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PETITIONER: RAM UJAREY

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT:       13/11/1998

BENCH: S.SAGHIR AHMAD, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT S.Saghir Ahmad. J. Leave granted. The appellant was appointed  as  Khalasi  under  the Loco  Foreman,  Ambala  Cantt  and  was  posted as Coal/Fuel Khalasi  at  Nangal  Dam  where  he  worked  upto  15th   of September,  1972.  On  16th  of Sept. 1972 he was spared and transferred to Carriage and  Wagon  Department  of  Northern Railway  and  was  posted  as  khalasi at Khanalampura Goods Yard, Saharanpur, where he joined on 20.9.1972. He was again transferred to Ambala Cantt on 11.6.1978 where he passed the trade test for the  post  of  Semi-skilled  Fitter  and  was promoted  to  that  post.  He  was  further  promoted, after passing  the  requis  trade  test,  as  skilled  Fitter   on 9.5.1979. By an  order  dated  18.4.1980,  the  appellant  was reverted  to  the  post  of  Khalasi  in  Carriage and Wagon Department.  It was this order which was challenged  by  the appellant in Regular Suit No.  294 of 1980 which was decreed by  the VIIIth Additional Munsif, Saharanpur, on 13.11.1981. This judgment was challenged in appeal, filed by the Railway Administration,  in  the  court  of  the   District   Judge, Saharanpur  which was later transferred to the court of IVth Additional Civil Judge, Saharanpur.  While  the  appeal  was pending in that court, Central Administrative Tribunals Act, 1985 came into force and the appeal stood transferred to the Central Administrative  Tribunal,  Allahabad.   The Tribunal allowed the appeal and set aside  the  judgment  and  decree passed  by the trial court as it was of the opinion that the suit had not been filed in the proper court and consequently directed the plaint to the returned for presentation to  the proper Bench of the Tribunal for a fresh decision. The appellant then filed the  claim  petition  under Section 19 of the Central Administrative Tribunals Act, 1985 before  the  Tribunal  at  Chandigarh which, by its judgment dated 28.11.1995,  dismissed  the  petition.    It  is  this judgment which is assailed in appeal before us. The  respondents  had contested the suit as also the claim Petition mainly on the ground that the  appellant  was initially appointed as Substitute Khalasi who later acquired

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the temporary status.  In 1972, when the contract system was introduced in the Loco Shed, he was declared surplus and was absorbed in Carriage and wagon Department as a khalasi.  The period  of service rendered by the appellant from 1964/ When he was first appointed as  khalasi,  to  1972  when  he  was shifted  to  Carriage  and  Wagon Department as Khalasi, was wrongly counted towards his seniority  and  consequently  he was  not  entitled  to  be  promoted  either as Semi-skilled Fitter  or  Skilled  Fitter  although  he  had  passed   the requisite trade tests for both the posts.  When this mistake was  noticed, the reversion order dated 18.4.1980 was issued and he was again posted as Carriage and Wagon Khalasi.   The claim was also contested on the ground of limitation. Learned counsel for the appellant has contended that the finding recorded by  the  Tribunal  that  the  appellant having  been  declared  surplus at Ambala Cantt in 1972, was not entitled to count the previous service from 1964 to 1972 towards his seniority, was erroneous and was  liable  to  be set aside as the appellant had been confirmed on the post of Coal Khalasi and having acquired permanent status, there was no question  of  his  being  declared  surplus.    It was on account of his permanent  status  that  he  was  shifted  to Carriage and Wagon Department as Khalasi without his service having been  terminated  by  any specific order.  It is also contended that the assertion of  the  respondents  that  the promotion  orders  were  made by mistake was wholly wrong as the appellant besides having passed the trade tests for  the promotional  posts of Semi-skilled Fitter and Skilled Fitter was entitled to count the entire period of service from 1964 to 1972 as Coal Khalasi towards his seniority  specially  on account  of  the  fact that he was already confirmed on that post with effect from 11.4.1965. Learned   counsel   for   the  respondents,  on  the contrary, contended that the handling of coal  in  the  Loco department  was  given to contractors and therefore, all the posts of Coal khalasi were surrendered as a result of  which the  appellant  including  many others were declared surplus and they were, on compassionate ground, absurder as Khalasis in the Carriage and  Wagon  Department  and  therefore,  the appellant  was  entitled  to  count  his  seniority  in  the Carriage and Wagon Department only  with  effect  from  1972 when he  as appointed in that Department.  He was not, it is contended, entitled to count his previous  service  rendered as  Coal  Khalasi  in the Loco Department from 1964 to 1972, towards his seniority.   His  promotions  consequently  were made  at a time when he was on the basis of seniority in the Carriage and Wagon Department.  Not entitled to be  promoted either   as   Semi-skilled  Fitter  or  as  Skilled  Fitter, notwithstanding that he had passed the trade tests  for  the two posts.    It  is  further  contended  that the appellant should not have, as a matter of fact, been  called  for  the trade tests. The  main  issue, therefore, between the parties was whether the period of service  rendered  by  the  appellant, from  1964  to  1972 as Coal Khalasi in the Loco Department, was liable to  be  counted  towards  his  seniority  in  the Carriage and Wagon Department where he was appointed in 1972 or it  was  to be ignored altogether.  It is obvious that if the appellant had already acquired the permanent  status  in the  Loco Department, he would be entitled to the benefit of previous service rendered by him in that Department, for the purpose  of  his  seniority  in  the  Carriage   and   Wagon Department where he was appointed in 1972. The finding recorded by the Tribunal, on this issue, is cryptic.  It has been recorded only by reason of the fact

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that  the Tribunal was of the opinion that the appellant had failed to prove that he was sent on transfer to Carriage and Wagon Department as khalasi and not as  a  fresh  appointee. The  Tribunal has observed that the mere fact that a railway pass  was  issued  to  the  appellant  for   proceeding   to Khanalampura  Goods  Yard,  Saharanpur and that joining time was also allowed to him could not  mean  that  he  was  sent there on   transfer.     These  factors  could  not  legally constitute the  basis  for  recording  a  finding  that  the appellant was not entitled to count the service, rendered by him in the Loco Department from 1964 to 1972 as Coal Khalasi towards  his seniority in the Carriage and Wagon Department. As a matter of fact, the duty of the Tribunal  was  to  have investigated   whether   the  appellant  who  was  initially appointed as Substitute Khalasi  and  who  had,  admittedly, acquired  the  temporary  status  had,  at  any  time,  been confirmed as Coal Khalasi  or  his  status  as  a  temporary Khalasi  continued till he was allegedly declared surplus in 1972.  This could be found out only  by  a  perusal  of  the Service  Records which was not done by the Tribunal nor were the relevant records produced by the respondents before  the Tribunal  to  enable it to come to the correct conclusion on this vital question.  It was for this reason that we, by our Order dated 3rd of February, 1998, directed the  respondents to produce  the original Service Record before us.  It is in pursuance of this Order that the respondents  have  produced the  original  Service  Book  of  the  appellant  and  other relevant records before us.  The second page of the  Service Book contains the following entry :- "Confirmed as Coal Khalasi w.e.f. 11-4-65. Sd/-                                         A.P.O. III" There  is  also  the  following  entries   made   by A.P.O.III :- "The following period of service have been verified verified  ‘from  the  available  service  records  and  will qualify for pension. From5.6.64to31.3.65 1.4.65to31.3.66 1.4.66 to31.3.67 1.4.67  to31.3.68 1.4.68  to 31.3.69 1.4.69to31.3.70 Sd/- A.P.O. III 1.4.70 to 31.3.71 Sd/- A.P.O. III" The third page of  the  Service  Book  Contains  the entries  regarding  the  appellant’s having passed the trade tests for the  posts  of  Semi-skilled  Fitter  and  Skilled Fitter and his consequent promotions on those posts. Mr.  N.N.Goswami, learned senior  counsel  appearing for  the  union  of India drew our attention to the order of appointment dated  30.5.1964  by  which  the  appellant  was appointed as  Substitute  Khalasi.   This document loses its significance as the personal file of the appellant  contains another document dated 30.3.1965 by which the appointment of the  appellant as Substitute Coal Khalasi was regularised as Temporary Coal Khalasi.  Then there is the endorsement  made in  the  Service  Book  that he is confirmed as Coal Khalasi with effect  from  11.4.1965.    Reading   these   documents together,  it  is  apparent  that  though  the appellant was initially  appointed  as  Substitute  Khalasi  in  1964,  he acquired  temporary  status  by  virtue  of  the order dated

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30.3.1965 and permanent status with effect from 11.4.1965 as per the entry contained in his Service Book. Mr. Goswami then drew our attention to the  "Notice" issued  by  the  Divisional  Office,  Northern  Railway, New Delhi, in September, 1972 which indicates that a  number  of Coal  Khalasis,  including  the  appellant who were rendered "surplus from shed under  LF  UMB  due  to  change  over  to contract system with effect from 16.9.1972" were absorbed on other  alternative posts. The appellant was absorbed as Coal Khalasi in the Carriage and Wagon Department and was  posted at Khanalampura Goods Yard, Saharanpur. A "Note" appended to this order reads as under :-            "Note:   The  absorption  of the above noted staff            are purely as a temporary measure.  They will  not            have any right of absorption in the category other            than for  which they are empanelled.  They will be            considered  for  posting  back  on  occurrence  of            vacancies on  loco  side  as  Kh.   Changes may be            advised promptly.            Sd/- Asstt.Personnel Officer/III N.Rly New Delhi" It is on the basis of this "Note" that Mr.    Goswami contended that it was not a case of transfer of the appellant from the Loco Department to Carriage and Wagon Department but was  a  case  of  absorption,  as a temporary measure, of the appellant who was declared surplus as  Coal  Khalasi  in  the Loco Department.    He  contended  that  this  was  enough to indicate that the  appellant  was  not  holding  a  permanent status  and  was  consequently treated to have been appointed afresh  in  1972  as  Khalasi  in  the  Carriage  and   Wagon Department  and  his seniority was rightly reckoned from that date with the result that the promotion orders  in  1978,  on the  post  of Semi-skilled Fitter and in 1979, on the post of skilled Fitter, could not have been  legally  issued  as  the appellant,  on  the  basis  of  his  seniority  was  not even entitled to be  called  for  trade  tests  much  less  to  be promoted on the posts in question.  The promotions were given to   the   appellant   on   these   posts  only  because  the Administration, by mistake, had given the benefit of  service rendered in the Loco Department from 1964 to 1972 towards his seniority in the Carriage and Wagon Department. Having  perused  the original record and having found that the appellant, who was initially appointed as Khalasi in 1964, was given temporary status in 1965  and  was  confirmed from  11.4.1965,  we  are of the positive opinion that it was not a case of mistake  on  the  part  of  Administration,  as contended by  Mr.    Goswami,  but they had rightly given the benefit of previous service to the appellant who  was,  as  a consequence  thereof,  rightly called for trade tests for the posts of Semi-skilled Fitter and Skilled  Fitter  and  having passed  those  tests  was  rightly  promoted  on those posts. There is,  however,  a  limited  reservation.    Whether  the service  rendered  by the appellant from the date on which he was appointed as Substitute Khalasi up to the date  on  which he acquired ’permanent’ status would be counted for seniority or  not  is  a  question  which  is  to  be  decided  by  the authorities in the light of the relevant  provisions  of  the Service  Rules contained in the Railway Establishment code or the Manual or circular letters of the Railway Board.  We may, however, make it clear that we are not deciding  any  dispute of  seniority  as  between  the  appellant and those who were already working in the Carriage & Wagon Department  when  the appellant came there.         What  will  be his seniority position in the Carriage and Wagon Department and where  will  he  be  placed  in  the

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senicrity  list  is  to  be  considered  and  decided  by the authorities of the Department and not by us as  this  dispute is not before us. On account of what has been said above, the reversion order  dated 18.4.1980, passed by the respondents, was wholly illegal and cannot be sustained. There is yet another infirmity in the impugned  order of reversion.    The  appellant  had  been allowed benefit of service  rendered  by  him  as  Coal  Khalasi  in  the   Loco Department  from  1964  to  1972  as  that period was counted towards his seniority and it was no that basis  that  he  was called for the trade tests which the appellant had passes and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled  Fitter.    If the benefit of service rendered by him from 1964 to  1972  was  intended  to  be  withdrawn  and promotion  orders  were to be cancelled as having been passes on account of mistake, the respondents ought  to  have  first given an  opportunity  of  hearing  to  the  appellant.   The appellant having earned two promotions  after  having  passed the  trade  tests,  could  not have been legally reverted two steps below and brought back to the post of  khalasi  without being  informed  that  the  period of service rendered by him from 1964 to 1972 could not be counted towards his  seniority and, therefore,  the promotion orders would be cancelled.  In a  situation  of  this  nature,  it  was  not  open  to   the respondents  to have made up their mind unilaterally on facts which could have been  shown  by  the  appellant  to  be  not correct  but  this  chance never came as the appellant, at no stage, was informed  of  the  action  which  the  respondents intended to take against him. The  respondents,  curiously, over looked the Service Record of the appellant which contained material documents to indicate  that  the  appellant  had  already   acquired   the permanent status.    These  documents  could  not  have  been legally ignored but the respondents, for reasons  best  known to them,  did  otherwise.    We  cannot  but categories their conduct as wholly arbitrary and bad in law. The Tribunal had also  dismissed  the  claim  of  the appellant  on  the ground of limitaiton. This finding, in our opinion, is also not correct. The  appellant was reverted by order dated 18.4.1980. It was in 1980 that he filed the suit  for  several  reliefs, including  the  relief  for  declaration that the order dated 18.4.1980, by which he was reverted, was  wrong  and  illegal and  that  he was entitled to continue on the post of Fitter, to which he was promoted on 9.5.1979.  The suit  was  decreed by  the  trial court by its judgment dated 13.11.1981 against which the Railway Administration had filed an appeal.  during the pendency of the appeal, Central Administrative  Tribunals were established under the Administrative Tribunals Act, 1985 and  , therefore, the appeal was transferred to the Allahabad Bench of the Tribunal which, by its judgment and order  dated 18.4.1988, allowed the appeal and set aside the decree passed by  the trial court with a direction that the plaint shall be returned  to  the  appellant  for  being  filed  before   the appropriate Bench of the Tribunal.  Thereafter, the appellant filed   the   Original  Application  on  12.12.1988  with  an application  for  condonation  of  delay,  in  which  it  was indicated  that he had received back the plaint on 20.8.1988, though in the affidavit  in  support  thereof  this  date  is indicated as  20.10.1988.   There was, thus, a delay of about one and half month in the filing of the O.A., which  has  not been condoned by the Tribunal. The period of limitation within which Claim Petitions can be filed before the Tribunal is indicated in  Section  21

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of the Act.  The contingencies contemplated by Section 21 are not applicable  to  the  present case.  The suit, admittedly, was filed within time.  It is  another  matter  that  it  was filed  in  a  court which had no jurisdiction and, therefore, the Tribunal, while allowing the  appeal  filed  against  the decree  passed  by the trial court, directed the plaint to be returned  to  the  appellant  for  presentation  before   the appropriate bench  of  the Tribunal.  Some delay had occurred in the re-filing of the plaint before  the  Tribunal  and  as pointed  out by the Tribunal itself the delay was only of one and half month, although, at one place, the Tribunal observed that there was a delay of about eight months.  The period  of eight  months  has  been  calculated by the Tribunal from the date on which an order was passed at Allahabad for the return of the plaint.  The limitation would not run from the date of the order, but would run from the date on  which  the  plaint was  returned  and  made  available  to the appellant, if the appellant was not at fault.  Two dates have been mentioned on which the plaint was returned  :    in  the  application  for condonation  of  delay,  the  date  mentioned  is 20.10.1998. Since the O.A.  was filed before the Tribunal on  12.12.1998, there was delay of either three and a half month or one and a half  month,  but  not a delay of eight months as observed by the Tribunal.  The Tribunal had itself observed in an earlier part of its judgment that there was a delay of one  and  half month only. Be  that  as  it  may,  the  fact  remaing  that  the litigative  process was started by the appellant in 1980 when he  filed  the  suit,  though  in  a  wrong   Court,   within limitation.   Now at this late stage, it will be too much for a poor employee of the status of appellant to be  driven  out of  the  court  on the ground of limitation, namely, that his O.A.  was beyond time by one and half month or three and half months.  Whatever be the delay in filing the O.A.  before the Tribunal, the same is hereby condoned and the  order  of  the Tribunal  to  that  effect  shall be treated to have been set aside. For the reasons stated above, the appeal  is  allowed and  the  judgment  and  order dated 28.11.1995 passed by the Tribunal is set aside with the direction that  the  appellant shall  be  put  back  to  duty on the post of Fitter with all consequential benefits. There will be no order as to costs.