Central Administrative Tribunal - Mumbai
Arjan Shewaram Lokwani W Rly vs M/O Railways on 13 August, 2018
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\ 1 UA N0-.758/2017 CENTRAL ADMINISTRATIVE TRIBUNAL MUIEAI BENCH , MUMBAI .
MA No.38/2018In ORIGINAL APPLICATION No.758/2017 Dated this the 33% day of August, 2018 CORAM2 HON"BLE SHRI R. VIJAZKUMAR,.MEMBER.fiA) " HON"BLE SHRI R.NL SINGH,.MEMBER (J) Mr.Arjan Shewaram Lokwani, Age 74 years, Retd, Sr.Divl. Engineer, DRM's Office, Western Railway, Mumbai Central, Residing at A~205, Dheeraj Regency CHS Ltd., Siddharth, Nagar, Borivali (E), Mumbai~400066. "
Applicant.
(Advocate Shri Thomas Chacko and Shri S.N1
Pillai)
Versus
l. Union of India,
Through the Chairman, Railway Board, Rail Bhavan, New Delhi ll000l.
2. General Manager, Western Railway, Headquarters office, Churchgate, Mumbai 400020.
3. Divisional Rly. Manager, Divisional Office, Western Railway, Mumbai Central, Mumbai--400020.
Respondents. 'I
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(Advocate Shri S. Ravi) Reserved on : 20.07.2018. Pronounced on : 15-9%.";/0&3' __ H: ..- .-...--.:_-_-.:_-.:.-_-_-.:_-.:_-.: - / ;_ , _ _ __ -:;__:Q_:__-__;:.:.__.__.:.::__.__;:-:5:5_._._:__.__.:._.__.:._E:__: :.:.:.:.__.:.__.:._-:-.::-_.::__.::__.__.:.__:__.:E_._.{__._._;_._:__._:_._:_._.|. ________ __ 1 H '
-i II I I E 2 UA N0.75S/2017 CNNDERL Egg : Shgi Rrflswginghhflynmber {J1 This OA has been filed by the applicant under Section 19 of the Administrative E Tribunals ZMfig- 1985 seeking" for time following reliefs ~ "(a). This Honible Tribunal may be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside the Rly, Board's letter dated 2l/l2/20l6 i.e. Ann.A--l and the recommendations of the DFC dated 03/07/1997, l6/12/l997, 24/l2/l998, l0/02/2000, and 08/03/2001 i.e. Anns. A.2, A.3, A.4, A.5 and A.6 to the extend of non--recommendation of the applicant for_promotion.
(b). This Hon'ble Tribunal may be _pleased to direct the respondents to grant notional promotion to the applicant in JZA. Grade along with his batch mates of l988 (i.e. l986 Exam batch) and further be directed to place the Applicant in Non--Ehnctional Selection Grade (NFSG) with effect from the year 2000, the date his batchmates had been placed in Selection Grade and re--fix his notional _pay" and _pension with all consequential benefits.
(c). This Hon'ble Tribunal may further be pleased to declare that the recommendations given by the DPC dated 03/07/1997, l6/l2/1997, 24/l2/l998, l0/02/2000 and 08/03/2001 declaring the E Applicant unfit for empanelment in the E panel of JA Grade officer along with his batch mates, is illegal and arbitrary. _
(d). Costs of' the application be provided for.
(e). Any' other" and .further order |:
as this Hon "ble Tribunal deems fit in I :
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the nature and circumstances of the § I |:
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case be passed." |:
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3 on N0."/58/2017
2. However, when the aforesaid OA W58 AD taken in: fin: hearing CH1 14.01.2018, following i! order was passed:~ l an ll " Today when the matter is called l ii out fr admission, heard Shri S.N. Pillai, learned Advocate for the 5l Applicant. E have carefully perused the l case record. l l
2. The record. shows that the (Ni is l prima facie barred by limitation. i However, learned .Advocate for the applicant seeks four weeks time to file MA for condonation of delay, which if filed will be considered first.
3. Post. this case <n1 07.02.2018 for admission."
3. Thereafter, the OA "was taken up for E hearing on 07.08.2018, following order was passedze " Today "when, the= matter is called out for admission, heard Shri S.N. Pillai and Shri Chacko Thomas, learned Advocates for the .Applicant. We have carefully perused the case record. E As directed cni the last date of hearing i.e. cni 04.01.2018, the 5=;| ll L' applicant has filed MA 38/2018 or 5l condonation of delay in approaching 1} this Tribunal.
In view of this, issue notice to Respondent Nos.1 to 3 cni MA for ill condonation of delay only, deferring lil ll 11' %' 1i| issuance of notice on OA and subject to ii' l! order that run; be passed cni the said l»| iv :1;
MA.
At this stage, Shri S. Ravi, learned Advocate appeared and accepts i§| iil notice cni behalf cxf all the i *1' 33} i§| ll Respondents. Six weeks time is granted to file reply to MA for condonation of delay.
Adjourned ix: 03.04.2018 tn: filing reply to bfii for condonation <nf delay, hearing and order on it." V *1' 11!
4. Pursuant ix: the aforesaid, the ~i;=}41.'i'£".1 lll iii respondent have filed their reply wherein they lgl ii Ill .%_ 'N '1| Qe | 31' 1:
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have "vehemently? opposed. the eaforesaid but El 1! No.38/2018, filed by the applicant for seeking condonation of delay in filing of the OA. ~e: = E' T'
5. However, in the facts and circumstances 1'' I E of the case a few facts of the OA as contended by the applicant are found necessary to note 4. 1! 1' herein, which are as underzu E| 1' l #1 The applicant contends that he was appointed in the Railways on 26.10.1962 and <;a. ~ #1 after further promotions in the cadre of Group E EI <3, he was promoted as Assistant Engineer (AEN) ~ 1'| in Group~'B' cadre on 17.02.1982. The 1! applicant's next promotion was Senior Scale post i.e. Divisional Engineer to which the applicant was promoted on 27.07.1990 (on adhoc basis). The applicant was inducted into Indian 3! 1;} Railway Engineering Service (IRSE) cadre w.e.f.
21.06.1993 turns Railway" Board's letter bur E 1=a..%'£ (GP)92/1/49 dated 20.02.1996 (Annexure A~7) and Eif E| :5 E the date of increment. to time scale of the E 1. l| Eill l applicant was fixed with effect from 21.06.1988 (1986 Exam Batch).
6. It is submitted. that two Charge an | Memorandum dated 05.08.1994 were issued to the El E| applicant. Tfina same inns closed cni 19.05.2000. ii Thereafter, another Charge Memo dated 1" .:-
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1| El 02.04.1996 was issued and the inquiry 1!
1| proceedings in Tina said Charge Emmorandmn was 'A=2%.¥'~'%-
El protracted and finalized only in the year 2001 1 with a penalty of reduction of pay to the 12 1! E lowest stage in the same time scale of pay for 1 two _years "with. cumulative effect. was imposed E vide order dated 09.10.2000. 1.
7. However, being aggrieved with the punishment which was harsh and disproportionate I to time charges levelled against him, he preferred an appeal to the Hon'ble President of E India and the same was reduced from major 1, E 11:
1.penalty to minor penalty i.e. reduction of pay by three stages for one year without cumulative E 1| effect vide order dated 08.11.2001. He was 1| 1 11. promoted to Junior Administrative Grade as E 1:1 12
ii1|15 Dy.Ch. Eng. CHM, w.e.f. 23.01.2002 cni ad--hoc E1 basis. The promotion to J.A. Grade Rs.12,000---
11' 16,500 EMH3 regularized w.e.f. 27.02.2002 "vide 15] E1., Railway" Eoardis letter lkm. E(O)III~2002/PM/36 <.1 1
dated 04.04.2002 which was communicated to him on 19.04.2002 vide (Annexure A---8). There was delay in issuing his promotion. order to JAG Ei 11 Ei from 05.06.1996 along with the his junior Shri A ii K.R. Arya hence, the applicant submitted a E1 1;
E representation cn1 04.12.2001 Ex: the Secretary, E E 1:
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If E111 El 1iEl E! 1 I E 6 UA N0.758/2017 Railway Board enclosing all the relevant letters (Annexure A*9) but no heed was paid by E1 El E1' the respondents 11> this representation. Hence, EE1 E E. he made another representation dated 20.09.2016 1' E £1 E1 E (Annexure Zkdifi wherein time applicant gmdnted V E E out that delay" in his jpromotion was due to E + pendency of D&AR inquiry for a period of eight years and. the- delay" was attributable: to the administration and not on his part. He further submitted that his juniors were already 1' E! El El promoted from JA Grade to Selection Grade E before ihis Lretirement. Ufima applicant Ihas requested for re--fixation of his pension after promoting him from JA Grade to Selection grade.3.
8. It is; stated that i11 response Ex: the E E representation, Railway Board issued a letter 1 1' 1' El E1 dated 21.12.2016 wherein it has been stated 1Ell that as the officer was considered for placement to JA Grade along with his batch E E mates and subsequent batches of the year 1987, E EE 1988 and 1£%%3 in the JAG/IRSE panels approved E E E' 13 on 18.8.1997, 25.01.1998, 14.01.1999 and 28.02.2000 and the findings of the DPC of the applicant was kept in sealed cover as two major penalty charge sheets were pending against him.
E E E It 1j3 further stated that applicant was E 1:
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I1 1 l1| {I 11 E 7 DA N0.758/2017 11 considered in the JAG/IRSE panel of 1990 exam batch offices and as the officer was undergoing 1}I EI major penalty of reduction of pay to the lowest EI ~ 1 EI stage in the same time scale of two yeas, DPC E 1 II 1. E 11 I decided that the officer may be considered in E 1. E'.
the next DPC. The aforesaid penalty was E E1.
subsequently modified on 08 . 11 . 2001 to E1 I I1 reduction by three stages for one year without I E cumulative effect. Thereafter, the applicant E 1 was considered in the next JAG/IRSE panel of 1991 exam batch as such he lost seniority by E 1 five batches. The applicant was eligible for E E I1' placement in selection grade w.e.f. 01.01.2005 along with 1991 batch. But, as he was superannuated in November, 2002 before being eligible for placement in selection grade.
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9. The applicant has also submitted that he had also filed an application under RTI in the year 2017 and in response to the same, the Railway Board has provided the minutes of the E1 kg-
DPC held on 03.07.1997, 16.12.1997, 24.12.1998, E E 1 I E 10.02.2000 and 08.03.2001 for promotion to the I I post of JAG wherein the result of the applicant 1 I was kept in sealed cover. The Board has also E
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provided a copy of the DPC which was held on E1 II 08.02.2002 wherein the DPC has recommended I 1. I 1 I I. E I 11E 1'1 """"" 111111111- "11 " "-" - " " " " " " "- "*---- ~- EEiii€rHEt?Zh¥EI?E¥r?E€aE'sT;,' e. *s;z§<>rs§_eauss.
é 1! ii L. '?=' if 8 0A N0.758/2017 promotion of the applicant to JAG along with ~XE 1991 exam batch. Moreover, the Board has also _ provided a copy of the proceedings dated 26.12.2001 of opening of the sealed cover.
i Further, in the minutes of the DPC held from 1997 to 2001, the applicant had been declared 1;
unfit by all the five DPCs and declared fit ~ only on 08.02.2001 along with the exam batch of é*| | 1991. It is submitted by the applicant that from the information received from Railway i 1:
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1* Vif Board, it was found that the ACRs for the years E E1:
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1994--95 and 1995--96 were adverse. The ACR for +1 the year 1994--95 was recorded by two offices. is=A<.i~ The first officer has given him 'Very Good'/'Fit' for the first nine months and *}' another officer has given him 'Average/Unfit Q for the remaining three months. The officer who written the CR for the period from 01.01.1995 §1| to 31.03.1995 had also spoiled his ACR of the 1;' i§| year 1995--96 and given him Average/Unfit E. iv *1'1 | grading and this was done by the said officer é as lma was biased EHM1 prejudiced. against the ill applicant . However, in the DPC held on é I 03.07.1997, 16.12.1997, 24.12.1998, 10.02.2000 I l i:
and 08.03.2001 for the panel of Senior Scale i§| a;1,|| Officers of IRSE exam batches 1986, 1987, 1988, 'At 'la< t;}L= 1;! .. _._ ._ . __ ___ _________ _ ____ .... -----------3------?E---------%=--------------- --------£5----L-_-_:E?;=-==---:;§;€=_E;_-;;:-__' H 1 1 1:
1:9 or No.758/2017 1 1989 and 1990 for promotion to JA. Grade in 13 1.
w1 1! 11 which the applicant was also considered for 1 13 1:
promotion. The findings of time D93 in respect 1:1
I of the applicant were kept in sealed cover as the Charge Memorandum was pending against the applicant. The applicant stated that he was found fit by the DPC held on 08.02.2002 along 1I with 1991 exam batch.
10. However, the ZKER bar the year 1994-95 was never communicated ix) the applicant.However, the ACR for the period 1995-96 was 1
E communicated to the applicant to which the é applicant had also given a representation, but no decision lnni been taken cm: communicated to 1 the applicant till date. In all the DPC the 1'i.
1 1+1 applicant was awarded 16,15,15 and 16 points as 1 1:
against 17 points required for empanelment and 1111 i the result of the applicant for all the four DPCs were kept in sealed cover. In the DPC held on 08.03.2001 had considered five ACRs for the years 1995~96 to 1999-2000 and. out of "these ACRs, the adverse .ACR :fim: the year 1995*96, filers} against which a representation was pending, was 1:
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E1| taken into consideration by the DPC. The DPC *1 51% 1 has awarded 15 points but did not consider him E fit for promotion and kept the result in sealed i \ ,1_ .......... .-.-1.,,|. ~11. _________________ _. '' ''' '''' ' ' ' '' ' ' ' ' ' ' ' ' --- -- - - - - - - - - - - » >- "*1'>'§='>I-i='>\'€-iii"? L"-.5-4.5:'?-'-'=§'5-I-I-I-141*=$~*'='¢iN-re ?»-"»£'-:3'5§l€~'¢-93iii?>2";=.=51-?-I=':?>'r'f='-I='='-:5E9}:-'3:3'='-$.52'-'§:*J:3'5$ .. .~<€ J3'5-'~'§€<.ii¥?iI<-'='§=@525i'.?i?§<%¥'?'<>f<§Q'¥'/3'5? <??€>$'?'5§ IF*|'|?$5\'7~'E'?§ F;*é§'~"J'l*-'2-Til E1
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1111 1 E '1' 10 OA N0.758/2017 1 E cover. E E I 11. It is further submitted by the E
applicant that he was eligible to be considered 1:
for Non~Functional Selection Grade (NFSG) on 1:
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completirul of ljfi years cu? service iii Group ZE service, j11 terms cxf DOPT (E4 No.22/1/2000--CR 1 1 dated 06.06.2000. The applicant had already I completed 13 year on 31.12.1999. The applicant belongs 1986 exam batch and his legitimate E right of promotion to SG has been wrongly E I denied. Therefore, due to illegal denial of promotion, the applicant is losing every month 1 +11| , 1 1 +-
I a substantial amount as monthly pension and other benefits like Gratuity, Leave salary, 11:
E 11 Commutation etc. It is stated that applicant is 1 also loosing enhanced pension after the VI and E I. 1:
VII Central Pay Commissions _and he is in suffering recurring loss of enhanced. monthly pension due to wrong denial of promotion of the applicant to the post of SG from the due date.
He had received total 19 Awards from the railway authorities.
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12. The decision of the DPC held during the years 1997 to 2000 declaring the applicant E unfit was CH1 the ground that the zuxna of the 1 applicant for the year 1994~95 and 1995*96 were 1 E 11! . -- -»; ./> . » .>-~=-;:--
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-... _.,§_._<4_.:1;,_.,_,,_,,_,,,_,,_,,5,;Q@..,§_._,.fig,.g._,_.,in,,,,,_;I,,._._.?._.,._.;,_._._.;,__¢_<,;,._._.,,-,_>_.,._.,.;._.,._=,,_,_.,;_,_.;,~,§._,,,.,\,..<w,;,._._..,_____________~,3 . ;' __\~< 1,1 1
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11 UA N0.758/2017 adverse. 111 the jyear Z1994-95, two 1different 1 officers had recorded two contrast gradings. I1 1 For the first 9 months from 01.03.1994 to 1 1 31.12.1994 he was awarded 'Very Good'/Fit E! grading and for the next three months from 01.01.1995 to 31.3.1995, another officer had awarded. Phverage/Not. Fit. flfiwa adverse: remarks for the three months were also not communicated to the applicant as such the same should be 1 11:1
ignored by the DPC. It is stated that the '.1
officer who had graded his three month ACR 'Average/Not Efit;:fixr the period 01.01.1995 to 1 1 '.1 1
31.03.1995 had also recorded adverse ACR for the year 1995~96 and these are the only adverse remarks in the 40 years of the service of the 1 applicant. However, the applicant has made 11 1 representation against the ACR for the year
1| 11:
E 1995~9e to the Reporting Officer with the I I E request to expunge the adverse remarks but the E same remained undecided but the un~communicated 1 ACRs had been considered by the DPC during the 1 1:
years 1997 to 2001. The applicant has also 1' placed reliance on the judgment of Hon'ble Apex 1| 1_=;1
Court in the case of Dev Dutt Vs. Union of India reported in 2008 (5) SLR 252 wherein, it 15
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1| E 1I has been held that uncommunicated adverse ACRs 1
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------------ -- 1 1111 ;"~\><é€ 1' 1 I 1
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1| 1 12 0A No.758/2017 1 should not be considered but ignored while 1
1| III I. holding the DPC. I If I:
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13. The applicant has submitted that I:1
1| respondents are fully responsible for 11
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protracting the departmental proceedings in the E Charge Memo dated 02.04.1996 for five years and I the respondents had run; rightly" followed. the model time schedule for finalization of the DAR E I I 1 inquiry. As per the Railway Board's letter No.F 11.:3.
1| E (D&A)94 RG6"l8 dated 09.02.1990 model time 1|'.1
1:
1:
schedule, an inquiry into the Charge Memorandum ' has to be finalized within 365 days from the 1.
date of issue of such charge memorandum.
Further, as gun: Railway'IBoard's instructions, when sealed cover proceedings has been adopted, 1 the competent authority has to review the case 11 11. after a period of six months. But, in the 11.
1:
1:
present case, the result was lean; in sealed 1 cover for more than four years without any 11 review from 1997 to 2001. The Hon'ble President 1| 111
1| 'J 1. of India, imxkalhis order dated 08.11.2001 was 111 ill 11 reduced.1flua major penalty ixniminor penalty by imposing reduction by three stages for one year 1 without cumulative effect enui as ea result, he 11.1.
should have been assigned his original 1|
1| 1. la 11 seniority and promoted accordingly, in terms of 1 1 I 1'1.
1| 1 11. 1 1 1! 1 v 'mi w =1 11'-----~ 1 ;:
1| I 13 UA N0.758/2017 Railway Board's letter KmnE(D&A) 2003 EH3 6/15 11| '1 1 I. dated 07.05.2005. 2%; the penalty UMHS modified 11 *1' I. I. I1 I. on appeal is a minor penalty and as such it 1.
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1| 1' 1.1.
1.I. 1' 1. will not affect the seniority of the applicant, t; flfi' 1 therefore while promoting him prospectively, keeping his panel position intact, his 1
1| I 1 seniority should have been fixed notionally I. I. 1 with reference ix; his immediate junior cnf the t¥ 1 1 same exam batch (1986 batch). But, this has not 1:
1 1been done in the case of the applicant as such E E the applicant was denied promotion to JAG with E effect from 1996 and further -promotion to I 1
1.I. Selection Grade with effect from 2000 and suffered heavy loss in pension and retiral I 1:
dues.
1:1 1 1 1 1 1. 1 1. 1.
14. Moreover, ji;.is specifically mentioned in the impugned order dated 21.12.2016 I (Annexure A-1) that "Since Shri Lokwani a 1986 I
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1| IRSE was promoted to JAG with 1991 exam batch, ~ he lost his seniority by five batches. He was 11 13 , eligible for placement in Selection Grade 1 11. 1 11 w.e.f. 01.01.2005 along 1n111 1991 batch. 1 1:
1'1 However, he had superannuated in November 2002 1;| 11 1:1
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11.:
before being eligible for placement in 1 Selection. Grade". However, ii; is contrary' to the office note dated 26.12.2001 put up by OSD
- - -1 - - - ..... ..... - - » - - - - - - - - - ~- - ~- "" > 11 1 1 1x ' 14 0A N0.758/2017 (C) Secretary, Railway Board (Annexure A~11) wherein it has been stated that hAs per extant instructions, Officer who have been imposed minor penalty" will retain original seniority and can be promoted prospectively after opening the sealed cover containing the findings of the DPC, provided they are cleared for empanelment by' DPC." ifius applicant stated 1jun: the averement made ir1'the impugned order (Annexure Ael) is misleading and illegal as the promotion was effected prospectively, his seniority has not been restored. 1fim1.it been restored, then he would have been promoted to NFSG from 2000.
Therefore, the applicant has retained his seniority of 1986 exam batch due to modification of his penalty from major to minor, he is entitled to be promoted to Selection Grade along with his batchmates or from.1Ft January, 2000 i.e. on completion of 13 years cxf service ir1 Group 'PU. 'Hue applicant also nmde ea statement 111 respect <nf one Shri Shailendra. Prasad, inn; is em; Sl.No.60 cxf the Eligibility List has also been grated as Average/Not fit in the ACR for the ending March, 1998 which is not in line with his earlier and later reports. But the 'Board "*1.
*1 - 1 I
-11 1 15 OA N0.758/2017 '.
considers fmni suitable :fi1r empanelment ix: JAG *1' 1 and the same consideration was not extended to 1 the applicant which is arbitrary and illegal.
15. The applicant has filed MP/38/2018 for condonation.:fim: delay 111 filing (E1 wherein it has been stated that substantive prayer in the OA is for re~fixation of pension of the 11. 13 11 applicant. Reefixation of pension is a 11 1. continuing" cause cm? action. and "therefore ~ 1 1i limitation is not attracted to the present 1 case. It is stated that since the applicant had retired in time year 2002 and.cx1 04.12.2001 he I:
11111 E represented his grievances to Respondent No.1.
Hut there 1was no reply"imxm1 the respondent.1
Thereafter, again ins submitted another application dated 12.09.2016 send through to 1 1 Respondent No.2 to Respondent No.1 for mitigating his grievances but the same was rejected vide order dated 21.12.2016 by Respondent No.1. It is pertinent to mention L here that in September, 2016 the applicant came .%Lil to know that his juniors in the 1986 batch were 1| 1' 1 11 promoted. from. JAG ix) Selection. grade, before 1< .@~£ his retirementi jHence, he submitted. a 1 1 representation dated 12.09.2016 (Annexure A-10) addressed. to CPO, Western Railway requesting .. _... ..... ._. .,._:::_._:. H _ _ <_________ M" _ ________ _____n______ _________,. ._...___ __________ ___ -.-.-.:::-'-:.;.:§;:::i;._}:_i.:?_.;.§?;€.E§.1_.;_€;\.2_§.;i§:E€é?_€<_§_E;€é:::_5§;.;._;;-::_?:_::.;_;;.;:5?.2};E.I;-_:_:,;5.:;-_:_:-:_E.';'.f_7;§1;;E33.;5:.;j:E$_§.a?_;€_;£Ej§_E€.§€ ----- -- 1} ; -2-"-"',?x-- $5 L Y? _____ K-€;\\-.-.-:..
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16 0A No.758/2017 1
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him to fix his pay in the Selection Grade 11.
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1 11
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w.e.f. time date cxf promotion <mf his jjuniors. 1
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The Railway" Board. dealt. with. the imatter and I
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replied vide its letter dated 21.12.2001;
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without raising any objection regarding delay
in making the representation. The Board has 11
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also stated tflwmz the applicant was cmmsidered
I
kg? the DPC along""with ihis kmmxfl1 (i.e. 1986 "e
1
I
1
batch) ji1 the IRS held.cn1 03.07.1997 EMM1 his 1!
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juniors were considered by the DPCs held in the 1
1i
11!
years 1987, 1988, 1990 and 1991 and the
11
1
findings of DPC were kept in sealed cover. 13
Thereafter, the applicant sought information
under RTI vide application dated 01.02.2017 and 07.04.2017. IU1 reply to 1m1sIRTI application he 1&2 receiwmi copies of the BBC vide letters dated 1 1 27.02.2017 and 06.03.2017 from P10, Railway E Board. It is stated that applicant came to know about the reason for the denial of promotion, 111 1,1
1| 111
1| when.1ua received copies cdftflua DPC proceedings 1 under RTI. Hence, the cause of action arose when he received DPC proceedings and immediately he ixuui to this Tribunal by filing 1| the present (N1 on 11.08.2017 ans such there is no delay 111 filing the pmesent (fl1..Apart from 111 1i
1| this, fixation tn? pension am: the appropriate 1 "1 E;~2"H-"re"";-.1 .. .. .. ::_.:_.. 2. 2 __ /_____.,:_._:_._:,',_._._:_._: _. , _ _ _ _ _ _ _ § _ _ _ _ _ _ _ _ _ _ _ _ _ _\ __ X_ __\ §_________ ___ _§ _ \_________ ,_______ ___ ___ _ _ _ _ § _\, _ _ " '§ ":__:___,§{iq,,_,,,_,,,_,:.;. »-1;1gig?-$1.A--1:-:=¢r*1?'E-1------?---------=;;.;;&;;:;.-5.5:
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§ 17 OA No.758/2017 F stage on the appropriate pay scale on his I retirement is a continuing cause of action. i E
16. The respondent nos.1 to 3 have filed their Counter Reply' and. they' have contended that Tina issue involved iJ1 the pmesent (Mk is E not for mere re~fixation of pension of the applicant as wrongly stated by the applicant in the MA. The real cause of action is of two folds and 1xfij1 were occurred around 125 to 18 years before filing of this OA. They have stated that the prayer sought in this OA is to set aside the recommendation of DPCs dated 03.07.1997, 16.12.1997, 24.12.1998, 10.02.2000 and 08.03.2001 declaring the applicant unfit for empanelment in the panel of JA grade officer i.e. along with his original _batch mates of 1986 batch. They have stated that the applicant van; considered :fim: placement ll} JA grade along with his batch mates and subsequent batch mates of 1997, 1988 and 1989 in FAG/IRSE E panel approved. on 18.08.1997, 25.01.1998, 14.01.1999 and 28.02.2000 respectively.
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17. They have further stated that since the E applicant was undergoing 'major penalty of E reduction of pay to the lower stage in the same E 1 time scale for two years, DPC decided that ____::-,. .-.. ....,...... ..........._._._:_._._._._.:..,:._;._;.:_i__-._,:V--1.:_______ H' } 9% .................. .. I--.....,,5._;.-:'.,~__§._ /'g,$5,\4* Q -- R "Z5 " '"
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1 1 18 Us No.758/2017 1i applicant.1nay kwa considered 1J1 the rwmd; DPC. 1 The penalty was later on modified on 08.11.2001 "U3 that cxf reduction (Hf three stages :&m: one IF § year' without cumulative effect and. this fact I 1 5 was in the knowledge: of the applicant. They 1 E 1 have also taken a ground for delay stating that 1 1 from his representation dated 04.12.2001 1 (Annexure Ar9) nmde ix) the Railway Board 5 regarding noneselection for placement in JA 1 grade along with others and junior to him was taken ji1 Us account tins limitation iinr filing 1 s 1 the OA starts after six months from the date of 1:
said. representation. flfima present (flk has Ibeen filed on 11.08.2017 by the applicant after a 1 1 1 1 gap of more than 16 years and one month and 1 12 there is In) satisfactory explanation inns been gimme in OA nor in MA for condonation of delay and why he has not approached this Tribunal in 5 1 time. The applicant cannot Iblame the IRailway administration for non~acthm1 if the applicant himself choose ix) remain silent ikn::more than 16 years. However, the juniors to the applicant were already promoted by earlier DPCs held on 03.07.1997, 16.12.1997, 24.12.1998, 10.02.2000 and 08.03.2001 but again the applicant choose to remain silent.It is stated that on behalf of i W . =.-.-===. . . .. 1.. . "'-.~§'='-:-'~r-<= .5-.-=~. =;'=r_-112->_§=_--31-,.a5=_=>;-,~_r,-4-,-;>-.-_=-;;-1.1};>;>_{>1§1$>_-,-335wry;ant2=_=_§&>¥-:-"age?is>_f='-'=F='-:-'='-3%fir;:;I-.11-':_=:-ra'='<=s.-1~f-§\\\\\\\\\\\\\\\\\\\\\\\W1 Wm"\\\\\?"§'§§'f""' '§'§§$, 'ks? """"3 """"" j ""11 1
Y. 1 --P 5 19 OA 1910.758/2017 the respondents that the applicant has been superannuated (n1 30.11.2002. He inns filed the present (Xi on 11.08.2017 after ea lapse cxf 15 years without any cogent and sufficient reason and blaming administration for delay.
18. The respondents have placed reliance on the following judgments:~
(i). S.S. Rathore vs. State of MP AISLJ 95 (1990 (1).
(ii). Union of India and Others vs. M.K. Sarkar, SCC (1358) 1126.
(iii). Ramesh Chand Shaxma vs. Udham Singh Kamal & Others (SC) 2000 (2).
(iv) . Bhoop Singh vs. Union of India & others AISLJ (SC) 1992 (2). .
(v) . Esha Bhattarohargee vs. Managing Committee of Regunathpur Nafar Academy & Others AISLJ 2014 (1) 21.
(vi ) . Uday Bhan vs Delhi Development Au thori ty & Others 201 6 (2) (CAT) Principal Bench .
(vii) . Ashok Kumar Rellan vs . Delhi Development Au thori ty (2 01 6) (2) (CAT) Principal Benoh .
(viii) . Deelip vs. The State of Maharashtra & Others 2016' (4) SLR 260 BOM.
(ix) . Inder Singh vs. FE State Electricity Board 2016 (4) SLR 354 (HP) .
19. The learned counsel for the applicant placed reliance on the following judgmentsze
(i) . N.K. Balakrishnan vs. M. Krishnamurthy reported in (1998) & SCC 123.
(ii). Union of India & Others vs. Tarsem Singh reported in (2008) 2 SCC '1 "1 13 1 ti * 1 1
-.1--_-'.1-' 20 UA N0.'758/2017 (L&S) 765 .
11(iii). Basawant Devidas Nandgavali vs. Secretary, Water Resources Department 8; Others delivered by I-Ion'ble High Court of Bombay in Writ Petition No.10241 of 2012 dated 08.03.2013.
20. We lnnna gone through the (Mk alongwith Annexure A~1 to A--14.
21. We have also gone through the Reply filed on behalf of the respondents.
22. VH2 have heard the learned counsel for E 1 the applicant and the learned. counsel for the respondents and carefully considered the facts, circumstances, law points and rival contentions i in the case.
23. From the aforesaid it is evident and 5 admitted by the applicant that his promotion to JAG Grade was regularized w.e.f. 27.02.2002 vide iRailway' Board's .letter cnnxni 04.04.2002, 1Ii communicated. to the applicant on 19.04.2002. 1 E i The applicant has made first representation on 04.12.2001 and second representation on 12.09.2016 i.e. after around 15 years. The applicant was considered alongwith his batchmates and vnJj1 others cflf subsequent i i batches of time years 1987, 1988 anmi 1989 in 1:
the JAG/IRSE jpanels approved cni 18.08.1997, 1§ 4 25.01.1998, 14.01.1999 and 28.02.2000. These 1 "" --------- - ---- ---- ~-- 1 1i JET 21 UA N0.758/2017 facts clearly indicate that applicant was will 1' 1 Ii 1 aware even 16 years back about his being not i promoted alongwith his batchmates and juniors.
However, after' being' retired. from service Ihe 1 4 has prayed for reefixation of pension which is H 1 indirectly seeking remopening of iflna:matter of his promotion for which he was considered 20* 21 years back alongwith others but was not found. suitable. 11: is settled lrnv that. what cannot be sought directly, cannot be _sought 's indirectly' as imflld Further, ir1 view cm? the 1 facts and raircumstances, aforesaid. case .laws, 15 relied upon.cn1 behalf of time applicant doesn't help the claim of the applicant.
24. _ In view of the law laid down in catena 1 of cases, and particularly by the Hon'ble Apex 1 1 E i Court in the case of S.S. Rathore v. State of Madhya Pradesh reported in 1990 SCC (L&S) 50 E 's where it has been held that successive representations cannot extend the period of
-T-\.-I limitation and also the fact that the applicant has failed. to igiven anq; good. and sufficient ground which may require indulgence of this Tribunal to condone the delay of more than 15 years, through the applicant has not even E i E 'I 1 Ii 1:
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I :1 I 1 1.1 22 0A No.758/2017 11 -1a._ _4 11 stated as to what is the period of delay which 1' is sought to be condoned.1
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25. In view of the above the MA No.38/2018 |1 1 seeking condonation of delay in filing of the 1 1
-I Z1.-n OA No.758/2017 is devoid of any merit and hence 2 2 deserves to be dismissed.' 1 1:
126. In view of the above, MA for 11:
I I condonation of delay is rejected and 1 1 1 I accordingly. OA is also dismissed. No order as Ii 1 1 1 (Y to costs. . 11 1 '1) 1 1e QT X1.
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