.K. Modak & ors. Vs. Sheo Shankar Pandey & ors.
EmailAppeal: Civil Appeal No. 2727 of 1991
Petitioner: .K. Modak & ors.
Respondent: Sheo Shankar Pandey & ors.
Apeal: Civil Appeal No. 2727 of 1991
Judges: LALIT MOHAN SHARMA, J.S. VERMA & K. JAYACHANDRA REDDY, JJ.
Date of Judgment: Feb 13, 1992
Head Note:
SERVICE AND LABOUR LAW
Indian Railways Establishment Manual, Volume I:
Chapter I, Paragraphs 136(3), 140 and 320 – Goods driver – Direct recruits vs. Foreman Drivers shifted from the steam section – Inter se seniority – Matter remitted to Tribunal for decision afresh.
JUDGEMENT:
SHARMA, J. :
1. Civil Appeals Nos. 2727 and 2728 of 1991 arise out of a petition filed before the Central Administrative Tribunal, Patna and numbered as O.A. 222 of 1989 by the appellants in Civil Appeals Nos. 2728 and 2729 of 1991 who are respondents in Civil Appeal No. 2727 of 1991 questioning the provisional gradation list of Electric Goods Drivers prepared by the South-East Railways, with a prayer for a direction to finalise the same on the basis of their claim of seniority. Another petition registered as O.A. 13 of 1990 by the Tribunal has given rise to Civil Appeal No. 2729 of 1991. The relevant facts are briefly stated below.
2. Earlier there was only the steam type of traction in the country. Later the diesel type was also introduced and further later in 1963 the electric traction system was also added. Consequently there was surplus in the staff engaged in the steam type of traction and at the same time it became necessary to man the electric traction system. The twin problems were solved by shifting some of the Foremen from the steam section, found suitable, to the electric traction system, and filling up the remaining vacancies by direct recruitment. The dispute in the present appeals is in regard to the seniority of these two groups.
3. In 1970 the gradation list of the Assistant Electric Drivers was prepared in which the Foreman Drivers shifted from the steam section were placed above the direct recruits, who challenged the same by filing a suit, registered as Title Suit No. 1 of 1973 in Munsiff’s court. The trial court decreed the suit and the decision was upheld in appeal preferred by the Department and its officials. The matter was taken in second appeal to the High Court, which, however, was dismissed, without examination on merits, on the ground of having been rendered defective by reason of negligence of the appellants. A special leave petition was also dismissed in 1989 and the decree of the trial court, thus, became final.
4. It was not before about 16 years that the first round of litigation between the parties came to an end and only then the preparation of the final gradation list was taken up. In the meantime many orders of promotion were passed and the process of filling up the other vacancies in the higher service had also commenced. The gradation list which was prepared, was, therefore, not that of the Assistant Electric Drivers but of the Goods Drivers, in which the Foreman Drivers, shifted from the steam section, were shown as juniors. They challenged the seniority list by filing O.A. No. 222 of 1989 giving rise to the present Civil Appeals Nos. 2727 and 2728 of 1991. It was inter alia pleaded that the gradation list was fit to be quashed as 39 of the Foremen had already been promoted as Shunters before the suit was filed, another 15 were promoted during its pendency and the remaining 17 were promoted subsequently. The Tribunal accepted the claim of the first two categories consisting of 39 and 15 Foremen but rejected the plea of the remaining 17 by a judgment dated January 18, 1990. These 17 Foremen have filed Civil Appeal No. 2728 of 1991.
5. The direct recruits have, in Civil Appeal No. 2727 of 1991, challenged the decision of the Tribunal so far it has allowed the claim of the aforesaid 54 Foremen, contending that the decree in the title suit having become final, has not only to be given effect to with reference to the Assistant Electric Drivers, but should be respected at the higher levels after promotion as well.
6. The Foreman Drivers were also not reconciled with the decision in Title Suit No. 1 of 1973 and filed an application before the Central Administrative Tribunal, Patna, numbered as O.A. No.13 of 1990, against the decision of the first appellate court in the suit with a prayer to condone the delay, on the ground that the earlier Second Appeal before the High Court had not been preferred by them, and had been dismissed for a technical reason without going into the merits. This application was dismissed by the Tribunal by the judgment dated January 25, 1990, which is under challenge in Civil Appeal No. 2729 of 1991.
7. Mr. Shanti Bhushan, appearing on behalf of the Foremen Drivers has analysed the provisions of the Indian Railways Establishment Manual, Volume I, Chapter I, and has argued as mentioned hereafter in this paragraph. The Manual indicates that the posts of Shunters are higher than those of First Foremen and Electric Assistants and next higher rank is that of Goods Drivers. A perusal of the paragraphs 135 to 140 of this Chapter (Section B), indicates that the pay-scale of the First Firemen, Diesel Assistants and Electric Assistants are the same (being Rs.950 – 1500), suggesting that the Electric Assistants cannot be treated to be higher than the First Fireman. Dealing with the filling up of the vacancies in the posts of Electric Assistants, paragraph 138 directs “50% of the vacancies shall be filled by lateral induction from amongst First Firemen…” and “in the case of shortfall by promotion by usual selection procedure from amongst Second Firemen…”. Clear distinction has been made between the two categories, that is, First Firemen and Second Firemen and purposely the terms ” lateral induction” and “promotion” have been respectively used, once more leading to the same conclusion that so far the First Firemen are concerned they are to be treated at par with Electric Assistants, and therefore, can be transferred from one category to another by “lateral induction” . It is significant to note that as indicated in sub-para (1) (b) and (c) of paragraph 138 the remaining 50% of the vacancies have to be, in the first instance, filled up by First Firemen with better qualifications by “lateral induction” and if necessary by another category of Second Firemen by “promotion” and if still some vacancies are left unfilled, only then steps for direct recruitment have to be taken. Paragraph 136 (3) providing for the promotion of the First Firemen as Steam Shunters without being laterally inducted as Electric Assistants, and paragraph 138 (2) permitting posts of Shunters to be avenue of promotion for Electric Assistants are consistent with this position.
8. Mr. Shankar Ghosh, appearing in support of Civil Appeal No. 2727 of 1991 reiterated the plea taken before the Tribunal that the decree in the title suit having become final, the same has to be given full effect and the seniority list of the Goods Drivers must, therefore, reflect the same.
9. In reply Mr. Shanti Bhushan, in the first instance, prays for reopening the controversy settled by the decree in the suit. He suggests that for this purpose the Civil Appeal No. 2729 of 1991 has been filed. The learned counsel argues that a correct analysis of the relevant rules, as mentioned above, clearly indicates that the earlier decision was erroneous and calls for rectification. We have considered the matter closely and do not find ourselves in a position to agree with the learned counsel. This aspect, which has been emphasised before us by the learned counsel, was available to the appellants to press in the earlier Special Leave Petition, and we presume that it must have been taken into consideration by this Court before rejecting the petition in 1989. It will, therefore, be not right to allow the appellants to reopen the matter, and Civil Appeal No. 2729 of 1991 is accordingly dismissed, but without costs.
10. So far the dispute in the other two appeals is concerned the position is different. It is true that the decision in the 1973 suit has become final and the parties are bound by it, but the issue which was settled there, was the seniority question, only in the cadre of the Assistant Electric Drivers. it has been contended by Mr. Shanti Bhushan that the further promotions were not dependent on the inter se seniority in that category. Before the parties could reach that level, they had to successfully cross the intermediate stage, as is clear from paragraphs 136 (3) and 140. The note under paragraph 140 further states that the vacancies in the category of Goods Drivers are filled by selection. It is, accordingly, argued that the seniority in the cadre of Goods Drivers is dependent on other considerations.
11. Mr. Ghosh replied by saying that in any event the Tribunal had to indicate a valid ground for quashing the impugned gradation list of the Goods Drivers under challenge, which has not been done. The Tribunal has merely stated, and that too erroneously, that the decree is not binding on the Foremen who had been promoted before it was passed. Mr. Ghosh also relied upon two decisions of this Court in support of his proposition that the direct recruits must be treated as superiors to the Foremen and the seniority of the latter must relate to the date of their transfer to the Electric side and not earlier. On the other hand Mr. Shanti Bhushan has argued that the question of seniority as Goods Drivers has to be decided in accordance with the actual date of appointment as Goods Drivers in view of paragraph 320 and certain other provisions; and their inter se seniority at the lower levels is not relevant. He has attempted to distinguish the cited decisions on the ground that the dispute there was between Electric Assistants and Second Firemen, who are definitely inferior in rank to both the Electric Assistants and the First Foremen. In our view the decision upholding the seniority of the direct recruits as Assistant Electric Drivers having become final by the decree of the civil court, it is not necessary to consider the cited decisions, but the remaining arguments of the learned advocates for the parties are pertinent for resolving the present dispute and do not appear to have been adverted to in the impugned judgment. The matter, therefore, requires reconsideration by the Tribunal.
12. We have not been able to discover any reason for differentiating the 17 appellants of Civil Appeal No. 2728 of 1991 whose claim has been rejected by the Tribunal from the other First Foremen, and nothing substantial has been suggested by the learned counsel.
13. For the reasons indicated above we hold:-
a) The decree in the Title Suit No.1 of 1973 became final and the parties are bound by the same.
b) The decree, aforesaid, settled the question of inter se seniority only in the grade of Assistant Electric Drivers and no further.
c) The question of the seniority of the parties in the category of Goods Drivers has to be decided in accordance with the decision on the rival contentions of the parties as indicated in paragraph 11 above.
d) The direction in the impugned judgment to prepare a final gradation list of the Goods Drivers is correct, but the observations in paragraph 13 and 14 of the impugned judgment have to be ignored and instead the Tribunal will have to indicate the correct criteria after rehearing the parties.
e) The same principle will govern the entire category of First Firemen including the 17 appellants in the Civil Appeal No. 2728 of 1991 and they will either succeed or fail along with the other First Firemen.
14. In the result Civil Appeals Nos. 2727 of 1991 and 2728 of 1991 are allowed, the impugned judgment is set aside and the matter is remitted to the Central Administrative Tribunal for fresh decision in the light of the observations made above. There will be no order as to costs.
1. Civil Appeals Nos. 2727 and 2728 of 1991 arise out of a petition filed before the Central Administrative Tribunal, Patna and numbered as O.A. 222 of 1989 by the appellants in Civil Appeals Nos. 2728 and 2729 of 1991 who are respondents in Civil Appeal No. 2727 of 1991 questioning the provisional gradation list of Electric Goods Drivers prepared by the South-East Railways, with a prayer for a direction to finalise the same on the basis of their claim of seniority. Another petition registered as O.A. 13 of 1990 by the Tribunal has given rise to Civil Appeal No. 2729 of 1991. The relevant facts are briefly stated below.
2. Earlier there was only the steam type of traction in the country. Later the diesel type was also introduced and further later in 1963 the electric traction system was also added. Consequently there was surplus in the staff engaged in the steam type of traction and at the same time it became necessary to man the electric traction system. The twin problems were solved by shifting some of the Foremen from the steam section, found suitable, to the electric traction system, and filling up the remaining vacancies by direct recruitment. The dispute in the present appeals is in regard to the seniority of these two groups.
3. In 1970 the gradation list of the Assistant Electric Drivers was prepared in which the Foreman Drivers shifted from the steam section were placed above the direct recruits, who challenged the same by filing a suit, registered as Title Suit No. 1 of 1973 in Munsiff’s court. The trial court decreed the suit and the decision was upheld in appeal preferred by the Department and its officials. The matter was taken in second appeal to the High Court, which, however, was dismissed, without examination on merits, on the ground of having been rendered defective by reason of negligence of the appellants. A special leave petition was also dismissed in 1989 and the decree of the trial court, thus, became final.
4. It was not before about 16 years that the first round of litigation between the parties came to an end and only then the preparation of the final gradation list was taken up. In the meantime many orders of promotion were passed and the process of filling up the other vacancies in the higher service had also commenced. The gradation list which was prepared, was, therefore, not that of the Assistant Electric Drivers but of the Goods Drivers, in which the Foreman Drivers, shifted from the steam section, were shown as juniors. They challenged the seniority list by filing O.A. No. 222 of 1989 giving rise to the present Civil Appeals Nos. 2727 and 2728 of 1991. It was inter alia pleaded that the gradation list was fit to be quashed as 39 of the Foremen had already been promoted as Shunters before the suit was filed, another 15 were promoted during its pendency and the remaining 17 were promoted subsequently. The Tribunal accepted the claim of the first two categories consisting of 39 and 15 Foremen but rejected the plea of the remaining 17 by a judgment dated January 18, 1990. These 17 Foremen have filed Civil Appeal No. 2728 of 1991.
5. The direct recruits have, in Civil Appeal No. 2727 of 1991, challenged the decision of the Tribunal so far it has allowed the claim of the aforesaid 54 Foremen, contending that the decree in the title suit having become final, has not only to be given effect to with reference to the Assistant Electric Drivers, but should be respected at the higher levels after promotion as well.
6. The Foreman Drivers were also not reconciled with the decision in Title Suit No. 1 of 1973 and filed an application before the Central Administrative Tribunal, Patna, numbered as O.A. No.13 of 1990, against the decision of the first appellate court in the suit with a prayer to condone the delay, on the ground that the earlier Second Appeal before the High Court had not been preferred by them, and had been dismissed for a technical reason without going into the merits. This application was dismissed by the Tribunal by the judgment dated January 25, 1990, which is under challenge in Civil Appeal No. 2729 of 1991.
7. Mr. Shanti Bhushan, appearing on behalf of the Foremen Drivers has analysed the provisions of the Indian Railways Establishment Manual, Volume I, Chapter I, and has argued as mentioned hereafter in this paragraph. The Manual indicates that the posts of Shunters are higher than those of First Foremen and Electric Assistants and next higher rank is that of Goods Drivers. A perusal of the paragraphs 135 to 140 of this Chapter (Section B), indicates that the pay-scale of the First Firemen, Diesel Assistants and Electric Assistants are the same (being Rs.950 – 1500), suggesting that the Electric Assistants cannot be treated to be higher than the First Fireman. Dealing with the filling up of the vacancies in the posts of Electric Assistants, paragraph 138 directs “50% of the vacancies shall be filled by lateral induction from amongst First Firemen…” and “in the case of shortfall by promotion by usual selection procedure from amongst Second Firemen…”. Clear distinction has been made between the two categories, that is, First Firemen and Second Firemen and purposely the terms ” lateral induction” and “promotion” have been respectively used, once more leading to the same conclusion that so far the First Firemen are concerned they are to be treated at par with Electric Assistants, and therefore, can be transferred from one category to another by “lateral induction” . It is significant to note that as indicated in sub-para (1) (b) and (c) of paragraph 138 the remaining 50% of the vacancies have to be, in the first instance, filled up by First Firemen with better qualifications by “lateral induction” and if necessary by another category of Second Firemen by “promotion” and if still some vacancies are left unfilled, only then steps for direct recruitment have to be taken. Paragraph 136 (3) providing for the promotion of the First Firemen as Steam Shunters without being laterally inducted as Electric Assistants, and paragraph 138 (2) permitting posts of Shunters to be avenue of promotion for Electric Assistants are consistent with this position.
8. Mr. Shankar Ghosh, appearing in support of Civil Appeal No. 2727 of 1991 reiterated the plea taken before the Tribunal that the decree in the title suit having become final, the same has to be given full effect and the seniority list of the Goods Drivers must, therefore, reflect the same.
9. In reply Mr. Shanti Bhushan, in the first instance, prays for reopening the controversy settled by the decree in the suit. He suggests that for this purpose the Civil Appeal No. 2729 of 1991 has been filed. The learned counsel argues that a correct analysis of the relevant rules, as mentioned above, clearly indicates that the earlier decision was erroneous and calls for rectification. We have considered the matter closely and do not find ourselves in a position to agree with the learned counsel. This aspect, which has been emphasised before us by the learned counsel, was available to the appellants to press in the earlier Special Leave Petition, and we presume that it must have been taken into consideration by this Court before rejecting the petition in 1989. It will, therefore, be not right to allow the appellants to reopen the matter, and Civil Appeal No. 2729 of 1991 is accordingly dismissed, but without costs.
10. So far the dispute in the other two appeals is concerned the position is different. It is true that the decision in the 1973 suit has become final and the parties are bound by it, but the issue which was settled there, was the seniority question, only in the cadre of the Assistant Electric Drivers. it has been contended by Mr. Shanti Bhushan that the further promotions were not dependent on the inter se seniority in that category. Before the parties could reach that level, they had to successfully cross the intermediate stage, as is clear from paragraphs 136 (3) and 140. The note under paragraph 140 further states that the vacancies in the category of Goods Drivers are filled by selection. It is, accordingly, argued that the seniority in the cadre of Goods Drivers is dependent on other considerations.
11. Mr. Ghosh replied by saying that in any event the Tribunal had to indicate a valid ground for quashing the impugned gradation list of the Goods Drivers under challenge, which has not been done. The Tribunal has merely stated, and that too erroneously, that the decree is not binding on the Foremen who had been promoted before it was passed. Mr. Ghosh also relied upon two decisions of this Court in support of his proposition that the direct recruits must be treated as superiors to the Foremen and the seniority of the latter must relate to the date of their transfer to the Electric side and not earlier. On the other hand Mr. Shanti Bhushan has argued that the question of seniority as Goods Drivers has to be decided in accordance with the actual date of appointment as Goods Drivers in view of paragraph 320 and certain other provisions; and their inter se seniority at the lower levels is not relevant. He has attempted to distinguish the cited decisions on the ground that the dispute there was between Electric Assistants and Second Firemen, who are definitely inferior in rank to both the Electric Assistants and the First Foremen. In our view the decision upholding the seniority of the direct recruits as Assistant Electric Drivers having become final by the decree of the civil court, it is not necessary to consider the cited decisions, but the remaining arguments of the learned advocates for the parties are pertinent for resolving the present dispute and do not appear to have been adverted to in the impugned judgment. The matter, therefore, requires reconsideration by the Tribunal.
12. We have not been able to discover any reason for differentiating the 17 appellants of Civil Appeal No. 2728 of 1991 whose claim has been rejected by the Tribunal from the other First Foremen, and nothing substantial has been suggested by the learned counsel.
13. For the reasons indicated above we hold:-
a) The decree in the Title Suit No.1 of 1973 became final and the parties are bound by the same.
b) The decree, aforesaid, settled the question of inter se seniority only in the grade of Assistant Electric Drivers and no further.
c) The question of the seniority of the parties in the category of Goods Drivers has to be decided in accordance with the decision on the rival contentions of the parties as indicated in paragraph 11 above.
d) The direction in the impugned judgment to prepare a final gradation list of the Goods Drivers is correct, but the observations in paragraph 13 and 14 of the impugned judgment have to be ignored and instead the Tribunal will have to indicate the correct criteria after rehearing the parties.
e) The same principle will govern the entire category of First Firemen including the 17 appellants in the Civil Appeal No. 2728 of 1991 and they will either succeed or fail along with the other First Firemen.
14. In the result Civil Appeals Nos. 2727 of 1991 and 2728 of 1991 are allowed, the impugned judgment is set aside and the matter is remitted to the Central Administrative Tribunal for fresh decision in the light of the observations made above. There will be no order as to costs.
