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Punjab-Haryana High Court

Union Of India vs Puneet Gosain And Others on 13 March, 2014

Bench: Sanjay Kishan Kaul, Arun Palli

            IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                                                  Civil Writ Petition No. 12630-CAT of 2005
                                                                Date of Decision: 13.03.2014


           Union of India                                            ..Petitioner

           Versus

           Puneet Gosain and others                                  ..Respondents

           CORAM:              HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
                               HON'BLE MR. JUSTICE ARUN PALLI


           Present :           Ms. Abha Rathore, Advocate, for the petitioner.
                               None for the respondents.

                                           ****

           SANJAY KISHAN KAUL C.J. (Oral)

Respondent No.1 before us filed Original Application No. 561- HR of 2003 before the Central Administrative Tribunal, Chandigarh Bench aggrieved by what is alleged to be improper fixation of his seniority in the select panel for promotion to higher post.

Respondent No.1 was appointed as a Gateman in the scale of ` 775-1025 (revised scale ` 2610-3540). The post/cadre of Ticket Collector in the scale of ` 950-1500 (revised pay scale ` 3050-4590) under the commercial Department under the Recruitment Rules is filled up in the ratio of 2:1 by direct recruitment and promotion through the process of selection respectively from eligible Group-D category of staff. Respondent No.1 accordingly participated in the process of such selection, a circular was having been issued on 25.09.2002 against the promotion quota through the process of selection procedure. He cleared the written test and viva-voce but apparently his name was lower in the select panel and the vacancies existing were less.

It is the case of respondent No.1 that since people eligible from Group-D are of various categories like Luggage Porter, Sealman, Waterman, Safaiwala, Call Men, Peon etc., their inter-se seniority for the purposes of promotion to the post of Ticket Collector is to be determined on the basis of total length of continuous service in the same or equivalent grade in terms of para 320 of the Indian Railway Establishment Manual-I (IREM). Since Sharma Ravinder 2014.03.14 14:59 I attest to the accuracy and integrity of this document CWP No. 12630-CAT of 2005 2 according to respondent No.1, the fixation of seniority in the select panel had been wrongly carried out, the Original Application was filed before the Tribunal.

The aforesaid plea was contested on behalf of the petitioner on the ground that the provisions of para No. 320 were being wrongly construed by the said respondent. The impugned order after recording respective stands of the parties proceeds on the stated agreement between the parties that the inter-se seniority of Group-D for promotion to Group-C is to be reckoned as per the provisions of para 320 and on its interpretation found in favour of respondent No.1 and allowed the Original Application.

The aforesaid order was assailed by the petitioner before this Court in Civil Writ Petition No. 6858 of 2005 wherein it was contended by the learned counsel for the petitioner that the aforesaid consent had been wrongly recorded, as the stand was that the seniority was to be fixed on the basis of para 302 and not para 320 which was the case of respondent No.1. The Division Bench vide order dated 05.05.2005 recorded this submission and permitted the petitioner to withdraw the petition so that a review application could be filed. The petitioner thereafter filed an application for review which was also dismissed on 02.08.2005 by an elaborate order, albeit, in limini.

The petitioner is, thus, once again before us in the present petition filed under Article 226 of the Constitution of India. The notice was issued in the present petition on 12.08.2005 and the contempt proceedings were directed to be stayed till further orders. None appeared for the effected respondent No.1 and thus the petition was admitted on 12.12.2005 whereafter it has now been listed on regular Board.

Learned counsel for the petitioner clarifies that the impugned orders have not been implemented though she is not aware of the current status of respondent No.1, as such the exams are stated to be held on regular basis and thus there is always a possibility of respondent No.1 clearing the exams in view of subsequent development.

The short compass of the submission of learned counsel for the petitioner is that what applies in the case of the petitioner is para No. 302 which is relevant and not para 320. In order to appreciate the submission, it is necessary to reproduce the said paras 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 the date of appointment of 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 recruit among themselves. When the dates of entry into a 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.

(No. E (NG) I-78-SR-6-42 dt. 7-4-1982 ACS. 132).

320. RELATIVE SENIORITY OF EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/NON-SELECTION POST IN HIGHER GRADE.

When a post (selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning interseniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non- fortuitous service should be taken into account for this purpose.

Note : Non-fortuitous service means the service rendered after the date of regular promotion after due process."

In the aforesaid context, learned counsel for the petitioner submits that there are two categories of employees who appear in the promotion/selection process for filling up the post of Ticket Collector- recruitment grade and intermediate grade. In so far as the recruitment grade employees are concerned, they are Luggage porter, Sealman, Waterman, Sharma Ravinder 2014.03.14 14:59 I attest to the accuracy and integrity of this document CWP No. 12630-CAT of 2005 4 Safaiwala, Running Room bearer, Waiting Room Attendant, Callmen, Token porter, Box Porter and T.D.Peon, all of whom are in the grade of ` 2550-3200 and the only other employees are the Gatemen like respondent No.1 who are in the grade of ` 2610-3540. They are stated to be requiring the same qualification and other inputs and their appointments on different posts is as per the vacancies in the various posts.

The second category of Intermediate Grade consists of Goods Marker, Parcel Marker, Box Porter, Luggage Porter, Senior Safaiwala and Commercial Khalasis which all are in the grade of ` 2610-3540 on promotion from the grade of ` 2550-3200 and Return Courier in the grade of ` 2750-4000 on promotion from ` 2550-3200. It is thus her submission that insofar as para 320 is concerned, the total length of continuous service in the same or equivalent grade is to be the determining factor. However, while applying this paragraph, the Recruitment Grade and the Intermediate Grade have been mixed up, as the respondent No.1 belongs to the Recruitment Grade being a Gateman and the seniority in the Recruitment Grade is to be fixed as per para 302 which provides for the basis of date of appointment in the grade. The seniority of respondent No.1 is thus stated to have been fixed as per para 302 and not para 320.

Learned counsel for the petitioner has further explained that if at all there was some ambiguity in understanding this, the circular of Northern Railways dated 10.03.2005 had clarified this aspect which is, of course, for a subsequent recruitment by stating in the circular as to how the seniority has to be fixed as under:-

"The seniority of different grades, after the written test, will be reckoned as under:-

1. 2750-4400-Grades on promotion

2. 2650-4000- -do-

3. 2610-3540- -do-

4. 2610-3540/2550-3200-Direct Recruitment Grade.

The seniority of those employees who are recruited against direct recruitment quota Grade 2610-3540 and grade 2550- 3200 will be reckoned and clubbed together by taking into consideration their total length of service. For example, if an employee (Gateman) appointed in Grade 2610-3540 as on 20.10.2010 against direct recruitment quota and another employee (Luggage Porter) is recruited in grade ` 2550-3200 as on 15.4.1999, he will be senior to the employee recruited on Sharma Ravinder 20.10.2010."

Learned counsel for the petitioner hastened to add that it is not as if the Rules for Gateman have changed in the subsequent recruitment process as Railway Establishment Manual which has the statutory force remains the same, as what is stated aforesaid is a matter of abundant clarity as to how paras 302 and 320 have to be interpreted. In terms of this, the seniority of respondent No.1 has been properly fixed.

The line of argument advanced by learned counsel for the petitioner finds favour with us especially as nothing to the contrary has been pointed out in absence of any representation on behalf of respondent No.1. There is no separate written statement filed in the present proceedings. From the record, it emerges that there is a plea arising from two paras 302 and

320. Para 320 refers to the relevant seniority of employees in an intermediate grade belonging to different seniority units appearing for selection post in the higher grade. Thus, it would apply to the category of employees in the intermediate grade. On the other hand, para 302 deals with the seniority in the initial recruitment grade and would accordingly apply to the category of employees in the recruitment grade which includes respondent No.1 as Gateman is the category included in the same. A bare reading of para 302 shows that the seniority has to be fixed only by the date of appointment of the grade and the principle of length of continuous service in the same or equivalent grade as in the case of intermediate grade employees would not apply.

In view of the aforesaid, the impugned orders of the Tribunal are set-aside and it is held that the seniority in the select list qua the candidates who qualified was correctly prepared.

The writ petition is accordingly allowed leaving the parties to bear their own costs.

(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE 13.03.2014 'ravinder' Sharma Ravinder 2014.03.14 14:59 I attest to the accuracy and integrity of this document