Union of India Vs Atashi Mukherjee

THIS WRIT PETITION IS FILED UNDER ARTILCES 226 & 227 OF THE CONSTUTITON OF INDIA PRAYING TO SET ASIDE THE FINAL ORDER DATED 16.02.2024 PASSED IN O.A No. 170/437/2022 (ANNEXURE-A) BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD AND HON'BLE MR. JUSTICE T.M.NADAF

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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The Union of India, is in petition under Articles 226 and 227 of Constitution of India, calling in question Order dated 16.02.2024 in O.A.No.170/437/2022, passed by the Central Administrative Tribunal at Bengaluru, (‘Tribunal’, for short), allowing the application, directing the Union of India to extend the benefit of Rules determining the seniority of the applicant as per para-303(a) of Indian Railway Establishment Manual Vol-I (‘IREM’ for short), considering the absence of applicant for not attending the training

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scheduled on 28.09.2020 was due to administrative reasons

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with other directions.

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The parties are referred to as per their rankings before the Tribunal.

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A brief outline of facts leading to the filing of the present petition are as under:-

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The petitioner presently working as Assistant Loco Pilot at Arasikere in Mysuru Division of South Western Railway.

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In response to the recruitment notification issued by Railway Department (RRB), Bengaluru, being Notification No.CEN 01/2018, the petitioner applied for the post. Her RRB merit order was 788.

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A pre-induction training is mandatory for absorption of person appointed to the post supra . The applicant was called upon through e-mail on 23.09.2020 to report the office of 2^nd respondent on 28.09.2020, for undergoing the aforesaid training.

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The applicant booked all the necessary tickets for attending the training and she was about to start her

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journey from West Bengal to Bengaluru on 27.09.2020. However, she was called in fever on 26.09.2020. The Doctor who treated her advised to take rest for 5 days and advised to RT PCR test in view of COVID-19 pandemic at that point of time.

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On 29.09.2020, the applicant sent an e-mail to the petitioner, narrating the facts of her absence in reporting with the 2^nd respondent and to attend the training scheduled, wherein she has stated that she was called in fever from 21.09.2020 morning. However, she was not with fever on 27.09.2020. The Doctor who treated her asked her to undergo a test for COVID-19, and she had submitted for the test on 28.09.2020 as she caught up with mild fever again. Because of these circumstances, she was unable to join for the training scheduled on 29.09.2020.

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On 30.09.2020, the test COVID-19 was positive

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and she was under quarantine, as per the normal SOP prevailing at that point of time. On 07.10.2020, repeated test of COVID-19 was conducted and the result was in negative and she was declared as fit. After receipt of report she has

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sent an e-mail on 08.10.2020, expressing her inability to attend training scheduled on 28.09.2020 due to COVID-19. She has made a request for admitting her in new training batch. She was informed that new batch starts from 19.10.2020. The applicant attended the training and come out successful and absorbed in the post on 10.03.2021.

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The petitioner issued a provisional seniority list of Assistant Loco Pilots (‘ALP’ for short), on 07.03.2022, showing the name of applicant at Sl.No.403 with remarks as “Requested for time to join” .

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Dismayed by the same, the petitioner made a representation on 29.03.2022 requesting to fix her seniority as per her rank, claiming that the reasons for delay in joining training should be treated as administrative reasons, in view of COVID-19 emergency.

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The petitioner turned down the request made by the applicant, stating that she was sent for training in 6^th batch as per her own volition and not for administrative reasons.

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The petitioner thereafter issued final seniority list on 17.06.2022, showing the name of the applicant at Sl.No.401, with the same reasons stated supra .

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Aggrieved by the action of the petitioner, the applicant was before the Tribunal in O.A.No.170/437/2022.

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The applicant has taken contention before the

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Tribunal basing her plea as per the provisions contained in

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Para No.303(a) of IREM, which reads as under

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“Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post. Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination. In case, however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the interse-seniority will be regulated batch wise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se-seniority provided such persons pass the examination at the end of the training in the first attempt.”

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The applicant contended that she could not

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attend the training scheduled on 28.09.2020, due to the reasons that she was tested COVID-19 positive. The reason for not attending is not her own volition, but for the

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pandemic which was tested positive, in view of the strict SOP maintained/declared by the Government at that point of time. In the circumstances, the applicant has urged the Tribunal to consider the reasons as administrative and not

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her own volition. Further, she has contended before the Tribunal that one Sri.Tupakula Narasimha, who was deputed on training in first batch was diagnosed as COVID19 positive while undergoing training. He was discharged from that batch and accommodated in 6th batch along with the petitioner, however, his seniority was protected, as such amounts to treating equals as unequals.

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She has further stated, similarly one Sri.K. Sathish who has failed in Diesel test in the 6^th batch with the petitioner was given seniority above the applicant, which is in violation of IREM.

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Urging these grounds, the applicant sought the indulgence of the Tribunal for treating her absence/nonattending training scheduled on 28.09.2020 as due to administrative reasons and not her own volition as contended by the Union of India. Accordingly, sought to

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allow the application, calling upon the Union to admit her in a proper place in the seniority list as per her appointment, with the batch who have undergone training on 28.09.2020, considering her absence as administrative reasons with other reliefs.

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The Union of India accepting notice has taken the contention that the e-mail was sent on 29.09.2020, subsequent to the date of training scheduled on 28.09.2020. In the said e-mail, she had clearly stated that she had booked her flight on 27.09.2020 and she was not suffering from any fever on 27.09.2020. Further, she has stated that she had no symptom of COVID-19 but with mild fever on 27.09.2020. In the e-mail she has not stated anything regarding COVID-19 positive. However, in the e-mail, dated 30.09.2020, she has stated that as per the test report, she had tested COVID-19 positive.

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Further, the Union of India has contended that on 08.10.2020, she had sent another e-mail, wherein she has stated that on 2^nd test the result was COVID-19 negative. The applicant has made a request to accommodate

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her in the next training batch commencing from 19.10.2020, which is 6^th batch. On her request, she was accommodated in the 6^th batch and completed her training successfully. In these circumstances, the absence of the applicant to attend the training could not be assumed as administrative reasons. As such she cannot take shelter under para 303(a) of IREM. In these circumstances, the seniority provided to her is in consonance with the existing Rules, which does not call for any interference, much less any direction for review the same. The Tribunal having heard the parties before it, was of the opinion that the cause exposed by the applicant requires consideration and held that her absence to undergo training scheduled on 28.09.2020, was due to administrative reasons. The Tribunal has reasoned its order especially at paragraph Nos.11, 12 and 13, which are extracted for easy reference:

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“11. However, there is no dispute regarding the fact that the applicant had indeed developed symptoms and tested positive for covid-19 on 29.9.2020 as per the medical certificate submitted by her. She has also stated that she was declared fit for joining her duties and allowed to travel only after her subsequent PCR test confirmed her as being covid-19 negative on 7.10.2020.

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12. It is widely recognised and accepted that covid-19 pandemic was a National/Inter-national emergency situation. Moreover, if the candidate had developed Covid-19 symptoms during the training programme, and tested as Covid Positive, she would have, in any case not been allowed to continue her training programme and also quarantined. This would have, in any case, resulted in her allocation to a subsequent batch, so as to avoid infection to the other trainee candidates. In fact, her travelling by air after developing fever and having Covid like symptoms would have been an unwise step which could have exposed her fellow air passengers to the risk of exposure to the Covid 19 virus.

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13. The stand of the respondents that in this situation, her request for postponement of her training to a subsequent batch should be considered as a change in training schedule based upon her own request, and not due to administrative reasons due to her developing covid-19 symptoms and being subsequently confirmed as Covid-19 positive, cannot be countenanced.”

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Accordingly, the Tribunal allowed the application,

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holding that the applicant is entitled for seniority as per para No.303(a) of IREM Vol-I and granted the relief of seniority claimed by the applicant with the batchmates who had attended and completed the training programme on 29.09.2020, based on the marks secured by the applicant in the examination in the training programme subsequently undergone.

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It is this order passed by the Tribunal is called in question in this petition.

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Heard Sri.Madhukar M.Deshpande learned

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counsel appearing for petitioner and Sri.K.Shivakumar, learned counsel appearing for the respondent.

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Perused the entire writ petition papers.

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Sri.Deshpande, reiterating the grounds taken

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before the Tribunal, stressed upon Annxure-A4, the e-mail sent on 29.09.2020, to contend that, the applicant clearly stated that on 27.09.2020, she had no fever, but developed mild fever on 28.09.2020, however, there were no symptoms of COVID-19. In the teeth of these facts there is no impediment for her to join the training scheduled on 29.09.2020. However, she on her own, refrained from joining the training now cannot be permitted to take shelter under para No.303(a) of IREM Vol-I to contend that, the same, be considered as administrative reasons. With this, he tried to impress upon us stating that the Tribunal missed this aspect of the matter and jumped to a conclusion holding that the reasons for absence is administrative one, which requires interference at the hands of this Court.

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After going through the entire material, we are

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not convinced by the stand taken by the Union of India, especially in view of para No.303(a),which we have already extracted above. That apart, the Tribunal at paragraph No.12 unequivocally stated that even if the applicant were to attend training programme and subsequently tested as COVID-19 positive, she would have in any case, not been allowed to attend the training programme and also required to be quarantined, this would result in accommodating her in the subsequent batch, so as to avoid any spreading of pandemic with other trainee candidates. Further, it is germane to mention that the time when the training programme was scheduled, the COVID-19 pandemic was on the peak in India and the persons with any symptoms of fever or otherwise attributable to the symptoms of COVID-19 in view of existing SOP were not allowed to travel either by Air or by any other mode, in view of safety of co-passenger.

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In the circumstances, we find that the reason for refraining from attending training scheduled on 28.09.2020 is not a voluntary one, but for COVID-19 pandemic, which

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would definitely fall under the administrative reasons, which would enable a person to be counted in the seniority list to which the candidate is otherwise entitled, had he been attended the training scheduled.

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We find no infirmities in the order passed by the Tribunal. For the foregoing reasons, the petition sans merits resultantly dismissed, directing the Union of India to comply the directions of the Tribunal admitting the petitioner with the proper place in the seniority list to which she is entitled for, with all benefits attributable to the same, in terms of marks secured by her in the examination as observed by the Tribunal. The exercise shall be done within one month from the date of receipt of the copy of this order.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(T.M.NADAF) JUDGE

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RR

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List No.: 1 Sl No.: 25 ct-vn

Union of India v. Atashi Mukherjee

Case brief

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Union of India v. Atashi Mukherjee

Case brief

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