| SooperKanoon Citation | sooperkanoon.com/54937 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Sep-15-2006 |
| Judge | B Rao, B A A.R. |
| Reported in | (2007)(1)SLJ350CAT |
| Appellant | Ashwani Kumar Malhotra |
| Respondent | Union of India (Uoi) and ors. |
(b) to pass an appropriate order directing upon the respondents to assign the correct relative seniority position of the applicant, vis-a-vis, the respondent No. 3 in terms of the Railway Board's Circular dated 10.4.1970 as well as judgment and order passed by the Hon'ble CAT, Allahabad dated 26.4.2002 in O.A. No. 489 of 1989.
(c) to pass an appropriate order directing upon the respondents to consider the representations submitted by the applicant dated 20.10.2005 and 19.12.2005 in respect of assigning of correct seniority position to the applicant.
2. The brief facts giving rise to the filing of this case are as follows: The applicant was selected by the UPSC for appointment to Indian Railway Service Mechanical Engineer Officers 1973 examination (direct batch). On being qualified he was appointed to the post of AME (Probationer) w.e.f. 21.10.74. During the course of his employment he got several promotions and at present working as CPO, Eastern Railway, Headquarters, Calcutta. According to rules, for direct recruitment to the Indian Railway Service of Mechanical Engineer Group 'A', two methods are applied, i.e. 50% through combined Engineering Services Examination for Graduate Engineers; and the rest 50% through the Special Class Railway Apprenticeship (SCRA) examination. An appointee (sic) Special Class Railway Apprentice has to undergo practical and theoretical training for a period of 4 years at the Indian Railway Institute of Mechanical and Electrical Engineering, Jamalpur. As per rules, Special Class Railway Apprentices have to pass either Part-I and Part II of CEI (London) or Sections A and B of the AMIE (India) Examination within the said period of 4 years. Additionally, such Apprentices are also required to pass the examination conducted by the said Institute at Jamalpur. After passing of the examination such Apprentices are appointed as Probationers in the Indian Railway Service of Mechanical Engineers (IRSME). In other words, clearance of all the papers of Sections A and B of the AMIE (India) or Part I and Part II of CEI (London) is mandatory for appointment in the IRSME. In this regard, the Ministry of Railways (Railway Board) issued instruction in April, 1970 regarding the date of appointment as a probationer of the apprentices who fails to pass the aforesaid examination within the period of 4 years. According to the said instruction dated 10.4.70 (Annexure-A) such apprentices get another extended year for passing such examination, otherwise their appointment is liable to be terminated.
3. Respondent No. 3, Shri Khosla was appointed as Special Class Railway Apprentice on 13.1.1970, i. e. prior to the applicant on the basis of his selection in the SCRA examination of 1969. He joined service on 13.1.70 and according to the extant rules he has to complete the requisite examination within 4 years, i.e. within 12.1.74. However, he could not clear the examination in full within those 4 years and, therefore, he was granted one year extension and he cleared such examination in 1975, i.e. beyond the extended period of one year, i.e.
after 5 years and 2 months. The applicant, however, cleared the requisite examination within 4 years of his appointment as probationer.
4. The case of the applicant is that in the Classified list of Gazetted Establishment of Indian Railways of 2000, the applicant was placed above Shri Khosla on the ground that the applicant passed the examination within the first 4 years, whereas the respondent No. 3 even though his senior, having been appointed in much earlier batch, could only clear the examination in full in the year 1975. In fact, Shri Khosla (1969 batch) was placed above one Shri G.N. Asthana and below Shri Girish Kumar and 8th position below the applicant (1973 batch) in seniority. The applicant came to know from the Classified List of Gazetted Establishment of Indian Railways of 2005 that Shri Khosla's position was elevated above one Shri Kaushal Kishore and below Shri H.C. Joshi and in fact he jumped 19th position above in seniority and thereby became much senior to the applicant although he was earlier shown as junior to the applicant. According to the applicant, the upgradation of the seniority position of respondent No. 3 was contrary to the Railway Board's instruction dated 10.4.70 referred to earlier.
In fact, the sole case of the applicant is that since respondent No. 3 could not pass the requisite examination within the first four years of his probation and could only complete his examination in March 1975, i.e. even after the extended period of one year (5th year), whereas he (the applicant) having passed the requisite Examination in full earlier and within 4 years term, he ought to have been placed as senior to respondent No. 3 as was done in the 2000 Estt. Classified List. He made representations against depression of his seniority position but to no avail.
5. It is revealed that Shri Khosla filed a case before the Principal Bench of the Tribunal being O.A. No. 945 of 1994 claiming that his seniority should be reckoned from the date of completion of 4 years of service irrespective of the fact that he could not pass the examination within that period. His contention was that in case of some similarly situated persons like one Shri P. Bahadur (1966 batch), the Railway respondents granted the benefit of seniority on completion of 4 years of service notwithstanding the fact that those persons also did not pass the requisite examination in full within that period and could pass such examination long thereafter. In the O.A. before the Principal Bench, the present applicant was not impleaded as a party respondent even though his seniority position has been adversely affected. The Principal Bench by decision dated 14.8.99 allowed the application of the respondent No. 3 and held that the respondent authorities could not have discriminated against him and accordingly directed that the seniority of respondent No. 3 should be fixed on completion of 4 years' probation irrespective of his passing the examination within the said period as was done in respect of other similarly circumstanced officials. This decision of the Tribunal was carried before the Hon'ble Delhi High Court in C.W.P. No. 2384/2000 which was disposed of on 14.12.2000 upholding the decision of the Principal Bench. Pursuant to that decision, the respondent authorities refixed the seniority of the respondent No. 3 by issuing a notification dated 12.4.2001 in implementation of the decision of the Principal Bench as confirmed by the Hon'ble High Court, whereby by respondent No. 3 has been placed at Sl. No. 67 below Shri A. Sud (Sl. No. 66) and above Shri C.B. Midha (Sl. No. 67 of old list). In other words, the respondent No. 3 was granted seniority with effect from 13.1.74 (on completion of 4 years) instead of 10.3.75 (the date of passing the examination). The applicant states he was not aware of such decision as in the said O.A. filed by the respondent No. 3, he was not arrayed as a party nor such decision of alternation of seniority of respondent No. 3 was ever communicated to him, although he was seriously effected by such revision of seniority. The applicant has contended that one Shri A.K. Mishra earlier had filed on O.A. being O.A. 489/89 before the Allahabad Bench of the Tribunal which was decided on 26.4.2002, i.e. after the decision in the O.A. 945/94 rendered on 14.8.99 although the case was filed earlier. In that case the applicant (A.K. Misra) ventilated his grievance that some other officials of his batch viz. S/Sri R. Chandra, S.C. Gupta, P. Bahadur, D.P. Singh and M.L. Gill, who could not pass the requisite examination within 4 years of their initial appointment on probation, were granted seniority from the date of completion of 4 years, whereas in his case such principle was not followed. The Tribunal decided the said O.A. vide its order dated 26.4.2002 and directed the Railway respondents to correctly fix the seniority of the applicant (Shri Misra) and respondent No. 3 (Shri P. Bahadur) strictly in accordance with rules and instructions and made adverse comments against the Railway respondents' action in deviating from the instructions issued by the Railway Board on the subject. Pursuant to that decision, a show cause notice was issued to the affected officials i.e. R. Chandra etc., as named above and their seniority position was revised from the date of passing the examination and not from the date of completion of 4 years vide notification dated 11.2.03 (Annexure-R4 to the reply).
6. The applicant now by filing this O.A. wants that his seniority position be restored above respondent No. 3 by invoking the principle enunciated in the judgment of the Allahabad Bench in the case of A.K.Misra v. Union of India and Ors. in O.A. No. 489 of 1989 by determining the seniority from the date of passing of the examination in full and not in part.
7. The Railway respondents have contested the case by filing written reply in which they have stated that pursuant to the direction of the Principal Bench, as confirmed by the Hon'ble Delhi High Court they have revised the seniority of Shri Khosla and therefore the applicant cannot challenge the same now. It is also stated that they have also complied with the decision of the Allahabad Bench of the Tribunal dated 26.4.02 in accordance with the order dated 10.4.70 and a revised seniority list was published on 6.2.03 (Annexure-R4). They have further contended that the Classified Lists of 2000 and 2005, on which the applicant has placed reliance, in fact are not the seniority list; they are only compilations of list of the officers in different Departments and it has been clearly indicated that "the position of an officer in the list does not necessarily show his seniority.
8. It is not denied by the official respondents as per Board's instruction dated 10.4.70, date of appointment of a probationer who could not pass the first two parts of CEI(London) or AMIE (India) examination within 4 years of their probation period, will be determined only from the date they pass the examination in full. It is admitted that the respondent No. 3 could not pass the examination within due date, i.e. 12.1.74 and could finally cleared the external examinations only on 10.3.1975. However their case is that in terms of the directions of the Principal Bench, as vetted by the Hon'ble Delhi High Court they have granted seniority to the respondent No. 3 from the date of completion of four years i.e. 12.1.74 instead of 10.3.75 and necessary notification was also circulated to all concerned by letter dated 4.3.2002 (Annexure-R7). So far as the case before the Allahabad Bench is concerned, it is stated that the said decision was only confined to 1966 batch officials and therefore the applicant cannot claim the benefit of the same.
9. The respondent No. 3 has also filed a written reply separately. He has taken a preliminary objection that the O.A. is barred by limitation, because his seniority was revised in 2001 whereas the present application has been filed in 2006. Additionally, he has also taken the point that since his seniority has been fixed in terms of the direction of the Principal Bench as approved by the Hon'ble Delhi High Court, this Tribunal has no jurisdiction to interfere with the same.
Further, the respondent No. 3 has submitted that it is wrong to say that he cleared the requisite examination beyond 4 years. By annexing a copy of his result (Exhibit R-IX), he has submitted that it is clearly certified that he passed Sections A and B examinations in November, 1973 and Winter 1974. This certificate is dated 29.7.1975. His contention is therefore that his case has been misunderstood and in fact he passed the examination within the stipulated period of 4 years.
Hence, his seniority has been rightly fixed notwithstanding the decision of the Principal Bench. He also contends that as he was recruited in earlier batch, the applicant cannot claim seniority over him in any circumstances.
10. We have heard the learned Counsel for the parties at length. After conclusion of hearing all the parties have submitted separate written notes of arguments in support of their case. We have carefully gone through the same. We have also gone through the various documents produced, decisions relied on by the parties and also the decisions of the Principal Bench also the decision of the Allahabad Bench referred to earlier.
11. In this case the short question that falls for our decision is whether the applicant can claim seniority over respondent No. 3, whose seniority was said to have been fixed in terms of the direction of the Principal Bench as approved by the Hon'ble Delhi High Court, although he was not a party to that proceeding.
12. It is not in dispute that the applicant was appointed as probationer AME on 21.10.74 after qualifying the requisite examination as Special Class Railway Apprentice. He cleared the requisite examination of Part A and Part B of AMIE (India) within 4 years and was appointed to the service on regular basis on 21.10.74. As against this, respondent No. 3 was appointed on 13.1.70, but he could pass the examination on 10.3.75, i.e. after 5 years and 2 months although he has to pass such examination within 4 years, i. e. 12.1.74. Initially, the seniority position of the respondent No. 3 was fixed 8th position below the applicant. However, it is alleged that after the decision of the Principal Bench, the position of the respondent No. 3 was upgraded much above the applicant, i.e. about 19th position. This is because the respondent No. 3 has been granted seniority on completion of 4 years on 12.1.74, although he did not pass all the examinations. According to the applicant, this is contrary to the instruction of the Railway Board of 10.4.70. The applicant has mainly claimed benefit of the decision of the Allhabad Bench in O.A. 489/1989 dated 26.4.2002 A.K. Misra v. UOI and Ors. In that case Shri A.K. Misra of 1966 batch claimed that in respect of P. Bahadur of his batch (1966 batch) respondent No. 3 in that O.A. was granted seniority from the date of completion of 4 years and therefore he should also be granted similar benefit. The Tribunal vide its judgment directed the Rly. Authorities to fix the seniority of the respondent No. 3 from 10.3.74 regarding date of appointment only after completion of the requisite examination and accordingly redrawn the seniority list correctly. This decision was implemented by the respondent authorities whereby the date of passing of the examination was taken into account redrafting the seniority list of 1966 batch officials. The applicant in this case also claims similar treatment so that he would regain his seniority above respondent No. 3 i.e. by fixing seniority from the date of passing the examination in full.
13. The official respondents have contended that the decision of Allahabad Bench is restricted only to 1966 batch officials and, therefore, the applicant cannot claim the benefit of the same. It is also their case that the seniority of the respondent No. 3 was fixed in terms of the direction of the Principal Bench as approved by the Hon'ble High Court and hence the applicant cannot raise any grievance against the same at this stage. The respondents are duty bound to carry out the decision of the competent Court of Law. The respondent No. 3 in his written argument has contended that not only this O.A. is barred by limitation, but this Tribunal is also incompetent to decide the matter inasmuch as his seniority has been refixed by a decision rendered by the Coordinate Bench and confirmed by the Hon'ble Delhi High Court which is a higher forum.
14. Before we proceed further we may first consider the question of limitation and maintainability as raised by the respondent No. 3. The case of the respondent No. 3 is that his seniority position was revised by order issued by the respondent authorities dated 12.4.01 in pursuance of judicial decision referred to above. This order was also communicated to various Zonal Railways vide order dated 4.3.2002. The respondent No. 3 contends that the present application having been filed in the year 2006, it is hopelessly barred by limitation. As against this, the claim of the applicant is that he was not a party in the case before the Principal Bench, nor the decision of the Principal Bench was ever communicated to him personally. In support, he has produced a letter dated 10.5.06 issued by DRM Jodhpur intimating that as per the available records, the aforesaid Railway Board's order/letter dated 4.3.2002 and 12.3.01 were not received in their office. The applicant submitted that since he was not aware of such revision, nor he was a party before the Principal Bench, and that when it came to his notice in 2005, he submitted representations for restoration of his seniority. Having failed to get favourable response from the authorities, the present O.A. has been filed and therefore it cannot be said that the same is barred by limitation. It is also his case that since he has claimed the benefit of Allahabad Bench judgment, the law of limitation will not apply. The applicant has also submitted that since he was not a party before the Principal Bench, the decision which adversely affected his seniority, he has the right to file original application in terms of the decision of the Hon'ble Supreme Court in the case of K. Ajit Babu 1998(1) SLJ 85 (SC) : 1997 (SCC) L&S 1520. His contention is that he could not file any Review Application in the earlier O.A. before the Principal Bench and therefore he had no other alternative but to file this O.A.15. We have considered the matter very carefully. It is now well settled principle of law that when seniority is challenged, all the persons likely to be affected should be made parties. The applicant has further relied on the decision of the Hon'ble Supreme Court in the case of Ramesh Chandra Sharma v. Udham Singh Kamal and Ors. 2000(2) SLJ 89 (SC) : 2000 SCC (L&S) 53, wherein it has been held that when similarly placed employees are given any benefit by a judicial pronouncement, the benefit of the same has to be extended to others and in such cases, the law of limitation will not stand in the way as infringement of Article 14 of the Constitution has been alleged.
16. In K. Ajit Babu 's case in similar circumstances where seniority of non-party was affected by a decision, it was held by the Hon'ble Apex Court that the employees who were not party to the said decision, could very well challenge the refixation of seniority by filing an original application under Section 19 as it will give rise to fresh cause of action and if such an application is filed, the Tribunal consider it on merit in accordance with law. If the Bench concerned dissents from the view taken in the earlier decision, the matter can be referred to a larger Bench.
17. After considering the matter from all angles, we are of opinion that the present O.A. cannot be said to be hit by law of limitation as the applicant's seniority position has been affected due to implementation of the decision of the Principal Bench in which he was not a party. It is also not established that the decision to revise the seniority of respondent No. 3 was communicated to the applicant by the authorities. It is also not disputed that the representations filed by the applicant against the refixation of seniority against respondent No. 3 were not replied to. In such a situation the remedy to the applicant is to file an O.A. ventilating his grievance against revision of his seniority and the Tribunal is duty bound in terms of the decision in K. Ajit Babu's case (supra) to consider the same on merit.
18. On coming to the merit of the case, we find that it is not disputed by the official respondents that according to the instruction of Railway Board dated 10.4.70, date of appointment of regular appointment of probationer Apprentice should be from the date when he completely passed the prescribed examination. Admittedly, the respondent No. 3 did not pass the examination within the stipulated period of 4 years whereas the applicant passed the same within the said period. However, the respondent No. 3 filed the O.A. before the Principal Bench making a grievance that in similar cases, the Railway respondents had applied different yardstick in respect of some employees and they (viz. S/Shri S.P. Singh, M.L. Gill, A. Mishra, R. Chandra, P. Bahadur, A. Bhatnagar, A. Bhagre, B. Maji and K. Verma) were granted seniority from the date of completion of 4 years, although they did not pass the examination within the said period. In that case the respondents took the view that there was distinction between batches prior to 1967 and post 1967. In respect of Pre 1967 batch, a different principle was followed wherein even if such Apprentices passed in majority of papers and not full, their seniority was not depressed whereas a stringent procedure was followed after 1967 batch. However, no instruction was produced before the Principal Bench in support of this contention. The Principal Bench of the Tribunal therefore held that the respondents discriminated against the applicant (respondent No. 3 herein) inasmuch as in his case seniority was granted from the date of passing of the examination whereas in respect of others even after passing majority of papers and not all, seniority was granted on completion of 4 years. The Principal Bench also considered another decision of Allahabad Bench in the case of A.K. Verma v. Union of India. The Tribunal held that their should not be any discrimination against the applicant, i.e. respondent No. 3 herein whose seniority was depressed vis-a-vis others who were given due seniority on completion of 4 years even they also could not pass the requisite examination, i. e. within the first four years.
Accordingly, the Principal Bench directed in the final paragraph as follows: 25. In the result the O.A. succeeds and is allowed. Applicant is entitled to get the relief of seniority in accordance with the rules and instructions on the subject. No costs.
19. The decision was challenged by the respondents in WPCT No.2384/2000. The Hon'ble Delhi High Court decided the matter on 14.12.2000. It was observed by the Hon'ble High Court that seniority of some officers including one Shri B. Majhi was not depressed while the seniority of the respondent employee (R. Khosla applicant of O.A.before the Principal Bench) was depressed, and held that this was a clear case of discrimination and thus the Court did not interfere with the decision of the Principal Bench. Thus, we find that the Principal Bench as well as Hon'ble Delhi High Court allowed the petition of respondent No. 3 mainly on the ground of discrimination vis-a-vis some other officials, such as S/Shri S.P. Singh, M.L. Gill, A. Mishra, R.Chandra, P. Bahadur, A. Bhatnagar, A. Bhagre, B. Maji and K. Verma.
There was some discrimination between respondent No. 3 vis-a-vis the above said persons inasmuch as the respondent No. 3 was granted seniority from the date of passing of the examination whereas there was deviation from the Railway Board's instructions in respect of those persons who were granted seniority on completion of 4 years of probation even though they could not pass within that period.
Therefore, the Principal Bench allowed the O.A. by observing thus: 19. From the perusal of the counter affidavit filed by the respondents in this case, we also find that the respondents in this case also admit that this letter dated 10.4.1970 has not been strictly adhered to and seniority of some of the candidates such as S/Shri S.P. Singh, M.L. Gill, A. Mishra, R. Chandra and P. Bahadur was not depressed. In this context Para 4.12 of the counter clearly shows that the Competent Authority had exercised his discretion towards those candidates and had not depressed their seniority. When the Counsel appearing on behalf of the respondent was confronted with the situation he tried to make a distinction between batches i.e. batches prior to 1967, 1967 and afterwards and submitted that since prior to 1967 batch they were not covered under the instructions dated 10.4.1970. It was only 1969 batch and afterwards who were covered under the said instructions. Learned Counsel for the respondents further submitted that keeping in view the same the department could have terminated the apprenticeship of the candidates who failed to pass examinations like applicant but the department had taken a lenient view granting relaxation to applicant to appear again instead of terminating apprenticeship giving a warning that in case he fails to qualify the same, his apprenticeship would be terminated.
We have heard learned Counsel for the parties. The petitioner was asked by an order day May 10, 2000 to produce the record and to explain as to why the seniority of some officers such as B. Majhi was not depressed while the seniority of the respondents was depressed. The record has been produced before us and we have perused the same. The petitioner has not denied that the seniority of B. Majhi was not depressed though he failed to clear the examination as there was a marginal difference in taking extra period of 9 days to pass the examination. We also noticed that the Tribunal has referred to the names of other officers whose seniority was not depressed in similar circumstances. In this view of the matter, we cannot permit the petitioner to act in a arbitrary and discriminatory manner while assessing the case of the respondent....
20. Thus is quite clear that the Principal Bench allowed the claim of the respondent No. 3 mainly on the ground of discrimination which was also the reason for confirming the decision by the Hon'ble Delhi High Court.
21. However, this position was changed when the Allahabad Bench decided O.A. 489/ 89 (A.K. Mishra's case). In that O.A. the applicant (Shri Mishra) contended that respondent No. 3 Shri P. Bahadur was granted seniority after completion of 4 years even though he could not pass the examination within 4 years, whereas his (Shri Mishra's) seniority was fixed after passing the requisite examination. He therefore, claimed parity with Shri P. Bahadur. The Tribunal held as follows: 10. In view of the discussion above, we come to the conclusion that the condition of giving seniority to the 1966 batch of Apprentices w.e.f. the date of their passing a majority of the papers was arbitrary and not supported by any Railway Board circular. In fact the respondents placed reliance on the Railway Board letter dated 10.4.70 which does not lay down any such stipulation. Therefore, in terms of the various circulars of the Railway Board the date of appointment of the applicant should be 27.1.72 and that of respondent No. 3 30.9.74. Any deviation from this cannot be sustained on the basis of the existing orders of the Railway Board.
In effect the O.A. is allowed. The impugned order dated 12.12.1987 and the earlier orders on the subject are quashed. The respondents are directed to correct the seniority of applicant and respondent No. 3 as mentioned above. To clarify, the applicant shall be deemed to have been appointed from 27.1.72 and respondent No. 3 who had failed in the first three attempts, should be deemed to have been appointed from the date of his passing all the examinations, 30.09.74.
22. Number of points have been raised by the parties in the O.A. The first point raised by the ld. Counsel for the respondent is regarding the jurisdiction of this Bench to adjudicate this O.A. in view of the judgment passed by C.A.T., Principal Bench, New Delhi on 14.8.99 in O.A. No. 945/1994 which was subsequently upheld by the Delhi High Court on 14.12.2000. The order of the Principal Bench was to decide the seniority of respondent No. 3 as per rules. The applicant in the present O.A. was not a party to the decision in O.A. No. 945/1994. As the applicant was not a party to the said decision and on being adversely affected by the decision of the Principal Bench he has filed this O.A. No. 271/2006. In view of the decision in the case of Sreedhar S. v. State of Karnataka 2004 SCC (L&S) 882 and in the case of K. Ajit Babu and Ors. v. Union of India and Ors. (supra) the applicant is entitled to file this O.A. and this Tribunal has the jurisdiction to adjudicate the same. The second point raised by the respondents is regarding limitation The principle of law of limitation holds that limitation begins from the date of cause of action and in the present case it has been argued by the applicant that he had come to know about the revised relative seniority position of respondent No. 3, to the disadvantage of the applicant, only from the "Classified list of Gazetted Establishment" published in 2005. From Para 8 of the rejoinder to the application against the reply of respondent No. 3 and the DRM, North Western Railway's letter No. 727E/AKM/ADRM/JU/EIG dated 10.5.06 and the Railway Board's letter dated 12.4.2001 and 4.3.2002 revising relative seniority of respondent No. 3 it appears that those letters were not received in the office of the DRM, N.W. Railway, Jodhpur where the applicant was working during the period 1999-2002. As such the present application is neither hit by 'waiver' nor barred by the law of limitation. The third point is regarding the date of appointment of respondent No. 3 who was appointed as Special Class Railway Apprentice on the basis of the examination in 1969. He was inducted as Assistant Mechanical Engineer in the Indian Railway Service of Mechanical Engineers with effect from 10.3.1975. Initially his seniority was placed at Srl. No. 96 i.e. below Sri Girish Kumar (Srl. No. 95) and above Sri P.K. Roy (Srl. No. 97). In compliance of the decision of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.945/1994 the seniority of Sri Khosla respondent No. 3 was refixed at 67 i.e. below Sri A. Sud (Srl. No. 66) and above Sri C.B. Midha (Srl. No.67) by order No. 94/E/GR(1)/36/3 dated 4.3.2002. The condition of service of SCRA are governed by the Railway Board Circular No. E 70-E(GR)/l/5 dated 10.4.70. The recruitment rule for SCRAs, inter alia provides that Apprentices should pass either Para (1) or (2) of AMIME (London) or Section 1 or 2 of AMIE (India) within 4 years of Apprenticeship, is allowed one more year to complete the 2 parts/sections of the Examination. His Apprenticeship being extended accordingly and the Apprenticeship of one who fails to clear the qualification within the extended period is liable to be terminated. It has also been laid down that the date of passing of the examination or completion of 4 years of Apprenticeship, whichever is later, shall be deemed to be the date of appointment for the purpose of seniority. As such as per the extant rules, the respondent No. 3 cannot be given seniority prior to the date of passing of the said examination as otherwise it would tantamount to conferring Graduate Degree to an undergraduate and an undergraduate being inducted into Group-A service which is not sustainable in the eyes of law. The Principal Bench in its decision had held that there had been certain discriminations, as earlier in respect of P. Bahadur and Others seniority had been given after four years of their service and not after clearing the examination. The Principal Bench as well as the High Court of Delhi had therefore passed an order so as to redraw the seniority of respondent No. 3 as per rules . Neither the principal Bench nor the High Court of Delhi in their orders referred to above, set aside the Railway Board's circular dated 10.4.70. On the contrary the respondents were directed to fix the seniority as per rules.
23. Regarding discrimination aspects alleged by the respondents the same is no more tenable as it has been taken care of by the decision of the C.A.T. Allahabad Bench by its order dated 26.4.02 in O.A. No.489/1989 on the basis of the Railway Board Circular dated 10.4.1970 referred to above. Pursuant to that direction of the Allahabad Bench, the Railway respondents revised the seniority of the aforesaid persons by issuing the circular dated 11.2.2003 (Annexure R-4 to reply) after issuing necessary show cause to the affected parties. By this order the seniority of the aforesaid persons has been rectified from the date of passing the examination and in respect of P. Bahadur the revised date is 30.9.74 i.e. after he passed the departmental examination and not earlier. In that view of the matter the main ground or foundation of the decision of the Principal Bench i.e. discrimination between all the aforesaid persons including P. Bahadur vis-a-vis respondent No. 3 no longer exists, because of the implementation of the decision of the Allahabad Bench. The seniority of the aforesaid persons has been redrawn with effect from the date of passing of the examination which was also done in the case of respondent No. 3 earlier. In view of the changed circumstances, after the decision of the Allahabad Bench and its implementation by the Railway Authorities the question of discrimination cannot be raised by respondent No. 3. As such the notification No. 94/E/(GR)/1/36/3 dated 4.3.2002 by which the date of induction of respondent No. 3 into IRSME was changed to 13.1.74 from 10.3.75 is not at all sustainable and hence it is set aside.
24. In the ultimate analysis the O.A. succeeds. The respondent No. 2 is directed to refix the date of appointment of respondent No. 3 in terms of the Railway Board's letter dated 10.4.1970. The method of relative seniority of directly recruited AMIE & SCRA in IRSME is indicated in circular dated 6.4.1994. The Railway respondents have stated that the principal for determination of relative seniority is to be determined in terms of the revised circular of 6.4.1994 vide Annexure R-1. We, therefore, direct the respondents to redraw the seniority of the applicant and others including the respondent No. 3 strictly in accordance with the rules and instructions issued by the Railway Authorities dated 10.4.1970 as the same even now holds good as per decision of the Allahabad Bench dated 26.4.2002. No rules thereafter having any retrospective effect have been cited by the respondents.
This was also the decision of the Allahabad Bench. It is needless to mentioned that while doing so the respondents shall issue proper notice to the officials who are likely to be affected and after considering the objections if any, the Railway Authority shall finalise the list within 4 months from the date of communication of this order. If any promotion has been made on the basis of the existing seniority or the notification dated 4.3.02, that shall be construed as on purely ad hoc measure and all such appointees should be intimated accordingly.
25. With the above direction, the O.A. succeeds without any order as to cost.