Delhi High Court

R.S. Dubey vs Union Of India & Ors. on 12 October, 2009

Author: A. K. Pathak

                   HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 5717/2000

               Judgment reserved on: 5th October, 2009
%              Judgment delivered on:12th October , 2009

R.S. DUBEY                                   ..... Petitioner
                         Through: Mr. G.D. Gupta, Sr. Adv. with Mr.
                                  Piyush Sharma, Adv.


                         Versus


UNION OF INDIA & ORS.                ..... Respondents
                  Through: Mr.Sanjay Pathak, Adv.


Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers    Not necessary
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?       Not necessary

       3. Whether the judgment should be           Not necessary
          reported in the Digest?


A.K. PATHAK, J.

1. Petitioner was appointed as Assistant Station Master (for

short hereinafter referred to as "ASM") in the grade/pay scale of

330-550 on 9th October, 1980. Later on, this pay scale was

revised to Rs.1200-2040 with effect from 1st January, 1986

pursuant to the recommendation of 4th Pay Commission. Later

on, Petitioner was promoted as ASM on regular basis in the next

higher grade of Rs.1400-2300 (revised pay scale) vide office order

dated 14th August, 1986. Petitioner was transferred as Assistant

Yard Master (for short hereinafter referred to as "AYM") purely on

ad hoc basis, subject to passing of P-16 course. Vide letter dated

16th March, 1993 the Competent Authority accorded approval for

change of category of the Petitioner from ASM to AYM on

administrative grounds as one time exception as a special case

subject to adjudging his suitability and medical classification,

pursuant to the request made on 17 th November, 1992 by the

Senior Divisional Operating Manager.

2. Post of AYM in the grade of Rs.1400-2300 was a

promotional post and was to be filled from the following

categories:

      Sl.                Category                 Grade              Perc
      No.                                                            enta
                                                                      ge
      1.     Guard                    Rs.1200-2040        (RPS)      15%
      2.     Asstt. Station Master    Rs.1200-2040        (RPS)      15%
      3.     Sr. Train Clerk          Rs.1200-2040        (RPS)      20%
      4.     Wagon Movement           Rs.1400-2300        (RPS)      5%
             Inspector
      5.     Shunting Master          Rs.1400-2300 (RPS)             35%
                                      Rs.1320-2040 (RPS

       6.     Switchman                Rs.1200-2040 (RPS)      10%

3. Respondent Nos. 3 and 4 were appointed as Guards on 6th

May, 1979 and 12th September, 1979 respectively in the grade of

Rs.330-530 (revised scale Rs.1200-2040). Later on, they were

promoted as AYMs, on ad hoc basis vide office order dated 7th

August, 1985, pending finalization for panel of promotion by the

Head Quarter. Subsequently, Respondent Nos. 3 and 4 were

selected for the post of AYM and put on panel vide office order

dated 27th February, 1989. Respondent Nos. 3 and 4 passed the

P-16 test on 2nd April, 1990 and their ad hoc promotion as AYM

was regularized vide office order dated 13th June, 1991.

4. The category of Petitioner was changed from ASM to AYM on

the basis of one time exception as a special case. Thereafter, he

made a representation for fixing his seniority in the cadre of AYM

from the date he was holding the grade of Rs.1400-2300 as ASM

This representation was duly accepted by the Respondent vide

order dated 19th June, 1996. Petitioner was accorded seniority in

the cadre of AYM with effect from the date on which he was

promoted as ASM in the grade of Rs.1400-2300.

5. Aggrieved by the aforesaid order Respondent Nos. 3 and 4

filed O.A. No.1418/1996 before the Central Administrative

Tribunal, Principal Bench, New Delhi (for short hereinafter

referred to as "Tribunal") praying therein that the order dated

19th June, 1996 of the Respondent, whereby Petitioner was

assigned seniority as Yard Master in the grade of Rs.1400-2300

on the basis of his length of service in that grade, be quashed.

The grievance of Respondent Nos. 3 and 4 was that, they were

senior to the Petitioner having been appointed as Guards in the

grade of Rs.330-530 (pre-revised) before the Petitioner. Even

their ad hoc promotion to the post of AYM was prior to the

Petitioner. Their regularization on the post of AYM was effective

the date they were promoted on ad hoc basis which was also

prior to the Petitioner's regularization as AYM Petitioner had not

passed the selection test which was held for the post of AYM

therefore, his appointment was irregular. Petitioner was posted

as AYM purely on a temporary arrangement to cope-up with the

acute shortage of AYMs in the yard. Since Petitioner was holding

the post of ASM in the grade of Rs.1400-2300 he was not eligible

for promotion to the post of AYM in the grade of Rs.1400-2300, in

accordance with the channel of promotion. In a nutshell, it was

contended that the Petitioner could not have been accorded

seniority over and above Respondent Nos. 3 and 4.

6. Vide order dated 11th April, 2000, Tribunal allowed the

Original Application of Respondent Nos. 3 and 4. Tribunal held

that the Petitioner had not cleared selection process for the post

of AYM. Petitioner was temporarily holding the post of AYM

pending passing of selection process, subject to adjudging his

suitability and medical classification. The Tribunal observed that

the seniority of Respondent Nos. 3 and 4 as AYM was to be

considered they were appointed as AYM on ad hoc basis. Thus,

Petitioner could not have been treated as senior to Respondent

Nos. 3 and 4 in the grade of Rs.1600-2660, as such he had not

cleared the selection process. With the above observations order

dated 19th June, 1996 whereby Petitioner was assigned seniority

with effect from the date he was holding the post of ASM in the

grade of Rs.1400-2300 was quashed.

7. Aggrieved by this order, Petitioner has approached this

Court by filing present writ petition under Articles 226 and 227 of

the Constitution of India praying therein that the impugned order

dated 11th April, 2000 of the Tribunal be set aside and O.A. No.

1418/1996 of Respondent Nos. 3 and 4 be dismissed.

8. We have heard learned counsel for the parties and have

perused the relevant material available on record. We are of the

view that Tribunal has taken an erroneous view by quashing the

order dated 19th June, 1996 of the Respondent.

9. Facts narrated above disclose that the category of Petitioner

was changed due to administrative reason. He was not working

on the post, which was feeder cadre for the selection to the post

of AYM. Petitioner was holding post of ASM in the grade of

Rs.1400-2300 with effect from 14th August, 1986. This post was

not in the channel of promotion /selection to the post of AYM. On

account of acute shortage of AYMs in the yard, Petitioner along

with some other ASMs was posted as AYM on ad hoc basis vide

office order dated 16th August, 1989. Thereafter, he continued to

work on the said post till his category was changed by the

Competent Authority sometime in the month of March, 1993.

10. Background for change of category is that on 17th

November, 1992 Senior Divisional Operating Manager, New Delhi,

of the Respondent, wrote a letter to Chief Operating Manager,

Head Quarter, New Delhi stating therein that vacancy of AYM in

the grade of Rs.1400-2300 were lying vacant and could not be

filled due to unwillingness of the staff from eligible categories.

Forty vacancies were there for the post of Yard Master and efforts

were made to fill up these vacancies in the year 1989 from the

staff of eligible categories but not with much success.

Accordingly, five ASMs in the grade of Rs.1400-2300 were posted

as AYMs on ad hoc basis, which included the Petitioner, and

since then they were continuously working on the said post,

which was a big help in the yard. On this basis, it was requested

that as one time exception their appointment as AYM be

regularized. Pursuant to this letter, General Manager (Personnel)

intimated the Divisional Railway Manager vide letter dated 16 th

March, 1993 that the Competent Authority had accorded his

approval for the change of category of working ASMs, which

included the Petitioner, to the post of Yard Master in the grade of

Rs.1400-2300 on administrative ground as one time exception as

a special case, subject to adjudgement of their suitability and

medical classification. It was also mentioned in that letter that

efforts be made to fill up existing vacancies in the category of

Yard Master by giving wide publicity amongst the eligible staff.

Thus, it is apparent that the Petitioner was regularized on the

post of AYM by changing his category to tide over the shortage of

AYMs for smooth functioning of yard.

11. It is apparent from the above that the category of Petitioner

was changed from ASM to AYM by the Competent Authority and

his appointment on the post of AYM was by way of transfer and

not by selection. In view of this, Petitioner was not required to

undergo the regular selection process to be undertaken by the

officials from the eligible category.

12. In the counter affidavit Respondent Nos. 1 and 2 have

categorically mentioned that the Competent Authority had

considered the case of the Petitioner and other similarly situated

persons, and held that, since medical classification of A-2 was

higher than A-3, hence, this staff was medically fit for working as

AYM.

13. Para 311 of the Indian Railway Establishment Manual,

Volume -1 (Revised Edition-1989) reads as under:-

"311. Transfer in the interest of administration. Seniority of railway servants on transfer from one cadre to another in the interests of the administration is regulated by the date of promotion/date of appointment to the grade as the case may be."

14. Since the Petitioner was transferred from ASM to AYM in the

interest of administration, his seniority is to be governed by Para

311 of IREM. As per this para, Petitioner was entitled to the

seniority from the date he was holding the grade of Rs.1400-

2300. Accordingly, we are of the view that Petitioner was rightly

assigned seniority from the date when he was holding the post of

ASM before his transfer as AYM by the Respondent Nos. 1 and 2

vide order dated 19th June, 1996.

15. We are of the view that in the light of above factual matrix

and the law applicable thereto, Tribunal has taken an erroneous

view by holding that Petitioner was to be treated holding the post

of AYM on temporary and ad hoc basis pending passing the