JUDGMENT :

AKIL KURESHI, J.

1. Petitioner, original respondent No. 3, has challenged a judgment dated 27.07.2011 in O.A. No. 171 of 2010 with M.A. No. 344 of 2010 passed by the Central Administrative Tribunal, Ahmedabad. Brief facts are as under.

2. Petitioner was appointed in the railway administration in 1976. On 11.10.1980, he was absorbed in Electrical Department as Instrument Mechanic Gr.III. On 09.07.1983, he was promoted as Instrument Mechanic Gr.II in the same department. In the year 2002 when the petitioner was working in Speedometer Section of Bhavnagar Electrical Workshop as Instrument Mechanic Gr.I that section was closed down by the railway administration with effect from 14.05.2002 due to transfer of activity to Diesel Shed. Three employees, including the petitioner, thus became surplus and had to be absorbed elsewhere as per policy of the railways. From the reply filed by the railway administration to the O.A. filed by respondent No. 1 herein, it appears that, while other two employees were so absorbed, due to oversight, since the petitioner was discharging his duties elsewhere temporarily, in his case transfer was not effected at the relevant time. Later on this error came to the notice of railway administration and the petitioner was absorbed as Electrical Fitter Gr.I in May 2005 with effect from 14.05.2002 with his past seniority being intact. The petitioner was also promoted to the next higher post of Master Craftsman on 10.11.2005 on the strength of such past seniority after passing suitability test prescribed for such promotion.

3. Respondent No. 1 herein, who was all along in the Electrical Department and whose seniority was disturbed in the cadre of Electrical Fitter Gr.I by virtue of absorption of the petitioner, as mentioned above, challenged the decision of the railways to absorb the petitioner with past seniority preserved as also promotion to the next higher post of Master Craftsman. He filed O.A. 171 of 2010. Since there was delay in filing the O.A. he also preferred a Miscellaneous Application for condonation of delay. The Tribunal disposed of both the proceedings by a common judgment. The Tribunal allowed the application for condonation of delay and simultaneously proceeded to dispose of the O.A. The Tribunal was of the opinion that absorption of the present petitioner in a different cadre with past seniority was not permissible. The Tribunal, therefore, passed the following order:

“11. For the reasons stated above, the impugned order dated A/0 and A/2 namely office order dated 10.11.2005 and communication dated 13.10.2005 are quashed and set aside. The OA is disposed of with a direction to the respondents to re-determine the seniority of the applicant vis-a-vis respondent No. 3 on the basis of the principle contained in the circular dated 25.5.2004 and the law laid down by the Hon'ble Supreme Court, and extend consequential benefits arising therefrom within a period of three months of date of receipt of this order. No order as to costs.”

4. Learned counsel Mr. Shevade for the petitioner raised the following contentions:

(i) Original Application was hopelessly barred by limitation. The Tribunal ought not to have condoned the delay in absence of proper explanation. The petitioner was not only absorbed in the new cadre on the basis of his past seniority but was promoted on the next post where he worked from 2005 till 2010 when the O.A. was filed.

(ii) The Tribunal erred in relying upon the decision of the Supreme Court in V.K. Dubey vs. Union of India, (1997) 5 SCC 81, since three-Judge bench of the Supreme Court in case of Paresh Chandra Nandi vs. Controller of Stores, N.F. Railway, (1970) 3 SCC 870 had held that railway administration has power to transfer an employee from one post to another while protecting his lean and past service. Learned counsel also drew our attention to a decision of a Division Bench of Rajasthan High Court dated 02.02.2007 passed in case of G.K. Gandhi and Others vs. Union of In