Central Administrative Tribunal - Ahmedabad
Avnishkumar vs M/O Railways on 11 March, 2022
(CAT/AHMEDABAD/OA NO 302/2019) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.302/2019.
Dated this the day of March, 2022.
Reserved on : 15/09/2021
Pronounced on : 11.03.2022
CORAM:
Hon'ble Shri Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Shri Avnishkumar,
Son of Shri Krishna Prakash C. Sharma,
Age: 49 years, working as JE (PW)
In the office of the respondents,
Residing at: E/604, Shoral Parish,
IOC Road, Chandkheda,
Ahmedabad - 382 424.
2. Shri Kamalkant Sharma,
Son of Shri Shivdutt,
Age: 49 years, working as JE (PW)
In the office of the respondents,
Residing at A/2 Pawan Society,
Nr. Kailash school, Meghaninagar,
Ahmedabad - 380 016.
... Applicants
By Advocate: Shri M S Trivedi
V/s
1. Union of India, through
The Secretary, Ministry of Railways,
Rail Bhavan,
New Delhi - 110 001.
2. The General Manager,
Western Railway, Church Gate,
Mumbai - 400 020.
3. The Divisional Railway Manager,
O/o. DRM, Western Railway,
Ahmedabad Division,
Near Chamunda Bridge,
Ahmedabad - 380 002.
4. Pramod Kumar Singh
Age: 40 years (DoB being 05.01.1980)
(CAT/AHMEDABAD/OA NO 302/2019) 2
Son of Shri Baban Singh,
Presently serving as Senior Section Engineer, P.Way, PRJ
Under the SSE (P.Way), HMT of Ahmedabad Railway
Division of Western Railway Zone,
Address For Communication: Flat No.B, Akar "B"
Srinagar Society, Opp. My Life Hospital,
KALOL 382 721, Dist: Gandhinagar.
5. Sanjeev Kumar Singh,
Age: 36 years (DoB being 05.02.1983)
Son of Shri Hemant Prasad Singh,
Presently serving as Senior Section Engineer, P.Way, DHG,
Under SSE (P.Way), DHG-II, of Ahmedabad Railway Division,
Western Railway Zone,
Address For Communication:Qtr.No.101, HomeTown -4,
Near Dharti Nagar, IOC-Tragad Road,
Chankkheda, Ahmedabad 382 470.
6. Santosh Kumar,
Age: 35 years (DoB being 05.08.1984)
Son of Shri Ram Niwas,
Presently serving as Senior Section Engineer, P.Way, CHIB,
Chirai under the SSE (P.Way), BCOB of Ahmedabad Railway
Division, Western Railway Zone,
Address For Communicatio:
House No.3, Narayan Homes, Ucharpi Road, (Near Parth City)
Near Sai Baba Mandir, Post: Mehsana, Pin - 384 001.Gujarat.
7. Uma Shankar Ravi Ranjan
Age: 40 years (Do Being 01.01.1980)
S/o Shri Rajan,
Presently serving as Senior Section Engineer, P.Way
(LR) PTN, under SSE, P.Way,
Patan of Ahmedabad Railway Division of Western Railway Zone,
Address for Communication: House No. 143,
JEEL Residency, Near Railway Crossing, (LC NO.42)
PATAN 384 265, Gujarat.
By Advocate : Mr. A. L. Sharma - R-1 to R-3
Ms. M. S. Rao - R-4 to R-7.
(CAT/AHMEDABAD/OA NO 302/2019) 3
ORDER
PER: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. The present OA has been filed by the applicants under Section 19 of AT Act 1985 aggrieved by the impugned decision dated 05.09.2019 (Ann.A/1) whereby the representation seeking change in the notified seniority list of JE (PW) in GP Rs.4200/- dated 13.05.2019 was rejected by the O/o. DRM (E) ADI in terms of Para 321 of IREM Vol I and have sought the following reliefs:-
"8 (A) That Hon'ble Tribunal be pleased to allow this petition. (B) That the Hon'ble Tribunal be pleased to quash and set aside the impugned action, decision and communication of the respondents dated 5.09.2019 rejecting the request/representation of the applicants.
(C) That, the Hon'ble Tribunal further be pleased to direct the respondents to produce file/papers for perusal of the Learned Tribunal on which the seniority/notification of year 2014 and year 2017 were brought to the notice of the applicants. (D) That, the Hon'ble Tribunal further be pleased to direct the respondents to consider the representations of the applicants dated 31.05.2019 fresh and to assign the seniority of the applicants in view of the provision of Para 302 & 303 of IREM, considering the fact that the applicants are promoted on the basis of LDCE held by the respondents.
(E) Such other and further relief/s as may be deemed just and proper in view of the facts and circumstances of the case may be granted.
2. The brief facts as pleaded by the applicants in this OA are as under:-
2.1 The applicant no.1 joined the Railways as Gangman on 10.09.2004 and applicant no.2 joined on 27.04.2005. The applicants were promoted to the post of Sr. PWs on 20.07.2010. Since then they are working on the said post.
2.2 The respondent had circulated and notified the seniority list of Non Gazetted Group "C" Staff Engg. Department JE (PW) 9300-34800 + GP Rs.4200/- videnotification dated 13.05.2019 (Annexure A/2).
Against it they had submitted their objections dated 31.05.2019 (Annexure A/3) (CAT/AHMEDABAD/OA NO 302/2019) 4 2.3 The applicants in their representation referred to the seniority list dated 13.05.2019 alongwith selection panel dated 28.08.2009 and seniority list dated 01.04.2014 and raised objections against the present seniority list to the effect that the notified seniority list dated 13.05.2019 was not in accordance with the extant policy of selection (LDCE Panel) which was circulated vide letter dated 28.08.2009 during the selection procedure of Sr. PWS. Therefore, it was requested to look into the matter and correct the seniority list dated 31.05.2019.
2.4 It is contended that the respondent rejected the representation of the applicants vide impugned order dated 05.09.2019 (Ann.A/1) in a mechanical manner.
2.5 It is stated that the respondent issued office order dated 06.09.2019 (Ann.A/4) whereby employees from the draft seniority list dated 13.05.2019 had been placed in the select list for promotion to the post of SSE - PW in the GP Rs.4600/- without considering the representation or objections of other employees and without waiting for outcome of OA No.493/2012 as also without issuing any formal notification for finalizing the draft seniority list. Hence, this OA.
3. Learned Counsel for the Applicants mainly submits that impugned decision dated 05.09.2019 and the seniority list notified on 13.05.2019 are arbitrary, unjust and ex-facie illegal.
3.1 In the seniority list dated 13.05.2019, the name of applicant no.1 & 2 have been placed at Sr. No.27 & 40 respectively and date of entry in the Grade was shown as 21.07.2010 and 23.07.2010 respectively whereas the employees who had joined later, i.e., after 20.07.2010 and 21.07.2010 were shown senior to the applicants.
3.2 It is submitted that the respondent had never issued or circulated the seniority list of JE (P Way) in the year 2014 and 2017 as referred in the impugned order dated 05.09.2019 nor the same was brought to the notice of the applicants.
3.3 It is stated that para-321 of IREM is simply a compilation of instructions issued by the Railway Board; it has no statutory force, as (CAT/AHMEDABAD/OA NO 302/2019) 5 the same is not issued under Article 309. It is submitted that the seniority of the employee is required to be determined with reference to the date of his entry in service as held by Hon‟ble Apex Court in case of Ram Janam Singh Vs. State of UP and Anr. reported in (1994) 2 SCC 622. Therefore, mere fact that the applicants have not represented or objected to the notified draft seniority list, will not allow the respondent to deprive them from getting their correct & proper seniority position. Otherwise, it will cause grave and serious injustice to the applicants. The applicants have also placed on record the provisional panel list dated 28.08.2009 for promotion to the post of Sr.PWS and the copy of the notification dated 01.04.2014 with respect to the seniority list of Group-"C" Supervisory Staff of JE PWS and submit that the respondent had not considered their claim in its true spirit and erroneously operated the seniority list. 3.4 Further, it is submitted that the respondents have not followed the principle stipulated in provision of para-302 and 303 of IREM as far as fixation of seniority of the applicants is concerned. The applicants were selected and promoted on basis of a written test, i.e., LDCE, therefore their seniority was required to be determined on the basis of merit order in the select panel.
4. On the other hand, for the official respondents i.e. Respondent no.1 to 3 have filed their counter reply. The Learned Counsel Mr A L Sharma for the respondents submits that after the provisional seniority list dated 13.05.2019 of Group-"C" Supervisory Staff of JE PWS was notified, the respondents have further revised it and vide notification dated 28.11.2019 issued the revised seniority list and again invited objections. Further, it is stated that aggrieved by said revised seniority list dated 28.11.2019, some of the officers who were adversely affected had approached this Tribunal by way of OA 450/2019. The said OA was disposed of by this Tribunal at admission stage vide order dated 10th December, 2019 by directing the respondents to decide the representation of the applicants therein by passing a speaking order. In light of said direction and in compliance of the Tribunal‟s order, the respondents will take a fresh decision after receipt of representation from all the concerned employees. Therefore, the OA has (CAT/AHMEDABAD/OA NO 302/2019) 6 become infructuous and the applicant is not entitled for any relief sought for in the present OA.
5. The applicants have filed rejoinder dated 22.01.2020 and reiterated the contentions stated in the OA. Additionally, it is submitted that any fresh decision if taken by the respondent in compliance with direction dated 10.12.2019 issued by this Tribunal in OA 450/2019 will have no bearing on the issue involved in the present OA.
In this regard learned counsel for the applicants further submits that as far as applicants herein are concerned, they had participated in selection process for promotion to the post of Sr. PW against LDCE quota and were placed on panel dated 28.08.2009 and the name of Applicant no.2 was placed at Sr. No.19. Therefore, their seniority in the cadre of Sr. PWJ requires to be counted as per the said panel. The representation of applicant dated 31.05.2019 against seniority list dated 13.05.2019 requires to be considered afresh. It is further contented by the applicants that their subsequent representation dated 27.12.2019 filed against the revised seniority list dated 28.11.2019 be directed to be considered alongwith the representation of the applicants of OA 450/2019.
6. The Private respondent nos.4 to 7 impleaded later on as affected parties, have filed their reply. Learned counsel Shri M S Rao mainly submits that:
6.1 The reasons assigned by the official respondents in rejecting the belated representation of the applicants herein are cogent and in consonance with the Para 321 of the IREM.
6.2 After the appointment of applicants herein as Sr. PWS in the year 2010, the official respondents had published seniority list for the cadre of Sr. PW / JE from time to time i.e. dated 06.05.2012, 11.11.2013, 01.04.2014, 24.01.2017 and based on it, seniority list dated 13.05.2019 was published. Undisputedly, the applicants herein had never objected their merit order stated in the appointment order nor have they submitted any representation / objection to the previous seniority list which was published long back in the year 2012 - 2014. Therefore, after the said seniority list has been operated and settled long back, the applicants have no right to object the settled seniority and the official respondents rightly rejected such (CAT/AHMEDABAD/OA NO 302/2019) 7 belated objection filed by the applicants by following the terms of mandatory rules contained in Para 321 of IREM Vol I. 6.3 Learned Counsel for the private respondents further submits that Hon‟ble Apex Court in the case of Malcom Lawerence Cecil D‟souza v/s Union of India & Ors reported in (1976) 1 SCC 599 held that such belated representation that too without any explanation for such gross delay is not tenable. It is submitted that even otherwise the subject matter of present OA and the dispute raised in OA No. 450/2019 are different. Therefore, applicants of present OA are not entitled for any relief as sought in this OA.
7. The private respondent no. 4, 5, 6, & 7 have also filed their written reply and reiterate their earlier submission. Additionally, it is stated that during the pendency of present OA and before consideration of the representation filed by the private respondents against the revised seniority list dated 28.11.2019, the official respondents vide order dated 04.03.2020 rejected the representation filed by the present private respondent against the show cause notice dated 29.11.2011 and further decided to revert them from the post of SSE. Therefore, the private respondents approached this Tribunal by filing two separate OAs i.e., OA No. 123/2020 & OA No. 124/2020.
During the pendency of the said OAs the respondent issued the reversion order. However, this tribunal vide order dated 21.05.2020 in MA No. 142/2020 in OA No. 124/2020 rolled back the reversion order (Annexure R/3). Realising the gravity of mistake committed, the official respondents immediately issued office circular dated 08.06.2020 (Annexure R/4) whereby the reversion of the private respondents have been rolled back and the employees were allowed to hold the post of SSE (PW) till further order.
Therefore, Learned Counsel Mr Rao, for private respondents submits that once the official respondents rejected the belated objection/representation of the applicants against the settled seniority by following the terms of Para 321 of IREM, the OA deserves to be dismissed.
8. No other rejoinder or sur-rejoinder has been filed by the applicants and the contesting parties.
9. Heard the learned counsel for parties at length and perused the material on record.
(CAT/AHMEDABAD/OA NO 302/2019) 810. It is noticed that office of respondent no.3 vide notification dated 13.05.2019 circulated provisional seniority list of Non-Gazetted Group-„C‟ staff engineering department JE(PW) PB-Rs.9300-34800/- + GP Rs. 4200/- (Pay Matrix Level -6) ADI Division and units in charge were advised to verify it with their staff register and placed it on notice board for perusal of the staff.
11. The applicants herein, in response to the said seniority list dated 13.05.2019 had submitted their representation/objection dated 31.05.2019, wherein by referring (i) earlier seniority list notified vide notification dated 01.04.2014,
(ii) the selection panel dated 28.08.2009 and (iii) seniority list dated 13.5.2019, the applicants stated that the previous seniority list dated 01.01.2014 was issued as per the result of ZRTI /UDZ training institute and based on it the present seniority list dated 13.05.2019 has been issued. Therefore, the applicants requested to the official respondents to look into the matter and correct the seniority list. The said representation has been rejected vide impugned decision dated 05.09.2019 by the office of respondent No.3 which reads as under:-
To, Avnish Kumar Sharma, JE (PW) Track Cell, Sub: - Representation against Seniority of Shri Avnish Kumar Sharma, JE (PW), Pay Matrix level-6 under Track Cell-ADI, notified on dtd.13.5.2019, ADI Division.
Ref: - 1) This office notification of even No. dtd.01.4.2014 & 24.01.2017.
2) Employees application dtd.31.5.2019.
3) IREM Para 321.
**** With reference to the above, it is informed that the seniority of JE (PW) in GP Rs. 4200/- is prepared and notified on the basis of seniority of the year 2014 & 2017. No any representation regarding your seniority position was submitted by you in the year 2014 & 2017 also no any representation received by this office in this regard in the year 2014 & 2017.
Hence as per IREM Para 321 in such cases no any representation should be entertained beyond one year.
In view of the above, your seniority position shown in the seniority notified vide dtd. 13.5.2019 is in order."
(CAT/AHMEDABAD/OA NO 302/2019) 912. The record reveals that after the applicants were appointed as Sr. PWS / JE (PW) in the year 2010, the seniority list of said appointees was first published in the year 2012 and thereafter on 01.04.2014 and the same was followed in the year 2013 and later, till 31.05.2019. Undisputedly, the applicants herein have not raised any grievance or submitted any representation against the seniority list dated 01.04.2014. It is noticed that in the representation, the applicants had also referred the seniority list dated 01.04.2014.Therefore, it cannot be said that the applicants were not aware about the publication of the seniority list in the year 2014. Not only that, it is evident that based on the said seniority list for subsequent years,the competent authority had published and notified the seniority list of Sr. PWS by assigning the seniority position to the applicants herein.
13. Further, the official respondents by following the provision of Para 321 of IREM rejected the belated representation/objections filed by the applicants. The Para 321 reads as under:
321. PERMISSION TO RAILWAY SERVANTS TO PERUSE SENIORITY LIST:
--
(a) Railway servants may be permitted to see the seniority lists in which their names are placed, or if this cannot conveniently be arranged, they may be informed, on request, of their place on the seniority list.
(b) Staff concerned may be allowed to represent about the assignment of their seniority position within a period of one year after the publishing of the seniority list. No cases for revision in seniority lists should be entertained beyond this period.
14. It can be seen that the Para 321 of IREM Vol-I provides permission to Railway Servants to see the seniority list and if it is not arranged correctly, employees can file representation to assign them correct seniority position within 1 year from the date of publication of said seniority. Further, it mandatesthat no cases for revision in seniority should be entertained beyond this period.
15. The submission of the applicants is that the provision contained in Para 321 of IREM is only a Railway Board‟s instructions and same cannot be considered as statutory Rule.Therefore, it cannot be made applicable while deciding their representation for revision of the seniority list. The said submission in our considered view is not tenable in light of law laid down (CAT/AHMEDABAD/OA NO 302/2019) 10 by Hon‟ble Apex Court in the case of Prabhat Ranjan Singh & another Vs R K Kushawa& another reported in 2019 (1) SCC (L&S) 786, wherein it has been held that the provision contained in IREM has statutory force. Therefore, we hold that the official respondents have correctly considered the representation dated 31.05.2019 by applying the provisions contained in Para 321 of IREM Vol- I.
16. The question of entertaining application/petition disputing the long standing seniority filed at a belated stage is no more res intergra. The constitution bench of Hon‟ble Apex Court in the case of Ram Chandra Shankar Deodhar Vs State of Maharastra (1974) SCC (L & S) 137had occasion to consider the effect of delay in challenging the promotion and seniority list and held that "any claim for seniority at a belated stage should be rejected in as much as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period."
17. The Hon‟ble Apex Court in the case of Shiba Shankar Mohopatra& others Vs State of Orrisa & others reported in (2010) 12 SCC 471 after referringjudgment of the Constitution Bench in R.N. Bose v. Union of India &Ors., 1970 AIR(SC) 470 as also referring other judgments passed by Hon'ble Apex court in the case of,R.S. Makashi v. I.M. Menon &Ors., (1982) 1 SCC 379, K.R. Mudgal &Ors. v. R.P. Singh & Ors., (1986) 4 SCC 531, Malcom Lawrance Cecil D Souza v. Union of India &Ors., 1975 AIR(SC) 1269, B.S. Bajwa v. State of Punjab & Ors., 1999 AIR(SC) 1510,the Hon'ble Apex Court in Para 29 & 30 held as under: -
"29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon&Ors. vs. Lt. Governor, Delhi &Ors., 1974 AIR(SC) 2077; State of Mysore vs. V.K. Kangan&Ors., 1975 AIR(SC) 2190; Municipal Council, Ahmednagar &Anr. vs Shah (CAT/AHMEDABAD/OA NO 302/2019) 11 HyderBeig& Ors., 2000 AIR(SC) 671; Inder Jit Gupta vs. Union of India &Ors., 2001 6 SCC 637; Shiv Dass vs. Union of India &Ors., 2007 AIR(SC) 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana &Ors., 2008 1 SCC 210; and City and Industrial Development Corporation vs. DosuAardeshirBhiwandiwala& Ors., 2009 1 SCC 168)."
30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
At this stage, it is apt to mention that the Hon‟ble Apex Court in the said judgment of Shiba Shankar Mohopatra (supra) in para 33 further held that "........At the cost of repetition, it is stated that if the seniority list is to be challenged within 3 - 4 years of its issuance, we fail to understand as to why even OA No.203/2001 could not be dismissed on the ground of delay and laches, without entering into the merits of the case."
18. It can be seen from the aforesaid legal dictum laid down by Hon‟ble Apex Court that it is settled principle of law that the settled seniority cannot be unsettled after 3 to 4 years from its date of publication. In the present case, undisputedly, the applicants and the official respondents were well aware of the fact that after the LDCE, the applicants herein were found suitable by the competent authority and placed their names in provisional panel dated 28.08.2009.Since the training was linked with the promotional post of Sr. PWS, the applicants alongwith other LDCE candidates were sent for departmental/institutional training at ZRTI/UDZ. Only on successful completion of the said requisite training, they were appointed as Sr. PWS vide order dated 19.07.2010 along with other LDCE candidates. As such,the applicants herein joined their duty on their promotional post in the year 2010 itself.
(CAT/AHMEDABAD/OA NO 302/2019) 1219. Further, it is also not in dispute that after the applicants‟appointment and posting vide order dated 19.07.2010 as Sr. PWS their seniority was determined by the Division of ADI (WR) and the first seniority list dated 06.05.2012 was notified/circulated.Followed by it, another seniority list dated 11.11.2013 was also notified and circulated. Admittedly, the names of applicantswas included therein and seniority was assigned to them in the said list. Thereafter, all the regular posts of Sr. PWS were merged with the cadre of Junior Engineer (JE) w.e.f 03.09.2013. Accordingly, the official respondents vide notification dated 01.04.2014 notified and circulated the seniority list of JEs Engineering Department, ADI Division, wherein also the name of applicants along with other erstwhile Sr. PWS were included and respective seniority was assigned to them. Based on the said seniority lists, the competent authority had also issued the seniority list for subsequent years.
At this stage, it is important to mention that it also emerges from the record that undisputedly, neither the Department disputed the settled seniority of Sr. PWS/JE (PW) fixed on 01.04.2014 nor the applicants herein challenged the assignment of their seniority. Not only that, the record further reveals that on acting upon the settled seniority dated 01.04.2014 of Sr. PWS/JE (PW), the competent authority, in the year 2015 granted further promotion to some of Railway servants in the cadre of SSE (PW). This reinforces that seniority was indeed settled. Therefore, once the seniority list was settled long back and operated, it cannot be unsettled at this belated stage. Thus, the claim for revision in settled seniority list of year 2014 and claim for assignment of fresh seniority in terms of Para 302 of IREM that too after gross delay of more than 6 years, in our considered view cannot be considered at this belated stage and the official respondents have correctly rejected the said belated claim/representation of the applicants.
20. In view of aforesaid discussion and in light of judgment passed by Hon‟ble Apex Court in the case of Shiba Shankar Mohopatra (supra) & Prabhat Ranjan Singh (supra), we do not find any legal infirmity in the impugned decision dated 05.09.2019 whereby the official respondents, rejected the belated representation of the applicants against the settled seniority list (CAT/AHMEDABAD/OA NO 302/2019) 13 dated 01.04.2014,as also seniority list dated 13.05.2019, in terms of Para 321 of IREM Vol-I.
21. In conclusion, we are of the opinion that OA lacks merit. Accordingly, the same is dismissed. No order as to cost.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
PA