Tara Chand vs Union Of India Through And Ors

L. Narasimha Reddy, J

The applicant joined the Northern Railway as Gangman on 15.07.1980 in the grade of Rs. 200-250. Thereafter a Trade Test was conducted for the post of Welder, and on the applicant clearing the same, he was appointed in that post on 15.04.1983 in the pay scale of Rs. 260-400 (Grade-III). He was further promoted to the post of Welder Grade-II, which carried the pay scale of Rs. 1200-1800; through order dated 14.05.1991.

The applicant made representations for fixation of his seniority in the post of Welder Grade-II and for conferment of further benefits, such as, promotion to the next higher post. When there was no response from the administration, he filed OA No. 2415/2008 before this Tribunal. The same was disposed of on 07.11.2008 with a direction to the respondents to pass orders on the representation dated 03.03.2008 submitted by the applicant.

Through an order dated 12.03.2009, the respondents informed the applicant that the entire section of the Welders was reorganized by reallocation of posts, carrying the pay scale of Rs. 5000-8000 (one post), Grade-I in the pay scale of Rs. 4500-7000 (4 posts), Grade-II carrying the pay scale of Rs. 4000-6000 (two posts), and Grade-III (one post), and since there are many seniors to the applicant, his case was not considered for promotion, and that no junior to him has been promoted to the Grade-I cadre of Welder. It is also mentioned that the reason for not mentioning the date of his promotion to Grade-II in the seniority list of Mason and Fitter does not make any difference in assignment of seniority. The same is challenged in this OA.

Ms. Sonika, learned counsel for the applicant, submits that the respondents have purposely omitted to mention the name of the applicant in the seniority list for the post of Welder Grade-II, notwithstanding the fact that he held the post in a substantive capacity, and he was promoted. She contends that unless he was holding the post of Grade-III on permanent basis, there would be no question of promoting him from Grade-III to Grade-II in 1991. It is also pleaded that reasons mentioned in the impugned order are contrary to the record.

The respondents filed a counter affidavit opposing the OA. It is admitted that the applicant was initially appointed as Gangman and thereafter he was promoted as Welder on clearing the qualifying the Trade Test in the year 1983. Though it is mentioned that the promotion of the applicant to the post of Welder was by an officer not vested with the power, it is not denied that the applicant was promoted to the post of Welder Grade-II in the year 1991 on Temporary, Local Arrangement basis (for short TLA). An objection is also raised as regards limitation.

We heard Ms. Sonika, learned counsel for the applicant and Shri Shailendra Tiwary, learned counsel for the respondents.

There is no dispute that the applicant initially joined the Railway service as Gangman, and was thereafter promoted as Welder in the pay scale of 260-400 on 15.04.1983, which is designated as Grade-III. Though an attempt is made to dispute the status of the applicant as Welder Grade-II, the same becomes untenable, in view of the fact that the applicant was permitted to clear the trade test for Welder Grade-II in the pay scale of Rs. 1200-1800, later revised to Rs. 4000-6000, and on becoming successful therein, was promoted w.e.f. 14.05.1991. Even if that promotion is treated as temporary local arrangement (TLA) basis, it does make much difference to the not applicant. Having promoted the applicant to the post of Welder Grade-II, with higher pay scale of pay, albeit on TLA basis, the respondents have omitted to mention his name in the seniority list for the post of Grade-III which was prepared on 17.03.2005. It contains 35 names and if one takes into account the date of promotion to Grade-III, the name of the applicant must occur at Sl. No.6. Instead of correcting this glaring error, the respondents have come forward with the plea that the failure to mention, the date of promotion to Grade-II in the seniority list etc, does not make much of difference. There cannot be a better instance cover up of a serious mistake.

Once it becomes clear that the applicant ought to have been included at Sl. No.6 in the seniority list dated 17.03.2005 for the post of Welder Grade-III, he is entitled for whatever benefits that flow from it. The impugned order states that the applicant could have been promoted to the post of Welder Grade-I with the pay scale of Rs. 4500-7000 but for the fact that there are 9 persons senior to him. This is on the basis of the seniority list for the post of Grade-III which did not include the name of the applicant. If the name is included, a totally different picture altogether, emerges.

Coming to the objection as to delay, we find that the cause of action pleaded by the applicant is continuous in nature. It is not as if he represented for the first time only in the year 2012. He filed an application for condonation of delay. No separate counter affidavit is filed to the MA, but a general objection is raised as to limitation in the counter affidavit filed in the OA.

On hearing the parties, and on examination of the record, we are satisfied that the delay deserves to be condoned. Ordered.

We, therefore, allow the OA and direct that the seniority of the applicant in Welder Grade-III shall be fixed by treating him as having been placed at Sl. No.6 in the seniority list dated 17.03.2005 for the post of Welder Grade-III, and all other benefits shall be extended to him. Exercise in this regard shall be completed within a period of three months from the date of receipt of certified copy of this order.