ORDER
Shanker Raju, Member (J)
1. Loco Cleaners working as Loco Inspectors have sought through this OA regularization of ad hoc promotion on the posts of Loco Inspector of Driver Instructors without any break.
2. An order passed on 12.3.2007 maintained the status quo.
3. A brief factual matrix transpires that applicants, who have been appointed as Loco Cleaners have been promoted upto Passenger Drivers and Senior Passenger Drivers.
4. On acute shortage of loco running staff and non-filling up of the vacancies on regular basis, applications had been invited through notification dated 4.12.2004 for filling up the posts of Loco Inspectors/Driver Instructors, applicants when applied were screened and on short listing after written test were found suitable and accordingly were promoted purely on local ad hoc arrangements temporarily for a period of three months, with a condition that they can be repatriated to the cadre of Driver at any time, without any notice. Posting orders have been issued, deputing applicants as Driving Instructors. Meanwhile, while working on ad hoc basis applicants’ tenure were extended from time to time and their promotion in the regular cadre was due.
5. A selection was ordered on 24.7.2005, whereby 82 vacancies were notified for the posts of Loco Inspector wherein applicants appeared and vide a penal declared on 10.11.2006 they have been declared failed, whereas only 30 persons have been selected. The Railways on 20.12.2006 promoted without any selection 15 medically de-categorized Drivers as Loco Inspectors.
6. Shri G.D. Bhandari, Learned Counselappearing for the applicants contended that the initial promotion of applicants was in terms of Railway Rules of selection, where only a written test is to be held and as such having worked on regular basis they are deemed to be appointed on regular promotion and having completed 18 months, shouldering higher responsibilities, they cannot be repatriated. Learned Counsel has relied upon a decision of the Constitution Bench of the Apex Court in The Direct Recruits Class II Engineering Officers’ Association v. State of Maharashtra, 1990 (13) ATC SC 348.
7. Learned Counsel would further contend by relying upon the decision of the Apex Court in Ashwani Kumar v. State of Bihar that if ad hoc promotion is made on clear available vacancy and has continued for long years, there is a presumption of regular promotion.
8. Learned Counsel would lastly contend that 52 more vacancies are still available with the respondents on which applicants could be absorbed.
9. On the other hand, Learned Counsel of respondents Shri Saba Rehman contended that in December 2004 due to acute shortage of Loco Inspectors a decision was taken to deploy working Drivers on local temporary arrangement on the posts of Loco Inspectors. However, on option being called for a screening was conducted and a written examination to check their literacy level was held. However, no selection procedure, as required under the Rules has been followed, as such there is no positive act or procedure of selection took place. It is submitted that an ad hoc employee has no indefeasible right to be regularized and as in the proper selection held applicants having failed to qualify the written test, are not eligible to be promoted. A reference has been made to a decision of the Apex Court in Chandra Prakash Tiwari and Ors. v. Sakuntala Shukla, 2002 (3) SLJ SC 89 and also the decision of the Apex Court in Union of India and Ors. v. B.L. Sharma and Ors. 2005 (6) SLR (HC) 476.
10. Learned Counsel further contends that insofar as medical de-categorized employees are concerned, the same is treated separately as per the Railway Board’s Circular No. PS-10398 as Drivers were adjusted on the alternate posts of Loco Inspectors but this would not apply to the case of applicants and as applicants have failed to clear the selection and their initial engagement was on a stop gap arrangement, without being selected after due process of law in the rules, they have no right to be continued and are to be repatriated.
11. We have carefully considered the rival contentions of the parties and perused the material on record. As ruled by the Apex Court in a Constitution Bench decision in Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. , that ad hoc appointee when not appointed as per the statutory rules has no indefeasible right to regularization. Selection for the posts of Loco Inspector is through a due procedure of selection, where written examination is to be held. However, in the instant case due to acute shortage of loco running staff, options from other cadres when sought the screening and a written test were held, which cannot be compared with the due procedure of selection, as envisaged under the rules. However, applicants continued on ad hoc officiation, have no indefeasible right to be regularized, without qualifying the selection. It is pertinent to note that in the selection held for 82 posts applicants having participated have failed to clear the selection. As ruled by the Apex Court in a Constitution Bench decision in Direct Recruits’ case (supra) that seniority would be reckoned, computing the ad hoc period only when the ad hoc officiation was in accordance with the rules, would not be attracted in the present case. However, the decision in Chandra Prakash Tiwari’s case (supra) clearly rules that an officiation without following the due process of law on ad hoc, would not confer any right of regularization.
12. However, the fact that applicants had been made to work for 5 years in a different cadre, though in administrative exigencies on ad hoc basis and also in the wake of the fact that there are still vacancies left to be filled, for which a selection has to be held by the respondents, in the event applicants apply for the same, they shall be considered by the respondents. With this observation, without acceding to the request of applicants for promotion on regular basis as Loco Inspectors, OA stands disposed of. No costs.