SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and S.N. Phukan, JJ.

Civil Appeal No. 7600/1996. D/d. 26.4.2001.

Anil Srivastava - Appellant

Versus

U.O.I. & Ors. - Respondents

A. Railway Establishment Manual, Paragraph 103(iv) - Seniority - Effective date for counting - Whether appointment as apprentice can beheld to be appointment in service - Held no, not for the purpose of counting his seniority in service - A person would be eligible for appointment on probation in any substantive vacancy only on successful completion of his training or Apprentice, and even no guarantee for such appointment could be given - Appellant's service can only be counted form the date on which he was appointed on probation.

[Para 5]

B. Railway Establishment Manual, Paragraph 103(iv)- Welfare officer - Inter se seniority - Employees brought from different grade - Length of continues service- Could be criteria when people of different seniority/units are brought together, if they were on the same or equivalent grade - Grades not equivalent, appellant, who was drawing higher salary in the grade of JCMA than the Clerks, who were also selected and appointed as Welfare Officer, reasonable to treat the appellant senior to them.

[Para 6]

ORDER

1. This appeal is directed against the order of the Central Administrative Tribunal altering the seniority of the appellant in the cadre of Welfare Inspector, Railway. The appellant was working as a Junior Chemical and Metallurgical Assistant in the grade pay Rs. 380-560. Before his absorption as AJCM on 15.9.1981, he had been appointed as an Apprentice JCMA on 19.6.1980. The private respondents were Clerks in the grade of Rs. 260-400 as well as another grade of Rs. 330-560. The post of Welfare Inspector could be filled up by promotion from different category of personnel including the JCMA and Clerks. The appellant as well as private respondents were all selected for being appointed as Welfare Inspector, and were appointed on the same day, but the inter-se-seniority in the seniority list was shown treating the appellant to be in service with effect from 19.6.1980, and thereby giving him a higher seniority than the private respondents. Objections having been filed by the private respondents, the Railway Administration altered the seniority list and treated the appellant to be junior to the private respondents solely on the ground that the appellant was erroneously shown to be in service in the grade of JCMA on 19.6.1980, though in accordance with the rules, he could have been shown in the service only with effect from 15.9.1981. Against the said alteration of the seniority, the appellant approached the Tribunal, and the Tribunal having rejected his O.A., the appellant is before us.

2. Two contentions are being raised in this Court in assiling the order of the Tribunal. One, the appellant must be deemed to be in service as JCMA with effect from 19.6.1980. Two, assuming the appellant would be held in service with effect from 15.9.1981, as contended by the Administration, yet the appellant as well as the respondents having been promoted to the post of Welfare Inspector on the same date, and the appellant being in a different grade than the private respondents, who are Clerks, continuous length of service, as indicated in the paragraph 320 of the Railway Establishment Manual, would not be the criteria. Consequently, the appellant having been brought from a higher grade of pay ought to have been declared senior to the private respondents.

3. The learned counsel appearing for the Railway Administration, on the other hand, contended that the appointment of the appellant as an Apprentice JCMA cannot be held to be the appointment to the service in view of the very definition of "Apprentice", and therefore he was rightly treated by the Administration to be in service with effect from 15.9.1981. The counsel, further, urged that when employees from different sources have been selected for being appointed as Welfare Inspector, the continuous length of service could be the only reasonable criteria, and applying the same, the Administration has held the appellant to be junior to the private respondents.

4. The question whether an employee on being appointed as Apprentice or trainee can claim to be appointed in service depends upon the very definition of Apprentice given in paragraph 103 of the Railway Establishment Manual. Paragraph 103 (iv) is quoted below in extenso :

"An "apprentice or a "trainee" means a person undergoing training with a view to employment in railway service, who draws pay, leave salary, subsistence allowance or stipened during such training but is not employed in or against a substantive vacancy in the cadre of a branch of deptt. On satisfactory completion of his training he is eligible for appointment of probation in substantive vacancy but no guarantee of such appointment is given."

5. The aforesaid definition makes it explicetly clear that a person would be eligible for appointment on probation in any substantive vacancy only on sucessful completion of his training or Apprentice, and even no guarantee for such appointment could be given. In that view of the matter, the appointment of the appellant as Apprentice JCMA on 19.6.1980 cannot be held to be an appointment in the service for the purpose of counting his seniority in the service. The Tribunal therefore was fully justified in conclusion that the appellant's service in the cadre can only be counted from 15.9.1981, the date on which he was appointed on probation as JCMA.

6. But the further question that would arise for consideration is whether the private respondents having been brought into from the cadre of Clerks, and the appellant having been from the cadre of JCMA, all of them having been appointed as Welfare Officer, whether continuous length of service would be the determining factor for counting their seniority? The only provision dealing with a situation when employees are brought from different grade is Establishment Manual 320. On a plain reading of the aforesaid provision, it would appear that total length of continuous service could be the criteria when people of different seniority/units are brought together, if they were on the same or equivalent grade. But in the case in hand, the appellant being from a different grade than that of the Clerks, who were the private respondents, the question of continuous length of service cannot be the criteria for determination of the inter-se-seniority in the cadre of Welfare Officer. If there would have been a selection list on the basis of their merit, merit could have been a germane criteria, but it is not known whether while selecting them for appointment to the post of Welfare Officer, the list was drawn on the basis of their respective merit. In that view of the matter, the appellant, who was drawing higher salary in the grade of JCMA than the Clerks, who were also selected and appointed as Welfare Officer, it will be reasonable to hold that the appellant be treated senior to them. The Tribunal committed error in rejecting the appellant's claim of seniority. We therefore set aside the impugned order of the Tribunal, and direct that the appellant would be held to be senior to the private respondents in the cadre of Welfare Inspector, Railway.

7. The appeal stands allowed.

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