D. P. GUPTA, J. - (1.) THE petitioner was initially appointed in the Railway Service on May, 2, 1951 as a semi-skilled carpenter in the Carriage Building and carriage Repair Trade (hereinafter briefly referred to as CB & CR Trade) in the Mechanical Department of the Northern Railway and was gradually promoted to higher posts in the aforesaid trade. He was ultimately promoted to the post of Chargeman Grade (B) in a substantive capacity. By the order dated July 4, 1966 the petitioner was given an officiating promotion on the post of Chargeman Grade (A) in the grade of Rs. 335-425 (AS) purely as a temporary measure, pending selection in accordance with the relevant rules and since then he continued to hold the said post. According to the petitioner, the Railway Board also signified its approval to the officiating promotion of the petitioner on the post of Chargeman Grade (A) vide its letter dated December 27, 1966. As the posts of Chargeman Grade (A) in the grade of Rs. 335-425 (AS) in CB & CR Trade are selection posts, a Selection Board was constituted for the purposes of making selection for appointment to the aforesaid posts and as a result of such selection a final panel of selected persons was published by the General Manager (P), Northern Railway vide his letter dated June 15, 1970. In the aforesaid panel, one S. R. Srivastava was placed at No. 1 while the petitioner was placed at No. 2 in the order of preference amongst the selected candidates for appointment to the posts of Chargeman Grade I. Mr. Bhan-sali, learned counsel for the Railway Administration, has stated at the Bar that after the final panel of selected candidates for the posts of Chargeman Grade (A) was published, S. R. Srivastava, who was placed at No. 1 in the aforesaid panel, was promoted as Chargeman Grade (A) on August 12, 1970. As the petitioner was already officiating on the post of Chargeman Grade (A), he continued to hold the said post, even after his inclusion in the final panel of selected candidates for the posts of Chargeman Grade (A ).
(2.) IT appears that by the order of the General Manager (P), Northern Railway dated August 18, 1971 the group of posts of Chargeman Grade Rs. 205-280 (AS), Rs, 250-380 (AS), and Rs. 335-425 (AS), Foreman Grade Rs. 375 450 (AS) and Rs. 450-575 (AS) belonging to the CB & CR Trade were merged with corresponding posts of the Wood Mechanist Trade (hereinafter referred to as 'wm Trade') to form one combined Trade. In consequence of the amalgamation of the aforesaid posts belonging to the two Trades into one combined Trade, a provisional combined seniority list of the persons employed on the aforesaid posts in CB & CR Trade and WM Trade was circulated by the General Manager (P) vide his letter dated September 13, 1971 and objections were invited from the concerned staff in respect thereof. On June 25, 1972 the General Manager (P) of the Northern Railway issued an order directing that consequent upon the merger of the CB & CR Trade and the Trade all panels in both the aforesaid Trades available on the crucial date of merger, viz. August 18, 1971 would stand cancelled "unless the panelled staff in either of the trades were promoted to the selection posts in the respective trade and continued to officiate on the crucial date". As a result of the aforesaid order unoperated panels in both the Trades stood scrapped and it was directed that thereafter promotion of staff to posts in the combined Trade would be made on the basis of combined seniority list circulated vide letter dated September 13, 1971 and till such time that combined panels were formed in case of selection posts, adhoc promotions of the concerned staff on local basis may be regulated according to the combined seniority of the two Trades. According to the aforesaid order of the General Manager (P) dated June 25, 1972 the entire panel for the posts of Chargeman Grade (A): Grade Rs. 335 425 (AS) which was published on June 15, 1970 was treated to have been automatically cancelled on account of the merger of the two Trades. Thereafter a subsequent order was issued by the General Manager (P) in September 1972, in partial modification of his earlier order dated June 25, 1972 and it was directed that the staff who had officiated as Foreman (CB & CR) Grade Rs. 450 575 (AS) and Chargeman (CB & CR)/ (WM) Grade Rs. 335 425 (AS) in their turn on the respective panels against leave vacancies and operated the panel within its currency shall stand protected, and they shall not be required to reappear for selection in the combined cadre of CB & CR and WM Trades. Thus S. R. Srivastava, who had been given an officiating promotion on the post of Charge-man Grade (A) on August 12, 1970 during the currency of the panel relating to that post of CB & CR Trade, was protected- IT was ordered that the remaining unoperated panels of CB & CR and WM Trades would stand scrapped. This order of the General Manager (P) was based on the instructions issued by the Railway Board vide their circular dated March 9, 1967. The grievance of the petitioner, in the present writ petition, is that he also stood protected in accordance with the instructions issued by the Railway Board in their order datad March 9, 1967 and he should have been placed in the same category as S. R. Srivastava, because the petitioner was officating on the higher post of Chargeman Grade (A) even after the publication of the final panel relating to that post on June 15, 1970 and upto the date of merger of the two Trades, viz , August 18, 1971. The argument of the learned counsel for the petitioner is that the final panel in respect of Chargeman Grade (A) should be considered to have been operated upon, so far as the petitioner is concerned, in the like manner as it has been considered in the case of S. R. Srivastava by the order of the General Manager (P) issued in September 1972 and the case of the petitioner could not be distinguished from that of S. R. Srivastava. The respondents in their reply have taken up the stand that the petitioner was not promoted in the normal channel but he was appointed as a Chargeman Grade (A) on an ex-cadre post in the Production Control Organisation and their case is that on account of the fact that the petitioner had worked on an ex-cadre post of Chargeman Grade (A) he could not get the benefit of the Railway Board's Circular dated March 9, 1967 and the panel relating to Chargeman Grade (A) in CB & CR Trade could not be held to have been operated, so far as the petitioner is concerned. The second submission of Mr. Bhansali, on behalf of the Railway Administration, is that the petitioner was officiating on the post of Chargeman Grade (A) since July 4 1966 prior to the publication of the final panel relating to the said post but as he had officiated in a fortuitous vacancy, he could not be considered to have been promoted on his turn in the panel. The respondents contend that the petitioner was rightly required to appear again for fresh selection in the combined cadre of CB & CR and WM Trades, Another submission made by the learned coun-cel for the Railway Administration is that all persons who are likely to be affected have not been made parties to the writ petition. In order to resolve the controversy as to whether the final panel published on June 15, 1970 should be considered to have been operated, so far as the petitioner is concerned, or not it would be appropriate to refer to the circular issued by the Railway Board dated March 9, 1967. As a matter of fact the aforesaid circular, which has been reproduced below, is the anchor sheet of the arguments of both the learned counsel: "reference para 1 (iv) of Board's letter No. E (NG) 62 PM 1/91, dated 10. 07. 1964. It was laid down therein that an employee who once officiates against a non fortuitous vacancy in his turn on the panel shall not be required to appear against for fresh selection. The board have decided that the promotion of an employee to a vacancy in a higher grade 'selection Post' according to his panel position whether against a leave arrangement deputation or temporary transfer of another employee vacating the post, irrespective of the period involved, should be treated as non-forruitous and such an employee should not be required to reappear in a subsequent "selection" for the same post. It is, therefore, not essential that he should have been promoted essential that he should have been promoted against a long term vacancy. " This circular in substance contains the decision of the Railway Board to the effect that officiating promotion of an employee in a vacancy to a higher grade selection post, according to his panel position, whether against leave arrangement, on deputation or in a vacancy created on account of temporary transfer of any other employee, should be treated as non-fortuitous, irrespective of the period during which such employee might have worked on the promoted post, for the purpose of the operation of an existing panel. It has also been laid down that such an employee who had officiated on a higher grade selection post according to his panel position should not be required to reappear on a subsequent selection for such post, notwithstanding the fact that he was not promoted against' a long term vacancy'. In substance, the aforesaid order of the Railway Board dated March 9. . 1967 directs that even a fortuitous officiating on a higher grade selection post in certain contingencies even for a short term should be treated as non-fortuitous for the purposes of para 217 of the Indian Railway Establishment Manual (hereinafter called "the Manual") which relates to the currency of panels. Para 217 runs as under: - "217. Currency of Panels: - (a) Panels drawn by a Selection Board and approved by the competent authority shall be current for two years from the date of approval by the competent authority or till these are exhausted whichever is earlier. (b) An employee who once officiates against a non-fortuitous vacancy in his turn on the panel shall not be required to appear against or fresh selection. (c) In case an employee lower in the panel has officiated whereas one higher in the panel has not officated for reasons beyond the latter's control, the latter employee will not be required to appear for fresh selection. Under clause (b) of the aforesaid para 217 only an employee who has officiated against non-fortuitous vacancy in his turn on the panel is exempted from appearing again for a fresh selection, even if the panel becomes inoperative by afflux of time. The Railway Board's order dated March 9, 1967 introduces a legal fiction and directs that what is really fortuitous may be treated as non-fortuitous, for the purpose of appearing for a fresh selection by the employee concerned, provided he has officiated in a vacancy in the higher grade selection post according to his panel position. Learned counsel for the petitioner, contends that the petitioner had officiated on the higher grade selection post of Chargeman Grade (A) even before his name was placed on the final panel of selected candidates published on June 15, 1970 and he continued to hold the said higher post in an officiating capacity even alter S. R. Srivastava who was placed at No. 1 was promoted to that post and untill the said panel stood cancelled on the merger of the two Trades on August 18, 1971, and as such the petitioners officiation should be treated as non-fortuitous and he should not to required to re-appear at the subsequent selection. , However, the submission of the other side is that the aforesaid circular of the Railway Board would be operative only in the three circumstances specifically referred to therein viz. When an employee has held the higher grade selection post in an officiating capacity against a leave arrangement, or on deputation or on temporary transfer of any other employee vacating the post and that as the petitioner was holding an ex-cadre post in the same mechanical department, his case was not covered by the aforesaid circular of the Railway Board and the petitioner could not get the benefit thereof. It has further been argued that the petitioner had not officiated in a non fortuitous vacancy in his turn on the panel. The Order dated , December 27, 1966 relating to the temporary promotion of the petitioner has been placed on the record by the respondents alone with their reply and it has been mentioned therein that the Deputy Chief Mechanical Engineer (Works) and accorded his approval to the officiating promotion of the petitioner, "purely as a temporary measure pending selection". In para 6 of the reply to the writ petition, the respondents have asserted that the petitioner was promoted in an officiating capacity against an ex-cadre post in the Production Control Organisation purely as "a temporary local arrargement" and that "he continued to officiate against the leave arrangement from time to time". It appears from the aforesaid order of approval that the officiating promotion of the petitioner on the post of Chargeman Grade (A) was purely as a temporary local arrangement, in the first instance, but thereafter the petitioner continued to officiate on the higher grade selection post of Charge-man Grade (A) against leave arrangements from time to time Thus the admitted fact is that the petitioner continued to officiate on the higher grade selection post of Chargeman Grade (A) from July 4, 1966 right upto the crucial date, viz August. 18, 1971 when the posts of Chargeman Grade (A) in CB & CR and WM Trades were merged in a joint cadre. The objection of the respondents in this respect that the post on which the petitioner was promoted in an officiating capacity was an ex-cadre post in the Production control Organisation has no significance because the circular of the Railway Board dated April 22, 1963 regarding the seniority of workshop staff employed in Production Control , Organisation shows that the Railway employees were transferred to the posts in the Production Control Organisation on the bads of selection or seniority rum-suitability either in their own grades or on higher grades. In accordance with the normal rules governing the promotion of such staff. The only rider which was placed on them was that persons, who were appointed on officiating promotion to higher grade posts in the Production Control Organisation by selection, would not get any consideration for the higher grade posts in their parent cadre unless those persons were regularly selected to such higher grade posts in their parents cadre. The circular of April 22, 1963 also provides that where an employee working on a post in the Production Control Organisation reverted to his parent cadre he will be placed at his due position in his parent cadre. This is not in dispute that the petitioner was considered suitable for appointment to the higher grade post of Chargeman Grade (A) and was transferred on that basis to the Production Control Organisation, and a after the petitioner was regularly selected and placed on the final panel dated June 15, 1970 for the post of Chargeman Grade (A) in the CB & CR Trade he would have been placed at his due position in that cadre, according to his position on the panel, in case he reverted to his parent cadre. As S. R. Srivastava had already been promoted on August 12, 1970 to the higher grade selection post of Chargeman Grade (A); the petitioner was entitled to be retained on the post of Chargeman Grade (A) in accordance with his turn on the panel as he was then entitled to be promoted to the higher grade post of Chargeman Grade (A) before the crucial date. In these circumstances, the mere fact that the petitioner was working on an ex-cadre post could not be considered to his dis-advantage If a person was promoted to a higher grade selection post in a fortuitous vacancy say a short term leave vacancy, then according to the circular of the Railway Board dated March 9, 1967 such a person would be deemed to have officiated in a non-fortuitous vacancy so for as the currency of the panel is concerned. Similarly, if aperson would have been posted on a higher grade selection post on deputation to another department, then also his officiating promotion would have been considered as non-fortuitous for the purposes of para 217 (b) of the Manual. It does not stand to reason that if the petitioner was given an officiating promotion to a higher grade ex-cadre selection post then his promotion extending over a period of almost five years could not be deemed to be non-fortuitous tor the purposes mentioned in the circular of the Railway Board dated March 9, 1967. In my view, the circumstances mentioned by the Railway Board in its circular dated March 9, 1967 are not exhaustive but they are merely illustrative of the situations in which an officiating promotion to a higher grade selection post of an employee according to his panel position could be deemed to be non-fortuitous for the purposes of Clause (b) of para 217 of the Regulations. It would be anomalous to hold that if the petitioner would have officiated on the post of Chargeman Grade (A) only for short term extending for a few days, even against a leave arrangement than such promotion, which in reality would be of a fortuitous nature, could still be deemed to be non-fortuitous for purposes of para 217 (b) of the Regulation, but the promotion of the petitioner on an ex cadre post of Chargeman Grade (A) extending over a period of almost five years could not be so considered. It would be travesty of justice to hold that if the petitioner would have officiated on the higher grade selection post of Chargeman Grade (A) in another Department on deputation then such an officiation could have been deemed to be non-fortuitous for the purposes of para 217 (b) of the Regulations, but if the petitioner officiated oh the higher grade selection post of Chargeman Grade (A) in the same Department, he would not get benefit of the circular of the Railway Board dated March 9, 1967 merely because such higher post was not in the normal channel of promotion. I am of the view that the promotion of the petitioner, in the aforesaid circumstances, is squarely covered by the circular of the Railway Board dated March 9, 1967 and should be deemed to be non fortuitous for the purposes of para 217 (b) of the Regulations. As such, it must be held that the final panel had operated so far as the petitioner is concerned, before the crucial date of merger and the petitioner cannot be required to reappear at the subsequent selection for the same post in the combined cadre. So far as the objection of the learned counsel for the Railway Administration that some persons, were not made parties is concerded, it is sufficient ' to point out that in the additional pleas of their reply the respondents had only pointed out that one Mohinderstngh would be directly officiated in case the petition succeeds the petitioner imendur the writ petition and added Mohinder Singh as a party respondent to the wirt petition and besides Mohinder Singh he also added three other persons, whom he thought may be affected The respondents have now in additional reply to the amended writ petition have further named four other persons who, according to them, are likely to be affected the writ petition. It has not been mentioned that the four persons named by the respondents in their additional reply were senior to the petitioner in the CB & CR Trade prior to the crucial date viz. August 18, 1971 and it is also not clear as to how those persons would be affected if the writ petition is allowed. It may be observed that so far as the selections which have taken place on July 18, 1972 are concerned it is not necessary to quash the same in the present proceedings and as such the persons who have been selected and placed on the joint panel of the combined trades according to the selections which have taken place on July 18, 1972 cannot be termed as necessary parties to the present petition because the final panel of selected candidates dated June 15, 1967 for the posts of Chargeman Grade (A) relating to the CB & CR Trade shall be deemed to have operated so far as the petitioner is concerned, prior to the merger of the two grades on August 18, 1971 on which date the said panel stood scrapped. In the result, the writ petition is allowed in part and it is held that the petitioner should be deemed to have officiated in a non-fortuitous vacancy in the higher grade selection post of Chargeman Grade (A) in his turn on the panel before August 18, 1971 by virtue of the circular of the Railway Board dated March 9, 1967 and as such the final panel dated June 15, 1970 relating to the posts of Chargeman Grade (A) in CB & CR Trade should be consi-dered to have operated during the currency thereof, so far as the petitioner concerned. Thus the petitioner is entitled to the protection of the provisions of para 217 (b) of the Indian Railway Establishment Manual read with the Railway Board's circular dated March 9, 1967, and the petitioner shall not, therefore, be required to appear again for fresh selection in the combined cadre for the post of Chargeman Grade (A ). How ever, the selections made for the aforesaid posts on July 18, 1972 remain valid and shall not be affected by decision. In the circumstances of the case parties are left to bear their own costs. . ;