Central Administrative Tribunal - Cuttack
K Behera vs M/O Railways on 10 February, 2025
1 O.A.No. 260/00193 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00193 of 2019
Reserved on 07.02.2025 Pronounced on 10.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Kapilendra Behera, aged about 42 years, Son of
Late Bhagaban Behera, at present working as TCM
Grade-III under Senior Section Engineer
(Telecom), East Coast Railway, Station Bazar,
Cuttack, permanent resident of At Goptira, P.O.-
Chandannagar, P.S.- Pattamundai, Dist.-
Kendrapara-754217.
2. Purna Chandra Jena, aged about 50 years, Son of
Late Laxmidhar Jena, at present working as TCM
Grade-III under Senior Section Engineer
(Telecom), East Coast Railway, Jajpur Keonjhar
Road, Dist. Jajpur, permanent resident of Vill/P.O.-
Naduana, P.S.- Ghasipura, Dist.- Keonjhar-758015.
......Applicants
VERSUS
1. Union of India, represented through General
Manager, E.Co.Rly., E.Co.R Sadan,
Chandrasekharpur, Bhubaneswar, Dist.-Khurda-
751017.
2. Divisional Railway Manager, East Coast Railway,
Khurda Road Division, At/P.O.- Jatni, Dist.-
Khurda-752050.
2 O.A.No. 260/00193 of 2019
3. Senior Divisional Personnel Officer, East Coast
Railway, Khurda Road Division, At/P.O.- Jatni,
Dist.- Khurda-752050.
4. Senior Divisional Signal & Telecom Engineer, East
Coast Railway, Khurda Road Division, At/P.O.-
Jatni, Dist.- Khurda- 752050.
5. Divisional Signal & Telecom Engineer (Co-ordn.),
East Coast Railway, Khurda Road Division,
At/P.O.- Jatni, Dist.- Khurda- 752050.
6. Senior Section Engineer (Tele), East Coast
Railway, Station Bazar, P.O.- College Square,
Town/ Dist.- Cuttack-753001.
7. Senior Section Engineer (Tele), East Coast
Railway, Jajpur Keonjhar Road, Railway Campus,
P.O. Jajpur Road, Dist.- Jajpur-755019.
......Respondents
For the applicant : Mr. N.R.Routry, Counsel
For the respondents : Mr. R.K.Sahoo, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Facts of the matter, as it appears from record, are that consequent upon restructuring of cadre as per RBE No. 102/2013, surrender of two posts of Motor Trolley Driver (MTD) Gr. III and redeployment of the surplus two MTD Gr. III as Technician Gr. 3 O.A.No. 260/00193 of 2019 III/Signal Maintainer within the same department was approved by the competent authority vide order dated 28.07.2014. The applicants, who were working as MTD Gr. III, submitted representation dated 20.08.2014 requesting for their posting as Telecom Maintainer (TCM). Their request was duly accepted and both of them were redeployed as Tech. III (TCM) in GP Rs. 1900/- instead of Tech. III (SM) vide order dated 05.06.2015. 1.1 Thereafter, they submitted representations on 15.06.2015 and 16.06.2015 requesting protection of their seniority in the grade of Tech. III (TCM) considering their past service. The said request of the applicants was found not acceptable in view of the provision made in para 313A of IREM Vol. I and, accordingly, their request was rejected and intimated to them vide letter dated 20.07.2015. 1.2 Due to increase of the percentage of sanctioned strength of Sr. Tech (MT Driver) and Tech. I (MT Driver) and decrease of the sanctioned strength of Tech II and Tech. III (MV Driver and MT Driver), one Sri Sashikanta Jena, Tech. III (MT Driver), who was junior to both the applicants in the previous grade, was promoted to the post of Tech. II (MT Driver) vide order dated 23.12.2015. 4 O.A.No. 260/00193 of 2019 1.3 The applicants submitted representations on 28.01.2016 and 03.02.2016 agitating their grievance for protection of their seniority as TCM citing the promotion of Sri Jena, which was considered and rejected on the ground that both of them were redeployed as Tech. III (TCM) on their own request on bottom seniority as per RBE No. 105/2004. After joining as Tech. III (TCM) as per own request, they cannot claim the benefit of promotion in the cadre of MTD as per rules. It was further stated that their future promotion will be only in the cadre of Tech. II (TCM) and not in the cadre of MTD. 1.4 A representation dated 17.11.2016 was received from General Secretary, Bharatiya Railway Mazdoor Sangha stating therein that, in terms of the rules, in case of surrender of post, the junior-most staff in the cadre ought to have been declared surplus and, therefore, redeploying the applicants instead of Sri Sashikanta Jena, who was junior to both of them in Tech. III (MTD) is not in accordance with rules. Sri Sashikanta Jena Tech.II (MTD) also submitted representation dated 21.11.2016 for declaring him surplus and his redeployment in place of his seniors.
1.5 The entire issue was reconsidered by the competent authority. 5 O.A.No. 260/00193 of 2019 Since, two posts were neither merged with the Telecom Cadre of S&T Department nor the money value was utilized for restructuring/credited to their vacancy bank, the competent authority restored the two posts of MTD surrendered earlier by cancelling the redeployment order dated 28.072014 of the applicants. Accordingly, both the applicants were deemed to have been repatriated to the post of Tech III (MTD) w.e.f. 28.07.2014 with protection of their seniority at par with their juniors vide order dated 11.04.2017. Consequent upon the restoration of post and repatriation of the applicants, the representation dated 21.11.2016 submitted by Sri Sashikanta Jena was disposed of accordingly. 1.6 Thereafter the applicants submitted representations to continue in the post of Tech. III (TCM). The said appeal was considered but, in view of the development that took place noted above, the same was rejected. The said decision was communicated vide letter dated 30.11.2017 with a request to spare the applicants immediately to join their former post of Tech. III (MTD). 1.7 Applicant again submitted representation on 13.12.2017 requesting to allow them to continue in the redeployed post of 6 O.A.No. 260/00193 of 2019 Tech.III or TCM-II in S&T Dept. The said request was duly considered but was not acceded to by the competent authority and, accordingly, vide letter dated 12.10.2018, request was made to spare the applicants immediately. Being aggrieved, the applicants approached the CAT, Kolkata in OA No. 1629/2018, which was subsequently transferred to this Bench where it was renumbered as OA 193/2019. The prayer of the applicant in this OA is as under:
"a. To quash the orders dtd. 11.04.2017, 30.1.2017 and 12.10.2018 under Ann.-A/9, A/11 & A/13 respectively;
b. And to direct the respondents to allow the applicants to continue as TCM Gr.-III under Respondent No. 6 & 7;
And pass any other order...................."
2. The factual aspects narrated above are not in dispute in the counter filed by the respondents. However, the respondents have contested and objected the stand taken by the applicants basically on the grounds that due to surrender of the posts, they were adjusted in Signal & Telecom wing of the same department on their own request, which was also done in violation of Para 313A of IREM Vol. I, which provides that in case of surrender of posts, the case of junior-most 7 O.A.No. 260/00193 of 2019 employee of the grade/cadre will have to be considered for redeployment, which aspect was also agitated by the Employees Union so also the junior-most employee Sri Sashikanta Jena. However, since the surrendered post was restored retrospectively, the applicants were redeployed were brought back to their place and post wherefrom they were redeployed consequent upon surrender of post with due protection of their seniority etc. Therefore, the interest of the applicants were in no way affected especially when they were raising the grievance for protection of their seniority in the previous grade upon their redeployment and grant of the benefits what has been given to their junior in previous post. Accordingly, respondents, in their counter, have prayed for dismissal of this OA.
3. Ld. Counsel for the applicants based on the OA, rejoinder, additional affidavit has submitted that after redeployment of the applicants they have acquired the foundation and equipment course meant for Telecom Maintainer. The respondents while rejecting their representation for protection of their seniority have specifically intimated that their promotion etc. shall be considered in the cadre 8 O.A.No. 260/00193 of 2019 of Tech. III (TCM). Upon their absorption in the redeployed post of Tech. III (TCM) their lien in the previous post was ceased to exist. There is requirement of staff in S&T Dept. Meanwhile, they were sent for training on refresher course for the year 2022-23 at the Signal and Telecom Centre Kharagpur and they also attended the same. Thus, they are eligible and entitled to be promoted in the cadre where they have been redeployed. Therefore, their repatriation that too with retrospective effect having adverse effect on their service career is bad in law. Hence, he has prayed for the grant of relief claimed in the OA.
4. On the hand Ld. Counsel for the respondents, relying on the counter and reply to the affidavit filed by the applicants, has submitted that creation, abolition, surrender, posting and transfer are the matters fall exclusively within the domain of the authorities. As a matter of policy, the competent authority decided to surrender the posts and consequently considering the request of the applicants they were redeployed in other with the same department. Subsequently, when the posts were restored, the applicants were brought back to their original post with protection of seniority etc. 9 O.A.No. 260/00193 of 2019 The interest of the applicants was, therefore, no way affected. The applicants had never been absorbed in the cadre of Tech.II (TCM) in S&T department. The stand of the applicants that their lien was ceased consequent upon their absorption is their own interpretation without any supporting document. As regards, acquiring the training etc. as submitted by the applicants, the same has no bearing insofar as their repatriation to their original post. It has been submitted that when the applicants were continuing in the redeployed post they were intimated that their promotion etc. will be governed on their own line of Tech.III (TCM) and since they have been repatriated obviously their promotion etc. will be governed in their own line in the grade of MTD and the stand of the applicants that since the authority concerned while rejecting their claim for protecting their seniority while continuing in redeployed cadre stated that they will get the service benefits in the cadre of Tech. III (TCM) cannot be a ground for the applicants to challenge the policy decision taken by the competent authority. Accordingly, Ld Counsel for the respondents has prayed for dismissal of this OA.
10 O.A.No. 260/00193 of 2019
5. We have considered the submissions of the parties and perused the records.
6. It is not in dispute that the applicants were not the junior-most employee in the grade/cadre of TCM-III (MTD) in the department wherefrom they were declared surplus and adjusted in Tech. III (TCM) of the Railways on their application submitted by them. It is also not in dispute that though Sri Sashikanta Jena was junior, he preferred to remain in the existing grade/cadre at the time of restructuring. He also did not object the deployment of the applicants to the redeployed as Tech. III (TCM). The applicants also got promotion in their own line after redeployment in Tech. III (TCM). The restructuring of the cadre took place in terms of the RBE No. 102/2013 dated 08.10.2013. Nowhere in the said RBE there is any discretion left with the lower authorities to restore the posts at their whims and fancy that too after a long lapse of time. Respondents have submitted that on consideration of the representation of Sashikanta Jena, the DRM, Khurda Road as a corrective measure passed an order for restoration of two posts of MT Driver surrendered earlier by cancelling the redeployment order dated 11 O.A.No. 260/00193 of 2019 28.07.2014. Since restructuring was made by virtue of the Railway Board instruction, restoration of the post made by the DRM after such a long lapse of time is not legally sustainable. In the circumstances stated above, we find force in the submissions of Ld. Counsel for the applicant and, accordingly, the impugned orders dated 11.04.2017, 30.11.2017 and 12.10.2018 are hereby quashed. Consequently, respondents are directed to allow the applicants to continue in the post of TCM Gr.III under respondent Nos. 6 and 7. The respondents are directed to issue the consequential order to the above effect within a period of 60 days from the date of receipt of a copy of this order.
7. In the result, the OA stands allowed. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS