1. In this OA, applicant impugns Railway Board's order of 17.3.2003 wherein her representation assigning seniority in accordance with para 312 of IREM Volume I was rejected.
2. Briefly, the facts are that applicant was appointed as LDC in RDSO, Lucknow, on compassionate grounds, due to sudden death of her young husband. Subsequently, at her own request, she was transferred to Railway Board's office at Delhi on specific terms and unambiguous conditions which included that she would be considered for absorption after one year, subject to passing the prescribed typewriting test.
3. At the outset, before arguments began, Shri A.P. Sahay, counsel of the respondents raised a preliminary objection that this case was barred by limitation. He contended that applicant was given appointment on compassionate grounds, without passing qualifying examination etc.
and given an ad hoc appointment order on 20.8.1983 on special terms and conditions. After accepting appointment in 1983 she worked at Lucknow and then came to New Delhi. Now for the first time she questions her appointment letter in representation dated 18.9.2002 and letters dated 20.3.2003 and 24.3.2003. It be noted that the first representation was submitted 18 years after she joined service. It is thus hopelessly time barred.
4. The counsel for applicant, Shri B.S. Mainee, then began arguments and forcefully contended that injustice had been meted out to applicant by Railway authorities on the following grounds: (i) The initial order of 20.8.1983 laid down the condition of absorption, after completion of one year service, subject to passing of prescribed typewriting test for LDC, with lien to continue in RDSO Lucknow till then. However, on transfer to Railway Board at the lowest rung of hierarchy, there ought to have been no further question of absorption since she was given the bottom seniority with reference to her date of joining. Representation was made as soon as applicant came to know that a different criteria was applied in her case. Hence, the question of delay is unfounded.
(ii) Moreover, for similarly circumstanced persons, also transferred at their own request, question of absorption and qualifying typewriting test were reviewed by the Railway Board and conclusion drawn that link between absorption and the qualifying test will not be made as per rules contained in Para 312 of IREM Vol. I. This rule is quoted below: 312. Transfer on request The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.
Note : (i) This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway (Rly. Bd. No. E(NG)I-85 SR 6/14 of 21.1.1986).
(ii) The expression 'relevant grade' applies to grade where there is an element of direct recruitment. Transfers on request from Railway employees working in such grades may be accepted in such grades. No such transfers should be allowed in the intermediates grades in which all the posts are filled entirely by promotion of staff from the lower grade(s) and there is no element of direct recruitment.
(No. E(NG) I-69 SR 6/15, dated 24.6.1969) ACS-14.
It is contended that above rule was not applied to applicant and other persons were given seniority from the date of joining but applicant was made to wait for passing of typewriting test and assigned seniority thereafter. This mistake committed in her case has not been rectified.
(iii) The counsel then contended that when her representations were examined, it was seen that the conditions stipulated in her transfer order was the practice followed in cases of ad hoc appointees and did not apply to regular appointees. Counsel argued that applicant is a regular appointee since she was appointed on compassionate grounds.
(iv) As per Rules FR 26, LDCs promoted from lower grades, who were unable to pass typewriting test, would be exempted there from after 5 years of service. Hence, it is contended that the typewriting test is not for fixing seniority but for giving increments and if the test is not passed, then 5 years increments may be withheld. (v) The preliminary objection raised by respondents of negligence or delay on side of the applicant is unfounded. When cause of action arose, she filed a case. This happened when she was informed about orders passed in 2001 in case of her colleagues, i.e. Bhawana and Mamta Gosain. Moreover, Apex Court rulings exist wherein old cases of even of 21 years delay have been condoned, if explanation and circumstances of the case are genuine See Nand Kishore v. State of Punjab , N. Balkrishnan v. M. Krishnamurty 1987 (7) SCC 123, State of Bihar v. Kameshwar Prasad SLJ 2001 (1) SC 76. To substantiate this plea, applicant rely on various rulings to cover fact that this case is not time barred and can be taken for impleadment, even at this late stage: (a) V.P. Srivastav and Ors. v. State of M.P. and Ors. SC SLJ 1996 (1) 253.Rajbir Singh and Ors. v. Union of India and Ors. CSJ 5. The respondents besides reiterating the objection of inordinate delay, have refuted other contentions raised: (i) Applicant joined service on 20.8.1983 on an 'ad hoc basis', on a compassionate appointment on very specific terms and conditions which she had accepted and made no demur on for 18 years. The orders read: (i) Her appointment in Board's Office will be purely on ad hoc and temporary basis. She will be considered for absorption in Railway Board after completion of one year service in Board's Office and subject to their passing the prescribed type writing test in English at a speed of 30 Words Per Minute. Accordingly, her lien may be retained in RDSO till such time she is absorbed in Board's Office and she should continue to be considered for promotion to higher posts in RDSO. (ii) No deputation allowance or any other Special Pay will be allowed to her.
(iii) She will have to make her own arrangements for residential accommodation in Delhi as it will not be possible for the Government to provide any accommodation unless her turn comes for allotment out of the General Pool accommodation controlled by the Director of Estates.
It is thus clear that her appointment was purely ad hoc and not regular. Compassionate appointments are certainly made for a particular purpose and if later the person is found unfit for the job, the employer also must have rights. The very fact that if the Government, as a model employer has thought fit to grant compassionate appointment, it must not lead to a situation that the concerned employee can take advantage of this largesse.
(ii) The rule referred to by applicant is Rule 312 of IREM Vol. I, which is quoted above. However, applicant is governed by Railway Board Secretariat Clerical Services Rules, 1970 in which para 9 is relevant which deals with filling up of vacancies in a prescribed manner, which has been followed in this case. This Rule 9(b) lays down: Vacancies may be filled provisionally or on regular basis in such manner as may be prescribed by the Central Government in the Ministry of Railways.
If the applicant was given a provisional appointment on a post and then seniority was assigned on passing a test etc., it is as per laid down rules. This was also within terms and conditions of her initial appointment.
(iii) The appointment of applicant to the Railway Board was considered to post of LDC vide memorandum dated 8.10.1987 (Annexure R-2) wherein conditions of appointment in the clerical cadre were laid down. It included the fact that appointment was purely temporary and that seniority will be from the date shown against each person and she would also rank junior to all permanent/temporary/regular candidates appointed on the basis of examinations held in the year 1985 by the Staff Selection Commission etc.
The applicant gave unconditional willingness to abide by all terms and conditions incorporated in above memorandum and it was only after unconditional acceptance of terms and conditions by the applicant vide letter dated 14.1.1988 that she was appointed as LDC from 1.5.1987, on ad hoc basis. In this backdrop, it is unfair of applicant to now agitate this issue.
(iv) The plea that other persons have been absorbed is also unwarranted. She had accepted date of seniority as 1.5.1987 as also fact that it would be treated as final and no request for revision/representation would be entertained. The principle of estoppel must now prevail as she cannot agitate on an issue which she had unconditionally accepted. If Government policy changes and certain persons who are regular appointees are given seniority from date of joining etc. it cannot be a cause to re-open issues.
(v) It is to be also noted that vide letter dated14.1.1988 (Annexure R-4) her seniority was to be below regular candidates of SSC for the year 1985. The conditions governing her appointment was that she would be absorbed/assigned seniority after passing the typewriting test. After passing the typing test on 23.4.1987 she was immediately absorbed on 1.5.1987. Hence, later the argument that typewriting test be not linked to seniority and be taken for sake of increments only is facetious. As per the conditions of her transfer/appointment in Railway Board she was to be given seniority below new entrants in service which was 1985 batch of LDC recruited from SSC. This fact was informed to her and she had accepted the same. However, 1985 batch started joining in 1986-87 and hence possibly the applicant got agitated.
6. We have heard the learned Counsel for the parties and perused the rules on the subject.
7. It is seen from the facts on record that the appointment order of the applicant was specific and laid down various conditions of her service which were unconditionally accepted by applicant, at every stage. Her appointment was on compassionate grounds. There was no probation and she was taken in service without a pre-qualifying test or any selection process. It is not correct on the part of the applicant's lawyer to contend that she was a regular appointee and had to be given all the rights as a regular employee who had come in from a direct selection process e.g. the Staff Selection Commission. It is seen that in 1987, she transferred to the Railway Board, New Delhi, at her own request and again on very specific conditions, and after giving an unconditional willingness. After keeping silent for over 18 years, she has now approached the Tribunal to challenge impugned order dated 20.8.1983. Any changes now made by respondents, will affect others, who have not been made parties in the present case. The applicant's counsel would argue that the cause of action occurred later, i.e., 2001, after others were given seniority and stole a march on the applicant. This argument is also fallacious since the orders of Railway Board in the case of applicant were on a different footing than others. She was moreover, given every opportunity to accept or reject specific orders which were passed to accommodate her, at every stage. The Government has every right to evolve and change rules and regulations and if there was a practice, which needed to be changed after some years, Railway authorities had every right to do so and if those changed orders gave advantage to other employees etc., she has no grounds to agitate.
8. We have to keep in mind that the Railway Board has an onerous task on itself and employs over 14 lakhs of employees of different cadres and hence there would be many issues which crop up, every few years and need a fresh application of mind in a changed scenario. Often a pragmatic approach has to be taken by the authorities while applying rules and regulations in the best possible manner for the greatest good of their employees.
9. Shri B.S. Mainee, applicant's lawyer vehemently argued that in so far as policy of the Railway Board is concerned, applicant cannot be deprived of her rights due to change of orders of Railway Board. In the year 1998-99 the whole policy with regard to transfer of staff from Zonal Railways/RDSO on their own request was revised. The concept of absorption of LDC in the Railway Board's office was dispensed with.
Further seniority to such candidates was made effective from the date of joining the Board's Office in a prospective manner and not retrospectively to candidates who had already joined as per their existing terms and conditions. This, however, could not be applied to the applicant's case since her appointment etc. was on a different footing.
10. The applicant has also argued that since cause of action arose at a later date See Shri Uttam Naryana Nayak v. Union of India SLJ 197 (3) CAT 92, her representation was made accordingly. The question of laches and delay argued by Shri Sahay overrides this plea and we tend to agree with the case laws submitted by him on the subject:G.C. Gupta v. N.K. Pandey AIR As seen the applicant was not similarly circumstances as those who stole a march over her. Her terms of appointment were different and she had unconditionally accepted the same and cannot now agitate for something decided 20 years back. This, as seen, would also affect the rights accrued to many others who are not parties in this case. This is covered by the decision of the Apex Court in Bimlesh Tanwar v. State of Haryana it was held that settled seniority cannot be unsettled and moreover she has not made all the affected persons as parties as held in Raj Bir Singh HFS II v. State of Haryana .
11. In view of the above, OA being without merit is dismissed. No costs.