Central Administrative Tribunal - Patna
Bijendra Dutta vs Railway on 9 April, 2018
-1- OA/050/00538/16
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00538/16
Reserved on: 28.03.2018
Pronounced on: 09.04.2018
CORAM
HON'BLE MR. A.K. UPADHYAY, ADMINISTRATIVE MEMBER
HON'BLE MR. JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
1. Bijendra Dutta, Son of Urga Narayan Dutta, Chief Controller, East
Central Railway, Danapur, P.O.- Khagaul, District- Patna (Bihar).
2. Vijay Kumar Verma, Son of Late Tarni Prasad, Chief Controller (HQ),
East Central Railway, Hajipur, PO- Dighi Kala, District- Vaishali
(Bihar).
...... Applicants.
- By Advocate: - Mr. M.P. Dixit
-Versus-
1. The Union of India through the Executive Director (Establishment),
Railway Board, Ministry of Railway, Rail Bhawan, New Delhi-
110001.
2. The General Manager, East Central Railway, Hajipur, District-
Vaishali (Bihar).
3. The General Manager (Personnel), East Central Railway, Hajipur,
District- Vaishali (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur,
P.O.- Khagaul, District- Patna (Bihar).
5. Sri Paras Kumar Singh, Chief Controller (HQ), East Central Railway,
Hajipur, PO- Dighi Kala, District- Vaishali (Bihar).
...... Respondents.
- By Advocate(s): - Mr. S.K. Ravi
Mr. Sanchay Srivastava
ORDER
Per A.K. Upadhyay, A.M.:- This OA has been filed by the applicant seeking the following reliefs:-
-2- OA/050/00538/16 "(i) That your Lordships may graciously be pleased to declare the impugned Integrated Seniority List dated 08/09.03.2016 as contained in Annexure-A/1 wherein the Applicants have been placed below Respondent No. 5 as unjust, illegal, against Rule, Unconstitutional and against Rule 203.5 of the Indian Railway Establishment Manual, Vol.-I, 1989.
(ii) That the Respondents be further directed to correct/revise the Integrated Seniority List dated 08/09.03.2016 as contained in Annexure-A/1 by placing the applicants above Respondent No. 5 without any further delay.
(iii) That the action of the Respondents while applying the reservation in favour of Schedule Caste and Schedule Tribe in promotion to the post of Assistant Operating Manager (Group - "B") be also declared and unconstitutional and against the post reserved for Scheduled Caste and Scheduled Tribe be filled up without applying reservation.
(iv) That the Respondents further be directed to grant/accord all consequential benefits including promotion to the post of Assistant Operating Manager (Group- "B") in favour of the Applicants."
(v) Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicants.
(vi) That Your Lordships may pleased to quash and set aside the so called orders dated 06.07.2016 and 20.07.2016 issued by the Respondents as contained in Annexure-R/3 Series enclosed with Written Statement as unjust, illegal, unconstitutional, every way bad in law and contrary to Railway Board order dated 29.04.2009 and also against the order dated 01.06.2012 passed by Hon'ble CAT, Allahabad in OA No. 02 of 2012."
2. The applicant's case, in brief, is as follows:-
-3- OA/050/00538/16 (i) The applicants and the respondent no. 5 were
promoted to the pay scale of Rs. 6500-10500/- equivalent to Rs. 9300-34800/- + GP Rs. 4600/- on the following dates:-
Applicant No. 1 - Bijendra Dutta : 06.04.1993 Applicant No. 2 - Vijay Kumar Verma : 09.08.1994 Respondent No. 5 - Paras Kumar Singh: 10.01.1996
(ii) A notification was issued by the GM for promotion to the post of Assistant Operating Manager (AOM in short) 70% quota for filling up of 4 posts (2 UR + 1 SC + 1 ST). Thereafter, an integrated seniority list was issued of eligible candidates on 8/9.03.2016 (Annexure A/1) in which the respondent no.
5 was placed at sl. no. 16 and the applicants at sl. no. 19 and 30 respectively. The applicant contends that this seniority list is illegal and contrary to the provisions of Rule - 203.5 of the Indian Railway Establishment Manual, Vol.-I, 1989.
(iii) The applicants submitted their representations for correction of their seniority and placement above the respondent no. 5, but without correcting the seniority list the respondents held the written examination in which 4 persons including the applicants and respondent no. 5 have been declared successful. The applicants again submitted representations on 28.06.2017, 07.07.2016, 08.07.2016 and 14.07.2016 regarding fixation of integrated seniority list (Annexure A/2 series) which has not yet been decided. However, without correcting the seniority list the applicants and respondent no. 5 were called for viva-voce on 28.07.2016.
(iv) Reservation in promotion is not applicable but the respondents have reserved two posts for SC and ST which is wrong and unconstitutional.
(v) Since 4 persons have been found successful against 4 posts they had to be promoted without applying reservation. But the issue of seniority still has to be decided.
-4- OA/050/00538/16
3. The official respondents have filed their written statement in which they have made the following submissions:-
(i) Respondent No. 5 Shri Paras Kumar Singh, Chief Controller/HQ/HJP came to E.C. Railway on 09.05.2003 on option basis in the pay scale of 7450-11500 on the formation of EC Railway.
(ii) A provisional inter-se seniority list was circulated vide letter No. EC R/HRD/235/Seniority list/Selection/ Gr. B/AOM 70% dated 07.01.2016. After inviting representations from the staff the final seniority list was circulated vide letter No. EC R/HRD/235/Seniority list/Selection/ Gr. B/AOM 70% 8/9.3.2016. The said seniority list was prepared in view of RBE No. 92/2015, Master Circular 68 and Chapter-2 of the IREM Vol. I and other extant rules for the purpose of integrated seniority. The RBE No. 92/2015 (Annexure R/1) is related to equating running staff with stationery staff for the purpose of integrated seniority for Group 'B' selection. The relevant para of 9.1 and 9.2 of Master Circular 68 states that the integrated seniority for the purpose of the selection should be on the basis of total length of non-fortuitous service rendered in the grade Rs. 6500-10500/- and above.
Further, in determining the integrated seniority of employees coming from the various streams the inter-se seniority of employees within each stream should be maintained. The para 203.5 of IREM Vol. I 1989 is the same as para 9.1 of Master Circular 68.
(iii) Respondent No. 5 Shri Paras Kumar Singh is senior to Shri Vijay Kumar Verma (applicant No. 2) and Shri S.K. Johri in the seniority unit of HQ. Shri Paras Kumar Singh was working in the scale of Rs. 7450-11500/- and Shri Vijay Kumar Verma and Shri S.K. Johri were working in the scale Rs. 6500-10500 when the seniority list of HQ was finalized
-5- OA/050/00538/16 after formation of the E.C. Railway. As such, in the HQ seniority of controller Shri Paras Kumar Singh (respondent no. 5) is senior to Shri S.K. Johri who is senior to the applicant no. 2 Shri Vijay Kumar Verma. The applicant no. 2 never claimed his seniority over Shri Paras Kumar Singh (respondent no. 5) in the seniority unit of HQ. Shri S.K. Johri, CHC/Hajipur was in the scale of Rs. 6500-10500 from his date of entry, i.e. 04.04.1993.
(iv) The applicant no. 1 Shri Bijendra Dutta is CHC of Danapur Division and belongs to seniority unit of Danapur which is a separate seniority unit whose date of entry in the scale Rs. 6500-10500/- is 6.4.1993.
(v) Thus, as per para 9.2 of the Master Circular 68 read with para 9.1 (identical to para 203.5) Shri Paras Kumar Singh, respondent no. 5 was placed at sl. no. 17 with respect to his junior Shri S.K. Johri (sl. no. 18), Shri B. Dutta, applicant no. 1 (at sl. no. 19) and Shri Vijay Kumar Verma, applicant no. 2 (at sl. no. 30).
4. The private respondent no. 5 has also filed written statement in which has stated that he came to the E.C. Railway on 09.05.2003 on option basis in the pay scale of Rs. 7450 -11500/-. The rest of his submissions are similar to the written statement filed by the official respondents.
5. The respondent no. 5 has also filed a supplementary written statement in which it has been stated that a final seniority list of willing candidates eligible to appear in the selection of AOM/Gr. B against 70% quota scheduled to be held on 31.05.2016 was published on 28.04.2016 (Annexure R5/5) in which respondent no. 5 was at sl.
-6- OA/050/00538/16 no. 9, applicant no. 1 was at sl. 11 and applicant no. 2 was at sl. 16. A result was declared by the General Manager on 27.06.2016 (Annexure R5/7) showing four qualified candidates on the basis of marks in the written examination held on 17.06.2016. Finally by letter dated 03.08.2016 (Annexure R5/8) two candidates were empanelled in Group B against 70% quota (Annexure R5/8). This included one Anjani Kumar Verma at sl. no. 1 and the respondent no. 5 Shri Paras Kumar Singh at sl. no. 2. Both are UR candidates and they have been empanelled against UR vacancies. It has also been mentioned that the penal and the seniority was provisional subject to the final outcome of the present OA. Thereafter, the two persons have been promoted vide order No. 207 of 2016 dated 03.08.2016 (Annexure R5/9) on which there is an observation that it would be subject to the outcome of the present OA.
6. The applicants have filed a rejoinder in which besides reiterating his submissions in the OA he has referred to (i) the order passed by the Tribunal's Allahabad Bench dated 01.06.2012 in OA No. 02/2012; the judgment of the Tribunal's Patna Bench dated 12.08.2016 in OA No. 600/2013, and the judgment of the Hon'ble Patna High Court dated 27.04.2017 in CWJC No. 3248 of 2017 by which the judgment of the Tribunal in OA 600/2013 has been affirmed.
7. The official respondents have filed a supplementary written statement to the rejoinder filed by the applicant in which it
-7- OA/050/00538/16 has been stated that the seniority to be counted on the basis of entry in the grade pay of Rs. 4600/- has been accepted by CAT, Patna and Hon'ble High Court, Patna and CAT, Allahabad. They have reiterated that while preparing the integrated seniority of the employees belonging to different units their inter-se seniority has to be maintained.
7. Heard the parties and perused the records.
8. The main issue in dispute is the principle for preparation of integrated inter-se seniority for selection for AOM (Gr. B) against 70% quota. The applicant's learned Counsel Shri M.P. Dixit strongly advocates that the governing principle is Rule 203.5 of the IREM Vol. I, 1989 which is as follows:-
"Since employees from different streams will be eligible to appear for the selection, their integrated seniority for the purposes of the selection should be determined on the basis of total length of non-fortuitous service rendered in Grade 6500-10500/- (RS) and above. In other words, the date of appointment to the grade Rs. 6500-10500 (RS) on a non- fortuitous basis will be the criteria."
9. The aforesaid provision is identical to para 9.1 of the Master Circular 68 quoted by the official respondents. However, they state that this has to be read with para 9.2 of the same Master Circular which is as follows:-
-8- OA/050/00538/16 " 9.2 In determining the integrated seniority of employees coming from the various streams, the inter-se seniority of employees within each stream should be maintained."
10. Shri Dixit argued that this provision is irrelevant because IREM has a statutory force whereas the Master Circular has not.
11. In our opinion the question of which provision has a greater force would arise only if there were contradictions in the two provisions. We do not find any contradiction. As a matter of fact it only supplements something which is logically consistent and self- evident. It is common sense that if a combined seniority is made for determining eligibility for appearing in some examination, the inter- se seniority within each stream has to be maintained. In the present case, it is admitted position that respondent no. 5 came to EC Railway on option basis in the scale of Rs. 7450-11500/- in 2003 whereas the applicants were in the scale of Rs. 6500-10500/-. The applicant no. 2 happened to be in the same seniority list of HQ and thus was obviously junior to the respondent no. 5. This situation continued for more than 10 years when the seniority of Shri Paras Kumar Singh was never challenged, and naturally so he being in a higher pay scale. The applicant no. 1 was also in the pay scale of Rs. 6500-10500/- but in the seniority unit of Danapur. Therefore, it would be quite perverse if the arguments of the applicants are accepted that in the integrated seniority list for the purpose of eligibility, the said Paras Kumar Singh has to be below them.
-9- OA/050/00538/16 Therefore, we do not accept the contention of the applicants. We hold that Para 9.1 and 9.2 are not inconsistent with each other. They have to be read together. Futhermore, para 9.2 is a self-evident and logical proposition. The inter-se seniority within a cadre stream cannot be overturned in an integrated seniority where employees of different streams were included.
12. The learned counsel for the applicant Mr. Dixit made an alternative submission that only four persons qualified in the written examination and there were four posts available. Therefore, they should all be appointed. Since no SC/ST candidate is available it is futile and injurious to the qualified candidates to keep two posts vacant. He referred to the judgment dated 12.08.2016 in OA No. 600 of 2013 which was affirmed by the Hon'ble High Court, Patna by order dated 27.04.2017 in CWJC No. 3248 of 2017.
13. In that case the issue under consideration was equivalence between the running staff and stationery staff as governed by RBE No. 92 of 2015 dated 18.08.2015. Even though this circular has been cited in the pleadings by the parties, this is not the issue in this matter. Rather the issue is determination of inter-se seniority between staff coming from different seniority streams.
14. Shri Dixit made a further alternative argument that in any case reservation in promotion is not applicable as per the ratio of the M. Nagraj's case by the Hon'ble Supreme Court and Hon'ble
-10- OA/050/00538/16 Patna High Court judgment in the matter of State of Bihar Vs. Sushil Kumar Singh [2015(3) PLJR Page 594] . Since only four persons qualified and there were four posts and two have been appointment, therefore, the remaining two should be appointed. He also submitted that the Tribunal has also passed judgments on these lines in some cases which have been affirmed by the Hon'ble High Court. We do not propose to discuss this matter because these judgments are not placed before us. The applicants shall be at liberty to approach the authorities with the supporting judgments for their inclusion in the panel and promotion to the two vacant posts. As far as their claim of seniority over respondent no. 5 is concerned, that is rejected as discussed in the foregoing paragraphs. The OA is disposed of accordingly. No order as to costs.
[Jayesh V. Bhairavia] [ A.K Upadhyay] Judicial Member Adminsitrative Member Srk.