Central Administrative Tribunal - Allahabad
Anand Shukla vs General Manager N C Rly on 13 July, 2023
Reserved on 11.07.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 13th day of July, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 818 of 2017
Anand Shukla s/o Mr K.K. Shukla, aged about 55 years, R/o 128
AB-II Abinu Railway Colony, Nawab Usuf Road Civil Lines,
Allahabad. Presently working as Deputy CHC (optg), Allahabad
Division Control, North Central Railway Allahabad.
........... APPLICANT
By Advocate: Shri Ashish Srivastava
Versus
1. Union of India through General Manager North Central Railway
Head Quarter Subedarganj, Allahabad.
2. Divisional Railway Manager, Allahabad Division, North Central
Railway Allahabad.
3. Senior Divisional Personal Officer, North Central Railway
Allahabad.
4. Senior Division Operations Manager, North Central Railway
Allahabad.
..........RESPONDENTS
By Advocate: Shri Ajay Kumar Rai
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri Ashish Srivastava, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
1|Page "(i) This Hon'ble Tribunal may be pleased to direct the respondents to count the period of officiating service of the applicant rendered as adhoc section controller in fixing their seniority as section controller with all consequential benefits.
(ii) This Hon'ble Tribunal may be pleased to direct the respondent to pay the officiating allowance for the period from 15.08.1990 to 08.01.2002 during which period the applicant has worked as section controller in officiating capacity due to adhoc arrangement alongwith 12 percent interest thereupon.
(iii) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
(iv) Award the costs of the original application in favour of the applicant."
3. The compendium of the facts narrated in the instant original application is that the applicant is aggrieved from the fact that despite working as Section Controller for the period from 15.08.1990 to 08.01.2002, his service for the same period has not been counted under the period of officiating service due to which his seniority has been affected. By way of the instant original application, the applicant seeks a direction to the respondents to count the applicant's service of officiation from 15.08.1990 to 08.01.2002 and thereafter as a part of his regular service and his seniority may be advanced accordingly. The applicant also seeks a direction to the respondents to pay the officiating allowance for the period from 15.08.1990 to 08.01.2002 during which period the applicant has worked as section controller in officiating capacity due to adhoc arrangement.
4. We have heard the rival contentions advanced by the learned counsel appearing for the parties.
5. Disclosing a brief history of the case, learned counsel for the applicants submits that the applicant was initially recruited as Assistant Station Master under the control of respondent no. 2 in the
2|Page year 1987. In the year 1990, respondents sought willingness of the Assistant Station Masters to work as Section Controllers on officiating and adhoc arrangement at control office Tundla head quarter division Allahabad. The applicant submitted his willingness and as such, after the completion of prescribed procedure the applicant took over the charge of Section Controller with effect from 15.08.1990 and since then he worked continuously on the said post without any break in service.
6. Learned counsel for the applicant goes on to submit that during the period when the applicant was working as section controller on adhoc basis, the respondents notified the regular selection of section controllers under 10 percent quota vacancies for SM/ASM/YM/TI in the pay scale of Rs 5500-9000. On 27.06.2001, the applicant was regularly selected and got posted as Section Controller.
7. Learned counsel for the applicant goes on to further submit that similarly situated other section controllers at Tundla HQ who were appointed on adhoc basis approached this Tribunal through OA No. 26 of 2001 seeking grant of officiating allowance. The said OA was allowed on 27.07.2001 and respondents were directed to grant the officiating allowance, however, it would not confer any right to claim seniority on the basis of the claim. Subsequently, vide order dated 16.10.2001 the benefit of pay fixation was allowed to the applicants in the aforesaid OA.
8. Learned counsel for the applicant further submits that another original application vide OA No. 347 of 2003 was filed by the same applicants before this Tribunal with a prayer to direct the respondents for counting the period of officiating services rendered as adhoc section controller for fixing their seniority as section controllers. The said OA was allowed on 19.05.2011 and the Court declared that the applicants were entitled to count their service of officiating and adhoc basis and thereafter as a part of their regular service and their seniority would be advanced accordingly. The Court further observed that all the benefits that could accrue out of such advancement of
3|Page seniority is that the period of services required for the post of section controllers for promotion shall reckon from the date of their initial officiation as section controller. In pursuant to the said judgment, the respondents vide their order dated 14.08.2015 granted the benefit of seniority to the applicants however, it was cited by them that no other benefits could be granted as there was one writ petition titled W P No. 53416 of 2011 which stood pending before the High Court. Learned counsel for the applicant further stresses that an identical original application No. 1683 of 2013 titled S.K. Dubey and others Vs UOI and others was also decided in the same line as OA No. 347 of 2003.
9. Learned counsel for the applicant goes on to further submit that the case of the applicant is not that he had served as a stop gap arrangement for a limited period. The period, the applicant has officiated is about 12 years. The Constitution Bench in the case of the Rudra Kumar Sain Vs. Union of India (2000) 8 SCC 25 has held that the period of adhoc arrangement is for a substantial period, the same shall be qualified to be counted for seniority purpose.
10. Learned counsel for the applicant also submits that the applicant herein had earlier approached this Tribunal by way of OA No. 223 of 2003 and the same was disposed of with a direction to the respondents to decide applicant's representation which was lying pending with them. Learned counsel submits that vide order dated 19.07.2010, respondent no. 3 rejected the applicant's representation without passing any order with regard to the grant of seniority and officiating allowance for the period of section controller on adhoc basis however, it was allowed to the other similarly situated section controllers working with the applicant.
11. Learned counsel for the applicants goes on to further submit that it is a settled position of law that when a citizen aggrieved by the action of government department had obtained a declaration of law in his favour, others, who are similarly situated in like circumstances should be able to rely on the sense of responsibility of the department
4|Page concerned and should expect that they will be given benefit of the declaration without need to take their grievances to court. Thus, concluding his arguments, learned counsel for the applicant submits that the applicant is also entitled for grant of officiating allowance as section controller from 15.08.1990 to 08.01.2002, the period in which the applicant has rendered as adhoc section controller for counting his service of officiation for the above period and thereafter as a part of his regular service and his seniority may be advanced accordingly.
12. Learned counsel for the respondents vehemently opposes the claim of the learned counsel for the applicant and by way of his counter affidavit, he submits that at the outset, the instant original application is liable to be dismissed being highly time barred. As regards to the averments of the learned counsel for the applicant, respondent's counsel has submitted what the applicant has failed to bring to the notice of the Tribunal is the fact that the he was awarded punishment of W.I.T. for 03 years w.e.f. 01.05.1992 as a consequence of disciplinary action and therefore, the applicant could not be considered for promotion in higher grade along with his juniors. However, on expiry of the above punishment, the applicant was promoted in grade 1400-2300 (RPS) as Assistant Station Master on 19.06.1995 and posted at AJR where he did not join. Later on he was allowed this grade at TDL control itself vide letter dated 11.10.1996 which he has accepted. During this period, the applicant never claimed any benefit for the post of section controller because it is a selection post and is filled through positive act of selection. The petitioner was never posted as Section Controller on ad hoc basis by any Competent Authority.
13. Learned counsel for the respondents goes on to further submit that the other section controllers were granted the benefits because they are much senior to the petitioner and also as per the order passed by the Tribunal. However, the petitioner's case was already decided by the administration vide order dated 19.07.2010 which was passed in compliance to the Tribunal's order dated 13.04.2010. Learned
5|Page counsel reiterates that the applicant was never posted as Section Controller on ad hoc basis by any competent authority hence applicant is not entitled for any benefits. Learned counsel further submits that the order dated 19.07.2010 was never challenged by the applicant. Thus, respondents' counsel submits that the instant original application is liable to be dismissed being devoid of merits.
14. Learned counsel for the applicant rebuts the averments of the learned counsel for the respondents and by way of his rejoinder reply, he submits that the applicant remain posted as section controller Tundla till his regular promotion after qualifying the selection. It is further submitted that the posting of the applicant as section controller was carried out on acute need of section controller and by the competent authority. Learned counsel further submits that vide order dated 19.07.2010, the applicant was informed that he cannot be allowed the consequential benefits of seniority and other monetary benefits from 1990 on the ground that he appeared in the selection of 1997, 2000 but could not find place in the panel and could only be finally selected / posted on 27.06.2001 under 10% graduation quota. To the respondents' argument that the applicant would have been eligible of backdate seniority if he had cleared the selection in first attempt, learned counsel submits that applicant had never failed in the selection rather after qualifying the selection he could not be promoted on account of limited number of vacancy as the actual promotion was to be accorded only on the basis of seniority amongst the candidates qualified the selection. Thus, the learned counsel submits that the applicant cannot be alleged to have failed in the examination which he rather had passed but only on account of the merit position, he was unable to secure the promotion and hence this cannot be a ground for denying seniority and consequential benefits to him.
15. Learned counsel for the applicant reiterates that in OA No. 347 of 2003, all the persons who were similarly situated as the applicant have been allowed seniority from the date of their officiating charge
6|Page to the post with all consequential benefits. Referring to the respondents order dated 19.07.2010, learned counsel argues that the said order suffers from infirmity and arbitrariness and it is neither reasoned nor speaking.
16. Learned counsel for the applicant further submits that as per the rules the applicant is due for regularization and grant of seniority as section controller from the date of his holding the post of officiating / ad-hoc capacity on his regular posting to the said post. This rule position is not denied, however, he has been denied seniority from back date only on the ground that he twice failed in the selection of section controller which is totally an incorrect fact and for the same, the burden lies on the respondents' department to bring on record the material evidence to prove this contention. The applicant appeared in the section controller examination in 1995,1997 and 2000 and passed it every time. However, he could not secure promotion for want of vacancy / merit as the seniority was determining factor for regular posting in the cadre.
17. We have considered the rival contentions advanced by the learned counsel for the parties and also gone through the documents on record.
18. As the facts of the case have already been recorded above in detail, the same are not reiterated for the sake of brevity. As is evident from the records, the applicant has already been retired from service. The main dispute which is required to be settled here is whether the applicant's claim that his service of officiation from 15.08.1990 to 08.01.2002 should be considered in determining his seniority or not and whether he should be granted consequential benefits pursuant to that. To assert his claim, the applicant has placed reliance mainly upon the following two judgments:
i. Order and judgment dated 27.07.2001 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 26 of 2001. For
7|Page the sake of clarity, the operative portion of the said judgment is reproduced herein below:
"8. For the above, we are not in a position to sustain the impugned order which is quashed accordingly. The applicants are held to be entitled to get officiating allowance for the period they have worked as Section Controller in officiating capacity due to ad hoc arrangement. The payment be settled within three months from the date of presentation of a copy of this order and thereafter the applicant will be entitled to interest @ 12% per annum. The OA is disposed of accordingly with no order as to costs."
ii. Order and judgment dated 19.05.2011 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 347 of 2003. For the sake of clarity, the operative portion of the said judgment is reproduced herein below:
"11. In view of the above, the OA succeeds. Order dated 28.02.2003 is hereby quashed and set aside. It is declared that the applicants are entitled to count their services of officiation from 1987 and thereafter as a part of their regular service and their seniority would be advanced accordingly. This benefit could however be subject to the condition that the same should not disturb the seniority of others who are already senior to the applicants. All that the benefits that could accrue out of such advancement of seniority is that the period of services required in the post of Section Controller for promotion shall reckon from the date of their initial officiation as Section Controllers. Respondents are directed to pass suitable orders in this regard and make suitable amendments in the seniority list of the applicants. For further promotion, taking into account their seniority from the earlier period, if the applicants were eligible to be considered, the respondents shall convene review DPC and consider the case of the applicants for the higher posts and further action be taken accordingly."
19. A perusal of the above quotations makes it abundantly clear that applicants in the above two O.A.s, the applicant in the instant
8|Page OA claims to be similarly situated as him, have been granted the benefit of officiating allowance as well as adjustment of seniority.
20. Notwithstanding above, the main dispute which is required to be settled here at the very first place is whether the applicant in the instant OA is similarly placed as the applicants in OA No. 26 of 2001 and OA No. 347 of 2003. It is relevant to mention here that the respondents have asserted that the applicant was never posted as Section Controller on ad hoc basis by any competent authority and accordingly he is not entitled for the benefits as claimed at par with other employees. As regards to this particular averment of the respondents, the applicant has failed to give any cogent explanation in rebuttal. Furthermore, it is also relevant to mention here that seeking the redressal of his grievance, the applicant in the instant OA preferred Original Application No. 223 of 2003 before this Bench of the Tribunal which was disposed of on 13.04.2010 with a direction to the respondents to decide the pending representation of the applicant. The respondents passed an order dated 19.07.2010 in compliance of the Tribunal's order thereby rejecting the representation of the applicant. A perusal of the order dated 19.07.2010 reveals that the applicant had appeared in selection examinations held in the year 1997 and 2000 however he could not qualify the same to the extent of securing a place in panel list. It was only in the year 2002 that he could secure a place on the panel in accordance with departmental selection against 10% Graduate Quota and he was thereafter posted as Section Controller.
21. From the above deliberations, this Tribunal is of the considered opinion that the applicant could have been granted the benefit of seniority and consequential advantages had he not failed to secure a place through the examinations dated 1997 and 2000. Just because he failed on previous occasions, he cannot be treated at par with the other candidates and thus, the applicant's claim that he was similarly situated as the other candidates who have been granted the benefits as sought here do not hold water. Furthermore, the applicant has never
9|Page challenged the order dated 19.07.2010 before any competent court of law. The applicant had filed the present original application in the year 2017. Hon'ble Supreme Court of India in its judgment dated 17.10.2014 passed in Civil Appeal No. 9849 of 2014 titled State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others in paragraph had ruled that:
"23) The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-
sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who 10 | P a g e want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
24) Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not chalelnge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
22. If the ratio laid down by the Apex Court as quoted above is compared with the fact of the present matter, applicant did not challenge the order dated 19.07.2010 within the limitation period. The claim was made belatedly but no plausible explanation has been given. The case of the applicant is not squarely covered with the case laws relied upon by the learned counsel for the applicant thus, relief claimed in the matter for the reasons disclosed hereinabove cannot be allowed particularly when the OA has been filed at a belated stage and is barred by time.
23. Therefore, in view of the above deliberations, the instant original application is liable to be dismissed and is accordingly, dismissed being devoid of merits.
23. There shall be no order as to costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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