JUDGMENT
Gopal Singh, Member (A)
1. In these Original Applications under Section 19 of the Administrative Tribunals Act, 1985, controversy has been raised about the seniority of direct recruits v/s Departmental promotees and the Departmental promotees of earlier panel v/s Departmental promotees of the subsequent panel. Brief facts giving rise to this controversy are discussed in the subsequent paragraph.
2. A combined selection by the Deputy CME (W), Jodhpur and Deputy COS, Jodhpur was processed during the year 1987 for selection from Class-IV to Class-III against 40 per cent Departmental Quota, for which a written test and viva voce test was conducted by the official respondents on 04.10.1987 and 12-13.3,1988 respectively. But the proceedings of the selection were cancelled on 21.7.1988, by the respondent No. 1, General Manager (P), New Delhi. This was challenged in O.A. bearing No. 341/88 Devi Singh and Others v. Union of India. In this O.A. the Tribunal in the judgment dated 05.6.1991, directed as under:
“The General Manager is directed to take decision on the recommendations of the selection committee after ignoring the results of the re-evaluation and to prepare a panel of successful candidates to the extent of the Department’s requirements, which should not be less than the number of posts filled after interim order dated 27.2.1989 was passed by the Tribunal. The appointment orders to the persons placed on the panel, to the extent of vacancies required to be filled up as indicated above, shall be issued within two months of this order.”
3. Accordingly, a panel was formed and the applicants were promoted from Class-IV to Class-Ill as Clerk in grade Rs. 950-1500 (RPS). The said panel was made effective from 04.9.1991 by order dated 06.9.1991. This was challenged in O.A. No. 422/91 for change in the effective date of panel. On this the Hon’ble Tribunal quashed the order dated 06.9.1991 and directed the official respondents to give an opportunity of hearing to the applicants in regard to the change of date “of effectiveness of the panel issued on 06.9.1991 and pass an appropriate order. Accordingly, the official respondents afforded personal hearing to the affected persons and thereafter, they were assigned seniority over the persons whose selection was processed during the year ’89 and ’90. At this stage, we consider it appropriate to reproduce the letter dated 17.1.1994 of the respondents, which reads as under:
“In pursuance of CAT/JU decision on OA/341/88 and OA/422/91 competent authority has accorded his approval to grant seniority to the candidates whose selection was processed in 1988 over those whose selection was processed during the year 1989 and 1990 as such the order issued vide O.C. No. K/91/ 178 dated 04.9.’91 will stand. Fresh Seniority list will be prepared and published shortly.”
4. Thus, the panel is question was made effective from 21.7.1988, and all the empanelled candidates were treated as promoted with effect from 21.7.1988.
5. While the O.A. No. 341/88, was pending consideration before the Tribunal, the respondents initiated process of filling up 07 posts of Clerk from Class IV employees under 25% quota for departmental candidates and thisprocess of selection was sought to be stayed in MP10/89 in O.A. No. 341/88, and the said MP was disposed of by the Tribunal vide order dated 27.2.1989 with the following observation:
“Consequently, the request for restraining the respondents from holding selections pursuant to the communication Annexure-A/1 does not merit acceptance and the same is hereby rejected. The respondents are, however, directed to appoint the selectees on provisional basis and subject strictly to the stipulation that their appointment is subject to the decision of the Application. This Petition is disposed of accordingly. No order as to costs.”
Four of the applicants in O.A. No. 240/1995, namely, Madan Lal, Rameshwar, Shaitan Singh and Ramesh Chandra were declared successful in the above mentioned selection and they were promoted as Clerk on 17.9.1990 on the basis of panel dated 15.9.1990. Other applicants in OA 240/95 were promoted from subsequent panel.
6. Applicants, in O.A. No. 235/95, were all direct recruits and they had joined the respondent-department between 12.8.1988 and 27.2.1989. Applicant No. 3 and 7 came on unilateral transfer to Jodhpur Division and joined on 10.9.88 and 27.2.89 respectively.
7. It is the contention of the applicants in both the O.As. that they were appointed as Clerk earlier than the respective private respondents who were on the panel made effective from 21.7.1988, and, therefore, they should be assigned seniority over the private respondents. It is further contended by the applicants that the private respondents were promoted to the post of Senior Clerk though they were not fulfilling the eligibility condition of two years experience on the date of their promotion indicated in the seniority list. Also it has been contended that the private respondents had passed the selection test for the post of Senior Clerk subsequent to the applicants. However, the private respondents were shown senior to them in the seniority list. Thus, the applicants have challenged the impugned seniority lists and have sought a direction to the respondents to assign the seniority to the applicants over and above the respective private respondents.
8. It has already been mentioned that the selection held in 1987, for promotion of Class IV employees to the post of Clerk was initially cancelled and subsequently a panel was prepared on the basis of the said selection as per the directions of the Tribunal dated 05.6.1991, in O.A. No. 341/88, and this panel was given effect to from 21.7.1988. However, when the date of effect of this panel was sought to be changed to 04.9.’91, the same was challenged in O.A. No. 422/91 and as per the direction of the Tribunal, the respondent-department after due consideration of representations of the affected persons restored the effective date of panel to 21.7.1988, and all the empanelled candidates were treated as promoted as Clerk w.e.f. 21.7.1988. Thus, all the private respondents in both the present O.As were deemed to have been promoted as Clerk w.e.f. 21.7.1988. Thus, after a long litigation this panel was made effective from 21.7.1988 and all the empanelled candidates were treated as promoted w.e.f. 21.7.1988. In this view of the matter, we do not consider it appropriate to interfere in the matter in treating the empanelled candidates as promoted to the post of Clerk w.e.f. 21.7.1988. Consequently, these candidates were entitled to seniority as Clerk w.e.f. 21.7.1988.
9. As has been discussed above, private respondents in both the O.As had appeared in the selection for the post of Clerk in the year 1987 and in terms of respondents letter dated 17.1.1994, their selection panel was made effective from 21.7.1988. The applicants in O.A. No. 235/95, who were directly recruited through the Railway Recruitment Board, had joined the respondent-department between August, 1988 and February, 1989. Applicants, in O.A. No. 240/95 are the departmental promotee candidates, who were empanelled for promotion on 15.9.1990, and were promoted as Clerk on 17.9.1990.
10. The seniority amongst the departmental promotees as also the direct recruits in the cadre, is governed by Paras 302, 304 and 306 of Indian Railway Establishment Manual, Vol. I. For better appreciation of the controversy, these Paras are extracted below :
“302. Seniority is initial recruitment grades–Unless specifically stated otherwise, the seniority among the incumbents of a post in grade is 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.
304. When two or more candidates are declared to be of equal merit at one and the same examination/selection, their relative seniority is determined by the date of birth the older candidate being the senior.
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.”
11. It is clear from Para 306, reproduced above, that the candidates selected in earlier panel, would remain senior to the candidates selected in the subsequent panel. The applicants in O.A. No. 240/95, were empanelled in the year 1990. There is no dispute about this. The private respondents in that O.A. were empanelled on the panel which was made effective from 21.7.1988 after prolonged litigation. Thus, the private respondents in this O.A. would, in terms of Para 306, rank senior to the applicants.
12. As has been pointed out above, private respondents in O.A. No. 235/95, were placed on the panel which was made effective from 21.7.1988, and were treated as promoted from that date and the applicants in this O.A. joined their respective posts between August, 1988 and February, 1989. In terms of Para 302 a direct recruit will get seniority in cadre from the date of the joining on a working post. Seen in this view, the respondents in this O.A. having been placed on the panel made effective from 21.7.1988, and treated as promoted from that date would rank senior to the applicants who had joined the working post with respective department after this date. The private respondents in both the applications are the departmental candidates who were placed on the panel that was
made effective from 21.7.1988.
13. In the light of the above discussions, we are of the view that the private respondents in both the O.As would rank senior to the Applicants in both the O.As. Further, since the direct recruits had joined earlier than the applicants of O.A. No. 240/95, the direct recruits would be senior to applicants in O.A. No. 240/95 and the applicants in O.A. No. 235/95, would be senior to the applicants of O.A. No. 240/95. The final picture in regard to inter se seniority amongst the applicants and the private respondents would thus be in the following order:
(i) Departmental promotees empanelled on 21.7.1988; (ii) Direct recruits through the Railway Recruitment Board (Applicants in OA No. 235/95). (iii) Applicants promoted on the basis of Panel dated 15.9.90 and thereafter (Applicants in OA No. 240/95).
14. It has also been contended by the learned Counsel for the applicants that the respective respondents were promoted as Senior Clerks though they were not eligible on the dated of promotion shown in the respective seniority list and further the applicants were promoted as Senior Clerks earlier to the private respondents. However, the department has placed the private respondents in the seniority list above the applicants. Here, it is pointed out that the Railway Board’s Circular dated 26.5.1984 provides that if a junior becomes eligible for promotion, all his seniors, though not fulfilling the eligibility conditions, would also become eligible for promotion to the higher grade. Since in our view, as mentioned above, the private respondents were senior to the applicants in both the O.As. and the applicants having become eligible for promotion to the post of Senior Clerk, the private respondents would automatically be eligible for promotion to the post of Senior Clerk in terms of the above Circular. We consider it appropriate to extract the Railway Board Circular dated 26.5.1984 as under:
“Copy of Railway Board’s No. E(NG) I-75-PMI-44 dt. 26.5.84
Subject:–Filling up non-gazetted posts on Railway-Classification of posts as Safety Categories.
1. In this Ministry’s letter of even number dated 31.5.82 on the above subject, it was laid down inter alia that in the safety categories staff will be required to put in a minimum of two years of service in each grade before promotion to the higher grade. It was further clarified in the Ministry’ s letter to the same number dt. 21.9.82 that the period of two years service in a particular grade has to be counted from the date of regular promotion and ad hoc periods of promotions are not to be reckoned for this purpose.
2. Representations have been made to this Ministry that the period of service rendered on ad hoc basis in the relevant lower grade should also be reckoned towards the two years period enjoined in the above instructions. It has also been suggested that the condition of two years service need be fulfilled only at the time of actual promotion and not necessarily at the time the process of selection or suitability test is initiated.
3. The matter has been carefully considered by the Ministry of Railways who has decided as under:
(i) For reckoning the period of minimum service of two years in the relevant lower grade, continuous ad hoc service immediately preceding regular service may also be counted. (ii) Further, if by virtue of operation of the above clause, a junior is eligible for promotion to the relevant next higher grade, his senior also will be eligible for such promotion even though he might not have put in a total service of two years in the lower grade. (iii) Occasions arise in practice when it may be possible to fill posts in a particular grade on a regular basis, as selection or suitability test or trade test therefor cannot be finalised due to injunction or stay order of a Court of Law. In such cases it is possible that regular promotions to that grade cannot be made for a long period. In the meantime, the staff concerned may become due for promotion to the next higher grade, but they may not be eligible therefore due to non-fulfilment of the condition of two years service in the relevant lower grade. In such cases relaxation of the condition of two years service in the lower grade can be granted with the personal approval of: (a) Divisional Railway Manager, in the case of Division controlled posts; (b) A nominated officer in Level I grade of the concerned department in the ease of posts controlled by the Headquarters (standing nomination to be done by the controlling HOD for the department or wings of department), and; (c) Respective controlling officers, in Level I grade, in other cases. (iv) The condition of two years minimum service has to be satisfied at the time promotion is to be actually made. Thus, in the case of a 'selection' post, all candidates who are regular in the relevant lower grade can be considered according to the X3 formula but a person who is empanelled, can actually be promoted only if he has already completed two years service in lower grade, in other cases he can be promoted as and when he completed two years of service in the lower grade. Accordingly, a suitable note to this effect should be inserted in all panels which include names of candidates who have not completed two years of service in the lower grade at the time the panel is notified. (v) The provisions in para (iv) above will apply also to those selections in progress at the time of issue of these orders were panels have not been notified."
15. Since the private respondents were placed on the panel which was made effective from 21.7.1988 and all of them were treated as promoted to the post of Clerk from that date, their promotion as Senior Clerk on completion of two years from that date would be in order in terms of the above mentioned Circular.
Thus, we do not find any illegality or irregularity in the action of the official respondents in assigning higher seniority to the private respondents than the applicants in both the O.As. Accordingly, we pass the following order ;
16. Both the Original Applications are dismissed with no orders as to costs.