In the High Court of Judicature at Madras Dated:-16-07-2008 Coram: The Honourable Mr.Justice P.K.MISRA and The Honourable Mr.Justice M.SATHYANARAYANAN Writ Petition No.37115 of 2003 and W.P.M.P.No.45049 of 2003 1.Union of India rep. by The Chairman, Railway Board, New Delhi. 2.Union of India rep. by The General Manager, Southern Railway, Chennai 600 003. 3.The Chief Personnel Officer, Southern Railway, Chennai 600 003. .. Petitioners Versus 1.Mohammed Abbas 2.Mr.A.D.Cyril 3.Mrs.Elizabeth Daniel 4.Mrs.Vasumathi 5.Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai 600 104. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records in respect of order passed in O.A.No.930 of 2002 dated 17.4.2003 passed by the Central Administrative Tribunal, Madras Bench and quash the same. For Petitioner .. Mr.V.P.Rajendran For Respondents .. No appearance. *******
(Order of the Court was made by M.SATHYANARAYANAN, J)
The writ petition is filed against the order dated 17.4.2003 passed in O.A.No.930 of 2003 passed by the Central Administrative Tribunal, Madras Bench(in short ‘the Tribunal’), by the official respondents in the said original application.
2. The first respondent herein was appointed as Lab Superintendent Grade III in the scale of pay of Rs.1320-2040 on 26.05.1983 and later on, promoted as Lab Superintendent Grade II in the scale of pay of Rs.1400-2300 on ad hoc basis with effect from 30.03.1990. The first respondent continue to work in the said post on ad hoc basis till 28.02.1993 and started working on regular basis with effect from 1.03.1993.
3. According to the petitioners/official respondents, the first respondent herein was wrongly promoted as Lab Superintendent Grade I in the scale of pay of Rs.1640-2900 with effect from 12.02.1997 superseding the respondents 2 to 4 herein even though they came to be appointed as Lab Superintendent Grade III earlier than the first respondent. The petitioners/official respondents further averred that as per Rule No. 165(6) of Indian Railways Establishment Manual Vol.I (1989), the vacancies in the next higher grade of Lab Superintendent Grade I in the scale of Rs.1640-2900 will be filled as per qualifications indicated below:
“1. M.Sc.(Chemistry) (preferably Bio-Chemistry and/or Organic Chemistry) with experience in a laboratory or institution undertaking analysis connected with foods, drugs, or clinical Bio-Chemistry, B.Sc. Chemistry with 5 years experience in analysis of food, water, drugs or clinical Bio-Chemistry.
2.Age relaxation upto 45 years may be allowed to candidates with over 5 years service on the Railways.
3.For Departmental promotion the qualification for Chemists/Lab Superintendent/Grade II in scale of Rs.1400-2300 is graduation in Science with five years experience as Chemist”.
4. The said qualifications are taken into account, the first respondent is junior most candidate as per his original appointment and eligible for promotion as Lab Superintendent Grade I only after completion of five years in the cadre of Lab Superintendent Grade II. Since the first respondent was promoted as Lab Superintendent Grade I with effect from 01.03.1993, he is eligible for promotion as Lab Superintendent Grade I only on 28.02.1998. However, he was erroneously considered for promotion as Lab Superintendent Grade I taking into account the period of his ad hoc promotion as Lab Superintendent Grade II and thereby he was wrongly promoted superseding all his juniors who were arrayed as respondents 2 to 4.
5. It is further stated by the petitioners/official respondents, that respondents 2 to 4 in the O.A as well as in this writ petition, submitted representations on 15.02.1999 and 03.03.1999 respectively for revision of the seniority pointing out the said mistake.
6. The petitioners herein realising the said mistake, had issued show cause notice dated 27.06.2001 to the first respondent to show cause as to why his seniority should not be revised, for which, the first respondent has submitted his explanation on 17.07.2001.
7. The official respondents in the said O.A. vide order dated 06.08.2001 had considered the objections raised by the first respondent analogetically and in great detail and revised his seniority.
8. The first respondent herein aggrieved by the revision of seniority, filed the above said application before the Tribunal to quash the order revising his seniority and for placing him above the respondents 2 to 4.
9. The Tribunal has held that in view of the notice given under the Railway Establishment Rules, as mentioned in the preceding paragraph, the action of the official respondents in not reckoning the ad hoc services of the first respondent in the post of Lab Superintendent Grade II for counting towards the qualifying service for promotion to the post of Lab Superintendent Grade I, is not in order. Therefore, the Tribunal citing the said reasons had allowed the original application and aggrieved by the same, the official respondents in the said original application had filed this writ petition.
10. Heard Mr.V.P.Rajendran, learned counsel appearing for the petitioner. Even though this matter was listed on 7.7.2008 for final hearing, the learned counsel appearing for the first respondent was not present and hence it was posted for orders on 16.7.2008. Even today, when the matter was called, the learned counsel appearing for the respondent is not present. Therefore, the Court is proceeding to dispose of this writ petition on merits by taking into consideration the counter affidavit filed by the first respondent.
11. The first respondent in his counter affidavit has stated that his promotion to the post of Lab Superintendent Grade I was properly made through selection procedure, as it is a selection post. It is further stated that the first respondent possessed of qualifications required for promotion to the post and taking into consideration of the same only, he was promoted to the said post and the procedure followed for his selection was proper and regular. It is further stated by the first respondent that he alone possessed all the required qualifications and therefore he was selected and that he entered the post of Lab Superintendent Grade I on 12.02.1997, much prior to the respondents 2 to 4 and hence he is senior to all of them. It is further stated by the first respondent that the Tribunal has taken into consideration of the relevant aspects and allowed the original application and hence, no interference is warranted.
12. We heard the submissions of the learned counsel appearing for the petitioners and also perused the materials available on record such as the counter affidavit filed by the first respondent and the typed set of documents.
13. The office order dated 08.03.1995 issued by the third petitioner herein would indicate that the first respondent was promoted to officiate as a Lab Superintendent Grade II in the scale of pay of Rs.1400-2600 for the period from 30.03.1990 to 28.2.1993 against the existing vacancy as an ad hoc measure. It was also indicated in the said order that the above promotion is purely an ad hoc measure and it will not confer the first respondent any claim for seniority, retention, and confirmation etc.
14. The post of Lab Superintendent Grade I is a non-selection post and the promotion is based on seniority cum suitability and therefore, the erstwhile seniority position of Lab Superintendent Grade II has to be maintained while considering the case of eligible persons for promotion to the post of Lab Superintendent Grade I with reference to the seniority position as on 31.12.1995. As per para 165 (6) of Indian Railways Establishment Manual Vol.I (1989), the vacancies in the higher grade of Lab Superintendent Grade I can be filled if a candidate possesses MSC (Chemistry) (preferably Bio- Chemistry and/or Organic Chemistry) with experience of two years in a Laboratory or institutions undertaking analysis connected with foods, drugs, or clinical Bio-Chemistry, B.Sc., Chemistry with 5 years experience in analysis of food, water, drugs or clinical Bio-Chemistry etc. and for departmental promotion, qualification for Chemist/Lab Superintendent Grade II is graduation in Science with five years experience as Chemist. The first respondent as per the original seniority list was appointed as Lab Superintendent Grade III on 26.05.1983 and respondents 2 to 4 were appointed to the said post on 27.10.1980 and 22.08.1978 respectively.
15. Therefore, the first respondent was admittedly junior most candidate in the cadre of Lab Superintendent Grade III and he is eligible for promotion to the next post only after completion of 5 years as Lab Superintendent Grade II. The first respondent was promoted as Lab Superintendent Grade II on 01.03.1993 and eligible for promotion only on 28.02.1998. However, due to inadvertent mistake, he was erroneously considered for promotion and thereafter promoted as Lab Superintendent Grade I by taking into account the period of ad hoc promotion as Lab Superintendent Grade II and due to the said mistake, he has became senior to respondents 2 to 4.
16. The finding of the Tribunal is that in view of the notes given under the Railway Establishment Rules the impugned order passed by the petitioners/official respondents by not taking into account his ad hoc service on the face of it, is unsustainable in view of para 165(6) of the Indian Railway Establishment Manual Vol.I, 1989. Even at the time of promotion the first respondent as a Lab Superintendent Grade II, it was clearly indicated in the office order dated 08.3.1995 passed by the third petitioner that such a promotion is purely on ad hoc measure and will not confer the first respondent any claim for seniority, retention or confirmation etc. Therefore, in the teeth of the said order which has been accepted by the first respondent without any protest, his claim that the said period should be taken into account and that he is senior to respondents 2 to 4 cannot be countenanced. In view of the above reasons, the order passed by the Tribunal is liable to be set aside.
17. The writ petition is allowed and the order dated 17.4.2003 in O.A.No.930 of 2002 passed by the Tribunal is set aside. But in the circumstances, there will be no order as to costs. Consequently, W.P.M.P.No.45049 of 2003 is closed.
gr.
To
6.Central Administrative Tribunal,
Madras Bench,
High Court Buildings,
Chennai 600 104