IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD

O. A. No. 571 of 2006

Narendra Kumar Mishra …………………………..Applicant

Vs.

Union of India and others…………………..Respondents

Parawise Comments on rejoinder reply :

I, Y.K. Srivastava Dy. Chief Accounts officer/ G, Diesel

Locomotive Works, Varanasi do hereby, solemnly affirm and state as

under:-

That I am working as Dy. Chief Accounts officer/ G in Diesel

Locomotive Works, Varanasi, and as such fully conversant with the

facts of the case. I am authorised to sign and verify these comments on

rejoinder reply on behalf of respondents and competent to file the same.

Parawise comments :

1. No comments.

2. Contents are denied and in reply thereto it is submitted that

miscelleneous application annexed with the counter reply have

been filed as per extant rules and policy as such the same are

maintainable.

3. No comments.

4. That the contents of para 4 of the rejoinder reply are not admitted in

the form as stated and in reply thereto it is submitted that as per

provisions contained in para 211.1 of the Indian Railway

Establishment Manual Vol-I, 1989 Edition, promotion includes-

promotion not only from a lower grade to a higher grade but also,

from one class to another class, from one group to another group.

Further Appendix IV of the Indian Railway Establishment Manual

Vol-I, 1989 Edition also mention the word promotion of person

holding substantively the post of Accounts clerk , JAA & AA to the

rank of Stock Verifier, therefore, it is evident that posting from

Account Asstt. on the post of Stock Verifier Gr. Rs. 5000-8000 is

promotion. The Grade of Stock Verifier and Account Asstt. are

identical The incumbent of the post of the Stock Verifier are paid Rs.

150 (now Rs. 240) Special Pay on passing the prescribed Appendix IV

Examination of Indian Railway Establishment Manual, whereas this

benefit is not extended to the incumbent of the post of the Account

 Asst. Further it is submitted that the element of special pay of Rs.

150/-(now Rs. 240/-) is taken into account for pay fixation on further

promotion on the post of Sr. Stock Verifier in Gr. Rs. 6500-10500/-

5. No comments.

6. No comments.

7. That the contents of para 7 of the rejoinder reply are not

admitted at all and in reply thereto it is submitted that as per

provisions contained in para 211.1 of the Indian

Railway Establishment Manual Vol-I,

1989 Edition, promotion includes- promotion from a lower

grade to a higher grade, from one class to another class, from

one group to another group. Further Appendix IV of the Indian

Railway Establishment Manual Vol-I, 1989 Edition also

mention the word promotion of person holding post of

clerk to the rank of Stock Verifier, therefore, it is evident

that posting from Account Asstt. on the post of Stock Verifier

Gr. Rs. 5000-8000 is promotion. The Grade of Stock Verifier

and Account Asstt. are identical The incumbent of the post of

the Stock Verifier are paid Rs. 150 (now Rs. 240) Special Pay

on passing the prescribed Appendix IV Examination of

Indian Railway Establishment Manual, whereas this

benefit is not extended to the incumbent of the post of the

Account Asst. Further it is submitted that the element of special

pay of Rs. 150/-(now Rs. 240/-) is taken into account for pay

fixation on further promotion on the post of Sr. Stock Verifier

in Gr. Rs. 6500- 10500/- for proper appreciation and

adjudication of the issue involved in the matter, the contents

of para 03 of the counter reply stating the brief facts of the case are

reiterated.

8. Matter has already been explained in Additional Member /

Staff Railway Board 's speaking order dated 27.02.06. As such

no further clarification is required.

9. No comments.
 10. All facts have already been explained in Additional Member /

Staff , Railway Board's speaking orders dt. 27.02.06.

Thus there is no question of political interference by Member

of Parliament in this case as alleged by the applicant.

11. As already stated above, no question arises for restoration of

the applicant to its original place on the post of Senior

Stock Verifier.

12. That in reply to the contents of para 12 it is submitted that order dated

27.2.2006 has been passed in accordance with rule on the subject

after due application of mind by the Additional Member Staff Railway

Board in compliance of the order dated 30.1. 2006 of this Hon'ble

Tribunal in OA No.69/2006 filed by the petitioner and suffers from no

irregularity or illegality as the same is legal, valid and sustainable in

Law, hence it is not liable to be quashed.

13. No comments.

14. That the contents of para 14 of the rejoinder reply are not admitted in

the form as stated and in reply thereto it is submitted that as per

provisions contained in para 211.1 of the Indian Railway

Establishment Manual Vol-I, 1989 Edition, promotion includes-

promotion not only from a lower grade to a higher grade but also
 from one class to another class, from one group to another group.

Further Appendix IV of the Indian Railway Establishment Manual

Vol-I, 1989 Edition also mention the word promotion of person

holding substantively post of clerk to the rank of Stock Verifier,

therefore, it is evident that posting from Account Asstt. on the post of

Stock Verifier Gr. Rs. 5000-8000 is promotion. The Grade of Stock

Verifier and Account Asstt. are identical The incumbent of the post of

the Stock Verifier are paid Rs. 150 (now Rs. 240) Special Pay on

passing the prescribed Appendix IV Examination of Indian Railway

Establishment Manual, whereas this benefit is not extended to the

incumbent of the post of the Account Asst. Further it is submitted that

the element of special pay of Rs. 150/-(now Rs. 24/-) is taken into

account for pay fixation on further promotion on the post of Sr. Stock

Verifier in Gr. Rs. 6500-10500/-

15. No comments.

16. No comments.

17. That the contents and allegations made in para 17 are denied

and

it is submitted that the request for deferment for posting as Stock

 Verifier made by Sri Mishra has been treated as refusal as per

provisions contained in para 224 of Indian Railway Establishment

Manual, Vol-I by the Railway Board vide letter No. E(REP)I-

2005/DLW-11/48 dt. 6/9.1.2006.

18. That the contents and allegations made in para 18 are denied and in

reply thereto it is submitted that no such assurance was given to the

petitioner as alleged in para under reply. His promotion was an error

and the same has been condoned by Railway Board as per letter dt.

19. Already explained in Para 12 above.

20. No comments.

21. That the contents of the para 21 of the rejoinder are not admitted in

the forms as stated and in reply thereto the contents of the para 17 of

the counter reply are reieterated.

22. No comments.

23. That in reply to para 23 it is submitted that in DLW there was only

seniority list of Account Asstt since 1985 to 30.9.2004. However, no

seniority list of Stock Verifiers is available since 1985 to 30.9.2004.

However seniority lists of SV prior to 1985 are available. In the

seniority list of Account Astt. of the aforesaid period only reference of

Stock Verifier was made. Therefore, question to challenge the same

 does not arise. However, in the seniority list of Stock Verifiers dt.

1.10.2004 the petitioner has been shown as senior to Sri Jamaluddin

and Sri Rai erroneously as decided by the Railway Board vide letter

dt. 6/9.1.2006 .

24. That in reply to para 24, it is submitted that in DLW cadre of Stock

Verifiers and Account Asstts are already existing separately. Separate

seniority lists of SV prior to 1985 are evidence to this. Further it is

submitted that as mentioned in the earlier para 23 of this reply that

only seniority list of Account Asstt. was being maintained since 1985

to 30.9.2004. In such a situation if a person who is senior as Account

Asstt. and promoted and posted on the post of Stock Verifier from a

later panel then he stands junior to the one who join as Stock Verifier

from earlier panel. This is a characteristic feature of a cadre.

25. That the contents and allegation of the para 25 are denied and it is

submitted that the seniority list issued on 01-10-2004 for the post of

Stock Verifiers was objected to by the respondent No. 4 & 5. In view

of the objection raised by respondent No. 4 & 5 with regard to

seniority list issued on 01-10-2004 and thereby promotion made as

Sr. Stock Verifier, the matter was considered by the Railway Board

and Railway Board vide their letter dt. 6/9.1.2006 settled the issue in
 the light of relevant rules on the subject.

26. Need no comments.

27. Not admitted and in reply thereto the contents of the para 03

( XII ) of the counter reply are reieterated.

28. Not admitted and reply thereto the contents of para 22 of the

counter reply are reieterated.

29. Not admitted and in reply thereto the contents of para 23 of the

counter reply are reieterated.

30. No comments.

31. The contents are denied and reply thereto the contents of para

25 of the counter reply are reieterated.

32. No comments.

33. No comments.

34. No comments.

35. No comments.
36. Already replied in preceding paragraph hence no needs for

further comments.

37. Already replied in preceding paragraphs hence no needs for

further comments.

38. Already replied in preceding paragraphs hence no needs for

further comments.

39. Need no comments.

40. No comments.

41. No comments.

42. In view of the facts stated in para 03 stating breif history of the

case the claim of the petitioner is not tenable and he is not entitled for any

relief as shortfall as OA and same is liable to be dismissed.

43. Need no comments.

 V E R I FI CAT I O N

I, Y.K. Srivastava Dy. Chief Accounts Officer/ G in Diesel

Locomotive Works, Varanasi do hereby verify that contents of paras 1

and 2 of this counter reply are true to my personal knowledge, paras 3

to 35 are verified from record and paras 36 to 39 are base on legal

advise which I believe to be true and rest is submissions before this

Hon’ble Tribunal.

Dated- ......-9-2006

Place:-D.L.W, Varanasi Signature

 That the deponent has gone through the Original Application and its

annexures filed by the applicant under section 19 of the Administrative

Tribunal Act, 1985. The deponent has understood the contents thereof and as

such is in a position to reply the same.

PARAWISE REPLY

4 5. That the contents of para 2 and 3 of the claim petition need no

comments.

6. That the contents of para 4.1 of the petition are matter of record and

need no comments.
7. 7. That the contents of para 4.4 of the petition are matter of record

and need no comments.

8. That in reply to para 4.5 of the petition it is submitted that the

petitioner vide his representation dt. 3-1-95 (Annexure A-5 to the

O.A.) expressed his inability to join on the post of Stock Verifier for

few days stating to post the Junior empanelled employee as such

Mohd. Jamaluddin whose name finds place at Sr. No. 2 of the panel

dt. 5-9-94 was promoted on the post of Stock Verifier vide order dt. 5-

1-95.

9. 10. That the contents and allegations made in para 4.7 are denied

and in reply thereto it is submitted that no such assurance was given to

the petitioner as alleged in para under reply.

11. That the contents and allegations made in para 4.8 are denied and in

reply thereto, it is submitted that the posting of Account Asstt. as

Stock Verifier is promotion as per provisions contained in para 211

and Appendix-IV of Indian Railway Establishment Manual, V0l.-I.

12. That the contents and allegations made in para 4.9 are matter of record

and need no comments.

13. That the contents and allegations made in para 4.10 of the petition are

denied it is submitted that there was no occasion to take place the

 applicant as senior or junior to the incumbent of the to Stock Verifier

immediately after his posting as Stock Verifier. Seniority list of Stock

Verifier was published in 1985. No seniority list of the Stock Verifier

was published by DLW Administration after 1985 during this period

therefore, question of raising objection by the other two Stock Verifier

did not arise.

14. That the contents and allegations made in para 4.11 & 4.12 are matter

of record and need no comment.

15. That in reply to para 4.13 of the petition it is submitted that in DLW

there was only seniority list of Account Asstt since 1985 to

30.9.2004. However, no seniority list of Stock Verifiers is available

since 1985 to 30.9.2004. In the seniority list of Account Astt. of the

aforesaid period only reference of Stock Verifier was made. Therefore,

question to challenge the same does not arise. However, in the

seniority list of Stock Verifiers dt. 1.10.2004 the petitioner has been

shown as senior to Sri Jamaluddin and Sri Rai erroneously as decided

by the Railway Board vide letter dt. 6/9.1.2006 .

16. That in reply to para 4.14 of the petition it is submitted that in DLW

cadre of Stock Verifier and Account Asstt are already existing as

separate. Further it is submitted that as mentioned in the earlier para

 4.13 of this counter reply that only seniority list of Account Asstt.

was being maintained since 1985 to 30.9.2004. In such a situation if a

person who is senior as Account Asstt. and promoted and posted on

the post of Stock Verifier from a later panel then he stands junior to

the one who join as Stock Verifier from earlier panel. This is a

characteristic feature of a cadre.

17. That the contents and allegation of the para 4.15 of the petition are

denied and it is submitted that the seniority list issued on 01-10-2004

for the post of Stock Verifiers was objected by the respondent No. 4 &

5. In view of the objection raised by respondent No. 4 & 5 with regard

to seniority list issued on 01-10-2004 and thereby promotion made as

Sr. Stock Verifier, the matter was considered by the Railway Board

and Railway Board vide their letter dt. 6/9.1.2006 settled the issue in

the light of relevant rules on the subject.

18. That in reply to para 4.16 of the petition it is submitted that the

opportunity of hearing at the time of deciding the issue by the Board

was not required under the rules.

19. That in reply to para 4.17 of the petition it is submitted that since the

petitioner asked for deferment of his promotion on the post of Stock

Verifier and to join later on, he stands junior to the other two
 incumbent on the post of Stock Verifier therefore, he can not be

promoted to the higher grade of Sr. Stock Verifier ahead of them as

stated in para 211 and Appendix IV of the Indian Railway

Establishment Manual Vol-I that posting of Account Asstt. on the post

of Stock Verifier is promotion. Therefore, the provisions of para 224

of the Indian Railway Establishment Manual Vol-I is applicable in this

case.

20. That the contents of the para 4.18 of the petition are denied and in

reply thereto it is submitted that as per provisions contained in para

224 of Indian Railway Establishment Manual Vol-I, the deferment of

promotion and posting on the post of Stock Verifier as pleaded by the

petitioner is refusal therefore, necessary action has been taken by the

Administration in the matter. The Railway Board vide there letter dt.

6/9.1.2006 has decided the issue.

21. That the contents and allegations made in para 4.19 of the petition are

denied and in reply there to the order dt. 9.1.2006 passed by the

Railway Board is in accordance with the rules on the subject after

considering the full facts of the case.

22. That in reply to para 4.20 of the petition it is submitted that the

Railway Board in compliance of the order of this Hon'ble Tribunal dt.

 30.1.2006 passed in O.A. No. 69 of 2006 has considered all the points

raised in O.A. by the petitioner in the light of rules and circulars on

the subject and disposed the same by a reasoned and speaking order

after thorough application of mind.

23. That the contents of para 4.21 & 4.22 of the application is matter of

record and need no comment.

24. That the contents of para 4.23 of the petition are denied and in reply

thereto it is submitted that posting of Account Asstt on the post of

Stock Verifier as clarified by the Railway Board vide their letter dt.

6/9.1.2006 and in terms of para 211 of the Indian Railway

Establishment Manual Vol-I.

25. That the contents of para 4.24 of the petition are denied and in reply

thereto the contents of para 7 of this counter reply are reiterated.

26. That the contents of para 4.25 of the petition are denied and in reply

thereto it is submitted that as per provisions contained in para 211 &

Appendix-IV of the Indian Railway Establishment Manual as well as

clarified vide Railway Board vide letter dt. 6/9.1.2006, the post of a

Stock Verifier is a promotion post therefore, provisions of para 224 of

Indian Railway Establishment Manual is applicable in the petitioner's

case.
27. That the contents of para 4.26 of the petition is a matter of record and

need no comments.

28. That the contents of para 4.27 & 4.28 of the petition is denied and in

reply thereto it is submitted that during the alleged period i.e. between

1996 to 29-9-2004 no seniority list of Stock Verifier was published as

such their was no occasion to raise objection by the two other Stock

Verifier with regard to seniority.

29. That the contents and allegations made in para 4.29 of the petition are

denied and in reply thereto it is submitted that the order dt. 9.1.2006 is

in accordance with the rules on the subject and has been passed by the

Railway Board after due application of mind and considering the full

facts of the case.

30. That the contents of para 4.30 & 4.31 of the petition are matter of

record.

31. That the contents and allegations made in para 4.32 of the petition are

denied and in reply thereto it is submitted that to revert the petitioner

from the post of Sr. Stock Verifier to the post of Stock Verifier has

been taken in accordance with the order passed by the Railway Board

contained in their letter dt. 6/9.1.2006.

32. That the contents of para 4.33 of the petition are denied and in reply
 thereto the contents of para 7 of this counter reply are reiterated.

33. That in reply to para 4.34 of the petition it is submitted that no action

for recovery of salary paid to the petitioner from 1.11.2003 as alleged

in the para under reply has been initiated keeping in view the interim

order dt. 10.7.2006 passed by this Hon'ble Tribunal.

34. That in view of the facts stated in this counter reply the applicant has

neither any prima-facie case nor cause of action to file the present

petition and the same is liable to dismissed/ejected.

35. That contents of para 5 of the claim petition are denied. It is further

stated that the grounds raised in the claim petition being devoid of any

merit and being based on misconception of facts and law are not

legally tenable and are liable to be rejected.

36. That contents of para 6 of the claim petition need no comments.

37. That the averments made in para 7 of the claim petition are

exclusively in the knowledge of the petitioner and as such the

answering-Respondents are not in a position to offer any comments.

38. That the contents of para 8 of the claim petition are denied. It is

further stated that for the facts and circumstances stated above the

petitioner is not entitled for any relief as prayed for in the para under

reply and the same is liable to be dismissed.

39. That the contents of para 9 of the claim petition are denied. It is

further stated that no case whatsoever is made out for granting interim

relief, especially when the main relief and interim relief are

substantially the same and the interim order dated 10. 7. 2006 passed

by this Hon'ble Tribunal is liable to be vacated.

40. That even otherwise the claim petition lacks merits and deserves to be

dismissed with costs to the respondents.

V E R I FI CAT I O N

I, Y.K. Srivastava Dy. Chief Accounts Officer/ G in Diesel

Locomotive Works, Varanasi do hereby verify that contents of paras 1

and 2 of this counter reply are true to my personal knowledge, paras 3

to 35 are verified from record and paras 36 to 39 are base on legal

advise which I believe to be true and rest is submissions before this

Hon’ble Tribunal.

Dated- ......-9-2006

Place:-D.L.W, Varanasi Signature