Central Administrative Tribunal - Ahmedabad
B N Dhanotia vs M/O Railways on 14 August, 2020
(CAT/AHMEDABAD BENCH/OA/126/2013) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH, AHMEDABAD
Original Application No. 126 of 2013
This the14th day of August, 2020
Date of Reserve: 04.08.2020
Date of Pronouncement:14.08.2020
CORAM :
HON'BLE SHRI JAYESH V BHAIRAVIA, MEMBER (J)
HONBLE DR A K DUBEY, MEMBER(A)
Shri Bhupendra Kumar N Dhanotia,
S/o. Shri Namichand Dhanotia,
Aged 47 years,
Working as JE-II, under SSE (Sig.) GDA I,
R/O: 16, Sarjan Duplex, Dashamaa Mandir Road,
Govindi, Godhara - 389 001. ... Applicant.
By Advocate Ms S S Chaturvedi
V/s
i) Union of India,
Notice to be served through
General Manager, Western Railway,
Churchgate, Mumbai - 400 020.
ii) Divisional Railway Manager (E),
Western Railway, Pratapnagar, Baroda - 390 004.
iii) R D Kulkarni
iv) Yogesh G Bhatt
v) M P Makwana
vi) Vishnu Pendum
vii) Narenndra Kumar Pawar
(All the private respondents iii to vii notice served through-
Divisional Railway Manager(E),
Western Railway, Pratapnagar,
Baroda - 390 004.) ... Respondents
By Advocate Shri M J Patel
ORDER
Per Dr A K Dubey, Member(A) 1 The instant OA has been filed by the applicant seeking quashing and setting aside of is order dated 26.03.2013 which is a reply to the applicants' representation on seniority (Annexure A/1) given by the respondent and (ii) (CAT/AHMEDABAD BENCH/OA/126/2013) 2 order dated 28.03.2013 promoting three officers to the post of Signal Supervisors S&T Deptt. BRC Divn. (Annexure A/2), on the plea that the respondents should conduct selection as per inter-se seniority of promotion quota with applicants and private respondents.
2 The relief sought for in the OA are as follows:-
"8.1 Lord ships be pleased to admit this petition. And be pleased to issue order quash and setting aside Annexure A/1 and A/2. 8.2 And be pleased to direct the respondent to selection may be conduct as per inter-se seniority of the promote quota qua with applicant with private respondent with all consequential benefit.
8.3 The Order for be call for the record.
8.4 Any other relief which the Hon'ble Tribunal deems fit. 8.5 Cost of suit to be awarded."
3 The facts of the case in brief as stated by the applicant is that the applicant after having been medically de-categorized as Asstt. Loco Pilot passed in Aye 3 with glass, was absorbed as ESM Gr. II from 1992 in pay scale of Rs.4000-6000 RSRP and was promoted as ESM Gr. I from 1993. He was further promoted as MCF in scale of Rs.5000-8000 vide order dated 28.7.2005. Thereafter the respondents issued notification for the post of JE-II in the scale of Rs.9300-34800 + GP 4200 on 25.05.2007 (Annexure A/6) against 20% LDCE quota. The applicant appeared in 20% LDCE quota selection and respondents issued the promotion order to the post of JE-II in scale of Rs.5000-8000 vide order dated 31.08.2007 in which it has been stated that the competent authority approved the panel w.e.f. 31.08.2007 (Annexure A/8). The applicant was selected in LDCE promotion quota and his inter-se seniority should have been fixed treating date of entry as 31.08.2007 i.e. the date of approval of the panel. 3.1 The applicant submits that the respondent issued seniority list dated 04.10.2010 (Annexure A/4) but he was not aware of the publishing of seniority list. He filed RTI application dated 22.12.2012 and in its reply (CAT/AHMEDABAD BENCH/OA/126/2013) 3 dated 09.01.2013 (Annexure A/7), the applicant came to know about the seniority list of 04.10.2010 and that his name was at serial no.22 below the RRB Quota candidates but according to him his name ought to have been above RRB Quota as applicant's panel was approved on 31.08.2007. Dissatisfied with the date of entry mentioned in seniority list published on 12.02.2013, applicant submitted his objection vide his representation dated 25.02.2013(Annexure A/8). Earlier, he had sought information on seniority under RTI Act vide his RTI request dated 18.10.2012. Thereafter respondents issued a memorandum for seniority dated 22.03.2013 treating the seniority list published vide memorandum dated 12.02.2013 (Annexure A/3) as final. The applicant's name appears at Sr. No.8 below the RRB Candidates in this final list.
3.2 The respondents issued a Memorandum dated 28.03.2013 (Annexure A/2) showing the select list for promotion to PB 2 + GP 4600 and accordingly declared six posts including SC two as general, 2 UR and 1 ST as general but approved to fill up only 5 posts as no ST candidate was available. The applicant having been selected through LDCE and not being a direct recruit candidate, respondents had not issued the posting order till the date of filing of OA. Counsel for the applicant contended that the respondents had not properly assigned the seniority as per date of entry and had also rejected applicant's representation dated 25.02.2013 vide order dated 26.03.2013 without application of mind. 3.3 In the OA, the applicant has contended as a ground that respondents had violated IREM Para 302 wherein it is clearly stated that the seniority among the incumbents of a post in a particular grade is governed by the date of entry to that grade (Annexure A/9) and that the respondents have (CAT/AHMEDABAD BENCH/OA/126/2013) 4 neither published the seniority list timely nor communicated it to the applicant. The representation of the applicant was also not disposed of in accordance with the rule. Hence this OA.
4 On receipt of notice, a detailed reply has been filed by respondents stating that applicant was selected through LDCE Quota and panel was effective from 31.08.2007 but the applicant was assigned seniority from the date of his regular promotion i.e. 11.09.2008 which is as per Para 302 of IREM Vol.I 1989. This Para 302 of IREM Vol.I 1989 reads as under:-
"In categories of posts partially filled by direct recruitment and partially on promotion, the criterion for determination of seniority should be the date of regular promotion after due process in case of promotee and the date of joining the working post after due process in case of direct recruits, subject to maintenance of inter-se-seniority of promotees and direct recruits 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 alternative positions, the promotees being senior to the direct recruits maintaining inter-se-seniority of each group."
Respondents have also stated in the reply that the seniority list dated 04.10.2010 had already been corrected vide office notification dated 12.02.2013 as per provision of Para 302 of IREM Vol.I. Further, respondents have contended in their reply that assessment for filling up the post of SSE in PB 2 plus GP 4600 on the basis of suitability with prescribed, bench marking of posts (1 ST + 5 UR) was done and accordingly select list was issued vide Memorandum No.E/Sig.1125/6/2 Vol.II dated 28.03.2013 in which 2 UR, 2SC and 1 ST (treated as general) names figured (Annexure A/2).
5 Heard Ms S S Chaturvedi, learned counsel for applicant and Shri M J Patel, learned counsel for respondents. The sequence of events has been that the applicant, after having been de-categorised as Assistant Loco Pilot was absorbed as ESM Gr. II from 1992 and was promoted as ESM Grade I in 1993. Thereafter he was promoted as MCF in the scale of Rs.5000 - (CAT/AHMEDABAD BENCH/OA/126/2013) 5 8000 vide order dated 28.07.2005. Subsequent to this, the applicant appeared in and cleared the LDCE and got placed in the provisional panel of JE/II/Signal under 20% LDCE Quota, vide Memorandum No.E/Conf.(S)/E/Sig/1025/7/11/ Vol.II dated 31.08.2007(Annexure A/5). Subsequently Memorandum No. E/SIG/839/7/1 Vo. X dated 11.09.2008 was issued by respondents the first para of which reads as under:-
".............On completion of successful training of following intermediate Apprentice against 20% LDCE quota is promoted as JE.II Signal scale 5000- 8000."
This memorandum has been placed on record as part of Annexure 6 (Collectively).
6 The main contention of the applicant is that his seniority in 5000-8000 grade should have been indicated w.e.f. 31.08.2007 (Annexure 5), but respondents have reckoned it w.e.f. 11.09.2008 (part Annexure 6) and hence the seniority list should be quashed. Counsel for the applicant also relied on this Tribunal's order dated 10.05.2005 in OA 424/2005 in which the inter se seniority was contested on the basis of Rule 227 and 302 of IREM.
7 We have carefully gone through the documents, various memoranda produced by the parties and Rule 302 of IREM. We see that the basis of contesting the date of seniority by the applicant is the date of putting him on provisional panel of JE. However, if we read it together with the provision contained in Rule 302 of IREM, it is clear that the date of regular promotion after due process is the criterion in this regard. In fact the due process is so sacrosanct that vide Note (i) to Rule 302, even if the training period is curtailed in the exigencies of service, the date of joining of working post in case of such a direct recruit shall be the date on which he would have (CAT/AHMEDABAD BENCH/OA/126/2013) 6 normally come to a working post after completion of the prescribed period of training. Note (ii) of Rule 302 IREM makes the Note (i) applicable to LDCE recruitees too. Hence we find that the respondents have acted in accordance with the Rule 302 and have corrected the seniority list vide memorandum No.E/S&T/1130/7/2 Vol.IV dated 12.02.2013, and communicated to the applicant vide their letter No.E/Sig/1130/7/2/Vol. IV dated 26.03.2013.
8 After considering aforementioned facts and records before us, we have arrived at the conclusion that the applicant has not been able to establish any infirmity with regard to the date of seniority upon his appointment after his success in LDCE and provisional empanelment for promotion. We also find that assignment of seniority is in accordance with the Para 302 of IREM Vol.I in this regard. Hence, the OA is dismissed. No order as to costs.
(Dr. A.K.Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
abp