Shri V.V. Narsimha Rao and Others Vs. Union of India Represented by Its Secretary to the Government of India and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/939279
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnAug-03-2009
Case NumberORIGINAL APPLICATION NO.10 OF 2007
JudgeTHE HONOURABLE MRS. BHARATI RAY MEMBER (JUDL.) & THE HONOURABLE MR. HRIDAY NARAIN MEMBER (ADMN.)
AppellantShri V.V. Narsimha Rao and Others
RespondentUnion of India Represented by Its Secretary to the Government of India and Others
Advocates:Counsel for the Applicants: V. Venkateswara Rao, Advocate. Counsel for the Respondents: M.C.Jacob, Sc For Railways.
Excerpt:
(per hon'ble shri hriday narain, member (admn.) the present oa has been filed against non showing of the applicants at appropriate places in the integrated seniority list of the merged cadre viz., station master/assistant station master by taking into account the non fortuitous regular service rendered by them in the grade of rs.1400-2300/rs.5000-8000 prior to appointment in the grade of jr.dti in the scale of rs.5000-8000. 2. the applicants had filed condone delay petition in m.a.no.502/2006 which was allowed vide order dated 29.12.2006. the applicants have subsequently filed m.a.no.263/08 seeking permission to implead the respondents 5 and 6 in the oa. the said m.a.no.263/2008 has been allowed vide tribunal's order dated 29.8.2008 and the respondents 5 and 6 were impleaded as parties to the present oa. the oa was admitted on 29.12.2006. 3. the brief facts of the case, as stated by the applicants, are that the applicants 1 to 5, while working in different cadres as station masters/assistant yard master/guards in the pay scale of rs.5000-8000 (v cpc), were selected and appointed in the equivalent cadre of junior d.t.i in the same scale of pay i.e., rs.5000-8000 with effect from 16.8.1996, 7.9.1998, 7.9.1998 and 7.9.1998 respectively. the applicants 1 and 2 were again promoted to the post of dti in the scale of pay of rs.5500-9000 with effect from 28.8.2001 and 8.10.2001. 4. pursuant to restructuring of group c and d cadres of all railways circulated by the south central railway vide serial circular no.152/2003 dated 15.10.2003, the 3rd respondent, vide letter dated 10.8.2004, published integrated seniority lists as on 1.11.2003 in the grades of rs.5500-9000 and 5000-8000 by applying the cadre merger in terms of para 10 of the said restructuring order, wherein 1st applicant's name was shown at sl.no.70 in the integrated seniority list of the grade of rs.5500-9000 taking his date of entry into the said grade as 27.8.2001 as dti. when the 1st applicant found that his junior in the asms/sms cadre viz., shri p.s.s.rao was already promoted to the next higher grade of rs.6500-10500 and was shown at sl.no.55 of the integrated seniority list of the said grade and when the 1st applicant's name was not even shown in the said grade, the 1st applicant submitted representation dated 1.9.2004 to the 3rd respondent requesting him to protect his grade and seniority on par with his junior shri p.s.rao. the 1st applicant has submitted that since the integrated seniority list pertains to the unified cadre of sms/asms, his seniority in the asms/sms cadre cannot be ignored for promotion and seniority to the grade to rs.6500-10500 in the unified cadre of sms/asms. the 1st applicant was subsequently promoted to the said grade of rs.6500-10500 as station superintendent on 10.11.2005 though he was entitled to the same with effect from the date when his junior shri pss rao was promoted on 9.8.2002 as station superintendent. the applicants further submit that shri pss rao was further promoted to the next higher grade of rs.7450-11500. 5. the applicants 2 to 5 were shown at sl.no.103 to 106 in the integrated seniority list of the grade of rs.5000-8000 showing their dates of entry into the said grade as 7.9.1998 i.e., the post of junior dti ignoring their non-fortuitous regular service in the same grade of rs.5000-8000 as sms/ayms/guards with effect from 1982, 1982, 4/1996 and 10/1997 (except no.5) prior to merger. the said shri pss rao is also junior to the applicants 2 and 3. 6. aggrieved by denial of reckoning the service rendered by the applicants 2 to 5 in the equivalent grade to junior dti in the scale of pay of rs.5000-8000 prior to 7.9.1998 for the purpose of integrated seniority list of the said grade in the unified cadre of sms/asms as on 1.11.2003 after merger of cadres, the applicants 2 to 5 have submitted representations dated 8.9.2004, 16.8.2004, 3.9.2004 and 6.9.2004 respectively requesting for promotion to the next higher grade on the basis of seniority and the dates of promotion of their juniors under next below rule. the applicants submit that the 5th applicant relied upon the railway board's letter dated 10.1.1992 issued in regard to comparison of the grades of running staff and stationary staff of railways. 7. the said representations submitted by the applicants were rejected by the railway board vide letter dated 10.12.2004 against which the applicants have filed o.a.no.645/2005 and the said oa was withdrawn by the applicants with liberty to file a fresh oa. accordingly, the present oa has been filed by the applicants praying for the reliefs as under:- “to call for the records pertaining to the letter no.wpy/310/cadre-merger/restore dated 10.12.2004 issued by the respondent no.3 and the integrated seniority lists pertaining to the grade of rs.5000-8000, rs.5500-9000 and rs.6500-10500 issued by 3rd respondent vide his letter no.wpy/310/cadre merging dated 10.08.2004 and quash the same by declaring that the applicants are entitled to be shown at appropriate places in the said integrated seniority lists of the merged cadre viz., station master/assistant station master by taking into account the non fortuitous regular service rendered by them in the grade of rs.1400-2300/rs.5000-8000 prior to appointment in the grade of jr. dti in the scale of rs.5000-8000 with all consequential benefits of promotion to the next higher grades, seniority, arrears of pay and allowances etc., and pass any other order or orders as is deemed fit, proper and necessary in the circumstances of the case and interest of justice.” 8. the applicants have argued that as per paras 10 and 10.1 of the restructuring order, till the complete merger is over, the incumbents will retain their designations and the respective nature of duties of their respective cadres. paras 10 and 10.1 of the restructuring order are as under:- “para 10: the concept of multi skilling is to be introduced by merging the different categories as mentioned hereunder. while the revised percentage distribution of posts as indicated in the annexures to this letter should be implemented in the unified cadres based on the integrated seniority list, the duties, responsibilities and functions being performed by the employees of the respective cadres will be combined in a passed manner. each member of the cadre will have to be equipped with necessary skills and functions through proper training and development. the categories indicted herein will be merged by integrating the seniority of the employees working in respective grades with reference to length of non-fortuitous service in the relevant grade keeping the inter-se seniority in the respective group intact. para 10.1: the category of station master/assistant station masters, yard masters and traffic inspectors should be merged into one unified cadre of sm/asm. the recruitment and promotion pattern as prescribed for the category of sm/asms should be followed in the merged cadre. in the initial stage of the merger, efforts should be made to post the employees in the categories in which they have been working. accordingly, while the staff belonging to the erstwhile three categories will be working and enjoying the benefit of the unified cadre of sms/asms, on their posting in the yard, they will perform the duties of yard master retaining their designation as applicable to the category of yard master. similarly, while performing the inspectorial job they will retain their designation as applicable to traffic inspectors. but at a later stage, when they are made fully equipped to discharge all the functions hitherto being discharged by sms/asms, yms and tis, administration will have the flexibility to post a person as per the administrative requirement. while redefining the duties and functions, railways may also review and rationalise the cadre keeping in view the administrative requirements. 9. the applicants have submitted that the integrated seniority lists have to be prepared with reference to length of non-fortuitous service in the relevant grade keeping the inter se seniority in the respective group intact. in the unified cadre of sms/asms, five grades were indicated with respective revised percentage distribution of posts, as per annexure a(i) to the said circular. 10. the applicants have submitted that since the integrated seniority list pertains to the unified cadre of sms/asms, the seniority of the 1st applicant in the asms/sms cadre cannot be ignored for promotion and seniority to the grade to rs.6500-10500 in the unified cadre of sms/asms. 11. the applicants have further submitted that their representations were rejected on illegal and arbitrary grounds and the letter of rejection is violative of articles 14 and 16 of the constitution. . the impugned integrated seniority list is contrary to the principles of preparation of integrated seniority list and the instructions contained in para 10 of the restructuring circular issued by the railway board. 12. the respondents have filed reply statement wherein it is stated that prior to implementation of restructuring of the cadre as envisaged in railway board's letter dated 9.10.2003, the cadre of station masters, yard masters and traffic inspectors were maintained separately. the guards, asms, ayms were eligible to compete to the post of dti and further eligible for promotions in that cadre. the applicants, while working as sms, aym and guard, were selected as traffic inspectors. 13. the respondents have submitted that the railway board, by letter dated 9.10.2003, ordered restructuring of various cadres of group 'c' and 'd' with revised percentages in various grades on the basis of functional, operational and administrative requirements. in terms of para 10 of the said circular, multi skills were introduced by merging of sms, yard masters and traffic inspectors into a unified cadre and directed to implement the restructuring based on the integrated seniority list with reference to the length of non fortuitous service in the relevant grade keeping the inter se seniority in the respective group in tact. further, it was laid down that in the initial stages of merger, efforts should be made to post the employees in the category in which they have been working. but at a later stage, when they are made fully equipped to discharge all the functions, the administration has the flexibility to post the persos as per the administrative requirements. 14. it is submitted that the merger of cadre of sms, yms and tis had come up for scrutiny before the central administrative tribunal, principal bench, new delhi in o.a.no.1972/2006 and the tribunal while dismissing the oa, upheld the merger as not contrary to articles 14 and 16 of the constitution of india and held that the seniority is only the civil right and not a fundamental right and it had to be operated in accordance with rules in terms of para 301 of irem as the seniority is to be operated from the date of person had started functioning in that grade. 15. while implementing the restructuring as per railway board orders dated 9.10.2003, a provisional integrated seniority list was circulated vide proceedings dated 10.8.2004 and the applicants' representations were considered and disposed of vide proceedings dated 10.12.2004 informing that there is no infirmity in fixing the inter se seniority in terms of railway board's instructions. 16. it is further submitted that the seniority of the applicants was fixed as per the instructions of the railway board taking their non fortuitous service rendered in the relevant grade without disturbing inter se seniorty. the contention of the applicants that their erstwhile colleagues were promoted to higher grades and as such they are also to be placed on par with them is untenable as their promotions were based on the conditions prevailing in the said cadre at the relevant point of time and the applicants were not part of the said cadre and hence they were not entitled for the said relief. any change would disturb the inter se position of the other employees and the applicants, without impleading any of the affected parties, cannot seek the present relief. 17. the respondents have argued that the applicants volunteered to the cadre of traffic inspectors from different cadres and they were selected to the post and continued in the said cadre. as per railway board's orders, the cadre of sms/asms, yms and tis has to be merged taking the service in the particular grade for the purpose of seniority without disturbing the inter se seniority in the respective cadres and the integrated seniority list was published by virtue of the above orders of the railway board. the applicants' seniority was fixed from the date of their entry into the grade. 18. the respondents have further argued that the promotion of shri pss rao to the grade of rs.6500-10500 in the sms' cadre was based on various factors in the said cadre and the applicants cannot seek the same at this stage. hence the contention of the applicants to revive the earlier seniority positions is untenable and liable to be rejected. 19. it is submitted that prior to merger, the regular service as sm/asm/aym/guard need not be considered as the inter se seniority was fixed in the relevant grade intact. as the merger is of three cadres, namely, sms/asms/ayms and tis, while fixing inter se seniority, their position in the respective grades is also safeguarded. hence, the contention of the applicants that they should get their previous service also, is untenable and liable to be rejected. the applicants cannot compare their case with that of their junior shri pss rao as he was promoted to higher grade as per his eligibility which need not be disturbed in terms of para 10.1 of the board's letter dated 15.10.2003. it is stated that the next below rule is not applicable in the instant case. the 5th applicant's reliance on the railway board's order in equating the grade of running staff and stationary staff, has no relevance to the present case more particularly that the 5th applicant volunteered for the said post and joined the same. 20. it is argued that the request of the applicants to consider their past service in a different cadre cannot be acceptable as per rules. it is submitted that the oa deserved to be dismissed. 21. vide order dated 17.4.2009, this tribunal directed the registry to enquire into the matter with regard to completion of service of notice on the private respondents (r-5 and r-6) which was sent by the registry by registered post with acknowledgment due on 27.2.2009 but acknowledgment was not received. thereupon the registry noted, vide noting dated 17.6.2009, that notice on r-5 and r-6 has been served. 22. though notice has been served on the respondents 5 and 6, no reply has been filed by them. 23. during the course of hearing on 16.6.2008, the learned counsel for the applicants submitted that he would be filing rejoinder and, therefore, the matter was adjourned to a week thereafter. however, no rejoinder has been filed by the applicants' counsel till 14.7.2009 when the mater was finally heard. 24. the learned counsel for the applicants mainly relied upon the submissions made in the oa. he specially submitted that in the provisional seniority list of sms/inspectors/yard group of operations department as on 1.11.2003, the names of the applicants 2 to 5 appeared at sl.nos.103 to 106 and column no.8 relating to the date of promotion to the present grade was left blank. we, therefore, directed the learned counsel for the respondents to give relevant information relating to column 8, which was supplied by the learned counsel for the respondents as 13.10.2001, 24.2.1998, 16.9.1998 and 3.10.1997. the main case of the applicants is that the period of their non fortuitous service in the parent cadre was not included in the newly created integrated cadre and this was against the instructions. it was their claim that the inter se seniority in the ex-cadre to which they originally belong had not been maintained. 25. we have carefully considered the arguments on both sides and the materials on record. the basic flaw in the claim of the applicants is that they have overlooked the fact that they were inducted in the cadre of traffic inspectors on the basis of selection and, therefore, even though the pay scale of traffic inspectors was equivalent to the pay scale of their original cadres like that of sms, guards etc., the fact remains that the applicants left their original cadres and they could not claim seniority of their original cadres in the cadre of traffic inspectors, which cadre they joined on the basis of a selection. the respondents have rightly stated that the applicants' contention that their erstwhile colleagues were promoted to higher grades and as such they should also be placed on par with them is untenable as their promotions were based on the conditions prevailing in the said cadre at the relevant point of time and the applicants were not part of the said cadre and hence they were not entitled to the said relief. it is important to note that the applicants have not submitted any rejoinder controverting the statements contained in the reply statement and hence the submissions made in the reply statement have to be taken as correct. further, it is a fact that the applicants have not impleaded several other employees who might be affected if their plea was entertained. on this ground also, the oa deserves to be rejected. we are, therefore, of the view that the oa is devoid of any merit and the relief prayed for cannot be granted. we do not find any infirmity in the letter dated 10.12.2004 through which the representations of the applicants were rejected. 26. as a result, the oa is dismissed with no order as to costs.
Judgment:

(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.)

The present OA has been filed against non showing of the applicants at appropriate places in the integrated seniority list of the merged cadre viz., Station Master/Assistant Station Master by taking into account the non fortuitous regular service rendered by them in the grade of Rs.1400-2300/Rs.5000-8000 prior to appointment in the grade of Jr.DTI in the scale of Rs.5000-8000.

2. The applicants had filed Condone Delay petition in M.A.No.502/2006 which was allowed vide order dated 29.12.2006. The applicants have subsequently filed M.A.No.263/08 seeking permission to implead the Respondents 5 and 6 in the OA. The said M.A.No.263/2008 has been allowed vide Tribunal's Order dated 29.8.2008 and the respondents 5 and 6 were impleaded as parties to the present OA. The OA was admitted on 29.12.2006.

3. The brief facts of the case, as stated by the applicants, are that the applicants 1 to 5, while working in different cadres as Station Masters/Assistant Yard Master/Guards in the pay scale of Rs.5000-8000 (V CPC), were selected and appointed in the equivalent cadre of Junior D.T.I in the same scale of pay i.e., Rs.5000-8000 with effect from 16.8.1996, 7.9.1998, 7.9.1998 and 7.9.1998 respectively. The Applicants 1 and 2 were again promoted to the post of DTI in the scale of pay of Rs.5500-9000 with effect from 28.8.2001 and 8.10.2001.

4. Pursuant to restructuring of Group C and D cadres of all Railways circulated by the South Central Railway vide Serial Circular NO.152/2003 dated 15.10.2003, the 3rd respondent, vide letter dated 10.8.2004, published integrated seniority lists as on 1.11.2003 in the grades of Rs.5500-9000 and 5000-8000 by applying the cadre merger in terms of Para 10 of the said restructuring order, wherein 1st Applicant's name was shown at Sl.No.70 in the integrated seniority list of the grade of Rs.5500-9000 taking his date of entry into the said grade as 27.8.2001 as DTI. When the 1st applicant found that his junior in the ASMs/SMs cadre viz., Shri P.S.S.Rao was already promoted to the next higher grade of Rs.6500-10500 and was shown at Sl.No.55 of the integrated seniority list of the said grade and when the 1st applicant's name was not even shown in the said grade, the 1st applicant submitted representation dated 1.9.2004 to the 3rd respondent requesting him to protect his grade and seniority on par with his junior Shri P.S.Rao. The 1st applicant has submitted that since the integrated seniority list pertains to the unified cadre of SMs/ASMs, his seniority in the ASMs/SMs cadre cannot be ignored for promotion and seniority to the grade to Rs.6500-10500 in the unified cadre of SMs/ASMs. The 1st applicant was subsequently promoted to the said grade of Rs.6500-10500 as Station Superintendent on 10.11.2005 though he was entitled to the same with effect from the date when his junior Shri PSS Rao was promoted on 9.8.2002 as Station Superintendent. The applicants further submit that Shri PSS Rao was further promoted to the next higher grade of Rs.7450-11500.

5. The applicants 2 to 5 were shown at Sl.No.103 to 106 in the integrated seniority list of the grade of Rs.5000-8000 showing their dates of entry into the said grade as 7.9.1998 i.e., the post of Junior DTI ignoring their non-fortuitous regular service in the same grade of Rs.5000-8000 as SMs/AYMs/Guards with effect from 1982, 1982, 4/1996 and 10/1997 (except No.5) prior to merger. The said Shri PSS Rao is also junior to the applicants 2 and 3.

6. Aggrieved by denial of reckoning the service rendered by the applicants 2 to 5 in the equivalent grade to Junior DTI in the scale of pay of Rs.5000-8000 prior to 7.9.1998 for the purpose of integrated seniority list of the said grade in the unified cadre of SMs/ASMs as on 1.11.2003 after merger of cadres, the applicants 2 to 5 have submitted representations dated 8.9.2004, 16.8.2004, 3.9.2004 and 6.9.2004 respectively requesting for promotion to the next higher grade on the basis of seniority and the dates of promotion of their juniors under Next Below Rule. The applicants submit that the 5th applicant relied upon the Railway Board's letter dated 10.1.1992 issued in regard to comparison of the grades of running staff and stationary staff of Railways.

7. The said representations submitted by the applicants were rejected by the Railway Board vide letter dated 10.12.2004 against which the applicants have filed O.A.No.645/2005 and the said OA was withdrawn by the applicants with liberty to file a fresh OA. Accordingly, the present OA has been filed by the applicants praying for the reliefs as under:-

“To call for the records pertaining to the letter No.WPY/310/Cadre-Merger/Restore dated 10.12.2004 issued by the respondent No.3 and the Integrated Seniority Lists pertaining to the grade of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 issued by 3rd respondent vide his Letter NO.WPY/310/Cadre Merging dated 10.08.2004 and quash the same by declaring that the applicants are entitled to be shown at appropriate places in the said integrated seniority lists of the merged cadre viz., Station Master/Assistant Station Master by taking into account the non fortuitous regular service rendered by them in the grade of Rs.1400-2300/Rs.5000-8000 prior to appointment in the grade of Jr. DTI in the scale of Rs.5000-8000 with all consequential benefits of promotion to the next higher grades, seniority, arrears of pay and allowances etc., and pass any other order or orders as is deemed fit, proper and necessary in the circumstances of the case and interest of justice.”

8. The applicants have argued that as per Paras 10 and 10.1 of the restructuring order, till the complete merger is over, the incumbents will retain their designations and the respective nature of duties of their respective cadres. Paras 10 and 10.1 of the restructuring order are as under:-

“Para 10: The concept of Multi skilling is to be introduced by merging the different categories as mentioned hereunder. While the revised percentage distribution of posts as indicated in the annexures to this letter should be implemented in the unified cadres based on the integrated seniority list, the duties, responsibilities and functions being performed by the employees of the respective cadres will be combined in a passed manner. Each member of the cadre will have to be equipped with necessary skills and functions through proper training and development. The categories indicted herein will be merged by integrating the seniority of the employees working in respective grades with reference to length of non-fortuitous service in the relevant grade keeping the inter-se seniority in the respective group intact.

Para 10.1: The category of station Master/Assistant Station Masters, Yard Masters and Traffic Inspectors should be merged into one unified cadre of SM/ASM. The recruitment and promotion pattern as prescribed for the category of SM/ASMs should be followed in the merged cadre. In the initial stage of the merger, efforts should be made to post the employees in the categories in which they have been working. Accordingly, while the staff belonging to the erstwhile three categories will be working and enjoying the benefit of the unified cadre of SMs/ASMs, on their posting in the Yard, they will perform the duties of Yard Master retaining their designation as applicable to the category of Yard Master. Similarly, while performing the inspectorial job they will retain their designation as applicable to Traffic Inspectors. But at a later stage, when they are made fully equipped to discharge all the functions hitherto being discharged by SMs/ASMs, YMs and TIs, administration will have the flexibility to post a person as per the administrative requirement. While redefining the duties and functions, Railways may also review and rationalise the cadre keeping in view the administrative requirements.

9. The applicants have submitted that the integrated seniority lists have to be prepared with reference to length of non-fortuitous service in the relevant grade keeping the inter se seniority in the respective group intact. In the unified cadre of SMs/ASMs, five grades were indicated with respective revised percentage distribution of posts, as per Annexure A(i) to the said circular.

10. The applicants have submitted that since the integrated seniority list pertains to the unified cadre of SMs/ASMs, the seniority of the 1st applicant in the ASMs/SMs cadre cannot be ignored for promotion and seniority to the grade to Rs.6500-10500 in the unified cadre of SMs/ASMs.

11. The applicants have further submitted that their representations were rejected on illegal and arbitrary grounds and the letter of rejection is violative of Articles 14 and 16 of the Constitution. . The impugned integrated seniority list is contrary to the principles of preparation of integrated seniority list and the instructions contained in para 10 of the restructuring circular issued by the Railway Board.

12. The respondents have filed reply statement wherein it is stated that prior to implementation of restructuring of the cadre as envisaged in Railway Board's letter dated 9.10.2003, the cadre of Station Masters, Yard Masters and Traffic Inspectors were maintained separately. The Guards, ASMs, AYMs were eligible to compete to the post of DTI and further eligible for promotions in that cadre. The applicants, while working as SMs, AYM and Guard, were selected as Traffic Inspectors.

13. The respondents have submitted that the Railway Board, by letter dated 9.10.2003, ordered restructuring of various cadres of Group 'C' and 'D' with revised percentages in various grades on the basis of functional, operational and administrative requirements. In terms of Para 10 of the said circular, multi skills were introduced by merging of SMs, Yard Masters and Traffic Inspectors into a unified cadre and directed to implement the restructuring based on the integrated seniority list with reference to the length of non fortuitous service in the relevant grade keeping the inter se seniority in the respective group in tact. Further, it was laid down that in the initial stages of merger, efforts should be made to post the employees in the category in which they have been working. But at a later stage, when they are made fully equipped to discharge all the functions, the administration has the flexibility to post the persos as per the administrative requirements.

14. It is submitted that the merger of cadre of SMs, YMs and TIs had come up for scrutiny before the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.1972/2006 and the Tribunal while dismissing the OA, upheld the merger as not contrary to Articles 14 and 16 of the Constitution of India and held that the seniority is only the civil right and not a fundamental right and it had to be operated in accordance with rules in terms of Para 301 of IREM as the seniority is to be operated from the date of person had started functioning in that grade.

15. While implementing the restructuring as per Railway Board orders dated 9.10.2003, a provisional integrated seniority list was circulated vide proceedings dated 10.8.2004 and the applicants' representations were considered and disposed of vide proceedings dated 10.12.2004 informing that there is no infirmity in fixing the inter se seniority in terms of Railway Board's instructions.

16. It is further submitted that the seniority of the applicants was fixed as per the instructions of the Railway Board taking their non fortuitous service rendered in the relevant grade without disturbing inter se seniorty. The contention of the applicants that their erstwhile colleagues were promoted to higher grades and as such they are also to be placed on par with them is untenable as their promotions were based on the conditions prevailing in the said cadre at the relevant point of time and the applicants were not part of the said cadre and hence they were not entitled for the said relief. Any change would disturb the inter se position of the other employees and the applicants, without impleading any of the affected parties, cannot seek the present relief.

17. The respondents have argued that the applicants volunteered to the cadre of Traffic Inspectors from different cadres and they were selected to the post and continued in the said cadre. As per Railway Board's orders, the cadre of SMs/ASMs, YMs and TIs has to be merged taking the service in the particular grade for the purpose of seniority without disturbing the inter se seniority in the respective cadres and the integrated seniority list was published by virtue of the above orders of the Railway Board. The applicants' seniority was fixed from the date of their entry into the grade.

18. The respondents have further argued that the promotion of Shri PSS Rao to the grade of Rs.6500-10500 in the SMs' cadre was based on various factors in the said cadre and the applicants cannot seek the same at this stage. Hence the contention of the applicants to revive the earlier seniority positions is untenable and liable to be rejected.

19. It is submitted that prior to merger, the regular service as SM/ASM/AYM/Guard need not be considered as the inter se seniority was fixed in the relevant grade intact. As the merger is of three cadres, namely, SMs/ASMs/AYMs and TIs, while fixing inter se seniority, their position in the respective grades is also safeguarded. Hence, the contention of the applicants that they should get their previous service also, is untenable and liable to be rejected. The applicants cannot compare their case with that of their junior Shri PSS Rao as he was promoted to higher grade as per his eligibility which need not be disturbed in terms of Para 10.1 of the Board's letter dated 15.10.2003. It is stated that the Next Below Rule is not applicable in the instant case. The 5th applicant's reliance on the Railway Board's order in equating the grade of running staff and stationary staff, has no relevance to the present case more particularly that the 5th applicant volunteered for the said post and joined the same.

20. It is argued that the request of the applicants to consider their past service in a different cadre cannot be acceptable as per rules. It is submitted that the OA deserved to be dismissed.

21. Vide Order dated 17.4.2009, this Tribunal directed the Registry to enquire into the matter with regard to completion of service of notice on the private Respondents (R-5 and R-6) which was sent by the Registry by Registered Post with acknowledgment due on 27.2.2009 but acknowledgment was not received. Thereupon the Registry noted, vide noting dated 17.6.2009, that Notice on R-5 and R-6 has been served.

22. Though Notice has been served on the Respondents 5 and 6, no reply has been filed by them.

23. During the course of hearing on 16.6.2008, the learned counsel for the applicants submitted that he would be filing rejoinder and, therefore, the matter was adjourned to a week thereafter. However, no rejoinder has been filed by the applicants' counsel till 14.7.2009 when the mater was finally heard.

24. The learned counsel for the applicants mainly relied upon the submissions made in the OA. He specially submitted that in the provisional seniority list of SMs/Inspectors/Yard Group of operations Department as on 1.11.2003, the names of the applicants 2 to 5 appeared at Sl.Nos.103 to 106 and Column No.8 relating to the date of promotion to the present grade was left blank. We, therefore, directed the learned counsel for the respondents to give relevant information relating to Column 8, which was supplied by the learned counsel for the respondents as 13.10.2001, 24.2.1998, 16.9.1998 and 3.10.1997. The main case of the applicants is that the period of their non fortuitous service in the parent cadre was not included in the newly created integrated cadre and this was against the instructions. It was their claim that the inter se seniority in the ex-cadre to which they originally belong had not been maintained.

25. We have carefully considered the arguments on both sides and the materials on record. The basic flaw in the claim of the applicants is that they have overlooked the fact that they were inducted in the cadre of Traffic Inspectors on the basis of selection and, therefore, even though the pay scale of Traffic Inspectors was equivalent to the pay scale of their original cadres like that of SMs, Guards etc., the fact remains that the applicants left their original cadres and they could not claim seniority of their original cadres in the cadre of Traffic Inspectors, which cadre they joined on the basis of a selection. The respondents have rightly stated that the applicants' contention that their erstwhile colleagues were promoted to higher grades and as such they should also be placed on par with them is untenable as their promotions were based on the conditions prevailing in the said cadre at the relevant point of time and the applicants were not part of the said cadre and hence they were not entitled to the said relief. It is important to note that the applicants have not submitted any rejoinder controverting the statements contained in the reply statement and hence the submissions made in the reply statement have to be taken as correct. Further, it is a fact that the applicants have not impleaded several other employees who might be affected if their plea was entertained. On this ground also, the OA deserves to be rejected. We are, therefore, of the view that the OA is devoid of any merit and the relief prayed for cannot be granted. We do not find any infirmity in the letter dated 10.12.2004 through which the representations of the applicants were rejected.

26. As a result, the OA is dismissed with no order as to costs.