Central Administrative Tribunal - Chandigarh
Kulwant Singh vs Union Of India Through General Manager on 20 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH O.A.No.1350-HR-2011 Orders reserved on: 20.12.2013 (Orders pronounced : 03.01.2013 CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) & HONBLR MR. UDAY KUMAR VARMA, MEMBER (A). 1.Kulwant Singh, Senior Travelling Ticket Examiner, Northern Railway, Kalka. 2.Jaipal Dhiman, Senior Travelling Ticket Examiner, Northern Railway, Kalka. 3.Ashok Kumar, Senior Travelling Ticket Examiner, Northern Railway, Kalka. 4.Trilok Chand, Senior Travelling Ticket Examiner, Northern Railway, Ambala. 5.P.V.M. Nair, Senior Travelling Ticket Examiner, Northern Railway, Saharanpur. 6.Rajinder Parshad, Senior Travelling Ticket Examiner, Northern Railway, Ambala. 7.Surinder Singh, Senior Travelling Ticket Examiner, Northern Railway, Ambala. Applicants Versus 1.Union of India through General Manager, Northern Railway, Baroda House, New Delhi. 2.General Manager (P), Northern Railway, Headquarters Office, Baroda House, New Delhi. 3.Divisional Railway Manager, Northern Railway, Ambala Cantt. 4.Senior Divisional Personnel Officer, O/o Divisional Railway Manager, Northern Railway, Ambala Cantt. .Respondents Present: Mr. R.K. Sharma, Counsel for the applicants. Mr. R.T.P.S. Tulsi, counsel for respondents ORDER
(HONBLE MR. SANJEEV KAUSHIK, MEMBER(J) The brief facts leading to the filing of this Original Application are that the applicants initially joined service as Typists in March, 1988 in the pay scale of Rs.3050-4590 and were promoted to the post of Senior Typists in the pay scale of Rs.4000-6000 in December, 1990. There were 23 posts in the cadre of Typists as on 31.10.2003. Under a scheme for restructuring of the cadre, 10% posts of Typists were declared surplus w.e.f. 1.11.2003 in pursuance of order dated 27.2.2004 (A-4). The applicants alongwith others were declared as surplus and were proposed to be re-deployed in lower pay scale of Rs.3050-4590, as Clerks, vide order dated 27.2.2004 (A-5) ignoring that except applicants No.6 and 7, others were already in pay scale of Rs.4000-6000.
2. The applicants submitted a representation dated 25.04.2005 for assignment of seniority at proper place. In the letter dated 27.2.2004 posts have been shown as vacant and out of total 10 candidates, candidate at Sr. No.3 Sh. Murli Dhar Bhatt has been given seniority and promoted as Head Typist. The applicants claim that there is violation of rule with regard to surrendering of surplus staff, as start should have been done from junior most but in this case junior most at Sr. No. 22 & 23 namely Sh. Onkarnath and Gulshan Sharma were not declared as surplus.
3. The applicants state that as per circular dated 5.12.2006 (A-8), advance planning for identifying the possible pockets, where surpluses are expected to occur, should be done and as far as possible seek the options from the surplus staff for appropriate alternative categories so as to avoid a situation when a junior being re-deployed earlier becomes senior to his erstwhile senior. They plead that there were 73 newly created posts of Traveling Ticket Examiners grade Rs.4000-6000 as on 31.10.2003, which were lying vacant and as such there was no occasion for the respondents to re-deploy the applicants in lower posts carrying lower pay scale. Since the posts in equivalent grade were available and the respondents had not carried out the exercise properly, so the applicant made a representation for re-deployment in the cadre of TTE grade Rs.4000-6000 in pursuance of which the respondents diverted replacement of applicants against the post of TTE/TCR in equivalent grade.
4. Another issue raised by the applicants is qua fixation of seniority on being rendered surplus and their re-deployment. At the time of their redeployment, there was Railway Board Circular dated 21.4.1989 as per which in cases where only small number of staff are being rendered surplus and they have to be transferred to various units of other departments against the vacancies of duly sanctioned posts, they can be suitably adjusted in those units with their full seniority (Annexure A-11). The circular dated 21.4.1989 (A-11) was modified on 25.5.2004 (A-12), so as to grant seniority to the surplus staff only from the date they joined the new units and seniority rendered by the surplus staff was not considered. The decision was conveyed vide letter dated 11.8.2008 (Annexure A-1). The applicants made representations in 2008 and 2010 (Annexures A-13 to A-16). The Headquarters Office Northern Railway, New Delhi vide order dated 13.10.2011 (A-2) has informed that the claim of applicants should be governed by the instructions dated 25.5.2004. The applicants submit that one Mrs. Sanosh Rani, who was re-deployed in Clerks cadre, has been assigned correct seniority, whereas applicants have been denied benefit of the same. This decision has been upheld by this Tribunal in the case of Nirmala Devi.
5. In the background of the above facts the applicants have sought the following reliefs :-
`(i) xxx
(ii) Quash order dated 11.08.2008 issued by Respondent No. 4 whereby request of the applicants for fixation of their seniority in terms of Printed Sr. No. 9880 of 21.4.89 has been rejected without assigning any reason and without passing a speaking order, copy Annexure A-1.
(iii) Quash order of the Headquarter Office, Northern Railway as conveyed through Senior Personnel Officer, Northern Railway, Ambala Cantt, vide letter dated 13.10.2011 rejecting the claim of the applicants for fixation of their seniority in terms of Printed Sr. No. 9880 of 21.4.89 (Annexure A-2).
(iii) Issue directions to respondents to fix seniority of the applicants in the cadre of Traveling Ticket Examiners strictly in accordance with Printed Serial 9880 of 21-4-89 with all consequential benefits.
6. The respondents No. 1-4 have filed a joint reply statement opposing the claim of the applicants. They submit that the cadre of typist was to be merged in the clerical cadre and further recruitment as typist was banned as per PS No. 10659. On 27.2.2004 all the applicants with others were re-deployed on administrative grounds with benefit of seniority in the different departments against sanctioned posts. Their grade and pay was protected in terms of PS No. 12347 as stated in re-deployment letter, Annexure A-5. However, the applicants refused to accept re-deployment. The applicants were re-deployed as per notice dated 29.9.2004 (A-10) wherein it was clearly indicated that they are re-deployed as TTE/TCR as per their own request, in terms of instructions in PS No. 12814. The representations filed by applicants were replied to vide letters dated 24.11.2005, 11.8.2008, 31.11.2008 and 6.7.2011, Annexures R-3, A-1, R-5 and R-6 respectively. On the basis of oral request of applicants, their case was referred to respondent no. 2 for necessary clarification as per letter dated 11.8.2011 (Annexure A-17), to which reply was given on 7.9./2011 (Annexure R-7) and order, Annexure A-2 is based upon Annexure R-7. Annexure A-1 is a reply to belated representation filed by the applicants stating that their seniority is governed by PS No. 12814 (Annexure R-8). AS per PS No. 12814, para 313A of IREM Vol. I 1989 was added which provides as under :
313.A. Assignment of seniority to re-deployed surplus staff:
The surplus employees are no entitled for benefit of the past service rendered in the previous unit/ department for the purpose of their seniority in the new unit/department. Such employees are to be treated as fresh entrant in the matter of their seniority, promotion etc.
7. It is submitted that the circular dated 25.5.2004 was issued keeping in view the decision of C.A.T. Jodhpur Bench, Jodhpur in O.A.No. 489 of 1994 Surinder Parkash & Others Vs. Union of India & Others decided on 5.1.2000 and decision dated 29.7.1988 of Honble Supreme Court in the case of Indian Railway Ticket Checking Staff Association Vs. Union of India & Others wherein it has been held that surplus staff absorbed in other cadres / department will not count the service rendered by them in their parent cadre / department for the purpose of seniority and promotion etc. In addition thereto, the respondents have also taken preliminary objections that the O.A. suffers from delay, laches and is grossly barred by limitation. The cause of action, if any, arose on 29.9.2004 and in this case applicants have woken up after 7 years delay and no application for delay has been filed. The applicants have also suppressed material fact of rejection of their repeated representations. The O.A. is barred by mis-joinder of parties as case of applicants No. 6 and 7 is different than applicants No. 1 to 5. The applicants are estopped from claiming the benefit of their proposed re-deployment on 27.2.2004 after having refused to accept the posts as per letter, Annexure A-5 and continued to hold the post of Senior Typist/ Typist as admitted vide Annexure R-1 until their re-deployment on 29.9.2004 vide Annexure A-10 wherein it was clearly indicated that they are re-deployed as TTE/TCR as per their own request in terms of PS No. 12814 and at bottom seniority. The applicants have joined re-deployed posts on 19.1.2005, are governed by Railway Board letter dated 25.5.2004 issued under PS No. 12814 wherein Para 313A of IREM Vol. I was added (Annexure R-8). Sh. Murli Dhar Bhutt was the senior most senior typist in the typist cadre and was not spared by RPIF Department where he was working and was subsequently promoted against the vacancy of Head Typist which had fallen vacant while he was working as Senior Typist. As on 27.2.2004 Sh. Onkar Nath was holding the posts Signal and Telecom Helper Khalasi and on 10.2.1986 was posted as Record Lifter on adhoc basis but was utilized as Typist. He was unsuccessful in seeking relief for eligibility for selection to the post of Clerk-cum-Typist in O.A.No. 601-HR-2007. The applicant also challenged order dated 26.8.2009 in CWP No. 20049 of 2009 which was dismissed on 13.5.2010. Smt. Gulshan Sharma has been provisionally promoted as Sr. Typist vide letter dated 29.10.2010 against a post in construction organization. The Divisional is not having any post of Typist/Senior Typist and on repatriation, she will be absorbed in her own cadre in grade pay of Rs.1900/-.
8. The applicants have filed a rejoinder reiterating the submissions made in the Original Application.
9. We have heard learned counsel for the parties at length and examined the material available on file with their able assistance and have given our thoughtful consideration to the entire issue.
10. First of all we would take up the objection of the respondents qua the O.A. being barred by the law of limitation. No doubt the applicants were redeployed on 27.2.2004 as Clerks in pay scale of Rs.3050-4590 and on change of option, they were re-deployed as TTE/TCR. The applicants kept on agitating the issue of grant of seniority from the date of their initial date of appointment to the erstwhile cadre instead of bottom seniority and it is only vide letter dated 11.8.2011 that the lower formations took up the matter with the General Manager (P), Northern Railway, Baroda House, New Delhi and vide communication dated 7.9.2011, latter informed that in the case no policy angle is involved and as such DRM, Ambala may take a decision at divisional level in consultation with the Union as the rules are crystal clear on the subject. It is vide order dated 13.10.2011 (A-2) that the claim of the applicants has been rejected on merits and not on grounds of limitation. Once the representations of the applicants have been rejected on 13.10.2011 on merits, the cause of action has to be counted from 13.10.2011 and it would not relate back to 2004 or so and, therefore, the O.A. is held to be within the period of limitation.
11. We would now take up the only and crucial point of consideration as to what would be the rules / instructions for determination of seniority qua the applicants when they were re-deployed. The respondents claim that the Railway Board letter dated 25.5.2004 relating to bottom seniority on re-deployment to a new cadre was issued in pursuance of judicial pronouncement in the case of Surinder Parkash (supra) and Indian Railway Ticket Checking Staff Association (supra) whereas earlier seniority used to be given from the initial date of appointment in earlier cadre. In this case the applicants were declared surplus and were re-deployed in the Clerical Cadre vide orders dated 27.2.2004 which re-deployment was changed to the cadre of TTE. In other words the re-deployment of the applicant stood effectively complete in February, 2004 much before the issuance of the instructions dated 25.5.2004 (Annexure R-8) which provides seniority from the date of re-deployment in the new cadre and washes off the seniority in respect of service of parent cadre. It is not in dispute that prior thereto instructions dated 21.4.1989 held the field as per which when only a small number of staff is being rendered surplus and they have to be absorbed in various units of other departments against vacancies of duly sanctioned posts, they can be suitably adjusted in those units with their full seniority and their seniority merged in the respective units. Thus, in this case simply because the applicants joined the new cadre of TTE after 25.5.2004 would not mean that they would be governed by instructions dated 25.5.2004 as they stood re-deployed much prior thereto and as such their case would be governed by the instructions dated 21.4.1989. The non-acceptance of re-deployment by the applicants in the clerical cadre and choosing of TTE cadre for the purpose would not be taken as an estoppel against them as one is entitled to have the best of the choice available to him and we do not find that the applicants have done anything wrong in changing their choice to a new cadre which request was in fact accepted by the respondents.
12. In the background of above discussion, this Original Application is allowed. Impugned order dated 11.8.2008 (A-1) and order dated 13.10.2011 (A-2) are quashed and set aside. The respondents are directed to fix the seniority of the applicants in the cadre of TTE strictly as per Printed Serial No. 9880 dated 21.4.1989 with all the consequential benefits. Needful be done within a period of three months from the date of receipt of copy of this order.
20. No costs.
(SANJEEV KAUSHIK) MEMBER(J) (UDAY KUMAR VARMA) MEMBER (A) PLACE: CHANDIGARH DATED: __________ HC*