Union Of India & Ors. vs Sh.Nand Bihari Mall & Ors.
2011 Latest Caselaw 2004 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) Nos.21923-25/2005

%                        Date of Decision: 06.04.2011

Union of India & Ors.                                   ...... Petitioners

                      Through Mr.Kumar Rajesh Singh, Advocate.


                                Versus

Sh.Nand Bihari Mall & Ors.                            ...... Respondents

                      Through Mr.G.D.Bhandari, Advocate for
                              respondent Nos.1 & 2.


CORAM:
HON'BLE MR.JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.       Whether reporters of Local papers may            YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?           NO
3.       Whether the judgment should be                   NO
         reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners, Union of India & Ors. have challenged the order

dated 31st May, 2005 passed by Central Administrative Tribunal,

Principal Bench passed in O.A No.3114/2003 titled as "Nand Bihari

Mall & Anr. v. Union of India & Ors." quashing the seniority list dated

16th July, 2003 and order dated 27th November, 2003 rejecting the

representations made by respondent Nos.1 & 2 against the seniority list

dated 16th July, 2003.

2. Brief facts to comprehend the disputes are that the respondent

Nos.1 & 2 were recruited as apprentice electric charge man vide letters

dated 11th August, 1983 and 17th August, 1983. After resumption as

Apprentice (Elect.) charge man they were appointed to various

divisions/workshops for two years apprenticeship. After completion of

apprenticeship 44 candidates were called for suitability test by letter

dated 13th June, 1985 at Headquarter, Baroda House.

3. After suitability test at Headquarter, Baroda House, the

candidates were posted to various Divisions/Workshop and according

to the list prepared by the petitioners, respondent Nos.1 & 2 were

placed at serial No.1 & 3 and the candidates who were posted in Delhi

division were placed below them.

4. The respondent no.1 contended that they never failed any

departmental examination nor had ever been chargesheeted or

punished during the entire service and they were posted at Bikaner

division by letter dated 9th August, 1985.

5. The options were called for transfer and the respondent Nos.1 & 2

opted to remain at Bikaner division, however, they were transferred to

Delhi division from Bikaner division on administrative grounds with

effect from 1st April, 2003.

6. The petitioners had issued a seniority list dated 16th July, 2003.

According to respondents No.1 & 2, in the seniority list Sh.Arvind

Kumar Jain, Sh.Harpal Singh and Sh.Sukhpal who were juniors to

them in the merit list issued after completion of a training period of two

years in the seniority list dated 9th August, 1985 who were at the serial

Nos.4, 5 & 6, were shown seniors to respondent Nos.1 & 2 though in

the seniority list of 9th August, 1985 respondent Nos. 1 & 2 were at

serial Nos.1 & 3.

7. Relying on PS No.1843 it was contended by respondent Nos.1 & 2

that their inter-se seniority as direct recruits had to be maintained

irrespective of the divisions to which they belong by rearranging their

position in the combined seniority list formed for posts in order of merit

in the original panel or as obtained in final examination, where training

is provided and in terms of Rule 320 of I.R.E.M, Vol.I.

8. The respondent Nos.1 & 2 asserted that their placement under

the administrative control of DRM, Delhi Division Northern Railway,

with effect from 1st April, 2003 has adversely affected their seniority

resulting that their juniors in Bikaner division have been promoted and

the respondent Nos.1 & 2 have been bypassed. The respondent Nos.1 &

2 also asserted that respondent No.6 Sh. Kasi Ram, onwards were

appointed much later than respondent Nos.1 & 2 in 1980s and 1990s.

9. The respondent Nos.1 & 2 had made a representation against the

seniority list of Section Engineers GRD in the grade of Rs.6500-10500/-

(RSRP) working in Electrical General fixing their seniority on the post of

GM (P) letter No.220E/1132-21A (Rectt.) dated 9th August, 1985 and as

per serial No.1843 circular No.831-E/202-III (EVI) dated 22nd

November, 1962 which was however, declined by the petitioners by

their communication reference No.940-E/160/Elect.Misc./EIIA dated

27th November, 2003 contending that the seniority assigned taking into

account length of service in grade of Rs.6500-10500/- of respondent

Nos.1 & 2 is correct.

10. Aggrieved by the seniority list dated 16th July, 2003 and rejection

of their representation by order dated 27th November, 2003, respondent

Nos.1 & 2 filed an original application being O.A No.3114/2003 titled

"Nand Bihari Mall & Anr. v. Union of India & Ors." under Section 19 of

the Administrative Tribunals Act, 1985 praying inter-alia to quash order

dated 27th November, 2003 and to set aside the seniority list dated 16th

July, 2003 wherein the seniority of respondent Nos.1 & 2 had been

lowered by about 15 persons and their juniors in terms of merit list

prepared on completion of departmental training have been placed

above them.

11. Before the Tribunal the petition of the respondent nos.1 & 2 was

contested by the petitioners contending inter-alia that the respondent

Nos.1 & 2 have represented on the basis of instructions contained in PS

No.1843 to allow them seniority over Delhi division keeping their inter-

se seniority vis-à-vis their contemporaries who have been appointed

along with them. According to the respondents the representation was

referred to the headquarter office, New Delhi which has rejected the

representation by letter dated 27th November, 2003 on the ground that

the seniority assigned to respondent nos.1 & 2 taking into account their

length of service in grade of Rs.6500-10500/- is correct. It was further

asserted that due to formation of new zone with effect from 1st April,

2003 they were transferred to Delhi division on administrative grounds.

According to the petitioners PS No.1843 is not applicable to the

respondents.

12. The Tribunal after considering the pleas and contentions of the

petitioners and the respondent nos.1 & 2 allowed the original

applications of respondent Nos.1 & 2 and quashed the order dated 27th

November, 2003 and the seniority list dated 16th July, 2003 and

directed the petitioners to consider the claim of the respondents Nos.1

& 2 in regard to their seniority in terms of PS No.1843 and also to take

into consideration the fact that they have been transferred to Delhi

division on administrative grounds against their options to continue at

the Bikaner division.

13. The petitioners have challenged the order of the Tribunal

contending inter-alia that the PS No.1843 Circular No.831-E/202-III

(EVI) dated 22nd November, 1962 is not applicable to the respondents

Nos.1 & 2. It was contended that the Railway Board by letter dated 9th

July, 2002 had intimated all the Divisional General Managers for calling

of options from staff to serve in Headquarters of new Railway zones for

determination of seniority of staff on transfer to the new zones so that

in future there may not be any problem. It was also admitted by the

petitioners that any transfer to new zones after 1st October, 2002 was to

be treated as transfer on own request on acceptance of bottom

seniority. According to the petitioners the Tribunal has failed to

incorporate the PS No.1843 which categorically stipulated that inter-se

seniority of direct recruits irrespective of the division to which they

belong has to be maintained by rearranging their position in the

combined seniority list formed for posts controlled by Headquarters

office in order of merit in the original panel or as obtained in the final

examination where training is provided, before posting to working post.

14. This Court has heard the learned counsel for the parties in detail

and has perused the record of the Central Administrative Tribunal

produced along with the writ petition. The plea of the learned counsel

for the petitioners is that the case of respondent Nos.1 & 2 is not to be

governed by PS No.1843 but by paragraph No.140 IREM. PS No.1843

dated 22nd November, 1962 is as under:-

Serial No.1843 Circular No.831-E/202-III (EVI) dated 22.11.1962

Sub: Principle for considering seniority of staff of one or more than one categories holding posts controlled by Division for the purpose of holding selection.

A question as to how the seniority of staff holding posts controlled by the Division should be determined when they come up for selection for posts.

Controlled by Headquarter office, has been under consideration, the following instructions in this respect are issued for guidance.

(i) The seniority of staff coming up for a selection post from different units of seniority or different categories should be on the basis of length of service in the lower grade.

(ii) The length of service should be non-fortuitous and should include any period of such service whether over or under three months.

(iii) For combining the seniority list Interse seniority be kept intact and the bigger unit will form as the base for preparation of such a seniority list. The bigger unit for this purpose would be the unit from which the larger number of people in the grade are by virtue of seniority due to appear for selection.

Note:- (i) The subordinate offices while taking into account the length of service and giving that information to Headquarters office should indicate the reasons for a longer period of service held by a junior as a regular measure in a non-fortuitous vacancy or vacancies. That the length of service of the seniors. In the absence of any valid reasons. The portion of service of a junior can be held to be fortuitous and eliminated i.e Brought down to that of the senior particularly in the case of staff with long period of

service already rendered having accepted transfers on request with loss in seniority. But where the senior having been promoted after his junior had been promoted and was allowed his original seniority under the then existing rules or otherwise the service of the senior may have to be leveled up to that of the junior. Therefore, such cases would have to be decided on merits keeping in view the reasons under which the junior had put in a longer spell of service than his senior.

(ii) where the lower post is a selection post the interse seniority will be on the basis of the panel and the length of service would likewise be on the basis of service put in as a result of the selection from the date of accruement of the panel taking into account that the service of the junior. If appointed earlier, is brought down to that he would have obtained had he been appointed in his regular turn.

(iii) In case in which the lower post is one to which direct recruitment is also made. The interse seniority of the direct recruits. Irrespective of the Division to which they belong will be maintained by re-arranging their position in the combined seniority list formed for posts controlled by headquarters office in order of merit on the original panel or as obtained in the final examination where training is provided, before posting to working posts, this would mean giving the senior most the longest service if he has lesser service and the junior the service rendered by the senior and so on. This reshuffle would, be done in the headquarters office.

The above instructions will take effect from the date of issue. Cases dealt with differently need not be re-opened except that where selections have yet to be finalized, the seniority should be determined on the lines of these instructions."

15. The learned counsel for the petitioners, Mr.Singh has not been

able to controvert that respondent nos.1 & 2 were not juniors to other

respondents on the basis of merit list dated 9th August, 1985. Note (iii)

of PS No.1843 categorically stipulates that for combining seniority list

inter-se seniority has to be kept intact and the bigger unit will form as

the base for preparation of such a seniority list. Note (iii) of PS 1843

also reveals about inter-se seniority of direct recruits. It states that

irrespective of the division to which the direct recruits belong their

seniority will be maintained by rearranging their position in the

combined seniority list formed for posts controlled by headquarters

office in order of merit on the original panel or as obtained in the final

examination where training is provided. Note (iii) is as follows:-

"(iii) In cases in which the lower post is one to which direct recruitment is also made, the interse seniority of the direct recruits, irrespective of the Division to which they belong will be maintained by re-arranging their position in the combined seniority list formed for posts controlled by Headquarters Office in order of merit on the original panel or as obtained in the final examination where training is provided, before posting to working posts. This would mean giving the senior most the longest service if he has less service and the junior the service rendered by the senior and so on. This reshuffle would be done in the headquarters office."

16. This is not disputed that by communication dated 15th July, 2002

options were called from the employees to serve in headquarters of new

Railway zones. The respondent Nos.1 & 2 had exercised their option for

Bikaner division. This fact that the respondent nos.1 & 2 had exercised

their option for Bikaner division has not been denied by the learned

counsel for the petitioners, Mr.Singh. The options of the respondent

nos.1 & 2 was however, not accepted and against their option they were

transferred to Delhi division on administrative grounds and as such

their transfer to Delhi division could not be construed adversely against

them so as to affect their seniority in the Bikaner division. In the

circumstances, the inevitable inference is that the PS No.1843 has to be

made applicable in case of respondent Nos.1 & 2 and not any other

paragraph as has been contended by the learned counsel for the

petitioners. The learned counsel for the petitioners is unable to show

any reason as to how PS No. 1843 is not applicable to the respondents.

Consequently the seniority of respondent Nos.1 & 2 has to be reckoned

on the basis of the total length of their service and since they were not

transferred pursuant to their option for Delhi division but on account of

administrative grounds they could not be allocated bottom seniority in

Delhi division on their transfer in April, 2003. In the circumstances, the

respondent Nos.1 & 2 could not be denied the benefit of their service in

Bikaner division nor could their seniority be denied to them in the

combined seniority list for rearranging their position on the basis of

original panel as was formulated by the Railway Service Commission

after successful completion of apprenticeship training.

17. In the circumstances, the learned counsel for the petitioners is

unable to show any cogent grounds on the basis of which it can be held

that the respondent nos.1 & 2 shall not be entitled for their seniority at

Bikaner division as they were transferred from Bikaner division not on

account of the option exercised by them but on account of

administrative grounds and consequently the terms of PS No.1843

would be applicable to them.

18. In the circumstances petitioners are unable to show any such

illegality or such perversity in the order of the Tribunal which shall

require any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition in the

facts and circumstances is without any merit and it is, therefore,

dismissed. Parties are left to bear their own costs.

ANIL KUMAR, J.

April 06, 2011                                     VEENA BIRBAL, J.
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