Nirmal Kalra vs Union of India (UOI) and Others

Mahesh Grover, J.—The instant writ petition under Articles 226/227 of the Constitution of India calls into question order dated 18.3.2009 (Annexure P7) passed by the Central Administrative Tribunal, Chandigarh Bench (hereinafter described as `the Tribunal'') whereby the Original Application filed by the petitioner against the orders of respondent Nos. 1 to 4 bestowing higher seniority to respondent No. 5 over and above her, has been dismissed.

The petitioner was appointed as Clerk on 6.7.1995 in the Northern Railway due to the unfortunate demise of her husband and is continuously working as such. The next promotional avenue for Clerks is the post of Senior Clerk for which a vacancy arose in 2003 and the petitioner was asked to appear in the suitability test. However, the process could not get underway for some reasons. In the year 2004, the employees of a particular cadre became surplus on account of restructuring of the department and respondent No. 1, who was working as Senior Typist, after re-deployment, joined as Clerk on 27.2.2004 in Northern Railway. It is pertinent to mention here that the pay scale of both the Clerks and Senior Typists is the same. After her re-deployment in the cadre of Clerks, respondent No. 1 was assigned seniority above the petitioner vide order dated 24.5.2004. This order was assailed by the petitioner by way of the Original Application before the Tribunal, the determination of which has given rise to her grievance by way of the present petition.

Learned Counsel for the petitioner has contended that order dated 24.5.2004 assigning seniority to respondent No. 5 over the petitioner has resulted in great prejudice to her as the same was passed without affording an opportunity of hearing and her legitimate expectation of promotion in service in the cadre stands throttled as by virtue of being senior, respondent No. 5 has since been promoted as Senior Clerk and is working as such. He has placed reliance on the judgments of the Supreme Court in Rama Kant Chaturvedi and Others Vs. Divisional Superintendent, Northern Railway, Moradabad and Others, and Union of India and Ors. v. K. Savitri and Ors. 1998(1) SLJ 505 S.C., to contend that in almost similar circumstances, their Lordships of the Apex Court have observed that the employees, who are declared surplus in the parent department and are re-deployed in new organisation are not entitled to get their past services counted for the purpose of seniority or as experience for promotion. He also referred to the instructions dated 25.5.2004 issued by respondent Nos. 1 to 4 based on a few precedents of the Supreme Court, which lay down that the service rendered by the surplus staff prior to its re-deployment, will not count for seniority and promotion in the absorbing unit. He, thus, contended that the Tribunal has gone wrong in not affording the petitioner the benefit of these instructions.

We have heard the learned Counsel for the petitioner at considerable length.

The Tribunal, while declining the prayer of the petitioner, has held that the decision to grant seniority to respondent No. 5 over and above the petitioner after her re-deployment in the cadre of Clerks was taken on 24.5.2004, whereas the instructions on which the petitioner places avid reliance, came into force on 25.5.2004 and the same obviously cannot be applied to the decision which had been taken prior to coming into force of such instructions.

We have perused the aforesaid instructions and find that in the concluding part of the same, it has been categorically mentioned against item 3.2 that "past cases decided otherwise will not be re-opened."

There is no dispute on the facts as the order assigning seniority to respondent No. 5 was passed on 24.5.2004 when the instructions dated 25.5.2004 of the Railways were not in existence. The reasoning of the Tribunal, therefore, cannot be faulted with.

Besides, the instructions also lays down as follows under paragraphs (i) and (ii):

(i) When only a small number of staff is being rendered surplus and they have to be absorbed in various units or other departments against vacancies of duly sanctioned posts, they can be suitability adjusted in those units with their full seniority and they (sic. their ) seniority merged in the respective units.

(ii) When a large number of staff is being rendered surplus and they are absorbed in new units, they should be given their full seniority but kept in a separate block against special supernumerary posts in consultation with the Unions so that they seek promotion separately as per percentage applicable to them, in their original cadre and the existing staff in the absorbing unit are also not adversely affected.

The re-deployment of respondent No. 5 came within the ambit of paragraph (i) above which contemplates a contingency where only a small number of staff having been rendered surplus, has been re-deployed in the other unit and the instructions lays down that they will be entitled to complete seniority, whereas in the case of large number of staff having been rendered surplus, has been dealt with separately under paragraph (ii) denying them the benefit of their seniority and requiring such employees to be kept in a separate block in consultation with the Unions so as to enable them to seek promotion separately as per the percentage applicable to them in their original cadre. Therefore, even if, for the sake of arguments, the instructions are applied to the case of the petitioner, still she cannot have a grievance against respondent No. 5 as the latter was entitled to be granted benefit of her past service for seniority in accordance of paragraph (i) reproduced above.

The argument of the learned Counsel for the petitioner that opportunity of hearing should have been afforded to the petitioner before assigning seniority to respondent No. 5 over and above her vide order dated 24.5.2004, is also without any merit for the reason that on the existing date, the instructions contemplated the grant of benefit of previous seniority to an employee, who was re-deployed on being rendered surplus in his or her existing cadre.

We do not, thus, find any merit in the contentions raised by the learned Counsel for the petitioner and reject the petition.