ORDER
Shanta Shastry, Member (A)
1. The applicants in this O. A. are challenging the order dated 22.10.2001 issued by the Divisional Railway Manager, Solapur and further order dated 18/22.4.2002 by which the representations of the applicants have been rejected in regard to their seniority as Diesel Assistants and consequential seniority as Goods Driver and Senior Goods Driver.
2. The applicants were selected as Apprentice Diesel Assistants in response to Employment Notice No. 07/89 by the Railway Recruitment Board. At the time, the selection took place, the pay scale of apprentice Diesel Assistant was Rs. 950-1,500. According to the letter of appointment, the applicants were required to undergo one year’s training as apprentice Diesel Assistants. After which they were to be absorbed as Diesel Assistants against working post. The applicants have placed a copy of letter dated 18.5.1992 by which one of the applicants Shri Y.K. Ramesh Babu was informed about his selection pursuant to the recommendation by the Railway Recruitment Board. Similar letters were issued to all the applicants. According to the applicants, all of them joined service as apprentice on 20.6.1992 at Solapur and from that date they were sent to Bhusawal Training School for a period of 2 months and were subsequently deputed for practical training and there were vacancies available and there was shortage of staff, the training period of the applicants was curtailed in the exigencies of service. The first batch in which the applicants were included consisted of 23 diesel apprentices. Second batch consisted of 17 and the third batch 22. They were all selected by the same examination conducted in the year 1989. However, third batch was sent for training to Pune on 21.9.1.992. They were appointed on 21.9.1992 and were absorbed on 16.4.1993 as diesel assistants. The members of the second batch were also absorbed along with the applicants.
3. A seniority list of diesel assistants was published by letter dated 8.12.1995 wherein the seniority was given from the due date of absorption after full training of one year and not from the date of actual posting/absorption. Thus, in the seniority list of 8.12.1995 the applicants’ seniority was depressed. Because, instead of giving them the seniority from 15.1.1993 they were given seniority from June, 1993. The applicants represented against the said seniority list vide their letter dated 18.12.1995 and 25.3.1996. There were further representations even prior to the issue of the aforesaid seniority list. According to the applicants, the seniority of the direct recruits in the railway service is controlled and maintained in terms of para 303 of the IREM, which reads as follows:
“Candidates who are sent for initial training to the training schools will rank senior in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. Those who join the subsequent courses for any reason whatsoever and those who pass the examination in the subsequent chances, will rank junior to those who had passed the examination in earlier courses.”
According to this para, candidates who were sent for initial training to training school will rank senior in the order of merit obtained at the examination held at the end of the training period before being posted against working post. Those who do not have to undergo any training, seniority is to be determined on the basis of merit order signed by the Railway Service Commission or other recruiting authority. This was para amended some time in the year 1990 as Para 303(a) by inserting the following expression “those who joined the subsequent course for any reasons whatsoever and those who pass the examination in the subsequent course will rank junior to those who pass in the earlier course”. This was further amended in 1993 vide Board’s letter dated 19.3.1993. The following was the amendment: “in case any persons belonging to the RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batch-wise provided persons higher up in the panel of RRB not sent for training in the appropriate batch due to administrative reasons would be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt.” Further, according to para 302 of the IREM there is no statute which says that in case training period of direct recruit is curtailed in the exigency of service the date of joining the working post will be taken up for seniority. It is provided vide a note below that in case of direct recruit it shall be the date he would have normally come to the working post after completion of training period. Thus, Rules 302 and 303(a) are to be read together. No doubt that even though a person may have been appointed to working post by curtailing training period his seniority shall be counted actually from the date of completion of the prescribed period of training irrespective of whether the training was curtailed or otherwise. Thus, even though the applicants in the present case had been posted against the working posts after six months of their training by curtailing the same from one year period, the applicants would be eligible for counting of their seniority only from the date of completion of one year of training had there been no curtailment and in terms of amended Rule 303(a) the batches belonging to the same panel are clubbed together.
4. The contention of the applicants is that the latest amendment of 1993 to Rule 303(a) is not applicable to them. Even the Chief Personnel Officer vide his letter dated 25.6.1996 had stated that the amendment to the Rule by the advance correction slip No. 9 with effect from 19.3.1993 is not applicable to the applicants since they were appointed prior to 1993. Thereafter, the Railway Administration published corrected seniority list, according to the applicants on 1.8.1996, a proper seniority list was drawn up in accordance with the un-amended rule. There were however representations against the aforesaid seniority list and the respondents again published a fresh seniority list on 31.8.1998 and further on 27.8.2001 which according to the applicants is the reflica of the earlier seniority list of 31.8.1998. The applicants again represented to the respondents against seniority list of 31.8.1998 vide letter dated 29.9.98. A reply was given to the applicants on 22.10.2001 stating that the seniority of the applicants was revised in accordance with the advance correction slip No. 9.
5. The applicants submit that fresh seniority list was published on 24.12.2001 which is a reflica of seniority list of 31.8.1998. They again represented on 12.3.2002 against assigning incorrect seniority to them. By the impugned order dated 18/22.4.2002 the respondents informed the applicants that the latest seniority list was correct. The applicants not being satisfied with the reply of the respondents have prayed for quashing and setting aside the impugned order dated 22.10.2001 and 18/22.4.2002 and for a direction to fix the seniority of the applicants based on the seniority list of 1.8.1996 with all consequential benefits of seniority, promotion, backwages, arrears with 18% interest thereof. The applicants have further prayed for holding and declaring that the note appended to Rule 302 of the IREM is wrong illegal, unconstitutional and the same is required to be quashed and set aside and further to hold and declare that the seniority of the applicants is to be maintained and published in accordance with the para 303 of the IREM 1989 edition and that the advance correction Slip No. 9 dated 19.3.1993 is not applicable in the case of the applicants and the seniority list published on 24.12.2001 is wrong, illegal and liable to be quashed and set aside. The applicants have also prayed for interim relief, which was granted directing that while the process of selection may go on and it will not be finalised till next date. The interim order was continued till the date of final hearing and pronouncement of the judgment.
6. The learned Counsel for the applicants has relied on the judgment of the Supreme Court in Prem Kumar Verma and Anr. v. Union of India and Ors., decided on 15.4.1998 reported in 1998(2) SCSLJ 01=1998(3) SLJ 181 (SC). According to the applicants in this judgment the issue regarding seniority in terms of para 303(a) of the IREM has been discussed at length and the Supreme Court held that since the post fell vacant prior to July, 1989 and the process of selection was completed and the recruitment Board selected the candidates on 11.7.1989 the amendment that was introduced on 5.5.1990 and further amendment of 1993 will have no application and it is the unamended Rule 303(a) as it stood on 11th July, 1989 which would govern the case of inter se seniority of the applicants in the case. Accordingly, the seniority of the applicants had rightly been determined by the Railway Authority on the basis of their respective merit obtained at the examination held at the end of the training period. The learned Counsel for the applicants submits that in the light of the aforesaid judgment, since in the case of the applicants, they were given the appointment letter on 20.6.1992 they would be governed by Para/Rule 303(a) as amended on 5.5.1990 and not either by the unamended Rule 303 or the Rule 303(a) as amended by correction slip of 19.3.1993. As such they ought to be given seniority above those of the third batch, who had joined the subsequent course and have passed the examination in subsequent chances.
7. The learned Counsel also argued that in regard to Rule/Para 302 of the IREM, the note below the rule had no force of law, it was not part of the rules. The learned Counsel further submits that even according to the amended para 303(a) of 1993 seniority has to be assigned batchwise. Seniority of three batches cannot be clubbed together. What is relevant for seniority is the date when the employee takes over the job independently against a permanent vacancy. The applicants’ appointment was neither adhoc nor temporary, they were posted against regular vacancy. The learned Counsel has relied on another judgment of this Tribunal in O.A. 233/97 which also discussed para 302 of the IREM along with another Para 306. Further the applicants have also referred to a judgment of the Tribunal wherein one of us (i.e. Hon’ble Shri Birendra Dikshit, Vice Chairman) was a party in O.A. No. 280/02 decided on 26th June, 2002 in the case of Tukaram Vasudeo Waghmare and 11 others v. Union of India and Others. The applicants therein had challenged the order dated 25.6.2001 whereby their seniority was downgraded. In this judgment while upholding the seniority list dated 31.8.1998 the Tribunal quashed and set aside the seniority list dated 25.6.2001. Here, the question was seniority of the applicants, who had been appointed on regular basis and Diesel Assistants in the year 1994-96 vis-a-vis the private respondents, who had been appointed as Diesel Assistants on regular basis in the year 1997. It was held that the applicants would be senior, applicants having been appointed before the private respondents. A direction was also given in this O.A. to prepare a fresh seniority list reflecting correct position of the applicants as had existed on 31.7.1998.
8. The learned Counsel for the applicants also cited the judgment in the case of P. Mohan Reddy v. E.A.A. Charles and Ors., 2001 SCC (L and S) 718=2001(3) SLJ 392 (SC). In this case, the Supreme Court held that unless the rule amending the criteria is retrospective, employees appointed prior to the amendment are entitled to the determination of seniority under the pre-amended rule. The applicants also produced a judgment of the Supreme Court in the case of Padmasundara Rao and Ors. v. State of T.N. and Ors. 2002 AIR SCW 1156 in regard to interpretation of statutes and construction of statutes in the context of note appended to Rule 302 of the IREM.
9. The respondents, in their reply have submitted that as and when the applications were received from the Headquarters, the applicants were nominated along with others for training in a course available in the session for the post of Assistant Driver. These nominations for training were not strictly according to the merit but on the basis of first come first served. According to the respondents, the applicants were eligible for seniority only after completing the prescribed period of training in terms of note under para 302 vide office order dated 15.1.1993. The respondents admit that the training period of the applicants was curtailed. Further, their training period would normally have got completed from 20.6.1993 and therefore, they would be eligible for seniority only from that date. The applicants were under apprenticeship training from 20.6.1992 to 19.6.1993. The issue regarding the seniority of the applicants was referred to Headquarters for clarification on 31.5.1996 and 25.6.1996. It was clarified that the letter of 19.3.1993 would have prospective effect and would be applicable to those apprentices who were appointed as Diesel Assistants on regular basis on or after 19.3.1993 and therefore, the draft seniority list was modified after considering the various representation on 31.8.1998. The respondents reiterated that the seniority could not be fixed on the commencement of training. It has to be in terms of Rule 303(a) as amended from 19.3.1993. The respondents have also over-ruled the letter on 25.6.1996 stating that a further clarification had been issued on 21.4.1998. Thus, the letter of 25.6.1996 was to be ignored. It was advised to revise the seniority stating that the earlier instructions were superseded. The respondents submit that seniority list of 24.12.2001 is a list of Goods Drivers and not of Diesel Assistants. Whereas, the reply given by the respondents on 22.10.2001 is regarding the seniority of the Diesel Assistants.
10. The respondents have further taken the objection that the application suffers from delay and laches and is hit by limitation. The cause of action arose, if any, on 31.8.1998 when the seniority of the applicants was changed to their dis-advantage. Even after allowing the period of one year and further six months for decision on their representation, the O. A. is barred by limitation and deserves to be dismissed. According to the respondents, the applicants have been assigned the correct seniority in terms of the amended Rule 303(a) as on 19.3.1993.
11. We have heard the learned Counsel for applicants as well as for the respondents. In order to appreciate the rule position, the relevant rule are reproduced below. Rule 302 of the IREM and 303 and amended Rule 303(a).
302. Seniority in initial recruitment grades–Unless specifically stated otherwise the seniority among the incumbents of a post in a grade governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter se seniority of promotees and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same they should be put in alternate position, the promotees being senior to the direct recruits, maintaining the inter se seniority of each group.
Note : In case the training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have normally come to a working post after completion of the prescribed period of training 303(a). “Candidates who are sent for initial training to the training schools will rank senior in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. Those who join the subsequent courses for any reason whatsoever and those who pass the examination in the subsequent chances, will rank junior to those who had passed the examination in earlier courses.”
Amended Para 303 (a) (vide O.M. dated 5.5.1990):
“Those who join the subsequent course for any reasons whatsoever and those who passed the examination in the subsequent chance will rank junior to those who had passed the examination in earlier course.”
Further amended Para 303(a) (vide O.M. dated 19.3.1993):
“In case however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter se seniority will be regulated batch-wise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (As per seniority) due to administrative reasons shall be clubbed alongwith the candidates who took the training in the appropriate batch for the purpose of regulating the inter se seniority provided such persons pass the examination at the end of the training in the first attempt.”
According to the applicant, the Rule 303 as amended on 5.5.1990 is what is applicable to them. The contention is that the applicants’ training was curtailed by six months and they were actually posted to work against working posts of Diesel Assistants with effect from 15.1.1993. Further, the curtailment of training is not attributable to the applicants. It was in administrative exigency and therefore, the applicants ought to have been granted seniority from 15.1.1993. They should not have been clubbed with other batches who were sent for training later and were absorbed later from 16.4.1993. The applicants have also not stated whether the candidates from the third batch had appeared in the same examination as the applicants or not. We have perused the relevant rules applicable and as produced above in this case. According to Rule 302 along with the note, the applicants are eligible for counting of seniority only from the deemed date of their completion of training period and not from the date of curtailed training. Though the applicants have challenged the note, in our considered view, the note below 302 is very much part of the rule and cannot be read in isolation. We do not find it to be illegal. In fact, this has already been considered in another judgment also and even upheld. Secondly, the respondents have clearly pointed out that the appointment orders of the applicants after curtailing their period of training stated in no uncertain terms that these postings are temporary or provisional and do not confer upon them any right for regularisation and seniority etc. The candidate will be eligible for seniority after prescribed training period is completed. Copies of such letter dated 15.1.1993 have been appended as Exhibit Rule 2 by the respondents. The applicants having joined accordingly, have accepted the condition and therefore, it cannot be said that their appointment vide letter dated 15.1.1993 would confer any right on them to claim seniority from that date. They have not challenged the order of 15.1.1993 at the relevant time. Further, the applicants were given actual appointment and absorbed only later on with effect from the date they would have normally completed their training i.e. on 20.6.1993, by which time the Rule 303(a) was further amended O.M. 19.3.1993 and therefore, the latest amended Para 303(a) would apply in the case of the applicants. The learned Counsel for the applicant has relied on the judgment in the case of Prem Kumar Verma and we have perused the judgment. Even if we were to go by the proposition laid down in this judgment that only the rule which was in force at the time the selection was finalised has to be taken into consideration, then since the applicants were selected and empanelled in 1989 the original Rule 303 would apply to them and not the Rule 303(a) as amended on 5.5.1990. They were selected in 1989 itself as has been admitted by them in para 4.1 of the O.A. Thus, even according to the original Rule 303 the candidates who are sent for initial training will rank in seniority in the relevant cadre in the order of merit obtained in the examination held at the end of the training before being posted against working post. In our considered view, whether as per para 302 with appended note or unamended 303(a) or 303(a) the applicants’ seniority has been rightly shown. We do not find any substance in the contention raised by the applicants and therefore, the orders of the respondents cannot be faulted nor can the seniority list issued on 31.8.1998 be questioned.
12. M.P. No. 520/02 has been filed by two applicants for intervening in the present O.A. They have prayed to bring them on record as party respondents and the prayed is to permit them as passenger driver. Shri S.S. Karkera appearing for the intervenors argued the matter. We have heard the arguments and we find that the intervenors are actually toing the line of the applicants in the O.A. Their grievance is not against the applicants as they maintain that the unamended para 303 applies in their case. In our considered view, the intervenors cannot be made as party respondents to the present O.A. as they have no grievance against the applicants in the O.A. Therefore, the M.P. is dismissed.
13. Further, the applicants have approached this Tribunal after the impugned order of 18/22.4.2002 whereas the cause of action had arisen on 31.8.1998 because the subsequent seniority list was only repetition of the earlier seniority list of 1998. The application, therefore, is hit by limitation. Also settled position of seniority cannot be unsettled after a lapse of long period as has been held in K.R. Mudgal and Sons v. R.P. Singh and Sons, 1986(4) SCC 531=1987(1) SLJ 221 (SC). In the facts and circumstances of the case, the application fails and is accordingly dismissed. We do not order any costs.