R Y VAIDYA Vs. UNION OF INDIA

JUDGEMENT

(1.) The question arising for decision in all these cases is the same. The petitioners in the Special Civil Applications are the appellants in these cases. Their applications which were evidently filed to challenge possible reversions from the post of Meteoric Clerks to that of Non-Meteoric Clerks have been dismissed by the judgment of the learned single Judge.

(2.) Normally promotions are made in regard to selection posts as a result of selection process being resorted to and the appointees are those who find their place in the select list. In the case of non-selection posts seniority is the main if not sole criterion for promotion and in such cases promotions have to be made based on the seniority list in force. But quite often it may not be possible for the administrative authorities to effect promotions in accordance with the entitlement of those in service for many reasons. In the case of selection posts it may be because the selection committee might not have met the selection process is not gone through or it may be that there is impediment such as by way of court orders from selecting or from appointing pursuant to selection. In such cases appointments cannot be made regularly to a post. In the case of non-selection posts also it may be that regular appointments cannot be made. Such cases are where there is dispute as to seniority and the seniority list in the cadre from which promotion is to be effected is not finally settled. Quite often such instances arise where to a particular cadre persons from different services are drawn. Necessarily an acceptable rule has to be formulated to determine inter se seniority between them. In such cases even though promotions are to non-selection posts in the absence of a final seniority list no regular promotion could be effected. But in order that interests of the administration may not suffer it may be necessarry to find out incumbents for the various vacant offices and the only way to fill up such offices is to promote persons ad hoc. There may he a situation where it may be possible to promote persons regularly such as when there is a regular select list available for appointment to a selection post or a regular seniority list available for appointment to a promotion post but even so the appointing authority is not able to make regular appointments for other reasons such as orders of stay from court preventing the implementation of the select list or the seniority list as the case may be. Such cases stand on a different footing for while in the cases where the claimants for regular promotions are not finally ascertainable at the time of promotion such promotions have to be made on ad hoc basis that is not the situation where the list from which appointments are to be made is final so far as the appointing authority is concerned but there is objection to such appointment otherwise. In the latter case where persons are promoted from the select list or from the seniority list as the case may be the promotions are really of persons who according to the rules in force are entitled to be promoted. That is not so in the former set of cases for who is liable to be promoted can be determined only on finalisation of the select list or seniority list as the case may be which has yet to be done. We are pointing out this essential distinction between ad hoc appointments where there is empanelment to selection posts and ad hoc appointments where there is no such empanelment and no selection process has been gone through. Both cannot be treated alike. Merely because a person has been promoted ad hoc and he is in office in the post promoted for a period of three or four years he would not get any title to that post and he could legitimately raise no claim against the person who is found to be the proper claimant to that office on the basis of seniority being settled or a proper selection being made. Every eligible person in service has a right to be considered for selection to a selection post and has a right to be considered for promotion on the basis of seniority to a non-selection post. If an ad hoc appointment is made without the determination of who is to be selected or without the determination of who is the senior as the case may be merely because by a fortuitous circumstance someone gets promoted should not enable him to claim title to that office as that would operate in defeasance of the rights of the legitimate claimant as and when the claim of such person is determined. We are prefacing our judgment with these observations because these have relevance to the case before us.

(3.) The petitioners in these cases are Non-Matric Clerks. They were originally Class IV employees. They were selected for the post of Non-Matric Clerks in the scale of Rs. 105-135 (A)/225-308(R) and promoted to that post on regular basis. The next higher post is that of Junior Clerk in the scale of Rs. 260-400(R). This post is filled up by direct recruitment as well as by promotion from the post of Non-Matric Clerk according to a quota which is 66 2/3% direct recruitment and 33 1 promotion from Non-Matric Clerk. The post of Junior Clerk is a selection post. It appears that for a fairly long time there has been no direct recruitment as required by the rules to the post of Junior Clerk. But in order to fill up those posts Non-Matric Clerks were promoted ad hoc. This was in addition to the regular promotion of Non-Matric Clerks as Junior Clerks in their quota of 33 1/3%. The petitioners were those who were so promoted ad hoc to the post of Junior Clerks. Naturally they have to surrender their places when the direct recruits come in for appointment or even earlier for the ad hoc pretensions are not made on the basis of recognition of any claims of the Non-Matric Clerks who were so promoted. It seems that realising the difficulty of getting direct recruits the Railway Administration decided as a one time measure that in the quota for direct recruits instead of directly recruiting from the open market a recruitment may be made from among Class IV employees who had the specified qualifications. This selection enabled sufficient hands to be made available for the purpose of regular promotions to the post of Junior Clerks. But this resulted in the displacement of the petitioners who had been in the meanwhile promoted ad hoc. The petitioners complain that they should not be reverted in the circumstances for more reasons than one. Most of the petitioners have been in office by way of ad hoc arrangement for more than three years and it is their case that under a circular issued by the Railway Board in 1965 if they officiate even ad hoc for a period of 18 months they ought not to be. reverted and this rule should have been applied to them and their reversions avoided. Their further case is that Class IV employees are given an opportunity to seek selection to a post higher than the post of Non-Matric Clerks and since they as Non-Matric Clerks are not allowed the same opportunity to compete for selection the concerned rule is unfair to them. In other words they claim that their juniors of one time viz. Class IV employees are given the benefit of seeking selection to the higher post of Junior Clerk while they who have been promoted from Class IV employees are not given the same right. This it is said is discriminatory. The third point urged by the petitioners in these cases is that the rule relating to one time recruitment is not a valid rule as it was not framed by a properly constituted authority and should not work to alter the existing rule of direct recruitment. It is not that the rule of direct recruitment would in any way help the petitioners but according to them if that rule had stood without being amended there would have been no direct recruits from Class IV employees with the resultant possibility that they would have continued as ad hoc in the post of Junior Clerks.