Central Administrative Tribunal - Delhi
Smt. Shakuntala Devi vs Union Of India : Through on 28 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2086/2010 with O.A. NO.1978/2010 New Delhi, this the 28th day of July, 2011 CORAM: HONBLE MR. M.L. CHAUHAN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) OA 2086/2010: 1. Smt. Shakuntala Devi, W/o Late Shri Thakur Das, Aged about 53 years 2. Shri Jasveer Singh, S/o Late Shri Thakur Das, R/o Quarter No.B-4, Block No.6, Railway Colony, Punjabi Bagh, New Delhi 110 026 Applicant (By Advocate: Shri Manjeet Singh Reen) Versus Union of India : Through 1. The General Manager, Northern Railway, Baroda House, New Delhi 2. The Deputy Chief Material Manager, Northern Railway, General Store depot, Shakurbasti, New Delhi 3. Shri Mohinder Singh, S/o Shri Chandgi Ram, (Retd as Supdt.) 4. Shri Hari Krishan, S/o Shri Keshwa Nand 5. Shri Muni Lal Sharma, S/o Shri Dhaneshwari Prasad 6. Shri Nand Kishore, S/o Shri Dharam Nand 7. Shri Chootey Lal, S/o Shri Kedar Nath 8. Shri Kali Charan, S/o Shri Munshi Lal 9. Shri Ram Ugresh, S/o Shri Ram Jit 10. Shri Kamlesh Kumari, S/o Shri Pooran 11. Shri Kanwal Pal Singh, S/o Shri Bain Singh 12. Shri Shiv Bahadur S/o Shri Ram Pher 13. Shri Piare Lal, S/o Shri Hans Raj 14. Shri Narinder Kumar, S/o Shri Hori Lal 15. Shri Ranjinder Kumar, S/o Shri Lorinda Ram 16. Shri Ganesh Dutt S/o Shri Amarnath 17. Shri Yash Pal S/o Shri Madan Lal 18. Shri Hari Singh, S/o Shri Ram Chander 19. Shri Satya Pal, S/o Shri Nihal Chand 20. Shri Kamaljit Singh, S/o Shri Preetam Singh 21. Shri Shiv Shanker P.V., S/o Shri Valutha Kunjee 22. Shri Som Raj, S/o Shri Lachman 23. Shri Vinod Kumar, S/o Shri Muni Lal 24. Shri Ram Kumar, S/o Shri Chander 25. Shri Prem Chand S/o Shri Jaishi Ram 26. Shri Manohar Lal, S/o Shri Bhagwan Dass 27. Shri Danesh Kumar, S/o Shri Minishwar Lal 28. Shri Om Kumar, S/o Shri Mam Chand 29. Shri Cheddi Lal, S/o Shri Ram Nath 30. Shri Manohar Lal, S/o Shri Bansi Lal 31. Shri Surinder Mohan S/o Shri Bal Kishan 32. Shri Tulsi Ram, S/o Shri Ram Naresh 33. Shri Chand Kumar, S/o Shri Nand Kishore 34. Shri Darshan Singh, S/o Shri Prem Singh 35. Shri Sushil Kumar, S/o Shri Gulchaman 36. Shri Ramesh Chander, S/o Shri Bhopal Singh 37. Shri Ravi Shanker S/o Shri Madan Lal 38. Shri Suresh Kumar S/o Shri Tek Chand 39. Shri Jamna Dass S/o Shri Lehna Ram 40. Shri Ramesh Chand S/o Shri Mool Chand 41. Shri Harphool Singh, S/o Shri Sunda Ram 42. Shri Sita Ram, S/o Shri Nohri 43. Shri Jawahar Lal, S/o Shri Mata Din 44. Shri Fateh Singh, S/o Shri Ram Parshadh 45. Shri Raja Ram, S/o Shri Shanker 46. Shri Mohan Lal S/o Shri Ram Pher 47. Shri Jagan Nath S/o Shri Ram Ajar 48. Shri Moti Lal, S/o Shri Lahori 49. Shri Hari Kishan S/o Shri Devi Prasad 50. Shri Ram Sunder S/o Shri Prahlad 51. Shri Bainkuth Lal, S/o Shri Ascharaj Lal 52. Shri Janak Raj, S/o Bachittan Singh (All working as DSM-III, in Northern Railway under the Respondent No.2) Respondents (By Advocates: Shri V.S.R. Krishna with Shri Rajender Khattar for official respondents; Sh. B.S. Mainee with Ms Meenu Mainee for Pvt. Respondents) OA 1978/2010 1. Shri Balwinder Singh, S/o Late Shri Prem Singh Working as DMS-II Under Dy. Controller of Stores, Northern Railway, General Store, Shakurbasti, New Delhi 110 034 2. Shri N.C. Sharma, S/o Shri C.R. Sharma, Working as DMS-II, Under Dy. Controller of Stores, Northern Railway, General Store, Shakurbasti, New Delhi 110 034 Applicants (By Advocate: Shri Manjeet Singh Reen) Versus Union of India : Trhough 1. The General Manager, Northern Railway, Baroda House, New Delhi 2. The Deputy Chief Material Manager, Northern Railway, General Store Depot, Shakurbasti, New Delhi 3. Shri Hemant Kumar Swamy, S/o Late Shri Har Pratap Swamy, Working as DMS-III, Under Dy. CMM. NR, SSB, New Delhi 4. Shri Randhir Chand Nath, S/o Shri Nek Chand, Under Dy. CMM, NR, SSB, New Delhi 5. Shri Baidya Nath Jha, S/o Shri Kapil Dev Jha, Under SMM/ETD/Chaziabad (UP) 6. Shri Shyam Bahadur, S/o Shri Ram Bahadur, Working as DMS-III, Under SMM/ETD, Ghaziabad (UP) 7. Shri Dhian Singh, S/o Shri Rikhi Ram, Working as HC, Under SMM/ETD/Ghaziabad (U.P.) 8. Shri Manvinder Singh, S/o Shri Gulzar Singh, Working as HC, Under SMM/ETD/TKD, New Delhi 9. Shri Shyam Lal, S/o Shri Kishori Lal, Working as DMS-III, Under Dy. CMM, NR, SSB, New Delhi Respondents (By Advocates: Shri V.S.R. Krishna with Shri Rajender Khattar for official respondents; Sh. B.S. Mainee with Ms Meenu Mainee for Pvt.Res.) O R D E R
By Dr. Veena Chhotray:
Both these OAs are being dealt by this common order as they involve a common issue of law and have closely related factual matrix.
2.1 In OA 2086/2010, the applicants are legal heirs of Late Shri Thakur Das, who passed away during the pendecy of the OA. Though initially appointed as a Class-IV, he had subsequently been promoted to Class-III in various rungs of hierarchy like Clerk, Senior Clerk and Depot Store Keeper on regular basis. Besides, his name had also been shown as Deputy Manager Supdt. (DMS-III) in the provisional seniority list of 2002 for DMS Grade-II.
Aggrieved by the Tribunals direction dated 9.7.2003 passed in the OA 1649/1997 Shri Mohinder Singh & Ors vs. Union of India & Anr as also the order dated 12.12.2008 in OA No.1900/2007 Hemant Kumar Swamy & Ors vs Union of India & Anr, which are stated to have been passed behind the back of the deceased Shri Thakur Das and without impleading him as a party, the OA has challenged the impugned seniority lists dated 6.3.2007 (Annex. A/1) and dated 29.8.2009 (Annex. A/2). Annexure A/1 is a revised seniority list of DMS-III Grade Rs.5,000-8,000/- issued in implementation of the Tribunals direction in the OA 1649/1997 and the CP No.412/2004. By this, the names of the applicants in that OA i.e. Shri Mohinder Singh & Ors (private respondents in the present OA) have been interpolated. Annexure A/2 is the provisional seniority list of DMS-III and DMS-II.
By way of relief, the OA seeks quashing the impugned orders at Annexures A/1 and A/2. The alternative prayer is to disagree with the Tribunals order dated 9.7.2003 and refer the matter of a Full Bench in terms of the law laid by the Honble Apex Court in the case of Shri K. Ajit Babu & Ors vs Union of India &Ors {1998 (1) AISLJ 85.
2.2 Both the applicants of the OA 1978/2010, Shri Balvinder Singh and Shri N.C. Sharma had initially been appointed on regular basis in Class-III as Clerks. After their subsequent promotions as Sr. Clerk, Depot Material Supdt. Gr-III, their names had been included in the provisional seniority list of DMS Gr-II circulated in the year 2001. The applicants are aggrieved at the Tribunals directions passed in the OA No.1900/2007, again stated to have been passed without impleading them as party and thus alleged to be in violation of the principles of natural justice. On the basis of Tribunals directions, the applicants have been de-panelled and reverted to the post of DMS-III.
By way of relief, the OA seeks quashing the following impugned orders with all consequential benefits:-
The show cause notice dated 20.6.2009 regarding withdrawal of the promotional benefits as DMS-II (Annex. A/1).
The show cause notice dated 10.3.2010 for de-empanelment and reversion from the post of DMS-II to DMS-III w.e.f. 1.11.2003, stated to be in implementation of the decision of the Tribunal in OA 1900/2007.
The Notice dated 13.5.2010 for modified selection to fill up the DMS-II Grade 5500-9000 on account of restructuring of the cadre w.e.f. 1.11.2003.
Order dated 19.5.2010 regarding de-empanelment and reversion from DMS-II to DMS-III.
Alternatively disagreeing with the view taken by the Coordinate Bench of this Tribunal in OA 1900/2007, reference of the matter to a Full Bench of the Tribunal has been prayed.
2.3 Interim directions were issued by the Tribunal in the OA 2086/2010 not to make any further promotions on the basis of impugned seniority lists. Also in the OA 1978/2010 interim directions were issued for not making any recoveries consequent to the impugned orders.
3. On behalf of the applicants, the learned counsel Shri Manjeet Singh Reen, for the official respondents, the learned counsel Shri V.S.R. Krishna with Shri Rajender Khatter and for the private respondents, the learned counsel Shri B.S. Mainee with Ms Meenu Mainee argued the matter before us.
4.1 Since the present OAs have arisen as a consequence to certain directions issued by the Tribunal in the OA 1649/1997 (Shri Mohinder Singh & Ors vs. Union of India & Anr) decided on 9.7.2003 and the OA 1900/2007 (Hemant Kumar Swamy & Ors vs Union of India & Ors) decided on 12.12.2008, a brief background of these two decisions would be apt for comprehension of the issues involved herein. In OA 1649/1997 there were 59 applicants initially appointed as Class-IV during the period 1974-1989. They had been further promoted to class-III as LDC and Mobile Checking Clerks first on ad hoc basis (on various dates from 1981 to 1987) and subsequently on regular basis in the year 1993. The applicants were agitating claims for reckoning their seniority in Class-III from the dates of their ad hoc promotions.
The OA 1649/1997 had initially been decided by Tribunals order dated 25.1.2001 with directions to the respondents to determine the seniority of the applicants in Class-III posts of LDC/MCC reckoning their ad hoc officiation with all consequential benefits. However, on a challenge to this order vide Civil Writ Petition No.963/2002, the matter was remitted for reconsideration to the Tribunal as to whether while granting promotion, the requirement of Para 216 of the Railway Establishment Manual had been complied with. The findings of the Tribunal were in the affirmative and the operational directions were reiteration of the earlier order. While arriving at its conclusion, a number of judicial rulings including that of the Constitution Bench in the case of Direct Recruits Class II Engineering Officers Association & Ors vs State of Mahatrashtra & Ors, JT 1990 (2) SC 264 had been relied upon by the Tribunal. However, the provisions of Para 302 of the IREM had not been found relevant considering the Apex Courts decisions.
4.2 In the OA 1900/2007 (Hemant Kumar Swamy & Ors), the applicants Head Clerks and Senior Clerks in the Railways were seeking extension of the benefits in the OA 1649/1997 and grant of seniority from the date of ad hoc promotion as Clerks with consequential benefits. Taking into account the facts such as that there had been finality to the Tribunals order as the Writ Petition filed against the same had been withdrawn consequent to an out of Court compromise between the parties; the Tribunals earlier order being treated as a precedent; and the applicants being considered as similarly situated, the OA had been allowed.
5.1 A number of preliminary objections had been raised on behalf of the private respondents questioning the maintainability of the O.A. Reacting to the basic plea of the applicants of not having been heard before the aforesaid judgments of the Tribunal had been passed, the learned counsel, Shri B.S. Mainee would contend that as per the law laid down by the Apex Court in Rajbir Singh & Ors vs Union of India & Ors {(1992) 19 ATC 315} where the issue involved was impleadment of parties likely to be affected adversely was not required. It would further be argued that while giving effect to the revised seniority as per the decision of the Tribunal all concerned had been informed and a Show Cause Notice had been issued in the year 2004.
Shri B.S. Mainee would also submit about the present OA being barred by limitation as subsequent to the decision in Mohinder Singhs case, the seniority list had been revised in the year 2004.
5.2 Another ground taken would be that the applicants in the OA 1978/2010 (Balvinder Singh & Ors) had been parties to the compromise affected by J.K. Chadda & Ors to the revised seniority list after the decision in Mohinder Singhs case and had withdrawn their writ petition. Thus, as per the learned counsel they were now precluded from raising the same issues through the instant OAs. These preliminary objections would be stoutly rebutted by the applicants learned counsel Shri Manjeet Singh Reen. It would be submitted that the law laid down in Rajbir Singhs case had undergone a sea change in subsequent judgments. In support, a number of judgments would be relied upon viz. H.P. State Electricity Board vs K.R. Gulati {(1999) 1 SLJ SC 41}; State of Bihar & Ors vs Kameshwar Prasad Singh & Anr (JT 2000 (5) SC 389}; Smt. Meena Sanpal vs Union of India & Ors (OA No.2485/2002 decided on 22.5.2003); and the decision of the Co-ordinate Bench of Ernakulam of the Tribunal in K.M. Pradeep & Ors vs Union of India & Ors reported in 2002 (3) SLJ CAST 46).
The contention of learned counsel, Shri Reen would be that not only the applicants who were the affected parties, had not been impleaded before the passing of the orders in the OA 1649/1997; but also the show cause notice dated 17.3.2004 stated to have been issued before the revision of the seniority of the applicants in the OA, had not been served by the official respondents.
As regards Balvinder Singhs case, it would be submitted that the applicants who were signatories to the out of court compromise, were not challenging the revised seniority list dated 29.8.2009 but the judgment in OA No.1900/2007 (Hemant Kumar Swamys case) in pursuance of which they had now been reverted to the post of DMS-III. The impugned orders falling very much within the purview of the prescribed period of limitation would also be emphasized by the learned counsel.
5.3 The stand of the official respondents has been at variance to that of the private respondents. They have not supported the preliminary objections raised by the private respondents regarding the maintainability of the OAs. It is submitted that the decision in Mohinder Singhs case had been implemented by them only in respect of the applicants in that OA. Further the filing of several OAs by the persons similarly placed or senior to the applicants in Mohinder Singhs OA has also been mentioned. As per the learned counsel, Shri V.S.R. Krishna because of these cross litigations, the seniority issue of the concerned employees had still not been settled creating adverse administrative repercussions on the functioning of the department. Further, it would be submitted that as the issue of seniority raised by the applicants was still subsisting, the impugned seniority list cannot be stated to be time barred or barred by limitation.
Responding to the stand of the applicants counsel Shri Reen, it would be submitted by the official respondents that as per the records the earlier S.C.N. dated 17.3.2004 could not be circulated to the applicants or all concerned. Even in their counter affidavit (OA 2086/2010) it has been stated that the seniority lists dated 6.2.2007 and 29.8.2009 had been revised without giving show cause notice or opportunities to the applicants or other affected employees.
The respondents have also submitted for referring the matter to a Larger Bench/Full Bench to avoid any conflict between the two Benches. For this purpose reliance has also been placed on the judgment of the Honble Supreme Court in Civil Appeal No.3520 of 1991 (K. Ajit Babu vs Union of India & Ors).
6.1 While arguing the case, the learned counsel for the private respondents, Shri B.S. Mainee would also make a submission that the basic issue involved pertained to applicability of the provision of Para 216 of the IREM Vol. I to the facts of the case. It would also be sought to be driven home by the learned counsel that the decision of the Tribunal in the OA 1649/1997 had been rendered in the light of several judicial rulings by the Apex Court including that of the Constitution Bench in Direct Recruit Class II Engineering Officers Association (supra) and the same could not be a subject of challenge again.
6.2 On the other hand, the applicants learned counsel Shri M.S. Reen would submit that the basic issue of law involved in all these cases was the applicability of Para 302 of IREM which prescribed the specific provisions in the matter of determination of inter-se seniority. The learned counsel would seek to establish his point by referring to the findings of the Tribunal in its order in Mohinder Singhs case (Para-33) where the provisions of Para 302 of the IREM had been opined to be having no relevance. Besides, the learned counsel would also rely on several judicial rulings including UOI & Ors vs Dharma Pal etc {2010 (1) SLJ SC 113) to argue about the need for a reconsideration of the aforesaid view.
7.1 In view of the arguments and counter arguments of both the sides, particularly considering the stand of the official respondents, we are not inclined at this stage to dismiss the instant OAs summarily on technical grounds. What we find relevant instead is the impact of the relevant provisions under Para 302 of IREM Vol.I on the issue of inter se seniority of the applicants as well as the private respondents of these OAs. As stated above, the basic order in this case was that in Mohinder Singhs case, para 33 contained the following observations:-
xxx. The question of applicability of para 302 of the IREM has no relevance in view of the Constitutional Bench decisions of the Apex Court in Direct Recruit Class II Engg. Officers Assn.s case supra as well as in R.K. Sains case (supra). xxxx"
It is further noted that while the applicability of the provisions of Para 206 of th IREM Vol.I to this case had been examined at length in pursuance of the Honble High Courts direction, the impact of the specific provisions of Para 302 had remained unexplored.
Para 302 of IREM Vol. I is in the context of rules regulating seniority of non-gazetted Railway servants. This specific para prescribes the principles for determining seniority in the initial recruitment grades. These guidelines, inter alia, prescribe that in the case of promotions the criteria for determination of seniority should be the date of regular promotion after due process. Considering its key significance in the present context, this para being extracted here under in toto:
302. Seniority in initial recruitment grades Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in case of direct recruit, subject to maintenance of inter-se-seniority of promotees and direct recruits among themselves. When the date of entry into a grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se-seniority of each group. (emphasis supplied) Thus, para 302 does not contain any enabling provision for grant of seniority to a promotee employee from a date anterior to that of the regular promotion.
8.1 As per the aforesaid extracted observations of the Tribunal in Mohinder Singhs case, Para 302 had not been considered relevant in view of the decision of the Constitution Bench of the Apex Court in Direct Recruit Class II Engg. Officers Assn. case (supra) as well as in R.K. Sains case (supra). Among the various grounds taken, non-consideration of the rule as prescribed in Para 302 has been taken as one of the grounds to challenge the impugned decision. Further, these are also stated to be contrary to the law declared in a catena of judgments by the Apex Court including that in Dharam Pals case (supra).
8.2 While deciding the OA 1649/1997, the Ld. Coordinate Bench of the Tribunal in its order dated 9.7.2003 had considered a number of judicial decisions, which are being indicated as below:
Direct Recruitment Class-II Engineering Officers Association v. State of Maharashtra, JT 1990 (2) SCC 715;
State of West Bengal & Ors V. Aghore Nath Dey, 1993 (3) SCC 371;
T. Vijayan & Ors v. Divisional Railway Manager & Ors, JT 2000 (4) SC 196; and Rudra Kumar Sain v. Union of India, 2000 (9) SCC 299.
While dealing with the issue of admissibility of ad hoc officiation for the purposes of inter-se-seniority, in none of these cases a situation had been dealt with by the Honble Apex Court where the rules contained a specific provision regarding determination of inter-se-seniority.
8.3 On the other hand, the Honble Apex Court had an occasion to deal with a similar issue in Swapan Kumar Pal & Ors vs Samitabhar Chakraborty & Ors decided on 9.5.2001 and reported in 2001 SCC (L&S) 880. In this case while dealing with the issue of inter-se-seniority between the promotees through limited departmental examinations and promotees on the basis of seniority-cum-merit, the Honble Court had considered the provisions of Para 302 of the IREM and held that the seniority could be fixed from the date of promotion after regular selection by due process. Further it had been held that period of ad hoc promotion preceding that date would not count towards seniority. In this case, the Honble Apex Court had dealt upon the point that there must be an enabling provision under the rules for such regularization of promotion from an anterior date. A contrast had also been drawn with Suraj Prakash Gupta vs. State of J&K, 2000 (4) SLR 486 (SC) where J&K Engineering Rules had provided specific provisions enabling regularization from an anterior date subject to fulfillment of certain conditions, absence of such rules in the Railways was considered to be a material factor by the Honble Court. In Para-9, the following observations had been made:-
When the service conditions are governed by a set of rules, in the absence of any rules, it cannot be held that a regular promotion would relate back to the date of ad hoc promotion itself.
At this point it may be pertinent to note that the decision of the Tribunal dated 9.7.2003 in Mohinder Singhs case, had not considered either Sapan Kumar Pal & Ors vs Samita Bhar Chakraborty & Ors or Suraj Pasrkash Gupta vs State of J&K cases (supra), delivered anterior in time.
8.4 Reliance has also been placed by the applicants learned counsel Shri M.S. Reen on the recent decision of the Honble Apex Court in UOI & Ors vs. Dharam Pal Etc. In this case, the Honble Apex Court had reviewed the rules relevant to promotion as well as determination of seniority in the Railways as prescribed under the IREM Vol.-I. Besides, it had also taken into account the entire gamut of landmark decisions on the subject including several of the decisions considered by the Tribunal while deciding OA No.1649/1997. These had, inter alia, included the judgments in Direct Recruit Class-II Engg. Officers Assn.; Aghore Nath Dey, T. Vijayan & Ors (supra). Besides, the Honble Apex Court had also referred to its decision in Swapan Kumar Pal & Ors as well as Suraj Prakash Gupta cases (supra). Para 14 of the judgment had laid down the law as follows:-
When an ad hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit (supra) the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule. (emphasis supplied)
9. To conclude, while noting the respective submissions of the parties before us regarding the maintainability of the present OAs, we have refrained from arriving at any conclusive finding about the same. However, in the light of the respective submissions, particularly those by the official respondents, we have not opted for a summary disposal of the OAs. At the same time we have also found relevant the plea taken by the applicants about the need for consideration of the issue of law, which had not been considered by the learned Coordinate Bench of the Tribunal while deciding OA 1649/1997 in its order dated 9.7.2003 and thus the impact of the specific provision under Para 302 of the IREM Vol. I on the issue of reckoning ad hoc officiation of a promotee employee for the purposes of seniority. Being respectfully seized with the decisions of the Honble Apex Court in Suraj Prakash Gupta as also Swapan Kumar Pals cases (supra) and reiterated in the recent judgment in Dharam Pals case also, we find the issue raised deserving consideration by a Full Bench of the Tribunal.
Accordingly, the matter is being placed before the Honble Chairman for referring the issue of maintainability of the two OAs as well as the point of law raised herein for consideration by a Full Bench of the Tribunal so as to avoid conflicting views between the different Division Benches of the Tribunal.
(Dr. Veena Chhotray) (M.L. Chauhan) Member (A) Member (J) /pkr/