Holding

Seniority in the Senior Clerk cadre is determined only from the date of regular promotion after due process; ad hoc service does not count for seniority.

Summary

The case concerned the inter‑se seniority of railway employees promoted to the post of Senior Clerk. Some respondents had been promoted on an ad hoc basis because a suitability test could not be held, while the appellants received regular promotion after a suitability test. The Central Administrative Tribunal had held that the ad hoc period should count for seniority, but the Supreme Court examined the Railway Establishment Manual, particularly paragraph 302, which mandates that seniority among promotees is based on the date of regular promotion after due process. The Court held that ad hoc service cannot be counted for seniority because it is a promotion de hors the rules and there is no provision allowing back‑dating of seniority. Consequently, the tribunal’s order was set aside and the seniority list based on regular promotion dates was affirmed.

Issues considered

The rule governing inter‑se seniority between promotees in the cadre of Senior Clerk.
Whether an ad hoc promotion can be treated as a regular promotion when the suitability test was delayed.
Whether seniority can be back‑dated to the date of the ad hoc promotion after regularisation.
The applicability of the Anuradha Mukherjee judgment to the present facts.

Subjects

seniorityad hoc promotionRailway Establishment Manualpromotion rulessuitability testinter se seniorityregular promotionservice law

Judgment

SWAPAN KUMAR PAL AND ORS. ETC. A

SAMITABHAR CHAKRABORTY AND ORS.

MAY 9, 2001

[G.B. PATTANAIK AND B.N. AGRAWAL. JJ.] B

Service Law

Roil11•c(\' Es1ahlish111e111 /\la1111al-Paragraphs 213. 21./(cj(V) and 302-
1nter-se Se11iority-Be/1l'ee11 ad hoc promo/ees and regular promotces_.:.. C
IV/w1her ad hoc period to he co11111cd for se11iori1y-Held. 110--Seniorily cm1
be counted 011~v ,fi-0111 the date of" regular pro111otio11, afier due process of
selection.

The respondents were promoted to the post of Senior Clerk on ad hoc
basis as no regular recruitment could be made by holding suitability test. D
Appellants, the in-service graduates, were declared suitable for promotion to
the grade of Senior Clerk and were given regular promotion. Thereafter
suitability test of the respondents was held and they were declared suitable
) for the post of Senior Clerk and were given regular promotion. Railway
Administration prepared seniority list as per Para 302 of Railway E
Administration Manual, wherein appellants were shown senior to the
respondents in the cadre of Senior Clerk on the basis of the date of regular
promotion, after due process of selection, not taking into account the ad hoc
service of the respondents.

Respondents challenged the Yalidity of Seniority list before the Centi;-al F
Administrative Tribunal which quashed the seniority list, holding that the ad
hoc service of the respondents would be counted f~~ their seniority as the
suitability test was delayed by the Railway Administration over which the
respondents had no control. Thus the respondents were declared senior. to
the appellants.
G
Subsequent to the judgment of the Tribunal and during pendency of
appeal to this court the competent authority regularised the ad hoc officiating
promotion, as a one time measure, as a special case.

In appeal to this Court, appellants and Railway Administration contended
641 1-1
642 SUPREME COURT REPORTS 12001] 3 S.C.R.

A that the period of service rendered by the respondents as ad hoc appointees
cannot be counted for the purpose of seniority, the criteria for determination
of seniority being the date of regular promotion after due process, and the
ad hoc promotion can be held to be de hors the promotion rules. Respondents
contended that the promotees having been promoted on ad hoc basis and
B being otherwise duly qualified to hold the promotional post and having passed
the suitability test later on, the past services rendered on ad hoc basis has
to be given credit; and that on account of lapses on the part of the
administration in not holding the suitability test at regular intervals, as
required under the relevant provisions of the Railway Establishment Manual,
the respondents cannot be made to suffer by not taking into account the ad
C hoc period of service for the purpose of seniority; and that the competent
authority, having approved the regularisation of ad hoc officiating promotion,
as a one time measure and as a special case, during pendency of the appeal,
it would be justified to treat that period for the purpose of seniority.

Allowing the appeals, the Court
D
HELD : 1. 1. The seniority of promotees in the cadre of Senior Clerk
can be counted only from the date of regular promotion, after due process
of selection. Though under Clause (V) of paragraph 214(c), a suitability test
is required to be held at interval, which should not be less than six months,
but in a case where such suitability test had not been held, as in the case
E in hand and persons are promoted from the Junior Clerk to Senior Clerk,
on the basis of their seniority on ad hoc basis. 1651-B-CI

G.P. Doval and Ors. v. The Chief Secretmy, Government of UP. 01id
Ors., IJ 9851 1 SCR 70; S.L. Kaul and Ors. v. Secret01y to Governmeni of
India, Ministry oflnformation and Broadcasting, New Delhi and Ors., I 19891
F Suppl )' SCC 147; Devendra Narayan Singh and Ors. v. State of Bihar and
Ors., 119961 1 SCC 342 and Sura) Prakash Gupta and Ors. v. State of J &
Kand Ors., 120001 7 SCC 561, distinguished.

1.2. Though the respondents who got their ad hoc promotion, were
G later on found. suitable in the test, and had been continuing from their
respective date of ad hoc promotion till they were regularised, after being
selected through due process, but that by itself cannot confer a right on them
to claim the ad hoc period of service to be tagged on, for the purpose of their
seniority inasmuch as there is no provision which says that an employee on
being regularly promoted, such regular promotion would date back to the
H date of original promotion in the cadre, which might have been on ad hoc
S.K. PAL v.S. CHAKRABORTY [PATTANAIK . .1.J 643

basis. When the service conditions are governed by a set of rules, in the A
absence of any rules, it cannot be held that regular promotion would date
back to the date of ad hoc promotion itself. 1653-E-FI

Anuradha Mukherjee and Ors. v. Union of India and Ors., (19961 9
sec 59, relied on.
B
2. The so-called :egularisation of ad hoc officiating promotion would
only confer the retrial benefit to the concerned employees and would not
count for the purposes of seniority in the cadre which has to be determined
in accordance with the rules. 1655-BI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 247of1997.
c
From the Judgment and Order dated 3.7.96 of the Central Administrative
Tribunal at Calcutta in O.A. No. 1360 of 1990.

WITH
D
Civil Appeal No. 3767 of2001.

L.N. Rao, P.P. Rao, P.P. Malhotra, Sr. Advocates Shambunath Singh, P.S.
Sudheer, Pratap Venugopal for K.J. John, Raj Kumar Gupta, Sheo Kumar
Gupta, A.N. Bardiyar, Ms. Shashi Kiran, Ms. Anil Katiyar for A.K. Sharma and E
Ms. Sushma Suri for the appearing parties.

The Judgment of the Court was delivered by

WITH
F
Civil Appeal No. 3767/2001.

[@Petition for Special Leave to Appeal (Civil) No. 6089 of 1998] (With
Appln. For condonation of delay in filing SLP)

PATTANAIK, J. The appeal filed by the private persons and the Special G
Leave Petition filed by the Union of India, are directed against one and the
same judgment of the Central Administrative Tribunal, Calcutta Bench in O.A.
No. 1360 of 1990. Though, the special leave petition by the Union of India
is barred by Iimitation, but in view of the fact that the leave has been granted
by this Court at the instance of the private persons and the judgment of the
tribunal is under challenge in appeal, it would be meet and proper to condone H
644 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A the dela)'._-Jn filing the special leave petition, and we accordingly condone the
delay in filing the special leave petition, and we accordingly condone the
same and grant leave therein.

The inter se seniority in the cadre of Senior Cl~rk under the Railway
B Administration between the promotees from the grade of Office Clerk (Clerk
Grade II) against 66-2/3% quota and the in-service graduates, working as
Junior Clerks, who were promoted through a limited departmental examination
against 13-113% quota is the subject matter of dispute. By the impugned order
of the tribunal, the promotees who were initially promoted on ad hoc basis
and later on, whose services were regularised, have been held to be entitled
C to count their ad hoc period also for the purpose of reckoning their seniority
in the cadre of Senior Clerk, whereas, according to the Railway Administration
as well as according to the appellants in Civil Appeal No. 247/97, the criterion
for determination of seniority being the date of regular promotion after due
process, the ad hoc period would not count for reckoning the seniority in the
promotional grade, which is the grade of Senior Clerk in the case in hand.
D Thus, the sole question that arises for consideration is whether the services
__rendered by the promotees on ad hoc basis in the post of Senior Clerk can
be allowed to be counted for the purpose of their seniority in the cadre of
Senior Clerk? -
E The cadre of Office Clerk in the scale of Rs. 950-1500 is filled up, 66-
2/3% by direct recruitment through the agency of ,the Railway Recruitment
Board and 33-113% by promotion by selection of specified Group 'D' staff,
the minimum educational qualification for a direct recruit being matriculate or
its equivalent examination with not less than 50% marks in the aggregate. The
next promotional post is the senior clerk in the scale of pay of Rs. 1200-2040.
F Under the Railway Establishment Manual, Paragraph (174), of the total
vacancies in the grade, 20% of the posts are filled up by direct recruitment
through the Agency of the Railway Recruitment Board, 13-1/3% through a
limited departmental competitive examination from amongst the serving
graduates clerks in tile scale of pay of Rs. 950-1500 through· the agency of
G the Railway Recruitment Board and 66-2/J% are filled up by promotion from
the Office Clerks. The present appellants were appointed on different dates
as Office Clerks (Clerk Grade II) in the year 1981-82, and. all of them are
graduates. The pri\·ate respondents were non-graduates and were serving as
Office Clerks in the scale of pay of Rs. 950- 1500. On diverse dates between
9.12.1982 to' 07.1.1984, these private respondents were promoted to the post ·~
H of Senior Clerk on ad hoc basis, as no regular recruitment could be made by
S.K. P/\L v.S. CllAKRABORTY 11'/\TT/\NAIK ..I.I 645

holding suitability test, because of certain stay orders passed by differer1t A
Courts. On 18.1.85, the appellants were declared suitable for promotion to the
grade of Senior Clerk against 13-1/3% meant for in-service graduate office
clerks. The suitability test of the private respondents, who had been promoted
on ad hoc basis was held and the result was declared on 28.2.1985. The
Railway Administration published a seniority list on 01.01.88, but the same B
had not been prepared in accordance with the relevant provisions for
determination of seniority, as contained in paragraph 302 of the Railway
Establishment Manual. A revised seniority list, therefore, was prepared on
02.11.89, in which list, the appellants were shown senior to the private
respondents in the cadre of Senior Clerk, on the basis of the date of regular
promotion, after due process of selection. The private respondents herein, C
challenged the legality of the aforesaid seniority list by filing O.A. No. 1360/
90 in the Central Administrati_ve Tribunal, Calcutta Bench. By the impugned
judgment, the tribunal having allowed the O.A. on the conclusion that the
period of ad hoc service of the respondents would count for their seniority,
since the suitability test was delayed by the Administration over which the
private respondents had no hand and having quashed the seniority list D
published on 2.11.89, and the private respondents having been declared
senior to the present appellants, the present appeal has been filed by grant
t of special leave and the Railway Administration has also filed the special
leave petition.
E
Mr. L.N. Rao, the learned senior counsel, appearing for the appellants
and Mr. P.P. Malhotra, the learned senior counsel, appearing for the Railway
Administration, contend that the question of inter se seniority in the cadre
of Senior Clerk being governed by the provisions contained in paragraph 302
of the Railway Establishment Manual and in case of promotees, the criterion
for determination of seniority being the date of regular promotion, after due F
process, the period of service rendered as ad hoc appointees cannot ,be
counted for the purpose of seniority and the tribunal, therefore, committed
serious error in counting the said ad hoc period and directing the private
respondents to be senior to the appellants. It is further contended that ~he
promotion of a railway servant to fill any post, whether a selection post or G
a non-selection post being subject to his found fit and only after passing the ·
test, which is condition precedent for being considered fit to hold the
promotional post and such a test in case of promotees having been made ohly
in the year 1985 and the results thereof having been declared only on 28.2.1985,
so far as the private respondents are concerned, the period prior to that date,
during which they'were holding the promotional post on ad hoc basis, coµld H
646 SUPREME COURT REPORTS 12001] 3 S.C.R.

A not have been counted for determining their seniority in the cadre of Senior
Clerk and the impugned order of the tribunal, therefore is erroneous. It was
then contended that in view of the provisions contained in the Railway
Establishment Manual, providing the procedure for promotion to the post of
Senior Clerk, the ad hoc promotion given to the private respondents cannot,
B but be held to be promotion 'de hors' the rules, and the conclusi~n of the
tribunal to the contrary, solely on the ground that the suitability test had not
been held at regular intervals, as provided in paragraph 2 I 4(c)(v) of the rules
and the employees had no fault, is erroneous. Lastly, it is contended that in
view of the decision of this Court in the case of Anuradha M11khe1jee and
Ors. v. Union of India and Ors., [ 1996] 9 S.C.C. 59, clearly indicating that ad
C hoc appointees being appointees de hors the rules, cannot get their seniority
from the date of their ad hoc appointment, but only from the date on which
they were actually selected and appointed, in accordance with the rules,
interpreting the very provisions of the Railway Establishment Manual, the
impugned decision of tribunal is unsustainable. -.

D Mr. P.P. Rao, the learned senior counsel, appearing for the private
respondents, on the other hand contended that inaction on the part of the

E
Railway Administration, to hold the suitability test for adjudging the eligibility
of the Office Clerks for promotion to the post of Senior Clerk against their
quota of 66-213% and the promotions granted to such office clerks on ad hoc
basis, who were eligible and found suitable, .cannot be a ground for not
-
counting the ad hoc period for reckoning seniority in the cadre of Senior
Clerk, when these promotees were otherwise suitable and in fact continuously
holding the post of Senior Clerk on ad hoc basis till their suitability was
adjudged by holding the test. The tribunal, therefore, was justified in reckoning
the ad hoc period for the purpose of their seniority in the cadre of Senior
F Clerk. Mr. Rao further contended that these promotees having been promoted
on ad hoc basis and being otherwise duly qualified to hold the promotional
post and, thereafter having passed the suitability test later on, the past
services rendered by them on ad hoc basis has to be given credit, and the
tribunal, therefore was right in its conclusion. Mr. Rao also urged that on
G account of lapses on the part of the administration in not holding the suitability
test at regular intervals, as· required under the relevant provisions of the
Railway Establishment Manual, the respondents cannot be made to suffer and
great injustice would be meted out to them, if the period rendered as ad hoc
is not taken into account for the purpose of seniority. Mr. Rao, further urged
that the promotees, not having been promoted beyond 66-2/3% quota available
H for them and in fact, there having been no impediment for granting regular
S.K. PAL v.S. CllAKRJ\BORTY[PATT/\NAIK . .1.J 647

promotion, which was not done because of the latches on the part of the A
Railway Administration in holding the suitability test, there is no rhyme or
reason, not to count the ad hoc services for the purposes of seniority in the
promoted cadre of Senior Clerk. Mr. Rao urged that the decision of this Court
in Anuradha Mukherjee's case will have no application to the case in hand
as the Court in that case was not dealing with the fact situation, where' the B
Administration is guilty of not having the suitability test at regular intervals,
as required under the Establishment Manual. Mr. Rao lastly submitted that
during the pendency of this appeal, the competent authority having approved
and regularised the ad hoc officiating promotion, as a one time measure and
as a special case, as per the letter of the Chief Personnel Officer dated 17th
July, 2000, in the eye of law, it cannot be said that they continued as ad hoc, C
and therefore, the conclusion of the tribunal is unassailable.

In view of the rival submissions made by the counsel for the parties,
the following questions arise for our consideration:

(a) What is the Rule, which governs the inter se seniority between D
the two competitive claimants in the cadre of Senior Clerk?
(b) The so-called ad hoc promotion of the respondents to the cadre
of Senior Clerk, whether can be held to be a regular promotion,
t after due process of selection, merely because the suitability test
had not been held at regular intervals, as was required to be held E
under paragraph 214{c)(v) of the Railway Establishment Manual?
(c) Is it possible to hold that on regular promotion being given, after
adjudging the suitability of the ad hoc employees by hol~ing
test, it dates back t_o the date of ad hoc promotion?
(d) Can it be said that the earlier decision of this Court in Anuradha F
M11khe1jee 's case, will have no application to the fact situation
of the present case?

So far as the first question is concerned, the post of Senior Clerk in the
scale of pay of Rs. 1200-2040. being filled up by direct recruitment,1 by
promotion and by limited departmental competitive examination from amongst G
serving graduates, the provisions of paragraph 302 of the !REM would govern
the seniority in the grade. The aforesaid provision is extracted herein below
in extenso:

"302. Seniority in initial recruitment grades - Unless specifically
stated otherwise, the seniority among the incumbents of a post in a H
648 SUPREME COURT Rl:l'ORTS 1200113 S.C.R.

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 on a
railway servant senior~ty above those who are already appointed
against regular posts. In categories of posts p<l,11ially filled by direct
recruitment and partially by promotion, the criterion for determination
of seniority should be the date of regular promotion after due process
B in the case of promotees and the date of joining the working post after
due process in the case of direct recruit, subj~ct 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
C positions, the promotees being senior to the direct recruits, maintaining
inter-se seniority of each group.

Note-In case the training period of a direct recruit is curtailed in the
exigencies ofservice, the date of joining the working post in case of
such a direct recruit shall be the date he would have normally come
D to a working post after completion of the prescribed period of training.''

On a plain reading of the aforesaid provision, it is crystal clear that date Of
regular promotion after due process of selection would be the date from which
seniority in the cadre of Senior Clerk would count. In the case in hand, the
appointment of the respondents in the cadre of Senior Clerk against 66-2/3%
E quota as well as the appointment of the appellants in the said grade against
13-1/3% quota, through limited departmental competitive examination are by
way of promotion from the cadre of Office Clerk. The inter se seniority,
therefore, of these two categories of personnel in the cadre of Senior Clerk,
would be from the date on which each one of them were promoted after theii'
regular selection by due process of selection. In other words, when promotion
F is given after holding the suitability test~ on adjudging the suitability of the.
employee, then the promotion can be held to be a regular promotion and not
earlier. In the case in hand, so far as the appellants are concerned, the relevant
date would be 18.1.1985 and so far as the respondents are concerned, the
relevant date would be 28.2.1985. The ad hoc services rendered by the
G respondents for different periods from 9.12.1982 till they were regularly
absorbed on adjudging their suitability by holding test, cannot be reckoned
for the purposes of their seniority in the cadre of senior clerk. The conclusion
of the tribunal is contrary to the aforesaid pro.vision of the Rai Iway
Establishment Manual and cannot be sustained.

H Coming to the second question, the relevant provision dealing with this
S.K. PAL 1·.S. CHAKRABORTY iPATl;\N.i\IK . .I.I 649
aspect is paragraph 214 of the Rai Iway Establishment Manual. Paragraph 213 A
also deals with the question of promotion. Both the above-said paragraphs
--t: are quoted herein below in extenso:

"213. Promotion.

(a) A Railway servant may be promoted to fill any post whether a B
selection post or a non-selection post only if he is considered
fit to perform the duties attached to the post. The General ·
Manager or the Head of Department or Divisional Railway
Manager may prescribe the passing of specified departmental or
other tests as conditions precedent to a Railway servant being C
considered fit to hold specified post; such rules should be
published for the information of the staff concerned.

(b) Unless specifically provided otherwise, the promotion shall be
made without any regard for communal or racial consideration."

"214. (a) Non-selection posts will be filled by promotion of the senior D
most suitable Railway servant . Suitability whether an individual or a
group of Railway Servants being determined by the authority
competent to fill the posts on the basis of the record of service and/
or departmental tests if necessary. A senior Railway servant may be
passed over only if he/she has been declared unfit for holding the E
post in question. A declaration of unfitness should ordinarily have
been made sometime previous to the time when the promotion of the
Railway servant is being considered.

(b) When, in filling of a non-selection post, a senior Railway servant
is passed over the authority making the promotion shall record briefly F
the reason for such supersession.

(c) In respect of promotion to non-selection post, the following
principles should be followed:-

(i) Staff in the immediate lower grade with a minimum of 2 years G
service in that grade will only be eligible for promotion. The . 1

service for this purpose includes service, if any rendered on ad
. hoc posts followed by regular service without break. The
condition of two years service should stand fulfilled at the time
of actual promotion and not necessarily at the stage of
consideration. H
650 SUPREME COURT REPORTS 12001] 3 S.C.R.

A (ii) The number of eligible staff called for consideration should be
equal to the number of existing vacancies plus those anticipated
during the next four months due to normal wastage (i.e. retirement/
superannuation), likely acceptance of· request for voluntary
retirement, staff approved to go on deputation to other units,
staff already empanelled for the ex-cadre posts, creation of
B additional posts already sanctioned by the competent authority,
and staff likely to go out on transfer to other Railways/Divisions.

(iii) Where non-selection posts are tilled from different categories of
staff, no hard and fast limits need be prescribed as to the number 'f.
of the cai1didates to be admitted from each eligible category. In
c cases where posts are to be filled on the quota basis it should
be ensured that each category is adequately represented within
the overall number of candidates called up. Employees passing
the suitability test should only be placed in the select list.
Employees not qualifying in the test should not be taken merely
D to make up the quota fixed.

(iv) An empl5yee who has passed a suitability test once need not
be called for the test again and should be eligible for promotion
.II""-
as and when vacancies arise. >-~

(v) A suitability test should be held at the interval which should not
E
be less than six months. All the eligible candidates as per their
seniority including those who failed at the last test should be
called. The period of six months is reckoned from the date of
announcement of the result.
(vi) If an employee fails in a suitability test but i~ called up again,
F
a suitability test, after a time lag of six months and he passes
the same, he should be given preference over his junior who had
passed the suitability test earlier than him but is still waiting to
be promoted for want of a vacancy.
G It is thus apparent that a promotion can be given only when the employee
concerned is considered fit to perform the duties of the higher post and a
person can be considered fit only after he passes the·prescribed test held for
the purpose. The post of Senior Clerk being a non-selection post, it is
required to be filled up by promotion of the senior-most suitable railway
servant in the feeder cadre. A senior railway servant can be superseded when
H he/she is declared unfit for holding a promotional post. The rules also further
S.K. 1'(\L v S. CllAKR/\BORTY IPATTANAIK . .I.I 651

provide that when a senior rai Iway servant is passed over, the authority must A
record briefly the reasons for supersession. The procedure for making
promotion to non-selection post has been indicated in paragraph 214(c) refened ·
to above. Clause (iii) of para 214( c ), unequivocally indicates that the employees
only after passing the suitability test, should be placed in the select list and
further those, who do not pass the qualifying test, they cannot be given
promotion merely to make-up the quota fixed for them. It is no doubt true that B
under Clause (v) of paragraph 214(c), a suitability test is required to be held
at interval, which should not be less than six months. But in a case where
such suitability test had not been held, as in the case in hand and persons
are promoted from the Junior Clerk to Senior Clerk, on the basis of their
seniority on ad hoc basis, such ad hoc promotion by no stretch of imagination C
can be held to be regular promotion after due proGess of selection. It can be
a promotion by due process only when the suitability test, as indicated in
paragraph 2 l 4(c )(iii) is held and the concerned employee qualifies the said
test. It is necessary in this connection to notice some of the decisions relied
upon by Mr. Rao, appearing for the respondents, in support of the conclusion
of the tribunal that the suitability test not having been held earlier, ad hoc D
promotion must be held to be regular promotion. The first case which Mr. Rao
relied upoil is the case of G.P. Doval and Ors. v. The Chief Secretary,
Government of U.P. and Ors., [ 1985] I S.C.R. 70. In the said case, the inter-
se seniority amongst the Khandsari Inspectors was the subject matter of
dispute. There was no rule, governing the inter se seniority and in the E
absence of any specific rule of seniority, governing a cadre of a service, the
Court held that length of continuous officiation will provide a more objective
and fair rule of seniority. It is in this context, this Court had observed that
if a stop-gap appointment is made and the appointee appears before the
Public Service Commission, when the latter proceeds to select the candidates
F
and is selected, there is no justification for ignoring his past service. But this
decision will have no application where a rule subsists, governing the inter
se seniority in a cadre and in the case in hand, the rule is paragraph 302 of
the IREM. Therefore, the general principles enunciated in the aforesaid decision
will have no application. The next case relied upon by Mr. Rao was the case
of S.l. Kaul and Ors. v. Secretarv to Govt. of India, Ministry of Information G-
and Broadcasting, New Delhi and Ors., [ 1989] Supp. I S.C.C. 147. In this
case, the seniority in the cadre of Monitor in All India Radio was the subject
matter for consideration. The post of Monitor was upgraded and made
equivalent to the post of Central Information Service Grade IV and was re-
designated as Sub-Editors (Monitoring). The Central Government did the
upgradation and enhancement of pay by order dated 29th June, 1968. But the H
-/
\

652 SUPREME COURT REPORTS [2001] J S.C.R.

A-. relevant schedule was amended and the posts were included in the Central
Information Service Grade IV by Notification dated 9th May, 1972. It is in this
context, this court held that the Monitors in All India Radio could be
legitimately held to be in Central lnfonnation Service Grade IV w.e.f. 29:'6.1968
and not from 09.S.1972, as they had been inducted into Grade IV of the Central
Information Service from 29th June, 1968, when the post was brought at par·
B with Group IV and the post wa~ re-designated as Sub-Editor and the employees
had received that post and pay after obtaining the approval of the department
of Personnel as well as the Union Public Service Commission. It is in that
context, this Court had observed that even though, the actual inclusion of the
post of Monitor in the Central Information Service was made much later, but
C the fact remains that they were to all intent and purposes, treated as Grade
IV post in the Central Information Service with effect from the date when the
post of Monitor was re-designated with revised pay scales and became
equivalent to Grade IV in the Central Information Service. Therefore, on
account of the lapse on the part of the Government, the employees cannot
be made to suffer. This decision also in our considered opinion will have no
D application inasmuch as under the relevattt rules, holding a test and passing
of the test is a condition precedent for promoting an employee from the Office
Clerk to the Senior Clerk and any promotion in contravention of the same
cannot be a promotion on regular basis. The next case relied upon by Mr. Rao
was the case of Devendra Narayan Singh and Ors. v. State of Bihar and Ors.,
E (1996) 11 S.C.C. 342. ln this case the year of allotment of an officer was the
subject matter of consideration. The concerned authority had committed error
by not preparing the select list for the year 1983 and pursuant to the directions
of the Supreme Court, the appropriate authority on re-consideration, included
the names in the select list for the year 1986. The Court on consideration· of
' list can
the facts of that case came to hold that in the eye of law, the select
F be held to be a select list for the year 1983 and, therefore, the year of allotment
of the employee concerned is required to be determined on the basis that he
was in the select list for the year 1983, though that list was prepared in the
year 1985 and was approved by the Union Public Service Commission in the
year 1986. We fail to understand, how the aforesaid judgment will be of any
G application to the case in hand, when because of interim direction in pending
cases, regular promotion had not been given and the cadre of Senior Clerk
was being manage·d by granting ad hoc promotion to the respondents. The
next case relied upon by Mr. Rao is the case of Suraj Parkash Gupta and
Ors. v. State of./ & Kand Ors., (2000] 7 S.C.C. 561. In the aforesaid case,
011 consideration of the relevant rnles governing the service conditions of the
H Assistant Engineers of the J & K Government, the Court had observed that
S.K. PAL 1·.S. CH/\KR1\BORTY IPATTANAIK . .I.I 653 ,f
ad hoc or temporary service of a person, appointed by transfer as an Assistant A
Engineer or by promotion as an Assistant Executive Engineer can be regularised
through the Public Service Commission and Departmental Promotion Committee
from an anterior date in a clear vacancy in his quota, if he is eligible and found
suitable for such transfer or promotion, as the case may be, and his seniority
will count from that date. The aforesaid conclusion was drawn because of the B
provisions of Rule 23 and Rule 15 of the J & K Rules but in the case in hand,
there is no provision, which has been brought to our notice, which enables,
the appointing authority to regularise a promotion from an anterior date,
though the suitability test is held at a later date. In the absence of any such
provision in the rules in question, the ratio of the aforesaid decision, on
interpretation of the relevant rules of J & K Engineering Rules will have no C
application. In the aforesaid premises, we have no hesitation in coming to the
conclusion that merely because a suitability test had not been held at regular
intervals, an employee promoted on ad hoc basis can claim that it is a regufar
promotion after due process of selection. As such the seniority of promotees
in the cadre of Senior Clerk can be counted only from the date of regular
promotion, after due process of selection. D

So far as the third question is concerned, it is no doubt true that the
respondents, who got their ad hoc promotion between the period 9th December
1 1982 to 7th January, 1984, were later on found suitable in the test that was
held and the resu·1t of the said test was published on 28th February, I 985. It E
'is also true that they had been continuing from their respective date of ad
hoc promotion till they were regularised, after being selected through due
process. But that by itself cannot confer a right on them to claim the ad hoc
period of service to be tagged on, for the purpose of their seniority inasmuch
as there is no provision which says that an employee on being regularly
promoted, such regular promotion would date back to the date of original F
promotion in the cadre, which might baveoe~1 on ad hoc basis. When the
service conditions are governed by a set of rules, in the absence of any ry.les,
it is difficult to hold that regular promotion would date back to the date of
ad hoc promotion itself. We, therefore, answer the question in the negative.

So far as the earlier decision of this Court in Anuradha Mukherjee 's
G
case, (1996] 9 S.C.C. 59, is concerned, to which, one of us (G.B. Pattanaik, J),
was a party, the Court was considering the question of seniority in the very
cadre, as in the case in hand. On consideration of the relevant provisions, it
did consider the case of appointees de hors the rules, in paragraph 15 of the
said judgment, and it was held that appointees de hors the rules can get H
654 SUPREME COURT REPORTS [2001] 3 S.C.R.

A seniority not from their initial appointment, 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. Mr. Rao contends that in the case of Anuradha
Mukherjee's case, the Court had never faced the question of non-holding of
suitability test, as required under law. But that in our view, will not change
B the effect of the judgment. The ad hoc promotion made in the present case,
without holding any test for adjudging the suitability, has to be held promotion/
appointment de hors the rules, and therefore, the ratio of the aforesaid judgment
would apply also to the case in hand. Consequently, any period served by
any promotee prior to 28.2.1985 on ad hoc basis cannot be counted for the
c purposes of seniority in the cadre of Senior Clerk. ""'
In view of our conclusion on the aforesaid four questions, we
unhesitatingly hold that the impugned judgment of the tribunal is wholly
unsustainable in law, and we, accordingly set aside the same. Necessarily,
therefore, the seniority list as on 01.6.1989 and published on 02.11.1989 is
b affirmed and 0.A.No. 1360 of 1990 stands dismissed.

Before we part with this case, it would be necessary also to examine a
situation which arises subsequent to the impugned judgment of the tribunal,
while the appeal was pending in this Court. On behalf of the respondents, an ~
interlocutory application had been filed, appending the letters dated 25.2.1999
E
and 17.7.2000. Mr. P.P. Rao, the learned senior counsel, appearing for the
respondents placed reliance on the aforesaid document dated 17.7.2000 and
contended that the competent authority having approved the regularisation
of ad hoc officiating promotion, as a one time measure and as a special case,
there would not be any justification not to treat that period for the purpose
F of ~~niority and, therefore, the conclusion of the tribunal can be sustained
~

on this ground also. It is true that the document has come into existence while ;--
the appeal was pending and the appellants have not taken any steps by way
of amending the memorandum, but the very proposal for regularisation of ad
hoc period of service, as indicated in the letter of the Divisional Railway
Manager dated.25.2.99 would establish the purpose behind such regularisation.
G The comp·etent authority felt that unless the ad hoc period is regularised,
future complications, conseque·nt upon the retirement may arise. It is, therefore,
not to deny any retiral benefit, the ad hoc promotion was sought to be
regularised and the appropriate authority did approve the same as a one time
':-
measure with the caution that it should not happen in future. But that would
H not change the principle of inter se seniority, which is governed by the
S.K. PAL 1·.S. CllAKR;\BORTY JPJ\lli\NJ\IK . .1.J 655

provisions, contained in paragraph 302 of the Railway Establishment Manual, A
which we have already considered and answered. Then again, frdm the
aforesaid letter of approval dated 17. 7.2000, it is not clearly discernible, as to
whether under the order in question, it is the service of these respondents
which was sought to be regularised. We need not further delve into the
matter, as in our view the so_~~'!lled regularisation of ad hoc officiating promotion B
would only confer the retiral benefit to the concerned employees and would
not count for the purposes of seniority in the cadre which has to be determined
in accordance with the rules, as already discussed. These appeals are
accordingly allowed. There would be no order as to costs.

KKT. Appeals allowed.

1