S.U. Khan, J.:— In this appeal ar guments of learned Counsel for the appel lants were heard and judgment was reserved on 20.12.2011. Thereafter by order dated 23.2.2012 matter was directed to be listed for hearing again in the next cause list. The said order is quoted below: "This appeal was finally heard on 20.12.2011 and judgment was reserved. However due to inadvertence it was not verified on the said date that at the time of admission of this appeal on 6.9.1982 substantial question of law had not been framed. Accordingly, it is directed that the appeal will be heard on the substantial questions of I aw No. I and'2 statedon page 8 of the memorandum of appeal. List for hearing again in the next cause list." Thereafter, on 4.5.2012 the following order was passed. "Case called out. No one appears for the respondents. Heard Shri Satya Prakash Mishra, learned Counsel for the appellant again. Learned Counsel has addressed the court on substantial questions of law Nos. 1 and 2 stated in the memorandum of appeal. Judgment reserved. List for delivery of judgment on 15.5.2012". However, due to paucity of time judg ment could not be delivered on 15.5.2012. 2. This is defendants' appeal arising out of O.S. No. 478 of 1975 filed by respondent No.l against appellant and respondents No. 2 to 4 in this Second Appeal. Plaintiff was a teacher and defendants respondents No. 2 to 4 were also teachers. Plaintiff sought a declaration that she was senior to defendants respondents No. 2 to 4. The suit was dismissed on 16.3.1979 by Munsif Haveli Varanasi. Against the said decree plaintiff filed civil appeal No. 177 of 1979. The appeal was allowed on 3.12.1981 hence this Second Appeal. 3. Substantial questions of law No. 1 and 2 stated on page 8 of of the memo randum of appeal are quoted below: "1. Whether the appellate court below has correctly interpreted the rules 328 (5) and 328 (4) of Advance Correction Slip No. 70 to Indian Railways Establishment Manual. 2. Whether the appellate court be low can give cognizance of the officiating services for the purpose of assigning the seniority which have since been declared invalid by the Rule 328(2) of Advance Correction Slip No. 70 to Indian Railways Establishment Manual? " 4.
2. Whether the appellate court be low can give cognizance of the officiating services for the purpose of assigning the seniority which have since been declared invalid by the Rule 328(2) of Advance Correction Slip No. 70 to Indian Railways Establishment Manual? " 4. The case of the plaintiff was that Diesel Locomotive Works (DLW) Varanasi a Railway Establishment runs two schools one a High School and another a Primary School, that some posts for teachers were advertised in the news paper for both the schools and plaintiff applied for both the schools or both the Sections of the same school and participated in the selection process of both and was declared selected for both; that plaintiff was appointed on 19.7.1965 in the High School and worked there till 24.8.1965 (36 days). It was fur ther pleaded that w.e.f. 25.8.1965 plain tiff was asked to work in the primary school as at that time there was no vacancy available in the High School and that since 1966 a post became vacant in the High School hence by order of Personnel Officer DLW dated 25.6.1966 plaintiff was asked to work on the permanent post in the High School where she started working w.e.f. 1.7.1966. She claimed her seniority from 19.7.1965. Seniority list was prepared and published on 28.8.1974 in which plaintiff was shown junior to defendants respondents 2 to 4 giving rise to the filing of suit by her. Plaintiff further pleaded that in February 1974 another seniority list had been prepared in which plaintiff had been shown senior to defend ant respondent 2 to 4 and that could not be changed subsequently on 28.8.1974. 5. Defendant No. 1 filed written statement and contended that plaintiff was selected for primary school as Assistant Teacher and she was not selected for the High School, however, from 19.7.1965 to 24.8.1965 (36 days) plaintiff was asked to officiate as teacher in the High School as the proper teacher was not available in the High School and after vacancy in June 1966 petitioner was appointed in the High School Section w.e.f. 1.7.1966 and that seniority was determined on the basis of advance correction slip No.70 which had been declared to be valid by Allahabad High Court. 6.
6. According to the plaintiffs case itself regular vacancy in High School Section occurred in June 1966 hence she could not be given seniority w.e.f. 19.7.1965 on the basis that from the said date for 36 days (till 24.8.1965) she had worked on offi ciating basis in High School. Officiating/Ad hoc services which are not continuous can not be counted for the purposes of sen iority. Plaintiff could not show that she was selected for High School in 1965. If the petitioner had continuously worked from 19.7.1965 till 1.7.1966 in the High School on officiating/ad hoc basis then she could raise some argument for taking that period into consideration for determining senior ity. However, at the initial stage she worked only for 36 days and thereafter there was break of more than 10 months during which period she worked in the primary Section hence she could not claim seniority w.e.f. 19.7.1965 in the High School. The lower appellate Court also held that on the pe rusal of the appointment letter which was filed by both the parties it was established that the plaintiff was appointed as Assist ant Teacher (in primary school) lower appellate court recorded categorical find ing that— "appellant has failed in establishing the fact that she was selected for the post of Assistant Teacher in High School Sec tion. " 7. The lower appellate court placed reliance upon two authorities of the Su preme Court reported in S.B. Patwardhan v. State of Maharashtra, AIR 1977 SC 2051 and N. K. Chauhan v. State of Gujarat, AIR 1977 SC 251 holding that officiating service must be taken into consideration for determining seniority. 8. Para 40(C) of N.K. Chauhan v. State of Gujarat is quoted below: "Seniority, normally, is measured by length of continuous, officiating service - the actual is easily accepted as the legal. This does not preclude a different prescrip tion, constitutionality tests being satisfied." 9. Similarly in S.B. Pafwardhan v. State of Maharashtra, it has been held in para 51 that: "All other factors being equal con tinuous offtciation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority. " 10. In view of the said authorities only if plaintiff appellant had worked con tinuously from 19.7.1965 till her regular appointment in June 1966, the said serv ice could be taken into consideration. 11.
" 10. In view of the said authorities only if plaintiff appellant had worked con tinuously from 19.7.1965 till her regular appointment in June 1966, the said serv ice could be taken into consideration. 11. In Indian Railway Establishment manual advance correction slip No. 70 supplied by learned Counsel for appellant Rule 328 was modified w.e.f. 4.12.1971. Rule 328(4) and (5) is quoted below: "(4). After staff are assigned posi tions in the seniority list as on 1.8.1961 or on a subsequent date on which they had been appointed/transferred to the Diesel Locomotive Works, they shall be consid ered for promotion to the higher grades. These promotions shall be made annually with reference to the staff in position in the Diesel Locomotive Works as on 31st December, of the previous year, i.e. pro motions shall be made in 1962 with ref erence to the staff in position on 31st December, 1961 as so on. In ordering these promotions, the quota for promotions wherever prescribed with reference to the total number of vacancies shall be filled up by promotions from amongst such staff who were working in Diesel Locomotive Works on the crucial date and who fulfil the prescribed qualifications. In regard to the Accounts Department, promotions will be made in accordance with the rules prescribed in the India Railway Establishment Manual for that Department. For purposes of ordering promotions including determination of the number of posts in each grade and their distribution tradewise and Division-wise, the decision of the Diesel Locomotive Works Admin istration shall be final. (5) Staff will be required to put in a minimum of length of service in a par ticular grade before they can be consid ered eligible for promotion to the next higher grade; in respect of technical and non-ministerial staff including artisans, it shall be two years in each grade and in the case of ministerial staff 5 years in each grade. This requirement is in addition to any other conditions of eligibility that may be pre scribed under the rules for such promo tion. " 12. There is nothing in the said rule which may help the plaintiff in any manner. 13. Accordingly, both the substantial questions of law are decided in favour of the appellant. Second appeal is allowed judgment and decree passed by the lower appellate court is set aside.
" 12. There is nothing in the said rule which may help the plaintiff in any manner. 13. Accordingly, both the substantial questions of law are decided in favour of the appellant. Second appeal is allowed judgment and decree passed by the lower appellate court is set aside. Judgment and decree passed by the trial court dismissing the suit is restored. However, it is clarified that whatever benefits have been already reaped by the plaintiff respondent under the judgment and decree passed by the lower appellate court shall not be refundable. _____________