Vs. Union of India  INSC 539 (13 November 1998)
Ahmad, S.P.Kurdukar S. Saghir Ahmad. J.
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
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.
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.
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.
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 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.
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.
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
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.
finding recorded by the Tribunal, on this issue, is cryptic. It has been
recorded only by reason of the fact 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.
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.
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
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.
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 30.3.1965
and permanent status with effect from 11.4.1965 as per the entry contained in
his Service Book.
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.
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.
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.
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.
will be his seniority position in the Carriage and Wagon Department and where
will he be placed in the 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.
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.
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.
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.
Tribunal had also dismissed the claim of the appellant on the ground of limitaiton.
This finding, in our opinion, is also not correct.
appellant was reverted by order dated 18.4.1980.
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
period of limitation within which Claim Petitions can be filed before the
Tribunal is indicated in Section 21 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.
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.
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.
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.