Central Administrative Tribunal - Allahabad
Dev Narayan vs General Manager N C Rly on 26 May, 2025
Reserved on 22.05.2025
Central Administrative Tribunal
Allahabad Bench,
Allahabad
th
This the 26 day of May, 2025
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 1324 of 2015
Deo Narayan aged about 61 years son of Shri Nanhkoo Yadav retired
Technician Grade-I under Dy. Chief Engineer / Concrete Sleeper Plant /Ald.
R/o Village and post-Kalna, District - Mirzapur U.P.
........... APPLICANT
By Advocate: Shri Santosh Kumar Kushwaha
Versus
1. Union of India through General Manager, North Central Railway,
Headquarters Office, Subedarganj, Allahabad-211033
2. General Manager (P), North Central Railway, Headquarters Office,
Allahabad.
3. Chief Engineer, (TS) Headquarter, N.C.Railway Subedarganj,
Allahabad.
4. XEN, Concrete Sleeper Plant, NCR,, Subedarganj, Allahabad.
5. Shri Balbir Singh, Sr. Tech. Grade I / MCM working Dy. Chief
Engineer, Concrete Sleeper Plant, Subedarganj, Allahabad.
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha
ORDER
(Delivered by Hon'ble Mr. Mohan Pyare, Member (A) Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents, are present and heard.
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ASHISH KUMAR
2. The instant original application has been filed seeking
following relief:
"a) The Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned combined seniority list circulated vide letter 5.5.2015 (Annexure A-1), impugned order dated 11.5.2015 (Annexure A-2) and impugned reply given vide letter dated 7/9.7.2015 (Annexure A-3) and direct the respondents to promote the applicant against 4 upgraded posts of Production Group under restructuring w.e.f. 01.11.2013 allowing fixation of pay and its arrears in accordance with the Rules laid down by the Railway Board.
(ii) The Hon'ble Tribunal may further be pleased to direct the respondents to delete the name of Shri Balbir Singh/ respondent No. 5 from serial No. 2 of the letter of promotion as Senior Technician dated 11.5.2015 (Annexure A-2) and against the said vacancy, promote the applicant having seniority position at serial No. 2 in the seniority list of Production dated 3.10.2013.
(iii) The Hon'ble Tribunal may further be pleased to allow revision of pension and pay its arrears of pensionary benefits from date of his retirement w.e.f. 1.9.2014.
(iv) Any other writ or order or direction which the Hon'ble Tribunal deems fit and proper in the circumstances of the case may kindly be issued in the interest of justice.
(v) Cost of the Application may also be awarded in favour of the applicant.
3. The brief facts of the case are that the applicant was initially appointed as casual labour on 16.11.1976 in respondent's department and regularized as Khalasi on 06.03.1981, vide order dated 12.06.1981, the applicant was promoted to semi skilled fitter khalasi. Again on 29.12.1986, the applicant was promoted as Operator Grade and on 02.01.1989 to the post of Technician Grade-I Operator . The seniority of applicant in group "D" category was maintained group wise as per establishment rules and practice . In light of the directions given in O.A. no. 103/2004, respondents prepared a combined seniority of all groups against which joint representation dated 07.10.2014 were submitted to the respondents to continue seniority group wise and not to make a combined seniority as they have been promoted from group "D" posts. Railway Board issued a circular no. PC/III/2013/CRC/4 dated 08.10.2013 (RBE n. 102/2013) for the purpose of giving promotion by adopting the method of modified procedure of selection against upgraded posts under restructuring of cadres. Benefit of restructuring was restricted to the persons who were working in a particular cadre on the cut off date i.e. 2 ASHISH KUMAR 01.11.2013.The applicant was working as Technician Grade-I at that point of time and he was one of the senior most persons to be considered for promotion against the upgraded post of artisan category of MCM/Sr. Technician. After restructuring, total posts upgraded in PB 4200 was 8, hence 4 posts became available to be filled up by modified procedure of selection/trade test. Respondents did not implement the cadre restructuring circular of Railway Board in production Group in CSP. Applicant name was at serial no. 2 of the seniority of Technician Grade I. On dated 05.05.2015 respondents issued impugned letter no. CSP/Allahabad/Engg. /Vividh/112 by which seniority of other groups other than production group was combined illegally and a combined seniority list of all groups was issued. Thereafter respondents issued promotion order dated 11.05.2015 against the aforesaid combined seniority list. The applicant gave a representation to the Chief Engineer, allahabad on 02.06.2015 against the promotion order 11.05.2015 saying that his promotion was illegally not considered and on the basis of combined seniority of all Groups for the first time in order to give benefit to private respondent no. 5 was done illegally. Hence, the instant O.A.
4. Per contra, respondents have filed their Counter Affidavit refuting the facts disclosed in the OA and submitted that the seniority list was prepared in compliance of Hon'ble CAT order dated 25.01.2011 passed in O.A. no. 103/2004. After providing personal hearing to all the stake holders and thereafter the said policy for preparing seniority list of Artisan Staff CSP/SFG/ALD was approved by the competent authority. It is submitted that revised sanctioned strength after restructuring the cadre of Artisan staff i.e. Technician Grade-I were prepared on combined basis and the same was vetted by Accounts department and approved by PCE/NCE/alld. It is also averred that applicant did not fall in the circle of the staff due for re-structuring as per seniority list dated 05.05.2015. It is further submitted that Railway Board's letter dated 08.10.2013 envisage regarding the revised percentage of the artisan staff in PB-1 and PB-2 i.e. as applicable for the Technical Grade-1, Grade-II and Grade-III only in CSP/SFG/Ald. It does not indicate that these percentage should be provided for group wise seniority or for combined seniority as such all the promotions under re-structuring policy were done in the light of Railway Board letter dated 08.10.2013. It is further submitted that Shri Balbir Singh (respondent no. 5) was in the group D 3 ASHISH KUMAR seniority list at serial no. 49 and was brought to serial no. 34A in compliance of the CAT order in O.A. no. 1448/1994 and after screening of Shri BAlbir Singh by the committee nominated by the competent authority.
5. A rejoinder affidavit has also been filed by the applicant refuting the facts disclosed in the counter and submitted that the respondents have acted in the most arbitrary manner in implementing the policy of Railway Board's letter dated 8.10.2013, i.e. not on the basis of cadre strength and seniority position issued on 03.10.2013 and cadre strength of production group as on 01.11.2013. It is further averred that as mentioned in the counter that seniority of the Technician issued vide impugned letter dated 05.05.2015 has been issued after taking consent of concerned staff/stake holders which is contrary to the fact that the concerned staff were against the merger of various categories of Technicians/Artisan Staff and they wanted to keep their separate seniority lists and cadre group wise. It is further mentioned that promotion of artisan staff / Technicians in higher grade against upgraded posts under restructuring of cadre in terms of policy of Railway Board dated 8.10.2013 (RBE No. 102/2013) is to be done on the cadre strength and seniority position as on 1.11.2013 and not on the combined cadre strength sanctioned by the authority as approved on 20.4.2015 by Principal Chief Engineer / N.C. Railway, Allahabad without deciding the pending joint representations. This sanctioned strength will operate prospectively and not retrospectively w.e.f. 1.11.2013 being contrary to Railway Board's policy dated 8.10.2013.
6. We have heard the learned counsel for the parties and gone through the entire records including the written submissions filed on behalf of the parties.
7. Submission of learned counsel for the applicant is that applicant was appointed in Railway service as casual labor and regularized as Khalasi, thereafter he was promoted as Semi-skilled Fitter Khalasi. He was further promoted as Operator on 29.12.1986. Vide order dated 2.1.1989, he was further promoted to the post of Technician Grade-I. He further argued that seniority of applicant in Group "D" category was maintained group wise as per the establishment rules and practice. On 03.10.2013, respondents' department published a combined seniority list of all groups against which a 4 ASHISH KUMAR representation dated 07.10.2014 was submitted to the respondents to continue their seniority group wise and not to make a combined seniority. He further argued that the Railway Board issued a circular no. PC/III/2013/CRC/4 dated 08.10.2013 (RBE n. 102/2013) for the purpose of giving promotion by adopting the method of modified procedure of selection against upgraded posts under restructuring of cadres. Benefit of restructuring was restricted to the persons who were working in a particular cadre on the cut off date i.e. 01.11.2013.The applicant was working as Technician Grade-I at that point of time and he was one of the senior most persons to be considered for promotion against the upgraded post of artisan category of MCM/Sr. Technician. After restructuring, total posts upgraded in PB 4200 was 8, hence 4 posts became available to be filled up by modified procedure of selection/trade test. Referring to the railway board circular no. RBE/102/2013, learned counsel for the applicant further argued that respondents did not implement the cadre restructuring as on 01.11.2013 as per Railway Board's circular dated 08.10.2013 in production Group in CSP where posts were also vetted and approved by the competent authority. He further argued that applicant position was at sl. No. 2 in the seniority of Technician Grade I of production group and his promotion against 4 upgraded posts under restructuring was due as on 01.11.2013 as per his seniority position. He further argued that due to dilatory tactics adopted by the respondents, applicant retired on 31.08.2014 but he was not given promotion under restructuring which is liable to be granted even after retirement of the employee as per para 4.7 of the RBE no. 102/2013. He further argued that respondents issued promotion order against upgraded posts under restructuring on the basis of combined seniority list of 05.05.2015 which is contrary to instructions of railway board letter dated 08.10.2013 against five upgraded posts of Sr. Technicians were given promotion in which 4 technicians grade I of production group should have been promoted but respondents did not issue order against four upgraded vacancies of production group existed on 01.11.2013. Referring to the impugned order, learned counsel for the applicant further argued that applicant's seniority position was shown in the impugned combined seniority below Shri Balbir Singh (respondent no. 5) at Serial No.4 (Deo Narayan) by placing name of Shri Balbir Singh at serial No. 2 which is absolutely wrong and he was not even entitled for promotion as Senior Technician in 5 ASHISH KUMAR Mechanical Seniority Group against one post upgraded. It is also pointed out that Shri Balbir Singh was promoted as Senior Technician vacancy of ST roster point which could not be filled up by unreserved / general point candidate in case it falls. Thus, Railway Board's policy of maintaining 100 point post based roster was flouted by the respondents. Under the rules, vacant SC/ST point will not be filled by unreserved candidates. He further argued that it has wrongly averred in the impugned letter dated 07/08.7.2015 that seniority of the Technician Grade I of te concrete sleeper plant was issued combined as per order of the Hon'ble Tribunal whereas order of tribunal dated 25.01.2011 was complied with earlier by issuing seniority list of plant group vise on 03.10.2013 of production group.
8. Learned counsel for the applicant also submitted a written submission reiterating the same facts as disclosed in the O.A. and also submitted that respondents have acted in the most arbitrary manner in implementing the policy of Railway Board letter dated 08.10.2013 (RBE No. 102/2013), i.e. not on the basis of cadre strength and seniority position issued on 03.10.2013 and it was implemented after a lapse of two years on the basis of manipulated combined seniority list of production. It is also submitted in the written argument that case law relied upon by the respondents in case of Government of West Bengal and others Vs. Dr. Amal Satpathi & ors in civil appeal (Diary No. 43488 of 2023) dated 27.11.2024 is not applicable in the instant case as there respondents denied retrospective promotion due to absence of enabling provision while in the instant case Railway Board itself provides in para 4.7 of RBE no. 102/2013.
9. He argued that combined seniority list was prepared in compliance of the order passed by this Tribunal in O.A. no. 103/2004 and restructuring was implemented based on that seniority after approval by the competent authority. He further argued that it is wrong to say that combined seniority of all groups were made to give the promotional benefits under restructuring process. He further argued that seniority of Shri Balbir Singh was revised as per the order of CAT judgment dated 24.07.2001 passed in O.A. no. 1448/1994. He further states that in combined seniority list of Technician grade I, Grade-II and Grade-III, Shri Balbir Singh was placed at serial no. 2 on the basis of interse seniority. Referring to the impugned order, learned 6 ASHISH KUMAR counsel for the respondents further argued that there is no illegality or perversity in the impugned order.
10. Before discussing the facts disclosed by both the parties, it will be useful to quote the relevant portion of RBE no. 102/2013 dated 08.10.2013, which reads as under:-
Date of effect 1. The restructuring of the cadre will be with reference to the sanctioned cadre strength as on 01-11-2013. The staff who will be placed in higher grade pay as a result of implantation of these orders will draw pay in higher grades w.e.f. 01-11-2013. The benefit of restructuring will be restricted to the persons who are working in a particular cadre on the cutoff date i.e. 01-11-2013.
4.1 Normal vacancies existing on 01-11-2013(except direct recruitment quota)and those arising on that date from this cadre restricting including chain/ resultant vacancies should be filled in the following sequence:
(i) From panels approved on or before 01-11-2013 and current on that date.
(ii) And the balance in the manner indicated in Para 4 above 4.4. All vacancies (including chain/resultant vacancies) arising purely due to this cadre restructuring should be filled up by senior employees who should be given benefit of the promotion w.e.f. 01-11-2013 whereas for the normal vacancies existing on 01-11-2013, junior employees should be posted by modified selection procedure but they will get promotion and higher pay from the date of taking over the post as per normal rules. Thus the special benefits of the promotion w.e.f. 01-11-2013 is available only for vacancies arising out of cadre restructuring and for other vacancies, then normal rules of prospective promotion from the date of filling up of vacancy will apply.
4.7 Employees who retire /resign or expire in between the period from the date of effect of these orders to the date of actual implementation of these orders, will be eligible for the fixation benefits and arrears under these orders w.e.f. 01-11-2013, if they are otherwise eligible for the said benefits.
12.2 Revised percentage distribution of posts as per these orders is to be based upon the sanctioned cadre strength as on 01- 11-2013. Surrenders are to be effected on this sanctioned strength and the resulting imbalance/ variation in the cadres is to be reviewed at the time of next annual review as indicated below.
11. It will also be useful to quote the relevant portion of the judgment passed in the O.A. 103/2004 dated 25.01.2011, which provides as under:-
14. Heard learned counsel for the parties and perused material on record.
We have carefully considered the rival submissions. It emerges that possibly different practices are being followed at two Concrete Cement Plants under different Chief Engineers.
The respondents have failed to controvert the allegation made by the applicants. No Policy document has been brought on record before us to 7 ASHISH KUMAR consider and appreciate the objective of maintaining group wise seniority, as also implication on interse and overall seniority for the next higher post. Finally we have not been given any satisfactory explanation why a difference arose in the fixation of the pay of different groups of artizens on implementation of the orders of the Governments on the recommendation of the Vth Pay Commission.
15. We have also noted that some employees in different group have vested rights but are not a party in this OA. In view of our observations above, we consider it appropriate to set aside and quash the impugned communication dated 24.11.2003 (Annexure-1, Page 15 of the OA) and direct the respondents to pass a speaking order dealing with the representation of the applicant for fixation of their pay at par with their alleged juniors namely Shri Umesh Chandra Srivastava and Subrat Parua? by fully narrating the provisions of the policy under which the applicants are not entitled to the similar pay as Shri Umesh Chandra Srivastava and Subrat Parua. In the even the respondents failing to pass a speaking and logical order duly supported by specific provision of policy, if any, and rules within the specified period, they will proceed to upgrade the salary of the applicants at par with Shri Umesh Chandra Srivastava and Subrat Parua.
16. Also, in view of the applicant's having failed to explain the implication of group wise seniority list on the future promotion prospects of the applicant and all other employees having stakes, the respondent no.3 is directed to give a personal hearing to all effected parties and pass a reasoned and speaking order determining their seniority as on date and finalize it after obtaining their objections, if any within a specified period of time. Till then groupwise seniority list of all effected Artizen workers enclosed with CCP letter dated 24.02.2003 will be rendered inoperative for the purposes of future promotion, if any.
17 It is directed that the above activity will be completed within the period specified below:
(A) Passing of speaking order on fixation of the pay of the applicant and payment of resultant arrears etc. if any, within three months of receipt of a certified copy of this order.
(b) To give a personal hearing to all stake holder Artizen workers and publish a seniority list within two months from the date of receipt of a certified copy of this order.
(c) Obtain objections if any within additional one month, of the publishing of the list.
(d) 15 days thereafter for publishing a final seniority list.
12. On close scrutiny of entire facts and circumstances of the case and after going through all records, it is clear that applicant could not produce records/document in support of his relief claimed in the matter and has retired prior to actual date of consideration for promotion. It is an imaginary situation that applicant could have been promoted provided respondents should have taken timely action and promoted the eligible persons prior to superannuation of the applicant. However, the para 4.7 of RBE no. 102/2013 dated 08.10.2013 is in favour of the applicant and O.A. is disposed of with 8 ASHISH KUMAR the direction to the respondents to decide the representation of the applicant in light of RBE no. 102/2013 dated 08.10.2013 and to pass a speaking and reasoned order within three months from the date of receipt of certified copy of this order. All associated M.As also stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ashish)
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ASHISH KUMAR