Central Administrative Tribunal - Jodhpur
Ajay Kumar Tripathi vs M/O Railways on 8 February, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
OA No.290/00082/2015 with Pronounced on : 08.02.2022
MA No.290/00073/2021 Reserved on : 11.01.2022
...
CORAM: HON'BLE MRS. JASMINE AHMED, MEMBER (J)
HON'BLE MS. ARCHANA NIGAM, MEMBER (A)
...
Ajay Kumar Tripathi S/o Sh. Ram Lakhan Tripathi, aged about 49
years, R/o 49/114 Sipra Path, Mansarovar, Jaipur. Presently
working on the post of Food Safety Officer (on deputation), at North
Western Railway, Jaipur, lien at North Western Railway, Bikaner.
...APPLICANT
BY ADVOCATE : Mr. S.K. Malik, present through VC
VERSUS
1. Union of India, through the General Manager, North Western
Railway, Jaipur (Raj).
2. The General Manager (P), North Western Railway, Jaipur
(Raj).
3. Divisional Railway Manager, North Western Railway, Bikaner
Division, Bikaner.
4. Rajesh Dhawan, Chief Health Inspector, C/O Chief Medical
Superintendent, North Western Railway, Ajmer.
5. Ratan Lal Banjara, Chief Health Inspector, C/o Senior
Divisional Medical Officer, Health Unit, North Western Railway,
Phulera.
6. Harsukh Ram Dhawan, Chief Health Inspector, C/o Chief
Medical Superintendent, North Western Railway, Ajmer.
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7. Pradeep Kumar Meena, Chief Health Inspector, C/o Chief
Medical Director, Headquarter Office, North Western Railway,
Jaipur.
8. Bharat Lal Meena, Chief Health Inspector, C/o Chief Medical
Superintendent, North Western Railway, Jaipur.
9. Botan Singh, Chief Health Inspector, C/o Senior Medical
Officer, North Western Railway, Rewari.
...RESPONDENTS
BY ADVOCATE: Mr. Kamal Dave, Special Counsel, Mr. Darshan Jain,
proxy counsel for Mr. Vinay Jain, present, through VC for R/1 to
R/3.
None present for respondents No.4 to 9.
ORDER
...
Per Hon'ble Smt. Archana Nigam, Member (A):-
1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, wherein the applicant is seeking the following reliefs:
"8(i) By an appropriate writ, order or direction impugned order dated 13.02.2015 at Annx. A/1, impugned order dated 04.08.2014 at Annx. A2 and impugned order dated 19.11.2013 at Annx.A3 be declared illegal and be quashed and set aside.
(ii) By an order or direction respondents may be directed to prepare Fresh eligibility list and common/combined seniority list for selection to The post of AHO as per Recruitment Rules 2007, RBE No.107/2012, keeping in view the date of promotion to the post of CHI/HMI Grade I in the pay scale of Rs.7450-11500/- (Pre revised).
(iii) Exemplary cost be imposed on the respondents for causing undue harassments to the applicant.
(iv) Any other relief which is found just and proper be passed in favour of the applicant in the interest of justice which this Hon'ble Court deem just and proper."3
2. The brief facts of the case as narrated by the applicant are that the applicant was initially appointed as Health & Malaria Inspector Grade III w.e.f. 20.06.1987 in the pay scale of Rs.5500- 9000/-. Thereafter, he was promoted on the post of Health & Malaria Inspector Grade II w.e.f. 06.08.2004 in the pay scale of Rs.6500-10500/- and lastly he was promoted as Health & Malaria Inspector Grade I w.e.f. 12.08.2006 in the pay scale of Rs.7450- 11500/-. Respondent no.3 issued a seniority list wherein the name of the applicant is shown at Sl.No.1, vide letter dated 04.03.2009 (Annexure A4). Respondents again issued a common seniority list for promotion to the post of Assistant Health Officer (AHO) Group 'B' vide letter dated 24.03.2009(Annexure A5) wherein the name of applicant is shown at Sl.Nos.8 and another letter dated 14.08.2013 (Annexure A6), in that seniority list the name of applicant is shown at Sl.Nos.7 below the persons, who were promoted in the pay scale of Rs.7450-11500/-.
3. Further, it is submitted in the OA that against the said seniority list, the applicant made a representation dated 01.09.2013 (Annexure A7) stating therein that the seniority is to be determined with reference to Railway Board Circular RBE No.107/2012 as the selection to the post of AHO is on the basis of a person has 4 completed two years service in Grade I and requested to place him at Sl.No.1 in the seniority list as per Railway Board circular. Without deciding the representation of the applicant against the common seniority list of AHO, respondents issued a common impugned seniority list dated 19.11.2013 (Annexure A3).
4. It is further stated that despite this respondents vide letter dated 25.04.2014 (Annexure A9) in reference to earlier letter issued notification for selection to the post of AHO and provisional eligibility list as per general seniority has been issued contrary to the provision of law wherein junior persons have been placed above the applicant. Against the notification and eligibility, applicant made representation dated 07.05.2014 (Annexure A10) clearly pointing out the provision of rules for selection to the post of AHO. The respondents vide impugned order dated 04.08.2014 (Annexure A2) rejected the representation that the common seniority list for selection to the post of AHO is as per Para 203.5 of IREM I and RBE No.107/2012 is not applicable.
5. It is further averred by the applicant in the OA that the applicant filed another representation dated 29.12.2014 through proper channel and submitted that seniority has to be prepared keeping in view promotion to Grade I prior to 04.09.2008 as per RBE No.107/2012 and requested to issue revised eligibility list and 5 common seniority list for selection to the post of AHO. Without deciding the representation, the respondents issued impugned order dated 13.02.2015 (Annexure A1), the illegal eligibility list contrary to the provision of law wherein the name of the applicant is placed at Sl.No.7 below the persons, who were junior to him in Grade I in the pay scale of Rs.7450-11500/-. The seniority of Govt. servants which existed on 04.09.2008 will be maintained i.e. the holder of the post having higher pay scale or post which constituted promotion post for the post in the feeder grade will rank enblock senior to those holding posts having lower pay scale or the posts in feeder grade. Aggrieved of impugned orders at Annexure A1, A2 and A3, applicant has no other alternate except to approach this Hon'ble Tribunal for the redressal of his grievances by filing the present OA.
6. In the reply filed on behalf of the respondents wherein it has been stated that for selection for Group 'B' category integrated seniority list is prepared as per Para 203.5 of IREM. From the date of appointment on non-fortitutious basis in Grade 6500-10500 will be the date for eligibility. On implementation of 6th CPC pay scale of Rs.6500-10500 and Rs.7450-11500 were merged in pay band Rs.9300-34800+Grade Pay 4600/-. On this Railway Board has issued a circular dated 29.04.2009 (Annexure R1) that Group B 6 selections may be continued as per the extent instructions of the Board i.e. on the basis of combined length of non-fortitutious service in Grade Rs.6500-10500 and above ignoring promotions to the Grade Rs.7450-11500. In this respect, Railway Board has also issued Circular No.46/2010 dated 29.03.2010 (Annexure R2).
7. It is further stated that the question is not of eligibility for selection to the post of AHO Group 'B' nor preparation of seniority but here the question involved in respect of preparation of integrated seniority list for selection to Group 'B' post. Applicant is relying on RBE Circular No.107/2012, but the same is not related because this circular explains about general seniority, further neither the RBE Circular No.186/2010 is applicable for present controversy. The integrated seniority list, which was prepared, was on the basis of Para 203.5 of IREM. The seniority list which has been issued is integrated seniority list and not ordinary seniority list. This seniority list has been issued as per rules and as per directions given by the Board time to time. The representation dated 07.05.2014 was duly replied by the Department vide its letter dated 04.08.2014. The applicant was in Grade Pay of Rs.4600 on 01.01.2006 and as per Railway Board's clarification dated 29.04.2009 and Circular No.46/2010 and Para 203.5 of IREM 7 integrated seniority list is prepared. In RBE Circular No.107/2012, there is no instruction in respect of integrated seniority list.
8. It is further averred that reply dated 29.12.2014 submitted by the applicant was duly replied by the Department vide its letter dated 20.01.2015 (Annexure R5). At the cost of repetition, the integrated seniority list has been prepared on the basis of Para 203.5 of IREM and Railway Board's Circular No.46/2010. The representation which was duly submitted by the applicant was duly acknowledged and decided and thereafter seniority list dated 13.02.2015 has been issued. The notification and circulars on which the applicant is relying are not related to present controversy. Circulars are related to show the eligibility for the post of AHO Group 'B' and these circulars are not related to preparation of integrated seniority list for selection to the post of Group 'B'. The order which has been passed by the respondent-department is just and proper and is in accordance with law.
9. In the additional reply to the OA filed on behalf of the respondents wherein it has been stated that a direction to quash Annexure A1 dated 03.02.2015, Annexure A2 dated 04.08.2014 and Annexure A3 dated 19.11.2013 with substantive prayer for a direction to prepare fresh eligibility list and combined seniority list for selection to the post of Assistant Health Officer (AHO). The 8 answering respondent specifically submitted that the OA lacks any merit for the claimed relief and the vary foundation of the OA referring to Railway Board Circular RBE No.107/2012 numbered E(NG) 1-2009/PM 1/4 dated 26.09.22012 (Annexure A1) has no applicability for the gazette post in question. The answering respondents specifically denied applicability of above Railway Board Circular. The foundation of non-applicability i.e. the circular is issued for the Non-Gazetted Staff by the Non-Gazetted Establishment of the Railways. With reference to the number of the circular where the E(GP) is used for Establishment (Gazetted Post). It refers to 'Consolidated List of Subject Dealt With by Various Branches in the Ministry of Railway Organization And Mathods Units' revised as on 23.09.2019. The promotion of non-gazetted staff falls under the Establishment Directorate E(NG) I relating to promotion placed at serial no.34 whereas the promotion of gazette post is placed under the Management Services Directorate as Establishment Gazette post which includes permanent promotion from Group 'B' to Group 'A' in all Departments, Indian Railway excluding RDSO.
10. It is further stated that the Circular RBE No.107/2012 (Annexure A6) being issued by Establishment Directorate E/NG has applicable only for non gazette staff and the promotion of gazette 9 staff are covered by Annexure R/1 No.E(GP) 99/2/22 dated 29.04.2009. The combined seniority list dated 24.03.2009 (Annexure A5) placed by the applicant for promotion to the post of AHO Group 'B', this placed seniority list already stand finalized long back and the applicant admittedly failed to raise any objection in respect of final seniority list. Admittedly, after having finalized the seniority position including names of present private respondents above the applicant, present challenge in the year 2015 in respect of finalized seniority list of 24.03.2009 itself is not maintainable being barred by Section 21 of the Central Administrative Tribunal's Act of 1985. The law as regard challenge to the seniority list after accrued right of the person placed in the final seniority list is settled that the same cannot be assailed after 3 years. The respondents relied upon the judgment of Hon'ble Supreme Court in the case of Shiba Sankar Mohapatra Vs. State of Urissa; (2010) 12 SCC 471 held in paras 18, 29, 30 and 31. In view of the said judgment, after 3 or 4 years final seniority list cannot be assailed and failure to challenge the same within this period disentitles the maintainability of OA. Admittedly belated approach of the applicant after interest of 3rd party gets ripened is held to be not permissible. In view of failure of the applicant to have raised any grievance in respect of seniority list (Annexure A5) now after more than 5 years no right to challenge the same is available to the applicant in view of the 10 judgment of Hon'ble Supreme Court in the case of Vijay Kumar Kaur Vs. Union of India; (2012) 7 SCC 610. The Railway as well as the law as regard challenge to the seniority list, the applicant has no case as the very foundation for the claimed reference to Annexure A16 has no applicability being for non gazette staff and the final seniority list of 209 admittedly in adherence to the judgment of Hon'ble Supreme Court, cannot be assailed in the year 2015. Hence, the OA deserves to be dismissed out rightly.
11. Miscellaneous Application No.290/00073/2021 has been filed by the respondents on 05.07.2021 for modification of interim order dated 03.03.2015 passed by the Hon'ble Court, wherein it has been stated that applicants (Respondents no.1 to 3 in the OA) be directed to prepare fresh eligibility list and common/combined seniority list for selection to the post of AHO as per Recruitment Rules, 2007, RBE No.107/2012, keeping in view the date of promotion to the post of CHI/HMI Grade I in the pay scale of Rs.7450-11500/- (Pre revised). Notices were issued to the Department vide order dated 03.03.2015 and further interim order in favour of the non-applicant no.1 was passed. By order dated 03.03.2015 (Annexure MA/1), order dated 13.02.2015 (Annexure A1) has been stayed by the Hon'ble Tribunal. As interim order has been passed by the Hon'ble Tribunal, therefore, the applicants are not able to fill the post and 11 due to which the work of the department is being hampered. The post of Assistant Health Officer is very important post and due to non-fulfillment of this post, work of Public Health of North Western Railway is suffering daily and due to interim order the department is unable to fill the post of AHO (Assistant Health Officer), thus, in the interest of justice, the order dated 03.03.2015 passed by this Hon'ble Tribunal may kindly be modified and the department may kindly be allowed to fill the post of AHO subject to the outcome of this OA.
12. We have heard learned counsels of both sides through video conferencing and also perused the material available on record.
13. It is seen that the matter pertains to the selection/seniority on the post of Assistant Health Officer in North Western Railway and the present Original Application has been filed by the applicant on 02.03.2015. This Tribunal on 03.03.2015 heard the learned counsel for the applicant, Shri S.K. Malik, on the point of interim relief. At that time, it is the contention of the applicant that as far as eligibility is concerned, candidates included at Serial No.3,4,6,9 and 10 do not qualify as per relevant Rules, which are at Annexure-A/14 and as per these Rules, at least 2 years' regular service in the post of Health and Malaria Inspector Grade I in the pay scale of Rs.7450- 11500/- is required and failing which Health & Malaria Inspector 12 Grade I with combined three years' regular service in the pay scale of Rs.7450-11500 and 6500-10500 as Health and Malaria Inspector Grade II are eligible and this has also been clarified in the Circular issued on 27.12.2010. After considering the submissions, this Tribunal has passed interim order dated 03.03.2015. The operative part of the interim order is as under:-
"Considered the contentions raised by the counsel for the applicant and perused the record. From a perusal of the rules, as at Annexure-A/14 persons who are Health and Malaria Inspector Grade-I in the pay scale of Rs.7450-11500 with two years' regular service in the grade, failing which Health and Malaria Inspector Grade-I with three years' combined regular service in the pay scale of pay of Rs.7450-11500 and 6500-10500 (as Health and Malaria Inspector grade II) are eligible for promotion to the post of Assistant Health Officer. However, prima facie it appears fro Annex. A/1 that names at S. Nos.3,4,6,9 & 10 have not been given pay scale of Rs.7450-11500/- as per Annex.A/5.
In view of the seeming discrepancy and to maintain the balance of convenience, as an interim measure, the respondents are directed not to act upon Annexure-A/1 dated 13.02.2015 till the next date of hearing"
14. Thereafter, the said IR was extended from time to time by this Tribunal and this Tribunal vide their order dated 20.12.2021 had noted that the OA pertains to the year 2015 and has an interim order in operation, and therefore, had deemed it appropriate to hear the matter finally.
15 During the course of arguments, learned counsel for the applicant vehemently stated that Annexure-A/4, placed at page 13 No.13 and 14, refers to the Provisional Seniority list of H & MI-I Grade in North western Railway, which is not relevant. He has also submitted that the selection to the post of Assistant Health Officer based on the Provisional Seniority List is improper and in fact has been challenged in the Jaipur Bench of CAT by applicant, Mr. B.L.Meena. Learned counsel for the applicant further contended that the applicant has filed a detailed representation dated 01.09.2013 (Annexure-A/7), wherein he has explained and made out his case that he had been given his promotion prior to the promulgation of Sixth Pay Commission, and therefore, the action taken by the respondent department in denying him his due seniority, based on the merger of grades, was improper. Vide that application/representation dated 01.09.2013, the applicant has requested that the respondent department to kindly take note of the Railway Board's Notification dated 20.11.2007 RBE 186/2010 and its interpretation as obtained by the applicant in his RTI application while preparing the seniority list. He has requested that keeping in view, his seniority may be appropriately re-fixed and his name may be shown at serial no.1 in the seniority list. It is his grievance that due to assigning of incorrect seniority, he has suffered from loss of seniority and consequent promotions since 2009.
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It is the contention of the learned counsel for the applicant that the applicant was promoted in the pay scale of Rs.7450- 11500/- CHI Grade I w.e.f. 12.08.2006 whereas respondents No.4,5,9 were promoted on the said post w.e.f. 24.11.2008, 02.05.2008 and 02.05.2008 whereas respondents No.6, 7 and 8 were never promoted on the said post till date and as per Recruitment Rules 2007 they are not eligible for consideration. He further contended that the impugned seniority list at Annex.A/3, eligibility list at Annx.A/1 are contrary to the Recruitment Rule 2007 RBE No.186/2010 and RBE No.107/2012 inasmuch as the applicant was promoted on the post of H&MI Grade in the pay scale of Rs.7450/11500/- w.e.f. 12.08.2006 and all other employees were promoted after him and some have not been promoted as Grade I as mentioned in representation dated 29.12.2014. He further submitted that this fact can be verified from the seniority list issued vide letter dated 24.03.2009. Hence, preparing seniority list as per Para 203.5 of IREM is not here nor there. The seniority and eligibility list has to be prepared as per RBE No.107/2012 keeping in view Rules, 2007 and not preparing the seniority and eligibility list in clearly contravention of the provision of law.
He further contended that the respondents are adamant to hold selection on the basis of eligibility list prepared contrary to the 15 provisions of law in arbitrary and illegal manner just to give advantage to the persons though, juniors to the applicant. Therefore, he prayed that the present Original Application deserves to be allowed.
16. In addition to the facts provided by the respondents in their counter affidavit wherein leaned counsels for the respondents state that the applicant relying upon the RBE circular No.107/2012 is misleading the Court as this circular as well as circular No.186/2010 are not applicable to the present controversy. They further state that the only list which is relevant is integrated seniority list prepare on the basis of para 203.5 of the IREM. They have, therefore states that the respondents have made appointment correctly i.e. as per Para 203.5 of IREM and circular No.46/2010, and therefore, the procedure which has been adopted by the respondents is just and proper.
It has also been clarified by the learned counsels for the respondents that the representation of the applicant has been submitted and decided after the seniority list was issued. In the additional counter affidavit filed by the respondents, the respondents have clarified that the preparation of the fresh eligibility list and combined seniority list for the selection to the post of AHO has been just and proper, and again denying the applicability of the circulars quoted by the applicant for the Gazetted 16 post in question. In the additional counter affidavit, the respondents have mentioned about the non-applicability of the circular issued for the non-gazetted establishment of the Railway and in this contest he drew the attention of the Bench to the 'Consolidated List or Subject dealt with by various Branches in the Ministry of Railway Organization and Methods (O&M) division Learned counsel for the respondents further contended that the Circular RBE No.107/2012 (Annexure-A/6) being issued by Establishment Directorate E/NG is applicable only for non gazetted staff and the promotion of gazette staff are covered by Annexure R/1 No.E (GP) 99/2/22 dated 29.04.2009.
Closing his arguments, Counsel for the respondents drew the attention of the Bench to the direction of the North Western Railway vide letter dated 24th March, 2009 placed at Annexure A/5, wherein it has been stated that any objection in regard to the provisional combined seniority list was required to have been submitted within one month of the date of issue of the letter. He contended that the combined seniority list dated 24.0.2009 (Annexure-A/5) for promotion to the post of Assistant Health Officer Group B, has already been finalized long back and the applicant failed to raise any objection in respect of the said final seniority list. After having finalized the seniority position including names of present private respondents above the applicant, present challenge in the year 17 2015 in respect of finalized seniority list of 24.03.2009 itself is not maintainable being barred by Section 21 of the Central Administrative Tribunals Act, of 1985.
In support his contention Respondent Counsel relied upon the judgment of Hon'ble Supreme Court in the case of Shiba Sankar Mohapatra vs. State of 0rissa (2010) 12 SCC 471. The paras 18, 29, 30 and 31 of the said judgments are reads as under:-
" 18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi , wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"7..... The party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors.; State of Mysore vs. V.K. Kangan & Ors.; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors.,; Inder Jit Gupta vs. Union of India & Ors.; Shiv Dass vs. Union of India & Ors.,; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. 18
30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.
31. The Tribunal ought to have dismissed the case of Parsuram Sahu only on the ground of delay and the laches, as the applicant approached the Tribunal at the verge of his retirement and after getting two promotions while the other parties have got three promotions. In the said case, the private respondents have not considered it proper to contest the case because both of them were likely to superannuate just thereafter on attaining the age of retirement. Undoubtedly, the said judgment and order has not been challenged by anybody and it attained finality but that remained the judgment in personem. More so, there is nothing on record to show as to whether the said applicant Parsuram Sahu could ever get any relief from the State Government."
Learned counsel for the respondents further submitted that in the case of Vijay Kumar vs. Union of India; (2012) 7 SCC 610, the Hon'ble Supreme Court in Para 26 held as under:-
"26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy."
17. Per contra, learned counsel for the applicant vehemently denied this and drew the attention of the Bench to the circular issued vide RB Estt. No.107/2012, at page 53 issued by the Government of India, Ministry of Railway, Railway Board wherein it has been very clearly stated at para 2 (I), which reads as under:- 19
"2 The matter has since been examined and it has been decided that status of promotions and seniority of staff holding post in grades which have been merged in pursuance to recommendations of 6th CPC will be determined as Under:-
(i) The promotions made between 01.01.2006 to 04.09.2008 (date of implementation of 6th CPC on Railway) will be protected as the same were made as per the provisions of statutory rules existing at that time. The merger of the pay scale(s) of the post(s) as recommended by 6th CPC have been made effective w.e.f. 01.01.2006; the seniority of government servant which existed on 04.09.2008 will be maintained, i.e., the holder of post having higher pay scale or post which constituted promotion post for the posts in the feeder grade, will rank enblock senior to the those holding post having lower pay scale or the post in feeder grade."
The learned counsel for the applicant also drew our attention to para (IV) of the said circular, which reads as under:-
"(IV) The availability of staff nominated on the basis of panel promotion given by DPC or Select List given by Selection Board will be decided as on 04.09.2008. In case a staff from the panel given by DPC or Select List given by the Selection Board has joined on or prior to 04.09.2008, then status of all the staff included in panel given by DPC or Select List will be protected and all staff will be considered available and their seniority determined by following the basic principle of seniority, i.e. order of panel given by DPC or merit list given by Selection Board. In case all the staff included in the panel given by DPC or Select List given by Selection Board Joins after 04.09.2008, then the seniority of such staff within a grade, will be determined by placing them below all available staff as on 04.09.2008 but maintaining their inter-se seniority in order of panel of DPC or merit list given by Selection Board."20
18. Considered the rival contentions of both the parties and perused the material available on record. From bare reading of the provisions of the Circular No.RBE 107/2013 makes it clear that this circular is relevant order on the matter of status of promotion made between date of effect and date of implementation and recommendation of Sixth CPC, and seniority of staff in merge grades in pursuance of the recommendation of the Sixth CPC.
Therefore, it is quite evident from the chronology of event that the date of promotion of the applicant is dated 06.08.2004 and 12.08.2006 would imply that the argument being made by Applicants counsel as per the applicability of the relevant circular seems correct and from the perusal of the chronology of promotion and the relevant Circulars rules particularly the provisions as detailed in Circular RBE No.207/2012 (Annexure-A/6), the applicant has made out a case for reassigning of correct seniority list.
19. We have also perused the judgments cited by the learned counsel for the respondents. The case of Shiba Sankar Mohapatra (supra) are not relevant to the facts and circumstances of the present case as in the case of Shiba Sankar Mohapatra, the applicant therein approached the Tribunal at the verge of his retirement and after getting two promotions while the other parties have got three promotion and the private respondents have not contest the case of because they were superannuated just 21 thereafter and further the promotion in the said case had been made 8-9 years ago prior to issuance of the combined gradation list. It is also seen that in the said case the Hon'ble Supreme Court in the operative para observed as under:-
"So far as the appeal arising out of writ petition no.426/06 which has arisen from the judgment and order of the Tribunal in OA No.203/2001 is concerned, the relevant facts thereof, have not been taken into consideration either by the Tribunal or by the High Court and the matter has been decided making reference to the facts of other connected cases. Thus, in view of the above, we set aside the judgment and order of the High Court in Writ Petition No.426/06 only to the extent of the last part of the order, namely, "if it is found that promotion of a Sub-Inspector was not considered before consideration of Sub-Inspector placed below him in the seniority list, his promotion shall be considered with effect from the date of promotion of his junior in case he had fulfilled minimum eligibility criteria for promotion at the time of consideration of his junior". The first part of the order contained in paragraph 9 as already explained hereinabove has attained finality, thus, does not require any interference. The High Court is requested to decide the case to that extent only taking into consideration the law as explained hereinabove including the issue of delay and the facts involved in that case expeditiously.
The case of Vijay Kumar (supra) is also not relevant to the facts and circumstances of the present case as the said case has been dismissed only on the ground that the affected persons have not been impleaded as party.
20. Accordingly, the impugned orders dated 13.02.2015 (Annexure-A/1), 04.08.2014 (Annexure-A/2) and 19.11.2013 (Annexure-A/3) are quashed and set aside. The respondents are 22 directed to prepare fresh eligibility list and common/combined seniority list for selection to the post of AHO as per Recruitment Rules 2007, RBE No.107/2012, keeping in view the date of promotion to the post of CHI/HMI Grade I in the pay scale of Rs.7450-11500 (pre-revised) within a period of three months from the date of receipt of a certified copy of this order.
21. The OA is thus allowed as stated above. As the Original Application itself is allowed, the Misc. Application No.73/2021 for modification of IR, is disposed of. No order as to costs.
(ARCHANA NIGAM) (JASMINE AHMED) MEMBER (A) MEMBER (J) sv/rss