Madhya Pradesh High Court
Union Of India vs Rajesh Pathak on 14 October, 2019
Author: Atul Sreedharan
Bench: Atul Sreedharan
1 MP-4969-2019
The High Court Of Madhya Pradesh
MP-4969-2019
(UNION OF INDIA Vs RAJESH PATHAK)
2
Jabalpur, Dated : 14-10-2019
Mr.N.S.Ruprah, learned counsel for the petitioners/Union of India.
Mr.Manoj Sharma, learned counsel for the respondents.
The present petition has been filed by the petitioners herein against the order dated 18.06.2019 passed in O.A.No.200/01059/2018 (Rajesh Pathak Vs. Union of India) passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur, whereby the O.A. filed by the respondent has been allowed.
The respondent is an officer who belongs to 1988 batch of Indian Railway Traffic Services and his date of birth is 31.12.1964. He was promoted to the higher post and at the time of filing the O.A., he was on the post of Senior Administrative Grade (SAG), and was awarded by the Department several times. The ACR's of the respondent reflects that he has been graded "Outstanding" and was also found fit to be posted as DRM by the Reporting and Reviewing and Accepting Authorities. However, the Vigilance Department conducted a preventive check in which the answers sheets of LDCE (Limited Departmental Competitive Examination) for Assistant Operations Manager was seized on 14.02.2013. A questionnaire issued to the applicant on 21.11.2013 alleging certain irregularities in the evaluation of answer sheets in the aforementioned examination. The respondent was issued a charge-sheet on 16.06.2015. He submitted his reply and thereafter the Inquiry and Presenting Officer were appointed on 22.02.2016 to hold the departmental enquiry to the charge-sheet dated 16.06.2015. Thereafter, the Disciplinary Authorities exonerated the applicant on 10.07.2016.
In the meanwhile, the applicant became eligible to be considered for posting as DRM for the Panel of the year 2016-17 which was to be prepared w.e.f. 01.07.2016. His name was excluded on account of the departmental Digitally signed by RAVIKANT KEWAT Date: 15/10/2019 10:52:54 2 MP-4969-2019 enquiry which was pending at that point of time. After his exoneration, he submitted his request for posting as DRM on 13.07.2018 which was rejected by the letter of the Railway Board dated 12.09.2018 which was communicated to the respondent on 26.10.2018. As his request for posting as DRM was rejected, he approached the Central Administrative Tribunal by filing the aforementioned O.A. Before the Tribunal, inter-alia, the petitioner had pleaded that the impugned rejection order dated 12.09.2018 rejecting his claim for the post of DRM be quashed and set-aside and the Railway Board be directed to hold, declare and quash clause-12 of the guideline dated 16.08.2016 on the basis of which the petitioners was rejected.
The learned Tribunal after hearing both the sides partially allowed the O.A. filed by the petitioners. The learned Tribunal held that the petitioners herein have taken an abnormally long time in finalizing the disciplinary proceedings. As the contention of the Railway Board before the Tribunal was that the petitioners had crossed the age of 52 and so, could not be appointed to the post of DRM, was rejected by the learned Tribunal on the ground that on the date on which the said list was to be finalized, the applicant was well within the zone of consideration and was not over-age. The Tribunal also held that the respondent herein became over-age on account of the disciplinary proceedings pending against him for which he could not be held responsible. Moreover, the operative portion of the impugned order reads, thus:-
"Accordingly, the Original Application is allowed. Respondents are directed to convene a review meeting of the Selection Committee for the year 2016-2017 and consider the inclusion of the applicant in the panel for appointment to the post of DRM. This exercise should be completed within a period of six weeks from the date of receipt of a certified copy of this order. if found, the applicant should be posted as DRM thereafter. No costs."Digitally signed by RAVIKANT KEWAT Date: 15/10/2019 10:52:54
3 MP-4969-2019 Learned counsel for the petitioner has drawn the attention of this Court to the guidelines governing the posting of Division Railway Managers (DRM) in the Indian Railways. The said document is annexed as Annexure-A/7 to the petition. The primary ground that has been taken by the petitioners is that posting to the post of DRM is not a promotion but a posting in the same grade i.e. the grade of Senior Adminstrative Grade (SAG). Guideline-2 also enumerates that officers are short listed for posting as DRM on recognition of the fact that the task to be carried out by them is arduous in nature and the person occupying the post is in over all charge of the Division, dealing with all aspects of railway operations. Thus, learned counsel for the petitioners submits that the respondent stands to lose nothing and that he would be receiving the same grade of pay that would be eligible for DRM and that the petitioners would be eligible to be promoted till the post of the Member of the Railway Board. Thereafter, attention of this Court is also been drawn to guideline-10 which provides that at the time of inclusion in the shortlist as well as the time of actual posting as DRM, the officers should be clear from vigilance angle on account of sensitiveness of the post of DRM and that those who are not clear from vigilance angle will not be considered for short- listing and posting as DRM. Reference is also made to guideline no.12 that only such officers who fulfill all the above-mentioned eligibility conditions as on 1st of July of the year in which the short list is prepared, shall be considered for posting as DRM.
Pre-empting an argument from the learned counsel for the respondent, the learned counsel for the petitioner has drawn the attention of this Court to guideline no.15 which states "Notwithstanding anything contained in these policy guidelines, the competent authority may make relaxation to one or more of the aforesaid conditions in a suitable case, keeping in view the administrative requirement and public interest after recording the reasons in writing."Guideline no.15 is a non-obstante clause providing for relaxation of the said guideline by the competent authority, where in a suitable case, Digitally signed by RAVIKANT KEWAT Date: 15/10/2019 10:52:54 4 MP-4969-2019 keeping in view the administrative requirements in public interests, the competent authority may relax the rigidity of guideline no.12 also. Learned counsel for the respondent on the other hand submitted that there are no error apparent on the face of the order and no perversity has been shown. He has further submitted that in view of the judgment of the Hon'ble Supreme Court passed in the case of K.V.Jankiraman which has been considered by the learned tribunal in paragraph-15 of its judgement, the existence of the departmental enquiry against the petitioners on the date on which he was eligible to be included in the Panel List for consideration of appointment to the post of DRM, he could not be held against him after his exoneration in the departmental enquiry on account of the petitioner not satisfying the age criteria. The contention put-forth by the learned counsel for the petitioners that non-inclusion of the respondent in the Panel List of DRM does not impede further prospects of promotion right up to the post of the Member Railway Board, has been controverted by the learned counsel for the respondent. He has drawn the attention of this Court specifically to paragraph-15 of the impugned judgement where the learned Tribunal has held that guidelines for posting as General Manger clearly indicates that posting as DRM is a condition precedent for being promoted as a General Manager. This observation has been culled out by the learned Tribunal from the Annexure filed by the petitioners herein before the learned Tribunal. Thus, it is clear that for the respondent to be considered for appointment to the post of General Manager, it was essential for him to occupy the post of DRM. Further, the impugned order has only directed the petitioners herein to convene the review meeting of the Selection Committee for the year 2016 to consider the inclusion of the applicant in the panel for appointment to the post of DRM. The impugned order does not direct the petitioners to appoint the respondent on the said post. This is also clear from the last two lines of the impugned order, where the learned Tribunal has directed " if found fit, the applicant should be posted as DRM, thereafter."
Digitally signed by RAVIKANT KEWAT Date: 15/10/2019 10:52:545 MP-4969-2019 Under the circumstances, the only direction to the petitioners is to convene a review meeting of the Selection Committee. Thereafter, it is up to the petitioners to appoint the respondent to the post of DRM only if he is found fit and not otherwise. Under the circumstances, this Court does not find any perversity in the impugned order, the petition is dismissed.
(ATUL SREEDHARAN) (J. P. GUPTA)
JUDGE JUDGE
rk.
Digitally signed by RAVIKANT KEWAT
Date: 15/10/2019 10:52:54