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Rakesh Singh Kushwaha Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Ahmedabad
Decided On
Judge
Reported in(2007)(2)SLJ132CAT
AppellantRakesh Singh Kushwaha
RespondentUnion of India (Uoi) and ors.
Excerpt:
1. in this round of litigation the applicant challenges the draft seniority list of pwi gr. ii published vide letter dated 5.8.03. the draft seniority list gives a reference to earlier letter dated 24.2.03.2. the applicant was working as a pwm when he was promoted as pwi gr.iii against the rankers quota. the private respondents were directly recruited as pwi gr. iii. their inter se seniority has been subject matter of a number of litigations. the applicant submitted a representation dated 28.8.03 against the aforesaid seniority list stating as under: the promotion were given to si. no. 21 shri k.n. singh to si. no. 24 shri o.p. bhardwaj for pwi gr. ii not according to list of 1994. my name should be at si. no. 21 instead of si. no. 26 and all benefits should be given in favour of me.....
Judgment:
1. In this round of litigation the applicant challenges the draft seniority list of PWI Gr. II published vide letter dated 5.8.03. The draft seniority list gives a reference to earlier letter dated 24.2.03.

2. The applicant was working as a PWM when he was promoted as PWI Gr.

III against the rankers quota. The private respondents were directly recruited as PWI Gr. III. Their inter se seniority has been subject matter of a number of litigations. The applicant submitted a representation dated 28.8.03 against the aforesaid seniority list stating as under: The promotion were given to SI. No. 21 Shri K.N. Singh to SI. No. 24 Shri O.P. Bhardwaj for PWI Gr. II not according to list of 1994. My name should be at SI. No. 21 instead of SI. No. 26 and all benefits should be given in favour of me according to previous list.

3. The official respondents in their reply have raised the preliminary objection that the OA is filed on 11.2.05 i.e., after more than one year without any application for condonation of delay. The OA is accordingly time barred. The respondent Railway Administration had issued the order dated 24.2.03 stating that the seniority list dated 5.12-94 is good and that the seniority list dated 20.1.97 is withdrawn.

The direct recruits were promoted as PWI Gr. II in 1998, while the applicant was promoted only in 2000. He has also not joined one Mukesh Rai, a promotee PWI Gr. Ill, senior to the applicant as a party. The O.A. is bad for non-joinder of necessary party. His representations are without merit.

4. The private respondents have contended that decision in O.A.424/2000 has been challenged by filing Special Civil Application No.16058/04 and the same is pending. The decision in the said O.A. cannot be treated as a binding decision. They are direct recruits and after successful completion of training reported at the residence of Sr. DEN (Headquarters) on 3.4.94 and from 4.4.94 muster is being maintained by OS (Engg.). The pay was also drawn with effect from 3.4.94. The names of promotee rankers have been included in the promotion order without declaring the panel. They have drawn salary as PWM upto 6.4.94. The panel could not have been approved on 16.4.94 retrospectively with effect from 5.4.94. Promotional training for these employees is a must as per Para 1503 of the Permanent Way Manual. These facts had been suppressed by the rankers in earlier rounds of litigation.

5. The Tribunal while issuing notice had directed respondents not to operate the panel of selected candidates to give appointment to PWI Gr.

I. The O.A. was also placed on sine die list vide order dated 17.8.2005 in view of the stay granted by the Hon'ble High Court in S.C. As arising out of O.A. 424/2000 and O.A. 230/03. In view of the orders dated 15.6.06 of the Hon'ble High Court vacating they stay and placing the S.C.As. in since die, the applicant moved a M.A. for recalling the order of sine die and the respondent Railway Administration moved a M.A. for vacating the interim relief.

7. It would be appropriate to refer to the decisions in the previous litigations for proper appreciation of the matter. The rankers had preferred O.A. 346/98 against the seniority list dated 20.1.97 changing their position in the earlier seniority list of 1994. The names of ranker promotees appears at SI. No. 125 to 138, while those of direct recruits appeared at SI. No. 139 to 142. The seniority list dated 20.1.97 rotated them Serial 35 to 44 refers and other promotees kept at bottom. The direct recruits were represented by their Counsel. The Tribunal decided as under: After hearing the parties, we feel that the O.A. can be disposed off at this stage with a direction to the respondents to take into account the representation of the applicants against the alteration of their position in the seniority list published on 20.1.97 and finalise the seniority list within 8 weeks of the receipt of the order.

Mr. Shevde states that there is administrative need to effect promotion to the higher grade. Any promotion to the higher grade, if made, shall be made on the basis of the earlier seniority list dated 5.12.94, as at Annexure A-5 and such promotion shall be purely onad hoc basis subject to the decision taken by the respondents on the representations made by the applicants.

8. The respondents thereafter issued an order dated 17.7.98/6.8.98 stating therein that there was no merit in the representation and that the seniority list notified on 20.1.97 requires no modification at all.

The said order was challenged by the rankers vide O.A. 592/98. The direct recruits were represented. Para 5 and 6 of the decision in O.A.592/98 are as under: 5. Mr. Malhotra submits that the applicants had been placed in the provisional panel as is seen by the letter dated 16.4.94 as at Annexure A-4. He contends that there is nothing to show that the applicants had been given regular promotion after due process and this factor has to be taken into account while determining the seniority.

6. We have carefully considered the rival contentions. In a situation where the promotees and direct recruits come together in one seniority unit. Para 302 lays down the method of determining the inter se seniority between the two categories. This para applies in respect of categories of posts partially filled by direct recruitment and partially filled by promotion as in the present case. 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 recruits. This para says that when the dates of entry into the grade of promoted Railway servants and direct recruits are the same, they should be put in alternate positions, the promotees being senior to the Direct Recruits maintaining inter se seniority.

The para goes on to say that the inter se seniority of promotees and inter se seniority of direct recruits among themselves should be maintained and should not be disturbed. So far as the impugned order is concerned, it only makes a statement that as the posting of rankers as well as direct recruits were issued together on the same day, their seniority is assigned as per Para 302 of IREM and the promoted Railway servants and direct recruits are placed in alternate position. It does not spell out as what is the date on which the rankers were given regular promotion after due process and also the date on which the direct recruits joined the working post.

Mr. Handa has contended that he has evidence to show that the direct recruits joined the working post much later. The date of issue of orders by itself can not be the sole criterion for determining the seniority as per Para 302 of IREM. It would appear that the question of proper application of the provisions of Para 302 of IREM has not been gone into by the Railways after due application of mind. We accordingly direct them to re-examine the same in accordance with the relevant rules namely Para 302 of IREM and the connected rules and instructions on the subject and communicate the decision in this regard through a speaking order to the applicant and also to the private respondents. If on basis of such re-examination, any change in the seniority list already finalised becomes necessary, the Railways shall take further appropriate steps such as calling for fresh objections etc. This entire exercise shall be completed within three months from the date of receipt of a copy of this order. To facilitate this process we quash the letter dated 17.7.98/6.8.98 as at Annexure-A.9. Pursuant to these directions the respondents issued the order dated 23.7.99. They held that no change in the seniority list notified on 20.1.97 is necessary. The said order was challenged by the rankers by filing O.A. 424/2000. As the private respondents had not appeared, the O.A. proceeded ex-parte against them. The Tribunal noted that the O.A.was in continuation of earlier proceedings. It noted that panel was approved retrospectively w.e.f. 5.4.94 and promotion orders issued on 6.4.94 and the direct recruits assumed charge from 7.4.94 on wards as per the facts noted in 23.7.99 order. It accordingly quashed and set aside the impugned order dated 23.7.99 as the same was not in accordance with Para 302 of IREM. It directed the respondents to revise the seniority list of PWI Gr. III in the light of these observations.

10. The direct recruits thereafter filed O.A. 506/2002 seeking the relief that the directions given in O.A. 424/2000 be complied with at the earliest. The said O.A. was accordingly disposed off. The respondents thereafter issued the draft seniority list dated 24.2.2003.

The direct recruits preferred O.A. 230/03 against the aforesaid seniority list. The said O.A. was disposed off vide order dated 8.3.2004. The Tribunal noted that the seniority list has been finalised vide order dated 26.6.2003. A copy of which has also brought on record by the respondents Railway Administration. The Tribunal held: 5. Without entering the controversy as to whether an objection has been filed against the draft seniority list dated 24.2.03 or not, we find that the said list has been finalised by order dated 26.6.2003.

A copy of the same has been brought on record by the respondents, Railway Administration. They have however not indicated as to whether the applicant was heard and whether formal reply had been sent to them earlier. As the seniority list has been finalised, the present O.A. has become infructuous. The O.A. is accordingly dismissed. We however give liberty to the applicant to take such further action as may be advised. No costs.

11. The direct recruits thereafter preferred Review Application No.61/04 with M.A. 463/04 in O.A. 424/2000. The Tribunal noted the contents of Rule 16 of the CAT (Procedure) Rules, 1987 and dismissed the review application. Order passed in O.A. 424/ 2000 were challenged before the Hon'ble High Court and the Hon'ble High Court disposed off the same by the following order: Rule. Matter is taken up for final hearing, being short matter, with consent of learned Counsel for the parties.

While deciding Original Application No. 424 of 2000 on 25.1.2002, Central Administrative Tribunal proceeded exparte against respondents-4 and 5 on the ground that they did not come forward to contest the application in the context of notice by Registered Post having not been received back in one month's time. With a view to check this assumption, learned Counsel for the respondents-1 and 2 was asked to confirm whether registered Post had been received by the department for service on respondents-4 and 5. It is reported that Registered Post A.D notice was not received. Consequently, claim of petitioners that they did not receive the notice, therefore, could not appear in the Court is confirmed. Even otherwise, they should have been served directly instead of through the Department. Anyway, respondents-4 and 5 have not been heard when Original Application No. 424 of 2000 was decided. Consequently, order dated 25.1.2002 is set aside. Parties will appear before CAT on 13.4.2005. Parties will file pleadings before this date. It shall not be necessary for CAT to serve parties again since we have fixed the date. Parties shall co-operate with CAT for early disposal of the case, which we hope, will be decided by CAT preferably before 15.5.2005.

Order of stay passed by this Court will continue to operate till 13.4.2005.

12. The Tribunal thereafter re-heard the O.A. 424/2000. The Tribunal noted the contents of Rule 227 and Rule 302. It noted that the criterion for determination of the seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit as per provisions of Para 302. We noted in Para 7 of the judgment that the departmental file shows that the panel was approved on 5.4.94 though the actual orders have issued on 16.4.94. We noted in Para 13 the factual position that promotion orders were issued on 6.4.94 and that the direct recruits joined from 7.4.94 is not disputed.

We noted that there was no challenge to order dated 20.1.97 and subsequent order dated 23.7.99 on the ground of direct recruits having not been shown enbloc senior to the rankers. We noted that the private respondents have filed O.A. 506/2002 in September 2002 and when the same was decided at the notice stage they should have been aware of the decision of O.A. 424/03. The review application was however filed in 2004. The Tribunal noted the decision in K.R. Mugdals case that matter relating to seniority should not be disturbed at least after 3 or 4 years. It allowed the O.A. 424/2000.

13. These direct recruits has thereafter preferred SCA 16005/05, 16006/05,16007/05 against the orders passed in O.A. 424/2000 and SCA 7533,7921 and 7922 of 2005 against the orders passed in O.A. 230/03.

The Hon'ble High Court has initially granted stay. The Hon'ble High Court passed the following order on 15.6.2006: In the first round at the request of the learned Counsel it was passed over. After completion of time when it was called out again.

Mr. Parmar for Mr. Pathak had prayed for time. The petitioners are enjoying interim relief and it is the duty of the learned Counsel for the petitioners to remain present when the matters were called out. Once the Advocates can be accommodated, but not time and again.

In absence of learned Counsel Mr. Pathak for the petitioner, Mr.

Parmar was reluctant to go on with the matter. Therefore, we have no other option but to adjourn the matters. However, while adjourning the matters sine die, the interim relief ordered in favour of the petitioners have to be vacated and accordingly, it is vacated, All these matters are adjourned sine die.

14. Mr. Pathak, learned Counsel for the direct recruits have stated that he has filed a MCA for restoring all the above Special C.A.However, details of MCA number etc., and the orders passed, if any, on the MCA are not brought on record.

15. We first note that the draft seniority list published on 24.2.2003 shows that in view of the decision of the Tribunal in O.A. 592/98 and O.A. 424/2000 the seniority list dated 20.1.97 is cancelled and revised seniority list bases on seniority notified on 5.12.1994. The relevant part of the order is as under: In view of the decision of Hon'ble CAT/ADI, their seniority notified vide No. E/ E/1030/2/1 Vol.-VI dated 20.1.97 is cancelled and revised seniority bases on seniority notified on 5.12.94 vide No. E/E/1030/2/1 Vol.-V dated 5.12.94 is stands good and notified for information to the employees concerned. The Court's judgment is implemented.

The representation if any received from them against their seniority may be obtained and sent to this office within one month through proper channel in time. Representation received after one month will not be entertained.

The respondents Railway Administration in their notification dated 20.6.2003 have stated as under: Please refer to this office letter cited above where in seniority list of PWI.Gr. I scale Rs. 5000/8000 (RP) has been finalised. In this connection the below mentioned lines may be added, as per Railway Board's letter No. E(NG)I/97/SR-6/3 Vol.-III dated 21.11.02 received under GM(E) CCG 's letter No. EP/220/0 Vol. IV dated 25/27.11.2002 (P.S. No. 224/02) circulated vide DRM (E) BRC No. EP/ 220/0 dated 5.12.2002 "subject to final out come of writ petition pending before the High Court/Supreme Court.

16. They have thereafter issued the draft seniority list dated 5.8.2003 in PWI Gr. II inviting objections within a period of one month and stating that representation received after one month will not be entertained.

The applicant in this O.A. submitted his representation dated 28.8.03 referred to in Para 2 above.

To direct the respondents to revise the seniority list dated 5.8.2003 (i. e., Annexure-A) and interpolating the name of the applicant at Sr. No. 20A between Sr. No. 20 and Sr. No. 21 i.e., above the respondent No. 3 to 5 (i.e., private respondents) with all other censequential benefits.

18. The official respondents have catagorically stated in Para 8 of the reply that the private respondent Nos. 3 to 5 were promoted as PWI Gr.II in 1998 i.e., prior to the promotion of the applicant on 27.12.2000. The applicant is accordingly junior in the grade of PWI Gr.II.19. The official respondents have subsequently brought on record the selection Notification dated 5.2.05 for 11 posts of PWI Gr.I. The name of Mukesh Rai, the three private respondents and the applicant appears at SI. 11 to 15. The names of S.K. Mandal and G. Ichchaguttu, which appears at SI. No. 27,28 of the seniority list just below the applicant does not appear in this list either in list A or list B. The name of Rakesh Kumar Sharma appears. He is below all these persons in the seniority list. O,A. 348/98 was decided on 17.6.98 and directions regarding ad hoc promotion were given. The subsequent seniority list is published on 17.7.98/6.8.98. It was challenged in O.A. 592/98 on 28.8.98. The Tribunal granted the following interim relief at the time of issuance of notice.

The respondents are restrained from issuing promotion orders if they have not already issued such orders. If such orders are issued they will be subject to outcome of the O.A..

The respondents have produced a copy of the promotion order dated 24/25.08.98. It promotes persons to PWI Gr.I and PWI Gr. II. The order had the condition that the promotion to PWI Gr.I is subject to outcome of O.A. 307/98. The said O.A. had been filed challenging the selection to PWI Gr.I on the ground of illegality in selection. The said O.A. was disposed off on 25.11.98 with a direction to treat the O.A. as a representation and to decide the same within three weeks. The applicants were not to be reverted till that time.

The Tribunal quashed the seniority list dated 17.7.98/6.8.98. It is thereafter that the order dated 23.7.99 was issued. While issuing notice on 10.7.2000 in this O.A. we had observed as under: Heard Ms. S.S. Chaturvedi, Counsel for the applicant. Issue notice on O.A. and also on interim relief returnable on 21.7.2000. As ad interim relief, all promotions in terms of seniority list of 21.1.97 shall be subject to result of this O.A.20. In terms of the Tribunal's order in O.A. 424/2000 the respondents have published the revised seniority list dated 24.2.2003 restoring the 1994 position and cancelling the 1997 seniority list. This order refers to judgment in O.A. 592/98 and 424/2000. The said list was finally published on 26.6.2003. After the final publication of aforesaid list they were required to reconsider the promotion given to PWI Gr.II in terms of the January 1997 seniority list as per these interim orders in O.A. 592/98 and 424/2000.

21. The draft seniority list shows that 7 of the rankers from B. J.Mewada to Mukesh Rai are SI. No. 14 to 20 and the remaining four rankers are at SI. No. 26 to 29, the applicant being at SI. No. 26.

Though the rankers at SI. No. 18 to 20 are promoted in 1999, they have been shown as senior to direct recruits promoted in 1998. We note that two of these three persons are amongst the 6 applicants of O.A. 592/98.

The third person is Mukesh Rai. All these three persons are junior to direct recruits in the 1997 seniority list.

22. As regards the preliminary question of limitation raised by respondent Railway Administration we find that the O.A. is moved within 18 months of filing of representation, which was not decided, and hence is in time. It is also seen that the promotion granted as per the 1997 seniority list has not been recast before publishing this draft seniority list.

23. Another preliminary objection is not joining one Mukesh Rai as a party. The said Mukesh Rai is a promotee and has been assigned seniority above the direct recruits. This plea accordingly has also to be rejected.

24. Mr. Pathak, learned Counsel for the direct recruits, private respondents, has argued that the respondents have obtained the initial orders in O.A. 424/2000 by misrepresentation/suppression of material facts. These facts have not been fully appreciated when the matter was again heard by the Tribunal.

25. We first note that all the promotees have been shown senior to the direct recruits in the seniority list of PWI Gr.III published on 5.11.94. Nothing has been brought on record by either the official or private respondents to show that this seniority list was challenged.

The 1997 seniority list has rotated the promotees and direct recruits.

Only the promotees challenge it. The seniority list itself is not assigning any reason as to why the earlier seniority was changed.

Neither the private nor official respondents filed any reply. The Tribunal disposed off the 0. A. with a direction to consider the representation of promotees. It was rejected and the same inter se seniority list is maintained. Again only the promotees challenge this order of 17.7/6.8.98. The private respondents and some of the rankers are promoted by order dated 25.8.98. It was contended by the private respondents in this O.A. that there is nothing to show that promotee PWI Gr.III have been given promotion after following due procedure. The Tribunal explained the law and remitted the matter. The Railway Administration issued the July 1999 order maintaining the 1997 seniority list. This order is also challenged only by the promotees.

The Tribunal decided O.A. 424/2000 holding that the law laid down in the earlier round of litigation was not properly applied.

26. The direct recruits move O.A. 506/02 for implementation of these very orders. The respondents then pass the orders dated 24.2.03 restoring the 1994 inter se seniority. This draft seniority list is challenged in O.A 230/03 and the same is disposed off as infructuous as final seniority list is already published. R.A. 61/04 in O.A. 424/2000 is dismissed. The orders passed on remand are referred to in Para 12 above.

27. We have summarised in Para 25 above that the 1994 seniority list showed the rankers as enbloc senior to the direct recruits. The 1997 seniority list and the 1998, 1999 orders upholding the validity of January 1997 seniority list rotated the direct recruits and promotees on the principle that the date of promotion of rankers and date of appointment of direct recruits is the same, A totally new case had subsequently been put forward that all the direct recruits are enbloc senior to rankers for the reasons advanced. Para 302 of IREM makes it clear that the seniority of direct recruit is reckoned from the date of joining of working post. Can reporting to DEN for posting be equated with joining the working post. Para 103(iv) of IREM defines and apprentice or training. It provides that on successful completion of training he will be eligible for appointment on probation in substantive vacancy but no guarantee is given. Para 104 states that in case of apprentices or trainees appointed to a working post the probationary period commences on the date of such appointment. This Tribunal in O.A. 592/98 had quashed the 1997 seniority list on the ground that it does not spell out the date on which rankers were given regular promotion after due process and when the direct recruits joined the working post, A common order dated 6.4.94 had been issued promoting the rankers and posting the direct recruits. The direct recruits have joined the working posts subsequent to this order. The direct recruits private respondents do not appear to have filed any O.A. for quashing this order dated 6.4.94 as far as the rankers are concerned.M/s. Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur and Ors.

The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its on facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time: Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches.B. V. Sivaiah and Ors. v. K.Addanki Babu and Ors.

24. The learned Counsel for the appellants in these appeals has submitted that now the appellants do not challenge the promotions that were made on 3.5.1988 since they have also been promoted as Area/Senior Managers and they are only raising the question regarding restoration of the inter se seniority of the appellants and the promoted officers on the post of Area/ Senior Manager. We do not find any merit in this contention. Since there was no challenge to the promotions made on 3.5.1988 till 1993, the promoted officers had been working for nearly five years by then and had acquired right to seniority on the basis of such promotion and they cannot be deprived of the said right. The High Court, in our opinion, has rightly held that the belated challenge to the promotions made on 3.5.1988 raised by the appellants in these appeals cannot be entertained. Civil Appeals No. 3804-3808 of 1996 are, therefore, liable to be dismissed.Mohd. Siddiq Ali v. High Court of A.P. and Ors. 2006 SCC (L&S) 745 had applied for the post of a Judicial Officer in response to a notification issued by the High Court of Andhra Pradesh on 23.10.1996. On the basis of the merit list some appointments made on 7.4.98. The appellant preferred a writ petition before the High Court challenging the selection/appointment of some women candidates, and persons belonging to SC/ST. The writ petition was dismissed in limine.

Another writ petition was also filed challenging the appointment of women candidates, the same was also dismissed. The Apex Court was considering both these appeal in the aforesaid cases. The Apex Court held: 9. In Civil Appeal No. 3006 of 2001, the writ petition was dismissed by the High Court on the ground that though the notification had been issued on 23.10.1996, but the writ petition wherein reservation in favour of women was challenged was filed in November 1998 and, therefore, the writ petition was highly belated. Learned Counsel for the appellant has submitted that the writ petition should not have been dismissed on the ground of laches. In support of his submission the learned Counsel has placed reliance on Ramchandra Shankar Deodhar v. State of Mahrashtra wherein it has been held that the Rule which says that a Court may not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case. On the strength of the aforesaid authority it is submitted that the High Court has erred in dismissing the writ petition on the ground of laches. We are unable to accept the contention raised. In the authority cited, the dispute related pointer seniority of Mamlatdars/Tahsildars in the newly constituted State of Bombay by virtue of the provisions of the States Reorganisation Act, 1956. The inter se seniority of persons holding the same rank has a great bearing at the stage of promotion to a higher post and in such a situation it was held that in the facts and circumstances of the case, the writ petition could not be dismissed on the ground of laches. In the present case the persons selected had already joined as District Munsiffs long back and the challenge has been raised to their selection after the decision had been rendered by the A.P. High Court in Mohd. Iqbal Ahmed v. High Court of A.P. on 31.8.1998. We, therefore, do not find any infirmity in the order passed by the High Court.

31. The respondent No. 1 in Prafulla Kumar Swain v. P.C. Misra and Ors.

1993 Suppl. (3) SCC 181, was a direct recruits to Orissa Forest Service Class II. After completion of 2 years of training he was appointed as a Assistant Conservator of Forest. He claimed seniority from the year 1979 i.e., the year of recruitment as against 1981 when he was actually appointed. The Tribunal held that the first respondent was entitled for appointment as a direct recruit of 1979 and the seniority was to be fixed on the basis of his being a direct recruit of 1979 within the quota for direct recruits. The promotees preferred the instant SLP. The Three Judges Bench of the Apex Court held: 28. Regulation 12 is important for our purposes. Under that regulation the finally selected candidates are required to undergo two years training. During the period of pendency a consolidated monthly allowance of Rs. 150 as stipend is paid. Under Clause (b) of that Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. We must give full meaning and effect to this Regulation.

29. At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistment, acceptance.

Selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office.

30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation.

Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment.R.S. Ajara v. State of Gujarat amongst others held: 12. The learned Judges on the Division Bench of the High Court have referred to the decision in Prafulla Kumar Swain and have observed that this Court did not base its conclusion only on Regulation 12(c) and that the absence of a provision similar to Regulation 12(c) in the 1981 Rules does not make any difference. We find it difficult to agree with the said view of the High Court. In Prafulla Kumar Swain it has been observed: (SCC p. 190, Paras 28 and 30) ...Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. We must give full meaning and effect to this Regulation.

...Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12 (c) is very clear that the period of training is not to be reckoned as Government service.

13. It would thus appear that in view of the express provision contained in Regulation 12(c) it was held that the period of training could not be reckoned for the purpose of seniority. There is no provision similar to Regulation 12(c) in the 1981 Rules. In the absence of a provision similar to Regulation 12(c) in the 1981 Rules it is not possible to say that the 1981 Rules postulate that the seniority of directly recruited Assistant Conservator of Forests must be counted only from the date of their appointment and the period of training undergone by them prior to the appointment must be ignored. The learned Judges on the Division Bench of the High Court referred to Rules 6, 7 and 8 of the 1981 Rules and have observed that the statutory position emanating from the said Rules is that the appointment of a direct recruit takes place only after his successful completion of training course. We are unable to construe these rules to mean that seniority should be counted from the date of appointment and the period of training should be excluded. We must, therefore, proceed on the basis that the 1981 Rules do not lay down any principle in the matter of fixation of seniority of the Assistant Conservator of Forests who are recruited under the provisions of the said Rules. Since the Rules are silent it was open to the State Government to lay down the principle for fixation of seniority by an administrative order and the resolution dated 31.1.1992 cannot be held to be bad on the ground that it is inconsistent with the 1981 Rules.Kuttiyappan v. Union of India and Ors. 1997( 1) SLJ 67 (SC) : 1997 SCC (L&S) 83 was a promotee who joined the promotional post in October 1990. The process of selection having been initiated in 1988. The direct recruits were appointed to the post in August 1990. The Tribunal rejected the claim for seniority. The Apex Court held: 4. A reading of these Rules would clearly indicate that the process of selection bears no relevance. What is material in determination of the inter se seniority between regularly promoted in service candidates and those selected by direct recruitment during the process of selection is that in the case of the former the seniority starts from the date on which they joined the working post after completion of the process while in the case of direct recruits their inter se seniority would start from the date of their entry into the grade. Therefore, as regards the direct recruits, the date of first entry and joining the post is the criteria, in the case of the promotees it would be the date on which they start working in the post after completion of the process. It is not in dispute that training is one of the conditions for completion of the process.

Until the training is completed, they cannot work on regular basis in the promotional post.Union of India v. Afroz Ahmed and Ors. 2006(2) ATJ 565 were direct recruits. The General Manager, Northern Railway had decided that the training period of 24 months was not to be counted for the purpose of seniority or for the purpose of benefit under ACP Scheme. The representations made by direct recruits were rejected. They filed O.A. that the seniority was to be reckoned from the date they were appointed as apprentice and not from the date they were appointed after completing 24 months of training. The Tribunal allowed the O.A.relying on the decision of the Apex Court in Kuttiyappan (supra). The Delhi High Court held: 10. The said provision provides that seniority amongst incumbents of a post in a grade was/is determined by the date of appointment in that grade. In cases, where appointment was/is partially by promotion and partially by direct recruitment, inter se seniority in case of promotees shall be date of regular promotion after due process and in case of direct recruits seniority inter se depends upon the date of joining the work after due process. Note to Para 302 states that in case training period of a direct recruit was/is curtailed due to exigencies of service, the date of joining the working post of a direct recruit would nevertheless be the date on which the direct recruit would have/had joined the working post after completion of prescribed period of training.

11. Para 302 and the note clearly states that seniority in the case of a direct recruit is/was to be counted from his date of joining and his date of joining is/was the date when a direct joining recruit joins/joined a working post after successful completion of the prescribed period of training. If we read the said rule along with the Apprenticeship Agreement, the relevant clauses of which have been reproduced above, in our opinion the ratio of the decision of the Supreme Court in the case of Prafulla Kumar Swain (supra) would be applicable in the present case. The respondents were deemed to be inducted in service w.e.f,, successful completion of the 24 months apprenticeship period and not from the date of initial selection or appointment as apprentice. Therefore, we feel that Id.

Tribunal has erred in its decision, Kuttiyappan 's case (supra) relied upon by the Id. Tribunal not support the stand of the respondents. In the said case, Supreme Court had examined both Paras 302 and 306 and pointed out that they operated in different situations. However, while interpreting Para 302 it was held that if training was one of the conditions of the selection process, then unless training was complete, appointment did not take place on regular basis. This is in consonance with the view taken by us.

35. This Tribunal in its order dated 10.5.05 in O.A. 424/2000 quashed the seniority list dated January 1997 and restored 1994 seniority list.

The orders were challenged before the Hon'ble High Court and an interim stay had been granted. The said interim stay was subsequently vacated and the matter kept in sins die. Mr. Pathak states that a Misc. C. A has been moved for recalling the order. Even though the. earlier order acts as a resjudicata, we have reconsidered the matter. The discussion in Para 27 would show that the direct recruits never challenged the 1994 seniority list. They also did not Challenge subsequent orders in 1998 and 1999 rejecting the representations of the promotees and holding that the seniority list of 1997 is in order. We have noted in our order dated 10.5.05 the fact that a promotion order was issued on 6,4.2004 was not challenged. The direct recruits joined the post from 7.4.2005 onwards as per the July 1999 order. Paras 103 and 104 of the IREM and the decisions referred to in paras 31 to 34 would make it clear that reporting to DEN cannot be equated with joining the working post. It is not disputed that the direct recruits have joined from 7.4.1996.

36. Another contention raised by the direct recruits is that rankers were promoted without their name having been brought on panel. We have noted in Para 12 above that the Tribunal had seen the promotion file and had noted that panel was approved on 5.4.98. It appears that formal orders were issued on 16.4.98. We note that in the context of issuing charge sheet for invoking the provisions relating to sealed cover proceedings the Apex Court in DDA v. H.C. Khurana, has held that date of decision on file is relevant.

37. It was also contended by Mr. Pathak that the promotion was improper as they had not cleared the promotional course. We note that the promotion order dated 6.4.94 and seniority list of 1994 were never challenged by these direct recruits. It is a settled position of law that matters relating to seniority has to be given quietus after some point of time.

38. In view of these independent consideration we hold that the earlier decision in O.A. 424/00 has been rightly taken.

39. Though the Tribunal had permitted that respondents to grant promotion as per the 1994 seniority list, the respondents, however, finalised the seniority as per the 1997 seniority list and granted promotion to PWI Gr.II. The Tribunal had granted interim relief that promotions will be subject to the decision of the O.A. Once the seniority list of PWI Gr.III was recast the respondents were required to reconsider the promotions granted in PWI Gr.II and to prepare, the seniority list of PWI Gr. II accordingly". The draft seniority list of PWI Gr. II has to be finalised keeping this principle in mind. In case it is finalised it is quashed to this extent. This exercise be completed within three months.

40. MA 417/05 had been moved by the respondent Railway Administration seeking permission to implement the panel prepared after due process of selection. It is stated that the applicant as well as private respondents are likely to get promoted. It was further stated that PWI Gr.I is a safety category post and the work is suffering.

The names of selected candidates should be arranged in order of seniority but those securing a total of more than 80% marks will be classed as outstanding and placed in the panel appropriately in order of their seniority allowing them to supersede not more than 50% of total field of eligibility.

42. It is clear from the above discussions that pending finalisation of seniority list of PWI Gr. II the promotions can be granted only on ad hoc basis.

43. Summing up we hold that the decision of respondents to finalise the seniority of PWI Gr. III as per the 1994 seniority list is valid in law. The respondents should review the promotions granted to PWI Gr. II in the past and grant promotions as per the new seniority list. This exercise has to be completed within three months. Whether they should create supernumerary posts to accommodate the juniors from 1998 or promote persons on the basis of seniority granting promotion to direct recruits from a later date when the vacancies become available is left to the Railway Administration. Pending completion of this exercise they can grant ad hoc promotion to PWI Gr.I subject to suitable terms and conditions. The O.A. is disposed off with these directions. M.A.'s also stand disposed off.


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