Central Administrative Tribunal - Allahabad
Dheeraj Kumar Yadav vs Divisional Railway Manager N C Rly on 23 March, 2018
Reserved on 15.3.2018
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
This the 23rd day of MARCH 2018.
ORIGINAL APPLICATION NO.330/00198 OF 2018
HON'BLE MR. JUSTICE DINESH GUPTA, MEMBER (J).
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
1. Dheeraj Kumar Yadav S/o Late Kishori Lal Yadav, Loco
Pilot Goods I.D. No. 1977 T.N. no. 746, North Central
Railway, Jhansi.
...............Applicant
VER S U S
1. Union of India through Secretary, Ministry of Railway,
Government of India, New Delhi.
2. Divisional Railway Manager (Personal), North Central
Railway, Jhansi.
.................Respondents
Advocate for the Applicant : Shri D K Singh
Advocate for the Respondents : Shri Shesh Mani mishra
ORDER
(Delivered by Hon'ble Mr. Justice Dinesh Gupta-J) By way of the present O.A., the applicant has prayed for following reliefs:-
"(i) To issue an order, rule or direction for quashing and setting-aside the impugned order dated 25.01.2018 passed by respondent no. 2.2
(ii) To issue an order or direction directing the respondent to allow the applicant to appear in the examination of Loco Inspector as per advertisement dated 11.01.2016.
(iii) To issue an order rule or direction, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.
(iv) To award the cost of the original application may also be awarded in favour of the applicant."
2. By way of this O.A., the applicant has also prayed for an interim relief to direct the respondent no. 2 to allow the applicant to appear in the examination of Loco Inspector as the examination is scheduled to be held in batches starting from 17.02.2018 and to be held till 17.03.2018.
3. The brief facts of the case as stated in the O.A. are that the applicant is presently posted as Loco Pilot Good after being promoted from the post of Assistant Loco Pilot. The respondent no. 2 had issued an advertisement on 11.01.2016 (Annexure No. A-2) inviting applications from the candidates who are working as Loco Pilot to appear in the examination for promotion to the post of Loco Inspector. The applicant applied for the said post, however, he is not being permitted to appear in the examination on the ground that he has not completed 75000 kilometre foot stop.
3
4. The applicant submitted a representation dated 20.11.2017 (Annexure No. A-3 to the O.A.) requesting the respondent no. 2 to allow him to appear in the examination. The respondents vide order dated 25.01.2018, received by the applicant on 02.02.2018, rejected the representation of the applicant stating therein that the applicant had not completed 75000 kilometre footstep.
5. The same advertisement has been issued by several divisions of the Railways for examination and promotion to the post of Loco Inspector. The condition no. 3 of the advertisement published by the Lucknow division laid down that the candidate who has not completed 75000 kilometre foot plate will also be permitted to appear in the examination but they will be appointed/promoted only after completing the foot plates of 75000 kilometre.
6. Learned counsel for the applicant has submitted that the Assistant Loco Pilot or the Loco Pilot who are working in office under administrative capacity cannot be deprived of their right for promotion only on the ground of non-completion of foot step of 75000 kilometre as the work was assigned by the Railway itself and the Railway is under obligation to give 4 relaxation of foot plates to the employee who performing their duty in the office. It has also been submitted that in a similar case, one of the employees working in Lucknow Division had filed Diary No. 2973 of 2017 before the Lucknow Bench of this Tribunal and this Tribunal issued interim order in favour of the applicant permitting him to appear in the examination. It has been submitted that as the applicant is similarly situated the respondents are duty bound to allow the applicant to appear in the examination.
5. With the consent of both the parties, we heard the matter finally.
6. The Counsel for applicant submitted that applicant is presently posted as Loco Pilot (Goods). The respondents have issued an advertisement inviting application from the candidates who are working as Loco Pilot to appear in the examination for the post of Loco Inspector. Applicant also applied for the said post but he was not permitted to appear in the said examination on the ground that he has not completed 75000 Kms foot steps. The applicant has moved a representation and the same was rejected by the respondents only on the ground that applicant has not completed 75000 Kms foot steps. Counsel for respondents submitted that the 5 condition 3 of the advertisement lays down that who have not completed 75000 Kms foot steps will also be permitted to appear in the examination but they can be promoted only after completion of 75000 Kms foot steps. Counsel for applicant further submitted that since the Loco Pilot were also given administrative duties time to time, as such it was not possible for them to complete 75000 Kms foot steps. Counsel also placed reliance of Railway Board circular dated 26.3.2009 and submitted that in the said Notification, the Loco Pilot who are posted as Power/Crew Controller and have not completed 75000 Kms foot steps were also eligible to appear in the examination of Loco Inspector. Counsel for applicant submitted that applicant has right to appear in the examination of Loco Inspector and only when he completes 75000 Kms foot steps, he will be promoted.
7. Counsel for respondents submitted that as per notification only those persons are eligible to appear in the examination of Loco Inspector who have completed 75000 Kms foot steps and vide letter dated 15.1.2016 issued by DRM (P) Jhansi, the notification issued on 11.1.2016 was modified to the extent that after the condition of eligibility given at Sl. No. 1 to 4 in para 9, condition of Sl.No; 5 treated as cancelled. 6 Counsel further submitted that now thee is no condition of eligibility of candidates who have not completed 75000 Kms foot steps even to appear in the examination. Counsel also relied upon on a decision passed by Principal Bench of this Tribunal in the case of Arjun Lal Meena Vs. Union of India and others (O.A. No.3768/2011 decided on 24th February, 2012) and submitted that case of the applicant is squarely covered with the decision of Principal Bench given in the aforesaid judgment. Counsel for applicant in rebuttal submitted that notification of the Railway Board revised by the DRM(P), Jhansi.
8. We are unable to accept the contentions raised by the learned counsel for the applicant.
9. If the contention of the applicant is taken to be correct, then condition of minimum eligibility of completion of 75000 Km. foot steps will become redundant. This controversy was duly considered by the Principal Bench in the case of Arjun Lal Meena Vs. Union of India (supra) and the fact of this case is squarely similar to the present case. In that case also, vide notification dated 20.12.2010, it was cleared that candidates must have 75000 Km. of actual driving experience. In the same letter it was notified that Crew/Power Controller would 7 be eligible to appear in the selection with the condition that before posting they would complete 75000 Kms. footplate driving experience. The counsel for applicant submitted that in the case of Crew/Power Controller, the experience of 75000 Km. was relaxed then this view should also be taken in the case of Loco Pilots. The Court while dismissing the O.A. observed as under:-
"9. We have heard both the counsel and perused the pleadings also.
10. Admittedly, while issuing Notification dated 2012.2010 (page 148) for the post of Loco Inspectors, eligibility was made clear by mentioning that 75,000 kms of actual driving experience is necessary and the selections would be done on the basis of Railway Boards letter dated 26.3.2009. Perusal of Railway Boards letter dated 26.3.2009 is most crucial in this case because counsel for the applicants placed reliance on para (iv) thereof. He strenuously argued that since dispensation has been given to running staff posted as Power/Crew Controllers to appear in the examination even if they had not completed 75,000 kms of actual driving experience, the same benefit should be given to the applicants as well. In order to understand why this dispensation was given to the Power/Crew Controllers only, we had directed the respondents to file additional affidavit. They have explained that earlier the requirement as per rules for the post of Loco Inspector was three years footplate experience but in view of various judgments given by the Tribunal and the Honble High Court of Delhi it was felt necessary to modify the existing criteria as per the need based criteria. Accordingly, letter dated 26.3.2009 was issued which for ready reference reads as under:-
Sub: Filling up posts of Loco Inspectors and Power Controllers /Crew Controllers Modification thereof.8
The question of modifying the eligibility criteria for filling up the posts of Loco Inspectors and Power Controllers /Crew Controllers has been engaging attention of Railway Board for quite some time. After careful consideration, the Board have decided to modify the eligibility criteria contained in Boards letters No. E[P&A]II-83/RS-10 [iv] dated 25.11.1992 and E[P&A]II-83/RS-10 dated 9.01.98, as amended from time to time, as under:
[i] The words three years footplate experience mentioned in eighth line of para 1 of Boards letter No. E[P&A]II- 83/RS-10 dated 7.10.2002 may be replaced by 75000 Kms of actual driving experience as drivers. This shall also be applicable in the case of drivers medically decategorised upto the level A-3who are considered eligible for selection for the post of Loco Inspectors in terms of Boards letter No. E[P&A]II-2006/RS-21 dated 3.1.2007.
[ii] Para 2[b] of Boards letter dated 9.1.98 ibid may be substituted as under:
2[b] To perform the duties hitherto being performed by Power /Crew Controllers in the Control Office or in the place where the Crew Controllers were headquartered, eligible and suitable Mail/Express Drivers, Sr. Passenger/Passenger Drivers and Sr. Goods/ Goods Drivers will be drafted. Only drivers having a minimum of 75000 Kms. of actual driving experience shall be eligible to be drafted as Power / Crew Controllers. [iii] Existing running staff, including drivers medically decategorised up to the level A-3, who are posted as Power/Crew Controllers, shall be eligible to be considered for the post of Loco Inspector, if they are already having the requisite 75,000 Kms of actual driving experience.
[iv] Existing running staff, posted as Power/Crew Controllers, who are not medically decategorised and who do not have the requisite 75,000 Kms of actual driving experience, will also be eligible to be considered for the post of Loco Inspector, with the proviso that the shortfall will have to be made good by them by being deployed on footplate duties, prior to their being actually posted to work as Loco Inspector.9
2. The above modification will not be applicable in cases where selection process has already been initiated in terms of the instructions contained in Boards letter dated 25.11.1992, 9.1.98 and 7.10.2002 ibid.
3. This has the approval of the President and issues with the concurrence of the Finance of the Finance Directorate of the Ministry of Railways. It is relevant to note that all the judgments which have been referred to by the counsel for the applicants except Ashok Kumar were given on an earlier point of time whereas the policy decision was taken by the respondents at a later point of time. As per Railway Boards letter dated 26.3.2009 the eligibility was laid down. Para (i) deals with the modifications which were carried out in the eligibility for selection to the post of Loco Inspector, therefore, that would be relevant for the present case because applicants herein have prayed that they be considered for the post of Loco Inspectors. Perusal of same shows, instead of 3 years footplate experience, it was mandated that the eligibility would be 75,000 kms of actual driving experience as drivers meaning thereby that the Railway Board took a conscious decision that if a driver is to be promoted as Loco Inspector he must have 75,000 kms of actual driving experience as driver. In other words, this eligibility was prerequisite for promotion to the post of Loco Inspector. Admittedly, applicants did not have this experience, therefore, they were not eligible in terms of this letter.
11. Para (iv), which has been relied upon by the counsel for the applicants was, in fact, a saving clause for those Power/Crew Controllers, who were already drafted as such prior to 26.3.2009 and did not have requisite 75,000 kms of actual driving experience. They were given this dispensation to be considered for the post of Loco Inspector on the basis of judgments which were already given by the courts by making it clear that even though they may be eligible to be considered for the post of Loco Inspector but they would make good the shortfall by being deployed on footplate duties to the extent of 75,000 kms of actual driving prior to their being posted to work as Loco Inspector. In fact, in para (ii) it was made clear that even for being drafted even as Power/Crew 10 Controllers, only such drivers would be considered who have completed minimum of 75,000 kms of actual driving experience meaning thereby that after 26.3.2009, no driver would be drafted even as Power/Crew Controllers, unless he had completed 75,000 kms of actual driving experience.
12. If all the above paragraphs are read together, the intention of the Railway Board is absolutely clear that from 26.3.2009 it would be absolutely necessary for the drivers to have 75,000 kms of actual driving experience for being eligible for the post of Loco Inspectors. The applicants before us were appointed as drivers. The post of Loco Inspector is a promotional post, therefore, naturally they have to conform to the minimum requirement eligibility as prescribed by the Railway Board. Para (iv) of above letter dated 26.3.2009 does not give this dispensation to the normal Loco Pilot (Goods), Loco Pilot (Passenger) or Loco Pilot (Mail), therefore, it is not open to the applicants to claim that they should also be allowed to appear for selections to the post of Loco Inspectors without having the 75,000 kms driving experience. Admittedly, applicants do not have the actual driving experience of 75,000 kms as drivers. If this dispensation was to be given to all the drivers, it would mean the policy decision taken by the Railways would be thrown out of the windows. After all, it is for the administration to decide the eligibility criteria for a particular post. No direction can be given by the court which is contrary to the policy decision taken by the Railways in this context. It is relevant to note that the eligibility as laid down in letter 26.3.2009 was clearly mentioned in the Notification dated 20.12.2010 itself. We are thus satisfied that the relief, as claimed by the applicants, cannot be given in the present case."
10. In view of the observations made by the Principal Bench of this Tribunal, we also observed that it is mandatory for the applicant to have minimum eligibility criteria of 75000 Km. foot steps even for appearing in the examination. Since the 11 applicant has not completed 75000 Km. foot steps as such he is not eligible to appear in the examination. Accordingly, O.A. lacks merit and deserves to be dismissed.
11. O.A. is dismissed. No order as to costs.
(GOKUL CHANDRA PATI) (JUSTICE DINESH GUPTA)
MEMBER-A MEMBER-J
HLS/-