1. This is an application under Section 19 of the Administrative Tribunals Act, 1985 for order/direction for setting aside/quashing the orders nos. (Ka/255/ 8/Karkhana (IX) dated 12.11.1990 passed by the General Manager (Personnel) Gorakhpur, communicated by the Chief Work Shop Manager (Personnel) Izatnagar letter No. (Ya/Ka/ 255/1/Super dated 26.11.90 (Annexure-1) and letter No. (Ka/255/8/Karkhana (IX) dated 15.3.91) passed by the General Manager (P) Gorakhpur as communicated by order No. 57 letter No. Ya/Ka/210/1 chargeman 'A' dated 23.1.91 (correctly 22.3.91 (Annexure-2, order or direction to respondent no. 1 and 3 for fixation of the applicant's pay and seniority of cadre of Chargeman 'B' (Rs. 1400/- --2300/-) with effect from 10.11.76 or 1.7.74 to reinstate the applicant to the post of chargeman cadre 'A' (Rs. 1600/- --2600/-) with retrospective effect, to pay the difference of salary grade of Rs. 1400/- --2300/-) and (Rs. 1600/- --2600/-) with effect from 15.3.1991 till reinstated.
2. There is no dispute between the parties in respect of the following facts: (i) The applicant on 6.3.76 submitted an application Annexure-3 to the Deputy Chief Mechanical Engineering (Personnel) on the averment that he is the senior most amongst SC/ST candidates in the department and had also passed the apprentice course, and the vacancy created in July on the retirement be allotted to him.
(ii) Vide Office order No. F/P/2739 dated 2.9.76 issued from the Deputy Chief Mechanical Engineer (Workshop) Izatnagar the applicant was called for an interview on 3.9.76 at 10 O'clock and thereafter he was put for practical test tb supervise the painting/training of I and II Class coach upto 16.9.76 under the supervision of Production Engineer (Workshop) Izatnagar for the post of chargeman 'B' vide Annexure-IV and V. (iii) The applicant passed the aforesaid test, the post was reserved for SC candidate, the applicant being the senior most was appointed on ad hoc basis vide letter No. M/E-210/Carriage dated 8/10.11.76 issued by Mechanical Engineer (Workshop) Izatnagar which was approved by aGeneral Manager (Personnel), Gorakhpur letter No. Ka/20/210/8/1/Misc./Workshop/IX dated May 12, 1978 addressed to the Secretary (Establishment) Railway Board, New Delhi, Marked as Annexure-6.
(iv) Regular Selection of Chargeman Grade 'B' was to be held on 28.5.77 for which applicant was not sent to the head quarter.
(v) Vide order dated 31.7.81 Annexure-9, the applicant was promoted from the post of Chargeman Grade 'B' to Chargeman Grade 'A' to the Deputy Shop Superintendent rank for a period from 7.7.81 to 21.8.81.
(vi) The applicant made the representations dated 15.1.82, 8.2.82 to the Deputy Chief Mechanical Engineer (P), Izatnagar who forwarded the same to the General Manager (Personnel) Gorakhpur vide his letter dated 26.3.82 marked as Annexure-9.
(vii) The head quarter vide its letter dated 8.3.83 marked as annexure-10 replied that since all formalities have been completed under the supervision and the control of the Deputy Chief Mechanical Engineer, hence the decision on the applicant's representation may also be taken at his end.
(viii) The Deputy Chief Mechanical Engineer (Workshop) Izatnagar vide his letter dated 2.6.83 again sent a letter to the head quarter marked as Annexure-C.A. IV. (ix) The formal selection for the post of Chargeman Grade 'B' was announced by the office of Deputy Chief Mechanical Engineer (Workshop) Izatnagar (22.7.83). The applicant participated in the examination underprotest marked as annexure-9.
(x) The applicant was formally selected for the post of Chargeman Cadre 'B' vide office order No. 371 dated 7.10.83.
(xi) Vide office order no. 405 dated 19.2.85 Shri Lalit Mohan Tiwari was promoted to the post of Chargeman Grade 'A' vide annexure-13.
(xii) The Deputy Chief Workshop Manager (Personnel) Izatnagar vide letter dated 3/4.12.89 regarding fixation of the seniority of the applicant submitted his recommendation to the General Manager (Personnel) Gorakhpur marked as Annexure-14.
(xiii) The head quarters vide their letter No. E/8/WS/Misc./IX dated 29.3.88 directed the Deputy Chief Workshop (Mechanical) Izatnagar that the correct seniority of the applicant would be taken at his end keeping in view his Railway Board direction contained in letter dated 3.11.81 for fixation of Class-III Staff against created post marked as annexures 15 and 16.
(xiv) The Deputy Chief Workshop Manager (Personnel) Izatnagar vide letter dated 6.5.88 marked annexure-17 submitted to the head quarter.
(xv) The applicant represented his case vide representation dated 2.9.88 marked as Annexure-19 to the Deputy Chief Workshop Manager, Izatnagar.
(xvi) Vide office order No. 29 dated 27.2.89, the applicant has completed two years as Chargeman Grade 'B' was promoted to the chargeman Grade 'A' (Rs. 1600-2660 against the vacancy of Deputy Shop Superintendent who was appointed in the Paint shop with immediate effect as annexure-20.
(xvii) The applicant being aggrieved by the decision of the General Manager (Personnel) Gorakhpur dated 12.11.90 as communicated to the applicant on 26.11.90, submitted representation dated 28.11.90 to the General Manager (Personnel) Gorakhpur.
(xviii) The representation was decided by the General Manager (Personnel) Gorakhpur which was conveyed on 23.3.91 marked as Annexure-23.
3. The applicant's case in brief is that he was the senior most person in SC/ST candidates in the entire workshop Grade working under the Chief Workshop Manager (Personnel), Izatnagar and there has been no adverse entry in his A.C.R. throughout. On 1.7.74 the vacancy of Mistri Grade-I on the retirement of Harish Prasad was created which was liable to be filled up by SC/ST candidates according to 40% point Roaster, the applicant being senior most and ablest person and was entitled to get the said post according to the seniority. On the basis of letter No.N/MW/-71 PMI/221 dated 28.9.71 which was envisaged upto three grade below of selection and also upon the upgradation of post as per recommendation of Mia Bhai Award Workshop in the paint shop, the applicant became entitled for the post of Chargeman Grade-B. The regular selection which was to be held on 28.5.77, due to illegal administrative errors, the applicant's name who was eligible and qualified in all respect was not sent to head quarters, due to which the applicant was not regularised to the post of Chargeman Grade-B which he has held since 8/10.11.76. Since the applicant was deemed to be regularised for the said post from 8/10.11.76 for which he is protected from the Railway Circular No. E(NW) 63 PM 1/92 dated 15/17.9.64 marked as Annexure-7. The juniors to the applicant Shri Ramesh Avadh Gaur, R.P. Goyal, Swami Saran Vidyarthi, Lalit Mohan Tiwari, B.B. Upadhyay were illegally promoted earlier to the applicant due to administrative error of the department. Shri Har Bhajan Singh was called for the selection and selected. The applicant is entitled to the fixation of seniority of the post Chargeman Grade-B with effect from 8/10.11.76. As per Railway Board Circular, if there is an administrative error in respect of promotion, correct seniority must be determined, pay on higher grade fixed proforma at the stage as if he was at the proper time promoted. Ad hoc service without break being considered to the promotion for the next higher grade. The reservation for SC/ST is applicable in cases of posting. On the basis of seniority and suitability and seniority subject to rejection. No so called notice was issued, no opportunity was afforded to the applicant to the passing of reversion order. Hence, this application.
4. The respondents have denied the said allegations and stated that the applicant was appointed as Trade Apprentice in the paint/Trade with the scale of Rs. 60/- 130/- on 1.12.62 and was deemed to have been confirmed on 30.1.65. Swami Sharan Chargeman was senior most employee working from 1.1.84. Shri Harish Prasad who was retired from the post of Grade I from Trimer Trade on attaining the age of superannuation with effect from 30.6.74 was from the different trade and seniority group hence the applicant cannot claim his promotion on the basis of being SC/ST candidate particularly in the circumstances when he belongs to different trade and seniority of group. The post of Mistry was filled on the suitability test from the highly grade II and not skilled by on the scale of Rs. 260/- --400/ -. Three posts of mistries were upgraded for the post of Chargeman-C now chargeman B under Mia Bhai Award and became selection post to be filled up by the true act of selection by purely constituted selection group.
5. The Railway Board vide their letter No. E(NG)-1-81/P.M.1734(16.7.81) approved that the selection of Chargeman C and B in the workshop will be made from highly skilled grade and Mistri Grade-I which was filled by selection. Promotion on the basis of ad hoc will not claim any seniority and retention etc., in this grade without having selected by the duly selection board. The suitability of the applicant was adjudged by the railway to consider for ad hoc, the same will not confirm any prospective right to continue the same. The post of chargeman was a headquarter control post and was to be filled by combined seniority list of the entire workshop of N.E. Railway Izatnagar Gorakhpur and Samastipur Workshop. The applicant was junior in the combined seniority list, was not entitled to be called for selection. The selection was postponed and no junior to Harbhajan Singh--the applicant was called for selection as notified by headquarter. The juniors they have passed the departmental examination 25% of quota of Chargeman B and 50% vacancy of Chargeman B (Direct recruitment quota) prior to the applicant, hence they stand promoted as Chargeman B in the scale of Rs. 1400/- --2300/- and Chargeman A in the grade of Rs. 1600/- --2660/- earlier to the applicant. The provisional list published by the department marked as C. A. II and C. A. III gives support to the said averment. The promotion of Chargeman-A was on ad hoc basis. The post of Chargeman-B in the scale of Rs. 425/- - 700/- as decentralised by General Manager (Personnel) North Eastern Railway Gorakhpur (IX)/15.7.92. As such the matter was rightly referred back to then Dy.
C.M.E./Shop. Izatnagar for further necessary action. Earlier to it the post of Chargeman-B was controlled by the headquarter.
6. On post of chargeman B, the applicant was temporarily and regularly working with effect from 7.10.83. Shri Lalit Mohan Tiwari senior most scale Rs. 425/- --700/- and was found suitable for promotion for chargeman-A scale Rs. 550/- --Rs. 750/- vide office order No. 405 dated 19.12.85. No post of Mistry paint was available as on 1.7.74. The representation of the applicant was decided by the General Manager (Personnel) N.E. Railway rightly. All actions taken by the respondents are in confirmity with the rules and directions. Articles 14 and 16 of the Constitution of India is not violated. The relief prayed is barred under Rule 10 of the Central Administrative Tribunal Procedure Rule, 1985, Hence the application is liable to be dismissed.
7. It is alleged by the applicant that on the basis of letter no. E(MG) I-7(i) PMI/221 dated 28.9.91 which envisaged upto three grades below of selection and also upon the upgradation of post as per recommendation of Miabhai Award in the Paint Shop. The applicant became entitled for the post of Chargeman Grade 'B'. The reply to this para is contained in para B of C. A. which is to the effect that the contents of para (iv) of the application is not admitted in the form as they stand. In reply to that, it is submitted that the post of 'Mistry' was filled in by suitability test from highly skilled Grade II and not by the skilled grade of Rs. 260-400 as per extant rules. It is further alleged that three post of 'Mistry' were upgraded to the post of Chargeman 'C' Now Chargeman 'B' under Mia Bhai Award and selection post to be filled up by the Act of selection by a duly constituted selection Board.
Accordingly, the Railway Board vide letter No. E(MG)-1-81/PM/34 dated 16.7.81 approved that the selection of Chargeman 'C' now 'B' in the workshop will be made from Highly Grade I and Mistry Grade I. If rejoinder is perused, reply to this para is contents in para 9 which is to the effect that the averments made in para No. 4 (iv) of the O.A.are reiterated.
8. If we peruse the annexure attached to O.A., CA and RA, we find that the Railway Board Circulated circular dated 16.7.81 referred above and the Railway Board letter referred above dated 28.9.91 has not been filed by the parties who have referred them in their pleadings.
9. By annexure CA-I, the applicant was appointed as Chargeman Grade 'B' on adhoc basis. It is useful to quote the office order no. 280 by which the applicant was appointed on adhoc basis:-- "Shri Harbhajan Singh Painter T/2739 (S/C) (260-400) is promoted to officiate as Chargeman 'B' (425-700) and posted in the Paint Shop against the vacancy caused due to retirement of Shri Harish Pd.
Ch/Man 'B'. This promotion is purely on adhoc basis and will not confer upon him and claim for seniority and retention etc. in this grade without having selected by a duly constituted selection Board.
His pay is fixed at Rs. 425/- p.m. This promotion has been made against the reserved vacancy for S/C. (2) Shri Mewa Ram Mistry Grade (380-560), who was temp. promoted as Mistry Gr. I against the vacant post caused due to retirement of Shri Harish Pd. Ch/Man is reverted to his substantive post of H/Skilled Gr. II (Trimmer) against the existing vacancy. His pay is fixed at Rs. 420/- in scale Rs. 330-480.
The promotion of item No. 1 will have effect from the date he assumed the charge of the post of Chargeman 'B' (425-700).
10. By perusal of the said order, we come to the conclusion that the applicant was appointed purely on adhoc basis and will not confer upon him any claim on seniority and retention etc. in this grade without having been selected in the Selection Board. Thus, the post of Chargeman 'B' was a selection post and the appointment was on adhoc basis.
11. 1998 (2) (CAT) All India Services Law Journal 185 Dr. Prem Lata Choudhary and Anr. v. Employees State Insurance Corpn. and Ors. decided on 6.5.97 by the Principal Bench, New Delhi has clearly laid down that adhoc period cannot be counted towards the seniority by following the judgment of Director General, E.S.I.C. and Anr. v. Trilok Chandra and Ors. decided on 10.12.93 by the Apex Court of Land, D.N. Agrawal v.State of M.P. reported in 1990(2) SCC 553 decided by the Apex Court of the Land.
12. In the present case also the appointment was purely on adhoc basis.
Hence the applicant cannot claim on the basis of the said appointment any seniority though he continued on the said post till his selection was made on 7.10.83 and appointed vide annexure A-12.
13. By perusal of letter dated 3.12.87, a recommendation regarding seniority was submitted in respect of the applicant. That does not confer any right on the applicant as it was only a recommendation and it was within the province of Mahapradak Gorakhpur to act upon it or not to act upon it. No order in this respect has been submitted to this Tribunal.
14. As the applicant cannot claim any seniority since 8/10-11-76, his case of seniority since his selection on 7.10.83 as Chargeman Grade 'B' Annexure - 12 stands proved.
15. In the mid of this period 7.7.81 to 21.8.88 he has held the post of Chargeman Grade 'A' which also not confer any right as the said post was also held by him as adhoc employee.
16. After selection in 1983 he became junior to Lalit Mohan who was promoted Chargeman Grade 'A' on 19.2.85 and hence there appears no irregularity in the action of the Respondents.
17. A person holding the post on adhoc basis has no right to continue on the said post particularly when it is a selection post, no selection has been made, not entitled to any adhoc seniority on the basis of adhoc appointment and reversion from the post holding, fixing of seniority and representation of the applicant, decision thereupon cannot be said to be irregular or illegal.
18. In the result, the applicant is not entitled to any relief as asked for and hence the O. A. is liable to be dismissed and is dismissed accordingly with costs amounting to Rs. 650/-(Legal Practitioner's fee Rs. 500/- plus other expenses Rs. 150/-).