Judgment:
Govind Mathur, J.
1. By judgment dt. 23.05.2008 the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dismissed the original application preferred by the petitioner giving challenge to the letter dt. 13.01.2006/22.02.2006 assigning seniority to the private respondents (respondents No. 6 to 13) above the petitioner in the cadre of Enquiry-cum-Reservation Clerk (hereinafter referred to as 'ECRC').
2. In brief, facts of the case are that the petitioner entered in the services of Indian Railways being appointed as Booking Clerk on 01.02.1979. A promotion was accorded to him as Senior Booking Clerk w.e.f. 31.07.1992. By acting upon a request made by the petitioner his category was changed from Booking Clerk to ECRC under a letter dt. 09.05.1994 issued by the General Manager, Northern Railways with following conditions:
(1) to grant bottom seniority as per existing Rules; and
(2) passing of prescribed course of ECRC i.e. T-12.
3. The condition of passing T-12 course was satisfied by the petitioner on 07.10.1994.
4. The private respondents (respondents No. 6 to 13) were also working as Booking Clerks and promotion was accorded to them as ECRC under a letter dt. 04.07.1994 with a condition that they have to qualify T-12 course commencing from 05.07.1994 and on getting failed in T-12 course, they shall be reverted back to their original post. The private respondents qualified T-12 course in the month of February, 1997, that is quite later than the petitioner.
5. At first instance, under a letter dt. 02.04.1998 seniority was assigned to the petitioner in between the names of Shri Gopal Lal Kalla and Shri Sher Dil Khan and that was above private respondents. By acting upon the representations given by the private respondents, the Assistant Personal Officer, North Western Railways, Jodhpur placed the private respondents above the petitioner in the seniority list relating to ECRCs and amendment was accordingly made in the seniority list dt. 02.04.1998.
6. A representation submitted by the petitioner questioning change in his seniority in the cadre of ECRC also came to be negatived by the Senior Zonal Personal Officer, North Western Railways, Jodhpur vide letter dt. 12.04.2006. As per letter aforesaid the private respondents were promoted to the post of ECRC, thus, their seniority was reckoned as per provisions of para 302 of the Indian Railway Establishment Manual (hereinafter referred to as 'IREM') whereas seniority of the petitioner was determined in accordance with para 303(a) of the IREM being relevant for direct recruitment.
7. Learned Central Administrative Tribunal while rejecting the original application preferred by the petitioner giving challenge to the decision of the respondents No. 3 to 5, held that the seniority to the petitioner was assigned as per Rules in force, thus, no irregularity or illegality in passing the impugned orders was committed.
8. The contention of counsel for the petitioner is that for appointment to the post of ECRC, may that be by way of promotion or direct recruitment, passing of T-12 course is a condition precedent and the petitioner qualified the same quite earlier than the private respondents, therefore, his seniority is required to be reckoned from the date of joining as ECRC after qualifying the T-12 course, similarly the seniority to the private respondents should also be assigned from the date they qualified the prescribed test i.e. of T-12. It is specifically pointed out by counsel for the petitioner that promotion of the private respondents was subject to qualifying T-12 course within a period of two years from the date of their promotion i.e. 04.07.1994 but they passed the same in the month of February, 1997, i.e. after the lapse of time given.
9. While defending the judgment dt. 23.05.2008, the stand of the official respondents is that appointment was given to the petitioner by way of change in category against the vacancy relating to direct recruitment, with a specific condition that he shall be assigned bottom seniority as per Rules and, therefore, he was placed at a lower pedestal in the seniority than the private respondents who were promoted to the post of ECRC. While admitting the fact that private respondents qualified T-12 course in the month of February, 1997, it is stated by counsel for the official respondents that their seniority was related back to the date of their promotion as per existing Rules, however, no such provision is shown to us. A printed circular No. 10914 dt. 13.09.1994 relating to promotional courses is apprised to the Court, according to which in case a person promoted to a selection post where training is a pre-requisite and if he fails to qualify the same within the time prescribed, then his name has to be deleted from the penal with approval of competent authority.
10. As said above, the private respondents qualified T-12 course in the month of February, 1997 i.e. after a period of two years prescribed to them under the order of promotion dt. 04.07.1994. The private respondents, therefore, should have been reverted back to their original post on the count of non-qualifying the prescribed course within the time limit prescribed, however, that was not done.
11. Be that as it may, learned Tribunal, while rejecting petitioner's claim, held that 'in terms of para 303(a) of IREM since he has been permitted to change category on his own request against direct recruitment quota whereas the promotees will get seniority as per para 302 of IREM since their seniority has been assigned from the date of entry to the grade'. Para 302 of IREM provides that unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. Para 303 of IREM relates to determination of seniority at the time of initial entry in services and according to that, the candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in order of merit obtained at the examination held at the end of the training period before being posted against working posts. As a matter of fact the distinction made by the Tribunal that para 302 of IREM relates to determination of seniority of promotees and para 303 for reckoning seniority of direct recruits is not correct. True it is, para 303 of IREM relates to interse seniority of direct recruits in one selection but para 302 of IREM is not confined to promotees but it pertains to determination of seniority among the incumbents holding a post in one grade, irrespective of the mode of recruitment and the thrust of para 302 of IREM is to assign seniority in a grade from the date of appointment to that specific grade.
12. The petitioner was appointed as ECRC under the letter dt. 09.05.1994 subject to passing of prescribed course i.e. T-12 and he qualified the same on 07.10.1994. The private respondents were promoted as ECRC vide letter dt. 04.07.1994 and they qualified T-12 course in the month of February, 1997. From both the aspects i.e. of date of issuance of appointment order to the post of ECRC, may that be by way of change of category (relating to the petitioner) or by way of promotion (relating to the private respondents) and by taking into consideration the date of qualifying the prescribed course, the petitioner was appointed to the grade concerned prior to the private respondents. In view of that there was no occasion for the respondents to assign seniority to the petitioner below the private respondents. As a matter of fact seniority of the petitioner and the private respondents was required to be determined by taking into consideration the date of their appointment to the grade concerned. The petitioner was admittedly appointed prior to the private respondents as ECRC and, therefore, he was certainly senior than the private respondents. Learned Tribunal failed to appreciate the factual legal position discussed above.
13. In view of whatever discussed above, we are inclined to accept this petition for writ. Accordingly, the same is allowed. The judgment dt. 23.05.2008 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 92/2006 is quashed. The original application preferred by the petitioner is allowed. The letter dt. 13.01.2006/22.02.2006 assigning seniority to the private respondents above the petitioner and also the letter dt. 12.04.2006 rejecting petitioner's representation are quashed. The private respondents No. 6 to 13 are declared as juniors to the petitioner in the cadre of ECRC. The seniority position of the petitioner is restored as per letter dt. 02.04.1998 and he is also declared entitled to receive all consequential reliefs flowing thereof.
14. No order to costs.