Full Judgment
V. Ajay Kumar, Member (J) The brief facts, as submitted by the applicant, are that he was originally appointed as an Assistant Station Master (ASM) on 14.11.1999 in Western Central Railway, Jabalpur Division. He got himself transferred from Western Railway to Ambala Division of Northern Railway on mutual exchange basis with one Shri Devinder Kumar, who was working in Ambala Division of Northern Railway. Both of them are belonging to Scheduled Caste Community and the said Devinder Kumar was junior to the applicant. The applicant resumed his duty in Ambala Division on 30.12.2004.
2. It is submitted that, in accordance with rules, when a mutual exchange transfer was allowed, the senior of the two is to be given the position of seniority vacated by the other person, while a junior will be allowed to retain as former seniority and shall be fitted in the seniority list below the persons having the same seniority. Since the applicant was senior to the said Shri Devinder Kumar, he was allowed the seniority of Shri Devinder Kumar in Ambala Division and his name was placed at Sl. No.10 of the Seniority list which was issued by the respondents on 04.09.2008 (Annexure A3).
3. The Railway Board issued a Restructuring Order vide its Notification dated 09.10.2003 and in terms of which, a large number of posts in Group `C and `D were upgraded which were to be filled up by holding a modified procedure of selection, i.e., in order of seniority subject to the rejection of unfit. According to the said Restructuring Order, the benefit of promotion against upgraded posts was to be given from 01.11.2003. However, it was implemented by Ambala Division only on 12.02.2009, vide Annexure A2, by promoting 22 Assistant Station Masters of Ambala Division to the grade of Rs.5000-8000 against the upgraded posts arising out of the said restructuring orders.
4. It is submitted that though the applicant was within the range of number of upgraded vacancies of 22, since the applicant is at Sl.No.10 in the seniority list, but the respondents ignoring the claim of the applicant promoted his juniors in the Annexure A3 seniority list. Against the said Annexure A2, promotion order the applicant preferred a representation. The respondents vide their impugned Annexure A1 dated 08.12.2010 refused to consider the applicant for promotion on the ground that he was not on the rolls of the Ambala Division as on 01.11.2003, as required under the Restructuring Order.
5. The applicant submits that he came to Ambala Divsiion, on mutual transfer basis, in place of one Shri Devinder Kumar and the said Devinder Kumar was very much on the rolls of the Ambala Division as on 01.11.2003 and hence, the applicant is entitled to all the benefits would have accrued to the said Devinder Kumar. Accepting the same the respondents themselves placed the applicant at Sl. No.10 in the seniority list and hence now they cannot deny the benefit of promotion to the upgraded post in the grade of Rs.5000-8000, with effect from 01.11.2003.
6. The respondents filed a detailed counter denying the OA averments. They have stated that the applicant resumed duty in Ambala Division on 30.12.2004 on mutual exchange transfer. He was assigned seniority at Serial No.10 vide letter dated 04.09.2008 vice Sh. Devinder Kumar. Before he joins in Ambala Division, promotion under cadre restructuring was ordered to be implemented from 01.11.2003. These promotions are to be issued with reference to the sanctioned cadre strength as on the date following the date on which the cadres in the Headquarters Offices of New Zonal Railways/New Divisions are closed (Railway Board letter No.PC-III/2003/CRC/VI, dated 09.10.2003). Annexure R-I. Further, the letter dated 09.10.2003 specifically provide that, ‘the benefit of the restructuring will be restricted to the persons who are working in a particular cadre on the cut off date. As per Railway Board Letter No.E(NG)-I/96/TR/36 Vol.IV dated 29.09.2003 Annexure R-II, the date of closure of cadres in their HQ. Offices of all the seven New Zonal Railways has extended upto 31.10.2003. As such order of promotion against upgraded restructuring post are to be implemented from 01.11.2003. As the restructuring promotional orders were under process, the instructions with regard to reservation to SC/ST wherever applicable was challenged in the various courts. Finally Honble Supreme Court vide its orders dated 29.07.2008 in OA No.6934-46/2005, Union of India v. Pushpa Rani and Others has decided that existing instructions with regard to reservation of SC/ST wherever applicable continues to apply and General Manager, Northern Railway circulated the instructions on 05.08.2008 and posts kept reserved for SC/ST candidates were filled up on 12.02.2009. These promotion orders take effect from 01.11.2003. Since the applicant was not working in Ambala Division as on 01.11.2003 (cut off date) as such he is not due any benefit. Therefore, just because he was given the seniority place occupied by Shri Devender Kumar, he is not entitled for the upgraded post, as he was not on rolls of Ambala Division as on the cut off date, i.e., on 01.11.2003.
7. Heard the learned counsel for the applicant, Ms. Meenu Mainee, and the learned counsel for the respondents, Shri Rajinder Khatter and have been through the pleadings on record.
8. Shri Rajinder Khatter, the learned counsel for the respondents, inter alia, submits that when the applicant is claiming a right for consideration of promotion under the said Restructuring Order on the basis that whatever benefits and rights would have accrued to one Shri Devinder Kumar in whose place he came to Ambala Division, on mutual transfer, ought to have made him and the Jabalpur Divison Railway authorities as party respondents to the OA. Further, as per the restructuring order, the benefit of promotion can be given to a limited ASMs who were on the rolls of Ambala Divison as on 01.11.2003 and who come up within the zone of consideration as per their seniority as against the available restructured vacancies. Accordingly, the respondents promoted 22 ASMs who are in the grade of Rs.4500-7000 to the grade of Rs.5000-8000, who are on the rolls of Ambala Division as on 01.11.2003, w.e.f. 01.11.2003. If the applicants claim is to be considered, one of them is to be reverted back. Therefore, Shri Devinder Kumar, the Jabalpur Division Railway authorities are the necessary parties and the persons who got the promotion under Annexure A2 are the affected parties. The OA which is filed without making them as party respondents, is liable to be dismissed for non-joinder of necessary and affected parties.
9. The learned counsel further submits that the applicant is seeking to promote him in the grade of Rs.5000-8000 w.e.f. 01.11.2003 in terms of Annexure A2 order dated 13.02.2009, on which date cause of action arose for the OA. Since the applicant filed the OA on 09.11.2011, the same is time barred and liable to be dismissed.
10. Though the Railway Board issued the Notification on 09.10.2003, for restructuring of various posts, but in fact, implemented the said order only in February, 2009 vide Annexure A2. The representation preferred by the applicant against the same was disposed of by the impugned Annexure A1 dated 08.12.2010. The applicant preferred the present OA on 09.11.2011, i.e., within one year from the date of rejecting of the representation. Therefore, the OA is within limitation and the contention of the respondents in this regard is rejected.
11. The applicant though admittedly was not on the rolls of Ambala Division as on 01.11.2003 but claiming his right for consideration for promotion to the restructured grade of Rs.5000-8000 on the ground that Shri Dinesh Kumar in whose place he came to Ambala Division on mutual transfer, was very much on rolls of Ambala Division as on the crucial date of 01.11.2003. The applicant not stated whether he was entitled for the restructured grade promotion in Jabalpur Division since he was on the rolls of the said Division as on the crucial date of 01.11.2003. When the applicant is claiming his right through the aforesaid Devinder Kumar, it is for the applicant to show that the said Devinder Kumar is entitled for consideration of his case for promotion against the restructured grade of Rs.5000-8000, by furnishing all the relevant details, before claiming his right through him. In the absence of these facts and information, the OA deserves to be dismissed.
12. In the result, the OA is dismissed. No order as to costs.