SAKYA SINHA GHOSH AND OTHERS Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) In this application, the petitioners, who are seven in number have prayed for quashing an order No. E/56/80 dated 24-7- 1980 contained in annexure 8 promoting respondent No. 11 to officiate as a ward- keeper, a copy of which is not annexed to the writ application, and order No. E/15/81 dated 17-3-1981 contained in annexure-10 and orders dated 30th March, 1981 and 21st April, 1981 to hold the suitability test for promotion as contained in annexures-11 and ll/l, respectively, appended to this application and for issuance of a writ in the nature of mandamus restraining respondents 1 to 4 from giving effect to the aforesaid office orders. By annexure-8, respondents 5 to 10 who were initially promoted on ad hoc basis during 1973-74, were treated as regular from the date of their promotion as wardkeepers. By Annexure-10, respondents 12 to 14 were promoted to officiate -as ward keepers in the scale of pay of Rs. 425/- to 600/- Annexures 11 and 11/1 contained orders issued by respondent No. 4 requiring petitioners 1 to 4 to appear in the suitability test for the purpose of regularising their temporary/ ad hoc promotion as ward keepers. The petitioners have challenged the aforesaid orders on various grounds.

(2.) In order to appreciate the points raised in this application, it is necessary to state some relevant facts which are these : Petitioners I to 4 are working &sward keepers on ad hoc basis, and petitioners 5 to 7 were senior clerks at the time of filing of this writ application. The petitioners 1 to 7 were initially appointed as junior clerks in the Store Department of the North Frontier Railway on 4-12- 1958, 7-7-1958, 10-11-1958, 22-1-1959, 21-7-1961, 2-10-1963 and 3-8-1966, respectively. In the year 1963, the petitioners 1 to 3 passed the suitability test for regular promotion to the post of senior clerk and thereafter they were given promotion as senior clerk with effect from 1-10-1962. It is relevant to mention here that the initial recruitment to the Store Department under D. C. O.'s/ A.C.O.'s are made as junior clerks against direct recruitment and recruitment of material clerks are made after promotion from Class IV employees. The promotion to the rank of senior clerk and; Store Van Clerk are made on the basis of seniority-cum-suitability test from the aforesaid posts of junior clerks and material clerks. Thereafter options are sought from the aforesaid senior clerks and store van clerks for their promotion in the office side (Ministerial) and Depot side (non-ministerial) according to the avenues of promotional channel. I have already stated, petitioners 1 to 3 were given promotion as senior clerk with effect from 1-10-1962. On 15-11-1965, the concerned authorities sought option from junior clerks of N. F. Railway (North Bank Unit) for filling up the post in Depot side (non-ministerial) and office side (Ministerial). Petitioners 1 to 3 opted for office side (ministerial). similarly in November. 1967, petitioners 4 tt 7 gave their option for promotion in the office side (ministerial). Thereafter they appeared at the suitability test in the year 1968 and passed the suitability test some time in November, 1968 and after that petitioners 4 to 7 were given regular Promotion as senior clerks in the office side (ministerial). Petitioners 4 and 7 started officiating as senior clerks with effect from 5-10-1966 and 12-8-1968 respectively and petitioners 5 and 6 started officiating with effect from 7-2-1969 and 1-12-1968 respectively. Here it is necessary to state that respondents 5 to 19 opted, for their promotion in Depot side (non-ministerial).

(3.) The Assistant Director Eastern Railway Board, on 22-9-1969 issued a circular laying down a channel of promotion for ministerial and non-ministerial staff in the Depot side, a copy of the said circular is Annexure 2 to this writ application. It appears that on 21-12- 1969, the petitioners who were senior staff and were willing to exercise option towards ward keeping side, submitted representations to respondent No. 3, District Controller of Stores, requesting him to allow them to submit option for promotion to non-ministerial side (ward keeping side). Copy of the representation is annexure-3 to this writ application. The grievance of the petitioners is that while their representations were still pending, respondents 5 to 7 were illegally and arbitrarily given ad hoc promotion to the rank of ward keeper with effect from 2-1-1973, respondent No. 8 with effect from 3-9-1973. respondents 9 and 10 with effect from 20-10-1973, respondent No. 15 with effect from 21-1-1974, respondent No. 16 with effect from 1-12- 1974, respondent No. 17 with effect from 25-11-1974 and respondent No. 19 with effect from 16-12-1974 without considering the cases of the petitioners although they were senior to the said respondents. Petitioners filed representation against the aforesaid promotions. On 19-3-1976, another circular was issued laying down the channel of promotions of Store Department according to which seniority of senior clerks/ store van clerks was to be maintained combined as per the length of non-fortuitous service in the grade on. the department basis. A copy of the said circular is Annexure 4 to this application. From Annexure-4, it appears that the existing channel of promotion of staff both on office and Depot side was revised and it is mentioned in the circular that this revised avenue of promotional channel will take effect from 1-3- 1976 and all promotions from that date should be made in accordance with the revised A. V. C It is specifically mentioned in the said circular that the cases of staff already promoted as non-fortuitous measure after holding proper suitability/selection test prior to issue of this revised A-V. C should not be re-opened. For the sake of convenience, I will refer the first A. V. C as contained in Annexure -2 as 1969 Rule and the second revised circular as contained in Annexure-4 as 1976 Rule. It is stated that the petitioners from time to time, made representations to the proper authorities to allow them to exercise option for their promotion as ward keeper in the Depot side (non-ministerial), but no reply was ever received from the said authorities. From Note 2 of Annexure-4, it appears that senior persons in the combined seniority list were to be called upon to exer-. cise their option for progressing either on the ministerial posts Or in the Depot side six months in advance of the anticipated vacancies to be occurred in future on either side and their future promotions would be made as per their option which will be treated as final on the basis of combined seniority list. The Controller of Stores (P.), N. F. Railway, Maligaon, respondent No. 2. issued a circular referring to Railway Board's decision dated 18-1-1974, specifically stating that further opportunity should be given to the senior-most personnel i.e.. senior clerks store van clerks at the time of vacancy in the higher grade of Head Clerk/ ward keeper. That circular is Annexure-5 to this writ application.