CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE
ORIGINAL APPLICATION No.153 OF 2008
THURSDAY, THIS THE 1st DAY OF APRIL, 2010
HON'BLE SHRI B. VENKATESWARA RAO ... MEMBER (J)
HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)
1. K. Mallikarjuna,
S/o L. Doddabasavanagowda,
Aged about 47 years,
Working as Head Commercial Clerk,
B.I.O.P. Siding,
Served by Bellary,
South Western Railway,
Hubli.
2. B.V. Ranganath,
S/o K. Varadaraj,
Aged about 48 years,
Working as Head Commercial Clerk
Toranagal Rly. Station,
South Westen Railway,
Turangal, Bellary. ... Applicants
(By Advocate Shri M.R. Achar)
Vs.
1. Union of India,
Ministry of Railways,
South Western Railway,
Reptd. By the General Manager,
Hubli Zone, Hubli.
2. The Chief Personnel Officer,
South Western Railway,
Hubli Zone, Hubli.
3. The Senior Divisional Personal Officer,
South Western Railway,
Hubli Division, Hubli.
4. Chitrappa,
Working as Sr Commercial Inspector/
Chief Goods Supervisor,
South Western Railways,
Vasanakere Railway Station,
At & Post Vasanakere, Koppal Dist. & Taluk.
5. B.R. Minajigi,
Working as Chief Commercial Clerk/
Sr. Commercial Clerk,
South Western Railways,
Bijapur. ... Respondents
(By Advocate Shri N.S. Prasad,
Senior Counsel for Railways for R-1 to 3)
O R D E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This application arises out of non promotion of the applicants to the post of Chief Commercial Clerk in the South Westen Railway while their juniors were promoted ahead of them.
2. Briefly, the case of the applicants is that the applicants were working in the cadre of Head Commercial Clerk from 1.3.1993 in the Guntakal Division of Railways which was under the control of the South Central Railways. On 1.4.2003, a new Zone, namely, South Western Railway was formed to which the staff from the earlier Guntakal Division were taken. For promotion from the post of Head Commercial Clerk to the post of Chief Commercial Clerk, a combined seniority has to come in existence. However, the respondents No.1 to 3 have promoted Respondents No.4 and 5 apparently juniors, ahead of the applicants. The sole issue thereore, rests at examining whether the new South Western Railway Zone that came into existence on 1.4.2003 had a combined seniority list for the purpose of departmental promotion, whether it was drawn up correctly and whether the promotions were given as per the said combined seniority list.
3. Heard Shri M,.R. Achar, learned counsel for the applicant and Shri N.S. Prasad, learned counsel for the respondents.
4. The learned counsel for the applicant Shri M.R. Achar has put forward the following points.
(i) The applicants were transferred from Guntakal Division to Hubli Division by Office order dated 26.02.2004 (Annexure-A/1)and their transfer was accepted by Hubli Division on 2.4.2004.
(ii) Prior to the formation of new Division on 1.4.2003, the provisional seniority list of Head Commercial Clerks of Guntakal Division as on 19.10.2001 was prepared showing the applicants position at Sl.No.32 and 33 (Annexure-A/2) with their date of posting in that grade as 1.3.1993. On the other hand, the seniority list for Head Commercial Clerks of Hubli Division as on 31.3.2002 shows the name of Respondents No.4 and 5 at Sl. No.55 and 56 with their date of posting as Head Commercial Clerk as 20.5.1994 and 9.9.1993 respectively, thus, making both the respondents junior to the applicants, though in separate divisions till 2.4.2004.
(iii) Further, it is the case of the applicants that even though the new Hubli Division was formed on 1.4.2003 and it was known that staff had come to this Division from Guntakal Division, the Respondents No.1 to 3 did not take any steps to prepare a combined seniority list. Without publishing any such combined seniority list, the Respondents No.1 to 3 issued orders on 16.9.2004 putting Respondents No.4 and 5 in the list of candidates promoted to the post of Chief Commercial Clerk with effect from 1.11.2003 against the vacancies which had become available since that date (Annexure-A/10). The applicants who came to the new restructured Hubli Division on 2.4.2004 remained unaware of these orders till 14.12.2006, when the Respondents No.1 to 3, while preparing to fill up the posts of Chief Commercial Clerk published a list of candidates eligible for examination. This list contained the names of the applicants, but, not the names of Respondents No.4 and 5. It was only then that the applicants became aware of the order dated 16.9.2004, which had granted promotion to Respondents No.4 and 5.
4. It is, therefore, the case of the applicants that they had already reported in the newly formed Hubli Division on 2.4.2004 and they were also accepted in the Division on 2.4.2004. So, the Respondents No.1 to 3 were aware of the existence of the applicants in the new Hubli Division. They ought to have prepared a combined seniority list in 2004 itself and in any case, prior to 16.9.2004. Even though the vacancies of Chief Commercial Clerk have arisen with effect from 1.11.2003 which is the date prior to the reporting of the applicants at Hubli Division, the respondents No.1 to 3 who chose to give promotions only on 16.9.2004 ought to have considered the applicants who have already become part of Hubli Division on 2nd April, 2004.
5. The learned counsel further pointed out that immediately after getting the alert note issued by Respondent Nos.1 to 3 on 14.12.2006, the applicants made representations on 3.1.2007 requesting for the postponement of examination and also for giving them promotion to the post of Chief Commercial Clerk from the same date when the Respondents No.4 and 5 were promoted. However, the Respondents No.1 to 3, without considering the representations, published a provisional seniority list of Head Commercial Clerks of new Hubli Division as on 19.1.2007, plaing the applicants at Sl. No.8 and 9. All subsequent representations dated 13.2.2007 and 5.5.2007 were also rejected vide Annexures-A/7, A/8 and A/9. Thus, Respondents No.1 to 3 have refused to review the promotion orders issued by them on 16.9.2004.
6. The applicants' prayer is that the promotion order dated 16.09.2004 which in effect promotes their juniors with effect from 1.11.2003 without taking note of the transfer of the applicants to the new Hubli Division on 2.4.2004 must be set aside. It is the further case of the applicants that Respondents No.1 to 3 should consider the applicants' case for promotion to the post of Chief Commercial Clerk with effect from the date on which Respondents No.4 and 5 have been promoted with all consequential benefits.
7. The learned counsel for the respondents has solely relied on the fact that the promotion order dated 16.9.2004 pertains to the vacancy arising as on 1.11.2003. By the said order, the respondents No.1 to 3 have promoted as many as 26 employees to the post of Chief Commercial Clerk. The applicants' names cannot be included in this list because they have reported to Hubli Division on 2.4.2004, while the vacancies pertain to 1.11.2003.
8. On hearing both the counsel, we have no doubt that the Respondents No.1 to 3 ought to have considered all the staff available with them on 16.9.2004 which also includes the applicants.Even though the vacancies to the post of Chief Commercial Clerk have arisen early as 1.11.2003, the action of the respondents has been completed till 1.4.2003. We are of the opinion that once the new restructured division comes into existence, the department has to start that as a clean slate and look at all the vacancies afresh and prepare all the gradation list. Hence, they ought to have prepared a combined seniority list on 16.9.2004 before issuing any promotion orders. The Respondents No.1 to 3 have clearly omitted this part of their duty to prepare a combined seniority list for the new Hubli Division in time. They have wrongly interpreted that the vacancies arisen on 1.11.2003 can be filled up only by the staff who were available in their Division on that date. Since the applicants came to the new Hubli Division in April, 2004 have also come to the same cadre as that of Respondents No.4 and 5 and since it is admitted that in their respective divisions prior to restructuring the applicants stood at more senior position in their respective seniority lists, they must be given the benefit of their higher seniority when they were transferred to the new Hubli Division.
9. We notice that the order of the respondents dated 16.9.2004 amounts to promoting as many as 26 people which in itself means lot of work and which seems to have been done on their part. Hence, we do not wish to quash the order. At the same time, we cannot allow them to overlook the rightful claim of the applicants for being given higher seniority over Respondents No.4 and 5. We therefore, direct that they should refix the seniority of the applicants above that of Respondents No.4 and 5 and give them all consequential benefits.
10. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this order.
(LEENA MEHENDALE) (B. VENKATESWARA RAO)
MEMBER (A) MEMBER (J)
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