Central Administrative Tribunal - Allahabad
Mohammad Hammad Usmani vs General Manager N C Rly on 24 December, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD This is the 24th .day of December 2018 ORIGINAL APPLICATION NO. 330/378/2016 HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A) HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J) Mohammad Hammad Usmani, S/o Late Mohammed Javed, retired Hd.TTE, N.C.Raiwlay, Allahabad, R/o 1446, Malviya Nagar, Allahabad.
.......Applicant.
VERSUS
1. Union of India through the General Manager, North Central Railway, Headquarter Office, Subedarganj, Allahabad.
2. Divisional Railway Manager, N.C.Railway, Allahabad.
3. Senior Divisional Personnel Officer, N.C.Railway, DRM's office, Allahabad.
4. Senior Divisional Commercial Manager, North Central Railway, DRM's office, Allahabad.
......Respondents.
For the applicant : Shri Udai Chandani
For the respondents: Shri P.K.Pandey
O R D E R
Per Mr.Gokul Chandra Pati, Member (A)
The OA impugned the orders dated 12.9.2013 (Annexure A-1) and 8.5.2014 (Annexure A-2), passed by the respondent no. 3 rejecting the representation of the applicant for promotion to higher grade of Rs. 5000- 8000 after restructuring of the cadre by the Railway Board. It has been filed with the prayer for the following reliefs:-
"(i) The Hon'ble Tribunal may graciously be pleased to quash the impugned orders dated 12.9.2013 and 8.5.2014 and direct the respondents to grant the promotion under cadre restructuring w.e.f. 1.3.1993 in grade Rs.5000-8000, in Dy. CIT post grade Rs.5500-9000 by non selection method w.e.f. 1.2.2003 as given to other similarly situated persons and for the post of CIT grade Rs.6500-10,500 under cadre structuring w.e.f.
1.11.2003 with all consequential benefits.
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(ii) The Hon'ble Tribunal may further graciously be pleased to direct the respondents to settle the settlement dues after doing the fixation in the aforesaid Grades then pay and its differences with 18% interest accrues after those fixation.
(iii) To issue any order, direction or further orders which this Hon'ble Court may deem fit and proper in the present facts and circumstances of this case.
(iv) Award costs in favour of applicant."
2. The undisputed facts are that the applicant was appointed as a signaller in the operation (Telegraph) department under the Northern Railways. After shrinkage of workload, the applicant was declared surplus in 1987 and deployed in other department. Vide order dated 15.11.1993 (Annexure A-4), the applicant alongwith other signallers, was redeployed to the cadre of Ticket Collector in the same pay scale as the signaller and the applicant's seniority was to be merged with the seniority in the Ticket Checking cadre.
3. After restructuring of the cadres by Railway Board, the applicant claims that although he was entitled for the promotion to higher grade post without holding any written or viva-voce test, but he was not considered for the same. The applicants also stated in the OA that he was not given the benefits of seniority of their parent cadre. The applicant and other affected employees had represented for such benefit, but it was rejected vide order dated 17.9.2004 (Annexure A-7). Some of the affected employees challenged the order dated 17.9.2004 in OA No. 1247/2004 (Rajesh Kumar Srivastava and others vs. Union of India and others), which was allowed by the Tribunal vide order dated 12.12.2005 (Annexure A-8), directing the respondents to revise the seniority list of the Ticket Collectors (in short TTEs) after counting their past service as signallers and to effect promotion to the higher post of Head TTE/JIT on the basis of recast 3 seniority. The seniority of the applicant was recast and shown at serial no. 44A vide order dated 2.7.2007 (Annexure A-9).
4. It is stated in the OA that the applicant was promoted to the grade of Head TTE in grade Rs. 5000-8000 in the year 2003 under the restructuring scheme of 2003 and his claim for promotion to the same grade w.e.f. 1993 after the restructuring of 1993 was not considered. Hence, the applicant represented on 28.8.2008 (Annexure A-10), which was rejected vide order dated 24.10.2008 (Annexure A-11). Being aggrieved, the applicant filed OA No. 353/2010 and the Tribunal vide order dated 17.3.2010 (Annexure A-12) quashed the order dated 24.10.2008 which was cryptic and directed the respondents to decide the representation by a reasoned and speaking order.
5. Accordingly, the applicant submitted the representation dated 26.3.2010 (Annexure A-13) stating the names of his junior employees who were allowed promotion to the grade of Head TTE under restructuring in 1993, ignoring the case of the applicant. As stated in the OA, his representation was rejected on the ground that on the date of promotion of the junior employees, the applicant was not in the Ticket Checking cadre in which he was absorbed w.e.f. 13.1.1995 and hence, the parity claimed cannot be given. The applicant filed OA No. 1600/2010 against this decision and vide order dated 12.12.2012 (Annexure A-15), the OA was disposed of with the following direction:-
"4. We have considered the submissions and have gone through the records. We are of the considered view that the case of the applicant is squarely covered with the ratio of the case of Syed Mahfuzal Islam's case (supra). It is not informed by the learned counsel for the respondents that the judgment in Syed Mahfuzal Islam's case (supra) has been unsettled by the Higher Court. Accordingly, the OA is allowed. Impugned order dated 22.4.2010 is quashed and set aside. The matter is remitted back to the respondents for reconsidering the same in the light of the judgment of this Tribunal passed in OA NO. 1301/08 dated 29.10.2010 4 (supra) and pass fresh order within a period of six months from the date of receipt of a certified copy of this order."
6. Thereafter, the respondents passed the order dated 12.9.2013 against which the applicant filed a Contempt Petition, which was dismissed vide order dated 19.5.2015 (Annexure A-16) with liberty to the applicant to file fresh OA if he is aggrieved by the order dated 12.9.2013 (Annexure A-1). Hence, the present OA is filed by the applicant, mainly on the following grounds:-
(i) The applicant was redeployed in the cadre of TTE with past seniority intact in 1993. But he was not considered for the benefit of promotion as a result of the restructuring of the cadre in 1993, although he was allowed the benefit of past seniority after order in OA No. 1247/2004.
(ii) The applicant was promoted to the grade of Head TTE in 2003, where as his juniors had got this grade earlier. The representation given was rejected. Then OA No. 353/2010 was filed by the applicant which was disposed of with a direction for disposal of the applicant's representation.
(iii) The applicant submitted the representation giving the name of the juniors who were given higher grade earlier. But it has been rejected. The applicant again filed OA No. 1600/2010 which was allowed with a direction to the respondents to reconsider the case.
But his case has been rejected again vide the impugned orders.
(iv) Due to denial of the benefit of restructuring in 1993, the applicant could not be promoted to the grade of Dy CIT grade Rs. 5500-9000 w.e.f. 1.2.2003 vide notice dated 18.4.2011. Then due to another restructuring in 2003, the applicant is entitled for next promotion to the post of CIT in the grade of Rs. 6500-10500.
(v) The action of the respondents is illegal, arbitrary, non-est and against Railway Board circular and violative of Article 14, 16 and 311 of the Constitution of India.
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7. The respondents have filed Counter Reply (in short CR) stating that the main issue in this case is whether the applicant is entitled for the benefit of up-gradation at a higher post when the applicant was not posted in the present cadre and whether he is entitled for the back seniority after he was declared surplus and was redeployment in another cadre. It is stated that as per Railway Board circular dated 25.5.2004, the past seniority will not be available to the applicant. It is further stated that the applicant was absorbed in the Commercial cadre w.e.f. 13.1.1995 (para 11 of the CR). The Counter Reply has cited the judgment of Hon'ble Apex Court in the case of NK Chauhan and others v. State of Gujarat, reported in 1977 SCC(L&S) 127 regarding fixation of seniority. The judgments in which the same ratio was followed have also been mentioned. It is stated that the order of the Tribunal in this case from time to time are in violation of these judgments and these are not permissible in the eyes of law.
8. The applicant has filed Rejoinder in reply to the Counter Reply and has reiterated the averments in the OA.
9. We have heard Sri Udai Chandani, learned counsel for the applicant. He also submitted his written submissions. After reiterating the facts and averments in the OA, the following points are highlighted in his oral as well as written submissions:-
(i) At the time of absorption in Commercial cadre w.e.f. 13.1.1995 (Annexure A-4), the applicant was senior to V.K. Rawat as would be seen from the list given in the order dated 13.1.1995 and they are shown at serial no. 6 and 16 of the list in the order dated 13.1.1995.
(ii) Vide the order dated 12.12.2012 of this Tribunal in OA No. 1600/2010, it was held that the applicant's case is squarely covered with the judgment of the Tribunal in the case of Syed Mahfuzal Islam and others vs. Union of India and others in OA No. 1301/2008 and the respondents were directed to reconsider the case of the applicant in the light of the order in the case of Syed Mahfuzal 6 Islam. But the respondents have again rejected the representation on same grounds as the order dated 22.4.2010 (Annexure A-14) which was set aside by the Tribunal's order dated 12.12.2012.
(iii) Judgments of Hon'ble Apex Court in the case of State of Bombay vs. Vishnu Ramchandra 1961(2) SCR 26, K.V. Subba Rao vs. Govt. of Andhra Pradesh (1988) II SCC 201 and V.K. Dubey v Union of India (1997) 5 SCC 81 have been cited in support of the applicant's case.
10. Sri P.K. Pandey, learned counsel for the respondents reiterated the grounds mentioned in the CR and also submitted his written submissions mainly stressing on the following points:-
(i) The fact that the applicant had failed in the selection test held on 21.12.1996 for Head TTE once has not been denied by the applicant.
(ii) As mentioned in para 6 of the CR, Sri V.K. Rawat is senior to the applicant.
(iii) The action of the respondents are as per the rules and the circular dated 25.5.2004 of the Railway Board has not been challenged in the OA.
(iv) The judgments relied are:- N.K. Chauhan and other s v. State of Gujarat and others 1977 SCC(L&S) 127, Ramakant Chaturvedi and others v. Divisional Superintendent, Northern Railway 1981 SCC(L&S) 423, South Eastern Railway and others v. Ram Narain Singh and others (1987) % SCC 84 and V.K. Dubey v Union of India (1997) 5 SCC 81. V.K. Dubey v Union of India (1997) 5 SCC 81.
11. We have considered the submissions as well as the pleadings on record and also gone through the judgments cited by both the parties. In the case of V.K. Dubey (supra) cited by both the counsels, followed the ratio in the judgment in the case of Ramakant Chaturvedi (supra), it was held as under:-
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"This controversy was considered by this court in Rama Kant Chaturvedi V. Divisional Supdt. Northern Railway [1980 supp. SCC 621] where in this court had held as under:
"The Diesel Unit of the Railway was constituted for the first time apart from the steam Unit already existing. The two units were treated as separate and distinct having different avenues of promotion. As considerable time might elapse before Diesel Cleaners could be promoted as shunters and Drivers"
Assistant in the diesel unit it was decided to draft Firemen on the steam side, possessing the minimum educational qualification of matriculation, to the diesel side as Drivers"
Assistants after giving them the requisite training. That was done. All the initial appointments were on officiating basis. As result of the appointments, some Firemen Grade "B" and Firemen Grade "A" but who happened to possess the minimum education qualification which many of the Firemen Grades "A"
and "B" did not possess, were drawn into the diesel unit earlier than some of the Firemen Grades "A" and "B" who came in later as a result of the relaxation of the rule prescribing minimum educational qualification. The Railway Administration issued instruction that the Juniormost Firemen Grade `C' officiating as Diesel Driver Assistant should be reverted in order to accommodate the senior staff. Pursuant to these instructions the appellants, all of whom were drawn from the category of Firemen Grade "C" and who had been appointed as officiating Drivers" Assistants, were reverted to the steam side as Firemen Grade "C " and who has been appointed as officiating Drivers" Assistants, were reverted to the steam side as Firemen Grades "A" and "B" who were appointed as Drivers" Assistants on the diesel side long after the appointment of the appellants as Drivers" Assistants on the diesel side. Questions for determination were whether the earlier appointees could claim seniority over the later appointees and whether the Railway Administration was justified in reverting the appellants to the old unit. Allowing the appeals the supreme court Held:
Those who were drafted into the diesel unit earlier would not lose the benefit of their continuous service on the diesel unit merely because the appointments were on an officiating basis and because others who were senior to them on the steam side came in or chose to come in at a later stage. If seniors on the steam side did not come in earlier it was because they were barred from coming in by the requirement of a minimum educational qualification. The subsequent relaxation of the rule cannot enable them to take a " frog leap" over the heads of those who had come into the diesel side is of no relevance in determining seniority on the diesel side when they are appointed on the diesel side on different days."8
The ratio therein was followed by another Bench of this court in South Eastern Railway through Chief personnel Officer & ors. V. Ramanarain Singh & Ors. etc. (C.A. No.2530/81 and batch), dated July 29,1988.
Shri Vijay Bahuguna, learned senior counsel appearing for the appellants, contends that since they had been working on the diesel side for along number of years, merely because they were sent to training for three months to be absorbed in the electrical locomotive operations, their entire previous length of service cannot be wiped out causing detriment to their length of service and promotional avenues on account of the change in the policy. Therefore, the view taken by this court requires reconsideration. We find no force in the contention. it is seen that the diesel engine drivers and the staff working with them operates in one sector, namely, diesel locomotive sector, while electrical engine drivers and the staff operating on the electrical engines operate on a different sector. Consequent upon the gradual displacement of diesel engines, instead of retrenching them service they were sought to be absorbed by giving necessary training in the trains operating on electrical energy. As a consequence, they were shifted to a new cadre. Under these circumstances, they cannot have a lien on the posts on electrical side nor they be entitled to seniority over the staff regularly working in the electrical locomotives detriment. Under those circumstances, this court has held that they cannot have a seniority over them. However, the Tribunal in the impugned order has well protected the rights which they had already accrued as under:
"We have been informed by the departmental representative that on such a re-determination of the seniority a large number of convertees who have already advances several steps in the electrical side would face reversion resulting in not only hardship to such individual but also functional problem in running the Locomotives. We, therefore, provide that on such re-determination of seniority, the persons who have already been promoted to higher grades in Electrical side, shall not be reverted but their subsequent advancement to still higher grades shall be dependent on such re- determined seniority. However, no further promotions shall be made by the respondents, in the electrical side in contravention of the aforesaid principle of seniority."
In view of the above direction, the accrued rights are protected and being enjoyed by the appellants. The Tribunal's order, therefore, directed to safeguard the rights already had by the appellants. However, future promotions depends upon the inter se seniority that may be determined by the authorities as directed by the Tribunal. Thus we find no flaw in the order passed by the Tribunal warranting interference. The appeal is accordingly dismissed. No costs." From above, it is clear that the rights already accrued to the employees cannot be taken away by subsequent action and the authorities 9 have the right to determine the inter se seniority after merger and once it is decided, the future promotions have to be as per this seniority.
12. Applying the above ratio to the instant OA, from the pleadings of the applicant, he seems to be satisfied with this placement in the seniority list at serial number 44A vide order dated 2.7.2007 vide para 5(H) of the OA. From the reliefs sought by the applicant in the OA, it is seen that there is no relief pertaining to his seniority. His main grievance is on account of the fact that he was not promoted to the post of Head TTE w.e.f. 1993 after restructuring of cadre, the way some of the similarly situated employees were allowed by the respondents, as would be clear from para 8 of the OA. Since the question of inter se seniority is not disputed by the applicant, the judgments cited by the learned counsels relating to seniority in case of redeployment of surplus staff will not be useful in deciding the present dispute.
13. Learned counsel for the applicant has cited the case of Vishnu Ramchandra (supra) and also K.V. Subba Rao (supra). In both the cases, it was held by Hon'ble Apex Court that a statute or amendment to rule will always have prospective effect unless it is specifically made retrospective. Learned counsel for the applicant has not specified which statute or rule was applied retrospectively in the present OA. It is noted that retrospective application of a rule or a circular has been cited as a ground by the respondents in the impugned orders.
14. Admittedly, the seniority position of the applicant in the cadre of TTEs has been modified to serial number 44A vide the order dated 2.7.2007 (Annexure A-9) and the applicant has not raised any dispute in his placement in the seniority list. He is aggrieved as he was not given the consequential benefit like promoting him to the grade of Head TTE w.e.f. 10 1993 in place of his actual promotion to the said grade in the year 2003. In his representation dated 28.8.2008 (Annexure A-10), the applicant had given the example of his juniors like V.K. Rawat, J.K. Vaishya, Nizauddin, R.K. Sinha etc. who had been promoted prior to the applicant. He had cited some other names in his representation dated 26.3.2010 (Annexure A-13) to claim promotion w.e.f. 1993.
15. On reconsideration of the applicant's case as per the order dated 12.12.2012 of this Tribunal, the impugned letters dated 12.9.2013 and 8.5.2014 were issued. In order dated 8.5.2014, it is stated that Sri V.K. Rawat had passed the selection test held on 21.12.96 for the post of Head TTE, but the applicant failed to qualify the said test held on 21.12.96, for which, Sri V.K. Rawat was promoted and he became senior to the applicant. Hence, claiming parity with Sri V.K. Rawat will not be helpful for the applicant.
16. Vide the order dated 22.4.2010 (Annexure A-14) passed by the respondents in compliance of the Tribunal order in OA No. 353/2010, it is stated as under:-
"3. The post of Hd.TTE grade Rs.1400-2300/5000-8000 (Pre revised) is selection post and staff qualifying in the selection can only be promoted as such. Since you failed to qualify the selection twice held on 21.12.96 and 28.3.98 hence you were rightly promoted as Hd.TTE w.e.f. 1.11.03 under cadre re-structuring. Thus you claim that juniors to you i.e. Shri V.K.Rawat (who qualified the selection in first attempt) has been promoted as Hd. TTE earlier to you is also not tenable.
4. Your other claim that juniors to you Shri Saif Ali, C.P.Singh and Raja Ram Yadav have been benefited as HTE Gr. Rs.5000-8000 (Pre revised) w.e.f. 1.3.93 is not justified because after redeployment you were absorbed in ticket checking cadre w.e.f. 13.1.95, thus you cannot claim parity with th4 staff promoted/upgraded in the year 1993."11
17. The order dated 22.4.2010 was set aside by the order dated 12.12.2012 of this Tribunal in OA No. 1600/2010 (Annexure A-15), in which it was held as under:-
"4. We have considered the submissions and have gone through the records. We are of the considered view that the case of the applicant is squarely covered with the ratio of the case of Syed Mahfuzal Islam's case (supra). It is not informed by the learned counsel for the respondents that the judgment in Syed Mahfuzal Islam's case (supra) has been unsettled by the Higher Court. Accordingly, the OA is allowed. Impugned order dated 22.4.2010 is quashed and set aside. The matter is remitted back to the respondents for reconsidering the same in the light of the judgment of this Tribunal passed in OA NO. 1301/08 dated 29.10.2010 (supra) and pass fresh order within a period of six months from the date of receipt of a certified copy of this order."
By the order dated 12.12.2012, the applicant's case was to be considered in the light of the order of the Tribunal in the case of Syed Mahfuzal Islam, which was held to have covered the applicant's case. In compliance of the order dated 12.12.2012, the respondents have passed the order dated 12.9.2013 (Annexure A-1), which states as under:-
"In your case as you were working in Grade Rs.1200-2400 (RSRP) w.e.f. 31.1.1992, as Sr. Signaller you were entitled to get full seniority in view of the instruction referred above in Ticket Checking Cadre as Sr.TC in identical Grade Rs.1200-2400 w.e.f. 31.1.1992 and accordingly you were entitled to get the further advancement in Ticket Checking Cadre, which all benefits have already been given to you.
It is also on record that Sri Mohd Islam was senior to you from the very inception in service and he was given further promotions in Ticket Checking Cadre within the ambit of rules on the basis of his seniority and suitability as per rule. The promotional benefit under restructuring extended to Sri Mohd. Islam is not admissible to you, being junior and not eligible for consideration.
The issue raised is reconsidered and the decision taken in the matter is advised accordingly."
18. The contention of the applicant's counsel is that the order dated 12.9.2013 was passed on same grounds as the order dated 22.4.2010 which was quashed by the order dated 12.12.2012 of the Tribunal. But it has not been demonstrated to us as to how the order dated 12.9.2013 is 12 not in accordance with the order dated 12.12.2012 of the Tribunal. Prima facie, the impugned order dated 12.9.2013 did not refer to the order of the Tribunal in the case of Syed Mahfuzal Islam which was held to have covered the case of the applicant. Though the order dated 12.9.2013 has referred to the case of one Sri Mohd Islam who was senior to the applicant, but there was no mention of the case of Syed Mahfuzal Islam. Learned counsel for the applicant has also not placed before us a copy of the order of the Tribunal in the case of Syed Mahfuzal Islam to show how application of the order in that case would have justified the claim of the applicant.
19. However, the order dated 29.10.2010 passed by this Tribunal in the case of Syed Mahfuzal Islam and others vs. Union of India and others in OA No. 1301/08, which was referred to in the order dated 12.12.2012, was obtained and perused by us. The facts of the OA No. 1301/08 are similar to the facts of the present OA. In the order dated 29.10.2010 OA No. 1301/08, it was held as under:-
"15. In view of the above, the real benefit of affording higher seniority should accrue when the same is accompanied by promotion. And, since there was no written examination at the time of restructuring, the respondents should logically and reasonably consider the promotion of the applicants on the basis of their seniority, without subjecting them to any written test.
16. The O.A. is therefore, allowed. The impugned order dated 14-08- 2008 is hereby quashed and set aside. It is declared that the respondents ought to have conducted review of the promotion made during re-structuring to be in conformity with the revised seniority. Failure to so revise the promotion at the time of restructuring resulted in a great prejudice. As the respondents have no objection in considering them for promotion, provided they qualify in the examination, the same holds good to prove that accommodating the applicants in the high grade is not agitated, but the same should be after qualifying the examination. This condition should go and the applicants should be considered for promotion by the authorities, without compelling them to sit for the examination. Ordered accordingly. Their seniority should also be duly fixed as Chief Ticket Inspector (6500 10500) on the basis of their seniority in the feeder grade. It is for the respondents to adjust the already promoted Chief Ticket Inspectors as per law, if need be, by creating supernumerary posts for a minimum spell."13
20. Now we will examine if the order dated 29.10.2010 in OA No. 1301/08 will be helpful for the case of the applicant. It is noted that the eligibility of promotion was subject to the condition that the employee concerned should pass the qualifying examination. In the present OA, the applicant had failed to pass the qualifying test held on 21.12.1996 and on 28.3.1998 as per the order dated 22.4.2010 (Annexure A-14) and these facts have not been denied by the applicant in his pleadings. In addition, the fact that the applicant was absorbed in the TTE cadre on 13.1.1995 is undisputed. Hence, there is no justification for the promotion of the applicant to the grade of Head TTE from the year 1993, when he was not borne in the cadre and he had not qualified the test prescribed for the grade of Head TTE. Hence, even after applying the decision of the Tribunal in the case of Syed Mahfuzal Islam to the case of the applicant, there is no justification for his claim for promotion to the grade of Head TTE in pay scale of Rs. 5000-8000 from the year 1993.
21. In the restructuring of the cadre as per the circular dated 27.1.1993 (Annexure A-6), one time relaxation from qualifying test was given as clearly stated in the said circular. It is also mentioned therein that all vacancies arising from 2.3.1993 will be filled by normal selection procedure, which implies that for the vacancies after 2.3.1993, the usual qualifying test will apply. Since, the applicant was absorbed in the cadre from 13.1.1995, he cannot claim the benefit of one time exception as envisaged in the circular dated 27.1.1993. Moreover, he had unquestioningly appeared in the test conducted on 21.12.1996 and 28.3.1998.
22. In view of the discussions as above, we are inclined not to interfere with the decision of the respondents in the matter. Accordingly, the OA, being devoid of merit, is dismissed. There will be no order as to costs.
(RAKESH SAGAR JAIN) (GOKUL CHANDRA PATI) JUDICIAL MEMBER ADMINISTRATIVE MEMBER