Central Administrative Tribunal - Delhi
Sameer Dikshit vs M/O Railways on 26 August, 2019
Central Administrative Tribunal
Principal Bench
OA No.1158/2019
CP No.297/2019
Reserved on : 18.07.2019
Pronounced on : 26.08.2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Shri Sameer Dikshit, IRSSE
Group „A‟
Aged about 53 years,
S/o Shri K. S. Dikshit
Presently working as
Chief Workshop Manager (Signal Workshop)
Northern Railway, Ghaziabad,
New Delhi 110 001
R/o House No.906, Tower No.24,
Commonwealth Games Village,
Behind Akshardham Temple,
New Delhi 110 092. ... Applicant.
(By Advocates : Dr. K. S. Chauhan, Sh. Murari Lal, Sh. Ajit
Kumar Ekka & Shri R. S. M. Kalky)
Vs.
1. Union of India
Through its Chairman,
Railway Board
Ministry of Railways, Rail Bhawan,
New Delhi 110 001.
2. Railway Board through its Secretary
Ministry of Railways,
Rail Bhawan,
New Delhi 110 001.
3. Railway Board through Director General
Signal and Telecom
Ministry of Railways, Rail Bhawan,
New Delhi 110 001.
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4. Union of India
Through its Secretary
Department of Personnel & Training
Ministry of Personnel, Public Grievances 7 Pensions,
North Block,
New Delhi 110 001.
5. Shri Arun Kumar Jain, IRSSE
Presently working as
Divisional Railway Manager
Hyderabad, South Central Railway,
Hyderabad, Telangana.
6. Smt. Vijay Lakshmi Kaushik, IRSSE
Presently working as
Divisional Railway Manager,
Lucknow, North Eastern Railway,
Lucknow, Uttar Pradesh.
7. Shri Gautam Arora, IRSSE
Presently working as
Divisional Railway Manager
Jodhpur, North Western Railway,
Jodhpur, Rajasthan.
8. Shri Anil Kumar Mishra, IRSSe
Presently working as
Divisional Railway Manager
Dhanbad, East Central Railway,
Dhanbad, Jharkhand.
9. Ms. Shobhana Bandopadhyay, IRSSE
Presently working as
Divisional Railway Manager
Nagpur, Central Railway,
Nagpur, Maharashtra. ... Respondents.
(By Advocates : Shri R. V. Sinha with Shri Amit Sinha, Shri
Kripa Shanker Prasad with Shri Prabodh Kumar Singh and
Acharya Santosh Prasad Chaurasiya)
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:ORDER:
Justice L. Narasimha Reddy, Chairman:
OA No.1158/2019.
The applicant had to file four OAs and two Contempt Cases in the context of his claim for being posted as Divisional Railway Manager (DRM). As of now, he is working as Chief Workshop Manager, Signal Workshop, Ghaziabad. He became eligible to be considered for inclusion in the panel for appointment to the post of DRM in the year 2016-2017. Since two charge memos dated 16.03.2012 and 08.09.2015 were pending against him, he was not empanelled. Through an order dated 11.01.2016, punishment of stoppage of two increments was imposed upon him. In connection with another charge memo, minor penalty of Censure was imposed.
2. The appeal filed by him against the order of punishments was pending. At that stage, he filed OA No.54/2018 before this Tribunal. It was disposed of directing the Appellate Authority to pass orders within a period of two months. Thereafter, he made representation dated 01.10.2017 with a request that his case be considered for inclusion in the panel. Since that was not attended to, the applicant filed OA No.1124/2018. That 4 was disposed of on 16.03.2018 with a direction to the respondents to pass orders on the representation of the applicant.
3. Even while the appeals were pending, the respondents passed speaking order dated 09.08.2018 stating that his case cannot be considered in view of the imposition of penalty. Challenging the order dated 09.08.2018, the applicant filed OA No.432/2019. By the time, the OA was taken up for hearing, the two minor penalties imposed against the applicant, were set aside in the appeals preferred by him. In its order dated 04.02.2019, this Tribunal took the view that once the disciplinary proceedings initiated against the applicant resulted in complete exoneration and setting aside of the minor punishments, the applicant cannot be treated as ineligible. On that basis, the order dated 09.08.2018 was set aside and the respondents were directed to pass fresh orders, as to the feasibility of the applicant being included in the panel for the year 2016-2017 for being posted as DRM, duly taking into account, all the developments that have taken place up to that stage.
4. Stating it to be in compliance with the order in the OA, the respondents passed an order dated 22.03.2019, almost reiterating their earlier stand. With reference to the 5 grading in the APARs of the applicant for the relevant period and his competence, it was observed that non inclusion of the applicant was not on account of any deficiency as to the gradings incorporated or the potential to shoulder higher responsibility, nor on account of any deficiency in performance, but only for want of vigilance clearance/status at the relevant point of time.
5. The applicant filed a contempt case No.158/2019 stating that the speaking order dated 22.03.2019 is not in conformity with the order passed in the OA. The contempt case was closed on 05.04.2019, leaving it open to the applicant to challenge the said order by filing a separate OA. This OA is accordingly filed challenging the order dated 22.03.2019.
6. While admitting the OA, an interim order was passed on10.04.2019 directing that one post of DRM shall be kept vacant. Stating that the respondents have filled all the posts of DRM and thereby violated the interim order, the applicant filed CP No.297/2019.
7. The applicant contends that the denial of posting as DRM to him was totally unjustified and arbitrary. He submits that whatever may have been the justification in not considering his case on account of pendency of two 6 charge memos or the imposition of penalties, he was entitled to be extended the benefit, once the disciplinary proceedings and the punishments awarded against him, ended in exoneration. He made an attempt to draw analogy on the lines of an employee who is denied the benefit of promotion on account of pendency of disciplinary proceedings, and the entitlement to be promoted with retrospective effect, in case the disciplinary proceedings ended in exoneration of the charges. The applicant further states that the denial of vigilance status at the relevant point of time was only on account of pendency of the charge memo and once he was exonerated of the charges, he was entitled to be put in the same place as though nothing adverse against him existed when he became entitled to be considered for being posted as DRM.
8. The respondents filed a detailed counter affidavit, narrating the entire history of the case. According to them, the posting as DRM is not comparable to promotion and the applicant cannot be said to have been subjected to any detriment, on account of non-posting as DRM. They submit that the posting as DRM has its own typical procedure, and if an officer was not considered at the relevant point of time, restoration becomes difficult, particularly, in view of the age restrictions stipulated in this 7 behalf. According to them, the impugned order does not suffer from any infirmity and that it cannot be said that there was any contempt on their part.
9. We heard Dr. K. S. Chauhan, Shri Murari Lal, Shri Ajit Kumar Ekka & Shri R. S. M. Kalky, learned counsel for the applicant and Shri R. V. Sinha with Shri Amit Sinha, Shri Kripa Shanker Prasad with Shri Prabodh Kumar Singh and Acharya Santosh Prasad Chaurasiya, learned counsel for the respondents.
10. The facts that led to the filing of the present OA have been stated in the preceding paragraphs, as briefly as possible. The case of the applicant was not considered for posting as DRM in the year 2016-2017 on account of non issuance of vigilance clearance/status to him. That, in turn, was referable to the pendency of two charge memos against him. The applicant made a representation when he was denied the posting. He narrated the entire history. By that time, the disciplinary authority imposed the penalties, but the appellate authority has set aside the same; and the applicant was exonerated. Since he was anticipating that the respondents may take the plea that he crossed the age limit stipulated for being posted as DRM, he cited the case of Mr. D. C. Sharma. The respondents, however, did not 8 accede to the request and passed an order dated 09.08.2018. It was challenged in OA No.3831/2018.
11. An important development has taken place after the order dated 09.08.2018 was passed. The appellate authority has exonerated the applicant by setting aside the orders of penalty. Taking note of the same, the Tribunal allowed the OA No.3831/2018. The relevant paras are as under:-
"6. Since the impugned order was passed on 09.08.2018, the fact that the disciplinary authority (appellate authority) exonerated the applicant from the charges contained in the charge memo dated 16.03.2012 vide order dated 10.08.2018 could not have been taken into account. Though the exoneration in respect of other charge sheet was on 24.04.2018 even its impact was not reflected that much. We are of the view that the impugned order deserves to be set aside in view of these reasons. Respondent No.2 needs to be required to pass a fresh order, taking into account the various aspects mentioned above. It is needless to mention that in case there does not exist any material adverse to the applicant, the feasibility of convening a review DPC needs to be considered for inclusion in the panel for appointment to the post of DRM. However, much would depend upon record and the satisfaction of the appointing authority.
7. We, therefore, allow the OA and set aside the impugned order dated 09.08.2018. We direct the second respondent to pass fresh orders on the feasibility or otherwise of the applicant being included in the panel for appointment to the post of DRM for year 2016-2017, duly taking into account all the developments that have taken place so far. It shall be open to the applicant to submit the relevant documents through a representation. The orders in this behalf shall be passed by respondents within six weeks from the date of receipt of a copy of this order. We further direct that in case the second respondent is of the view that the applicant was otherwise entitled 9 to be considered for inclusion in the panel for appointment to the post of DRM, the feasibility of convening a review DPC, without any loss of time, shall be considered. There shall be no order as to costs."
12. Stating to be in compliance to the same, the respondents passed the impugned order dated 22.03.2019. The purport of the representation and the order passed in OA No.3831/2018 were taken note of. The actual consideration by the respondents is contained in paras 3.1
(i) & (iii) of the order. It read as under:-
"(i) A the time of earlier litigation in OA No.11/1868/2018, the factual position in respect of the two disciplinary cases against him was that in one case he was exonerated and in the other case a minor penalty of censure was imposed upon him. The subsequent position is that upon consideration of his appeal, the penalty of censure has also been set aside and he has been exonerated in this case also.
Therefore, there is nothing against him so as to deny him posting as DRM. He has also alleged that "both the charge sheets were as a result of conspiracy to deny the posting of DRM to the undersigned (Shri Dikshit) and to deprive me the career progression in the services."
While the factual position that Shri Dikshit has been exonerated in the second case also is not denied, his allegation that both the aforesaid cases were as a part of a conspiracy to deny him posting as DRM and further career progression is far-fetched and not backed up by any proof.
xxx xxx xxxx
(iii) Shri Dikshit has submitted the details of his grading in his APARs for the years 2010-11 to 2017- 18, thereby trying to establish that he has the supporting gradings, integrity and also the potential to shoulder higher responsibilities required for functioning as DRM. It is stated that non-short- listing of Shri Dikshit for posting as DRM was not as a 10 result of his performance. As already brought out above, it was because of his Vigilance status at the relevant point of time that he was not shortlisted/posted as DRM. In this connection, paras 10& 12 of the guidelines issued vide Railway Board‟s letter No.E(O)III-2016/PL/02 dated 16.08.2016 for short-listing and posting of DRMs, are reproduced here as under:-
"Para-10. At the time of inclusion in the Short List as well as at the time of actual posting as DRM Officers should be clear from Vigilance angle. Since the post of DRMs are sensitive posts, officers who are not clear from Vigilance angle will not be considered for short-listing and posting as DRM.
Para-12. Only such officers who fulfill all the above mentioned eligibility conditions as on 1st of July of the year in which the Short List is prepared shall be considered for posting as DRM. Once the Short List has been prepared and approved by the competent authority, no officer shall be considered for short listing/posting as DRM even if he happens to fulfill the eligibility conditions at a later point of time."
13. From a perusal of this, it becomes clear that the only basis for denial of posting as DRM to the applicant was the vigilance status. That, in turn, was dependent upon the pendency of the charge memos or the punishment, as the case may be. There was, in fact, justification by the respondents in passing the order dated 09.08.2018 denying posting to the applicant since he was serving the punishment, at that time. Once the appellate authority has set aside the punishment and exonerated the applicant of the charges, the disciplinary proceedings deserve to be treated as non-existent. If they had any shadow on 11 promotion or posting of the applicant, the same needs to be removed and his position needs to be restored.
14. It is fairly well settled that if an employee has been denied promotion or other benefit on account of initiation of disciplinary or criminal proceedings, he shall be put back in the same position, as if, he did not suffer any detriment, in case the proceedings ended in his favour.
15. From a perusal of paras 3.1 (i) & (iii) of the impugned order, it becomes clear that the applicant was treated as possessing every quality which is needed for being posted as DRM. The only thing which came in his way was the vigilance clearance/status. With the orders passed by the appellate authority, the vigilance status was liable to be restored, and as a consequence, the applicant was entitled to be extended the benefit at par with his other batchmates.
16. An attempt is made by the respondents to state that the applicant has already been put in a pay scale which he is otherwise entitled to, and non posting as DRM does not have any impact on his career. It is also stated that posting him as DRM at this stage is impermissible under the guidelines.
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17. As regards the first, it needs to be mentioned that the inclusion in the panel has its own significance. The posting of an officer as DRM is almost a prelude or a stepping stone for further movement in the career. For example, para 4.2 of the Policy for Making Appointments to the post of General Managers and equivalent in the Railways, occurring as annexure to Resolution dated 16.08.2016 issued by the Government of India, Ministry of Railways, makes it clear that the posts of GM (open line) shall be filled only by officers, who worked as DRM for a tenure of 15 months. Para 4.2 of the same reads as under:-
"4.2........ Posts of GM(OL) shall be open only for officers who have worked as DRM for a minimum tenure of 15 months. The post of GM (NOL) will be available to all officers regardless of whether they have worked as DRM or not."
18. Coming to the plea that the applicant cannot be considered for being posted at this stage, it becomes necessary to examine the guidelines framed by the Railway Board dated 16.08.2016, for this purpose. One of the aspects is that an officer who crosses 52 years of age shall not be entitled to be posted as DRM. It is not in dispute that the applicant was within that age limit when he became eligible to be considered, i.e., when the panel for 2016-2017 was being prepared. Clause 5 of the guidelines reads as under:-
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"5. Officers being considered for short listing as DRMs should be less than 52 years of age as on 1st July of the year for which the short list is being made. A short listed officer can be posted as DRM within the period of currency of the short list, even if at the point of his actual posting as DRM, he has crossed the age of 52 years. Once short listed for a particular year, officers will be posted to vacancies earmarked for their service arising in that year, strictly in the order of their seniority in their respective cadre."
From a perusal of this, it becomes clear that if the officer was eligible to be shortlisted, the mere fact that he crossed the age at a later point of time does not make much of difference.
19. The question as to whether the age limit is so sacrosanct that under no circumstances an officer can be posted as DRM if he crossed the age limit, was examined by the Hon‟ble Delhi High Court in a recent judgment in Union of India & Anr. Vs. D. C. Sharma & Anr. W.P. (C) No.4871/2017. That, in turn arose out of OA No.3365/2015. It was also a case in which the officer was denied posting for want of vigilance clearance. The vigilance clearance was denied on account of the fact that the CVC was examining the profile of the applicant therein, and there was also a recommendation by the CVC against him. By referring to the judgment of Hon‟ble Supreme Court in Union of India vs. Alok Kumar [(2010) 5 SCC 349], wherein, it was held that the advice of the CVC is not binding, the OA was disposed of directing that in the event 14 of vigilance clearance being given to the applicant therein, his case for empanelment for the post of DRM for the year 2014-2015 shall be considered within four weeks by convening a special meeting of the Short-listing Committee. The order in the OA was upheld by the Hon‟ble Delhi High Court through judgment dated 23.08.2017.
20. The present case stands on a better footing if one takes into account paras 3.1 (i) & (iii) of the impugned order. Except that the minor punishment was operating against the applicant, there did not exist any other reason for denying vigilance clearance. With the setting aside of punishments, the way becomes clear for vigilance clearance/status. Once D. C. Sharma was posted as DRM at a later stage, as a result of the adjudication by the Tribunal and the High Court, there is no reason as to why the applicant cannot be extended similar benefit.
21. Reliance is placed upon the judgments of the Hon‟ble Supreme Court in Ekta Shakti Foundation vs. Govt. of NCT of Delhi (2006) 10 SCC 337; P. U. Joshi and Others vs. Accountant General, Ahmedabad and Others (2003) 2 SCC 632; Mallikarjuna Rao and Others vs. State of Andhra Pradesh and Others (1990) 2 SCC 707 and Bharat Petroleum Corpn. Ltd. and Another (2004) 8 SCC 579, which are mostly on the scope of judicial review. 15 The present OA is nothing but in continuation of the earlier litigation, and, in fact, the impugned order is passed in compliance with the directions issued therein. We find it difficult to hold that the judicial review of the impugned order cannot be undertaken at this stage. Further, we do not propose to interfere with any policy decision.
22. We, therefore, allow the OA and set aside the impugned order. It is directed that the vigilance status of the applicant shall be examined within four weeks from today and if it is given, a special meeting of the selection committee for posting the applicant as DRM shall be convened within four weeks thereafter, and other consequential steps shall be taken as was done in D.C. Sharma‟s case. There shall be no order as to costs. CP No.297/2019.
23. This CP was filed against the interim order dated 10.04.2019 passed in the OA. Since the OA is allowed, the interim order merges therein. Hence, the contempt petition is closed.
(Mohd. Jamshed) (Justice L. Narasimha Reddy) Member (A) Chairman /pj/