Central Administrative Tribunal - Allahabad
Pradeep Kumar Pandey vs General Manager N C Rly on 1 November, 2023
O.A./81/2015
(Reserved on 05.10.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No.81 of 2015
Pronounced on this the 1st Day of November, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Pradeep Kumar Pandey aged about 52 years son of Sri R.N.
Pandey, presently working as Loco Pilot Passenger, N.C. Railway,
under Chief Crew Controller, Jhansi r/o 1309 Raj Shrree Niketan
Khati Baba, Isaitola, Jhansi 284003.
2. Naresh Chandra Srivastava aged about 48 years son of Shri S.P.
Srivastava, presently working as Loco Pilot Passenger, N.C.
Railway, under Chief Crew Controller, Jhansi r/o H.No.164/2,
Behind Tehsil, Jhansi.
3. V.K. Srivastava aged about 48 years son of Shri Prem Kishore
Srivastava presently working as Loco Pilot Passenger, N.C.
Railway, under Chief Crew Controller, Jhansi r/o House No.
51/225/A-2, Sindhi Colony West Arjun Nagar, Agra.
4. B.K. Sharma aged about 52 years son of Shri Satish Chandra
Sharma presently working as Loco Pilot Passenger, N.C. Railway,
under Chief Crew Controller, Jhansi r/o B-7, Radhapuram near
Birla-Mandir, Behind Durchanchar Colony, Mathura.
....Applicants
By Advocate: Shri Sudama Ram
Shri Anand Kumar
Versus
1. Union of India through General Manager, N.C. Railway,
Allahabad-211033
2. General Manager, N.C. Railway, H.Q Subedarganj,
Allahabad-211033
3. GM (P)/ Chief Personnel Officer/ North Central Railway, H.Q.
Allahabad
4. Chief Mechanical Engineer, North Central Railway, H.Q.
Allahabad-211033
5. Divisional Railway Manager, North Central Railway, Jhansi Divn.
Jhansi
...Respondents
By Advocate: Shri Manoj Kumar Sharma
Page 1 of 17
O.A./81/2015
ORDER
Delivered by Hon'ble Dr. Sanjiv Kumar, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief to quash the impugned orders dated 22.10.2014 and 21.11.2014 and impugned notification for holding fresh selection vide letters dated 02.12.2014 and 14.01.2015 and allow all consequential benefits as admissible under the rules directing the respondents to complete the selection proceeding and finalize the panel for the post of AME/AWM (Group-B) 70% quota on the basis of result of written examination declared vide G.M.(P)/N.C. Railway, Allahabad vide letter dated 03.06.2014 which would be subject to outcome of O.A. No.575/2014 and pass any other suitable order and award the cost.
2. The facts of the case are that the applicants were initially appointed as Assistant Electric Drivers in Central Railway and by creation of new zone of N.C. Railway, they were retained in Jhansi Division with following particulars of service:
S.N Name of applicants DOA as Date of Date of Date of o ALP promotion promotion promotion as L.P. as L.P. as L.P. Mail Goods Pass. 9300-34800 9300-3480 9300-34800 GP 4200 0 GP 4200 GP 4200 1 Prakash Kumar 9.7.85 29.12.93 19.6.2001 21.11.2005 Pandey (Ad-hoc)/ 6.10.97 2 Naresh Chandra 6.7.66 29.12.93 10.10.2001 21.11.2005 Srivastava Ad-hoc) / 6.10.97
3 V.K. Srivastava 20.5.86 29.12.93 10.10.2001 17.8.2006 (Ad-hoc)/ 6.10.97 4 B.K. Sharma 15.7.83 29.12.93 - Promoted as (Ad-hoc)/ Loco 20.10.1996 Inspector Gr.9300- 34800 GP 4600 since 10.6.1997 Page 2 of 17 O.A./81/2015
3. All the applicants were promoted from Assistant Drivers to Goods Drivers (Loco Pilot Goods Grade Rs. 5000-8000) in the year 1992 which panel was declared by DRM (P) Central Railway Jhansi vide letter dated 09.11.1992 but this panel could not be implemented due to court case pending before this Hon'ble Tribunal and another case in New Delhi in O.A./157/92 of Bijendra Singh and Ors vs. Union of India and Ors. which was decided in 1995 and during the pendency of the said OAs before the Hon'ble Tribunal, some senior employees were promoted as Goods Driver (Loco Pilot Goods) on ad-hoc basis vide letter dated 29.12.1993 and rest other senior employees were promoted vide letter dated 23.12.1994 as they were already placed in the panel against regular vacancies issued vide letter dated 09.11.1992. These orders of Ad-hoc promotions of Driver Goods were done by the competent authority against clear vacancies in the administrative interest subject to outcome of pending O.A. and with no other riders. It was not a stop-gap arrangement. These ad-hoc promotions were continued after six months with intention to regularise them followed by due regular promotion by forming a new panel.
4. The respondents formed a new panel of Goods Drivers Grade Rs.5000-8000 vide letter dated 29.10.1996 and subsequently vide letter dated 06.10.1997 in place of panel dated 09.11.1992 against vacancies of 1991-92 and the applicants were again selected therein and their ad-hoc promotions were done against vacancies of 1991-92 as Goods Driver vide letter dated 29.12.1993 and the same was subject to the decision of pending cases on seniority as such these ad-hoc promotions stood regularized after their empanelment since 29.12.1993. It is mentionable that above ad-hoc promotions were made against regular vacancies of selection posts due to pendency of court cases on panel of 1992 as such it was done in terms of Paragraph No.216 A.(2) (b) (ii) of IREM Vol. I (1989 ed. revised) with the approval of the competent authority as such formation of panel against vacancies of 1991-92 was delayed due to court cases and subsequently applicant No.4 Page 3 of 17 O.A./81/2015 was empanelled at serial No.102 by adopting modified procedure of selection of Goods Drivers dated 20.10.1996 and other applicants were empanelled vide letter dated 06.10.1997 by the respondents against the vacancies of 1991-92 for which panel was finalised which was delayed due to pending court cases on selection of Driver Grade C of 1991-92 as such they were entitled to get their seniority and promotion as Goods Drivers with retrospective dates i.e. the date from which they were promoted on ad-hoc basis for a long period against regular vacancies due to court case pending in administrative interest.
5. The applicants emphatically state that it is settled law that panel in selection post should be formed for year wise vacancies as such the aforesaid panel of 1997 relates back to vacancies of 1991-92 as such seniority would be reckoned from the date the applicants were given ad-hoc promotion against regular vacancies of 91-92 due to court cases. Therefore, the applicants were treated regularized from the date of their promotions on ad-hoc basis on 29.12.93 which was followed by regular promotions by forming panel in 1997 against vacancies of 91-92 for assignment of seniority etc. The applicant argued that Hon'ble Supreme Court held in a railway case of Union of India and Ors. Vs. Rajbir Singh and others [ (1992) Supreme Court Cases (L&S) 153] that Ad-hoc promotion in substantive vacancy subsequently regularized will count for seniority and the law has been laid down by the Hon'ble Supreme Court in the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra (1990 (2) SCC 715) vide para 44-B (which has been wrongly printed as 47-B in the Original Application), it has been stated that when ad-hoc is followed by regular promotion, the officiating period shall count for seniority. The said judgement states as under:
"44. To sum up, we hold that:
(B) If the initial appointment is not made by following the procedure laid down by the Rules but the appointee Page 4 of 17 O.A./81/2015 continues in the post uninterruptedly till the regularization of his service in accordance with the Rules, the period of officiating service will be counted."
6. The applicants state that the above case law has been followed by this Hon'ble Tribunal in case of Subhash Chand Verma & Ors. Vs. Union of India & Ors. (O.A. No.347 of 2003 decided on 9.5.2011 directing to give the benefits of long ad-hoc officiation period followed by regular panel to count for seniority and also held by the Apex Court in Balwant Singh Narwal and Others Vs. State of Haryana and Others [2008 (2) SCC (L&S) 586 ] in case of delay caused on account of litigation, petitioners would be entitled for seniority from the retrospective dates against which previous selection held as the petitioners had been empanelled in the fresh panel formed thereafter.
7. When applicants 1, 2, and 3 were working as Loco Pilot Mail in the pay scale of Rs.9300-34800 GP 4200 and applicant No.4 as Chief Loco Inspector at Mathura in Agra Division of North Central Railway, a Notification was circulated by the respondents vide letter dated 13.09.2013 to hold selection for 13 posts of Assistant Mechanical Engineer (AME/ Assistant Workshop Manager (AWM) (Group 'B' service) against 70% promote quota and a final list of 43 eligible candidates after getting willingness and a reserved list of 22 candidates were published. The applicants further state that a notification vide letter dated 06.02.2014 was issued with a supplementary list of 179 employees in order of seniority in which names of the applicants were correctly placed and it was asked that concerned employees should indicate their willingness/ unwillingness to appear in the written test for promotion to the post of AME/AWM (Group B) against 70% promotee quota vacancies on the proforma indicated. It was further contended that after notifications issued by the Railway vide letters dated 13.09.2013, 06.02.2014 and 11/12.02.2014, the eligibility list of 47 willing employees was finalized in order of seniority in Annexure A with letter dated 12.03.2014 in which it Page 5 of 17 O.A./81/2015 was instructed to direct the eligible candidates as per list to appear in the written test which was scheduled to be held on 03.05.2014. The applicants were found eligible for the written test and their names also appeared in the final eligibility list dated 12.03.2014 placing their names at serial Nos. 7, 17, 25 and 26 and respondents issued a final eligibility list on 46 eligible employees circulated to appear in the written test vide letter dated 04.04.2014. All the applicants appeared in the aforesaid competitive written test held on 03.05.2014. In the meanwhile NCR Engineers Association and Others filed an Original Application No. 575 of 2014 challenging the eligibility list for holding selection of 13 posts of AME/AWM (Group B) service against 70% quota vacancies which was prepared in terms of Instructions of Railway Board's circular dated 25.04.2011 (RBE No. 53/2011). They challenged the eligibility lists of willing candidates of Loco Pilots and relevant orders of Railway Boards in which seniority and eligibility of the Loco Pilots/ running staff were determined giving equivalence of grades of running staff with that of stationary staff for the purpose of promotion to the posts of stationary categories where both running and stationary staff were eligible and were considered together. Relevant grades of Loco running staff have been equated with stationary posts as indicated in the chart of the said Railway Board's letter dated 25.04.2011 (RBE No.53/2011). The aforesaid O.A. is still pending for adjudication which is in the name of public interest litigation. After conducting a written test on 03.05.2014, the results were declared and 18 candidates appeared for viva voce vide letter dated 03.06.2014 for the year 2011-13. Name of the applicants were placed at Sl.Nos. 8, 9, 10 and 3 respectively and they were directed to get medically examined and in the meanwhile in O.A. 575 of 2014 Hon'ble Tribunal had issued interim stay order on 12.06.2014 which read as under:
"On the prayer of interim relief, I find that the ramification of the case involves two cadres with a large number of persons on both sides. The case of the respondents that this is an old matter and the equivalence between the running cadres and Page 6 of 17 O.A./81/2015 stationary is in practice since long does not mean that the instant impugned order/ eligibility list can never be challenged...... The balance of convenience, therefore, is to allow the prayer of the applicants to the extent that even if the respondents continue the selection process the announcement of the outcome of the selection process will be subject to the decision of this O.A. Hence, the panel/ promotion shall not be notified till the case is heard and decided on merits.
In view of the above, interim relief as prayed for by the applicants subject to the condition that the panel/ promotion shall not be declared pending decision in this O.A. The respondents are directed to file a detailed counter affidavit before next date."
8. The applicants mention that the aforesaid interim stay order dated 12.06.2014 was of the final nature and which is still continuing till the final outcome of the O.A. unless it is vacated and the said O.A. is still pending for adjudication and the applicants have got themselves impleaded amongst the array of parties as respondents on 05.10.2014 in the said O.A. In the meanwhile, the General Manager (P), North Central Railway, Allahabad vide letter dated 26.08.2014 issued instructions to conduct viva voce test of 17 eligible employees on 12.09.2014 and it was subject to outcome of the O.A./575/2014 and during pendency of the given case and subsistence of the interim stay order dated 12.06.2014, General Manager (P)/ North Central Railway, H.Q. Office, Allahabad vide impugned letter No.797/E/Gaz/Group B selection/ Mech/ 70%/2011-13 dated 22.10.2014 has canceled the selection proceeding on the pretext of disputes in the seniority/ inter-se seniority from the stage of issue of notification. Order passed therein is as under :
"With the approval of the Competent Authority, the selection for the post of AME/AWM (Group B) in Pay Band Rs.9300-34800 + GP Rs.4800 against 70% promotee quota in Mechanical Department for the assessment year 2011-13, is Page 7 of 17 O.A./81/2015 hereby cancelled due to disputes in seniority/ inetrse-seniority from the stage of issue of Notification.
" a fresh selection for the post of AME/ AWM (Group 'B') in Pay Band Rs.9300-34800 + CP 4800 against 70 % promotee quota in Mechanical Department for the assessment year 2011-13 will be processed/ initiated shortly on receipt of revised/ modified inter-se-seniority list Concerned employees may be informed accordingly."
9. This cancellation order of the whole process of selection is impugned or challenged in this case mainly based on the ground that the cancellation was because the seniority position of the applicants were being disputed along with some other candidates of Jhansi Division who had passed the written examination held on 06.07.1992, 07.07.2012 and 01.10.1992 and who were given officiating promotion as Driver Grade 'C' on ad-hoc basis by competent authority on substantive vacancies subject to final outcome of pending O.A. No.157/92-Bijendra Singh Vs. Union of India. The applicants state that they jointly and individually also represented on 30.10.2014 clarifying the position as their ad-hoc promotions were approved by the competent authority and it was also followed by regular promotions/ panels as such they are entitled for counting of seniority as per law decided in a Railway case of Rajbir Singh by the Hon'ble Supreme Court and the aforesaid panel for the post of AME/AWM was to be formed on the basis of merit alone being the general selection and seniority had no role in forming the final select list/ panel. Applicants had again represented vide their representations dated 07.11.2014 to the Chief Personnel Officer, N.C. Railway, Allahabad requesting to conduct the viva voce and cancel the impugned order dated 22.10.2014 as per law but the respondents canceled the selection proceedings abruptly vide aforesaid impugned order dated 22.10.2014 on the pretext of disputes in the seniority/ inter-se seniority which was alleged to be arisen from the stage of issue of notification whereas there was no such dispute. They further aver Page 8 of 17 O.A./81/2015 that no permission from the Hon'ble Tribunal has been sought for cancellation of the selection proceeding as stay was operating and quoted Hon'ble Supreme Court order in Rajbir Singh vs. U.O.I and Ors. wherein the Hon'ble Supreme Court in the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra has stated that when ad-hoc is followed by regular promotion, the officiating period shall count for seniority. In view of the said order there was no dispute in seniority in the aforesaid selection, therefore, the impugned order dated 21.11.2014 deserves to be set aside.
10. The respondents have filed counter affidavit wherein they agreed to the basic facts of the case and about the impugned order which canceled the selection process due to dispute in seniority/ inter-se seniority from the stage of issue of notification vide order dated 22.10.2014, they say that before viva voce, while checking service details of the passed candidates with service register/ record, which was received after written test, it was found that promotion entry in Grade pay Rs.4200/- of 04 candidates of JHS was shown on ad-hoc basis where as in seniority list received from JHS Division, the same was shown on regular basis, therefore, clarification was sought from JHS Division vide letter dated 03.09.2014 and Jhansi Division vide letter dated 04.09.2014 informed that four candidates were promoted on ad-hoc basis but they were promoted on regular basis on 06.10.1997 and they say that the applicants' earlier ad-hoc promotion was subject to outcome of O.A. No.157 of 1992 and the said O.A. was decided on 13.10.1995 in following manner:
"We have already noticed that direct recruits would be deemed to have joined their working post on 2.5.87, 15.10.87, 22.7.87, 28.4.87, 19.5.88 and 24.5.88 respectively. The applicant No.1 of O.A No. 157/92 Sri Brijendra Singh, though promoted on ad-hoc basis on 22.8.86 as Fireman A remained substantially as Fireman-B in between before being classified as Fireman-1st in terms of instructions dated 12.3.87, similarly Respondent 1 to 7 of OA No. 657/92 who Page 9 of 17 O.A./81/2015 were also promoted on adhoc basis as Fireman A on 21.1.86 continued to be Fireman and substantially. They will also be deemed to have been classified as Fireman 1st on instructions dated 12.3.87 being issued. The applicants of OA No. 657/92 and private respondents of OA No. 675 of 92 and as is evident from the facts mentioned above, have joined their working post of fireman A after the applicant No.1 of OA No. 157 of 1992 and respondent Nos. 4 to 47 of OA No. 657 of 1992 were classified as Fireman 1st . The direct recruits thus can not claim seniority over them. The claim of applicant's Nos 2 to 5 of OA No. 157 of 92 and applicant of OA No.864 of 1992 who were basically Fireman C have no claim.
In view of the discussion made above, we allow OA No. 157 of 1992 in part and direct the respondents to place the applicant No.1 Sri Brijendra Singh above respondent no.4 to 9 in the seniority list. O.A. No. 657 of 92 and OA Nos 854 of 92 are dismissed as being without merit. There will be no order as to costs.
OA No. 86 of 93 was filed by the some of the direct recruits as Fireman Grade/Diesel Asstt., seeking the relief of direction to respondent No.2 to declare the Panel of Goods Driver in pursuance of the examination held under the notification dated 19.6.92 and to make appointment on the post of Goods Driver, if the applicants are found successful in the said examination.
The Principals governing seniority of the direct recruit/ vis-avis promote has already been applicants in this OA will have to be fixed according to the same principal. Selections test already conducted by the respondents shall abide by the decision given by us with regard to the seniority of the direct recruits and the promotes."
11. Respondents say that in view of the above facts, adhoc period of promotion on selection post could not count for the purpose of seniority as per Para 216 A (2) (b) (ii) & (iii) of IREM. The seniority will only be assigned from the date of regular promotion. Therefore, 04 candidates (applicants) declared passed in written Page 10 of 17 O.A./81/2015 test on the basis of their seniority position based on entry in Grade Pay Rs. 4200/- in 1993/94, are not eligible to be called for written test for promotion to the post of AME (70%) as only candidates having date of entry of grade pay Rs.4200/4600- as on 28.04.95 were eligible to be called. Since ineligible candidates have been called and passed in written test, the whole process of selection vitiated and therefore, it has been considered appropriate to cancel the selection from the stage of issue of notification vide letter dated 22.10.2014 and say the impugned order has been correctly passed by the answering respondents, there is no illegality and applicants are not entitled for any relief as claimed in the O.A. and the same is liable to be dismissed.
12. The applicants have filed their rejoinder wherein they reiterate their facts as in their OA and re-emphasise the ratio of judgement of Hon'ble Supreme Court in the case of Rajbir Singh and Others Vs. Union of India and Ors. [1992 Supreme Court Cases (L&S) 153] and they emphatically say that their seniority were correctly assigned as their ad-hoc appointment was done by the competent authority in exigency of service and in administrative interest due to court case, and the same was followed by regular promotion subsequently, as such their seniority from the date of appointment on ad-hoc basis would count for seniority as per settled law. They further say that they were not given any show cause notice as they were the affected party and as their seniority position was alleged to be disputed, hence, the cancellation of selection proceeding was arbitrary and patently wrong. So their prayer should be granted and the O.A. should be allowed.
13. When the case came up for final hearing on 05.10.2023, Shri Anand Kumar, learned counsel for the applicant, and Shri Manoj Kumar Sharma, learned counsel for the respondents, were present and heard.
14. We have considered the rival contentions of learned counsel appearing for the parties and gone through the entire record carefully.
Page 11 of 17O.A./81/2015
15. Facts are not disputed in the instant case. The impugned order dated 22.10.2014 is at page 28 of the O.A. which reads as under:
" With the approval of the Competent Authority, the selection for the post of AME/AWM (Group 'B') in Pay Band Rs.9300-34800 + GP Rs. 4800/- against 70% promotee quota in Mechanical Department for the assessment year 2011-13, is hereby cancelled due to disputes in seniority/inter-se-seniority from the stage of issue of Notification.
A fresh selection for the post of AME/AWM (Group'B') in Pay Band Rs.9300-34800 + GP Rs.4800/- against 70% promotee quota in Mechanical Department for the assessment year 2011-13 will be processed/initiated shortly on receipt of revised/modified inter-se-seniority list.
Concerned employees may be informed accordingly.
Please acknowledge the receipt of this letter."
16. A simple perusal of the said order shows that no detailed reasons are given for the cancellation of the entire selection process nor the order sheds any light about the process through which the inferences were arrived at when there was dispute in the seniority/ inter-se seniority from the stage of issue of notification was of such proportion that it vitiated the whole process of selection and if any objections were called for to abruptly close the selection process?
17. In Para 4.6, the applicants have mentioned as follows:"That the Hon'ble Supreme Court held in a railway case of Union of India and Ors. vs. Rajbir Singh and others [ (1992) Supreme Court Cases (L&S) 153] that Ad-hoc promotion in substantive vacancy subsequently regularilsed will count for seniority. The Law has been laid down by the Hon'ble Supreme Court in the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra (1990 (2) SCC 715) vide Para 47-B (which is actually 44-B in the judgement), it has been stated that when ad-hoc is followed by Page 12 of 17 O.A./81/2015 regular promotion, the officiating period shall count for seniority. The said judgement states as under:
"44. To sum up, we hold that:
(B) 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."
The above case law has been followed by this Hon'ble Tribunal in case of Subhash Chand Verma & Ors. vs. Union of India & Ors. (O.A. No. 347 of 2003 decided on 19.5.2011 directing to give the benefits of long ad-hoc officiation period followed by regular panel to count for seniority."
Whereas in the counter to this in para 22 the respondents mention the following:
"That the contents of para 4.6 & 4.7 of the O.A. are related with the case law, cited by the applicant, in view of the facts of the case and rule position submitted above those case laws are not applicable in the applicants case, as their adhoc promotion was due to court case, with clear stipulation and according to para 216 A(2) (b) (ii) & (iii), thus applicants cannot get the benefit of the same. In view of the facts above issue of year-wise vacancies are not tenable in view of the judgment of Brijendra Singh, there was no such direction to that extent, nor after the said judgment and after regular promotion, applicant had ever claim for the same, as such at this belated stage same are not tenable."
18. A simple reading of the two shows that the respondents did not in any way contest the general ratio of the judgement of the Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra (1990 (2) SCC 715). The respondents have misconstrued that this case law quoted by the applicants is not relevant to this case as in this case of the applicants there was an ad-hoc promotion due to Page 13 of 17 O.A./81/2015 court case and there was a clear stipulation and according to para 216 A(2) (b) (ii) & (iii) they say that the applicants cannot get the benefit of the same. The mere rider that someone's ad hoc promotion was subject to court case does not per se make the promotion irregular or not accountable in terms of the above quoted Supreme Court judgement. If with such riders also, in the case there has been continuous period of ad hoc promotion followed by regularisation without break as is in this case which is evident from the records filed by the respondents themselves at page 31 of the counter, the ratio of the Supreme Court judgement (supra) is very much relevant. Rider of being subject to court order only means that the authorities had retained the discretion to change or alter the ad hoc promotion before regularisation if it was found in any way irregular or without rule or unjustified or for any other cogent reason but after regularisation specifically (that also after continuous Ad hoc promotion uninterrupted) all those options are automatically closed and in the instant case ad hoc promotions were followed by regularisation subsequently. So the ratio of Supreme Court judgement quoted above is very much relevant and the benefit of same must accrue to the applicants.
19. We have also gone through the various ratio of judgements quoted by the applicants, particularly, the judgement in Rajbir Singh and others Vs. Union of India and others (1992 Supreme Court Cases (L&S) 153 in 1991 Supp (2) SCC 272) dated 12.11.1990 wherein in para 4 the Hon'ble Court mentions that "considering all the facts and circumstances and also considering the well settled decisions of this Court we are constrained to hold that the period of 11 years on adhoc service has to be taken into consideration in determining the seniority of these appellants." The facts of the said case also had some similarities wherein the appellants were appointed in 1971 in class IV posts and they were promoted in 1975 and were further promoted to class III posts after holding selection test and finding them suitable for the promoted posts. They had been working all along since their promotion as members of class III service since 1975. On Page 14 of 17 O.A./81/2015 September 26, 1986, the services of the appellants were regularised and in determining their seniority the entire period of ad hoc service since 1975 was not taken into consideration and it had been alleged that the juniors to the appellants were given seniority taking into consideration their ad hoc period of services and as a result they became Senior Clerks and Head Clerks. The order of seniority had been challenged before the Central Administrative Tribunal and the Tribunal relying upon the order in the case of Ashok Gulati Vs. B.S. Jain held that ad hoc service in the promoted posts of class III cannot be taken into account for determining the seniority of these appellants and it has been further held that the fact that the applicants who were officiating on the local ad hoc basis were selected and regularized cannot give them any benefit of seniority from the date of their ad hoc promotions. In that view of the matter, the Tribunal rejected the contention of the learned counsel for the applicants and upheld the order of seniority as made by the Railway authorities. It is pertinent to note in this connection that there had been a specific allegation made by the appellants that juniors to them, similarly appointed and similarly circumstanced have been given their seniority taking into consideration the ad hoc period of service rendered by them and as such they became senior clerks and head clerks and considering all aspects of the matter, the Hon'ble Court ruled that they cannot but hold that the order of this Tribunal, Principal Bench, New Delhi dated 01.01.1989 is without any merit and as such they set aside the order and directed the authorities concerned to consider the case of the appellant and to determine their seniority after taking into account the period of ad hoc services since the initial date of their promotion to class III services till the date of regularisation in 1986. The ratio of judgement basically being that period of ad hoc services of promotion in substantive vacancies subsequently regularised should be counted for seniority.
20. Similar is the case of the applicants, therefore, merely because in their service record it was mentioned that they had some ad hoc Page 15 of 17 O.A./81/2015 period before regularisation does not in any way affect their seniority position. Although in the present case, it is clear that the ad hoc promotion was given subject to the order of the Tribunal and special rule wherein ad hoc promotion was subject to outcome of court orders which is mentioned in their orders also but from the record it is also very clear that based on any court order between the date of their ad hoc promotion and regularisation there is no nullification of the ad hoc promotion and as they have been continuously on promotion since their ad hoc promotion to their date of regularisation. In terms of ratio of judgement in the case of Rajbir Singh and ors (supra) we cannot find any fault with the seniority of the applicants. On page 31 of the counter the respondents have attached their letter dated 04.09.2014 where the subject is "ग्रप ु 'बी' (ए.एम.ई) 70% कोटा (वर्ष 2011-13) चयन हे त जारी की गई इन्टीग्रेटेड वरीयता सच ू ी में संशोधन के संबध ं में ।" and it says that those loco pilots' promotion in pay grade of Rs.4200/- which was done on ad hoc basis was never rescinded and they were regularilsed as per memorandum dated 06.10.1997 which further strengthens the case of the applicants that their ad hoc promotion was in due course regularised and because it was followed by regularisation the entire ad hoc period should be considered as being regularly promoted as per ratio of the Supreme Court judgement supra.
21. Considering these facts, we are of the opinion that balance of convenience lies in the favour of the applicants and there was nothing wrong with the panel which was made for promotion from Group 'C' to Group 'B' to the post of AME/ AWM against 70% promotee quota vacancies for the formation of provisional panel for the assessment year 2011-13 in the Mechanical Department and hence the impugned order dated 22.10.2014 needs interference and, therefore, we pass the following orders:
The O.A. is allowed. The impugned order dated
22.10.2014 is set aside and the respondents may proceed further with the selection process for the assessment year 2011-13 and Page 16 of 17 O.A./81/2015 reach it to its logical conclusion. All the associated M.As. also stand disposed of accordingly. No costs.
(Dr. Sanjiv Kumar) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
Page 17 of 17