6-21-2013 Guy Petrillo REPLY MEMORANDUM OF LAW in support of Billelo Doc. 1337
Reply From Law Cell
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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V E R I F I C A T 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
Honble Tribunal.
Dated- ......-9-2006
Place:-D.L.W, Varanasi Signature
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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 F I C A T 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
Honble Tribunal.
Dated- ......-9-2006
Place:-D.L.W, Varanasi Signature