Full Judgment Text
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CASE NO.:
Appeal (civil) 4884-4885 of 2007
PETITIONER:
S.P. Indu
RESPONDENT:
The General Manager, Metro Railway and Another
DATE OF JUDGMENT: 12/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) Nos.21224-21225 of 2004)
S.B. Sinha, J.
1. Leave granted.
2. Seniority in the post of Assistant Law Officer in the Metro Railways
is in question in these appeals which arise out of a judgment and order dated
14.8.2003 passed by a Division Bench of the Calcutta High Court reversing
a judgment and order dated 14.12.2001 of the Central Administrative
Tribunal, Calcutta.
3. Appellant joined South Eastern Railways as a Clerk in the year 1964.
He was transferred in public interest to Metropolitan Transport Project
(Railway) in Calcutta on 17.10.1970. P.K. Gangopadhyay, the third
respondent herein, was appointed as a Junior Stenographer in the South
Eastern Railways on 4.2.1978. He was also transferred to the Metro
Railways Calcutta on 12.5.1978. Third respondent was promoted as Law
Assistant on 28.3.1979 in the scale of pay of Rs.550-750/- on an ad hoc
basis. The said ad hoc promotion was regularized w.e.f. 28.3.1979. He was
again promoted as Law Assistant on 10.12.1985. Appellant, while keeping
his lien in the Southern Railway Administration was appointed as Chief Law
Assistant in the Metro Railways n the scale of pay of Rs.700-900/- on an ad
hoc basis w.e.f. 23.7.1986. Respondent was promoted as Chief Law
Assistant on 28.3.1990.
4. It is not in dispute that the principles which were applicable for
promotion to the post of Assistant Law Officer were as under :
\023The following principles should be followed in
determination of seniority and promotion of staff
in the Metropolitan Transport Project, Calcutta :
1. SENIORITY : The Metropolitan Transport
Project is a purely temporary work charged
organization and, as such all posts in this
organization are purely temporary, ex-cadre
and work-charged ones. These posts are
normally filled by drafting staff from
different seniority groups of different
Railways. The seniority of such staff will be
reckoned on the basis of joining this Project.
For the purpose of this rule all employees
will be treated as having joined on the same
date. As a consequence of this principle, the
relative seniority of employees joining in a
particular grade will be fixed based on the
length of service rendered in that grade other
than fortuitous service. Periods of
officiating service rendered in the higher
grade as a regular measure other than
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periods of promotions against ex-cadre or
work-charged posts will be taken into
consideration while fixing his seniority on
re-promotion in the same higher grade in
this project.
1.1 The seniority of staff now working in this
Project will be prepared on the above
principles and placed on record. On arrival
of any new staff, their names will be
interpolated on the basis of their length of
non-fortuitous service in the respective
grade.
2. PROMOTION : All posts under
Metropolitan Transport Project have been
classified as either selection or non-
selection. Promotion to selection posts will
be made as per extant orders in connection
with the filling of selection posts.
Promotions to non-selection posts will be
made on the basis of seniority-cum-
suitability, suitability being judged by the
authority competent to fill the post by oral
and/or written test or a departmental
examination as considered necessary and the
record of service. The only exception would
be in cases where for administrative
convenience the competent authority
considers it necessary to promote a railway
servant other than an empanelled staff or
senior most staff to officiate in a short term
vacancy.
2.1 A staff who has already been promoted
against a vacancy other than fortuitous
promotion will not be disturbed even if
another staff who becomes senior to him as
per policy in para 1.1 joins Metropolitan
Transport Project in the lower grade after
the promotion of the junior. The senior staff
will have to wait for his chance of
promotion according to his seniority
position fixed in accordance with para 1.1
above. On promotion to the higher grade,
his seniority position will be restored and
the name interpolated in the seniority list of
the higher grade provided he qualifies for
such promotion either through selection or
suitability test in the first chance. This
seniority list will then be followed for
subsequent promotions to still higher grades.
The same principle will also be adopted
when a staff joins MTP on transfer in the
intermediate grade.
3. SELECTION/SUITABILITY TEST : Even
if an employee has already qualified himself
in a Selection/Suitability test on the Open
Line, no weightage in seniority will be given
to him in the MTP, but he will not be
required to re-appear for further test for
promotion when his turn for promotion
comes according to his seniority position in
the MTP. However, the inter se seniority of
staff coming from the same seniority unit
will not be disturbed.
3.1 The above principles for fixing seniority will
be followed till the completion of the two
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surveys entrusted to this Project. This
principle will be reviewed in due course if
the construction work is sanctioned and
undertaken by this Project.\024
5. Indisputably, appellant herein appeared in the departmental
examination but did not succeed. He again appeared in the said examination
in 1992. Although he passed the written test, but failed to qualify the viva
voce. Third respondent, on the other hand, became a Law Assistant on a
regular basis in 1991 upon passing the suitability test conducted therefor.
He was promoted to the post of Assistant Law Officer on 30.1.1994.
6. Appellant, being not been promoted, filed an Original Application
before the Central Administrative Tribunal, Calcutta (CAT). By an order
dated 30.8.1994, the General Manager (Metro Railway) was directed by
CAT to pass a speaking order. Appellant was personally heard by the said
authority. A speaking order was passed which is to the following effect :
\023In compliance with the Hon\022ble Central
Administrative Tribunal, Calcutta Bench\022s order
dated 30th August, 1994 in O.A. No.937 of 1994 \026
S.P. Indu \026 Vs \026 Union of India & Ors.; Shri S.P.
Indu and P.K. Gangopadhyay have been given
personal hearing by me on 17th November, 1994 at
11:40 hrs. After hearing the oral submission of the
said employees and going through the entire
records and considering the facts and
circumstances of the case, I am satisfied that the
contention of the applicant is not acceptable.
Shri Indu is Head Clerk in the pay scale of
Rs.1400-2300/- and Shri P.K. Gangopadhyay is
Chief Law Assistant in the scale of Rs.2000-3200/-
in the parent Railway i.e. in South Eastern
Railway. Both of them are having non-fortuitous
service in the respective grades in the parent
Railway.
In terms of Para 203.5 of Indian Railway
Establishment Manual, Vol.I (Revised Edition
1989) promotion as Asstt. Law Officer in Group
\021B\022 can be considered on seniority on the basis of
total length of non-fortuitous service rendered in
grade Rs.2000-32000/- (RS) and above. Shri Indu
who holds the position of Head Clerk in his parent
Railway is, therefore, not eligible for being
considered.
In terms of Estt.Srl.No.212/85 dt.19.09,85 issued
by the Ministry of Railways, double ad hoc
promotion should not normally be given. Shri
Indu is clearly enjoying the benefit of double ad-
hoc promotion whereas Shri Gangopadhyay ceased
to get benefit of even a single ad hoc promotion
w.e.f. 18.11.92. His promotion w.e.f. 01.07.94 as
Asstt. Law Officer gives him a single ad hoc
promotion in conformity with the directives of the
Ministry of Railways and being the senior-most
amongst the employees similarly placed (that is
regular Chief Law Assistants on their parent
Railway) he was correctly promoted as the Asstt.
Law Officer.
The orders already issued, therefore, stand.\024
7. Aggrieved by and dissatisfied with the said order dated 30.8,1994,
another original application was filed by the appellant before the CAT. By
an order dated 14.12.2001, CAT, inter alia, considering the fact that the
appellant had joined the Metro Railway much prior to the third respondent
and proceeding on the premise that he had already been placed in the pay
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scale of Rs.2000-3200/- (RS), held :
\023It is not disputed that the Metro Railway was
constituted under the Central Act of Metro
Railway (Construction and Work) Acts, 1978 (as
amended by Act 42 of 1987) and that both the
applicant and the respondent were recruited in the
open line in different time and job but were posted
under Metro Railways respectively with effect
from 17.10.70 and 12.5.78. Whereas the applicant
was recruited in the year 16.12.64, as U.D. Clerk,
it is now stated that Respondent Shri P.K. Ganguly
was recruited on 4.2.78 as Law Asstt. in a different
grade of Group-C job. From the records we are
able to come to the conclusion that both these
incumbents came to be posted in the Metro
Railways from open line on different dates and
with different designations. When the respondent
statedly recruited on 4.2.78 came to Calcutta and
joined the Metro Railway project from 12.5.78, the
applicant had come and joined in Metro Railways
on 17.10.70 with clearly 8 years before the
respondent.
In this connection, the applicant has submitted a
separate seniority list for officers posted in Metro
Railways which was separate, self contained and is
dated 17.11.88. There the applicant has been
shown to have become Law Asstt. with effect from
30.3.79 and thereafter he was promoted as Chief
Law Officer on ad hoc basis with effect from
1.7.86. In this seniority list the position of the
respondent is shown as Law Asstt. with effect
from 10.12.85 and his promotion as Chief Law
Assistant is not at all shown. In fact as stated by
the applicant, the respondent was promoted as
Chief Law Assistant with effect from 28.2.90 but
this position has been disputed by the respondent
who has submitted another open line seniority list
dated 28.2.93 (Annexure R1). In this seniority list
the position of respondent is shown against No.30
and his date of promotion as Chief Asst. Law Asst.
on regular basis is shown with effect from
18.11.92 and marked to be posted in Metro
Railways. In this seniority list his date of
appointment has been indicated to be 4.2.78 under
Column 3 but the post in which he was appointed
has not been indicated specifically. It was,
however, clarified that he was appointed as Asstt.
Law Officer. If this seniority list in the open line
is considered as the only seniority list for Law
Officer and Chief Law Assistant, it becomes
evident that the respondent came to Calcutta
probably on deputation to Metro Railways in a
lower post where he was promoted as Law Officer
with effect from 10.12.85. In other words, he
worked as Law Asstt. in open line only for 3
months i.e. from February to May 1978. Hence he
was not holding the post of Law Assistant in the
scale of Rs.1400-2660/- continuously since
February 1978 being his date of recruitment.\024
8. On the said findings, the Original Application filed by the appellant
herein was allowed setting aside the speaking order passed by the General
Manager (Metro Railway) on 29.11.1994.
9. Two writ petitions were filed thereagainst before the Calcutta High
Court; one by the Union of India and the other by the third respondent. A
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Division Bench of the Calcutta High Court reversed the said judgment of
CAT saying that the appellant had never held the post of Chief Law
Assistant on a substantive basis in the open line where he had the lien.
10. Appellant is, thus, before us.
11. Mr. Rana Mukherjee, learned counsel appearing on behalf of the
appellant, in support of this appeal, contended that the High Court
committed a manifest error in passing the impugned judgment insofar as it
failed to take into consideration that the appellant having been placed in the
pay scale of Rs.2000-3200/- by the Metro Railway was eligible to be
considered for promotion to the post of Assistant Law Officer, particularly,
in view of the fact that therefor only seniority-cum-suitability test was to be
applied. It was further submitted that the High Court, in opining that the
appellant had been holding a post of Head Clerk, committed a serious error
as the fact that he had been holding the post of Chief Law Assistant for four
years whereas the private respondent had not even completed three years of
regular service, was totally ignored. It was furthermore submitted that
whereas the appellant was holding the feeder grade to the promotion of
Assistant Law Officer since 10.12.1985, the respondent held the post of
Chief Law Assistant only from 28.3.1990.
12. When questioned, Mr. Mukherjee could not deny or dispute that, at all
material times, the appellant had retained the lien of the South Eastern
Railway Administration. From the records, it appears that he was
permanently absorbed in the Metro Railway Project as governed by an Act
known as the Calcutta Metro Railway (Operation and Maintenance)
Temporary Provisions Act, 1985 ; Section 18 whereof reads as under :
\023Save as otherwise expressly provided in this Act,
the provisions of the Indian Railways Act, 1890,
and the rules, orders or notifications made or
issued thereunder shall, so far as may be and
subject to such modifications as may be necessary,
apply to the operation and maintenance of the
metro railway, as if such metro railway were a
railway as defined under that Act, and the
references to \023railway administration\024 and
\023inspector\024 in that Act shall be construed as
references to the \023metro railway administration\024
and \023Commissioner\024 respectively.\024
13. It is, however, not in dispute that no Rules had been framed at the
relevant time and the Office Order issued on 19.9.1970 was applicable.
We may notice some of the relevant provisions of the said Office
Order dated 19.9.1970 :
\023The Metropolitan Transport Project is a purely
temporary work-charged organization and, as such,
all posts in this organization are purely temporary,
ex-cadre and work-charged ones. These posts are
normally filled by drafting staff from different
seniority groups of different Railways.
1.1 The seniority of staff now working in this
Project will be prepared on the above principles
and placed on record. On arrival of any new staff,
their names will be interpolated on the basis of
their length of non-fortuitous service in the
respective grade.\024
14. Third respondent, in terms of the said Rules carried with him the
seniority in the open line when he joined the Metro Railway. He having
passed the departmental examination was in the cadre of Chief Law
Assistant in the open line. Appellant, however, having not passed the said
examination held his lien in the post of Head Clerk in the open line.
15. Paragraph 203.5 of the Indian Railway Establishment Manual reads as
under :
\023Since employees from the different streams will
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be eligible to appear for the selection, their
integrated seniority for purposes of the selection
should be determined on the basis of total length of
non-fortuitous service rendered in grade Rs.2000-
3200(R.S.) & above. In other words the date of
appointment to the grade Rs.2000-3200(R.S.) on a
non-fortuitous basis will be the criterion.\024
16. Submissions of Mr. Mukherjee that the said Rule will have no
application to the employees of the Metro Railway being not an
establishment of the Indian Railways cannot be accepted. Employees from
different streams were eligible to appear at the competitive examination.
Their inter se seniority was, therefore, required to be determined in terms of
the said Rule. Although Metro Railway was an independent organization, it
used to recruit people on deputation from different Railway Administrations.
The General Manager of the Metro Railways also had rejected the
representation of the appellant, inter alia, on the basis thereof.
17. It is one thing to say that the appellant was in the scale of pay of
Rs.2000-3200/- but it is another thing to say that he was holding the
substantive post of Chief Law Assistant. He might be working in the said
post in the Metro Railways but the same would not mean that despite the
fact that he had not passed the departmental examination, would still be
eligible for being considered for promotion to higher post in the open line
although he was not qualified therefor.
18. The premise adopted by the Tribunal in allowing the original
application filed by the appellant herein, therefore, was not correct.
Appellant was not appointed on substantive basis in terms of the provisions
of the said Act. He was merely on deputation and, therefore, for the purpose
of considering his eligibility to be appointed on an existing post, he was
required to hold the post of Chief Law Assistant in a substantive capacity for
a period of three years. Cases of the appellant and the third respondent,
therefore, were not comparable and in that view of the matter although the
appellant joined the services of the South Eastern Railway Administration as
also the Metro Railways earlier, he could not be treated to be senior to the
third respondent.
For the reasons aforementioned, there is no merit in these appeals.
They are dismissed accordingly. In the facts and circumstances of the case,
however, there shall be no order as to costs.