JUDGMENT
Shanker Raju, Member (J)
1. In the present OA the bone of contention is regarding counting of ad hoc service towards the seniority of Group ‘C’ employees working as LDCs/ MCC for long periods. The brief facts leading to the present OA are that the applicants. 59 in number, had been appointed as Class IV employees during the period 1974-81. The applicants have been promoted as LDCs/MCCs at various dates on ad hoc basis after adjudging the suitability from 1981-87 against permanent vacancies. The detail of their
service as ad hoc Clerk/MCC is at Annexure A II. The applicants appeared for qualifying examination for promotion to Class III in thequota of 33.33% and qualified the same during 1981-85. Applicants being aggrieved of their non-regularisation, filed OA No. 807/87 before the Tribunal and vide an order dated 13.11.1992 applying office order dated 31.12.1990 their of General Manager. Northern Railway the respondents had been directed to regularise the services of the applicants therein. Subsequently vide orders dated 8.1.1993 and 6.3.1993 the applicants have been regularised as Clerks/MCCs in the grade Rs. 950-1500 (RPS). The seniority of the applicants was not fixed. It is pertinent to mention here that some of the employees including one Jathanand along with three others made a representation regarding seniority and vide an order dated 22.12.1993 they were regularised and given seniority with effect from 1981 as they had qualified the test in the year 1989. Subsequently the applicants qualified the suitability test of Senior Clerk and were promoted as Senior Clerk vide order dated 9.5.1994 (Annexure VIII) the applicants made representation regarding the grievance of non-fixing of their seniority. As such OA. 2417/ 96 had been filed by the applicants and vide order dated 14.11.1996 the applicants have been directed to file a detailed representation and the respondents have been directed to pass a detailed speaking order. The representation has been rejected vide an order dated 12.4.1997 by the respondents referring to para 302 of the Indian Railway Establishment Manual of 1991 stating that the seniority is to be fixed from the date of regular promotion after due process in the case of promotee. The aforesaid order is impugned by the applicants seeking direction to assign them seniority with effect from the date of their ad hoc appointment to Class-Ill post with all consequential benefits.
2. That the applicants assailed the order on the ground that the initial ad hoc promotion of the applicants was in accordance with the rules and they have also qualified the written as well as viva voce test. As such, their seniority should date back to the date of their initial ad hoc promotion, the applicants have also referred to para 2.16 of IREM showing that they were appointed on ad hoc against a permanent vacancy and had passed the test. The learned Counsel for the applicants relies on two constitutional bench judgments one in Direct Recruit Class-II Engineering Officers’ Association and Ors. v. State of Maharashtra and Ors., AIR 1990 SC 1607=1990(2) SLJ 40 (SC) and the other in Rudra Kumar Sain and Ors. v. UOI and Ors., JT 2000 (9) SC 299 and also a judgment of the Hon’ble Supreme Court in T. Vijayan and Ors. v. Divisional Railway Manager and Ors., JT 2000(4) SC 196=2000(3) SLJ 325 (SC) to contend that the applicants are legally entitled for their seniority to be computed from the date of their initial appointment on ad hoc basis. The applicant have also filed written submissions wherein the judgment of Hon’ble Apex Court in Raibir Singh and Ors. v. UOI was relied upon to contend that the seniority of the applicants should be determined taking into account the period of ad hoc service since the initial date of promotion to Class-III post till the date of their actual regularisation in the year 1993. In the written submissions it has been contended that order of General Manager dated 31.12.1990 does not state of fixation of seniority on the basis of regular promotion but it is in the case of availability of vacancies. The applicant alleged hostile discrimination vis-a-vis Jethanand and others who are given seniority from the date of ad hoc promotion after passing the test for regularisation.
3. Respondents in their reply refuted the contentions raised by the applicants and state that the applicants were promoted only on ad hoc basis without any right for regular promotion subject to their regular promotion through a selection. According to the respondents that after completion of three years of continuous ad hoc service and after subjecting them to suitability test the applicants were to be regularised as LDCs/MCCs
against the promotee quota. The aforesaid regularisation has been done from the date of availability of vacancies against the promotee quota in Group ‘C’. The respondents in their written submissions contended that as per para 302 of IREM ibid the seniority of promotees is to be reckoned from the date of their regular promotion after due process and as such the applicants have been given their due seniority from the date of their regular promotion. The respondents rely upon the ratio of Hon’ble Apex Court in the case of Direct Recruit Class-II Engineering Officers’ Association and others (supra) and contend that the promotion was ad hoc and was not in accordance with the rules. As such, the seniority of the applicants has been rightly determined from the date of their regular promotion after they have qualified the selection i.e. written test and viva voce. According to them written tests were held in the years 1981, 1983 and 1986 where 31 applicants passed the written test for ad hoc promotion as clerks. According to the respondents, date of viva voce test of 6.8.85 pertains to regular selection held in 1984-85 and according to them they failed to get empanelled in the select list and further more this should not give right to the applicants to count the period of ad hoc service for the purpose of seniority as clerk in class III posts.
4. Applicants reiterated the pleas in the rejoinder filed where it is contended that the applicants have been discriminated vis-a-vis similarly placed persons e.g. Jethanand and others and further supported their contentions by filing additional affidavit on 6.12.2000 whereby it is contended that out of 59 applicants 31 qualified the written test on 5.12.1984 and viva voce on 6.8.1985 as per letter dated 31.12.1990 of the General Manager. It is contended that out of the remaining 28 applicants, 19 qualified the written test on 5.12.1984 and qualified the viva voce on 29.3.1993 and the remaining 9 applicants in Group ‘C’ have qualified the written test on 10.2.1993 and viva voce on 29.3.1993. According to them, the viva voce and written tests for categories ‘B’ and ‘C’ i.e. the persons according to letter dated 31.12.1990 who qualified only the written test and who have not passed the written as well as the viva voce tests, were unreasonably delayed. As such the applicants claim their seniority from the data of their continuous officiation on ad hoc basis.
5. We have carefully gone through the rival contentions of the parties and also perused the relevant record available on file.
6. In fact the applicants have been appointed to Class-Ill posts after a written test held by the respondents to check the working knowledge of the staff for ad hoc appointment as LDC/MCCs against the permanent vacancies through there was stipulation in the order that the applicants can be replaced or reverted by the selected candidates by Railway Service Commission or from other sources or by regularly selected staff. We also find from the record that subsequently all the applicants have cleared the written examination as well as the viva voce and have been regularised as Class-Ill employees with effect from 8.1.1993 and 6.3.1993 respectively. The contention of the learned Counsel for the applicants that they have been put to work as ad hoc after the written test was taken and subsequently by passing the selection procedure for regularisation their seniority should be ante dated and be determined from the date of their continuous officiation as Class-Ill employees from the date of their ad hoc officiation. The learned counsel for the applicants relics upon the judgment of the Hon’ble Apex Court in Direct Recruit Class-II Engineering Officers’ Association and others (supra) and its clause (A) provides as under:
“Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the date
of his confirmation. The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.”
7. Learned Counsel for the applicants contended that even if the initial appointment was ad hoc but was in accordance with the rules and against the permanent vacancy, his seniority should be counted from the date of his initial appointment. The learned Counsel has drawn our attention to the ratio laid down in T. Vijayan and others (supra). The relevant portion of the judgment concerning the controversy in the present case is as under:
“17. Now, para 216 of the Railway Establishment Manual provides as under :
“216-A. Ad hoc promotion against selection and non-selection posts:
(i) Ad hoc promotions should be avoided as far as possible both in selection and non-selection posts, and where they are found inescapable and have to be made in the exigency of service, they should be resorted to only sparingly and only for a short duration of 3 to 4 months. The ad hoc promotion should be ordered only from amongst the seniormost suitable staff. As a rule a junior should not be promoted ignoring his senior.
(ii) The following further guidelines should be adhered to while ordering ad hoc promotions: (a) In case of non-selection posts which are filled on the basis of seniority cum suitability while there is no provision for any lengthy waiting list. The processing involved being not unduly cumbersome or time consuming the post shall be filled after following the prescribed procedure quickly. When these posts are to be filled by trade test, this should be conducted systematically. Necessity for ad hoc promotion is thus obviated. (b) In regard to selection posts, it is essential that all the selection should be conducted regularly as per extant instructions. While there is no objection to ad hoc promotions being made in leave vacancy and short duration vacancy, ad hoc promotion against regular promotion should be made only after obtaining Chief Personnel Officer's approval. Proposal sent to Chair Personnel Officer for ad hoc promotion against regular vacancy should indicate detailed justification as to why regular selection could not be held. Chief Personnel Officer should keep record of having accorded approval to such ad hoc promotion and review the progress made in filling up these posts by selected persons every month. Chief Personnel Officer should also review selection to all posts afresh, whether such posts are controlled either at the Divisional level or at extra Divisional level. He should also keep the record of the categories where he has to approve ad hoc promotions and these records should be available to the Board's Officer on their visit to Railways. [Board's letter No. E(NG) II/81/RC-1/1 dated 1.4.1981] (c) Notification for ad hoc promotions against selection posts should specifically include a remark to the effect that the person concerned has not been selected for promotion and that his temporary promotion gives him no right for regular promotion and that his promotion is to be treated as provisional. For the purpose of drawing his pay which should not be drawn for more than three months without General Manager's specific sanction. The General Manager should issue provisional sanction for periods exceeding six months at a time and these powers should be exercised by the General Managers/Additional General Managers personally or by his Senior Dy. General Manager. [Board's letter No. E(NG) 1-73-PM-1/222 dated 23.2.1974]; E/55/PM-1/19/3 dated 11.1.1955; E(NG) 1-79-PM 1-105 dated 26.4.1979 and E(NG) 1-77-PM 1-117 dated 17.10.1977) (iii) In any case no second ad hoc promotion shall be allowed. [Board's letter No. E(NG) 1-85/PM/5-III dated 23.8.1985]"
18. The above para indicates that ad hoc promotion is permissible pending regular selection. Once ad hoc promotion is found to be permissible under the Rules and respondents 4 to 143 were promoted on ad hoc basis in the exigencies of service, pending regular selection, which, incidentally, took sufficient time as respondents 4 to 143 who were on official duty “on line” were not available at one point or at one time to facilitate the selection, the entire period of ad hoc service will have to be counted towards their seniority, particularly as all the respondents 4 to 143 were duly selected and their services were also regularised with effect from 16.12.1991 by order dated 18.1.1992. The concerned employees, including respondents 4 to 143 had already been alerted for the process of selection which had been started in 1988. While making direct recruitment against posts which were advertised in 1985, it was given out to the present appellants that their absorption and seniority was subject, inter alia, to the finalisation of the selection to the post of First Fireman which was in progress. The appellants, as stated earlier, were selected in 1988 and were put on two years’ training as Apprentice whereafter they were absorbed by order dated 18.7.1990 and were issued separate and individual appointment letters in which, it was clearly mentioned that their seniority was subject to the finalisation of the selection for promotion to the post of First Fireman which was in progress. The appellants, in this situation, cannot claim seniority over respondents 4 to 143 who had already been appointed to the posts of First Fireman on ad hoc basis and were after due selection regularised on those posts.
19. This Court in Direct Recruit Class – II Engineering Officers Association and Ors. v. State of Maharashtra and Ors. (JT 1990(2) SC 264= 1990(2) SCC 715 = 1990(2) SCR 900) has laid down in principle (A) and (B) as under:
“(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(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 regularisation of his service in accordance with the rules, the period of officiating service will be counted."
20. Applying the above principles to the instant case, since respondents 4 to 143 were promoted on ad hoc basis, and that too in a situation where regular promotion was not immediately possible and since ad hoc promotion was permissible in view of Para 216 of the Railway Establishment Manual quoted above, they are clearly entitled to the benefit of ad hoc service rendered by them on the post of Fireman ‘A’ or ‘First Fireman’ for the purpose of reckoning their seniority vis-a-vis the appellants.
21. It may be stated here that a 3-Judge Bench of this Court in State of West Bengal and Ors. v. Aghore Nath Dey and Ors., JT 1993(2) SC 598=1993(3) SCC 371) considered the principles as under (A) and (B) as set out above and explained as under:
“There can be no doubt that these two conclusions have to be read harmoniously and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority.’ Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop gap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.
The conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ‘if the initial appointment is not made by following the procedure laid down by the ‘rules’ and the latter expression ’till the regularisation of his service in accordance with the rules.’ We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rule has to be cured at the first available opportunity, without any default of the employee and the appointee must continue in the post uninterruptedly till the regularisation of his service, in
accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest.”
8. From the aforesaid ratio we are of the opinion that though the applicants were promoted on ad hoc basis the same was permissible under the rules. The applicants have been already regularised on those posts after due selection. As such, their initiation seniority would be determined from the date of their continuous officiation on ad hoc basis and not from the date of their regular promotion, i.e. 1993 as contended by the respondents. In our view, the decision of the respondents relying upon para 302 of IREM ibid is not justified and is against the principles of law. Even according to the aforesaid provision ibid, the seniority of incumbent of a post in a grade is to be governed by the date of appointment to the grade. Where the post is filled up by promotion the seniority should be fixed from the date of regular promotion after due process in the case of promotee. We find from the record that the applicants have been subjected to a suitability test at the time of being promoted as ad hoc and also subsequently qualified the viva voce test in the years 1985 and 1993. As such, the applicants cannot be given a discriminatory treatment vis-a-vis similarly situated persons like Jethanand and others who have been given seniority from the date of their ad hoc appointment after passing the test. Once the applicants have qualified the selection procedure and the fact that their ad hoc service empanelment was in accordance with the rules denying them seniority from the date of ad hoc officiation after putting in a long service would not be proper and legal. We are in full conformity with the ratio laid down by the Hon’ble Apex Court in the case of T. Vijayan and others (supra) and as such, declare the impugned order dated 12.4.1997 at Annexure-I passed by the respondents is illegal.
9. There is yet another aspect of this matter i.e. the applicants have been promoted as ad hoc LDCs/MCCs in Class-III post with effect from 1981 onwards and then continuing for more than 10 years. The Hon’ble Apex Court in one of the constitutional bench in Rudra Kumar Sain and others (supra) has observed as follows:
“16. The three terms ‘ad hoc.’ ‘stop gap’ and ‘fortuitous’ are in frequent use in
service jurisprudence. In the absence of definition of these terms in the rules
in question we have to look to the dictionary meaning of the words and the
meaning commonly assigned to them in service matters. The meaning given
to the expression ‘fortuitous’ in Stroud’s Judicial Dictionary is “accident or
fortuitous casualty”. This should obviously connote that if an appointment is
made accidently, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due
consultation with the High Court and the appointee possesses the prescribed
qualification for such appointment provided in Rule 7 and continues as such
for a fairly long period, then the same cannot be held to be “fortuitous.” In
Black’s Law dictionary, the expression “fortuitous” means “occurring by
chance,” “a fortuitous event may be highly unfortunate.” It thus, indicates
that it occurs only by chance or accident, which could not have been
reasonably foreseen. The expression “ad hoc” in Black’s Law Dictionary,
means “something which is formed for a particular purpose”. The expression
“stop-gap” as per Oxford Dictionary, means “a temporary way of dealing with a problem or satisfying a need.”
17. In Oxford Dictionary, the word ‘ad hoc’ means for a particular purpose; specially. In the same Dictionary, the word ‘fortuitous’ means happening by accident or chance rather than design.
18. In P. Ramanatha Aiyer’s Law Lexicon (2nd Edition) the word ‘ad hoc’ is described as “for particular purpose, made, established, acting or concerned with a particular and or purpose’. The meaning of word ‘fortuitous event’ is given as ‘an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God’.
19. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding Cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ‘ad hoc’ or ‘stop-gap’. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as ‘fortuitous’ in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a ‘stop-gap’ arrangement and appointment in the post as ‘ad hoc’ appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter-se seniority of officers in the Cadre.
20. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be “stopgap or fortuitous or purely ad hoc.” In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be ‘fortuitous/ad hoc/stop-gap’ are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.”
10. We follow the ratio laid down supra and are of the opinion that the applicants were possessing the requisite qualification and were appointed with the approval of the respondents and continued for a long period. As such, their appointment cannot be held to be ad hoc and as such the action of the respondents by excluding the continuous length of service for seniority is erroneous. In our considered view the respondents have acted illegally by determining the seniority of the applicant as LDCs/MCCs with effect from 1993 in Class-III post and by not taking their continuous length of service with effect from the date of their ad hoc promotion for the purpose of seniority.
11. In the result, we allow this OA and quash and set aside the impugned order dated 12.4.1997 (Annexure-I). We further direct the respondents to re-determine the seniority of the applicants in Class-III posts of LDC/MCCs taking into account their respective ad hoc officiation in the said posts. The applicants would also be entitled to all the consequential benefits including future promotion if at all accrued to them.
12. There will be no order as to costs.