J. John Anandan v. Union of India (SC) BS198222

J. John Anandan v. Union of India (SC) BS198222 SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and Y.K. Sabharwal, JJ.

Civil Appeal Nos. 7778 - 7779 of 1997. D/d. 11.12.2001.

J. John Anandan. - Appellants

Versus

Union of India. - Respondents

Railway Establishment Manual, Paras 302 and 303 - Service and Labour Law - Seniority - Post of skilled artisan in Electrical Department of Railways - Some of the selectees required to go for training and some are not - Inter se seniority of such employees - Category of posts which are partially filed by direct recruitment and partially by promotion - Criteria for determination of seniority should be the date of regular promotion after due process in the case of promotees and the date of joining the working post after due process in the case of direct recruit - Appellant, a direct recruit, joining post on 13.7.1988 - Promotees having come into the cadre on 4.8.1988 - Appellant would be senior to promotees.

[Para ]

ORDER

1. These two appeals are directed against the order passed by the Central Administrative Tribunal, rejecting the application filed by the appellant as well as the application filed for review. The question for consideration in these appeals is, what would be the date with effect from which the seniority of the appellant would be reckoned in the post of Skilled Artisan in the Electrical Department of the Southern Railway.

2. It is undisputed that the post of Skilled Artisan is filled up by 50% by promotion, 25% by direct recruitment and 25% by selection from serving staff. It is also further clear that some of these selects are required to under go some training before they are absorbed in the cadre, while others are not required to undergo any training and are absorbed directly on being selected. The appellant belongs to that category who is not required to undergo any training and got himself absorbed on 13.07.1988.The question of inter se seniority of these employees is governed by the provisions contained in paragraphs 302 and 303 of the Indian Railway Establishment Manual. Out of the 7 candidates who were selected for being appointed against the 25% quota available by direct recruitment, 4 of them including the appellant, did not require any training for being absorbed and they were at Sl.Nos.1, 4, 6 and 7, while 3 others, who were selected in the same process of selection, had to undergo a training before being absorbed in the cadre, they being at Sl. Nos. 2, 3, and 5.

3. In the provisional seniority list that was issued on 30.11.1991, the present appellant was not shown senior to the promotes, who came by promotion later than the appellant and were absorbed as Skilled Artisan on 4.8.1988. These promotes obviously came as against 50% quota meant for being filled up by promotion. The appellant, having been shown junior to those promotes in the provisional seniority list dated 30.11.1991, a representation had been filed claiming inter alia that his promotion in the cadre has to be governed from the date of his absorption on 13.07.1988.While that representation was pending before the Competent Authority, the Central Administration Tribunal in one Original Application filed being OA No. 144/1991 considered the question of inter se seniority. Bearing in mind the provisions contained in paragraphs 302 and 303 of the Indian Railway Establishment Manual, it disposed of the said OA by order dated 13.03.1992,Laying down the principles and requiring the Railway Administration to draw up the seniority list afresh in accordance with the principles decided there in. A revised seniority list was issued by the Railway Administration on 09.08.1992, but even in that seniority list the present appellant was placed below the promotes who were absorbed as Skilled Artisan later than the appellant on 04.08.1988. In accordance with the Tribunal's decision dated 13.3.1992, a circular was issued by the Railway Administration on 30.10.1992.The case of the appellant is that his case is squarely covered by the aforesaid circular of the Government dated 30.10.1992. The Administration, however, ordered that the appellant's seniority could only be counted in the cadre w.e.f.31.07.1990, the date on which one Anantharam who was selected along with the appellant for the post and was required to undergo some training and ultimately absorbed in the cadre after successful completion of the Tribunal, as said Anantharam had secured higher position than appellant. The appellant, therefore, filed an OA registered as OA No. 111/ 93 before the Central Administrative Tribunal, praying there in that the seniority in his case should be counted w. e. f.13.07.1988.The Tribunal, by the impugned order having dismissed the same on a finding that the circular dated 30.10.1992 is merely prospective and the appellant's seniority cannot be counted in accordance with the said circular, the present appeals have been preferred.

4. The learned counsel appearing for the appellant, Contended that the afore said circular is merely a clarificatory one issued by the Railway Administration in accordance with the directions given by the Central Administrative Tribunal while disposing of O.A No. 144/91 and in that order the Tribunal has considered the legal position in relation to the applicability of the provisions contained in paragraphs 302 and 303 of the Railway Establishment Manual.

5. That being the position even bereft of the circular, by application of the provisions contained in the aforesaid two Paragraphs, there is no rhyme or reason to hold that the appellant's seniority in the cadre will be counted only w. e. f. 1990 and not w. e. f. 13.07.1988.

6. Mrs.Indra Sawhney, learned counsel appearing for the Railway Administration, on the other hand, submitted that the Provisions of Paragraph 303(b) of the Indian Railway Establishment Manual would govern the case and, therefore, since Anantharam had obtained a higher merit position than the appellant at the time of selection and Anantharam was absorbed in the year 1990, the Administration rightly held that the appellant's seniority would be reckoned from that date, namely, 31.07.1990.

7. The correctness of the rival submissions would depend upon a correct interpretation of the two provisions contained in the Indian Railway Establishment Manual. Paragraphs 302 and 303 thereof read as under:-

"302. Seniority 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.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 promote 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 promotes 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 positions, the promotes being senior to the direct recruits, maintaining 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.

8. (No. E(NG)I - 78 - SR - 6 - 42dt. 7-4-1982 ACS. 132).303. The seniority of candidates recruited through the Railway Recruitment Board or by any other recruiting authority should be determined as under:-

(a) Candidates who are sent for initial training to training schools will rank in seniority 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 what so ever and those who pass the examination in subsequent chances, will rank junior to those who had passed the examination in earlier courses.

(b) In the case of candidate who do not have to undergo any training in training school, the seniority should be determined on the basis of the merit order assigned by the Railway Recruitment Board or other recruiting authority."

9. On a plain reading of the aforesaid two provisions, it is crystal clear that in the category of posts which are partially filled by direct recruitment and partially by promotion, as in the present case, the criteria for determination of the seniority should be the date of regular promotion after due process in the case of promotes and the date of joining the working post after due process in the case of direct recruit. In the case in hand, the said date so far as the appellant is concerned, is 13.07.1988.The Railway Administration does not dispute the position that the appellant was not required to undergo any training before being absorbed in the post of Skilled Artisan on being selected. That being the position, so far as the seniority between the appellant, a direct recruit, and those promotes is concerned, the appellant would be senior to the promotes, absorption of the appellant being w. e. f. 13.07.1988 and the promotes having come into the cadre on 04.08.1988.

10. So far as Paragraph 303 of the Manual is concerned, sub - paragraph (b) thereof determines the inter se seniority of candidates who are not required to undergo any training in any training school. In the case in hand, out of seven candidates who were at serial Nos. 1, 4, 6 and 7, their inter se seniority is required to be governed in accordance with Paragraph 303(b). Anantharam was one of those candidates who were required to undergo training before being absorbed.

11. Question of appellant's seniority being determined with reference to the date of regular absorption of Anantharam is a mis - conception on the part of the Administration. So far as Anantharam is concerned, as amongst them who were required to undergo training, their inter se seniority is required to be re-determined on the basis of the merit obtained at the examination held at the end of the training period before being posted. The said Anantharam can be held to have been brought into the cadre of the Skilled Artisan on 31.07.1990, the date on which, on successful completion of his training, he was appointed as a Skilled Artisan. The question of fixation of appellant's seniority with reference to Anantharama's merit position in the original selection is wholly misconceived. We, therefore, allow these appeals, set aside the impugned order of the Tribunal and direct that the appellant's seniority in the cadre of Skilled Artisan be determined taking his entry into the cadre on 13.07.1988.