LODHA, J. - (1.) THE Railway has filed this writ petition aggrieved by the order dated 20th December, 2000 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur whereby the Original Application filed by the present respondent No. 1 has been allowed and the direction has been issued to place her as senior clerk w. e. f. 4th April, 1989 in the seniority list of senior clerks.
(2.) THE controversy arises thus: (a) Kumari Amrit Kaur Rai- respondent No. 1 (for short, `the employee') was appointed on 6th November, 1986 as Junior Clerk, on compassionate ground in Kota Division of Western Railway. (b) Railway Recruitment Board, in the year 1988, held the examination for direct recruitment of senior clerks against the service graduates quota. THE employee appeared in the said examination and was declared successful. (c) On 15th December, 1988, a list of successful candidates from amongst the service graduates of Kota division for recruitment to Class III posts (senior clerk) was published. THE name of the employee appeared at Item No. 16 of the said list. By the said list, the selected candidates were asked to give three options for posting in Ajmer, Jaipur, Kota, Ratlam, Jodhpur and Bikaner Divisions/units. (d) THE employee sent communication to the Divisional Railway Manager, Kota on 16th December, 1988 indicating her option for Kota division for posting and her lien. (e) By the office order dated 3rd April, 1989, the DRM, Kota issued an office order appointing nineteen persons in Class III service-senior clerks in the scale of 1200-2040 (RP)- Kota Division. In so far as the employee was concerned, she was posted in the office of Loco Foreman, Kota. (f) On 4th April, 1989, the employee sent a representation to the Division Railway Manager (E), Western Railway, Kota stating therein that her group be changed from Mechanic, Operating, Commercial and General (for short, `mocg') to Works, Budget, Stores and Medical (for short, `wems' ). She set out the reasons for change of her group. (g) On 18th April, 1989, the office of Chief Engineer (Survey & Civil), Church Gate, Bombay sent a communication to the Deputy Chief Engineer (S & C) Kota that the employee may be retained as senior clerk in his office by upgrading the post of junior clerk and the Divisional Railway Manager (E), Kota be asked to maintain her lien as senior clerk on his Division. THE Division Railway Manager (E), Kota was sent copy of the communication. (h) THE Deputy Chief Engineer (S & C), Kota issued an order being office order No. 498 dated 20th April, 1989 that the employee was being posted in his office in place of the office of Loco Foreman, Kota and that the said order shall be effective from 4th April, 1989. Thus, the employee was posted to work as senior clerk in the office of the Deputy Chief Engineer (S & C), Kota. (i) On 29th September, 1989, the Divisional Office, Kota issued an office order posting inter-alia, the employee in the office of Deputy Chief Engineer (S & C), Kota as senior clerk in the pay scale of 1200-2040 (RP ). (j) THE office of the Divisional Railway Manager issued a seniority list of senior clerks in the scale of 1200-2040 (RP) on 17th July, 1991/22nd July, 1991 wherein the name of the employee was shown at 64 indicating her joining of duty on the working post of senior clerk on 2nd September, 1989. (k) THE employee was up-set by the said seniority list and made representations. When nothing was heard from the authorities, she approached the Central Administrative Tribunal praying therein that the seniority list dated 17th July, 1991/22nd July, 1991 be quashed and set aside and that the Railway Authorities may be directed to issue fresh seniority list by showing her name below Smt. Pushplata Dubey and above Mangi Lal whose names find place at Sr. Nos. 9 and 10 in the seniority list of senior clerks. The railway authorities filed their reply in opposition to the Original Application. They set up the defence that the employee was posted in the office of Loco Foreman, Kota but she did not join there and made a representation on 4th April, 1989 with a request to change her group from MOCG to WBSM; the change was accepted vide order dated 29th September, 1989 and since the change was at the request of the employee, her date of joining has to be taken to be 29th September, 1989 as per paragraph 313 of the Indian Railway Establishment Manual. The railway authorities set up their case that the order of the Chief Engineer (S & C) Western Railway, Mumbai and the order of the Deputy Chief Engineer (S & C), Kota cannot confer any right upon her. The Tribunal found substance in the contention of the employee in her challenge to the seniority list and, accordingly, vide its order dated 20th December, 2000, as noticed above, directed the railway authorities to modify the seniority list by placing her in the list of senior clerks w. e. f. 4th April, 1989. The counsel for the petitioners (Railways Authorities) assailed the order of the Tribunal and submitted that the employee was selected in Class III post (senior clerk) by the Railway Recruitment Board for direct recruitment against the service graduate quota and since it was not a case of promotion, there was no question of the post of junior clerk being up-graded in the office of the Deputy Chief Engineer (S & C), Kota. The counsel for the petitioners would submit that the Deputy Chief Engineer (S & C) had no authority or competence to pass the order of appointment or change of group and, therefore, the order dated 20th April, 1989 passed by him was nullity and without authority. He submitted that MOCG and WBMS being two different groups one different establishments of the Railways and these two different establishments do not have common seniority list of senior clerks. Since her group from MOCG to MBMS was changed at her request by the order dated 29th September, 1989, her entry into the Class III post cannot be reckoned from 4th April, 1989 but has to be from 29th September, 1989. The counsel for the petitioners would, thus, contend that the order of the Central Administrative Tribunal was erroneous and deserved to be set aside. On the other hand, Mr. R. N. Mathur, the counsel for the employee supported the order of the Tribunal.
(3.) THAT the employee was selected for Class III post (senior clerk) by the Railway Recruitment Board for direct recruitment against service graduates quota vide select list dated 15th December, 1988 is not in dispute. THAT the Mechanical, Operation, Commercial General (MOCG) and Works, Budget, Stores and Medical (WBSM) are different groups is an admitted position. THAT the office of Loco Foreman falls in MOCG group and the office of the Deputy Chief Engineer (S & C) falls in WBSM is also not in dispute. THAT vide office order dated 3rd April, 1989 issued by the Divisional Office, Kota, the employee was posted in the office of Loco Foreman i. e. MOCG group is not in dispute. THAT on 4th April, 1989 the applicant made a representation to the Divisional Railway Manager, Kota Division for change of her group from MOCG to WBSM is also an admitted position. THAT the Chief Engineer (S & C), Bombay asked the Deputy Chief Engineer (S & C), Kota by the letter dated 18th April, 1989 to retain the employee as senior clerk in the pay scale of 1200-2040 (RP) in that office by up-grading the post of senior clerk is not in dispute. THAT the Divisional Railway Manager (E), Kota was asked by the said letter to maintain the lien of the employee as senior clerk in the scale of 1200-2040 (RP) on his Division is again an admitted position. THAT on 20. 4. 1989, the Deputy Chief Engineer (S & C), Kota issued an order posting the employee a senior clerk in his office in place of office of Loco Foreman, Kota is not disputed, and that the said order was effected from 4th April, 1989 is an admitted position. THAT on 29th September, 1989, the Divisional Office, Kota issued an order posting the employee in the office of the Deputy Chief Engineer (S & C), Kota is undisputed. In the back-drop of the afore-noticed admitted factual position, the question that falls for our determination is: is the date of joining on the post of Senior Clerk by the employee 4th April, 1989 or 29th September, 1989. Chapter III of Indian Railway Establishment Manual Volume-I Revised Edition, 1989 provides for Rules regulating seniority of non-gazetted railway servants. Paragraph 302 is with regard to seniority in initial recruitment grades. We extract paragraph 302 as it is:      " 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 a 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 seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-so-seniority of promotees and direct recruits among themselves. When the date of entry into a grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotee being senior to the direct recruits, maintaining inter-se-seniority of each group. Note- In case the training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have normally come to a working post after completion of the prescribed period of training. " The determination of seniority of the candidates recruited through the Railway Recruitment Board is provided in paragraph 303 which reads thus:      " 303. The seniority of candidates recruited through the Railway Recruitment Board or by any other recruiting authority should be determined as under:- (a) Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. Those who join the subsequent courses for any reason whatsoever and those who pass the examination in subsequent chances, will rank junior to those who had passed the examination in earlier courses. (b) In the case of candidate who do not have to undergo any training in training school, the seniority should be determined on the basis of the merit order assigned by the Railway Recruitment Board of other recruiting authority. " ;