Central Administrative Tribunal - Hyderabad
Prabhat Kumar Singh vs The Chief Personnel Officer on 2 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD Original Application No. 379/2008 Date of Order : 02.12.2008 Between: Prabhat Kumar Singh ... Applicant And 1.The Chief Personnel Officer, South Central Railways, Railnilayam, Secunderabad. 2.The Divisional Railway Manager, S.C.Railways, Nanded Division, Nanded. 3.The Senior Divisional Personnel Officer, S.C.Railways, Nanded Division, Nanded. 4.Uma Maheswara Rao, Occupation : Railway employee, c/o The Divisional Railway Manager, S.C.Railways, Guntur Division, Guntur. .. Respondents Counsel for the applicant ... Mr.K.Siva Reddy Counsel for the respondents ... Mr.M.C.Jacob CORAM: Hon'ble Mr.Justice P.Lakshmana Reddy ... Vice Chairman Hon'ble Mr. R.Santhanam ... Member (Admn.) ORAL ORDER
{As per Hon'ble Mr. Justice P.Lakshmana Reddy, Vice Chairman } Heard Mr.K.Siva Reddy, learned counsel for the applicant and Mr.M.C.Jacob, learned standing counsel for the respondents.
2. The short point that arise for consideration in this application is whether the next candidate in the panel is to be given promotion in the event of non joining of one of the senior scheduled to be promoted.
3. The relevant facts in brief are as follows :
On 24.12.2004 the respondents have notified the vacancies of 24 Station Master Gr-I and later completed the selection process selecting the eligible Station Master Gr-II. Originally the applicant was not alerted as he was not within the zone of consideration. Subsequently the applicant along with five others filed OA.39/2006 claiming that their seniority in the grade of Station Master Gr-II was not properly fixed and if the Station Master Gr-II is properly fixed the applicant and five others also would have come within the zone of consideration. During the pendency of OA 39/2006 this Tribunal had passed an interim order directing the respondents to permit the present applicant and five others to appear for written examination conducted for Station Master Gr-I but not to publish the results. Accordingly the applicant and five others appeared for examination during the pendency of OA 39/2006 and they became qualified. Therefore the respondents kept six UR vacancies unfilled. The said OA was allowed by this Tribunal on 29.06.2007 upholding the contentions of the present applicant and five others and also directing the respondents to revise the seniority list published on 12/14.12.2000 of Station Master Gr-II. Subsequent to the disposal of the said OA the seniority of Station Master Gr-II was revised and the applicant's name was included in the panel of 16 candidates dated 04.03.2008. Out of those 16 candidates 14 were URs and 2 were SCs. And the remaining 8 posts meant for ST were not filled. The applicant was at Sl.No.14 i.e. the last UR candidate. While so the next UR among the qualified candidates by name Sindhu Prasad raised a dispute challenging the seniority of the applicant by way of representation to the respondents. The respondents have found that both of them joined on the same day, but as Sindhu Prasad is elder than the applicant he was given seniority over the applicant and therefore Sindhu Prasad took the place of the applicant in the panel of 14. Thereafter one of the UR candidates i.e. the 4th respondent who was empanelled, refused to join in the promotion post as he wanted to go on mutual transfer to Guntur division who is at Sl.No.3 in the list of panel. Then the present applicant submitted a representation to the respondents on 27.05.2008 requesting the respondents to include his name in the panel of 14 as one of the 14 empanelled candidates refused to join in the promotional post and he want outside the division in the lower grade itself to Guntur division on mutual transfer. As no orders have been passed on the said representation the applicant filed the present OA contending that the action of the respondents 1 to 3 in not promoting the applicant to Station Master-I even after showing his name in the panel and even though the post is available is highly illegal, arbitrary and contrary to the various circulars issued by the Railway Board; the respondents 2 and 3 ought not to have shown the name of R-4 in the panel dated 04.03.2008 as he admittedly sought mutual transfer in the lower grade to Guntur division as long back as on 01.08.2008. The respondents 2 and 3 ought not to have given promotion to the post of Station Master Gr-I to the 4th respondent on 02.08.2006 as by then the 4th respondent had already been transferred to Guntur division i.e. on 01.08.2006. The applicant further contended that as per Rule 220 of IREM if the senior person does not officiate for reasons of his own, this implied that he has refused the promotion and in such case the next junior is eligible for such promotion. In the instant case the 4th respondent has not joined the promotional post and had gone to Guntur division on mutual transfer in lower grade, it has to be presumed that he refused the promotion impliedly and next junior i.e. the applicant is entitled for the promotion since the applicant already found suitable for the post.
4. The respondents filed the reply stating that the respondents issued notification on 24.12.2004 to fill up 24 vacancies of Station Master Gr-I out of which UR-14, SC-8 and ST-2. As the applicant was not in the zone of consideration he along with five others filed OA 39/2006 disputing the seniority position assigned to them in the Station Master Gr-II on joining the division after training as Traffic Apprentices. In the said OA interim orders were granted allowing the applicants in the said OA to appear for the said examination but not to publish their results. After the examination, by memorandum dated 15.06.2006 a panel of 9 employees was published keeping 6 UR vacancies unfilled pending the decision of OA.39/2006 and one more till the finalisation of the major penalty charge sheet issued to the another employee. Subsequently by office order dated 02.08.2006 the empanelled employees were promoted and posted to the stations indicated against their names. In the said proceedings 4th respondent is at Sl.No.2. Thereafter OA.39/2006 was allowed directing to place the applicant in the above OA above the private respondents No.3 to 27 in the seniority list dated 12/14.12.2004 and to give promotion to the next higher grade accordingly. By virtue of said order the seniority list of Station Masters Gr-II was amended interpolating the names of the applicant in the said OA above the private respondents by proceedings dated 16.10.2007 and by memorandum dated 04.03.2008. All the applicants in the said OA were empanelled based on the revised seniority and the name of the applicant is at Sl.No.14 in the said memorandum dated 04.03.2008. However, the said panel was once again undergone change in view of the assignment of seniority of one Sindhu Prasad and as such by memorandum dated 07.07.2008 the said Sindhu Prasad was included in the unreserved vacancy and the applicant being the last official in the unreserved category his name was dropped. The respondents admitted that the 4th respondent did not join in the promotional post and he left the division on mutual transfer in the lower grade itself on request. But the contention of the respondents is that as the 4th respondent was empanelled on 15.06.2006 by the competent authority as per his suitability as on that date, his subsequent non joining has no consequence as the said vacancy has to be released to subsequent selection and hence the applicant could not be accommodated in the panel and as such the action of the authorities is inconformity with the rules. The respondents relied on sub-para (1) of para 219 of IREM which reads as follows :
After the competent authority has accepted the recommendations of the Selection Board, the names of the candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel this should be done after obtaining the approval of the competent authority next higher than the one that approved the panel.
5. It is not disputed that the panel prepared on 15.06.2006 was amended twice and the final list was prepared on 07.07.2008 by which date 4th respondent was not at all in the division and he had already refused the promotion and did not join the promotion post and he went on mutual transfer to Guntur division in the lower grade itself. Inspite of it the panel prepared on 07.07.2008 also contained his name. While amending the panel subsequent to 4th respondent left the division the respondents ought to have removed the name of the 4th respondent and included the name of the next eligible qualified candidate. Even the IREM 219 quoted by the respondents in their reply does not say that under no circumstances the panel shall not be amended. On the other hand even after the formation and announcement of the panel with the approval of the competent authority the panel can be amended, if there are sufficient reasons. Here in the instant case the applicant and two others were carrying the same seniority having joined on the same date and therefore their seniority had to be determined basing on the age and on account of that the applicant could not come among the 14 of URs at the first instance. But when the 4th respondent who was among the 14 URs did not join and refused to join and went out of division also, there was no impediment to the respondents to include the name of the applicant as a last candidate among the 15 candidates instead of keeping it unfilled. Merely because it requires approval of the competent authority, it cannot be said that the applicant cannot be accommodated. It is not as if the competent authority is not the respondent herein. The 2nd respondent is the competent authority who has got power to amend the panel to accommodate the applicant in the 14 posts. Therefore, we do not find any force in the reply filed by the respondents to deny the promotion to the applicant. In our considered view the applicant is entitled for the relief prayed for.
6. In the result the application is allowed directing the respondents to include the name of the applicant in the panel of 14 URs as a last candidate after removing the name of the 4th respondent from the panel dated 07.07.2008 and promote him within a period of three months from the date of receipt of a copy of this order.
7. In the circumstances there shall be no order as to costs.
( R.SANTHANAM) (P.LAKSHMANA REDDY) MEMBER (ADMN.) VICE CHAIRMAN Dated : 2nd December, 2008 (Dictated in Open Court)