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CASE NO.: Appeal (civil) 10912  of  1996

PETITIONER: NIRANJAN PRASAD SINHA & ANR.

       Vs.

RESPONDENT: U.O.I. & ORS.

DATE OF JUDGMENT:       09/05/2001

BENCH: G.B. Pattanaik & S.N. Phukan

JUDGMENT:

PHUKAN, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   In  this  appeal  the two appellants have  assailed  the order  dated 26.05.1995 passed by the Central Administrative Tribunal,  Patna.   The Tribunal rejected the prayer of  the appellants  for  quashing the seniority list issued  by  the Senior  Divisional  Personnel   Officer  (Danapur  Division) Danapur, Patna.

   Initially  the appellants were appointed as Cleaners  in Eastern  Railway  (Danapur Division) Danapur and  thereafter promoted  to  post of Fireman Grade C.  On  11.10.1985  they were  promoted to the post of Fireman Grade B.  The  Railway Administration  decided to restructure the posts of  Fireman and  accordingly  on 25.06.1985, the Railway Board issued  a circular  and  as  a  result   of  such  restructuring   the appellants became Fireman Grade A with effect from 1.1.1986. This restructuring was done as a sequel to the report of the Pay  Revision  Commission.   After the  appellants  were  so posted  as  Fireman  Grade A, the respondents  held  written examinations  on  different  dates.   On the  basis  of  the results  of the said examinations, 31 persons were  promoted from Grade B to Grade A on 6.8.1985 and thereafter 23 and 31 more  persons were so promoted on 7.2.1986 and on  8.7.1986. The  appellants  have alleged that as they were promoted  as Fireman Grade A prior to the promotions of the above persons after written examination, the promotees could not have been shown  senior to the appellants in the seniority list as has been done by the impugned list.  It is not disputed that all along  the  appellants were senior to the promotees  in  all Grades and in fact in the earlier seniority list for Fireman Grade  A,  the  appellants were shown senior  to  the  above promotees.   However, this seniority list was changed by the impugned  seniority list by placing the appellants below the promotees  which  was challenged before the  Tribunal.   The Tribunal  upheld  the impugned seniority list.   Hence,  the present appeal.

   The  stand of the respondent was that by the circular of the  Railway Board dated 25.06.1985 for restructuring of the

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above  posts, the Board only conveyed a general decision but keeping  in view fast technological changes, the respondents in  order  to find out more efficient persons for  promotion conducted  written examinations on the basis of the  earlier circular  of  the Railway Board dated 17.12.1982 and as  the promotees  qualified through written test, they were  placed senior to the appellants.

   The learned senior counsel appearing for the appellants, Mr.   Mishra  has contended that in view of Clause 5 of  the circular  of the Railway Board dated 26.05.1985, as the next higher  post  for  promotion of the appellants  was  Fireman Grade  A,  they were entitled to be promoted to  that  grade only  on  scrutiny of service records without  holding  any written  and/or  viva-voce  test and  therefore  they  were legally  promoted.  It has been urged that the promotees who were  promoted subsequently, though selected through written tests,  could  not have been placed above the appellants  in the  seniority list.  In reply Mr.  Kaushik, learned counsel for  the  respondent  has urged that as the  promotees  were selected after written tests in terms of the circular of the Railway  Board  dated 17.12.1982 and being  found  efficient they were rightly shown senior to the appellants.

   The  relevant Clause 5.1 of the circular of the  Railway Board dated 25.06.1985 is quoted below:

   5.1 - ..However, for the purpose of implementation of  these order if an individual railway servant becomes due for  promotion to only one grade above the grade of the post held  by  him  is  classified as  a  Selection  Post,  the existing  selection procedure will stand modified in such  a case  to the extent that the selection will be based only on scrutiny  of  service  records without holding  any  written and/or   viva-voce   test.   Under   this   procedure,   the categorisation  Outstanding  will  not  exist.

   (emphasis ours)

   We  have  perused the circular and in view of the  clear language of Clause 5.1, the contention put forward on behalf of  the  respondents  is  not  sustainable.   By  the  above circular,  the  Board has taken a positive decision that  an employee due for promotion to only one grade above the grade of  the  post  held by him, promotion would be only  on  the basis of scrutiny of service records and without holding any test.

   There  is  no dispute that Fireman Grade A is one  grade above  the  post of Fireman Grade B, therefore, in terms  of the above clause the appellants were entitled to be promoted to  the  post of Grade A only on scrutiny of  their  service records  and  it  was  so done by the  respondents  as  they promoted  the  appellants to the post of Fireman Grade A  on 1.1.1986,  the  date on which restructuring was done as  per the above circular.  We are, therefore, of the view that the promotion of the appellants was legal and proper.

   It  is  well  settled  that  in  absence  of  any  rule, seniority  in a particular Grade has to be determined on the basis  of  length of continuous service in that Grade.   The appellants were legally promoted Fireman Grade A whereas the promotees  were  promoted subsequently.  It is  an  admitted position that appellants were senior to the promotees in all the  grades of posts of Fireman.  No rules have been  placed

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before  us  to  show that persons promoted on the  basis  of written  test would get seniority over the persons  promoted under  Clause  5.1.  We, therefore, hold that  the  impugned seniority list where the appellants were shown junior to the promotees  is contrary to the legal position and accordingly it is quashed.

   We  find  merit in the present appeal and it is  allowed with  the  direction to the respondents to draw up  a  fresh seniority list placing the appellants above the promotees in the  post  of Fireman Grade A.  The revised  seniority  list shall be published within a period of 3 months.  Considering the  facts  and  circumstances  of the case  we  direct  the parties to bear their own cost of this appeal.