JUDGMENT : R.N. Misra, J. - Petitioner after being successful in a test joined as Shedman in the employment of the South-Eastern Railway on 15-4-1972 in the scale of Rs. 108-288/- (A.S.) (now revised to Rs. 425-700). He was confirmed in the post on 1.5.1973. Petitioner obtained an officiating promotion as Loco Foreman, Grade-C in the scale of Rs. 335-425/-. (A.S) (revised scale being Rs. 550-750/-) by order dated 31-3-1975. According to the petitioner, this promotion was against a clear and regular vacancy which arose on the retirement of one B.V. Rao. Petitioner joined as Loco Foreman, Grade-C on 12-4-1975 and continuously officiated in the said post for 2 years and 10 months. He alleges that he had rendered efficient service to the satisfaction of all. On 7-1-1978, petitioner was reverted to the post of Shedman and opposite party no. 3 was promoted as Loco Foreman, Grade-C on officiating basis. Petitioner alleges that as he had officiated in the higher post beyond 18 months, he could not be reverted without a regular disciplinary proceeding and petitioner should have been treated as confirmed in the higher post. In support of this submission, reliance has been placed on a decision of this Court and decisions of other High Courts. It has been further pleaded that the act of reversion is arbitrary, mala fide and uncalled for. Petitioner has also relied upon a letter dated 18-2-1976 wherein it has been stated that ad hoc appointees for more than eighteen months should be called for interview and ordinarily selected for confirmation. 2. Opposite parties 1 and 2 have filed a counter affidavit through the Assistant Personnel Officer at Khurda Road. They have pleaded that the promotional appointment of the petitioner was a purely stop-gap measure and did not confer any title or claim on the petitioner for promotion either on permanent or temporary basis. There was a selection to draw up a panel for the post of Loco Foreman, Grade-C, and though petitioner had expressed his willingness to compete for the selection, he was not called as he was found not to be within the range of selection. In paragraph 14 of the counter affidavit, it has been alleged :- "..........Annexure-3 to the writ application, i e. Railway Board's letter dated 9-6-1965 circulated under Chief Personnel Officer's endorsement of 1-7-1966, is only applicable to regular promotions and not applicable to stop-gap promotions. In paragraph 14 of the counter affidavit, it has been alleged :- "..........Annexure-3 to the writ application, i e. Railway Board's letter dated 9-6-1965 circulated under Chief Personnel Officer's endorsement of 1-7-1966, is only applicable to regular promotions and not applicable to stop-gap promotions. This has been clarified by Railway Board's letter dated 15-1-1966. It is pointed out at this stage that the date of Annexure-3 is 9-6-1965 and not 1-7-1966 as alleged.........A subsequent letter of the Railway Board dated 15-1-1966 which is enclosed to this counter as Annexure-D would be applicable to these cases which states that eighteen months' rule would not apply to stop-gap promotions.........." In the following paragraph, it has been pleaded :- ".....It is strange to suggest that without any statutory rule the petitioner's ad hoc promotion on stop-gap basis would automatically become regular promotion merely on the ground that he was allowed to officiate for more than eighteen months in that post.........." 3. In view of the pleadings and the arguments at the hearing advanced by counsel for the respective parties, the main question for consideration is as to whether petitioner would be entitled to be retained in the promotional post to which he had been appointed on ad hoc basis if that appointment continued for more than eighteen months. 4. There is no dispute that Board's instructions issued from time to time intended to have general application would be statutory and enforceable. The relevant instructions issued by the Board on the question may now be extracted. On 21-5-1956, in a letter marked confidential relating to the subject of observance of disciplinary proceedings in cases of staff officiating in a grade beyond eighteen months when the question of reversion of such staff arises, the Board indicated :- "The Board, therefore, desire that, with immediate effect, the performance of every Railway Servant officiating in a higher grade should be adjudged by the competent officer before the expiry of 12 months of total officiating service and if the performance is not satisfactory, either the Railway servant may be reverted on the grounds of unsuitability, or he may be warned that his work is not quite satisfactory, but that he is being permitted to draw his increment in the expectation that his performance will improve during the next six months for which he will continue to be under observation. At the end of the extended period of six months, i.e. of a total officiating service of 18 months, either the person should be declared suitable for retention in the grade or should be reverted because he is unsuitable. Any person who is permitted to continue to officiate beyond 18 months cannot in future be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules." In the case of Somanath Rath v. Union of India and another O.J.C. No. 29 of 1967, dd. on 16-4-1970, petitioner relied on this circular. On behalf of the Railway Administration, it was contended that the appointment of Somanath was by way of stop-gap arrangement and, therefore, the circular was not applicable. Besides, the circular had been modified by the Board on 16th of March, 1960 and, therefore, Somanath was not entitled to any relief on the basis of 1956 circular letter. This Court took the view that the 1956 circular was enforceable; the right had accrued to Somanath before 1960 and as such he was entitled to the relief. For convenience, we may refer to the Board's letter dated 1-2-1960 which read thus :- "Please refer to Kamalkara Rao's confidential D.O. No. E 55 RG 6-26 dated 21-5-1956, wherein it was, inter alia, stated that any person who is permitted to continue to officiate beyond 18 months cannot in future be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules. Subsequently, in Sri P.C. Mukherjee's confidential D.O. No. E 55 RG/26 dated 7-6-1958, in was emphasised that prompt and timely review of a railway servant's performance within the first 12 months of his officiating service in a higher grade should be made to decide whether or not he should be reverted for unsatisfactory work. Subsequently, in Sri P.C. Mukherjee's confidential D.O. No. E 55 RG/26 dated 7-6-1958, in was emphasised that prompt and timely review of a railway servant's performance within the first 12 months of his officiating service in a higher grade should be made to decide whether or not he should be reverted for unsatisfactory work. It was now been decided that there is no need to prescribe any period during which a final assessment must necessarily be made of the performance of each railway servant officiating in higher grade and accordingly the instructions contained in Board's D.O. letters dated 21-5-1956 and 7-6-1958 may be treated as modified." On 9-6-1965, the Board again issued the following direction :- "In Shri N. Kamalkara Rao, Director Establshment's D.O. No. E 55 RG 6-26 dated 21-5-1956, it was, inter alia, stated that any person who is permitted to continue to officiate beyond 18 months cannot in future be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules. These instructions were cancelled vide Board's letters No. E (D & A) 60 RG 6-5 dated 1-2-1960 and 14-5-1960, thus permitting the reversion of an employee officiating in a higher post, on grounds of general unsuitability, at any time and not necessarily within a period of 18 months, without following the procedure prescribed in the Discipline and Appeal Rules. The Board have reconsidered the matter and feel that it would not be correct to effect such reversions after prolonged officiating periods. They have, therefore, decided again that, in future, any person who is permitted to officiate beyond 18 months cannot be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules." On behalf of the opposite parties, reliance was placed on a communication dated 15-1-1966 which ran thus :- "Reference Board's letter of even number dated 9-6-1965 wherein it has, inter alia, been stated that, in future, any person who is permitted to officiate beyond 18 months cannot be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules. A question has been raised whether this safeguard applies to persons who are officiating on promotion as a stop-gap measure and not after empanelment (in the case of selection posts) and after passing the suitability test (in the case of non-selection posts). A question has been raised whether this safeguard applies to persons who are officiating on promotion as a stop-gap measure and not after empanelment (in the case of selection posts) and after passing the suitability test (in the case of non-selection posts). It is clarified that the safeguard applies to only those employees who have acquired a prescriptive right to the officiating posts by virtue of their empanelment or have been declared suitable by the competent authorities. It does not apply to those officiating on promotion as a stop-gap measure and also to those cases where an employee, duly selected, has to be reverted after a lapse of 18 months because of cancellation of Selection Board's proceedings or due to a change in the panel position consequent to rectification of mistakes in seniority etc." If this clarification was intended to govern, the Chief Personnel Officer of the Sough-Eastern Railway would not have circulated the Board's instruction dated 9.6.1965 without clarification under his letter dated 2-12-1966. In this circular letter of the Chief Personnel Officer, reference has been made to any person without any indication that the two categories referred to in the letter of 15-1-1966 were intended to be excluded. Board's letter dated 5-2-1972 (Annexure-7) on principle Supports the same position. We are inclined to take the view that the clarification indicated in the communication dated 15-1-1966 was with reference to cases of purely stop-gap appointments. In the instant case, there was a clear vacancy. Petitioner held the post for almost three years. Though in the original order of appointment it had been stated to be on stop-gap basis, the fact that the appointment continued for three years itself militates against the concept of stop-gap arrangement and we are inclined to hold that the petitioner came within the ambit of the protective provision in the Board's Circular letters. He could not have been revetted after completing almost three years in the higher post and without any adverse remarks, in the absence of a disciplinary proceeding. He could not have been revetted after completing almost three years in the higher post and without any adverse remarks, in the absence of a disciplinary proceeding. It has been held by the Calcutta High Court in the case of Madhukar Raghunath Nafdey v. Union of India and others 1975 (2) S.L.R. 110, that a circular of the Railway Ministry laying down the principle that no reversion from officiating service after completing 18 months should be made without following the prescribed rules created a right in favour of the railway servant and reversion made contrary to the circular would be bad. Mr. Pal for the Railway Administration, on the other hand, places reliance on a decision of the Patna High Court in the case of Braj Nath Rai v. Union of India and others 1976 (2) S.L.R. 425, wherein, it had been pointed out :- "....He (Mr. Ghose for the petitioner) further urged that the petitioner's continuous officiation could not have been said to be a merely temporary or local or stop-gap arrangement. In this connection he has placed reliance on D.R. Nim, I.P.S. v. Union of India, (1967) 2 Supreme Court Reports 325, ( 1967 SLR 221 ). In that case their Lordships were considering rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, issued under section (3) 1 of the All India Services Act, 1951. On the facts and circumstances of that case it was held that the appellant was officiating for eight years, that he had never been reverted and that he was appointed to the post when vacancies fell, and therefore it could not be held that the appellant's continuous officiation was a mere temporary or local or stop-gap arrangement, within the meaning of Explanation I to rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules. In my opinion on the facts and circumstances of the present case, which I have elaborately discussed above, on the basis of Annexures 6, 7 and 8, the above observation of their Lordships is not applicable to it." We are inclined to think that the Patna decision must be confined to its own facts and in a case like ours, where the petitioner has been allowed to serve in the promotional post for about 3 years and there is no adverse remark against him, the appointment though initially stated to be stop-gap, cannot be taken to be a stop-gap arrangement and in our considered view, a case like the petitioner's would be governed by the Board's rule. 5. Admittedly, there has been no proceeding preceding the reversion and, therefore, the reversion must be held to be bad. We may add that Mr. Pal for the Railway Administration had vehemently contended that if a person allowed to continue in the exigencies of service for more than eighteen months though not otherwise entitled to promotion would acquire a right to the promotional post, it would lead to chaos in service. With a view to avoiding such embarrassing difficulties, the Railway Board had time and again insisted on timely assessment as also not to allow stop-gap arrangement for a long period to continue. If a person in the lower rank is allowed to hold a higher post on promotional basis for long period and then he is reverted, he is likely to be very adversely affected and such a situation may tell upon his efficiency in service. This must have been kept in view when the Board issued the circulars time and again to impress the Railway Administration about its viewpoint. 6. For the reasons we have indicated above, this application has to be allowed and the impugned reversion of the petitioner from the post of Loco Foreman, Grade-C should be quashed. Petitioner is entitled to the service benefits on the footing that the order of reversion dated 7-1-1978 (Annexure-2) was bad and he must be deemed to be continuing in that post. We make no order for costs. N.K. Das, J. - I agree. Final Result : Allowed