http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil) 2962-63 1989

PETITIONER: A.  J.  FERNANDIS

       Vs.

RESPONDENT: THE DIVISIONAL MANAGER, SOUTH CENTRAL RAILWAY & ORS.

DATE OF JUDGMENT:       07/12/2000

BENCH: S.R.Babu, S.N.Variava

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     J U D G M E N T

     S.  N.  VARIAVA, J.

     These  Appeals  are  against  a  Judgment  dated  11th December,  1987  in a Petition filed by the  3rd  Respondent before  the  Central  Administrative Tribunal and  an  Order dated 22nd August, 1988 by which, pursuant to Judgment dated 11th  December, 1987, the 1st Respondent has determined that Appellant  is  junior to 3rd Respondent and reverted him  to post of Porter in the Commercial Department.

     The  3rd  Respondent  has  not  appeared  even  though served.

     Briefly  stated  the  facts are as follows:   On  22nd July, 1972 the Appellant was appointed as a Porter on casual basis  in  the  Transportation (Traffic) Department  of  the South  Central Railway, Hubli Division.  On 1st March,  1973 the Appellant was conferred a temporary status.

     The  3rd  Respondent was appointed as a Porter in  the Commercial Department on 30th August, 1974.

     Rule  180 of the Railway Establishment Manual reads as under:    "180:   Transportation   (Traffic)  &   Commercial Department:- All railway servants in the lowest group should be eligible for consideration for promotion to higher grades in   both  the  Transportation   and  Commercial   Branches. Applications  should  be  invited  from  amongst  candidates eligible  for promotion from both the branches.  All railway servants  who apply will be considered.  An adhoc  seniority list  will be prepared on the basis of length of  continuous service in the grade and suitable men selected and placed on a  panel for training.  Systematic and adequate training and examinations or tests must precede actual promotions."

     As  provided  in  this  Rule  Appellant  and  the  3rd Respondent  were  allowed to attend promotional  courses  to qualify  as  Ticket Collectors.  In 1979 both Appellant  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

3rd  Respondent were allowed to compete for selection to the post  of Ticket Collectors.  However, neither got  selected. On  20th  August,  1980  the Appellant  got  posted  in  the Commercial  Department.   They then again competed in  1981. On 17th June, 1981 both the Appellant and the 3rd Respondent were shown to have been selected.  However, as there were no vacancies they were not appointed.

     Thereafter  both the Appellant and the 3rd  Respondent were  appointed  as Ticket Collectors on adhoc basis on  the condition  that this would not confer any right for  regular appointment  and  that  they  would make  room  for  regular appointees as and when selected and appointed.

     On  27th September, 1981 a provisional seniority  list was  prepared.   In  the  seniority list  the  name  of  the Appellant  was missing.  The Appellant made a representation against  the fact that his name had not been included in the seniority list.

     Selections  for  the post Ticket Collector were  again made  in 1982 and 1983.  In 1983 the Appellant was  selected along  with 17 other persons.  Pursuant to this selection on 28th  May,  1983  the  Appellant   was  promoted  as  Ticket Collector  in  a vacant post.  It must be mentioned that  in this selection the 3rd Respondent had also competed, but was not  selected.   Thereafter  another selection was  held  in April  1986.   In  that selection again the  3rd  Respondent appeared but was again not selected.

     On  25th September, 1986 the Appellant was promoted to the  grade  of Senior Ticket Collector.  On 29th  September, 1986  the  3rd Respondent who, during all this  period,  had been  working  as an adhoc Ticket Collector was reverted  to make   room  for  candidates   who  had  been   successfully empanelled.   On  5th  January,   1987  the  3rd  Respondent challenged  his  reversion  and the promotion order  of  the Appellant   by   filing  a   Petition  before  the   Central Administrative Tribunal.

     On  11th  December,  1987 the  Central  Administrative Tribunal  held  that the promotion of the Appellant was  not proper  as  the  Appellant was not  eligible.   The  Central Administrative  Tribunal held that the Appellant was working in   the  Transportation  (Traffic)   Department   and   the selections were to be from persons working in the Commercial Department.   The Central Administrative Tribunal held  that as the Appellant had been appointed in Commercial Department on 22th August, 1980 he could not be considered to be senior to the 3rd Respondent who had been appointed on 30th August, 1974.   The  Central  Administrative Tribunal  directed  the Government  to  prepare  a fresh  seniority  list  confining themselves  to the Commercial Department and thereafter,  if the  3rd  Respondent was found senior to the  Appellant,  to promote  him  with effect from the date of promotion of  the Appellant.  It is this Judgment which is assailed before us. Pursuant  to this Judgment the 1st Respondent has passed  an Order  dated  22nd  August,  1988   by  which  seniority  of Appellant  is fixed below 3rd Respondent and it is  proposed that  Appellant  be  reverted to the post of Porter  in  the Commercial Department.

     Even  though the 3rd Respondent had not appeared,  Mr. Nagaraja and Mr.  Qadri have fairly placed before us all the material and have assisted the Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

     Undoubtedly,  the  selection  was to be  from  persons working  in the Commercial Department.  However, with effect from 22nd August, 1980 the Appellant was also working in the Commercial  Department.  Therefore, in 1983 he was  eligible to  be selected.  All persons who were eligible were allowed to  compete  for  selection.   Being so  eligible  both  the Appellant   and  the  3rd   Respondent  had  competed.   The Appellant  got  selected and was put on the select panel  on 29th  April, 1983.  The 3rd Respondent had also competed but he  was  not selected or empanelled.  Only persons who  were empanelled could be appointed as Ticket Collectors.  In such a  case, the question of inter se seniority between the  two persons did not arise.  As 3rd Respondent was not empanelled he  could not be promoted.  Even presuming the Appellant was junior,  the  Appellant could still get promoted as  he  was selected.

     Rule  180,  set  out  above, shows  that  all  railway servants  were eligible for consideration of promotion.  The 3rd  Respondent, having failed to get selected, could hardly complain  about  the  promotion of the Appellant.   On  this basis  itself  the  Order  of  the  Central   Administrative Tribunal cannot be sustained.

     Even  otherwise, it is to be noted that the  Appellant got  promoted  to the post of Ticket Collector on 28th  May, 1983.   He  was  thereafter  promoted  as  a  Senior  Ticket Collector  on 25th September, 1986.  The Appellant was  then promoted  as a Train Ticket Examiner on 25th May, 1987.  The 3rd  Respondent  chose  to challenge the  promotion  of  the Appellant as a Ticket Collector only on 11th December, 1987, i.e.  after a period of 4 years.  On the ground of delay and latches  also  the application of the 3rd Respondent  should have been dismissed.

     In  this  view of the matter the impugned Order  dated 11th  December,  1987 is set aside.  The Application of  the@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 3rd  Respondent  before the Central Administrative  Tribunal@@ JJJ stands dismissed.  The Order dated 22nd August, 1988, passed pursuant  of  the Order dated 11th December, 1987, which  we have set aside in this appeal cannot survive and is quashed. These  Appeals stand allowed accordingly.  There will be  no Order as to costs.