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PETITIONER: PREM KUMAR VERMA & ANR.

       Vs.

RESPONDENT: UNION OF INDIA  & ORS.

DATE OF JUDGMENT:       15/04/1998

BENCH: G.B. PATTANAIK, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK,J.      This appeal  is  directed  against  the  order  of  the Central Administrative Tribunal, chandigarh Bench dated 20th October, 1995  in O.A.  No. 470  of 1994.   The question for consideration is  whether the  inter  se  seniority  of  the appellants  had  been  rightly  determined  by  the  Railway Authorities as per para 303 (a) of the Railway Establishment Manual (hereinafter  referred to  as ‘the  Manual’) and  was illegally interfered  with by the Tribunal on the basis of a provision which came into existence subsequently.      Admittedly, vacancy  arose  in  the  post  Depot  Store keeper Grade III in Rail Coach Factory, Kapurthala , in July 1989, and  advertisement inviting  applications for the said posts had  been  issued  by  the  Competent  Authority.  The Railway Recruitment  Board Jammu Tawi selected 29 candidates on 11.7.89.  Under the  Rules the candidates are required to undergo training.  The 29 candidates thus selected were sent for training  in four different batches and after completion of their  training started discharging their duties as Depot Store Keeper.  The Railway Authorities drew up the seniority list of  the said  20 Depot Store Keepers in accordance with Para 303  (a) of  the manual,  as  it  stood  prior  to  its amendment  on  the  basis  of  the  merit  obtained  at  the examination  held   at  the  end  of  the  training  period. Respondents nos  5 to  9 filed  a Representation  on  3.8.92 challenging the  seniority list.  That Representation having been rejected  by the Government they approached the Central Administrative Tribunal  contending inter  alia  that  since they were  sent for  training in  the first batch itself and completed the  training much  earlier than  other  batch  of personnel they are entitled to be declared senior to others. The appellants  contested before  the Tribunal  both on  the ground that  the application  is grossly  barred by time and also on  the ground  that the  seniority inter  se has  been rightly determined  in accordance  with Para  303 (a) of the manual and  consequently the  respective merit after the end of the  training is  the determining  factor and  earlier in point of  time for  getting the  training is immaterial. the Tribunal, however,  came to  hold that  respondents 5  to  9

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having  successfully   completed  the  training  before  the present appellants  ad other  respondents, said  5 to  9 who were applicants before the Tribunal would rank senior.      Mrs. Shyamla  Pappu, learned  senior counsel  appearing for the  appellants, contended  that when  recruitment to  a cadre under the Railways is made through the Railway service Commission then  the seniority  of such  recruits has  to be determined  in   accordance  with   para  303.  She  further contended that vacancy having arisen in July 1989 process of selection for  the same  having  started  and  completed  on 11.7.89 the  relevant provision,  as  it  stood  then  would govern the inter se seniority and not the amended provision. Under the  preamended provision  it is  the order  of  merit obtained at the examination held at the end of the  training period which  determines the  inter  se  seniority  and  the appellants having  obtained higher  merit at the examination held at  the end  of the  training has  rightly  been  shown senior in  the Gradation  List and  the Tribunal erroneously interfered with the same. Mrs. Shyamla Pappu, learned senior counsel further  submitted that  the Proviso to Para 303 (a) of the  manual which  has been  quoted and considered by the Tribunal was  no there  on the  Statute Book either when the vacancy  arose  or  at  the  time  when  the  selection  was completed  and,   therefore,  the  said  proviso  cannot  be attracted. In  that view  of the  matter  the  Tribunal  has committed error by deciding the seniority on the basis as to which batch  joined the  training corse  earlier. Mr. Singh, learned counsel  appearing for the respondents 5 to 9 on the other hand contended, that at the relevant point of time the provision of para 303 (a) stood, as indicated in paragraph 8 of the  order of the Tribunal and in that view of the matter the Tribunal rightly decided  the criteria for determination of seniority and the said order, therefore, does not require any interference.  The Railway  Authorities  though  entered appearance but did not file any counter affidavit.      In view  of the rival submissions  at the Bar the first question that  would arise  for consideration  is which rule would govern  the inter  se seniority? It is undisputed that vacancies arose prior to July 1989 and advertisement for the said post  had been  issued earlier to July 1989 and finally the  Railway   Recruitment  Board  concluded  its  selection process and  selected 29 candidates on 11.7.1989. Therefore, the relevant  rules, as  existed then would govern the inter se  seniority.   The   next   question   that   arises   for consideration is  which is  the relevant  Rule that  was  in force in  July 1989? From the materials produced before us t appears that  para 303  of the  manual, as  it stood in July 1989 is to the following effect :-      "303. The  seniority of  candidates      recruited   through   the   Railway      Service Commission  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  again      working posts.      (b) candidates  who do  not have to      undergo any  training the seniority      should be  determined on  the basis      of the  merit order assigned by the

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    Railway Service Commission or other      recruiting authority." Later on  sometimes in  he year  1990 03  (a) was amended by inserting the following expression:-      "Those who  joined  the  subsequent      course for  any reasons  whatsoever      and   those    who    passed    the      examination   in   the   subsequent      chance will  rank junior  to  those      who has  passed the  examination in      earlier courses." The aforesaid Rule stood further amended in 1993 which reads thus :-      "In case  however persons belonging      to the  same RRB panel are sent for      initial training in batches  due to      administrative  reasons   and   not      because of  reasons attributable to      the  candidates,   the   inter   se      seniority will  be regulated batch-      wise provided  persons higher up in      the  panel  of  RRB  not  sent  for      training in  the appropriate  batch      (As   pr    seniority)    due    to      administrative  reasons   shall  be      clubbed  alongwith  the  candidates      who  took   the  training   in  the      appropriate batch  for the  purpose      of   regularing    the   inter   se      seniority provided such persons the      examination  at   the  end  of  the      training in the first attempt."      In view  of out  conclusion that  the posts fell vacant prior  to  July  1989  and  the  process  of  selection  was completed and  the Recruitment Board selected the candidates on 11.7.1989 the amendment that was introduced on 5.5.90 and the further  amendment of  1993 will have no application and it is  the unamended  Rule 3  as it  stood on 11th July 1989 would govern the case of inter se seniority. The analysis of the provisions  of para  303 indicates that where candidates are required  to undergo  some training after being selected through Railway  Service Commission  or any other Recruiting Authority their  seniority is  determined on  the  basis  of their respective merit at the examination held at the and of the training  period and  where candidates  do not  have  to undergo any training then the seniority is determined on the basis  of   the  merit   assigned  by  the  Railway  Service Commission or  other Recruiting  Authority. In  the  present case the  candidates had to undergo training and infact they had undergone  training in  batches, as  already stated.  In that view  of the  matter their  seniority had  rightly been determined by  the Railway  Authority on  the basis of their respective merit obtained at the examination held at the end of the  training period.  The Tribunal  committed  error  by attering the  said   seniority on  the basis of a Rule which was not  in existence  on the  date the vacancy arose and on the date when the selection was completed.      In the  aforesaid premises,  we set  aside the impugned order  of  the  Tribunal  and  dismiss  the  O.A.  filed  by respondents nos. 5 to 9. The seniority list as issued by the Railway Authorities on 24.9.1993 is restored.      The appeal  is allowed.  But in the circumstances there will be no order as to costs.

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