Ram Prakash vs Union Of India & Ors.

Delivered by Hon’ble Mr. Rajnish Kumar Rai, Member [Judicial]

Shri Shashi Kant Rai, counsel for the applicant and Shri Manoj Kumar Sharma, counsel for the respondents are present and heard.

This O.A. has been filed by the applicant challenging the order dated 11.04.2018 and 05.01.2016 vide which the respondents have rejected the claim of applicant with regard to re-fixation of his seniority as per empanelment of the casual labour in pursuance to the screening conducted and empanelled on 03.02.1984. The applicant has prayed for following relief(s)

Counsel for the applicant submitted that initially the applicant has sought relief for direction upon the respondents to consider his pending representation and during the pendency of the O.A., his representation was decided. Hence, on the ground that his representation has been decided, the relief was amended, after hearing the counsel for parties. He further submitted that the O.A. is filed within limitation as the impugned order was passed on the representation, so moved by the applicant while in service. Counsel for the applicant submitted that while filing the O.A., the applicant was serving on the post of Technician-II. The facts, as pleaded by applicant, are that the applicant was appointed as casual labour/khalasi on 16.03.1981 and worked up to 01.07.1983. Subsequently, on 03.02.1984, a screening test for empanelment was held in which the candidates who have been declared suitable for empanelment against regular Class-IV posts under D.E.E. Colony, Gorakhpur, however, name of applicant was not shown. Thereafter, one letter dated 04.02.1984 was issued to him with intimation that the name of applicant was not found placed in the empanelled screening list published vide the office notification dated 03.02.1984 because the service record of applicant has not been verified by the EFO BG unit of this colony. Therefore, the concerned respondent asked the applicant to submit the record pertaining to working days so that he may be empanelled and as per his seniority, his name will be interpolated at suitable place in the screened and empanelled list dated 03.02.1984. Counsel for the applicant submitted that to the utter surprise, the applicant’s name was empanelled in the notification published on 08.10.1990, which was between Tulsi Prasad and Nasir Ali while he did not appear in the screening conducted in the year 1990. He further submitted that the applicant has been continuously working with the respondents’ department and got his pay regularly. After considerable period passed when his seniority position was not corrected and persons junior to him were promoted to higher post, he has moved one representation dated 05.01.2016 before the respondents and by the letter dated 06.03.2017 and 24.07.2017, the respondents have intimated the applicant to submit the certificate with regard to working period between 16.03.1981 to 01.07.1983 as no record pertaining to said period was available with the respondents’ department. However, the applicant has provided the casual labour card which shows engagement of applicant between 16.03.1981 to 01.07.1983 and on 15.07.1984, he has worked for 954 days. The dispute is pertaining to the period between 16.03.1981 to 01.07.1983 with regard to ‘823’ days, which was not available with the respondents, however, the said working period has been observed and available in the casual labour card and on that basis, his name was placed in the seniority list for screening conducted in the year 1984. Further, the representation which has been moved by the applicant does not bring any relief with regard to considering the fixation of seniority of the applicant w.e.f. 03.02.1984.

Counsel for the applicant submitted that earlier he has filed the O.A. for deciding the representation, however, during the pendency of O.A., representation was rejected. Hence, the applicant has filed the Amendment Application (MA No. 1925/2018) challenging the order dated 11.04.2018 and 05/06.01.2016, which was allowed vide Order dated 10.01.2019.

Counsel for the respondents has filed the counter reply wherein it is submitted that the applicant was appointed on 16.03.1981 and worked up to 15.05.1981. The Committee of three officers conducted the screening for empanelment of 47 candidates on 16.10.1990 in which applicant appeared and found suitable with the condition that his empanelment is subject to confirmation of his appointment dated 16.03.1981 and in this regard they have filed the result of screening test conducted in the year 1990. It is further pleaded that after the screening conducted on 04.10.1990 and 16.10.1990, the applicant’s seniority was enlisted between Tulsi Prasad and Nasir Ali and he was shown at serial No. 31 and on the basis of that seniority, his seniority has been fixed by letter dated 03.01.1995, which is also filed along with the O.A. The respondents have pleaded that the service record of applicant as substitute Khalasi has not been verified by his E.F.O.B.G. of the Colony, Gorakhpur, therefore, his claim in the year 1984 was not considered and moreover the relief sought by the applicant pertaining to the seniority w.e.f. 1984 is highly time barred. Counsel for the respondents argued that once the seniority shown by letter dated 03.01.1995 w.e.f. 08.11.1990 published and the applicant has not redressed his grievance before the competent authority, now at the present stage the O.A. is highly belated and deserves to be dismissed as time barred. He further submitted that the record with regard to working period of applicant from 16.03.1981 to 15.05.1981 was not available with the respondents and on that account his seniority was rightly fixed by order dated 03.01.1995.

Heard, counsel for the parties and perused the pleadings available on record.

From the records, it appears that while filing the O.A. in the year 2018, the applicant was aged about 55 years and sought a relief for taking decision on the representation dated 09.05.2018 in pursuance of Railway Board Circular dated 20.10.1963. However, later on relief was modified and the applicant has challenged the impugned order dated 11.04.2018 (page 32) and order dated 05.01.2016 (page 26). From perusal of record, there is no dispute with regard to engagement of applicant w.e.f. 16.03.1981 as a casual khalasi and on the basis of his working as a casual khalasi, the working days was maintained by the competent authority and 953 days was verified till 15.04.1984 as a working period and on that basis, his name was enlisted in the seniority list for the purpose of screening to be held in the year 1984. From perusal of letter dated 04.02.1984 of E.F.O.B.G. of the Colony, Gorakhpur, the persons who screened, were empanelled on 03.02.1984. However, name of applicant was not found place only on account that the period of substitute khalasi was not verified by the E.F.O.B.G. of the Colony, Gorakhpur. Therefore, he was asked to produce the said document hence, his position may be fixed in the seniority and accordingly his name will be interpolated in the panel dated 03.02.1984. The said letter dated 04.021984 is quoted below: -

The respondents in their counter reply have submitted that as per the order dated 03.01.1995, the applicant was screened and empanelled in the list dated 08.11.1990 by fixing his seniority at serial No. 31. From perusal of said letter, it is also evident that the applicant has produced the relevant document with regard to his working and after verifying, the said order has been passed. The order dated 03.01.1995 is quoted herein below: -

Considering the records, various letters as well as contents made in the counter affidavit, it appears that the respondents have repeatedly asked for verification of period from 16.03.1981 to 01.07.1983 by addressing Deputy CEE/Electrical/BG/Construction (personnel) on 18.09.2017 as well as subsequent letter dated 12.10.2017 for the purpose of fixation of seniority at right position. Though the seniority has been fixed by the respondents vide order dated 03.01.1995 w.e.f. 08.11.1990, however, the claim of applicant is solely relied upon letter dated 04.02.1984 (annexure -2 of the O.A.) vide which the screening of applicant was conducted. However, on account of non-verification of service record, his name was not found place in that list and they have placed the burden of evidence upon the applicant to verify the service period and to bring the record regarding working period of the said dates for the purpose of fixation and interpolation of seniority in the seniority list of 1984. The applicant has never appeared in the year 1990 as he had already appeared in the screening test held in the year 1984 and his seniority was not fixed in the panel of 03.02.1984 only on account that the period of service rendered in the past was not available. It further appears that vide annexure CR-2, the respondents have intimated the applicant vide letter dated 03.01.1995, quoted above, that due to non-availability of certificate during the period between 16.03.1981 to 01.07.1983, the applicant cannot be declared as non-eligible and after getting the certificate, he was empanelled in the screening list dated 08.11.1990 between Tulsi Prasad and Nasir Ali. From the above, it is clear that for the purpose of fixation of seniority of applicant, contrary view has been taken by the respondents. Therefore, the case of applicant for fixation of his seniority at right place, as per letter dated 04.02.1984, needs to be corrected by interpolating his name in the empanel list dated 03.02.1984.

In view of the above discussion, the O.A. deserves to be allowed and is allowed. The impugned order dated 11.04.2018 and 05.01.2016 are quashed. The respondents are directed to correct the said empanel list dated 03.02.1984 by interpolating the name of applicant at correct position and notionally fixed his seniority w.e.f. 03.02.1984. Since the applicant has retired now, therefore, the respondents are further directed that after fixing his notional seniority, revised PPO shall be issued in favour of applicant within a period of four months from the date of receipt of a certified copy of this Order and pay the arrears for which the applicant is entitled. All the pending MAs shall be deemed to have been disposed of. No order as to cost.