Central Administrative Tribunal - Ernakulam
Sabu Mathew vs Union Of India Represented By The ... on 8 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 474 of 2013
Friday this the 8th day of July, 2016
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. Sabu Mathew, aged 30 years, S/o.Mathew Thomas,
Chief Commercial Clerk, Southern Railway,
Mangalore Junction, Palakkad Division,
Residing at Mangalath House, Perichankutty Post,
Idukki District.
2. P. Suresan, aged 42 years, S/o. V. Krishnan,
Chief Commercial Clerk, Southern Railway,
Mangalore, Palakkad Division, Residing at Neelambari,
Near Nagabana Vasuki Nagar, Ekkur, Mangalore.
3. K. Madhu, aged 39 years, S/o. P. Balakrishnan,
Chief Commercial Clerk, Southern Railway,
Palakkad, Lakshmi, 504/IV, Near Ottukad, Anganavadi,
Pudupariyaram, Palakkad. . . . . . Applicants
(By Advocate Mr. U. Balagangadharan)
Vs.
1. Union of India represented by the General Manager,
Southern Railway, Park Town P.O., Chennai-600003.
2. The Senior Divisional Personnel Officer, Palakkad Division,
Southern Railway, Palakkad-678002.
3. The Senior Divisional Commercial Manager, Southern Railway,
Palakkad Division, Palakkad-678002.
4. The Secretary, Railway Board, Rail Bhavan, Rafi Marg,
New Delhi-110001.
5. Shri. Sreenarayanan K.K., Chief Commercial Clerk,
C/o. Divisional Personnel Officer, Southern Railway,
Palakkad in representative Capacity. -678002
6. Jayapalan K.N, Chief Commercial Clerk,
Southern Railway, Mahe Railway Station, Mahe.
7. Srinivasa B.M,
Chief Commercial Clerk, Southern Railway,
Mangalore Central Railway Station
Mangalore-575001
8. Pradeep Kumar N.N,
Chief Commercial Clerk, Southern Railway,
Mangalore Central Railway Station,
Mangalore-575001
9. Collins Samuel J.,
Chief Commercial Clerk, Southern Railway,
Cannanore Railway Station, Cannanore..
10. Somasundaran T.K.,
Chief Commercial Clerk, Southern Railway,
Mangalore Central Railway Station,
Mangalore-575001
11. Ramachandran P.S,
Chief Commercial Clerk, Southern Railway,
Kuttippuram Railway Station, Kuttippuram.
12. Mohanan. M,
Chief Commercial Clerk, Southern Railway,
Pattambi Railway Station, Pattambi.
13. Sarojini V.
Chief Commercial Clerk, Southern Railway,
Elimala Railway Station, Elimala.
14. Velarian D' Souza
Chief Commercial Clerk, Southern Railway,
Panamburu Railway Station, Panamburu.
15. Valsala M.
Chief Commercial Clerk, Southern Railway,
Thalassery Railway Station, Thalassery.
16. Rugmini. B.
Chief Commercial Clerk, Southern Railway,
Ferok Railway Station, Ferok.
17. Sunil Kumar V.R,
Chief Commercial Clerk, Southern Railway,
Mangalore Junction Railway station,
Mangalore.
18. Raghavan E.K.,
Chief Commercial Clerk, Southern Railway,
Mahe Railway Station, Mahe..
19. Sunny V.D, Chief Commercial Clerk
O/o. Divisional Commercial Manager,
Southern Railway, Palghat.
20. Ramesan. S,
Chief Commercial Clerk, Southern Railway,
Payyoli Railway Station, Payyoli.
21. Vijayakumar Aluva. K,
Chief Commercial Clerk, Southern Railway,
Mangalore Railway Station, Mangalore.
22. Ramachandra Nambisan. P,
Chief Commercial Clerk, Southern Railway,
Nilambur Road Railway Statino,
Nilambur.
23. Suresh K.M.
Chief Commercial Clerk, Southern Railway,
Cannanore Railway Station, Cannanore.
24. Muralimohan P.K,
Chief Commercial Clerk,ITD
Southern Railway, Palghat.
25. Bhaskaran S,
Chief Commercial Clerk, Southern Railway,
Palghat Town Railway station, Palakkad.
26. Santhosh Kumar,
Chief Commercial Clerk, Southern Railway,
Pattambi Railway Station, Pattambi.
27. Ashraf A.K.
Chief Commercial Clerk, Southern Railway,
Bakel Fort Railway Station, Bakel.
28. Sasidharan T.K,
Chief Commercial Clerk, Southern Railway,
Payangadi Railway Station, Payangadi.
29. Salim T.
Chief Commercial Clerk, Southern Railway,
West Hill Railway Station, Calicut.
30. Sankaradas K.
Chief Commercial Clerk, Southern Railway,
ITD, Palghat..
31. Mary Kunju. M.T
Chief Commercial Clerk, Southern Railway,
Kuttipuram Railway Station, Kuttippuram.
32. Jayakrishnan A.
Chief Commercial Clerk, Southern Railway,
Farok Railway Station, Farok.
33. Ramkumar. K.R.
Chief Commercial Clerk, Southern Railway,
Palakkad Railway Station, Palakkad.
34. Mohanan K.K.
Chief Commercial Clerk, Southern Railway,
Cannanore Railway Station, Cannanore.
35 Geethabhai E.K.
Chief Commercial Clerk, Southern Railway,
West Hill Railway station, Calicut.
36. Sudhakaran T.P
Chief Commercial Clerk, Southern Railway,
Calicut Railway Station, Calicut.
37. Satheesh Babu K,
Chief Commercial Clerk, Southern Railway,
Tirur Railway Station, Tirur..
38. Kaliamurthy,
Chief Commercial Clerk, Southern Railway,
Mangalore Railway Station, Mangalore.
39. Ganesh Babu P
Chief Commercial Clerk, Southern Railway,
Vadakara Railway station, Vadakara.
40. Rajan P,
Chief Commercial Clerk, Southern Railway,
Mangalore Railway Station, Mangalore.
41. Vinodan M.K.,
Chief Commercial Clerk, Southern Railway,
Vadakara Railway Station, Vadakara..
42. Ajithkumar M.K,
Chief Commercial Clerk, Southern Railway,
Kanchangad Railway Station, Kanchangad.
43. Ravindrakumar M.K
Chief Commercial Clerk, Southern Railway,
Tirur Railway Station, Tirur..
44. Rajesh K.R
Chief Commercial Clerk, Southern Railway,
Angadipuram Railway Station, Angadipuram.
45. Muralidharan C.
Chief Commercial Clerk, Southern Railway,
Calicut Railway Station, Calicut.
46. Chandramohan C.
Chief Commercial Clerk, Southern Railway,
Shoranur Railway Station, Shoranur.
47. Molly K.A.
Chief Commercial Clerk, Southern Railway,
Mangalore Railway Station, Mangalore.
48. Vijayakumari.C.
Chief Commercial Clerk, Southern Railway,
Palghat Railway Station, Palghat.
49. Sathish Kumar. B
Chief Commercial Clerk, Southern Railway,
Kanchangadu Railway Station, Kanchangadu.
50. Ramakrishnan C.V
Chief Commercial Clerk, Southern Railway,
Tikkotti Railway Station, Tikkotti.
51. Pankajaksha Menon,
Chief Commercial Clerk, Southern Railway,
Kannapuram Railway Station, Kannapuram.
52. Shainy Varghese,
Chief Commercial Clerk, Southern Railway,
Kallayi Railway Station, Kallayi.
53. Sugutha Sivaraman,
Chief Commercial Clerk, Southern Railway,
Pyyannur Railway Station, Payyannur.
54 Sasi P.V
Chief Commercial Clerk, Southern Railway,
Vadakara Railway Station, Vadakara.
55. Sukumaran S.
Chief Commercial Clerk, Southern Railway,
Shoranur Railway Station, Shoranur.
56. Rajan K,
Chief Commercial Clerk, Southern Railway,
Palghat Railway Station, Palghat.
57. Sabu Mathew,
Chief Commercial Clerk, Southern Railway,
Palghat Railway Station, Palghat. . . . . Respondents
(Respondents 6 to 57 impleaded by order dated 31.3.2016 in MA 403/16)
(By Advocate Mrs. K.Girija rep. By Advocate Mr. R.Sreeraj for R 1 to 4
Advocate Mr. Martin G.Thottan for R.5)
The above application having been finally heard on 29.06.2016, the
Tribunal on 08 .07.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member The three applicants in this case have approached this Tribunal challenging the seniority position assigned to them in the seniority list published on 4.9.2008. In OA 490/2011 filed by the applicants this Tribunal directed the 2 nd respondent to consider the objection raised by the applicants. After considering the objections, Annexure A6 order was passed holding that the seniority position as per the seniority list published on 4.9.2008 requires no revision. The status of promotions made between 1.1.2006 and 4.9.2008 was ordered to be protected as per Annexure A7 order issued by the Govt. of India/Ministry of Railways. Hence Annexure A7 is challenged by the applicants. They seek quashment of Annexures A6 and A7. They also seek a direction to be given to the respondents to assign the applicants appropriate seniority and consequential benefits. For that purpose the applicants seek a direction to treat the applicants as having assumed duty as Chief Commercial Clerks prior to the merger and consequently to grant them appropriate seniority in the post of Chief Commercial Clerk (CCC for short) above the erstwhile Head Commercial Clerks.
2. Shorn of the details, the case pleaded by the applicants is stated thus.
First applicant was directly recruited by the Railway Recruitment Board as Commercial Apprentice as per notification dated 31.1.2007 against 15% quota. The Commercial Clerks had the following hierarchy of posts:
(a) Commercial Clerks (Rs. 3200-5000)
(b) Senior Commercial Clerk (Rs. 4000-8000) B) Head Commercial Clerk (Rs. 5000-9000)
(d) Chief Commercial Clerk (Rs. 5500-9000) Those posts are filled-up by promotion and also by direct recruitment.
It is stated that in the case of Chief Commercial Clerk 75% are filled up by promotion and 15% by direct recruitment and 10% by Limited Departmental Competitive Examination (LDCE). Against the 10% of LDCE, persons holding the posts of Commercial Clerks/Senior Commercial Clerks/Ticket Collectors/ Senior Ticket Collectors and Inquiry-cum-Reservation Clerks Gr.I and II were entitled to be considered. The 2nd and 3rd applicants joined service as Commercial Clerks on 16.5.1988 and 27.3.2000 and they were recruited as Commercial Apprentice as per notification dated 26.9.2007 against 10% quota for serving candidates. The first applicant had undergone 2 years commercial apprentice training from 21.1.2008 to 21.1.2010. On completion of the training he was appointed as Chief Commercial Clerk on 31.1.2010 vide Annexure A3. 2 nd and 3rd applicants had also undergone 2 years commercial apprentice training from 2.6.2008 to 1.6.2010. They took charge as CCC on 1.6.2010. At the material time the Head Commercial Clerks was next below the category of CCC. The first applicant has assumed charge as CCC on 31.1.2010, 2 nd and 3rd applicants assumed charge as CCC on 1.6.2010. On the recommendations of the 6th Central Pay Commission there was a merger of posts of CCC and Head Commercial Clerks and they were brought under Pay Band Rs. 9300-34800 with GP of Rs. 4200/- vide Annexure A4. The applicants who were recruited to the post of CCC are entitled to be paled en-masse above the Head Commercial Clerks. But the 2nd respondent issued a provisional seniority list placing the erstwhile Head Commercial Clerks at Sl.No.33 to 105 above the applicants and those Head Commercial Clerks are shown as CCC due to merger. The representations made by the applicants against the same was rejected and hence they seek the reliefs as mentioned earlier.
3. This application is stoutly resisted by the respondents contending as follows The applicants are now working as CCC in Pay Band 2 with GP of Rs.4200. They were recruited to the post of Commercial Apprentice under 15% direct recruitment quota and 10% LDCE and were absorbed as CCC in PB 2 Rs. 9300-34800 with GP of Rs. 4200/- w.e.f. 31.1.2010, and 1.6.2010 respectively on successful completion of two years training. Annexure A7 is a policy decision by Ministry of Railways in pursuance of the recommendation of 6 th CPC and in consultation with the DOP&T which has statutory force. It was based on the instructions contained in Annexure A7 only, Annexure A6 order was issued. Therefore, the challenge against Annexures A6 and A7 cannot be sustained. The first applicant was undergoing training from 21.1.2008 to 20.1.2010 and later he was declared as suitable for absorption as per letter dated 20.1.2010 and accordingly he was absorbed as Chief Commercial Clerk. The offer of appointment given to the applicant shows that he was appointed to the post of Temporary Commercial Apprentice on a monthly stipend of Rs. 5000/- per month. The applicant accepted the terms and conditions specified in the offer of appointment (Annexure R1). He underwent training and only later he was appointed as CCC. The 2nd applicant was working as Sr. Commercial Clerk in Pay Band Rs. 5200-20200 with GP of Rs. 2800/. The 3rd applicant was working as Inquiry-Cum-Reservation Clerk in the same pay band. They were selected and appointed against the post of Commercial apprentice against 10% LDC quota as per recommendation of the duly constituted Departmental Promotion Committee. The panel was approved by the ADRM Palakkad on 12.5.2008. On successful completion of two years training from 2.6.2008 to 1.6.2010 they were declared suitable for absorption and accordingly they were absorbed as Chief Commercial Clerks as per office proceedings dated 9.6.2010. The criterion for determination of seniority should be the date of regular promotion as per due process in the case of promotees. Their service started only after completion of apprenticeship training on 30.6.2010 and 1.6.2010 respectively. Hence, they could have no claim for seniority before their date of absorption. The request made by the applicants for placing them above the erstwhile Head Commercial Clerks in Annexure A5 seniority list is not maintainable. The respondents acted in accordance with the instructions contained in Annexure A7 issued by the DOP&T. Thus the respondents pray for dismissal of the OA.
5. The 5th respondent (one of the party respondents) has filed reply statement refuting the averments made in OA.
6. The point for consideration is whether the applicants are entitled to get seniority with effect from the date on which they were appointed as Commercial Apprentice?.
7. Annexure A4 order dated 14.9.2010 issued by the Ministry of Railways/Railway Board itself makes it clear that pursuant to the implementation of the recommendations of the 6 th CPC the issue of revision of designation of Group C categories, where pre-revised pay scale (as per 5th CPC) have been merged and granted common replacement pay structure/higher grade pay, had been under consideration of the Ministry and thus it was decided, in consultation with both the Federations, that existing designations of Group C categories where grades have been merged and granted common replacement pay structure/higher grade pay may be replaced provisionally by the designations as shown in Annexure A to that letter. Admittedly there was merger of Head Commercial Clerks and Chief Commercial Clerks as per the recommendation of the 6 th CPC. In the light of the directions contained in Anenxure A4 dated 14.9.2010, provisional seniority list was published as can be seen from Annexure A5 dated 24.01.2011. The contention vehemently advanced by the applicants is that their service should have been taken from the date of initial recruitment/appointment to the post of commercial apprentice. According to them the appointment was actually to the post of Chief Commercial Clerk, and if that be so, the merger of posts of Head Commercial Clerk and Chief Commercial Clerk can have no bearing on their claim and it should not have gone to the disadvantage of the applicants since according to them they became Chief Commercial Clerks well before the party respondents and others who could become Chief Commercial Clerks only by virtue of the merger which took place pursuant to the recommendations of the 6 th CPC. Admittedly, the recommendations of 6th CPC were implemented with effect from 1.1.2006. Therefore, the merger of the two posts was to take place w.e.f. 1.1.2006. By Annexure A4 only revised designation was given to the merged categories. Admittedly as on 1.1.2006 or even on 1.9.2008 the applicants were not Chief Commercial Clerks. They were appointed only as Commercial Clerk apprentice. Admittedly they underwent two years training before they were absorbed as Chief Commercial Clerks. Their absorption as Chief Commercial Clerk (CCC) took place only long after the party respondents and others were designated as Chief Commercial Clerk by virtue of the merger that had taken place earlier.
8. As per Rule 101(4) of Indian Railway Establishment Code, Vol.I 'an apprentice means a person deputed for training in a trade or business with a view to employment in Railway service, who draws pay at monthly rates from government during such training but is not employed in or against a substantive vacancy in the cadre of a department.' It is also pointed out that as per Indian Railway Establishment Manual (IREM) Vol.II it is clarified that the 'apprentices have no guarantee or promise of employment. But on satisfactory completion of their training, the apprentices will be considered for appointment to the post for which they are apprentices subject to the existence of vacancies. It was also stated that they will, howsoever, be taken on probation for a period to be specified in each case'. Since the applicants were undergoing training and as they were absorbed as Chief Commercial Clerk only on 31.1.2010 and 1.6.2010, the contention that they should have been placed above the party respondents cannot be sustained. Even in the letter of appointment it was stated that the applicants were selected by the Railway Board to the post of temporary commercial apprentice on a monthly stipend of Rs. 5000/- per mensum. It was also clarified that no guarantee or promise of employment will be given but on satisfactory completion of apprentice, they will be eligible for appointment as Chief Commercial Clerk on a salary of Rs. 5500 in scale Rs. 5500-9000, subject to availability of vacancy. Therefore, there was no appointment as Chief Commercial Clerks in 2006 or 2008. Their appointment was only as commercial apprentice. They could be appointed as Chief Commercial Clerk only on 31.1.2010 and 1.6.2010. They cannot march over the party respondents who were already there as Chief Commercial Clerks by virtue of the merger that had taken place prior to the appointment of the applicants.
9. Para 302 of the IREM Vol.I has also referred to by the respondents, which reads:
'Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotees and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter- se seniority of promotees and direct recruits among themselves. ' This rule/para also makes it ample clear that the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotees and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se seniority of promotees and direct recruits among themselves. That due process includes the training as well, because the applicants were recruited/appointed only as apprentice for whom the training was mandatory. So much so, it is clear that the applicants have no claim for seniority before the date of absorption on 31.1.2010 and 1.6.2010. Since all the applicants were appointed and they took charge as Chief Commercial Clerks only in 2010 the contention that they should have been placed above the party respondents who had already been in the post of Chief Commercial Clerk because of the merger, cannot be sustained for a moment. It is also beyond any pale of doubt that the grades of Chief Commercial Clerk and Head Commercial Clerk got merged with a single category as Chief Commercial Clerk with effect form 1.1.2006. That is a policy decision taken by the Government of India accepting the recommendation of the 6th CPC. The learned counsel for the respondents, has relied on the decision of th Hon'ble Supreme Court in Secretary, Finance Department an others Vs. West Bengal Registration Service Association and others - AIR 1992 SC 1203 where it was held that equation of posts and determination of pay sales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the pay commission etc. It is also argued on behalf of the respondents relying on the decision of Hon'ble Supreme Court in T.Narasimhalu and others Vs. State of Andhra Pradesh and others (2010) 6 SCC 545l that seniority of government servant is not a vested right and that an Act of the State Legislature or a rule made under Article 309 of the Constitution can retrospectively affect the seniority of a government servant. It is also beyond any cavil of doubt that the power to merge two or more cadres vests with the executive government. The policy decision taken by the government is beyond the purview of judicial review except in two circumstances where there has been an arbitrary exercise of power or where the power exercised is not in conformity with the law.
10. The recommendations of the 6th CPC was implemented by the Government of India. There was no objection at all with regard to the merger that took place based on that recommendation. That is not challenged by the applicants also. It is pointed out that since the merger had taken place w.e.f 1.1.2006, the Railway Board had also issued Annexure A7 instructions, in consultation with the DOP&T. Para 2(ii) of Annexure A7 letter is as follows:
'Where posts having different pay scales prior to 6 th CPC recommendations and now after merger have come lie in the same Pay Band with same Grade Pay, the inter-se seniority of all employees will be fully maintained with employee in a higher pre-revised pay scale being placed higher vis-a-vis an employee in a lower revised pay scale being placed higher vis-a-vis an employee in a lower pay scae. Within the same pre-revised pay scale, seniority which existed prior to revision would continue.' Para 2 (iii) in Annexure A7 is also relevant here which reads:
'Where recruitment for the posts in different pre-revised pay scale(s) was initiated separately for each posts, prior to acceptance of recommendations of 6 th CPC, ie.,prior to 4.9.2008 but selected individual joined duty on or after 5.9.2008 in the revised pay scale(s) against the posts which have been granted same Grade Pay, such staff will be assigned seniority en-bloc below those who were in position as on 4.9.2008.' The applicants joined duty after 5.9.2008. Therefore, they have to be assigned seniority below those who had already been in position as on 4.9.2008. The learned counsel for the party respondents also referred to the decision rendered by this Tribunal in OA 323/2014 where also almost an identical issue was considered and it was held that the date of entry into service can be taken only when the applicants joined as SM Gr.II after undergoing successful training. The applicants herein underwent training for two years and they were appointed as Chief Commercial Clerks only in 2010. The party respondents and others had already been in the post of Chief Commercial Clerk by virtue of the merger which had taken place w.e.f. 1.1.2006. Therefore, the claim made by the applicants in this OA is found to be unsustainable. It is accordingly dismissed. No order as to costs.
(Mrs. P.Gopinath) (N. K. Balakrisnan) Administrative Member Judicial Member kspps