Central Administrative Tribunal - Kolkata
Ajit Kumar Das vs Eastern Railway on 14 March, 2024
1 OA 953/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/00953/2022
M.A. 350/370/2022
C.P. 350/110/2022
DATE OF JUDGMENT: 14.03.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
1. Ajit Kumar Das
2. Bhupal Chandra Nayaban
3. Ashoke Patra
4. Raj Kumar Prasad
5. Tapas Ghosh
6. Saibal Gangopadhyay
7. Dilip Chatterjee
8. Kalyan Kumar Sarker
9. Nirmalya Bose
10. Ashok Kumar Sarkar
11. Chandan Biswas
.............Applicants
VS.
1. Union of India, through the General Manager, Eastern
Railway, 17, N.S. Road, Fairlie Place, Kolkata-700001.
2. The Chief Personnel Officer, Eastern Railway, 17, N.S.
Road, Fairlie Place, Kolkata-700001.
3. The Divisional Railway Manager, Sealdah Division,
Sealdah, Kolkata-700014.
4. The Chief Signal Engineer (Construction), Eastern
Railway, 17, N.S. Road, Fairlie Place, Kolkata-700001.
5. The Senior Divisional Signal & Telecom Engineer, Eastern
Railway, Sealdah Division, Sealdah, Kolkata-700014.
2 OA 953/2022
6. The Senior Divisional Personnel Officer, Eastern Railway,
Sealdah Division, Sealdah, Kolkata-700014.
7. Arjina Khatun
7. Ramashray Shaw
9. Arup Das
10. Prolay Das
11. Gopi Nath Roy
12. Supriya Goswami
13. Moyanka Chakraborty
14. Raj Kumar Sardar
15. Sajiwan Prasad
Nos. 7 to 15 are Technician Grade I under Senior Divisional
Signal & Telecom Engineer, Sealdah, Eastern Railway, Sealdah
Division, Kolkata-700014.
.........Respondents
For The Applicant(s): Mr. S. K. Datta, Counsel
Mr. B. Chatterjee, Counsel
For The Respondent(s): Mr. S. Chatterjee, Counsel
O R D E R (ORAL)
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"(a) An order directing the respondents to grant consequential benefits to the applicants following the seniority position of the Applicants in the Seniority List dated 12.04.2013 and further directing the respondents to grant Promotions at par with their erstwhile juniors in the Seniority List dated 12.04.2013;
(b) An order quashing and/or setting aside the impugned Promotion as contained in the Memorandum dated 10.05.2022 so far as the Juniors to the applicants are concerned;
(c) An order directing the respondents to produce/cause production of all relevant records.
(d) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."3 OA 953/2022
2. An M.A. bearing no. 350/00370/2022 has been filed by applicants praying for liberty to jointly pursue such original application.
On being satisfied that the applicants share a common grievance and are pursuing a common cause of action, such liberty is granted under Rule 4(5)(a) of CAT (Procedure) Rules, 1987, subject to payment of individual court fees.
M.A. 350/00370/2022 is accordingly disposed of.
3. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
3.1 The applicants are Ex-Trade Apprentices. They were engaged in Eastern Railway, Sealdah Division in the year 1987 as Act Apprentices after due selection through viva-voce test. In 1993, the applicant were engaged as Casual employees. Thereafter the applicants were regularly absorbed in terms of Divisional Railway Manager, Sealdah vide letter dated 29.09.1995 with their lien in Sealdah Division as per letter dated 04.01.1996. The applicants were granted 1st financial upgradation under MACP scheme by order dated 18.11.2010.
3.2 In 2013, a seniority list was published through a Circular dated 12.04.2013 wherein the names of the applicants appeared against sl. nos. 16, 18, 19,20, 22, 23, 24, 25, 26, 27, 28, 30, 40 and 54 respectively. However, in a Provisional Seniority List of Helpers dated 30.06.2015 published by the Senior DSTE, Sealdah, the names of the applicants did not figure in the said Seniority List. The applicants registered their objection vide letter dated 31.07.2015 against the Seniority List and pointed out inter alia that the Helpers appointed after and along with them had been granted promotions without considering the applicants.4 OA 953/2022
3.3 The applicants approached this Tribunal by filing OA no. 1410 of 2015 which was disposed of by this Tribunal by order dated 16.09.2015 without going into the merit of the case and with a direction upon the respondent authorities to consider the grievance of the applicants and to dispose of the representation in accordance with law before publication of any final Seniority List in order to give promotions. Thereafter, the applicant no. 01 had been served with the impugned speaking order dated 02.12.2015 whereby his representation was rejected.
3.4 The applicants approached this Tribunal again by filing OA no. 131 of 2016, which was disposed of by this Tribunal by order dated 23.12.2021 by passing the following findings and order :-
"We have carefully noted the Provisional Seniority List of Helpers under Telecom Wing under Sr. DSTE/SDAH dated 12.04.2013 (A-13), the names of the applicants who figure in the said list, debilitates the stand of the respondents that they belong to MW Wing. The respondents have nowhere pleaded that the said seniority list has been finalized deleting the names of the present applicants from the said list. Therefore, we are unable to accept the contention of the respondent authorities that the applicants all along belonged to a separate Microwave Wing and therefore they have no claim over their seniority in the Telecom Wing.
In view of the above, we would quash the speaking order impugned herein and dispose of the original application with a direction upon the Sr. DSTE to give a personal hearing to the applicants, consider their grievance in the light of seniority list of 12.04.2013 and issue a Speaking Order justifying their stand that the applicants belong to Microwave Wing and not to the Telecom Wing, in which case the applicants will be borne in the Microwave Wing.
In the event, however, the respondents find that the applicants cannot be segregated from the S & T Deptt. wing-wise, they shall place the applicants in the seniority list of Telecom Wing appropriately and assign them their due seniority for the purpose of consideration for promotion to the next higher post.
Appropriate order shall be issued within a period of 2 months."
After the said order dated 23.12.2021, the respondent no. 05 passed the speaking order dated 04.05.2022. The applicants state that although it has been accepted by the respondents that the applicants belong to S & T Department, no fresh Seniority List has been published incorporating the 5 OA 953/2022 applicants at the proper place following the Seniority List dated 12.04.2013 and they have not been granted any consequential benefits by way of Promotion to the next higher Grade at par with their erstwhile juniors who were granted further promotion from the post of Helper and instead thereof the respondent authorities have given further promotion to the juniors by Memorandum dated 10.05.2022. The respondent authorities published another Seniority List on 21.02.2019 for the post of Helper and thereafter in the year 2022.
Aggrieved by the action of the respondents in not granting them seniority as per the provisional seniority list of 12.04.2013 and the consequential benefits thereon, the applicants have filed this OA.
4. Learned Counsel for the applicants submits that the applicants were borne on the cadre of Telecom Department of Sealdah Division. Their names appeared in the combined seniority list of Telecom Helpers dated 12.04.2013. However, in the seniority list published on 30.06.2015, their names were not included on the ground that the applicants did not belong to the Telecom cadre of Sealdah Division but to the Microwave Division of Eastern Railway Headquarters and their seniority list in the Microwave Department was maintained by Dy. CSTE/Microwave/Asansol.
Learned Counsel for the applicants submits that this issue was adjudicated by this Tribunal in OA no. 131 of 2016. The Tribunal in its order dated 23.12.2021 categorically determined that the applicants belonged to the Telecom Department of Sealdah Division and directed the respondents to consider the grievance of the applicants in the light of seniority list of 12.04.2013 after granting them a personal hearing. The Tribunal also quashed 6 OA 953/2022 the speaking order dated 02.12.2015 since this order had based its decision on the premise that the applicants belonged to the Microwave Department and not to the Telecom Department of Sealdah Division. Learned Counsel submits that in compliance of the order of this Tribunal in OA no. 131 of 2016, the respondents gave a personal hearing to the applicants and passed a speaking order stating that the applicants have been put in the seniority list of Telecom Helpers vide order dated 21.02.2019. Learned Counsel further submits that as a result of the common seniority list being given effect from 2019, some of the applicants' juniors in the seniority list of 2013 have already been promoted to Tech-III and Tech-II grades, whereas the applicants have been deprived of the promotions and have now been clubbed with the Helpers of the Telecom Department who are much junior to them. The applicants' claim in this OA is to fix their seniority as per the provisional list published on 13.04.2013.
5. Per contra, Learned Counsel for the respondents submits that since their regularization, the applicants were in a separate cadre where they appeared in trade tests for promotion in the Microwave cadre. However, applicant no. 01 failed in the trade test and was not promoted in Microwave cadre. Respondents submit that the Provisional Seniority List of 12.04.2013 erroneously included the names of the applicants in the seniority list of Telecom Helpers of Sealdah Division. This mistake was corrected in the final list published in 2015 in which names of only the Telecom Helpers of Sealdah Division were included and applicants who were Helpers in the Microwave Department of the Eastern Railway Headquarters were not included in the list. Learned Counsel for the respondents submits that as per orders of the Principal Chief Personnel Officer (Pr. CPO) of Eastern Railway dated 7 OA 953/2022 26.12.2018, the cadres of Telecom Helpers and Helpers in the Microwave Department have been merged and a common seniority has been published on 21.02.2019.
Learned Counsel submits that Pr. CPO is the competent authority to decide on merger of cadres. Telecom Helpers and Helpers in Microwave Department belonged to different cadres till the Pr. CPO issued orders for their merger, therefore, the applicants' seniority cannot be merged with the seniority of Telecom Helpers with effect from a date prior to the Pr. CPO's orders of merger dated 26.12.2018. Thus, the applicants cannot claim merger of their seniority with that of the Telecom Helpers of Sealdah Division from 2013.
6. Heard the parties. Perused material on record.
6.1 We have gone through the judgment of this Tribunal in OA no. 131 of 2016 dated 23.12.2021. The findings of the Tribunal in this OA are that the applicants belonged to the cadre of Telecom Helpers of Sealdah Division upto 2015. The Tribunal has recorded its reasons for findings to that effect. The speaking order dated 04.05.2022 passed in compliance of the order of the Tribunal dated 23.12.2021 makes no mention of this finding of the Tribunal. We observe that the speaking order has merely put remarks against the relief sought by the applicants without taking cognizance of the specific direction of the Tribunal to consider the grievance of the applicants in the light of seniority list of 12.04.2013 which included the names of the applicants. In our opinion, the speaking order dated 04.05.2022 issued by the respondents is not in accordance with the orders passed in OA no. 131 of 2016 and is bad in law. The speaking order dated 04.05.2022 is therefore quashed and set aside. 8 OA 953/2022 6.2 We are bound by our earlier findings on identical issue. As noted above, this Tribunal had categorically held in its order dated 23.12.2021 that the applicants belonged to the common pool of Telecom Helpers of Sealdah Division and not to a separate Microwave cadre upto 2015. This order was passed in 2021 after appreciating the evidence furnished by the parties for the period from the appointment of the applicants in the respondent organization till the date of the order. The order extensively discusses the evidences and comes to the conclusion that the applicants were part of the cadre of Telecom Helpers of Sealdah Division. It is no longer open to us to readjudicate on the issue except to reiterate the findings recorded in our order of 23.12.2021. 6.3 In view of the above discussion, we direct the respondents to treat the applicants as a part of the cadre of Telecom Helpers from the beginning of their regular service and fix their seniority accordingly. This exercise should be completed within a period of 120 days from the date a certified copy of this order is received in their office. Consequential benefits accruing to the applicants as a result of this refixation of seniority will be granted notionally not later than 04 months thereafter. It is made clear that the applicants will not be entitled to any backwages on account of refixation of seniority.
7. OA stands disposed of.
MA no. 350/370/2022 stands disposed of as per para 2 of this order. CP no. 350/110/2022 stands dropped. No costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia)
Administrative Member Judicial Member
sl
9 OA 953/2022