Original Application No. 2248/2012. Case: Sandeepkumar Kuldeepnarayn Nashine and Ors. Vs The Union of India and Ors.. High Court of Madras (India)
| Case Number | Original Application No. 2248/2012 |
| Counsel | For Appellant: R.S. Khobragade, Advocate and For Respondents: R.G. Agarwal, Advocate |
| Judges | Dr. Mrutyunjay Sarangi, Member (A) and Arvind J. Rohee, Member (J) |
| Issue | Service Law |
| Judgement Date | December 23, 2015 |
| Court | High Court of Madras (India) |
Order:
Dr. Mrutyunjay Sarangi, Member (A), (Mumbai Bench)
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The applicants were working as Danger Building Worker (DBW) High Skilled Grade-I in the Ordnance Factory Bhandara at the time of filing of this OA on 31.12.2012. They are aggrieved by their wrong fixation of seniority vis-à-vis Respondent No. 4 and Respondent No. 5. They have filed this OA with a prayer to quash and set aside the impugned seniority list dated 01.10.2012 for the post of DBW High Skilled Grade-I and to place the Applicants No. 1 to 8 above Respondent No. 4 and Applicant No. 9 above Respondent No. 5 in the seniority list published on 01.10.2012.
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The applicants had joined as Danger Building Worker (DBW) Semi-Skilled in March 2002 and were promoted to the post of DBW (Skilled) on 16.09.2004. On 16.09.2007 they were promoted to the post of Highly Skilled Grade (HSG). As per the recommendations of 6th CPC the cadre of HSG was bifurcated into HS-I and HS-II with the Grade Pay of Rs. 2800/- and Rs. 2400/- respectively. On 13.06.2011 the applicants were promoted to the post of DBW (HS-II) and on 31.12.2011 they were promoted to the post of DBW (HS-I). On 01.10.2012, the Respondent No. 3 published the impugned seniority list for the post of DBW (HS-I) showing the applicants as junior to Respondent Nos. 4 and 5. The applicants claim that as per the Circular No. 570/A/1/(III) issued by the Ordnance Factory Board on 15.10.1999, apprentices trained in the earlier batch will be en-bloc senior to the apprentices of the subsequent batches. The applicants claim that they have reminded Respondents No. 2 & 3 on several occasions to correct their seniority position but no action was taken on their request. The applicants alleged that the action of the Respondent No. 3 in placing Respondents No. 4 & 5 above the applicants in the seniority list for the post of DBW (HS-I) in the impugned order dated 01.10.2012 is illegal, unfair, malafide and unconstitutional. Aggrieved by the above mentioned seniority list, they have approached this Tribunal praying for the following reliefs;
i. call for the records of proceedings pertaining to the recruitment process and service records belonging to applicants and respondent No. 4 and 5 from the file of respondent No. 1 to 3 and peruse the same;
ii. hold and declare that the applicant No. 1 to 8 are en-bloc senior to respondent No. 4 and similarly applicant No. 9 is en-bloc senior to respondent No. 5 as per the circular No. 570/A/I/(III) dated 15.10.1999 issued by the respondent No. 2.
iii) quash and set aside the impugned seniority list dated 01.10.2012 for the post of DBW (HS-I) issued by respondent No. 3 being arbitrary, illegal, malafidely and unconstitutional.
iv) direct the respondent No. 1 to 3 to place the applicant No. 1 to 8 above respondent No. 4 and applicant No. 9 above respondent No. 5 in the seniority list published on 01.10.2012 for the post of DBW (HS-I) in accordance with the Circular No. 570/A/I/(III) dated 15.10.1999 issued by the respondent No. 2, in the interest of justice.
v) grant any other relief as this Tribunal deems fit in the facts and circumstances of this case;
vi) allow this Original Application.
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The grounds taken by the applicants in support of their prayer are quoted herein below from the OA;
5.1 That as per the above said Circular dated 15.10.1999 issued by the respondent No. 2 of which Phase-I (i) to (iv) Apprentices trained in the earlier batch will be en-bloc senior to the Apprentices of the subsequent batches. It is further stated that selection process is based on fitness cum seniority. It is further stated that amongst the candidates who pass the trade test, and are therefore fit, the selection will be done strictly on seniority.
5.2 That the respondent No. 4 at Sr. No. 84 and onwards in the impugned seniority list is all juniors to the applicants and they all were appointed in the same recruitment process.
5.3 That, the respondent No. 4 who belongs to 38th batch of Ex-trade Apprentice is much junior to the applicant No. 1 to 8 those belonging to 28th to 36th batch of Ex-trade Apprentice (en-bloc seniors); and respondent No. 5 who belong to 40th batch of Ex-trade Apprentice is much junior to applicant No. 9 belonging to 38th batch of Ex-trade Apprentice (en-bloc senior).
5.4 That the respondent No. 3 has similarly conducted the recruitment of Ex-trade Apprentice in the year 2008 and where the circular dated 15.10.1999 is implemented and the seniority was maintained as per the batch wise seniority of Ex-trade Apprentices.
5.5 That the respondents failed to perform their duties which they were duty bound, caused grave mental agony and harassment to the Applicants, hence this Tribunal got the jurisdiction to provide necessary relief in accordance with law.
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The respondents in their reply dated 23.07.2014 have contested the claim of the applicants:
i) It is their contention that the issue of seniority was discussed in the JCM-IV Level Council Meeting held on 26.10.2010 under the Chairmanship of the General Manager, Ordnance Factory, Bhandara (Respondent No. 3). In the said meeting the following decisions were taken:
Fixation of Seniority of IEs.
After deliberation, it was unanimously decided to close the matter now. Any IE feeling aggrieved regarding his seniority may seek judicial remedy in appropriate forum, if he so desires.
However, any representation regarding the seniority by an IE pertaining to the recruitment processes initiated in 2008 onwards may be considered by the Administration on merits of the case.
Action by:
DVO/LB Remarks: This point was closed.
ii) The applicants in the present OA were recruited prior to 2008 and, therefore, no inter-se-seniority was prepared by the Respondent No. 3 as per the above decision. Since the decision at JCM-IV Level was taken on 26.10.2010 the respondents allege that the present OA is time barred and suffers from limitation.
iii) The respondents have submitted that the applicants were called batch-wise for the Trade Test and their appointment was made strictly in accordance with the provisions contained in the Ordnance Factory Board letter No. 570/A/1(III) dated 15.10.1999.
iv) From the year 2000 onwards the seniority list of the Industrial Employees is being published every year but no complaint has been received from the applicants who have raised this issue after a lapse of more than six years which is too late. At this stage, it cannot be clarified whether batch-wise seniority or inter-se-seniority was maintained or not. Moreover as per the...
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