C.K. Dubey & Another vs Union Of India & Others
2009 Latest Caselaw 4845 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.1612/2008

%                        Date of Decision: 26.11.2009

C.K. Dubey & Another                                 .... Petitioners
                    Through Mr.Lalta Prasad, Advocate

                                 Versus

Union of India & Others                                  .... Respondents
                     Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be               YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported in              NO
       the Digest?


ANIL KUMAR, J. (Oral)

*

The petitioners have impugned the order dated 21st February,

2008 in OA No.332 of 2007, C.K. Dubey and another v. Union of India

and others dismissing their petition seeking regularization to the post of

Loco Inspectors or Driver Instructors without any break.

The petitioners were appointed as Loco Cleaners at Mechanical

Department, Northern Railway, Moradabad Division and were promoted

as Passenger Drivers and thereafter as Senior Passenger Drivers.

The respondents had invited the applications for filling up the

posts of Loco Inspectors/Driver Instructors. On account of acute

shortage of loco running staff, only after a written test without regular

selection process, the petitioners were promoted on loco inspector as an

ad hoc arrangement for a period of three months. While appointing

them on ad hoc arrangement, it was categorically stipulated that they

could be repatriated to the cadre of Driver without any notice. The

three months' appointment on ad hoc basis was, however, extended in

case of petitioners from time to time.

In order to select Loco Inspectors for regular posts, a selection

was ordered on 27th April, 2005. For the regular selection of 82

vacancies were notified. Though a panel was prepared but the

petitioners were not placed on the panel, as they did not qualify for the

selection process and having failed in the regular process of selection.

After participating in the regular process of selection for the post

of Loco Inspectors and failing to qualify for the same, the petitioners

claimed appointment on regular basis on the ground that they worked

as Loco Inspectors on ad hoc basis for 18 months and since they had

shouldered the responsibilities of Loco Inspectors/ Driver Instructors

therefore they cannot be repatriated to the cadre of driver and they

should be appointed to the regular post of loco Inspectors.

The petition filed by the petitioners seeking promotion on regular

basis to the post of Loco Inspectors was, however, dismissed by the

Tribunal by order dated 21st February, 2008 in OA No.332 of 2008 in

the matter of C.K. Dubey and others v. Union of India and others.

However, the petitioners were permitted to apply for the remaining

vacancies of Loco Inspectors on the ground that they have already

worked on ad hoc basis, therefore, the respondents were directed to

considered them and the request of the petitioners to be promoted on

regular basis was declined.

The petitioners have impugned the order contending inter alia

that since they have already worked on ad hoc basis on the post of Loco

Inspectors, they cannot be repatriated. Relying on Ashwani Kumar v.

State of Bihar, (1996) 7 SCC 577, it was contended that since the

petitioners were given ad hoc promotion on clear available vacancies

and they had continued for long period, therefore, their promotion shall

be deemed to be regular promotion and they should be promoted on

regular basis. The petitioners have contended that there are still 52

vacancies on which the petitioners can be absorbed on regular basis.

We have heard the learned counsel for the parties. The learned

counsel for the petitioners has not disputed that no selection procedure

as required under the rules had been followed before directing the

petitioners to work on ad hoc basis. Instead of making the petitioners

to undergo the regular selection process, only a written examination

was taken to ascertain their literacy level on account of acute shortage

and, thereafter the petitioners were asked to work as Loco Inspectors

for a short duration of three months in the first instance with a specific

stipulation that they would be repatriated to their original cadre. The

petitioners have also not denied that when the regular process of

selection was initiated, they had failed. This has not been disputed and

cannot be disputed that before failing in the regular process of

selection, the petitioners did not seek their regular appointment as Loco

Inspectors on account of having worked as Loco Inspectors for some

period on ad-hoc basis.

After participating in the selection process for promotion to the

post of Loco Inspectors and failing in the same, the petitioners cannot

be allowed to be promoted as Loco Inspectors on account of having

worked on ad hoc basis on the said post for some time. This also

cannot be denied that ad hoc officiation does not given any tangible

right to the petitioners to be promoted without qualifying in the

selection process. The Supreme Court in Chandra Prakash Tiwari &

Others v. Sakuntala Shukla, (2002) 6 SCC 127, had held that an

officiation without following due process of law on ad hoc basis does not

confer any right of regularization. It was also held that when a

candidate appears at the examination without protest and is

subsequently found to be not successful in the examination, question of

entertaining a petition challenging the said examination would not

arise. Though the petitioner has not challenged the process of selection,

however, after failing in the process of selection they cannot be

permitted to contend that they should be appointed on regular post of

loco inspector though they have failed in the regular process of

selection.

Since the petitioners were not selected in the regular selection

process for the post of Loco Inspectors, therefore, they are not entitled

to promotion on regular basis to the said post. The Tribunal has also

declined the plea of the petitioners for promotion on regular basis on

the same grounds and the learned counsel for the petitioners has been

unable to show any illegality or irregularity in the decision of the

Tribunal declining the promotion to the petitioners on the regular basis

to the post of Loco Inspectors. In the circumstances, the decision of the

Tribunal dated 21st February, 2008 declining the request of the

petitioner for promotion on regular basis does not suffer from any error

or such illegality which would require interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

The Tribunal has already allowed petitioners to participate in the

process of selection as at the time the order dated 21st February, 2008

was passed there were many vacancies. Learned counsel for the parties

are unable to state as to how many vacancies still exist.

In the facts and circumstances, the writ petition is without any

merit and it is, therefore, dismissed. The parties are, however, left to

bear their own costs.

ANIL KUMAR, J.

November 26, 2009                                      VIPIN SANGHI, J.
'Dev'