IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No. 21178 of 1999 Between: 1 M.Surendranath Reddy S/o.Subba Reddy Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad 2 OLN Sharma S/o.Venkata Subbaiah Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 3 VSR Sarma S/o.Hanumantha Rao Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 4 Ratnam S/o.A.Kuruz Michal Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 5 KN Bhaskara Rao (Died) S/o.K.L.Kantha Rao Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 6 M.Sreedhar Reddy S/o.Muttaiah Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Babh Ameerpet,Hyderabad. 7 NVV Satyanarayana S/o.Venkanna Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad 8 M.Krishna Reddy S/o.Nagi Reddy Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 9 K.Lingaiah S/o.Danaiah Electrical Loco Shed S.C.Railway,Lalaguda,Hyderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 10 M.Prakash Pal S/o.Bhoorlal Pal Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 11 Katta Rethnam S/o.Ammaiah Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 12 K.V.M.Sarma S/o.Ramchandra Rao Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 13 Ch.Nimmorod S/o.Ishaiah Electrical Loco Shed S.C.Railway,Vijayawada R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 14 M.Kondaiah S/o.Lachanna Electrical Loco Shed S.C.Railway,Vijayawada R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 15 K.Sarabhachary S/o.Koteswara Rao Electrical Loco Shed S.C.Railway,Lalaguda,Hyderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 16 B.Taraknath S/o.Surya Rao Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet,Hyderabad. 17 K.Kalyanasundram S/o.B.Subramaniam Electrical Loco Shed S.C.Railway,Lalaguda,Secunderabad R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Amberpet,Hyderabad. 18 K.Ramadevi W/o.Late K.N.Bhaskara Rao R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet Hyderabad 19 K.V.N.S.Vidya Rani D/o.Late K.N.Bhaskara Rao R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet Hyderabad 20 K.Satya Vani D/o.Late K.N.Bhaskara Rao R/o.Flat.No.S-2,Sidhartha Classic Apartments Bagh Ameerpet Hyderabad ..... PETITIONERS AND 1 Chairman Railway Board Rail Bhavan New Delhi. 2 General Manager S.C.Railway Rail Nilayam Secunderabad. 3 Chief Personnel Officer S.C.Railway Rail Nilayam Secunderabad. 4 Ch.Durga Prasad Section Engineer Electrical Loco Shed Vijayawada. 5 P.Ravindranath Electrical Loco Shed Vijayawada. 6 JRK Chowdary Electrical Loco Shed Vijayawada 7 Central Administrative Tribunal Hyderabad Bench Hyderabad ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction or writ, particularly one in the nature of Writ of Certiorari, under Article 226 of the Constitution of India calling for the records in O.A.No.1126 of 1997 from the file of the Central Administrative Tribunal ,Hyderabad Bench at Hyderabad, the 7th respondent herein, the quash the order dated:26-08-1999 and also set aside the provisional seniority list published vide letter No.9.612/EL/TRS/Vol.II, dated-10-09-1996, giving the petitioners bottom seniority in their respective grades and also set aside the order issued by the Chief Personnel Officer,South Central Railway rejecting the representations of the petitioners, in letter No.P.612/EL/TRS/Vol.II, dated:04-11-1996 and direct the respondents 1 to 3 to assign seniority to the petitioners based on the date of the entry into the grade and pass such other order or orders. Counsel for the Petitioners: MR.P.KRISHNA REDDY Counsel for the Respondents: MR.R.S.MURTHY The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.21178 of 1999 ORDER: (Per HON’BLE SRI JUSTICE C.V. RAMULU) This Writ Petition is directed against an Order dated 26-8-1999 made in O.A.No.1126 of 1997 on the file of Central Administrative Tribunal, Hyderabad Bench at Hyderabad, whereunder the claim of the petitioners herein for reckoning their seniority from the date of their initial appointment in the Steam Loco Shed, on their transfer to the Electric Loco Shed, was rejected. It appears, petitioners, while working as Senior Section Engineers in the steam loco shed, were transferred to electric loco shed in the same capacity. They were given bottom seniority in the cadre in which they were transferred. Before transferring them to electric loco shed, options were called for from them by Memo No.P/652/Mech./Surplus/Supervisors, dated 2-9-1993. Thereafter, the petitioners were absorbed in the electric loco shed, Lalaguda, Secunderabad in the same grade with bottom seniority. A provisional seniority list was issued on 10-9-1996. Petitioners submitted a representation to the 2nd respondent on 21-9-1996 bringing to his notice as to the irregularities in the provisional seniority list of Traction Rolling Stock (TRS) cadre (Rs.2375-3500, 2000-3200, 1600-2660). The main objection to the provisional seniority list was, as to treat their seniority as a separate block duly protecting their promotional prospects. The same was, however, rejected by a letter dated 4-11-1996 of the Chief Personnel Officer, Headquarters Office, South Central Railway, Secunderabad which reads as under: “The representations of the 14 steam surplus supervisors, who are absorbed in TRS Organization, received vide your letter cited above, regarding assignment of seniority to them in TRS cadre have been examined and they may be advised as under: i. Options were called for from steam Supervisors for absorption in TRS cadre on bottom seniority and most of them had opted for absorption in TRS on bottom seniority. ii. The matter regarding assignment of seniority to them has been examined duly keeping in view all relevant instructions, the directives of the CAT in O.A.Nos.660/96 & 1455/95 and the policy adopted on this Railway in regard to assignment of seniority of surplus staff absorbed in the alternative posts. It has been decided by the competent authority to assign them bottom seniority in their respective grades in TRS Organization duly maintaining inter se seniority.” Thereafter, the petitioners have taken up the matter through South Central Railway Mazdoor Union. However, there was no positive response. As such, they have filed the present O.A. to set aside the provisional seniority list issued by letter No.P.612/EL/TRS.Vol.II, dated 10-9-1996 and rejection of their representation, by an Order dated 4-11-1996. According to the petitioners, the impugned orders are contrary to the Railway Board’s Circular No.106/89, dated 21-4-1989 and master circular dated 10-9-1991 and further instructions issued through letter dated 7-7- 1995 and also prayed for consequential direction to the official respondents to reassign the placements by protecting their full seniority in their respective grades in which they were absorbed in TRS wing of electric loco shed at Lalaguda with all consequential benefits. Official Respondents filed a reply stating inter alia that when the petitioners were brought to TRS electric loco shed, Lalaguda, they have all accepted the conditions laid down in the option letter dated 2-9-1993. All the petitioners except petitioners 3 and 10 have given their willingness to join in electric loco shed as Senior Section Engineers, accepting the bottom seniority. The cases of petitioners 3 and 10 were also treated as acceptance, but they were not sure whether it is full acceptance or partial acceptance; hence, the official respondents stated that the petitioners having accepted to come to electric loco shed at Lalaguda as per their willingness letters accepting the bottom seniority, they cannot go back and ask for full seniority in that cadre; as such the O.A. was liable to be dismissed. The case of unofficial respondents is more or less similar to that of official respondents. They further stated that in the case of Doordarshan, the Supreme Court accepted the bottom seniority principle for surplus staff and those who are not willing to accept bottom seniority may have to be retrenched. The Tribunal, after an elaborate consideration of the entire material placed before it, held that the petitioners were aware of the Circular of the Railway Board and in spite of that, they accepted to get repatriated to electric loco shed accepting the bottom seniority. Had they not accepted the condition, there was a possibility that they could have been retrenched and to avoid that eventuality, they accepted the bottom seniority and joined in the electric loco shed. Therefore, the petitioners having accepted the condition laid down in the option letter dated 2-9-1993 cannot turn back and contend that the options should be treated as null and void and they should be given full seniority in the electric loco shed. In this regard, the Tribunal referred various judgments relied upon by both the parties and considering them, dismissed the O.A. Aggrieved by the same, the present Writ Petition is filed. Sri P. Krishna Reddy, learned counsel for the petitioners, strenuously contended that once the Railway Board issues any instructions, they are binding on each railway zone/division. Each division cannot adopt its own methodology for the purpose of maintaining seniority in TRS electric loco shed by following the procedure, as they like. In this regard, learned counsel invited the attention of the Court to Clauses 3(i) and (ii) and also Clause 5 of the Railway Board’s letter No.E(NG) 11/84/RE-1-10, dated 21-4-1989, which read as under: 3. When redeploying the surplus staff to other units/Depts, which constitute a different seniority unit, the following methods can be adopted: i. If only a small number of staff are being rendered surplus and they have to be transferred to various units of other departments against vacancies of duly sanctioned posts, they can be suitably adjusted in those units, with their full seniority and merging their seniority in the respective units: ii. When a large number of staff are being rendered surplus and they are being transferred to new units that are being set up like traction, rolling stock, overhead equipment, new electric loco sheds etc., they should be given their full seniority and there should be, no difficulty in redeploying the staff with suitable re-training in identical scales and suitable trades. No minimum educational qualifications should be prescribed and the sole criteria would be their ability to absorb retraining/conversion training and pass the necessary tests at the end of training period and of course, medical fitness. iii. ……………………. 4…………………………………………………. 5. Normally, the juniormost of the employees should be rendered surplus, irrespective of the manner in which they had entered the grade. However, where staff give their willingness to go on bottom seniority in recruitment grades to other departments, such volunteers should be given preference depending upon the availability of vacancies in the other cadre and their suitability, including medical fitness.” Learned counsel has also drawn attention of the Court to clauses 21(i) and (ii) of the Circular dated 10-9-1991 (master circular on seniority of non-gazetted staff), which are similar to clauses 3(i) and (ii) of the above Circular and submitted that in view of the above Circular instructions asking the petitioners to accept bottom seniority and rejection of their representations by an order dated 4-11-1996 is arbitrary and illegal. Sri R.S. Murthy, learned counsel for the respondents, in his inimitable style opposed the Writ Petition and stated that due to closure of steam loco shed, the surplus staff holding the post of Mechanical Foreman have to be accommodated in equivalent posts in South Central Railway in electrical branch of TRS organization. The TRS is having its main unit at Vijayawada. A separate shed has been opened at Lalaguda to accommodate the said surplus staff. The surplus staff have accordingly been directed to exercise specific option with regard to their absorption at Lalaguda and posting thereof with bottom seniority. In the event, the petitioners did not exercise their option, they would not have been accommodated at Lalaguda, as the vacancies that have been newly created would have been thrown open to the persons already working at Vijayawada. The action taken by the respondents is in conformity with para-5 of the Circular dated 21-4-1989 issued under CPO’s Circular dated 7-7-1989, which permits assignment of the seniority at the bottom when there was a surplus on a large scale. Petitioners having opted for bottom seniority, cannot reagitate the matter. Petitioners have specifically taken the conversion training in electric traction and exercised option in terms of letter dated 2-9-1993; therefore, they could not resile and contend that they are to be given seniority based on the length of service in the steam wing and place them above the incumbents in the TRS. We have given our earnest consideration to the respective submissions of the learned counsel on either side and perused the impugned Orders and other material made available on record. The Circular dated 2-9-1993 issued by the South Central Railway, Secunderabad regarding absorption of steam surplus staff Supervisor’s cadre states that steam Supervisors in the grade of Rs.1600-2600 (RSRP) and above are the posts controlled by headquarters and they are liable for transfer within the Railway and in order to accommodate such surplus steam supervisors of various divisions, options were called to finally absorb them in the electric loco shed on SC Division on the following terms and conditions: “ 1………………… 2……………….. 3…………………. 4……………………. 5. Against the additional posts created for the newly constituted Electric Loco Shed at Secunderabad, the posts in the grade of Rs.1600-2600 (RSRP) and above, being centrally controlled, are to be filled by transfer of the Supervisors borne on the TRS either in the same grade or on promotion. However, these posts are being created against the surplus posts of steam cadre rendering certain number of supervisors in grade Rs.1600- 2600 (RSRP) and above of the erstwhile steam cadre surplus. It is therefore, necessary that such suitable supervisors of steam cadre opted are required to be accommodated in the interest of administration. However, in order to avert seniority conflict of the existing supervisors in the TRS and the newly inducted steam surplus supervisors in this process, they are to be assigned seniority only below the existing regular supervisors of the TRS in the relevant grade. Option is also available with the management to keep such optees in a separate group, if circumstances warrant, so that, their seniority do not clash. Exercising option in this process does not confer any for final absorption in TRS wing as the same is subject to the availability of required number of vacancies and the suitability of the individual for final absorption after due training. In case of more suitable persons being available, seniors in the steam cadre will be considered available. 6. Optees once absorbed in Electrical Loco Shed i.e. TRS, they will have to progress further in the seniority unit of Electrical Department only and will have no eligibility to revert back to steam cadre subsequently for any reason. A reading of the above clauses would indicate that additional posts were created for the newly constituted electric loco shed at Secunderabad in the grade of Rs.1600-2600 and above and these posts are being created against the surplus staff of steam cadre rendering certain number of supervisors in grade Rs.1600-2600 and above of the erstwhile steam cadre surplus and, therefore, such suitable supervisors are required to be accommodated in the interest of administration; however, in order to avoid seniority conflict of the existing supervisors in the TRS and the newly inducted steam surplus Supervisors, in this process, they are to be assigned seniority below with the existing regular Supervisors of the TRS in the relevant grade. Further, the letter dated 13-4-1995 issued by the Chief Personnel Officer, South Central Railway, Secunderabad would indicate that as many as 154 posts with matching surrenders from headquarters surplus bank for new electric loco shed at Lalaguda were sanctioned. Likewise, the letter dated 1/3-6-1993 also contemplates creation of 124 posts by matching surrender from headquarters surplus bank for new electric loco shed at Lalaguda. This is in addition to sanction of creation of 117 posts for electric loco shed at Lalguda. Of course, these posts were created in various cadres and grades. But, it appears, equal number of matching posts were created even against surplus staff in the cadre of Supervisors in the grade of Rs.1600-2600 and above. Except saying that the petitioners gave option to take bottom seniority, there is no other rationale answer coming forward from the official respondents. The binding nature of the instructions/guidelines issued by the Railway Board, which are in the nature of statutory instructions, was not denied. But, it is stated that the zone/southern railways is not prohibited from adopting a different method for reckoning the seniority of the surplus staff. In this regard, the Circular issued by the Railway Board dated 21-4-1989 states that when re-deployment of surplus staff to other units/departments which constitute a different seniority unit, the authorities should follow the method indicated in clause 3(ii) thereof, which states that when a large number of staff are being rendered surplus and they are being transferred to new units that are being set up like TRS overhead equipment, new electric loco shed etc., they should be given their full seniority and there should be no difficulty in redeploying the staff with suitable retraining, in identical scales and suitable trades. Further, clause (5) contemplates that normally juniormost of the employees should be rendered surplus irrespective of the manner in which they had entered the grade and only when such juniors, who are likely to be rendered surplus when they give their willingness to go on bottom seniority in recruitment grades to other departments, such volunteers (optees) should be given preference, depending upon the availability of vacancies in the other cadre and their suitability, including medical fitness etc. It may be noticed that in the case on hand, it is not the case of the official respondents that there were no posts available for accommodating the surplus staff of the steam loco shed to be absorbed in electric loco shed after their training etc. The letters noticed above, would indicate that number of posts were created in the grade Rs.1600-2600 and above and the petitioners were redeployed in the same cadre and were accommodated in the interest of administration as contemplated in SCR Circular dated 2-9-1993. It is further interesting to notice that petitioner No.3 as well as petitioner No.9 have, in fact, stated that they are willing to work in the electric loco shed, provided their pay and seniority are protected. The other petitioners, though gave options, did not say that they are willing to take bottom seniority. In fact, no option form seems to have been prepared for the purpose of showing that the petitioners are not entitled to reckon their seniority from the date of their initial appointment in the steam loco shed on redeployment/absorption in the electric loco shed at Lalaguda, Secunderabad. Some attempts were made for redeployment/absorption of the petitioners, who are said to be surplus supervisors in the steam loco shed and the same was not a charity - it was purely on administrative exigency, in view of closure of the steam loco shed, which rendered useless on introduction of electrical system in railways. For this, petitioners could not have been punished to say that they should take bottom seniority in their respective grades while being redeployed/absorbed as surplus steam loco shed employees, in the electric loco shed at Secunderabad. Nowhere in the counter it is stated or asserted that there were no posts available when the petitioners were sought to be redeployed and absorbed into electric loco shed at Secunderabad after giving due training etc. On the other hand, it is stated at clause 3(ii) of Circular dated 21-4-1989 that when large number of staff are being rendered surplus and absorbed into TRS, they should be given their full seniority and there should be no difficulty in redeploying the staff with suitable retraining in identical scales and suitable trades. Even the Guntakal Divisional Office Circular dated 21-11-1991, which refers to the master circular on seniority of non-gazetted staff, also speaks to the same effect, as noticed above. In this case, nowhere it is asserted or argued that the petitioners are being absorbed against any supernumerary posts created. They are, in fact, absorbed into the existing vacancies on a large scale surplus of the staff in the erstwhile steam loco sheds, in the divisions of the South Central Railway. It is not that the petitioners have opted or sought a request transfer for being absorbed in electric loco shed at Lalaguda, Secunderabad. As noticed above, it is in view of some administrative exigency, the steam loco shed was closed and the petitioners being surplus, were all absorbed into the existing vacancies in the electric loco shed at Secunderabad after being imparted the required training. Thus the whole redeployment/absorption of the petitioners is on administrative grounds. In fact, though the Union has made certain representations, they were not heeded to. Therefore, we are of the considered opinion that the petitioners cannot be treated as juniors to those who are already working in the electric loco shed at Secunderabad in their respective cadres/grades. Petitioners are entitled for due placement in the seniority, on their redeployment/absorption, in the electric loco shed unit of Secunderabad, in their respective cadres, from the date of their initial appointment, in the erstwhile steam loco shed. Official respondents, therefore, shall redraw the seniority of the petitioners as per the above observations and extend all consequential benefits as per their entitlement. With the above directions, the Writ Petition is disposed of. No order as to costs. ______________________ (GHULAM MOHAMMED,J) 18TH August, 2008 ______________________ (C.V. RAMULU,J) Prk