Central Administrative Tribunal - Allahabad
Brijesh Smith vs Union Of India Through General Manager on 6 March, 2013
Reserved
(On 12.02.2013)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated : This the 6th day of March 2013
Original Application No. 725 of 2010
Honble Ms. Jayati Chandra, Member (A)
Honble Ms. Jasmine Ahmed, Member (J)
1. Brijesh Smith, S/o late Vinod Smith, R/o 574, Muthiganj, Allahabad.
2. Alok Singh, S/o Sri Ramnand Singh, R/o 477 B Mumfordganj, Allahabad.
3. Sandeep Singh, S/o Sri Jaira, R/o near Post Office Admatpur, Agra.
. . .Applicants
By Adv : Shri A.K. Dave & D.K. Srivastava
V E R S U S
1. Union of India through General Manager, North Central Railway, Allahabad.
2. General Manager, North Central Railway, Allahabad.
3. Divisional Railway Manager, North Central Railway, Allahabad.
4. Divisional Railway Manager (P), North Central Railway, Allahabad.
. . .Respondents
By Adv: Shri B. Tiwari & Shri Hari Ashok Kumar
O R D E R
By Honble Ms. Jayati Chandra Member (A) Instant OA has been filed by the applicants under Section 19 of the A.T. Act, 1985 seeking the following reliefs:
a. To quash and set aside the impugned order dated 15.04.2010 communicated through covering letter dated 16.04.2010 signed by respondent on 19.04.2010.
b. To direct the respondent to modify notification dated 03.11.2009 in view of provision of 203.7 IREM Vol I by allowing the candidature of applicants for appearing in the selection since they were eligible for the same since previous notification.
c. To direct the respondents to promote the applicants on the post of Section Controller with all consequential benefits, if successful in the tests.
d. To pass any other suitable order or direction which this Honble Tribunal may deem fit and proper in the circumstances of the case.
2. The brief facts of the case are that the applicant No. 1 was promoted in the grade of Rs. 5000 8000 w.e.f. 01.07.2006, applicant No. 2 was promoted in the same grade w.e.f. January, 2007 and applicant No. 3 was promoted to the same grade w.e.f. January, 2010 respectively. Prior to being promoted in the grade of Rs. 5000 8000 they were all working in the grade of Rs. 4500 7000. However, they are discharging the responsibilities of the post of Section Controller in the Grade of Rs. 5500 9000. The Divisional Railway Manager (P) i.e. Respondent No. 3 issued a notification dated 03.02.2006 (Annexure A-2) inviting applications for drawing of a panel of Section Controller in the Grade of Rs. 5500 9000 against 75% promotional quota. There were 07 posts including 05 for General candidates and 02 for SC candidates. The Feeder cadre comprised of (i) Guard in the Grade of Rs. 5000 8000 and if not available then to the extent of 30% from Guard in the Grade of Rs. 4500 7000, (ii) ASM/SM in the Grade of Rs. 5000 8000 and if not available then to the extent of 30% from Guard in the Grade of Rs. 4500 7000 & (iii) Assistant Yard Master in the Grade of Rs. 5000 8000 and if not available then to the extent of 15% from Guard in the Grade of Rs. 4500 7000. The age limit was less than 48 years and the selection will be on the basis of a written examination.
3. The applicants applied for the said post as they were fulfilling all the eligibility conditions. The candidates appeared in written test, but the same was cancelled and the posts were re-notified vide notification dated 04.08.2008 with the same eligibility conditions (Annexure A-3). The name of the applicant No. 1 appeared at Sl. No. 18, applicant No. 3 at Sl. No. 19 and applicant No. 3 at Sl. No. 33 of the list of candidates found eligible to appear in the written test. The written test was scheduled to be held on 06.12.2008, 07.12.2008 & 13.12.2008. But the said examination was also cancelled and the candidates (120 in number) were directed to appear in the written test on 16.05.2009 and 23.05.2009 vide order dated 21.04.2009 (Annexure A-5). Once again the selection process to fill up the declared vacancies i.e. written test was cancelled on 08.07.2009 (Annexure A-6).
4. By a fresh notification No. 940 E/ET3/Kha. Nee./Chayan/09 dated 03.11.2009 was issued for selection to the post of Khand Niyantrak (Section Controller) in the revised pay scale of Rs. 9300 34800 under 75% promotional quota was issued. The total number of vacancies had gone up to 14 of which 11 posts for General Category, 01 post for SC and 02 posts for ST candidates. The age eligibility criteria was kept as 48 years, but cut off date was fixed as 30.11.2009. Moreover, the Feeder Cadre eligibility was Guard in the pay scale of Rs. 4500 7000 / 5200 20200 : Grade pay Rs. 2800/- and for ASM in the pay scale of Rs. 4500 7000 / 5200 20200 : Grade pay Rs. 2800/-. Since the applicants were drawing Grade pay Rs. 4200/- they were declared to be ineligible. In utter violation of the Railway Boards circular dated 03.09.2009 (Annexure A-8) which clearly stated in para 2 E that posts earmarked against selection/general selection/LDCE quota will be filled up as per existing procedure.
5. The applicants filed OA No. 254/10 against the notification. An order dated 19.02.2010 was passed permitting the applicants to appear provisionally in the selection and giving a direction to the respondents to decide the representation of the applicant within a period of 03 months from the date of receipt of a certified copy of the order. The applicants appeared provisionally in the said test held on 06.03.2010. In the meanwhile the representations of the applicants were dismissed by order dated 15.04.2010 by respondent No. 3 reiterating their earlier stand that is as the applicants were drawing higher Grade pay of Rs. 4200/- they were not eligible for selection to the post of Khand Niyantrak or Section Controller. This stand of the respondents, is against the Railway Boards Rule 203.7 of IREM Vol. I which reads as follows:
203.7 Where due to exceptional reasons beyond the control of the Administration it is not possible to hold the selection as scheduled and it is delayed by more than one selection period, the first selection that is held thereafter should follow the procedure indicated below :-
a. The actual number of vacancies for each of the selections should be assessed separately.
b. The employees who would be within the field of consideration with reference to vacancies to be filled at each selection starting with earliest selection should only be considered for each selection.
c. A panel should be prepared for each of the selections.
d. All the panels should be consolidated by placing the panel of earlier period above the one for the next and so on.
6. The respondents have admitted all the contentions, but have defended their stand on the basis of revised situation consequent upon introduction of the 6th Pay Commission Report. They have stated that the 6th Pay Commission report was implemented w.e.f. 01.01.2006. Prior to the cut off date of 01.01.2006, there were two scales i.e. 5000 8000 and 5500 9000. These two grades were merged in the one Grade of Rs. 9300 34800 with Grade pay of Rs. 4200/-. The applicants were working in the pay scale of Rs. 4500 7000. w.e.f. 01.01.2006. But applicants No. 1 & 2 were promoted to the pay scale of Rs. 5000 8000 prior to 29.08.2008. However, once the 6th Pay Commission report was implemented w.e.f. 01.01.2006, their pay could be fixed in the merged pay scale of Rs. 9300 34800 with Grade pay of Rs. 4200/-. The posts on which selection were to be made vide notification dated 03.02.2006 and subsequently vide notification dated 04.08.2008 were in the pay scale of Rs. 5500 9000. The notification dated 03.11.2009 seeks to promote Guards and ASMs from pay scale of 4500 7000/5200 20,000 with Grade pay of Rs. 2800/- to the merged pay scale.
7. The applicants through their Rejoinder Affidavit and the Rejoinder Affidavit to Suppl. Counter Affidavit have produced few documents in support of their claim. First of all they have stated that the for the post of Section Controller in the pay scale of Rs. 9300 34800 with Grade pay of Rs. 4200/- against 75% quota for Guards and ASM working in the Grade pay of Rs. 4200/- are eligible for consideration for promotion. It is only when adequate number of persons are not available in the Grade pay of Rs. 4200/- then upto 30% of the quota for Guards and 45% quota of ASM will be taken from those who are having Grade pay of Rs. 2800/- . They have also submitted that in the Northern Railway Guards etc. working with a Grade pay of Rs. 4200/- been called for selection to the post of Section Controller in the pay scale of Rs. 9300 34800 under the 75% selection quota vide their notification No. 752/5-1/Select/SCNL/10 dated 16.09.2010 (Annexure SA-1). In the North Central Railway itself by notification dated 02.06.2010 the electrical division persons with Grade Pay of Rs. 4200/- have been called for selection to the posts having pay scale of Rs. 9300 34800 with Grade Pay of Rs. 4200/-.
8. In the second rejoinder affidavit they have reiterated the same thing as they have stated earlier.
9. Through their Suppl. Counter Affidavit the respondents have stated in para 4 and 5 that according to the Railway Boards letter dated 19.02.1987, the minimum period of service for eligibility for promotion within Group C shall be two years in the immediate lower grade irrespective of whether the employees belong to reserved community or not. This letter has been issued by the Railway Board on the basis of recommendation of Railway Reforms Committee in Part-IX of their report on personnel matters. Their contention is quoted below:
In Para 215 of IREM Vol. I, revised Edition 1989 it has been provided that Selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. The positive act of selection shall consist of only written test to assess the professional ability the candidates, for which reasonable advance notice should be sent, except in the case of selection for promotion to posts in the categories of Teachers, Law Assistants, Physiotherapists and Telephone Operators, where the positive of selection shall consist of both written test and viva-voce test. The staff in immediate lower grade with a minimum of two years service in that grade only will be eligible for promotion, unless a longer length of service in the lower grade has been stipulated as a condition of eligibility for promotion in a particular category. The service for this purpose includes service, if any, rendered on ad hoc basis followed by regular service without break. The condition of two years service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration.
10. They have further stated that the General Manager of each Zonal Railways is empowered to take full decision with regard to the employees with regard to Group C and D under their control under para 123 of IREC Vol. I. They were not aware that what action has been taken in the Northern Railway, therefore, Annexure RA1 is challenged by them. In so far as the post of JE II is concerned these posts of JE has to be filled up from Senior Technologist who are governed by a separate set of rules and regulations from that of Section Controller. With regard to the post of Section Controller they have governed by order of the Railway Board dated 12.03.1988 (Annexure SCA-4), whereas, that of JE is governed by letter dated 22.02.2005 (Annexure SCA-3).
11. We have heard Shri A.K. Dave, learned counsel for the applicant and Shri Bashist Tiwari, learned counsel for the respondents and perused the entire facts of the case. It is admitted by both the parties that the applicants were working in the pay scale of Rs. 4500 7000 on the date of issue of 2nd notification dated 04.08.2008 (Annexure A-3).
12. It is stated by the learned counsel for the applicants that applicant No. 1 was working in the pay scale of Rs. 5000 8000 from 01.07.2006, applicant No. 2 was working in the pay scale of Rs. 5000 8000 w.e.f. January, 2007 and applicant No. 3 was working in the pay scale of Rs. 5000 8000 w.e.f. January, 2010. Therefore, at the time of first notification i.e. 03.02.2006 for the promotion to the post of Section Controller in the pay scale of Rs. 5500 9000 all of them were working in the lower pay scale of Rs. 4500 7000. Their eligibility would be considered under the second category of persons with lower pay scale of Rs. 4500 7000 if adequate persons were not available in the pay scale of Rs. 5000 8000. At the time of second notification of 04.08.2008 the applicants No. 1 and 2 had reached to the pay scale of Rs. 5000 8000 and only applicant No. 3 was in the lower pay scale of Rs. 4500 7000. In the course of time the applicant No. 3 came to the pay scale of Rs. 5000 8000 w.e.f. January, 2010. It is not denied by either of the parties that posts in the pay scale of Rs. 5000 8000 and 5500 9000 were merged in the 6th Pay Commission and converted into one post in the pay scale of Rs. 9300 34800 and that the 6th Pay Commission report was implemented w.e.f. 01.01.2006.
13. It is pertinent to note that none of the parties have provided a copy of Government resolution with regard to the pay structure adopted in pursuance of the 6th Pay Commission. Therefore, first edition of the Swamys Compilation of Revised Pay Rules, 2008 under Government Resolution No. G.I.,M.F. No. 1/1/2008-I C dated 29.08.2008 has been referred to. It is clear that the date of adoption of the said resolution is 29.08.2008 but the date of implementation of the said is 01.01.2006.
14. In so far as the instance of promotion to the post of Section Controller carried out by the Northern Railway is concerned, while the said notification talks about the Grade Pay of Rs. 4200/-, it does not state that what is the pay grade, whether it is Rs. 9300 34800 (merged scale) or some other scale. No reliance can not be placed on any document having incomplete information for granting any relief to the applicant. Similarly, the parallel drawn by the applicants is also not relevant as it relates to promotion of persons in the Technical grade for which separate set of instructions and procedure are applicable.
15. The Railway Boards letter dated 03.09.2009 on the subject implementation of recommendations of 6th CPC Merger of grades Revised classification and mode of filing up of non-gazetted posts has been provided by the Applications as Annexure A-8. The applicant has placed reliance of the provision 2 (e) of the circular which reads as under:
For (a) & (b) above, in case CRs for 2008-09 for all candidates in the zone of consideration, are not available, ACRs upto year 2007-08, may be taken into account. However the subject matter of the circular is to be seen in the context of determining the break up of eligibility parameter from one grade to another. For example para 2 (a) mentions that the criteria for posts of carrying grade pay of Rs. 4200/- is proposed to be filled up is Seniority-cum-merit. Further it talks about the CRs that are to be taken with consideration. Similarly para 2 (e) is to be seen against the detailed annexure reproduced below:
For (a) & (b) above, in case CRs for 2008-09 for all candidates in the zone of consideration, are not available, ACRs upto year 2007-08, may be taken into account. This demonstrates that the said circular does not endorse continuation of promotion with the merged cadre/pay scale. Point 6 of the table annexed with the circular states that promotion to that post will remain 75% general selection, 15% from shortfall against LDCE and 10 by LDCE, which is the earlier break-up of the method of selection.
16. The second notification dated 04.08.2008 was prior to the issue of this guidelines of the Railway Boards dated 03.09.2009 and prior to notification of adoption of 6th Pay Commission on 29.08.2008 and, therefore, it is safe to conclude that the respondents went ahead with the normal mode of promotion as existed prior to this Pay Commission. It is possible to infer that the cancellation order of the promotion dated 08.07.2009 could have been made in the uncertain aftermath of the adoption of the 6th Pay Commission Report. In fact the Railway Boards circular dated 03.09.2009 speaks of earlier letter of even no. dated 23.09.2008 & 24.09.2009 which have not been produced. Of course had the respondents gone ahead and held the selection, it is not known how the matter would have been resolved in the wake of the 6th Pay Commission Report since the two pay scales did not exist. The respondents, should not have gone ahead and held the written test in December, 2008, much less the retest on 16.05.2009 & 23.05.2009. By doing that the respondents were not only violated the provisions of 6th Pay Commission but also raised the hopes of promotion to the candidates.
17. The controversy that has arisen in this case can be explained by the fact that while the report of 6th Pay Commission was adopted on 29.08.2008, its effect was retrospective. Para 4 of the said Government Resolution dated 29.08.2008 shows that the pay has to be fixed in the Revised Pay bands with reference to basis pay drawn on 01.01.2006. The schedule of the present pay and the revised pay scales para A II shows that the two pay bands of Rs. 5000 8000 and 5500 9000 are merged together in one pay scale of Rs. 9300 34800 with Grade pay of Rs. 4200/-. It is, therefore, concluded that on the date of second notification dated 04.08.2008 as well as the impugned notification there was actually only one merged pay scale of Rs. 9300 34800.
18. In view of the observations made above, in our opinion the OA lacks merit. The same is accordingly dismissed. No cost.
Member (J) Member (A)
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