This Original Application is filed under Section 19 of the Administrative Tribunals Act 1985, claiming the following reliefs:
"(i) Quash the communication DGA/SWR/01/Admn/PC/RBN/2023-24/3244 dated 20.03.2024 (Annexure-A9) issued by the second Respondent as unconstitutional and against rules
(ii) Direct the Respondents to order for the deemed absorption of the applicant in the post of Assistant Audit Officer from 15.10.2007 in the office of the second respondent and to fix his pay in the promoted post from date of deemed absorption with all consequential benefits and
(iii) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity."
2. The reliefs are claimed based on the following grounds:
1. As per Recruitment Rule, there is no need to pass SAS (Railway Audit) for absorption. The applicant had already passed the SAS (Civil Audit) exam in December 2006 itself, and the Recruitment Rule for Assistant Audit Officer clearly states that for Deputation/Absorption, the Officers under the Cadre Controlling Authority in the Indian Audit and Accounts Department or in any Organised Accounts Cadre under the Government of India who has passed the Subordinate Accounts Service or Subordinate Audit Service Examination under other Cadre Controlling Authority in the Indian Audit and Accounts equivalent examination in any Organised Accounts Cadre under the Government of India are eligible and the same has been quoted by this Hon'ble Tribunal in Para 3 of their order dated 28-02-2018 (Annexure-A4).
2. The Allahabad High Court judgment in Vijay Singh And Ors vs State Of Uttar Pradesh And Ors. on 28 July, 2004. categorically states that. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. (Vide State of U. P.and Ors. v. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu v. Mis Hind Stone etc., AIR 1981 SC 711).
3. THE HIGH COURT OF HIMACHAL PRADESH in CWP No.49 of 2017 decided on 06.11.2023 held:
18) We are of the opinion that such a contention would run contrary to the principle of law laid down in para 47 (A) of the Direct Recruits case 91 supra) referred to by the Tribunal which categorically held that once an incumbent is appointed to a post according to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation and also that such a contention would be contrary to the Office Memorandum dated November 1992 issued by the Ministry of Personnel (DOPT) Government of India, reiterating the above principle.
19) Admittedly, the Recruitment Rules of 1989 are promulgated by His Excellency the President of India in exercise of powers under Article 148(5) of the Constitution of India and these rules do not provide that for promotion to the post of Audit Officer the period of regular service would be counted only after the successful completion of probation period or the date when an incumbent Assistant Audit Officer would pass the prescribed examination.
20) The Tribunal in our opinion, has rightly held that the petitioners did not have any power to issue the standing orders such as Paras 5.6.2 and 5.6.6 which are inconsistent with Recruitment Rules, 1989 and also contrary to the principles of law laid in the Direct Recruits case (1 supra), which is a law declared under Article 141 of the Constitution of India and binding on the petitioners.
4. As per Para 48 of Railway Audit Manual, Appointments to Section Officers' Service (now Assistant Audit Officer) will be made mainly by:
(1) the promotion of staff of the Railway Audit Offices within a Railway who may have passed the Section officers Grade Examination:
(2) the transfer with the concurrence of the Head of the Office concerned of men in Audit or Accounts Offices not under the control of the DAI provided such men have passed the Section Officers Grade Examination prescribed for the branch of the Audit or Accounts Department in which they may be employed in the later case they may be required to pass in certain selected subjects of the Section officers Grade Examination within a specified time). Copy of the said para of the Manual is placed as Annexure-A10.
From this it becomes clear that, for absorption, passing of SAS (Railway Audit) is not mandatory and anyone who has passed SAS (Accounts or Audit) exam is eligible for absorption in the cadre.
5. As far as passing of SAS (Railway Audit) exam is concerned. the delay was on account of the permission granted to the applicant by the first respondent in 2010 to write SAS (Railway Audit) exam was subsequently withdrawn in 2010 itself without assigning any reason and only after the orders of this Hon'ble Tribunal delivered in 2018, the applicant was advised by the department to write SAS (Railway Audit) exam only in 2019. which he passed in the year 2020. The delay in passing the SAS Railway exam i.e., from the year 2007 to 2019 was purely due to denial of permission by the respondent with no reason.
6. In State Of U.P.& Ors vs Mahesh Narain and others, the Hon'ble Supreme Court of India held on 6 March, 2013, that the mistake or delay on the part of the department should not be permitted to recoil on the appellants and if the delay in promotion takes place at the instance of the Employer, an employee cannot be made to suffer on account of intervening events.
7. In the RA 34/2018 in O.A.No.859/2015 filed Respondents had stated that the applicant had been given proforma promotion as Assistant Audit Officer (Civil) on 27.01.2010. When so, he is entitled for the pay fixation in that grade from 2010 as the proforma promotion is followed by regular promotion on 15.09.2022 without any break. So the denial of the pay fixation from 2010 and denial of NFU (Non Functional Up gradation) are not supported by any rule.
8. It is submitted that one by name Smt. R. Laxmi Sr Auditor from O/o The Principal Director of Audit, Southern Railway. Chennai got proforma promotion as Section Officer in 2008, she was accommodated in O/o The Principal Director of Audit, S W Railway. Hubli citing the reason of availability of vacancies in the cadre. But this applicant though had cleared SAS (Civil) in the year 2006 itself and became eligible for promotion from the date of deputation i.e., 15-10- 2007, and vacancies were available, he was promoted as ASSISTANT AUDIT OFFICER (Deputation) on 27th January 2010. i.e., after delay of more than two years.
9. In the case of Sri.S.N.Rai who came on deputation on 08.06.2006 from the office of Principal Director of Audit, North Eastern Railway to the office of Principal Director of Audit, East Central Railway and requested for his absorption in East Central Railway from 2009, he was issued with the order of absorption retrospectively from 26.03.2007. But this special treatment given to him for the reasons best known to the Respondents has been denied to the applicant. When the same was projected in the representation dated 29.09.2022 and requested by the applicant to extend the same benefits to him also, it was replied by the Respondents on 24.01.2023 (Amtekur + stating that that case was not similar for comparison and that was a special case. This clearly establishes the double standard and discriminatory treatment being extended by the Respondents to their convenience."
3. The brief facts of the case, as mentioned in the synopsis, are that:
The Applicant who had been working as Assistant Audit Officer in the office of the Principal Director of Audit, South Western Railway, Hubballi on deputation for more than 14 years sought for absorption in the deputed post. Since his request was not considered by the Respondent no. 1, he approached this Tribunal under O.A 170/00859/2015 and the same was allowed on 25.01.2016 (Annexure- A2). Further to that, the Writ Petition filed by the Respondents was disposed by remitting the matter back to this Tribunal (Annexure- A3). Further to the disposal of the Writ Petition, as ordered by the High Court, this Tribunal after hearing both the sides was pleased to dispose the O.A by confirming their earlier orders (Annexure-A4). Aggrieved over the righteous decision of this Tribunal, the respondents approached this Tribunal by filing Review Application under R.A.no. 170/00034/2018 and the same was dismissed on 25.10.2018 (Annexure-A5). As no action was taken by the department on the orders of this Tribunal, the applicant approached this Tribunal with execution petition and during the course the MA for execution was pending, the respondents issued an order of absorption of the applicant with effect from 12.03.2021 (Annexure-A6). Since it was not in conformity with the order passed by this Tribunal in OA No.859/2015, this Tribunal was pleased to dispose of the MA on 19.12.2022 (Annexure-A7) with the liberty to the applicant to challenge the said compliance order dated 13.09.2022. Further to that, the applicant submitted many representations to the Respondents requesting his absorption as Assistant Audit Officer from 2007 and to fix his pay accordingly with protection of seniority (Annexure-A8). But the request of the applicant was turned down by the first respondent on 20.03.2024 without assigning any reason (Annexure-A9).
Aggrieved by the decision of the respondents, the applicant has approached this Tribunal seeking justice.
4. On notice, the second respondent has filed their reply statement to the O.A. Respondent No.1 was deleted from the party array as per order in M.A No.362/2025 dated 10.10.2025. A rejoinder has been filed by the applicant thereafter. Further, an additional reply statement has been filed by the second respondent.
5. The case came up for final hearing on 24.2.2026. Learned counsel Shri.K.Shivakumar for the applicant and learned counsel Shri.N.Amaresh for the respondent were present and heard.
6. We have carefully gone through the entire records and considered the rival contentions.
7. From the facts of the case, it is evident that this is an old case which had earlier come to the Tribunal in O. A 859/2015 and vide order dated 25.01.2016, the Tribunal ruled the following:
"2. But then it is found that the applicant had been continuing without any deputation allowance as he is a regular employee and has been promoted and is now continuing for more than 8 years by now. This appears to be covered by a decision of the Hon'ble Apex Court in Rameshwar Prasad Vs. Managing Director. UP Rajakiya Nirman Nigam Limited reported in CDJ 1999 SC 547 wherein also exactly similar situation exist wherein the Hon'ble Apex Court held that in such cases the employee has a right of absorption and the order of rapatriation was quashed. In compliance with it, I direct the applicant be absorbed in the South Western Railway in accordance with the earlier agreement between the parties. OA is allowed to this extent. No order as to costs."
8. The said order was challenged by the respondents before the Hon'ble High Court in Writ Petition No.107532/2016 (S-CAT) and vide order dated 02.08.2017, the Hon'ble High Court ruled the following:
"6. In a matter of the present nature, we are of the opinion that the CAT would have to refer to these aspects of the matter take into consideration the right as claimed by the applicant before it and thereafter arrive at its conclusion as to whether under the Rules governing establishment, such right could be granted to the applicant before it. Therefore, in that circumstance a reconsideration in the matter is required by the CAT.
7. Accordingly, the order dated 25.01.2016 is set aside. The Original Application No.170/00859/2015 is restored to the file of the Central Administrative Tribunal, Bangalore Bench for reconsideration of the matter. In that light, all contentions are left open to the parties before CAT.
Petition is disposed of accordingly."
9. Furtherance to the same, O.A 859/2015 was again heard by this Tribunal and an order was passed on 28.02.2018 in the following manner:
"Therefore after hearing both sides we note that this is a rule which is already produced. We therefore find that from the rules itself this is permissible and the Railways had rightly acceded to the principle but the C&AG had wrongly refuted it. There was no need for such a matter to be challenged in WP for the very simple reason that rules do not exist as the rules were already there in Annexure-A7 in the original OA. Therefore we allow this OA and the same benefits which we granted earlier will remain with the applicant. No order as to costs."
10. A review application was filed as R.A No.170/0034/2018 by the respondents before this Tribunal and an order was passed on 25.10.2018 wherein it was ruled as follows:
"2. The Review Applicants rely on CAG's Manual of Standing Orders in 9.2.14 where it is stated that "no candidate will be allowed to take the Section Officers' Grade Examination of any branch other than of the branch which is appropriate to the establishment in which he is serving. For this purpose, the Section Officers' Grade Examination mentioned in the second column below will be regarded as appropriate to the members of the establishment mentioned in the first column. In clause (5) Railway Audit Offices is against Section Officers' Grade (Railway Audit Branch).
3. Apparently the original applicant joined the Railway Audit Branch in 2007 and appeared and passed an examination in 2009, therefore, even according to this rule he could have passed only that relevant examination at that point of time and nothing else. They also rely on 9.2.15. No such activity on the part of the Comptroller and Auditor General had been brought to our notice till now. Based on imagination we cannot review our orders. Therefore nothing remains to review our orders.
4. The RA is dismissed. No order as to costs."
11. In furtherance of the same, an Office Order was passed on 15.09.2022 by the Indian Audit and Accounts Department, Office of the Directorate General of Audit, South Western Railway, Hubli which read the following:
"कार्ाालर् आदेश / OFFICE ORDER As per Headquarters Letter No.1596-Staff (App- 1)/04-2021/Vol-1 dated 09.09.2022, the Director General of Audit. South Western Railway, is pleased to absorb Shri Rajesh B. Nandagad, Sr. Accountant of the office of PAG (A&E), Karnataka, Bengaluru, as Assistant Audit Officer. Group 'B' (Gazetted), in Pay Level 8 (Pay Matrix of 7th CPC) with effect from 12.03.2021 in this office subject to the following terms and conditions:
i. Shri Rajesh B. Nandagad. Sr. Accountant has submitted an undertaking as: -
a. He fully understands the terms and conditions of absorption and
b. He agrees that the absorption would be permanent & irreversible and that he does not have any lien on the post in his parent cadre i.e.. PAG (A&E), Karnataka. Bengaluru.
ii. The absorption of Shri Rajesh B. Nandagad. Sr. Accountant would be effective from 12.03.2021 i.e. the date of his passing the SAS (Rly Audit) Exam.
iii. As Shri Rajesh B. Nandagad, Sr. Accountant would be treated absorbed retrospectively i.e., from 12.03.2021, therefore, he will not be eligible for Deputation Allowance. Deputation Allowance, if paid, will be recovered.
iv. The pay of Shri Rajesh B. Nandagad shall be fixed with reference to his cadre pay in his parent office. The higher pay drawn on the ex-cadre post, if any, will be ignored for this purpose."
12. Further, M.A 6/2022 was filed in O.A No.859/2015 wherein an order was passed on 19.12.2022 and the Tribunal observed that:
"Learned counsel for the respondents has filed a memo dated 19.12.2022 along with the compliance report.
2. Learned counsel Shri.K. Shivakumar appearing for the applicant disputes the same. It is submitted that the absorption of the applicant with effect from 12.03.2021 is not in conformity with the order passed by this Tribunal in O.A 859/2015.
3. Given the circumstances, reserving liberty to the applicant to challenge the said compliance order dated 13.09.2022, this M.A No.6/2022 stands disposed of."
13. As the applicant was given the liberty to challenge the compliance order dated 13.09.2022 in O.A 859/2015, the applicant has come again before us challenging his earlier regularization and asking for his regularization with effect from 15.10.2007 as the deemed date of his absorption with all consequential benefits as he had joined the new organization on that day.
14. He has also challenged the communication dated 20.03.2024 (Annexure A-9). But these all appear to be an afterthought, as only after being absorbed and regularized in the new organization, the Indian Audit and Accounts Department, Office of the Directorate General of Audit, South Western Railway, the applicant is now changing goal posts, asking them to regularize on the first day of his joining the new service. He has been before the Court since 2015 under O.A. 859/2015, and he has not sought any such regularization from the very first day. On asking how many people like him are there in the present cadre in the office of the Indian Audit and Accounts Department, Office of the Directorate General Audit, South Western Railway, it was pointed out that it may be about 30 people. It is also not known how many of them are senior to him and how their seniority will be affected if the applicant is given the benefit of absorption seniority and consequential benefits from 2007. He has not made any of the affected parties in his cadre as parties in this O.A. So this Original Application suffers from serious mis-joinder of parties. Applicant is unable to clearly tell us as to who all will be affected in his cadre, if his absorption is made effective retrospectively from 2007? As in the earlier rounds of litigation his absorption and regularization in the new establishment of Railways was already adjudicated and the applicant has failed to substantiate if he had been asking for his regularisation from 2007 since in earlier round of litigations?
15. In the absence of any satisfactory explanation, clearly, it may appear as a case of agitating for the same matter and issues by changing the goalpost of year of absorption. Hence, in this case, the case is seriously hit by the principles of res-judicata, which bars the parties from agitating the same issue again and again as the claim or issue that has already received a final judgment by a competent court on merit. And that also without making the affected persons as party will remain devoid of merit.
16. Further, we see that letter dated 15.09.2022 in Annexure A-6, G.O.O. No.24 also mentions clearly that absorption of Shri. Rajesh B Nandagad, Senior Accountant, would be effective from 12.03.2021, i.e., the date of his passing the SAS (Railway Audit) Examination, and he has not challenged the same and the said letter clearly mentions that he would be treated absorbed retrospectively with effect from 12.03.2021. The applicant has challenged only subsequent communication dated 20.03.2024 only. Hence, we do not find any merit in this case.
17. We have to give the issue raised and tried to revive afresh with a changed timeline a finality and stop the repetitive representation of the same matter. The applicant has not even challenged his letter of absorption dated 15.09.2022 wherein one of the conditions written was very clearly i.e., absorption is effective from 12.03.2021. Once he has not challenged the same, he is estopped from challenging any further communications. In furtherance of the said absorption order, getting absorbed without any protest, the applicant is barred to raise same issue in fresh litigation again and again multiple times.
18. Considering the same, we do not find any merit in the case and accordingly, we pass following orders:
The Original Application is dismissed.
All associated M.As, if any pending, are disposed of accordingly.
