Central Administrative Tribunal - Delhi
Virender Kumar vs M/O Railways on 9 July, 2018
1 OA No.4009/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4009/2014
Reserved On:19.04.2018
Pronounced on:09.07.2018
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
Virender Kumar,
Aged 47 years
(Retired Employee)
S/o Shri Ram Sahai Setia
R/o H.No.4/23, Shivaji Nagar,
Gurgaon (Haryana)-122001. ....Applicant
(By Advocate: Shri Yogesh Sharma)
Versus
1. Union of India through the Secretary,
Ministry of Railway,
Govt. of India,
Rail Bhawan,
New Delhi.
2. The General Manager,
Northern Railway,
Head Quarters,
Baroda House,
New Delhi.
3. The FA&CAO,
Northern Railway,
Baroda House,
New Delhi. ....Respondents
(By Advocate: None)
ORDER
By Mr. V. Ajay Kumar, Member (J) Brief facts, as narrated in the OA, are that the applicant was initially appointed as Junior Accounts Assistant with effect from 29.01.1991 in the respondent- 2 OA No.4009/2014 Northern Railway. While he was working as Travelling Inspector of Accounts in Northern Railway, he was sent on deputation to Centre for Railway Information Systems (for short CRIS) and was appointed there as Deputy Manager on 01.08.2005. While he was working at CRIS on deputation, on acceptance of his technical resignation from Northern Railway with effect from 30.09.2009, he was permanently absorbed in CRIS with effect from 01.10.2009.
2. Before the applicant was permanently absorbed in CRIS, i.e., while on deputation with CRIS during March, 2009, a written test was conducted by the Northern Railway for promotion to Group 'B' post, i.e., Assistant Accounts Officer and since the applicant was also within the zone of consideration, he appeared in the examination and as he was qualified in the said examination, he was empanelled at Sl.No.1 in the panel issued on 17.09.2009. He was ordered to be promoted as Assistant Accounts Officer vide order dated 18.09.2009. At that time, the applicant, who was on deputation with CRIS, was closely associated with a critical project. He was not spared by CRIS and instead he was absorbed in CRIS on permanent basis with effect from 01.10.2009, after the technical resignation of the applicant was accepted with effect from 30.09.2009 by the Northern Railway. After the applicant 3 OA No.4009/2014 was absorbed permanently in CRIS, he made a representation to the Northern Railway through proper channel, i.e., through CRIS for grant of benefit of Next Below Rule (NBR for short). When the said request was rejected by the respondent-Northern Railway, vide Annexure A-8 letter dated 10.05.2010 by stating that the applicant has resigned from the Northern Railway in Group 'C', he filed the present OA.
3. Heard Shri Yogesh Sharma, learned counsel for the applicant and perused the pleadings on record. No one was present for the respondents on 18.04.2018 and also on 19.04.2018.
4. Shri Yogesh Sharma, learned counsel appearing for the applicant submits that as he was selected as Assistant Accounts Officer against 30% quota through the Limited Departmental Competitive Examination and was empanelled as such at Sl.No.1 on 17.09.2009 and that as he was permanently absorbed in CRIS with effect from 01.10.2009, on acceptance of his technical resignation by the Northern Railway with effect from 30.09.2009, as there was no much time available, he could not made a representation seeking application of NBR Rule for proforma promotion as Assistant Accounts Officer, before 30.09.2009. But as the applicant was empanelled as 4 OA No.4009/2014 Assistant Accounts Officer in the Northern Railway before his technical resignation was accepted and since a person who was empanelled below to the applicant i.e., Shri S.K. Singh was promoted as Assistant Accounts Officer with effect from 22.09.2009, i.e., before the applicant's technical resignation was accepted, the applicant is entitled for granting of NBR irrespective of his date of application for the same.
5. None appeared for the respondents. However, in the counter, while not disputing the aforesaid facts, the respondents submitted that the applicant's request for technical resignation was accepted by the Northern Railway with effect from 30.09.2009 and that the applicant applied for the benefit of NBR only on 30.03.2010 and hence he is not entitled for the said benefit. It is further submitted that if an employee who was on deputation becomes entitled to a higher pay scale/pay band/grade pay/promotion in the parent cadre, he will have the option either to continue in the deputation post, i.e., without availing the said proforma promotion or up-gradation for the rest of the term or revert to his parent cadre within a period of six months. The applicant though promoted to the higher post of Assistant Accounts Officer on 18.09.2009 but neither availed his promotion by coming back to the parent department, i.e., 5 OA No.4009/2014 Northern Railway nor applied for NBR after his junior was promoted. Though it is not necessary to join the Northern Railway for claiming the benefit of NBR, but it is mandatory to apply for NBR at the time of promotion of his junior and before taking absorption in the foreign department. NBR is granted to those officers who are on deputation but their lien is still in the parent department. The applicant, admittedly, applied for NBR after his technical resignation was accepted, i.e., after his lien with Northern Railway came to an end.
6. In the reply, respondents have further submitted that they rejected the claim of the applicant basing on the clarification issued by the Railway Board on 29.12.2006, which was issued in consultation with the Department of Personnel and Training and hence, there is no illegality or irregularity in the action of the respondents.
7. The Railway Board's letter dated 29.12.2006, reads as under:-
"A point has been raised as to the emoluments that should be taken into account for calculating pensionary benefits of a Railway servant, who retires while on foreign service without returning to the cadre but has already been given proforma promotion under Next Below Rule (NBR) in his cadre.
2. This matter has been examined in consultation with the Department of Pension & Pensioners' Welfare. In terms of Note 6 below Rule 49 of Railway Services (Pension) Rules, 1993, pay drawn by a railway servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the railway, had he not been on foreign service shall alone be treated as emoluments. This would imply that but for his having been on foreign service, pay of a Railway servant on his regular promotion in his cadre would have been fixed in the scale of pay of the post to which he has been promoted. In view of this position, it is clarified 6 OA No.4009/2014 that a Railway servant who has been given proforma promotion under NBR in his cadre while on foreign service and retires without returning to his cadre, shall be entitled to have his pensionary benefits, calculated on the basis of the emoluments admissible under NBR."
8. In reply to the RTI application of the applicant, the respondents furnished the NBR Rules available in IREM Volume-II and the relevant para of the same reads as under:-
"(4) Guiding principle for the working of the next below rule -
The Government has sanctioned the adoption of the following guiding principle in regard to the working in furture of the next below rule.
The intention of the so called rule was apparently that an officer out of his regular life should not suffer by forfeiting acting promotion which he would otherwise have received had he remained to his regular line. From that it follows that the fortuitous acting promotion of someone junior to an officer who is out of the regular line does not in fact give rise to a claim under the next below rule. Below such a claim is established, it would be necessary that all the officers senior to the officer who is out of the regular line have been given acting promotion, and also the officer next below him, unless in any case the action promotion is not given because of inefficiency, unsuitability or leave. In the event of one of these three being applicable to the officer immediately below the officer outside his regular line, then some other officer, even more junior, should have received acting promotion and the officer, if any, in between should have been passed over for one of these reasons.
(G.I. F.D. ends. No. F.27(1) Ex. 1/36, dated the 20th Feb., 1936 & G.I. H.D. No.F.52/36-Ests., dated the 6th February, 1936)".
9. In the present case, admittedly, the applicant was selected and empanelled for promotion to the post of Assistant Accounts Officer on 17.09.2009, i.e., prior to the date of the acceptance of his technical resignation on 30.09.2009. Admittedly, Shri S.K. Singh, who was junior to the applicant and who was placed below to the applicant in select panel was promoted as Assistant Accounts Officer w.e.f. 22.09.2009. Further, admittedly, the applicant 7 OA No.4009/2014 neither returned to his parent department before 30.09.2009 nor applied for NBR benefit before 30.09.2009, i.e., before the date on which his technical resignation from Railways was accepted.
10. A careful examination of the Railway Board's letter dated 29.12.2006 and the NBR rules provided in IREM Volume-II nowhere stated that in order to get the benefit of proforma promotion and the NBR, the concerned employee has to apply before the cessation of his relationship of employee-employer, i.e., by way of acceptance of technical resignation. What is required under the aforesaid proceedings was that before the lien of the concerned employee came to an end, his junior/person who was placed below him in the select panel was to be actually promoted in his parent department.
11. In the present case, admittedly, the applicant was selected and empanelled for promotion to the post of Assistant Accounts Officer on 17.09.2009 and that Shri S.K. Singh, who was junior to the applicant in his parent department, i.e. Railways and who was placed below to the applicant in the select panel was promoted as Assistant Accounts Officer w.e.f. 22.09.2009. Both the events admittedly occurred when the lien of the applicant was subsisting with the Railways as his technical resignation 8 OA No.4009/2014 was accepted by the respondent-Railways w.e.f. 30.09.2009. Though the respondents rejected the claim of the applicant on the ground that the applicant has not applied for the NBR benefit before acceptance of his technical resignation, but failed to show any rule which mandates for the same.
12. The object of NBR is not only to restore the position and promotion of an employee after he returned to his parent department on his repatriation, but also to compensate him monetarily by fixing his pay by granting the proforma promotion to have his pensionary benefits calculated on the basis of the emoluments admissible under NBR.
13. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned orders are quashed and the respondents are directed to grant the proforma promotion under NBR principle to the applicant in the category of Assistant Accounts Officer with effect from the date on which his junior was promoted to the said post and to fix his pay accordingly with all consequential benefits. No order as to costs.
(NITA CHOWDHURY) (V. AJAY KUMAR)
MEMBER (A) MEMBER (J)
RKS