Central Administrative Tribunal - Kolkata
Ram Pratap Ray vs Eastern Railway on 1 February, 2024
1 Oia, 3SQ.G02488.2023 with m1. 350.273,:2025, mia. 915.2098 © CENTRAL ADMINISTRATIVE TRIBUNAL. ROLKATA BENCH, KOLKATA No. OLA, 390/609488/2003. Heard on 09.01 2034 With MLA. eT iz 0123 Date oferder: 9 4-02° 2024 MLA350/009152085 Present: 'Hon'ble Mr. dayesh V. Bhairavia, Judicial Member Hon'ble Mr, Anindo Majumdar, Administrative Member I Rant Pratap Ray 2. Tulsi Prasad 3, Surey Eumar 4, Santosh Kumar Sinha 3, Niral Kumar 6. Achinte Garai oi Mahendra. Kiimar Rg. Achinta Kumar Mondal 9, _ Dargs Prasad iG. Satya Prakash Ti. Nita} Rama Tiwari 12. Hiendra Kumar 13, Manoj Kumar Gupta 14, Ajeet Kumar Singh is. Rama 16. Santosh Kernar 17, Praveen Pravakar PS. Une Kant Mishra' 19. Arbendra Kumar 20. Sudhir Kumar 21, Arbind Kumar 22, Partha Majumder Yooendra Vishwakarma Rajesh Kuniar Suman Raja Runiar Rajendra Makate Rajan Kumar Choudhury Ram Kishor Ranjeet Prasad Rajesh Mumar Drarnendra Kaumar Srivastava Mukesh Kumar Shailesh Kasmar Rajesh Kumar Gepal Prasad. Kalyan Prasad Aashish Nath Suman Rajeev Kumar Antiesh Mitunjay Kauniar Mithilesh Kounvar tha Md. Skhahainaddia. 43, Sshtosh RumarPragad = .. 44. Ftensdra Kaimiar 45. Ravinath Kumar 48. Aran Kamar ; BE ZL. bug Tod Ps =~ oA th de ae fe ty UI oe ae a Ge bo A RON dk fed ERS + Rm OD oe mr i mn ah 2 Ga, 350,00848. 2029 with m.a350.279.2093, ma. 915.2093 47, Pinta Ramer 48, Abinash Kumar 49, Rakesh Kumar 50. Sandip Datta 31. Santosh Romer Mazumdar S2. 'Rakesh Kamar 33. Goutan Kumar Mandal 34.. Serendra Bharat 5.. Vined Kumar 56. Debabrata Maji 7. Umesh Kumar 8. Titendra Kumar Singh 3%. Rajesh Kumar Roushan éh. Raju Kumar Singh 61. Randhkir Kamar 82. Bidyut Mandal §3. Firdesh Ah Ansary 64,- Hikrarnjit Chattaraj 63. Aritava Dey 66. Sunil Kumar &7. Santosh Kaunar 68. Rajesh Kumar 69. Shaght Kumier 70. Shashi Kent Singh ii, Sanil Rerar Gupta 72. Sanjoy Kumar Das 73, Sukhwendra Kamar 74, "Manik Das 75. Subhasis Chattopadhyay 76, Bablu Kumar T?. Privy Prakesh f 78 Pawan Kumar 7a. Md. Imran 0, Md, Firog Si. Prasanta Gorai 82. Santosh Kumar 83. Ravi Raj Rumer 84. Navin Kumar SS. Gour Pada Khan 86, Arunesh Chandra Mitra S*. Dyharmenctra Kumar 88. Pssbashis May 89. Manoj Kumar 9). Meanabendra Das oe Applicants. VERSUS- 1. Union of India service through 'The General Manager, Easter Raihvay, Fairlie Place, 17, N.S. Road, Kolkata ~ 760 661. 3 6.8, S50.00948.2023 with ra.a.356.273.2095, nia, 945 2023 2. tat 18: The Secretary, Raibvay Board, Rail Bhawan, "New Delhi ~ 116004, The Director, Establishment (N), Railway Board, Ministry of Railways, Rail Bhawan, New Delhi ~ 110 004, Chief Personnel Officer! Raster Railway, Fairlis Place, 'T?, NUS, Raad, Kolkata -- 70G GOL. The Divisional Railway Manager, Hastern Raihwvay, Asansal Division, Asansal, District -- Paschini Bardhamaii, Pin 7i3303, 'The Senior Divisional Personnel Officer, Bastern Rarhway, Asansal Division, Asansol, District -- Paschim Bardhaman, Pin ~ 713301. . Official Respandents Shri Alok Tiwari, Son of nor known, Working as Loco Pilot Goods (Diesel). Shri Sukhendu Mal, Son of not knowh, Working as Loca Pilot Goods (Diesel). Shri Prabhat Singh, Son of not known, Working as Loco Pilet Goods (Diesel). San ofnet known, Working as. Lovo Pilot Goods (Diesel), Le rt 4 O.@, 350,00348.2023 with m.e.390.273.2033, mia. 88.2083 11. Shri Kaushal Kumar, Son of not known, Working as Loco Pilot Guods (Diesel). Nos. 7 fo 1] are working in the Office of the SSE (LocoVAndal, P.O. & B.S, Andal, District Paschim Bardhaman, (West ee Pia ~ 71332) » Private Respondents For the Apolicants : Mr, SLR. Dutiy, Counsel Mr..B. Chatterjee, Counsel For the Respondents: Mr. AGK. Chattopadhvay, Counsel ORDER
Per Mr. Javesh VF, Bhairavio, Judicial Member:
The applicants. herein {total 90 in number}, whe are working as Loce Pilot (GoodsElvetric} in Asansol Division of Faster Railway being aggrieved by non- consideration of their objectiomrepresentation dated 24.8.2022 (Annexure A/R collectively) to the provisional combined seniority [ist of Dieset and Electric. win ae af Loco Pilot dated 12.8.2022 (Annexure A/T), 15.9.2022 (Annexure A/S), 27,1,2023 (Annexure A/1)) and being aggrieved with the instructions contained in the letter issued by the Railway Board dated 2.6.2006 (Annexure A/2) and $.8.2022 (Annexure AQ) have Hied the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 along with an MLA. No, 350/00273/2023 filed under Rule 4(S)la) of CAT (Procedure) Rates, 1987 te joindly pursue the O.A.
14. On being satisfied, that the applicants share a common cause of action and common interest, the M.A. No, 350/00273/2023 is allowed in terms of Rule 4(3\(a) of CAT Procedure} Rules, 1987 and the apalicants are allowed ta jointly prosecute this O.A. subject to. payment of Individual court fees, oil ba § 0,8. 550.00348,2023 with m.3.d50.273, 2083, ma. 915.9028 In this O.A.. the applicants have sought for the following relief-
ee, An order guashiag -aedor seuing aside ihe inpugned insruction af Railway Board dated 2.6.2006 aad £82022, & win order guashing andor setting aside the impugned Seniority Lists dated £2.8.2023, ETS2022 and 22023, x da order divesting the official responders to prepare Combined seajority List assigning seniority te ihe Loco Bitar {Geods) Dievel from the dare of preparation af Combined Seniority List treating the Loco Plot (Goods) Diesel as redleploped serolas staff ar treating the twe wings merged at the level. af Avsistand Loco Pilot Jrom the date of Circaler dated 26.2006 and granuivg negondl promotokal benefits ta Agsistant Loco Pilots to the applicant in such merged cadre at the level of Assivant Lose Pilois based an date af sniry as Agsistent Loca Pilot é. An order divscting ihe officiel respondents io produce/cause prodacifon of all relevant records, & Any other order or further vrdenorders ag té the How hle Tribunal may seen: fit and proper"
The faets of the vase, ina ma shell, as narrated by the applicants is as under --
34. The applicants were initially appointed through an Open Market Selection conducted by the Railway Reoruitment Board as Assistant Locd Pilot fElectrical} and subsequently they have been promoted ag Loco Pilot (Good), Blectrical, 3.2. The private respondents were appointed as Assistant Loco Pilot (TNesel} and subsequently promoted as Loco Pilot (Gaods) Diesel.
3.3, Further, iis stated that since thei initial appointment as Assistant Lacs Pilot. (Elecirical) / Loca Pilot (Electric) their seniority was maintained separately in the Lovo Electrical Wing by the authorities, Similarly, the seniority of Agsisiant Loco (Diesel) / Lace Pilot Diesel} was also maintained separately in the Loco Tissel Wing.
In this regard, applicants herein vefeired to a chart showing dates of appointment of the applicants as ALP (Slectrical), dates of appoinirnent of private respondents as ALP (Diesel) and the dates of promotion of the applicants and the private respondents as Lovo Pilot (Gods) (Annexure Asi refer).
3.4, The Railway Board Gespondent No, 2 & 3) vide ccmraumication dated 26.2006 (Annexure A/Z) informed the General Manager of all Zonal Railways about the decision of Ministry of Raibvays in respeet to Commend structare, G 0,8. SS0.05348 2023 with m.a.350.272.2023, ma, 915.2023 Promotion and seniority of Lace Running Staff and procedure for writing of ACRs of Mechanical & Electrical Officers looking afler Loco Ruaning Branch, Thé decision. of the Ministry of Railways, as stipulated in the said letter dated 2.62006 of the Railway Board, in respect fo preparation of common seniority list of Assistant Loca Pilot (Mesel) as well Assistant Loca Pitat (Electric) In pay seale of Rs. 3050-4390). and the instructions about merger of the separate cadres which exist-reads as under:
"2. dh continuation of this Minisiry's letter dated 22.9.2004 referred fa above, the Ministry of Railways have taken the following decisions:-
) All new entrants recruited direcily froin oven market ikrouzh Railway Recruitment Boards or by iaduetion by selection fremt Plesel/Eleciric Loco Sheds etc, ag Assit. Loce Pilots (Diesel) and Asstt, Loco Pitots (FE, feetrie) in prede Rs. SUS0-$5904 will be borne in a conunon Seniority, after Bray Rave. passed technical compulsary test for bath tyes ef fraction, Passing techitcal tests for both tenes of traction ptap be dispensed with oa Divisions with only one iepe af fraction or for a temporary period with the personal. upproval of tie General Manaver, ffi) Wherever separate cadres exist ikeir merger, may be cousidered applying anclogy of siub-para (3) of this Ministry's letter No, E(G)-2008E CRT dated 2BAO0G4:
(ti) Coutrat at Divisional Levels-
For day to day werldag electric and diesel crew report separately ta afficers of the twa departments. Fhe dap-te-dap technieal contral of werking includes assigning af dere, performance monitoring, control af feeve, gannal confidential repert ete. Administrative control of the. contre in adivision will be given to the Deptt, Whick has more than 58% on roll staff ity) Control of Railway Board's level:
(@) EDME (Tr)/Ady. Elect. (RS) will deal with all technical matiers vic. Mechanical and Electrical: and (6) AW administrative'establishiment matters shall be deity with by AM (Traffic) with assistance of Mech/Plecirical Directorates. This will invelve, dealing with Unians, 10 hours rule, cadra reviews, training, Guard/Drivers Baxes, Unification of Lobby, crew links'runs, inter Railway transfer of starplinks etc. Joo feniphasis supplied) aH 7 0.8; 350, 00848.2023 with 97.4390. 273.2023, mia. 915.2083 3.5. itis stated that in Asansol Division the ere exists feo departineiis Le. Lace Eleetrical and Loce Diesel and the seniority of ALP (Riectric) and ALP (Diesel)-ag well LP (Electric) and LP (Diesel) were maintained separately being of different andre.
3.6, It is stated that the practice of maintaining the separate seniority of different cadre Le. ALF (Electtic) 2ALP (Diesel) al Asansol Division of Eastern Raihway continued UH the year 221-2022, Further, it is stated that for the first time, the meeting of administration with recognized Unions was held on 23.2.2021 with respect fo implernentation af insttietions contained In Raibvay Board's letter dated 2.6.2006 and merger of two cadres. It is stated that In the said meeting the aubject regarding the pattern of merger af the two cadres as well fining of inter s seniorify in the merged cadra- and other points were discussed and the minutes of the said meeting was signed by the representatives of the recognized Unions as well as senfor officers of the administration-on 29.2.2021 (Annexure 4/3 refer), 3.7. tn the meantime, the Railway Board vide order dated [4.5.2022 (RBE No. 29/2022 (Annexure A/S) by referring to letter dated 2.6.2005 (Annexure Af?) and another letter dated 7.2.2022, had Informed all the General Manager (P) of All Zonal Railways) that as per daia farnished by the Zonal Railways, there are a large mumiber of promctional vacancies in the cadre of Loce Running Staff particularly in the higher grades of Mail Express / Passengers Driver. Loco Ranning Staff bebig critical safety calegory, posts are required to be filled up on urgent basis, as vacancies in the cadre have an adverse impact on train operations, Therefore it is 'stated that urgent necessary action be taken to fill up all promotional vacancies in the cadre.
Purther, it has been stated in the said letter that as per the instructions conlained tn Rathvay Board's letter dated, 2.62006, the cadre/seniority ab Loco Pilots (Electric & Mechanical) were required to be merged. However, dom the position advised by the Zonal Railways, it is seen that these Instructions have not been camplied.on some of the Zonal Railways. It is requested that ingteictons & 0.8, 350.O0388,. 2023 with me. 550.273.2023, ma, 915.2023 may be fully unplemented across all Divisions in your Raihway under advice to Board and action taken in the matter should be infoomed not later than 22nd Mareh, 2022 (Annexure A/S refer).
38. Thereafler, the respondent No. 4 herein ie. Chief Personnel Officer, Eastern Railway vide order dated 5.8.2022 directed the Divisional Raibway Manager, Hastern Railway including the DRM: Asansol Division frespondent' Ne. 5 herein) to implement the instruction of Railway Board for merging of the cadre / seniority of Lace Pilots (Electrical & Mechanical) and also directed the concerned Division to wke necessary sieps ae stipulated in the Order 5.8.2022 (Annexure Ala} which is impugned herein, The afbresaid order reads as undet:-
ae EASTERN RAILWAY No, BE SIMALPOSL Dual Training Koikata, Date $.8.2022 Divisional Railway Manager, astern Kallas Howruk, Sealiek, Asansnl & Maida Sub: Merger af cadveseniarity af Loca Pilots (Electeioul and Mechanical) * With-a view to iinplement the instructions of Railway Board for merging af ihe eadreseniority of Lece Pilois (fleetrical and Mechanteal}, the following steps should betaker b9 ihe Divisions.
rs The endre/sesiority of Loco Pilois (Blectrical & Mechanical) af ail levels should be merged wih immediate sffect and a combined seniority list af Lece Pilats (Electric & Mechanical) should be drawn takline dito account their date of eniry in the existing grade.
a The combined seniority list should be prepared after thorough checking and published by 12.82022 anda capy af the sarne should be pravided ta both the recegaized Unions and the Loeo Pilats for suggestions; if any, within a period af F days.
3 Keeping the oxggesiions: in mind, Diision would publish sorebinel seniority list as per extant rule and represtutation an the said seriovitp dist wauld be invited for Ors next IS days. Further, within next dl? days, combined seniority list shail be published after dispasal of representations, if any.
4, SelectionSuitabdity test far which natifieations fave already been issned should be completed ay par criteria mentioned the partioular notification.
Division. is requested ta cenmunicate the developments iv the above issue at regular piferval fo this office before initiating pramoation in any grade fren: the merged seniority dist
- 3 9.8. 390:00348 2623 with 10.8,.350,.273.2023,.m.a8. 915.2023 This ignnes with the appraval of Campetent dattarigy""
3.9. The respondent No. 5 herein ie. DRM, Asansol Division, Bastern Railway has published the Cantbined Seniority st of LP (M/Exp,), LP (Passenger), Lose Pilot Goads, Loco Pilot (Sr. St), LP (Ste), Sr. ALP and ALP on 12.68.2022 and had informed all concerned at Asansol Division that said Combined Seniarity List be circulated amongst the concerned employees and further intimateto: them. that they are. given 7 days' toe Of iseue of thal Hel to submit their suggestions, if any, against the seniority position assigned to them. (Amiexure A/7 refer) 3.10. It is stated that on receipt of copy of the Combined Seniority List dated 12.8.2022, the applicants herein came to know that the said seniority fist-has been published in respect te employees working at all levels and without granting the benefit of length of servies to the Loca Pilits at all levels including the Loro Pilote (DNesel Wing} in the respective grades ic. the promotional grade Instead of granting the same from the date of redeployment in the grab of merger. Tt has also come to the knowledge of the applicants that the respondents have prepared the said Combined Seniority List on. the basis of date of approval of the panel in reepect to Lood Pilet (Dsl) ete. Therefore, against the said combined seniority list dated T2.8.2022, objection/representations were submitted by the applicants as well the other similarly placed employees jointly on 24.8.2022 (Annexure A/S collectively),
3.il. It is contended by the applicants that thereafter following the aforesaid Provisional Cornbined Seniority List dated [2.8.2022, the respondent No, 5 & 6 fad published Seniority List dated 15,9.2022 and Instructions beve been issued that the same may he treated as final (Annexure A/9 refer}, Further, it is stated that 'the respondents have net considered the representation of the applicant and the applicants herein have not been assigned due seniority, 3.12. Thereafter on 27.1.2023, again the respondents have published combined seniority list of Loco Pilot (Goods) {Annexure A/10 refer} and have invited the suzgestions / sepresentation from the concerned employees. within a time limit of Va . , Re ia. 390.90848,2023 with ma 350.273. 2023, 3. 95.2023 one month. The applicant has alse eontended that. the said combined seniority lst published on 27. 1.2023 is anly a replica of the earlier Provisional Combined Seniority List published on 12.8.2022, since respondents have not taken into consideration the objections submitted by the applinants herein and have continued to published various combined seniority list, Hence, the OA
4. Mc. S.R. Dutta, Ld. Arguing Counsel with Mr. B. Chatterjee, Mr. A, Chakraborty for the applicants mainiy sabmitted that there were no Instructions to merge two cadres of Loco Pilots at all levels and the respondent No. 4 & 5 have erronecusty issued direction for merger of the cadre af Lovo Plats at all levels.
4&1. {tds argued that the merger of two wings af Looe Pilots and publication of combined sentority list at-all levels of Loce Pilots tee wings, by granting the benefits of the length of service in the Grades are arbitrary, discriminatary and game is in violation of-rights guaranteed under Article 14 of the Constitution of india, 42¢ Le: Counsel would vociferously argue that as per the Instructions contained in Railway Board's letter dated 2.62006, be. RBE No. 89/2006, only new enfants recniited direstly from open market through RRB or by induction by selection as Assistant Loco Filot (Diesel & Electric) in grade Rs. 3050-4 590/- their "seniority is required fo be prepared in a combined manner. It is submitted that the Loco Pilot (Diesel/Eleetrig) ie. who were working on or before publication of BE 69/2006 their seniority has been maintained separately at Asansal Division and, hence, it should not be distirbed, 4.3. He also argued that in tenn of the j ingtuctions contained in Ratlway Board's letter dated 2.6.2006 cambined seniority List is required to be prepared only in respect.to the new entrants recruited as ALP (Diesel) and ALP (Electric), In the present case, for merger of exisiing separate cadre and while preparing a eommon seniority lst, the official respondents herein have not followed the instruction cantained in Railway Boards letter dated 2.6.2006 as well Ministry af Railways letter dated 22.9.2004 and now afler a long gap of 17 years vide 7A ' 7 1 G.8, 350,00348,2023 with m.a.350.279.2023, nia, 915.2028 impugned order and publication of the combined seniority list have disturbed the seniority of the applicants and fixing their acnioriny below the incumbents of the Diesel Wing have deprived them of the fire prospect to be considered for promotion to higher post.
Further, it is also argued that Had there been a merger at the entry level in the year 2005, the applicants having entered service in the post of Assistant Loco Pilot (Electric) prior to the private respondents, they would have gat opportunitics to be promoted as Loco Poot (Goods) prior to private respondents, who entered service gibsequent to the applioants got pramation to the post of Loco Pilot (Goods) in the Diesel Wing prior to the applicants and, as such, any merger at the level af Loco Pilot (Goods) granting the benefits. of length of service In the grade of Laco Pilot {Goods) would be arbitrary and unjustified and that is not: in accordance with the spirit of Railway Board's Circular dated 2.6.2006.
4.4. Ld. Counsel for the applicants further submits that consequent uper:. the gradual displacement of diesel engines and switching over to clectrifieation the m smployees working in Diesel Wing have been sought to be shifled in electric wing by providing ncoessary trang in the trains operating on electrical energy. As.a consequence, the said employces/officials working in Diesel Wing were shifted a a pew cadre, Under these circunstaaces, they cannet have a Hen on the posits on elecirical side nor they be entitled to seniority aver the slaff regularly working in ihe electrical lncometives departinent.
To substantiate the aforesaid submission, Ld. Counsel placed reliance on the judgement passed by the Hon'ble Apex Court in the case of VK. Dubey & ors.
"-v. Ustion of India & ore. rendered in (1997) 4 SCC 81 as well the judgment passed in Rama Kant Chaturvedi v. Divisional Superintendent, Northem Railway 1980 Suppl SCC 621, 4.5. It is stated that in Rama Kant Chaturvedi. (supra) the Steam Loco was gradually replaced by Diesel Loco wherein by gradually phasing out the Steam Loco. which was treated as separate and distinct Units'Cadres and the employees GEE ae 0.8, 350.00348,2023 with m.3.956.273.2023, na 915.2028 of Steam Looe were granted Seniority in the then existing Grade. taking int account their leagth of Service in the Steam Loco Unit on merger with Diesel Leco Ut, 4.6. Porther, $018 stated that by referring to judgment passed in Rama Kant Chaturvedi (supra) as well another similar decision. rendered by the Hon*ble Apex Court is the case of South Eastern Railway & ors, v. V. Ramnarain & ors, ete. an argument was.advarced in the cage of V.K, Dubey & ors. v. Union of India & ors. rendered in (1907) 5 SCC 81 by the employees working in Diesel Wing that on absorption in Eleetrie Wing their entire previous length of service cannot be wiped gut causing detriment to their length of service and promotional avenues on account of the change in the polley, the sald contention was decided by the Han bie Supreme Court on 74.1997 with the following observation, which reads as under:
"Sari Pipa Bahuguna, iearned senior connsel appearing jar the anpellanis, contends that since they had Devs working on the diesel xids for a long number of ears, merely becouse they were sent touraining for three mouths tobe absorbed in the election locomotive. operations, their entire. previous fength. ay" service cannot be wiped aut causing detriment to their length af service and promotional avenues on aecount ofthe change ix tie polio. Therefore, the wew taken by this court reguires reconsideration We find ma forse in fhe contention, J? ie seen that the diesel engine drivers and the. staif working with chem operates in one seatar, nosnedy, diesel lacomotive sector, while electrical engine drivers and the wage operating on the electrical engines opérate on a different seater. Consequent upon thé gradual displacement of diesel eipines, iastéad of retronching than servicer they were sought lo be absorbed by giving necessary mdiring in the Paine operating on electrical energy. As a sonsequence, they were shified to a nei cadre, Uneler these cirewmstances, they cannot have a Hen on, fhe posts on lectrical side nor they be entitled to veniortty ever the salt regularly working i the dedipieal locomotives department. Under shose ofrcunshances, dx court. Ag held that ihey cannot have a sentorite aver tei..."
Therefore, the Ld. Counsel for the applivants would submit that on merger of Diesel Wing with Electric Wing, the official working under Diese! Wing such as the private respondents herein ought not to have been allowed to gain higher seniority than the applicants herein who are working since long in Electric Wing. 4,7, In sum, it is averred by the applicants that the impugned previsional combined seniority list.ua well the instructions issued by the oficial respondents for merger of cadre at all levels, impugned Herein is arblirary and in violation of , - 33 ba. 350. 003482023 with ma 350.273.2023, ma. SIS2023.
Article 14 of the Constitution of India and thus the same. ia required to be quashed and set aside.
8 Fer contra the official respondents have filed their reply and denied the claim of the applicant, Shi AK. Chattopadhyay, 1d. Counsel forthe official respeéindents by referring te the contentions stated in their reply mainiy submitted as under:
5.1. That prior te publication of the combined seniority list, which is impugned herein, the Asansol Division maintained separate seniority lists for Loco running slaff in respect to Electric and Diesel wing of Asansel Division of Eastern Ralfway asl promotions were given in respective cadre of respeetive department as aad when vacancy in the respective cadre arises and they were assigned seninrky in their parent cadre of the department accordingly.
§.2. Further, it is stated that vide order dated 38.2022 (Annexure RY/3 refer) the respondent No, 4, ie. CPOAR Kolkata directed the respondent No. 5 Le. BDivisional Railway Manager (Howral/Sealdah'Asansol/Malda), Eastern Railway to implement the instructions of the Railway Board contained in RBE No, 69/2006 for merging of the. cadre/senlority of Loos Pilots (Elect & Mech) and for it different steps to betaken by the Divisions which include thst the oadre/soniority should be merged at all levels with immediate effet and a combined seniority ist of Loes Pilots (leet & Mech} should be drawn taking info account thei date of entry in the existing grade.
5.3. Avcordingly, a provisional combined sentority list of all the Loce Pilots from the cadre of ALP to M/Exp, Of both the wings was prepared in terms of direstions of CPO/DR and published on 12.8.2022 (Annexure R/4 refer) Inviting suggestion on the same from the Staff/Union sids within the stipulated time. Subsequently, representations were received from the siafls which were duly scrulinized. Since, no substantial grounds could be put forth by the staff, the final combined seniority fist on the basis of entry to a particular cadre as per pane seniority as instructed by Headquarter. was published for both Electric & #4 34 G8, 350,00348 2023 with m.a.350.273.2028, mia. 915.2023 Mechanical Wing vide Office LéNo. EL/Combined Seniority (E+DV2022 dated 15.9,2022 (Annexure B/5).
§.4. It is stated that @ joint meeting with both the Recognised Unions was held on 21.9,2022 on the subject of merger of cadtes/seniority of Loco Pilots (Blecirical / Mechanical) and issuc was thoroughly diseassed.and both the Unions agreed that. the method of drawing combined seniority list of Loco Pilots Electric & Diesel) shall be taking into account the date of entry in the existing cadre. By referring te the said details about the method of drawing combined. seniority Het, the espondent No. 4 vide letter No. R834 ALP{Ds] Dual Training dated 29.9 2022 (Annexure R/G) directed the DRMs. of various Divisions including Asansol Division 4) Te furnish the latest vacancy position in Lace Pilot.cadges in each category separately for better appreciation of the position (i) While drawing the combined seniority Ht was decided that the date of entry In the existing cadre of Lace Pilots shall be taken into account as agreed upon by both the Unions and in ihis otmnection H was directed that the provisions contained in Srl No. 320. of Chapter IH of (REM (Val. D may be followed.
{t ig stated that the copy of the said letter dated 29.9.2022 issued by respondent No. 4 was also sent to the General Secretary of Easter Railwaymen's 'Union, Howrah as well Eastern Raiiwaymen's Congress, Howrah for. their information. Accordingly, in cemphance of directions issued by the respondent No. 4, the on ambined i seniority list of Lace Pilot of both the Wings i.e. Electrical & Diesel Wing has been prepared and finally published based on the date of entry of the employee in the existing cadre. Therefore, the impugned combined seniority list is DA consonance with the poliey of Railway Authorities ae etipulated in RBE No. 69/2006 and as per the terme of IREM that too by granting due opportunity te the representatives of staffs of botly the wings. Thas, itis not correct an the part of the applicant to contend that the respondents have arbitrarily and in contravention af terms of the policy issued the impugned combined seniority Hst of Lace Pilots ye working under Asansol Eivision.
15 pea, 350.00348. 2023 with m.a.350.273,2023, ma, SIS 2023 S53, The respondents would farther state that previously there was no guideline regarding the merger of seniority from Sr. ALP to Loco Pilot (Shunting} to Lovo Pilot (Goods) to Loce Pilot (Pass) to Loco Pilot (Mail/Exp) the promotion to the higher cadre from Sr. ALP was carried out separately for both the wings. as per the vacancy in the respective wing/cadre.
3.6. i ip submilied that before the merger of the seniority of ALP & St. ALPs af both the wings was taken at the Headquarter level ag por the communication dated 15.1.2016 as well letter dated 12.12.2019 (Annexure R/L & RY refer). Vide suid letter Eistructions were issued regarding promotion of ALP to.the pest of Sr. ALP irom the merged seniority und other guidelines regarding the selection procedures. However, no farther guidelines was received regarding merging of seniority for the post af above Sr. ALP and the same was subsequently received vide letter dated $.8.2022. It is reiteraied by the respondents that before the merger of the two wings, staffs were promoted against the vacancies in thelr reapective cadres by formation ofa panel and were depliyved in their respective cadres on resumption af independent charge (1.2. date of entry to the grade).
In this regard, the respondents also. relied upon the Memorandum dated {8.1),.2022 issued by the GAied of Principal Chief Personnel Officer, Kastern Raihway in comiection with Crew Review of Power Running Stal? of Eastern Raihvay for Mechanioal and Blectricsl Wings requirement and sanction of Love Roaming Sigil (Electric) and (Diesel) for all the cadres from ALP to LP (MailExp.) separate command. structure wet 121.2022 and, as such, no stat? has been declared surplus from Diesel / Electric Wing (Annexure R/8 refer).
ST, It ts stated that the merging of seniority of bath the wings has been done to safeguard the promotional prospects of the staff of both the wings as they will new be promoted to higher grailes by being eligible against the consolidated vacancies arising fromy both the wings and this will satisfy the apprehension of the staff claiming disparity in the promotional avemie in comparison to Diesel Wing and pr wee-varga,
--_ Fa O.8. 35G, 00388. 2025 with n1.a.350.275.2023, nd, 935.2023.
= 5.8 dt is also submitted thal there is ao question of discrimination regarding promotion, as the stall have been promoted in their respective cadres as per the available vacancies at that material ime and are placed above or below in the Combined Seniority according to date of entry into the respective grade taking the basic principle of paricl position into consideration. [is reiterated that the date of approval of panel along with the date of entry to the grade was taken as a base for assigning of seniority to avoid any disparity within the panel seniority of the cadre. asa ctaff empanctled in the same panel have different Independent charac/date of entry fo a parueular grade and thereby protecting the basic principle for assigament of seniority in terms of relevant rules.
$9, It is also emphasized by the respondents that during preparation of the Cambined Seniority List the date of entry to the grade was taken as the date for assigning of the seniority that too considerite the date of approval of the panel. The decision to merge the seniority of both the wings is not u any wey impalsive step t¢ formulize the seniority but it is the constructive approach taken by the Asansol Administration urider the guidelines of Eastern Railway Headquarter in adberence to instruction contained in Raibvay Board's circular RBE No. 69/2606 and 29/2022 (R/9 refer} to, provide an equal opportunity to sll the staff of Loco 'Ransing Cadre of both the wings for promotion in higher grades from the combined seniority and cunsolidated vacaucics of both the wings (Electrical and Therefire, itis submitted by the respondents that the Combined Seniority list published by the respondents is in consonance with the decision of Ministry of Ralfwiys as communicated vide RBE. No. 69/2006. and 29/2022 and the applicants 'are fot entitled for any relief as claimed in the OLA. Henes, the appiicants are aot entitled for any relief'and sought for and interim reliefas granted by this Tribunal is required to be vacated as well by dismissing the O.A.
6. The private respondents have supported the submission of the official respondents.
Purther on bchalf of the respondents, copy of letter dafed 27.12.2023 issued by Sr, 'Dp ar a; SO 0348. 2083 with 91.3,950,273.2029, ma, 915, 2023 Divisional Personne! Officer, Eastern Railway, Asansol has been brought on record and the Ld Counsel would submit that there exists 88 vacancies of Loco Pilot (Passenger/Motar Man} in pay level ~ 6 in Electric (OPN)/Depe. by suitability test with prescribed berch mark. Further, inthe said letter it has been stated that list-of 88 nos: of carididates as per the seniority dnd whe fall ity the zone of consideration for promotion to the post of LP Passenget/Motor Man) has been attached and it has been directed that the said. candidates were not required to attend the suitability test physically. Purther, in terms of RBE No. 144/03, aptitude test/psyclie test will be applicable at the stage of promotion fo the post of Motor Man in level 6 and only those serving LP Goods) who have passed aptitude test will be eampandiied as Motor Man in fevel 4. {f was directed that the staff convemed under the zone of consideration may be intimated accordingly. It is also clarified in the said letter that the result of suitability test will be purely provisions! subject ty fal oufcame af O.A. 3489/2023 pending before CAT/Kolkata Bench. Ry referring to the said ledter-it has been contended on behalf of the. respondents that the vacancies of Loco Plot which could not be fled up due to pendency of the present O..A., requires to be filled up af the earliest. Thetefore, considering the explunstion in the reply of the respondents the prayer sought by the applicants is not tenable and the OVA. be dismissed accordingly, Fi The applicants have filed the rejcinder and reiterated the submission made in the O.A. Additionally Ld. Counsel for the applicant submitted that 1 is wrong on the part of ihe respondents to aver that the seniority of the Loco running staff was maittained in the respective department (Diesel & Electrical wing) for all the cadres of the Loco. running stalf baring the seniority of the ALP and 8x ALP which was merged on. the basis of instruction contained in letter dated 15.1.2016 {Annexure R/1), His denied by 'the appleant that the staff are being promiated from the combined seniority of the ALP tp Sr:
AIF cadre, ff is stated by the applicants that the annexure 1/2 referred by the respondents in thelr reply docs not say that the promotion fram ALP to Sr. ALP to be made from the combined seniority list as such the same was never prepared prior to 12.8,2022. The said HA 48 Ga, 3S0,00346.2025 with ma. 980.273.2025, nia. 915.2023 clroular ie, R/2 dated 12.12.2019 is contrary to the intent and purport of RBE Noe.
72006.
Further, Ld. Counsel for the applicants submiis that since the promation avenue for ALP, Sr. ALP to the past of LP in Diesel Wing was much faster than thet of the Electric Wing, the ALP/LP will be deprived of proper seniority if the Impugned. combined seniority be allowed te exist. In this regard, tt is reiterated by Ld. Counsel for the applicant by referring te Anmexure A/1 that for example. applicant No. 1 bas been 'placed at By, No. 221 in combined seniority list who was appointed as ALP (Eisctrical) on 62.2006 and was promoted as Loco Pilot (Electric) on 10,1.2013 whereas one Alok Tiwari of Diesel Wing who was appointed as ALP Dlesel'on 9.9. 2006 and was promoted ey as Loco Pilot (Diesel) on 1.9.2014 but his mame has been placed at Sei No. [77 i cosmbined seniority list based on dete of approval ofthe panel i.e. on 20.12.2011 whivk is erroneeus incthed adopted for preparing the combined seniority more partloularly by faking into. account the date of entry in the existing cadre (including the date of approval af the panel, if such ciraumistances the seniority of the applicants who are in Electric Wing Has been jeopardized and they will lose their might for being promoted to higher post due fo assignment of lower seniority in the impugned combined seniority lst.
&, Heard the E.d. Counsel at length and perused the material on cacard.
%, te is noticed that due to electrification af Luocmotives at large scale id Indian Raibway, the dicgel tractions are being progressively converted inte electrified Sections. Thus, it becomes important for the Reihvay autharitics to cope ap with the advanced technalogy as well to have suitable work force for srinoth functioning of the Railways which inclades management of Loco Running Staff (Diesel & Electric).
93, Acoardingly, in order to have adequate number of Loco Running Staff, the competent anthority je. Ministry of Railways Rave taken a poliey decision vide RRE No. &G/2006 dated 2.62008 (Annexure A/2 refer) that wherever separate cadres exists, their merger may be considered applying analogy of sub-pard Ci} of the Ministry's letter dated $2.9.200M, In addition to it, it has also been decided by the Ralbvay Board that all new entrants recruited directly from open market through Raihyay Keoniliment Board or by a9 @.8, 350.00398. 2025 with ma. 350.273.2028, nia, 915.2023 induction by selection from Diesel / Electrical Loca Sheds ete, as Assistant Loco Pilots (Hesel} and Assistam (Loca) Pilot (Electric) in grade Rs, 3030-4590/- will be born in common seniority, after they have passed technical compulsory test. dor both types of traction, passing teciwnical tests. for both types of traction may be dispensed with on Divisions with only one type of traction or for teriporary period with personal approval of the General Manager.
Tioan b& seen that the Railway Board had decided that wherever separate cadre exists their merger may he done by covsidering the analogy as stipulated in qub-para @) of Ministry of Reibvay/Railway Board letter dated 22.93.2004. On perusal of the said instruction stated in letter dated 22.94.2004 at Divisional level the command structure of Loco Running Staff were ordered to bo under Sr. DME/Srn DER Le. for Diesel Losomotive under Sr. DOME and for Elecirie Locomotive under Sr. DEE. The adnunistrative control of the respective running staff will be under Se. OME/Sr. DEE and depending upon the strength of Diesel/Eleotric Loco Running Staff / unification of administrative contra] also be considered, and the propertion at which the switching over shall be made, will be decided by the General Managers. At the same time, while authorizing the CME/CEE for technical control of Loco Running Staff at Zonal/Headquarter. level depending upon the type of fraction, as well as the administrative. cantrol of alf drivers has been. directed to. be under the CMO/COM at Zonal Level. The said COM will be assisted by officers fron: Electrical and Meshanival department, 9.3. it can be seen that the competent authority has authorised t merge the existing cadre of Loco Running Staff of Diesel & Electric Wing at all Zonal & Divisions of Railways in India, which includes Eastern Railway and its Divisions. Further, for the Nanagement of Loce Running Staff (including the existing cadre} have. authorived General Manager and others Senior Officers of the ooncerned Zones & Divisions. In other words, the competent authority had taken a policy decision to merge the existing cadres of Loco Running Staff (Diesel & Hlectrieal) and for the said management of stall, including separate existing cadre at the Zonal Headquarter level/Division level, General pat ma. 350,00348.2023 with 0.a.$580.273,2025, na. 315.2025 fi {anager and other senior officers. of the Railway ha ag been authorized by dhe competent authority. It is also noticed that in order to implement the decision of merger of separate existing cadre and publishing of combined seniority-of both the cadres, the. Railway authorities had also issued subsequent direction in this regard vide RBE No. 29/2022 dated 14.32.2022 {Annexure A/S refer) 9.4 At this stage, it is required to mention that an ermpleyer has a right to merge or integrate different cadres info one single cadre or to split a single cadre into different cadres for rationalizing administration as held by Hon'ble Apex Court in catena of pidgmeats [Reserve Bank of India v. N.C. Paliwal (1076) 4 SCC 838, 8. Murugan vy. Union of Dethi (2002) 10 SCC 96. referred], Further, whether there should. be merger or not is a matter which is exchisively within the domain of executive policy [K. Rabindranath Pai v. State of Karnataka (1995) SCC (L&S) 782. Tt is apt te mention that ihe merger results in fusion of the nwo cadres into one single cadre as held by the Hon'ble Apes Court in the case of State of West Bengal v. Subal Chandra Das. [(1996) SCC (L&S) 486).
9.5, In the present case, it is noticed that in light of policy decision asx contained in RBE No, 69/2006 and 29/2022 to merge the exisdng cadre of Loco Running Staff {including Loco Pilots {Diesel} with Lece Pilots (Blectris), the respondent No. 4 ie. Chief Persunne! Officer, Rastern Railway vide impugned ordere including order dated $2022 directed the DRIMs of variuus Divisions including Asansol Digisian. of Eastern Lat Railway for uisrger of two oxisting cadres and in this connection vide letter dated 29.9,.2022, the respundent No. 4 had also directed the DRMs of the Division that the method of drawing combined seniorily list of Love Plots (Bleotrical & Mechanical} shall be by taking into to account the date of eniry in the existing cadre and the conditions stipulated in Sri Wo. 320 of REM Vol. I be followed fur drawing the combined seniority of each category of Loco Pilots, In our considered opinion, the said decision of merger of the two existing cadrea of Loco Pikwts (Diesel & Electrical) in Eastern Railway, undispitedly heing a policy decision, is within the domain of the Railway administration, We, thus, hold that the decisions of merger of the two cadres of Loco Running Stall o ps _ arenas, 24 Og. 350.00348.2023 with ma. 350.273.2025, ma, 945.2003 (Diesel d-Blectrioal) of Asansal Division, Eastern Rallway issued in terms of RBE No, 69/2006, RBE No. 29/2022 and the order dated 5.8.2022 & 29.9.2022 in this regard being thé policy decisions of the Raihway authorities and same is within thei domain. 9.6. Further, tn aus considered opinion, the decision of merger af both the sadtes which has afready been implemented in most of the Zones of Railways that too with cus. consultation with the recognized Trade Unions cannot be said to be arbitrary and dehors the rules. Even otherwise, in light of the dictum laid down by the Han"ble Apex Court, we deem it fit net io interfere with the said policy decision of the Raihvay authorities.
Therefore, the challenges to the legality of decision of merger of cadre of Loco Running Staff Including Loco Pilot (Diesel) with Looe Pilot (Electrical) at Asansal Division, Bastern Railway is not tenable. |
16. ILalse enierges from record that on merger of cadre of Loco Running Staff (iesel & Eleotricaly of Asansol Division of Eastern Railway, the respondent No. 5 Rerein had published the combined seniority. list of the merged cadre and had invited suggestions representations from the concerned staff The respondents Reve received representation from the concerned staff as well the Recognised Raiiway Employees. Unions. In connection to it, ajaint meeting with the ibwo Recognised Unions of Eastern Railway was also held. on 21.9.2022. Ag per the decision amily ed during the said.meeting with the recognized Employees Union, ihe respondent No. 4 vide his letter dated 29.9.2022 (Annexure R/S}, informed the DRMs of all four Divisions ofEasiem Railway including Asansol Division and copy marked to General Secretary of both the recognized Railway Unions to the effect that "daring the joint meeting on the subject of merger of cadre und seniority of Loco Pilows (Electrical & Mechanical, which includes Diesel} if was decided that the method of drawing af combined seninrity fist of Loco Pileis (Rlectrical & Mechanical) shell he dene by taking inte account the date oF entre in the exising cadre.
Further, iis .alse stated in the said tetter dated 20.9:2022 that "while drawing the combined seniority for cach category of Loco Pilots the provisions contained in Sri. No, 320 of Chapter TH of REM (VoLD be followed." (Annexure R/6 refer} io ze Ga, 350,00348,2023 with ma 350.273.2023, na 98.2083 16.4. At this stage, it is apt to mention that according to the official respondents the impugned combined seniority list ie. Inter se seniority of avo different Units, Loso Running Staff (Diesel de Electrical) has been prepared and notified by follawing the provisions stipulated in Rule as well as per the decision agreed upon in the joint mesting * with Railway Emplovees' Union. Therefore, we. deem iH appropriste ta refer to the relevant provisions of Srl. No. 320-of Chapter I of REM (Vol. Pp which reads as under
"320, RELATIVE SENIORITY OF EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENTORITY UNITS APPEARING FOR 4 SELECTION NON-SELECTION POST IN HIGHER GRADE Wher @ post (selection as well as won-selection) is filled by considering staff of different seniority onits, ie total length of continuens Service in the sanie or equivalent prade held by the employees shail be ihe determining factor for assivning inverse seniority lvespective of the date of confirmation of an employes with Je lesser length of continuons service us compared ta anather nNconfirnied exmplayer with longer leneth of econtinuens service. This is subject ip the provisa that only non-foruntous service shauld be taker into wocount for ils purnose.
Nove -~-Nen-fortultous service means the service rendered aller the date af regular promotion after due process.
ti. It can be geen that while aysiening inter se semiorily of the staff of different seniority unit it has been stipulated in the aforesaid rule that the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor respective of the date of confirmation of an employes: with lesser length of qntimious service. as compared to another unconfirmed employee with longer length of continuous gerviec. Accordingly, the respondents have taken into consideration the date "approval of the panel as the date of entry into the cadre and have fixed the inter se seniority io the Lovo. Pilots (Diesel & Electric) aa is evident from the Combined Seniority list published by the respondents a 12.8.2022, * Tn the said Combined Senicrity List the name of private respondent No. ? herein namely Alok Tiwarl bas been placed af Sri. No. 177 since hie name figured im the aporoved panel for dus past of Loom Pilot (Goods) (Diesel) on 20.12.2011 whereas the name of applicant No. 1 herein Le. Shri Ram Pratap Ray, his name figured at Sri. No. 211 in the combined seniority list since his name figured in the approved panel dated 2.12012 23 Ga, FS0.00348.2023 with m3 396.273.2085, ma, VES.2023 of Lace Pilot (Goods) (Electrical), In the same manner, the inter se sentority of LP (Diesel & Electrical) has been assigned in the impugned combined seniority list. It ig reitarated that in the said combined seniority list, the respondents have categorically = mentioned the date of approval of the pane! of respective Loos Romning Stary,
12. In.our considered view, for determining inter se seniority of the apelicants berein as well ike private respondents as well other similarly placed Loca Running Staff of Asansol Division, the respondents have followed the rules .as stipulated in Sef. 320 of TREM Vol. I as well as decision taken in the joint meeting held with the recognized Unions of Bastern Kailway, Further, upon merger of the cadre, the inter se seniority is required to be determined in terms of provistons of the Rules. Since, both the cadres are merged the ssniarity of the Loco Running Stal has been determined by the respondents in teres ef the rules and the combined seniority Hst has been published including the existing Loco Running Staff which also inchides the applicants, as well the: private respolidents. Therefore, in out considered view, the respondents, have adopted the balance between both the cadres to protect their Inter se seniority and their prospects to he considered for Airther promotion, the action of the respondents to merge the cadres cannot be said te he in violation of the policy of administration and as.such the action of publication of the Combined Seniority Jit Is in comadnance with terms of the policy decision as well the rules prescribed: in REM, it is also important to mention that if 8 sctiled principle of law that the Inter se seniority. between the two group of employees of the department will have to be determined in aocordance with the Rules. Thus; the impugned order and the seniority et cannot be termed to be arbitrary and violative of Article 14 & 16 of the Constitution of India contrary to the applicable extent rules. Thus, ihe submission of the apphcants that the respondents have not followed the guidelines contained In RBE No. 69/2006. in respect to maintaining the combined seniority of existing cadre is not tenable.
'a i 24 0.8. 350,00948.2023 with na. 350.974.9023 mg, 815.2023 13, The judgment relied upon by the Ld. Counsel for the applicant in owt considered view, same does net come to the aid of thé applicants. It can be seen that the Railway Board vide their policy decision dated 2,6.2006 had decided to fame a policy for merger of both the cadres of Loco Running Staff (Diesel & Electrical) and had decided ta indintain-e combined seniority list in terms of conditions stipplated in Rule 320 of REM Vol. Land that too by takine into consideration the relevant date of entry ints the cadre. "therefore, the submission of Ld, Counsel that in order to merge hoth the cadres in light of RBE No, 69/2006 and the judgment relied upon, the Lace Pilats (Diesel) ought to have been dovlaréd surplus and thes assigned bottum seniority while preparing fhe combined eniority Het is also not acceptable.
~ Le 14, In Right of what has been discussed above as also taking into consideration the dictum laid down by the Hon'hle Apex Court im respect to lanted seape of judicial review in. policy matters of the employer and in absence of any evidence of arbitrary decision on ihe part of the respondents, we restrain cursebves froin interfering with ihe action of the respondents in. determining the relative inter se seniority of Loco Running Staff (Diesel & Electrical) and publishing « combined seniority of Loce Pilot {Goods} (Otesel & Electrical), Asanaal Division of Eastern Railway upon merger of both the existing cadres:
1S. 'Thus, the OA lacks merit and is accordingly dismissed. Tt is open for the respondents to act upon the combined seniority list of Loco Running Staff of Asanso! Division, interim reliel, if any, stands vacated.
Majumdar) Administrative Mem her Judicial MemAer ap