructions contained under Railway Boards letter No. E (NG) 1-2003/TR-31 dated 07.04.2004 the issue regarding transfer of existing staff of BKN Division was discussed in a joint meeting held at NR Hd.Qrs Office on 17-8-2004 between CPO/Admn/NR and CPO/Admn/NWR and it was decided that an opportunity by way of option should be given to the staff who were working on 01.04.2003 on the aforesaid section to go in BKN Division/NWR ie in their old seniority unit. It has also been decided that similar opportunity should also be given to the staff of Rohtak (excluding)-Bhiwani Section who became the part of BKN Division for calling options from the staff of Rohtak (excluding)-Bhiwani Section.
General Manager/NWR has requested that necessary instructions may please be issued to Delhi Division for calling the options from the staff of DLI-RE (Excl) Sections who were the employees of BKN Division as on 01.04.2003 with the following terms and conditions:-
Options will be available only to the staff having divisional seniority.
the lien and seniority of staff who opts for going to BKN Division will be maintained by BKN Divn. On he substantive cadre/grade.
If any staff has taken promotion on Delhi Division from 02.04.2003 to till date, he will have to go only in his substantive grade as on 01.04.2003 without carrying benefits of promotion extended by Delhi Division.
On receipt of options and accepting the same by Railway Administration, they will be relieved strictly as per convenience of the divisional administration.
Further action may be taken accordingly.
This issues with the approval of the competent authority. According to the respondents, since the applicant stood reverted from the post of MCM, he is no longer eligible for promotion to the post of JE-II against 25% promotion quota. Meeting the contention put forth in Para 4.21 of the OA, they explained- that S/Shri Sri Niwas and Vijay Kumar had been assigned seniority from the date of promotion in Grade III only. Shri Niwas is working as Blacksmith-1 and placed at serial No 10 in the seniority list of Blacksmith- I and his seniority is also fixed as per his promotion in grade-III (1.2.1994). Shri Vijay Kumar is working as OA 1000/2012 Carpenter-I and placed at serial No. 16 in the seniority list of Carpenter-1 and his seniority is also fixed as per his promotion in grade-III (3.1.1992). Smt Archan Dushad is working as OS and was directly recruited as head clerk in the ministerial cadre.
5. On 15.02.2013, after detailed hearing, learned counsel for respondents sought an opportunity to file additional affidavit to clarify the stand of respondents. Accordingly, the respondents filed additional affidavit dated 1.4.2013 stating therein that the employees promoted in Bikaner Division prior to 2.04.03 have been assigned seniority in Delhi Division after 1.04.2003 as per dates of their promotion as Tech. Grade-III which is treated as substantive grade for the entire staff for the purpose of fixation of seniority. For easy reference, para 6 of said affidavit is extracted hereinbelow:-
Thus, it makes clear enough that the employee who has promoted in Bikaner Division prior to 2.04.2003 and working under respective ADENs under Delhi Division which came to be the part of Delhi Division after 1.4.03, for the purpose of maintaining the seniority of the staff working under different ADENs is merged as per their date of promotion as Tech.Grade-III which has been treated as substantive grade for all the staff for the purpose of fixing seniority thereafter for Tech. Grade II and onwards. Hence, the seniority which has been assigned to the applicant vide letter dt.23.8.11 on the post of Painter Grade-I.
6. We have heard counsel for parties and perused the record. The prime issue arises to be determined in the present OA is, whether the expression substantive grade used in letter No.939-E/228/New Zone/EIID dated 3.02.2005 issued from Headquarter office of Northern Railway would mean the initial entry grade in the cadre and whether the said letter suggested any guideline for fixation of seniority of those who were deemed transferred to the Delhi Division of Northern Railway as a result of bifurcation of the Bikaner Division inasmuch as RR (Delhi Section) was separated from it. Though, in view of the correct OA 1000/2012 understanding and interpretation of letter dated 3.2.2005 issued from Headquarter Office, Baroda House, Delhi, it may not be essential to do so but since the respondents have espoused that the substantive grade mean the initial entry grade in a cadre, we need to elaborate and define the word substantive post/appointment.
7. The word substantive is a relative term and cannot be foretold by attaching a specific meaning to it. Still it is essential to circumscribe the penumbra of the term. Depending upon the circumstances and other relevant factors, such as the source of funding, the nature of work, the recruitment process, the functions attached to the post, the services in connection with the State and its Organization/Authority/Corporation etc. are given different nomenclature viz., Casual, Contractual, Substitute, Muster Roll, Ad hoc, Long term, Regular, Deputation, Probation, Confirmed, Temporary, Quasi permanent and Permanent etc. Most of the said classifications and nomenclature assigned to the services have come into existence not because the persons engaged/appointed in service discharged different functions, but because of the recruitment process and various stages an employee need to pass through on joining the post. In view of different nature of appointment/engagement to service, the term substantive has become only a relative term. For example, only a person appointed to a post in accordance with the RRs in substantive capacity, can be kept on probation, but when a probationer does not complete the period of probation successfully and is reverted, it is said that he is reverted to the substantive post/grade. In order to understand the correct meaning of the term substantive grade/appointment, it would be useful to take note of definition of different nature/kind of engagement/appointment in different services as follows:-OA 1000/2012
Casual Labour- Persons recruited on daily wages not for the work of regular nature but for the work which is of casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created are called casual labourer.
In the progressive system, depending upon the sort of funding and the nature and duration of the work, the casual appointment is also styled as substitute, job basis, work charge and muster roll appointment etc. In certain cases the work charged employees are given more or less same benefits which are admissible to the regular employees. In terms of certain schemes, on completion of certain length of service, the casual labourers are given a different status, such as CLTS ( Casual Labourer with Temporary Status) entitling them to few more benefits as casual labourer.
Contract Labour - As defined in the Contract Labour (Regulation and Abolition) Act, 1970, a workman shall be deemed to be employed as contract labour in or in connection with the work of establishment when he is hired in or in connection with such work by or through a contract, with or without the knowledge of Principal employer. However, in the changed scenario, a person directly appointed by the employer for a particular term on fixed salary is also called Contractual employee. In certain cases, depending upon the facts and circumstances, the contractual employees are given minimum of the basic pay admissible to the regular employee.
Ad hoc appointment- As per Rules, there are only few situations in which ad hoc appointment is made. Such circumstances may be that:-OA 1000/2012
Where there is an injunction by Court/Tribunal directing that the post may not be filled on a regular basis and if the final judgment of the Court/Tribunal is not expected early and the post also cannot be kept vacant.
Where the DR quota has not been filled and the Recruitment Rules also do not provide for filling it up on transfer or deputation temporarily and the post cannot also be kept vacant.
In short-term vacancies due to regular incumbents being on leave/deputation, etc. and where the posts cannot be kept vacant.
The total period for which the appointment/promotion may be made on ad hoc basis is limited to one year. Such appointment is made on the basis of seniority-cum-fitness, even in such cases where the promotion is by selection method. The ad hoc appointment may be made only after proper screening by the appointing authority of the records of the officer. Only those officers who fulfill the eligibility condition prescribed in the Recruitment Rules should be considered for ad hoc appointment. If there are no eligible officers, necessary relaxation should be obtained from the competent authority in exceptional circumstances. The claim of scheduled castes and schedules tribes in ad hoc promotion is considered in accordance with the relevant guidelines. Where ad hoc appointment is by way of direct recruitment, it should be ensured that the persons appointed are those nominated by the Employment Exchange concerned and they also fulfill the stipulation as to the educational qualifications/experience and the upper age limit prescribed in the Recruitment Rules. Where the normal procedure for recruitment to the post is through the Employment Exchange only, there may be no justification for resorting to ad hoc appointment. The ad-hoc appointment OA 1000/2012 does not bestow upon a person any right for regularization.
Long Term appointment- As defined in the Central Secretariat Service Rules, 1962, long term appointment means appointment for an indefinite period as distinguished from a purely temporary or ad hoc appointment, like appointment against a leave or other local vacancy of a specified duration.
Regularization:- The word regularization is the term generated to condone any procedural irregularity and is meant to cure only such defects as are attributable to the meth-odology followed in making the appointment. When rules framed under Article 309 of the Constitu-tion of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. Nevertheless, once the procedural irregularity is condoned and defects in the procedure are cured, the action done and appointment made in disregard of the procedure is deemed in accordance with rules and is treated as regular.
Regular:- As defined in the Central Secretariat Service Rules, 1962, regular in relation to any grade means a person appointed against a regular vacancy either through direct recruitment or promotion. In other words, the appointment made to a post in accordance with the Recruitment Rules is called regular appointment.
Temporary Service:- As defined in Central Civil Service (Temporary Service) Rules, 1965, Temporary Service means the service of a temporary Government servant in a temporary post or officiating service in a permanent post under the Government of India.OA 1000/2012
Confirmation:- Normally the term regularization, confirmation and permanent are confused as one and the same thing. It is stare decisis that regularization, permanence and confirmation do not connote the same thing. All the three terms carry different meanings and ramifications like substantive, confirmation is also the relative term and is normally used in connection with the completion of probation. The employees appointed either by way of direct recruitment or promotion and kept under probation need to be confirmed in service by a specific order on completion of period of probation. The expression confirmation is used in connection with the probationer in the same manner as the term regularization is used in connection with those appointed on ad hoc/casual /long term basis. Confirmation is made only once in the service of an official in the entry grade. Confirmation is delinked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the probation may be considered for confirmation. However, if a Government servant who has not already been confirmed in his old post is appointed by transfer, it would be necessary to confirm him in the new post. While marking the distinction between regularization, permanenence and confirmation, it would be useful to quote from the judgment of Honble Supreme Court in S.Narayana Vs. Md. Ahmedulla Khan & Ors ( 20006 (10) SC 84) paras 16 to 18 of the judgment, which read as under:-
16. Counsel drew our attention to the judgment of this Court in B.N. Nagarajan v. State of Karnataka (1979) 4 SCC 507.) (hereinafter "Nagarajan"). This Court in categorical terms rejected the ar-gument that regularisation and permanence and confirmation meant the same thing. Re-iterating the observations made in State of (air 1967 sc 10711 Mysore v. S.V. Narayanappa, (1967) 1 SCR 128 at p. 132.) and R.N. Nanjundappa v. T.Thimmiah (1972) 2 SCR OA 1000/2012 799 at p. 810.), this Court in (air 1972sc 17671 Nagarajan (supra) observed.
"Firstly, the words "regular" or "regularisa-tion", do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the meth-odology followed in making the appointments. They cannot be construed so as to convey ad idea of the nature of tenure of the appointements." (1979) 4 SCC 507 at p. 514 (paragraph 23). It was also observed: "... when rules framed under Article 309 of the Constitu-tion of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules." Ibid at p. 514 (paragraph 25).
17. Closure on this issue must surely be attained after the recent judgment of a Con-stitution Bench of this Court in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1.) After reviewing the cases that sew 1991, we have already adverted to, especially Nagarajan (supra), the Constitution Bench declared:
".......The words "regular" or "regularisa-tion" do not connote permanence and can-not be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any proce-dural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appoint-ments. This court emphasised that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government un-der Article 162 of the Constitution in con-travention of the rules. These decisions and the principles recognised therein have been dissented to by this Court and on prin-ciple, we see no reason not to accept the proposition as enunciated in the above de-cisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation." (2006) 4 SCC 1.) *
18. The learned counsel for the appel-I lant also urged that the High Court had mis-' understood the concept of a lien on a post. I He contended, and rightly in our view, that ' there was nothing like lien on a post, un-less a person was made permanent in a post. Strong reliance was placed on the observations of this Court in Triveni sew no. Shankar Saxena v. State of U.P, (1992) Supp 1 SCC 524.) wherein OA 1000/2012 after examining the con-cept of lien in Government service, it was observed: .....a person can be said to ac-quire a lien on a post only when he has been confirmed and made permanent on that post and not earlier, (1992) Supp 1 SCC 524. at p. 531 (paragraph 24), quoting from : M. P. Tewari v. Union of India, 1974 All LJ 427. with which view, we are in agreement.
Permanent :- As defined in Audit instruction reported below FR 9, permanent post means a post carrying a definite rate of pay, sanctioned without limit of time.
Lien :- Lien means the title of a Government servant to hold substantively as an immediately or on the termination of a period of absence, a permanent post, including a tenure post, to which he has been appointed substantively.
Deputation:- The Recruitment Rules for a number of posts provide for appointment by deputation (including short-term contract) and absorption. There is substantial difference between them. Under the provision Absorption, the officer is regularly absorbed in the post/grade. Under Deputation (including short-term contract) an officer from outside is appointed for a limited period by the end of which he will have to revert to his parent cadre. Under Deputation or Absorption, suitable officers having the requisite qualification and experience working in other Central Government Departments or State Governments are considered for appointment. Short-term contract also is in the nature of deputation and this method is followed when services of suitable officers belonging to non-Government organizations, e.g. Universities, recognized Research Institutions, Public Sector Undertakings etc. are required for appointment to teaching, research, scientific or technical posts.OA 1000/2012
Officiate :- A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. The Central Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien.
A Government servant imposed the title of lien on a post is said to be appointed substantively. Such appointment may be on a tenure or permanent post. The appointment of a person to a permanent post, including a tenure post in accordance with the recruitment rules is called substantive appointment. Appointment to permanent post would not mean the permanent appointment only. Even a probationer appointed in or against a post substantively vacant with definite condition of probation is also substantive holder of the said post and his appointment to it is called substantive appointment. The probationer may acquire lien on a post only after confirmation, but even during probation his appointment to the vacant post in accordance with the rules is called substantive appointment. The regularization of ad hoc/casual appointee and the absorption of a deputationist may also be called as their substantive appointment to the vacant posts in which they are absorbed/regularized.
8. In Mahesh Chandra Verma and Ors Vs.State of Jharkhand & Ors ( JT 2012 (9) SC 334), it could be viewed that the appointment to ex cadre post for a temporary period being not under the Rules of 2001 could not be termed as substantive appointment. Paras 33, 39 and 40 of the judgment read as under:-OA 1000/2012
33. Since a select list of 27 persons was duly notified as per Rules of 2001, after candidates from Sr. No. 1 to 17 were appointed as regular ADJs on 15.12.2001 the select list came to an end because as per the affidavit filed on behalf of the High Court though vacancies were not mentioned in the advertisement only 13 posts of ADJs were available on the date of advertisement i.e. on 23/05/2001 and 17 posts of ADJs were available on the date of recommendation i.e. on 20/10/2001. On the appointment of 17 regular ADJs, the selection process for appointment of regular ADJs came to an end. The unexhausted select list was wrongly used for appointment of 10 FTC Judges. Again, out of list of unsuccessful candidates, 15 persons were appointed as FTC Judges. Their names were not there in the select list. The whole procedure was irregular. Reliance placed by the High Court in the impugned judgment of this Court in Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637] and Surinder Singh v. State of Punjab [(1997) 8 SCC 488] is apt. It must be mentioned at the cost of repetition that on 23/05/2001 when the advertisement was issued, the posts for FTCs were not sanctioned. Therefore, these posts were not even in contemplation. They cannot be termed as vacancies contemplated or anticipated by the High Court. Undoubtedly, the correspondence between the Law Ministry and the High Court indicates that the High Court was informed about the need for creation of FTCs and that Fast Track Court Scheme may be brought into action in Jharkhand but, till the posts for FTCs were sanctioned, there was no question of taking into account any anticipated vacancies. When advertisement is for specific number of posts, the State cannot appoint more than the number of posts advertised. The select list gets exhausted when all the advertised posts get filled. In Rakhi Ray and in a long line of other cases to which reference need not be made, this Court has clarified that appointments beyond the number of posts advertised would amount to filling up future vacancies and the said course is impermissible in law. There is no substance in the contention that appellants were appointed under Rule 4(a) of the Rules of 2001 or that they can get advantage of Rule 25 thereof. The Rules of 2001 and the regulations which are meant for Jharkhand Superior Judicial Service do not apply to ad hoc ADJs appointed under a scheme of temporary duration like Fast Track Court scheme. The Rules of 2001 were not amended to make them applicable to FTCs. The appellants were appointed in ex-cadre post for a temporary period. This is clear from their appointment letters. Therefore, their appointments were not under Rules of 2001. Merely because they were made to take written examination and viva voce their appointments cannot be termed as substantive appointments nor can the nature of work done by them make their appointments substantive.
xxx xxx xxx 39. In Naseem Ahmad & Ors. v. State of Uttar Pradesh & Anr. [(2011) 2 SCC 734], this court while dealing with U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 considered what is wait list, select list and panel. It was held that wait list is not a selection list prepared for specific number of vacancies and wait list is exhausted only when all duly selected candidates are given OA 1000/2012
appointments. This case will have no application to the instant case. Once it is held that the appointments of the appellants were ad hoc, ex-cadre and not made as per the Rules of 2001 and that they were made in a scheme of temporary duration, wait list prepared while selecting regular ADJs cannot be used to appoint FTC Judges. In this case, select list got exhausted when 17 ADJs were appointed and persons from select list prepared for recruitment to the post of regular ADJs cannot be appointed as FTC Judges.
40. In Prem Singh v. State of Haryana [(1996) 4 SCC 319], this court held that selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. We have already held that as on the date of advertisement, FTCs were not sanctioned. Therefore, there were no anticipated vacancies. Prem Singh will have no application to the facts of this case. For the same reasons, State of Jammu & Kashmir & Ors. v. Sanjeev Kumar & Ors. [(2005) 4 SCC 148] is also not applicable to the present case.
From the aforementioned view taken by Honble Supreme Court, it is established that only an appointment/absorption/regularization against a vacant post either in accordance with the rules or in dispensation/ condonation of the same, would be treated as substantive appointment to said vacant posts.
9. In Pawan Pratap Singh and Ors Vs Reevan Singh and Ors (JT 2011 (2) SC 248), it could be viewed that the seniority has to be determined on the basis of substantive appointment. Para 33 of the judgment reads as under:-
33. Now, insofar as 1991 Rules are concerned, the said Rules provide for determination of seniority in relation to different categories. Rule 5 makes provision for determination of seniority in cases where according to service rules, appointments are made only by the direct recruitment. It would be seen that 1980 Rules are the relevant service rules for appointment to the posts of Deputy Jailor. As per rule 5 of the 1980 Rules, there are two sources of recruitment to the post of Deputy Jailor; one, by direct recruitment and the other, by promotion from amongst the permanent Assistant Jailors in ratio of 50% each.. The word `only' in rule 5 of the 1991 Rules is of significance and it becomes clear therefrom that rule 5 of the 1991 Rules has no application at all for determination of inter se seniority of the 1991 and 1994 appointees because 1980 Rules provide for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion. It is only where service rules in the State of U.P. OA 1000/2012 provide for appointments by direct recruitment alone that rule 5 of 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon second proviso to rule 5 of the 1991 Rules for determination of inter se seniority amongst 1991 and 1994 appointees is, thus, misplaced. The High Court fell into grave error in not appreciating that rule 5 of the 1991 Rules operates where service rules provide for appointments by direct recruitment only. Rule 6 and rule 7 of the 1991 Rules also have no application as these rules provide for determination of seniority where appointments are made by promotion only from a single feeding cadre or only from several feeding cadres. These appeals are not concerned with the determination of inter se seniority between the promotees. Rule 8 of the 1991 Rules makes a provision for determination of seniority where according to service rules appointments are made both by promotion and by direct recruitment. The marginal note of rule 8 `seniority where appointments by promotion and direct recruitment' and the body of sub-rule (1) of rule 8 that provides, `where according to the service rules appointments are made both by promotion and by direct recruitment', leave no manner of doubt that rule 8 of the 1991 Rules would govern the controversy in the present case since 1980 Rules clearly provide for appointments to the posts of Deputy Jailor by two sources i.e., by direct recruitment as well as by promotion. It is true that the controversy in hand relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor, one appointed in 1991 through the selection made by the Selection Commission and the other in 1994 by the UPPSC and the controversy does not relate to determination of inter se seniority between direct recruitees and the promotees, but that does not take away the applicability of rule 8 of the 1991 Rules. It is so because in the 1991 Rules, the basis of categorization for the purpose of determination of seniority is the method and manner for appointments in the service rules. It is in this view of the matter that rule 5, rule 6, rule 7 and rule 8 of the 1991 Rules provide for determination of seniority amongst different categories of appointments made under the service rules. Once it is held that rule 8 is applicable for determination of inter se seniority amongst 1991 and 1994 recruitees to the posts of Deputy Jailor, it is clear that their seniority has to be determined on the basis of their substantive appointments. Insofar as the present controversy is concerned, none of the provisos to sub-rule (1) is attracted since the appointment orders of 1994 appointees do not specify the back date nor these appeals are concerned with a situation where 1991 appointees failed to join on time. These appeals are also not concerned with seniority inter se of persons appointed on the result of one selection through direct recruitment or through direct recruitment and promotion in one selection and, therefore, provisions of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1) of rule 8 in unambiguous terms states that the seniority of persons, subject to the provisions of the sub-rules (2) and (3), shall be determined from the date of the order of their substantive appointments. Rule 4(h) defines `substantive appointment' as an appointment, not being an ad-hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups (1991 and 1994 appointees OA 1000/2012 by direct recruitment) what is relevant is the date of the order of their substantive appointment and since the substantive appointment of 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees.
Again in Uttaranchal Forest Rangers Assn (Direct Recruit) and Others Vs. State of UP and Others (2006 (10) SCC 346), it could be held that seniority can be granted only from the date of substantive appointment. Para 33 of the judgment reads as under:-
33.We also observe that, the High Court has granted seniority without even reference to Seniority Rules of 8, and in particular the proviso thereto, has not been taken into consideration. The said rules have overriding effect and hence seniority has to be consistent with the Rules. By virtue of Rule 8, Seniority can be given only from 'the date of substantive appointment'. In this case, the promotees were appointed on 17.07.1991 and therefore cannot be given seniority over the appellants who were substantively appointed prior in point of time i.e. in 1990. It is specifically indicated in proviso to Rule 8 that:
"Where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year, but shall get seniority of the year in which their appointments are made."
10. In Suraj Prakash Gupta Vs. State of J&K (2000 (7) SCC 561) followed in R.K.Mobisana Singh Vs. KH.Temba Singh and others (2008)1 SCC 747), it is viewed that the word date of first appointment would mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy. Para 31 of the judgment reads as under:-
31. In Suraj Parkash Gupta v. State of J&K(2000) 7 SCC 561 : 2000 SCC (L&S) 977 the rule which was applicable therein was as under: (SCC p. 590, para 53) ". Then comes the rule of 'seniority'. Seniority is to be determined by the 'date of first appointment' to such service, class or category or grade. It reads as follows:OA 1000/2012
'Seniority.-(1) The seniority of a person who is subject to these Rules has reference to the service, class, category and grade with reference to which the question has arisen. Such seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be.
Note 1.- * * * Interpretation.-The words 'date of first appointment' occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:
Provided that the inter se seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be determined:
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;
(b) in the case of those recruited direct (except those who do not join their duties when vacancies are offered to them) according to the positions attained by and assigned to them in order of merit at the time of competitive examinations or on the basis of merit and ability and physical fitness, etc. in case no such examination is held for the purpose of making selections;
(c) as between those promoted and recruited direct, by the order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the Rules.
Note.- * * * It has to be noticed that the interpretation clause below Rule 24 is very wide and under that provision, seniority of a promotee depends on the date of the commencement of probation on a clear vacancy. Probation can be commenced in the case of a person promoted or recruited by transfer from the date of existence of a clear vacancy in the promotee/transfer quota and depending upon his eligibility, suitability based on ACRs."
(emphasis in original) Having regard to the said rule in mind this Court surveyed the precedents one way or the other to hold: (Suraj Parkash case Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S) 977, SCC p. 596, para 71) "The direct recruits have strongly relied upon the decision in V. Sreenivasa Reddy v. Govt. of A.P. 1995 Supp (1) SCC 572 : 1995 SCC (L&S) 579 : (1995) 29 ATC 495 But this decision cannot be of any help to them. In that case Rule 10 and Rule 23 of the Andhra Pradesh State and Subordinate Service OA 1000/2012 Rules were referred to. It was pointed that the promotees' temporary service under Rule 10 (i.e. service rendered in a post to which the officer was not appointed according to rules), could not be counted on facts, because there was no order of retrospective regularisation. In fact, this Court accepted that if regularised under Rule 23 of the A.P. Rules, the temporary appointees could have been regularised from an anterior date. (This Court then referred to certain rulings which said that direct recruits could not count ad hoc service rendered by them before their regular selection.) On facts, this Court held that the Government had relaxed the rule regarding PSC consultation but had placed the promotees below the direct recruits and this need not be interfered with. This case far from supporting the direct recruits, supports the promotees."
11. In AFHQ/ISOS SOS (DP) ASSOCIATION & ORS. Vs. UNION OF INDIA & ORS. (JT 2008 (2) SC 508), it could be viewed that inter se seniority could be only between substantive vacancy in promotion and direct recruitment quota. Para 23 of the judgment reads as under:-
23. Rule 2(p) defines "temporary officer" to mean a person holding a temporary or officiating appointment in that Grade on the basis of his being regularly approved for such appointment. Rule 2(l) defines "permanent officer" to mean a person who has been substantively appointed to a substantive vacancy in that grade. Rule 10 provides for future maintenance of the service which states that the service shall be maintained in future as Indicated in the Third Schedule. Third Schedule of the Rules In relation to ACSO (Group 'B' Gazetted) reads as under:-
"Substantive vacancies
(a) Substantive appointments to 75% of substantive vacancies in the Grade shall be made in the order of seniority of temporary officers of the Grade, who have completed the period of probation satisfactorily, subject to the rejection of the unfit.
(b) 25% of the substantive vacancies shall be filled by direct recruitment on the basis of combined competitive examination held by the Commission for recruitment to the Central Services, Group TV/Group 'B', Assistant Civilian Staff Officers so recruited shall be confirmed in the manner as indicated in Rule 14.
The relative seniority of the above categories of officers shall be determined according to the rotation of vacancies between departmental promotees and direct recruits which shall be based on the quotas of vacancies reserved for promotion and direct recruitment.
OA 1000/2012Note (1) Reservation of vacancies against the quota reserved for direct recruitment, for Scheduled Castes and Scheduled Tribes and released Emergency Commissioned Officers and Short Service Regular Commissioned Officers shall be in accordance with the rules and orders issued by the Government from time to time.
(2) Substantive vacancies at (b) may be filled temporarily by promotion from amongst Assistants on the bull' of selection, Such promotions shell be terminated when the nominees of the Commission become available to fill the substantive vacancies."
Temporary Vacancies Temporary vacancies in the Grade of Assistant Civilian Staff Officer shall be filled by temporary promotion from amongst Assistants on the |basis of selection.
Provided that if any person in the Grade of Assistants is considered for promotion to the Grade of Assistant Civilian Staff Officer, all persons belonging to Scheduled Castes or Scheduled Tribes who are senior to him in that Grade, shall also be considered notwithstanding that they may not have rendered five years' continuous approved service in that grade.
In view of aforementioned, we are unable to countenance the submission made by counsel for respondents that the substantive grade would mean the initial entry grade. As alluded in para 159 of IREM (Volume-1) (Revised Edition 1989), the following higher grade posts are available to skilled Artisan grade-III in the normal channel of promotion.
SKILLED GRADE-II (1200-1800) SKILLED GRADE-I (1320-2040) Skilled Artisans Grade-1 are further eligible for being considered for promotion as Mistry in scale Rs.1400-2300 as also for fitment in Master Craftsmen scale Rs.1400-2300 in accordance with rules/orders governing such promotion. For easy reference, para 159 (ibid) is extracted hereinbelow:-
IX SKILLED ARTISANS 159 (1) (i) to (iii) 2, 3 & 4 xxx xxx OA 1000/2012 (5) The following higher grade posts are available to Skilled Artisans Grade III in the normal channel of promotion:-
SKILLED GRADE-II (1200-1800) SKILLED GRADE-I (1320-2040) NOTE: Skilled Artisans Grade-1 are further eligible for being considered for promotion as Mistries in scale Rs.1400-2300 as also for fitment in Master Craftsmen scale Rs.1400-2300 in accordance with rules/orders governing such promotion fitment. However, the grade of Master Craftsmen will be a terminal grade for those who opt for the same. Ex-facie, Painter Grade-III Rs.950-1500 (pre-revised) are eligible to be promoted to the next higher grade, i.e. skilled grade-II and skilled grade-1. In normal parlance their initial appointment in each of the said grade would be called as substantive appointment or appointment in substantive grade. Besides, a careful reading of the letter dated 3.02.2005 (Annexure R/1 (ibid) would allude that the staff deemed transferred to Delhi Division had an option to go back Bikaner Division/NWR, in the old seniority and in the event of going back to their Division, i.e. Bikaner Division, the members of the staff could not be entitled to benefit of the promotion given to them in the Delhi Division. In our view, the said letter had no ramifications or bearing regarding fixation of seniority of those who were deemed transferred to Delhi Division and who did not opt to go back to their parent seniority unit. Nevertheless, in letter No.P-14/939E/Option-DEE-RE dated 25.02.2005 (Annexure R-2), it is provided that the lien and the seniority of staff who opt for going to Delhi Division will be maintained by Delhi Division, Northern Railway in the substantive cadre/grade. For easy reference, letter dated 25.02.2005 is extracted hereinbelow:-
OA 1000/2012
NORTH WESTERN RAILWAY
BIKANER DIVISION
No.P-14/939-E/Option-DEE-RE 25.022005
Station Supdt.-ROK, BMLL, KLNK, LHLL, BNW
SSE/Pay- ROK, BNW.
AEN-RE
Sub:- Option of staff of ROK-BNW (Excluding) section that came,
in Bikaner Division NWR as on 01.04.2003 from DLI Division Northern Railway on the basis of as is where.
Ref:- GM (P)/NWR/JP letter No. 939E/1/Option/Transfer/HQ dt.
03.012005.
As a result of bifurcation of the existing divisions, ROK-BKW (Excluding) section of Delhi Division merged in BKN Division NWR as on 01.04.2003. The staff who were working as on 01.04.2003. On the above said station became the employees of BKN division on the basis of as is where as such their lien/seniority has been automatically terminated from Delhi Division Northern Railway and merged in the seniority units of Bikaner division North Western Railway.
Now, it has been decided with the consent of Northern Railway that an opportunity may be given by way of option to the staff who were working as on 01.04.03 on the aforesaid section and they were belonging to the divisional seniority of Delhi Division Northern Railway in the substantive category and grade for going to their seniority unit i.e. Delhi Division Northern Railway. The terms and conditions for calling options will be be as under:-
(a) Option will be available only to the staff having divisional seniority.
(b) The lien and seniority of staff who opts for going to Delhi Division will be maintained by Delhi division Northern Railway in the substantive cadre/grade.
(c) If any staff taken promotion on Bikaner Division, North Western Railway after 02.04.2003 to till date, he will have to go only in the substantive grade as on 1.4.03 without carrying benefits of promotions extended by Bikaner Division.
(d) On receipt of options and accepting the same by Railway Administration, they will be relieved strictly as per convenience of the division administration.
Therefore, the options from the staff working on ROK BNW (excluding) section of Bikaner Division is called on the enclosed format. Options should be exercised latest by 15.03.2005 on the format in Triplicate. OA 1000/2012 Letter No.807-E/85/14 dated 13.05.2005 (Annexure R/3) is only circulation of the instructions contained in letters dated 3.02.2005. Albeit in our view substantive grade means the grade in which a person is appointed either by way of direct recruitment or promotion in accordance with RRs against available vacancy, but as has been noted hereinabove, some times in its penumbra expression the term substantive being a relative term, is used in a different context. Thus, it would be only for the authority which issued the letter dated 3.02.2005 (Annexure R-1) to take a view regarding construction of the said term as used in the letter whether substantive grade means the lowest grade in the cadre or the grade in which a person is appointed against the available vacancies in accordance with the RRs. In terms of the letter No.E (NG)1-2004/TR/3 dated 16.03.2004 (Annexure A/6) issued by Government of India (Bharat Sarkar), Ministry of Railways (Railway Board), seniority of staff coming on transfer from one Railway to another should be determined in each grade on the basis of non-fortuitous length of service in the grade as on the date of new zonal Railways becoming operational. For easy reference, the said letter is extracted hereinbelow:-
No.E(NG)1-2004/TR/3 dated 16.03.2004 Subject:- Transfer of staff to serve in the HQ offices of new zonal Railways- Determination of seniority.
In para 5 of this Ministrys letter No. E (NG) 1/96/TR/36 dated 06.12.96 (RBE 123/1996) it was stipulated that seniority of staff coming on transfer from one Railway to another should be determined in each grade on the basis of non-fortuitous length of service in the grade as on the date of new zonal Railways becoming operational. This stipulation was made on the assumption that date of operation of the new zonal Railways will coincide with the date of closure of cadres in the HQ offices of the new zonal Railways. However, since this has not actually happened; the two new zonal Railways namely EC and NW Railways, having been declared operation wef 01.10.2002 and the remaining five w.e.f. 01.04.2003, while the cadres in the HQ offices of in new zonal Railways have been closed on 31.10.2003. It is, therefore, clarified that in partial modification of para 5 of this Ministrys letter dated OA 1000/2012 06.12.96 ibid, the seniority of staff who have joined HQ office of the new zonal Railways or whose lien has been transferred thereto as on 31.10.03 should be determined on the basis of position and grade held by them in the parent Railway on regular basis and on the basis of non-fortuitous length of service in the grade as on the date of closure of cadres on 31.10.2003 subject to the condition that inter-se-seniority of staff belonging to the same parent unit is not disturbed. In our view, while taking a view regarding meaning of expression of substantive grade used by them in the letters dated 3.02.2005 and 25.02.2005 regarding fixation of seniority of the applicant in Delhi Division, the respondents will have to keep in mind the provisions of the letter of Railway Board also. It is not in dispute that the promotion of applicant to the post of MCM was made by the DPO, Northern Railway (Delhi Division) (Annexure A/10), thus the impugned reversion order dated 16.03.2012 could not have been issued by the APO. Nevertheless, subsequently, the competent authority, i.e. DPO issued the order of reversion. May be in order to do justice to Painter Grade-III subsequently promoted as Painter Grade-I in Delhi Division, the authority competent to do so might evolve a methodology regarding fixation of seniority of the applicant by taking a uniform decision, but to our mind, no such decision appears to have been taken and what is attempted by the respondents is only to create a confusion by attaching their own interpretation to the contents of letter dated 3.02.2005 (ibid).
12. In view of the above to secure the ends of justice, we quash the impugned order No.561-E/552/Part-II/P-4 dated 16.03.2012 (Annexure A/1) as well as order No.561-E/552/Part-II/P-4 dated 26.03.2012 (Annexure A/1A to the amended OA). The matter is remitted back to the General Manager (P) to take a view regarding interpretation of letters No. 939-E/228/New Zone/EIID dated 3.02.2005, No.P-14/939E/Option-DEE-RE dated 25.02.2005 and No .807-E/85/14 dated 13.05.2005 OA 1000/2012 (Annexures R-1 to R/3) as well as regarding fixation of seniority of applicant in Delhi Division within a period of eight weeks from the date of receipt of a copy of this order. On receiving the view to be taken by the General Manager (P), Divisional Personnel Officer, Northern Railway (Delhi Division) would take a final view regarding the reversion of applicant as expeditiously as possible preferably within a period of two weeks thereafter. Till then, the interim order dated 27.03.2012 would remain in force.
OA stands disposed of. No costs.
( A.K.Bhardwaj) ( Manjulika Gautam) Member (J) Member (A) sk