ORDER
V. Srikantan, Member (A)
1. In this application, the applicant is seeking a direction to the 4th respondent to include the name of the applicant at the appropriate place in the seniority list of Motor Vehicle (MV) Drivers of Mysore Division, as the applicant’s lien is maintained as Driver in Mysore Division, as on 1.12.96 and publish the seniority list and for grant of consequential benefits of promotion, fixation of pay and arrears of pay based on such seniority.
2. The brief facts are that the applicant was appointed as temporary ELR Khalasi on 30.9.65. He was promoted as Lorry Driver and worked as such from 11.5.76 to 16.4.78 and was appointed as Gangman with effect from 17.4.78 in the scale of Rs. 200-250 (Anncxure A-1). The applicant was promoted as ad hoc driver in the scale of 260-400 with effect from 22.5.78 (Annexure A-2) and subsequently promoted as ad-hoc lorry driver in the scale of Rs. 1,200-1,800 vide order dated 7.6.89 (Annexure A-5). Thereafter, the applicant was fitted as driver in the scale of 950-1,500 in the construction reserve (CR) post with effect from 16.6.94 vide order dated 28.6.94. The applicant was also provided lien in Mysore Division as Gangman with effect from 17,4.78. The applicant has stated that he has been working continuously as a driver from 22.5.78 and has put in more than 21 years of service as a driver. On 26.12.96 a provisional seniority list of MV drivers of Mysore Division as on 1.12.96 was published in which the name of the applicant did not figure (Annexure A-7). The applicant submitted a representation on 7.2.97 (Annexure A-9) to respondent No. 4 to include his name in the seniority list of MV drivers of Mysore Division at the appropriate place according to seniority as he belonged to Mysore Division, but neither he received any reply nor was his name included in the seniority list of MV drivers of Mysore Division and the final seniority list has not been published so far. Aggrieved, the applicant has filed this O.A.
3. The contention of the applicant is that he has been fitted as a driver against a Construction Reserve (CR) post and provided lien as driver and hence he is having a substantive status as driver in Mysore Division. Accordingly, the name of the applicant was required to be interpolated in the seniority list of MV drivers of Mysore Division but this has not been done and thereby the applicant is being denied his entitlement to promotion according to his seniority while his juniors are enjoying the benefits and hence the action of the respondents is violative of Article 311 of the Constitution as well as violative of the principles of natural justice.
4. According to the applicant, the concept of CR post was introduced in the year 1973 vide Railway Board’s letter dated 24.12.73 (Annexure A-14). In terms of this letter 40 per cent (increased to 60 per cent later) of the temporary non-gazetted post in each grade in the construction department should be sanctioned permanently as CR post from 1st April, 1973 and such posts are required to be distributed to the divisions for the purpose of giving lien seniority etc. to all the employees holding CR posts from the date of absorption of the employees in CR posts, which is based on the date of their absorption in their respective grades and thereafter such persons were to have further avenues of promotion in division/ headquarters to which they will be attached based on the interpolated seniority. The applicant therefore contends that according to this procedure all confirmations against CR post are to be done by open tine and accordingly the applicant’s name should have been included in the seniority list of MV drivers maintained in the Mysore Division. It is further contended that the third respondent within whose division the applicant was working failed to give the necessary particulars to the 4th respondent as a result of which the applicant’s name has not been included at the appropriate place in the seniority list of MV drivers of Mysore Division, thereby denying the applicant the benefits.
5. Respondents 1, 2 and 4 have filed their reply. They contend that the applicant was working on ad hoc basis as a lorry driver with effect from 1.5.89, in the construction organisation where all posts are classified as ex cadre posts and therefore the applicant cannot seek promotion as a driver in a cadre post based on his having worked in an ex cadre post. They have also stated that the employee was provisionally fitted against the CR post with lien in Mysore Division but this does not mean that the applicant was promoted as a driver in a cadre post. They have also denied that any of the juniors of the applicant have been included in the provisional seniority list of MV drivers as on 1.12.96 in Mysore . Division. Their further contention is that the applicant was empaneled and admitted to the cadre post of Gangman only by an order dated 3.5.99 (Annexure A-4). Accordingly, the applicant having been empaneled only as a Gangman the question of including the name of the applicant in the seniority list of MV drivers does not arise.
6. Respondent No. 3 has filed a reply stating that the applicant was empaneled as Gangman on 17.4.78 but he continued to work in the construction organisation as MV driver as an ad hoc measure and the matter regarding providing a lien to the applicant in the open line in the Mysore Division was under protracted correspondence. Ultimately, the applicant was given a lien as Gangman from 17.4.78 vide letter dated 3.5.99. However, in pursuance to a call letter dated 11.2.94 for filling up the post of MV driver Grade III under the CR posts, the applicant volunteered for confirmation as MV driver (Annexure R-1 and R-2). Accordingly, the applicant was considered for confirmation against one of the posts of MV drivers in the year 1994 and he was confirmed as MV driver Grade III vide order dated 28.6.94 (Annexure A-6). It has been further stated that in terms of the clarification dated 2.1.2001 and 22.6.2001 issued by the CPO, Southern Railway, Chennai, a person who is confirmed against the CR post need not be assigned with any lien in any of the divisions of the open line but could continue in the construction and progress according to the seniority in the cadre of CR post and it has been clarified that the lien was meant only for the purpose of arranging settlement in the event of their superannuation or death or otherwise. This being the position, the applicant’s name cannot be included in the seniority list of MV Drivers of Mysore Division.
7. The applicant has filed a rejoinder stating that the respondent’s contention that he was empaneled for absorption as Gangman only by order dated 3.5.99 is incorrect and pointed out that from Annexures A-3 and A-4 it is clear that the applicant’s lien has been provided in the Mysore Division with effect from 17.4.78. The applicant has also denied that all the posts in construction organisation are classified as ex cadre post. Further, Shri Moris D’ Souza, Chennaveera Gowda, Abdul Gaffer, N. Palaniswamy, M.L. David and K. Madhavan Nair who are some of the empaneled Gangman and who are junior to the applicant in Mysore Division and who were also working in the construction organisation have been included in the seniority list of MV drivers of Mysore Division. It has also been urged by the applicant that the clarification dated 2.1.2001 and 22.6.2001 issued by the CPO, Southern Railway regarding CR post is quite recent and much later to the applicant’s confirmation as MV driver and that the construction reserve posts from a part of the combined cadre with the open line.
8. The respondents have submitted an additional reply in which they have stated that at no point of time the question of providing Hen in the category of drivers in Mysore Division has been communicated upon by the construction unit and as such his lien is not maintained in the Mysore Division in the category of drivers. They have however admitted that the applicant was fitted against the post of jeep/lorry drivers in the CR post with effect from 26.6.94. It has also been pointed out by the respondents that on the applicant being provided a lien in his parent unit i.e. PWI/KBPPR, the applicant was promoted to the scale of 210 -270 with effect from 5.9.83 to the scale of 825-1,200 with effect from 1.3.93 on par with his juniors. It was also their contention that the applicant was promoted as driver in the construction organisation against a work charged post and not from Mysore Division against a revenue post and in case personnel are repatriated to their parent unit, they can be considered only for being posted against the post in which they hold a lien and not in the post for which they were considered and promoted in the construction organisation. In the case of the applicant, as his lien in the parent cadre is that of Gangman he can only be promoted to the higher scale in that category. In the case of Moris D’Souza, it has been stated that he was appointed as a Gangman on 12.4.78 and promoted as an ad hoc driver in the construction unit on 22.5.78 and subsequently transferred to open line to work as a driver from 24.10.84 and subsequently, the ad hoc promotion as driver was a regularised from 20.9.86 and accordingly his lien has been provided in the category of drivers in Mysore Division. As regards Chennaveera Gowda, N. Palaniswamy, Abdul Gaffer and Madhavan Nair, the respondents have stated that all of them were initially appointed in the open line and had subsequently been selected and posted as drivers and hence their lien is with the Mysore Division and therefore, their names have correctly been shown in the seniority list of MV Drivers of Mysore Division. In respect of M.L. David, the respondents have stated that though he was appointed as a Gangman in the construction organisation it subsequently became part of the Mysore Division when the construction unit in which he was working was transferred to open line of Mysore Division and subsequently Shri M.L. David was selected for the post of driver and posted as such from 17.12.89 and accordingly his lien is maintained in the category of MV drivers of Mysore Division. In respect of K.P. David, the respondents have stated that he was initially appointed as lorry attendant on 11.11.76 in construction unit against the CR post and his lien was maintained in the category of lorry attendants of Mysore Division and accordingly he has been included in the category of drivers in Mysore Division.
9. Heard both Counsel and perused documents on record.
10. The Counsel for the applicant reiterated the various contentions made in the O.A. and the rejoinder and also in support referred to the orders passed by this Tribunal on 9.9.98 in O.A. 33/1998. In that O.A., the applicant had claimed that he was entitled to the benefit of regularisation in the post of driver but the same had been denied to him though the juniors to him in the construction unit have been considered and regularised as drivers and consequently his name did not figure in the seniority list of drivers. This Tribunal in its order had allowed the application in part directing the applicant to furnish particulars of service of the applicant as ad hoc driver to second respondent and thereafter the third respondent was to consider the case of the applicant for regularisation. The Counsel for the respondents during the course of hearing has produced an order dated 10.1.2001 (taken on record) passed by respondents consequent to the directions of this Tribunal in which the claim of the applicant for regularisation and for inclusion in the seniority list of drivers has been rejected on the ground that the applicant’s substantive cadre was lascar and the applicant though an ad hoc driver had not volunteered and passed the trade test to get permanent absorption as driver. It is seen that in O.A. 33/1998, the applicant had sought for regularisation as driver and thereafter for his inclusion in the seniority list of drivers in Bangalore Division. We are of the view that this O.A. 33/1998 is neither relevant or applicable as the facts under consideration in this application are very different. In the present application, the applicant is not seeking regularisation and thereafter inclusion of his name in the seniority list of MV drivers in Mysore Division. His stand is that he has already been fitted in the cadre of MV drivers in the CR post and this being so his name should have been interpolated according to his seniority in the seniority list of MV drivers in the Mysore Division.
11. The Counsel for the respondents strongly argued that the applicant being a gangman which is a Group ‘D’ post his next promotion can only be in the Group ‘D’ cadre and that he cannot be promoted as a driver which is a Group ‘C’ post. The Counsel for the respondents also argued that the application is also barred by limitation as the applicant was challenging an order dated 26.12.96 and this application has been filed only on 25.1.2001.
12. As regards limitation, the applicant has submitted an M.A. for condonation of delay pointing out that he had made a representation dated 4.2.1997 for inclusion of his name in the seniority list of MV drivers of Mysore Division at the appropriate place and that he has been working outside Mysore Division in the construction wing all the time. In view of the fact that the applicant is seeking inclusion of his name in the seniority list of MV drivers in Mysore Division and as seniority is a cause for continuous action, it has to be held that the question of limitation does not arise. Hence, the M.A. 156/2001 for condonation of delay is allowed.
13. The basic contention of the respondents is that the applicant is a Gangman and that his lien is in the cadre of Gangman in Mysore Division and therefore the applicant is only entitled to further promotion in the cadre of Gangman. The respondents have also relied on a clarification dated 2.1.2001 and 22.6.2001 to contend that the applicant’s name cannot be included in the seniority list of MV drivers in the Mysore Division. It is no doubt true that the applicant would not be entitled to have his name included in the seniority list of MV drivers of Mysore Division if he had not been promoted as a MV driver and included in the CR post. It is seen from the records produced that the applicant had been promoted as driver on ad hoc basis but subsequently vide order dated 28.6.94 the applicant was fitted as driver in the scale of 950-1,500 with effect from 16.6.94 against a CR post. Further, in terms of respondents’ letter dated 24.12.73 and 22.10.79 we are of the view that once the applicant was fitted as a driver against a CR post, his name was required to be included in the seniority list of MV drivers in Mysore Division as his lien as driver would be with the Mysore Division. In this connection, the relevant para of the letter dated 22.10.79 is extracted as under:–
“Sub : Construction Reserve Posts-Provision of lien.
In terms of CPO/MAS procedure order No. P (S) 135/1/3 CN Reserve dated 11.5,79, it has since been decided to provide lien in Headquarters/Divisions to all the employees holding Construction Reserve posts in this Construction Wing based on the date of their absorption in the respective grades. They will have their further avenue of promotions in the Divisions/Headquarters to which they will be attached based on the interpolated seniority. As far as possible, they will be provided lien on the divisions of their choice. If their options are not proportionate they will be allotted to the various other seniority units according to administrative convenience.”
In this view of the matter the respondents cannot rely on the clarification issued by the DPO dated 2.1.2001 and 22.6.2001 which are of much later origin. Further, the argument of the Counsel for the respondents that the applicant cannot be considered for promotion as driver since he is only a Gangman and he cannot be promoted as driver is also not sustainable in view of the fact that the applicant was fitted as a MV driver on promotion against a CR post and was entitled to have his Hen in the cadre of driver. Further contentions that the construction reserve post are ex cadre post and work charged post are also not sustainable. Curiously it is seen that the respondents in their additional reply, in respect of K.P. David have stated that he was initially appointed as alorry attendant from 11.11.76 in construction unit against a CR post and his lien was maintained in the category of lorry attendant of Mysore Division. In the case of the applicant it is seen that he was fitted as a driver in the construction unit against a CR post with effect from 16.6.94 but the respondents have however argued that his name cannot be included in the seniority list of MV drivers of Mysore Division. This does not appear to be logical. Elsewhere, the respondents have also stated that at no point of time the question of providing lien in the category of drivers in Mysore Division had been communicated upon by the construction unit and hence his lien has not been maintained in the category of drivers in the Mysore Division. If this is the reason, then the applicant cannot be faulted and is entitled to have his name included in the seniority list of drivers in Mysore Division.
14. During argument, the Counsel for the respondents sought to rely on the orders passed by this Tribunal on 28.8.2002 in O.A. 443/2001 to argue that the applicant was not entitled to have his name included in the seniority list of MV drivers in the Mysore Division. We have gone through the orders passed by this Tribunal in O.A. 443/2001. The facts therein are very different. In that O.A. the applicant had initially been fitted in the post of driver against CR post but subsequently the cadre of the applicant was changed to watchman though the applicant continued to work as an ad hoc driver vide order dated 8.12.77. Accordingly, this Tribunal had held that the case of the applicant was hopelessly barred by time and there was ho sufficient ground for condonation of delay as the applicant had accepted his position’s a watchman right from 1977 and the Tribunal had also noticed that the applicant had been promoted only on ad hoc basis as driver. It was under these circumstances that the application was dismissed. However, in the case of the applicant, the facts are entirely different as the applicant has been fitted as a driver against a CR post and in terms of letters dated 24.12.73 and 23.10.79 the applicant was entitled to have a lien as driver in the Mysore Division and was therefore entitled to be included in the seniority list of MV drivers in the Mysore Division. Accordingly, the orders passed by this Tribunal in O.A. 443/2001 are neither relevant nor applicable.
15. For the above reasons, we find merit in the application and the application is accordingly allowed and the respondents are directed to include the name of the applicant in the seniority list of MV drivers of Mysore Division at the appropriate place in the seniority list as on 1.12.96 published on 26.12.96 since the applicant was required to be provided with a lien in the Mysore Division on his being fitted as driver in the scale of Rs. 950-1,500 w.e.f. 16.6.94 and thereafter consider the case of the applicant for consequential benefits of promotion, fixation of pay etc., as due. The applicant, however, shall not be entitled for any arrears of pay on this account. This direction to be complied with within three months from the date of receipt of a copy of this order. No costs.