Holding

Pro‑forma promotion of in‑service graduate clerks to Grade I confers only pension benefits; actual emoluments and seniority are determined by the date of taking charge of the post, with promotees senior to direct recruits as per Paragraph 302 of the Railway Establishment Manual.

Summary

The case concerned a group of graduate clerks (Grade II) who were promoted to Grade I in the Indian Railways after a restructuring of the clerical cadres. The Railway Board had issued several letters prescribing that 20% of Grade I vacancies be filled by direct recruitment and the remainder by promotion of in‑service clerks, with a pro‑forma promotion dated 1 October 1980 but actual emoluments payable only from the date the post was taken over. The petitioners claimed seniority and pay benefits from the pro‑forma date, while the respondents argued that seniority should be based on the actual date of appointment as per Paragraph 302 of the Railway Establishment Manual (Volume I). The Supreme Court held that the pro‑forma promotion confers only pension‑related benefits; emoluments accrue from the actual date of taking charge and seniority is determined by the date of appointment to the grade, with promotees senior to direct recruits. It also clarified that graduate clerks appointed after 1 October 1980 obtain seniority from their actual appointment as Grade II, and ad‑hoc appointees receive seniority from the date of their lawful selection. The Court further directed the Government to ensure proper assistance to counsel in such matters. The appeals were disposed of without costs.

Issues considered

The appropriate basis for determining seniority of in‑service graduate clerks promoted to Grade I after the 1980 restructuring
Whether pro‑forma promotion dated 1 October 1980 confers monetary benefits and seniority
The method of calculating emoluments for promoted clerks
The seniority of direct recruits versus promotees under Paragraph 302 of the Railway Establishment Manual
The seniority of ad‑hoc appointees appointed de hors the rules

Subjects

senioritypromotionpro forma promotionRailway Establishment Manualemolumentsservice lawClerks Grade Igovernment assistance to counsel

Judgment

A SMT. ANURADHA MUKHERJEE AND ORS. ETC. ETC.
v. .. >-
UNION OF INDIA AND ORS. ETC.

MARCH 12, 1996

B [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Service Law :

Railway Establishment Manual (Volume I) : ¥ i

c Para 302-Graduate C1erks Grade-II-Appointment as Clerks Grade
I-Seniority-Held in service graduate Clerks Grade II appointed as Clerks
Grade I would get only profonna promotion as Clerks Grade I from
1.10.1980, b11t would be entitled to emoluments from the date they actually
took over charge-T7iose appointed after 1. 10.1980 would not get promotion
D from 1.10.80 but only from the date of their actual appointment as Clerks
Grade-II notionally upgraded as Clerk Grade I.
~

Government Litigation : ~

Government not assisting their counsel properlr-Steps to be takeir-
E Explained.

In the Railways vacancies in the cadre of Clerks Grade I in the pay
scale of Rs. 330-560 prior to 1.10.1980 were filled up, 20% of the cadre
strength by direct recruitment from open market and by in service
graduate Clerks Grade II by way of limited recruitment through )

F departmental examination, and 80% posts were filled by promotion of .
non-graduate clerks Grade-II. After October 2, 1980 in-service graduate
Clerks Grade-II were recruited on principle of seniority-cum-merit and in
the event of non-availability of suitable in service candidates, the balance
vacancies were filled up alongwith other vacancies by direct recruitment.
80% vacancies remained available to non-graduate Clerks Grade-II for
G
promotion on the basis of seniority-cum-suitability. Later, as one time
measure, recruitment through Railway Service Commission was dispensed .-~

with and limited recruitment by departmental competitive examination
was conducted for selection of the graduate Clerks Grade II.

H The present appeals were filed against the judgments of various
276
)-
A. MUKHERJEEv. U.0.1. 277

Benches of Central Administrative Tribunal in the cases arising out of A
disputes regarding claim to seniori1y and emoluments in Clerk Grade-I of
._.· A in service graduate Clerks Grade-II appointed as such on different dates
from 1968 to 1982.

Disposing of the appeals, this Court
B
HELD : 1.1. All in-service graduate Clerks, Grade II appointed to
Grade I Scale would get only proforma promotion as Grade I Clerks from
October 1, 1980 without any monetary benefits except for the purposes of
pension. They are entitled to emoluments with eD'ect from the date they
actually took over the charge. The inter se seniority would be as per para C
302 of the Railway Establishment Manual (Vol.I). i.e., the date of seniori1y
in the grade is the date of appointment to a post in that grade. The grant
of higher pay, as a rule, does not confer seniority above the existing incum-
be.nts regularly appointed to the post. Among direct recruits and
promotees, the date of joining the working post is the date for the direct
recruits and date of regular promotion, after completion of the process to D
order promotion, is the date for the promotees. Inter se seniority is alterna-
tive, i.e., promotee first and direct recruit would be below him and the same
would continue in the order of merit in the respective lists and the roster
maintained by the Railway Administration. Promotee would thus be senior
to direct recruits. (283-F-H; 284-A] E

1.2. Such of the graduate Clerks though appointed as Grade II Clerks
after October 1, 1980 by process of selection through open competitive
examination or limited recruitment by departmental examination and
upgraded under the rules, would not get the promotion with effect from the
1 proforma date of October 1, 1980 but only from the date of their actnal F
appointment as Grade II Clerks, notionally upgraded as Grade I Clerks
since their appointments are after October 1, 1980. The inter se seniority of
the 20% direct recruits on the one hand and limited recruitment graduate
Grade II Clerks and promotees on the other, shall be determined in accord-
ance with para 302 of the Railway Establishment Manual (Volume I).
G
(284-B·C]

1.3. The persons appointed on ad hoc basis de hors the rules can get
seniority not from the date of their initial appointment but from the date
on which they are actually selected and appointed in accordance with the
rules and their appointment and seniori1y would take effect from the date H
278 SUPREME COURT REPORTS [19%] 3 S.C.R.

A of selection after due completion of the process and they would be junior
to in-service as well as direct recruit-candidates. The inter se seniority
A ·~
should be reckoned accordingly. [284·D·E]

2. It has been the experience of the Court that in some cases even
after reserving the matters for judgment and directing the Government to
B give their written arguments no one would take responsibility to assist the
Court. The Government should make a particular officer responsible to
assist the counsel appearing for them and should take steps to see that
necessary and needed assistance is made available to the Courts or the
Tribunals to adjudicate the disputes and reach proper decision ex- -1
C peditiously. [284-H; 285-A·B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4265 of
1996. Etc. Etc.

From the Judgment and Order dated 18.12.90 of the Central Ad·
D ministrative Tribunal, Calcutta in T.A. No. 1301 of 1986.
Dushyant Dave, Dr. Rajeev Dhawan, Pratap Venugopal, K.J. John, ~
V.K. Verma, B.K. Prasad, A.D.N. Rao, A.K. Sharma, C.V.S. Rao, V.N. -A.
Patil, Gopal Singh, Manoi Prasad, S.N. Shukla, O.P. Gupta, N.A. Siddiqui,
E E.C. Vidyasagar, L.R. Singh, Amlan Ghosh, K.N. Rai, T.N. Singh, R.
Mukherjee for the appearing parties.

Raju Ram Chandran, M.D. Adkar, S.D. Singh, Ejaz Maqbool, Anis
Suhrawardy and A.S. Bhasme, Advs. for Intervenor.

The Judgment of the Court was delivered by
F
K. RAMASWAMY, J. Leave granted.

These appeals by special leave filed by some of the employees and
by the Union of India, arise from the orders of Calcutta, Allahabad New
G Delhi and Lucknow Benches of the Central Administrative Tribunal. The
facts in the main appeal filed by Mrs. Anuradha Mukherjee, are sufficient
for disposal of the controversy raised in all these appeals.

The appellants are graduates appointed as Lower Division Clerks -
Grade II on different dates between 1968 to 1982. The Railway Administra·
H tion restructured the ministerial cadres in the Railways; determined their
A. MUKHERJEE v. U.0.I. [K. RAMASWAMY, J.] 279

gradewise percentage of the posts and made distribution. We are con- A
cerned in these cases with Clerks (Grade I) in the pay-scale of Rs. 330-560.
40% of the vacancies existing prior to October 1, 1980 in the Clerks
category were earmarked for Clerks (Grade I) by Railway Board's letter
dated June 1, 1979. Subsequently it was revised by Board's letter dated
November 10, 1981 to 57.5%.
B
Under the Board's letter dated November 10, 1980 to bring about
qualitative improvement in the functioning of the restructured cadres in
the Personnel Department, it was decided to fill up 20% of those total
posts of Senior Clerks (Grade I) by direct recruitment through the Railway
Service Commission. Out of balance 80% of the in-service graduates, C
13-1/3% posts were made available to the in-service graduate Grade II
Clerks to compete for those vacancies in their quota. Existing graduate
employees in the Personnel Department, subsequently extended to Ac-
counts Department and other Departments, were also permitted to com-
pete for direct recruitment quota and age qualification was relaxed. It was D
decided that seniority of directly recruited Senior Clerks vis-a-vis those
promoted to the Grade would be determined with reference to the date of
entry into the Grade.

By letter dated June 18, 1981, the Board had decided to fill up E
13.1/3% of the posts of Senior Clerks from-in-service graduate Clerks
(Grade II) by competitive examination to be held by the Railway Service
Commission. In the event of their non-availability it was decided to fill up
the residue vacancies by direct recruitment along with 20% direct recruit-
-r ment quota from open market. The orders issued thereunder were made F
) effective from October l, 1980 but no arrears are payable on that account.
The pay of the employees so appointed was decided to be fixed proforma
from October, 1, 1980 but the actual payment of emoluments as Senior
Clerks was allowed from the date of their actually taking over the charge
in that post. It was further decided that 40% vacancies in the said post
existing as on September 30, 1980 would be filled up in accordance with G
the orders in force prior to the issue of letter dated June 18, 1981. These
v-.., orders were made applicable to the non-Accounts Department as well as
Personnel Department and this ratio of 20 and 13.1/3 per cent between
direct recruitment and promotion of in-service graduate candidates was
made applicable to all in-service graduate Clerks (Grade II). H
280 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Letter dated January 20, 1981 clarified in para 2 (ii) that 10% of the
vacancies of Senior Clerks existing as on October 1, 1980 as per Board's
letter of November 10, 1980 were to be filled up by promotion from A -
amongst the existing Clerks (Grade II) of the Personnel Department on
seni01ity-cum-suitability basis. The direction was to obviate the confusion
that direct recruitment from open market would always be by merit. The
B
existing Clerks (Grade II) in the Presonnel Department were also made
eligible for 20% direct recruitment quota.

In the letter dated July 31, 1981 it was decided in para 2 (ii) that
13.1/3% of the vacancies in the posts of Senior Clerks existing as on
C October 1, 1980 made available by order dated June 18, 1981 were directed
to be fil.led up from amongst the in-service graduate Clerks (Grade I) in
the manner indicated in para 1 (ii) of the letter dated June 18, 1981. In
other words, out of 57.5% of the vacancies, 13-1/3% vacancies would be
available to the in-service graduate Clerks (Grade II) for recruitment by
D competitive examination by Railway Service Commission. The unfilled
vacancies would be thrown open to candidates from open market. Para 2
(iii) of this letter indicates that 10% vacancies thereof would be filled up
by direct recruitment through Railway Service Commission. The balance
10% vacancies having arisen on Qctober 1, 1980 against direct recruitment
quota were decided to be filled up by promotion of Clerks (Grade II) on
E the basis of seniority-cum-suitability as per the then existing procedure.
13.1/3% plus 10%, i.e., 23.1/3% of the vacancies were to be filled up from
amongst the in-service graduate Clerks (Grade II) by recruitment through
limited departmental examination. In other words, recruitment of graduate
in-service Grade-II Clerks as Grade I Clerks through Railway Service
F Commission was dispensed with. 10% of the vacancies out of 57.5% were
to be filled up by direct recruitment from open market. These orders were
made applicable to non-Personnel Departments also and this order, it was
clarified, was in supersession of their letter dated January 20,1981. All
graduate Clerks (Grade II) working in any Department were made eligible
to compete in the limited recruitment for selection as Grade I Clerks. This
G was open to all in-service graduate Clerks (Grade II) including SCs and
STs by open competition as well as by rule of reservation applicable to
them. In para 3, it was clarified that limited reservation to the extent of
13-1/3% by limited departmental examination or 10% by direct recruitment
would be applicable only if candidates from graduate Clerks (Grade II)
H were available. 80% of the posts should be kept unfilled for available
A.MUKHERJEEv. U.0.1. [K. RAMASWAMY,J.j 281

non-graduate Grade II Clerks for promotion as Grade I Clerks. A
By its Jetter dated January 5, 1982, Railway Board had modified its
earlier Jetter dated July 31,1981 relating to paras 2(ii), 2(iii) and 4 and
stated that vacancies arising on October 1, 1980 should be filled up as per
the manner indicated in para 2 (ii) of their letter dated January 20, 1981,
i.e., vacancies arising on October 1, 1980, i.e., 10% of the vacancies should B
be filled up by existing graduate Junior Clerks (Grade II) by limited
competitive examination by Railway Service Commission. The balance
vacancies should be filled up by promotion of non-graduate Clerks (Grade
II) on the principle of seniority-cum-suitability. .Yancancies existing on and
from October 2, 1980 should be filled up in the manner indicated in para C
2 (iv) of their letter dated July 31, 1981, i.e. 20% of vacancies by direct
recruitment w~ile graduate Clerks (Grade II) who are still available are .
eligible to compete in open competition on the principle of seniority-cum-
suitability but not on pure merit like open market candidates. It was made
applicable to all ministerial staff. Junior Clerks (Grade II) in all non-Per-
sonnal Departments also but not to Accounts Department. D

In the letter dated August 10, 1983 the Board has stated that pur-
suant to the order dated June 18, 1981 the promotion of personnel as
Senior Clerks would be effective from October 1, 1980 but no arrears were
payable on that account. However, they clarified that the "pay of the E
Railway servants appointed to the upgraded post was fixed pro forma from
l.10.1980 but actual payment of emoluments in the upgraded posts was
allowed only from the date they actually took over charge of the upgraded
post" and that "pro forma pay only in particular cases covered under the
above-quoted order dated June 18, 1981 would be counted for pensionary
benefits as a special case in relaxation of Rule 2545-P.II & para 501 MRHR F
1950".

In letter July 26, 1985 in para 1 it was stated that the limited
recruitment to in-service candidates and direct recruitment from open
market would be done on the same basis referred to above, namely, G
seniorty-cum-suitability to in-service candidates and merit to open market
candidates and this would be done on one time basis, through departmental
competitive examination as one time measure for the in-service candidates.

Thus we have three streams to fill up vacancies in the cadre of Senior
Clerks, i.e., Grade I Clerks in the pay-scale of Rs. 330-560. viz., (i) direct H
282 SUPREME COURT REPORTS [1996] 3 S.C.R.

A recruits from open market (20% of the Cadre strength); (ii) graduate
Grade II Clerks (13.1/3% direct limited recruitment through departmental
examination) and (iii) 80% non- graduate promotee-Grade II Clerks.
Those three streams continued to remain throughout the period. Though
the counsel on either side contended that their inter se seniority should be
determined with effect from October 1, 1980 or from the date of taking
B actual charge of the posts, the above letters do not deal with that contovcr-
sy.

The inter se seniority of the candidates is regulated under para 302
of the Railway Establishment (Volume I-Revised Edition, 1989) which
C reads as under :

"302. Seniority in initial recruitment grades. - Unless specifically
stated otherwise the seniority among the incumbents of a post in
a grade is governed by the date of appointment to the grade. The
grant of pay higher than the initial pay should not, as a rule, confer
D on railway servant seniority above those who are already appointed
against reguiar posts. In categories of posts partially filled by direct
recruitment and partially by promotion, the criterion for deter- °'
mination of seniority should be date of regular promotion after the ~
process in the case of promotee and the date of joining the working
E post after due process in the case of direct recruit, subject to
maintenance of inter-se seniority of promotees and direct recruits
among themselves. When the dates of entry into a grade of
promoted railway servants and direct recruits are the same, they
should be put in alternate positions, the promotees being senior
to the direct recruits, 1naintaining inter-se seniority of each group.
F
NOTE : In case the training period of a direct recruit is curtailed
in the exigencies of service, the date of joining the working post
in case of such a direct recruitment shall be the date he would
have normally come to a working post after completion of the
G prescribed period of training."

A narration of these facts clearly indicates the following conclusions:

(1) Vacancies in the posts of Senior Clerks existing prior to October
1, 1980 were 40%. Of them 20% were reserved for direct recruits by
H competitive examinetion through the recruitment agency, viz., Railway
A. MUKHERJEEv. U.0.1. [K. RAMASWAMY,J.] 283

Service Commission and 80% for promotees. A
(2) Vacancies in the posts of Senior Clerks arising on and from
'"· "' October 1, 1980 were 57.5%. Of them 20% would go to direct recruits and
80% to promotees.

(3) Among the in-service graduates out of 80%, 13.1/3% posts are B
reserved for graduate Clerks (Grade II). They were eligible for competition
as open candidates subject to in relaxation of age qualification. The unfilled
posts will be thrown open to open market candidates.

(4) The balance vacancies would be available to in-service non- C
graduate candidates. Senior-cum-suitability was the basis on which they
were entitled to be considered for promotion.

(5) For the vacancies which had arisen after October 2, 1980, 13.1/3%
and 10% were reserved for graduate Clerks, (Grade 11) subject to their
availablity. They would be recruited on the principle of seniority-cum- D
suitability. If no suitable in-service candidate is available the balance vacan-
cies will be filled up along with 10% vacancies by candidates from open
market. 80% vacancies will be available to non graduates, senority-cum-
suitability being the principle for promotion of non-graduate Clerks,
(Grade II) also.
E
(6) As one time measure, recruitment through Railway Service Com-
mission was dispensed with and limited recruitment by departmental com-
petitive examination would be conducted for selection of the graduate
Grade JI Clerks.
F
j ' (7) All in-service graJuate Clerks, (Grade II) appointed to Grade I
)
scale would get only pro forma promotion as Grade I Clerks from October
1, 1980 without any monetary benefits except for the prt1poses of pension.
They are entitled to emoluments with effect from the date they actually
took over the charge. It would be avallable for computation of pensionary
benefits. The inter se seniority would be as per para 302 i.e., the date of G
seniority in the grade is the date of appointment to a post in that grade.
The grant of higher pay, as a rule does not confer seniority above the
existing incumbents regularly appointed to the post. Among direct recruits
and promotees, the date of joining the working P'>St is the date for the
direct· .recruits and date of regular promotion, after completion of the H
""" '
284 SUPREME COURT REPORTS [1996] 3 S.C.R.

A process to order promotion, is the date for the promotees. Inter se seniority
is alternative, i.e., promotee first and direct recruit would be below him
and the same would continue in the order of merit in the respective lists
and the roster maintained by the Railway Administration. In other words ). >-·
promotee would be senior to direct recruits.

B In is seen that such of the graduate Clerks though appointed as
Grade II Clerks after October!, 1980 by process of selection through open
competitive examination or limited recruitment by departmental examina-
tion were upgraded under the aforesaid rules, they would not get the
promotion with effect from the pro forma date of October 1, 1980 but only
c from the date of their actual appointment as Grade II Clerks, notionally as .....
Grade I Clerks since their appointments are after October 1, 1980. The
inter se seniority of the 20% direct recruits on the one hand and limited
recruitment graduate grade II Clerks and promotees on the other, shall be
determined in accordance with para 302 of the Railway Establishment
(Volume !)"in the manner indicated above.
D
We have yet another source who claim parity with others. They are
ad hoc appointees de hors the rules. They are the appellants in C.A. Nos.
~.
@ SLP Nos. 2473-77/95. Admittedly, they were appointed de hoTS the rules.
Therefore, they can get seniority not from the date of their initial appoint-
' .•
E men! but from the date on which they are actually selected and appointed
in accordance with the rules and their appointment and seniority would
take effect from the date of selection after due completion of the process
and they would be junior to in-service as well as direct recruit candidates.
The inter se seniority should be reckoned accordingly.

F It would be clear that the directions in various letters of the Board
should be worked out in the above manner and the seniority should be
determined accordingly.
... "
Before parting with these appeals, we place on record the valuable
assistance rendered by S/Shri Dushyant Dave and Rajiv Dhavan, learned
G senior counsel for the respective direct recruit-graduate Grade II Clerks
and promotee Junior Clerks. But for the private parties fighting in this case,
we would not have received such an assistance to clarify the above legal ,,y
position. Had it been by the Union as usually we come across, it would
have been difficult since the assistance is scanty. This unhappy situation
H would have resulted in injustice to several persons. It is our sad experience
A. MUKHERJEEv. U.0.1. [K. RAMASWAMY,J.] 285

that in some cases even after reserving the cases for judgrnent and directing A
them to give their written arguments no one would take responsibility to
assist the Court. We hope that the Union of India and the Railway
Administration would take steps to see that necessary and needed assis-
tance would forthcome to the Court or the Tribunal to avoid undue burden
on this Court for proper adjudication of disputes. We hope that this B
unsavoury situation would not be repeated hereafter. We indicate that they
should make a particular officer responsibile to assist the counsel appear-
ing for them by placing all the necessary rules or instructions so as to
enable this Court or the Tribunal to adjudicate the disputes and reach
proper decision expeditiously.

The appeals are disposed of accordingly but in the circumstances,
c
without costs.

R.P . Appeals disposed of.

. ..

i)