Central Administrative Tribunal - Madras
Gaurab Kumar Sinha vs M/O Railways on 8 January, 2024
1 OA No.310/00887/2014
`CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00887/2014
Dated this 8th January, Two Thousand Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI,MEMBER(A)
AND
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
Gaurab Kumar Sinha,
S/o Binode Kumar Sinha,
Station Master,
Korukkupet, Chennai.
Residing at No.13/22, Kumaran Nagar,
Kaladipet, Tiruvottiyur,
Chennai. .. Applicant
By Advocate M/s Giridhar & Sai & Y. Kavitha
Vs.
1.Senior Divisional Personnel Officer,
Chennai Division, Southern Railway,
Chennai.
2.The Chief Personnel Officer,
Chennai Division, Southern Railway,
Chennai.
3.Union of India
rep by The General Manager,
Southern Railway, Chennai.
4 S.Dheenadayalu,
PF No.04055172,
LRSM, TI,
Arakkonam.
2 OA No.310/00887/2014
5.R. Saravanan,
PF No.04497041
MAS
6.B. Suresh,
PF No.03446323
Royapuram
7.A. Narayanababu,
PF No.04006197,
Egmore. .. Respondents
By Advocate Mr. K.Vijayaraghavan for R.1 to 3
M/s Ratio Legis for R. 4 to 7
3 OA No.310/00887/2014
ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
" i) to call for the records relating to the Seniority List circulated by Order No. M/P/612/I/OPTG/SM's dated 28.06.2013, issued by the 1st respondent quash the same in so far as the fixation of seniority of the applicant is concerned;
ii) to direct the respondents to place the applicant at S.No.93, above respondents 4 to 7 in the aforesaid seniority list, with all consequential benefits, including promotions to the next higher grades;
iii) to award costs and pass such further or other orders as may be deemed fit and proper in the interest of justice."
2. Brief facts of the case are as follows:
Pursuant to the Employment Notice No.01/2007, the applicant submitted an application for appointment to the post of Station Master/Grade II (Direct Recruitment). He submits that 15% of the posts in the categories of Section Controllers, Station Masters, Yard Master and Traffic Inspectors are filled up by Direct Recruitment; 10% by LDCE and the remaining 75% by promotion. On the basis of his performance in the written examination, the applicant was selected for appointment in the year 2007 and appointed on 04.03.2008. Under the extant norms, the applicant was initially appointed as Traffic Apprentice in the scale of Rs.5500-9000 (5th CPC) for a period of 2 years, during which he 4 OA No.310/00887/2014 underwent training before being formally posted. The applicant further submits that, upon successful completion of training, he was absorbed as Station Master/Grade II, in the Pay Band of Rs.9300-34,800/- with Grade Pay of Rs.4200/-, by an order dated 01.4.2010. By a communication, dated 28.06.2013, the 1st respondent circulated a Seniority List of Station Masters and other grades, in which several of his juniors were shown senior to him. He was placed at S.No.346, whereas his juniors, who are arrayed as private respondents, as R.4 to R.7 herein, were shown at S.Nos.94 to 97, respectively. The applicant further submits that they were promoted to the grade on 04.07.2008, whereas he was appointed on 31.01.2008 itself. He also states that he was appointed on 04.03.2008 (sic).
According to the applicant, this is clearly arbitrary and unreasonable as he ought to have been treated senior to the said persons. Merely because he was treated as an apprentice for 2 years, that does not push back his appointment; his appointment would relate back to the original date of appointment upon satisfactory completion of training. Hence, the applicant made a representation on 31.07.2013, seeking rectification of the said Seniority List. As there was no response from the respondents, he filed the present OA.
3. We have heard the learned counsel for the applicant, Ms. Y. Kavitha for M/s Giridhar & Sai and Mr. K. Vijayaraghavan, the learned counsel for 5 OA No.310/00887/2014 the respondents 1 to 3 and M/s Ratio Legis, the learned counsel for the private respondents, 4 to 7, and perused the pleadings and the materials placed on record.
4. The learned counsel for the applicant contended that, merely because he was treated as an apprentice for 2 years, that does not push back his appointment. His appointment would relate back to his original date of appointment, i.e., 04.03.2008, upon satisfactory completion of training. Further, the pay of the applicant, upon completion of apprenticeship in the grade of Station Master Gr.II, was fixed by granting 2 annual increments which confirms that his appointment to the grade commenced on 04.03.2008. Hence, the impugned seniority list is misconceived and liable to be set aside. The learned counsel also contended that when recruitment to a given post is by different modes, on the basis of a prescribed quota, then a rotational principle of seniority ought to be followed.
5. The learned counsel for the applicant further submitted that after the 6th Central Pay Commission, by an order, dated 03.11.2010, the post of Station Master Gr.III and Station Master Gr.II were merged in the post of Station Master, in the Pay Band of Rs.9300-34800 with Grade Pay of Rs.4200/-. When two grades are merged with retrospective effect, those in 6 OA No.310/00887/2014 the higher grade would be en masse higher than those in the lower grade. The Hon'ble Supreme Court has also upheld this principle in a number of cases. The learned counsel also pointed out that the 1 st respondent ignored the well-established principles pertaining to the determination of inter-se-seniority of persons recruited from different sources. The protection granted to those promoted between 01.01.2006 to 04.09.2008 by the order dated 26.09.2012, of the Railway Board, is in the context of merger of 2 grades with retrospective effect, to ensure that the retrospective effect granted for the purpose of monetary benefits is not misapplied to determine seniority of those not actually promoted to the higher grade, prior to the merger. As such, it is a clear case of colourable exercise of power and the impugned Seniority List is liable to be set aside, in so far as the determination of the seniority of the applicant is concerned.
6. Per contra, the learned counsel for the official respondents submitted that the applicant was offered an appointment, vide order, dated 31.01.2008. In paragraph 4 of the order, it was clearly stipulated that, after successful completion of the training, the applicant would be eligible for absorption as a Traffic Apprentice, to the extent vacancies are available, either in the Chennai Division or any other Division. Accordingly, the applicant who was selected as a Traffic Apprentice was deputed for training for a period two years. The learned counsel also drew our 7 OA No.310/00887/2014 attention to the term 'Apprentice' defined in Paragraph 1902, under Chapter IX, of the Indian Railway Establishment Manual, Vol.II. The same reads as follows:
"1902. An Apprentice means a person deputed for training in trade or business with a view to employment in Government service, who draws a stipend at monthly rates from Government during such training but is not employed in or against substantive vacancy in the cadre of a department."
7. The learned counsel for the respondents also submitted that, as per the Railway Board letter, dated 26.09.2012, it was decided to protect the promotions made between 01.01.2006 to 04.09.2008, as the same were made, as per the provisions of statutory rules existing at that time. As respondents 4 to 7 were promoted between 01.01.2006 to 04.09.2008, their seniority was protected and they were placed in the appropriate position. According to the learned counsel, it is incorrect to say that the private respondents were juniors to the applicant, as the applicant had entered into the Railways only on 12.04.2010, which alone can be reckoned, as the date of entry into the grade. The seniority of the applicant vis-a-vis the private respondents is governed by Para 302 of the Indian Railway Establishment Manual( IREM) Vol. I. He, therefore, prayed for dismissal of the OA.
8. The learned counsel for the respondents 1 to 3 and the learned counsel for the private respondents relied upon the order, dated 8 OA No.310/00887/2014 18.05.2015, passed by the Ernakulam Bench of this Tribunal in OA 631 of 2014.
9. We have considered the submissions made by the learned counsel on both the sides and also gone through the order of the Ernakulam Bench of this Tribunal.
10. Para 302 of the IREM which is relevant for the purpose of the case, is extracted as hereunder:
"Para 302. Seniority in the initial recruitment grades-
Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to that grade. The grant of higher pay than the initial pay should not, as a rule, confer on railway servant seniority above those who are already appointed against regular posts. In categories of post partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process. In the case of promotees and the date of joining the working post after the due process in the case of direct recruits, subject to maintenance of inter-se- seniority of promotees and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same, they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se-seniority of each group Note-
i) In the case of training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct 9 OA No.310/00887/2014 recruit shall be the date he would have normally come to a working post after completion of the prescribed period of training.
ii) The provision contained in Note (i) will also apply to the Inter Apprentices and departmentally selected candidates against the quota prescribed in certain categories to be filled by Limited Departmental Competitive Examination......."
11. In the instant case, it is seen that the applicant was offered an appointment vide order, dated 31.01.2008, with the condition that, after successful completion of the training, he would be eligible for absorption. Accordingly, the applicant was absorbed by an order, dated 01.04.2010, as Station Master Gr.II and his pay was fixed, duly taking the training period into account for the purpose of increment. However, his seniority was assigned, based on Para 302 of the IREM Vol.I. As per the said paragraph, seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. It is clearly specified in the Note (i) below Paragraph 302, that in case the training period of a direct recruit is curtailed in the exigencies of service, the dates of of joining the working post in case of such a direct recruit shall be date he would have normally come to a working post after completion of the prescribed period of training. As per Note (ii), the aforesaid provision in Note (i) will also apply to the Inter Apprentices and departmentally selected candidates against the quota prescribed in certain categories to be filled by LDCE. 10 OA No.310/00887/2014
12. It is also seen that the applicant was directly recruited as Station Master Gr.II, whereas the private respondents have entered the Station Master cadre as Assistant Station Masters and progressed as Station Master Gr. III/Gr.II. The applicant, after training, has been posed in the working post of Station Master Gr.II only on 12.04.2010 from which date he is entitled to assignment of seniority above those who happened to be in the merged grade, prior to the cut off date prescribed in the Railway Board Circular dated 26.09.2012 (Annexure A.4). The said Circular is relating to the status of promotions made between the date of effect and the date of implementation of recommendations of VIth CPC and determination of seniority of staff in the merged grades. The relevant portion of the Circular is extracted as hereunder:
"xxx xxx xxx xxx xxx ((iii) Where recruitment for the posts in different pre- revised pay scale(s) was initiated separately for each posts, prior to acceptance of recommendations of 6th CPC, i.e. prior to 04.09.2008 but selected individual joined duty on or after 05.09.2008 in the revised pay scale(a) against the posts which have been granted same Grade Pay, such staff will be assigned seniority enbloc below those who were in position as on 04.09.2008."
The applicant being an Apprentice does not have any right against a substantive vacancy in the cadre of a department, in terms of Para 1902 of IREM, Vol.II. As he has been posted as Station Master Gr.II only on 12.04.2010, the above provision applies to him. Therefore, the respondents 11 OA No.310/00887/2014 have rightly assigned the seniority of the applicant from 12.04.2010. The date of entry into grade is the criteria and not the date of appointment for the purpose of reckoning the seniority of the applicant.
13. With regard to the contention that the period of training undergone by the applicant should be treated as service for the purpose of preparation of seniority also, it is worthwhile to refer to the Railway Board's Circular, dated 04.02.1991, (RBE No.25 of 1991) based on an OM issued by the DOP&T, which reads as follows:
"3. The matter has been considered in the National Council (JCM) and it has been decided that in case where a person has been selected for regular appointment and before formally taking over charge of the post for which selected person is required to undergo training, training period undergone by such a Government servant whether on remuneration to stipend or otherwise may be treated as duty for the purpose of drawing increments."
Thus, it is very clear that the training period of an employee is counted as duty only for the purpose of drawing increments and not for fixing seniority.
14. We are also of the view that the Ernakulam Bench of this Tribunal in OA No.631 of 2014 has dealt with the issue in detail and dismissed similar claim as made by the applicant herein. The said order dated 18.05.2015 squarely covers the present case of the applicant. 12 OA No.310/00887/2014
15. In the light of the above analysis and in the light of the instructions issued by the Railway Board, relating to the fixation of seniority of the employees on the merger of two grades, and also in view of the fact that the applicant, after successful completion of training, has actually joined the working post only on 12.04.2010, after the prescribed cut- off date, i.e, 04.09.2008, he cannot claim seniority over the private respondents who were already in the merged grade as on the cut -off date. As such, we do not find any illegality or infirmity in the impugned Seniority List, dated 28.06.2013, which is based upon the Railway Board's Circular dated 26.09.2012.
16. In the result, the OA lacks merits and it is dismissed accordingly. No order as to costs.
(M. SWAMINATHAN) (VARUN SINDHU KUL KAUMUDI)
MEMBER(J) MEMBER(A)
08.01.2024
mas