Central Administrative Tribunal - Patna
Arun Kumar Singh vs East Central Railway on 24 January, 2024
1 OA No. 744/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00744/2023
Reserved on: 9th January, 2024.
Pronouncement on: 24th January, 2024
CORAM
HON'BLE MR S.K. SINHA, MEMBER [A]
HON'BLE MR AJAY PRATAP SINGH, MEMBER [J]
1. ARUN KUMAR SINGH SON OF SRI PARAS NATH SINGH, CHIEF
LAW ASSISTANT, EAST CENTRAL RAILWAY, HAJIPUR, RESIDENT
OF APARNA COLONY, RAM JAIPAL NAGAR, PATNA-801503.
(BIHAR)
2. AJAY KUMAR PRABHAKAR SON OF LATE JITENDRA KUMAR
PRABHAKAR, CHIEF LAW ASSISTANT, EAST CENTRAL
RAILWAY, HAJIPUR, RESIDENT OF SOMESHWAR NATH COLONY,
Patna HAJIPUR-844101 (BIHAR).
Bench
........Applicants.
-VERSUS-
1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY
OF RAILWAY, RAILWAY BOARD, RAIL BHAWAN, NEW-DELHI-
110001.
2. THE DIRECTOR (ESTT), MINISTRY OF RAILWAY, RAILWAY
BOARD, RAIL BHAWAN, NEW-DELHI-110001.
3. THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR,
P.O. DIGGHI KALAN, P.S. - HAJIPUR, DISTRICT VAISHALI AT
HAJIPUR, PIN CODE 844101 (BIHAR).
4. THE PRINCIPAL CHIEF PERSONNEL OFFICER, EAST CENTRAL
RAILWAY, HAJIPUR, P.Ο. DIGGHI KALAN, P.S. HAJIPUR, DISTRICT
- VAISHALI AT HAJIPUR, PIN CODE (BIHAR).
5. THE DEPUTY CHIEF PERSONNEL OFFICER (GAZ), EAST
CENTRAL RAILWAY, HAJIPUR, P.O. DIGGHI KALAN, P.S.
HAJIPUR, DISTRICT - VAISHALI AT HAJIPUR, PIN CODE - 844101
(BIHAR)
........Respondents.
For Applicant:- Shri M.P. Dixit, Advocate
For Respondents:- Shri H.P. Singh, Sr. Central Govt. Standing Counsel
For intervener:- Shri B.K. chowdhary, Advocate
O R D E R (O R A L)
As Per:- Ajay Pratap Singh, Member[Judicial]
1. The applicants have filed present original applicant under Section 19 of the Administrative Tribunals, Act 1985 to set aside orders dated 25.09.2023 and 25.09.2023 communicating the decision taken by the competent authority to 2 OA No. 744/2023 delete the name of applicants from zone of consideration to the post of Assistant Personnel Officer (for brevity hereinafter referred as APO) Group 'B' under 30% LDCE Quota. So also seeking direction to declare order dated 26.09.2023, whereby applicants have been held eligible provisionally for viva- voce scheduled on 27.09.2023 as mere formality as competent authority has already taken decision to delete their names.
PRAYER
2. The applicants have claimed following main reliefs (as extracted from the OA) as under:-
"(i) That your Lordships may pleased to quash the order dated 25.09.2023 contained in Annexure A/1 Series issued for the respondent No.4 communicating the decision already taken by competent authority to delete the name of applicants from zone of consideration to the post of Assistant Personnel Officer (Group-B), under 30% quota at the final stage which is unsustainable and unreasonable in the eye of law.
(ii) That your Lordships may pleased to declare the order dated 26.09.2023 received through whatsapp in the night of 26.09.2023 whereby applicants have been held eligible provisionally for Viva-Voce test scheduled to be held on 27.09.2023 at 12.30 Noon in such a haste which is also a mere formality when the decision of competent authority has already communicated to delete their names from zone of consideration vide order dated Patna Bench 25.09.2023.
(iii) Any other relief or reliefs including all consequential benefits together with the cost of the proceeding may be allowed in favour of the Applicant."
ON FACTS
3. Briefly stated the facts as adumbratedby the applicants that applicants are at present working as Chief Law Assistant (for brevity hereinafter referred as CLA), East Central Railway, Hajipur in G.P. 4600/-, (Level-7). The applicant no. 1appointed as Assistant Station Master on 12.11.2003 in Scale Rs. 4500-7000 (Now in Level-6) under North East Frontier Railway and got regular promotion to the post of Station Master on 24.07.2006 in G.P. Rs. 4200/- (Level-6). Thereafter selected to the post of CLA on 14.08.2012 in G.P. 4600/-, (Level-7). The applicant no. 1 thereafter on own request was transferred from North East Frontier Railway and joined Eastern Central Railway on 20.04.2015.
4. The applicant no. 2 was appointed as Assistant Station Master on 03.03.2006 in pay scale of Rs. 5200-20200, G.P. Rs. 2800/- (Level-5) under North Central Railway, Allahabad in Agra Division. The applicant no. 2, thereafter on mutual request transferred in year 2008 joined in Sonpur Division, Eastern Central Railway on the post of ASM. Thereafter, promoted to post of Station Master on 17.07.2010 in Pay Band-II 9300-34800 G.P. 4200/- (Level-
6). Subsequently through departmental competitive examination appointed on promotion to the post of CLA on 01.04.2016 in G.P. 4600/- (Level-7). The applicants have completed more than 13 and 10 years respectively as on 02.07.2019 in Group 'C'. Hence, accordance with Statutory Indian Railways 3 OA No. 744/2023 Assistant Personnel Officer (Group B, Gazetted) Recruitment Rules, 2018 (for brevity hereinafter referred as Rules, 2018)applicants are eligible for recruitment by promotion through 30 % LDCE to the post of APO Group B, G.P. 4800/- (Level-8).
5. Per contrathe respondents have contested the claim of applicants by filing the written statement that applicant no. 1 was appointed as CLA G.P. 4600 (Level-7) at North East Frontier Railway from Station Master in G.P. 4200 (Level-6) and came to Eastern Central Railway through own request transfer on bottom seniority joined on 20.04.2015 at DGM Law office, East Central Railway Patna. On cut-off date 02.07.2019 for determining eligibility criteria of APO 30% LDCE Applicant No. 1 has only 4 years 2 months and 12 days regular serviceat Eastern Central Railway,whereas as per notification length of service for eligibility criteria is 5 years regular service in G.P. 4200 (Level-6) or above for staff of deptt in para 3 ofnotification. As per RBE Patna Bench 40/2008 dt. 13.03.008 and on 02.07.2019 the cut-off date for determining eligibility criteria immediate senior to applicant no. 1 is Mr. Govind Kumar, CLA and his services in Eastern Central Railway is 4 years 4 months 11 days. Thus neitherapplicant no. 1nor his immediate senior Mr. Govind Kumar completed 5 years non-fortuitous service in Eastern Central Railway as on cut- off date i.e. 02.07.2019 hence both are ineligible to take up selection 30% LDCE Quota for APO, Group B. The respondents have further contested claim of applicant no. 2 stating that promoted in Operating Deptt on 17.07.2010 and on 01.04.2016 appointed as CLA G.P. 4600 (Level-7) in Eastern Central Railway from post of Station Master G.P. 4200 (Level-6). The total length of regular service of applicant no. 2 in East Central Railway is 3 years 3 months and 1 day. Since applicant no. 2 prior to promotion as CLA G.P. 4600 (Level-7) worked as Station Master in Operating deptt not eligible for selection to APO 30% LDCE Quota and Station Master Cadre has separate avenue of promotion to post of Asstt. Operating Manager, Group B. Thus service rendered by applicant no. 2 as Station Master G.P. 4200 (Level-6) cannot be reckoned for purpose of counting service for selection of APO 30% LDCE Quota. The respondents have further stated that by mistake both applicants were declared eligible whereas they have not completed five years of regular service in G.P. 4200 (Level-6) or above in Eastern Central Railway. On request applicants have been permitted to take viva-voce on 27.09.2023.
4 OA No. 744/20236. The rejoinder has been filed by the applicants specifically denying the contentions of respondents made in the written statement and stated that applicants have been allowed to participate at the every stage of the selection process and now at fag end of selection declared not eligible and directed to delete names from list of eligible candidates who qualified in CBT for selection to the post of APO (Group B) 30% LDCE Quota. The RBE 40/2008 stipulates as to immediate senior and Mr. Govind Kumar senior not applied and eligibility to be counted with Shri Awadhesh Kumar Sinha. Services of applicant No. 2 rendered in operating deptt in same G.P. 4200 (Level-6) cannot be ignored as he is working as CLA G.P. 4600 (Level-7) Group 'C' staff as provided in Rules 2018. The post of AOM, Group B is for all non-ministerial Group C staff of operating deptt in G.P. 4200 (Level-6) and above and applicant no. 2. Consideration for promotion to APO Group B is fundamentalright under Article 14 & 16 of the Constitution of India. The applicant no. 1 and no. 2 in G.P. 4200 Patna Bench (Level-6) since 24.07.2006 and 17.07.2010 respectively completed more than 6 years and 5 years service, respectively whereas in G.P. 4600 (Level-7) as on 02.07.2019 already completed more than six years and three years respectively. Hence the present OA deserves to be allowed setting aside orders dt. 25.09.2023 and 25.09.2023.
ARGUMENTS OF THE APPLICANTS
7. The learned counsel for applicants argued that (i) The applicant no. 1 was initially appointed on 12.11.2003 as A.S.M. in scale 4500-7000 (now level
6) in North East Frontier Railway and on 24.07.2006 promoted to post of Station Master in G.P. 4200 (Level-6) in North East Frontier. So also selected on 14.08.2012 to post of CLA in G.P. 4600 (Level-7) under North East Frontier. The North East Frontier is applicant no. 1 previous/old unit and on own request transferred to East Central Railway on 20.04.2015 on same post of CLA G.P. 4600 (Level-7). Hence as on cut-off date 02.07.2019 applicant no. 1 since 24.07.2006 in Level-6 and from 14.08.2012 continued in Level-7. As per Rules 2018 has already completed more than five years in G.P. 4200 (Level-6) in pay-matrix regular basis eligible as prescribed under Rules 2018 for post of A.P.O. G.P. 4800 (Level-8).(ii)The notification for 30% LDCE Quota is basedon purely merit and open to the volunteers who fulfill eligibility irrespective of their seniority. The applicant no.1 transferred on own request from previous unit to new unit Eastern Central Railway on 20.04.2015 on post of CLA G.P. 4600 (Level-7) and as per respondents in new unit completed 4 years 2 months and twelve days and short of about ten months for eligibility. As 5 OA No. 744/2023 per RBE No. 40/2008 the service rendered in previous unit may be reckoned for determining their eligibility for promotion in the new unit subject to the condition that length of service which is so allowed to be counted i.e. about ten months rendered in previous unit, which is allowed to be counted does not exceed the length of service of their immediate senior in the new unit. Though the Rules 2018 nowhere prescribes five years regular service in Level-6 to be continuous in only in one unit. As per RBE No. 40/2008 if about ten months are reckoned of service of previous unit to be counted for five years service than also applicant is eligible as per rules because his immediate senior in new unit Mr. Govind Kumar CLA completed four years four months eleven days and length of service about ten month of applicant no. 1 allowed to be reckoned for eligibility does not exceed total length of service of immediate senior i.e. Mr. Govind Kumar. Thus applicant no.1 is fully eligible to participate in selection process pursuant to notification dt. 15.07.2022 for A.P.O. Group B governed by Patna Bench statutory Rules 2018 and past regular service in the grade in old unit cannot be ignored for purpose of determining eligibility of applicant in accordance with statutory Rules 2018 prescribing criteria for eligibility.
8. The counsel for applicants further argued that so far as applicant no. 2 was appointed on 03.03.2006 as ASM Pay Band Rs. 5200-20200 G.P. Rs. 2800 (Level-5) North Central Railway, Allahabad in Agra Division. On own request mutual exchange transferred in year 2008 from North Central Railway (old- unit/previous unit) to Eastern Central Railway (New unit) and in year 2008 joined to Eastern Central RailwaySonpur Division on the same post in same pay band. In East Central Railway on 17.07.2010 promoted as Station Master P.B.- II Rs. 9300-34800, G.P. 4200 (Level-6) and continued on 01.04.2016promoted as CLA G.P. 4600 (Level-7) posted at Samastipur, ECR. Hence accordance with statutory Rules 2018 for selection to APO Group B G.P. 4800 (Level-8) against 30% LDCE purely on merit five years regular service in G.P. 4200 (Level-6) or above is required. Applicant No. 2 has completed about nine years since 17.07.2010 in G.P. 4200 (Level-6) in East Central Railway and since 01.04.2016 in G.P. 4600 (Level-7). Thus as per Rules 2018 fully eligible to participate in selection in question. So far as Rules 2018 nowhere prescribe continuous service in one unit only and in East Central Railway applicant no. 2 has completed 3 years 3 months 1 day and accordance with RBE No. 40/2008 service of one year nine months service in G.P. 4200 (Level-6) of previous unit if reckoned for determining eligibility for promotion in the new unit than accordance with rider will not exceed length of service of their immediate 6 OA No. 744/2023 senior in new unit. The Rules 2018 will always prevail over executive instruction RBE 40/2008 and applicant no. 2 is in Group C post of CLA G.P. 4600 (Level-7) eligible as per Rules 2018 and holding post on regular basis in G.P. 4600 (Level-7) in pay-matrix and does not have avenue of promotion to Group B on post of Asstt. Operating Manager. The right to promotion of applicants governed by Rules 2018 and on flimsy grounds respondents cannot close avenues of promotion by unfair standards violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution of India.
9. Learned counsel for applicants also relied on judgments/orders summarized as under:-
(a) Scientific Advisor to RakshaMantri Versus V.M. Joseph 1998 (5) SCC 305 decided on 14.01.1998, Hon'ble Supreme Courtplaced reliance in decision in case of UOI Vs. C N Ponnappan AIR 1996SC 764-held that where employee transferred on bottom seniority list,the Patna Bench service rendered by him at earlier place where he has been transferred being regular service has to be counted towards experience and eligibility for promotion.
(b) Union of India Versus Dalip Kumar in W.P. (C) No. 6603/2014 decided on 26.09.2014 Hon'ble High Court of Delhi dealing with identical case of Railway against order dt. 22.05.2014 passed by Ld. Tribunal in OA No. 797/2014. The Hon'ble High Court held that selection based on 30% LDCE based on merit open to all eligible candidates irrespective of their seniority.
(c) Raghubir Singh &Ors. Versus Union of India, in OA No. 1755/2019 the coordinate Bench of Principal Bench of this Tribunal vide order dt. 23.11.2009 dealing with identical issue in railway relied on Full Bench of Madras Bench of Ld. Tribunal in TA No. 65/1987 K.A. Balasubramaniam and OA No. 2153/2001Sandeep Kumar Kaushik Vs. UOI declared RBE 34/2006 ultra vires and held that prescribed length of service to be eligible is for service to be in a particular grade and no reference to a particular unit.
(d) Rajesh Kumar Patidar Vs. Union of India, OA No. 774/2016 (Jabalpur) and ShailendraMankar Vs. Union of India, OA No. 772/2016 (Jabalpur) the Coordinate Bench of this Tribunal at Jabalpur also allowed OAs involving similar issue considering entire service at the old unit to be counted while considering eligibility criteria of service for promotion.7 OA No. 744/2023
ARGUMENTS OF THE RESPONDENTS
10. The learnedcounsel for respondents argued that applicant no.1 now working as Chief Law Assistant in Eastern Central Railway in G.P. 4600/- New Pay Level-7. Earlier applicant No. 1 was working as Station Master in G.P. 4200, Level-6 in North East Frontier Railway and promoted to the post of Chief Law Assistant G.P. 4600/-.on 20.04.2015.Applicant no. 1 on own request transferred from North East Frontier Railway to Eastern Central Railway on bottom seniority posted at O/o DGM, Law Office, Patna.The applicant No. 1 on cut-off dated 02.07.2019 as per notification dated 15.07.2022 for APO, completed total 4 years 2 months and 12 days non-fortuitous service at Eastern Central Railway, whereas requirement accordance with para 2 of Notification dt. 15.07.2022 for APO, 30% Group B, LDCE 30% Quota to determine eligibility minimum five years non-fortuitous service in G.P. 4200/- or above for staff mentioned in para 3 of notification is mandated.The applicant no. 1 has Patna Bench only completed 4 years 2 months and 12 days non-fortuitous service at Eastern Central Railway and senior to applicant no. 1 in Chief Law Asstt., G.P. 4600 (Level-7) cadre of Eastern Central Railway as per seniority list 17.01.2022 (Annexure R/2) namely Shri Govind Kumar CLA completed only 4 years 4 months 11 days. Thus neither applicant no. 1 nor his senior Govind Kumar in CLA Cadre at Eastern Central Railway completed 5 years non-fortuitous service in Eastern Central Railway as required eligible for selection to the post of APO Group B against 30% Quota.Hence in view of RBE 40/2008 Para 1. Subject to condition that length of service which is so allowed to be counted does not exceed the length of service of their immediate senior in new unit. Since senior Mr. Govind Kr., CLA has not completed five years of non- fortuitous service in Eastern Central Railway applicant no. 1 cannot beheld to count five years non-fortuitous service and in Eastern Central Railway not completed 5 years non-fortuitous service in Level 6 and above. Thus in accordance with para (1) of RBE 40/2008 applicant no. 1 not eligible for selection to APO Group B held on 17.07.2018 and overlooking list of eligible candidates and can be corrected any time hence impugned notice dt. 25.09.2023 is justified.The applicants permitted to take viva-voce on request otherwise they are ineligible to participate in selection process of APO Group B as per RBE 40/2008 not completed 5 yrs non-fortuitous service in Level 6 & above in East Central Railway and senior also not completed.
11. The learnedcounsel for respondents also argued that so far applicant no. 2 is concerned- On 17.07.2010 promoted as Station Master G.P. 4200 (Level-6) 8 OA No. 744/2023 thereafter on 01.04.2016 promoted to Chief Law Asstt. G.P. 4600 (Level-7).The total length of service as CLA in East Central Railway is 3 years 3 months 1 day as per notification dt. 15.07.2022 and not completed five years of non- fortuitous service in G.P. 4200 (Level-6) and above in ECR.The para 3 of Notification dt. 15.07.2022 permits only Ministerial staff of operating department (OS &Ch.OS) as eligible staff and applicant no. 2 was Station Master G.P. 4200 (Level-6) in Operating Deptt. not eligible to participate in selection for APO Group B.Applicant No. 2 was serving as Station Master non- Ministerial, Operating Deptt. and not allowed to participate as per para 3 of notification and has separate avenue of promotion in Group B A.O.M. in Operating Deptt. Thus service renderedas Station Master in G.P. 4200 (Level-
6) cannot be counted for length of service for selection to APO 30% LDCE Quota.
12. Learned Counsel appearing for respondents relied on judgments Patna Bench summarized as under:-
(a) The Hon'ble Supreme Court in case ofState of Uttar Pradesh Versus Karunesh Kumar &Ors. Civil Appeal No. 8822-8823 of 2022 decided on 12.12.2022. Their Lordships held candidate who has participated in the selection process estopped from questioning said selection.
(b) The Hon'ble High Court Patna in C.W.J.C. No. 12515 of 2015 Union of India & Ors. Versus Ranjeet Kumar &Ors. decided on 11.01.2016 placed reliance on the decision of case of Union of India Vs. DeoNarainand others reported in (2008)10SCC 84 held that such juniors to wait for their turn to get their promotion taking any other view of the matter would be virtually restoring the lost seniority which is not intended.
13. We have bestowed our anxious considerations on the rival contentions of Ld. Counsel appearing for applicants, respondents and intervener and perused material placed on record as well as considered precedents relied.
14. The admitted facts that applicant no. 1 was promoted on the post of Station Master on 24.07.2006in G.P. 4200 (Level-6) in the previous unit N.F.R. and on 14.08.2012 promoted on post of CLA G.P. 4600 (Level-7). On 20.04.2015 on own request transfer to East Central Railway joined on the same post of CLA G.P. 4600 (Level-7). So also the applicant no. 2 appointed as ASM pay band Rs. 5200-20200 GP Rs. 2800 (Level-5) and on mutual exchange transferred to new unit East Central Railway joined in year 2008. The applicant 9 OA No. 744/2023 no. 2 on 17.07.2010 promoted as Station Master in G.P. 4200 (Level-6). Thereafter selected and promoted on 01.04.2016 as CLA G.P. 4600 (Level-7) and continuously working. Thus applicants completed more than five years in level-6 and above non-fortuitous service but not in continuity in new unit.
15. The dispute in the present case is that respondents issued notification dated 15.07.2022 for LDCE 30% Quota for post of APO Group B G.P. 4800 (Level-8). The para 2 and 3 of above notification prescribed eligibility criteria - the permanent Group C employee who have rendered not less than five years non-fortuitous service in the pay band II Rs. 9300-34800 G.P. 4200 (Level-6) and above as on 02.07.2019 are eligible to apply. The cut-off date for eligibility is 02.07.2019. So also as per RBE 40/2008 dt. 13.03.2008 "in case persons transferred to a new unit in same category of posts and assigned bottom seniority therein. The service rendered by such employees in the previous unit may be reckoned for determining their eligibility wherever a minimum length of Patna Bench service is prescribed as a condition for promotion in the new unit. Subject to the condition that length of service which is so allowed to be counted does not exceed the length of service of their immediate senior in the new unit." The 30% LDCE is open to volunteers from Group C categories staff.
The stand of the railway is that applicant no. 1 came to Eastern Central Railway through own request transfer on bottom seniority from old unit North East Frontier Railway on 20.04.2015 and posted as CLA at DGM Law Office Patna. On 02.07.2019 cut-off date for determining eligibility criteria of APO 30% LDCE applicant no. 1 has completed only 4 years 2 months and 12 days non-fortuitous service at Eastern Central Railway, whereas criteria is 5 years non-fortuitous service in G.P. 4200 (Level-6) or above for staff mentioned in para 3 of the notification. The further stand of railway that as per RBE 40/2008 as on 02.07.2019 cut-off applicant no. 1 immediate senior Shri Govind Kumar CLA in East Central Railway has completed service of 4 years 4 month & 11 days. Hence, applicant no. 1 cannot be permitted to be held eligible not completed 5 years service in G.P. 4200 (Level-6) or above in Eastern Central Railway and senior in Eastern Central Railway is also not eligible.
So far as dispute relates to the applicant no. 2 the stand of the railway is that he was promoted on the post of Station Master in Operating Department on 17.07.2010 G.P. 4200 (Level-6) in Eastern Central Railway so as on 02.07.2019 cut-off for eligibility in G.P. 4200 (Level-6) or above since applicant no. 2 promoted on post of CLA G.P. 4600 (Level-7) on 01.04.2016 completed 3 years and 3 months & 1 day in East Central Railway. Since applicant no. 2 10 OA No. 744/2023 served in Operating Deptt. as Station Master not included in Ministerial staff of operating not eligible for selection in question and has avenue of promotion as Asstt. Operating Manager, Group B in Operating Deptt. The applicants stand is that notification for selection to APO Group 30 % LDCE is executive order and eligibility criteria is prescribed in statutory Rules 2018. The Rules 2018 for 30% LDCE, APO Group B prescribes for eligibility, applicants are in Group C staff Chief Law Assistants and holding posts on a regular basis in G.P. 4200 (Level-6) or above in pay matrix with five years of regular service in G.P. 4200 (Level-6) and above and Rules 2018 nowhere provides regular service has to be continuous in one unit and LDCE is purely on merit based seniority has no role. Thus applicants are eligible accordance with statutory recruitment Rules 2018.
THE ISSUE
16. From the above submissions of the learned counsel for the parties and material placed on record, Indian Railways Assistant Personnel Officer (Group Patna Bench 'B'. Gazetted) Recruitment Rules, 2018 (in short Rules 2008), clause 6.3 LDCE, 6.3.1, 6.4 and 6.5 of Master Circular No. 68 governing promotion from Group C to Group B, RBE 40/2008 dated 13.03.2008 and binding precedents. The Core issue arises before this Tribunal for determination is:-
"Whether applicants who have been transferred from previous unit to new unit on own request assigned bottom seniority can have service in previous unit from where they have been transferred counted as experience for purpose of eligibility for promotion in new unit where they are transferred?"
RELEVANT RULES
17. Before dealing with the rival contentions advanced at the Bar, it is apposite to quote relevant portion of language of Rules 2018, Master Circular No. 68 governing promotion Group C to Group B, RBE 40/2008, judgments binding precedents in similar facts and legal issue in cases of railways, pari- materia provisions pronounced by Hon'ble Supreme Court, High Courts and Coordinate Benches of this Tribunal.
(i) The Indian Railways Assistant Personnel Officer (Group B, Gazetted) Recruitment Rules, 2018 framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the President made Rules 2018, relevant extract reads as under-
Method of recruitment whether In case of retirement by promotion or deputation/absorption, by direct recruitment or by grades from which promotion or deputation/absorption to be promotion or by deputation/ made absorption and percentage of the vacancies to be filled by various methods (10) (11) By promotion: Promotion:
11 OA No. 744/202370% by promotion through selection and 30% by promotion (A) 70% of the vacancies shall be filled by promotion through through Limited Departmental selection (which shall include a written test and also viva voce Competitive Examination. test) from amongst the following:
(i) Group 'C' Ministerial staff of the Personnel Department;
(ii) Group C Ministerial Staff of Stores and Transportation (Traffic and Commercial) Department, Statistical and Compilation Branch, Chief Law Assistants, Stenographers of all Departments (excluding Accounts Department) who have an avenue for promotion to Group 'B' in their own Department but on the basis of option being given to them, have elected to be considered for promotion to the post of Assistant Personnel Officer, and
(iii) Group 'C' Ministerial Staff working in cadre post in any other Department of the Indian Railways excluding Hindi Organisation and Accounts Department but including Cash and Pay and Time office who have no avenue for promotion to Group 'B' in their own Department.
The selection shall be made from the staff holding posts on a regular basis in level-6 in the pay matrix and above with three years of regular service in level-6 (including regular service rendered in the corresponding pre-revised grades).
Note 1: Where juniors who have completed their qualifying or eligibility service and are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion Patna to the next higher grade along with their juniors who have already Bench completed such qualifying or eligibility service.
Note 2: After the written examination held as part of 70% selection for Group 'B' post of Assistant Personnel Officer, candidates to the extent of six times the number of vacancies are to be called for the viva-voce, in the order of merit. Thereafter, successful candidates are to be empanelled on the basis of seniority.
(B) 30% of the vacancies shall be filled through a Limited Departmental Competitive Examination from amongst Group C staff of Departments referred to in sub-paragraph (i), (ii) and (iii) of paragraph (A) above, holding posts on a regular basis in level 6 in the pay matrix with five years of regular service in level-6 (including regular service rendered in the corresponding pre- revised grades).
(i) Limited Departmental Competitive Examination is however purely merit based.
[Emphasis supplied] The eligibility criteria is by promotion through selection 30% of vacancies for promotion through LDCE from Group C staff of departments referred to in sub-paragraph (i) (ii) and (iii) of paragraph (A) above, holding posts on a regular basis in G.P. 4200 (Level-6) in pay-matrix with five years of regular service in Level-6 purely merit based selection.
(ii) The Railway Board has issued Master Circular No. 68 governing promotion from Group C to Group B and relevant extract reads as under:-
6.3 LDCE "6.3.1. For LDCE, all Group 'C' employees working in grade the minimum of which is Rs.5000/- and in higher Group 'C' grades will be eligible for consideration provided they have rendered not less than five years of nonfortuitous service in the grade. (No.E(GP)99/2/22 dated 22.7.2004) 6.4. Law Assistants/Chief Law Assistants are eligible for promotion to the post of APO or ACM in addition to their normal avenue of promotion to the post of ALO/Estate Officer etc. depending upon the option they exercise. The option can be exercised after an employee gets selected to 12 OA No. 744/2023 any of the gazetted cadre. Such an option should be exercised within 30 days of the result of the selection/LDCE by the employee in writing and option once exercised should be treated as final.
(No.E(NG)II/87/PO/Genl/8 dated 23.6.89 7 No.E(GP)88/2/54 dated 31.1.92) 6.5 The Ministerial employees of Traffic & Commercial department, stores Department, Statistical and Compilation branch, Cash & Pay Time office staff, Stenographers as also Ministerial employees in other departments who do not have an avenue of promotion to Group 'B' posts in their own departments have been provided an avenue to the post of APO. Such employees should be given the opportunity to exercise option for promotion within one month of the result of the Selection/LDCE and the option once exercised should be treated as final. The Panel may be kept as provisional till the option is finally exercised within one month.
However, if employee after getting empanelled opts out, the next qualified candidate should be placed on the panel with the approval of the competent authority duly observing the rules and orders for reservation of vacancies for SC/ST candidates and thereafter final panel should be published. (No.E(GP)92/2/9 dated 25/3/1992)"
[Emphasis supplied]
(iii) The RBE 40/2008 dated 13.03.2008 is reproduced as under:-
RBE No. 40/2008: Request Transfer - Counting of Service No E(GP)2005/2/74, dated 13.03.2008 Sub:-Promotion from Group C to Group 'B-Counting of service rendered Patna Bench in old unit for the purpose of determining eligibility for promotion to Group 'B' posts.
1. instructions have been issued under Board's letter No.E(NG)-
2006/PM1/5, dated 21.03.2006 (RSE No. 34/2006), whereby, in partial modification of instructions issued under Board's letter No. ENG- 96/PM4/14, dated 17.04.1997 (RBE No. 55/1997), it has been decided that in case of persons transferred on request basis to a new unit in the same category of posts, and assigned bottom seniority therein, the service rendered by them in the previous unit may be reckoned for determining their eligibility wherever a minimum length of service is prescribed as a condition, for promotion in the new unit, subject to the condition that the length of service which is so allowed to be to counted does not exceed the length of service of their immediate senior in the new unit.
2. in this regard, it is hereby clarified that the above instructions are applicable for reckoning the minimum qualifying service of Group Cemployees, in case of own request transfer to a new unit in the same category of posts, for determining their eligibility for promotion to Group "B" posts also.
[Emphasis supplied]
(iv) Before examining the Core issue framed, we would first deal with binding precedents some of judicial pronouncements settled the law on similar facts and issue in hand. So also judgments dealing with pari-materia provisions as under:-
(a) Honb'le Supreme Court in case of RenuMullick Versus Union of India, reported in 1994 (1) SCC 373: AIR 1994 SC 1152:- The Hon'ble Apex Court was seisin with identical issue when officer transferredon his own request not entitled to count the service renderedby him in the former collectorate for purpose of seniority in the new charge. Question for consideration was whether the said officer be further deprivedof the said service even for determining his eligibility for promotin to the higher cadre?13 OA No. 744/2023
The relevant para 10 and 11 are reproduced for ready reference as under:-
"10. We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2(ii) of the executive instructions dated May 20, 1980 shows that the transferee is not entitled to count the service rendered by him/tier in the former collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The transferee is to be treated as a new entrant in the collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion is per her turn in the seniority list in the transferee unit and only if she has put in 2 years' service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid, Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be determined with reference to Rule 4 alone, which prescribes the criteria for eligibility. There is no other way of reading the instructions aforementioned.If the instructions are read the way the Tribunal bas done, it may be open to challenge on the ground of arbitrariness.
11. The provisions of the Rules reproduced above lay down that a UDC with 5 years' service or UDC with 13 years of total service as UDC and LDC taken Patna together subject to the condition that he should have put in a minimum of 2 Bench years of service in the grade of UDC, is eligible to be considered for promotion to the post of Inspector. The Rule nowhere lays down that 5 years or 13 years have to be spent in one collectorate. There is no indication, whatsoever, in the Rule that the service period of 5 years and 13 years is not applicable to an officer who has been transferred from one collectorate to another on his own request. On the plain language of the Rule the appellant, having served the department for more than 5 years as UDC and also having completed 13 years composite service as UDC and LDC including 2 years minimum service as UDC, was eligible to be considered for promotion to the post of Inspector. The Tribunal failed to appreciate the elementary rules of interpretation and fell into patent error in non-suiting the appellant."
[Emphasis supplied]
(b) Honb'le Supreme Court in case of Union of India & Ors. C.N. Ponnappan reported in 1996 (1) SCC 524.The Hon'ble Apex Court spoken through Lordship Hon'ble Justice S.C. Agarwal dealing with the identical issue.-wheher an employ who is transferred from one unit to other on compassionate grounds and as a result is placed at the bottom of the seniority listcan have his servicein the earlier unit from where he has been transferred counted as experience for the purpose of promotion in the unit where he is transferred?
There wasdifference of opinion amongst the Benches of Ld. Tribunal on the above question In C.N.Ponnapan vs. Union of India decided on 20th June 1986. The Madras Bench of this Tribunal has taken the view that though on transferon compassionate grounds the employee loses his seniority and is placed at the bottom of the seniority list at the transferred place but for the purpose of promotion his earlier service in the unit from where he was transferred is not wiped out and the said service has to be treated as experience 14 OA No. 744/2023 for the purpose of his eligibility for such promotion and if he is found eligible then the matter of promotion has to be considered on the basis of seniority at the transferred place. The Banglore Bench of Ld. Tribunal in S.Abdul Khyaum&Ors. Versus Union of India decided on 30th Sept. 1986 did not agree with the view of Madras Bench of the Tribunal in Poonappan's case (supra). The matter was considered by the full Bench, wherein the Full Bench of the Tribunal agreed with the view of the Madras Bench in Poonappan's case and has held that a person who is transferred on compassionate grounds only loses his seniority but he does not lose the benefit of the past service in the previous unit for the purpose of his promotion.The Civil Appeal No. 1221of 1987 was filed against Madras Bench of the Tribunal in Poonappan's caseand appeal was dismissed.
(c) Hon'ble Supreme Court in case of Scientific Advisor to RakshaMantri&Anr. Versus V.M. Joseph 1998 (5) SCC 305 decided on Patna Bench 01.04.1998. Their Lordships dealing with identical issue arising out of order dt. 23.02.1988 passed by Madras Bench of the Tribunal, whereby-the Tribunal issued direction to reckon as qualifying service for the purpose of eligibility for promotion of previous unit, whereas department excluded period of service rendered having been transferred on own request and placedat bottom seniority. The Hon'ble Supreme Court held reads as under:-
Even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused, with seniority as they are two different and distinct factors.
This Court in Union of India & Ors. vs. GN. Ponnappany AIR 1996 SC 764= 1996(1) SCC 524, has held that, where an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being regular service has to be counted towards experience and eligibility for promotion.
[Emphasis supplied]
(d) The Coordinate Bench of Principal Bench of the Tribunal in OA No. 1755/2009 Raghubir Singh &Ors. Versus Union of India & Ors. decided on 23.11.2009 dealing with identical issue of eligibility for LDCE on ground not completed prescribed five years service in the stipulated pay scale under northern railway. The OA had been allowed by Tribunal placing reliance of OA 2153/2001 Sandeep Kumar Kaushik & Ors. Versus Union of India decided by Principal Bench of the Tribunal vide order dt. 04.10.2002, allowed OA relying upon the CAT Full Bench decision in K.A. Balasubramaniam Versus UOI 15 OA No. 744/2023 TA No. 65/1987(Madras Bench) decided on 05.10.1987 and relying on Hon'ble Supreme Court judgment in Ram Mullick (Smt) Versus UOI &Anr. 1994 (1) SCC 373.. The OA No. 2153/2001 Sandeep Kumar Kaushik & Ors. Vs. UOI (Supra) involved the issue identical to the present case. The applicants were therein Group 'C' candidates claiming for promotion to group B in railways.
The Coordinate Bench of the Principal Bench of this Tribunal in OA No. 1755/2009 Raghubir Singh (Supra) has set-aside RBE34/2006 dated 21.03.2006 held as ultra-vires.
(e) The Coordinate Bench of the Principal Bench of this Tribunal in OA 797/2014 Sh. Dalip Kumar Versus Union of India and others decided on 22.05.2014 was also in seisin with identical issue of Group C employee of Railway claiming eligibility for promotion for Group B with similar facts. The Coordinate Bench of Principal Bench of this Tribunal has held as under:-
Patna Bench 6. The applicant counsel argued that Para 6.3.1 of the Master Circular of the Railways reads as follows:
For LDCE, all Group D employees working in grade the minimum of which is Rs.5000/- and in higher group C grades will be eligible for consideration provided they have rendered not less than five years of non-fortuitous service in the grade. The case of the applicant is that he had worked in North Eastern Railway on the post of DMS III from 10.08.2004 to 05.12.2005. Thereafter, he again worked in this grade in Northern Railway we.f. 12.07.2007. Thus altogether on 01.04.2011 he had completed 05 years of service in the grade of Rs 5000-8000 which is the grade of DMS-III. Thus, he was eligible to appear for LDCE under 30% quota. However, the respondents were not counting his service in North Eastern Railway, Gorakhpur on the post of DMS-III and have declared him ineligible for the aforesaid examination. The applicant counsel stated that since the transfer was on his own request, the applicant had agreed to take bottom seniority in the Northern Railway.
However, this does not lead to forfeiture of the service that he had rendered in North Eastern Railway. He stated that the respondents have clearly erred by doing so. Relying on the judgment of the Apex Court in the case of DwarkaPrashad and Ors. Vs. UOI & Ors., 2004(1) ATJ (SC) 591, he stated that it is a well settled principle of law that consideration for promotion in a fair, manner is a legal right of the employees. Further, he relied on the judgment of the Apex Court in the case of UOI &Anr. Vs. V.N. Bhat, 2003 Supp. 4 SCR 857 in which it was held that own request transfer cause loss of seniority and not of experience or eligibility.
7. The respondents, on the other hand, have disputed the averments of the applicant. According to them the applicant took reversion and came to Northern Railway as Senior Clerk in a lower grade on his own request and accepted bottom seniority in the category of Senior Clerk. Therefore, he cannot be treated as transferred in the same category of posts and his service in the previous unit cannot be counted. Further, the respondents have stated that his immediate senior Sh. Hem Raj K was not eligible for this selection on the crucial cut off date on 01.04.2011. Hence, the applicant also cannot be treated as eligible.
8.1 We find that the eligibility condition for 30% LDCE was 05 years of service in the grade of Rs.5000-8000 as on 01.04.2011 and not 05 years of continuous service. Admittedly, if the service of the applicant in North Eastern Railway is also counted, then the applicant possesses the requisite 05 years experience in the grade of Rs.5000-8000 and is eligible for taking this examination. However, the respondents have stated that 16 OA No. 744/2023 since the applicant came on transfer to a lower grade on his own request and also accepted the bottom seniority, his service in the previous unit cannot be counted. We find this arguments to be fallacious and clearly against the law laid down by the Apex Court in the case of V.N. Bhat (supra) in which the following has been observed:-
It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on the selection basis, the concerned employee, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefore. This aspect of the matter is clearly covered by the three decisions of this Court, namely, A.P. Seb v. R. Parthasarathi, 1998(9) SCC 425- 1998(3)SLI 245(SC), Scientific Advisor to RakshaMantri v. V.M. Joseph, 1998(5)SCC 305 and RenuMullick v. Union of India, 1994(1)SCC 373. We further notice that in OA-651/1997 (L.C. Joshi & Ors. Vs. UOT & Ors.) decided on 26.08.1997 while considering cases of Inspectors who had taken transter to Delhi Collectorateorn their own request and had also accepted bottom seniority, this Tribunal had held that in selections in which seniority is not relevant and selection have to be made on length of service, the applicants therein had to be considered as they had only accepted bottom seniority and their past service cannot be ignored on these grounds. The order of this Tribunal was upheld by the Hon ble High Court of Delhi in Writ Petition No. Patna 3776/2001. SL.P filed against the order of Hon ble High Court was also Bench dismissed. On the basis of the above, we find merit in the contention of the applicant.
8.2 The respondents have also stated that since the immediate senior of t the applicant, namely, Sh. Hem Raj K was not eligible for this selection, the applicant also cannot be treated as eligible. We find this argument to be misplaced. The applicant has rightly drawn our attention to Para-3 of the Circular No. 167/2006 dated 23.10.2006 which reads as follows:
It is further clarified that para 203.2 of IREM Vol.1, under which in case a junior employee is considered for selection by virtue of his satisfying the relevant minimum service conditions, all persons senior to him shall be held to be eligible, is relevant only for 70% selections which has afixed Zone of consideration based on seniority. LDCE is open to all eligible candidates irrespective of their relative seniority. Wherever the provision relating to LDCE has been incorporated in the Recruitment Rules, the aforesaid provision has been made as a Note under 70% selection only. LDCE in the nature of direct recruitment examination confined only to departmental candidates. In this examination seniority does not play any role. All employees fulfilling the prescribed length of service criteria are eligible for this examination. This has very clearly been laid down in the above mentioned circular of the Railway Board. Thus, the stand taken by the respondents is contrary to their own Circular and is not accepted.
9. On the basis of above analysis, we find merit in this O.A. and allow the same. We direct that the applicant will be treated as eligible for 30% LDCE quota examination by counting his service in the grade of DMS- III both in North Eastern Railway as well as Northern Railway and his case be processed further accordingly. No costs.
[Emphasis supplied] The Order dated 22.05.2014 in OA No. 797/2014 Sh. Dalip Kumar Versus UOI was challenge by railways in case Union of India &Anr. Versus Dalip Kumar WP(c) 6603/2014 decided on 6.09.2014 by Hon'ble High Court of Delhi affirmed order dt. 22.05.2014 passed by the Ld. Tribunal and observed that eligibility to participate in 30% LDCE, which is open to all eligible candidates, irrespective of their seniority.
17 OA No. 744/2023(f) The Coordinate Bench of Learned Tribunal at Jabalpur in similar facts and issue in OA No. 772/2016 ShailendraMankar Versus Union of India & Ors. decided on 29.03.2019. So also in OA No. 715/2023 (Jabalpur CAT) B. Ram Krishnan Iyer Versus Union f India & others decided on 4th May 2023 affirmed by Hon'ble High court MP in M.P. No. 4354 of 2023. So also in case of Rajesh kumarPatidar versus Union of India, OA No. 774/2016 (Jabalpur) decided on 29h March 2019. The Ld. Tribunal considering ration laid down in case of RenuMullick Vs. UOI 1994 (1) SCC 373 and UOI Vs. CN Ponnappan (1996)1 SCC 524-Hon'ble Supreme Courtheld as under:-
"Thus eligibility of applicant are to be determined for promotion accordance with prescribed criteria for eligibility and since statutory rules nowhere prescribes that said five years service has to be on continuous basis in One unit only. The applicants is concerned with eligibility to participate in the LDCE 30% Quota Patna Bench which is purely on merit open to all eligible candidates, irrespective of their seniority."
DISCUSSION
18. In the present case this Tribunal is in seisin with the issue whether can the assignment of bottom seniority entail loss of experience for determining eligibility for promotion 30% LDCE Quota to higher cadre and applicants are eligible or not?
19. We have already placed relevant rules and considered their import. The Indian Railways Assistant Personnel Officer (Group B, Gazetted) Recruitment Rules, 2018 regulating the method of recruitment to group B posts of Assistant Personnel Officer in the Personnel Department of Indian Railways The Rule 3- Method of recruitment, age limit, qualification etc.-specified in columns (5) to (13) of the aforesaid schedule at cost of repetition is reproduced as under:-
SCHEDULE Name of post Number of post Classification Level in pay Whether matrix selection or non-
selection post
(1) (2) (3) (4) (5)
Assistant 286 (2018) Railway Service, Level 8 (47600- Selection
Personnel *Subject to Group 'B', 1511002)
Officer. variation on Gazetted, Non-
dependent Ministerial.
workload.
Method of recruitment In case of retirement by promotion or deputation/absorption, grades whether by direct from which promotion or deputation/absorption to be made recruitment or by promotion or by deputation/ absorption 18 OA No. 744/2023 and percentage of the vacancies to be filled by various methods (10) (11) By promotion: Promotion:
70% by promotion through selection and (A) 70% of the vacancies shall be filled by promotion through 30% by promotion selection (which shall include a written test and also viva voce test) through Limited from amongst the following:
Departmental (i) Group 'C' Ministerial staff of the Personnel Department; Competitive (ii) Group C Ministerial Staff of Stores and Transportation (Traffic Examination. and Commercial) Department, Statistical and Compilation Branch, Chief Law Assistants, Stenographers of all Departments (excluding Accounts Department) who have an avenue for promotion to Group 'B' in their own Department but on the basis of option being given to them, have elected to be considered for promotion to the post of Assistant Personnel Officer, and
(iii) Group 'C' Ministerial Staff working in cadre post in any other Department of the Indian Railways excluding Hindi Organisation and Accounts Department but including Cash and Pay and Time office who have no avenue for promotion to Group 'B' in their own Department.
The selection shall be made from the staff holding posts on a regular basis in level-6 in the pay matrix and above with three years of Patna regular service in level-6 (including regular service rendered in the Bench corresponding pre-revised grades).
Note 1: Where juniors who have completed their qualifying or eligibility service and are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: After the written examination held as part of 70% selection for Group 'B' post of Assistant Personnel Officer, candidates to the extent of six times the number of vacancies are to be called for the viva-voce, in the order of merit. Thereafter, successful candidates are to be empanelled on the basis of seniority.
(B) 30% of the vacancies shall be filled through a Limited Departmental Competitive Examination from amongst Group C staff of Departments referred to in sub-paragraph (i), (ii) and (iii) of paragraph (A) above, holding posts on a regular basis in level 6 in the pay matrix with five years of regular service in level-6 (including regular service rendered in the corresponding pre-revised grades).
(i) Limited Departmental Competitive Examination is however purely merit based.
[Emphasis supplied] The case in hand relates to recruitment by promotion and column no. (10) specifically provides for promotion-70% by promotion through selection and 30% by promotion through Limited Departmental Competitive Examination.So far as method of recruitment by promotion 30% by promotion through Limited Departmental Competitive Examination as provided in column no. (10) and column no. (11) provides below graph in para (B) 30% of the vacancies shall be filled through a LDCE from amongst Group C staff of Departments referred to in sub-paragraph (i) (ii) and (iii) of paragraph (A) 19 OA No. 744/2023 above, holding posts on a regular basis in Level-6 in the pay-matrix ith five years of regular service in level-6(including regular service rendered in the corresponding pre-revised grades).Limited Departmental Competitive Examination is however purely merit based.
20. The column No. 10 and 11 (B) as far relates to 30% promotion through LDCE so clear as that the 30% LDCE vacancies amongst Group 'C' staff of deptt. referred to in sub-paragraph (i) (ii) and (iii)of paragraph (A) above, holding posts on a regular basis in level-6 in pay-marix with five years of regular service in level-6(including regular service rendered in the corresponding pre-revised grades).
21. The bare reading of the Rules 2018 it is clear that for 30% promotion by LDCE group 'C' staff of departments referred in sub-paragraph (i) (ii) and (iii) of paragraph (A) i.e. and applicants are group 'C' staff working as Chief Law Assistant included in parargraph (ii) of paragraph (A) and held post on regular Patna Bench basis in level-6 in pay-matrix-since 24.07.2006 in case of applicantno. 1, since 17.07.2010 in case of applicant no. 2. Thus as per recruitment rules 2018 referred herein above, applicants are fully eligible for consideration for promotion to Group B, APO based on purely merit. The respondents are to carry out selections to Group B, for post of A.P.O.based on recruitment Rules, 2018. The Rules 2018nowhere provides for five years regular servicein Level-6 on continuous based in one unit only. The Rules 2018 will prevail over executive instructions.
22. The applicants were promoted on 24.07.2006on the post Station Master G.P. 4200 (Level-6) and on the post Station Master G.P. 4200 (Level-6) respectively and on request transfer to East Central Railway Zone joined on 20.04.2015 and in 2008 respectively andit is no different from service rendered at place i.e. East Central Railway Zonewhere theyare transferred. Thus there is no impediment under recruitment Rules and service in place from where applicants transferred in Level-6 do not stand wiped out at place from where they were transferred to. The service rendered by applicants in old-unit in Level-6 has to be counted as part of their part of experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where they have been now posted on being transferred. The service rendered is in railways to be counted. Thus as per recruitment Rules 2018 and Railway Board Circular so far being in consonance and has to be sub-servientwith Rules 2018, the applicant's services in Level-6 held at place from where applicants have been transferred have to be counted as 20 OA No. 744/2023 experience for purpose of eligibility for promotion to A.P.O. Group B, under 30% LDCE Quota, selection conducted by East Central Railway, Hajipur based on merit not on seniority.
23. We are of the considered view that the applicants have already completed more than five years of non-fortuitous service in Level-6 and above fulfilled eligibility criteria as prescribed for 30% LDCE Quota for APO Group B and eligible accordance with statutory Rules 2018 and respondents arbitrarily at fag end of selection process declared them not eligible.
24. The applicant no. 1 appointed as ASM in pay scale Rs. 4500-7000 (Now level-6) promoted as Station Master, G.P. 4200 (Level-6) on 24.07.2006. Thereafter selected as CLA G.P. 4600 (Level-7) on 14.08.2012 under North East Frontier Railway and on request joined to East Central Railway on 20.04.2015. So also applicant no. 2 came on mutual transfer from North Central Railway to East Central Railway and joined East Central Railway in year 2008. Patna Bench Promoted in East Central Railway as Station Master on 17.07.2010 in G.P. 4200 (Level-6) and promotion granted on 01.04.2016 on post of CLA. The applicants were found eligible videeligibility list dated 16.09.2022 at serial no. 33 and 34 and list of not-eligible candidates also published. The computer based test conducted and applicants declared on 02.12.2022 successful and advised to be ready for viva-voce. The respondent no. 4 issuedimpugned orders dated 25.09.2023 and dated 25.09.2023 both the applicants name deleted from list of eligible list qualified in CBT dated 02.12.2022 (Annexure-A/5) and competent authority taken decision to delete names. The impugned orders dated 25.09.2023 are extracted for appreciation of the controversy reproduced:-
Applicant No. 1 Applicant No. 2 Sh. Arun Kumar Singh. Sh. Ajay Kumar Prabhaker.
CLA/Pers/HUP. CLA/HIP.
Sub:- Show Cause Notice in respect Sub:- Show Cause Notice in respect
of eligibility for selection of APO of eligibility for selection of APO
(Gr. "B") against 30% (LDCE) (Gr. "B") against 30% (LDCE)
quota. quota.
Ref: (i) This office notification of Ref: (i) This office notification of even No. dated 15.07.2022. (ii) This even No. dated 15.07.2022. (ii) This office letter of even No. dated office letter of even No. dated 02.12.2022 02.12.2022 On the basis of service details On the basis of service details mentioned in your application mentioned in your application submitted for Selection to the post submitted for Selection to the post of of APO (Gr. B) against 30% quota, APO (Gr. B) against 30% quota, you you were declared eligible to appear were declared eligible to appear in in the said Selection. the said Selection.
Before joining as CLA, you were
working in ASM category. ASM Before joining as CLA, you were
category is not eligible for working in ASM category. ASM
promotion to the post of APO (Gr. category is not eligible for promotion
21 OA No. 744/2023
B). to the post of APO (Gr. B).
As per para- (2) of the notification
issued for Selection for the post of As per para- (2) of the notification
APO (Gr. B). Gr. C employee issued for Selection for the post of
rendered not less than 05 years non APO (Gr. B). Gr. C employee
fortuitous service in level- 6 & rendered not less than 05 years non
above as on 02.07.2019 will be fortuitous service in level- 6 & above
eligible to volunteer for the said as on 02.07.2019 will be eligible to
Selection. volunteer for the said Selection.
On scrutiny of the relevant
documents, it has been found that On scrutiny of the relevant
you have not completed 05 years documents, it has been found that
non fortuitous service in level 6 and you have not completed 05 years non above in this Railway as on fortuitous service in level 6 and 02.07.2019. above in this Railway as Keeping in view of above, it has on02.07.2019.
been decided by the competent Keeping in view of above, it has authority to delete your name been decided by the competent from the list of eligible candidates authority to delete your name from who qualified in CBT for selection the list of eligible candidates who to the post of APO (Gr. "B") qualified in CBT for selection to against 30% quota. the post of APO (Gr. "B") against Vide this notice, you are hereby 30% quota.
intimated to explain the reasons why Vide this notice, you are hereby Patna your name should not be deleted intimated to explain the reasons why Bench from the list of eligible candidates your name should not be deleted who qualified in CBT for aforesaid from the list of eligible candidates selection (LDCE). who qualified in CBT for aforesaid selection (LDCE).
[Emphasis supplied] The above impugned orders are clear as noon day that the respondent no. 4 informed applicants that competent authority already decided to delete names from list of eligible candidates for post of APO, 30% LDCE and on same time on 26.09.2023 (Annexure-A/2) applicants provisionally held eligible to take viva-voce on 27.09.2023 in haste at12.30 hrs and completed.
25. The admitted fact that applicantno. 1 and 2 are working as CLA in G.P. 4600 (Level-7) in Group C post eligible for 30% LDCE Quota vacancies and are in Level-6 and above for more than five years. The Rules 2018 nowhere prescribes for eligibility in continuous regular service in one unit. Even taking into consideration RBE 40/2008 though cannot prevail over Rules 2018 RBE 40/2008 only condition is that length of service in previous unit which is so allowed to be counted should not exceed the length of his immediate senior in the new unit. In the present case of applicants, eligibility condition as per notification for APO is five years. The applicants have put in 4 years 2 months and 12 days and applicant no.2 put in 3 years 3 months and 1 day regular service in East Central Railway and for applicants no. 1 required service of old unit is 10 months and in case of applicant no. 2 comes to 1 year9 month to be reckoned from old unit will notexceed total length of service of immediate senior. Thus in view of Rules 2018 regular service rendered in railways to be 22 OA No. 744/2023 counsel and not of unit and applicants are fully eligible for participating in selection to 30%LDCE APO as well as conditions of eligibility applicants fulfills criteria and at fag end ofselection cannot be declared ineligible.
26. The applicants past regular services in the previous unit in the grade in Level-6 and above cannot be ignored for determination of eligibility to the higher post APO Group B. The applicants have statutory right for consideration for promotion and executive instructions has to be sub-serviant to statutory Rules 2018. The Quota 30% LDCE for promotion, selection is based on merit based seniority is not basis for effecting promotions. The eligibility condition nowhere in the statutory Rules 2018 stipulates that said five years has to be on a continuous basis. The services reckoned from old unit of applicants do not exceed length of total service of immediate senior. We are of the considered opinion that the service period rendered in Level-6 and above in old-unit of Railways is no different from service rendered in new unit of Railways services Patna Bench are in railways. Both the periods of services are taken into account for the purposes of leave and retiral benefits. The service being in regular service in the grade in railways has to be counted as part of applicants experience for purpose ofeligibility for promotion to APO Group B and cannot be ignored merelyrendered in different railway unit where they have been transferred.
27. Shri H.P. Singh, Ld. Senior Central Govt. Standing Counsel appearing for official respondents and Shri B.K. Chowdhary Learned Counsel for proposed intervener during course of arguments placed much reliance on law laid down in case of State of Uttam Pradesh Vs. Karunesh Kumar (Supra), wherein candidate participated in selection process and on declaration result not selected estopped from questioning it thereafter. Whereas facts of present OA is that the applicants have been served with notices impugned and decision taken declaring both applicants ineligible for selection changing criteria for eligibility subsequent to commencement of selection process. In our considered opinion the law laid down in the case of Karunesh Kumar (Supra) is not applicable to the facts of present case.
Shri H.P. Singh Learned CGSC assisted by Shri B.K. Chowdhary Advocate also pressed heavy reliance on order date 11.01.2016 in CWJC No. 12515 of 2015Union of India & Ors. Versus Ranjeet Kumar &Ors. passed by Hon'ble High Court Patna their Lordships was considering law laid down in different legal issue and facts of case Union of India Versus DeoNarain and others reported in (2008) 10 SCC 84.
23 OA No. 744/2023The dispute in case of DeoNarain (Supra) case was related to loss of seniority on voluntary transfer accordance with Central Board of Custom Excise Circular dt. 20.05.1998 and Central Excise and Land Customs Department Group C posts recruitment Rules 1979. On voluntary transfer as per Circular of the deptt. to be treated as a new entrants in Collectorate placed in bottom of list of temporary employee. The facts and issue and dispute was of totally different nature dealing with seniority. Whereas facts and legal issue in present case is related to determining eligibility for selection. Hence with due respect the law laid down in case of DeoNarain (Supra) and case of Ranjeet Kumar (Supra) is not applicable in facts and legal issue involved in the present case. In our considered view the facts and legal issue of aforesaid decisions are quite different from the case and precedents are of no help to the respondents and intervener.
28. The respondents vide impugned orders dt. 25.09.2023 held applicants Patna Bench ineligible and decided to delete the names from list of eligible candidates who qualified in CBT for selection. So also in order dated 26.09.2023 applicants permitted to take viva-voce by provisionally eligible. In the written statement categorically stated error detected and applicants are not eligible. The respondents have taken contradictory stand at one hand declared applicants not eligible same time allowed provisionally eligible to take viva-voce held on 27.09.2023. The respondents also issued communication dated 27.10.2023 provided during arguments that applicants were allowed to appear in viva-voce and selection has been completed. We find the stand of official respondents contradictory so far eligibility of applicants for reasons best known to them.
29. We have already placed the relevant statutory Rules 2018, provisions of Master CircularNo. 68, Railway Board RBE 40/2008 and analysed in detail and considered their import. Considering the arguments advanced, peculiar facts and circumstances of present case and legal issue in hand. The present case also stands also qualified by precedents in cases RenuMullick (Supra), C.No. Ponnappan (Supra), V.M. Joseph (supra), Sh. Dalip Kumar (Supra), Shailendramankar (Supra) and B. Ram KishnanIyer (Supra) and present case is no different and legal issue involved in present case is no more res- integra.
30. We are of the considered opinion that service held at place from where applicants have been transferred have to be counted as experience for purpose of eligibility for promotion at the place where applicants have been transferred i.e. East Central Railway. The candidatures of both the applicants cannot be 24 OA No. 744/2023 rejected by declaring ineligible and orders dated 25.09.2023 and dated 25.09.2023 relates to applicants Annexure A-1 series to delete names from list of eligible candidates are liable to be set-aside and quashed.
31. For the above reasons, the issue accordingly decided in the favour of the applicants and the original application stands allowed. The impugned orders dated 25.09.2023 and 25.09.2023 are set-aside. The applicants are held eligible to participate in the selection process for the post of APO Group B against 30% LDCE Quota and consequences shall ensue.
32. The pending miscellaneous applications, if any, shall stands disposed of.
32. There shall be no order as to costs.
sd/- sd/-
(Ajay Pratap Singh) (S.K. Sinha)
Member (J) Member (A)
du/-
Patna
Bench