Central Administrative Tribunal - Allahabad
Rajendra Prasad Yadav vs General Manager E C Rly on 9 January, 2023
Reserved on 03.01.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 9th day of January, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 1323 of 2018
1. Rajendra Prasad Yadav,aged about 51 years, S/o Shri Ram Murat
Yadav, R/o Village Jafarpur, Post - Mughalsarai, District Chandauli.
2. Dinesh Tiwari, aged about 50 years, S/o Shri S.P.Tiwari, R/o Q. No.
196, G.H. Central Colony, East Central Railway, Mughalsarai
Division, District Chandauli.
3. Shyam Jit Yadav, aged about 50 years, Son of Shri Raj Kumar, R/o
Village and Post - Aalamepur, District Chandauli.
All the applicants are working as Technician - I
(Fitter GP 2800/- of Mughalsarai Division at Mughalsarai, District
Chandauli)
........... APPLICANTS
By Advocate: Shri Rakesh Dixit
Versus
1. Union of India, through The General Manager, East Central Railway
Hajipur (Bihar).
2. General Manager, East Central Railway Hajipur (Bihar).
3. Chief Personnel Officer, East Central Railways Hajipur (Bihar).
4. Divisional Railway Manager, East Central Railway Mughalsarai
Division, Mughalsarai, District Chandauli.
5. Senior Divisional Personnel Officer, East Central Railway
Mughalsarai Division, Mughalsarai, District Chandauli.
6. Divisional Personnel Officer - I, East Central Railway Mughalsarai
Division, Mughalsarai, District Chandauli.
7. Senior Divisional Electrical Engineer (Kacasta), East Central
Railway Mughalsarai Division, Mughalsarai, District Chandauli.
8. Pradeep Kumar Ganguli.
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9. Mohd. Shabuddin.
10.Devnath Singh.
11.A.K.P. Srivastava.
12.Vinod Kumar Singh.
13.Ram Lakhan Prasad.
14.Sachchida Nand Chaubey.
15.Ramkrit Ram.
16.Surya Nath.
17.Suresh Prasad.
18.Keshav Paswan.
19.Ram Chandra Ram.
20.Vijyendra Kumar.
21.Arvind Kumar Mishra.
22.Ram Charan.
23.Suresh Kumar Shukla.
24.Braj Kumar Singh.
25.Hanuman Gupta.
26.Raj Kumar Singh.
27.Santosh Kumar.
28.Vibhuti Narayan Singh.
29.Radha Krishna Mishra.
30.Daya Kishore.
31.Ram Krishna Murmu.
32.S.C. Vishwakarma.
33.Ganpati Sardar.
34.Somra Indwar.
35.Smt. Dhaniya Uraon.
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36.Dukhan Sanga.
37.Dev Kumar Gond.
38.Kumari Sandhya Ba.
39.Smt. Jen Prabha Minz.
40.Munna Prasad, R/o Sarai, District Chandauli.
41.Ashit Kumar Dey S/o Shri G.C. Dey, R/o New Mahal Mughalsarai,
District Chandauli.
42.Vijay Pratap Singh S/o Shri R.B. Singh, R/o Manas Nagar,
Mughalsarai, District Chandauli.
43.Virendra Pratap Singh, son of Shri R.B. Singh, R/o Ravi Nagar,
Mughalsarai, District Chandauli.
44.N.K. Mishra, s/o Shri Basant Mishra, R/o New Mohalla,
Mughalsarai, District Chandauli.
Nos. 8 to 44 all respondents are working under control of the
Respondent No. 7 through Senior Divisional Electrical Engineer
(Kacarta) (TRS) East Central Railway Mughalsarai Division,
Mughalsarai, District Chandauli.
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha, Shri P K Rai and Shri
N C Srivastava
ORDER
Shri Rakesh Dixit, learned counsel for the applicants and Shri Krishna Kumar Ojha, learned counsel for the respondents, were present at the time of hearing. None present for the respondents no. 8 to 44. Notices issued to them on 18.12.2018 did not return back. Since more than one month has elapsed, service of the notice upon Respondents no. 8 to 44 has been presumed to be sufficient.
2. The instant original application has been filed seeking following relief:
"(i) The Hon'ble Tribunal may graciously be pleased to quash the impugned orders dated 1.12.2017 (Annexure-A-1 to the O.A.) and impugned Orders dated 9.11.2018 and 22.11.2018 (Anneuxre-A-2 to
3|Page the O.A.) and direct the respondents to re-determine/re-fix the seniority after deleting the name of non eligible employee and junior to the applicants and place the name above of the applicants impugned order as per judgment of the Hon'ble Supreme Court's Judgment.
(ii) The Hon'ble Tribunal may graciously be pleased to direct the respondents to fix the seniority of the applicants from the date of appointment in the Railway service with all consequential benefits.
(iii) any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(iv) award the cost of the application in favour of the applicants."
3.The compendium of the facts narrated in the instant original application is that the applicants are aggrieved from impugned seniority list dated 01.12.2017 by way of which they are alleged to have been wrongly placed below their junior counterparts who do not fulfill the eligibility criteria prescribed for the post of Senior Technician (Fit) Pay Matrix Level - 6 Rs. 35400-112400/-. Further under challenge are two orders dated 9.11.2018 and 22.11.2018 by way of which respondents have called for three years confidential reports for promoting the employees to the post of Senior Technician (Fitter).
4. We have heard the rival contentions advanced by the learned counsel appearing for the parties.
5. Disclosing a brief history of the case,learned counsel for the applicants submits that the applicants were initially appointed as Act Apprentice Employee as substitute on 02.06.1996 under the respondents. Subsequently, they were given permanent appointment as Act Apprentice Employee with Matriculate on 07.07.1997 at pay Rs. 750-940/-. Learned counsel for the applicants further submits that despite being eligible for promotion to the post of M.C.M. in Pay Matrix Level 6, Rs.35,400-11,8400/-, the applicants have not been granted the benefit of same. Learned counsel further adds that the
4|Page order dated 01.12.2017 which has been impugned in this original application was passed by the respondents without any application of mind and blatantly overlooking the Circular vide RBE No. 222/98 along with Serial No. 203/98 dated 28.09.1998 which lays down the criteria for implementation of V CPC' recommendations regarding pay scales for Khalasis in Diesel / electric Loco / EMU sheds in accordance with which Class-D Staff serving against skilled posts in Electric Loco Sheds etc. were to be promoted on percentage basis against Class-III Technical posts in Grade Rs. 3050-4590. Furthermore, in view of the above order, the revised methodology policy for filling up the posts of skilled Artisans in grade Rs. 3050- 4590/- has been laid down in Para -5 of the second circular no. 203- 1998. As per the said circular dated 28.09.1998, the skilled grade of Rs. 3050-4590/- was to be filled up to the extent of revised 50% by Act Apprentices I.T.I. pass and Matriculates from the open market. However, the learned counsel submits, the entire prescription of the above Circular has been overlooked by the respondents to the extent that a wrong and arbitrary seniority list dated 01.12.2017 was issued thereby placing the applicants below the non-eligible employees.
6. Learned counsel for the applicants further adds that what has also been ignored blatantly by the department concerned is the Apex Court's ruling regarding the Circular dated 28.09.1998. He submits that the validity of R.B.E. 222/98 was challenged before the Hon'ble Supreme Court of India by the Technical Employees Association vide Writ Petition (C) No. 289 of 1999titled Technical Employees Association of Railway and Another Vs. Ministry of Railways and others. However, the Apex Court dismissed the said Writ on 31.03.2000 thereby validating the said Circular. Learned counsel further submits that this speaks for the utter ignorance committed by the respondents in the process of issuing seniority lists as both RBE Circular dated 28.09.1998 as well as ruling of the Apex Court on the same have been ignored.
7. Learned counsel for the applicants goes on to further submit that the applicants having the prescribed qualification of High School
5|Page with Act Apprentice were called for Trade Test vide letter dated 31.05.1999. And in the meantime, the High School passed candidates made a representation before the respondents to consider them for promotion in skilled grade but their prayer was rightly rejected by the respondents vide orders dated 17.05.1999 and 11.06.199wherein it was further held that candidates only with High School with I.T.I / Act Apprentice are eligible for the said post. Accordingly, when the joining letter was issued on 20.11.1999 after the issuance of result on 27.10.1999, the applicants along with the private respondents joined duty in G.P. Rs. 3050-4590. However, to the utter shock of the applicants, the official respondents arbitrarily and illegally issued a promotion order vide Office Order No. 910 of 1999 dated 11.11.1999 completely ignoring the previous order dated 11.06.1999 whereby non-eligible Khalasis with Matriculate were considered for promotion whereas Matriculate with I.T.I./Apprentice were placed below them. This was objected against by the applicants however without paying any heed to the said objection, the respondents went a step ahead to issue an impugned seniority list dated 11.09.2003 in which candidates were placed below to all non-qualified and illegally promoted as Fitter III and many other persons.
8. Learned counsel for the applicants further submits that due to this illegal action of respondents, aggrieved persons (Junior to applicants) filed O.A. No. 1301 of 2003 titled Sanjay Kumar Gupta and others Vs. Union of India and others, which was allowed by the Hon'ble Tribunal on 08.04.2011 by quashing the seniority list dated 11.09.2003. Learned counsel adds that although the above said judgment was not a judgment in rem and it was only a judgment in personam however, the applicants herein are liable to be afforded the similar benefit in view of the fact that they are similarly placed with the employees in O.A. No. 1301 of 2003.
9. Learned counsel for the applicantsfurther adds that seeking redressal of their grievance, the applicants have preferred a representation dated 09.06.2015, however, no action has been taken on the same and to further add to the plight of the applicants, the
6|Page respondents have been downgrading the applicants' seniority. Learned counsel submits that although the applicants in the instant original application are senior to the applicants of O.A. No. 1301 of 2003, but while implementing the order and direction dated 08.04.2011 of the Hon'ble Tribunal, the respondents have completely shut their eyes and ignored the fact that applicants herein are similarly placed with the applicants of OA No. 1301 of 2003.
10. Concluding his arguments, learned counsel for the applicants submits that if the seniority in respect of the applicants is not re- casted, they will be subjected to irreparable loss which would result in their deprivation of benefits which they would otherwise be accorded if they are given their rightful seniority. Learned counsel submits that in the process of issuing false seniority lists, respondents have blatantly ignored RBE's Circular and Apex Court ruling and they have illegally given reservation to the ineligible candidates in promotion matter against the roster system. Thus, learned counsel prays that the orders dated 01.12.2017, 09.11.2018 and 22.11.2018 be set aside and respondents be directed to re-determine/re-fix the seniority.
11. Learned counsel for the respondents no. 1 to 7 vehemently opposes the prayer of the applicants' counsel submitting that claim of the applicants that they must be accorded the benefits as have been claimed in their relief at par with the applicants in OA No. 1301 of 2003 is utterly uncalled for. He points out that the seniority list of candidates empanelled on 12.11.1999 was published on 11.09.2003. Meanwhile, Railway Board issued RBE No. 17/2000 dated 28.01.2000 according to which the educational qualification for the post of skilled Artisan was fixed as course completed Act Apprentices / ITI pass. However, this circular is not applicable in the case of Seniority list published on 11.09.2003 in respect of these who have been empanelled on 12.11.1999. Moreover, their seniority was prepared on the basis of their joining in Gr. D as per seniority rule as all the selected candidates have come from Gr. D post.
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12. Learned counsel for the respondents further submits that in contradiction to the claim of the applicants' counsel, no illegality can be attributed to the orders dated 01.12.2017, 09.11.2018 and 22.11.2018 as the same have been passed in accordance with the rules and provisions governing the subject matter and therefore they are absolutely sustainable in the eyes of law.
13. As regards to the order of the Tribunal in O.A. No. 1301/2003, learned counsel for the respondents referring to the averments made in counter affidavit, submits that the seniority of Shri S.K. Gupta and 07 others who were applicants in that case was assigned above matriculates in the seniority list vide letter dated 20.02.2014 in compliance of CAT Allahabad order dated 08.04.2011 during pendency of contempt case no. CCPA/65/12 subject to outcome of the Writ Petition No. 34704/2012filed before the Hon'ble High Court of Allahabad. Accordingly, the seniority in the instant case shall also be re-casted subject to the outcome of the above said Writ.
14. Concluding his arguments, learned counsel for the respondents submits that the contents which the applicants are placing their reliance upon are unacceptable and no benefit whatsoever can be accorded to them as the seniority list which has been impugned in the present original application was formulated in accordance with the statutory rules and provisions governing the matter. Accordingly, the learned counsel prays that this OA be dismissed.
15. We have considered the rival contentions advanced by the learned counsel appearing for the parties and gone through the documents on record as well the judgments referred to.
16. The simple controversy which is required to be redressed here is to ascertain whether the applicants have been wrongly placed below the non-eligible employees in the seniority list dated 01.12.2017. It would be in the fitness of things to straightway place reliance upon the judgment dated 08.04.2011 rendered in Original Application No. 1301 of 2003 titled S.K. Gupta and others Vs. Union of India and others. The controversy in the said case was identical to
8|Page the instant one and while deciding the said OA, the Court quashed the impugned order and directed the respondents to re-fix / re-cast the seniority of the applicants especially taking into consideration the statutory rules governing the matter.
17. Similarly, in the instant case, the statutory provisions to decide the issue of seniority are the ones as have been laid down in R.B.E. No. 222/98 dated 28.09.1998 issued by Railway Board which the respondents seem to have ignored in the process of issuing seniority list. Even if this ignorance is turned a blind eye to, what cannot be overlooked is the fact thatthe said Circular dated 28.09.1998 was also affirmed by the Apex Court vide its ruling dated 31.03.2000 rendered in Writ Petition (C) No. 289 of 1999titled Technical Employees Association of Railway and Another Vs. Ministry of Railways and others and there is no point reiterating that the respondents were bound to accord the requisite benefits to the applicants once the Circular dated 28.09.1998 won the validity of the Apex Court. Moreover, the respondents cannot merely take shelter in the pendency of Writ Petition No. 34707 of 2012 for their non- compliance. Furthermore, respondents seemed to have taken a U-turn while issuing the order dated 11.09.2003 whereby seniority was fixed wrongly fromthe letters dated 17.05.1999, 31.05.1999 and 11.06.1999 wherein the respondents have themselves established that the employees having qualification of High school with I.T.I / Act Apprentice are only eligible to be considered for promotion in skilled grade Rs. 3050-4590/- .
18. In view of the above deliberations and strictly taking into consideration the judgment dated 08.04.2011 rendered by the Allahabad Bench of Central Administrative Tribunal in Original Application No. 1301 of 2003 titled S.K. Gupta and others Vs. Union of India and others and also the ruling dated 31.03.2000 of the Apex Court in the case of Technical Employees Association of Railway and Another Vs. Ministry of Railways and others upholding the validity of R.B.E. No. 222/98 dated 28.09.1998, this original application is liable to be allowed, and is allowed.
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19. Orders dated 01.12.2017, 09.11.2018 and 22.11.2018 which have been impugned here are hereby set aside. Respondents are directed to re-fix / re-cast the seniority in respect of the applicants and private respondents strictly in accordance with the statutory rules and taking into consideration the relevant Circular dated 28.09.1998 and Apex Court judgment dated 31.03.2000. The said exercise must be completed within a period of three months from the date of this order.
20. With above directions, Original Application No. 1323 of 2018 stands allowed.
21.All associated MAs stand disposed of accordingly.
22.No order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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