1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : D.B. Civil Writ Petition No.839/2002. (Gopal Singh Vs. Union of India & Others) DATE OF ORDER : April 02, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Kuldeep Mathur for the petitioner. Mr. Salil Trivedi for the respondent(s). BY THE COURT : (Per Hon'ble Mr. Vyas, J.) In this writ petition, the petitioner has prayed for quashing order dated 19.09.2001 passed by the Central Administrative Tribunal in Original Application No.218/1997 and prayed that order dated 16.05.1997 passed by respondent No.3 may be quashed and set aside and, further, respondents may be directed to promote the petitioner on the post of Senior Clerk in the grade of Rs.1200-2040 with effect from 12.02.1995 when he actually eligibility for promotion to the next higher post in Group – C under the Railways service. Brief facts of the case are that the petitioner was appointed in the year 1993 in the Western Railway on 2 the post of Office Clerk in the grade of Rs.950-1500 vide order dated 12.04.1993. The petitioner moved an application in the Western Railway for his transfer from Western Railway to Northern Railway at Jodhpur and, in the application so filed by the petitioner, it was specifically mentioned that he is ready to accept the bottom seniority in his cadre at the transfer place if his request for transfer is accepted. The prayer of the petitioner for transfer was accepted and vide order dated 09.03.1994 he was transferred at the Statistical & Analysis Branch, Northern Railway, Jodhpur and in the order of transfer it was clearly mentioned that the petitioner shall be given bottom seniority at the transferred place as his transfer has been made upon his own request. The case of the petitioner is that as per order of the Railway Board, being No.E(NG)I-85-PMI-13-(RRC) dated 19.02.1987, certain recommendations were accepted with regard to promoting employees within Group-C of the Railways and, for the said purpose, it was provided that, “minimum period of service for eligibility for promotion within Group-C shall be two years in the immediate lower irrespective of whether the employee belongs to reserved community or not.” 3 As per the petitioner, upon perusal of the above order, it is abundantly clear that any employee of Group-C shall become eligible for promotion within the Group, therefore, as per petitioner, being an appointee of the year 1993, he became eligible for promotion on the next higher post which is Senior Clerk in the year 1995. But, inspite of availability of vacant post of Senior Clerk, the respondents did not take action for conducting examination for adjudging suitability for promotion to the next higher post, therefore, a representation was made by the petitioner to the higher authorities, in which, he raised the grievance. In the representation submitted by the petitioner, it was specifically mentioned that he fulfills all eligibility conditions for promotion as per order dated 19.02.1987, therefore, action may be taken for promotion and his grievance may be settled down but no action was taken upon the representation filed by the petitioner for promotion for near-about one year; and, later on, on 02.05.1996, written test was conducted to adjudge the suitability of the petitioner for promotion to the post of Senior Clerk. The result of the written test was declared on 06.05.1996, in which, the petitioner was found suitable and accorded 4 promotion along with other successful candidates. Case of the petitioner before the Central Administrative Tribunal was that once the petitioner became eligible for promotion the next higher post in the year 1995 against vacant post but his suitability was not adjudged at the right time and his promotion was delayed. Therefore, again, a representation was filed by the petitioner to the Deputy Personnel Officer, Northern Railways, New Delhi requesting to promote him on the post of Senior Clerk with effect from 12.02.1995, the date on which he acquired the eligibility for promotion. But, vide letter dated 16.05.1997 the respondents informed the petitioner that his representation has been rejected, against which, the petitioner preferred original application in which notices were filed and, after service of notice, the respondents filed reply. In their reply to the original application before the Tribunal, the respondents categorically stated that admittedly the petitioner was initially appointed in the western Railway at Ratlam and, upon his request while incorporating the condition that he may be given bottom seniority, he was transferred to the Northern Railway and, admittedly, as per circular dated 5 19.021997 which provides minimum eligibility condition of having rendered two years service in the next lower grade for promotion to the higher grade within Group – C, the petitioner's seniority was to be counted from the date of his transfer and as per clarification of the Railway Board circular dated 17.04.1997, it was decided that since transfer of a Railway servant on request on bottom seniority takes place against direct recruitment quota he should be treated as a direct recruit in the new seniority unit/cadre for the purpose of seniority and, therefore, the service rendered in the absorbing unit alone will count for eligibility wherever a minimum length of service is specified as a condition for consideration for promotion including promotion to general selection posts. But, admittedly, the petitioner's case was considered in the year 1996 and he was accorded promotion in the year 1996 when he cleared the written examination, therefore, no illegality has been committed by the respondents. Therefore, while considering the reply given by the respondents, the learned Tribunal rightly dismissed the original application vide the impugned judgment which is under challenge in this writ petition. After hearing both the parties, we have 6 considered record of the case. Admittedly, the petitioner was initially appointed as Office Clerk on 12021993 and, upon his request, he was transferred at Statistical and Analysis Branch, Northern Railway, Jodhpur vide order dated 09.03.1994 and it was specifically stated in the said order that the petitioner shall be placed at the bottom seniority at the transferred place because the transfer has been made on his own request; meaning thereby, the petitioner was borne in the cadre of Northern Railway on 09.03.1994 and, as per Railway Board order dated 19.02.1987 recommendation with regard to promoting the employees within Group-C, the Railway Board decided that minimum period of service for eligibility for promotion within Group-C shall be two years minimum irrespective of whether the employee in the next lower grade for promotion to the higher grade. Thereafter, for the purpose of promotion, written test was conducted on 02.05.1996 and, till that date, the petitioner completed two years of service in the Northern Railway, therefore, he was allowed to appear in the written-examination in which he was declared successful and, consequently, he was promoted vide order dated 06.05.1996 alongwith other successful 7 candidates. It is also worthwhile to observe that for the purpose of counting services rendered in the old unit, in the event of “own request transfer”, clarification was sought from the Railway Board and vide circular dated 17.04.1997 the position in this regard was clarified. The said circular dated 17.04.1997 reads as under : “The question whether a Railway servant who joins another seniority unit on transfer on request on bottom seniority loses only his seniority or also service rendered in the previous unit for the purpose of eligibility for consideration for promotion in the new seniority unit, wherever a minimum service condition is specified, has been considered by the Board in the light of a clarification sought for in this regard by one of the Railway Administration. 2. It has been decided that since transfer of a Railway servant on request on bottom seniority takes place against direct recruitment quota, he should be treated as a direct recruit in the new seniority unit/cadre for the purpose of seniority and therefore the service rendered in the absorbing unit alone will count for eligibility wherever a minimum length of service is specified as a condition for consideration for promotion including promotion to general selection posts. 3. Past cases decided otherwise need not be re-opened.” Upon perusal of the above circular dated 17.04.1997, it is abundantly clear that the Railway 8 Board has clarified that if transfer of a Railway servant is made on his own request on bottom seniority, it takes place against the direct recruitment quota and the said employee should be treated as a direct recruit on the date of transfer in the new seniority unit/cadre for the purpose of counting his service for eligibility for promotion; meaning thereby, learned Tribunal while taking into consideration the above circular opined that the petitioner is not entitled to claim the period of service rendered in the Western Railway because he was transferred from the Western Railway to Northern Railway on his own request. In our opinion, when expressly a decision was taken by the Railway Board and, upon consideration of the clarification, we find that petitioner cannot claim seniority on the basis of services rendered in the old unit/cadre (Western Railway), then, he is not entitled to claim eligibility of two years from the date of his initial appointment on 12.02.1993 in the Western Railway. We have also perused the judgment cited by learned counsel for the petitioner, reported in AIR 1994 S.C. 1152, Smt. Renu Malik Vs. Union of India. After perusal of the said judgment, we are of the opinion that in that case clarification was issued for altogether 9 different purpose because 8 junior persons of the appellant of that case were promoted. Here, in the present case, no junior person has been promoted to prior of the promotion of the petitioner. Therefore, facts of the cited case do not apply in this case. The judgment in Smt. Renu Malik's case is altogether on different facts and grounds. Here, in this case, specific clarification has been issued by the Railway Board in unambiguous terms on 17.04.1997. The petitioner cannot claim any relief in this writ petition because no error has been committed by the learned Tribunal while passing the impugned order dated 19.09.2001 in Original Application No.218/1997. Hence, this writ petition is dismissed. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.