Central Administrative Tribunal - Allahabad
Syed Mahfuzul Islam vs Union Of India on 29 October, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 29 DAY OF 10, 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. S. N. Shukla, Member (A) Original Application No.1301 of 2008 (U/S 19, Administrative Tribunal Act, 1985) 1. Syed Mahfuzul Islam, S/o Late Syed Nurul Islam KM 101 J.K. Ashina Kareli, Allahabad. 2. Santosh Kumar Srivastava, S/o Late Gaya Prasad R/o House No. 2/7/64 Nehalpur Khuldabad, Allahabad. 3. Virendra Kumar Rawat, S/o Late B.L. Rawat, R/o 600-A, Railway Colony, Near D.R.M. Office, Nawab Yusuf Road, Allahabad. . Applicants Present for Applicant: Shri Shahid. Masud, Advocate Shri Syad Ashraf Ali Versus 1. Union of India, through Chairman Railway Board Rail Bhawan, New Delhi. 2. The Chairman Railway Board Rail Bhawan, New Delhi. 3. General Manager, North Central Railway, Allahabad. 4. Divisional Railway Manager, North Central Railway, Allahabad. 5. Senior Divisional Personal Officer, North Central Railway, Allahabad. 6. Senior Divisional Commercial Manager, North Central Railway, Allahabad. 7. Senior Electronic Data Processing Manager, North Central Railway, Allahabad. Respondents Present for Respondents : Shri A. K. Sinha, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The question is short but sharp. When seniority is revised with retrospective effect, by which time, due to restructuring the erstwhile senior (but junior as per revised seniority list), happened to be adjusted against the higher post, whether the person who has now gained the seniority should derive the benefit of restructuring and if so, what should be fate of that person who had been afforded the benefit of restructuring?
2. The facts capsule: The three applicants in this OA joined the respondents organization as signalers in late 70s /early 80s. In 1993, these having been rendered surplus, had been redeployed as Senior Ticket Collector and their seniority in the said post of Senior Ticket Collector had been fixed, in accordance with the provisions contained in para 3(1) of Railway Boards letter dated 21-04-1989 which reads as under:-
3. When re-deploying the surplus staff to other units/Deptts. thewhich constitute a different seniority unit, the following methods can be adopted:
(i) if only a small number of staff are rendered surplus and they have to be transferred to various units of other departments against vacancies of duly sanctioned posts, they can be suitably adjusted in those units with their full seniroty and merging their seniority in the respective units.
3. In 1996, the applicants were granted promotion as T.T.E. (status promotion) and thereafter, in 1997 as Head T.T.E.
4. In the wake of restructuring, some persons were accommodated in the pay scale of Rs 6500 10500 and when certain individuals had made representation, the same was rejected Consequently, such individuals moved OA No. 1247 of 2004 which came to be allowed and the following order was passed:-
15. The OA is therefore, allowed. The order dated 17.09.2004 rejecting the representation of the applicants is hereby quashed and set aside. The respondents are directed to recast the seniority/ gradation list of the TTEs under the North Central Railways, Allahabad, by granting the applicants the benefit of counting their past services under their parent department as signalers for the purpose of determining their seniority in the Ticket checking cadre. Needless to mention that promotion to the higher grade i.e. Head TTE/JITs would be based only on such a recast seniority. It is; however, made clear that if any of the TTEs were in the past granted promotion as Head TTEs they would not be reverted but at the same time, on the basis of the recast seniority, if any of the individuals were to be promoted and such a promotion be from the date anterior to the already promoted Head TTEs, their seniority would be accordingly fixed.
5. The applicants in the present OA moved a representation for extending the benefit of the above order as they were similarly situated as those in the aforesaid O.A. and the respondents had acceded to the request of the applicants and afforded due seniority and the seniority position of the applicants as per the revised seniority is as under:-
Sl No Name Revised Seniority as TTE Revised Seniority as Head TTE Authority 1, S,M. Islam 25-A 26-A Annx 11 and 12 respectively
2.
S.K. Srivastava 17-A 20-A
-do-
3. Virendra Kr. Rawat 110-A 39-A
-do-
6. In the wake of the revision of seniority, the applicants were promoted as Junior Ticket Inspectors in the scale of Rs 5500-9000 vide Annexure A-13 order dated 26-12-2007.
After the above promotion of the applicants, the seniority list of Junior Ticket Inspector also underwent an amendment in which the seniority position is as under:-
Sl No Name Revised Seniority as JIT 1, S.M. Islam 45-A
2.
S.K. Srivastava 24-A
3. Virendra Kr. Rawat 48-A
7. Annexure A-14 order dated 25-02-2008 refers. So far, so good. The claim of the applicants arises only from here. The Restructuring took place in September, 2003 when the correct seniority of the applicants in the grade of Junior Ticket Inspector was not fixed. It was fixed only as late as in February, 2008 as stated above. By this time, on the basis of restructuring, certain Junior Ticket Inspectors have been granted higher pay scale of Rs 6500 10500 (Chief Ticket Inspector) and these individuals were earlier senior as per the seniority list available as on 10-09-2003, the date of restructuring, but by virtue of the revision of seniority, the applicants have become ripe for consideration for placement in the grade of Rs 6500- 10500 Chief Ticket Inspector, which was subject only to certain modified selection process. In the case of restructuring, as a rule, without any need to write the examination, the higher scale is granted. The claim of the applicants is that they too should be afforded the higher scale of pay of Rs 6500 10500 and that too without any compulsion to face any examination, which otherwise would be essential in case of normal promotion. And it is their case that there are adequate numbers of vacancies available. The relief sought is as under:-
I. Issue an order or direction quashing the impugned order dated 14.8.2008 (Annexure A-1 Compilation No-I).
II. Issue a suitable order or direction commanding the respondents to promote the applicant to the post of C.I.T. according to their seniority determined by order 26.12.2007 with retrospective date 12.02.1997 and add their names in seniority list 10.09.2003 at Sl. No. 24-A, 45-A and 48-A with all consequential benefit from the date of promotion of 1 to 52 JIT including Juniors to applicants.
III. Issue such other order or direction which the applicants might be found entitled to in the facts and circumstances of the case.
8. Respondents have contested the O.A. Facts as mentioned in the O.A. have all been by and large admitted. Notional promotion to the grade of Junior Ticket Inspector (Pay Scale 5500 -9000) from 12-02-1997 and actual promotion from 28-12-2007 have also been admitted by them. It was stated that due to non availability of vacancies, the applicants could not be promoted in the grade of Rs 6,500 10,500/- and accordingly they were informed, vide Annexure A-1. According to them, the post of Chief Ticket Inspector is a selection post and if the applicants appear in the selection and pass the selection in their first attempt, they shall be allowed proforma promotion against cadre restructuring w.e.f. 01-11-2003. Vide para 13 of the counter, the respondents have contended as under:-
13. That the instant O.A. is based on mis conception of rules. The applicants want their promotion as CIT grade Rs. 6500-10,500 (RSRP) without appearing at the selection against the selection post of CIT grade Rs. 6500-10,500/- against the cadre restructuring of 1.11.2003. In 2003 and 2004 their seniority was not decided and hence they could not be promoted against cadre restructuring. Subsequently in pursuance of the judgment dated 12.12.2005 the seniority of the applicants has been modified but since all the post against cadre restructuring of 2003 have already been filled up, the applicants will have to appear at the selection and if they pass the said selection in their first attempt they shall be restored their respective seniority and proforma fixation of pay qua their juniors in grade Rs. 6500-10,500 (RSRP).
9. Rejoinder and supplementary counter (to the rejoinder) have also been exchanged, wherein the parties have reiterated their version respectively in the OA and its reply.
10. Counsel for the applicants argued that once the seniority is fixed it is axiomatic that the consequence thereof follows. In other words, the respondents are expected to review the promotion made during restructuring and afford promotion under the modified selection process on the basis of the revised seniority. This not having been done, the respondents have acted illegally.
11. Counsel for the respondents submitted that there being no vacancies as on date, the request of the applicants cannot be acceded to. Again, they have stated that if the applicants qualify in the written examination, they would be considered for accommodating them in the higher post.
12. Arguments have been heard and documents perused. The seniority of the applicants has been revised by the respondents in the wake of the Tribunals order dated 12-12-2005, Annexure A-8. Prior to the above revision, it was the seniority list at Annexure A-18 that was subsisting in 2003 when the restructuring took place. Of the promotions to the grade of 6500 10500 made vide Annexure A18, the following names inter alia figure in:-
(a) J.K. Pandey Sl. 23 (b) S.K. Sharma Sl 48
The names of the applicants have been interpolated in the seniority list of Junior Ticket Inspectors as under:-
(a) Santosh Kumar: 52-A (b) Syed Mahfuzul Islam 52-B (c) V.K. Rawat 70-A
Thus, the case of the applicants is that benefit of restructuring given to those whose seniority position is 53 and below is illegal as the applicants (a) and (b) above are senior to them and in so far as shri V.K. Rawat is concerned, promotion given to all below his seniority is illegal.
13. The respondents are prepared to afford the applicant the benefit of higher pay scale, provided the applicants qualify in the written test in the first attempt. The counsel for the applicants, however, contends as to why his men should be burdened with the requirement of passing the examination when they are entitled to promotion under the modified programme.
14. Once the seniority is fixed prior to 2003, then promotion should be based on the said seniority. Even if by way of fiction, seniority has been revised the consequences thereof should follow. In this regard, reference is invited to the oft quoted passage of Lord Asquith, in East End Dwellings Co. Ltd. v. Fins bury Borough Council (1952 AC 109) wherein it was observed:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The aforesaid observation has been approved and followed by our own Supreme Court in a series of decisions University v. Palitana Sugar Mill (P) Ltd., (2003) 2u SCC 1o11, and Raja Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200, and in a latest decision in Mohd. Akram Ansari v. Chief Election Officer, (2008) 2 SCC 95.
15. In view of the above, the real benefit of affording higher seniority should accrue when the same is accompanied by promotion. And, since there was no written examination at the time of restructuring, the respondents should logically and reasonably consider the promotion of the applicants on the basis of their seniority, without subjecting them to any written test.
16. The O.A. is therefore, allowed. The impugned order dated 14-08-2008 is hereby quashed and set aside. It is declared that the respondents ought to have conducted review of the promotion made during re-structuring to be in conformity with the revised seniority. Failure to so revise the promotion at the time of restructuring resulted in a great prejudice. As the respondents have no objection in considering them for promotion, provided they qualify in the examination, the same holds good to prove that accommodating the applicants in the high grade is not agitated, but the same should be after qualifying the examination. This condition should go and the applicants should be considered for promotion by the authorities, without compelling them to sit for the examination. Ordered accordingly. Their seniority should also be duly fixed as Chief Ticket Inspector (6500 10500) on the basis of their seniority in the feeder grade. It is for the respondents to adjust the already promoted Chief Ticket Inspectors as per law, if need be, by creating supernumerary posts for a minimum spell.
17. The above drill should be accomplished within a period of six months from the date of communication of this Order.
18. No costs.
Member (A) Member (J)
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