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A. J. Fernandis vs The Divisional Manager, South … on 7 December, 2000

Supreme Court of India
A. J. Fernandis vs The Divisional Manager, South … on 7 December, 2000
Author: S N Variava
Bench: S.R.Babu, S.N.Variava
           CASE NO.:
Appeal (civil) 2962-63 1989


PETITIONER:
A.  J.	FERNANDIS

	Vs.

RESPONDENT:
THE DIVISIONAL MANAGER, SOUTH CENTRAL RAILWAY & ORS.

DATE OF JUDGMENT:	07/12/2000

BENCH:
S.R.Babu, S.N.Variava




JUDGMENT:

L…..I………T…….T…….T…….T…….T…….T..J

J U D G M E N T

S. N. VARIAVA, J.

These Appeals are against a Judgment dated 11th
December, 1987 in a Petition filed by the 3rd Respondent
before the Central Administrative Tribunal and an Order
dated 22nd August, 1988 by which, pursuant to Judgment dated
11th December, 1987, the 1st Respondent has determined that
Appellant is junior to 3rd Respondent and reverted him to
post of Porter in the Commercial Department.

The 3rd Respondent has not appeared even though
served.

Briefly stated the facts are as follows: On 22nd
July, 1972 the Appellant was appointed as a Porter on casual
basis in the Transportation (Traffic) Department of the
South Central Railway, Hubli Division. On 1st March, 1973
the Appellant was conferred a temporary status.

The 3rd Respondent was appointed as a Porter in the
Commercial Department on 30th August, 1974.

Rule 180 of the Railway Establishment Manual reads as
under: “180: Transportation (Traffic) & Commercial
Department:- All railway servants in the lowest group should
be eligible for consideration for promotion to higher grades
in both the Transportation and Commercial Branches.
Applications should be invited from amongst candidates
eligible for promotion from both the branches. All railway
servants who apply will be considered. An adhoc seniority
list will be prepared on the basis of length of continuous
service in the grade and suitable men selected and placed on
a panel for training. Systematic and adequate training and
examinations or tests must precede actual promotions.”

As provided in this Rule Appellant and the 3rd
Respondent were allowed to attend promotional courses to
qualify as Ticket Collectors. In 1979 both Appellant and
3rd Respondent were allowed to compete for selection to the
post of Ticket Collectors. However, neither got selected.
On 20th August, 1980 the Appellant got posted in the
Commercial Department. They then again competed in 1981.
On 17th June, 1981 both the Appellant and the 3rd Respondent
were shown to have been selected. However, as there were no
vacancies they were not appointed.

Thereafter both the Appellant and the 3rd Respondent
were appointed as Ticket Collectors on adhoc basis on the
condition that this would not confer any right for regular
appointment and that they would make room for regular
appointees as and when selected and appointed.

On 27th September, 1981 a provisional seniority list
was prepared. In the seniority list the name of the
Appellant was missing. The Appellant made a representation
against the fact that his name had not been included in the
seniority list.

Selections for the post Ticket Collector were again
made in 1982 and 1983. In 1983 the Appellant was selected
along with 17 other persons. Pursuant to this selection on
28th May, 1983 the Appellant was promoted as Ticket
Collector in a vacant post. It must be mentioned that in
this selection the 3rd Respondent had also competed, but was
not selected. Thereafter another selection was held in
April 1986. In that selection again the 3rd Respondent
appeared but was again not selected.

On 25th September, 1986 the Appellant was promoted to
the grade of Senior Ticket Collector. On 29th September,
1986 the 3rd Respondent who, during all this period, had
been working as an adhoc Ticket Collector was reverted to
make room for candidates who had been successfully
empanelled. On 5th January, 1987 the 3rd Respondent
challenged his reversion and the promotion order of the
Appellant by filing a Petition before the Central
Administrative Tribunal.

On 11th December, 1987 the Central Administrative
Tribunal held that the promotion of the Appellant was not
proper as the Appellant was not eligible. The Central
Administrative Tribunal held that the Appellant was working
in the Transportation (Traffic) Department and the
selections were to be from persons working in the Commercial
Department. The Central Administrative Tribunal held that
as the Appellant had been appointed in Commercial Department
on 22th August, 1980 he could not be considered to be senior
to the 3rd Respondent who had been appointed on 30th August,
1974. The Central Administrative Tribunal directed the
Government to prepare a fresh seniority list confining
themselves to the Commercial Department and thereafter, if
the 3rd Respondent was found senior to the Appellant, to
promote him with effect from the date of promotion of the
Appellant. It is this Judgment which is assailed before us.
Pursuant to this Judgment the 1st Respondent has passed an
Order dated 22nd August, 1988 by which seniority of
Appellant is fixed below 3rd Respondent and it is proposed
that Appellant be reverted to the post of Porter in the
Commercial Department.

Even though the 3rd Respondent had not appeared, Mr.
Nagaraja and Mr. Qadri have fairly placed before us all the
material and have assisted the Court.

Undoubtedly, the selection was to be from persons
working in the Commercial Department. However, with effect
from 22nd August, 1980 the Appellant was also working in the
Commercial Department. Therefore, in 1983 he was eligible
to be selected. All persons who were eligible were allowed
to compete for selection. Being so eligible both the
Appellant and the 3rd Respondent had competed. The
Appellant got selected and was put on the select panel on
29th April, 1983. The 3rd Respondent had also competed but
he was not selected or empanelled. Only persons who were
empanelled could be appointed as Ticket Collectors. In such
a case, the question of inter se seniority between the two
persons did not arise. As 3rd Respondent was not empanelled
he could not be promoted. Even presuming the Appellant was
junior, the Appellant could still get promoted as he was
selected.

Rule 180, set out above, shows that all railway
servants were eligible for consideration of promotion. The
3rd Respondent, having failed to get selected, could hardly
complain about the promotion of the Appellant. On this
basis itself the Order of the Central Administrative
Tribunal cannot be sustained.

Even otherwise, it is to be noted that the Appellant
got promoted to the post of Ticket Collector on 28th May,
1983. He was thereafter promoted as a Senior Ticket
Collector on 25th September, 1986. The Appellant was then
promoted as a Train Ticket Examiner on 25th May, 1987. The
3rd Respondent chose to challenge the promotion of the
Appellant as a Ticket Collector only on 11th December, 1987,
i.e. after a period of 4 years. On the ground of delay and
latches also the application of the 3rd Respondent should
have been dismissed.

In this view of the matter the impugned Order dated
11th December, 1987 is set aside. The Application of [email protected]@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
3rd Respondent before the Central Administrative [email protected]@
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stands dismissed. The Order dated 22nd August, 1988, passed
pursuant of the Order dated 11th December, 1987, which we
have set aside in this appeal cannot survive and is quashed.
These Appeals stand allowed accordingly. There will be no
Order as to costs.

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