Allahabad High Court
Kailash Nath Sinha vs Central Administrative Tribunal, Alld ... on 7 December, 2017
Bench: Bharati Sapru, Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 03.11.2017 Delivered on 07.12.2017 Court No. - 35 Case :- WRIT - A No. - 62778 of 2010 Petitioner :- Kailash Nath Sinha Respondent :- Central Administrative Tribunal, Alld Bench And Others Counsel for Petitioner :- S. K. Tyagi,Kk Roy,Sanjay Kumar Om,W. A. Siddiaui Counsel for Respondent :- Govind Saran,S.C.,Vivek Singh Hon'ble Bharati Sapru,J.
Hon'ble Siddharth,J.
(Delivered by Hon'ble Siddharth, J.) Heard Shri K.N. Sinha in person and Shri S.K. Pal, learned counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for the following reliefs:
(i). Issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 17.03.2010 and 9.7.2009 passed by the respondent No.1 (Hon'ble Central Administrative Tribunal at Allahabad) contained as Annexure Nos. 25 and 21 to this writ petition.
(ii). Issue, a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner as continuous in service and to give all other benefits for the period of dismissal to reinstatement as notional continuity, increments upgradation IV Pay Commission etc., as held by the Hon'ble Supreme Court in Union of India Vs. Prabhu Dayal Singh.
(iii). Issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner senior to his juniors at the time of his reinstatement and also treat the petitioner as promoted along with his juniors after his reinstatement and give all kind of benefits for which he is legally entitled which had accrued to him after his reinstatement.
(iv). Issue a writ, order or direction in the nature of mandamus directing the respondents be directed to re-fix his pension after taking into consideration his all benefits which has accrued to him after his reinstatement and to pay the arrears along with the 12% interest per annum, forthwith.
(v). Issue any other writ, order or direction which this Hon'ble Court may deem, fit and prper under the facts and circumstances of the case.
(vi). Award cost of the petition in favour of the petitioner.
Petitioner's case is that he was appointed as Engine Cleaner on 01.08.1960, promoted as Fireman-C on 11.04.1965 and as Fireman-B on 11.04.1974 and after promotion was posted as Diesel Assistant in Kasganj in 1979, when he was removed from service under rule 14(2) of Railway Servants (Disciplinary and Appeal) Rules, 1968 vide order dated 01.02.1981. The petitioner was removed from service due to participation in general strike of Loco-Running Staff. Along with the petitioner several other employees were also removed in similar manner. All the removed employees filed writ petitions before various High Courts and Hon'ble Supreme Court, challenging their removal orders. Ultimately all the cases were transferred to Hon'ble Supreme Court, which passed an interim order, directing the Railway Administration will continue to pay the petitioners their last drawn salary with requisites and benefits to which they are entitled, as if, they are in service. Vide order dated 10.01.1994 the petitioner was reinstated in service after the decision rendered by the Hon'ble Supreme Court vide judgment and order dated 05.08.1993, reported in J.T.1993 (4) S.C. 470, Union of India & others Vs. R. Radappa and others. The Hon'ble Supreme Court gave following directions:-
(i). Employees who were dismissed under Rule 14(2) for having participated in the Loco Staff strike of 1981 shall be restored to their respective posts within a period of three months from today.
(ii). (a) Since more than three years have elapsed from the date the orders were found to be bad on merits by one of the tribunal, it is just and fair to direct the appellant to pay the employees compensation equivalent to three years salary inclusive of dearness allowances calculated on the scale of pay prevalent in the year, the judgment was delivered, that is in 1990.
(b). The benefit shall be available even to those employees who have retired from service. In those cases where the employees are dead the compensation shall be paid to their dependents. The Compensation shall be calculated on the scale prevalent three years immediately before the date of retirement of death.
(iii). Although the employees shall not be entitled to any promotional benefits but they shall be given notional continuity for purposes of calculations of pensionary benefits. This benefit shall be available to retired employees as well as to those who are dead by calculating the period till date of retirement of death.
The petitioner was removed from service in the year 1981 from the post of Diesel Assistant at Kasganj and in compliance of the Hon'ble Supreme Court's order, he was reinstated as Diesel Assistant at Kasganj on 10.01.1994 along with two similarly situated employees, Sri Udai Singh and Shamshad Raza Khan. Sri Udai Singh joined services in April, 1977, while the petitioner joined his service on 01.08.1960. Petitioner's grievance is that Udai Singh is clearly junior to him, since before their removal from service, he was working as Fireman-I, when the petitioner was working as Diesel Assistant. After reinstatement, in the seniority list dated 13.06.1996, the petitioner was placed below, while Udai Singh was shown above him in the Seniority List.
After reinstatement of the petitioner, on 14.01.1994 five persons, namely, Rama Shankar Pandey, Jagan Ram, Ram Das,, Banshi Dhar, Bhure Lal Mishrra were promoted to the post of ''Steam Shunters' vide letter dated 21.02.1994. In order to show the seniority position of the petitioner and seniority of aforesaid persons vis-à-vis the petitioner, Chart is being given below:-
Sl. No. Name Date of Appointment Seniority 1978 Fireman-II Seniority 1990 Fireman-I
1.
K.N.Sinha (petitioner) 01.08.1960 124
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2. Rama Shankar Pandey 03.04.1964 358 277
3. Banshi Dhar 18.04.1969 409 333
4. Bhure Lal Mishra 28.04.1969 443 334
5. Jagan Ram 18.05.1970 458 328
6. Ram Das 18.06.1970 467 329 The petitioner has further stated that he has passed the Loco- Shunter Competency Test in the year 1977 but on account of termination of his services, he could not get the promotion to the post of "Steam Shuner", but after his reinstatement on 14.01.1994, 5 above noted persons, namely, Rama Shankar Pandey, Jaganram, Ramdas, Banshidhar and Bhure Lal Mishra, who were junior to him and much below in seniority list were promoted, but he was not promoted with them. They further got promotion to the post of Goods Train Driver and Passenger Train Driver, when the petitioner was not even considered when their selection took place. Another seniority list of promotion to the post of ''Steam Shunters' was issued vide letter dated 13.04.1994 and again the petitioner filed representation against the illegal action of ignoring the him from consideration zone of promotion. It is also alleged that the respondents upgraded those persons in the pay scale of Diesel Assistant vide letter dated 05.12.1995. Vide letter dated 17.05.1996 the respondents had posted all the Fireman -I working at Izat Nagar Division as Diesel Assistant and then they were promoted to the post of Shunter, Driver, etc., ignoring the petitioner.
The petitioner filed representations, one after the other, against the discriminatory acts of the respondents, but of no avail. The respondents have wrongly fixed the pay scale of the petitioner which was less than his juniors and the representations against the same also yielded no fruitful result. The petitioner has claimed all benefits which have accrued to him after his reinstatement in service as per the Hon'ble Supreme Court's Order. He has not claimed any benefit denied to him by the Hon'ble Supreme Court between the period of removal and reinstatement. He has further alleged that Sri D.N.Pal and Sri S.P. Mishra who were removed and then reinstated alongwith the petitioner were given promotion after retirement but the petitioner was not even considered for the same. He filed Original Application before the Central Administrative Tribunal, Allahabad, Bench Allahabad, which has been dismissed illegally hence he filed this writ petition.
In the Counter Affidavit filed by the respondents it has been admitted that the petitioner was appointed on 01.08.1960, while Udai Singh was appointed on 10.09.1977. Sri Udai Singh being S.T. Candidate was promoted on 03.03.1986 on the post of Fireman-I, whereas, the petitioner was removed from service on 01.02.1981 and was reinstated on 10.01.1994. Further, Udai Singh was working as Fireman-I from the date of his promotion on 03.03.1986. It has been further stated that when the petitioner got reinstated on 10.01.1994, the qualifying length of service of Udai Singh was 7 years, 10 months, 11 days, when the petitioner's service was only 6 years, 1 month and 6 days, as Fireman-I/ Diesel Assistant. Therefore, the petitioner was kept below Udai Singh in Seniority List of 1993. It is further admitted by the respondents that the petitioner was senior to all the persons, whose names are shown in the Table above, prior to his removal from service, but after reinstatement his qualifying length of service was less than the persons named above, therefore, he was not promoted. the respondents have disputed in the Counter Affidavit that the petitioner was promoted as Fireman-B on 11.04.1974, since he resumed the charge of promotional post on 25.12.1974, therefore, his promotion as Fireman-B is effective from 25.12.1974. The petitioner has been given correct seniority after his reinstatement as per the Hon'ble Supreme Court's order and therefore his Original Application was rightly dismissed by the Central Administrative Tribunal, Allahabad Bench, Allahabad.
The petitioner has filed a Rejoinder Affidavit stating that the respondents have failed to understand the legal implication of the word ''notional continuity' of service, which means that the services of the petitioner shall be treated to be continuous for all purposes except for the purpose of deriving benefit of promotion as per the Judgment of the Hon'ble Supreme Court, in the case of Union of India and others Vs. R.Radappa and others (supra). Their calculating the length of service of the petitioner after excluding the time between 1981 to 1994 is wrong, since the same is required to be counted for the purpose of calculating seniority and therefore, his due seniority benefits have wrongly been denied to him. The petitioner's contention is that he has no grievance against the employees, who were promoted in service between 01.02.1981 upto 10.01.1994 i.e., when he was not in service, but his grievance is that after his reinstatement in 1994, every employee who was junior to him should be treated as junior and in calculating his seniority, the period between 01.02.1981 upto 10.01.1994 should be added. None of his representations were decided by any reasoned order and therefore he has to approach the Court.
The petitioner's date of retirement was 30.06.2001 and therefore it is clear that he has crossed the age of superannuation.
The Central Administrative Tribunal, Allahabad has considered the case of the parties as follows:
" 9. The applicant was given notional continuity of service from the date of termination till the date of restoration for the purpose of calculation of pensionary benefits. In short the applicant was restored in service with all benefits as per directions of Hon'ble Supreme Court. It is also submitted on behalf of the respondents that the seniority of the applicant has not been disturbed at any stage as alleged by him in para under reply. However, it is submitted that the seniority of three persons i.e., Sri Uday Singh, Shamshad Raja Khan and the applicant, has been decided as per Number of working days of the concerned staff. For example as on 14.01.1994, the working days of Udai Singh is 7 years 10 months and 12 days (as he was continuous in service). Whereas the working days of Sri S.R. Khan is 6 years, 9 months and 2 days and that of the applicant is 6 years, 1 month and 6 days as such the administration has not committed any mistake in assigning their seniority and there appears no lacking on the part of the administration.
10. Shri Udai Singh got his promotion out of turn being a Scheduled Tribe candidate. On the other hand, the applicant is a general category candidate, who remained out of employment w.e.f. 01.02.1981 to 13.01.1994 and due to this reason alone Shri Udai Singh ranked senior to the applicant and was placed in the combined seniority list of Fireman Grade-1/ Diesel Assistant in the pay scale of Rs.950-1500 issued in the year 1990-92 and the name of the applicant did not appear, because of the reason that he was not in the employment at that time.
11. Shri S.P. Mishra and D.N. Pal were promoted before the applicant because both of them were driven, Goods, whereas the applicant was only Diesel Assistant, at the time of removal and reinstatement, and as such they got promotion as Driver passenger. According to respondents the applicant was junior being out of employment for many year (01.02.81 to 13.01.94) and therefore could not be given seniority and promotion as alleged.
12. In the rejoinder reply filed by the applicant the facts stated in the Counter reply has been denied and nothing new has been added therein it is alleged by the applicant that the respondents have tried to misinterpret the two orders passed by Hon'ble Supreme Court and have determined the seniority of the applicant in an arbitrary manner.
13. We have carefully perused the pleadings of the parties and the record. On a careful analysis of the case it is found that in pursuance of the order and direction of Hon'ble Supreme Court the applicant was ordered to be paid 50% of his salary from the date of removal upto 31.12.81 and full salary from 01.01.82 to the date of reinstatement. The applicant was not allowed full salary as per last pay drawn with all consequential benefits to which the applicant would have been entitled, had he been inservice. As per direction of Hon'ble Supreme Court the applicant was given compensation equivalent to three years salary inclusive of dearness allowance computed on the scale of pay prevalent in the year in question.
14. We have also seen from the record that the applicant has been given notional continuity from the date of termination till the date of reinstatement for the purposes of calculation of pensionary benefits. A perusal of seniority list dated 01.04.78 of Fireman-II clearly indicates that the persons shown in list were the register employees except the applicant (who remained out of employment from 01.02.81 to 13.01.194) and remained getting promotions in various cadres as per their turn, whereas the applicant remained out of employment during the aforesaid period. We have also noticed that in the combinded seniority list of Fireman Grade- I/Diesel Assistant issued in the year 1990-93, the name of the applicant did not figure in the said list as he was not in the employment at that time. Although the applicant has passed the competency test during 1977 but he could not fulfill requisite conditions for promotion as Shunter and as such he could not be promoted. It is also seen from the record that the applicant could not get seniority over his juniors as the juniors remained in service continuously and got various promotions, whereas the applicant remained out of employment w.e.f. 01.02.81 to 13.01.94.
15. Having given our anxious thought to the pleas advanced by the parties counsel, we are fully satisfied that the applicant could not establish any case of getting seniority over his juniors at the time of the reinstatement. In our considered view the applicant has utterly failed to make out any case warranting interference by this Tribunal."
By the order dated 21.08.2017, this Court called for records in order to ascertain, whether there has been any violation of Article-14 of the Constitution in promotion of Sri S.P. Mishra and Sri D.N.Pal and denial of promotional benefits to the petitioner after his reinstatement. Record was directed to be produced on 11.09.2017, but it was not produced. On 11.09.2017, again time was granted upto 22.09.2017 to produce the record. Thereafter, the Counsel for the respondents got elevated to the Bench and the matter was directed to be listed on 03.11.2017, when again record was not produced by the respondents and therefore the case was heard and Judgment was reserved by the Court.
Before proceeding further it would be useful to refer to the hierarchy of the posts in mechanical department of Indian Railways relevant for deciding the present controversy, Engine Cleaner | Fireman-II | Fireman-I | Diesel Assistant | Steam Shunters | Goods Drivers (all Good Trains) | Passenger Drivers ( all Passenger Trains) | Mail Drivers (Superfast, Mail & Express Trains) We have heard the rival contentions advanced before us. As per the Judgment of the Hon'ble Apex Court in the case of Union of India and others Vs. R.Radappa and others (supra), it is clear that the petitioner was denied promotional benefits but he was given notional continuity from the date of termination of service till the date of reinstatement for the purposes of calculation of pensionary benefits. The petitioner has stated in paragraph no.18 of the writ petition that at the time of reinstatement in service on 14.01.1994 had not reached the age of superannuation and prior to removal from his service on 01.02.1981, he had qualified the promotional competency test for the post of ''Shunter' and a competency certificate dated 19.06.1977 was issued to him which is attached as Annexure No.7 to the writ petition. The reply to paragraph no.18 of the writ petition in the Counter Affidavit is that the contents of paragraph no.18 of the writ petition are matters of record and hence need no reply. Therefore, it is clear that in the year 1977, the petitioner has qualified the competency test for the post of ''Shunter' in the Railway Establishment, the post of '' Steam Shunters' is the promotional post of Feeder Cadre of Fireman-I/ Diesel Assistant/ Electric Assistant and the basis of promotion is seniority-cum- suitability without any restriction of age or qualification, as per paragraph no.139(a) of the Indian Railways Establishment Manual, Vol.-I. The Tribunal has recorded the finding in paragraph no.14 that although the petitioner had passed the competency test in 1977 but he could not fulfill requisite condition for promotion as ''Steam Shunters' as such he could not be promoted.
The above finding of the Tribunal is based on pleadings in paragraph no.22 of the Counter Affidavit filed by the respondents before the Tribunal. The respondents have not stated what requisite conditions for promotion as ''Steam Shunters' was not fulfilled by the petitioner, when the Certificate of passing the competency test was issued to him. As per paragraph no.139(a) of the Indian Railway Establishment Manual, Vol.-I, the criteria for selection to the post of ''Steam Shunters' was seniority-cum-suitability only. The petitioner was admittedly senior to all the 5 persons mentioned in the Chart above and his suitability was certified by the Railway itself by issuing him Competency Certificate dated 19.06.1977. Therefore, the non consideration of the petitioner for appointment to the post of ''Steam Shunters' by the respondents, after his reinstatement in service as per Hon'ble Spreme Court's Order in 1994, was illegal and the finding of the Tribunal in this respect is set aside being based on non application of mind and acceptance of the bland averments of the respondents, which were not based on adequate reasons and any documentary evidence.
It is further notable that the next promotion from the post of ''Steam Shunters' is promotion to the post of "Goods Drivers" as per paragraph no.139(2) of the Indian Railway Establishment Manual, Vol. -I. Further promotion of ''Goods Driver' is made to the posts of ''Passenger Drivers' and ''Mail Drivers' as per paragraph no.140 of the Manual aforesaid.
On account of non consideration of the petitioner for promotion to the post of ''Steam Shunters', for which he had already passed the competency test in 1977, he suffered irreparable loss of opportunity of promotion to the next higher post of ''Goods Driver' and then to ''Passenger Driver' and ''Mail Driver', resulting in loss of opportunity, earnings and adverse effect on all his pre and post retiral benefits of service, besides mental pain agony and frustration.
The petitioner has relied upon a Judgment of the Rajasthan High Court in D.B.Civil Writ Petition No.81 of 1999, Prabhu Dayal Vs. CAT, Jodhpur Bench & others, which was directed against the order of Central Administrative Tribunal, Jodhpur Bench, Jodhpur, regarding an employee of Railways, who was similarly removed from service for participation in Loco Staff Strike of 1981 and was reinstated in service, as per the Judgment of Hon'ble Supreme Court in the case of Union of India and others Vs. R.Radappa and others (supra). In this case, the Rajasthan High Court directed that where the benefit of continuity of service has been given for the purposes of pension only, there also the petitioner is entitled to increments due to him from the date of removal till the date of reinstatement/ retirement, as per the Judgment of the Apex Court. This Judgment of the Rajasthan High Court was not interfered by the Hon'ble Supreme Court and the Special Appeal No. 1493 of 2009, preferred against the same was dismissed on 17.04.2009, hence the petitioner has claimed that he should be given the benefits of increments, up-gradation, IVth Pay Commission, etc. It is notable that by the interim order dated 03.05.1982, the Hon'ble Supreme Court in the cases of removed employees, like the petitioner, had granted interim relief to the petitioners that the Railway Administration shall continue to pay them the last salary and also all the requisites and benefits to which they would be entitled as if they were in service without any deposit being made to their provident fund accounts. It was left open for the Railways to take work or not from them. Hence, it is clear that the petitioner is entitled to get the increments and benefits of up-gradation of pay as per IVth Pay Commission, between the period of 01.02.1981 to 10.01.1994 but not the salary beyond 3 years as per Clause-(ii) (a) of the Judgment in the case of Union of India and others Vs. R. Radappa and others (supra).
The claim of the petitioner for parity with his junior, Udai Singh, who was allegedly promoted in the year 1993 has been set out in paragraph no.11 of the writ petition. The respondents in paragraph 20 of their Counter Affidavit have replied to the aforesaid paragraph, stating that Udai Singh was placed above the petitioner in the Seniority List because he got promoted on 03.03.1986 as Fireman- I being S.T. Candidate and therefore, despite being 17 years junior, he got placed above the petitioner in seniority list since his number of working days was 7 years, 10 months, 11 days, while the petitioner had worked for 6 years, 1 months and 6 days. A perusal of paragraph no.302, Chapter-III of the Indian Railway Establishment Manual, Vol.-I provides that "unless specifically stated, otherwise, the seniority amongst the incumbents of a post in a grade is governed by the date of appointment to the grade. Admittedly, the petitioner was appointed in the grade of ''Engine Cleaner' on 01.08.1960, while Udai Singh was appointed in April, 1977 as stated in the paragraph no.12 of the writ petition and there is no denial of the date of initial appointment of the two in paragraph no. 20 of the Counter Affidavit. Hence the denial of seniority to the petitioner by the respondents is also unwarranted as per their own rule. Here it is also observed that in paragraph 11 of the writ petition, the petitioner has stated that Shri Udai Singh was reinstated in service with him (in 1994). Therefore, now Udai Singh got promoted in 1986, during the pendency of litigation before Hon'ble Supreme Court has not been explained in paragraph 20 of their counter affidavit, nor this fact has been denied.
The finding of the Tribunal in paragraph no.9 of the Judgment that the number of working days of the petitioner is less than his junior, Udai Singh and therefore, the respondents have not committed any mistake in placing him lower in the seniority list is based only on the averments of the respondents in the Counter Affidavit and has not been recorded in reference to any rule or paragraph of the India Railways Establishment Manual and therefore, is perverse and set aside.
Regarding the promotion of Sri S.P.Mishra and D.N.Pal to the higher posts, despite being juniors to the petitioner, for which the record of the respondents was being summoned by this Court, it has been stated above that on account of illegal deprivation of the petitioner from appointment on the post of ''Steam Shunter', the avenue of promotion available to the petitioner to next higher posts of ''Goods Drivers' etc., was illegally blocked by the respondents. Therefore, promotion of Sri S.P. Mishra and Sri D.N.Pal has caused prejudice to the rights of the petitioner. Even without the record, this glaring injustice is apparent from the material available on record. Adverse inference is also discernable from the non production of record by the respondents, despite repeated orders of this Court.
The finding of the Tribunal that Sri S.P.Mishra and D.N.Pal were promoted before the petitioner because both of them were ''Goods Drivers' whereas the petitioner was only "Diesel Assistant' at the time of removal and reinstatement and as such, they got promotion as ''Passenger Drivers' is based only on the averment of the respondents in paragraph no. 45 of the Counter Affidavit of the respondents before the Tribunal, which was not based on any documentary evidence. It was for this purpose that the record of the promotion and seniority of Sri S.P.Mishra and D.N.Pal was summoned by this Court, but the same was not produced, hence the findings of the Tribunal, in this regard deserves to be set aside.
It is evident from the record that the Tribunal decided the Original Application by the order dated 09.07.2009 without hearing the petitioner and therefore, he preferred a Review Application No.10 of 2010, which was rejected by the order dated 17.03.2010, which has also been impugned in the present writ petition.
In view of the above factual and legal position, the order dated 09.07.2009 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No.34/2002 and order dated 17.03.2010 passed in Review Application are hereby quashed. The respondents are directed to grant the benefits of increments and up-gradation of pay as per IVth Pay Commission to the petitioner as part of Notional Benefits of continuity of service, but no salary beyond the period of 3 years as per the Judgment of the Hon'ble Apex Court in the case of Union of India & others Vs. R. Radappa and others, JT 1993 (4) SC 470. The petitioner is also entitled to benefit of notional seniority from the date his junior, Udai Singh, was promoted i.e., 01.04.1993 in the Seniority List of Foreman-I/Diesel Assistant. The petitioner shall also be given the benefits of notional promotion to the post of ''Steam Shunter' from 21.02.1994, when his juniors, Rama Shankar Pandey and others were promoted and benefits of notional promotion to the post of ''Goods Drivers' and /or ''Passenger Drivers' and/or ''Mail Drivers' from the date Sri D.N.Pal and Sri S.P.Mishra were granted promotions to any or all of these posts. The post retirement dues of the petitioner shall be re-calculated and re-fixed as per the benefits granted to him earlier in this petition. The petitioner shall be entitled to 7% simple interest on the arrears of pre and post retirement dues from the dates they were payable to him. All the dues of the petitioner shall be paid to him within a period of 3 months from the date of production of the Certified Copy of this order before the respondents concerned .
The writ petition is allowed with conservative litigation costs of Rs.25,000/- payable to the petitioner within the same period of 3 months.
Order Date :- 07.12.2017 Ruchi Agrahari