CWP No. 6505-CAT of 2002 1 In the High Court of Punjab and Haryana at Chandigarh CWP No. 6505-CAT of 2002 Date of Decision:21.7. 2008 Jasbir Singh ...... Petitioner Versus Union of India and others ...... Respondents Coram: Hon'ble Mr. Justice Hemant Gupta Hon'ble Mr. Justice Ajay Tewari Present: None for the petitioner. Mr. Puneet Jindal, Advocate for the respondents. **** Ajay Tewari, J. The petitioner originally filed an application before the Central Administrative Tribunal claiming regularisation in Group-C post of Fork Lifter Driver w.e.f. 5.11.84, with consequential relief of granting seniority and promotion over and above the respondent No.4. The Central Administrative Tribunal rejected his claim on the ground that by circular dated 26.8.86, the Railway Board had clarified that all promotions earned in the respondent No.2 by transferees from different Railways/Production Units would be deemed to be fortuitous and this stand of the Railways had been accepted in O.A. No. 1097-PB- 91, Balwinderjit Singh etc. V. Union of India etc. decided on 14.12.2000 and that the said decision had been upheld by this Court in CWP No. 3265-C-80 of 2001 decided on 6.3.2001. CWP No. 6505-CAT of 2002 2 As far as the claim of the petitioner for being treated senior to respondent No.4 is concerned, the same was declined by the Tribunal on the ground that the said respondent had been recruited as a direct recruit while the petitioner was a transferee and thus the petitioner would have no claim against him. We have heard Sh. Puneet Jindal, Advocate for the respondents and with his assistance have gone through the record of this case well as the record of CWP No. 3265-C-80 of 2001. The relevant portions of the letter dated 26.8.86, which has been relied upon by the Tribunal to non suit the petitioner, are quoted herein below:- 1. All posts in this Project, for the present are temporary and are normally filled by drafting staff from different Railways and Production Units and in a few cases by resorting to direct recruitment. 2. Till the declared date of commencement of production, all postings and promotions ordered in the Project are deemed fortuitous and purely provisional without any prescriptive right for the staff for any such posting/promotion and/or continuance in the same grade/post. 3. Staff directly recruited for the Project are deemed to be suitable for absorption in the Plant in their recruitment grades and their seniority shall be based on the merit order assigned at the time of their recruitment. Candidates who are sent for initial training will rank in seniority in the relevant recruitment grade in the order of merit obtained at the examination held at the end of the training before being posted against working posts. CWP No. 6505-CAT of 2002 3 4. Staff transferred from different Railways/Production Units upto the declared date of commencement of production will be deemed to have been transferred to the plant on that date, and the grade held by them in the parent railways or the grade they would have held on that date but for transfer to the Project, and the length of continuous non-fortuitous service therein will determine the relative seniority, subject to inter-se seniority in the parent railway being maintained.” A perusal of these portions reveals that clauses 1 and 2 relate to all the persons working in the respondent No.2, clause 3 relates to direct recruits while clause 4 relates to transferred staff. In our opinion the claim of the petitioner that he should be regularised w.e.f. 5.11.84 is not tenable in view of clause 2(supra). However, his claim over the respondent No.4 has to be upheld and the same cannot be denied on a specious reliance on clause 2, especially since it is admitted that the petitioner was working as a Fork Lifter Driver in the respondent No.2 prior to the induction of respondent No.4. A perusal of clauses 3 and 4 (supra) makes it clear that direct recruits and transferees have been clearly envisaged to be two different categories and no mechanism has been put in place to work out the inter se seniority between direct recruits and transferees. In our view the fortuitous nature of their appointment would have relevance only to their claim for regularisation from a particular date or their claim in seniority vis-s vis others of their class. But, it cannot be said that the induction of the petitioner would confer no right on him vis-a-vis the subsequent induction of the respondent No.4. The reliance on the decision of Balwinderjit Singh's case CWP No. 6505-CAT of 2002 4 (supra) by the Tribunal is completely misplaced. In that case the petitioners were seeking seniority from the dates of their initial appointment in the respondent No.2 as well as seniority against other direct recruits. It was in that context that their claim had been rejected holding that ad hoc appointment by way of stop gap arrangement made otherwise than by following the procedure prescribed cannot enure to the benefit of an employee in the matter of fixation of seniority. In fact, there is no reference to the letter dated 26.8.86 anywhere in that petition. Thus, the claim of the petitioner for regularisation in Group-C from the date of initial promotion viz. 5.11.84 is hit not only by the circular dated 26.8.86 but also by the general principles laid down in Balwinderjit Singh's case (supra). However, the claim of the petitioner regarding seniority over and above the respondent No.4 deserves to be upheld in view of the above discussion. The petition is, therefore, partly allowed and a direction is issued to treat the petitioner as senior to the respondent No.4 and to thus give him all consequential benefits except arrears of pay for a post against which he may not have worked. No costs. (AJAY TEWARI) JUDGE (HEMANT GUPTA) JUDGE July 21, 2008 sunita