Central Administrative Tribunal - Delhi
Ravindra Nath Mishra S/O Dina Nath, ... vs Union Of India (Uoi) Through The General ... on 9 May, 2008
ORDER Meera Chhibber, Member (J)
1. Since both these OAs are clubbed together and a common question of law is raised, therefore, they are being disposed off by this common judgment and for the purposes of narrating facts, OA No. 227/07 is taken as a lead case.
2. It is submitted by the applicant that he was working in the Commercial Department of the Railways and was declared pass as Clerk, vide letter dated 27.4.1981 (page 18 at 20). Applicant was at S. No. 79. He was immediately promoted as Commercial Clerk and asked to work on the said post. In October, 1981, direct recruits were empanelled. Since as per Rule 128 of Indian Railway Establishment Manual volume- I direct recruits are required to undergo training, naturally they completed their training subsequently and were promoted as Clerks.
3. Inviting our attention to para 128 of IREM, counsel for the applicant submitted that though there was a specific mention made about period of training for the direct recruits on the post of Commercial Clerk, but no such training was made essential for the promotee category, therefore, applicant should have been placed above the direct recruits. Applicant was sent for training w.e.f. 27.1.1986 to 20.3.1986 and in the very first attempt, he was declared to have passed the training (page 21). Thereafter, applicant was promoted as Senior Parcel Clerk w.e.f. 1.3.1993 and further promoted as Head Parcel Clerk with effect from 10.1.1995.
4. Counsel for the applicant submitted that one Shri Ramji Lal, who was also a promotee of 1984, was assigned revised seniority at Sl. No. 103-A as per the decision taken by the competent authority in 145 PNM Meeting of NRMU and he was placed above the direct recruits (page 27), therefore, applicant also gave representation that he should also be placed above Shri Ashok Kumar Sikka in the seniority of Senior Parcel Clerk. Accordingly, vide order dated 29.12.2003 (page 29), respondents revised the seniority of applicant from Sl. No. 96 to 34-A in the seniority of Head Parcel Clerk of Delhi Division. In the seniority list issued thereafter on 3.1.2005 (page 30 at 32), applicant was placed at S. No. 32 in the seniority of Head Parcel Clerks.
5. Grievance of the applicant is that almost one year thereafter respondents issued show cause notice on 5.4.2005 (page 13) by stating that applicant's seniority has wrongly been assigned as it ought to have been fixed as per Rule 302 of IRM Volume-I and he should have been placed at Sl. No. 96 instead of 32 because he had passed training in the year 1986 (page 37). Applicant gave his reply but his representation was rejected vide order dated 28.7.2005 (page 17) by observing, no new point has been taken by the applicant and the rules were alrweady taken into the consideration while issuing the show cause notice. It is stated by the counsel for the applicant that on the one hand applicant's seniority has been wrongly depressed and on the other hand, his juniors have been promoted vide letter dated 12.7.2005 to the post of Parcel Supervisors in the grade of Rs. 5500-9000 (page 15). It is in these circumstances that these OAs have been filed by seeking quashing of the orders dated 21.3.2005 (page 12), 5.4.2005 (page 13), July, 2005 (page 14) and order dated 12.7.2005 seeking further direction to the respondents to restore their seniority and release the benefit of restructuring with effect from 1.11.2003 at par with their junior counter-parts.
6. Respondents have opposed this OA. They have submitted applicant was promoted as Coaching Clerk on 27.4.1981 after passing the selection of promotee quota against 33.1/2% quota from Group 'D' category. He was sent for prescribed training at ZTS/CH w.e.f. 27.1.1986 to 20.3.1986. Accordingly, his seniority has been fixed after passing the requisite training, therefore, this case relates to assigning of seniority of direct recruits versus promotee quota in the category of Parcel Clerk pertaining to the year 1986. Batch of direct recruits from RRB, Allahabad was sent for training at ZTS/CH for the period from 23.6.1986 to 8.8.1986 and the result thereof was declared on 8.8.1996 and they were appointed against working post on 19.8.1986 after successfully completing the prescribed training, whereas the staff from the promotee quota panels, i.e. panel of 1981, 1984 and 1986, were sent for the prescribed training in two batches one from 19.9.1986 to 10.11.1986 and the other from 14.11.1986 to 1.1.1987.
7. As per para 302 of IREM Vol.I, posts be partially filled through two categories, namely, direct recruitment and promotion. The criterion for determination of seniority should be the date of regular promotion after the due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se seniority of promotees and direct recruits, therefore, they have been correctly assigned seniority as per para 302 of IREM Vol.I. For promotees, the criterion for determination of seniority is the date of regular promotion after due process while for direct recruits it is the date of joining the working post after the due process. As per PS No. 6062, promotion course has been prescribed and only three chances are given. They are assigned seniority only after passing the requisite training as per para 302 of IREM Vol.I.
8. They have further explained that as per revised seniority list issued on 31.12.2006, applicant is still senior to Shri Ramji Lal and his name stands at Sl. No. 38 of the seniority list. His representation dated 9.4.2005 is also stated to have been decided and conveyed vide letter dated 7.5.2007. As far as further promotion to the post of Parcel Supervisor is concerned, applicant's name did not fall in the zone of consideration, therefore, he was not promoted in the cadre of restructuring. Moreover, none of the juniors to the applicant was promoted as Parcel Supervisor against promotee quota. They have thus explained para 128 would not be attracted in this case.
9. Counsel for the respondents also invited our attention to the order dated 27.4.1981 to show that even at that time it was made clear to them that it was obligatory on the applicant to pass the requisite training course from the Zonal Training School, Northern Railway, Chaundasi. They have thus prayed that the OA may be dismissed.
10. We have heard both the counsel and perused the records as well.
11. Applicant's whole case is that there was no need for him to undergo training as per para 128 of IREM Vol.I, whereas perusal of para 227 of IREM shows that Railways may prescribe promotional courses, passing of which should be pre-condition for further promotion to a grade in a cadre. It has further been made clear that no exemption should be given from passing a prescribed promotional course. Applicant has himself annexed panel dated 27.4.1981 whereby he was selected for the post of Coaching Clerk on page 18. It is relevant to note that this was only a provisional panel of Coaching Clerk in the grade of Rs. 260-430 (RS) and in the last paragraph, it was specifically mentioned as follows:
The staff may be informed that retention of their names on the panel is subject to their work being satisfactory during the currency of panel. The mere facts that they are on the panel will not confer upon them any right for promotion as coaching clerk but will be obligatory for them to pass the requisite promotion course (P-7) from the Zonal Training School, Northern Railway, Chandausi.
12. It is thus clear that even at the time of empanelling the applicant, he was duly informed by the respondents that the said panel would not confer any right for promotion on him as it would be obligatory for him to pass the requisite promotion course P-7. This was not challenged by the applicant in 1981. On the contrary, applicant was sent for training in the year 1986 which is evident from the result of P-7 course annexed by the applicant himself at page 21. In the said result, applicant's name figures at Sl. No. 2. Even at this stage, applicant did not challenge as to why he was sent for training if he felt it was not at all required. He had thus acquiesced to the situation, therefore, it is not now open to him to state that he was not required to undergo training. In fact, the applicant has not even annexed the order by which he was asked to officiate/work as clerk, therefore, it is not even clear whether it was regular promotion or it was officiating on the post of Coaching Clerk as it was done for some of the persons vide letter dated 15.7.1986 at page 22 against para II.
13. Applicant has not even annexed the seniority list issued in the year 1986 to show as to whether he was placed below the direct recruits or above the direct recruits in the year 1986. It goes without saying that when he had earned/accepted his further promotions as Senior Parcel Clerk and Head Parcel Clerk on the basis of seniority assigned to him in the grade of Clerk, it is not now open to the applicant to agitate at this stage that he should have been placed above the direct recruits in the year 1986. If he was aggrieved by the seniority assigned to him in 1986, he ought to have challenged the same in the year 1986. To that extent OA is barred by limitation as far as fixation of seniority in the level of clerk is concerned.
14. Now applicant has built his entire case on the seniority assigned to one Shri Ramji Lal on the basis of order dated 16.5.2007 (page 28). However, in the counter-affidavit respondents have specifically stated in para 9 that even today applicant is senior to said Shri Ramji Lal as applicant's name stands at Sl. No. 38 in the seniority list dated 31.12.2006, therefore, applicant cannot have any grievance. No facts have been given by the applicant as to when Shri Ramji Lal was promoted and who were the persons above whom he has been placed (direct recruits). In the absence o those relevant facts, no comparison can be made with him.
15. It is correct that vide order dated 29.12.2003, applicant's seniority was revised from Sl. No. 96 to 34-A in the grade of Head Parcel Clerk, but since respondents found the same was issued wrongly, they gave show cause notice to the applicant by clearly stating therein that the seniority had to be fixed as per para 302 of IREM Vol.I and since he had completed his training in the year 1986, therefore, he ought to have been placed at S. No. 96. At this juncture, it would be relevant to see para 302, which for ready reference reads as under:
302. Seniority in initial recruitment grades ' Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by that date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se seniority of promotees and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits among themselves. When the dates of entry into the grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se seniority of each group.
Note-In case the training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have normally come to a working post after completion of the prescribed period of training.
16. Perusal of above makes it absolutely clear that in category of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority would be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se seniority of promotees and direct recruits among themselves. We have already noted above that even at the time of issuing the panel, it was made clear that they would have to undergo the training. Admittedly, applicant completed the training in the year 1986, therefore, we would agree with the respondents staht applicant's seniority would have to be fixed with those direct recruits who had completed their training in the year 1986. Applicant has not demonstrated at all as to who were the persons who ought to have been placed below him or above whom the applicant ought to have been placed. Since no detailed facts have been given, therefore, the contentions cannot be tested in view of vague averments. We do not find any illegality in the stand taken by the respondents as far as fixing of seniority of applicant is concerned.
17. As far as further promotion to the post of Parcel Supervisor is concerned, respondents have explained that applicant did not come within the zone of consideration and none of juniors to the applicant in the promotee quota has been promoted so far. Since these persons have been promoted on the basis of seniority list and applicant does not even come within the zone of consideration, he has no right to challenge the promotion given to his seniors. To say the least, applicant has not even annexed the seniority list to show where he is presently placed and where do the persons stand who have been promoted or with whom he has any dispute. His case is absolutely vague as he has simply stated that he should have been placed above the direct recruits. Moreover, none of the persons who have been empanelled for the post of Parcel Supervisor in the grade of Rs. 5500-9000 have been impleaded as a party in the present OA, therefore, challenge to the said panel is not sustainable in law on this ground also.
18. In view of the above discussion, we do not find any merit in the OAs. The same are accordingly dismissed. No costs.
Let a copy of this order be placed in O.A. No. 1556/2007.