Central Administrative Tribunal - Ahmedabad
Uma Shankar Ravi Ranjan vs M/O Railways on 22 March, 2022
(CAT/AHMEDABAD BENCH OA NO.123/2020) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.123/2020.
Dated this the 22nd day of March, 2022.
Reserved on: 15.09.2021
Pronounced on: 22.03.2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Uma Shankar Ravi Ranjan
Age: 40 years (Do Being 01.01.1980) S/o Shri Rajan,
Presently serving as Senior Section Engineer, P.Way
(LR) PTN, under SSE, P.Way,
Patan of Ahmedabad Railway Division of Western Railway Zone,
Address for Communication: House No. 143,
JEEL Residency, Near Railway Crossing, (LC NO.42)
PATAN 384 265, Gujarat.
2. Navik Shiavanandan
Age: 44 years (DoB being 31.05.1975)
S/o Shri Hari Ram,
Presently serving as Senior Section Engineer, P.Way
(LR) AAR, under SSE, P.Way, AAR of
Ahmedabad Railway Division of Western Railway Zone,
Address for Communication: No.42,
Varahi Society, "D"
Cabin, Kali, Ahmedabad - 380 019.
3. JagdishKumar Bhikabhai Parmar
Age: 50 (DoB being 05.02.1970)
S/o. Shri Bhikhabhai Parmar,
Presently serving as Senior Section Engineer, P. Way,
(W/C), ADI, under SSE, P. Way, ADI of
Ahmedabad Railway Division of Western Railway Zone,
Address for Communication: No. C-1,
Harimilan Tenament,
Behind Visat Mata Mandir,
Taluka & District: Gandhinagar 382 421.
...Applicants
(By Advocate Mr. M. S. Rao)
Vs
(CAT/AHMEDABAD BENCH OA NO.123/2020) 2
1. Western Railway
(to be represented through its General Manager (E), W.Rly, Zone,
Office of the General Manager (E), W. Rly. Hqrs. Office,
Church Gate, Mumbai 400 020.
2. The Divisional Railway Manager (E),
Ahmedabad Railway Division,
Western Railway Zone, O/o. DRM (E), ADI,
Near Chamunda Mata Bridge, Naroda Road,
Ahmedabad - 380 025.
3. The Senior Divisional Engineer (CO) & (E)
Ahmedabad Railway Division,
O/o. Sr. DEN (CO) & (E), ADI,
Ahmedabad Railway Divisional Office,
Western Railway Zone,
Near Chamunda Mata Bridge, Naroda Road,
Ahmedabad- 380 025.
4. Shri Vikram Singh K.,
Presently serving as Junior Engineer (P.Way)
O/o. SSE (P.Way), Bhildi,
Ahmedabad Railway Division,
Western Railway, Bhildi, District: Banaskanta - 385 530.
5. Shri Surendra Kumar Navrangram
Presently serving as SSE (P.Way)
Broad Gauge, Gandhidam, Ahmedabad Railway Division,
Western Railway, Gandhidam, Dist. Kutch, Pin 370 201.
6. Shri Avnish Kumar Sharma
Presently serving as JE (P.Way)
Track Cell, under SSE (P.Way), Track Cell,
O/o. DRM, Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata bridge,
Naroda Road, Ahmedabad 380 025.
7. Shri Suman kumar Singh,
Presently serving as JE (P.Way)
USFD under SSE (P.Way), USFD,
Ahmedabad Railway Division, Western Railway,
Post: Dhrangdhara, Dist: Surendranagar, Pin 363 320.
8. Shri Girish Prasad Meena,
Presently serving as JE (P.Way)
(CAT/AHMEDABAD BENCH OA NO.123/2020) 3
RSW, ADI under SSE (P.Way), HMT,
Ahmedabad Railway Division, Western Railway,
Himmatnagar, Dist: Sabarkanta, Pin - 383 001.
9. Shri Sushyanta U. Behera,
Presently serving as JE (P.Way)
WC, ADI under SSE (P.Way,) ADI,
O/o. DRM, Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad - 380 025.
10. Shri Nirbhay Kant Jha,
Presently serving as JE (P.Way)
SBT Yard under SSE (P. Way), B.G. Sabarmati,
Ahmedabad Railway Division, Western Railway,
Sabarmati, Ahmedabad - 380 005.
11. Shri Davashish Pal S.,
Presently serving as JE (P.Way)
USFD under SSE (P.Way), USFD, Gandhidham,
Ahmedabad Railway Station,
Western Railway, Gandhidham, Dist: Kutch - 370 201.
12. Shri Rajiv Kumar Parmlal Duneria,
Presently serving as JE (P.Way)
Piprala under SSE (P.Way), Adesar,
Ahmedabad Railway Division,
Western Railway, ADESAR, Dist: Kutch - 370 155.
13. Shri Devendra Kumar Mandal,
Presently serving as JE (P.Way)
USFD under SSE (P.Way), USFD, Mehsana,
Ahmedabad Railway Division,
Western Railway, Mehsana, - 384 002.
14. Shri Sudama Ramkesh Yadav,
Presently serving as JE (P.Way), Adesar,
Under SSE (P.Way), Adesar
Ahmedabad Railway Division,
Western Railway, ADESAR, Dist: Kutch, pin - 370 155.
15. Shri Saket Bihari Ramratan Prasad,
Presently serving as JE (P.Way),
Broad Gauge, Gandhidham,
Under SSE (P.Way,) Gandhidham,
(CAT/AHMEDABAD BENCH OA NO.123/2020) 4
Ahmedabad Railway Division,
Western Railway, Gandidham, Dist: Kutch - 370 201.
16. Shri Ram Prakash Patel,
Presently serving as JE (L.R.), Mali,
Under SSE (P.Way) Malia, Miyana,
Ahmedabad Railway Division,
Western Railway, Post: Malia,Dist: Morvi - 363 670.
17. Shri Santosh Kumar S.
Presently serving as JE (P.Way),Ambaliyasan,
Under SSE (P.Way) Kalol,
Post: Ambaliyasan, Dist: Mehsana - 382 732.
18. Shri Sarata Kumar Keshav Charan Sahoo,
Presently serving as JE (P.Way),
Under SSE (P.Way), Bhachau
Ahmedabad Railway Division,
Western Railway, post: Bhachau, Dist: Kutch - 370 240.
19. Shri Dilip Kumar Nareshwar Ram
Presently serving as JE (P.Way), Bhabhar,
Under SSE (P.Way), Radhanpur,
Ahmedabad Railway Division,
Western Railway, post: Bhabhar, Dist: Banaskanta - 385 320.
20. Shri Manoj Kumar Ratnkar Das,
Presently serving as JE (P.Way), Varahi,
Under SSE (P.Way), Radhanpur,
Ahmedabad Railway Division,
Western Railway, Post: Varahi, Dist: Patan : 385 360.
21. Shri Vidrendra Kumar B.,
Presently serving as JE (P.Way), Ambli Road,
Under SSE (P.Way), Viramgam,
Ahmedabad Railway Division,
Western Railway, Post: Viramgam, Dist: Ahmedabad : 382 150.
22. Shri Bir Bahadur Prasad,
Presently serving as JE (P.Way), Nandol Dehgam,
Under SSE (P.Way), Himmatnagar,
Ahmedabad Railway Division,
Western Railway, Post: Dehgam,
Dist: Gandhinagar : 382 305.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 5
23. Shri Madan Lal A.,
Presently serving as JE (P.Way), Halvad,
Under SSE (P.Way), Dhrangadhra-II,
Ahmedabad Railway Division,
Western Railway, Post: Halvad, Dist: Suredranagar : 363 330.
24. Shri Basant Kumar
Presently serving as JE (P.Way), Work Charge,
Engg. Control, Gandhidham,
Under ADEN Gandhidham,
Ahmedabad Railway Division,
Western Railway, Post: Gandhidham,Dist: Kutch: 370 201.
25. Shri Indrajeet Kumar Singh,
Presently serving as JE (P.Way), Engg. Control, ADI,
Under SSE (P.Way), Engg. Control, Ahmedabad,
Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad - 380 025.
26. Shri Sanjay Kumar D.,
Presently serving as JE (P.Way), Khodiyar,
Under SSE (P.Way), Broad Gauge, Sabarmati,
Ahmedabad Railway Division,
Western Railway, Post: Khodiyar
Dist: Ahmedabad, pin: 382 421.
27. Shri Ramdas Kumar,
Presently serving as JE (P.Way), Bhachau,
Under SSE (P.Way), Bhachau,
Ahmedabad Railway Division,
Western Railway, Post:Bhachau, Dist: Kutch : 370 140.
28. Shri Kamal Kant Sharma,
Presently serving as JE (P.Way), Ahmedabad,
Under SSE (P.Way), Ahmedabad,
Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad - 380 025.
29. Shri Alikana Rama Rao T.,
Presently serving as JE (P.Way), Ahmedaad,
Under SSE (P.Way), Ahmedabad,
Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad - 380 025.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 6
30. Shri Bachu Prasad,
Presently serving as JE (P.Way), Jakhwada,
Under SSE (P.Way), Viramgam,
Ahmedabad Railway Division,
Western Railway, Post: Jakhwada,
Dist: Ahmedaad, Pin - 382 150.
31. Shri Krishna Kumar Das,
Presently serving as JE (P.Way), W.C. Chapi,
Under SSE (P.Way), North Mehsana,
Ahmedabad Railway Division,
Western Railway, Post: Chapi, Dist: Banaskanta - 385 210.
32. Shri Ranjeet Kumar R.,
Presently serving as JE (P.Way), Visnagar,
Under SSE (P.Way), South Mehsana ,
Ahmedabad Railway Division,
Western Railway, Post: Visnagar,
Dist: Mehsana : 384 315.
33. Shri Pradeep Kumar B.,
Presently serving as J.E., (P.Way), Jhulasan,
Under SSE (P.Way), Kalol,
Ahmedabad Railway Division,
Western Railway, Post: Dangarwa, Dist: Mehsana,
Pin 382 705.
34. Shri Shivdutt Singh K,
Presently serving as JE (P.Way), ADI,
Under SSE (P.Way), Ahmedabad,
Ahmedabad Railway Division,
Western Railway,
35. Shri Sudhir Kumar Jatav,
Presently serving as JE (P.Way), Ahmedabad,
Under SSE (P.Way), Ahmedabad,
Ahmedabad Railway Division,
Western Railway, Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad - 380 025.
36. Shri Raghunath Das,
Presently serving as JE (P.Way), Disa,
Under SSE (P.Way), Palanpur,
Ahmedabad Railway Division,
Western Railway, Post - Disa, Dist: banaskanta, Pin - 385 535.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 7
37. Shri Suresh Chand Meena,
Presently Serving as J.E. (P. Way), L. R.,
Under SSE (P.Way), Dhrangadhra-I,
Ahmedabad Railway Division, Western Railway
Post: Dhrangadhra, Dist: Surendranagar, : 363 320.
38. Shri Wibekanand Kumar Paswan,
Presently Serving as J.E. (P. Way), Chandlodiya
Under SSE (P.Way), B.G. Sabarmati,
Ahmedabad Railway Division, Western Railway
Post: Chandlodiya, Dist: Ahmedabad, : 382 481.
39. Shri Gurusaday Bera,
Presently Serving as J.E. (P. Way), USFD, Palanpur,
Under SSE (P.Way), USFD, Palanpur4,
Ahmedabad Railway Division, Western Railway
Post: Palanpur, Dist: Banaskanta, : 385 001.
40. Shri Anil Kumar Sarkar,
Presently Serving as J.E. (P. Way), Lakadia
Under SSE (P.Way), Kriyanagar,
Ahmedabad Railway Division, Western Railway
Post: Lakadia, Dist: Kutch, : 370 145.
41. Shri Chandra Bhushan Kumar,
Presently Serving as J.E. (P. Way), M.G., Gandhidham,
Under SSE (P.Way), Kalol,
Ahmedabad Railway Division, Western Railway
Post: Gandhidham, Dist: Kutch : 370 201.
42. Shri Ram Surendra,
Presently Serving as J.E. (P. Way), Langhnaj,
Under SSE (P.Way), Kalol,
Ahmedabad Railway Division, Western Railway
Post: Langhnaj, Dist: Mehsaana: 382 730.
43. Shri Babu Nand Kumar,
Presently Serving as J.E. (P. Way), 1..R. Kalol,
Under SSE (P.Way), M. G. Sabarmati,
Ahmedabad Railway Division, Western Railway
Post: Kalol, Dist: Gandhinagar: 382 721.
44. Shri Shashikant Ranjan S.,
Presently Serving as J.E. (P. Way), L. R. Dhrangadhara-II
Under SSE (P.Way), Dhrangadhara-II,
Ahmedabad Railway Division, Western Railway
Post: Dhrangadharea, Dist: Surendranagar, : 363 320.
...Respondents
(By Advocate Mr. M. J. Patel for official Respondent No. 1 to 3
& None for the private respondents)
(CAT/AHMEDABAD BENCH OA NO.123/2020) 8
ORDER
PER: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. Aggrieved by the decision of the official respondents to lower down the settled seniority position of the applicants herein in the cadre of Sr. PWS (now JE), vide impugned revised seniority list dated 28.11.2019 (Annexure A/1) and the order dated 04.03.2020 (Annexure A/2 to A/4 colly.) whereby, the representations filed by the applicants against the show cause notice for withdrawal of their promotion from the post of SSE (PW) has been rejected by the official respondents, hence, the three applicants had jointly filed the instant OA u/s 19 of AT Act, seeking following reliefs:-
―8 (A) Call upon the respondents herein to place before this Hon'ble Tribunal for its perusal the entire original file/noting file/documents ranging giving rise to the passing of the impugned Seniority Lit at Annexure -A/1 hereto and also the aforesaid 3 Communication all bearing No.EE/1030/2019/JE-
P.WAY, dated 04.03.2020 at Annexure-A/2 to Annexure-A/4 hereto by the Office of the respondent 3 herein;
(B) Upon the close scrutiny and perusal of the aforesaid original file/ noting file / documents, your Lordships may be graciously further pleased to quash and set aside (i) the Seniority List for the cadre of Junior Engineer (Permanent Way) in Civil Engineering Department of Ahmedabad Railway Division as circulated by the respondent no.2 herein alongwith its impugned Notification bearing No.EE/1030/1/Vol.III, dated 28.11.2019 at Annexure-A/1 hereto in so far as it seeks to revise downward the settled seniority position of the applicants herein and also (ii) all the impugned 3 Communication all bearing No.EE/1030/1/2019/JE-P.WAY, dated 04.03.2020 at Annexure - A/2 to Annexure-A/4 hereto, holding and declaring that the decision of the competent authority in Ahmedabad Railway Division, as conveyed by it in the aforesaid 3 impugned communications is ex facie arbitrary, unreasonable, unfair, discriminatory, actuated by extraneous considerations and contrary to the settled position of law on the subject as laid down by the Hon'ble Supreme Court of India, various Hon'ble High Courts and also by this Hon'ble Tribunal in a catena of decisions;
(C) hold and declare that (i) the seniority assigned to the applicants herein in the feeder cadre of JE (P.Way) right from 2012 and the consequent promotion granted to the applicants herein to (CAT/AHMEDABAD BENCH OA NO.123/2020) 9 the post of SSE (P.Way) in Ahmedabad Railway Division on 19.06.2015 based on the aforesaid settled seniority, are perfectly legal, valid, proper and in accordance with the Railway Board's instructions / guidelines on the subject and that all the applicants herein are entitled as of right to be continued to serve as SSE (P.Way) in Ahmedabad Railway Division without any interruption whatsoever in their promotion post being held by them as of now.
(D) issue appropriate directions to the respondents herein to permanently restrain themselves, their agents, officers, representatives, etc., from interfering with the service of the applicants herein as SSE (P.Way) in pursuance of the aforesaid impugned Seniority List circulated alongwith the impugned Notification dated 28.11.2019 at Annexure- A/1 hereto and also the aforesaid 3 communications all bearing No. No.EE/1030/1/2019/JE-P.WAY, dated 04.03.2020 at Annexure- A/2 to Annexure-A/4 hereto by the office of the respondent 3 herein;
(E) Grant such other and further relief/s as may be deemed fit and proper in the peculiar facts and circumstances of the present case.‖
2. The brief facts of the case as stated by the applicants are as under: -
2.1 The applicants had joined as Gangmen in Ahmedabad Railway of the Western Railway Zone on 27.04.2005, 15.04.2005 & 09.04.2005 respectively through Recruitment and selection process conducted in the year 2003.
2.2 In the year 2008, in response to a notification bearing no.EE/839/1(PW Mistry) dated 09.09.2008 (Annexure A/5), issued by Ahmedabad Railway Divisional Officer (herein after referred to as ADI), the Applicants had offered their candidature for grant of promotion to the vacant posts of Senior Permanent Way Mistry (Sr. PWS) falling under 25% LDCE quota.
2.3 Thereafter, the Divisional Office ADI vide its notification dated 29.04.2009 (Annexure A/6) notified total 58 vacancies comprising of 43 for General Category, 10 for SC & 05 vacancies for ST Category along with a list of eligible candidates for written suitability test (LDCE) for the post of Sr. PWS against LDCE quota. In the said list the names of applicants herein were also included. Thereafter, LDCE was held on 27.06.2009 and the applicants had participated in the (CAT/AHMEDABAD BENCH OA NO.123/2020) 10 said LDCE. No concession or relaxation was granted to any candidate including the SC/ST with respect to met with the requirement of minimum passing marks in the said LDCE.
2.4 The O/o DRM, ADI, vide its Communication bearing No. EE/839/1/(PWS), dated 14.07.2009 (Annexure A/7), published the list of employees who qualified the Written Test wherein the names of applicants were notified/placed in and the selection committee had called for their service sheet along with DAR/B&C from all ADEN of all concerned units. Thereafter, the O/o DRM, had issued a provisional panel dated 28.08.2009 for the post of Sr. PWS wherein the names of applicants were included as suitable candidate. 2.5 Based on the said panel list, the O/o ADI had also issued a provisional panel dated 30.09.2009 for the training at Zonal Railway Training Institute, Udaipur (herein after referred as ZRTI-UDZ), commencing from 05.10.2009. The names of all the applicants herein were included in the said panel for the scheduled training. 2.6 Thereafter, on completion of first session of the training at ZRTI, Udaipur on 04.12.2009, the ZRTI declared the result of the said phase-I training, wherein the applicants have been declared passed. Subsequently, all the successful candidates including the applicants were sent for "field training" vide order dated 08.12.2009 and on completion of the said field training; all the empanelled candidates including the applicants herein were once again sent to ZRTI, Udaipur vide order dated 03.02.2010 (Annexure A/11), for the "second session" (Second Phase) of the training commencing from 04.02.2010 at ZRTI, Udaipur. On completion of the said second session of training, the principal of ZRTI/UDZ declared the result on 03.04.2010 by mentioning the merit order of the candidates including the applicants and private respondents herein (Annexure A/12 refer). Thereafter, the empanelled candidates including the applicants herein once again sent for field training under the units as mentioned against the name of each of the said candidates.
2.7 After completion of entire training successfully, the respondent no.2 vide its order dated 19.07.2010 (Annexure A/13) appointed and (CAT/AHMEDABAD BENCH OA NO.123/2020) 11 posted the applicants including the private respondents as Senior PWS carrying the erstwhile 6th CPC Pay Scale of Rs. 9300-34800/- with Grade Pay of Rs. 4200/-. In the said appointment order 19.07.2010, the names of applicants were placed at Sr. No. 24, 25 & 26 respectively. Further, in column no.4 the merit number (on passing the induction training successfully) of the applicants were mentioned as 22, 23 & 25 respectively. The name of the private respondents along with their merit was also mention in the said appointment order dated 19.07.2010. Accordingly, the applicants had joined the promotional post in the cadre of Sr. PWS in the year 2010.
2.8 It is submitted that while applicants were serving as Sr. PWS, the O/o DRM, ADI vide order dated 16.05.2012 published their first Seniority List for the cadre of Sr. PWS. In the said seniority list, the applicants were assigned the seniority at serial no. 58, 59 & 61 respectively (Annexure A/14). It is stated that the said seniority list was assigned to the applicants by the official respondent based on the instructions issued by the Ministry of Railways through Railway Board in its circular being RBE No.107/1994 dated 24.11.1994 (Annexure A/15). In the said RBE, it is stipulated that "candidates who are sent for initial training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working post." Further, it is contended that said seniority list dated 16.05.2012 remained unchallenged by any of the candidates who remained successful in the training and appointed along with the applicants as Sr. PWS.
2.9 In the year 2013, based on the seniority list dated 16.05.2012, the O/o DRM(E), ADI had published another seniority list on 11.11.2013 (Annexure A/16), wherein the seniority position of the applicants was placed at serial no 56, 57 & 59 respectively. The said seniority of the applicants was higher in rank to the seniority position of private respondents herein.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 122.10 It is also contended that in pursuance of the Railway Board's Circular dated 03.07/09.2013, the cadre of senior PWS came to be merged with the cadre of Junior Engineer (JE), w.e.f 03.07/09.2013. Consequently, Ahmedabad Railway Division posted the applicants as Junior Engineer (Permanent Way) in ADI Division.
2.11 The respondent no.2, thereafter, issued seniority list of all JE on 01.04.2014, wherein also the seniority position of the applicants herein had ranked higher than the seniority position assigned to the private respondents.
The applicants have also contended that neither the official respondents nor any junior to the applicants had raised any dispute or objection against the said seniority list dated 01.04.2014. 2.12 It is contended that in the wake of the cadre restructuring, the Railway Board vide circular i.e. RBE No. 102/2013 dated 08.10.2013 and the consequent revision of the cadre strength for the cadre of Senior Section Engineer (herein after referred as SSE), the O/o DRM (E), ADI had undertaken the exercise of filling up the consequent vacant promotional post of SSE arising out of the cadre restructuring.
Accordingly, vide order dated 15.05.2015 (Annexure A/17), the official respondent no.2 had published provisional select list of total 89 (67-General, 15-SC & 07-ST) employees in order of their seniority (in the feeder cadre i.e., JEs) for the promotional post of SSE (PW) scale Rs. 9300-34800 with GP- 4600/-.
2.13 The applicants herein (in total 3 applicants) who belong to SC Category were promoted to the post of SSE (PW) w.e.f. 15.05.2015 in SC Category. The applicants had resumed their charge as SSE and till date working as SSE. The said promotion order dated 15.05.2015, neither disputed by the official respondent nor objected by any of the private respondents. Even, no other SC Category officer in the cadre had raised any objection.
2.14 In the year 2016, the O/o. DRM, ADI vide its notification dated 17.05.2016 (Annexure A/18) published the seniority list for the cadre (CAT/AHMEDABAD BENCH OA NO.123/2020) 13 of SSE (PW) wherein seniority position of the applicants was assigned at Sr. No. 123, 124 & 125 respectively.
2.15 Thereafter, on 13.05.2019, updated seniority list of SSE (PW) has been published and therein the applicants came to be assigned the seniority position at Sr. No. 115, 116 & 117 respectively (Annexure A/19 referred).
2.16 It is contended that on 13.05.2019 the office of respondent no.2 had also published provisional seniority list for the cadre of JE (PW). Since, the applicants herein were granted promotion in the higher post of SSE they ceased to be in the said cadre of JE. The competent authority rightly not included the names of applicants in the said seniority list dated 13.05.2009 of Junior Engineers (JEs) (Annexure A/20 referred).
2.17 It is contended that one Shri Nirbhay Kant Jha, presently working as JE (PW) had submitted representation dated 07.06.2019 (Annexure A/21) to the office of ADI and raised the objection for the first time against the seniority position assigned to the applicants while they were working in the cadre of JE and had also objected promotion of the applicants to the post of SSE.
The said belated objection dated 07.06.2019 filed by Mr. Nirbhay K. Jha, was considered and rejected by the office of respondent no.2, vide its letter bearing no. EE/1030/1-VOL-III dated 05.09.2019 (Annexure A/22) whereby, it was conveyed to said Mr. Nirbhay Kant Jha that now the seniority position notified in the year 2014 and 2017 of JEs cannot be unsettled as he (i.e., Shri Nirbhay Kant Jha) had not raised any grievance/objection within time limit as prescribed under the provision of Para 321 of IREM Vol-1. Therefore, the said representation cannot be entertained beyond one year of publication of the seniority list. He was further informed vide said letter that the seniority assigned to him in the seniority list of JE (PW) dated 13.05.2019 is in order.
2.18 Thereafter, vide notification dated 28.11.2009, the O/o. respondent no.2 circulated the revised seniority list for the cadre of Junior Engineer JE (PW) serving in the engineering department of ADI and (CAT/AHMEDABAD BENCH OA NO.123/2020) 14 invited the objection if any through proper channel within one month from the date of receipt of the said revised seniority list. The applicants herein came to know that in the said revised seniority list dated 28.11.2019 their name have been included and drastically brought down the seniority position of the applicants and the private respondent herein has been assigned higher position above the applicants herein. In-spite of the fact that the applicants herein were ceased to be in the cadre of JEs long back their names included in the said revised seniority list of JEs.
2.19 It is contended that before the applicants could submit their representation against the said impugned seniority list dated 28.11.2019, the applicants herein came to be served with show cause notice dated 29.11.2019 (Annexure A/23 to A/25) by the respondent no.2, wherein it was stated that though the applicants were not eligible for the promotion to the post of SSE(PW) they were wrongly included in the select list notified on 15.05.2015 and were wrongly granted promotion vide order dtd.19.06.2015. It was conveyed that the intention of the official respondents to delete the name of applicants from the said panel and to withdraw their promotion form the post of SSE. Further, it was directed to the applicants to submit their representation, if any, against the said decision within 15 days (Annexure A/23 to A/25 referred).
2.20 Being aggrieved by the said show cause notice dated 29.11.2019, the applicants herein along with 3 others SSEs had approached this Tribunal by way of filing OA No. 450/2019 with MA No. 464/2019. The said OA came to be dispose of by this Tribunal vide order dated 10.12.2019 (Annexure A/26), the operative part of said direction contained in Para 10 of the said order, reads as under: -
Para 10: "Taking note of entirety respondents are directed that if representation is submitted by applicants, in given time frame, the representation be decided first by passing a speaking order and the order so taken be communicated to the applicants. Needless to say that the decision to delete or not to delete the name of applicants from panel of promotion would be according to outcome of the decision on (CAT/AHMEDABAD BENCH OA NO.123/2020) 15 representation/representations. Respondents are directed further if according to outcome of the decision on representation/representations they took decision to delete the name of applicants from panel of promotion then the execution of the decision, to enable the applicants to agitate the same before appropriate authority/forum be kept in abeyance for 10 days, after communication of order passed on representation to the applicants" (Annexure A/26 referred).
2.21 In pursuance to aforesaid direction, the applicants have submitted their respective representations before the competent authority (Annexure A/27 to A/29) and explained therein that:-
(A) All the applicants had long back completed the minimum qualifying service as JE to be eligible for promotion to the post of SSE (PW). Their seniority in the feeder cadre of JE (PW) was settled long back, i.e., in the year 2012-13 which is much prior to inclusion of their name in the select panel list for promotion to the post of SSE in the year 2015. As such, their seniority as assigned to them vide seniority list dated 16.05.2012 and
11.11.2013 were never objected/disputed neither by the Railway Department or any employees.
(B) The selection committee after considering the eligibility and service record of the applicants while working in a feeder cadre, i.e., JE (PW) recommended for their promotion and accordingly the competent authority granted promotion in the cadre of SSE to the applicants. Further, the respondent no.2, failed to take into consideration the fact that the applicants herein were ceased to be JEs since long and their appointment/promotion in the cadre of SSE.
(C) Once the seniority assigned to the applicants in the year 2012- 13, 2013-14 and same has been operated by the competent authority, the said settled seniority cannot be unsettled. (D) The respondent department had already rejected the belated objections filed on 13.05.2019 by one Shri Nirbhay Kant Jha (CAT/AHMEDABAD BENCH OA NO.123/2020) 16 against the seniority list of JEs in terms of Para 321 of IREM Vol-1.
(E) It was also brought to the notice of respondent no.2 that once such belated objections were rejected by the very same office and also held that the seniority list dated 13.05.2019 of JEs is in order, it was not open to consider and entertain the said objections again and circulate the revised impugned seniority list dated 28.11.2019. The show cause notice dated 29.11.2019 issued by the respondent no.2 based on the said erroneous revised seniority list dated 28.11.2019 is as such an action of malicious motive in order to oblige some chosen one and same is arbitrary.
(F) Further, it was also stated in the said representation that unless and until the said erroneous draft seniority list dated 28.11.2019 is finalized and a final seniority list is issued in this behalf, it is not open to the railway administration to place reliance on the said seniority list and seek to revert the applicants from the cadre of SSE.
(G) The applicants also stated that the show cause notice suffer from the vice of lack of competency on the part of the author since the applicants were promoted to the post of SSE on 19.06.2015 with due approval of the DRM.
On the above grounds as also other grounds stated in the representation, the applicants requested the respondent no.2 to withdraw the show cause notice dated 29.11.2019.
2.22 The applicants have also submitted separate representation dated 23.12.2019 (Annexure A/30 to A/32) against the provisional seniority list of JEs (PW) ADI published on 28.11.2019 and requested the competent authority to re-examine the said list by considering the grounds as referred in the representation including the ground stated hereinabove (in Para 2.21). Further, it was requested to delete their names from the seniority list dated 28.11.2019. However, the official respondents till date have not (CAT/AHMEDABAD BENCH OA NO.123/2020) 17 decided the said representations dated 23.12.2019 filed against the impugned revised seniority list dated 28.11.2019. 2.23 It is contended that vide impugned order dated 04.03.2020 the respondent no.2 rejected the representation dated 16.12.2019 filed by the applicants against the show cause notice dated 29.11.2019. The respondent reiterate their stand in the impugned decision that the applicants herein were assigned wrong seniority in the cadre of JEs and based on it promoted to the post of SSE, therefore, intended to withdraw the said promotion. Hence, this OA.
3. It is submitted that identically placed other Railway Servants working as SSE (PW) aggrieved by revised seniority list dated 28.11.2019 and the show cause notice dated 29.11.2019 has filed separate OA i.e., OA No. 124/2020 before this Tribunal and sought identical prayer as prayed in this OA. This Tribunal had also issued notice on 19.03.2020 in both the identical OAs. It is contended that during the pendency of these OAs, the respondent had issued the reversion order dated 13.05.2020 whereby the applicants of OA No.124/2020 were ordered to be reverted from the post of SSE to JE. Aggrieved by it the applicants of OA No. 124/2020 had approached this Tribunal by way of filing MA No.142/2020, wherein after considering the material on record and the submission of counsel for the parties, vide order dated 21.05.2020 this Tribunal disposed of the said MA with a direction to "roll back" the order of reversion and allow the applicants to man & hold the post of SSE till further order. Pursuance to said direction the respondents vide its order/memorandum dated 08.06.2020 rolled back its order dated 13.05.2020 of reversion and allow the employees to hold the post of SSE (PW) including the applicants herein. Accordingly, the applicants are presently working as SSE (PW).
4. In back drop of the aforesaid pleading, learned counsel Mr. M. S. Rao for the applicants mainly submitted as under:-
4.1 The impugned revised seniority list dated 28.11.2019 is ex-facie, arbitrary, unreasonable, unfair and is actuated by malicious motive on the part of official respondents to oblige the private respondent herein. As such the impugned decision is contrary to the extant rules and settled principle of law.(CAT/AHMEDABAD BENCH OA NO.123/2020) 18
4.2 It is submitted that even though the applicants had pointed out in their individual representation dated 16.12.2019 and 23.12.2019 that their seniority position was settled way back in the year 2012 cannot be altered to their disadvantage, in view of law laid down by Hon'ble Apex Court in the case of Malcom Lawrence Cecil D'souza Vs Union of India reported in (1976) 1 SCC 599 (Annexure A/33 referred), the official respondents totally failed to consider the same and passed the impugned orders in violation of the law laid by apex court.
4.3 Learned counsel submits that in the present case, undisputedly, only after successful completion of the initial training which was linked to the selection for the post of Sr. PWS, the applicants along with others candidates were came to be appointed as Sr.PWS by the competent authority that too by allotting respective merit order to each candidates including the LDCE candidates as well as the Direct Recruits vide order dated 19.07.2010.
4.4 Thereafter, pursuance of the rank/merit position as mentioned in the appointment order, the official respondents had prepared and circulated the first seniority list dated 16.05.2012 of the employees working as Sr. PWS under O/o. respondent no.2. The applicants were assigned their seniority at Sr. no. 58, 59 & 61 respectively. The private respondents herein were also assigned their respective seniority.
4.5 It is submitted that the correct seniority was assigned vide seniority list dated 16.05.2012 to the Sr. PWS including the applicants as well the private respondents. The said seniority was consistently maintained till November 2019 by the office of railway department based on the Railway Board's instructions contained in Circular being RBE No. 107/1994 dated 24.11.1994.
4.6 Learned counsel Mr. Rao submits that the said RBE is related to regulating seniority of Non-Gazetted Railway Servants and it is Supplementary Circular No.1 to Master Circular No.34 which stipulates that ―candidates who are sent for initial training schools will rank in seniority in the relevant grade in the order of merit (CAT/AHMEDABAD BENCH OA NO.123/2020) 19 obtained at the examination held at the end of the training period before being posted against working post". Learned counsel vehemently submits that instructions contained in the said RBE is still in force and yet has not superseded. Therefore, the seniority assigned to the Sr. PWS vide seniority list dated 16.05.2012 and same was continuously maintained by the official respondents. 4.7 It is submitted that all the applicants were senior to the private respondents herein as per the seniority list dated 16.05.2012, 11.11.2013, as also in seniority list circulated on 01.04 2014. As such against the said seniority lists, neither the private respondents nor any representative of the Recognized Railway employees Union had raised any objection within stipulated time limit in terms of the Para 321 of IREM Vol-1. Therefore, the reason assigned by the official respondents in the impugned order dated 04.03.2020 for revision of the settled seniority lists and rejection of the representation of the applicants against the show cause notice with respect to propose reversion from the post of SSE are against the extant Rules as also the settled principle of law with regard to settled seniority. 4.8 It is submitted that the respondent erroneously referred RBE No. 113/2009 dated 19.06.2009 to justify their erroneous decision, in fact, the said RBE has nothing to do to determine the seniority in the present case. The instructions contained in the said RBE related only for formation of panel in the cases of promotion to General Post based on merit, with reference to marks obtained in the professional ability and record of service. It is evident that post of Sr. PWS was linked with institutional training. The candidates who were qualified as per professional ability and record of service they were further declared eligible for requisite training and passing the said institutional training successfully, the rank has been awarded by the concerned training school to each candidate and based on the merit/rank of each candidate the appointment has been made and same has been considered for preparation of seniority list in terms of RBE No. 107/1994, therefore, the reason assigned by the official respondents in the impugned order dated 04.03.2020 are not in (CAT/AHMEDABAD BENCH OA NO.123/2020) 20 consonance with the provision of extant Rules as applicable in the present case.
4.9 It is submitted that the official respondents erroneously relied on Para 19 of the Master Circular No.34, as also on the RBE No.113/2009 and advance correction slip No. 209 dated 19.06.2009 with regard to Para 219 (J) of IREM Vol-1. As a matter of fact, both the Circulars have nothing to do with the present case. The seniority of the applicant not only requires to determine on the basis of RBE No.107/1994 but also on the strength of RBE No.261/1988 dated 25.11.1988, wherein the Railway board in continuation of instructions contained in RBE No. 171/1987, further, decided that in no case should the initial period be curtained and the said advice equally applied to in the case of departmentally selected candidates i.e., LDCE quota.
4.10 Learned Counsel further submits that the respondents had erroneously placed reliance on Para 302 of IREM Vol-1 and committed serious error in passing the impugned order. The instructions contained in the said Para for the purpose of determination of inter-se-seniority amongst the promotees and direct recruitees, the said Para 302 is applicable only to those cases where no "training" is mandatory before the issuance of the appointment/promotion order, such as Junior Clerk, Senior Clerk, Peon etc. In the present case, the applicants were sent for initial training to the training school and as per the instructions stipulated in RBE No. 107/1994 dated 24.11.1994 (Supplementary Circular No.1 to Master Circular No.34) their seniority was determined based on the rank in the order of merit obtained in the examination held at the end of training period before they were posted against working post. Therefore, the reason assigned in the impugned order dated 04.03.2020 is against the mandate of said RBE No.107/1994 and Para 303 of IREM.
4.11 It is submitted that the respondents have taken contradictory stand in respect to entertain the belated representation/objection against the settled seniority list of Sr. PWS. In this regard, it is submitted that in (CAT/AHMEDABAD BENCH OA NO.123/2020) 21 terms of Para 321 of IREM Vol-1 the respondent no.2 vide order/communication dated 05.09.2019 had already rejected such belated representation of one Shri Nirbhay Kant Jha. However, without any cogent reason or explanation for entertaining belated representation of some of the employees as also the representation of the Railway Employees Union, the official respondents has entertained the belated representation against the settled seniority of Sr. PWS and just with a view to favour the other employees, the respondent had issued the impugned order. Therefore, the impugned decision is required to be quashed and set aside on the said sole ground.
5. Per Contra, the respondents have filed their reply and denied the contentions of the applicants.
5.1 It is submitted that DRM (E) ADI had issued notification No. EEE/839/1 (P.Way) dated 09.09.2008 for filling up of vacancies of Sr. PWS against the LDCE quota. The written test for it was held on 27.06.2009 and the result was notified on 14.07.2009, in which 59 employees were declared as qualified and after scrutiny of confidential Report and Service Record, the panel (Provisional) was issued vide memo No.E/CONF/1025/03/25/03/ENG/09 on 28.08.2009 (Annexure R/1) for 49 employees, and all the 49 employees were sent for promotional course on 05.10.2009 at ZRTI- UDZ.
5.2 It is submitted that one panel of Sr. PWS received from RRB (against DR quota) for 12 candidates were also sent for initial recruitment training at ZRTI-UDZ on 05.10.2009 and on the same day, the LDCE selected employees (Departmental) were also sent for the promotional course at ZRTI-UDZ. The field training and 2nd session of training at ZRTI-UDZ were completed successfully by the LDCE selected employees and the Direct Recruited RRB candidates. The combined final result issued by ZRTI-UDZ was received vide letter dated 03.04.2010 from the principal ZRTI-UDZ. Thereafter, combined order for initial appointment and posting of LDCE selected employees along with posting of RRB candidates were issued for the (CAT/AHMEDABAD BENCH OA NO.123/2020) 22 post of JE (PW) in Scale Rs. 9300-34800 + GP Rs. 4200 as 6th CPC vide memo dated 19.07.2010 (Annexure R/2).
5.3 The seniority was assigned to the applicants as per the merit order/result of the training school i.e., ZRTI-UDZ instead of their panel position as stipulated in Para 19 of Master Circular No.34. The said Para 19 stipulates that "in the case of selection post employees selected for empanelment should be arranged in the order of their seniority. Further, as per instruction contained in RBE No. 113/2009 and Para 219 of IREM Vol-1, the final panel should be drawn up in the order of merit based on aggregate marks of "Professional Ability" and Record of Service. Therefore, the applicants were assigned incorrect seniority at the relevant time." 5.4 It is submitted that the seniority list notified vide notification dated 16.05.2012, 11.11.2013, 01.04.2014, 24.01.2017 & 13.05.2019 were found contrary to the terms of Para 302 of IREM. Therefore, on receipt of the various representations including from the Railway employees union the competent authority deem it fit to re-examine the issue/grievance and as stated herein above to revise the seniority of Sr. PWS who were appointed under LDCE quota and re-fixed the seniority vide revised seniority list dated 28.11.2019. Accordingly, the seniority of applicants was also re-fixed in the cadre of Sr. PWS. Consequently, their further promotion to the post of SSE was also recalled in terms of Para 228 of IREM Vol-1. Therefore, the impugned decision dated 28.11.2019 as well as the order dated 04.03.2020 are just and proper and applicants not entitled for any relief as sought for in this OA.
5.5 It is submitted that as the seniority list dated 16.05.2012, 11.11.2013 and 01.04.2014 was prepared and circulated in contravention of provision of Para 302 of IREM Vol-1, therefore, the said wrong seniority requires to be corrected. Accordingly, vide order dated 28.11.2019, the revise seniority list was issued wherein other employees belonging to SC Category gained better seniority against the applicants herein.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 235.6 It is submitted that in compliance with the order passed by this Tribunal in OA No.450/2019, the respondents has considered the representation of the applicants and by speaking order dated 04.03.2020 rejected the same.
5.7 It is submitted that the respondent has issued memo dated 13.05.2020 whereby 12 employees were reverted from the post of SSE to JE.
5.8 It is submitted that the instruction contained in RBE No. 107/1994 is applicable for the newly recruited RBE candidates but not for the Railway employees who are regularly working in the Railway and selected through departmental promotional examination i.e., LDCE. Therefore, it is not correct to say that said RBE is applicable in the case of applicants herein.
5.9 Further, it is submitted that Railway employees who were selected through LDCE were sent for promotional course as per RBE No. 25/2002 (Annexure R/8) whereas the candidates selected through RRB were given initial training as per RBE No. 107/1994. The Railway employees selected through departmental selection procedure (LDCE) the seniority of such employee will be decided as per their own seniority in the panel position as per Para 19 of the Master Circular No.34 (Annexure R/9 referred).
5.10 It is submitted that after giving due opportunity to the applicants for their explanation and considering their representation the speaking order dated 04.03.2020 was passed. The seniority list of JEs (Sr. (PW) has been corrected in terms of Para 302 of IREM vide memorandum/ notification dated 13.05.2019. In view of this, also the impugned orders are just and proper and the applicants are not entitled for any relief as prayed for in this OA.
6. The applicants have filed their rejoinder and denied the averments of the respondents. Additionally, it has been contended by the applicants as under:-
6.1 According to the Applicants it is not correct on the part of official respondent to contend that the course to which they were sent for training to ZRTI, Udaipur from 05.10.2009 was a promotional (CAT/AHMEDABAD BENCH OA NO.123/2020) 24 course. In this regard, it is submitted that the 25% selection under LDCE quota was not by way of promotion in term of the Railway Board's Circular dated 01.01.2003 i.e., RBE No. 2/2003 (Annexure RJ/1).
6.2 It is stated that the Railway Board in the wake of introduction of category of Sr. P.Way Supervisor in the pay scale of Rs. 5000-8000/-
, issued subsequent RBE No. 94/2007 dated 03.07.2007 (Annexure RJ/2), wherein also there was no element of promotion in the case of selection under 25% LDCE quota.
6.3 It is submitted that applicants were placed on the provisional panel dated 28.08.2009, thereafter, all the applicants herein had sent to ZRTI, Udaipur for induction training as envisages in Railway Board's Circular RBE No. 34/2010 dated 23.02.2010 (Annexure RJ /3). The applicants herein had undergone total 8 months induction course /induction training as per instructions contained in notification dated 07.04.2010 (Annexure RJ/4). Further, it is submitted that if the selection has to be construed as an exercise for promotion of the applicants herein to the post of Sr. PWS, then the applicants would have been sent to ZRTI, Udaipur to undergo promotional training only for a period of one and half months followed by a Refresher Training for 12 days. Whereas, it is indisputable position that applicants herein had undergone longer period of training, i.e., 8 months "Induction Course and the Field Training" than the period stipulates for the Professional Course. In this regard, it is further submitted that as per memo dated 07.04.2010 issued by O/o. respondent no.2 the applicants herein along with other candidates were sent for field training after completion of their second session training at ZRTI/UDZ (Annexure RJ/4 referred). Learned counsel vehemently submits that the field training has been prescribed only under induction training and not for promotional and refresher training. Therefore, it is not correct on the part of respondents to contain that the applicants were sent for professional course/refresher training.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 25Learned counsel further submits that all the applicants prior to their appointment as Sr. PWS were serving as erstwhile Group D cadres like Gangman and trollyman. The Induction Training was necessary and as such the applicants had undergone said induction training and on completion of it, the competent authority sanctioned their appointment (in this regard he referred appointment order dated 19.07.2010).
It is submitted that in spite of this factual matrix about their appointments, the local administration sought to mis-interpret the expression "appointment" contained in the memorandum dated 19.07.2010 to mean that that the said expression had to be used in the said documents since the list of 51 selectees comprises of the 12 direct recruits as well. In other words, it is the quintessence of the applicant's case that they cannot be treated as promotees for the purpose of determining their seniority from the date of their empanelment from 28.08.2009. As such their seniority requires to be determined on the basis of their rank which was assigned by ZRTI, Udaipur, after their attending the first and second sessions of the induction training. The applicants were treated as Apprentices Sr. PWS, as per the letter dated 30.09.2009 (Annexure A/8), 04.12.2009 (Annexure A/9), 08.12.2009 (Annexure A/10), 03.02.2012 (Annexure A/11) and letter dated 03.04.2010 (Annexure A/12) as also appointment order dated 19.07.2010 (Annexure A/13). Therefore, the applicants were sent for induction training and as per their rank/merit the first seniority list dated 16.05.2012 was in fact the correct seniority assigned to the Sr. PWS in terms of RBE No.107/1994.
6.4 Further, it has been stated that official respondents have not denied or disputed the contentions of the applicants that the Seniority on 16.05.2012 was determined based on the instructions issued by the Railway Board in RBE No.107/1994 dated 24.11.1994. As such the said RBE No.107/1994, still holds the field and is applicable to the cases of applicants herein.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 266.5 Additionally, it is submitted that the said RBE No.113/2009 is applicable to only those cases where there is no element of induction training. Whereas in the case of applicants they have under gone induction training as stipulated in RBE No. 34 /2010 dated 23.02.2010 Part A. Further it is stated that the said Circular pertains to General Selection, in such cases applications are invited from all eligible employees as a whole to participate in the selection process whereas in the case of Selection Post, the scope is narrowed down to only those eligible employees serving in the immediate lower grade irrespective of any categories. In the case of non selection post the posts are filled by promotion of the senior most suitable servant on 1:1 basis.
6.6 Learned counsel Mr. M S Rao for the applicants reiterated his submission that Para 302 of IREM Vol-I is not applicable to the present case, as there is no whisper therein about the element of training in the said Para 302. It will apply to only those selections where there is no element of training whether it be Induction or Promotion training. He further submits that without admitting that aforesaid Para 302 is applicable to the present case, and then also it is not open to the Railway Administration to approbate and reprobate in this behalf. In this regard it is further submitted that the said Para 302 is in relation to the determination of seniority in initial recruitment cadre. In other words, the official respondents admit that post of Sr. PWS is a post falling under the initial recruitment cadre; as such the selection in the case of applicants cannot be said a case of promotion since it is in appointment to the initial recruitment cadre. 6.7 Lastly, it is submitted that the official respondents have not placed on record any material to explain 7 years (from the publication of first seniority list i.e., 16.05.2012) long delay to rectify the settled seniority position. It is well settled principle of law that department cannot sit idle for a long period of time to rectify so called wrong assignment of the seniority position. The settled seniority ought not to be unsettled. In this regard, Ld. Counsel for the applicant also placed reliance on K. Meghachandra Singh & Ors. Vs Nigam Siro & (CAT/AHMEDABAD BENCH OA NO.123/2020) 27 Ors. (2020) 5 SCC 689. He also placed reliance on the common judgment dated 30.09.2015 passed by Hon'ble High Court of Gujarat in the case of UOI Vs Pratapsingh Chagansingh Rajput & Ors. SCA 1921 /2003 & other connected SCAs and submitted that appointment based on the completion of induction training, the said appointees cannot be considered as promotees and their seniority requires to be determined as per their merit order in the said training. The settled seniority cannot be allowed to unsettle at belated stage that too once it was operated and attained finality. It is submitted that impugned orders are contrary to the dictum laid down by the Hon'ble Apex Court as well the Hon'ble High Court.
7. Heard the parties and perused the material on record. This Tribunal vide order dated 10.09.2020 passed in MA No.287/2020 allowed the deletion of name of Special Secretary to Government of India and Ex Officio Chairman, Railway Board, Ministry of Railway, New Delhi from the array of respondents in the present OA.
8. In the present case, the crux of the grievance of the applicants is that their settled seniority in the cadre of Sr. PWS (JE) has been sought to be unsettled after more than 7 years vide impugned revised seniority list dated 28.11.2019 that too in violation of provision of Para 321 of IREM Vol-1. Further, based on the said provisional revised seniority list dated 28.11.2019, the official respondents sought to revert the applicants herein from their promotional post SSE which was granted to them in the year 2015. It is also the grievance of the applicants that though the official respondents have already rejected the belated representation/objections filed by the private respondent no.6 & 10 against the settled seniority list of Sr. PWS (now JE) in terms of Para 321 of IREM, but now, has changed their stand and unsettled the settled seniority position vide impugned decision dated 28.11.2019 and vide impugned order dated 04.03.2020 rejected the representation of the applicants filed against show cause notice for reversion from the post of SSE.
As against it, the official respondents herein submitted that the seniority assigned to the applicants in the year 2012 vide seniority list dated 16.05.2012, the said seniority was not fixed as per the provision of Para 302 (CAT/AHMEDABAD BENCH OA NO.123/2020) 28 of IREM Volume-I and erroneously followed it in the subsequent seniority lists till 13.05.2019. Therefore, by considering the representations of the employees/ Union/association, said seniority of Sr.PWS/JE came to be rectified/ revised on 28.11.2019 and based on revised seniority also recalled the promotion granted to the applicants as SSE.
9. In the backdrop of the aforesaid core submissions of counsel for the parties, the present OA straddles on a very narrow compass of controversy about:
(i) Whether it is open for the official respondents herein to unsettle the settled seniority of the applicants' event at bleated stage by entertaining the belated objections / representations filed by some of Sr. PSW (JEs).
(ii) Whether the reasons assigned in the impugned decision dated 04.03.2020 for rejecting the representation of the applicants filed against the show cause notice of withdrawal/reversal of their promotion from the post of SSE to JE is justifiable.
10. In the present case it is noticed that undisputedly, the applicants as well the private respondents herein were together appointed as Sr. PWS vide order dated 19.07.2010. Their respective seniority in the Cadre of Sr.PWS was determined and fixed vide seniority list dated 16.05.2012. The said assigned seniority was continuously maintained in subsequent seniority list dated 11.11.2013, 01.04.2014, 14.01.2017 and 13.05.2019. It is also not in dispute that based on the said settled seniority position of JE, further promotion were granted to the eligible senior JEs to the post of SSE in the year 2015 as also in 2019 including the applicants herein.
From the above, we could gather in clear terms that undisputedly the seniority assigned to the applicants as also to the private respondents herein while working in the cadre of JEs was settled and said seniority list was evidently operated since that long and accordingly, the same attained finality.
11. At this stage, it is important to mention that the private respondent nos. 6 & 10 herein who were admittedly appointed along with the applicants herein as Sr. PWS (now JE) in the year 2010 also had their seniority fixed vide seniority list dated 16.05.2012. The said seniority position continued through the seniority lists brought out after 2012 till the till the circulation (CAT/AHMEDABAD BENCH OA NO.123/2020) 29 of the seniority list dated 13.05.2019. However after several years of assignment of seniority to them, said private respondent no.6 & 10 objected their seniority position in the cadre of erstwhile Sr. PWS/JE for the first time in the month of May/June, 2019 by filing their respective representation and claiming that their seniority position be corrected and revised as per their merit/placement position in the provisional panel dated 28.08.2009.
It is noticed that the said representations of the private respondent nos.7 & 11 herein, came to be rejected by the official respondent no.2 herein vide its letter dated 05.09.2019(Ann. A/22 refers).
At this stage, we deem it proper to reproduce the said decision dated 05.09.2019 of the official respondent no.2 addressed to the private respondent no.10 (i.e., Shri Nirbhay Kant Jha), which reads as under:-
―No.EE/1030/1 Vol.III Divisional Office, Ahmedabad Dated:-05/09/2019 To, Nirbhay Kant Jha, JE (PW)BG-SBI Track Cell, Sub:- Representation against Seniority of Shri Nirbhay Kant Jha, JE (PW), Pay Matrix level-6 under SSE (PW) SBI, notified on 13.05.2019, ADI Division.
Ref:- 1) This office notification of even No. dtd.01.4.2014 & 24.01.2017.
2) Employees application dtd.07.06.2019.
3) IREM Para 321.
**** With reference to the above, it is informed that the seniority of JE (PW) in GP Rs. 4200/- is prepared and notified on the basis of seniority of the year 2014 & 2017. No any representation regarding your seniority position was submitted by you in the year 2014 & 2017 also no any representation received by this office in this regard in the year 2014 & 2017.
Hence as per IREM Para 321 in such cases no any representation should be entertained beyond one year. In view of the above, your seniority position shown in the seniority notified vide dtd. 13.5.2019 is in order.‖ (CAT/AHMEDABAD BENCH OA NO.123/2020) 30 Further, in the case of private respondent no.6 (i.e., Avnish Kumar Sharma) also the official respondents had rejected his representation by assigning the identical reason as stated in the case of Mr. Nirbhay Kant Jha.
12. Aggrieved by the aforesaid decision dated 05.09.2019, the said Mr. Avnish Kumar Sharma private respondent no.6 herein along with other JE, namely; one Shri Kamalkant Sharma had jointly filed OA No.302/2019 before this Tribunal and sought relief for quashing and setting aside the impugned decision dated 05.09.2019 and further prayed for issuance of direction to the respondents to consider their representations afresh by considering them as promotees on the basis of LDCE and assign them their seniority as per the provision of Para 302 & 303 of IREM.
This Tribunal, after considering the submissions of the parties, dismissed the said OA No.302/2019, vide its order dated 11.03.2022 by holding that there was no legal infirmities in rejecting the belated representation against the settled seniority list as passed by the official respondents vide order dated 05.09.2019. The observations as recorded by this Tribunal in the said order dated 11.03.2022 are relevant in the present case and therefore, those observations and findings are reproduced as under:-
―12. The record reveals that after the applicants were appointed as Sr. PWS / JE (PW) in the year 2010, the seniority list of said appointees was first published in the year 2012 and thereafter on 01.04.2014 and the same was followed in the year 2013 and later, till 31.05.2019. Undisputedly, the applicants herein have not raised any grievance or submitted any representation against the seniority list dated 01.04.2014. It is noticed that in the representation, the applicants had also referred the seniority list dated 01.04.2014. Therefore, it cannot be said that the applicants were not aware about the publication of the seniority list in the year 2014. Not only that, it is evident that based on the said seniority list for subsequent years, the competent authority had published and notified the seniority list of Sr. PWS by assigning the seniority position to the applicants herein.
13. Further, the official respondents by following the provision of Para 321 of IREM rejected the belated representation/objections filed by the applicants. The Para 321 reads as under:
321. PERMISSION TO RAILWAY SERVANTS TO PERUSE SENIORITY LIST: --
(a) Railway servants may be permitted to see the seniority lists in which their names are placed, or if (CAT/AHMEDABAD BENCH OA NO.123/2020) 31 this cannot conveniently be arranged, they may be informed, on request, of their place on the seniority list.
(b) Staff concerned may be allowed to represent about the assignment of their seniority position within a period of one year after the publishing of the seniority list. No cases for revision in seniority lists should be entertained beyond this period.
14. It can be seen that the Para 321 of IREM Vol-1 provides permission to Railway Servants to see the seniority list and if it is not arranged correctly, employees can file representation to assign them correct seniority position within 1 year from the date of publication of said seniority. Further, it mandates that no cases for revision in seniority should be entertained beyond this period.
15. The submission of the applicants is that the provision contained in Para 321 of IREM is only a Railway Board's instructions and same cannot be considered as statutory Rule. Therefore, it cannot be made applicable while deciding their representation for revision of the seniority list. The said submission in our considered view is not tenable in light of law laid down by Hon'ble Apex Court in the case of Prabhat Ranjan Singh & another Vs R K Kushawa& another reported in 2019 (1) SCC (L&S) 786, wherein it has been held that the provision contained in IREM has statutory force. Therefore, we hold that the official respondents have correctly considered the representation dated 31.05.2019 by applying the provisions contained in Para 321 of IREM Vol-I.
16. The question of entertaining application/petition disputing the long standing seniority filed at a belated stage is no more res intergra. The constitution bench of Hon'ble Apex Court in the case of Ram Chandra Shankar Deodhar Vs State of Maharastra (1974) SCC (L & S) 137had occasion to consider the effect of delay in challenging the promotion and seniority list and held that ―any claim for seniority at a belated stage should be rejected in as much as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period.‖
17. The Hon'ble Apex Court in the case of Shiba Shankar Mohopatra& others Vs State of Orrisa & others reported in (2010) 12 SCC 471 after referring judgment of the Constitution Bench in R.N. Bose v. Union of India &Ors., 1970 AIR(SC) 470 as also referring other judgments passed by Hon'ble Apex court in the case of,R.S. Makashi v. I.M. Menon &Ors., (1982) 1 SCC 379, K.R. Mudgal &Ors. v. R.P. Singh & Ors., (1986) 4 SCC 531, Malcom Lawrance Cecil D Souza v. Union of India &Ors., (CAT/AHMEDABAD BENCH OA NO.123/2020) 32 1975 AIR(SC) 1269, B.S. Bajwa v. State of Punjab & Ors., 1999 AIR(SC) 1510,the Hon'ble Apex Court in Para 29 & 30 held as under: -
―29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon&Ors. vs. Lt. Governor, Delhi &Ors., 1974 AIR(SC) 2077; State of Mysore vs. V.K. Kangan&Ors., 1975 AIR(SC) 2190; Municipal Council, Ahmednagar &Anr. vs Shah HyderBeig&Ors., 2000 AIR(SC) 671; Inder Jit Gupta vs. Union of India &Ors., 2001 6 SCC 637; Shiv Dass vs. Union of India &Ors., 2007 AIR(SC) 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana &Ors., 2008 1 SCC 210; and City and Industrial Development Corporation vs. DosuAardeshirBhiwandiwala&Ors., 2009 1 SCC
168).‖
30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-
4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.‖ At this stage, it is apt to mention that the Hon'ble Apex Court in the said judgment of Shiba Shankar Mohopatra (supra) in para 33 further held that ―........At the cost of repetition, it is stated that if the seniority list is to be challenged within 3 - 4 years of its issuance, we fail to understand as to why even OA No.203/2001 could not be dismissed on the ground of delay and laches, without entering into the merits of the case.‖
18. It can be seen from the aforesaid legal dictum laid down by Hon'ble Apex Court that it is settled principle of law that the settled seniority cannot be unsettled after 3 to 4 years from its date of publication. In the present case, undisputedly, the applicants and the official respondents were well aware of the (CAT/AHMEDABAD BENCH OA NO.123/2020) 33 fact that after the LDCE, the applicants herein were found suitable by the competent authority and placed their names in provisional panel dated 28.08.2009.Since the training was linked with the promotional post of Sr. PWS, the applicants alongwith other LDCE candidates were sent for departmental/institutional training at ZRTI/UDZ. Only on successful completion of the said requisite training, they were appointed as Sr. PWS vide order dated 19.07.2010 along with other LDCE candidates. As such, the applicants herein joined their duty on their promotional post in the year 2010 itself.
19. Further, it is also not in dispute that after the applicants' appointment and posting vide order dated 19.07.2010 as Sr. PWS their seniority was determined by the Division of ADI (WR) and the first seniority list dated 06.05.2012 was notified/circulated. Followed by it, another seniority list dated 11.11.2013 was also notified and circulated. Admittedly, the names of applicants was included therein and seniority was assigned to them in the said list. Thereafter, all the regular posts of Sr. PWS were merged with the cadre of Junior Engineer (JE) w.e.f 03.09.2013.Accordingly, the official respondents vide notification dated 01.04.2014 notified and circulated the seniority list of JEs Engineering Department, ADI Division, wherein also the name of applicants along with other erstwhile Sr. PWS were included and respective seniority was assigned to them. Based on the said seniority lists, the competent authority had also issued the seniority list for subsequent years.
At this stage, it is important to mention that it also emerges from the record that undisputedly, neither the Department disputed the settled seniority of Sr. PWS/JE (PW) fixed on 01.04.2014 nor the applicants herein challenged the assignment of their seniority. Not only that, the record further reveals that on acting upon the settled seniority dated 01.04.2014 of Sr. PWS/JE (PW), the competent authority, in the year 2015 granted further promotion to some of Railway servants in the cadre of SSE (PW). This reinforces that seniority was indeed settled. Therefore, once the seniority list was settled long back and operated, it cannot be unsettled at this belated stage. Thus, the claim for revision in settled seniority list of year 2014 and claim for assignment of fresh seniority in terms of Para 302 of IREM that too after gross delay of more than 6 years, in our considered view cannot be considered at this belated stage and the official respondents have correctly rejected the said belated claim/representation of the applicants.
20. In view of aforesaid discussion and in light of judgment passed by Hon'ble Apex Court in the case of Shiba Shankar Mohopatra (supra) & Prabhat Ranjan Singh (supra), we do not find any legal infirmity in the impugned decision dated 05.09.2019 whereby the official respondents, rejected the belated representation of the applicants against the settled seniority list (CAT/AHMEDABAD BENCH OA NO.123/2020) 34 dated 01.04.2014, as also seniority list dated 13.05.2019, in terms of Para 321 of IREM Vol-I.
21. In conclusion, we are of the opinion that OA lacks merit.
Accordingly, the same is dismissed. No order as to cost."
13. It can be seen that the stand/decision of the official respondents herein rejecting the belated objection filed by the private respondent no.6 & other JE against the settled seniority of Sr.PWS/JE in terms of para-321 of IREM has been upheld by this tribunal in the order passed in OA No.302/2019.
14. In the present case, it is noticed that contrary to the categorical stand taken by the official respondents vide decision dated 05.09.2019 not to entertain any belated representation in terms of provision of para 321 of IREM, the official respondents herein by entertaining the belated representation filed by the railway employees union as also the individual representation including the representation of said Mr. Nirbhay Kant Jha and Mr. Avnish Kumar have take nu-turn in their earlier stand by unsettling the settled seniority of Sr.PWS /JE, have issued Provisional revised Seniority list dated 28.11.2019 for Sr.PWS/JE and invited the objection if any by 16.12.2019. The only ground stated by the official respondents for revising the settled seniority belatedly is that at the relevant point of time i.e., on 16.05.2012 due to administrative error/mistake, the seniority assigned to Sr. PWS/JE was not fixed as per provision of Para 302 of IREM Vol-1 and in the year 2019, on receipt of representations against the said seniority they have rectified it by way of circulating impugned seniority list dated 28.11.2019.
15. At this stage, it is appropriate to reiterate that the Para 321 of IREM Vol-1 provides permission to Railway Servants to see the seniority list and if it is not arranged correctly, employees can file representation to assign them correct seniority position within 1 year from the date of publication of said seniority. Further, it mandates that no cases for revision in seniority should be entertained beyond this period. The said Para 321 of IREM Vol-1, reads as under:-
"321. PERMISSION TO RAILWAY SERVANTS TO PERUSE SENIORITY LIST: --(CAT/AHMEDABAD BENCH OA NO.123/2020) 35
(a) Railway servants may be permitted to see the seniority lists in which their names are placed, or if this cannot conveniently be arranged, they may be informed, on request, of their place on the seniority list.
(b) Staff concerned may be allowed to represent about the assignment of their seniority position within a period of one year after the publishing of the seniority list. No cases for revision in seniority lists should be entertained beyond this period.
16. The official respondent herein evidently failed to place or assign any satisfactory explanation to entertain such belated representation for revision of settled seniority of Sr. PWS which is appears inherently against the Rule 302 quoted above. As noted herein above, evidently, in the case of Private respondent nos. 6 & 10, the official respondents have already rejected the belated representation against the settled seniority of Sr. PWS/JE in terms of Para 321 of IREM Vol-1. This Tribunal in its order dated 11.03.2022 passed in OA No. 302/2019 (Supra) by referring the law laid down by the Hon'ble Apex Court in the case of Shiba Shankar Mohopatra& others Vs State of Orrisa & others reported in (2010) 12 SCC 471, recorded its findings that seniority assigned to the Sr. PWS vide seniority list dated 16.05.2012 same was followed in subsequent years including the seniority list published and circulated on 01.04.2014, was acted upon by the official respondents and same was settled long back. The decision of official respondents to reject the belated claim for revision of settled seniority was upheld in terms of Para 321 of IREM Vol-1. Therefore, the said finding of this Tribunal in the order passed in OA No. 302/2019 is squarely applicable here too in the present case.
17. It is also not in dispute that neither the official respondents i.e., Railway Department nor any of the Sr. PWS, particularly the private respondents herein disputed the validity of the said seniority at relevant point of time or submitted any representation within the prescribed time limit as per the provision of Para 321 of IREM Vol-1. Not only that the said settled seniority continued for more than 6-7 years and was admittedly operated since that long as noted herein above.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 36Therefore, we are of the considered opinion that there exists the acceptance by acquiescence of the said settled seniority position on the part of private respondents as well the official respondents.
18. It is settled principle of law that when acquiescence takes place, it reveals the prior knowledge against a particular act. In the present case, it is also noticed that there exists unreasonable delay in raising or pursuing a claim. It is "neglect" on the part of the private respondents that they failed to do an act which law requires while asserting a right, and therefore, that must stand in the way of the party claiming relief or remedy. The Para 321 of IREM Vol-1, in univocal terms restricts the period of limitation to entertain the representation/case for revision of seniority. The Hon'ble Apex Court in the case of Shiba Shankar Mohopatra & others (supra) also held that 3- 4 years is the reasonable period to revise the seniority.
In the present case, as noted herein above, after 6-7 years of publication of the seniority of Sr. PWS i.e., seniority list dated 16.05.2012, including seniority list dated 01.04.2014 sought to be revised vide impugned revised seniority list dated 28.11.2019. For such belated impugned decision, the official respondents only offer their explanation that in the year 2019 they have received some representations from employees/union against the settled seniority of Sr. PWS and on consideration of it they found that at the relevant time (i.e., in the year 2012) the seniority of Sr. PWS was not fixed as per Para 302 of IREM Vol- 1, therefore, the said error has been rectified by way of impugned revised seniority list dated 28.11.2019. In our consider view, in light of provision of Para 321 of IREM and the law laid down by Hon'ble Apex Court in the case of Shiba Shankar Mohopatra & others (supra) and on the ground of delay, laches and acquiescence the said explanation / reasons stated by the official respondents to justify their belated action is not tenable. Thus, we hold that it is not open for the official respondents to entertain belated representations against the settled seniority of the erstwhile Sr. PWS/JE including the seniority list dated 16.05.2012, 11.11.2013, 01.04.2014. We answered point no.1 accordingly.
(CAT/AHMEDABAD BENCH OA NO.123/2020) 37We reiterate that impugned decision dated 28.11.2019 revising the settled seniority belatedly i.e., after 7 years suffers from legal infirmities in light of mandate of Para 321 of IREM Vol -1, as also law laid down by Hon'ble Apex Court as referred herein above.
19. The official respondent herein also attempted to justify their belated action by taking shelter of para-228 of IREM to rectify the seniority list. In our considered view, since the seniority list of Sr.PWS dated 01.04.2014 came to be operated long back by the competent authority and some of the Sr.PWS were granted promotion to the post of SSE including the applicants herein in the year 2015, it is not open to the respondents to unsettle the said settled seniority at this late stage. We see that the Railway Authority had not denied the contention of the applicants that they had undergone the training for longer duration and the said training period was as such prescribed as "Induction Training" and not the "Professional Course/Refresher Course". Once the applicants herein were granted promotion to the Higher Grade of post, i.e., SSE, in the year 2015, automatically they ceased to be JE since then. Thereafter, in the Cadre of JE, the name of applicants cannot be placed. The impugned seniority list dated 28.11.2019 has been treated by the official respondents as final even before the time limit prescribed for consideration of the objections/representation thereon but proceeded to roll back the settled position of the promotion of the applicants from the post of SSE. As noticed hereinabove, on the intervention of this Tribunal in MA No. 142/2020 in identical OA No.124/2020, this Tribunal did not approve the legality of such action of the official respondents.
20. The record reveals that undisputedly, considering the final seniority list of erstwhile Sr. PWS/JEs, the official respondents found the applicants herein were eligible and suitable for grant of promotion in the higher cadre of SSE and accordingly, in the year 2015, they were promoted to the said post. Thus, the official respondents had acted upon the seniority list and in such acquiescence on the part of official respondents, it cannot be said that applicants herein were wrongly granted promotion to the higher post. The impugned decision to recall the said promotion is based on revised (CAT/AHMEDABAD BENCH OA NO.123/2020) 38 seniority list dated 28.11.2019, since the said revised seniority list has been declared invalid in terms of Para 321 of IREM Vol-1, any further steps including the reversion of applicants from the promotional post also fails to stands. At this stage, it is important to mention that pursuance to the order passed by this Tribunal in MA No. 142/2020, the official respondents herein vide order dated 08.06.2020 rolled back their impugned decision of reversion of their post from SSE to JE and applicants herein since then continuing to work as SSE (PW).
21. In light of above discussion and in light of the dictum laid down by Hon'ble Apex Court that the settled seniority cannot be unsettled at belated stage, we have no hesitation to allow the present OA by disapproving the explanation on the part of official respondent to take belated step for revising the settled seniority. Accordingly, we set aside the impugned revised seniority list dated 28.11.2019 as also the impugned decision dated 04.03.2020.
Further, as noted herein above, at the early point of time the official respondents themselves have taken stand to the effect that seniority list circulated on 13.05.2019 is in order, accordingly, we too direct the official respondents to maintain the said seniority list dated 13.05.2019 of JEs as also the order dated 08.06.2020 whereby applicants herein continued working as SSE (PW). Accordingly, the OA stands allowed. No orders as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
PA