Central Administrative Tribunal - Patna
Dev Narayan Sah vs Railway on 6 April, 2018
1 OA 050/00813/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA No. 050/00813 of 2015
Date of order reserved: 23.03.2018
Order pronounced on 06.04.2018
(Patna, this the day of March, 2017)
CORAM
Hon'ble Shri A.K. Upadhyay, Member [ A ]
Hon'ble Shri Jayesh V. Bhairavia, Member [ J ]
Dev Narayan Sah, S/o Late Ram Hindya Sah, R/o Village - Khaira, P.O
Waini, P.S. Waini, District - Samastipur.
...............Applicant
By Advocate : Shri J.K. Karn
Versus
1. The Union of India through the Secretary, Ministry of Railways, New
Delhi cum Chairman, Railway Board, New Delhi.
2. The Chief Administrative Officer, Rail Wheel Plant, Bela, Saran.
3. The Deputy Chief Administrative Officer, Rail Wheel Plant, Bela, Saran.
4. The Deputy Chief Personnel Officer, Rail Wheel Plant, Bela, Saran.
5. The Assistant Personnel Officer, Rail Wheel Plant, Bela, Saran.
6. Mr. Onkarnath Roy, SSE/IT/O/o the Chief Administrative Officer,
Workshop Project, Chamber Bhawan, J.C. Road, Patna.
7. Mr. Arun Prakash Shukla, SSE/ Mechanical, Rail Wheel Plant, Bela,
Saran, Arvind Nagar Bela, District - Saran.
............Respondents
By Advocate: Shri Mukund Jee for official respondent, Smt. Rachna Kumari
for respondent no. 7 and respondent 6 in person.
ORDER
Jayesh V. Bhairavia, M [ J ]:- In the present OA, the applicant has prayed for the following reliefs:-
"( A ) Annexure -A of letter dated 29.9.2015 as contained in Annexure A-7 wherein the applicant has been shown junior to Mr. Onkarnath Roy and Mr. Arun Prakash Shukla, may be declared erroneous and the same may be quashed and set aside.
2 OA 050/00813/2015 ( B ) The letter dated 21.12.2013 issued under signature of Asstt. Personnel Officer, Railway Wheel Plant Bela, for Chief Administrative Officer, RWP Bela, as contained in Annexure A/2 may be quashed and set aside. ( C ) The respondent authorities may be directed to correct and assign the comparative seniority of applicant as well as of the respondents on the basis of R.B's No. E (GP) 2006/2/47 dated 19.3.2010 published at page 113 of Bahri's Indian Railway Establishment Rules & Labour Laws, 2014 Edition, as at Annexure A/4."
2. The brief facts of the case are as under:-
(i) The applicant joined the Railways Service on 25.8.1987 as Apprentice Train Examiner in Jhansi Division of Central Railway. He possessed Diploma in Mechanical Engineering. It is contended that on 28.8.1997, the applicant reached in the scale of Rs. 6500-10500 as Section Engineer, Carriage & Wagon (Mechanical). Later, he was designated as Senior Section Engineer (Mechanical) on 10.10.2006 and entered in the G.P of Rs. 4600/-.
( ii ) That, on creation of establishment of Railway Wheel Plant at Bela, District Saran, the applicant had exercised his option to join at the said newly established Railway Unit and accordingly he joined there. ( iii ) On 11.7.2013, the respondents had issued / published a final seniority list of employees working in the cadre of Senior Section and who came at Railway Wheel Plant, Bela from different division / zones of the Railways. Annexure A/1 refers. It is contended that the said seniority list published on 11.7.2013 was prepared based on the provisions RB's No. E (GP) 2006/2/47 dated 19.3.2010 whereby the integrated seniority for the employees from different streams is required to be determined on the basis of total length of non-fortuitous service rendered in the grade of Rs. 6500- 3 OA 050/00813/2015 10500 i.e the date of appointment in the grade. But the same was not followed, and the applicant was placed at Serial No. 3 instead of Serial No. 1 in the seniority list. The applicant entered in the pay scale of Rs. 6500- 10500 on 28.8.1997 whereas Mr. Onkarnath Roy (SSE) (respondent no. 6 herein) and Mr. Arun Prakash Shukla (SSE) entered in the pay scale of Rs. 6500-10500 on 4.4.2001 and 16.12.1998 respectively. Therefore, the applicant had submitted a representation for correction of seniority list. ( iv ) In response to the representation of the applicant, the respondents, vide their communication dated 21.12.2013, informed that the final seniority list dated 11.7.2013 was prepared in pursuance of RBE No. 107/2012 and instructions incorporated in Chapter -III of the Indian Railway Establishment Rules Cover - I (corrected Edition, 1989), meaning thereby that no change or corrections were required to be made in the said seniority list. Annexure A/2 refers. Copies of RBE 107/2012 dated 26.9.2012 and RB's No. E (GP) 2006/2/47 dated 19.3.2010 are placed on record as Annexures A/3 and A/4 respectively.
( v ) The applicant had submitted another representation on 8.1.2014, followed by representation dated 27.5.2014 and again requested the respondents that decision dated 21.12.2013 by which the respondents have declined to re-fix the seniority is erroneous and the same is required to be reconsidered (Annexures A/5 and A/6 refer).
( vi) It is further stated that while the representation of the applicant for proper assigning of his place in the seniority list was pending, the respondents have issued a letter dated 29.9.2015 proposing to hold a selection for formation of the panel of four persons (03- UR 01-SC) for the post of Assistant Workshop Manager (Group -B in the pay band of Rs. 9300- 34800 (PB 2) Grade Pay 4800 against 70 % quota. The panel was based on 4 OA 050/00813/2015 disputed seniority list in which the applicant was shown as junior to Mr. Onkarnath Roy and Mr.Arun Prakash Shukla. Annexure A/7 refers. ( vii ) It is also stated that the while issuing seniority list, provisions contained in Railway Board's letter dated 10.9.1986 and 29.3.2010 have been taken care of, and the respondents are required to adhere to those provisions. According to the applicant, the total length of non-fortuitous service rendered in that date should be deciding factor for determination of seniority. The applicant was apprehending that he was to lose his chances for promotion to the post of Asstt. Workshop Manager in the pay band 9300- 34800 and Grade Pay Rs. 4800, therefore, he again on 2.10.2015 submitted his representation for correction of his place in the seniority list. However, the said representation has not been considered and no order has been passed. Therefore, there is no other alternate remedy but to approach this Tribunal for correction of seniority position in the seniority list published on 11.7.2013 and for restraining the respondents from further action in respect to selection for the post of Asstt. Workshop Manager ( Group B) as per the advertisement / notification dated 29.9.2015. Annexures A/1 and A/7 refer; hence this OA.
4. The official respondents have filed their written statement and have denied the submissions of the applicant. They have further submitted as under:-
(4.1) That the Railway Wheel Plant, Bela is a newly established production unit and, as such, man power has to be arranged from various production units of Railways by accepting options. The applicant exercised his option which was accepted, thereafter, he joined the said unit. Prior to that, the applicant was Section Engineer.
5 OA 050/00813/2015 ( 4.2) It is submitted that the applicant's entry in the Grade Pay of Rs. 4600/- was with effect from 19.10.2006 whereas Mr. Onkarnath Roy and A.P. Shukla entered in the same Grade Pay with effect from 1.5.2005 and 14.6.2005 respectively. Therefore, the applicant was rightly placed at Serial No. 3 of the seniority list. It is also stated that the applicant's representation has been duly replied to on 21.12.2013.
( 4.3) That, with approval of the competent authority, a notification dated 29.10.2015 was issued for formation of a panel for selection to the post of Asstt. Workshop Manager Gr. B in Pay Band 9300-34800 with GP Rs. 4800/- against 70% quota with eligible employees. The applicant is already eligible for the above selection and he is also willing for the same. It is submitted that the seniority position of the applicant is correctly assigned in all respect. The seniority list of SSE ( M ) dated 11.7.2013 has been prepared in the light of the guidelines issued by the Railway Board. It is further submitted that the applicant reached the Grade Pay 4600 (Vth Pay Commission scale of Rs. 7450-11500) on 19.10.2006 whereas respondent no. 6 i.e Mr. Onkarnath Roy and respondent no. 7 i.e A.P. Shukla reached that stage on 1.5.2005 and 14.6.2005 respectively. The respondents 6 and 7 are senior in view of their length of non-fortuitous service in compared to the applicant. It was on this basis that the said seniority list dated 11.7.2013 was prepared and resultantly, the applicant was junior to Mr. Onkarnath Roy and Mr. A.P. Shukla. In sum, the respondents have submitted that the applicant has failed to make out his case of seniority position in the cadre of SSE (Mechanical).
5. Private respondent no. 6 has filed his written statement separately in order to counter the claims of the applicant. He has submitted as follows:-
6 OA 050/00813/2015 ( 5.1) According to respondent no. 6, as per the Railway Board Establishment circular No. 107/2012 dated 26.9.2012 and No. 226 of 2009 dated 22.12.2009, the post of Section Engineer has been merged with that of Senior Section Engineer (GP Rs. 4600) with condition that "where posts having different pay scales prior to 6 th CPC recommendations and now after merger have come to lie in the same pay band with same grade pay, the inter-se-seniority of all the employees will be fully maintained with employee in a higher pre revised pay scale being placed higher vis-a-vis an employee in a lower revised pay scale being placed higher vis-a-vis an employee in lower pay scale." On the basis of the above instruction, the seniority list of SSE has been published and respondent no. 6 was placed above the applicant by virtue of the fact that before implementation of VI th CPC, respondent no. 6 got promoted to Sr. Section Engineer in GP Rs. 4600 whereas the applicant was Section Engineer in GP Rs. 4200/- at the relevant time. ( 5.2) That, for selection to the post of Asstt. Workshop Manager (Group B) in the pay band Rs. 9300-34800 (PB 2_ G.P. 4800 against 70 % quota, a notification was issued, and a list of eligible candidates have also been prepared on the basis of RLy. Board's circular No. 46/2010 dated 29.3.2010 in which it is stipulated in sub-para ( iii ) of para 2 that "in the integrated seniority of Group C employees eligible for Group B selections against 70 % quota, the employees with GP Rs. 4600 will be placed above those in the Pay Band 2 with Grade Pay of Rs. 4200/- In either category, the relative seniority of employees coming from different streams will be determined with reference to length of non-fortuitous service in the scale of p.B -2 + 4600 or PB - 2 + 4200, as the case may be. Annexure A3 refers.
7 OA 050/00813/2015 ( 5.3) That, the applicant was holding the post of Section Engineer whereas the private respondents no. 6 and 7 were working as Senior Section Engineer before the merger of the grades and as such by virtue of higher post than that of the applicant, the respondents no. 6 and 7 were placed senior to the applicant which is as per the directions contained in Railway Board's letter No. E (NG)1-2009/PM1/14 dated 26.9.2012. It is further submitted by this respondent that the claim of the applicant is not covered by any instructions of Railway Board, and, as such, it has no leg to stand.
6. Private respondent no. 7 in his written statement reiterated the submissions made by the official respondents and learned advocate for the private respondent no. 7 adopted the submissions of official respondents as well as respondent no. 6 and further submitted that the respondent no. 7 is senior to the applicant on the basis of length of non-fortuitous service rendered in that grade.
7. The applicant, in his rejoinder, submitted the same points which were raised by him in his main OA. It is further submitted that if the impugned seniority list is not corrected, in that case he will lose his chance to the promotion.
8. Heard the parties and perused the records.
( 8.1) It is noticed that the Rail Wheel Plant, Bela in District Saran was a newly established production Unit, and after approval of the competent authority, the man power was arranged by inviting option of employees working in various divisions and zones and production units of the Railways to run the said Rail Wheel Plant, Bela. The applicant who was working as SSE (Mechanical), Jabalpur Division, W.C Railway exercised his option and after acceptance of his option by the competent authority, he joined the said Rail Wheel Plant, Bela. It is also noticed that the respondents have published 8 OA 050/00813/2015 a final seniority list of Senior Section Engineers Pay Band - 2 (9300-34800) on 11.7.2013 in which the name of the applicant was placed at serial no. 3 whereas the name of respondent no. 6 i.e Onkarnath Roy and respondent no. 7 Shri A.P. Shukla were shown at serial no. 1 and 2 respectively. ( 8.2) The applicant, being aggrieved with the decision of the respondents with regard to placement of his name in the seniority list, made his representation to the respondents for correction of the same. That was replied to by the respondents vide its letter dated 21.12.2013 in which it is stated that the seniority list dated 11.7.2013 was prepared in the light of the RB No. 107/2012 dated 26.9.2012 as well as the instructions issued under the Railway Establishment Manual 1 Chapter III which is correct and no change in seniority position of the applicant vis-a-vis private respondents no. 6 and 7 is required to be made. In sub para ( ii ) of para 2 of the the said letter dated 26.9.2012 i.e RBE No. 107 /2012 it is clearly stipulated that "
where posts having different pay scales prior to 6 th CPC recommendations and now after merger have come to lie in the same pay band with same grade pay, the inter-se-seniority of all the employees will be fully maintained with employee in a higher pre revised pay scale being placed higher vis-a-vis an employee in a lower revised pay scale being placed higher vis-a-vis an employee in lower pay scale." Considering the same, it is noticed that the applicant was promoted in PB -2 GP 4600 on 19.10.2006 whereas the respondent no. 6 and respondent no. 7 who were placed at serial no. 1 and 2 respectively in the seniority list published on 11.7.2013 were promoted as Senior Section Engineer long back in the year 2005 and their date of receiving the said promotion are 1.5.2005 and 14.6.2005 respectively. Therefore, the respondents are correct in their reply dated 21.12.2013 addressed to the applicant that the seniority list is prepared on the basis of instructions / policies stipulated in RBE No. 107 / 2012. In other words, the respondents have correctly examined the position of the applicant and the 9 OA 050/00813/2015 respondent no. 6 and 7 and considering the same, they correctly assigned the respective seniority of the applicant and private respondent no. 6 and 7. ( 8.3) With regard to the second prayer against the legality/validity of the advertisement / communication dated 29.9.2015 issued by the respondents for selection for the post of Assistant workshop Manager (Group B) in PB Rs. 9300-34800/- (PB -2) GP 4800/- against 70 % quota in Rail Wheel Plant, Bela, we find that the said prayer of the applicant is also not tenable in view of the provision/ instructions stated in Railway Board's circular No. 46/2010 dated 29.10.2010. The relevant provision of the said circular is as follows:- "in the integrated seniority of Group C employees eligible for Group B selections against 70 % quota, the employees with GP Rs. 4600 will be placed above those in the Pay Band 2 with Grade Pay of Rs. 4200/- In either category, the relative seniority of employees coming from different streams will be determined with reference to length of non- fortuitous service in the scale of P.B -2 + 4600 or PB -2 + 4200, as the case may be." It is noticed that in communication dated 29.9.2015 , it is very categorically stated that the list of candidates of mechanical department to appear in the 70% selection and standby list are enclosed and marked as Annexure A and B respectively in order of seniority. While preparing the above said list of Annexure A and B, the provisions contained in Board's letter no. E ( GP) 85/1/78 dated 10.9.1986, E ( GP) 87/2/72 dated 11.1.1988 and E ( GP) 99/2/22 dated 29.3.2010 have been taken care of. Accordingly, the respondents have considered the fact that the respondents no. 6 and 7 and another namely Shakeel Ahmad Amani are senior to the applicant on the basis of their length of non-fortuitous service and therefore, in the list of eligible candidate for selection of AWM (Group B) against 70 % quota, Annexure A of letter dated 29.9.2015, the name of the applicant has been placed at serial no. 4. The said action of the respondents for determination of the eligibility of the applicant for placing in the list of 10 OA 050/00813/2015 eligible candidates, as stated hereinabove, cannot be said to be erroneous. The said decision of the respondents is found to be in consonance with instructions and policies of the Railway Board. Therefore, the second prayer sought by the applicant is also misconceived.
9. In view of the position stated above, it is amply clear that the applicant has been rightly placed in the seniority list of Senior Section Engineer on the basis of the length of non-fortuitous service rendered in that grade by the applicant. The decision of the respondents conveyed to the applicant vide letter dated 21.12.2013 does not call for interference. The list of eligible candidate for selection to the post of AWM (Group B) vides Annexure A of advertisement /letter No. E /RWP/254/Mech./AWM Selection 70% quota dated 29.9.2015 also does not require interference. In sum, the OA is devoid of merit and it is accordingly dismissed with no order as to costs.
(Jayesh V. Bhairavia ) M [ J ] (A.K. Upadhyay) M ( A ) /cbs/ 11 OA 050/00813/2015