Central Administrative Tribunal - Chandigarh
Devinder Singh Son Of Shri Bhagwan Singh vs Union Of India Through on 24 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.839-HR-2011 Order pronounced on:24.02.2014 (Order reserved on: 06.02.2014) CORAM:HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) & HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) 1.Devinder Singh son of Shri Bhagwan Singh, aged 35 years, presently working as Loco Pilot (Goods), in Headquarters, Northern Railway, Ambala Division, Ambala Cantt. 2.Parshant Kumar son of Shri Tilak Raj, aged 43 years, presently working as Loco Pilot (Goods) in Headquarters, Northern Railway, Ambala Division, Ambala Cantt. By: Mr. H.S. Sethi, Advocate. Applicants Versus Union of India through :- 1.The General Manager, Northern Railway, Baroda House, New Delhi. 2.The Divisional Railway Manager, Northern Railway, Ambala Division, Ambala Cantt. 3.Divisional Personnel Officer-1, Northern Railway, DRM Office, Ambala Cantt. By: Mr. R.T.P.S. Tuilsi, Advocate with Mr. Sanjay Pathania, Advocate. Respondents O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J) In this Original Application under section 19 of the Administrative Tribunals Act, 1985, the applicants seek quashing of the order dated 13.6.2011 (A-1) vide which their claim for pay fixation and other service related benefits for the period from 29.7.2009 to 11.12.2009 has been rejected; order dated 29.7.2009 (A-2) vide which they have been removed from the panel of Driver Goods (Loco Pilot Goods) Rs.5000-8000 and have been reverted to the post of Assistant Loco Pilots; seniority list dated 19.6.2008 (A-3), prepared on the basis of combined marks in the transportation and diesel test whereas in all other zones, the same has been prepared on he basis of marks in the Transportation Training only.
2. The applicants No.1&2 were appointed as Assistant Loco Pilot (Diesel Assistant) through Railway Recruitment Board and were issued appointment letters dated 1.11.2000 and 15.12.2000. A seniority list of ALPs was issued on 15.4.2004 in which they sere shown at Sr. No. 293 and 300 respectively. This was challenged in O.A.No. 856-HR-2005 Shish Pal Vs. UOI etc. on the premise that it was in violation of Rule 303 (a) of the Indian Railway Establishment Manual-I. Meanwhile, a circular dated 29.11.2005 was issued by the respondents for making promotion to the post of Driver Goods in the pay scale of Rs.5000-8000. The applicants appeared in the written test and on being successful, they were promoted as such vide orders dated 10.8.2006 and 10.7.2007.
3. The case of Shishpal (supra) was disposed of on 7.1.2008 observing that the principle for determination of seniority amongst candidates recruited in the same batch of RRB would be on the basis of marks obtained in the examination after completion of the training after clubbing all the candidates who were sent for training even in different batches. Those who of their own id not go for training when they were detailed for the purpose or were not able to pass the examination held on completion of the training, would rank junior to the rest of the people who have been clubbed together. The marks obtained by each candidate in the examination in different training institutions on completion of their training was also ordered to be mentioned. The seniority list dated 15.4.2004 was quashed and set aside with direction to the respondents to re-cast the seniority keeping in view the rules and regulations.
4. The respondents issued a seniority list dated 19.6.2008 (A-3) in which the applicants have been placed at Sr. No. 109 and 146 respectively. The applicants claim that this seniority list is without application of mind inasmuch as the seniority of candidates who were allocated to different zones had been prepared on the basis of the transportation test only and it was never the issue in Shish Pals case that the seniority was prepared by considering combined marks of Transportation as well as Diesel. However, in North Zone, illegality has been committed by preparing seniority on the basis of combined marks. On the basis of this changed seniority list, order dated 29.7.2009 was passed reverting the applicants to the post of ALT ignoring that the posts of Driver Goods were available and if that being so, the seniors could have been promoted against vacant posts and there was no reason to order reversion of the applicants.
5. The applicants filed O.A.No.624-HR-2009 challenging the action of the respondents. Meanwhile, the respondents promoted the applicants as Loco Pilot Goods vide order dated 11.12.2009. The O.A. was disposed of on 6.4.2011 with liberty to the applicants to make representation for regularization of the period from 29.7.2009 to 11.12.2009 qua fixation of seniority, pay and other benefits. The applicants submitted representation for the said benefit which was rejected vide order dated 13.6.2011 on the premise that change in seniority took place due to judicial pronouncement and there is no mention as to why the applicants were reverted and as to why they could not be adjusted against vacant posts.
6. The stand of the respondents is that as per Panel dated 17.5.2000 of DLAs, candidates were sent for training w.e.f. 18.12.2000 which comprised of electrical, diesel and transportation. The training was for a duration of 28 weeks which was completed in the year 2001. The seniority list was issued on 15.4.2004 which was challenged in O.A.No. 856-HR-2005 and it was quashed with direction to re-cast the seniority list as per findings contained therein, in pursuance of which a fresh seniority list was issued. Selection notice for the post o Driver Goods / Loco Pilot Goods was issued for 238 posts out of which 155 were for general category, 49 for SC and 34 posts were for S.T. On 29.11.2005, a panel of 196 candidates was approved in which names of applicants were there. On filing of O.A.No. 856-HR-2005, provisional panel was made subject to decision of the O.A. which was decided on 7.1.2008. Seniority list was revised after inviting objections. No objections were filed by8 the applicants within the maximum period of 1 year. Thus, revised seniority list was issued and the panel dated 29.11.2005 was revised and applicants were reverted. In view of the reshuffling of seniority, Mohd. Zaki Anwar (Sr. No. 98 of Annexure A-3), Chet Ram (Sr. No. 103 of Annexure A-3) became senior to the applicants (Sr. Nos. 109, 146) besides Shiv Onkar (Sr. No.104 of Annexure A-3). Shiv Onkar was promoted against reshuffling of seniority of Surinder Kumar SC who was earlier promoted against unreserved vacancy (Sr. No. 110). Consideration of applicants against the future vacancies other than notified vacancies will infringe the right of other eligible senior non-respondents and will be against the law laid down by Apex Court in State of Bihar Vs. Madn Mohan Singh, 1993 (50 SLR, 601. Thus, the O.A. merits dismissal.
7. The respondents have also taken objection of res-judicata against the applicant that they cannot raise same claim in this Original Application in view of law laid down in the case of Commissioner of Income Tax, Bombay Vs. Sciendia Steam Navigation Co., AIR 1961 SC 1633. The Original Application is barred by the law of limitation. The impugned revised seniority list is in accordance with findings of this Tribunal in O.A.No. 856-HR-2005 which cannot be reviewed and O.A. is liable to be dismissed for non-joinder of necessary parties whose seniority can be adversely effected. Placing reliance on para 303 (a) of IREM Vol. I, it is argued that the seniority can be determined by combining the marks of Diesel as well as Transportation.
8. We have heard learned counsel for the parties and perused the material on the file.
9. We proceed to consider the first plea of res-judicata taken by the respondents. In earlier litigation the challenge was to the order dated 29.7.2009 vide which the applicants were reverted. While taking note of subsequent promotion of the applicants, this Honble Tribunal gave liberty to the applicants to make a representation to the concerned authority for benefit of promotion from 29.7.2009 to 11.12.2009. Thus, the issue was not decided by the Tribunal and it is only when the respondents have taken a negative view on the issue that the applicant has approached this Tribunal in this Original Application. Thus, it cannot be said from any stretch of imagination that the Original Application is barred by the principle of res-judicata. The citation in the case of Commissioner of Income Tax, Bombay Vs. Sciendia Steam Navigation Co., AIR 1961 SC 1633, is of no help to the respondents and is distinguishable on facts and law.
10. The learned counsel for the respondents vehemently argued that the applicants cannot raise the claim in this Original Application as it is barred by the law of limitation. We find that in pursuance of liberty given by this Tribunal in earlier lis initiated by the applicants, they filed representation (mercy appeal) which was rejected vide order dated 13.6.2011 (A-1) and the instant O.A. came to be filed on 11.8.2011 and as such it cannot be said that the Original Application is barred by law of limitation.
11. The next plea taken by learned counsel for the respondents is that the impugned revised seniority list is in accordance with findings of this Tribunal in O.A.No. 856-HR-2005 which cannot be reviewed. It is not in dispute that the findings of this Tribunal in O.A.No. 856-HR-2005 have become final as the same were not challenged by any body and in any case the applicants did not even choose to become a party to the same. They did not even file any representation within the prescribed period against the proposed seniority issued in pursuance of direction of this Tribunal and was ultimately finalized. In view thereof, the applicants cannot be allowed to say that the seniority list was prepared on a wrong principle of combined marks of Diesel as well as Transportation.
12. In so far as the plea taken by the respondents that the Original Application is not tenable due to non-joinder of necessary parties whose seniority can be adversely effected, is concerned, we find that indeed if the applicants want to challenge a seniority list prepared by the respondents and if the same is quashed and set aside, obviously they would steal a march over other persons and they are necessary and proper parties and as such those persons should have been impleaded as respondents. It is quite interesting that the applicants claim that decision in the case of Shish Pal (supra) cannot be apply to them as they were not party to the said decision and on the other hand they too have chosen same path in this Original Application. The objection of respondents qua non-impleadment of necessary parties is upheld.
13. It is not in dispute that while interpreting para 302 (a) of IREM Vol. I qua the inter-se seniority of the incumbents his Tribunal held directed recast of seniority showing the final inter se seniority of persons selected in the same batch, indicating marks obtained by each candidate in the examination held in different training institutions on completion of their training. Apparently, this would include combining the marks of the transportation as well as Diesel.
14. In so far as adjustment of the applicants against the available posts is concerned, we find that the respondents had initiated the process of selection for a particular number of posts against which selection was conducted and appointments were made. Increase of vacancies would result in expansion of consideration zone thereby giving opportunity of consideration to other persons as well. For adjustment of other persons, the number of vacancies cannot be increased in the manner asked for by the applicants. The selection was conducted against particular number of vacancies in which the applicants did not find a place as per their seniority position and as such they cannot be allowed to say that they have a right to be promoted from an earlier date or their subsequent promotion be related back to earlier selection.
15. We are of the opinion that the promotion of the applicants was based on a seniority list which was subject matter of a litigation and the list was quashed and set aside with direction to prepare it afresh. Even promotion of applicants was subject to decision of that case. In fresh seniority list the position of the applicants went down. It can be said that it was only an administrative error which was corrected by the respondents. It is well settled law that an administrative error can be corrected and at any point of time. In JT 1997 (3) SC 536 (Chandigarh Administration Vs. Naurang Singh), it was held that the Government is well within its right to take corrective measures regarding undue benefit which has been wrongly granted to some employees. In the case reported as 1998 (2) ATJ, P-286 (Jagdish Prajapat Vs. The State of Rajasthan & Others), it has been held that a factual mistake can be rectified by the departmental authorities. Similarly, in 2005 (4) RSJ, 749 (Anand Prakash Vs. State of Punjab) and 1992 (1) SCT, 129, Raj Kumar Batra Vs. State of Haryana, it has been held that as and when a mistake is detected, the employer is within its right to rectify it. In (2005) 13 (G. Srinivas Vs. Govt. of A.P. & Ors.) as well, it has been held that an order passed by mistake or ignorance of relevant fact can be reviewed by the authority. In (2008) 2 SCC 750 (Union of India Vs. Narendar Singh), it has been held that mistakes are mistakes and as such can always be corrected by following the due principles of law. In this case while issuing a fresh seniority list employees were asked to submit their objections and after this process a revised seniority list was issued. Thus, the applicant cannot be granted any benefit as sought for by him in the Original Application.
16. In view of the above discussion, this Original Application fails and is dismissed leaving the parties to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (J) (UDAY KUMAR VARMA) MEMBER (A) Place: Chandigarh Dated: 24.02.2014 HC*