Union of India and Others vs Rajendra Prasad Yadav and Others

Sanjay Yadav, J.—What should be the criteria for fixing seniority of the incumbents brought from different seniority group in a newly created cadre, is the issue which crops up for consideration in the writ petition directed against the order dated 30.11.2007 passed by the Central Administrative Tribunal, Jabalpur Bench Jabalpur in Original Application No. 656/2005; (i) Whether the seniority should be from the date the incumbent held the substantive post in the parent cadre; (ii) whether the seniority should be from the date when the incumbent reports the joining in new cadre, or (iii) Whether the seniority should be from the date the cadre is closed; are the off shoots of the main issue. The facts relevant are that with the formation of Traction Rolling Stock (for Short TRS) in Electrical Loco Shed, New Katni Junction presently West Central Railway (previously Central Railways) need arose to fill in 216 group D posts, for that applications were invited from eligible group D employees of Jabalpur Division, Central Railway (presently West Central Railway), vide letter dated 11.7.1996 on the following terms:

That, with formation of TRS in Electric Loco shed, the Railway Administration decided to close the steam Loco Shed and further decided to absorb the employees of steam loco shed in the Electric loco shed. The terms and condition remained the same as was stipulated vide letter dated 11.7.1996.

That, before closure of cadre, decision was taken by the Railways in the Joint meeting with the recognized Unions viz. Central Railway Majdoor Sangh and National Railway Majdoor Union held on 18.7.2002; whereby, besides other issues (not relevant for the present, therefore, not spelt out), following principles were laid down for determining seniority of the non-gazetted staff of TRS cadre of new Katni Junction Jabalpur, circulated vide circular No. HRD/228/EI/ELS/NKJ/Jabalpur dated 30/7/2002 that:

1.5.1: All promotion order issued for this cadre prior to the date of closure of cadre i.e. 20.8.2002 are deemed fortuitous and purely ad hoc without any prescriptive right for the staff for any such posting, promotion in the grade.

1.5.2 The seniority of staff transferred from different units of Central Railway on or before 20.8.2002 shall be based on rules applicable to inter se seniority depending upon the length of substantive post held by these staff in their parent cadre as on 20.8.2002.

1.5.3 Staff who have come on transfer on their own request from other Railway shall come on bottom seniority in the recruitment grade.

1.5.4 The seniority of the staff directly recruited for ELS/NKJ.

The TRS cadre was subsequently closed on 20.8.2002. Material on record reveals that before closure of the TRS cadre, the exigency of services warranted certain promotion to the post of Technician Trade such as Technician Grade III and Grade II. As such promotions were made from amongst the incumbents who had joined in pursuance to letter dated 11.7.1996. But since the TRS cadre was open these promotion were treated as purely adhoc. Apparently, no substantive right was conferred on such posts on which they were promoted on adhoc basis.

That, with the implementation of policy as circulated vide letter dated 30.7.2002, i.e. with the drawing of seniority list in the TRS Department after closure of cadre (20.8.2002) grievance arose amongst the group D staff and in the Artisan Cadre in respect of fixation of seniority which led to filing of Original Application in the Tribunal (O.A. No. 1049/2004 Babulal and others v. Union of India and others) by certain employees. The application was disposed of with direction to the Railway to decide representation. This direction led to passing of order dated 19.1.2005; whereby, it was stated that the respondents/applicants and similarly situated other employees were regularized as Helper in grade Rs. 2650-4000 and that they were working as ad hoc technician grade Rs. 3050-4590 (except one Harkesh Bahadur Yadav). It was further stated that these employees since were promoted as Technician Grade III in pay scale 3050-4590 prior to closure of cadre, i.e., 20.8.2002. After its closure, their promotions were treated as ad hoc and, therefore, their name was not included in the seniority list of regular Technician Grade III. It was further informed that by order No. 12/2002 dated 16.10.2002, 9 helpers, i.e., respondent Nos. 12 to 20 were regularly promoted on the post of Technician Grade III. It was further informed that steps are being taken to regularize 10 employees as Technician Grade III in grade Rs. 3050-4590 under restructuring scheme effective from 1.11.2003. These employees were S/Shri Madhukar Rao, Yogi Prasad, Suresh Kumar, Dineshwar Prasad, Babulal, Shrikant, Murlidharan, Jagdish Prasad, Ramlakhan and Mahesh Prasad. In respect of others, it is stated that because of non-availability of the post in Technician Grade III they could not be regularized. Respondent Nos. 1 to 11 still aggrieved for not being regularized as Technician Grade III in T.R.S. cadre and by order dated 19.1.2005, preferred O.A. No. 656/2005 before the Central Administrative Tribunal, Jabalpur Bench, Jabalpur seeking the quashment of order dated 19.1.2005 and for setting aside the seniority list dated 30.5.2003 and 5.4.2004.

Apparently, the order dated 16.10.2002; whereby, respondent Nos. 12 to 20 who were regularly promoted as Technician Grade III was not challenged.

Tribunal, after taking into consideration rival contentions quashed the order dated 19.1.2005 as well as the seniority list dated 30.5.2003 and 5.4.2004 so far as it related to Technician Grade III in respect of respondent Nos. 12 to 20 with a direction to the Railways to consider the case of respondent Nos. 1 to 11 (applicants in original application) and respondent Nos. 12 to 20 (respondents in original application) for regularization as Technician Grade III as and when they are found eligible as per their seniority position and subject to fulfillment of eligibility criteria, treating them on equal footing and maintaining the seniority in the T.R.S cadre on the basis of their joining the cadre. The respondent Railways were further directed to draw fresh seniority list of Technician Grade III after regularization of the applicants and respondents as Technician Grade III. The Tribunal further directed that revised seniority of Helper Khalasi/Khalasi be prepared including the name of respondents on the basis of joining the T.R.S cadre and that since the private respondents have already cleared the written test and viva voce required for regularization, they may not be subjected to these tests/examination again for regularization.

The above conclusion has been arrived at by Tribunal by construing that the circular dated 30.7.2002 which laid down the policy regarding the fixation of seniority of Group D and the Artison Cadre in the newly T.R.S Department is applicable from the prospective date and, therefore, will not have an overriding effect on the letter dated 11.7.1996 issued at Divisional level inviting applications for posting in the T.R.S Department and that their seniority will be counted in the Department from the date of assuming the charge.

The Tribunal ignores following aspects which makes its reasonings vulnerable. Firstly, that, till closure of cadre in a newly constituted department the entire cadre is open and does not attain permanency. The cadre means the strength of a service or a part of service sanctioned as a separate unit. In the case at hand, the phasing out of steam engines and introduction of electric engines led to formation of new department, viz., Traction Rolling Stock (T.R.S). To man the same employees from different departments were given the opportunity to opt for Group ''D'' post in the T.R.S Organization vide letter dated 11.7.1996 issued by the Divisional Railway Manager, the Divisional Head. The letter no doubt contains the stipulation that the candidates will be placed lower in the seniority in grade Rs. 750-940 and their seniority shall be counted from the date of their joining the organization. Since the cadre was not made permanent, promotions within the T.R.S. Organization to higher post of Artisan Grade III and Artisan Grade II was regulated by taking into the seniority from the date of joining the organization. This practice was rightly not faulted with as the promotion within organization were purely temporary and did not confer any substantive right in favour of promotees. However, since the establishment of T.R.S was of permanent nature, policy decision in consultation with the recognized Union was taken at Zonal Level for closure of cadre, i.e., restraining free inflow of personnels from different departments/sections; leading to issuance of circular dated 30.7.2002.

u/s 2(32) of Indian Railways Act, 1989 "railway administration" has been defined to mean that in respect of a Government railway, the General Manager of a Zonal Railway; under whom is vested the general superintendence and control of zonal railway (Section 4(2) of the Railways Act, 1989). Since the policy decision as circulated on 30.7.2002 was taken at level of zonal railway, it will have overriding effect over the decision which was taken at the divisional railway. Thus, the circular dated 30.7.2002 supersedes the letter issued by the Divisional Railway Manager on 11.7.1996. Since the service conditions of the incumbents in T.R.S Organization are governed by Rules and Regulations framed by the Railway Administration, the employer, the employees are governed by all such Rules and Regulations framed during their service tenure from time to time. It cannot be said that since they were brought in the organization with a stipulation that their seniority would be reckoned from the date of their joining the cadre it would prevent the Railway Administration from laying down a policy on the closure of cadre to determine inter se seniority of the incumbent who forms part of the permanent cadre after the closure.

Tribunal in our considered opinion was, therefore, not justified in holding that the circular dated 30.7.2002 is prospective in nature and will not be applicable to the respondents (applicants in O.A. No. 656/2005).

Secondly, the Tribunal has ignored the fact, which makes the decision by the Tribunal directing for construing the seniority from the date of joining T.R.S organization is vulnerable for the reason that ignores the fact that employees from different departments were carved out for their posting in newly constituted T.R.S organization. These employees though carried their respective seniority; however, the date of their relieving from parent department varied; therefore, an employee though senior and opted for his transfer to T.R.S organization from other section/department, will be required to take a position in the seniority list below him. This would create an enormous position as the senior for no fault of his would be placed to the below his service junior. The anomaly would further be (unfounded if the service junior on the basis of the seniority in T.R.S organization is further promoted in the Artisan Grade.

It was to rule out these anomalies the Zonal Headquarter in consultation with the recognized Union decided that after closure of cadre in the T.R.S department the seniority of staff transferred from different units of Central Railway on or before 20.8.2002 shall be based on rules applicable to inter se seniority depending upon the length of substantive post held by these staff in their parent cadre as on 20.8.2002.

In view whereof the direction by the Tribunal for maintaining seniority in the T.R.S cadre on the basis of joining the cadre cannot be given the stamp of approval. Instead we direct that seniority in the T.R.S cadre would be strictly in accordance with the policy decision as contained in the circular dated 30.7.2002.

Next question which arises for consideration is whether in absence of challenge to promotion order dated 16.10.2002; whereby, respondents No. 12 to 20 were promoted as Artisan Grade III, the Tribunal is justified in setting at naught such promotions by dislocating the seniority prepared as per the policy decision dated 30.7.2002.

It is contended on behalf of respondent Nos. 1 to 11 (applicants in Original Application No. 656/2005) that the entire proceedings for promotion of Group D staff in the T.R.S Organization to Artisan Grade III was initiated before closure of the cadre and it was only that, the promotion orders were passed on 16.10.2002 after the closure of T.R.S cadre (which was on 20.8.2002); therefore, these promotions as per the policy decision dated 30.7.2002 ought to have been treated as fortuitous and purely ad hoc.

Paragraph 1.5.1 of the circular dated 30.7.2002 stipulates that, "All promotion order issued for this cadre prior to the date of closure of cadre i.e. 20.8.2002 are deemed fortuitous and purely ad hoc without any prescriptive right for the staff for any such posting, promotion in the grade".

It is a settled principle of law that the promotion is not a right though the consideration is. {For an authority please see Deepak Agarwal and Another Vs. State of Uttar Pradesh and Others, and Jagdish Prasad Vs. State of Rajasthan and Others,

In view whereof the initiation of proceedings for promotion will not create any right in the incumbent for promotion, nor the promotions made at the later dated can be treated from the date of initiation of proceedings. The promotion comes into existence from the date of order.

In the case at hand the promotion of respondent Nos. 12 to 20 since was by virtue of order dated 16.10.2002, i e after 20.8.2002, the date from which the T.R.S Cadre was closed, paragraph 1.5.1 of the circular dated 30.7.2002 does not get attracted as would cause any dent to the order dated 16.10.2002. And in absence of a direct challenge to such order the same ought not have been tinkered with by the Tribunal indirectly.

In view of above analysis we uphold the challenge to the order dated 30.11.2007 passed by the Tribunal in Original Application No. 656/2005. We accordingly set aside the same and dismiss the original application O.A. 656/2005. In the result, petition is allowed. However, no costs.