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Judgment
K.s. Jhaveri, CJ
The petitioners in this writ application assail the legality and propriety of order dated 24.06.2004, passed by Central Administrative Tribunal, Cuttack Bench, Cuttack (for short 'the Tribunal'), dismissing the Original Application No.595 of 2001. They also challenged the order dated 27.11.2001 deploying the petitioners as Tracers and pray for absorbing them as Senior Clerks in the Ministerial Cadre of Commercial Department with effect from 31.05.1995 i.e. from the date their juniors have been absorbed.
Bereft of unnecessary details, the facts relevant for adjudication of this case are that the petitioners were appointed as Junior Signallers under the opposite party no.2 in the year 1982 and 1984 respectively. In the year 1986 and 1992 respectively, the petitioners were promoted to the post of Senior Signallers. While the matter stood thus, the petitioners were directed to report to Divisional Commercial Manager, Bhubaneswar on special duty vide order dated 31.3.1995. Accordingly, they joined the Ministerial Cadre of Commercial Department as Senior Clerks on 16.11.1995. It is contended by learned counsel for the petitioners that after joining in the Commercial Department, the Senior Divisional Operating Manager, East Coast Railway, Khurda Road (opposite party no.4) requested the General Manager (P), East Coast Railway (opposite party no.2) to issue necessary orders to regularize the petitioners in the Commercial Department. Again on 08.05.1996, the opposite party no.4 requested for regular absorption of the petitioners. The opposite party no.3 namely, the Divisional Manager (P), East Coast Railways, Khurda Road requested the opposite party no.2 for permanent absorption of the surplus Signallers of operating department under the Ministerial category in any department. Accordingly, on 16.04.1999 the opposite party no.4 agreed to regularize the petitioners on permanent basis. But, surprisingly, the persons who were juniors to the petitioners were permanently absorbed as Senior Clerks in the Engineering Department vide order dated 29.8.1997 (Annexure-5). Although the petitioners were entitled to be regularized in the said post, they were posted and regularized as Tracers in a lower scale of pay vide order dated 27.11.2001 (Annexure-6). For ready reference, the letter dated 08.5.1996 is reproduced hereunder:
S.E. RAILWAY
Office of the
Sr. Divl. Comml. Manager,
Khurda Road,
Do.Sr.DCM/Staff/Refund Office. Dt.08-5-96.
To
The Sr. Divl. Personnel Officer (Staff 'A')
S.E. Railway, Khurda Road.
Sub.:- Redeploymnet/Absorption of Signallers of Optg. Deptt. In Commercial Deptt.under ministerial category.
The following four (4) Signallers are working in the newly opened subsidiary Refund Office, Bhubaneswar under Commercial Department (illegible) ministerial posts transferred by CCO/CAL vide letter No.RO/Sub.Refund (illegible) BBS/93 dtd.
04-10-93 (Copy enclosed) as detailed below:
A)
Name of the Signallers working:-
1)
Sri A.C. Mishra, HS/CTC.
2)
'' M.M. Das, Sr. Signaller/Puri
3)
'' N.C. Swain, Sr. Signaller/Puri
4)
'' Sanatan Sahoo, Sr.Signaller/BBS.
B)
Post transferred by CCO/Calcutta
i)
O.S. Cr.II
1600-2660/-
-1
ii)
HD. Clerk
1400-2300/-
-1
iii)
Sr. Clerk
1200-2040/-
-2
iv)
Jr. Clerk
950-1500/-__
-1
Total
- 5
AGM/PLG/KUR vide his note No.P1 3/Staff/Signaller dtd. (illegible) (copy enclosed) has intimated for absorption of these Signaller in the Commercial Department as they have become surplus in the operating deptt. Due to closer of Telegraph office at many stations. The staff concerned have also represented (copy enclosed) for their absorption in the Commercial Department.
You are therefore requested to arrange to issue necessary office orders for absorption of the above said four signallers in the Ministririal cadre of commercial department against existing vacancies under redeployment rules of surplus staff early under intimation to this office.
Since the accounts department has taken a serious view toward drawal of T.A. by the said staff and early action in the matter is requested.
Sd/-
Sr. Divl. Comml.Manager,
Khurda Road.
Being aggrieved by the order passed by the office of DRM(P), by which the petitioners were posted as Tracers in a lower scale of pay, they filed original application no.595 of 2001 before the Tribunal.
The Railways filed their counter stating therein that in the year 1995, the office of the Claims and Refunds were opened at Bhubaneswar. To make it functional, the petitioners along with others were posted there on special duty. Order dated 31.3.1995 clearly shows that the petitioners were directed to report for special duty and the same was never a redeployment as alleged. Due to abolition of the post of Signaller in the department in a phased manner, the surplus employees were adjusted in different departments. Accordingly, T.V.S. GK Sastri and B.S. Majhi, who were Senior Signallers and were working with the petitioners exercised their options to be absorbed in the Commercial Department. Accordingly, on 07.01.1997 they opted for their redeployment and were absorbed in the Engineering Department as Senior Clerks vide letter dated 29.8.1997.
Since at that point of time the scale of pay of Senior Signallers and Senior Clerks were same i.e. Rs.1200-2040/-, the railway authority accepting their redeployment option absorbed them in the department. At that time of absorption of said Shri Sastri and Majhi in the Commercial Department, the petitioners were continuing Senior Signallers. Subsequently, on abolition of the posts on 29.8.1997, they were redeployed and absorbed as Tracers on 27.11.2001. The petitioners had never raised any objection with regard to permanent absorption of said Shri Sastri and Majhi earlier. Probably due to the revision of scale of pay of Senior Clerks as per recommendation of 5th pay Commission, which resulted in higher scale of pay of Senior Clerks than Tracers, the petitioners raised grievance for absorption as Senior Clerks. Hence, it was contended by the Railway authorities that the original application being devoid of any merit should be dismissed.
Learned Tribunal taking into consideration the rival contention of the parties came to hold that since the scale of pay of Senior Signallers and Tracers at the time of redeployment of the petitioners were similar, they cannot have any grievance to be absorbed as Tracers. Accordingly, learned Tribunal dismissed the original application.
Learned counsel for the petitioners reiterated its argument made before the learned Tribunal. Mr. B. Mohanty, learned counsel for the petitioners reiterating the submissions made before the learned Tribunal contended that at that time of absorption of the juniors to the petitioners namely Shri Sastri and Shri Majhi, the case of the petitioners ought to have been considered first as they were admittedly seniors to said Shri Sastri and Shri Majhi. He further submitted that Shri B. S. Mohanty and Shri G.C. Behera were also admittedly juniors to the petitioners in the cadre list prepared under Annexure-C/1. He also relied upon the office orders annexed as Annexure-D/1 to the counter affidavit, to show that the petitioners were seniors to Shri Sastri, Shri Majhi, Shri Mohanty and Shri Behera. Further, due to phase-wise abolition of the post of Signallers, the petitioners were to be considered for absorption in the department at the first instance and thereafter the case of others including Shri Sastri, Shri Majhi, Shri Mohanty and Shri Behera should have been considered.
Although at different stages since 08.5.1996, the case of the petitioners were being recommended by the competent authority for being absorbed as Senior Clerks, the same was not considered and ignoring the same, their juniors were regularized in a higher scale of pay.
Hence, he contended that this material aspect was not taken into consideration by the learned Tribunal which has resulted in grave miscarriage of justice. Accordingly, he prayed for setting aside the impugned order and prayed for regularizing the petitioners as Senior Clerks with effect from 31.03.1995.
Mr. Mishra, learned counsel for the Railways supporting the order of the learned Tribunal contended that the impugned order is well reasoned one and all the material aspects raised in the original application as well as in the counter affidavit were taken into consideration by the learned Tribunal. The petitioners have not raised any objection when Shri Sastri, Shri Majhi, Shri Mohanty and Shri Behera were regularized in the Engineering Department on 29.8.1997. After revision of the scale of pay of Senior Clerks by virtue of the recommendation of 5th pay Commission, the petitioners became prudent and moved the learned Tribunal.
Be that as it may, their grievance cannot be adhered to as the persons against whom, the petitioners claim seniority, were neither made parties to the original application nor to this writ application. As such, no order to their prejudice can be passed. Accordingly, he prays for dismissal of the writ application.
We have heard learned counsel for the parties and perused the record.
Due to abolition of the Telegraph office, the posts attached to the said office were abolished in a phased manner. Thus, following the principle of last come first go, the said Shri Sastri, Shri Majhi, Shri Mohanty and Shri Behera were withdrawn on permanent basis from the Telegraph Office. At that point of time, the petitioners being seniors were continuing as Senior Signallers. Due to the recommendation of the opposite party no.4, said Shri Sastri and Shri Majhi who had given option for their redeployment were absorbed in the Engineering Department as Senior Clerks. At that point of time the petitioners had not raised any objection, probably due to fact that the scale of pay of Senior Clerks and Senior Signallers were same i.e. Rs.1200-2040/- at the relevant time. Subsequently, due to the recommendation of the 5th pay Commission, the scale of pay of Senior Clerks was enhanced.
It would not be out of context to mention here that on the date of regular absorption of Shri Sastri, Shri Majhi, Shri Mohanty and Shri Behera as Senior Clerks in the Engineering Department, the petitioners were still continuing as Senior Signallers. It is on abolition of the department completely on 29.8.1997, they were absorbed as Tracers according to availability of posts.
On perusal of the record, it appears that the scale of pay of the Senior Signallers and Tracers were one and the same i.e. Rs.1200-2040/- at the time when the petitioners were absorbed as Tracers in regular manner.
Taking into consideration the contentions of learned counsel for the parties, learned Tribunal held as under:
"xxx xxx xxx
There is no doubt that the applicants were relieved from the work of Sr.Signaller and were directed to report for instructions to D.C.M., Bhubaneswar as per order dated 31.3.1995. They have been functioning on a clerical post in the Claims office even though they were receiving the pay and allowances in their substantive cadre of Sr.Signallers. There is no one time total abolition of the cadre of Sr.Signallers. It appears that the same were being reduced in phases. Perusal of the letter dated 24.4.2001 (Annexure-R/4) indicates that at least upto that date there were two sanctioned posts of senior Signallers. It shows that at least upto that date the cadre of Sr.Signallers was not totally abolished and all the persons were required to be redeployed. A dispute has arisen because the pay scale of Sr.Signallers and Sr. Clerks was initially the same, viz., Rs.1200-2040/-.However, on account of recommendation of 5th Central Pay Commission, the scales were revised with effect from 01.01.1996 sometimes in 1993. So, even on the date of absorption of S/Shri B.S. Majhi and T.V.S.G.K. Sastri, the revised pay scales were not notified. In any case, there is nothing to suggest that the applicants immediately opposed the absorption of S/Shri Majhi and Sastri as per order dated 29.8.1997. On the other hand, the material available on record suggests that the Head Office/Department were insisting that they should be absorbed in their respective post where they were working. The applicants were finally decided to be redeployed as per order dated 27.11.2001 (Annexure-A/9). Since they were in the pay scale and grade of Sr. Signallers on the date of redeployment, they have rightly been given the grade and pay scale of the similar post of Tracer. It is not a fact that the pay scale of Tracer which they were given was not equivalent to that of Sr. Signallers, which they had been drawing all along."
In that view of the matter, we are in complete agreement with the view taken by the learned Tribunal.
Since, it is stated at the Bar that the petitioners have retired from service in the meantime, we direct that pensionary as well as other retiral benefit be released in favour of the petitioners within a period of four months from the date of receipt of certified copy of this order, if it is not released yet.
Accordingly, the writ application, stands disposed of.