AI Structured Summary
Not yet generated for this judgment
Judgment
The applicant was initially appointed as Gangman with the Railways on 05.10.1985. He got promoted as Pointsman under Ghevera Station in 1995. His contention is that on 03.08.1999 he got promoted as Sr. Pointsman/Shuntman in the grade of Rs.3050-4590 and on the same day he joined the post in Ghevera Station. By order dated 11.01.2000 he was transferred to Traffic Inspector, Rohtak on the same post. On 09.12.2009, he was medically decategorized and was posted as a Clerk. On 20.06.2010, the respondent No.2 issued a provisional seniority list in which the applicant has been placed below respondent No.3. The grievance of the applicant is that he had joined the promotional post of Sr. Pointsman/Clerk before respondent No.3 and since seniority has to be determined on the basis of date of joining, the applicant deserves to be placed above respondent No.3 in the seniority list. On 27.04.2011, the applicant submitted an RTI application requesting the respondents to provide him seniority list. However, he did not succeed in that effort. On 03.09.2011, he obtained a copy of provisional seniority list from his colleagues and immediately objected to the same. Till date, respondent No.2 has not issued final seniority list. On 03.09.2011, the applicant''s claim of the seniority was rejected by the respondents. The applicant has, therefore, filed this O.A. seeking the following relief:- "(i) That this Hon''ble Tribunal may graciously be pleased to allow this application and set-aside the impugned seniority list dated 20.06.2010 & order dated 03.09.2011 passed by respondent No.2 with all consequential benefits.
(ii)That this Hon''ble Tribunal may graciously be pleased to allow this application with the direction to the respondent no.2 to place the applicant above of the respondent no.3 in the Seniority list of Clerks without any discrimination."
The contention of the applicant is that the Apex Court in the judgment in the case of Ashwani Kumar Singh Vs. UPSC & Ors., SLJ 2004 (1) SC 28 has laid down that those appointed later cannot claim seniority over those appointed earlier. Hence, his claim should be allowed. Further, he has contended that the action of the respondents in placing the respondent No.3 above him is arbitrary and violative of fundamental rights of the applicant. Moreover, this seniority list was never supplied to the applicant. Further, relying on the judgment of Apex Court in the case of State Bank of India Vs. M.S. Bassi, 2004(11) SCC 347, the applicant has stated that the Apex Court has laid down that violation of principles of natural justice i.e. order passed without affording an opportunity of hearing to party adversely affected deserves to be quashed. Moreover, Hon''ble Supreme Court in the case of Lekhu Singh Vs. Punjab S.C. Land Development & Finance Corporation & Anr., SLJ 1994(2) SC 16 has laid down that "natural justice must be followed-whenever, vested right is affected adversely."
The official respondents have filed their reply in which they have stated that the applicant was promoted as Sr. Pointsman in the grade of Rs.3050-4590 and was posted under Traffic Inspector, Rohtak vide Office Order dated 03.08.1999. However, he did not resume duty there. Later on, his promotion order was again issued as Sr. Pointsman and he was posted at Ghevera Station vide Office Order dated 11.01.2000. Thus, his actual date of joining the promotional post is 11.01.2000 and he has been assigned seniority on the basis of that date.
Private respondent No.3 has also filed his reply in which he has opposed the averments of the applicant. He has stated that it is trite law that seniority in a cadre is always from the date of joining on a particular post. In this case, the applicant had been promoted to the grade of Rs.3050-4590 only on 11.01.2000 whereas the private respondent No.3 had joined this grade on 28.09.1999 i.e. before the applicant. Thus, respondent No. 3 argued that he deserves to be placed above the applicant in the seniority list. Further, respondent No.3 has stated that the applicant had full knowledge that the order dated 03.08.1999 had been superseded by an order dated 11.01.2000. Therefore, the applicant cannot be granted seniority on the basis of that order, which has been superseded.
We have heard the submissions of both sides and have also perused the material on record. We have also seen the service-book of the applicant, which was made available to us by the respondents. The main issue to be decided is whether the applicant got promoted and joined the promotional post of Sr.Pointsman in the pay scale of Rs.3050-4590 from 03.08.1999 as claimed by the applicant or later, on 11.01.2000 as contended by the official and private respondents. 5.1 From the record we see that an order promoting some Pointsman to the Sr. Pointsman was issued by the respondents on 03.08.1999. The applicant''s name figures in that list at Serial No.34. This list is available at pages 20 to 23 of the paper-book. In this list, the present posting station of the applicant has been shown as Traffic Inspector, Rohtak and his station of posting on promotion has been shown as Rohtak. The contention of the applicant is that at that point of time he was posted at Ghevera station and, therefore, there was a clerical error in the order dated 03.08.1999. He sought a correction of the same, which was eventually done by the respondents vide their order dated 11.01.2000. However, the applicant contended that he had joined the post of Sr. Pointsman on 03.08.1999 itself at Ghevera station. On the other hand, the respondents contended that the applicant joined the promotional post of Sr. Pointsman only after issue of order dated 11.01.2000. To ascertain the truth, we have seen the servicebook of the applicant. We find from the servicebook that an entry is available which shows that the applicant was promoted as Sr. Pointsman/Shuntman in the grade of Rs.3050-4590 vide letter No. 758E/33/III/P.I dated 03.08.1999. His pay has accordingly been fixed at Rs.3275/- on 08.1999. His next increment has been shown as Rs.3350 granted on 01.08.2000. Further, increment has been given to him on 08.2001. Likewise, he has continued to draw increments every year on 1st of August upto 2006. From this entry in the servicebook, it is clear that the date of promotion of the applicant is 03.08.1999 and his pay has been regulated as such. We are, therefore, convinced that there is merit in the contention of the applicant.
5.2 Even if the contention of the respondents is accepted, it cannot be denied that the applicant was eligible for promotion w.e.f. 03.08.1999 since his name figured in the list issued on that day. However, due to a clerical mistake his present posting in that list was shown as TI, Rohtak whereas it is not disputed that at that point of time he was posted at Ghevera station. The correction in the clerical mistake, according to the respondents, was made by order dated 11.01.2000 only, Thus, it would follow that the applicant was deprived of availing of his promotion between 03.08.1999 to 11.01.2000 on account of a clerical error committed by the respondents. Since the applicant cannot be made to suffer on account of a mistake committed by the respondents, he still deserves benefit of promotion w.e.f. 03.08.1999.
Accordingly, we allow this O.A. and quash the impugned order dated 03.09.2011 by which the claim of seniority of the applicant has been rejected. We also quash the seniority list circulated by the respondents on 20.06.2010 qua the applicant. We direct that seniority of the applicant be re-fixed taking applicant''s date of promotion to the grade of Rs.3050-4590 as 03.08.1999. This benefit will be extended to the applicant within eight weeks from the date of receipt of a certified copy of this order. No costs.