Central Administrative Tribunal - Allahabad
S. N. Khan vs Union Of India on 29 October, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 29 DAY OF 10, 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. S. N. Shukla, Member (A) Original Application No.864 of 2008 (U/S 19, Administrative Tribunal Act, 1985) S. N. Khan, aged about 42 years, S/o Shri N. H. Khan presently working as Section Engineer (USFD), N.C. Railway under ADEN, (Line), N. C. Railway, Kanpur r/o 976A/ Jamuniabagh, Railwlay colony, G. T. Road, Kanpur. Applicant Present for Applicant: Shri A. Kumar Shri S. Ram Versus 1. Union of India, through General Manager, North Central Railway, Headquarters Office, Allahabad. 2. General Manager, North Central Railway, Headquarters Office, Allahabad. 3. D.R.M., North Central Railway, DRMs Office, Allahabad. 4. Dy. Chief Engineer (CSP), North Central Railway, Subedarganj, Allahabad. 5. Shri R. S. Verma, Section Engineer (CSP), N. C. Railway, Subedarganj, Allahabad. Respondents Present for Respondents : Shri T.N. Koal, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The matter is short and simple. The applicant was appointed as Chargeman (Civil) in the pay scale of Rs 1400 2300 in August 1990 and posted to Concrete Sleeper Plant (CSP for short). Respondent No. 5 was also appointed in the said post a little later than the applicant. It is the case of the applicant that due to closure of the C.S.P. those employed in that organization were rendered surplus and sent to various other departments, while some of them were retained. The applicant was one who had been shifted, while Respondent No. 5, his junior had been retained. After such shifting of the applicant Respondent No. 5 was promoted in January, 1998 to a higher pay scale of Rs 5500 9000 in the very CSP. Thus, by making the applicant, who is senior, to move out of CSP, respondents have committed an error as invariably under the surplus scheme, it is the junior most who is to be disturbed and not the senior. This fact of respondent No. 5 having been promoted is stated to have come to the knowledge of the applicant only in 2006 he had preferred a representation in July, 2006 to which there was no response. The request was renewed again by another representation dated 21-04-2007. As there was no response to this representation too, OA 122 of 2008 was filed by the applicant which was disposed of at the very admission stage with a direction to the respondents to decide the pending representation dated 21-04-2007. It is in compliance of the order of the Tribunal that the respondents have issued the impugned order dated 10th June, 2008, vide Annexure A-1. Hence, this O.A.
2. Respondents have contested the O.A. Their contention is that the move of the applicant out of C.S.P. was in the wake of his own request vide letter dated 19-12-1994 which was considered and approved in 1996, by which time, the surplus situation also arose in C.S.P. Like the applicant some others who had so volunteered to be posted out, with an undertaking to accept bottom seniority, were also posted. Of them, some baked out and those who did not wish to go out, were retained. Respondent No. 5 is one such individual who had been retained. After the move of the applicant and others, and on their lien placed in the other department, the lien of the applicant in CSP has been severed. As such, when promotion to the higher post was to be considered, it was with reference to only the then serving persons, which included Respondent No. 5, who accordingly had been promoted. The applicant cannot have any grievance in this regard as he had opted to move out.
3. Applicant has filed his rejoinder, reiterating his contentions made in the O.A.
4. At the time of final hearing, respondents were not represented and the counsel for the applicant was heard. He had submitted that when the applicant was declared surplus as late as in 1996, there was no question of change of his category for which he had applied on 19-12-1994 and as a matter of fact, no action was taken on that application for change of category. Under the surplus rules, it is the junior who should be shifted and not the senior. Again, the authority who shifted the applicant lacks requisite power.
5. Arguments of the counsel for the applicant have been heard and pleadings perused. The applicants contention is that the normal rule of surplus is that last come first go and thus, it is the junior most who has to be shifted first, whereas in the case of the applicant, the junior had been retained in CSP and the senior moved out consequent to which the junior in his own unit had been given promotion, while the senior had been left high and dry. He had also questioned the severance of lien from the parent unit immediately on joining the other unit.
6. In the counter, the respondents had stated that the applicants move is not one due to surplus, but he himself volunteered for change of category from the post of Chargeman to that of Permanent Way Inspector, accepting the bottom seniority in the other grade of PWI, vide letter dated 19-12-1994. Along with him four more chargemen had made requests who had so volunteered and had all been transferred to the post of PWI, and the remaining individuals who were juniors were retained. Immediately on their move, they were confirmed in their respective category and consequently, their lien as Chargeman had been severed.
7. Though in the rejoinder a reference had been given by the applicant vide rejoinder to para 4.8 of the counter, and though the applicant contended that the respondents have not annexed copy of the order if any passed by the G.M. in respect of acceptance of request transfer of the applicant, this being the real issue, the applicants counsel was expected to prove his point. Some how, the counsel did not touch this issue, but confined to the general fact that the one who had been retained in CSP has been junior and has been promoted while the applicant, the senior, has been deprived of his promotion chance. Again, reference was made to Code relating to the lien.
8. Thus, the crux of the issue is as to the nature of transfer of the applicant. If the transfer of the applicant is as a matter of deployment of surplus, then the respondents have certainly erred in not shifting the juniors first. Instead, if the transfer is as a sequel to the request made by the applicant, then the action of the respondents cannot be questioned.
9. A look at the various orders could be seen for a moment at this juncture. In August 1996, the fact of the applicants accepting the bottom seniority in the grade of PWI had been reflected, vide Annexure A-2. Vide Annexure A-2 (contd) letter dated 27-12-1996, there was no reference of surplus, but the subject matter carried only Change of Category of Chargeman of CSP Organization into PWI This letter indicates that the transfer orders of four individuals (of whom the applicant is one) had been issued on the request of the employees vide Office O.O. No. 306/96 dated 27-12-1996. In the very same letter certain other individuals had given their refusal to go on transfer to ALD division as PWI/Gr. III and accepting bottom seniority. As such, they were retained. In various other communications as well, the fact of the applicant accepting the bottom seniority has been specifically and conspicuously mentioned.
10. A look at the IREM relating to the fixation of seniority would reveal that in respect of seniority of surplus, it is guided by para 313-A of the IREM, while for request transfer, it is guided by the provisions contained in para 312 of the IREM. The two are extracted hereunder:-
312. TRANSFER ON REQUEST. - The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.
Note : -
i. This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway.
[Rly. Bd. No. E(NG)I-85 SR 6/14 of 21.01.1986].
ii. **{The expression "relevant grade" applies to grades where there is an element of direct recruitment. Transfer on request from Railway employees working in such grades may be accepted provided they fulfill the educational qualification laid down for direct recruitment to the post. No such transfers should be allowed in the intermediate grades in which all the posts are filled entirely by promotion of staff from the lower grade(s) and there is no element of direct recruitment.} 313A: Assignment of seniority to redeployed surplus staff: The surplus employees are not entitled for benefit of the past service rendered in the previous unit/department for the purpose of their seniority in the new unit/department. Such employees are to be treated as fresh entrants in the matter of their seniority, promotions etc. Note I: When two or more surplus employees of a particular grade in a unit/department are selected on different dates for absorption in a grade in another unit/department, their inter-se seniority in the latter unit/department will be same as in their previous unit/department provided that i. No direct recruit has been selected for appointment to that grade in between these dates; and ii. No promotee has been approved for appointment to that grade between these dates.
Note II: When two or more surplus employees of a particular grade in a unit/department are simultaneously selected for redeployment in another unit/department in a grade, their inter-se seniority in the particular grade, on redeployment in the latter unit/department, would be the same as in their previous unit/department.
11. When the above two are compared, it would be seen that the word, bottom seniority nowhere figures in para 313 A. They are to be treated as fresh entrants. However, specific term bottom seniority has been mentioned in Para 312.
12. Apart from the above, vide Annexure A-7, the procedure for redeployment of surplus has been explained. Para 3 and 5 thereof, read as under:-
3. When re-deploying the surplus staff to other units/Deptts. which constitute a different seniority unit, the following methods can be adopted:
(i) if only a small number of staff are rendered surplus and they have to be transferred to various units of other departments against vacancies of duly sanctioned posts, they can be suitably adjusted in those units with their full seniroty and merging their seniority in the respective units.
(ii) .
5. Normally, the junior most of the employees should be rendered surplus, in respective (sic irrespective) of the manner in which they had entered the grade. However, where staff give their willingness to go on bottom seniority in recruitment grades to other departments, such volunteers should be given preference depending upon the availability of vacancies in the other cadre and their suitability, including medical fitness.
13. The above clinches the issue. The question of bottom seniority does not arise when the deployment is due to surplus declaration and at the instance of the organization. The applicants have volunteered to accept the bottom seniority. The applicants volunteering for change of category as Permanent Way Inspector (Gr. III) is more than sufficient to give preference to him in redeploying. He cannot have any claim over the promotion in the parent unit once his transfer has been effected.
14. One more aspect for consideration in this case is that the so called junior in CSP got his promotion in 1998, and the applicant claims that he came to know of the same later and agitated against his not having been retained as late as 2005. A settled position of seniority and promotion is sought to be unsettled by the applicant. Law on the subject is very clear. In a very recent decision in the case of H.S. Vankani v. State of Gujarat,(2010) 4 SCC 301, the Apex Court has held as under:-
38. Seniority is a civil right which has an important and vital role to play in ones service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority, etc. Seniority once settled is decisive in the upward march in ones chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of ones junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India v. S.K. Goel (2007) 14 SCC 641 , T.R. Kapoor v. State of Haryana (1989) 4 SCC 71 and Bimlesh Tanwar v. State of Haryana (2003) 5 SCC 604 .
15. Thus, though initially when the applicants counsel argued, it appeared as if there has been injustice meted to the applicant, on close scrutiny of the records, especially when the applicant had admitted in his rejoinder also as to the making of a request through letter dated 19-12-1994, for change of category to Permanent Way Inspector Gr. III, we do not discern any legal lacuna in the action on the part of the respondents. The applicant had of his own volition opted for change of category. Severance of his lien in the grade of Chargeman in CSP cannot also said to be illegal as on the day when his lien has been terminated in CSP, his designation already changed and there was no mention about retention of lien in CSP for any specific time.
16. Thus, the OA being devoid of merits, merits dismissal, which we order.
Member (A) Member (J)
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