N. H. BHATT, J. ( 1 ) * * * * ( 2 ) OBVIOUSLY this policy decision which prima facie appears to the the opening doors for all the Class IV staff in the lowest grade of Rs. 30-35 and not the opening doors for the Glass III cadre like the cadre of Brakesman. The underlying spirit was to make available all the facilities to the Class IV staff. The General Manager Western Railway had therefore authorised the Chief Operating Superintendent to circulate two charts indicating the revised channels of promotion for the Class IV staff vide Annexure R-II. Mr. H. P. Sompura the learned advocate appearing for the petitioner complained that the Chief Operating Superintendent was not an authority to revise the channels of promotion for the Class IV staff but I did not think that an officer of his status and liability would take a policy decision on his own and therefore I called upon the Railway Administration to produce the original file before me with a view to enable me to ascertain whether it was the decision of the General Manager in exercise of his powers under Rule 158 of the Establishment Code or not. I am happy to say that the Railway Administration produced before me the proposal of the said officer approved in terms by General Manager of the Western Railway at Bombay. I therefore hold that it was a decision of the General Manager in exercise of his powers under Rule 158 of the Establishment Code and not an ex parte decision of the Chief Operating Superintendent. To say that the Railway Board wanted the Class IV employees in the time scales of Rs. 35-50 alone to be eligible for promotion to the Class III posts and to eliminate other Class IV employees in other time scales like Rs. 35-40 is unintelligible on the face of it. It was therefore in the fitness of things that the Railway Administration took the decision long long ago to make the promotional avenue of Brakesmans post as not confined to the Pointsman but as open to all the Class IV employees. In other words the Railway Administration made it not a normal avenue of promotion but made it a general avenue of promotion. ( 3 ) MR. Sompura for the petitioner in this connection invited my attention to Rule 109 of the Establishment Manual. In other words the Railway Administration made it not a normal avenue of promotion but made it a general avenue of promotion. ( 3 ) MR. Sompura for the petitioner in this connection invited my attention to Rule 109 of the Establishment Manual. It has been actually reproduced at page 36 of the petition No. 2987 of 1979. It mentions that the Class IV Staff Promotion Committee had recommended that posts of Junior Clerks Material Checkers Store Clerks/issuers Switchmen Cabinmen Shunting Jamadars Brakesmen etc. in scales such as Rs. 55-85 Rs. 61-85 Rs. 60-75 and Rs. 50-80 which are normally filled by senior Class IV staff should be wholly filled by promotion. This means that nomination was eliminated ). It is further provided that the Government had decided to accept this recommendation of the Staff Promotion Committee. The general policy decision in this regard is as follows:"class IV staff will be eligible for consideration for promotion to these posts after they have put in 5 years service in Class IV. 1. In the case of posts which are in the normal avenue of promotion to Class IV staff promotion should be made from amongst the staff of the department concerned in each promotion unit on the basis of seniority cum suitability after holding such written and practical tests as may be considered necessary. 2. In the case of posts which are not in the normal avenue of promotion promotion should be made on the basis of selection after holding such written and/or practical tests as may be considered necessary and from panels drawn and according to prevailing rules in respect of selection posts. ( 4 ) MR. Sompura urged that the posts of Brakesmen ate in the normal avenue of promotion to the Class IV staff whereas the Railway Administration urged that these posts are not in the normal avenue of promotion and therefore these promotional posts are to be filled in on the basis of the selection after holding such written and practical tests. Mr. Sompura I am sorry to say confused the situation He is trying to emphasize the earlier character of Brakesman post which was in the normal avenue of promotion. The Chart Annexure R-II at page 40 shows and I have already referred to it above that the Brakesmen could be once aspired for only by Pointsmen and Gatesmea. Mr. Sompura I am sorry to say confused the situation He is trying to emphasize the earlier character of Brakesman post which was in the normal avenue of promotion. The Chart Annexure R-II at page 40 shows and I have already referred to it above that the Brakesmen could be once aspired for only by Pointsmen and Gatesmea. Thereafter the change in the policy came up and so a new Chart came to the circulated as back as 7-1-1960 with the approval of the General Manager Western Railway. The said Chart very amply shows that the posts of Brakesmen could be aspired for not only by Pointsmen but also by Levermen/cabinmen Grade II Markers Pointsmen Grade A Points Jamadar Standing Muccadam High Power Lamp Fitter Repacker Tarpaulin Mendes Crana Drivers and Air Condition Coach Attendants by promotion. The letter dated 7-1-1960 Annexure R-III at Page 41 of the Special Civil Application No. 2987 of 1979 very clearly states that the channel of promotion was decided as stated in that Chart and it specifically stated that all permanent Class IV staff of Transportation and Commercial Departments in various scales could come forth for selection (with written tests) for the posts of Brakesmen in the time scale of Rs. 50-50. It is to be remembered that till that day there were two categories of Brakesmen i. e. Brakesmen Grade I and Braksmen Grade II. Then they were amalgamated into one cadre of Brakesmen and the doors were thrown open for promotion for the benefit of all the Class IV staff. ( 5 ) IT is to be noted with pertinence that this change was not effected a year or two prior to the filing of the petition. It was affected as back as on 7-1-1960 and it was all the while holding the field. It is interested to note that the petitioner of the Special Civil Application No. 2987 of 1979 offered himself as a candidate at the selection. He tried his luck and failed. Now he has come forth branding these grapes are sour. His plea can the rejected even on this ground of acting in fairly. It is interested to note that the petitioner of the Special Civil Application No. 2987 of 1979 offered himself as a candidate at the selection. He tried his luck and failed. Now he has come forth branding these grapes are sour. His plea can the rejected even on this ground of acting in fairly. A man who takes the bene fit of a particular situation tries to avail himself of its fruit and on failing in his attempt cannot be permitted to assail the question in a Court of law particularly when the Court is invested with only discretionary powers. So judging from any angle the plea put forth by the sole petitioner of the Special Civil Application No. 2987 of 1979 is bound to fail. ( 6 ) THIS petitioner however rested his claim for retaining that post of a Brakesman on three other grounds which I propose to deal with one by one. Mr. Sompura relied on the letter of the Railway Board dated 21-4-1956 paragraph 3 whereof reads as under:"the Board desires that with immediate effect the performance of every Railway servant officiating in higher grade should be adjudicated by competent officer before the expiry of 12 months of the 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 on the assumption that his performance will improve during the next 6 months. At the end of the extended period of six months i. e. total 18 months of officiating service either the person should be declared suitable for promotion a in the grade or reverted. Any person who is permitted to continue for unsatisfactory working without following the procedure prescribed iq the disciplinary and appeal rules will be confirmed. " (Emphasis is by me) mr. Sompura urged that this petitioner had been working in this post on an ad hoc basis for more than five years and so he should be deemed to have been confirmed in that post and because of that deeming fiction the threatened reversion of his should be declared to be bad at law. The argument appears to be attractive at the first blush but does not stand scrutiny. The argument appears to be attractive at the first blush but does not stand scrutiny. The above quoted paragraph 3 of the Railway Boards letter refers to only officiating hands. It does not refer to the stopgap arrangements made in that regard. Stopgap arrangements ordinarily should be for short durations. But looking to the present standard of efficiency such ad hocism is continued longer to the heart burning of various employees at various stages like the petitioner. However as we watch day in and day out this inertia is growing faster and deeper in our public service cadres. We cannot therefore put this ad hocism at premium. Mr. Sompura in this connection invited my attention to the Railway Boards letter page 7 of the Bimonthly Gazette of the Westerm Railway dated 1st December 1973 The said letter is reproduced below because much was made of it on behalf of the petitioner. "1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. If in the absence of a panel it becomes necessary to post an unselected employee to officiate in selection post as a stop gap measure such an arrangement should be restricted to the shortest possible period and under no circumstances the top gap arrangement made to continue beyond a period of 3 months. . . . . . . . . 3. In one of the Permanent Communication Machinery meetings it was brought to the notice of this office that in many cases ad hoc arrangements to higher grade posts are made by utilising junior employees In this connection it is clarified that when ad hoc arrangements are inevitable normally only the seniormost man should be put on of officiate and such ad hoc arrangements should not be allowed to continue beyond a period of 3 months as already instructed in the circular mentioned in para (2) above. " picking the word officiating occurring in the above quoted paragraph 3 Mr. Sompura urged that ad hoc continuance and officiating are two interchangeable terms with common connotations. " picking the word officiating occurring in the above quoted paragraph 3 Mr. Sompura urged that ad hoc continuance and officiating are two interchangeable terms with common connotations. He also utilised the circular for the purpose of leading to an inference that if in the face of the Railway Boards letter ad hoc appointments exceeded the limit of three months it would be deemed to have been made as if permanent. This is in my view an absurdity. As stated above the continuance of ad hoc appointments in the absence of selections to be made and panels prepared are desired to be short lived that is not more than three months duration is expected but hopes are more often than not belied in actual practice. It is the awful experience of the persons dealing with service matters that such hopes and expectations remain more on paper than are translated into reality. What I emphasize is that the Railway Boards circular is an exhortation to its various offices. To say that what is required to be done in the process is done expeditiously; that does not and cannot mean that if ad hoc arrangement or ad hoc appointments continue for a period of more than three months they would ripen into regular appointments. The above quoted paragraph 3 of the Railway Boards letter therefore in the facts and circumstances is to be kept confined to a man officiating but not regularly appointed. The very tenor of the paragraph 3 suggests that the man is on the scrutiny as it is in the case of probation. What the Railway Board by that letter desires is that this scrutiny of a man appointed on probation or on test should not be a matter hanging sword over his head in order to see that the scrutinies are not delayed for a period not more than 18 months as laid down by the Railway Board in the above quoted letter. In the case of a man who is appointed on ad hoc basis or appointed in the stopgap arrangement the scrutiny and test the examination of his performance and ability are foreign to him. In the case of a man who is appointed on ad hoc basis or appointed in the stopgap arrangement the scrutiny and test the examination of his performance and ability are foreign to him. The fact that in the above; mentioned paragraph 3 of the Railway Boards letter where is reference to scrutiny examination of the merits and demerits of the concerned employee and it itself suggests that the man is regularly appointed but to be confirmed subject to testing of his mettle. The Railway Administration is therefore right in its contention that the said guidelines in paragraph 3 referred to above are confined to the employees who at the end of the period of scrutiny are otherwise expected to be permanent hands and it cannot have any scope or any reference to the employees appointed pending the regular selection. The argument put forth by Mr. Sompura would lead us to an absurdity if all the employees who are appointed on ad hoc basis pending selection and officiation of the select list are to be made permanent the very operation of the Recruitment Rules can be thrown to winds and made an impossibility. Can we attribute this sort of intention to the Railway Board ? The answer and the only answer which can be given would be clearly in the negative. ( 7 ) THE third argument put forth by the sole petitioner of the Special Civil Application No. 2987 of 1979 was that this being a nonselection post the Selection Board had no powers to hold the selection test. This argument has already been dealt with by me above while dealing with the first ground. The last contention in this regard was the selection was otherwise bad and mala fide because it was made without application of mind. As I said above it does not lie in the mouth of the petitioner who tried his hand at the selection and failed to raise this bogey. Even if it is entertainable the plea is not worth considering. The argument was that the petitioner and others who were already officiating as Class III employees could not apply for these Class III posts which were as laid down by the authorities reserved for the Class IV staff. Even if it is entertainable the plea is not worth considering. The argument was that the petitioner and others who were already officiating as Class III employees could not apply for these Class III posts which were as laid down by the authorities reserved for the Class IV staff. A man working on ad hoc basis on a higher post or even officiating on a higher post retains his lien to the Class IV post and whenever any avenue opens for the Class IV employee he holding his lien on the Class IV post entitled to come forth as a Class IV employee and try to reap whatever legal benefits he can earn in his capacity as Class IV employee. Temporary or accidental absence from the Class IV cadre does not rob him of his status and standing as a Class IV employee. Even a modicum of information on service law would compel any one to reject this plea. ( 8 ) IN above view of the matter the Special Civil Application No. 2987 of 1979 is bound to fail. Rule in the matter therefore stands discharged. Interim relief shall stand vacated on the expiry of one month from today. This stay is granted to enable this petitioner to try his luck further if it is otherwise open to him to do so. ( 9 ) THIS brings me to the second Special Civil Application No. 3069 of 1979. In order to retain their posts of Class III cadre of Brakesmen the petitioners invoked the plea that the selection of some juniors to the post of Brakesmen itself was wrong that being without any authority of law. The first argument is already disposed of above. They further alternatively contended that they having been already selected and placed on the panel at Annexure A of this petition (which is Annexure B in the Special Civil Application No. 3002 of 1979) they could not be replaced by persons junior to them. They complained that the persons at serial nos. 21 24 30 32 and 34 were allowed to retain their posts whereas both these petitioners who were senior to those persons were asked to make room for those junior persons. Mr. They complained that the persons at serial nos. 21 24 30 32 and 34 were allowed to retain their posts whereas both these petitioners who were senior to those persons were asked to make room for those junior persons. Mr. N. M. Shah the learned advocate appearing for the Railway Administration fairly stated that for the purpose of regular appointments the seniority as reflected in the list Annexure A shall be respected by the Railway Administration. He stated that those persons though junior to the petitioners could not be disturbed because of the injunctions granted by this Court in certain matters. So this difficulty in the way of these petitioners will no longer survive. Still to alleviate the apprehension whatever there be in the minds of these petitioners of the Special Civil Application No. 3069 of 1979 I direct the Railway Administration that they shall operate this list Annexure A in the this petition for the purpose of making regular appointments to the posts of Brakesmen subject to other provisions of binding rules if any. With this clarification the Rule in the Special Civil Application No. 3069 of 1979 will be party discharged and partly made absolute with no order as to costs. ( 10 ) THIS brings me to the third and last Special Civil Application No. 3032 of 1979 filed by the two petitioners who are at serial nos. 30 and 32 of the select list at Annexure B of that petition (which is Annexure A of the earlier petition No. 3069 of 1979 ). The petitioners got the stay because some other persons had filed suits in the City Civil Court Ahmedabad and had got an assurance that they would not be disturbed and further appointments would be made by a Selection Committee in any event without reverting the plaintiffs of those suits. The petition is silent as to who those plaintiffs are. It is not stated whether those persons are junior or senior to the petitioners of this petition No. 3002 of 1979. As I have already held that the selection list Annexure A of the Special Civil Application No. 3069 of 1979 i. e. Annexure B of the Special Civil Application No. 3002 of 1979 is to be operated upon by the Railway Administration this petition would not survive. Rule therein shall stand discharged and interim order shall stand vacated. Orders accordingly. .