Central Administrative Tribunal - Allahabad
Sheo Kumar vs The Union Of India on 19 May, 2009
OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH
ALLAHABAD
(THIS THE 19TH DAY OF MAY 2009)
PRESENT
HONBLE MR. JUSTICE A.K. YOG, MEMBER-J
HONBLE MR, S. N SHUKLA MEMBER- A
ORIGINAL APPLICATION NO. 794 of 2001.
(U/S 19, Administrative Tribunal Act, 1985)
Sheo Kumar, aged about 45 years, son of Late Badri Narayan Srivastava, Resident of 288-A/56-B/12-B, Tilak Nagar, Allahpur, Allahabad. Presently posted as Upper Division Clerk at the Central Administrative Tribunal, Additional Bench, Allahabad.
. . . . . . . . .Applicant
By Advocate : Shri Shyamal Narain
Versus
1. The Union of India, through the Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, New Delhi.
2. The Chairman, Central Administrative Tribunal, Principal Bench, 61/35, Copernicus Marg, New Delhi.
3. The Central Administrative Tribunal, Principal Bench, New Delhi, through the Principal Registrar, 61/35, Copernicus Marg, New Delhi-110001.
4. The Central Administrative Tribunal, Additional Bench, Allahabad, through the Registrar.
5. Tribhuvan Nath Kushwaha, son of Late Munni Lal Kushwaha, presently posted as Section Officer, at the Central Administrative Tribunal, Allahabad Bench, Allahabad.
6. Vijay Kumar Srivastava, son of Late Rahuvir Sahay, presently posted as Section Officer at the Central Administrative Tribunal, Allahabad Bench, Allahabad.
. ..Respondents
By Advocates : Shri S.C. Mishra
Alongwith
Shri S.N Chatterji .For Resp. Nos.1 to 4
Shri S. Dwivedi..For Resp. No.5
Shri A. Srivastava..For Resp. No.6.
O R D E R
(DELIVERED BY JUSTICE A.K. YOG - JUDICIAL MEMBER) Sheo Kumar/Applicant seeks to challenge- Seniority List and consequential impugned promotional orders- dated 31.08.2005/2.09.2005, 29.9.2005, and 6.06.2007- (Annexures A-3, A-2 & A-1 respectively) interalia amongst others, on the above-ground vide para 5 (R) of the O.A. which reads.
5(R). Because the impugned orders and actions of the respondents are contrary to law and opposed to the well established principles of equity, fair play and natural justice and as such, liable to be interfered with by this Honble Tribunal.
(Underline by us to lay emphasis)
2. Primarily, issue to be decided in this O.A. is whether long settled inter-se Seniority between the parties (viz. the Applicant and Respondent No. 5 & 6) could be disturbed to the prejudice of the Applicant without giving notice and affording opportunity of hearing?
3. Heard learned counsel of the parties. Perused the pleadings and the documents on record.
BACK-GROUND;-
4. Sheo Kumar, T.N Kushwaha and V.K. Srivastava- (Applicant and Respondent No. 5 & 6 respectively in the present O.A) were initially employed as Copyist in District-Judgeships of Azamgarh, Moradabad and Ballia (in the State of U.P); Sheo Kumar and T.N Kushwaha- were later transferred and absorbed in District Judgeship, Allahabad; Central Administrative Tribunal - Allahabad Bench (established -under The Administrative Tribunal Act, 1985)- invited applications for appointment on deputation on the posts of L.D.C. (Lower Division Clerk) in its Registry; above-mentioned persons applied and- on being selected they joined as such; as well as later absorbed on regular basis in the Tribunal vide order dated 24.08.1992- Annex. A-13/Compilation II issued by C.A.T.- Principal Bench; for convenience-, reproduced below:-
To The Registrar Central Administrative Tribunal Allahabad Bench Sub: Absorption of officials in the C.A.T-reg.
Sir, I am directed to convey the approval of the competent authority to the absorption of the following officials to the post of Upper Division Clerk with effect from 15.2.1990:-
S. No. Name with present designation
i) Shri M.A. Raza, U.DC (adhoc)
ii) Shri Sapan Kumar, UDC (adhoc)
iii) Shri Sheo Kumar, UDC (adhoc)
iv) Shri T.N Kushwaha UDC (adhoc)
v) Shri V.K. Srivastava, UDC(adhoc)
2. The inter-se-seniority of the above officials shall be determined as per norms issued by this Tribunal.
3. The pay of the above officials on absorption may be fixed by the Allahabad Bench in consultation with FA & CAO.
4. So far as above named officials are concerned the order of the absorption issued earlier vide our letter No. 1/25/89-Estt. Dated 18.5.1990 withheld by Allahabad Bench stands modified accordingly.
5. You may take further action accordingly.
Yours faithfully.
(Raghubir Singh) Dy. Registrar (E) (Underlined to lay emphasis)
5. Micro-Details, pertaining to working of contesting parties (in District Judgeship/s) prior to their joining the Tribunal is out of contest and irrelevant as discussed hereinafter. It is admitted to the contesting parties that Tribunal - Allahabad Bench had prepared a inter-se seniority list after inviting and considering objections and also after collecting information- from the then District Judge Allahabad, who submitted desired information to the then Registrar Alld. Bench vide letter dated 23.7.1994 - (Annexure A-20/Compilation II and also filed as Annexure 23 to the Counter Affidavit filed by Respondent No. 1 to 4); which reads:-
From 23.07.1994
The District Judge,
Allahabad.
To
Shri R.S. Chaubey,
Registrar
Central Administrative Tribunal,
Allahabad.
Subject: Seniority list in respect of Lower Court Staff on deputation with C.A.T, Allahabad.
Sir, With reference to your letter NO. CAT/Alld/Admn/Confd.2__/94 dated 12th/15th July 1994 on the subject noted above, I have to inform you that inter-se-seniority of the officials mentioned in the letter under reference in accordance with the gradation list in respect of class III employees in this Judgeship is given below:-
1. Shri H.A Raza
2. Shri Sapan Kumar
3. Shri Sheo Kumar
4. Shri T.N Kushwaha.
Yours faithfully.
Sd/ District Judge Allahabad (Underlined to lay emphasis)
6. It is, therefore, clear that Allahabad Bench, proceeding bonafide in normal course prepared inter-se Seniority List vide Office Order No. 15/95 dated January 20, 1995, in supersession of all earlier draft seniority lists of U.D.C in its Registry (Annexure A-14/Compilation II to the O.A.), relevant extract given below:-
Dated the January 20, 1995 OFFICE ORDER NO.15/95 Subject : Final Seniority list of UDCs of Allahabad Bench of the Central Administrative Tribunal regarding.
In supersession to the draft seniority list issued vide our Note No.CAT/Alld/Admn/Confd.20/93 dated the 27.04.93 and objections received from the persons concerned. The objections have been considered and the Final Seniority List is enclosed herewith for information of all concerned.
This issues with the kind orders of the Honble Vice Chairman, Allahabad Bench.
(R.S. Chaubey) Registrar Encl : As above :
No. CAT/Alld/Admn/Confd. 20/94 /TR-208 of date Copy to :
1. Officials concerned.
2. Accounts Officer
3. All Section Officers
4. All Court Officers
5. P.S. to Honble Vice Chairman
6. The Deputy Registrar (E), CAT, PB, New Delhi
7. FA&CAO, CAT, New Delhi
8. PAO, CAT, New Delhi
9. Office order folder
10. P.F. of the Officials.
FINAL SENIORITY LIST IN RESPECT OF UPPER DIVISION CLERK AT ALLAHABAD BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL.
Sl. No. Educational Qualification and date of birth Date of Deputation in CAT and against the post Date of promotion as UDC in C.A.T. Date of absorption in the C.A.T. Remarks 1 to 3 ..
..
5Sheo Kumar, B.A. 01.01.1961 01.02.1988 as LDC 15.02.1990 15.02.1990
6. T.N. Kushwaha, B.A. 01.08.1957 18.11.1987 as LDC 15.02.1990 15.02.1990
7. V.K. Srivastava, M.A. 16.08.1956 02.03.1988 as LDC 15.02.1990 15.02.1990
8. ..
..
.
..
(Underlined to lay emphasis by us)
7. Perusal of said Office Order NO. 15/95 clearly mentions that inter-se seniority was determined after inviting and considering objection/s from the concerned. In this list - names of T.N Kushwaha and V.K. Srivastava (Sl. Nos. 6 & 7 respectively) have been placed below the names of Sheo Kumar/ Applicant is at Sl. NO. 5
8. Respondent No. 5 & 6 do not claim that they had no knowledge of said Officer Order No. 15/95 when it was issued in the year 1995 nor claim to have objected to it for about a decade thereafter. Conspicuously, they do not claim that said Seniority list was not circulated/notified for information to the concerned. In the admitted facts, Seniority list, notified vide Officer Order No. 15/95- attained finality and settled inter-se seniority amongst the concerned. No valid excuse even given in these proceedings on behalf of the Respondent to ignore said Seniority List.
9. C.A.T- Principal Bench through its letter dated 7.11.2000 (under signature of the then Dy. Registrar (E) ,showed names of V.K. Srivastava, Sheo Kumar and T.N Kushwaha at Sl. No. 28, 29 & 31 respectively but it rectified the Mistake. Name of Sheo Kumar (at Sl. No.11) was shown above the names of T.N Kushwaha and V.K. Srivastava (at Sl. No. 12 & 13) vide- C.A.T.-PB- vide its letter dated 03.06.2004 (Ann. A-16/Comp. II) which is quoted below:-
Sub:-DRAFT SENIORITY LIST OF UDCs APPOINTED/ABSORBED/REGULARISED IN C.A.T. ON OR AFTER 02.11.1989 AS ON 31.03.2004 ON CENTRALISED BASIS REG.
Sir, I am directed to forward herewith the draft seniority list in the grade of UDC as on 31.03.2004, in respect of those UDCs who were appointed/absorbed/regularized in CAT on or after 02.11.89, on centralised basis and to request that the same may be circulated amongst all concerned, inviting objections, if any, to the placement assigned to each of the officials in the grade in the said draft seniority list and forward to us objections, if any, on or before 15.07.2004 positively, alongwith your comments and supporting documents with the approval of the Honble Vice-Chairman/Honble Member In-charge. I may also request that while forwarding objections you may verify the service particulars of each of the officials in the grade of UDC indicated against each in the draft seniority list. If there are some discrepancies or otherwise you are requested to kindly bring home to us. Please acknowledge the receipt and please accord top priority to the subject matter.
Relevant Extract of above-referred -Draft Seniority- List - reads-
DRAFT SENIORITY LIST OF UDCS APPOINTED/ABSORBED/REGULARISED IN C.A.T. ON OR AFTER 02.11.83 ON CENTRALISED BASIS AS ON 31.03.2004.
Sl. No. Name of the Officer and Qualification Date of Birth Whether SC/ST Name of the Parent Department 1 2 3 4 5 1 to 10 11 Sheo Kumar, B.A. 01.01.61 NO Civil Court Allahabad 12 T.N. Kushwaha, B.A. 01.08.1957 NO Distt Court Allahabad 13 V.K. Srivastava, M.A. 16.08.1956 NO Distt Court Ballia 14 to 20 Post with held in parent Deptt. On regular basis with date & scale of pay Post & date of joining CAT Date of absorption in the grade of UDC in CAT Name of Bench where the individual is posted Remarks 6 7 8 9 10 Copyist 03.07.81 350-1500 (Rev.) Suit Clerk 04.03.83 1200-2040 (Rev.) LDC 01.02.88 Absorbed as LDC 01.11.89 UDC 15.02.90 Allahabad Copyist 09.01.80 950-1500 (Rev.) Suit Clerk 23.05.89 1200-3040 (Rev.) LDC 13.11.87 Absorbed as LDC 01.11.89 UDC 15.02.90 Copyist 01.02.80 950-1500 (Rev.) LDC 02.03.88 Absorbed as LDC 01.11.89 UDC 15.02.90
10. Inter-se seniority list-notified vide Office Order No. 15/95 finds mention in para 4. xv of the O.A. and quoted below:-
4.xv. That vide Office Order NO. 15/95 dated 20th of January 1995, the final seniority list of U.D.Cs of Allahabad Bench of C.A.T. was issued and a copy of the same, along with the said order, is being annexed herewith and marked as ANNEXURE NO. A-14 to Compilation NO.II. A perusal of this seniority list would also show that the present applicant was placed at Sl. No. 5 and was above both, respondent Nos. 5 and 6, who were shown at Sl. Nos. 6 and 7 of the said seniority list.
(Emphasis laid by us) Para 11 of the Counter Reply/Counter Affidavit filed by respondent No. 5 and 6 respectively. In reply to aforequoted paras of the O.A., pleaded as follows:-
Para 11 of Counter Reply respondent NO. 5:
That the contents of paragraph 4 (15) of the Original Application are matter of record moreover the correct position of seniority of applicant and respondent NO. 5 was not mentioned in the list and order referred in para under reply.
Para 11 of Counter Affidavit of respondent NO. 6:
That the contents of paragraphs 4 (i) to 4 (xx) of the Original Application need no comments being matter of record.
(emphasis laid by us) 11 Para 20 of the Rejoinder Affidavit (in reply to aforequoted Para 11 of counter- reply of respondents No. 5) reads:-
20. That the contents of paras 11 and 12 of the counter reply are absolutely misconceived and false. Hence, vehemently denied. In reply, the contents of paras 4 (xv) and 4 (xvi) of the original application are once again reiterated. Indeed, if the seniority list referred to in paras 4 (xv) and 4 (xvi) of the original application had wrongly shown the respondent NO. 5 as junior to the applicant, it needs to be explained by the answering respondents as to why he did not object to the same or challenge it before any forum.
(emphasis provided by us)
12. Seniority of the parties as per Office Order No. 15/1995 was, without objection from any quarter, remained intact throughout till 2005 (i.e prior to issuance of impugned seniority list/orders) as pleaded vide paras 4.xvii and 4.xviii of the O.A., quoted below for convenience:-
4.xvii That the applicant had moved a representation pointing out the mistake committed by the Tribunal in placing Shri V.K. Srivastava higher than him in the aforesaid seniority list, but, that aspect of the matter is no longer relevant since, in the subsequent seniority lists issued by the C.A.T., the mistake mentioned above, was rectified and the applicant was restored to a position higher than Shri V.K. Srivastavas.
4.xviii That vide letter dated 3.6.2004, issued by the Principal Bench of C.A.T., a draft seniority list of U.D.Cs appointed/ absorbed/regularized in CAT on or after 2.11.1989, as on 31.3.2004, on centralized basis, was issued and objections were invited to the placement assigned to each of the officials in the said draft seniority list. A copy of the letter dated 3.6.2004, alongwith copy of the draft seniority lsit as on 31.3.2004, on centralized basis, is being annexed herewith and marked as ANNEXURE No. A-16 to Compilation NO.II. It may be seen form the said draft seniority list that while the name of the applicant figures at Sl. No.11, the names of respondent NO. 5 and 6 appear at Sl. Nos. 12 and 13 respectively. This draft seniority list is also significant in so far as it clearly shows that the mistake committed earlier by the official respondents in showing the name of Shri V.K. Srivastava (Respondent NO. 6) above the name of the present applicant had been set right. Further, column of the said draft seniority list clearly shows that while the applicant was shown to have been promoted as Suit Clerk (actually Appeals Clerk) with effect from 4.8.1988, the Respondent NO. 5 had been shown to have been promoted as Suit Clerk with effect from 23.5.1989 i.e. later than the present applicant (emphasis provided by us) Aforequoted paras 4.xvii and 4.xviii, the O.A. have been replied as follows:-Counter Affidavit of Respondent No.1 to 4
4. That the contents of paragraphs No. 4 (i) to 4 (xx) of the Original Application need no comments being matter of records.Counter Reply of Respondent No. 5
13. That the contents of paragraph 4 (17) of the Original Application are matter of record.
14. That the contents of paragraph 4 (18) and 4 (19) of the Original Application are matter of record moreover the applicant was wrongly shown senior to applicant in the papers and annexures referred in para under reply. In fact the respondent No. 5 in all respect is senior to applicant but due to incorrect fixation of seniority he was illegally shown junior to him. It is further submitted that the suitable reply have already been given in the preceding paragraphs of this Counter Reply.Counter Affidavit of Respondent No. 6
That the contents of paragraphs 4 (i) to 4 (xx) of the Original Application need no comments being matter of record.
(Underlined to lay emphasis)
13. It is beyond doubt, from the perusal of above pleadings, that said interse- Seniority List issued by Tribunal-Allahabad Bench-vide Office Order No. 15/95- Annexure A-14/Comp. II and Draft Seniority List dated 3.6.2004 Annexure A-1/Compilation II was never challenged/disputed or otherwise modified/revoked.
14. Learned counsel for Respondents NO. 5 argues with vehemence that District Judge, Allahabad did not furnish Complete and correct information and that they had no knowledge of the information of it till the year 2007; as and when, he came to know of it, he look steps to collect correct facts. What happened thereafter, has not been disclosed through Registrar- Allahabad Bench- in the year 2007 itself. Paras 1-H and 1-M of Counter- Reply of Respondent No. 5-read:-
1-H That in the month of August 2007 the respondent No. 5 when received the notice of above mentioned Original Application No. 794 of 2007 filed by Sheo Kumar then he came to know about the order dated 6.3.1987 and letter dated 23.7.1994 passed/issued in respect of seniority of applicant and from the said original application the respondent No. 5 for the first time came to know that he is actually senior in all respect from the applicant and the order dated 6.3.1987 and 23.7.1994 are absolutely his seniority and before passing said order and letter no notice or opportunity of hearing was given to him. Since the said order dated 6.3.1987 and 23.7.1994 were passed and issued behind the back of respondent No. 5 as such the same are highly arbitrary and illegal in law.
1-M That the District Judge, Allahabad has not given any reply of the representation submitted by respondent No. 5 till date apart from this the District Judge Allahabad has not given reply of query made by the Central Administrative Tribunal in the matte, under these circumstances it is just and expedient to direct the applicant to implead to District Judge, District Allahabad as respondent in the above mentioned original application and necessary notices may be issued to him so that the correct position of fact may come before this Honble Court for the purpose of deciding the dispute involved in the matter.
15. From the above pleadings, as they stand on record, it is established that Respondent No.5- has not challenged at any stage Seniority List (issued vide office Order No. 15/95) and Draft Seniority List dated 3.6.2004 issued by C.A.T. Principal Bench- before competent forum till date.
16. On behalf of T.N Kushwaha/Respondent No.5-reference is made to his letter dated 6.9.2007 and 17.9.2007 (Annexure CA-1 & CA-II to Counter Reply of Respondent No. 5 to show that he did challenge/object to the information supplied by District Judge, Allahabad. Interestingly these documents have come into existence only after Sheo Kumar had assailed the impugned Seniority List/promotional orders.
17. Moreover, Respondent No. 6/V.K. Srivastava- has no concern with Allahabad Judgeship, its Gradation list and information provided by District Judge, Allahabad. He has never objected to it any stage in the past. Gradation List of Allahabad District Judgeship (an Information provided by District Judge) which has lost efficacy and it is-for all purpose a closed chapter particularly after seniority list was notified vide Office Order No. 15/95.
18. Law does not permit long-settled inter-se seniority list (prepared by Allahabad Bench way back in 1995 - Annexure A-14 to the O.A.- to be unsettled/ignored particularly when said Respondents had full knowledge of it for more than a decade. Reference is made to the following Apex Court case:-
1. J.T 1998 (1) SC 57 (B.S. Bajwa and Anr. Vs. State of Punjab & Ors). Para 6 reads:-
6. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Gupta sand this position was known to B.S Bajwa and B.D Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the questions of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition.
19. Respondent No. 5, it is strange, now-in the year 2007 woke up and making an attempt to raise objection to challenge Gradation list sent by District Judge in 1994. Such objection, apart from being highly belated, is an afterthought. He wants the Applicant to implead District Judge, Allahabad in this O.A.- to prove his case. Filing Application with prayer to implead, District Judge, Allahabad, Respondent No. 5 is not at all Bonafide conduct. It is a futile attempt to over-reach consequences of Latches/inaction for last about 10 years. Respondent cannot be permitted to make collateral challenge and long settled things should not be unsettled respecting Doctine of certainty.
20. It is well settled that where a person is not ready and willing to avail himself to the opportunity given, cannot make grievance about denial of opportunity at later stage. He has to thank himself for not availing himself of the opportunity. The contesting respondents cannot be allowed to challenge inter-se seniority prepared by C.A.T. Allahabad Bench and thereafter by C.A.T. Principal Bench on the ground of denial of opportunity and/or violation of principle of natural justice in the O.A. filed by Sheo Kumar. In the Indra Bhan Gaur Vs. Committee, Management of M.M. Degree College & Ors., 2004 A.T.J (2) SC 176 SC- held:
From the judgment of the High Court, in the writ petion is appears that there is no reference to the alleged infirmity on account of subsistence allowance having not been paid. There was also no specific finding recorded for the question of bias as alleged presently. We find that there was total lack of cooperation from the appellant as the factual background highlighted above would go to show. Ample opportunity was granted to the appellant to place his case. He did not choose to do so. It is only a person who was ready and willing to avail ofo opportunity given can make a grievance about denial of any opportunity and not a person like the appellant who despite repeated opportunities given and indulgence shown exhibited defiance and total indifference in extending cooperation. Therefore, on that score the appellant cannot have any grievance. In 1997 (10) SCC 386- Ranjan Kumar Mitra Vs. Andrew Yale. Apex Court observed as follows:-
In view of the fact that the appellants service was terminated after an enquiry in which the appellant chose not to participate, we are of the view that the appellant cannot assail his termination on merits..
21. Predicament of Respondent No. 1 to 4. is conspicuous on record since the Counter Affidavits filed in two different- proceedings do not reflect coherence. Govt. and its instrumentalities are expected to take just fair stand- in legal proceedings before Court/Tribunal instead of denying lawful claims of its employees and otherwise- for the sake of contest alone . It is to noted that Respondent NO. 6/V.K. Srivastava had filed OA No. 237/1996 (V.K. Srivastava Vs. U.O.I & Ors.). Sheo Kumar, T.N. Kushwaha apart from present Respondent No. 1 to 4, were impleaded as Respondents (in than O.A.) who filed counter affidavit (sworn by Khwaja A. Muntaqim -the then Registrar). In this respect Para 4.xxvi and 4.xxvii of the O.A. read-
4.xxvi That at this juncture, it is relevant to state that Respondent NO. 6 Shri V.K. Srivastava had preferred one O.A. NO. 237 of 1996, claiming seniority over and above the present applicant as also Shri T.N Kushwaha (Respondent No. 5 herein), and in the said Original Application, a counter affidavit had been filed on behalf of the official respondents through Shri Khwaja A. Muntaqim, the then Registrar of C.A.T, Allahabad, wherein vide para 9 it was stated as follows:-
.That interse seniority is determined in accordance with the substantive appointment to a post on a time scale of pay. .as regards the respondents Nos. 3 and 4, it is submitted that Shri Shiv Kumar, the Respondent NO. 3 was drawing pay in the pay scale of Rs. 1200-2040 (which is equivalent grade of Upper Division Clerk) w.e.f. 4.8.1988. The respondent NO.4, Shri T.N Kushwaha was drawing pay in scale of Rs. 1200-2040 w.e.f 23.5.1989. On the other hand, as per his service Book, the petitioners pay (i.e. the pay of Shri V.K. Srivastava) in the pay scale of Rs. 1200-2040 was fixed on 1.9.1989 at the stage of Rs.1200/-. It is further stated that both Shri Shiv Kumar and Shri T.N Kushwaha came to CAT, Allahabad from the District Judgeship, Allahabad, and their seniority position in Class 3 as per gradation list as per District Judges letter dated 23.7.1994 is that Shri Shiv Kumar has been shown senior to Shri T.N Kushwaha. A copy of the letter dated 23.7.1994 showing the seniority position of the Respondent Nos. 3 and 4 in the gradation list of class 3 under the District Judgeship of Allahabad is attached to this affidavit as Annexure-7. Thus, on the basis of substantive appointment to a post on a time scale of pay i.e. 1200-2040 Shri Shiv Kumar and Shri T.N Kushwaha, the Respondents No. 3 and 4 to the post of rank senior to the petitioner. Thus, the seniority position of the petitioner vis-`-vis the Respondents NO. 3 and 4 from the date of entry into grade Rs. 1200-2040 is shown as under:-
(1) Shri Shiv Kumar 4.8.88 (2) Shri T.N Kushwaha 23.5.89 (3) Shri V.K. Srivastava 1.9.89.
A copy of the letter of the then District Judge, Allahabad dated 23.7.1994, referred to in the counter affidavit of the Respondents, filed in response to O.A. NO. 237 of 1996, is being annexed herewith and marked as ANNEXURE NO. A-20 to Compilation NO.II. It is this very letter which had been annexed as Annexure No. CA-7 to the counter affidavit referred to above.
4.xxvii. That ironically, in para 12 of the self-same counter affidavit, referred to above, it was stated on behalf of the official respondents that In fact, from the facts stated in preceding paragraph, the Respondent NO. 3 Shri Shiv Kumar was given the grade of Rs. 1200-2040 on 4.8.1988, the Respondent No. 4 Shri T.N Kushwaha was given the grade Rs.1200-2040 w.e.f 23.5.1989, whereas the petitioner has been given the grade of Rs. 1200-2040 w.e.f 1.9.1989. Thus, the Respondent NO. 3 and 4 are senior to the petitioner and therefore, the question of promotion of the petitioner on the post of Assistant in the scale of Rs. 1640-2900 in supersession of the Respondents No.3 and 4 does not arise For a convenient and ready reference, the relevant extract from the aforesaid counter affidavit from para Nos. 9to 12 thereof is being annexed herewith and marked as Annexure NO.A-21 to Compilation No.II. The applicant has also obtained a certified copy of the aforesaid counter affidavit for fear of the same being weeded out and the same shall be produced at the time of arguments. It is also expedient in the interest of justice that this Honble Tribunal be pleased to call for the records of O.A. NO. 237/96 and order the same to be preserved till the disposal of this O.A.
(Underlined to lay emphasis)
22. Official Respondents- (including Central Administrative Tribunal, Allahabad Bench/Principal Bench) in the said O.A. No. 237/1996 filed by V.K. Srivastava- it contended that V.K. Srivastava was not senior to T. N. Kushwaha and Sheo Kumar. Paras 9 and 12 of their counter affidavit in said O.A. No. 237/96 read:-
9. That the facts stated in para 4 (6) of the petition are misconceived and are denied. It is stated that inter-se seniority is determined in accordance with the substantive appointment to the post on a time scale of pay. It is already stated above and it will also be clear from the service book of the petitioner under the District Judgeship Ballia, the petitioner was initially appointed as officiating Paid Apprentice on 3.9.1979 in scale of Rs.200-320. He was further appointed as Officiating Copyist w.e.f 1.2.1980 in pay scale of Rs.200-325 (since revised to 354-550). He was made permanent on the post of Paid Apprentice in the fixed scale of Rs.350/- by the order of the District Judge, Ballia dated 8.5.1986. Lateron, he was also appointed as Permanent Copyist in the scale of Rs.354-550 vide order of the District Judge, Ballia dated 18.12.1986.
As regards, the respondents NO. 3 and 4, it is submitted that Sri Shiv Kumar, the respondent no. 3 was drawing pay in the scale of Rs.1200-2040 (which is equivalent grade of Upper Division Clerk) w.e.f. 4.8.1988. The respondent NO. 4 Shri T.N. Kushwaha was drawing pay in scale of Rs.1200-2040 w.e.f. 23.5.1983. On the other hand, as per his Service Book, the petitioners pay in the scale of Rs.1200-2040 was fixed on 1.9.1989 at the stage of Rs.1200/-. It is further stated that both Shri Shiv Kumar and Shri T.N Kushwaha came to CAT Allahabad from the District Judgeship, Allahabad and their seniority position in class 3 as per gradation list as per District Judges letter dated 23.7.1994 is that Shri Shiv Kumar has ben shown senior to Shri T.N Kushwaha. A copy of the letter dated 23.7.1994 showing the seniority position of the respondent No. 3 and 4 in the gradation list of class 3 under the District Judgeship of Allahabad is attached to this Affidavit as ANNEXURE :7. Thus on the basis of substantive appointment to a post on a time scale of pay i.e. 1200-2040 Shri Shiv Kumar and Shri T.N Kushwaha, the respondent No. 3 and 4 to the post of Rank Senior to the petitioner. Thus, the seniority position of the petitioner vis-`-vis the respondents NO. 3 and 4 from the date of entry into grade Rs.1200-2040 is shown as under:-
(1) Shri Shiv Kumar 4.8.88 (2) Shri T.N Kushwaha 23.5.89 (3) Shri V.K. Srivastava, 1.9.1989
12. That the facts stated in paras 4 (1) of the petition are incorrect and are denied. It is incorrect to say that the petitioner and the respondent No. 3 and 4 have been appointed in the same grade on the same date. In fact, from the facts stated in preceding paragraphs, the respondent no. 3 Shri Shiv Kumar was given he grade of Rs.1200-2040 on 4.8.1988, the respondent NO. 4 T.N Kushwaha was given the grade Rs.1200-2040 w.e.f 23.5.1989, whereas the petitioner has been given the grade of Rs.1200-2040 with effect from 1.9.1989. Thus, the respondent No. 3 and 4 are senior to the petitioner and therefore, the question of promotion of the petitioner on the post of Assistant in the scale of Rs.1640-2900 in supersession of the respondents No. 3 and 4 does not arise. Moreover, the respondent No. 3 and 4, who were working on the post of Assistant on adhoc basis have since been reverted w.e.f. 29.2.1996.
(emphasis laid)
23. In view of the facts noted above, Respondents No. 1 to 4 (including C.A.T. Principal Bench and Allahabad Bench) could not, without lawful excuse, ignore inter-se Seniority List Notified under Office Order No. 15/1995 (Annexure A-14/Compl. II) and Draft Seniority List dated 3.06.2004 (Annexure A-16/Comp. II) without finalizing objection/s after giving opportunity to the concerned (like the Applicant). Impugned Seniority List dated 31.8.2005/2.9.2005 and impugned promotional orders (Annexure 3, 2 & 1 respectively) are thus clearly vitiated in law and a nullity being in violation of principle of natural justice to the extent it relates to the contesting parties in this O.A.
24. Respondents, as a last resort, referred to the Principal Bench order dated 8.8.2005 (Annexure A-17/Compilation II) which shows that name of V.K. Srivastava was shown above Sheo Kumar and T.N Kushwaha. Submission of the Respondents has no merit inasmuch as para 2 of this letter itself read:
2. Their seniority will be determined separately as per Rules.
It shows that it has no relevance to the issue of seniority-which was to be decided separately as per Rules.
Above order/letter does not at all support the argument of the Respondents.
REASONS:
25. Impugned Centralized Seniority List dated 31/32005/2.09.2005 Annexure A-3/Compilation I, prepared in exercise of powers under Rule 5 of The Central Administrative Tribunal (Group B & C Miscellaneous Posts) Recruitment Rules, 1989; to the extent it relates to Respondent NO. 5/T.N Kushwaha, Respondent No. 6/V.K. Srivastava and Sheo Kumar/the Applicant at Sl. NO. 33, 34 and 48 respectively (without inviting objections and giving opportunity before disturbing inter-se-seniority) and impugned orders of promotion dated 6.6.2007 and 29.9.2005 (Annexure A-1 and A-2/Compilation I to the O.A.) are vitiated and deserve to be quashed.
26. Principle of natural justice require, if rights of a person are effected prejudiced, giving of -adequate or reasonable Notice/opportunity of hearing to the concerned as otherwise order shall be a nullity CONCLUSION:
27. We have no hesitation to hold impugned centralized seniority list and consequent promotion orders (Annexure A-3, A-2 and A-1-Compilation I to the O.A.) which seriously affected rights of the applicant, not sustainable in law.
ORDER:
28. (i) Consequently, impugned promotion orders dated 6.6.2007 (Annexure A-1/Compilation I) and 29.9.2005 (Annexure A-2/Compilation I) and centralized seniority list dated 31.8.2005/2.9.2005 (Annexure A-3/Compilation I) are set aside only to the extent it relates to the Applicant and Respondent Nos. 5 and 6 with a directions to decide inter-se seniority afresh between them in accordance with Law; we further direct that in case the applicant (on fresh determination of Seniority) is found senior to Respondent Nos. 5 and/or 6, he shall be placed accordingly in the seniority list and entitled to all consequential privileges, benefits, etc.- treating him notionally promoted with effect from the date of issue of impugned promotional Orders -treating the impugned Centralized Seniority List dated 31.08.2005/2.09.2005 (Annexure 3/Compilation II) deemed amended from the date of its inception at par with others shown in the impugned seniority list/promotional orders (in question). We further provide that higher emoluments-(if any)-paid to Respondent No. 5 & 6-on the basis of impugned orders/List shall not be recovered nor they shall be required to be reverted to lower posts.
(ii) Any of the contesting parties may file, within 6 weeks from today, a certified copy of this order before Principal Registrar, Central Administrative Tribunal - Principal Bench, New Delhi for necessary action and to ensure finalization of seniority list, in accordance with law- within four months of receipt of certified copy of this order.
O.A. allowed subject to the above directions. No costs.
Member (A) Member (J)
Manish/-
??
??
??
??
19