Central Administrative Tribunal Bangalore Bench

1 OA.No.170/00504-00511/2018/CAT/Bangalore Bench

CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH

ORIGINAL APPLICATION NO.170/00504-00511/2018

DATED THIS THE 18th DAY OF JULY, 2019

HON’BLE DR.K.B.SURESH, JUDICIAL MEMBER

HON’BLE SHRI C.V.SANKAR, ADMINISTRATIVE MEMBER

1. Ravi N S/o. Sri.R.Narayana aged about 34 years Working as Technician Grade-II Office of CDO South Western Railway Mysore Division Mysore.

2. Venkataramanan T S/o. Sri Thangamani aged about 33 years Working as Technician Grade-II Office of CDO South Western Railway Mysore Division Mysore.

3. Manjunath T S/o Sri.Thimaiah aged about 32 years Working as Technician Grade-I Office of CDO South Western Railway Mysore Division Mysore.

4. Natraj B S/o. Sri.Basvanna aged about 35 years Working as Technician Grade-I Office of CDO South Western Railway Mysore Division Mysore. 2 OA.No.170/00504-00511/2018/CAT/Bangalore Bench

5. Suresh M S/o.Sri Munniswamy aged about 34 years Working as Technician Grade-I Office of CDO South Western Railway Mysore Division Mysore.

6. Mohan Kumar G S/o Sri.Govinda R aged about 34 eyars Working as Technician Grade-I Office of CDO South Western Railway Mysore Division Mysore.

7. Sunil Kumar C S/o Sri R.Chandrasekhar aged about 35 years Working as Technician Grade-II Office of CDO South Western Railway Mysore Division Mysore.

8. Vijay Kumar S S/o. Sri Sidde Gowda R aged about 34 eyars Working as Technician Grade-II Office of CDO South Western Railway Mysore Division Mysore. ….Applicants

(By Advocate Sri Izzhar Ahmed)

Vs.

1. Divisional Personnel Officer-II (Personnel Department) South Western Railway Mysore Division Mysore.

2. Senior Divisional Mechanical Engineer (Mechanical Department) South Western Railway Mysore Division 2. Mysore. 3 OA.No.170/00504-00511/2018/CAT/Bangalore Bench

3. 3. Union of India through the General Manager South Western Railway Gadag Road Hubli: 20. ….Respondents

(By Advocate Sri N.Amaresh)

O R D E R

(PER HON’BLE SHRI C.V.SANKAR, MEMBER (ADMN)

The brief facts of the case are as follows:

The applicants were appointed under the Apprentice Act to the post of 'Substitute

Khalasi as group-D post in pay of Rs.2550/- w.e.f. 4.12.2006 in the Mechanical

Department vide office order dtd.6.12.2006(Annexure-A1). Vide office orders

dtd.11.6.2007(Annexure-A2) & 6.7.2007(Annexure-A3), the 1st respondent granted

temporary status to the applicants after completion of 4 months and 120 days

continuous service with the approval of the competent authority. The 1 st respondent

issued memorandum dtd.11.2.2008(Annexure-A4) regarding empanelment for

absorption for the post of Khalasi in pay of Rs.2550/- in scale of Rs.2550-3200 as

on 30.6.2007 after granting the temporary status. Thereafter the 1 st respondent

prepared seniority list of Technician in Mechanical Department

dtd.1.12.2012(Annexure-A5) and entered two dates in the column of date of

appointment in Railway service as (a) the date of initial appointment as substitute

Khalasi and (b) the date of regularisation which is against the prescribed rule and

even not permissible for two dates in the seniority list as date of appointment. The

applicants filed representation dtd.13.11.2017(Annexure-A6) requesting to grant the

date of appointment as the date of temporary status in terms of the orders in

OA.No.14/2011 and the WP.No.5743/2012. But the 1st respondent rejected their

claim vide order dtd.4.4.2018(Annexure-A7) stating that the Courts' orders are 4 OA.No.170/00504-00511/2018/CAT/Bangalore Bench applicable only to the parties in litigations and not applicable to the applicants seeking similar relief. The 1st respondent who is the cadre controlling authority has not taken approval of the 2nd respondent while rejecting the case of the applicants as the 2nd respondent is only the competent authority to pass any order.

2. The applicants submit that in OA.No.14/2011 the applicants therein were appointed to the post of Substitute Khalasi in Mechanical Department under the 2 nd respondent and the 1st respondent was cadre controlling officer and he granted temporary status to the applicants vide office order dtd.25.10.2005(Annexure-A8) and thereafter their service was regularised. Thus the respondents have not considered the date of appointment as the date of Temporary status in terms of

Rule 6 of Master Circular-20(Annexure-A9). Aggrieved by the same, the applicants had filed OA.No.14/2011 and the same was allowed on 9.9.2011(Annexure-A10) which was challenged by the respondents in WP.No.5743/2012 before the Hon'ble

High Court of Karnataka which dismissed the Writ Petition vide order dtd.17.10.2012(Annexure-A11) whereby the order in OA.No.14/2011 has attained finality. Thereafter the respondents vide order dtd.2.7.2013(Annexure-A12) have complied with the order by correcting the service records and the seniority of the applicants in OA.No.14/2011 considering the date of appointment as the date of temporary status. The 1st applicant submits that in his service records(Annexure-

A13), the column of 'date of appointment' is left blank and there is no entry in the same. The respondents are bound to enter the date of appointment as the date of temporary status in the service book and the consequential entries. The compliance report dtd.2.7.2013 was approved by the Chief Personnel Officer, SW Rly., but the

3rd respondent has not exercised powers delegated in Rule 123 of IREC, I-1985 to frame rules for group-D & C and the 1st respondent has violated Article 14 and 309 5 OA.No.170/00504-00511/2018/CAT/Bangalore Bench of the Constitution of India and also violated Rule 6 of Master Circular-20 deliberately considering that the order in OA.14/2011 is in personam instead of in rem. Aggrieved by the inaction of the respondents, the applicants have filed the present OA seeking the following relief:

a. Set aside the impugned letter No.Y/P.612/IV/C&W/Court cases dtd.4.4.2018(Annexure:07) as illegal without following Rule 6 of Master Circular-20 for date of appointment as the date of temporary status as settled by the Hon'ble Courts.

b. Direct the respondents to consider the representation of the applicants dtd.13.11.2017(Annexure-A6) and enter the date of appointment as the date of temporary status in the service book and consequential service records in terms of Rule 6 of Master Circular-20 (Annexure-A9) following the orders dtd.9.9.2011 in OA.No.14/2011(Annexure-A10), dtd.17.10.2012 in WP.5743/2012(Annexure-A11) and the compliance order dtd.2.7.2013(Annexure-A12) with all consequential promotional benefits to the higher grade with arrears the consequential benefits.

c. Grant relief or reliefs as deemed fit and proper, with costs, in the interest of justice and equity.

3. On the other hand, the respondents in their reply statement have submitted that the present OA is not filed within the prescribed period of limitation and is badly delayed by a period of more than 10 years whereby barred by limitation and hence is not maintainable and is liable to be dismissed on this ground alone.

4. They submit that the applicants on completion of Apprentice Act were engaged as

Substitute Khalasi in Group-D category of Mechanical Department/C&W wings w.e.f. 4.12.2006 and on completion of 4 months/120 days continuous service, they were granted temporary status and were absorbed against existing vacancies of

Khalasis in Mechanical Department, Mysuru Division of SW Railway as on

30.6.2007 and were promoted from time to time. The applicants' seniority lists were also issued from time to time duly giving opportunity for representations, if any.

They have never protested either their seniority or their promotion till filing their 6 OA.No.170/00504-00511/2018/CAT/Bangalore Bench representation dtd.13.11.2017 and filing of the present OA. As per para-321 of

IREM Volume-I 1989(Annexure-R1), if at all any employee is aggrieved by the seniority list circulated to them regarding their seniority position, they shall represent within a period of one year and no case for revision in seniority list should be entertained beyond that period. The applicants had not challenged/questioned on the seniority list at that point of time and accepted the same without any protest and they have accepted their subsequent promotion as Tech-II also and now after expiry of more than 5 1/2 years, questioning the same is absolutely an afterthought and it is not correct for the applicants to unsettle the seniority list which has already been settled years ago and should not be allowed to be reopened. The respondents have followed the rules regarding fixation of seniority laid down in para 303(b) of IREM

Vol.I(Annexure-R2) and the same has been confirmed by the Tribunal in

OA.880/2014 vide order dtd.20.4.2015(Annexure-R3). As per para 15.1 of Master

Circular 34(Annexure-R4), the date of appointment of a substitute to be recorded in the Service Book against the column 'Date of Appointment' should be the date on which he/she attains temporary status after a continuous service of four months if the same is followed by his/her regular absorption. Otherwise, it should be the date on which he/she is regularly appointed/absorbed (as per para 6 of Master Circular-

20)(Annexure-R5). But their seniority will be counted from the date of regular absorption against existing vacancies. Therefore, the question of granting seniority from the date of grant of temporary status does not arise. As per para 1515 of IREM

Vol.I (Annexure-R6), under the head of 'Rights and privileges admissible to the substitutes', the substitutes are not entitled automatic absorption/appointment to railway service unless they are in turn for such appointment on the basis of their position in select lists and/or they are selected in the approved manner for appointment to regular railway posts. The said provision is clearly mentioned in the 7 OA.No.170/00504-00511/2018/CAT/Bangalore Bench office order dtd.25.5.2007/11.6.2007 granting temporary status to the applicants as a condition and the same is accepted by the applicants without any protest.

5. The respondents further submit that the order passed in OA.No.14/2011 and

WP.No.5743/2012 will not be applicable in the present case as the said order is in personam and not in rem. The applicants have not produced even a single Railway

Board's circular in support of their claim that seniority has to be counted from the date of grant of temporary status in the case of substitutes. As such the OA is devoid of merit and is liable to be dismissed.

6. The applicants have filed rejoinder reiterating the submission already made in the OA and submit that the Rules 321, 303, Para 15 of Master Circular-34 and Rule-

1515 of IREM-I, 2009 referred to by the respondents are not relevant in their case.

Referring the Rule 321 of IREM for the delay of 10 years in filing the present OA is not relevant as the order in OA.No.14/2011 has been implemented on 2.7.2013 when only the cause of action arose. Rule 303 clearly states 'recruitment through the RRB or any other recruitment authority by conducting written examination' which is not applicable in the case of the applicants as their selection was not based on written examination. The 1st respondent has not applied mind while referring para 15 of Master Circular-34 which is applicable for appointments on compassionate grounds, sports, and cultural quota under direct recruitment quota based on merit consideration by selection in written examination. The above quotas are not granted temporary status because they are under direct recruitment quota whereas the applicants are appointed by selection committee without written examination.

Therefore, the mode of appointment of the applicants has no relevancy to para 15 of Master Circular-34 but the respondents intentionally ignored para 6 of Master

Circular-20 which permits the date of appointment on the date of temporary status 8 OA.No.170/00504-00511/2018/CAT/Bangalore Bench and the OA.14/2011 was allowed on the same point which is confirmed in

WP.No.5743/2012 also. The respondents cannot deny the similar benefits given to the applicants in OA.No.14/2011 vide order dtd.2.7.2013 as the same was implemented by them. The order dtd.20.4.2015 in OA.No.880/2014 referred to by the respondents is against the 1st respondent as the same has been implemented by CPO by granting date of appointment on the date of temporary status. True copies of compliance order dtd.22.9.2015, seniority list dtd.16.10.2015 and seniority list dtd.4.1.2019 are enclosed as Annexures-Re-14,15 & 16 respectively. The Rule

1515 of IREM, I-2009 has two folds i.e. (a) substitute for 4 months regular service and (b) substitute School Teachers. The first clause (a) is applicable in case of the applicants on completion of regular 4 months service and were granted temporary status(Annexure-Re17). There is a serious irregularity on account of the 1 st respondent in putting the column B 'the date of appointment' in service record as blank, which is unknown by the 2nd & 3rd respondents. It is the 1st respondent who is trying to modify the judicial order by reopening the issue which has been settled already and not the applicants.

7. We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. The issue in this case relates to the date of appointment of a substitute Khalasi to a Group D post in the respondent organisation, Railways. It is an accepted fact that this is covered by para-6 of

Master Circular-20 which is as follows:

“6. Date of Appointment:

The date of appointment of a substitute to be recorded in the Service Book against the column “Date of appointment” should be the date on which he/she attains temporary status after a continuous service of four months if the same is followed by his/her regular absoprtion. Otherwise, it should be the date on which he/she is regularly appointed/absorbed.” 9 OA.No.170/00504-00511/2018/CAT/Bangalore Bench

8. This Tribunal vide its order dtd.9.9.2011 in OA.No.14/2011(Annexure-A10) has accepted this position and has ordered the respondents to correct the service record of the applicant therein by mentioning the date on which the applicant was appointed in temporary status against the column 'date' in page no.1 of service book and accordingly fix the seniority. This order of the Tribunal being challenged before the Hon'ble High Court of Karnataka in WP.No.5743/2012 & 42459-

42461/2012(S-CAT) was dismissed vide order dtd.17.10.2012 by the Hon'ble High

Court. The position in this regard is not in dispute and the only defence the respondents would take is that the said orders are in personam and not in rem. We cannot accept this contention as the orders in those cases are based on the rule position and the applicants being in exactly the same situation cannot be denied the benefits of the said orders. While the respondents would admit in their reply vide para-5(iii) that the date of appointment should be the date on which he/she attains temporary status after a continuous service of four months if the same is followed by his/her regular absorption and it is not denied that the applicants in this case have been regularly absorbed at a later date, the question of seniority would be from the date of this later absorption. Therefore the only question that remains is the grant of seniority. The respondents themselves would cite several paras in this regard and in their own reply they have stated that in initial recruitment grades unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade(Annexure-R2). In the present case, the date of appointment is the date of temporary status conferment now established unequivocally. The point regarding seniority has also been covered by the orders of this Tribunal and Hon'ble High Court of Karnataka(supra).

Therefore, the claim of the applicants is valid and the same has been reinforced by 10 OA.No.170/00504-00511/2018/CAT/Bangalore Bench further orders of this Tribunal in OAs.No.449-456/2014 vide dtd.3.4.2014(Annexure-

M1).

9. The OA is therefore allowed and the respondents are directed to issue the consequential orders for the benefits which the applicants are eligible within a period of three(3) months from the date of issue of this order. No costs.

(C.V.SANKAR) (DR.K.B.SURESH) MEMBER (A) MEMBER (J)

/ps/ 11 OA.No.170/00504-00511/2018/CAT/Bangalore Bench

Annexures referred by the applicants in OA.No.170/00504-00511/2018

Annexure-A1: A copy of office order dtd.6.12.2006 Annexure-A2: A copy of office order dtd.11.6.2007 Annexure-A3: A copy of office order dtd.6.7.2007 Annexure-A4: A copy of memorandum dtd.11.2.2008 Annexure-A5: A copy of seniority list dtd.1.12.2012 Annexure-A6: A copy of representation dtd.13.11.2017 Annexure-A7: A copy of impugned letter dtd.4.4.2018 Annexure-A8: A copy of office order dtd.25.10.2005 Annexure-A9: A copy of extract Rule 6 of Master Circular-20 Annexure-A10: A copy of order dtd.9.9.2011 in OA.14/2011 Annexure-A11: A copy of order dtd.17.10.2012 in WP-5743/12 Annexure-A12: A copy of compliance order dtd.2.7.2013 Annexure-A13: A copy of service register of applicant-01

Annexures with reply statement:

Annexure-R1: Para 321 of IREM Vol.I Annexure-R2: Para 303 of IREM Vol.I Annexure-R3: Order dtd.20.4.2015 in OA.No.880/2014 Annexure-R4: Para 15 of Master Circular No.34 Annexure-R5: Para 6 of Master Circular No.20 Annexure-R6: Para 1515 of IREM Vol.I

Annexures with rejoinder:

Annexure-Re-14: A true copy of impugned order dtd.22.9.2015 in OA.88/2014 Annexure-Re-15: A true copy of seniority list dtd.16.10.2015 Annexure-Re-16: A true copy of seniority list dtd.04.01.2019 Annexure-Re-17: A true copy of Rules in Chapter-XV of IREM, I-2009

Annexures with memo dtd.6.3.2019 filed by the applicants:

Annexure-M01: A true copy of order dtd.3.4.2014 in OA.449/2014

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