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2006 DIGILAW 697 (GAU)

Union of India v. Jayashri Deb Roy

2006-07-31

B.SUDERSHAN REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. The Union of India and others (N.F. Railway administrator) being aggrieved by the order dated 28.11.2001 passed by the Central Administrative Tribunal Guwahati Bench in Original Application No. 205 of 2000, directing to take into account past services of the original applicant, who is Respondent herein, notionally for the purpose of fixation of seniority has preferred this writ petition before this Court. 2. The fact in brief relevant for the purpose of the present writ petition is that the Respondent Smt. Jayashri Deb Roy (Dutta) was initially appointed as substitute assistant teacher, Grade-IV in Railway High School Lumding on 12.3.1981 and was granted temporary status thereafter with effect from 13.3.1986. Since she was not regularly absorbed she approach the learned Central Administrative Tribunal, Guwahati Bench seeking regularization in service which was, however, dismissed by the learned Tribunal vide judgment and order dated 31.10.1994. The present Respondent being aggrieved by the said judgment of the learned tribunal approach the Apex Court in Civil Appeal No. 9424 of 1995 and hon'ble Supreme Court vide order dated 13.10.1995 allowed the appeal setting aside the judgment dated 31.10.1994 passed by the learned tribunal and further directing the present writ Petitioners to consider the case of the Respondent for absorption on regular basis in the post of Assistant Teacher through the screening committee in accordance with Clause 5.1 of the Master Circular dated 29.1.1991 and to restore her to the post held by her with continuity of service, in case she is found suitable for such absorption by the screening committee. The Apex Court directed restoration of the services of the Respondents to the post held by her by taking note of the fact that after the judgment dated 31.10.1994 passed by the learned tribunal her services were terminated by the railway administration. Consequently the railway administration conducted the screening test as directed by the hon'ble Supreme Court and vide order dated 28.12.1998 absorbed the Respondent as primary teacher (Bengali medium) by directing that the past services rendered by her as substitute teacher may be taken into account for all purposes except seniority from the date of acquiring the temporary status with treating the breaks as dies-non. The Respondent has challenged the said order dated 28.12.1998 in the present O.A. No. 205 of 2000 for not counting her services from the date of acquiring the temporary status to the date of regular absorption for the purpose of seniority, basically on the ground that the hon'ble Supreme Court vide order dated 13.10.1995 directed to restore her services to the post held by her with continuity of service. The said O.A. has been allowed by the learned Tribunal by holding that since the Apex Court directed the restoration to the post with continuity of service her past services has to be counted for the purpose of seniority. Hence, the present writ petition by the Railway Administration. 3. Mr. Sharma, learned standing counsel for railway/writ Petitioners has submitted that the Respondent who was the original applicant before the learned Tribunal having based her claim for regularization in service on the Master Circular dated 2.1.1991 issued by the railway authority and the Hon'ble Supreme Court also on the basis of such Master Circular having directed to consider the case of the Respondent for regular absorption in terms of the Clause 5.1 of the said Master Circular, the fixation of seniority of the Respondent shall also to be governed by such Master Circular. It has further been submitted that the question of fixation of seniority or whether the period from the date of acquiring the temporary status till the date of regularization is to be treated for the purpose of fixation of seniority was never the question before the Apex Court and the question which was raised was whether the Respondent is entitled to the benefit of Clause 5.1 of the said Master Circular. The Apex Court according to the learned Counsel has decided that question only by holding that the said Master Circular is applicable to the Respondent and, therefore, the benefit under Clause 5.1 of such Master Circular shall have to be given to the Respondent and accordingly directed the railway administration to consider the case of the Respondent for regularisation through the screening committee and not by the regular selection board. It has been submitted by the learned Counsel that Clause 4.3 of the said Master Circular clearly stipulates that the substitute school teachers are to be afforded the temporary, status after they have put in continuous service of three months and their services is to be treated as continued for all purpose except seniority on their eventual absorption against regular post after selection, i.e., after screening by the screening committee as required under Clause 5.1 of the said Master Circular. According to the learned standing counsel the learned Tribunal, in directing to count the past service for the purpose of fixation of seniority erred in law, which requires to be interfered with. 4. Mr. Ghosh, the learned Counsel appearing on behalf of the Respondent on the other hand supporting the order passed by the learned Tribunal has submitted that as the hon'ble Supreme Court has specifically directed the Railway Administration consider the case of the Respondent for permanent absorption through the screening committee and to restore her position with continuity in service in the event of finding her suitable for regular absorption by the screening committee, the period of her past service cannot be ignored for the purpose of fixation of seniority, once she has been absorbed permanently on being found suitable by the screening committee. The learned Counsel, therefore, submits that the order dated 28.12.1998 issued by the Railway Administration denying the benefit of that period of service was rightly interfered with by the learned Tribunal. 5. There is no dispute that the Respondent was appointed as substitute teacher Grade-IV in the Railway High School Lumding on 12.3.1981 and she was granted the temporary status thereafter. The Respondent initially filed O.A. before the learned Tribunal claiming regularization in service basing her right on the Master Circular dated 29.1.1991, which was, however, rejected by the learned Tribunal vide judgment dated 31.10.1995. The Apex Court in the appeal preferred by the Respondent challenging the judgment of the learned Tribunal has held that the Master Circular dated 29.1.1991 is applicable to the Respondent, by rejecting the contention of the Railway Administration that such Master Circular is not applicable to her. The Apex Court in the appeal preferred by the Respondent challenging the judgment of the learned Tribunal has held that the Master Circular dated 29.1.1991 is applicable to the Respondent, by rejecting the contention of the Railway Administration that such Master Circular is not applicable to her. The Apex Court on the basis of such Master Circular more particularly Clause 5.1 has directed to consider the case of the Respondent for regular absorption by the screening committee and has further directed that the Respondent's position be restored with continuity in service if she is found suitable for such absorption by the screening committee. The question of the seniority vis-a-vis whether the period from the date of granting the temporary status till the date of absorption is to be counted for the purpose of seniority was not in issue either before the learned Tribunal in earlier round of litigation or before the Apex Court in Civil Appeal No. 9424 of 1995. The only question involved was about the applicability of such Master Circular and as to whether the Respondent is entitled to the benefit of such Master Circular more particularly Clause 5.1 thereof. 6. The learned Tribunal while passing the order did not take into consideration that aspect of the matter and directed the Railway Administration to take into account the past services of the Respondent for the purpose of fixation of the seniority by not correctly interpreting the direction issued by the Apex court in the said Civil Appeal. The Apex Court in the said order passed in the said appeal did not at all consider the question relating to the seniority, as discussed above, nor any direction was issued relating to fixation of seniority. 7. The Respondent's claim of right being based on the said Master Circular dated 29.1.1991 all the Clauses in such Master Circular, applicable to the Respondent, has to be applied. Clause 4.3 of the said Master Circular provides that in case of absorption of substitute school teachers against the regular post after selection, their services are to be treated as continuous for all purpose except seniority (emphasis added). Clause 4.3 of the said Master Circular provides that in case of absorption of substitute school teachers against the regular post after selection, their services are to be treated as continuous for all purpose except seniority (emphasis added). Clause 4.5 of the said Master Circular provides that the services of the substitute teacher would be counted for pensionary benefit from the date of completion of four months (three months in case of teachers) as continuous service provided it is followed by absorption in regular Group-C (Class III), Group-D (Class IV) service without break. Clause 5.1 of the said circular provides for screening of substitutes for their absorption in regular service, which requires that the substitute who have acquired temporary status should be screened by a screening committee and not by a selection board constituted for that purpose before being absorbed in regular Group "C" (Class III) and Group IV (Class IV) post. For better appreciation Clause 4.3 and 4.5 of the said circular are quoted below: 4.3. Substitute school teachers may, however, be afforded temporary status after they have put in continuous service of three months. Their services to be treated as continuous for all purpose except seniority on their eventual absorption against regular posts after selection. * * * 4.5 Service of substitutes will count for pensionary benefits from the date of completion of four months (3 months in the case of teachers) continuous service provided it is followed by absorption in regular Group 'C' (Class III) Group 'D' (Class IV) service without break. 8. It is, therefore, evident that the past services of the Respondent, i.e., the period from which the temporary status was granted till the date of absorption has to be treated as continuous for the purpose of the granting the pensionary benefits and such period is not to be counted for the purpose of fixation of seniority as is evident from Clause 4.3 of the circular. The Respondent having claimed right on such circular and also having not challenged the legality and validity of such conditions contained in Clause 4.3, the seniority has to be fixed on the basis of the provision contained in Clause 4.3 of such circular, after she was absorbed in the regular post on being found suitable by the screening committee in terms of the Clause 5.1 of the said circular. 9. 9. The learned standing counsel for railway submits that the interpretation given by the learned Tribunal to the direction issued by the hon'ble Supreme Court is not the correct interpretation as the Apex Court never decided the question regarding treating the said period for the purpose of seniority and since the Apex Court has held that the Master Circular is applicable in respect of the Respondent, all the Clauses contained in such Master Circular shall also be applicable to the Respondent after she has been permanently absorbed by virtue of the Clause 5.1 of the such Circular. The leaned Tribunal in paragraph 8 of the order has rightly recorded the finding that as per Clause 4.3 read with Clause 4.5 of the Master Circular, the services of the substitute Asstt. Teacher on absorption is to be treated as continuous for all purpose except seniority and, therefore, as per the norms such persons are not entitled to count the seniority after regular absorption. But the learned Tribunal by giving incorrect interpretation of the order passed by the Apex Court has held that as the Apex Court has directed restoration of service of the Respondent to the post held by her with continuity in service, in the event the screening committee found her suitable for absorption on regular basis in accordance with Clause 5.1 of the Master Circular, her past services has to be taken into consideration for the purpose of seniority, in spite of the provision contained in Clauses 4.3 and 4.5 of the said Circular. As discussed above, the Apex Court has directed restoration of service of the Respondent in the post held by her in case she is found suitable for regular absorption by the screening committee, as after the order passed by the learned Tribunal on 31.10.1994 her services were terminated. Such order of restoration will not give the benefit of the period of service, from the date of granting temporary status till the date of regular absorption, for the purpose of fixation of seniority as Clause 4.3 of the Master Circular specifically provides that such period is not to be counted for the purpose of seniority. 10. Such order of restoration will not give the benefit of the period of service, from the date of granting temporary status till the date of regular absorption, for the purpose of fixation of seniority as Clause 4.3 of the Master Circular specifically provides that such period is not to be counted for the purpose of seniority. 10. We are, therefore, of the view that the period of service rendered by the Respondent from the date of her granting temporary status to the date of regular absorption cannot be treated for the purpose of fixation of seniority but the said period has to be taken into account for the purpose of granting the pensionary benefit as provided under Clauses 4.3 and 4.5 of the Master Circular dated 29.1.1991. 11. In view of the aforesaid discussion as well as finding recorded above we have no alternative but to set aside the order passed by the learned Tribunal dated 28.11.2001 in O.A. No. 205 of 2000, which we accordingly do. 12. The writ petition is accordingly allowed to the extent indicated above. No cost. Petition allowed.