ORDER
V.K. Majotra, Vice-Chairman (A)
1. By virtue of this application the following orders of respondents have been challenged:
Annexure A/1 dated 31.10.2003 whereby respondents took a decision that in the case of Diesel Assistants the date of joining the working post on completion of pre-requisite training will determine the seniority of candidates irrespective of the mode of recruitment, i.e., through Railway Recruitment Board, CG appointment or against promotee quota, and not from the date of joining the working post.
Annexure A/2 dated 1.11.2004 issued by DRM in compliance of Tribunal’s directions in applicants’ earlier OA No. 1334/2004 conveying that seniority list of Diesel Assistants has been revised on 23.8.2004 by adopting the following criteria:
(1) The Direct Recruits appointed in Nov. 1989 have been assigned their seniority from the date of completion of pre-requisite training i.e. two years from the date of commencement of training. For those direct recruits appointed before 1989, seniority was fixed after adding 18 months training as applicable to them.
(2) The promotees have been assigned their seniority on adding 4 months + 4 weeks i.e. 5 months to the date of their promotions/ regularisation.
Annexure A/3 seniority list dated 10.2.2004 and Annexure A/4 seniority list dated 23.8.2004.
2. At the outset, the learned Counsel of respondents took exception to the claim of applicants stating that if relief sought for by applicants is granted to them, there will be a large number of persons who will be adversely affected but have not been impleaded in the array of respondents. As such, this application is not maintainable. The learned Counsel of applicants relying on 2003 (1) ATJ 558 (CAT) – Sanyukta Arjuna v Union of India and Ors. contended that when a principle of law is assailed, affected parties need not be made necessary parties. Interest of necessary parties would be safeguarded by putting them to notice before refixing the seniority of applicants. In that case applicant had claimed seniority on the basis of Rule 12(2) of Central Secretariat Official Language (Group ‘C’ Posts) Rules, 1981. Paragraph 22 of the judgment reads as follows:
22. In so far as the contention that reckoning of service of applicant for the purpose of seniority would have cascading effect and would unsettle the settled seniority and the resort to the decision of the Apex Court the same would have no application in the present case, as the ratio is distinguishable. Applicant is claiming seniority on the basis of Rule 12(2) ibid which has not been followed by the respondents and moreover the affected parties when a principle of law is assailed need not be made necessary parties. Their interest would be safeguarded by putting them to notice before refixing the seniority of applicant.
In the present case too, seniority in terms of paragraph 306 IREM Vol.-I has been claimed. As such, the ratio in the matter of Sanyukta Arjuna is squarely applicable in the present case. Interest of the affected parties would be safeguarded by putting them to notice before refixing applicants’ seniority. Respondents’ objection as regards impleadment of those to be affected as necessary parties is rejected, therefore.
3. It has been alleged in the OA that respondents have revised seniority of applicants even without issuing a show cause notice and without assigning any reasons and justification. Applicants are stated to have been previously at Sl. Nos. 43, 44 and 46 but have now been placed at Sl. Nos. 401, 403 and 410 of the seniority list.
4. It has been contended on behalf of applicants that they were initially selected for the post of Diesel Assistants through Railway Recruitment Board, Allahabad. It is alleged that while other persons were sent for training in the year 1987, applicants were sent for training in the year 1989. It is claimed that delay in training of applicants is not attributable to applicants but was due to the fault of the administration itself.
5. The learned Counsel of applicants contended that applicants’ case is covered under paragraph 306 of IREM Volume-I, which reads as follows:
306. Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above.
6. While in the OA it has been sought on behalf of applicants that applicants’ names should be placed in the seniority list on the basis of their merit position in the panel, the learned Counsel now contended that applicants’ grievance would be redressed in case their names are interpolated in the seniority list at the bottom of the 1987 panel of Fireman/Diesel Assistants.
7. The learned Counsel relied on order dated 3.2.2005 in OA No. 1990/2004 – Afroz Ahmad and Ors. v Union of India and Ors. in which respondents’ orders dated 10.2.2004 and 14.9.2004 had been assailed whereby training period of 24 months was treated as apprenticeship period denying applicants seniority as well as benefits of the ACP Scheme. These impugned orders were quashed and set aside and respondents were directed to grant seniority to applicants from the date including 24 months of training period. Applicants were also held entitled to benefit of ACP Scheme in accordance with law after refixation of seniority from the date of entry in the grade with all consequential benefits.
8. The learned Counsel of applicants also relied upon 2004 (1) ATJ 179 (SC) Bimlesh Tanwar v. State of Haryana and Ors. in which it was held that seniority has to be determined on the basis of merit and further that where the name of any selected candidate is withheld by the Commission or the State Government which resulted in prior appointment of certain candidates and later the said candidate whose name had been withheld was directed to be appointed, then he will get seniority according to his merit irrespective of his date of appointment. On this basis, the learned Counsel contended that as applicants were detailed for training much later than their batchmates due to some administrative reasons and not on account of applicants’ fault, they ought to be accorded seniority according to their merit in the panel irrespective of their dates of appointments and in any case they should be placed at the bottom of the seniority of those selected in the panel along with them in 1987.
9. The learned Counsel of respondents, on the other hand, contended that the decision in the case of Afroz Ahmad (supra) was carried to the Hon’ble High Court of Delhi through Civil Writ Nos. 9428-29 of 2005, which were allowed on 7.3.2006. It was held by the Hon’ble High Court as follows:
14. In view of our findings given above, we allow the present Writ Petitions and set aside the impugned Orders dated 3rd February, 2005 and 7th April, 2005 and hold that the training period of 24 months is not to be reckoned and counted for the purpose of seniority and the ACP Scheme. The seniority of the respondents will be counted from the date they successfully completed their training and in terms of Clause 18 of the Agreement as quoted above and in terms of note to para 302 of IREM. The respondents will be ‘in service’ from the date they successfully completed their training period for the purpose of ACP Scheme and seniority. Accordingly, the writ petitions are allowed and the impugned orders are modified to the extent indicated above. In the facts and circumstances of the case, there will be no order as to costs.
10. The learned Counsel also brought to our notice Tribunal’ orders dated 17.7.2006 in OA No. 2440/2004 Ajay Kumar Sharma and Ors. v. Union of India and Ors. in which letter No. 752-E/314/EHC dated 25.7.2005 issued by the Northern Railway Headquarters Office on the subject of assignment of correct seniority to Ist Fireman, was taken into consideration. They read as follows:
The seniority dispute of Diesel Assistants of MB division was examined and it is noticed that the policy adopted by MB division of adding 5 months training period from the date of empanelment/promotion notionally for all the promotees to the post of Ist Fireman is not in accordance with the rules. It is further pointed out that promotional course is/was a pre-requisite condition for promotion from IInd Fireman to Ist Fireman. In other words without qualifying the promotional course no IInd Fireman could have been promoted to the post of Ist Fireman and therefore, date of promotion to the post of Ist Fireman in the case of promotees should determine the seniority position in the combined seniority list of direct recruits and promotees.
Candidates selected through RRB/ALD were directed to MB division by this office on 3.10.89. The training period of 24 months was mentioned in the letter of HQ Office. Their requisite training was for 24 months as given in PS-9817 of 3.3.87 and also mentioned in their offer of appointment given by the Division to the candidates. As such, the contention that their training period was only 18 months is not correct. The seniority be assigned notionally on completion of 24 months scheduled training unless delay is proved to be directly attributable to any individual staff.
Necessary action is taken accordingly keeping in view the directives/orders if any passed by court of law in any specific case.
The learned Counsel pointed out that on the basis of the letter dated 25.7.2005, the case of Ajay Kumar Sharma (supra) was disposed of with the following directions:
8. It is relevant to note that the abovesaid letter was written as back as on 25.07.2005, i.e., almost one year back. Therefore, there is need to give time bound directions. Accordingly respondents are directed to issue the final seniority list of Diesel Assistants/ 1st Fireman within a period of three months from the date of receipt of a copy of this order, on the basis of letter dated 25.07.2005, interpolating the names of applicants at appropriate places under intimation to them. It is made clear that while deciding applicant’s seniority, respondents shall also take into consideration, the representation dated 9.6.2004 given by the applicants and annexed with the petition at Page-36. We would like to clarify that we have not gone into the question as to how seniority should be fixed. OA is disposed of on the basis of letter dated 25.07.2005. Applicants would, therefore, have the liberty to challenge their interpolation, in case they are aggrieved by the seniority list.
The learned Counsel stated that the seniority list is in any case going to be revised in terms of Tribunal’s orders dated 17.7.2006 in Ajay Kumar Sharma (supra).
11. Indeed, in terms of paragraph 306 ibid candidates selected for appointment at an earlier selection have to be considered senior to those selected later irrespective of dates of their posting. In the present case, it has been clearly contended on behalf of applicants that delay in the training of applicants is not attributable to them but to respondents themselves. Respondents have not rebutted this claim in their counter affidavit. Obviously, it has to be taken that delay in the training of applicants was due to administrative reasons and not due to applicants’ fault. Thus, in terms of respondents’ own letter dated 25.7.2005 as the delay in training of applicants is not attributable to applicants, their seniority will be accorded from the date of their initial appointment on the basis of the 1987 panel. However, in terms of their modified relief as stated in paragraph 6 above, they will have to be placed at the bottom position in the seniority list of candidates of the 1987 panel.
12. In the case of Ajay Kumar Sharma (supra) respondents have been directed to revise the seniority list in terms of letter dated 25.7.2005 within a period of three months. The present OA is disposed of in terms of directions in the case of Ajay Kumar Sharma treating the delay in the training of applicants as attributable to respondents and not applicants. Applicants will have the liberty to challenge their interpolation in case they are aggrieved by the seniority list to be issued in terms of order dated 17.7.2006 in the case of Ajay Kumar Sharma (supra) on the basis of respondents’ aforesaid letter dated 25.7.2005.
13. This OA is disposed of with the above directions. No order as to costs.