Paramjit Kaur vs Union of India (UOI) and Others

Ashutosh Mohunta, J.—This petition has been filed under Article 226/227 of the Constitution of India interalia for quashing the order dated 5.1.2006 (Annexure P-l) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short ''the Tribunal''), whereby the Original Application filed by the petitioner has been dismissed. The claim of the petitioner before the Tribunal in the Original Application filed u/s 19 of the Administrative Tribunals Act, 1985, being OA No. 849-PB of 2004, has been that she was transferred on administrative ground, after being declared surplus in another cadre, to the office of respondent No. 4 Senior Divisional Electrical Engineer/Electric Loco Shed Ludhiana (for short ''ELS/LDH'') and joined on 8.12.2000 as Senior Clerk, whereas the respondent No. 5 was transferred on her own request to ELS/LDH as Senior Clerk on 22.10.2002. The grievance of the petitioner has been that though she was senior most Senior Clerk working at ELS/LDH, however the respondent No. 5 was promoted as Head Clerk on 12.3.2003, on the basis of her seniority in the parent cadre i.e. Electric Branch, Ferozepur, by superseding the petitioner and in disregard to her seniority. On that basis the respondent No. 5 was also empanelled for selection as Office Superintendent in grade of Rs. 5500-9000. The petitioner claimed that respondent No. 5 is junior to her in ELS/LDH cadre relying upon Rule 312 of Indian Railway Establishment Manual Volume I, which provides that the seniority of railway servants transferred on their own request from one railway to another or from one cadre/division to another cadre/division should be allotted seniority below that of the existing confirmed, temporary and officiating railway servants in the relevant grade.

The stand of the respondents before the Tribunal was that with a view to mobilize staff to the newly created unit of ELS/LDH, certain administrative decisions were taken and options were invited from eligible/willing staff for transfer to the ELS/LDH vide letter dated 13.9.1999. The petitioner and respondent No. 5 both originally were from the Ministerial cadre of General Electric Branch of Ferozepur Division, in which respondent No. 5 was senior to the petitioner. Respondent No. 5 was initially appointed as Senior Clerk in the scale of Rs. 4500-7000 on 11.7.1990, whereas petitioner joined as Clerk on same day i.e. 11.7.1990 in a lower pay scale of Rs. 3050-4590 in the said division. The petitioner was redeployed as Clerk on 19.1.2000 in ELS/LDH and was subsequently promoted as Senior Clerk on 8.12.2000 as per her turn in her parent cadre.

Respondent No. 5 also submitted her option and was transferred accordingly, vide notification dated 11.10.2002. The transfer of respondent No. 5 was on administrative ground and not ''on her own request basis'' as alleged by the petitioner. The respondent No. 5 was thus rightly promoted as Head Clerk as per her seniority and on turn in the parent cadre and was retained in the ELS/LDH itself against higher grade vacant post vide notification dated 12.3.2003.

The Tribunal after going through the record of the case found as a matter of fact that a decision was taken by the Railway Administration to set up ELS/LDH in the year 1999 and to make it functional, options were sought from various categories of staff by respondent No. 2. Policy decision was taken in consultation of recognized unions of Railway employees that the staff working in ELS/LDH will retain their original seniority in their respective parent cadres as long as the cadre of ELS/LDH was not closed. Such staff was to continue to get promotions as per seniority in their parent cadres, even when transferred to ELS/LDH as long as cadre of ELS/LDH remained open. ELS/DLH staff due for promotion as per their seniority in respective parent cadres, was not to be repatriated to their parent cadre on promotion to higher grades, rather, they were to be adjusted on promotion in ELS/LDH itself against higher grade vacant posts of ELS/LDH. The cadre of Group C and Group D in ELS/LDH was closed with immediate effect vide letter dated 29.7.2003 and a decision was taken that thenceforth all the transfers except transfer on administrative grounds would be treated as ''transfer on own request basis'' and the person concerned would be placed on bottom seniority. However, formal decision to maintain separate seniority list in respect of the staff of ELS/LDH was taken on 19.1.2004. The Tribunal vide the impugned order dated 5.1.2006 held that as per the applicable policy, the employees who sought transfer to the ELS/LDH were to retain their seniority in the parent cadre till the closing of the cadre of ELS/LDHG on 29.7.2003. They were also to be granted promotion on the basis of their original seniority in the original cadre and were to be adjusted on the promoted post in ELS/LDH itself. Oh the basis of the said policy, the respondent No. 5 was promoted as Head Clerk vide order dated 12.3.2003 on the basis of her seniority in the parent cadre and was adjusted in the ELS/LDH on the promoted post, prior to cut off date viz. 29.7.2003. The petitioner being junior to respondent No. 5 in the parent cadre had no right to claim the said post. The Tribunal also held that the Rule 312 relied upon by the petitioner was not applicable in the present case as respondent No. 5 was transferred as per the policy and not ''on own request basis''. Hence the original application filed by the petitioner has been dismissed.

The case was earlier listed before us on 2.2.2009, when none appeared on behalf of the petitioner and the case was adjourned. Today again, no body appeared on behalf of the petitioner so we have proceeded to decide the case on merits. We have gone through the writ petition filed by the petitioner and have also heard the learned Counsel for respondent Nos. 1 to 4. From the pleadings in the writ petition it appears that the petitioner was promoted as Head Clerk on 14.9.2004 and respondent No. 5 has been promoted as Office Superintendent-II on 18.3.2005.

In the writ petition, the petitioner has reiterated her stand before the Tribunal in the Original Application except for two new documents on which she has placed reliance in support of her case. One is order dated 13.9.1999 (Annexure P-8) which while inviting applications from staff for transfer to ELS/LDH states that once a person opts to join ELS/LDH, he will not have any lien in his old seniority unit. However, the learned Counsel for respondent Nos. 1 to 4 has pointed out that the said order was superseded by a subsequent administrative order dated 13.8.2001 (Annexure R-1). The said order clearly provides that the staff already posted in ELS/LDH shall continue to have their lien in parent department for promotion on the basis of seniority in parent department. The second order dated 19.1.2004 (Annexure P-9) states that a decision has been taken to maintain separate seniority unit for all the categories of staff of ELS/LDH. However, the learned Counsel for respondent Nos. 1 to 4 has rightly pointed out that the said order cannot advance the case of the petitioner any further in view of the fact the respondent No. 5 was promoted as Head Clerk prior to the said date. As noticed above the Tribunal has also referred to this fact.

Admittedly the petitioner was much junior to the respondent No. 5 in the original cadre, wherein she joined as Clerk on 11.7.1990, whereas the respondent No. 5 joined on the same date as Senior Clerk. The petitioner was promoted as Senior Clerk much later on 8.12.2000 on the basis of her seniority in the original cadre as per the aforesaid policy of respondent Nos. 1 to 4 referred to by the Tribunal, though prior to that she was transferred to ELS/LDH on 19.1.2000. On the basis of same policy the respondent No. 5 who was transferred to ELS/LDH on 22.10.2002 as Senior Clerk was promoted as Head Clerk on 12.3.2003 on the basis of her seniority in the original cadre. The respondent No. 5 was transferred as Senior Clerk and promoted as Head Clerk prior to the cut off date which was 29.7.2003. The petitioner after having herself taken the benefit of the policy for promotion to the post of Senior Clerk has no right to say that the respondent No. 5 who was similarly situated should not be given the benefit of the policy for promotion as Head Clerk. The Tribunal rightly held that the Rule 312 relied upon by the petitioner is not applicable as the same is applicable in case of transfer on ''own request basis'', whereas in the present case the respondent No. 5 was transferred to new unit i.e. ELS/LDH on administrative grounds according to the afore-referred policy.

In view of the above, we find no error or illegality in the view taken by the Tribunal warranting our interference under extra ordinary writ jurisdiction under Article 226/227 of the Constitution of India.

The writ petition is misconceived and the same is accordingly dismissed.