Central Administrative Tribunal - Allahabad
Har Singh Yadav vs Union Of India on 20 April, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 20TH DAY OF APRIL, 2011) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. D.C.Lakha, Member (A) Original Application No.348 of 2007 (U/s 19, Administrative Tribunal Act, 1985) 1. Har Singh Yadav, Sr. Diesel Asstt., N.E.Rly., Varanasi. 2. Surendra Nath Tiwari, Shunter, N.E.Rly., Varanasi. 3. Udai Nath, Sr. Diesel Asstt., N.E.Rly, Varanasi. 4. Azimullah, Sr. Diesel Asstt., N.E.Rly. Varanasi. 5. Sshahbuddin, Sr. Diesel Asstt., N.E.Rly., Varanas. 6. Ram Babu, Sr. Diesel Asstt., N.E.Rly., Varanasi. 7. Om Praqkash Vishwakarma, Sr. Diesel Asstt., N.E.Rly., Varanasi. 8. Ram Adhar, Sr. Diesel Asstt., N.E.Rly., Varanasi. 9. Anup Kumar Mukherjee, Sr. Diesel Asstt., N.E.Rly., Varanasi. 10. Rama Nand Pandey, Shunter, N.E.Rly., Mau. 11. Jagdish Pandey, Shunter, N.E.Rly., Chhapra. 12. Sanjay Nandan Sen Gupta, Sr. Diesel Asstt., N.E.Rly., Chhapra. . Applicants. Present for Applicant : Shri R. Verma, Advocate. V E R S U S 1. Union of India, through the General Manager, N. E. Railway, Gorakhpur. 2. The General Manager (P)/Chief Personnel Officer, N.E.Rly. Gorakhpur. 3. The Divisional Railway Manager (P), N.E. Rly., Varanasi. 4. Shri Karan Singh, Passenger Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 5. Shri Vishwa Nath Singh, Senior Goods Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 6. Shri Shiv Dutt Sharma, Passenger Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 7. Shri G.J.Pears, Senior Goods Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 8. Shri Kuldeep Kumar, Senior Goods Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 9. Shri Ram Sahai, Sr. Goods Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 10. Shri Mohd. Anis, Shunter, N.E.Rly. , Varanasi Diesel Lobby, Varanasi. 11. Shri Anil Kumar, Senior Goods Train Driver, N.E.Rly, Varanasi Diesel Lobby, Varanasi. 12. Shri Asif Hussain, Sr. Goods Train Driver, N.E.Rly., Varanasi Diesel Lobby, Varanasi. 13. Shri Ram Ugrah Singh, Sr. Goods Train Driver, N.E.Rly., Mau Diesel Lobby, Mau. 14. Shri Ganesh Narain Gautam, Senior Goods Train Driver, N.E.Rly., Mau Diesel Lobby, Mau. 15. Shri Mohd. Aslam Ansari, Passengern Train Driver, N.E.Rly, Chhapra Diesel Lobby, Chhapra. 16. Shri Surendra Singh, Passenger Train Driver, N.E.Rly., Chhapra Diesel Lobby, Chhapra. 17. Shri Ram Chandra, Passenger Train Driver, N.E.Rly., Chhapra Diesel Lobby, Chhapra. 18. Shri Mahesh Chandra, Sr. Goods Train Driver, N.E.Rly, Chhapra Diesel Lobby, Chhhapra. Respondents Present for Respondents : Shri Anil Kumar, Advocate O R D E R
(Delivered by Hon. Dr. K. B. S. Rajan, Member-J) :
The case has a long history. The applicant had earlier approached the Tribunal in OA No. 957 of 2002 and prayed for correct fixation of seniority in the grade of Fireman Gr. I and consequential benefits. After acrimonious litigation of writ petition and contempt petitions, ultimately, the respondents had granted due seniority in the grade of fireman Gr. I and also promoted the applicant to the grade of goods driver and senior goods driver (pay scale 5,500 9000). So far so, good. The next promotion is passenger train Driver, for which, according to the applicant there is no need for him to undertake the written test since the post carries the same pay scale as that of Senior Goods Driver, coupled with the fact that the Railway Board had dispensed with the written test by way of modified selection vide order dated 06-09-2005, while the respondents have contended that the applicant has to face the examination as did his juniors, who have, on qualifying in the written test, been promoted to the post of Passenger Train Drivers. Order dated 17-10-2006 of the respondents in this regard reads as under and the same is under challenge through this O.A.:-
ekkuuh; dSV bykgkckn esa nkf[ky okn la0 957@2002 gfjgj flag ;kno o vU; cuke Hkkjr la?k esa U;k;ky; ds fu.kZ; ds vuqikyu Lo:Ik bTtruxj e.My ds deZpkjh tks p;u izfdz;k ds rgr orZeku esa lokjh xkM+h pkyd <5500&9000= ds in ij dk;Zjr gS] ls Eij ojh;rk@izi= osru dk ykHk fn;k tkuk gS pwfd dfuB deZpkjh p;u dh fyf[kr ijh{kk esa lQy ik;s tkus ds ckn p;u izfdz;k iw.kZ fd;s tkus ds QyLo:Ik iSlsUtj <5500&9000= ds in ij inksUur fd;s x;s gSA Qyr% ekkuuh; U;k;ky; ds funskkuqlkj dfuB ds lkis{k izi= osru fu/kkZj.k dk YkkHk nsus ds fy, p;u izfdz;k ds fyf[kr ijh{kk esa kkfey gksuk vko;d gSA vr% dqy 12 in ds fy, p;u izfdz;k izkjEHk dh tk jgh gSA ftlesa kkfey gksus okys deZpkjh dh lwph layXu gSA Tkks deZpkjh fyf[kr ijh{kk lfgr p;u izfdz;k esa lQy ik;s tk;sxs mUgs muds dfuB ds lkis{k inksUufr ij izi= osru fu/kkZj.k dk ykHk fn;k tk;sxkA vlQy gksus dh fLFkfr esa ekSf[kd p;u izfdz;k ds ek/;e ls dsoy rRdky izHkko ls gh inksUufr dk ykHk ns; gksxkA fyf[kr ijh{kk 11-11-2006 ,oa vuqifLFkr fyf[kr ijh{kk fnukad 18-11-2006 ds e.My jsy izcU/kd dk;kZy;] okjk.klh esa izkr% 10-00 cts ls gksuh fufpr dh tkrh gSA vuqifLFkr fyf[kr ijh{kk esa dsoy mlh deZpkjh dks lfEefyr fd;k tk;sxk ftUgsa ifjfLFkfr foksk esa lfEefyr gksuk muds l{kerk ds ijs gS ,oa bldh lwpuk og vius Ik;Zos{kd dks rhu fnu iwoZ gh ns nsA^^
2. The prayer in the OA reads as under:-
i. to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.10.2006 passed by the Respondent No. 3 herein initiating selection against 12 posts of Passenger Train Driver in the pay-scale of Rs. 5500-9000 calling thereby the petitioners herein to appear in the written test scheduled on 11.11.2006 and 18.11.2006 at the Office of the Respondent No. 3 herein (Annexure A-I to the compilation No. I of the O.A.).
ii. to issue a writ, order or direction in the nature of mandamus directing the Respondent Nos. 1 to 3 herein to promote the petitioners herein as Passenger Train Driver, placing them at par with their juniors i.e. private respondents Nos. 4 to 23 herewith all consequential benefits, on the basis of the modified procedure and selection i.e. on the basis of seniority and viva-voce test as the petitioners have already passed the prescribed promotional course pursuant to and in implementation of the Railway Board Circular dated 06.09.2005 addressed to all the General Managers of all Indian Railways which includes the official respondent Nos. 1 & 2 herein, within a period as may be fixed by this Honble Tribunal.
iii. To issue a writ, order of direction in the nature of mandamus directing the Railway Board to take suitable action against the Respondent Nos. 2 & 3 herein for violating the instructions contained in the Circular dated 06.09.2005 passed by it with a view to give undue advantage ignoring/site tracking the legal position and instructions for their own personal ill motivated gain, within a period as may be fixed by this Honble Tribunal.
iv. To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Honble Tribunal may deem fit and proper.
3. Respondents have contested the O.A. and emphasized that written test is a must for promotion to the post of Passenger Train Driver, which is a safety category. Applicant having filed the rejoinder, supplementary counter has also been filed.
4. As many private respondents had retired, in respect of serving respondents, steps were taken by the applicant for service of notice but no counter has been filed on behalf of the private respondents.
5. We have heard Shri R. Verma, learned counsel for the applicant and Shri Anil Kumar, learned counsel for the respondents and also perused the documents.
6. The contention of the applicant is that there is no need to undergo the ordeal of written test when order dated 06-09-2005 is specific that mere viva voce would suffice. However, the contention of the respondents is that it is essential as the individuals promotion to the post of Passenger Train Driver was to be considered right from 18-07-2003 when his immediate junior had been promoted and at that time, the said order was not in existence.
7. In our order dated 27-11-2005 in M.A. No. 5264 of 2005 in CCP No. 219 of 2003 in OA No. 957 of 2002 we had already discussed and held that the order dated 06-09-2005 would apply to the case of the applicant and the decision of the DRM that the applicant should qualify the written test vide his order dated 17-10-2006 cannot override the decision of the Board unless the said order of the DRM is with the approval of the Board. Against the same, the respondents have moved the High Court and the High Court gave liberty to the applicant either to appear for the test or to contest the same before the Tribunal through a fresh application and the applicant has chosen the latter.
8. That the entitlement of the applicant to the fixation of seniority in the grade of Fireman Gr. I and consequential benefits thereof had been decided by order dated 27 March, 2003 in OA No. 957 of 2002. This decision was agitated by the respondents through Civil Writ Petition No. 44833 of 2003 in which notice was issued on 01-10-2003 and ultimately the writ petition was dismissed by order dated 08-11-2005. Thus, the above order of the Tribunal dated 27-03-2003 became final only with the dismissal of the writ petition on 08-11-2005. By the time this order has been issued, the requirement of qualifying in the written test for promotion to the post of Passenger Train Driver had already been done away with, vide order dated 06-09-2005. Had there been no such exemption, there is no option for the applicant save to qualify in the test. Since, however, the written test has been dispensed with, notwithstanding the fact that earlier the same was in existence in the earlier part of time when the applicant was to be considered for promotion, under the peculiar circumstances of the case that the case of the applicant for promotion from 2003 had been decided only after the dismissal of the writ petition in November, 2005, the applicant is entitled to be considered for promotion on the basis of the modified selection i.e. viva voce and on his qualifying the same, his promotion as Passenger Driver shall be effective from the date his juniors had been promoted and the pay in the promotional post from the date of promotion till the date of actual holding of the responsibility shall be notional and from the date of actual holding the same shall be actual.
9. Thus, order dated 17-10-2006 is quashed and set aside. It is declared that the applicant is entitled to be considered for promotion on the basis of the modified selection procedure and once he qualifies in the same he should be promoted in the post of Passenger Train Driver from the date his junior had been promoted i.e. 1807-2003 but the pay shall be notional till such time the applicant assumes the higher responsibility. The applicant is entitled to the annual increment due after 2003 and also replacement scale from 01-01-2006. Respondents are directed to the take suitable action in regard to holding of the viva vice and take further action on the basis of the result of the viva voce test.
10. The OA is allowed to the above extent. This order shall be complied with, within a period of three months from the date of communication of this order. No cost.
Member (A) Member (J)
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