Central Administrative Tribunal - Delhi
Mr. Sarwar Ali vs Union Of India on 5 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 723/2008
New Delhi this 5th day of December, 2008
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. N.D. Dayal, Member (A)
Mr. Sarwar Ali,
Chief Controller Train,
Railways, Agra, UP. Applicant.
(By Advocate Shri Shaad Anwar)
Versus
1. Union of India
Through Secretary
Ministry of Railways,
Rail Bhawan, New Delhi.
2. The Chief Operating Manager,
Head Quarter Office,
Allahabad, UP.
3. The General Manager,
(North Central)
Railway, Head
Quarter Office,
Allahabad, UP. Respondents.
(By Advocate Shri P.K. Yadav)
O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
Northern Railway had taken steps for selection to the post of AOM, which is a Group `B selection post in the pay scale of Rs.7500-12000 against the 70% promotee quota. A written test had been held on 02.09.2006 followed up by a supplementary written test in December and viva voce had been completed on 26.02.2007. A panel list has been prepared thereafter. The list indicated that it was subject to outcome of certain original applications, which were pending. One of them was at the instance of the applicant herein as OA 1762/2006. The applicant had been omitted from consideration, although he had been working in a higher pay scale in the same Department on the plea that selection was confined to staff working at the relevant time, in the grade of Rs.6500-10500 (Deputy Train Controllers). The applicant had come to be appointed on promotion to the post of Chief Train Controller in the pay scale of Rs.7450-11500 while working as DTC, and he had been in the previous scale from October, 1990 to June, 1996 before his promotion. When a list was prepared as a preliminary step for promotion, the applicant had found that he had not been included and had chosen to file OA 497/2007. However, it was rejected as premature with a direction to consider the representation of the applicant. According to learned counsel for the applicant, there was no proper reply given and when selection was in progress, he had again filed an OA 1762/2006. It was during the pendency of the O.A. that the provisional panel Annexure A-2 referred to earlier had come to be issued. On 29.05.2007, taking note of the development as above, this OA had been disposed of permitting the applicant to withdraw the application with liberty to raise all relevant matters in the changed circumstance.
2. Applicant submits that the real reason for excluding his name had never been disclosed and there was possibility that in spite of his seniority and incumbency in a higher post, the juniors who stand selected as of now are likely to come to the higher post as his superiors. The denial of an opportunity for partaking the selection is, therefore, against the fundamental principles of fairness. But since, however, he had been informed that the step as above was required to be resorted to in view of the provisions contained in Paragraph 203.5 of the Indian Railway Establishment (Manual), Vol. I, the applicant, in this OA, has challenged the constitutionality of the provision in case it authorizes such a selection, or if it provides for overlooking his claims, as has been suggested and as the case may be.
3. We were of the opinion that prima facie he has made out a case, and the grievances require to be looked into. It may also be possible to be held that since the Administration had proceeded with the selection, after fully knowing about the claims as urged in the earlier Original application, the selection should be considered as subject to the final outcome of the litigation.
4. We had opportunity to hear Mr. Shaad Anwar on behalf of the applicant and Mr. P.K. Yadav on behalf of the respondents. With reference to the averments made in the counter statement, Mr. Yadav submits that so long as the rule provided for an integrated seniority list in terms of instructions of Railway Establishment Manual, it could not have been possible for a departure. It was obligatory for the Department to confine the selection to persons within the eligible zone, who are on the pay scale of Rs.6500-10500, and who were appointed to the post on a non-fortuitous basis. As the applicant admittedly had gone out, opting a promotion, it could not have been possible to consider his claims. 38 candidates had been called for selection taking note of their seniority position for the 11 vacancies. Applicants name had not fallen in the field of eligibility and, therefore, he was not considered. Annexure R-1 appended to the counter statement lays down the parameters for selection to the Group `B post. It has to be on the basis of a sliding scale as prescribed under Para 203.5, IREM. Field of consideration for Group `B selection were decided to be reckoned on a sliding scale in consonance with the earlier letter of the Railway Board dated 09.04.1981. Annexure R-2 had been produced, to show the impact (Paragraph 203.5). It reads as following:
Since employees from the different streams will be eligible to appear for the selection, their integrated seniority for purposes of the selection should be determined on the basis of total length of non-fortuitous service rendered in grade (Rs.2000-3200 (R.S.) and above. In other words, the date of appointment to the grade (Rs.2000-3200 (R.S.) on a non-fortuitous basis will be the criterion.
5. If the impact of a provision unwittingly operate in a manner negativing just claims, the Tribunal is expected to suggest supplementary details, to make it fully functional, rather than setting aside the rule wholesale. On regular basis, applicant had come to be promoted to the pay scale of Rs.6500-10500 on 17.10.1990 and was there on non fortuitous basis upto 12.06.1996. Later on, he has been promoted as Chief Train Controller in the pay scale of Rs.7450-11500. What appears to be highlighted is that since he had come away from the lower pay scale, his promotability is lost. Also the principles of integrated list required that his position while he was in the said cadre alone could have been possible to be noted, but he did not come within the eligible zone. This provides interesting reading, because the argument is that in spite of his promotion, had he come in the eligible zone vis-`-vis the erstwhile cadre, he would have been considered. But he was 55th item and the last in the list held position of 38.
6. This leads to a curious position. A person whose merit had been recognized, and who is promoted to the higher cadre is sought to be denied opportunity to compete in a selection where persons who were not successful in the previous selection are permitted to partake. Definitely the successful would be brought above the head of the applicant as Grade B officer. Paragraph 203.5 of IREM does not appear to be arbitrarily worded. We only find that it has omitted to take notice of certain an anomalous situation like the above instance. What should be proper, we feel is that simultaneous with preparation of an integrated list, there should also be an examination as to whether any person, in the lower grade, had secured promotion by a process of selection and as in the present case. Such persons are to be given priority to be placed in the integrated list prepared. This will be more in consonance with the principles of service jurisprudence. The lower seniority in the erstwhile cadre when is compensated by a promotion, previous seniority position becomes irrelevant and the person is to be treated as having a prior claim to be included in the list, when selection steps to Group `B posts are being processed. In other words, a person, who has been adjudged as meritorious, should as well get an opportunity, in fairness to complete for the Group B post. Of course, Mr. Yadav had invited our attention to a judgment of the Supreme Court in Vinod Krishna Kaul Vs. UOI & Ors. ( JT 1991 (5) SC (2), but we find the above discussion rested on totally different facts.
7. Since the applicant had been agitating over the issue and since, as a matter of fact, Paragraph 203.5, does not, in effect, prohibit such a consideration, in absolute terms, we are of the view that the applicant is entitled to succeed. However, when the selection process has been complete and selectees have been appointed to the vacancies, it may not be possible for the respondents to grant reliefs to the applicant straightway. But since the applicant has made out a case that his rights for promotion have been overlooked, he should not be without any remedy. The selection held, especially is to be considered as depending on the outcome of the proceedings.
8. Therefore, the selection leading to Annexure A-2 need not be disturbed but there should be separate assessment of the claims of the applicant for consideration for promotion to Group `B post to be held by Respondents 2 and 3. The selection process has to be completed within a period of three months from today and if the applicant is found fit to be included in the list, he should be given an appropriate place in the list reckoning him as senior to persons who were in the pay scale of Rs.6500-10,500. The O.A. is allowed. However, there will be no order as to costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD