Central Administrative Tribunal - Delhi
Sh. Davendra Prasad Verma vs Union Of India Through on 16 December, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-886/2010
MA-667/2010
New Delhi this the 16th day of December, 2010.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
1. Sh. Davendra Prasad Verma,
S/o sh. Mahavir Singh Verma.
2. Sh. Birbal Singh,
S/o Sh. Dayav Singh. . Applicants
(Both working as MCC under XEN (Bridges) Moradabad)
(through Sh. B.S. Mainee with Ms. Meenu Mainee,Advocate)
Versus
Union of India through
1. General Manager,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
2. Chief Bridge Engineer,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
3. Chief Personnel Officer,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi. .. Respondents
(through Sh. P.K. Yadav, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicants have challenged the order dated 24.02.2010 (Annexure A-1) by which one Sh. Yamleshwar Singh allegedly junior to the applicant has been called for selection test to the higher post of Senior Clerk ignoring the claims of the applicants.
2. At the time of hearing, learned counsel for the applicants highlighted the fact that the applicants were promoted to the post of Storemen on 05.06.1982 whereas Sh. Yamleshwar Singh was promoted to that post on 10.06.1982. Therefore on the basis of office records, the applicants were deemed to be senior to Sri Singh as Storemen, but due to a mistake on the part of respondent department the applicants were ignored and Sh. Yamleshwar Singh and others were promoted to the rank of Material Checker (MC). Subsequently, the post of Material Checker was upgraded to that of Material Checking Clerk (MCC). The applicants were promoted on 10.03.1993 but they were reverted on 09.11.1993 although their junior Sh. Yamleshwar Singh was allowed to continue in higher rank. This reversion was challenged in OA-2444/1993, which was dismissed. Thereafter CWP No. 5826/1999 was filed by the applicants challenging the decision of the Tribunal. The Honble High Court allowed their claims and declared the reversion order as illegal relying on the statement of the respondents that the applicants, herein, were ignored at the time of promotion to the rank of M.C. and that they could be given notional promotion from the date their juniors were promoted to the erstwhile rank of MCs. It was observed that the respondents themselves had decided to give notional promotions to the applicants so that their seniority vis-`-vis others did not suffer. Relevant portion of the judgment of the Honble High Court reads as under:-
The Bride Line Office Lazpat Nagar had forwarded their representations by letter dated 21st January, 1993 with the following recommendation:
The above named employees were ignored while promoting the storeman as M.C. The seniority of the M.C.s was being controlled by your office at that time and all the MCs working in the sub-division were promoted by your office.
It appears that these two storemen who were senior have been ignored and junior persons have been promoted as M.C. grade Rs.225-308 (Rs) 825-1200 (RPS).
Now there is a ban for promotion as storeman and the category of M.C. has since been abolished and all MCs working in Bridge Branch have been promoted as MCC grade Rs.950-1500 as per instructions contained in your office letter NO.803/E/1/Br/WC/Misc.dt. 23.10.92 752.E/3-II/BR.
It is therefore requested that the case may please be examined at your end and action taken accordingly. From the aforesaid letter, it is clear that the department accepted the fact that the petitioners had been ignored when their juniors were promoted as MCs. Since the MC category had been abolished and all MCs working in Bridge branch were promoted as MCCs, the Hqrs. was requested to examine the matter and take action accordingly. The Hqrs. did examine the matter which resulted into issuance of letter dated 15th February, 1993. This letter reads as under:
The Chief Bridge Engineer has accorded approval to promote S/Sh Devindra Prasad Verma & Birbal Singh Storeman as MCC Gr.950-1500/RPS as per instructions contained in this office letter 752.E/3-III)BR) dated 25-9-92. They will, however, not claim the benefit of MC as they did not actually officiate that post. They should be assigned their actual seniority as MCC with respect to their juniors. The reading of the aforesaid letter clearly reveals that not only approval was accorded to promote the petitioners as MCCs, a direction was given to assign them the seniority as MCCs with respect to their juniors i.e. vis-`-vis the persons who had been wrongly promoted earlier after superseding the petitioners. The only rider which was put was that these two petitioners shall not claim the benefit of MC as they did not actually officiate on that post. It is thus clear from this decision of the respondents themselves that the petitioners were directed to be given the benefit of notional promotion as MCs with effect from the date their juniors were promoted, and when MCs posts stood abolished in the meantime, then actual promotion as MCCs. It was directed that they would be given seniority above the two junior persons. This was followed by another letter dated 26th February, 1993 which is to the same effect as earlier communication dated 15th February, 1993 of the Northern Railway Hqrs. office. Following this decision, the respondents promoted the applicants and gave them seniority in the rank of MCC w.e.f. 01.10.1992.
2.1 It is further pointed out that the provisional seniority list of MCC, which was circulated on 26.12.2002 contained the names of the two applicants at Serial Nos. 47 and 48, whereas the position of Sh. Yamleshwar Singh was at Serial No. 49. In other words, the claim of the applicants for higher seniority as compared to Sh. Yamleshwar Singh was provisionally accepted. However, the seniority list, which was circulated on 19.02.2007 incorrectly placed Sh. Yamleshwar Singh at Serial No. 10 and the applicants at Serial Nos. 24 and 25 respectively.
2.3 According to the learned counsel for the applicants such placements ran counter to the decision of the Honble High Court as well as the previous stand of the respondent department granting notional seniority to the applicants over their juniors.
3. The applicants made representations against the lower position given to them in the seniority list. They submitted an appeal to the General Manager, Northern Railway on 16.09.2009, which is yet to be decided. Yet, in the meanwhile, the respondents have initiated the process of selection to the next higher rank of Senior Clerk and have included the name of Sh. Yamleshwar Singh in the short list ignoring the claims of the applicants; hence this O.A.
4. The learned counsel for the respondents concedes that the applicants were promoted to the post of Storemen w.e.f. 05.06.1982 whereas Sh. Yamleshwar Singh got his promotion to this rank on 10.06.1982. However, he claims that Sh. Yamleshwar Singh was given promotion to the post of MC w.e.f. 07.07.1986 by virtue of an order of the respondents, which was made pursuant to a direction of the Honble High Court of Delhi in its order dated 05.04.2006 in the Writ Petition (C) No. 4845/2004 alongwith other connected WP(C) Nos.
5. It was clarified by the learned counsel for the applicants who was also the arguing counsel for the petitioners before the Honble High Court in the W.P. No. 4845/2004 that the order dated 05.04.2006 of the High Court was about grant of service benefits of the post of MCCs to those who were posted as MCs. This benefit was granted in terms of the decision of Railway Board communicated in their letter dated 16.08.1978 upgrading the post of MC to that of MCC. Relevant portion of this order is extracted below for better clarity:-
In that case the petitioners case is that all the petitioners were appointed as Storemen in the years 1977-82 and were regularized as such in the years 1986-87. All the petitioners were promoted as Material Checkers Clerks in the grade of 260-400/950-1500 in the year 1992. Petitioners relied upon a letter of the Board dated 16-08-1978 according to which the post of the Material Checkers was upgraded to be that of Material Clerks. Since the direction was not implemented in the Bridge Department of the Railway where the plaintiffs were working this OA was filed seeking regularization of services as Material Checking Clerks from the date of their promotion. In respect of other Material Checkers this issue had already engaged the attention of the court in CWP 4930/2002 where the following findings were recorded-
.We are satisfied that there is no merit in the plea of the respondent and the Central Administrative Tribunal was entirely justified in granting the benefit entitling them to have their pay refixed in the grade of Material Checkers and Clerk as was done in the case of the applicants before the Lucknow Bench. XXXXXXXX In this view of the matter since the petitioner is also similarly situated as the respondents in the judgment of this court dated 19-08-2002 who were granted benefit by virtue of the judgment of this court dated 19-08-2002 in CWP 4930/2002 and the judgment of this court having become final, the petitioners also cannot be denied the same benefits. Accordingly the writ petition is allowed..
6. It is clear that the order of the Honble High Court of Delhi was about grant of benefits of the upgraded post of MCC to the incumbents who were working as MCs. This decision, in no way, interferes with the seniority position which was earlier decided by the Honble High Court in the Writ Petition No. 5826/1999. Therefore, it is not understood how Sh. Yamleshwar Singh could be given a higher seniority in pursuance of this decision. The issue of comparative seniority was put to rest by the High Court in CWP No. 5826/1999. The order dated 05.04.2006 of the Honble High Court only extends the benefit conferred by Railway Board itself in its letter dated 16.08.1978 by which the posts of MCs were upgraded to those of MCCs. The same benefits could be available to Sh. Yamleshwar as well as to the applicants except for the fact that the applicants will have it on notional basis until they discharged the duties of MCCs but their position of seniority vis-`-vis Sh. Yamleshwar Singh could not be interfered with.
7. It is seen that the applicants have made representations against the lower seniority position assigned to them in the letter dated 19.02.2007, and their representations have not yet been decided. Learned counsel for the respondents agreed that the matter could be remitted to the respondents for a final decision on the claims made by the applicants.
8. In view of the foregoing discussion, the respondents are directed to consider the representations and decide the correct seniority list of MCCs in a manner consistent with the stand they had taken earlier and the observation of the High Court thereon within three months from the date of supply of this order. Further, the selection for the higher post of Senior Clerk should be made only after the seniority list is thus finalized. The O.A. is disposed of in terms of the aforesaid directions. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member(J) /vv/