Central Administrative Tribunal - Patna
Binod Kumar Sinha vs Railway on 25 February, 2019
-1- OA/050/00718/15
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00718/15
With
MA/050/00304/15
Reserved on : 18/02/2019
Pronounced on : 25/02/2019
CORAM
HON'BLE MR. JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
1. Binod Kumar Sinha, Son of Late Jeelal Prasad, resident of Village-
Nauroo Tola, Baijnath Bigha, PO- Nauroo, PS- Paras Bigha, District-
Jehanabad.
2. Sudhakar Jha, Son of Shri Ram Kishore Jha, resident of Mata Lane,
Government School Gali, Bishunpur Pakri Sipara, Patna.
3. Rajnish Kumar, Son of Narendra Kumar Sinha, resident of Village +
PO- Chintamanichak, PS- Mokama, District- Patna.
4. Rajgir Prasad, Son of Late Jagdeo Ram, resident of Q. No. 320 CD, New
Colony, Khagaul, District- Patna.
5. Pravin Kumar, Son of Late B.K. Verma, resident of Q. No. 103/C,
Medical Colony, Khagaul, Patna.
.... Applicants.
By Advocate: - Mr. G. Bose, Sr. Advocate with Mr. Vikash Jha
-Versus-
1. The Union of India through the General Manager, East Central Railway,
Hajipur.
2. The General Manager (Personnel), East Central Railway, Hajipur.
3. The Divisional Railway Manager, East Central Railway, Danapur.
4. The Senior Divisional Personnel Officer, East Central Railway, Danapur.
5. The Divisional Personnel Officer, East Central Railway, Danapur.
6. Rajesh Kumar, Son of Sri Lal Narayan Sharma, resident of Q. No. 317
AB, New Railway Colony, Khagaul, District- Patna.
7. Manish Ranjan, Son of Late S.P. Sinha, resident of Road No. 2, RMS
Colony, Kankarbagh, Patna.
8. Sushil Kumar No. 1, Son of Late Nageshwar Prasad, resident of Village-
Jamaluddin Chak, Neora Road, District- Patna.
9. Sanjay Kumar, Son of Late Fakira Prasad, resident of Village-
Maksudpur, PO- Fatua, District- Patna.
10. C.S.P. Sinha, presently posted as SM/Wena, E.C. Railway, Danapur.
...... Respondents.
By Advocate(s): - Mr. B.K. Choudhary
Mr. S.P. Singh
-2- OA/050/00718/15
ORDER
Per Dinesh Sharma, A.M:- The present application is against the provisional seniority list of Deputy Station Manager/ Station Master/Traffic Inspector/Yard Master (Annexure A/1) in pay Band Rs. 9300-34800/- + GP Rs. 4200/- whereby the private respondents no. 6 to 10 have been shown senior to the applicants. The challenge is mainly on grounds of facts stated in the following paragraph: -
2. The applicants were selected for the post of Traffic Apprentices vide order dated 13.04.2010 (Annexure A/5) following an examination held on
02.02.2008/09.08.2008. They were sent on training by order dated 21.04.2010 (Annexure A/6). However, following the order of the Tribunal in OA 266/2010 dated 20.04.2010 the respondents no. 4 to 6 were also selected, as they had also appeared for the same examination for the post of Traffic Apprentices, by order dated 15.12.2010 which was issued "in suppression of the result issued vide this office letter of even number dated 13.04.2010" (Annexure A/8). These private respondents were, admittedly, working in the higher pay scale even before their selection (in Station Master's pay scale of Rs. 5000-8000/-) in comparison with the applicant's pay scale (of Rs. 4500-7000/-). Since they were selected as Traffic Apprentices after the applicants, and also joined to that post after the applicants, the applicants' claim is that their position in the seniority list of Deputy Station Master/Station Master/Traffic Inspector/Yard Master (in Pay Band Rs. 9300- 34800/- + Grade Pay of Rs. 4200/- should be below that of the applicants. They have also requested that, in the alternative, their seniority position should be as per the merit position secured in the examination through which both
-3- OA/050/00718/15 the applicants and the private respondents were selected to the post of Traffic Apprentices.
3. The official respondents have denied the claim of the applicants. According to them, subsequent to the written examination held on 02.08.2008 and 09.08.2008 five persons (applicants) were found suitable and subsequently six more (private respondents) were declared suitable. Since these six private respondents were already in Grade Pay Rs. 4200/- prior to their selection, their seniority was fixed at their existing place on completion of training. The applicants cannot be assigned seniority over that of the private respondents, just because of their having completed training earlier since training of the employees is purely according to administrative convenience. They have also quoted RBE 107/2012 para-2
(ii), according to which: where posts having different pay scales prior to 6th PC lie in the same pay band with same grade pay after merger, the inter-se seniority of all the employees will be fully maintained with the employees in higher pre-revised pay scales being placed higher vis-à-vis the employees in a lower revised pay scale.
4. The applicants, in their rejoinder, have reiterated that their selection was to a selection post on the basis of an examination. The respondents, who were already in the same pay scale of the post for which they appeared in the examination, were not selected earlier (for this reason), and were selected later, following the directions of this Tribunal in OA 266/2010 where none of the applicants was a party and no decision on merits was made. As per the Railway Rules the persons selected earlier and
-4- OA/050/00718/15 joined earlier should rank senior to the persons who joined later. Just because the private respondents were already in the pay scale of Rs. 5000- 8000/- they should not rank automatically senior to the applicants since they had not completed the training as required under law.
5. We have gone through the pleadings and heard the learned counsels for both the sides. During the course of the arguments, the Sr. Advocate for the applicant drew attention to Rule 303 of IREM Vol. I according to which if any recruitment is done by the Railway Recruitment Board or any other recruitment authority the seniority position of the selectees from such examination will be as per the order of merit secured in the examination. The learned Advocate for the respondents strongly refuted this and argued that the selection process following the Limited Departmental Competitive Examination for the post of Traffic Apprentice cannot be considered as a selection by the Railway Recruitment Board or any similar recruitment authority. The learned Advocate for the applicants also cited case of Tej Prakash Pathak & Ors. Vs. Rajasthan High Court and Ors. where it was decided that rules of a selection process cannot be changed midway through the selection process. He also quoted the case of Ashok Kumar Ratilal Patel Vs. Union of India & Anr. (which is a case of appointment on deputation), S.L. Srinivasa Jute Twine Mills Pvt. Limited Vs. UOI & Ors (where the Court decided against giving retrospective effect to take away vested rights) and Anand Kumar Vs. Haryana Urban development Authority and Anr.(P&H) (again holding that vested rights cannot be taken away retrospectively by administrative instructions). None
-5- OA/050/00718/15 of these decisions, apparently, have any decisive impact on the matter in issue here.
6. After having gone through the pleadings and hearing the learned counsels of both the sides, it is clear that the only issue which needs to be decided is whether the inter-se seniority amongst people selected by a Limited Departmental Competitive Examination (LDCE) is to be decided on the basis of:
(a) Their order of merit in that examination, or
(b) Their date of joining/date of completion of training, or
(c) Their original standing in the order of seniority before such examination.
If the position was to be decided on the basis of (a) above, some of the applicants would lie above and some below the private respondents. If it was to be decided on the basis of (b), then the applicants would lie above the private respondents and if it was to be decided on the basis of (c), then the private respondents will lie above the applicants.
7. Giving position of seniority on the basis of order of merit in the examination will depend on whether this examination process can be considered as a selection by RRB or a recruitment authority as indicated in Rule 303 of IREM Vol. I . Rule 303 of IREM Vol. I is reproduced below:-
"303. The seniority of candidates recruited through the Railway Recruitment Board or by any other recruiting authority should be determined as under:-
(a) Candidates who are sent for initial training to Training Schools will rank in Seniority in the relevant Grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post. Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination. In case, however, persons
-6- OA/050/00718/15 belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batchwise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt.
(Authority Board's letter NO. E(NG)I-89/SR6/32(PNM) dated 19-3-93)
(b) In the case of candidate who do not have to undergo any training in training school, the seniority should be determined on the basis of the merit order assigned by the Railway Recruitment Board or other recruiting authority."
In this case the examination was not conducted by the Railway Recruitment Board. It would be a rather stretched interpretation of that word "recruiting authority" if selection through Limited Departmental Competitive Examination process was also be considered as one done by a "recruiting authority". Hence, giving the applicants the benefit of seniority on the basis of this Rule will not be correct.
8. Since the private respondents could join later only because they were selected later (following the orders of the Tribunal, and for no fault of theirs) assigning them a position lower to the applicants on this ground also will not be correct. Both the applicants and private respondents had appeared in the same examination and were selected through the same selection process. The only reason for their delayed selection was an incorrect understanding of the Department about their eligibility to apply. Thus, we cannot apply criteria(b) above for putting them low in the seniority list.
9. This leaves us to the position (c), which is what the official respondents have taken in this case, and accorded the private respondents'
-7- OA/050/00718/15 seniority as per their original position before the conduct of the examination. Putting them below the applicants would be unjustified by any logic as explained above. The OA is, therefore, dismissed. No order as to costs.
[ Dinesh Sharma ] [Jayesh V. Bhairavia] Administrative Member Judicial Member Srk.