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R.N. Dhawan Vs. Union of India, Etc. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 59 of 1980
Judge
Reported in20(1981)DLT11; 1981LabIC507; 1981(2)SLJ398(Delhi)
ActsIndian Railways Establishment Code - Rule 2011
AppellantR.N. Dhawan
RespondentUnion of India, Etc.
Advocates: S.K. Dholakia,; P.K. Jaitely,; M.L. Bhargav and;
Cases Referred(Local Govt. Board v. Alridge
Excerpt:
.....office at new delhi. the petitioner exercised the option of joining the headquarters but his request of transfer was not accepted. subsequently, after the retrospective regularization of his services, the petitioner's request for transfer was accepted but he was not relieved. one 'a', who was similarly placed and whose request for transfer was accepted after the petitioner's request, was relieved and allowed to proceed on transfer. ultimately, the petitioner was relieved but was given bottom 'seniority' at the headquarters. the petitioner claimed seniority with effect from the date 'a' joined headquarters on transfer. the railway board up-held the petitioner's plea and granted him his rightful place in the seniority list but the board's decision was assailed by a writ petition by..........joined the headquarters on transfer. may 16, 1959 is a crucial date in this litigation and on this date dhawan rests his case. he says that it was clearly a case of mistake and that instead of arjan dev he ought to have been transferred because the general manager had accepted his request on january 8. 1958. arjan dev's request was accepted in april 1959 and thereforee if anyone was to be relieved from the bikaner division it was he who was entitled to be transferred in view of the fact that his request had been accepted earlier in point of time. this was the foundation of his claim for assignment of seniority as on may 16, 1959.(8) the matter of seniority was referred to the railway board (the board). the board after a careful enquiry came to the conclusion that dhawan's contention was.....
Judgment:

Avadh Behari Rohatg, J.

(1) This appeal involves the question of seniority of the appellant R. N. Dhawan. Dhawan joined the erstwhile Bikaner Railway as a lower division clerk on December 27, 1951. In 1952 Bikaner Railway was integrated with the Northern Railway. Soon after integration the General Manager Northern Railway, gave option to the staff to join the headquarters office at Mew Delhi if they so wished. Dhawan exercised the option of joining the headquarters in 1952. But his request of transfer was not accepted.

(2) On July 27. 1956 his services were regularised retrospectively. that is to say, with effect from December 27, 1951. After regularisation he again made a request for transfer on March 20, 1957. He repeated this request on October 31, 1957. The General Manager on January 8, 1958 accepted the request of Dhawan for transfer in exercise of his powers under Rule 2011 of the Indian Railways Establishment Code Volume II. This rule which gives power to the General Manager to transfer is a statutory rule.

(3) Though the request for transfer was accepted the Divisional Superintendent of Bikaner Division wrote to the General Manager on January 23, 1958 that he could not spare Dhawan as he was short of staff. The result was that Dhawan was not relieved though the order of his transfer was in his hands.

(4) One Arjan Dev working at Bikaner Division similarly applied for transfer to the headquarters at New Delhi on November 28, 1958. The General Manager accepted his request on April 16, 1959, He was relieved from Bikaner Division on May 15, 1959. He Joined the headquarters on .May 16, 1959. Though Dhawan's request for transfer was accepted by the General Manager on January, 8, 1958 he was not relieved for administrative reasons. On the contrary Arjan Dev, whose request was accepted on April 16, 1959, was relieved immediately and was able to come to the headquarters on transfer on May 16,1959.

(5) Dhawan was obviously aggrieved by this invidious treatment. He made a representation that while others were being transferred he was not allowed to go. He went on reminding the authorities that his request for transfer had been accepted and that he should also be relieved. These representations and reminders he made throughout 1959, 1960. 1961 and 1962. At last he was relieved from Bikaner Division on March 7, 1963. He joined the headquarters on March 29, 1963.

(6) When Dhawan arrived at the headquarters he was given 'bottom seniority'. He was placed lowest in the seniority list published in 1969. This was on the basis that as he was transferred in 1963 a. circular of 1961 applied to him which in such like cases said that the transferred employee will be placed at the bottom of the list.

(7) Against this decision of 'bottom seniority' Dhawan represented. The Railway Union espoused his case. Dhawan's case was that his seniority ought to be fixed with reference to May, 16, 1959, the date when Arjan Dev joined the headquarters on transfer. May 16, 1959 is a crucial date in this litigation and on this date Dhawan rests his case. He says that it was clearly a case of mistake and that instead of Arjan Dev he ought to have been transferred because the General Manager had accepted his request on January 8. 1958. Arjan Dev's request was accepted in April 1959 and thereforee if anyone was to be relieved from the Bikaner Division it was he who was entitled to be transferred in view of the fact that his request had been accepted earlier in point of time. This was the foundation of his claim for assignment of seniority as on May 16, 1959.

(8) The matter of seniority was referred to the Railway Board (the Board). The Board after a careful enquiry came to the conclusion that Dhawan's contention was correct. Before reaching this conclusion they asked Bikaner Division as to how and why Dhawan was not relieved and how was it that Arjan Dev was relieved earlier than Dhawan. In their letter dated April 16. 1974 the Northern Railway explained to the Board that the mistake had occurred because they did not maintain any priority register. If a priority register had been maintained it could be easily ascertained that it was the turn of Dhawan to be transferred because of the acceptance of his request by the General Manager earlier than Arjan Dev. The Board pointedly enquired if it was a case of an 'administrative error'. The Northern Railway replied : 'It is evidently a case of administrative error to have relieved Shri Arjun Dev earlier than Shri Dhawan.'

(9) On the realisation of this error the Board set aside the decision of giving bottom seniority to Dhawan. They gave him seniority on the basis of a circular dated October 30, 1953. under which the seniority of an employee was to be determined according to the rate of pay. Dhawan was now assigned No. 9-A in the seniority list instead of No. 31 which had been previously assigned to him on account of bottom seniority. He was placed above Jagdish Rai, respondent No. 3 and below one Lal Chand. it was on the premise that Dhawan was getting Rs. 81 per month as his pay. Jagdish Rai was in receipt of Rs. 78 and Lal Chand Rs. 85. thereforee, Dhawan become senior to Jagdish Rai. This was the decision of the Board which they took in 1974. Dhawan thereforee got his rightful place. But this was not the end of his troubles.

(10) The 1974 decision of the Railway Board making Dhawan senior to Jagdish Rai became the subject of a court case. Jagdish Rai challenged the decision of the Board giving seniority to Dhawan with effect from May, 16, 1959 in a writ petition filed on October 21, 1974. This petition was heard by Sachar J. He found that there was a 'serious controversy' as to the exact rule applicable for the determination of the seniority of Dhawan. There were two circulars in the field. One was of 1953 (October 30, 1953) and the other of 1961 (May 16, 1961). If Dhawan's seniority was to be determined with reference to May 16, 1959, as was actually done he ranked senior to Jagdish Rai. Under the circular of 1953 seniority was determined according to pay a person was getting. But if Dhawan's seniority was to be determined with reference to March 29, 1963, the date on which he joined the headquarters, then obviously the circular of 1961 governed him. If 1961 circular applied then Jagdish Rai was senior to Dhawan. 1961 circular was based on the principle that in a case of transfer on request a man should be assigned bottom seniority regardless of pay. Sachar J. set aside the 1974 decision giving 9-A seniority to Dhawan and he remanded the case to the Board to 'refix and redetermine' the seniority of Dhawan 'in accordance with law and rules.'

(11) When the matter went back to the Board they examined the question again. They invited comments from]the Northern Railway. Northern Railway gave a 'revised factual position'. In the light of those comments the Board arrived this time at a contrary conclusion. There was a sharp reversal. They decided that Dhawan's seniority ought to be determined on the basis of the date of his posting at the headquarters. He joined the headquarters in 1963. The circular of 1961 was applied to his case and he was.again given bottom seniority. This was the decision of the Board in 1979. The result was that Dhawan came back to square No. 1. He was relegated to position No. 31, as before.

(12) Now it was the turn of Dhawan to go to court . He brought a writ petition on June 30, 1979 challenging this decision of 1979 which reversed the previous decision of 1974. One of the grievances of Dhawan was that this decision in 1979 was made without giving him an opportunity to explain his case. During the course of the hearing the Board realised this mistake. They gave an opportunity to Dhawan to make representation against their proposal to revert him to position No. 31. Dhawan submitted a long written representation. But the decision of the Board stood. They refused to alter it. Dhawan then contested the validity of their decision on merits in that very petition. He claimed that seniority assigned to him in 1974 should not be disturbed. He sought a declaration that he is governed by 1953 Circular'. This writ petition was heard by M. L. Jain J. On March 13, 1980 he upheld the decision of the Board and dismissed Dhawan's petition.

(13) The learned judge held against Dhawan mainly on two grounds. Firstly, he held that 'safest criterion' in such like cases as Dhawan's was to determine seniority with reference to the date of joining the headquarters. The date of joining was 1963 in Dhawan's case undisputably. thereforee, he held that 1961 circular applied to his case and that he was entitled to noils other than bottom seniority. The other ground taken by the learned judge was that Dhawan had no right which he could enforce in a court of law. From the order of the learned judge Dhawan appeals to this court.

(14) The question of Dhawan's seniority has been hanging fire for 17 years. Daring this long period the Railway Board has taken three decisions one in 1969, the second in 1974 and the third in 1979. In 1969 they assigned him bottom seniority at 31. In 1974 they restored him to 9-A position. In 1979 they reverted him to No. 31. Dhawan has been oscillating from one position to another because the decision of the Board has been varying from time to time. Dhawan complained that Damocles' sword of uncertainty was hanging on his head. This matter has, been the subject of two writ petitions and this one appeal. We can only hope that this will be the final stage in this long standing dispute.

(15) Now in a case of this kind three dates which can be considered material for purposes of seniority are :

1.The date of request. 2. The date of acceptance ; and 3. The date of joining the headquarters.

It is true that the date of joining is the most appropriately and generally acceptable date for the determination of seniority as is envisaged in The circular of 1961. It is based on the principle that when a man makes a request for transfer he knows that he will be given seniority as on the date of his joining the headquarters. It is with the full realisation of this fact that he makes the request for transfer. If he is not agreeable to the assignment of seniority as on the date of joining he can very well refuse to be transferred. He can very well say 'I do not want to go'. Because it is a case of transfer on his own request. But Dhawan's case is in many respects a peculiar one. It will be doing injustice to him if we apply the circular of 1961 to his case. It is true that he jojned the headquarters in 1963 and, ordinarily speaking, 1961 circular should apply to him. But there is one point which is fundamental to his case. He opted for transfer as early as 1952. This was Railway's own case in the counter-affidavit filed before Sachar J. His request may not have been granted in 1952 because he was 'a locally recruited unapproved candidate.' But in 1956 his services were regularised with retrospective effect and thereforee the option made in 1952 for transfer will have all the validity of an option.

(16) Secondly, his request for transfer was accepted on January 8, 1958 while Arjan Dev's request was accepted by the General Manager on April 16, 1959. But Arjan Dev was relieved earlier than Dhawan. This was admitted to be an 'administrative error'. The Board accepted that this was a singular case where injustice had been done because of an administrative error committed by the Bikaner Division inasmuch as Dhawan's junior. were transferred who had applied much later than him ignoring Dhawan completely. This was the complaint of Dhawan all through. In his application dated September 3, 1959, he said : 'It is to my great surprise that some clerks junior to me who applied for transfer to headquarters office later than me have been relieved ignoring me completely.' In his application dated April 6, 1962 he said : 'I have been submitting application after application for transfer to headquarters. My juniors have been transferred. But my case of transfer is still hanging fire.'

(17) This mistake was realised by the Board and to relieve the hardship they applied another circular dated October 16. 1964 which deals precisely with cases of 'hardships due to administrative errors' resulting in 'loss in seniority and pay.' This circular provides that if a person has been promoted but not on the date on which he should have been promoted due to some administrative error then that employee should be assigned correct seniority vis-a-vis his juniors already promoted irrespective of the date of promotion. His pay in higher grade on promotion will be fixed proforma at the stage which he would have reached if he would have been promoted at the proper time. The benefit of this circular was given to Dhawan and on March 6, 1975 his pay. promotion, etc.. were all fixed on the basis of his seniority as on May 16, 1959.

(18) In 1979 the Board reversed this decision. The grounds of Board's reversal are mainly two. In the first place the Board has said that their assumption that Dhawan had applied for transfer earlier than Arjun Dev had been 'disproved'. They said that they were able to find in their record an application of Arjan Dev made in 1956, while according to them Dhawan had applied on October 31, 1957, for transfer. This is factually incorrect. We have seen Arjan Dev's application of 1956 and we find that that was never accepted. It was Arjan Dev's application dated November 28, 1958, which was granted by the General Manager. In the case of Dhawan the General Manager accepted the application dated October 31, 1957. In point of fact it appears that Dhawan had applied for transfer as early as 1952. In the counter affidavit before Sachar J. this was the stand of the Northern Railway themselves. How can then it be said that Arjan Dev had applied earlier Whether we take 1952 or we take October 31, 1957 as the date of making the application for transfer Dhawan is earlier in point of time in making the request. It is true that Dhawan's option of 1952 was not granted. But then the same is true of Arjan Dev's application of 1956. Both were rejected. Neither the new discovery of a 1956 application of Arjan Dev by the Board nor their conclusion that the assumption on which their previous decision was based had been disproved has any validity.

(19) Secondly, it was said that Dhawan and Arjan Dev were working in separate units which had separate seniority lists. Dhawan was in signal and telecommunication branch while Arjan Dev was in works unit. On this ground the Board thought that the seniority of the two ought to be 'delinked'. It is true that the seniority of Dhawan cannot be linked with Arjan Dev. But what is forgotten is that Arjan Dev is cited only as a point of reference. Dhawan rests his case on May 16, 1959, the date on which Arjan Dev joined the headquarters. On that date he found his claim of seniority on the ground of administrative error. Arjun Dev's date of joining the headquarters (May 16, 1959) is only a peg to hang a claim of seniority. The real contestant to Dhawan's claim is Jagdish Rai and not Arjan Dev. Taking Arjan Dev as a point of reference he now claims seniority against Jagdish Rai on the ground that but for the administrative error he would have joined the headquarters in 1959 and would have thus ranked senior to Jagdish Rai who was getting only Rs. 78.00 per month as against his pay of Rs. 81.00 .

(20) Jagdish Rai was recruited in 1952 in Bikaner Division. He exercised his option to be transferred to the headquarters in 1952 and came to Delhi in 1952 itself. That Jagdish Rai was junior to Dhawan in the parent division cannot be denied. It is true that on December 17, 1951 Dhawan was recruited as alocal candidate. -But his services were regularised in 1956 with effect from the date of his appointment in 1951. This aspect has been completely ignored.

(21) To do justice to Dhawan as the Board did in 1974 it must be held that Dhawan's right to be transferred arose on the point of time when his junior Arjan Dev was transferred ignoring Dhawan's claim completely because of the default of the Railway in not maintaining a priority register. Nor the fact that Dhawan and Arjan Dev were in separate units is of any consequence in so far as transfer is concerned. Once we accept the principle 'first come first, served' which appears to have been accepted in the letter of the Northern Railway dated October 15 1979 there is no reason why we should not go by the date of the acceptance of the request by the General Manager. That is a firmer ground than the date of the application. For one thing it is statutory. Secondly, it gives a right to the man. Making an application is neither here nor there unless accepted by the General Manager. The order of transfer does not relate back to the earliest application in point of time. This is the fundamental flaw in Board's reasoning. The application which is accepted and the order of transfer accepting the application are the only safe guides. In fact it is the order which is the nodal point. It has a statutory flavour and arms the man with a right to go.

(22) The Northern Railway in their comments submitted to the Board in 1959 said :'ArjanDev while working in Bikaner Division had applied for transfer to Headquarters office earlier than Dhawan and as such there is no question of administrative error.' This was a volte-face. A complete change of front. We cannot accept this reasoning. We have seen that Arjan Dev's application in 1956 was rejected and thereforee the application of 1956 is not a solid ground on which to base a new decision and to overturn an old.

(23) Lastly, it is said by the Board that public interest does not permit release of employees as soon as they ask for transfers. It is maintained that the rule in force about seniority on request transfers is that the transferee counts seniority in the new unit only from the date he joins it. That public interest is paramount no one will deny. But on the facts of this case it does not appear to us that public interest prevented the Divisional Superintendent to relieve Dhawan except in 1958 when there was shortage of staff. Public interest did not so prevent him from relieving Dhawan on May 15, 1959, when he relieved Arjan Dev from the Bikaner Division. There is nothing on record to show that Arjan Dev could be relieved but not Dhawan on May, 16, 1959. Both were lower division clerks. Dhawan was not atechnical hand. He had no special skill. It is not shown to us that he was indispensable and so irreplaceable, that from 1958 to 1963 no one could fill the void of his vacancy had he been transferred. There is substance in Dhawan's contention that he was the victim of discrimination when his junior Arjan Dev was transferred and he was denied the right to go. The. administrative error admitted by the Northern Railway with perfect can dour in their correspondence with the Board is writ large in the face of this case. It dominates the scene. That Dhawan's claim was passed over in silence when Arjan Dev was transferred in 1959 appears to us an incontestable proposition.

(24) In our opinion, no new facts came to light such as ought to have persuaded the Board to reverse their decision of 1974. The decision of 1974 appears to be well considered. There was no ground to alter or upset it. On the whole case we think Dhawan is entitled to be restored to the seniority which was assigned to him by the decision of the Board taken in 1974 and given effect to on March 6, 1975 by fixing his pay etc. That there was an administrative error and that this caused hardship to Dhawan resulting in loss in seniorty and pay are facts of the greatest importance in this case. We cannot shut our eyes to them. The Board expressed sympathy and said that it was unfortunate that Dhawan's transfer was delayed. But they were unwilling to correct the admitted administrative error resulting in injustice to their employee. The Board has a duty to act fairly. That is the duty laid on everyone who decides anything (Local Govt. Board v. Alridge 1915 A.C. 120.

(25) It was said that Jagdish Rai was in senior grade and that Mahesh Prakash, respondent No. 9, had been confirmed on 1-4-1959 and thereforee Dhawan cannot be senior to them. These were regarded by the Board as inconsequential as will appear from their affidavit before Sacher J.

(26) One other word and it is this. The learned Judge has held that Dhawan has no right which he can enforce in a court of law We definitely disagree with him. We say so with respect. In the context of administrative law the term 'rights' is to be understood in a very broad sense, and is not to be confined to thejurisprudential concept of rights to which correlative legal duties are annexed. It comprises an extensive range of legally recognised and legally protected interests, the categories of which are never closed. (De Smith Judicial Review of Administrative Action 4th Ed. p. 390). Administrative law traces its origin to one abiding source : to our 'distrust of all sources of unchecked power,' Out of this distrust rights are 'born.

(27) Loss of seniority and pay will give rise to a right if it is the consequence of an administrative error. A claimant can always ask for the rectification of an error if he can show that it has resulted in loss of seniority and pay to him. In our view Dhawan has succeeded in doing so. There is no reason why the court should not undo the wrong done to him. The Railway circular dated October 16, 1964 was framed to meet such cases. We have no doubt that if there was a case in which hardship ought to have been mitigated it was this.

(28) For these reasons we accept the appeal and set aside the order dated March 13, 1980 and reinstate the order of the Railway Board of 1974 assigning seniority to Dhawan above Jagdish Rai, respondent No. 3 and below Lal Chand. In the circumstances we leave the parties to bear their own costs.


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