CIVIL WRIT JURISDICTION CASE No.14455 2006 --- In the matter of an application under Article 226 of the Constitution of India --- 1. UNION OF INDIA THROUGH SECRETARY, RAILWAY BOARD, RAIL BHAWAN, NEW DELHI. 2. CHIEF PERSONNEL OFFICER, E.RAILWAY, FAIRLOO-PLACE, CALCUTTA, WEST BENGAL. 3. SENIOR DIVISIONAL PERSONNEL OFFICER, E.RAILWAY, MUGALSARAI …Respondents …PETITIONERS VERSUS 1. DINESH PRSAD, S/O LATE INDER PRASAD, VILLAGE & P.S.CHANPATIA, DISTRICT WEST BENGAL, WORKING AS CHIEF BOOKING SUPERVISOR, E.RAILWAY, DEHRI-ON-SONE, ROHTAS. 2. MOHAN PRASAD SINGH, S/O SHRI SHIV PRASAD SINGH, VILLAGE SOORAHAN, P.S. HARSIDHI, DISTRICT EAST CHAMPARAN, WORKING AS COMMERCIAL SUPERVISOR E. RAILWAY, MUGALSARAI, LOOKING AFTER MUGALSARAI-GAYA SECTION. 3. MOHAMMAD HUSTAFA ANSARI S/O LATE MOHAMMAD YASIN ANSARI, VILLAGE MANREJPUR, P.S. NAUBATPUR, DISTRICT PATNA, WORKING AS COMPLAINT INSPECTOR, MUGHALSARAI, LOOKING AFTER MUGHALSARAI-GAY SECTION. …APPLICANTS….RESPONDENTS 4. SRI SANT SINGH, S/O NOT KNOWN, CHIEF BOOKING SUPERVISOR, SASARAM, E.RAILWAY. 5. SURESH KUMAR VISHWAKARMA, S/O NOT KNOWN, CHIEF GOODS SUPERVISOR, DEHRI-ON-SONE, E.RAILWAY. 6. PIRTHWI NATH PANDEY, SON OF NOT KNOWN, CHIEF TRAFFIC INSPECTOR, BARWAHDIH, DEHRI-ON-SONE, E. RAILWY] 7. RAMJEE, S/O NOT KNOWN, CHIEF BOOKING SUPERVISOR (CASH) MUGHALSARAI, E.RAILWAY. 8. B.C.PRASAD, SON OF NOT KNOWN, CHIEF PARCEL SUPERVISOR, GAYA, E.RAILWAY. 9. NARAYAN PRASAD, SON OF NOT KNOWN, CHIEF BOOKING SUPERVISOR, E.RAILWAY, GAYA. …RESPONDENTS….RESPONDENTS ---- For the Petitioners : Mr. Shabbir Ahmad For the Private Respondents: Mr. Gautam Saha --- - 2 - P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** S. K. Katriar & K. K. Mandal, JJ. This writ petition is directed against the order dated 02.06.2000 (Annexure-1), passed by the Central Administrative Tribunal, Patna Bench, Patna, in O.A.No.92 of 1999(Dinesh Prasad & Ors. Vs. Union of India & Ors.), whereby the original application has been allowed, the decisions of the authorities have been set aside, and it has been held that the training period shall be counted for the purpose of seniority of the original applicants. This writ petition is further directed against the order dated 9.2.2005 (Annexure-1/A), passed by the learned Tribunal in R.A.No.47 of 2002(The Union of India Vs. Dinesh Prasad & Ors.), whereby the review application preferred by the authorities for review of the said order dated 2.6.2000(Annexure-1), was rejected. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The three private respondents had been selected by the Railway Administration by orders dated 19.8.1992 (Annexure-2 series), as Trainee Commercial Apprentices. The training covered a period of 24 months. Dinesh Prasad (respondent no.1), and Mohammad Mustafa (respondent no.3), joined the training on 2.11.1992. Mohan Prasad Singh (respondent no.2), had so joined for the purpose of training on 3.11.1992. After successful completion of their training, they were given permanent appointments as Commercial Apprentices in the scale of Rs. 1600-2660/-, vide common appointment letter dated 25.1.1995(Annexure-3). All of them - 3 - joined as such on the same date, but later on it transpired that the authorities did not count the period of training for the purpose of assigning them their seniority leading to the aforesaid O. A. No.92 of 1999. The same has been allowed by the impugned order, and it has been held that the period of training shall be counted to reckon their seniority. The review application preferred by the authorities has also been rejected by the Tribunal. Hence this writ petition. 3. Learned counsel for the petitioners has assailed the validity of the impugned order on various counts. He, inter alia, relies on Rules Regulating Seniority of Non-Gazetted Railway Servants (Annexure-7). 4. Learned counsel for the private respondents supports the impugned order. He submits that Rule 302 has been amended by notification bearing R.B.E. No. 89/92, dated 2.6.1992, issued by the Railway Board. He relies on the following judgments of the Supreme Court: 1. State of H.P. Vs. J. L. Sharma & Anr., 1998 Vol. 1 SCC, 727. 2. M. P. Pradhan Vs. Union of India & Ors., AIR 1990 SCC 891. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Rule 302 is reproduced hereinbelow for the facility of quick reference: “302. Seniority in initial recruitment grades.- Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of - 4 - seniority should be the date of regular promotion after due process in the case of a promottee and the date of joining the working post after due promotion in the case of a direct recruit, subject to maintenance of inter-se-seniority of promotee and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same, they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se- seniority of each group.” 6. It is thus evident that seniority among the incumbents of non-gazetted post in railway service is governed by the date of appointment to the grade, unless specifically stated otherwise. We observe from a perusal of the aforesaid order dated 19.8.1992(Annexure-2), selecting the private respondents as Trainee Commercial Apprentices, as well as the order of appointment dated 25.1.1995(Annexure-3), appointing them on substantive posts, that the same do not state anything to the contrary. Therefore, we are of the view that the private respondents are entitled to count their seniority from the date they were given the grade with effect from 25.1.1995. Rule 303 covers different kinds of situation where the question of inter- se seniority of such incumbents has to be determined. Such a situation does not arise in the present case and, therefore, consideration of Rule 303 need not detain us. 7. We must deal with the aforesaid R.B.E.89/92 dated 2.6.1992, relied upon by learned counsel for the private respondents. The same is a brief circular of the Railway Board and is reproduced hereinbelow for the facility of quick reference in its entirety: “Subject: Counting of training period before regular appointment for the purpose of drawing increments. No.E(NG)1/90/1C/1, dated 2.6.1992 Please refer to Board’s letter of even number dated - 5 - 4.2.91 and subsequent clarifications thereto dated 8.8.91, addressed to South Central Railway and circulated to all the Railways under Board’s letter dated 15.11.91 on the above subject wherein it was clarified that Govt. of India’s orders regarding counting of training period for the purpose of increments are effective from 1.10.1990 and the training period before 1.10.1990 will, therefore, not count for the purpose of increments. This matter has since been considered in the National Council/JCM and it has been decided with the approval of the President that the benefit of treatment of such training as duty for the purpose of increments may be allowed in the case of those railway servants also who had undergone such training on or after 1.1.1986. However, in such cases, the benefit of counting period for pay will be admissible on notional basis from 1.1.1986 and on actual basis from 1.10.1990. 2. This issues with the concurrence of the Finance Directorate of the Ministry of Railways.” It is evident on a plain reading of the circular that the same liberalizes the position in a limited manner, namely, the training period shall be counted only for financial benefits and not for the purpose of assigning the actual seniority. In other words, the Rule 302 shall continue to govern the field even after issuance of the said circular dated 2.6.1992. 8. We must also deal with the judgment relied on by the learned counsel for the respondents. The Judgment of the Supreme Court in the case of State of Himachal Pradesh(Supra), does seemingly support the case of the respondents, but a deeper study leads us to the conclusion that the same dealt with different rules governing employees of the Himachal Pradesh Forest Service. The language and the tenor of those Rules was different and did in clear terms state that the training period shall be counted for the purpose of reckoning the seniority. The Rules applicable to the present case are of different - 6 - nature and, therefore, the judgment is not of much relevance in the present case. The judgment of the Supreme Court in the case of M. P. Pradhan (Supra), dealt with a fundamentally different factual situation, and cannot be applied to the facts and circumstances of the present case. 9. In the result, this writ petition is allowed and the order dated 2.6.2000(Annexure-1), passed by the learned Tribunal in O.A.No.92 of 1999, is hereby set aside. The training period shall not be counted for the purpose of reckoning the seniority of the private respondents. In the facts and circumstances of the case, there shall be no order as to costs. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court Dated 9th day of February, 2010 HR/NAFR