Manman Das vs Union of India and Others

C.R. Dash, J.—This writ petition is directed against the order of Central Administrative Tribunal (C.A.T.), Cuttack Bench Cuttack.

The petitioner joined the railway service as substitute ''Khalasi'' on 25.06.1974 at Kharagpur. On establishment of Mancheswar Carriage Repair Workshop in Orissa, he opted to come to aforesaid Mancheswar Carriage Repair Workshop as ''Khalasi Helper'' (semi skilled). Accordingly, he joined in Mancheswar Carriage Repair Workshop on 01.03.1985. During his incumbency he passed several tests including the Grade-II test and was promoted to Grade-II with effect from 01.01.1989. Shri S.S. Rao, (opposite party no.3), who had joined railway service subsequent to the petitioner on 23.10.1976 had also opted to come to the Mancheswar Carriage Repair Workshop. Said Shri S.S. Rao (opposite party no.3) was promoted to Grade-I on ad hoc basis with effect from 01.08.1987. Being aggrieved by promotion of opposite party no.3, the petitioner represented before the authorities on 22.02.1991. The petitioner also passed Grade-I test and was promoted to Grade-I on Ad hoc basis vide order dated 15.05.1991 (Annexure-1). The order of promotion passed vide Annexure-1 was cancelled vide order dated 05.09.1992 (Annexure-2) and the petitioner was reverted to the Grade-II post. The petitioner moved the Central Administrative Tribunal, Cuttack Bench Cuttack (C.A.T.) seeking relief to quash the cancellation order dated 05.09.1992 Annexure-2 and further seeking a declaration to the effect that he is senior to opposite party no.3.

Learned Tribunal on consideration of contentions of the parties and especially the submission of opposite party nos. 1 and 2 to the effect that opposite party no.3 had joined Mancheswar Carriage Repair Workshop on 01.01.1983 much prior to joining of the petitioner there on 01.03.1985, held that the petitioner''s case being not one of adjustment of opposite party no.3 in the promotional post held by the petitioner prior to his reversion vide Annexure-2, and the relief of quashing of Annexure-2 as sought for by the petitioner being not dependent on question of inter se seniority between the petitioner and opposite party no.3, and the cause of action regarding the question of inter se seniority and question of cancellation of the promotion of the petitioner vide annexure-2 being based on different causes of action, the prayer of the petitioner for declaration of his seniority over opposite party no.3 is not maintainable under the rule and even on merit, and such claim is also hit by the provision Law of Limitation. On the point of the relief of quashing of Annexure-2, learned Tribunal refused to interfere especially in view of the nature of the promotion order vide Annexure-1 which was completely an ad hoc promotion without prejudice to the seniority dispute and absence of right on the part of the petitioner to officiate in that post in the event of amendment, modification or cancellation of the order at any time.

Learned counsel for the petitioner does not impugn the order of the Tribunal on the issue of inter se seniority between the petitioner and opposite party no.3. He, however, impugns the order of the learned Tribunal on the issue of quashing of Annexure-2 on the ground that once the petitioner having promoted and held the promotional post, the promotion order could not have been cancelled without giving an opportunity of being heard to the petitioner. It is further submitted that the right of the petitioner having been affected substantially by issuance of the cancellation order vide Annexure-2, equity demands that the order of cancellation of promotion should have been quashed and the petitioner should have been treated to have continued in the promotional post with all the consequential financial benefits from the date of his promotion without being affected by the cancellation order vide Annexure-2. Learned counsel for the petitioner relies on a decision of this Court rendered in the case of Ram Binay Sharma Vrs. Chairman Coal India Ltd. and others (W.P.(C). No. 4047 of 2007, disposed of on 17.06.2008).

Leaned counsel for the opposite party nos. 1 and 2 on the other hand, supports the order of the Tribunal and submits that the petitioner, in view of the nature of the promotion order given in his favour, had no right of being heard on cancellation of the said order of promotion.

The order of promotion vide Annexure-1 reads as follows:-

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The following ad hoc promotion is ordered with the approval of the competent authority to have immediate effect.

Sri M.M. Das (UR), Fitter (MW), Gr.II, T. No.3232 in scale Rs.1200-1800/-RP is promoted on adhoc basis as fitter (MW) 1 in scale 1320-2040/- RP against the vacancy of Sri Laxman Rao Fitter G.I. (MW) transferred to S&C organization (VSKP) on deputation.

N.B.:1. The above promotion is arranged purely on adhoc basis which will not confer any right or title to officiating incumbents to continue as such in future or seniority and is without prejudice to the seniority dispute, if any.

The above ad hoc promotion will have effect till such time Sri Rao comes back to MCSW.

The undersigned reserves the right to amend/modify/cancel the above order at any time partly or fully without assigning any reason there of.

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(only the relevant portion extracted)

The impugned order vide Annexure-2 reads as follows:-

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Consequent upon receipt of the substantive position of Sri M.M. Das, Fitter (M/W) Gr.I (ad hoc) from his parent unit i.e. KGPW as on 31.12.87 vide letter No.506/Cadre/MCS/Misc/119 dated 4.1.92 as Sk. Gr.III w.e.f. 16.8.90 his substantive status is revised as Khalasi Helper as on 31.12.87 and placed at Sri. No.37A of Kh.Helper seniority list published vide this office letter No.CRW/MCS/P-119/Seniority/K.H/Semi skilled/3007 dtd. 2.9.89 and named placed below Sri Narayan Padhi and above Sri V. Rajeswar Rao.

N.B. : 1. The revised position is prepared and published based on substantive status of staff as on 31.12.87 (AN) received from parent unit. On receipt of any further position from Division/Workshop, the seniority of staff published vide above quoted Nos. may also be changed if deem proper.

This should be given wide publicity among the staff and ensure that concerned staff should note their position invariably.

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(only the relevant portion extracted)

A cursory reading of the order vide Annexure-1 makes it clear that the promotion of the petitioner was purely an ad hoc promotion and the same was subjected to two different conditions. One of the conditions was that the petitioner was to continue in the said promotional post till return of the incumbent Sri Laxman Rao, against whose vacancy the petitioner was promoted. Another condition was that the petitioner shall have no right to continue in the promotional post and the authority concerned had the right to amend, modify or cancel the promotion order at any time partly or fully without assigning any reason thereof. The cancellation order vide Annexure-2 clearly shows that the order of cancellation was necessitated on revision of seniority list.

The promotion to the petitioner was given on ad hoc basis vide Annexure-1 without prejudice to the claim of seniority dispute and on receipt of revised seniority list, the promotion order was cancelled vide Annexure-2 and the petitioner was reverted to the Grade-II post which he was holding earlier to his promotion. It is well settled in law that a temporary promotee does not have a right to the post and he is liable to be reverted on selection of a regular incumbent or other exigency of public service. Such an incumbent carries only a limited right and cannot stake any claim to the post. In the case State of Orissa and Another Vs. Dr. Pyari Mohan Misra, , the Hon''ble Supreme Court upheld reversion of the officer therein and held that reversion was justified as he was holding the higher grade post on ad hoc basis and his mere prolongation in the said post would not ripen into a regular service to claim substantive status. In the case of Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, , the Hon''ble Supreme Court explaining the concept of ad hocism observed; "the person continues to hold a substantive lower post and discharges the duty of a higher post, essentially as a stop gap arrangement". Similar view has been reiterated by the Hon''ble Supreme Court in Selvaraj Vs. Lt. Governor of Island, Port Blair and Others, , A.K. Sarma and Another Vs. Union of India Another, and Sreedam Chandra Ghosh Vs. State of Assam and others, observing that such incumbent can claim, at the most, the salary of the higher post for the period of their incumbency therein and nothing beyond it. It is clear from the case laws, therefore that an ad hoc promotee has no claim to continue in the promotional post and he is liable to be reverted on public exigencies or otherwise.

The case of Ram Binay Sharma (supra) on which learned counsel for the petitioner relies heavily is distinguishable in the facts of the present case. In the case of Ram Binay Sharma, the petitioner was saddled with a minor penalty of censure in a disciplinary proceeding. Sometime after that he was promoted to the next higher post. Subsequently, the promotion was cancelled on the ground that the petitioner had been censured earlier in a disciplinary proceeding and such fact was not placed before the Department Promotion Committee at the time the question of promotion of the petitioner was considered. This Court on consideration of rival contentions of the parties and different case law on the point held that as the petitioner was already selected and promoted by the Departmental Promotional Committee though by mistake, the order cancelling the promotion is bound to affect his right and the cancellation is bad without compliance of the rule of natural justice. The case in hand is, however, different. In the present case, the petitioner was given promotion which was purely ad hoc and the same was cancelled on exigencies detailed in the cancellation order vide Annexure-2 and elaborated in the counter affidavit filed by the opposite party nos. 1 and 2 and such facts were also taken into consideration by the learned Tribunal. In view of such fact, the case of Ram Binay Shama has no application to the facts of the present case.

In view of the above, we do not find any justification to interfere with the impugned order and the writ petition is accordingly dismissed.