Baldev Raj vs Union of India and others

Nirmal Singh, J.—Petitioner who was initially working as Khallasi, was promoted to the post of Driver on adhoc basis w.e.f. 29th of Oct

'85. Thereafter, vide order dt. 1st of June '91, passed by respondent No. 5, the petitioner who was working in the grade of Rs. 9501500/ as

Driver came to be promoted to the same post and was placed in the grade of Rs. 12901800/. This promotion was again on adhoc basis with a

further stipulation that petitioner along with others who have been given this benefit shall not have any right to claim seniority/arrears over their

seniors in future. The said adhoc promotion was given to the petitioner after passing the trade test in the concerned field.

The grievance of the petitioner is that respondents vide notification dated 5th of Oct '99, invited applications from all eligible Group `D' in

service candidates for filling up seven posts of Drivers on substantive basis in the grade of Rs. 30504590/. The petitioner also submitted his

application through proper channel but he was neither called for appearing in the trade test nor his case was considered for promotion to the said

post. It is stated that the petitioner is working against the post of Driver on adhoc basis for the last more than fifteen years that too after passing the

requisite trade test but the respondents for reasons best known to them have not allowed the petitioner to appear in the trade test which was now

being conducted by them for promotion to the post of Driver on substantive basis in the aforementioned grade even though the petitioner is eligible

to be appointed/promoted against the said post. It is further stated that even respondent No. 5 vide his communication dated 16th of May 2000,

informed the respondent No. 3 that names of some of the candidates have been ignored for appearing in the trade test even though their

applications have been submitted in the office concerned. The respondent No. 5 is also said to have recommended to respondent No. 3 for

considering the names of all such candidates. It is submitted that in the said communication the name of the petitioner figures at Sl.No. 9. Copy of

the same is placed on record as Annexure F. It is further submitted that for filling seven posts of Drivers, the respondents had to call the eligible

candidates from Class III category equal to three times the number of existing and anticipated vacancies. It is submitted that respondents ignored

the claim of serving adhoc drivers and allowed the Khalassies, trollyman and cleaners to appear in the trade test.

Through the medium of present writ petition, direction is thus sought to respondent authorities for conducting the trade test afresh and promote

the petitioner to the post of Driver in the Grade of Rs. 30504590/.

Respondents have filed counter stating therein that Northern Railways is having different divisions i.e. Ferozpur, Ambala, Moradabad, Jodhpur,

Bikaner, Lucknow, Allahabad and Delhi. It is stated that Railways has formed temporary Organisations to undertake the construction work in

different new projects and to run these projects staff is deputed from different Divisions as per the requirement. It is stated that the petitioner who

was working as Gangman was taken into the construction wing and he was given promotion to the post of Driver on adhoc basis as a temporary

measure with a stipulation that the said adhoc promotion will not confer any right upon the petitioner so far as seniority over his seniors is

concerned and he will have his lien in the parent division. It is stated that a test was conducted for the petitioner with clear instructions that this test

and adhoc promotion will have no effect so far as process of regular selection and seniority in his parent division is concerned. It is stated that the

criteria for trade test is 1:1 and seven candidates as per the seniority position having the requisite qualification were called for appearing in the trade

test. It is thus stated that the petitioner cannot have any grievance and is not entitled to any benefit so far as promotion to the post of Driver is

concerned as the same can be given to him by his parent division.

After hearing learned counsel for the parties and perusing the record, I am of the opinion that this petition has merit and deserves to succeed.

As per the stand taken by the respondents, the petitioner appeared in the trade test and thereafter he was promoted to the post of Driver on

adhoc basis. This benefit was given to him w.e.f. 29th Oct '85. Thereafter, again vide order dt. 1st of June '91, passed by respondent No. 5, the

petitioner was given the status of Driver on adhoc basis and was placed in the grade of Rs. 12901800/. No doubt, in the said order there is a

stipulation that the petitioner shall have no right to claim seniority over his seniors but the said stipulation cannot take away the right of the petitioner

so far as appearing in the trade test is concerned for which applications were invited from eligible Group D serving employees by the respondents

vide notification dt. 5th of Oct '99, noticed above. The petitioner who was eligible and had applied through proper channel which is apparent from

the fact that his name was also recommended by respondent No. 5 vide his communication dt. 16th of May 2000 addressed to respondent No. 3,

was not allowed to appear in the trade test, for which no response has been given by the respondents. The petitioner, thus, is right in his submission

that he had better merit than the Clearners, Trollyman and Khalasies to appear in the test as he was already working against the post of Driver

though on adhoc basis and was having better experience in the field concerned. Thus, the act of respondents in not calling the petitioner to appear

in the trade test even though he had applied and his name having been recommended by the authority concerned is an act which has deprived the

petitioner of his right of consideration. So far as the stand of respondents that the petitioner was performing his duties as Driver in the Construction

wing temporarily and he having his lien in the parent division was entitled to the benefit, if any, in the said division only is concerned, I am of the

opinion that the said stand cannot be accepted. This is because, the construction wing is not a separate department and these Wings as per the

stand of respondents are being created for completing new projects in different divisions of Railways, and therefore, the said Wing would be a part

and parcel of the Railways itself and the employees working in the said Wings even though they are derived from different Divisions, cannot be

deprived of their legitimate right of promotion etc. on the ground that this benefit is to be given to them by the parent division. It is not the case that

the petitioner belongs to any other department and is on deputation with the respondents. He is an employee of the Railways and it is the

Construction wing created by the Railways itself where the services of the petitioner are being utilized. Therefore, the plea of the respondents, that

the benefit would be given to him by his parent division, as indicated above cannot be accepted. It is also not the case that the petitioner is lacking

the eligibility criteria. On the other hand, the respondents themselves have taken a stand that the petitioner was given adhoc promotion after he had

cleared the trade test.

For the reasons mentioned above, this petition is allowed. In case, the services of any of the junior of the petitioner have been placed in the

grade of Rs. 30504590 though in a different trade, then, keeping in view the fact that the petitioner has been performing the duties of Driver now

for the last more than two decades after he was promoted to this post on adhoc basis after clearing the trade test, he would be deemed to be

substantively promoted to the said post in the grade of Rs. 30504590/ from the date his junior, if any, has been so placed in the said grade. The

petitioner shall also be entitled to all the consequential benefits. Let appropriate orders in this regard be passed within a period of two months from

the date, a copy of this order is made available to the respondent authorities by the petitioner.

Disposed of accordingly.

Petition allowed.