B.K. Mishra vs Union Of India & Ors.

Delivered by Hon’ble Tarun Shridhar, Member (A)

We have joined this Bench online through video conferencing facility.

Shri Ashish Srivastava, ld. counsel for the applicant and S/Shri Raj Kamal Srivastava, Rajnish Kumar Rai, ld. counsel for the respondents are present online through video conferencing.

The applicant is aggrieved by the seniority list of Group ‘B’ officers of the Electrical Engineering Department issued on 29.02.2012. He seeks the quashing of the seniority list and restoration of his seniority as it existed on 26.08.2003 when he was initially engaged in the North Central Railway. For the sake of clarity, the relief sought by the applicant in this O.A. is reproduced verbatim: -

Brief facts of the case are that the applicant originally joined the services of Indian Railways in the Northern Railway as an Apprentice Electric Foreman and subsequently he got promotion to the position of Senior Section Engineer/Chief Traction Loco Controller. After the North Central Railway was carved out of the erstwhile Northern Railway, the staff of the Northern Railway was given an option to join the North Central Railway. However, as per the rules and instructions governing the seniority, it was presumed that the seniority would be assigned in the North Central Railway afresh from the date of joining the North Central Railway after a formal order of transfer as such was issued. The applicant’s case is that he assumed the duties in the North Central Railway on 26.08.2003 as Assistant Divisional Electrical Engineer and thus, he is entitled to seniority from that date.

Shri Ashish Srivastava, ld. counsel for the applicant argues that the first seniority list was issued on 09.12.2011, of the Electrical Engineers who were holding Group ‘B’ position by which time the applicant had also been promoted to Group ‘B’. In this seniority list, the applicant was placed at Sl. No. 59, correctly showing his date of induction in the North Central Railway as 26.08.2003. Ld. counsel for the applicant further goes on to argue that the second seniority list indicating the position as on 01.01.2011 also mentions 26.08.2003 as the date on which the seniority is to be assigned to the applicant. However, ld. counsel points out that vide the impugned seniority list issued on 29.02.2012, the seniority of applicant has arbitrarily been changed and now he has been assigned the seniority in the North Central Railway w.e.f. 10.11.2005. Ld. counsel argues that when the applicant was inducted into the North Central Railway, there was a categorical order that he is being posted on the basis of his option and hence, the principle governing the deployment of staff in the North Central Railway has been observed in letter and spirit. He points out that the respondents’ own contention is that the date of seniority is to be assigned when the officer was formally posted on the basis of his option. Ld. counsel points out that this view has been taken in the counter affidavit also. For the sake of clarity, the order passed on 20.08.2003 qua promotion and posting of the applicant in North Central Railway is reproduced below: -

Ld. counsel for the applicant further points out that vide notice, which is placed at page 57 of the O.A. it is further reaffirmed that the applicant has been promoted and posted in North Central Railway as ADEE.

Shri R.K. Rai supported by Shri Raj Kamal Srivastava, ld. counsel for the respondents points out that formal and official induction of the applicant in the North Central Railway took place on 10.11.2005 subsequent to the Presidential Directive transferring the applicant along with some other Group ‘B’ officers to North Central Railway. Ld. counsel vehemently argues that the posting of the applicant two years prior to this order issued on 09.11.2005 is to be construed only as the provisional deployment. Ld. counsel for the respondents takes us through the history of creation of North Central Railway and points out that initially in order to make the North Central Railway operational, staff in terms of their own choice of station, convenience and options were provisionally deployed. However, their formal induction in the North Central Railway which led to assignment of seniority, will be deemed to take place only once the Ministry of Railway has given its approval and this approval they got on 09.11.2005. For the sake of clarity, the aforesaid order is reproduced below: -

Ld. counsel further points out that this order unambiguously states that the group ‘B’ officer of the Electrical Department should be assigned the bottom seniority in terms of Ministry of Railways letter dated 03.12.1977. Ld. counsel argues out that the material which will determine the place of the applicant in the seniority list is the date on which the option was exercised by him for his assignment on permanent basis, in North Central Railway and he points out that the applicant has not been able to produce any evidence or documents indicating that he has given any formal option prior to his posting in North Central Railway on 26.08.2003 the date from which the applicant is claiming seniority.

At this stage, ld. counsel for the applicant rebuts this argument saying that the order, which is reproduced above, on which the respondents are relying upon in his arguments nowhere states that it will have a prospective effect especially considering the fact that while posting the applicant on 26.08.2003, it is clearly mentioned that it is being done on the option of applicant.

Ld. counsel for the respondents also draws attention towards the supplementary counter affidavit, specially page Nos. 57 and 60, wherein mention has been made of a similar controversy adjudicated upon by the Principal Bench of this Tribunal in O.A. No. 2804/2017. While deciding the aforesaid O.A., the Principal Bench has observed as follows: -

Ld. counsel further points out that the applicant was inducted in Group ‘B’ service on 01.08.2003 and subsequently he was adjusted at North Central Railway by down grading the post. This down grading and appointment was purely provisional pending formal transfer order. Ld. counsel goes on to argue that the applicant has come to challenge the seniority list at a belated stage only when the induction to Group ‘A’ post is to take place and any interference in the already established seniority list at this stage is going to disrupt the process and leading to a likelihood of large number of litigations. Ld. counsel further submits that while the above order dated 01.08.2003 specifically mentions that the officers can be posted in either Railway, Northern Railway or New Zones (NCR and NWR) depending upon the availability of vacancies in accordance with their seniority of Group ‘B’ cadre. Ld. counsel for the respondents submits that this does not confer any right or seniority to the applicant in the North Central Railway because the option was for amongst all the three railways.

Heard ld. counsel for the parties on three occasions in great detail and perused the available documents on record.

It is nowhere disputed that the applicant joined the North Central Railway as Assistant Divisional Electrical Engineer on 26.08.2003. Further, it is an admitted fact that he was assigned an appropriate place in the seniority list of 09.12.2011 wherein he was placed at Sl. No. 59. The aforesaid seniority list mentions his date of induction as an Electrical Engineer on 26.08.2003. It is the only seniority list of 29.09.2012 wherein his date of induction was changed to 10.11.2005. While the facts are not disputed, the real contention is that as to how they shall be interpreted.

The contention of ld. counsel for the applicant is that the applicant had joined on 26.08.2003 by way of formal administrative order, clearly mentioning that he is being posted on promotion whereas the ld. counsel for the respondents submits that this was a provisional arrangement for the limited purpose of operationalising the newly carved out North Central Railway. All these arguments have been discussed in great detail above.

We are not inclined to accept the position that there is something called informal promotion and posting. Moreover, even if the applicant was posted and promoted in the North Central Railway to the post of Assistant Divisional Electrical Engineer on a provisional basis, he continued to work as such in the North Central Railway uninterruptedly. Once the North Central Railway was established and staff posted there, they have a rightful claim for seniority and service benefits from the date on which they assumed the charge in the North Central Railway. If the entire process of creation of North Central Railway, building and structuring its own cadre took place at a later date and in this case, after a gap of two years, the same cannot be held an excuse to deny the applicant benefit of duty performed and service rendered by him prior to that date, especially so when he was posted to the newly established railway by way of a formal administrative order. Therefore, in our considered view the applicant cannot be denied the benefit of service he rendered w.e.f. 26.08.2003 to 09.11.2005 on the orders of the competent authority of the respondents.

Accordingly, we have no hesitation in quashing the impugned seniority list dated 29.09.2012 and directing the competent authority amongst the respondents to restore the seniority of the applicant to its original position as it existed in the provisional seniority list of 09.12.2011. To clarify this direction, it is ordered that the applicant stood promoted to the post of Assistant Divisional Electrical Engineer and posted to North Central Railway on 26.08.2003 and hence, his claim for seniority and further consequential benefits shall be determined from this very date.

With the aforesaid directions, the O.A. stands allowed. No order as to cost.