Holding

Ad‑hoc service prior to regularisation by selection does not count for seniority in the Enquiry‑cum‑Reservation Clerk cadre.

Summary

The appellants, who had been working as Junior Commercial Clerks, were appointed on an ad‑hoc basis as Enquiry‑cum‑Reservation Clerks between 1978 and 1982 after the Railway Board changed its policy to fill the post by selection, favouring women candidates. When the railway later regularised the appellants' positions through a formal selection process in 1982, they claimed seniority over the women recruited directly under the new policy. The Central Administrative Tribunal rejected this claim, holding that the ad‑hoc period did not constitute service in the cadre for seniority purposes. On appeal, the Supreme Court affirmed the Tribunal’s view, emphasizing that the post is a selection post and only service after a valid selection can be counted for seniority. Consequently, the appellants could not be considered senior to the women appointed through the 1978 selection, and the appeals were dismissed.

Issues considered

The period of ad‑hoc service (1978‑1982) of the appellants can be counted towards seniority in the Enquiry‑cum‑Reservation Clerk cadre.
Whether the change in policy to fill the post by selection only affects the seniority rights of those previously appointed on an ad‑hoc basis.

Legislation cited

Administrative Tribunals Acts. 29

Subjects

seniorityselection postad‑hoc appointmentRailway service lawreservationwomen candidatesAdministrative Tribunalpolicy change

Judgment

DAVlNDER BHATIA AND ORS. ETC. A
v.
UNION OF INDIA AND ORS.

MAY 12, 1998

[G.B. PATTANAIK AND A.P. MISRA, JJ.] B

Service Law-Seniority-Posts of Enquiry-cum-Reservation Clerk being
filled up partly by selection and partly by promotion prior to I 978-After
1978 the appointment to be made only by selection and not by promotion- C
Appella:1ts worked as Enqui1y-cum-Reservation Clerks on ad hoc basis as a
stopgap arrangement from 1978 to 1982-Services of appellants regularised
by way of regular selection process as per the changed policy of Railways-
Held, Ad hoc services did not count for seniority and the appellants could
not be treated as senior to those who in the meantime had been appointed
in accordance with the changed procedure. D
The appellants were working as Junior Commercial Clerks prior to
1978, during which period the post of Enquiry cum-Reservation Clerk were
•· being filled 25% by way of direct recruitment and 75% by way of promotion.
In 1978, Railways took a decision to give appointment to the post of Enquiry-
cum-Reservation Clerk by way on selection only. In view of the changed E
policy, seyeral women candidates were appointed either by promotion or by
selection in suppression of the claims of the appellants. Subsequently the
services of the appellants were continued by subjecting them to regular
selection process. The appellants claimed seniority over the women candidates
selected to the posts of Enquiry-cum-Reservation Clerks, by filing suits F
which were transferred to Central Administrative Tribunal under Section 29
of the Administrative Tribunal Act. The claims of the appellants were rejected
by the Tribunal. Hence this appeal.

Dismissing the appeal, this Court
G
HELD : The post of Enquiry-cum-Reservation Clerk is a selection post
and therefore the Railway Administration would be entitled to select competent
persons to man the cadre. As it appears, prior to 1978, 25% of the posts
were being filled up by way of direct recruitment·but rest of the 75% posts
were being filled up by giving promotion to those Junior Commercial Clerks,
who were exercising their option and also were giving a declaration that they H
343 .
344 SUPREME COURT REPORTS [1998) 3 S.C.R.

A would not revert back to the commercial side. But in 1978, the Policy was
changed and the Government dtcided to fill up the post by direct recruitment
by women cand;dates only. The appellants, no doubt, have been brought to the
reservation side prior to 1978 but admittedly there had been no process of
selection in their case and they were posted as Enquiry-cum-Reservation
B Clerk on ad hoc basis as a stop gap arrangement. The post of Enquiry-cum-
Reservation Clerk being a selection post, persons like the appellants who
were posted against those posts without going through t.he process of selection,
on ad hoc basis, do not have a right to be in the cadre until and unless they
are duly regularised after going through a process of selection. In the
instant case, this process of selection was made only in the year 1982 and
C the appellants have been absorbed in the cadre of Enquiry-cum-Reservation
Clerk after being duly selected. In this view of the matter, their continuance
on ad hoc basis from 1978 to 1982 cannot be counted for the purpose of their
seniority in the cadre of Enquiry-cum-Reservation Clerk nor can they be
held senior to the women candidates who were directly recruited as Enquiry-
cum-Reservation Clerks under the changed policy by undergoing a process
D of selection. [350-G-H; 351-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2733of1991
Etc. •
From the Judgment and Order dated 7.12.90 of the Central Administrative
E Tribunal, Delhi in T.A. No. 691186 (Suit No. 765-A of 1985).

B.B. Sawhney, (NP) and Anis Suhrawardy for the Appellants.

V.C. Mahajan, Rajiv Nanda, Arvind Kr. Sharma and S.R. Bhat for the
Respondents.
F The Judgment of the Court was delivered by

PATTANAIK, J. Both these appeals are directed against a common
judgment of the Central Administrative Tribunal, New Delhi dated 7.12.1990
disposing of the two suits filed before the sub-Judge, Delhi but stood
G transferred to the Central Administrative Tribunal in accordance with Sec:ion
29 of the Administrative Tribunals Act. The plaintiffs in both these suits who
are the appellants herein have been working as Commercial Class-III staff in
the Grade of 260 - 430. The post of Enquiry and Reservation Clerk was in a
higher grade of330 - 560. The railway administration promoted the respondents
to officiate as Enquiry and Reservation Clerk in the year 1978, though on ad-
H hoc basis. The policy of filling up the post of Reservation Clerk has been
D. BHATIA v. U.0.1. [PATTANAIK, J.] 345
changing form time to time. Prior to 1978, there was no direct recruitment to A
the post of Enquiry and Reservation Clerk and people from commercial side
used to be posted as Enquiry and Reservation Clerk on optional basis by
obtaining declarations from the employees that once they would be absorbed
as Reservation Clerk they would not clai!P to go back to their original cadre,
namely, commercial side. On the commercial category direct recruitment was B
made to the post of Junior Commercial Clerk in the pay scale of Rs. 260 - 430
and from that post promotion was being made to the post of Senior Commercial
Clerk in the pay scale of Rs. 330 - 560 from which cadre a further promotion
was available as a Head Commercial Clerk in scale of pay of Rs. 425 - 640.
On the reservation side, the Junior Commercial Clerks were being engrafted
by way of promotion by obtaining their option and the declaration as already C
stated, in the post of Reservation Clerk having the pay scale of Rs. 330 - 560
and from the said post further promotion was available as Head Reservation
Clerk. In accordance with the Railway Board's Circular dated 29.2.1964, the
post of Enquiry-cum-Reservation Clerk was a selection post required to be
filled up from amongst the staff who volunteered for absorption in the category
from Commercial categories, namely, Ticket Collt!ctors, T.T.Es, Goods, Luggage, D
Parcel and Booking Clerks with not lt!ss than 3 years' service and in making
the selection, the railway administration was required to take into consideration
the imperative need for having the Enquiry and Reservation Offices manned
by smart persons of integrity who can maintain good public relations and
whose record of service is unexceptionable. It was also indicated that there E
would not be direct recruitment to the posts of Enquiry-cum-Reservation
Clerks but once staff from other commercial categories have offered for
selection and have been drafted as Enquiry-cum-Reservation Clerks, they
would seek further promotions in that cadre only. The relevant ponion of the
aforesaid circular is extracted hereinbelow in extenso :
F
(ii) The posts ofEnquiry-cum-Reservation Clerks in grade Rs. 100-
185 (PS)/l 50-240(AS) will be "Selection" posts to be filled from
a!Pongst staff who volunteer for absorption in the category from
Commercial categories, namely, Ticket Collectors, T.T.Es, Goods,
Luggage, Parcels and Booking Clerks with not less than 3 years
service. In making the selection, the Railway Administrations G
would, no doubt, take into consideration the imperative need for
having the Enquiry and Reservation Offices manned by smart
. persons of integrity who can maintain good public relations and
whose record of service is unexceptionable.
(iii) There will be no direct recruitment to the posts of Enquirj-cum- H
)(
/

346 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Reservation Clerks in the initial grade Rs .. l OO- I 85(PS)/Rs. l 50-
240(AS) but once staff from other Commercial categories have
offered for selection and have been drafted as Enquiry-cum-
Reservation Clerks, they would seek further promotions in that
cadre only. They will, however, be eligible for higher grade posts
of commercial Inspectors and above in the Commercial Department
B along with other eligible staff. Suitable adjustments in the
channels of promotions may be made as necessary.

(iv) For purposes of promotion, all the Enquiry and Reservation
Offices on a particular Railway shall be considered as one unit.

C 2. As the cadre is being re-organised it will be necessary to give the
existing staff, an option either to continue in the re-organised cadre
as above or to return to their parent cadres. Accordingly, they may
be given an option to indicate their choice. This will not, however,
apply to the direct recruits."

D The aforesaid Circular was revised by another circular dated 5.8.1976 for
revitalizing the cadre of Enquiry-cum-Reservation Clerks and the said circular
provided that 25% of the posts should be filled up by direct recruitment with
the minimum educational qualifications for such recruitment being graduate.
It was also stipulated that the women candidates should be favourably
E considered for absorption in the cadre. The said Circular of 1976 is extracted
hereinbelow in extenso for better appreciation of the point in issue:

The Board have had under consideration for some time past the
question of revitalizing the cadre of Enquiry-cum-Reservation Clerks
and its merger with the cadre of other Commercial Clerks. After careful
F consideration of various factors as well as the general set up obtaining
at the more important Enquiry & Reservation offices on Railways, the
Ministry of Railways have decided as under :-

(i) the entire cadre of ECRCs should be Headquarters controlled.
However, the D.Ss may still continue to order transfer of staff
G in the lowest grade (Rs. 150-240 AS) in the normal course within
the division with intimation to Headquarters.

(ii) 25% of the posts in the initial scale Rs. 150-240 (AS) 330-560
(RS) should be filled up by direct recruitment. The minimum
"
educational qualifications ror such recruitment should be
H graduation.
D. BHATIA v. U.0.1. [PATTANAIK, J.] 347
(iii) Women candidates should be favourably considered for absorption A
in the cadre of Enquiry-cum-Reservation Clerks not only on promotion
from other categories to the initial grade but also in the proposed
recruitment quota.

In I 978, the railway administration took a decision that the Reservation
offices in the four metropolitan cities of Bombay, Calcutta, Delhi and Madras B
should constitute a seniority unit separate from the rest of the Enquiry and
Reservation cadre of the Railway and these units will have only women
employees as Reservation Clerks. The existing quota of 25% by direct
recruitment and 75% by selection from eligible staff was held not to apply to
these units and all vacancies in the post of Enquiry-cum-Reservation Clerk C
were required to be filled up by the women staff available with the railway
and then by direct recruitment of women candidates. The relevant part of the
Circular of 1978 is extracted hereinbelow in extenso:

"Sub: Employment of women as Reservation/Booking Clerks in the
major Booking and Reservation Offices in Metropolitan Cities. D
Please refer to Board's letter of even number dated 28.4.1978
and confidential letter of even number dated 29.4.1978. The Ministry
of Railways have since considered the points raised at the meeting of
Chief Commercial Superintendents at Bombay on 13/14.6.78 and
decided that you should immediately take action as follows to E
implement the Minister's directive.

(i) The Reservation offices in the four metropolitan cities of Bombay,
Calcutta, Delhi and Madras should constitute a seniority unit
separate from the rest of the Enquiry and Reservation cadre on
the Railway. It should be made clear that Government's intention F
is to have in this unit only women employees as Reservation
Clerks and in due course as Supervisors. Male employees who
volunteer to move out will be given full protection of the pay
and grade both substantive and officiating in a non-fortuitous
arrangement. Subject to vacancies being available they would
also be given choice of the place of posting. G
(ii) Existing vacancies of Enquiry & Reservation Clerks and those
likely to arise in the next one year by normal wastage or transfer
of male volunteers, should be assessed immediately.
(iii) The existing quota of 25% by direct recruitment and 75% by
selection from eligible staff will not apply to this unit. All H
348 SUPREME COURT REPORTS (1998] 3 S.C.R.

A vacancies in the initial grade of Rs. 330-560 may be filled by
volunteers from serving women staff of all categories on the
Railway to the extent suitable candidates are available and the
balance by direct recruitment of women.

(iv) Volunteers from women staff in all categories on your Railway
B for working as Enquiry & Reservation Clerks Gr. 330-560 in the
concerned metropolitan city, should be called immediately (even
before the assessment of vacancies is finished) not later than
7th July, with last date for receipt of applications as 17th July.
A test should be held by a Committee of Officers which should '
be over and the results made available by 31 st July. Immediately
c thereafter they should be given training for a month (for which
arrangements should be made in advance) from 10.8.78 to 9.9.78
after which they should be posted as Enquiry and Reservation
Clerks and be in position by !'5th September, 1978.

(v) For the balance of vacancies, direct recruitment may be
D undertaken by the railway administration by issue of
advertisements with the qualifications as already prescribed for
direct recruitment of Enquiry and Reservation Clerks i.e.,
graduates. This advertisement need not await the selection
mentioned in (ii) above or assessment of vacancies, but should
be immediately issued by 7th July with last date for applications
E
as 17th July and selections processed and completed by 31st
July by which time the vacancy position will be known. They
should be given training for 8 weeks from 7th August to 23rd
September and successful candidates should be in position in
the Reservation offices by 25.9.1978.
F
Railways, who have already got panels from the RSC or are likely
to get such panel shortly, should appoint the women candidates
from those panel before resorting to direct recruitment. It should,
however, be ensured that where the RSC selection has been a
continued one, the men candidates higher in the merit orders are
G also accommodated in other Reservation Offices on your Railway.

(vi) At the moment only the Reservation work will be entrusted to
women Enquiry and Reservation Clerks. Each Reservation counter
would have two staff -one a woman in charge of Reservation
work and a Booking Clerk to issue tickets as is the procedure
H in the Churchgate Reservation Office of the Western Railway.
D. BHATIA v. U.0.1. [PATTANAIK, J.] 349
Booking work in those offices may continue as at present. A
Note: The target dates laid down in (iv) and (v) above are outer
limits. Any Railway Administration which is able to complete the
work earlier, should do so.

The General Manager's, the CCSs and CPOs should personally ensure
that items (i) to (vi) above are completed and the Upper and Lower B
Class Reservations Offices in the metropolitan cities before I st October,
1978.

Jn view of the aforesaid change of policy decision several women
candidates were appointed either by way of direct recruitment or by promotion C
from the existing staff, in super-session the claims of the appellants herein,
who by that date have been continuing on ad hoc basis. Subsequently these
appellants also went through the process of selection and their services
regularised as Enquiry and Reservation Clerk in the year 1982. But being
aggrieved by the recruitment of the women candidates in the year 1978 on
account of the changed policy decision and as in deciding the inter se D
seniority in the cadre of Enquiry-cum-Reservation Clerk the services rendered
by the appellants as Enquiry-cum-Reservation Clerks on ad hoc basis had not
been taken into account, they filed the two suits in the court of sub-o~dinate
Judge, Delhi which suits were ultimately transferred to the Central
Administrative Tribunal under Section 29 of the Administrative Tribunals Act E
and the Tribunal by the impugned decision having rejected the claim of the
appellants, the present appeals have been preferred. The Tribunal has come
to a conclusion that the appointment of the appellants as Enquiry-cum-
Reservation Clerks being purely on ad hoc basis as a stop gap arrangement
and thus appellants not having been appointed as Enquiry-cum-Reservation
Clerks after going through a process of selection, the period they have served F
on such stop gap arrangement cannot be counted for reckoning their seniority
in the cadre of Enquiry-cum-Reservation Clerk, and therefore, the railway
administration rightly calculated their seniority in the cadre from the date the
appellants were regularised as Enquiry-cum-Reservation Clerks after undergoing
the process of selection.
G
The learned counsel appearing for the appellants, Mr. Anis Suhrawardy
in Civil Appeal No. 2734of1991 and Mr. BB Sawhney who gave the written
submissions in Civil Appeal No. 2733of1991, challenged the decision of the
Tribunal on the ground that the appellants no doubt were appointed as
Enquiry-cum-Reservation Clerks on ad hoc basis but they have been duly H
350 SUPREME COURT REPORTS [1998) 3 S.C.R.

A recruited as Junior Commercial Clerks through a process of selection by the
Railway ServiCe Selection Board and they having continued uninterruptedly
in the post of Enquiry-cum-Reservation Clerk, there is no justification on the
part of the railway administration to ignore the period they have served as
Enquiry-cum-Reservation Clerk on ad hoc basis prior to their due absorption
in 1982 in the cadre of Enquiry-cum-Reservation Clerk. The learned counsel
B also urged that while appointing them as Enquiry-cum-Reservation Clerks, the
railway administration having taken their option that they will not be permitted
to go back to the commercial side and thereafter having appointed as Enquiry-
cum-Reservation Clerk. Gross injustice has been meted out by not counting '
their services which they have rendered as Enquiry-cum-Reservation Clerk on
C ad hoc basis, inasmuch as their counter-parts in the commercial side have got
accelerated promotion whereas the appellants are suffering in the reservation
side. Mr. Mahajan, the learned senior counsel appearing for the railway
administration, however, vehemently contended that the post of Enquiry-cum-
Reservation Clerk being a selection post and the appellants prior to their
selection in 1982 merely having been promoted on ad hoc basis whereas the
D women candidates were appointed by due process of selection in accordance
with the changed circular of the Railway Board of the year 1978, the ad hoc
period of the appellants cannot be taken into account for reckoning their
seniority in the cadre of Enquiry-cum-Reservation Clerk and in that view of
the matter there is no infirmity with the impugned decision of the Central
E Admil)istrative Tribunal.

In view of the rival submissions at the Bar, the only question that arises
for our consideration is : whether the ad hoc continuance of the appellants
in the cadre of Enquiry-cum-Reservation Clerk can be counted for the purpose
of seniority in the cadre, even though, they were regularly absorbed by a
F process of selection only in the year 1982? The answer to this question
depends upon the relevant provisions of the Rules governing the manner of
filling up of the post of Enquiry-cum-Reservation Clerk. Undisputedly, the
post of Enquiry-cum-Reservation Clerk is a selection post and therefore the
railway administration would be entitled to select competent persons to man
G the cadre. As it appears, prior to 1978, 25% of the posts were being filled up
by way of direct recruitment but rests of the 75% were being filled up by
giving promotion to the Junior Commercial Clerks those of whom were
exercising their option and also were giving a declaration that they would not
revert bac)<: to the commercial side. But in 1978, the policy was changed and
the Government decided to fill up the post by the direct recruitment by women
H candidates only. The appellants, no doubt, have been brought to the
D. BHAT!Av. U.0.1. [PATTANAIK, J.] 351
reservation side prior to 1978 but admittedly there had been no process of A
selection in their case and they were posted as Enquiry-cum-Reservation
Clerks merely on ad hoc basis as a stop gap arrangement. The post of
Enquiry-cum-Reservation Clerk being a selection pot, the persons like the
appellants who were posted against those posts without going through the
process of selection on ad hoc basis do not have a right to be in the cadre B
until and unless they are duly regularised after going through a process of
selection. In the case in hand, this process of selection was made only in the
year 1982 and the appellants have been absorbed in the cadre of Enquiry-
cum-Reservation Clerks after being duly selected. In this view of the matter,
their continuance on ad hoc basis from 1978 to 1982 cannot be counted for
the purpose of their seniority in the cadre of Enquiry-cum-Reservation Clerk C
nor can they be held senior to the women candidates who were directly
recruited as Enquiry-cum-Reservation Clerks under the changed policy by
undergoing a process of selection. In the aforesaid premises, we see no
infirmity with the order of the Tribunal so as to be interfered with by this
Court. The appeals are accordingly dismissed but in the circumstances there
will no order as to costs. D
- -j RK.S. Appeals dismissed .

.