Central Administrative Tribunal - Kolkata
Ashok Kumar Mukherjee vs Eastern Railway on 24 March, 2021
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$ - CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
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No. O.A. 350/00614/2018 Date of order: ^ '
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
1. Ashok Kumar Mukherjee
Son of Mohendra Nath Mukherjee
Aged about 59 years residing at Dhania Para Road,
Barrackpore, Post Office, Non-Chandanpukur,
District 24 Parganas (North) and working as
Assistant Draftsman redesignated as
Junior Engineer with effect from 1990
Under the Chief Administrative Officer (Construction),
Eastern Railway, 14, Strand Road,
4th Floor, Kolkata - 700001.
ii. 2. Ashim Kumar Roy
Son of Late M.M.Dey,
Residing at Village Arobinda Pally,
Post Office Dattapukur,
District 24 Parganas (North) and working as
Assistant Draftsman redesignated as
Junior Engineer with effect from 1990
Under the Chief Administrative Officer (Construction),
Eastern Railway, 14, Strand Road,
4th Floor, Kolkata - 700001.
3. Avijit Ghosh,
Son of late Jibon Ghosh,
Residing at Prantick Sarani
Post Office Rabindanagar, Kolkata-700065
and working as Assistant Draftsman redesignated as
Junior Engineer with effect from 1990
Under the Chief Administrative Officer (Construction),
Eastern Railway, 14, Strand Road,
4th Floor, Kolkata - 700001.
4. Debasish Banerjee,
Son of late Chandra Sekhar Banerjee
Residing at 206 Bansdroni Place, Kolkata 700070
and working as Assistant Draftsman redesignated as
Junior Engineer with effect from 1990
Under the Chief Administrative Officer (Construction),
Eastern Railway,
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14, Strand Road,
4th Floor,
Kolkata - 700001.
Applicants
Versus
1. Union of India
Service through the General Manager,
Eastern Railway, 17, N.S.Road,
Fairlie Place,
Kolkata-700001.
2. The Chief Personnel Officer,
Eastern Railway, 17, N.S.Road,
Fairlie Place,
Kolkata-700001.
3. The Chief Engineer (S&C)
Construction Department,
Eastern Railway, 17, N.S.Road,
Fairlie Place,
Kolkata-700001.
4. The Chief Administrative Officer (Construction)
Eastern Railway, 17, N.S.Road,
Fairlie Place,
Kolkata-700001.
Respondents
For the Applicants Mr. P.C. Das, Counsel
Ms. T. Maity, Counsel
For the Respondents Mr. D. Nandi, Counsel
ORDER
Dr. Nandita Chatterjee, Administrative Member:
The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
"(a) Leave be granted to move one single application jointly under Rule 4(5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as the applicants have got a common grievances against the impugned speaking order dated 27,02.2018 and all of them are similarly circumstanced persons;
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(b) To quash and/or set aside the impugned speaking order dated 27.02.2018 issued by the Chief Administrative Officer (Construction), Eastern Railway, Kolkata by / which the claim of the applicants Kas been rejected by not considering the Railway Board's circulars in its true spirit which is appearing at Annexure A-16 of this original application which is not sustainable in the eye of law and which is clearly against the Railway Board's circulars existing in the field.
(c) To pass an appropriate order directing the respondent authority to regularize the services of the present applicants to the post of Assistant Draftsman with effect from 1990 subsequently redesignated as Junior Engineer with effect from 1.1.2006 against which your applicants discharging the duties and function to the post of ADM with effect from 1990 subsequently redesignated as Junior Engineer of last 27 years and your applicants after being declared successful in the departmental selection process promoted to the post of ADM with effect from 31.8.1990 being Annexure A-6 of this original application;
(d) To pass an appropriate order directing the respondent authority to take immediate steps to regularize the present applicants to the post of ADM/JE along with all consequential benefits;"
2. M.A. bearing No. 350/00319/2018 praying for joint prosecution was allowed on 10.5.2018 by this Tribunal. Hence, applicants are allowed to jointly pursue this matter.
3. The facts, in brief, are as follows:-
The four applicants were appointed as Casual Storeman / Casual Khalasi with effect from 1.8.1988, 20.2.1979, 26.12.1984 and 1.1.1996 respectively. Subsequently they had acquired temporary status in work charged posts and their lien and seniority were maintained in different units of the open line establishment namely, DCOS/Liluah, DCOS/Halisahar and DCOS/Sealdah respectively.
That, vide notification dated 12.4.1990, options were floated to engage Draftsmen purely on .adhoc basis from serving Gr. 'D' staff with requisite qualification. Preference was to be extended to those who were Matriculate or its equivalent, and those who possessed said qualifications with LCE. No response, however, was received to such notification, and, hence, the authorities decided to ' i conduct a selection process comprising a written test and viva-voce to address 1 Cu f V.I > J. •I vl 1 4 o.a. 614.2018 Vr •> the shortages of Draftsmen in the Construction Department. 16 numbers of ■ t candidates were thereafter found suitable to be placed as Assistant Draftsmen and they were so placed vide orders dated 9.8.1990 (Annexure A-5 to the O.A.) purely as an adhoc measure while retaining their lien and seniority intact in the field units in the open line establishment.
The applicants, being aggrieved with the fact, that despite functioning for 27 years w.e.f. 1990 as Assistant Draftsman, they have not been regularized by the Construction Department of Eastern Railways, have approached this Tribunal in second stage litigation, assailing the decision/inaction of the respondent authorities on the following grounds:-
(i) That, the applicants were regularized in the post of Khalasi /Chain Man w.e.f. 7.2.1994, 21.1.1997 and 4.7.1994 respectively. While the applicants No. 1 and 2 had moved from DCOS, Liluah, Eastern Railway, applicant No. 3 had moved from DCOS Halisahar, Eastern Railway and applicant No. 4 from DRM, Sealdah, Eastern Railway.
(Annexure A-l to the O.A.) respectively.
(ii) That, after being declared successful in the Departmental Selection Process, they were permitted to work on adhoc basis against regular posts of Assistant Draftsman w.e.f. 31.8.1990 and 5.9.1990 respectively.
(iii) That, the applicants are working since 1990, but, even after rendering 20 years of service they are yet to be regularized in the post of Assistant Draftsman with consequent denial of benefits of ACP and MACP.
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(iv) That the applicants had prayed for regularization in the post of
V Assistant Draftsman, but such representations were not responded
to by the respondent authorities.
(v) That, upon the recommendations of the Sixth Central Pay
Commission, the post of Assistant Draftsman was redesignated as Jr. Engineer with an upgradation of pay scale from Rs. 4000-6000/- to Rs. 5000-8000/-, and, that, such recommendations were accepted by the Railway Board vide its circular RBE Nos. 223/1998 dated 28.9.1988 respectively.
(vi) That, another circular bearing RBE No. 79/2000 declared that the post of Assistant Draftsman will be abolished and subsequently redesignated as Jr. Engineer with an upgraded pay scale of Rs. 5000- 8000/-.
(vii) As the applicants were appointed on adhoc basis to the post of Assistant Draftsman w.e.f. 1990, they were entitled, by virtue of RBE No. 223/1998 and RBE No. 79/2000, to be redesignated as Jr. Engineers, implying thereby that as they are performing the duties to the post of Jr. Engineer, they are entitled to be promoted to the post of Jr. Engineers.
(viii) That, vide orders dated 8.9.2010 (Annexure A-ll to the O.A.), 50% of the post of Assistant Draftsman were abolished, and another 50% were upgraded in the scale of Rs. 5000-8000/- and the applicants were granted adhoc promotion to the same to perform the work of Jr. Engineer but without any financial benefits.
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(ix) Vide Railway Board's letters dated 4.9.1996 and 10.6.2011 (Annexure A-13 & A-14 to the O.A.), it was confirmed that the services of adhoc Tracers were regularized, consequent to which they may progress to the category of Assistant Draftsman. The applicants, being similarly circumstanced, should hence be accorded the benefits hitherto denied to them.
4. The respondents, per contra, would dispute the claim of the applicants on the following grounds:
(i) That, the applicants were posted as Assistant Draftsman on an adhoc basis vide orders dated 9.8.1990 (Annexure A-5 to the O.A.) by keeping their lien and seniority intact in the field units of open line establishment,
(ii) That, the applicants are eligible to be promoted within their seniority groups only in the open line establishment, and, that, the responsibility of awarding promotion within the open line establishment lies with the cadre controlling authority of the open line establishment.
(iii) That, the provisions of RBE No. 79/2000 and RBE No. 223/1998 exclusively pertain to open line staff of Engineering Department and not to those working in the Construction Department against work charged posts.
Accordingly, to avail benefit of such circular, the applicants would have to be reverted to open line establishment at the outset.
(iv) That, the applicants had approached this Tribunal in the first stage ! litigation in O.A. No. 350/00387/2017 read with M.A. , No. :
* 350/00243/2017, and, in compliance to the directions of the Tribunal therein, the authorities had issued a speaking order on 27.2.2018, in which ii if 'i S 4 I f.
7 o.a. 614.2018 it has been amply clarified that the applicants are duly enlisted in the i seniority list of the respective Units wherein their lien is maintained and that they are entitled to promotion as per law which should be granted by their cadre controlling authorities whenever they come in zone of consideration in the cadre hierarchy.
(iv) The Construction department cannot promote any staff working in a work charged post as against those working in revenue posts.
(v) No seniority list or corresponding cadre has been maintained for the applicants as Assistant Draftsman in the Construction department as they are borne in their original cadre in the open line establishment.
(vi) As these applicants are working in work charged posts, such posts get abolished as and when the specific construction work is over and regular promotions are only accorded when incumbents are working against revenue posts of a perennial nature. The redesignation of Assistant Draftsman as Jr. Engineer vide RBE No. 79/2000 hence applies to incumbents working against regular posts and not for work charged posts. It is noted that no rejoinder is found on record vide which the contents of the reply to the O.A. would have been rebutted by the applicants.
5. Having examined the pleadings and having heard contra arguments, we would proceed to examine the documents and circulars referred to / relied upon by the respective Ld. Counsel.
6.(i) From Annexure A-l to the O.A. it is clear that the lien for each of the applicants has been maintained in DCOS, Liluah, DCOS, Halisahar and DCOS, Sealdah respectively. Hence, admittedly, the applicants working as Assistant Draftsman (Adhoc) had retained their lien in the open line establishment.
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(ii) The circular dated 10.6.2011 (Annexure A-l to the O.A.) also states as follows:-
"Sub:- Ad-hoc promotion of staff in Construction and other projects.
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3. It has also been decided that henceforth all promotions shall be done with the approval of the Cadre Controlling authority who is competent to issue regular promotions. The need for adhoc promotion should be personally approved by the Cadre Controlling Authority of the Open Line before any such adhoc promotion is granted by Construction Organisation."
(iii) Annexure A-5 and A-6 to the O.A. are crucial documents whereby the applicants, inter alia, were selected provisionally for construction department as temporary status staff. It was also made clear in the said order that the above panel would remain confined with the Construction department only and would have no bearing with the open line, implying thereby that the adhoc promotions would not automatically grant commensurate benefit to the selectees upon their reversion to their parent cadre.
(iv) Annexure A-6 to the O.A. dated 31.8.1990 also stated as follows:-
"The panel and promotion of undemoted staff is confined to Construction Department only. The staff would be reverted to their former post on the availability of regular staff from RRB or 'from die Division'."
This order further clarifies that although selectees are only borrowed from the original cadre as an adhoc measure they would be reverted on the appointment of regular staff further underlying that the selectees have not been promoted on a regular basis.
(v) Next, the contents of RBE No. 223/1998 has been examined and, inter alia, the said circular has notified as follows (emphasis supplied):
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9 o.a. 614.2018 xxxxxxxx f Applicability of various Cadres f Ms
(b)(i) These orders will be applicable to regular cadres on Open Line Establishment including Workshops and will include posts of rest givers and leave reserves. They shall not apply to the Production Units.
(ii) Insofar as operation of posts in various higher grades is concerned, these orders will not be applicable to Construction Units and Projects as also to ex-cadre and work charged posts which will continue to be based on worth of charge. However, posts in the grade Rs. 4000-6000/- in such organisations also will have to be phased out.
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Hence, RBE No. 223/1998 is clearly applicable only to the incumbents who are borne on the regular cadres of the Open Line Establishment. As it is not disputed that the applicants belong to the Open Line Establishment, RBE No. ■ j ;C' '; > 223/1998 would be applicable to the applicants, once so reverted.
(vi) Further, the applicants have also relied on RBE No. 79/2000 at Annexure A-10 to the O.A. :
The preamble to this circular starts as follows (emphasis supplied):- c 4 "Subject:- Pay scales of Drawing, Design and Estimating Staff in Production Units. Pursuant to t)ie V CPC recommendations orders regarding allotment of appropriate pay structure etc. relating to the staff working in Drawing, Design and Estimating cadre in the open :.Y. line Establishment including workshops in the zonal Railways were issued vide Board's letter of even number dated 28.9.1998 (RBE 223/1998). The main features of the said orders are (i) introduction of apex Group 'C' scale ofRs. 7450-11500 (RPS) in the cadre and (ii) abolition of f:"? the lowest grade ofRs. 4000-6000 (RPS) i.e. the post of Assistant Draftsman in a phased manner. & Ir xxxxxx The question of bringing the recruitment pattern etc. far the category of Design/Drawing/Estimating staff of Production Units on the lines of orders issued vide Board's letter of even number dated 28.9.1998 (RBE 223/1998) far analogous categories of staff working in Zonal Railways has been under construction of Ministry of Railways far some time. The matter has been examined and it has been decided that the pay structure and recruitment/career advancement pattern of the Drawing/Design Cadre of the Production Units be brought at par with the pay structure and recruitment/career advancement pattern now available in the Zonal Railways as per the guidelines given below."
Hence, RBE No. 79/2000, by inference, also applies to staff working in the Open Line Establishment.
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(vii) Reliance has also been placed by the applicants to Circulars at Annexure / A-13 and A-14 to the O.A. While A-13 to the O.A. refers to regularization of adhoc Tracers, it also clarifies that the Tracers, after regularization, may progress to the category of Assistant Draftsman in accordance with relevant extant instructions. This decision of the Railway Board does not grant promotion to the post of Assistant Draftsman automatically to the Tracers, so regularized. The applicants have not brought forth before us any incidence wherein an incumbent, holding lien in open line establishment, has been regularized in the post of Assistant Draftsman in the construction establishment.
(viii) Annexure A-14 to the O.A. is a reiteration of Annexure A-l to the O.A. in
-■ =: which responsibility for promotions have been vested with the cadre controlling authority.
(x) Next, we examine the speaking order and we infer therefrom, that according to the respondent authorities:-
(i) The applicants were engaged as Draftsman purely on an adhoc measure vide orders dated 9.8.1990 on temporary status while retaining their lien and seniority in Field Units of Open Line Establishment.
(ii) The provision of RBE No. 79/2000 relates to Open Line Establishment.
(iii) As the applicants were borne in the cadre of the Open Line Establishment, the construction department is not the authorized department to promote them, particularly, in work charged posts which are to be abolished after completion of the project and the applicants cannot have any claim to posts of perennial nature.
•<;. * IhU,' r 11 o.a. 614.2018 Ld. Counsel for applicants would rely on AIR 2000 SC 2808 (Rudra Kumar Sain v. Union of India & ors.) to argue that continuous officiation has to be reckoned with in computing length of service. The issue in Rudra Kumar Sain (supra) was related to the inter se seniority of promotees and direct recruits based on their length of service. The instant dispute is on whether the applicants have a claim to regular promotion, when their seniority and lien is maintained in another cadre. Hence, the ratio in Rudra Kumar Sain (supra) does not come to the aid of the applicants.
Ld. Counsel would also rely on the ratio pronounced in Direct Recruit Class II Engg. Officers' Association v. State of Maharashtra AIR 1990 SC 1607, which held, inter alia, that, if the appointee continues in the post uninterruptedly till regularization of his service in accordance with Rules, the period of officiating service will be counted.
In the present matter, the applicants, being borne in the cadre of open line establishment, cannot claim regularization in construction cadre against work charged posts that would cease to exist upon termination of project work.
To the contrary, in Gopal Singh v. State Cadre Forest Officers' Association (2007) 9 SCC 309, the Hon'ble Apex Court had ruled that officers belonging to a different cadre cannot claim promotion to a post i required to be filled by promotion of officers belonging to another cadre. In FCI v. Sone Lai, (2005) 13 SCC 11 wherein the Hon'ble Apex Court had held that, promotion must be granted by the competent authority. Like 1' many other areas, the matter must be viewed by substance and not the i form. (re j • 12 o.a. 614.2018 J i\. -i In Chanchal Goyal (Mrs.) v. State of Rajasthan, 2003 (3) SCC 485, the Hon'ble Court held that successive extensions of temporary appointment does not give rise to legitimate expectation of regularization.
It is hence a settled principle of law that a promotion on an officiating basis will not normally confer upon the promotee a right to hold the post. And, unless duly regularized, employee is liable to be reverted to the substantive post from which he was given officiating promotion at the end of such officiation.
7. Accordingly, while deprecating the action of the respondents in continuing the applicants for a decade or more in the adhoc posts of Assistant Draftsman, without attempting to fill up the regular vacancies, as per extant rules, the only relief that can be granted to the applicants is to give them liberty to prefer representations to the competent authority to be reverted to their Open Line Establishment. Once, so reverted, they should be duly taken ,into consideration for promotion as per their entitlement subject to their being in the zone of consideration of their cadre hierarchy. If so promoted, in accordance with law. consequent benefits should be released to the applicants.
8. The applicants may represent within 6 weeks of the date of receipt of a copy of this order, and, if so received, the respondent authorities may conclude their remaining process within 16 weeks thereafter.
9. With these directions, the O.A. is disposed of. No costs.
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(Dr. Nandita Chatterjee) (Bidisha Banerjee)
Administrative Member Judicial Member
SP