Union Of India (Uoi) And Ors. vs Sh. J.P. Sharma And Anr.
2002 Latest Caselaw 1459 Del

JUDGMENT

A.K. Sikri, J.

1. The seniority of respondent No. 1 vis-a-vis respondent No. 2 is the subject matter of dispute in the present with petition. In fact the respondent NO. 1 had filed OA No. 2236/95 claiming his seniority above respondent No. 2, Sh. Tej Pal (who was arrayed as respondent No. 4 in the said OA) which has been allowed by the learned Tribunal. It may be mentioned that dispute arose after Sh. Tej Pal was promoted to the post of Master Craftsman (MCM) on 23rd May, 1995. The respondent No. 1 felt that he was ignored though he was senior. However, the stand of the official respondent was that it was Sh. Tej Pal who was senior to the respondent No. 1 and Sh. Tej Pal was rightly promoted to the post of MCM and there was no question of ignoring the claim of the respondent No. 1 or superseding him in the process. The respondent No. 1 succeeded in the OA which was allowed by judgment and order dated 2nd September, 1999 holding him as senior to Sh. Tej Pal.

2. This judgment is impugned in the present writ petition by the Union of India. Sh. Tej Pal has not preferred any such petition.

3. It is not in dispute that the respondent No. 1 joined the services with the Northern Railway as Grade-D much before Sh. Tej Pal inasmuch as his date of appointment in the said Grade is 15th February, 1978 whereas Sh. Tej Pal was appointed on 7th June, 1982. Next promotion was to the post of electrical Fitter in Gr. III to which post the respondent No. 1 was promoted on 19th April, 1982. Sh. Tej Pal was promoted in Gr. III on 14th August, 1984. The respondent No. 1 thereafter exercised his option to Electrical Compressor Driver Grade III and was taken in this Grade on 16th January, 1986. Thus, in Grade III also the respondent No. 1 was promoted on 19th April, 1982 whereas Sh. Tej Pal was promoted on 14th August, 1984.

4. However, in further promotions, Sh. Tej Pal was promoted before the respondent No. 1. Sh. Tej Pal was promoted in Grade II on 18th February, 1986 whereas the respondent No. 1 was promoted on 30th October, 1986 likewise in Grade I, Sh. Tej Pal was promoted on 22nd April, 1984 and the respondent No. 1 was promoted on 30th April, 1996. Further, as mentioned above, as MCM Sh. Tej Pal was promoted on 23rd May, 1995. The aforesaid career progression of the respondent No. 1 vis-a-vis Sh. Tej Pal is mentioned in the chart below for proper comparison:

	 Sh.J .P.Sharma                              Sh.Tej   Pal ( Elect-compressor                    ( Motor-Mech.-cum-Driver)                                          Staff   Car   Driver)

 
	 D.O.A.(Gr.D)   15.2.78                07.6.82 DOP  (Elect.

 
	 fitter                  19.4.82

 
	 Gr.III (Elect .Compr . Driver)               16.1.86             14.8.84 (By  option)

 
	 Gr.II                      30.10.86           18.2.86 

 
	 G.I                          30.4.96             23.5.95


 

5. It may be mentioned that when the OA was filed by the respondent No. 1, he was still working in Grade II. His promotion to Grade I on 30th April, 1996 was effected during the pendency of the OA.
 

6. The stand of the petitioners herein before the learned Tribunal was that when the respondent No. 1 gave his option for Electrical Compressor Driver and was brought in this category on 16th January, 1986, he became junior to Sh. Tej Pal as his date of joining in the cadre of Electrical Compressor Driver was taken with effect from 16th January, 1986 whereas Sh. Tej Pal was promoted to this cadre on 14th August, 1984. For this reason Sh. Tej Pal was treated as senior to the respondent No. 1 and as squatter thereto Sh. Tej Pal got further promotions to Grades II and I prior to respondent No. 1.

7. This argument was, however, repelled by the learned Tribunal on the ground that with the change of cadre, loss of seniority was not involved. The learned Tribunal further noted the Rule position and found that irrespective of whether the Grade III skilled artisan is working as Motor Driver or Compressor Driver or as an Electrical fitter, he would have a common inter se seniority as skilled artisan Grade III. According to the learned Tribunal, therefore, the petitioners herein were supposed to draw integrated seniority list of the incumbents to the cadre of skilled artisan as mentioned in para 159 of the Indian Railway Establishment Manual (IREM) which was not done and the respondent No. 1 was wrongly treated as junior to Sh. Tej Pal. Relevant discussion in this respect finds place in para 5 of the impugned judgment which is to the following effect:

"5. We notice from Annexure A-10 and A-11 that options had been invited from Khalasis for consideration against the posts of various categories including Electrical-cum-Compressor Driver, Welder, Crane Driver, Painter, Carpenter, Machinist etc. on 4.3.1986. On the other hand, the application who was already in the higher grade was appointed as Electrical-cum-Compressor Driver on lateral transfer. We find substance in the contention of the applicant that it was not a case of promotion from Khalasi to Compressor Driver but of allocation of Compressor Driver from equivalent post of electrical Fitter grade III since suitable persons were not available for Compressor Driver. He also contended that as there was only 3-4 Compressor Drivers there could be no separate cadre of Compressor Drivers. It has been pleaded on behalf of the applicant that IREM only provides for skilled artisans grade III in various Engineering Departments and their further promotion to skilled artisan grades II and I. In other words, irrespective of whether the Grade III skilled artisan is working as a Motor Driver or Compressor Driver or as an Electrical Fitter, he would have a common inter se seniority as a killed artisan grade III and his further promotion to grade II and I would be determined accordingly. We have gone through the reply filed on behalf of the respondents. There is nothing in the reply to show that the rule position is otherwise. In any case, a Khalasi who had been promoted to grade III in 1982 and re-designated as Compressor Driver in 1986 cannot be on the same footing as the Khalasi appointed in 1982, promoted to grade III in 1984. It has not been denied by the respondents that the number of persons in each sub category are very small. The provisional seniority list of Electrical-cum-Compressor Driver category shows only three persons in the Electrical-cum-Compressor Driver category, one in the Motor Mechanic-cum-Driver and only 2 Mechinist, this list of Machinists goes up to 7."

8. Thus, on finding that the respondent No. 1 was senior to Sh. Tej Pal, the learned Tribunal gave the following directions to the petitioners herein by allowing the OA:

"7. We, therefore, allow this O.A. and direct the respondents to issue an integrated seniority list of the incumbents to the cadre of skilled artisans as mentioned in para 159 of the IREM and then to consider the applicant for promotion as per his entitlement, as it may emerge with all consequential benefits. The list shall be prepared within a period of four months from the date of receipt of a copy of this order."

9. Before us, Ms. Jyoti Singh, learned counsel appearing for the petitioners made identical submissions. Her contention was that by joining the cadre of Electrical Compressor Driver with effect from 16th January, 196 which was respondent No. 1's own seeking, he could not claim seniority in this cadre only from 16th January, 1986 and not from 19th April, 1982. Therefore, he had to be treated as junior to Sh. Tej Pal. Her further submission was that the promotions were given treating Sh. Tej Pal as senior to the respondent No. 1 right from 1986 and the learned Tribunal by giving the aforesaid directions was trying to unsettle the settled position.

10. Learned counsel for the respondent No. 1, on the other hand, supported the directions given by the learned Tribunal by adopting the reasoning given in the impugned judgment. His submission was that at the relevant point of time, the respondent No. 1 was working as an Electrical Fitter having been promoted on 15th April, 1982 while Sh. Tej Pal was promoted on 14th August, 1984 and as per the accepted principle of law, date of entry into the cadre decides the seniority and seniority is to be reckoned from the said date. After submission of option by the respondent No. 1, the respondent No. 1 was posted as a Compressor Driver on the same pay and grade which is an ancillary category in the cadre of skilled artisan. It was not a change of cadre as such involved and no loss of seniority in the substantive cadre of Electrical Fitter. Furthermore, the re-designation/posting was ordered in the interest of railway working and in administrative interest. The ancillary categories contain no substantial strength, which was ranging from two to four and that was negligible. All these ancillary categories were further eligible Along with Electrical Fitters for promotion to the next higher post of Master Craftsman MCM/Chargeman. He referred to para 159 of IREM as per which all the aforesaid categories were in the cadre of skilled artisan. His further submission was that the respondent No. 1 never came to know that the petitioners were treating Sh. Tej Pal as senior inasmuch as no seniority list was issued and promotions of Sh. Tej Pal also could not be known to the respondent No. 1. It is only when Sh. Tej Pal was promoted as MCM, in the integrated cadre, that the respondent No. 1 came to know thereof and immediately filed the OA.

11. After hearing the counsel for both the parties, we are of the opinion that the learned Tribunal has dealt with the matter in proper perspective keeping in view the Rule position. Rule 159 of IREM Vol. I is in Chapter IX relating to skilled artisans and read as under:

"IX. SKILLED ARTISANS:

159.(1) The vacancies in the category of Skilled Artisans Grade III in scale Rs. 950-1500 in various Engineering Departments will be filled as under: (i) 25% by selection from course completed 'Act Apprentices'. III passed candidates and Matriculates from the open market serving employees who are course completed Act Apprentices or III qualified could be considered against this quota allowing age relaxation as applicable to serving employees.

(ii) 25% from serving semi-skilled and un-skilled staff with educational qualifications as laid down in Apprentices Act and

(iii) 50% by promotion of staff in the lower grade as per prescribed procedure."

12. This Rule prescribes the manner in which vacancies in the category of skilled artisans Grade III are to be filled up. Therefore, it is clear that all skilled artisans in Grade III are put in one category whether they are working as Electrical Fitter or Compressor Driver or in any other category. It is not in dispute that the respondent No. 1 was a skilled artisans. He was admittedly promoted in Grade III on 19th April, 1982 whereas Sh. Tej Pal was promoted in this Grade on 14th August, 1984. He would, therefore, be senior to Sh. Tej Pal as skilled artisans Grade III. Merely because he was brought as Compressor Driver after exercising his option on 16th January, 1986, his period of service in Grade III with effect from 19th April, 1982 to 16th January, 1986 cannot be fittered away. This is change of one skilled category to another skilled category but in the same Grade III would not alter his seniority position which has to be reckoned from the date of his promotion in Grade III on 19th April, 1982. The learned Tribunal, therefore, rightly brushed aside the argument of the petitioners herein treating the respondent No. 1 in Grade III Compressor Driver with effect from 16th January, 1986 and treating Sh. Tej Pal as senior to the respondent No. 1 on that reckoning by observing as under:

"..The applicant gave his option for the purpose of Compressor Driver which was accepted by the respondents and w.e.f. 16.1.1986 the applicant though holding his lien in the cadre of Electrical Fitters was posted as Electrician-cum-Compressor Driver in the same grade. Similarly, certain other persons were posted as Painter Carpenter, Compressor Driver etc. and all these posts were called ancillary categories. It was not a change of cadre and as such it involved no loss of seniority in the substantive cadre of Electrical Fitters. The applicant has also referred to para 159 of the Indian Railway Establishment Manual (IREM) according to which the posts of Electrical Fitter, Crane Driver, Machinist, Compressor Driver and similar other allied categories are all skilled Artisans..."

13. Similarly, the mandate of Rule 159 of IREM is to issue integrated seniority list of the incumbents in the cadre of skilled artisans. This was not done and in the process the respondent No. 1 was ignored in further promotions while Sh. Tej Pal was so promoted. We may notice that although an oral submission was raised to the effect that the respondent No. 1 filed the OA and raised the issue belatedly and did not raise the dispute when Sh. Tej Pal was promoted as Grade III, thereafter as Grade I. No such plea was taken in reply to OA or in this writ petition. However, having regard to the fact that Sh. Tej Pal was promoted to the post of Grade II on 18th February, 1986, Grade I on 24th February, 1989 and MCM with effect from 23rd May, 1995, it would not be proper to upset his promotions at this stage.

14. Therefore, while dismissing this writ petition, we modify the directions given by the learned Tribunal in para-7 by substituting the same with the following directions:

"Treating Sh. J.P. Sharma, the respondent No. 1 as senior to Sh. Tej Pal, he shall be considered for further promotion to Grade II and higher Grades onward from the dates Sh. Tej Pal was promoted. However, on promotion to higher Grades, the respondent No. 1 shall be given notional promotions by fixing his pay notionally and he shall not be entitled to the arrears of pay. He shall, however, be entitled to all other consequential benefits including the seniority and fixation of pay etc. Consideration in the aforesaid manner be done within a period of four months from the date of receipt of copy of this judgment/order."

15. The petitioners shall pay cost to the respondent No. 1 quantified at Rs. 3,000/-.