Central Administrative Tribunal - Hyderabad
Smt Shah Nawaz Begum vs M/O Railways on 9 October, 2017
_ IN THE C ENTRAL ADMINISTRATIVE PRIBUNAL HYDERABAD BENCH HYDERABAD OA, No FSi of 2012 Date of CAV12.09,20) Date of Order: "10,2017, Between : Smit.Shah Nawaz Begum, wio Agiz-ur- Rehmen, aged about 85 yrs, Occ: Matron, Railway Hospi Guntakal, vo Guntakal, Ananthapur Dish . Applicant And 1. The Union of India, rep., by ts General Manager South Central Railway, Secunderabad. bo The Chief Personnel Officer, South Central Railway, Secunderabad, The Chief Medical Director, South Central Railway, Secunderabad. es 4. Mrs.iilan Anthonia Leaver, aged about 49 yrs, Oco:Matron, South Central Raibvay Hospital, Lalaguda, Secunderabad. tat . Mary Vishranthamuna, aged about 54 yrs, Ooo: Matron, ee ~~ ital, Vijeyawada, MS/SC Riv Vijaya ada, Rrishuia District. 6. Mrs. Mariane Edith Peters, aged about 45 yrs, Oce: Matron, Railway Hospital, SC Railway, CMS/SC Rly 'Rallageds, Secunderabad 7. Mrs.M. Salon, aged about 47 yrs, Oce:Matron, Railway Hospital, SC Railway, CMS/SC Rly Vijayawada, Krishna District. .. Respondenis Cc uns fer the Appheant _. MrnPS Ramachandrs Murthy Counsel for the Respondents... Mr.N.Sninivasa Rao, SC for Riys. " Bi ae a poy -- CORAM: THE HON'BLE MRAUSTICE R.KANTHA RAO, MEMBER JUDL.) THE HON'BLE MRS.MINNIE MATHEW, MEMBER (ADMN,) ORDER
{As per Hon'ble Mrs.Minnie Mathew, Member (Admn.) } The applicant is aggrieved by the Annexure.A-t orders dated 16/21.6.2010 reienting her representation for correct fixation of her seniority in the cadre of Nursing Sister.
2. The factual matrix of the case is that the applicant was Initially appointed as Substitute Nurse in the Railway Hospital at Lallaguda and was granted temporary status with effect fram 30.07.1986. While working as such she was absent from duty from 25.06.1989 to 16.03.1984 on accaunt of mental iliness. As she was absent from duty, the Medioal Superintendent, Railway Hospital, Lallaguda, removed her from service for unauthorized absence with effect fram 17.09.1993 after holding an exparte inquiry about which she dic not receive any communication. Or coming to know later that she had been removed from service, she submitted an appeal against the orders of the disciplinary authority on 20.08.1997. The appellate authority condoned the delay in submission of the appeal and vide his Annexure A-!
(a) orders dated 05.03.1898 modified the penalty of removal from service to that of reduction in pay to the minimum of scale of pay of the post she held at the time of her removal from:
service. The applicant submits thal in pursuance of this, her pay was reduced from Rs. TO80/- to 740Gi- in the scale of pay of Rs. 1400-2600/- (IV PC scales) for a period of 3 years wih cumulative effect from the date of resumption of duty. was also stated that the period of her unauthorized absence from 01.06.1989 to 16.09.1993 shall be regularized as leave without pay which will not count towards qualifying service for pensfonary benefits or incremental benefits. it was also ordered that the period from the date of her removal an 17.08 4993 Hh the date of reinstatement shall be treated as dies-non. Accordingly, she rejained the Raiiway service at Railway Hospital, Lallaguda as Staff Nurse on 06.03.1998.
Con
3. The applicant contends that the order of the appellate authority dated 05.03.1996 Is totally silent about her interse seniority. She has drawn altention to the statutary rule position, which states as follows:
*Raduction in time-scale and pay fixation -
Rule 6 (vi) of DA Rules dealing with reduction in time-scale grade, post or service, does nat give any power to the authority to fix pay at any stage fower than that which one would get on his re-promation. ff the authority intends to give any direction in regard to senionly and pay on ' ye-promotion, he can adapt any one of the following courses: (} to restore the seniority and the pay that he would have been entitled te. if he had not been given reduction In pay etc. as @ penalty, (iH it can be by way of baftam seniority or the pay that he would get # promoted on the date of restoration afer the expiry of the period of penalty or it may ever be in between the said and the pay that he would be eligible 7 there was no ravision, Such pay cannot be fesser than the pay to which he would be eligible if promoted on the date of restoration, and ff the pay is fess than that it would amount to a further penalty. ( E(DSA) 89 RG 6-17 of 7.83, SC.57/89, SE Teo)"
4. Its contended that in the fight of the above statutory rule position and in the absence of a specific mention about the restoration of her seniority after the expiry of the penalty, her seniority should have been rastored fo the seniority held earlier and the pay te which she would have been entitled fo, HW her pay had not been reduced. However, no further communication was issued and the respondents are totally silent about the restoration of her seniority.
5. The applicant furhter submits that fhe respondents had circulated a provisional seniority lst of Nursing Sisters dated 98.08.2003 and another provisional seniority fist on 23.06.2005 inviting objections within a period of 20 days from the date of receipt of the nofification. 4 js submitted that as per the provisional seniority list dated 53.08.2005, her pasition in. the seniority list had gone down by about 19 places. Although she was appointed in April 1986, ali the others who have been placed above her, are herhidiars and that the anomaly had occurred on account of non-restoration of her seniority after the expiry of the penalty period. She submits that she had made a representation to the respondents on 21.06.2006 against the wrong assignment of her seniority, But without finalizing the said seniority, the respondents issued a notification for conduct of selection to the post of Matron. The applicant submits that her representation dated 21.07.2006 was not taken inte consideration. Further, the SC Railway Employees Sangh, Guntakal Division, had also fonvarded her request! for carrect fixation of her seniority after the expiry of her penalty.
8. The respondents have contested the OA by filing a reply statement as well as ar additional reply. They point out that the applicant has not filed any revision ar challenged the order of the appellate authority in which the penalty of removal from service was modified to that of reduction fo the minimum of tine scale of pay for a period of 3 years with cumulative effect. Thus, the applicant has undergone the punishment from 20.07.1998 to 20.07.2004.
The respondents submit that the Select list of Nursing Sister which is the next past in the promotional hierarchy of Staff Nurse in the pay scale of Rs.5800-S000/-, was issued on 90.10.1998. wherein the name of the applicant was not included as she was undergoing penalty. However, in the next DPC, she was considered and promoted as Nursing Sister on 08.08.2002. A provisional seniority list of Nursing Sisters was notified on 08.08.2003 inwt representations from the staff with regard to their seniority position. In the said fist, t applicant was placed at Serial No.o? with date of entry into the Nursing Sister grade on 28.08.2002 and all the private respondents are in the seniority position of 36, 41, 49 and 57 in view of their entry fo the grade of Nursing Sister with affect from 16.07.1996, 09.07. 1% 39 10.1998 and 16.10.2000 respectively. As the promotion of the private res nandents Was earlier to the applicant, they were correctly fixed above the applicant in the said seniority st as the date of entry into the grade would determine thelr seniority, It has alse heen pointsc out that the applicant never made any grievance against her position in the said seniority list. Thereafter, a further provisional se! niority list was issued on 23.08 2005 irviing representations from the aggrieved employees with regard to thelr placement in the said list in this fist, the applicant was placed at Serial No.24 and the priviate respondents at Serial Nos.3, 7, th and 19. The applicant never raised any objection in this regard te the concerned authority. A selection process was held for the post of Matron in the next higher scale of pay of Rs.6500-10500/-. The applicant failed to qualify in the wrilten examination conducted on 93.90.2005. However, in the subsequent written examination held for the same post on 02.09.2008, the applicant qualified and was selected and posted as Matron with effect from 06.07.2007. The respondents point out hat the applicant has never challenged any of the selection proceedings at any point of tme. The respondents further submit that based on a representation of the applicant to the SC Railway Employees Sangh, her case was discussed in the Permanent Negotiating Machinery {PNM} held on 24.01.2007 and 55.01.2007 as item no t77/O6. After elaborate discussion, the fem was closed as the applicant had failed in the written examination held for selection to the post of Matron, whereas, many of her juniors had qualified and were therefore selected.
237. " is also submitted that the applicant gqave 2 representation on 18.06.2009, which is 43 years after the promation of her juniors. The said representation was considered and the appilcant was informed that the seniority position assigned to her was in order as she had not qualified in the written examination conducted for the post of Matron, whereas her juniors had qualified and were accordingly promoted. They also submit fhat the applicant nas not submitted any representation against the provisional seniority list dated 04.11.2070 in which she has been placed at Gerla! No.7 in the Matron grade.
8. The respondents main coniention {fs that the juniors to the applicant were promoted when she was not in service and when she was undergoing the penalty. After the expiry of the penalty period, she was considered and included in the select ist for Nursing Sisters on 08.08.2002. She never raised any objection st any point of time and after the selection of her juniors as Matron, her case was taken up by ones! the unions. However, the union representatives were convinced that the applicant dic not qualify in the written examination for the post of Matron held on 03.09.2005, whereas several of her juniors had qualified and were promoted. As the juniors entered the Matron grade earlier to the applicant, she has nat made out any case to interdict the seniority list of Matron. They also state that the OA is not within the period of limitation as she is challenging the seniority position assigned to her above the otivate respondents as Nursing Sister in 4996 and subsequently. Even after her pramotion on 26.08.2002, she has kept quiet and therefore the present relief attracts delay and laches. They point out that the juniors mentioned by the apnlicant were promoted in 1896, whereas the applicant was reinstated into service only in 1998. Hence, the applicant cannat ciaim seniority over the said employees as the said seniority has been settled in 1996 itself based on their promotion to the post of Nursing Sister.
9. The applicant has filed a rejoinder reiterating that on account of her selection rernaining intact despite the punishment inflicted on her, she should have been considered far the selection conducted if the year 1998 and her name should have been kept in a sealed cover. Further, since the order of the appellate authority does not specify whether the punishment has effect on seniority, it should be assumed that the order does not have any effect on ney seniority. She has also denied the averment thal she never made any grievance agains! fhe provisional seniority fist dated 23.08.2005, She has been made to suffer a loss of seniority aven though the appellate authority has not passed any specific orders in respect of her seniority being effected by the penalty.
40. In their additional reply statement, the respondents have pointed out that the applicant's period of Ginauthorized absence from 26.08.1989 fo 16.09.1993 was treated as leave without pay and the periad from removal to reinstatement i.e. fram 17.09.1993 te 24 07.1098 was treated as dies-non. In view of the dies-non period of 4 years 10 months > and 3 days, the said period will not count for any purpose includng seniority. The applicant has been correctly considered for promation fo the next higher grade of Nursing Sister and promoted as such in 2002. Hence, the Railway Board's orders relied upon by the applicant has nO ralevance as the order of punishrnent has clearly stated as to how the period is to be treated.
41. The applicant has also filed wrilten arguments.
42 Heard the learned counsel on both sides and perused the record.
49. The issue for consideration In this OA is as to whether there is any substance in the grievance of the applicant that her seniority was not restored after the expiry of the period of her penally and that her senionty has not been correctly fixed vis-a-vis her juniors, who were appointed after her.
44. From the material on record, itis seen that the applicant who was initially appainted on 40.07.4988 was removed from service with efect from 17.09.1993 for unauthorized absence from 26.06.1989 to 46.03.1991 by the disciplinary authority, The penalty order was, however, returned undelivered. After the lapse of nearly 4 years, she submitted an appeal on 20.08.1997. The appellate authority after considering the facts and circumstances of the case modified the penalty of removal from service imposed on the applicant to that of reduction of pay from Rs. 1590/- to Rs 1400/- in the soale of Rs. 1400-26004 UV PC scales} for a period of 3 years with cumulative effect. it was also ordered that the penalty will be effective from the date she is reinstated into service and that the period of unautharized absence from 36.06.1989 to 16.09.1994 shall be regularized as iaave without pay and wil) not count towards qualifying service for the purpose of pensionary of incremental benefits, and that the period fram the date of removal from service on 17.09.7993 to the dats of reinstatement shall be treated as dies-nen. The applicant was also formed that she could submit a revision petition against the appellate authority's order to the CMD/SC within 45 days. The applicant, however, did not appeal against the order of the appellate authority. She has aiso nai represented to the authorities with regard to her grievance far restoration of her erstwhile seniority after the expiry of the penalty period.
48 In the meanwhile, when the applicant was out of service on account of her unauthorized absence and also the order of removal, her juniors and the private respondents have been promoted to the next higher post of Nursing Sister in the promotional hierarchy. After her reinstatement and the expiry of the penalty period, the applicant was also promoted as Nursing Sister on 08.08.2002. In 2003, the respondents have issued Annexure. A-4 seniority list dated 8.8.2003. In this seniority list, the applicant was placed at Serial No.59. whereas the private respondents 4, § 6 and 7 were placed at Serial Nos.36,41, 49 and 3° respectively. Likewise, Miss.Moni Thomas and Claratta Elizabeth mentioned in the pleadings were also placed at Serial No.35 and 58.
16. The applicant has not brought out any material to show that she has representec against the seniority assigned to her as Nursing Sister in the provisional seniority list notified in 2003. Thus, it would appear that she had no grievance with regard to the seniority assigned to her. The subsequent Annexure.A-& seniority list issued on 23.6.2005 has its foundation in the earlier provisional seniority list issued on 08.08.2003. The seniority list of 2003 Ase admittedly not been challenged by the applicant. Without any challenge to the 2D03 santorty list of Nursing Sister, there cannot be any effective challenge to the subsequent seniority lists. In 2005, the respondents have issued the Annexure. A-5 seniority list dated 23.06.2005. In this list aiso the respondents 4, 5, 6 and 7 have been placed at Serial Nos.3, 7, 14 and 13, whereas the applicant was placed at Serial No2i. The applicant submits that she hes submitted a representation on 21.7, 2000 against the seniority assigned to her, we ia as ea A perusal of the Annexure A-6 representation shows that the applicant's case is thal 17 her seniority should be fixed with reference to her date of appointment in the initial recruitment grade. Thus, her claim is only fer fixing her seniority on the basis of the date of her appointment as Staff Nurse on 10.07.1986 and not on the ground that her seniority will not be affected by the penalty suffered by her For the first time in 2011 after a gap of 8 years the applicant has raised the contention that her seniority remains unaffected in view of the 3 (supra}. At this juncture, it is necessary to point out that statutory rule position cited in Para 3 the respondents have subrnitted that they have not received any representation from the vv applicant with reference to any of the seniority lists circulated by them. Even assuming that f the authorities at the the respondents have received the Annexure. A-6 representation and have not passed any ordars, the applicant ought to have challenged the inaction o under the flaw. In K.R Mucigal v.
appropriate time. Having failed to do se, we hold that the applicant has alent over her nights er i-
and has not availed of the remedies available to h RP Singh (AIR 1986 SC 2088), the Hon'ble Apex Court had held the "it ig essential that anyone who feels aggneved by the Senianty assigned fo him should approach the Court as early as possible as othenwvise in adelition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complicatians and difficulties.
The aforesaid ratio would squarely apply in the instant case as the applicant has failed to ventilate her grevance regarding non-observance of the statutory rule pasition by filing a revision petition to the revisional suthority or by objecting to the provisional senion{y list circulated immediately after her promation as Nursing Sister on 08.08.2002. In view of this, it is not apen fo her te raise these issues after the lapse of nearly 9 years.
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