Shri Somonath Rath vs Union of India (UOI) and Another

P.K. Mohanti, J.—Petitioner was appointed as Relieving Clerk in the Office of the District Commercial Superintendent, Khurda Road on 10-8-1952 on 16-8-1952 he was promoted as Enquiry Clerk and posted at Cuttack Rail way Station. On 14-2-1961 he was reverted from that post on the ground that he had not passed the suitability test. He was subsequently promoted as the Enquiry-Cum-Reservation Clerk with effect from 10.2-1962. Being aggrieved by the order of reversion dated 14.2.1961 he filed O.J.C. No. 29 of 1967 which was allowed and the order of reversion was quashed. A writ of mandamus was issued to the opposite parties to give benefit of service and salary in the higher pay scale for the period from 14-2-1961 to 10-2-1962. Shri S.N. Chakravarty had been promoted to the post of Enquiry-cum-Reservation Clerk in the scale of Rs. 150.240/. from 7-3-1961, as Assistant Reservation Supervisor in the scale of Rs. 205-280/ - from 19-10-1966 and again to the post of Reservation Supervisor in the scale of Rs. 250.380/ -. from 2-2-1968. Consequent upon the decision in O.J.C. No. 29 of 1967, Shri Chakravarty was declared junior to the Petitioner. The Petitioner was promoted to the rank or Reservation Supervisor in the scale of Rs. 250-380/ - with effect from 4-4-1971. He represented to the Divisional Superintendent under Annexure.8 that he should be treated as promoted to the post of Assistant Reservation Supervisor in the grade of Rs. 205-280/ - with effect from 19-10-1966 and as Reservation Supervisor In the grade of Rs. 250-380/ - with effect from 2.2.1968. The representation was not accepted on the ground that Shri S.N. Chakravarty, though junior to the Petitioner was allowed to officiate as Assistant Reservation Supervisor with effect from 19-10-1966 on stopgap basis. The Petitioner''s appeal to the General Manager, South Eastern Railway was rejected as per order dated 13-2-1973 (Annexure 11). Then he filed the writ application on 16-3.1973 for issue of a writ directing the opposite parties to give him promotion to the post of Assistant Reservation Supervisor with effect from 19-10-1966 and as Reservation Supervisor with effect from 2-2-1968 and to refix his pay scale from 1966 onwards and give him all service benefits including the difference in salary and allowances.

The contention raised by the opposite parties is that Shri S.N. Chakravarty was promoted to officiate in the post of Assistant Reservation Supervisor purely on stop-gap basis with effect from 19-10-1966 and further promoted to officiate in the post of Reservation Supervisor with effect from 2-2-1968 again on stop-gap basis. So the benefits of service are not available to the Petitioner with effect from 19-10-1966.

It is not disputed that Shri S.N. Chakravarty was junior to the Petitioner and that he was allowed to officiate in the post of Assistant Reservation Supervisor with effect from 19-10-1960 and Reservation Supervisor with effect from 2-2-1968. Subsequently, Shri Chakravarty was reverted to his proper rank and the Petitioner was promoted as the Reservation Supervisor with effect from 4-4-1971. The Petitioner contends that he is entitled to promotion and arrears of salary in the higher grade with effect from 19-10-1966. He relies on the Establishment Serial No. 273 of 64 a copy of which has been filed in Annexure 7. Admittedly, it has got statutory force having been issued under Rule 157 of the Railway Establishment Code. It provides that the staff who have lost promotion on account of administrative errors should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of promotion. It also provides that pay in the higher grade on promotion may be fixed proforma at the stage which the employee would have reached if he was promoted at the proper time and the enhanced pay may be allowed from the date of actual promotion. But no arrears of pay on this account and hall be payable.

Mr. Pal, the learned Counsel appearing on behalf of the opposite parties contended that Establishment serial No. 273 of 1964 is not applicable to the facts of this case as the promotion to the post of Assistant Reservation Supervisor with effect from 19-10-1966 and further promotion to the post of Reservation Supervisor with effect from 2-2-1968 was allowed to Sri Chakravarty on stop-gap arrangement and not as a regular measure. We regret our inability to accede to this contention. A stop-gap arrangement is made for administrative convenience in short term vacancies in order to avoid dislocation of work. But continuous service in higher post for a period at about five years cannot be regarded as a stop-gap arrangement. Neither the order of appointment of Shri Chakravarty nor any other record has been produced, to show that the appointment was made on stop-gap arrangement. Admittedly, Shri Chakravarty was junior to the Petitioner. He was promoted to higher posts without consideration of the claim of the Petitioner. The Petitioner was promoted as Reservation Supervisor in the scale of Rs. 250.380/ - with effect from 4-4-1971. It is not shown that the Petitioner''s case was considered and he was found unfit for the post. In our opinion, non-promotion of the Petitioner from 19.10-1966 was due to an administrative error. The Establishment Serial No. 273 of 1964 is, therefore, applicable to the effects of this case. The Petitioner is entitled to proforma promotion as Assistant Reservation Supervisor with effect from 19-10-1966 and as Reservation Supervisor with effect from 2-2.1968. He is also entitled to enhance pay from 4-4-1971 by virtue of the aforesaid Establishment Serial. He will not be entitled to any arrears of pay from 19.10-1966 to 3-4-1971 in view of the clear prohibition in the Establishment Serial.

In the result the writ application is allowed to the extent indicated above issue writ of mandamus accordingly. Parties to bear their own costs.

G.K. Misra, C.J.

I agree.