Central Administrative Tribunal - Kolkata
Souvik Basu Roy vs Eastern Railway on 2 May, 2023
- CENTRAL ADMINISTRATIVE TRIBUNAL.
_ KOLKATA BENCH KOLKATA 1 a 1639/19, 1640/19 Date of Order: 02.05.2023 Coram: -Hon'ble Mr. Manish Garg, Judicial Member. Hon'ble Mr. Anindo Majumdar, Administrative Member (1) 0.A./350/01639/2019 (2) 0.A./350/01640/2019 . Vs. Souvik Basu Roy, Senior clerk, GM(ST) Office, Eastern Railway, Kolkata, Pin-700001, resident of 64/1C, Garfa Main Road, Kolkata-
700075.
Sucharita Das, Junior Clerk, GM(ST) Office, Eastern Railway, Xolkata, Pin-700001, resident of N. K. Apartment, T. T. Road, Shyamnagar-
743127.
vee Applicants
1. Union of India service through the General Manager, Eastern Railway, having his office at 17, Fairlie Place, Kolkata-7 00001.
2. Principal Chief Personnel Officer, Eastern Railway having office at 17, Fairlie Place, Kolkata-700001.
3. The Assistant Statistical Officer, Eastern Railway, 17, Fairlie Place, Kolkata-700001. oh ~~ oe Respondents (3) 0.4./350/01728/2019 (4) 0.4./350/01729/2019 Vs. For The Applicant(s):
For The Respondent(s):
2 1639/19, 164C/19 Souvik Basu Roy, Junior clerk, GM's (ST) Office, Eastern Railway, Kolkata, Pin-700001, resident of 64/1C, Garfa Main Road, Kolkata-
700075.
~Sucharita Das, Junior Clerk, GM's (ST) Office, Eastern Railway, Kolkata, Pin-700001, resident of N. K. Apartment, T. T. Road, Shyamnagar-743127. | ... Applicants 1} The Union of India service through the . General Manager, Eastern Railway, Fairlie Place, Kolkata-700001.
2) The Assistant Statistical Officer, Eastern Railway, Fairlie Place, Kolkata-700001.
3) 'The Chief Personnel Officer, Eastern .-Railway, Fairlie Place, Kolkata-700001.
-- Respondents Mr. S. Roy, Counsel ~ Ms. T. Mukherjee, Counsel RAT 3 1639/19, 1640/19 ORE ER (ORAL) Per: Hon'ble Manish Garg, -iudicial Member OA No. 350/1639/2019 & OA No. 350/1640/2019 The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following common relief:
"B.1 To quash and set aside the impugned speaking order dated 31.10.2019 rejecting the representation of your applicant and reckoning (he seniority from attaining 18 years of age by giving complete go-bye to the Office Order no. 8 dated 26.06.2014 and relevant circular of Railway Board and provision of Rule 302 of [REM Vol. 1.
82 To set uside and quash the modified seniority list dated pubiished on 02.09.2019, which was given retrospective effect from 01.01.2015 in suppression of the seniority list dated 01.01.2015 without any valid reason and in blatant violation of Raihvayv Board's letter no. F(E) 111/825R/1 dated 07.08.1982. Provision af Rule 302 of IREM and Office Order no. 8 dated 26.08.2074.
83 Show cause in terms of prayer 8.1 and 82 and after hearing the cause make the rule absolute.
8.4 A direction as to costs of the proceedings to the applicants.
8.5 Any further order or orders, direction or directions as the Hon'ble Tribunal may deem fit and proper for the ends of justice."
2. As common question of facts and law govern these matters, these cases are being heard out analogovsly, to be disposed of by this common order at the admission stage.
3. For the sake of brevity, facts in OA 350/01639/2019 are being delineated and discussed as hereunder :-
3.1. Learned Counsel for tic applicant(s) submits that the applicant is aggrieved by the fact that, in spite of his representation and objection dated 39.09.2019, as called for, against the modified provisional seniority published on 02.09.2019, the same has been viven retrospective effect from 01.01.2015,
4 1639/19, 1640/19 by impugned Speaking Order daicd 31.10.2019 in blatant violation of the Railway Board's letter no. I'(]t) 1!!/825R/1 dated 07.08.1982, provision of Rule 302 of IREM and Officer order no. 8 dated 26.08.2014, by Assistant Statistical Officer, Eastern Rai! way, i.e, the respondent no. 3 herein. 3.2 To substantiate the case of the applicant(s), Learned Counsel for the applicant argues that the impicnec rejection order is contrary in nature in as much as wherein on one hand the respondents are categorically saying that "for the purpose of appointmeni. ho:vever, your seniority will be reckoned from the date your attain 18 years of age and the service up to 18 years will be counted as Qualifying Service'. and on the other hand, in accordance with the same speaking order, modified ihe seniority list which was issued on 02.09.2019, 3.3. Learned Counsel for the applicant(s) further draws a reference to the fact that in the Provisional Seniority List of 2015 (Annexure-A/3), the applicant was shown at sl. No. 2 and in the present modified (provisional) Seniority List (Annexure-A/4} , his seniority has been changed to sl. No. 4. He also draws our attention to the rule position of the Railway Board in its letter no. F(E)I/82/SR/1 dated 07.08.1952, which has been reproduced as under :-
"Sub- Fixation of Seniority of Staff cppointed to Railway Services below Minimum age limit.
On a question having been raised as to how the staff appointed to railway service below the prescribed minimuii age limit should be assigned seniority, the matter was referred to Railway Board who have decided that under age service of an employee will count for the purpose of seniority. In other words, seniority of such employees will count from the date of appointment (o railway service."
Learned Counsel for the applicant(s) further refers to Clause 20 of the said Railway Board's letter, which is reproduced as under :-
'20. Commencement of qualifving service - Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of 5 1639/19, 1640/19 the post to which he is first uppointed either substantively or in an officiating or temporary capacity;
Provided that officiating or icimporary service is followed, without interruption, by substantive appointment in the same or another service or post L Provided further that -
(a) In the case ofa railway servant in a Group D service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17 April, 1950, service rendered before attaining the aye of sixteen years shall not count for any purpose; and
(b) In the case of a railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (Authority: Railway Boarc's teiter no. F(E)HI/99/PN 1/(Modification) dated 23.05.2000)
(c) the provisions of clause (b} shall not be applicable in the cases of counting of military service for civil person under rule 34." yalstta, ve ih '~ 3 + iS c 5 rc) S oat Os .
Teeke 3.4 Learned Counsel for the applicant(s) further draws reference to Office Order no. 08 dated 26.08.2014, which is reproduced as under :-
" SASTERN Railway No. ST/E/Misc/05/Grievance/Pt.ull Kolkata, dtd. The 26% Aug, 2014 Office Order No. 08 The seniority of Sri Souvik Basu Roy, Jr. Clerk and Smt. Sucharita Das, Jr. Clerk being appointed in underage were earlier assigned according to their date of attaining 18 years of age in terms of their respective appointment letters. Now in terms of CPO's letter No. E.1030/0/1/PtI, etd. 05.05.2014 "seniority of the staff concerned should continue to be assigned in such cases from the date of appointment to Railway Service ie, the date of joining the working post after due process, which is the sole criterion for assigning seniority in initial recruitment grade as per Para 302 of IREM, Vol-I as contained in GM(P)/N.Rly's Serial No. 8150."
Therefore, the seniority of Sri Souvik Basu Roy, Jr. Clerk and Smt. Sucharita Das, Jr. Clerk are to be reassigned according to their date of appointment. The seniority list of Jr. Clerk may be rectified immedictcly.
Sd/-
Asstt. Statistical Officer Eastern Railway, Kolkata"
3.5 In the light of the aforesaid submissions, the sum of substance of the arguments of Learned counsel for the applicant(s) is that, the period of two _years ie. from the date of initial appointment at the age of 16 years till attaining the age of 18 years, should be counted for the purpose of seniority and therefore he prays for quashing and setting aside of the modified oh, Vw } < + ai 6 1639/19, 1640/19 seniority list dated 02.09.201°. No further argument or points have been urged.
4, Per contra, Learned Counsel for the respondents relying on the averments would contend that the present original application is not maintainable in as much as she relics upon para 7 and 8, which is reproduced as under :-
> ere seseeaees It was specifically stated in the said Office Order that 'the lower age limit and educational qualification of Sar: Basu Roy have been relaxed by the competent authority and his seniority will be reckoned from the date of his attaining the age of 18 years. The service upto 18 years will not be counted as qualifying service'.
8 That the seniority in initial recruitment is governed by the provision of Rule 302 of IREM Vol. 1 which starts with the words like 'unless specifically stated otherwise' the seniority among the incumbenis of a post in a grade is governed by the date of appointment to the grade. In the instant case it was specifically mentioned in the Office Order dated 21.06.1995 that the seniority of Basu Roy will be reckoned froin the date of his attaining 18 years of age and his service upto 18 years will not be counted as a QUALIFYING SCIVICE. ceceeeecseteneretstetcs ete
5. Heard Learned Counsel for the parties at length. Perused the documents on record.
6. Analysis:
6.1 On bare perusal of the Railway Board's letter no. F(E)II/82/SR/1 dated 07.08.1982, as highlighted hereinabove, subject- Fixation of Seniority of Staff appointed to Railway Services below Minimum age limit, it is crystal clear that the respondents have categorically admitted the fact that seniority of such employees will count from tie date of appointment to Railway service.
6.2 In reference to the aforesaid, it can be safely assumed that the rule position required to be read as above that, since the applicants were appointed at the age of 16 (bcing minor) under the Sports Quota, after giving appropriate relaxation, thereaftsr, an Office Order regarding their appointment stating that the scrvices upto 18 years will not be counted as 7 1639/19, 1640/19 qualifying service in the Office Order dated 21.06.1995, is centrary to the rule position of the Railway Board in its letter no. F(E)I[/82/SR/1 dated 07.08.1982.
6.3. Itis also not in dispute that 'he applicant(s) was appointed after giving age relaxation, the said Office Order, where the same was validly passed cannot be gone into at this stage.
6.4 A harmonious construction has to be read to the Office Order dated 21.06.1995, which is reproduced as under :-
Bre eeerecerreerroeersseeenass
2. This temporary appointincnt offered to you against Sports quota will be on probationary basis for a period of two years. During this probationary period, your performance in sports activities far which you are being offered this temporary appointment will be reviewed from time to time, and should your performance/proficiency level us also your conduct be found unsatisfactory and not upto the desired level, your scrvices will be terminated by the Administration by giving you 14{fourteen) days' notice or by paying you 14(fourteen) days' pay in lieu of notice.
Meme Hea eRe OE FOR Dee aaee POFE ESOT PUREE FORT ER UE SODEe 6.5 Moreover, it is also seen from the records of the case that there is no dispute by the respondents that vide Order dated 26.08.2014, the seniority of the applicants are to be reassigned according to their appointment and the seniority list needs to be rectified in terms of Railway Board in its letter no. F(EJII/82/SR/1 dated 07.08.1982. Accordingly, provisional seniority list was modified and the applicants were placed at sl. No. 4 and 7, which is not justifiable.
6.6 This is the second round of li tigation and it is noticeable that a speaking order has been passed in a cryptic manner merely on the analogy that there is an office order dated 21.06.1995 wherein specifically unaverred that unless specified otherwise, the seniority of the applicants will be reckoned from the date of their attaining age of 18 years and their services upto 18 years will not "hey dye NVA NOD 8 1639/19, 1649/19 be counted as qualifying service, runs contrary to the office order no. 08 dated 26.08.2014 issued in terms of Rule 302 of IREM Vol.-I and therefore, there was no occasion for the respondents to deviate from the said rule position. 6.7 Ina recent judgment, deciding on the temporary post of Lecturers, the Hon'ble Apex Court in the case of Mahatma Gandhi University vs. Rincymol Mathew in Civil Appeal No. 8631/2022 decided on 10.11.2020, has held as under :-
6. We have considered the initial cppointment order of the respondent as Lecturer.
Applications were invited froin cualified candidates and thereafter the respondent was appointed as Lecturer in tie reyular pay-scale, initially on probation. The said appointment was after obtaining appropriate approval from Director, School of Medical Education. The sanction was accorded by the Vice-Chancellor. That thereafter by order dated 21.10.2000, her probation was declared w.e.f. 03.10.1999, That thereafter, she was appointed as Assistant Professor und thereafter as Associate Professor continuously in the regular pay- scale.
eer eee eee eee ee eee ee ee ees 6.3 In that view of the maticr, when the respondent worked continuously right from 1998 initially as Lecturer, thereafter her probation was confirmed; thereafter she was appointed / promoted as Assistant Professor and thereafter again promoted to the post of Associate Professor on reqular basis and on regular pay-scale, therefore, the respondent shall be entitled ty get her regular service counted for the period from 03.10.1998 to 21.10.2011 for the purpose of grant of the benefit of CAS.
7. In view of the above and for the recsons stated above, no error has been committed by the learned Single Judge and/or the Division Bench of the High Court in allowing the writ petition / writ appeal and direciing the University to grant the benefit of CAS after counting her earlier service rendered from 03.10.1998. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for. COP P mena aed meen snare errors sone ee sor Decors soree
7. Conclusion :
In view of the aforesaid factual scenario as well as the rule position, as well as the law laid down and the impugned office order rejecting the representations of the applicants is hereby quashed and set aside. The competent authority amongst the respondents shall revisit the modified provisional seniority list taking into account the applicants' 02 years of ' 9 1639/19, 1649/19 service from the date of initial appointment till the date of attaining 18 years as was done previous provisicna: list and therefore, we give a finding that there was no occasion to modify the said provisional seniority list dated 01.01.2015. In so far as question of revised seniority list, appropriate order shall be passed revisiting the same. within a period of 08 weeks from the date of receipt of a certified copy of this order.
8. OA No. 350/1728/20i3 & GA No. 350/1729/2019 8.1 Since the detailed order has been passed, Learned Counsel for the applicants brings to our notice that there are other OAs pending i.e. OA No. 1728/2019 & OA no. 1729/201°, wherein the applicants seeks following common relief:
"8.1 To set aside and/or quash impugned speaking order dated 17.07.2019 issued from the Office Assistant Statistical Office being Kespondent no. 2. :
8&2 To pass a direction or directions upon the respondent authorities to grant in favour of your applicané financial upgradation and/or benefits under Assured Career Frogression Scheme instead of Modified Assured Career Progression Scheme and release the residue arrear' amount with statutory interest with immediate effect.
8.3 Show cause in terms of prayer 81 and 82 and after heariag the cause make the rule absolute.
8.4. | direction as to costs of the proceedings to the applicants.
8.5 Any further order or orders, direction or directions as the Hon'ble Tribunal may deem fit and proper for the ends of justice."
8.2 Learned Counsel for the applicants says that the relief sought in the present OAs shall fall back to the outcome of the decision rendered today in the open court today in OA nes. 1659/2019 and 1640/2019. 6.3 In light of the fact that 1 detailed speaking order has been passed in the aforesaid OA nos. 1639/2019 and 1640/2019, the competent authority 10 - 1639/19, 1640/19 amongst the respondents may pass appropriate order regarding claim of the applicants qua the financial upgradation or benefits under Assured Career Progression Scheme or any other benefits as narrated hereinabove, after passing appropriate orders qua regarding the revised seniority list. 8.4 Needless to say that appropriate orders regarding all consequential :
benefits on notional basis shall also be passed qua the applicants upon f revisiting the revised seniority list.
9. With these directions, the 0.As. stands disposed of. No order as to costs. } (Anindo Majumdar) | (Manish Garg) Administrative Member _ | Judicial Member sl Do .