Central Administrative Tribunal - Ernakulam
Anilkumar S vs Union Of India on 23 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 870 of 2010
Wednesday, this the 23rd day of November, 2011
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
Anilkumar S, aged 56 years, S/o. Sasi Bhooshanan Nair,
Section Engineer/Works/Southern Railway/Palghat,
Residing at : Quarter No. 394, Hemambika Nagar,
Railway Colony, Palakkad. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
V e r s u s
1. Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Park Town P.O., Chennai-3.
2. The Chief Personnel Officer, Southern Railway, Headquarters Office,
Park Town P.O., Chennai-3.
3. The Sr. Divisional Personnel Officer, Southern Railway, Palghat
Division, Palghat. ..... Respondents
(By Advocate - Mr. Thomas Mathew Nellimoottil)
This application having been heard on 14.11.2011, the Tribunal on
23-11-2011 delivered the following:
O R D E R
By Hon'ble Mr. Justice P.R. Raman, Judicial Member -
Applicant is presently working as Section Engineer/Works in the pay band of Rs. 9300-34800/- with grade pay of Rs. 4600/- at Palghat in the Palghat Division of Southern Railway. He is aggrieved by the non-inclusion of his name in the panel for selection to Group-B despite existence of vacancies. He challenges Annexure A-1 and Annexure A-3. Annexure A-1 is dated 23.4.2010. This pertains to selection for promotion from Group-C to Group-B where the applicant's name is not included for selection to Group-B. Annexure A-2 is the integrated seniority list of Group-C employees. The applicant's name figures at serial No. 149 and his date of appointment is shown as 14.10.1992 as against 3.9.1990 when he entered the service as a Commercial Clerk. Incidentally it may be pointed out that during the pendency of the OA the date 14.10.1992 as date of entry into service has been corrected as 3.9.1990 and his grievance to that extent stands redressed. His date of entry as Section Engineer is shown as 28.10.1993 instead of 14.10.1992 as according to him when he was appointed as a Apprentice he had already entered the grade as on that date.
2. According to the applicant for the purpose of inter se seniority of the employees selected for appointment to Group-B what is relevant is date of entry into the grade and not entry into the cadre. It is pointed out that though the applicant would have entered the cadre as on 28.10.1993 after passing the examination, his date of entry into the grade is always been 14.10.1992 the date on which he was originally appointed though called as an Apprentice. His non-inclusion been on the short ground that he entered the service on 28.10.1993 which according to him is wrong and if the date of entry into the grade has been rightly mentioned as 14.10.1992 then he would have figured in the seniority list in a higher position and become entitled to be included in the panel for promotion to Group-B.
3. The respondents in the reply statement would contend that the applicant was appointed only as an Apprentice as on 14.10.1992 and as directed by this Tribunal his order of appointment was produced along with the memo on 12th November, 2011. It is their contention that the applicant has been selected for appointment to the scale of pay of Rs. 2000-3200/- and posted to this office has reported to the unit on 14.10.1992 and is posted to Work under the Deputy Chief Engineer (Constructions), CTA. According to them his retention in service would only be after passing the examination from time to time. The applicant after completing his training has been absorbed into the cadre as Section Engineer with effect from 28.10.1993. In this connection it is contended that the word 'apprentice' is defined in Paragraph 103(iv) of Chapter I, Section-B of IREM/Volume-I, a true copy of the extract is produced as R-1(a) which shows that the apprentice or a trainee means a person undergoing training with a view to employment in Railway service who draws pay, leave salary, subsistence allowance or stipend during such training but is not employed in or against a substantive vacancy in the cadre of a branch of department on satisfactory completion of his training he is eligible for appointment of probation in a substantive vacancy but not guarantee of such appointment is given. Annexure R-2(a) is a true copy of the extract of Paragraph 104 of Chapter-I Section B of IREM/Volume-I which defines 'period of probation' as all appointments will be made on probation for two years. For trainees or apprentices appointed to a working post after the conclusion of their training, the probationary period commences on the date of such appointment. It is their definite case that since the applicant was appointed as an Apprentice subject to his undergoing training and also passing the examination he could have deemed to be appointed in the substantive service only after successful completion of training and passing the examination which under in this case is 28.10.1993. It is also their contention that in Exhibits R-5 and R-6 seniority list his date of entry into the cadre is 28.10.1993. There at no point of time the same was disputed by the applicant and at this distance of time he cannot be heard to contend that the date of entry into the cadre is 14.10.1992 and not 28.10.1993. It is also their case that his only grievance was regarding the date of entry into the service which has been rectified during the pendency of the OA.
4. In reply learned counsel appearing for the applicant would contend that his date of entry into the service has been rightly disputed by him which has been rectified. So far as the date of entry in the cadre is concerned he has no dispute and it is rightly shown as 28.10.1993. All the same time he would contend that what is germane for the purpose of inter se seniority among those in the feeder category is the date of entry into the grade and not entry in the cadre. According to him, there is a difference in the word 'cadre' and the 'grade'. According to him after his training and after passing the examination he has been appointed to a particular cadre with effect from 14.10.1992. On the date on which he was appointed he has already entered the grade in the scale of Rs. 2000-3200/- (pre-revised - IVth CPC). He places reliance on Exhibit R-9 which is Paragraph 203.5, Chapter II, Section 'A' of IREM/Volume-I and as per which since employees from the different streams will be eligible to appear for the selection, their integrated seniority for purposes of the selection should be determined on the basis of total length of non-fortuitous service rendered in grade Rs. 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 criterion.
5. We have heard both sides. The only point that arises for consideration is as to whether the applicant was appointed to the grade of Rs. 6500- 10500/- (pre-revised scale 2000-3200/-) on a non-fortuitous basis from 14.10.1992 or is it from 28.10.1993. If his appointment to the grade is to be taken as 14.10.1992 then he would be placed on a much higher position in the inter se seniority of the candidates eligible to be considered for promotion to the Group-B and in which event he will be entitled to be considered for the panel of Group-B. On the other hand if his entry is taken as 28.10.1993 then he had no chance of being included in the panel for further promotion to Group-B and the contention of the respondents in this regard would be justified.
6. The order of appointment dated 14.10.1992 produced by the respondents as per memo dated 12.11.2011, we mark as Annexure "X" for the purpose of reference. In the order of appointment, it is stated that the applicant who has been selected for appointment by the Railway Recruitment Board, Madras, is appointed as Apprentice in the scale of Rs. 2000-3200 and posted to the unit. His service will be temporary and on successful completion of training (i.e. after having passed the prescribed examination after one year training), he will be absorbed as temporary IOW/Grade-I at Rs. 2000-3200 plus usual allowances. He joined the post of Section Engineer on 28.10.1993, as per seniority lists at Annexures R-5, R- 6 and R-7. Thus it can be seen that the entry of the applicant into the grade of Rs. 2000-3200 was on 14.10.1992 and his entry into the cadre of Section Engineer was on 28.10.1993.
7. In service parlance, the term 'cadre' refers to a distinct class of officers and the term 'grade' refers to scale of pay. The applicant was appointed to the grade/ scale of pay of Rs. 2000-3200 (IV CPC) on 14.10.1992 as Apprentice-IOW/Grade-I. He got annual increments on 01.10.1993, 01.10.1994 and so on and the replacement scale of Rs. 6500- 10500 (V CPC) on the basis of his entry into the grade on 14.10.1992. His in-service training which started on 14.10.1992 was followed by regular appointment as Section Engineer in the grade of Rs. 2000-3200. His service in the grade of 2000-3200 was continuous, without any break since 14.10.1992, earning increment. So his service in the grade of Rs. 2000- 3200 was not fortuitous. The applicant did serve the Railway during the period from 14.10.1992 to 28.10.1993 in the grade of Rs. 2000-3200. . Non employment in or against a substantive vacancy in the cadre of a branch of the department is not material at all for the relief sought by the applicant. What is relevant is the seniority of the applicant not in the cadre of Section Engineer but in the grade of Rs. 2000-3200/6500-10500. It is not the case of the respondents that when he was given regular appointment as Section Engineer on 28.10.1993, his pay was re-fixed in the scale of Rs. 2000-3200 ignoring the increment earned.
8. The applicant joined the cadre of Section Engineer on successful completion of training on 28.10.1993. His seniority/service in the cadre of Section Engineer counts from that date.
9. As per para 203.5, the integrated seniority for the purpose of selection from different streams is on the basis of total length of non-fortuitous service in the grade of Rs. 6500-10500 and not on the basis of the service rendered in respective cadres of the officers concerned. For the sake of convenience, Para 203.5 from Chapter II, Section 'A' of Indian Railway Establishment Manual, Vol.I, is extracted as under:
"203.5. Since employees from the different streams will be eligible to appear for the selection, their integrated seniority for purposes of the selection should be determined on the basis of total length of non-fortuitous service rendered in grade Rs. 6500-10500 (R.S.) and above. In other words, the date of appointment to the grade Rs. 6500-10500 (R.S.) on a non-fortuitous basis will be the criterion."
(emphasis supplied) The applicant will gain a higher position in the integrated seniority list of eligible candidates for promotion to Group-B in the light of Para 203.5, but his seniority in the cadre of Section Engineer will not change. Nor does he seek it. The question of unsettling the settled position will not, therefore, arise. Training being an essential part of service, there is no reason not to count the period spent on training for seniority in the grade. Not all feeder cadres for promotion to Group-B may have a phase of apprenticeship before joining a substantive post. Therefore, it makes sense to count the total length of service in the grade rather than the cadre for determining the integrated seniority as provided in Para 203.5. Therefore, the O.A. deserves to be allowed.
10. The Annexure A-1 order dated 23.04.2010 to the extent it does not include the name of the applicant is set aside. The respondents are directed to correct the date of entry of the applicant into the grade of Rs. 2000-3200 (SE) as 14.10.1992 and take consequential action to consider his promotion to Group-B service from the date of promotion of his juniors with all benefits.
11. The O.A. is allowed as above with no order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"