Central Administrative Tribunal - Cuttack
Y N Rao vs Ordnance Factory on 24 September, 2024
1 O.A.No. 260/00439 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00439 of 2019
Reserved on 19.09.2024 Pronounced on 24.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Y Nagaswar Rao, aged about 48 years, S/o Sri
Y.Nandeshyam, Working as Supervisor atSectio U-06 of
Ordnance Factory, Badmal, resident of Qtr No. 33301,
Type-III, Phase-4, Ordnance Factory Estate, At/PO-
Badmal, PS- Saintala, Dist-Bolangir, Pin-767070.
......Applicant
VERSUS
1. Director General Ordnance (Coordination & Service),
Directorate of Ordnance, 10-A, S.K.Bose Road, Kolkata-
700001.
2. Chief Managing Director (CMD), Munitions India
Limited, Ammunition Factory Khadki, Pune-411003.
3. The General Manager, Ordnance Factory, Badmal-
767070, Dist-Bolangir, Odisha.
4. Sri Samanta Kumar Dip, Working as CM/NT/S, MT
Section Ordnance Factory, Badmal At/PO- Badmal, Pin-
767070.
5. Sri Kshyama Sagar Bhoi, Working as CM/NT/S, Store
Section Ordnance Factory, Badmal, At/PO-Badmal, Pin-
767070 Dist-Bolangir.
2 O.A.No. 260/00439 of 2019
6. Sri Sambhu Prasad Dora, Working as CM/NT/S, Unit-04
Section Ordnance Factory, Badmal, At/PO-Badmal, Pin-
767070 Dist- Bolangir.
7. Manojkumar Pattanaik, Working as CM/NT/S, Stores
Section Ordnance Factory, Badmal, At/PO-Badmal, Pin-
767070 Dist-Bolangir.
8. Jayanarayan Satpathy, Working as CM/NT/S, Unit-01
Section Ordnance Factory, Badmal, At/PO-Badmal, Pin-
767070 Dist-Bolangir.
......Respondents
For the applicant : Mr. L.Pradhan, Counsel
For the respondents: Mr. Sarbeswar Behera, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicant has filed this OA inter alia seeking the releifs as under:
"i. To admit this original application, call for the show cause from the respondents and after hearing the parties;
ii. Quash the seniority/gradation list dated 23.06.2003/09.07.2003 and 03.01.2019 vide Annexure-A/5 & Annexure-A/6 and order of promotion to the post of Supervisor/Store and Chargeman/Store dt. 13.05.1019 vide Annexure-/12 & A/13 and/or give similar benefit to the applicant as he is senior to respondent no.l 4 to 6 as per Annexure-A/1 & A/2 and enlarge the benefits of the judgment dt. 01.08.2008 (Annexure-A/8) like the respondents 7 & 8.
iii. Pass any other order(s) ................."3 O.A.No. 260/00439 of 2019
2. By placing reliance on the pleadings, Ld. Counsel for the applicant has submitted that on 25.11.1994 the applicant was appointed as Storekeeper; on 14.08.1995 he joined in service; on 14.02.1996 gradation list was prepared showing his name at appropriate place as an appointee of 25..11.1994; on 05.09.1998, again a gradation list was prepared showing his name below respondent Nos. 4 to 8, i.e. at Sl. No.7 against which he submitted representation on 18.09.1998; final gradation list was published on 23.06.2003/09.07.2003 retaining his name at Sl. No.7 that is below the respondent Nos. 4 to 8 and on 22.07.2003, again the applicant submitted representation. It is stated that instead of considering his representation, explanation was called from him on 26.09.2003, reply to which was submitted by him o 30.09.2003. Being aggrieved by the place and position shown in the gradation list, respondent Nos. 7 and 8 filed OA 141/2005 (Manoj Kumar Pattnaik & Anr. Vs. UOI & Ors.) before this Tribunal, which was allowed by this Tribunal on 01.08.2008 against which the respondents department filed W.P.(C) No. 19710/2009, which was also dismissed on 03.01.2019. In compliance of the order of this Tribunal, revised draft seniority list was published vide Annexure-A/10 showing 4 O.A.No. 260/00439 of 2019 respondent Nos. 7 and 8 at Sl. Nos. 1 and 2 but without giving consideration to his request, against which the applicant submitted representation on 18.01.2019. While the matter stood thus, private respondents were promoted w.e.f. 10.05.2005 and 23.12.2017 vide order dated 13.05.2019. It is stated that the applicants submitted representation on 20.05.2019. According to the applicant, although the grievance of the applicant is same and similar to that of the case of respondent Nos. 7 and 8 since no consideration was given to his series of representations, he has approached this Tribunal with the aforesaid prayers.
3. On the other hand, by placing reliance on the submissions made in the counter, Ld. Counsel appearing for respondent Nos. 1 to 3 has submitted that since this Tribunal allowed OA Nos. 141/2005 in respect of the applicants therein, in compliance of which, relief was granted to them. Similar OA No. 407/2019 filed by one Shri Jayanta Kumar Panigrahi Vs UOI seeking the relief as in the instant case has been allowed vide order dated 26.02.2024 has not been disputed by the Ld. Counsel for the official respondents.
5 O.A.No. 260/00439 of 2019
4. Despite notice and opportunities, the privates respondents have neither appeared nor filed counter.
5. We have considered the submission of the respective parties and perused the materials placed on records.
6. On examination, we find that the facts/issued involved in OA 141/2005 and OA No. 407/2019 are same and similar to the case in hand. Relevant portion of the order dated 01.08.2008 in OA 141/2005 is extracted below.
"6. Considering the rival contentions of the counsels appearing on the either side and going through the relevant rules regarding preparation of seniority list and the factual matrix upon which the applicants hacked, it has to lie gest this Tribunal whether points raised by the Respondents are correct or not. Before considering the factual situation, it is advisable to note the relevant rules regarding the preparation of inter se seniority of direct recruits vis-a-vis their joining the duties. In this context, Annexure-A/1 is relied upon by the applicants, in which in Rule 2 and 3 of Chapter 29, it is stated as follows:
"2. Seniority is delinked from confirmation- With effect from 4th November, 1992, the seniority of a person regularly appointed to a post according to Rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of confirmation. This is in modification of the General Principle 3, proviso to General Principle 4 and proviso to General Principle 5(1) contained in O.M.No. 9/11/55-RPS, dated the 22nd December, 1959 and Para 2.3 of O.M., dated the 3th July, 1986,
3. Direct Recruits-(i) General procedure, The relative seniority of all direct recruits will be in the order of merit as 6 O.A.No. 260/00439 of 2019 per the Select List drawn by the UPSC,SSC or other selecting authorities. Persons appointed from an earlier Select List will rank senior en block to those appointed from the subsequent selection.
(ii) Where there is delay in joining duty- Persons selected for appointment are required to join duty within a specified time not exceeding two or three months. The offer of appointment should make it clear that if they do not join within the stipulated time, the offer would lapse. The seniority as per the Select will not get affected if any person joins later but within the pr. scribed time. In exceptional cases, there is precision to allow time up to six months for joining. Even in such cases, seniority will be retained."
7. Further, the above quoted Rule indicates an example of persons joining within the stipulated time of three months up to 31.07.2000, except one allowed six months time as a special case. This statute also shows that the position of seniority is not affected though a candidate joins later than those who joined on or before 28.05.2000. Admittedly, the applicants were selected during 1995 and the seniority lists, Annexure-A/3 and A/6 were published on 27.02 1996 and 18.1.2001 respectively, and if so, any deviation from the above list has to be supported with reasonable grounds. In Annexure-A/3, admittedly, the applicants were shown above the names of Respondent Nos. 4 to 6 in the seniority. When the change took place in 1998, in Annexure-A/4, the applicants had filed Annexure A/5 representations/objections. As per extant rules, seniority shall be fixed on basis of order of merit in the select list. Admittedly, the applicants were shown as more meritorious than Respondent Nos. 4 to 6 in the select list. In spite of Annexure- A/5, representations/objections, Annexure-A/6 seniority list dated 18.01.2001 had been drawn up. Further, it has to be noted that the present seniority list as on 1.6.2003 (Annexure-A/7) has been drawn up without considering the objections filed by the applicants. Now the applicants have also filed further representations dated 30.9.2003, annexed as Annexure-A/11. These representations are not attended hitherto. This is also taken as a ground for filing the present Original Application.
7 O.A.No. 260/00439 of 2019
3. The stand token in the counter affidavit that the applicants had never raised any objection or allegation/grievance against the seniority lists published from 1996 to 1998 appears to be not correct. That apart, the combined seniority list now published would show that respondent No. 4,5 and 6 belong to SC and ST categories whereas the applicants do not belong to any reserved category, and therefore, the respondent Nos. 4,5 and 6 have to be ranked above the applicants. This is also not correct as Respondent No.4 to 6 have not been given any accelerated promotion whereas their seniority can be considered only on the basis of the select list and in order of merit. If so, the case of the Respondents justifying the seniority list now published is not tenable. Further, by relying on the judgment of the Apex Court in Civil Appeal No. 5193/89 in Gujarat State Dy. Executive Engineers' Association vs State of Gujarat, it is also not tenable because the applicants were not the candidates left out in the waiting list and no such waiting list had also been drawn up. Only a select list of 15 candidates in order of their merit had been drawn up for appointment, and if so, the case of the applicants has to be reconsidered afresh.
9. Similarly, the stand taken in the counter affidavit by the Respondents that the applicants could not have joined the Department due to dearth of posts, does not hold any water in as much as it was only due to non-sanctioning of posts. The joining of the applicants got delayed or postponed. As per the seniority rules, even if a candidate selected by a common select list joins later, his seniority has to be reckoned on the basis of his merit order in the select list.
10. In the light of the discussions made above, the Original Application has to be allowed. Consequently, the O.A. is allowed. Seniority list drawn up on 23.6.2003/9.07.2003 (Annexure A/7) is hereby set aside to the extent applicable to the applicants and the 2nd and 3rd Respondents are directed to redraw the seniority list, and this has to be done within 60 days of the receipt of a copy of this order. It is also made clear that such redrawal of the seniority list shall be with notice to the Respondent Nos. 4 to 6 as they have not been represented before this Tribunal by any counsel." 8 O.A.No. 260/00439 of 2019
7. Taking into consideration the aforesaid decision, direction was issued by this Tribunal vide order dated 26.02.2024 in OA 407/2019 as under:
"6. On perusal of the entire pleadings of the applicant vis a vis the order of this Tribunal passed in O.A. No.141 of 2005 vide order dated 01.08.2008, there is no iota of doubt that the case of the applicant is on a similar footing to that of the case of Sri Manoj Kumar Pattnaik and Sri J.N.Satpathy (applicants in OA 141/2005). Applicants in the OA 141/2005 were also selected and recruited along with the present applicant and had challenged the seniority list published on 23.06.2003/09.07.2003 with further prayer to reissue the seniority list. It is also not in dispute that the present applicant was the immediate junior to them. Hence, going by the analogy of the decision in OA 141/2005, it is held that the applicant cannot be discriminated and his case needs to be dealt into in a similar way as has been done in the case of applicants in OA 141/2005, if there is no other impediment. Accordingly, Respondents are directed to redraw the seniority list of Store Keepers in respect of the present applicant as has been done in respect of the S/Sri Manoj Kumar Pattnaik and J.N.Satpathy in compliance of the order of this Tribunal in OA 141/2005, which was upheld by the Hon'ble High Court of Orissa in W.P(C) No. 19710/2009 also within a period of 60 days of the receipt of a copy of this order, however, after giving notice to all the concerned employees, and to take further follow up action in accordance with rules."
8. We find no justification to defer from the view already taken in the aforesaid cases. Accordingly, Respondents are directed to redraw the seniority list of Store Keepers in respect of the present applicant, as has been done in respect of the S/Sri Manoj Kumar Pattnaik and J.N.Satpathy in compliance of the order of this Tribunal in OA 9 O.A.No. 260/00439 of 2019 141/2005, which was upheld by the Hon'ble High Court of Orissa in W.P(C) No. 19710/2009, and as per the order of this Tribunal in OA 407/2019, also within a period of 60 days of the receipt of a copy of this order, however, after giving notice to all the concerned employees, and to take further follow up action in accordance with rules.
9. In the result, the OA stands disposed of leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS