Central Administrative Tribunal - Allahabad
Zafar Ahmad Aged About 58 Years vs Union Of India Through General Manager on 20 May, 2011
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
(THIS THE 20TH DAY OF MAY, 2011)
Original Application No. 192 of 2008
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D.C. Lakha, Member (A)
1. Zafar Ahmad aged about 58 years,
S/o Late Saeed Ahmad,
R/o 80A Sayed Wara, Rasulpur,
Allahabad.
2. Anand Prakash S/o Sri Tribhuvan Nath Srivastava
R/o 65-UV-7th Avenue, Railway Colony, Nawab Yusuf Road,
Allahabad.
3. Mohd. Aslam Khan S/o Late Abdul Quadir Khan
94-GH, Leader Road, Allahabad.
. . . Applicants
By Adv: Sri A. Srivastava
V E R S U S
1. Union of India through General Manager,
North Central Railway, Allahabad.
2. Divisional Railway Manager,
North Central Railway, Allahabad.
3. Chief Personnel Officer, Headquarter,
North Central Railway, Allahabad.
4. Sri S.N.Singh
Presently posted as Traffic Inspector,
Allahabad Division, North Central Railway,
Allahabad.
5. Sri Mohd. Maseeh
Presently posted as Traffic Inspector,
Station Working Rules, Allahabad.
6. The Chairman, Railway Board,
New Delhi.
. . . Respondents
By Adv: Sri A.K. Sinha
O R D E R
By Honble Dr. K.B.S. Rajan, Member (J) The lone question for consideration in this case is When initially on recruitment through a common examination, allocation of selected candidates is made to any one of the three wings Asst. Yard Masters, ASM/SM and Traffic Inspectors and when promotions used to be made in the respective ladder, (which resulted in junior batch getting promotion in one wing faster than the earlier batch in the other wings depending on the fortuitous circumstances) if at a later stage the three wings are merged together to form a single cadre, how to assign the seniority of the incumbents of all the three wings?
2. Facts capsule: All the applicants were selected as Traffic Apprentices in the grade of Rs 455-700 in the year 1979-80, sent for three years training between 1981 to 1984 and qualified in the final examination in the Training, and arranged in the order of their merit (vide Annexure 3). While the applicants, senior in the panel were allocated the wing of Asst. Yard Master, respondent No. 4 who was lower in the merit in the examination at the training centre, was allocated the wing of Traffic Inspector. It was after two years that respondent No. 5 entered the Railway Service and posted to the Traffic Inspector Wing. These two had, by virtue of availability of vacancies in their wings, got promotion to the next grade earlier than the applicants.
3. On 09-10-2003, vide Annexure A-1, the Railways have merged the aforesaid three wings into a single wing and para 10 thereof relates to assignment of seniority in the unified wing. The same reads as under:-
10. The concept of Multi-skilling is to be introduced by mergin the different categories as mentioned hereunder. While the revised percentage distribution of posts as indicated in the annexures to this letter should be implemented in the unified cadres based on the integrated seniority list,, the duties responsibilities and functions being performed by the employees of the respective cadres will be combined in a phased manner. Each member of the cadre will have to be equipped with necessary skills and functions through proper training and development. The categories indicated herein will be merged by integrating the seniority of the employees working in respective grades with reference to length of non fortuitous service in the relevant grade keeping the inter-se-seniority in the respective group intact.
10.1. The category of Station Masters/Assistant Station Masters Yard Masters and Traffic Inspectors should be merged into one unified cadre of SM/ASM. The recruitment and promotion pattern as prescribed for the category of SMs/ASMs should be followed in the merged cadre. In the initial stage of the merger, efforts should be made to post the employees in the categories in which they have been working. Accordingly, while the staff belonging to the erstwhile three categories will be working and enjoying the benefit of the unified cadre of SMs/ASMs, on their posting in the Yard, they will perform the duties of Yard Master retaining their designation as applicable to the category of Yard Master. Similarly, while performing the inspectorial job they will retain their designation as applicable to Traffic Inspectors. But at a later stage, when they are made fully equipped to discharge all the functions hitherto being discharged by SMs/ASMs. YMs & TIs, administration will have the flexibility to post a person as per the administrative requirement. While redefining the duties and functions. Railways may also review and rationalize the cadre keeping in view the administrative requirements.
10.2 The Personnel, Welfare and HOER Inspectors should be merged and a unified cadre of Personnel Inspector introduced. After merger, 50% of the posts in the entry grade of the combined cadre viz. Rs. 5000-8000 should be filled from amongst the optee Sr. Clerks of Personnel Department in grade Rs. 4500-7000 with three years of service in the grade and the remaining 50% of the posts should be filled as per the instructions contained in Boards letter No. E(NG)-I/2002/PM4/1 dated 12.07.02.
10.3 The categories of Electric Signal Maintainers (ESM) and Mechanical Signal Maintainers (MSM) should be merged and a unified cadre of Signal Maintainers introduced. The recruitment and promotion pattern as applicable to the Electric Signal Maintainers will be followed in the unified cadre of Signal Maintainers.
4. According to the applicants, the above, if pressed into service, would result in an anomalous situation in that those juniors in the same batch of the applicants or those from the subsequent batches who have got higher promotions earlier than the seniors/previous batch due to availability of vacancies in their wings would be assigned higher seniority which is against the para 303 A and 306 of the I.R.E.M. Vol II which reads as under:-
303. The seniority of the candidates recruited through the Railway Recruitment Board or by any other recruitment authority should be determined as under a. **{Candidates who are sent for initial training to Training Schools will rank in seniority in the relevant grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post. Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination. In case, however, persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batch wise provided persons higher up in the panel of the RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt.} [Authority: Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993)] ** Substituted vide Advance Correction Slip No. 9 circulated vide Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993).
306. Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case by paragraph 305 above.
5. The applicants have moved representations, which have not entailed any fruitful result, vide Annexure A-2 and A-7.
6. Hence, this O.A. seeking the following relief(s):-
i) to quash the order dated 10.8.2006 and 12.6.2007 passed by the respondent No. 3 and 2 and Para 10 of Railway Board letter dated 9.10.2003 passed by respondent No. 5.
ii) This Honble Tribunal may be pleased to direct the respondents to reassign the seniority of applicants in the pay scale of Rs. 7450-11500/- from the date the respondent No. 4 has been awarded the aforesaid grade.
iii) This Honble Tribunal may be pleased to direct the respondents to pay the entire consequential benefits as well as monitory benefits which accrues to the applicants after reassignment of their seniority from the date of respondent No. 4.
iv) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicants. Respondents have contested the O.A. They have stated that the seniority is on the basis of provisions of para 10. And, there is no illegality in the same.
7. Respondents contested the O.A. Applicant has filed his rejoinder, reiterating the contentions contained in the O.A.
8. Arguments were advanced on the above lines by the respective side and the counsel for the applicant submitted that in the case of Om Prakash Sharma and others vs Union of India & Ors (1985 SCC (L & S) 854) an almost identical situation arose and it was held by the Apex Court that when, in common seniority maintained for members of staff of three departments, appellants were senior to the respondents and later on, when the three departments were separated, each devising its separate seniority, respondents(junior in the combined seniority) belonging to one department got some accelerated promotion on account of availability of vacancies there, and later on when the original position of the three departments with combined seniority was restored, respondents shown as senior to the appellants on the basis of their accelerated promotion would be violative of Art. 16 of the Constitution.
9. Counsel for the respondents submitted that the promotion granted to private respondents was on account of vacancies available in their cadre, while though senior, the applicants in their cadre could not get their promotion as vacancies were not available. In fact the merger of the three is to some extent meant to remove such a situation of seniors not getting promotion earlier than the juniors.
10. Parties were permitted to file written arguments also and accordingly, the applicants counsel has filed the written argument. Therein, the counsel has referred to a case where in identical situation, the mistake was rectified. Paras 11 18 and 19 of written arguments thereof read as under:-
11. That while deciding the representation the reference of a similar dispute resolved by the Department was also taken into consideration that after merge of seniority Shri Khaliquallah was placed in the grade of Rs. 7450-11500/-., however Sri SMA Ansari were placed in the inter-se seniority of Rs. 6500-10500/- and taking into consideration the request of Sri Ansari that Khaliquallah was the junior batchmate, placed in the higher grade, the seniority of Sri Ansari was accordingly correct in 2004 by placing him at Sl. No. 1 (a) by fixing in the pay scale of Rs. 7400-11500/-.
18. That it would be relevant to mention there that in a similar controversy one Sri Wahiduddin who was while working in the grade of Rs. 5500-9000 represented before the respondents that one Sri Khaliqullah his batch mate was awarded higher grade i.e. 7450-11500 because of being posted as Station Masters and vide order dated 25.6.2004 the said anomaly was resolved and Sri Wahiduddin seniority was correctly reassigned and was placed in the grade of Rs. 7450-11500 from the date of Sri Kahliqullah.
19. That it is relevant to mention here that in the similar matter one Sri SMA Ansari who was one batch senior to Sri Khaliqullah and Sri Wahiduddin was being paid in the grade of Rs. 6500-11500 however they were placed in the grade of Rs. 7450-11500 who has represented against the said anomaly and the representation of Sri Ansari was allowed and he was awarded the aforesaid grade of Rs. 7450-11500 from the date Sri Khaliquallah and Wahiduddin were granted.
11. Arguments were heard. Admittedly, some of the juniors in the same batch and some from the subsequent batch were promoted in the cadre of T.I. earlier than their seniors in the same batch/previous batch. This was tolerated by the seniors as there was no common seniority amongst them. But later on, when the three categories were merged and formed one category with one seniority list, obviously in the same batch the more meritorious would be pushed down as he could not get his promotion in his earlier wing and the less meritorious who would have been promoted due to availability of vacancies in their wing, would be shown senior in the common seniority. The situation would be worse if persons from the subsequent batch gets accelerated promotion and placed above the persons of the previous batch. This anomaly has to be set right.
12. Though the counsel for the applicant has referred to some rectification of the mistake by the respondents in respect of some other case, vide para 11, 18 and 19 of the written arguments, in the absence of confirmation from the side of the respondents, we may not be able to presume the same as such. It would be preferable that the respondents do ascertain from the records and if the same is true, extend the same benefits to the case of the applicants herein. If not, even then, they must attempt to rectify the mistake. The ratio in the decision of the Apex Court in the case of Om Prakash Sharma (supra) does apply to the facts of the case of the applicants. Again, under an identical circumstance, the Apex Court has held in the case of Kerala State Electricity Board v. N. Sukesen, (1996) 9 SCC 397 as under:-
Kerala State Electricity Board, hereinafter the Board, had one common establishment prior to 1964. A need having been felt to have a separate and distinct establishment, named as Secretariat Establishment, the same came to be formed with effect from 1-4-1964, vide order of the Board dated 31-3-1964. With a view to ensure smooth functioning of the Secretariat Service so formed, the Board, in exercise of power conferred by Section 79(c)(k) of the Electricity (Supply) Act, made certain regulations which, inter alia, laid down the principle of inter se seniority in its clause VII reading as below:
VII. The inter se seniority of all categories of persons so appointed initially to the Secretariat will be determined and finalised with reference to the relative general seniority they held in the parent department and their services in the parent department will count for all purposes in the Secretariat Service also.
2. It was, however, felt that the separate service was not conducive to the smooth and efficient discharge of the administrative functions of the Board; and so, by order dated 14-1-1981 the separate and independent status of the Secretariat Service was brought to an end by making regulations called the Kerala State Electricity Board (Integration of Board Secretariat Establishment and General Establishment) Regulations, 1981. In these regulations the principle of seniority was laid down as below in clause 5(c):
5. (c) Subject to clause (f), relative seniority of persons drawn from the Secretariat Establishment and General Establishment including Accounts Wing and holding equated posts shall be determined on the basis of their length of service in the cadre/category concerned at the time of integration.
3. This principle was amended to read as below by order of 7-11-1985:
(a) * * *
(b) the relative seniority of persons drawn from the Secretariat Establishment and the General Establishment including the Accounts Wing shall be determined based on their ranking in the advice list of the Kerala Public Service Commission or the Board, as the case may be, at the time of initial recruitment by the Kerala Public Service Commission or the Board to the respective establishments under the Board subject to the application of rules regarding obligatory departmental tests. This virtually required length of service to be taken note of for determining inter se seniority.
4. The High Court of Kerala was approached mainly by officers of the erstwhile Secretariat Service challenging the revised principle of seniority as laid down in 1985. The High Court, by the impugned judgment, held that the principle was hit by Article 14 as unequals were treated as equals and has, therefore, quashed the same. These appeals are by the Board and by some persons of the General Establishment.
5. Shri Poti, the learned Senior Counsel appearing for the Board, has urged that the High Court was not justified in setting aside the principle of 1985, as such a principle had indeed been found valid by this Court in Om Prakash Sharma v. Union of India1, which was wrongly distinguished by the High Court. Shri Iyer, the learned Senior Counsel appearing for the private respondents has, however, urged that Om Prakash case1 was different on facts and the High Court was right in not following the same to sustain the principle of inter se seniority as spelt out in 1985.
6. In our opinion, the decision in Om Prakash case1 has to be applied in the instant appeals as well, because there the accelerated promotion which some of the respondents got in the cadre of Head Clerks because of the trifurcation was not required to be given weight after the different services/departments were amalgamated again. Here too, the principle of inter se seniority in the order of 1985 has basically sought to do the same by requiring the inter se seniority to be determined on the basis of the length of service in the cadre/category at the time of integration, and not by taking note of promotions earned in the Secretariat Service.
7. We have another reason to sustain the aforesaid principle and the same is that we are not quite satisfied if, while forming the Secretariat Service, the selection of the optees was really on the basis of merit, ability and suitability as was required to be. We have said so because the Chairman of the Board, who had played a pivotal role in the selection, had stated before the arbitrator, whose award was pressed into service by Shri Iyer and to which we shall advert later, thus: No tests were conducted for these appointments nor interviews. The selection for this wing was made by me taking into consideration their fidelity, the confidence that I can have on them. Only persons known to me were selected. In view of this, the award of the arbitrator dated 14-3-1967 holding that there was no mala fide or victimisation while making actual selection is not much significant.
8. Shri Iyers main concern was that the aforesaid principle of inter se seniority, if sustained, would result in reversion of the persons who had got accelerated promotion in the Secretariat Service. This was illustrated by the learned counsel by drawing our attention to equation of posts as finding place at p. 66 of the paper-book of CA No. 3974 of 1990, wherein the post of Assistant Secretary of the Secretariat Establishment has been shown as equal to Assistant Accounts Officer the next post below whom in the General Establishment being of Senior Superintendent. Learned counsel contended that the aforesaid principle would require reversion of the Assistant Secretary of the Secretariat Service to Senior Superintendent of the General Establishment, as the latter may be senior to the former if the ranking at the time of the initial recruitment alone was to be taken into consideration. According to us, however, this is not the correct reading of the principle inasmuch as that only speaks about fixation of relative seniority, and does not visualise any reduction in rank or reversion. It may be that the following of 1985 principle would make the Assistant Secretary of the illustration junior to the Senior Superintendent, but that would not require the Assistant Secretary to be demoted to the post of Senior Superintendent.
9. In the aforesaid view of the matter, we set aside the impugned judgment of the High Court, subject to the clarification/observation made above. In the facts and circumstances of the case, we leave the parties to bear their own costs.
13. In view of the above, the OA is allowed. The impugned orders at Annexure A-2 and A- 7 are quashed and set aside. Para 10 of the order dated 09-10-2003 is also quashed and set aside. Respondents are directed to ascertain from the records about the rectification of mistake referred to in para 11, 18 and 19 of the written arguments submitted by the applicants counsel and if the same be correct, adopt the said method in respect of the applicants and similarly situated persons. In case such a rectification has not taken place, respondents shall suitably modify the provision of assignment of seniority in such a manner that the seniors in the same batch and the previous batch are not made junior to their juniors.
14. This order shall be complied with, within three months of communication of this order. No cost.
Member (A) Member (J)
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