Central Administrative Tribunal - Bangalore
Satyanarayan Nanda vs South Western Railway on 9 March, 2023
1 OA No.102/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00
NO.170/00102/2020
DATED THIS THE 9TH DAY OF MARCH, 2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Satyanarayan Nanda,
Aged 40 years,
S/o Rabindra Kumar Nanda,
Loco Pilot (G),
South Western Railway/Bengaluru
Railway/ engaluru Division,
Residing at: 15/A Raja Reddy Layout,
Rama Murthy Nagar, P.O.,
Bengaluru - 560016. ...Applicant
(By Advocate Shri T.C.Govindaswamy)
Vs.
1. The Union of India,
Represented by the General Manager,
South Western Railway,
Headquarters Office,
Hubli-580020,
580020, Dharwar Dt.,
Karnataka.
2 OA No.102/2020
2. The Divisional Railway Manager,
South Western Railway/Bengaluru Division,
Bengaluru - 560023.
3. The Senior Divisional Personnel Officer,
South Western Railway/Bengaluru Division,
Bengaluru - 560023. ...Respondents
(By Advocate Shri J.Bhaskar Reddy)
O R D E R (ORAL
ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"(i)) Call for the records leading to the issue of Annexure A1 order bearing No.B/P.524/V/Mech/Rng dated 03.01.2020 issued from the office office of Senior Divisional Personnel Officer, Bengaluru Division and Annexure A2 order bearing No.B/P.524/V/Rng/Pay fixation/2019 dated 06.01.2020 issued by the 3rd Respondent and quash the same.3 OA No.102/2020
(ii) Direct the respondents to grant all consequential benefits, as if Annexure A1 order bearing No.B/P.524/V/Mech/Rng dated 03.01.2020 issued from the office of Senior Divisional Personnel Officer, Bengaluru Division and Annexure A2 order bearing No.B/P.524/V/Rng/Pay fixation/2019 dated 06.01.2020 issued he 3rd Respondent have not been issued at all;
by the
(iii) Award costs of and incidental to this application;
(iv) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. Briefly stated the facts as narrated by the applicant are that the applicant is presently working as Loco Pilot (Goods) in the Bengaluru Division vision of South Western Railway. IIn pursuant to employment notification No.1/2005 for appointment to the post of Assistant Loco Pilot,, the applicant was selected and empanelled, he was directed to appear for medical examination and was certified fit for appointment to 4 OA No.102/2020 the post of Assistant Loco Pilot vide certificate of physical fitness dated 02.08.2006 issued by Senior Divisional Med Medical ical Officer, Bengaluru.
The applicant contends that he was waiting for the posting order but there was no response from the authorities to the queries made by him. On 22.08.2007, he was informed that it is more than one year after the selection and that that the applicant cannot be taken for duty unless some plausible reasons are given as to why he could not report earlier. Accordingly, rdingly, the applicant gave a letter letter in writing on 23.08.2007 assigning reasons.
reasons. Finally, the applicant was allowed to join the course from 20.08.2008 and has successfully completed the training course. The applicant was attached to a group of persons for training who were recruited in response to a notification issued in the year, 2006. The applicant's seniority was fixed alo along with all those who were recruited along with the applicant in terms of Rule 306 of the Indian Railway Establishment Manual Volume Volume-I. The respondents published provisional seniority list of loco running staff of Bengaluru 5 OA No.102/2020 Division as on 30.04.2010 as per communication dated 09.12.2010, wherein the applicant's seniority number is shown as Sl.No.97. Based on seniority so fixed, the applicant was also promoted as Senior Assistant Loco Pilot during 2010-2011.
2010 2011. Subsequently, the applicant was promoted as Loco Pilot (Goods) with effect from 14.07.2015.
3. The applicant claims that his seniority was maintained as number 97 even pursuant to the the show cause notice dated 11.0 11.02.2016 issued proposing proposing to revise the seniority on certain principles. Subsequently, a provisional seniority list of Loco Pilot Goods dated 20.05.2016 was published, the applicant's name was figured at Sl.No.136. The respondents again published anothe another seniority list of Loco Pilot Goods dated 09.01.2019, 19, the applicant's name is found at Sl.No.67 without any material change. While so, a show cause notice dated 13.08.2019 was issued from the office of the 3rd Respondent proposing to initiate action to revise the seniority position of the applicant and promotion ordered duly revising his pay pay. In response to 6 OA No.102/2020 the said notice, the applicant submitted a detailed explanation through representations. Thereafter, the applicant received the communication representations.
rejecting the applicant's representation vide communication dated 03.01.2020 and thereafter passed the order dated 06.01.2020, revising the applicant's seniority and pay, pay placing him below a large number of persons and reducing his pay. Being aggrieved by this order, the applicant has preferred this OA.
4. Learned Counsel Shri T.C.Govindaswamy representing the applicant confined his arguments to the relief no.1 claimed in the OA. The sole point argued was that it is not open for the respondents to unsettle the settled seniority list after a period of 11 years. In support of his contention, learned Counsel has placed reliance on the following judgments/orders:
7 OA No.102/2020
1. H.S.Vankani and Ors. vs. State of Gujarat and Ors. -
Civil Appeal No.2439/2010 (Arising out of SLP (C) No.17251/2006) dated 16.03.2010.
2. CAT, Ahmedabad Bench order in OA No.123/2020 dated 22.03.2022 - Uma Shankar Ravi Ranjan & Ors. vs. Western Railway, Mumbai and Ors.
5. A detailed reply statement has been filed on behalf of the respondents. Learned Counsel Shri J.Bhaskar Redd Reddy representing the respondents submitted that the applicant has failed to report to the office for document verification and further process to direct him for mandatory induction training course, despite advise vide letters dated 01.01.2007, 2007, 24.01.2007 and 17.04.2007. The applicant reported to the office on 22.08.2007 stating that his father was not keeping well as such it was not possible for him to stay away from his father, he being a domicile of Orissa. By that time, the induction training course for that batch of recruitment had commenced from 08.08.2007. The applicant 8 OA No.102/2020 was directed for induction training course in the next batch i.e., batch No.01/2009 from 20.08.2008. After completion of successful training, he was absorbed as Assistant A Loco Pilot on 23.01.2009 and reported on 24.01.2009.
6. Learned Counsel further submitted that the seniority of candidates recruited through the Railway Railway Recruitment Board or by any other recruiting authority should be determined as per para-303 (a) of IREM. While issuing seniority list of ALP's, Sr.ALP's, the applicant was assigned assign seniority along with the candidates belong belonging to the earlier batches i.e., batch No.03/2008, o.03/2008, 04/2008 and 05/2008 inadvertently. Some of the candidates who have joined earlier th than the applicant represented for stepping up of their pay on par with the applicant and approached this Tribunal seeking promotion from 14.07.2015 on par with the applicant. As such seniority of the applicant was reviewed and found that it was not in acc accordance with the statutory rules provided for fixation of seniority. In view of the proposed seniority, the promotion ordered in his favour was also reviewed and dates of promotions were revised duly regulating his pay 9 OA No.102/2020 accordingly. Further, no recovery was proposed for over payment involved due to the revision of seniority and promotion. Thus justifying the action of the respondents in revising the applicant's pay and seniority, seeks for dismissal of the application.
7. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
8. The sole point that arises for our consideration is whether the settled seniority could be unsettled by the respondents at a belated stage, after granting two promotions and publishing four seniority lists.
9. It is discernible from the provisional seniority list dated 09.12.2010 (Annexure A5) that the applicant's name was figured at Sl.No.97 (ALP). Based on thee seniority so fixed, the applicant was promoted as Senior Assistant Loco Pilot during 2010 2010-2011.
2011.
Subsequently he was promoted as Loco Pilot (Goods) in 2015. The show cause notice dated 11.02.2016 for revision of seniority list dated 09.12.2010 was issued issued by the Respondent No.2 calling for objections, if any, to the proposed revision of seniority. It was stated that in order to 10 OA No.102/2020 avoid anomaly in the seniority list dated 09.12.2010, the seniority is proposed to be revised duly placing the employees recr recruited through Employment Notice No.01/2005 above the employees recruited through Employment Notice No.01/2006, irrespective of their batch of training and also placing the employees recruited through Employment Notice No.01/2007 above the employees recruit recruited through Employment Notice No.04/2007. Even in the revised list the applicant's name is shown at Sl.No.97. Based on this seniority list, the applicant was promoted as Senior Assistant Loco Pilot.
10. It is not in dispute that the applicant's name is shown at Sl.No.136 based on provisional seniority list dated 20.05.2016 of Loco Running Staff. Subsequently, another seniority list of Loco Pilots (Goods) vide letter dated 09.01.2019 was published. The applicant's name is found fo at Sl.No.67. The said seniority position continued till 06.01.2020.
11. Para-321 321 of IREM deals with permission to Railway servants to peruse seniority list and the same reads as under; 11 OA No.102/2020
"321. PERMISSION TO RAILWAY SERVANTS TO PERUSE SENIORITY LIST:
LIST --
(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.
The submission of the applicant that para para-321(b) provides for the staff concerned to represent about the assignment of seniority position within a period of one year after the publishing of the seniority list. But no revision in seniority list could be made after 11 years appears to have some force.
12. The constitution Bench of Hon'ble Apex Court in the case of Ram Chandra Shankar Deodhar vs. State of Maharastra - (1974) 12 OA No.102/2020 SCC (L&S) 137 has held that any claim for seniority at a belated stage should be rejected in as much as it seeks to distu disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period.
13. Hon'ble Apex Court in the case of Shiba Shanker Mohopatra and others vs. State of Orissa and others reported in (2010)
10) 12 SCC 471 after referring to the judgment of the Constitution Bench in R.N.Bose v. Union of India and others, 1970 AIR (SC) 470, has observed thus:
"29. It is settled law that fence 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 approaching Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum. ...................... ................................13 OA No.102/2020
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 crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3- 3- 4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, 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 ........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 lac laches, without entering ng into the merits of the case."
14. Considering these judgments, CAT, Ahmedabad Bench in OA No.123/2020 dated 22.03.2022 has held as under:
"18.
18. It is settled principle of law that when acquiescence takes place, it reveals the prior knowledge against a particular act.14 OA No.102/2020
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 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, 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- 3 4 years is the reasonable period to revise the seniority. In the present case, as noted herein above, after 6-7 6 7 years of publication of the seniority of Sr. PWS i.e., seniority iority 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 019 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 IREM Vol1, 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 Mohopatra & others (supra) and on the ground of delay, 15 OA No.102/2020 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 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.
We reiterate that impugned decision dated 28.11.2019 revisin 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..............................................
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 tthe higher post. The impugned decision to recall the said promotion is based on revised seniority list dated 28.11.2019, since the said 16 OA No.102/2020 revised seniority list has been declared invalid in terms of Para 321 of IREM Vol-1, Vol 1, any further steps including the reve 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 th 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 espondent 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 th 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 dat dated 08.06.2020 whereby applicants herein continued working as SSE (PW). Accordingly, the OA stands allowed. No orders as to costs.
costs."17 OA No.102/2020
15. In H.S.Vankani supra, the Hon'ble Apex Court while examining the controversy with regard to inter se seniority between two batches of direct recruits Range Forest Officers viz., 1979 1979-81 batch (non-graduates) graduates) and 1980-81 1980 81 batch (graduates) of the Subordinate Forest Services of the State of Gujarat and their further promotion to the post of Assistant Conservator of Forests hheld thus:
"25. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit seniority merit or merit merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount paramount factor for good and sound administration. If the settled seniority at the instance of one's 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 lot of 18 OA No.102/2020 time and energy. The decision either way may drive the parties to litigative wilderness to the the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that 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 lot of judicial time from the lowest court to the highest resulting in constant bitterness among part parties at the cost of sound administration affecting public interest. 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 and Another v. S.K. Goel and Others (2007) 14 SCC 641, T.R. Kapoor oor v. State of Haryana (1989) 4 SCC 71, Bimlesh Tanwar v. State of Haryana Haryana, (2003) 5 SCC 604. In view of the settled law the decisions cited by the appellants in G.P. Doval's case (supra), Prabhakar and O Others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case.
case."
(emphasis supplied) 19 OA No.102/2020
16. In the light of these judgments, the settled legal proposition is that once the seniority has been fixed and remains in existence for a reasonable period, the same should not be disturbed. In the present case, the employees were aware, but no objection w was raised by any of the employee to the four seniority lists published, as some of the candidates who had joined earlier than the applicant represented for stepping up of their pay on par with the applicant and the same having not yielded any positive response, resp they appr approached this Tribunal in OA No.22/2019 and other matters. It appears at that stage, to overcome the claim made therein, the respondents have revised the seniority and pay of the applicant. In view of the revision of pay of the applicant made as per Annexure A2 dated 06.01.2020, the said OA and other identical matters came to be dismissed as having rendered infructuous. Thus the cause of action for unsettling the settled seniority list is the claim of the applicants in OA No.22/2019 and identical matters to step up their pay on par with the applicant. In order to reject the claim of those employees, no revised seniority list could be issued after 11 years. Th The explanation/reasons assigned by the official respondents for justifying 20 OA No.102/2020 belated lated action of revising seniority list and pay of the applicant is untenable.
ntenable. Thus we hold that revision of settled seniority belatedly i.e., after 11 years suffers from legal infirmities in the light of the legal principles enunciated by the Hon'ble Apex Court as referred to above.
17. For the reasons discussed above, the impugned orders at Annexure A1 and A2 are not sustainable. Hence the following:
ORDER Order bearing No.B/P.524/V/Mech/Rng dated 03.01.2020 issued from the office of the Senior Divisional Personnel Officer, Bengaluru Division (Annexure A1) and order bearing No.B/P.524/V/Rng/Pay Fixation/2019 dated 06.01.2020 issued by the 3rd Respondent (Annexure A2) are quashed.
18. OA stands disposed of as indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
21 OA No.102/2020
sd.