Central Administrative Tribunal - Ahmedabad
Rakesh Kumar Purohit vs Railway Board on 26 August, 2021
(CAT/AHMEDABAD BENCH OA NO.499/2017) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.499/2017.
Dated this the 26th day of August, 2021.
Reserved on :01.03.2021
Pronounced on :26.08.2021
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, MeMber (J)
Hon'bleDr. A.K. Dubey, Member (A)
Rakesh Kumar Purohit,
S/o (Late) Shri ShankarlalPurohit,
Aged: about 56 years,
Presently working as Assistant Commercial Manager (Coaching),
Western railways, Rajkot
Residing at: Railway Bungalow No. 1,
Kothi Compound, Railway Colony, Rajkot - 360 001.
...Applicant
(By Advocate Mr. Rahul Sharma)
VS
1. The Chairman, Railway Board,
Rail Bhavan, Raisina Road, New Delhi - 110 001.
2. The General Manager,
Western Railways, Churchgate,
Mumbai - 400 020. ...Respondents
(By Advocate Mr. V. K. Singh)
ORDER
Per:Hon'ble Shri JayeshV.Bhairavia, Member (J)
1. By filing the present OA., the applicant seeks to quash and set aside the order dated 23.10.2017 (Annexure A/1), whereby the applicant is sought to be reverted to the original position i.e. Traffic Inspector in scale Rs.7450- 11500/9300-34800 + GP 4600and his name was interpolated at Sr. No.91 (A) i.e. below Shri R N Das (Sr. No.90) & above Shri C P Singh (Sr. No. 91) in the integrated seniority list notified vide office letter dated 30th September, 2009. The applicant has further prayed to restore to the applicant all service (CAT/AHMEDABAD BENCH OA NO.499/2017) 2 benefits that may have been denied to him merely for reasons of the passing of the impugned order dated 23.10.2017.
1.1 By way of an interim order on interim order 02.11.2017, this Tribunal restrained the respondent from reverting the applicant from his present post pursuant to impugned order dated 23.10.2017. The said interim relief order to be continued time to time till date.
2. The facts in nutshell are that the applicant was appointed as a Traffic Apprentice and joined as a trainee at the Zonal Railway Training School, Udaipur on 24.04.1986. After successful completion of his training, he joined as a Traffic Inspector, Ratlam Division, Western Railway, in the pay scale of Rs. 1400 - 2300, which is a Group „C‟ post. On 31.12.1990 he was granted pay scale of Rs.1600-2600 in the same rank. Thereafter, on 01.03.1993 he was given higher pay scale of Rs.2000-3200 in the same rank of Traffic Inspector. Subsequently he was promoted to the rank of Divisional Traffic Inspector w.e.f. 15.05.1995 (on adhoc basis) in the pay scale of Rs.7450-11500 which also is a group „C‟ post. On 20.01.1997 he was confirmed as regular Divisional Traffic Inspector in the same pay scale of Rs.7450-11500. In the year 2006, the respondents vide their letter dated 04.05.2006 included the name of the applicant in the eligibility list for selection of Group „B‟ officers. The applicant appeared in LDCE and failed in the year 2006. Subsequently, the respondents again published the eligibility list on 15.04.2008 (Annexure A/6), for selection to the Group „B‟ post with respect to the Group „C‟ employees who were eligible to be called for regular selection and application in prescribed Performa (Annexure C of the said notification dated 15.04.2008) were invited. On 10.09.2008 (Annexure A/7) the respondents issued final eligibility list wherein the name of applicant appeared at serial No.64 and the date of entry in grade Rs.6500- 10500 was shown as 21.01.1993 and in remarks column it was stated " as per SPC (T) CCG‟s advice. Applicant was allowed to appear in the written test, which he successfully cleared. Accordingly, he was appointed to the promotion post of Group „B‟. He joined his duty on 19.03.2009.
(CAT/AHMEDABAD BENCH OA NO.499/2017) 32.1 While applicant was working as ACM (Coaching) Rajkot, a show cause notice dated 18.07.2016 was issued to the applicant, wherein it was stated that it had come to the notice of the O/o. General Manager (E) HQ Western Railway Mumbai that applicant‟s name was wrongly included in the eligibility list for selection of Group „B‟ Officers AOM/ACM, which based on date of entry being 21.01.1993 in scale of Rs.6500-10500 in the seniority lists notified by Rajkot Division, though the applicant was in fact promoted to the post of Traffic Inspector in scale Rs.6500-10500 w.e.f. 01.03.1993 as is reflected in his service sheet. Therefore, show cause notice came to be issued to the applicant to show cause as to why he should not be reverted to the original position i.e. Traffic Inspector in scale Rs.7450-11500/9300-34800 + GP 4600 and his name was interpolated at Sr. No.91 (A) i.e. below Shri R N Das (Sr. No.90) & above Shri C P Singh (Sr. No. 91) in the integrated seniority list notified vide office letter dated 30th September, 2009.
2.2 The applicant vide his application dated 28.07.2016 requested further time to file detailed reply. Simultaneously, the applicant filed OA 557/2016 before this Tribunal challenging the said show cause notice dated 18.07.2016. The said OA came to be disposed of as withdrawn vide order dated 03.08.2016, since it was considered premature. Thereafter, the applicant had received the copy of complaint/representation of Shri C.P. Singh dated 07.11.2015 on the basis of which the SCN dated 18.07.2016 was issued. On 13.08.2016, he submitted his interim reply to the said SCN, keeping his liberty to file his comprehensive reply. Thereafter, applicant had submitted his final reply on 28.12.2016 (Annexure A/15) requesting the concerned authority not to take any action as proposed in the SCN.
2.3 The applicant filed his detailed/final representation dated 28.12.2016.
The applicant stated in final reply that initially in the year 2006 pursuant to notification dated 08.03.2006 issued by respondent no.2 inviting the willing of eligible employees in the Group „C‟ for consideration for promotion to Group „B‟ post in the Western Railway, he had submitted representation dated 22.03.2006; since his juniors‟ names had been (CAT/AHMEDABAD BENCH OA NO.499/2017) 4 included in the eligibility list published by respondent no.2 and his date of entry to the grade 6500-10500 was 01.03.1993, he requested the competent authority to include his name (Annexure A/4). The respondent no.2 vide its letter dated 04.05.2006 (Annexure A/5), informed the Principal, Zonal Railway Training Institute, Udaipur that the name of applicant had been included for eligibility for selection of Group „B‟ Officer. Accordingly he appeared and written test but could not remain successful. Thereafter, in the year 2008 vide notified dated 15.04.2008, the respondent no.2 issued notification for LDCE selection (Annexure A/6) wherein initially his name was not included and subsequently on considering the case of applicant, the respondent no.2 included name of applicant as an eligible candidate for the selection to the Group „B‟ post of ACM/AOM and the final eligibility list was published on 10.09.2008 (Annexure A/7). He remained successful in the written test which was declared on 04.02.2009 and accordingly he was also considered and declared qualified and his name has been placed in the panel for selection to the Group „B‟ post (Annexure A/8). Thereafter, vide order dated 25.02.2009 he was promoted to Group „B‟ and posted as SS/ADI and later on the promotion order was modified and he was posted as Assistant Commercial Manager at Ratlam on 19.03.2009 (Annexure A/10 Colly). However, the respondents rejected his request/representation vide impugned speaking order dated 16.10.2017 (Annexure A/1), wherein it is observed that the applicant was wrongly empanelled in the eligibility list of AOM/ACM regular (70%) selection held in the 2008-2009 and hence his seniority position was decided to be reverted back and assigned it based on the position of his junior. Rejection of his representation and consequential passing of the order impugned in the present OA has led to the filing of this OA.
3. The order impugned in the present OA is sought to be assailed by the applicant on the ground that it is not the case of the respondent that the applicant was not eligible for any reason of pay scale or any other performance related reason. The final list of eligible candidates for the promotion examination was circulated for the knowledge of all concerned.
(CAT/AHMEDABAD BENCH OA NO.499/2017) 5However, no employee made any representation or raised any objection in that regard. Now after nearly 8 years of the publication of the said final list, the issue of his seniority at the relevant point of time is being raised by the aggrieved employee which became cause of issuance of show cause notice and reversion of applicant. The respondent ought not to have entertained or acted upon such grievance of another employee in the facts and circumstances, more particularly because the said employee had sufficient opportunity to represent his case for seniority at the relevant point of time. Learned counsel Shri Sharma submits that it is settled law that equity aids only the vigilant and not the indolent. The applicant should not be made to suffer because of the lethargy of the aggrieved employee.
3.1 It is submitted that as per para 321 of the IREM Vol. I, any employee may be allowed to represent about the assignment of their seniority position within a period of 1 year after the publication of the seniority list. In view of this, statutory command of rule, the representation/grievance made by one Shri C.P. Singh with respect to revision of seniority is not even maintainable and respondent ought not to have taken it into consideration. Therefore, the respondent ought not to have entertained the complaint at such a belated stage and issued impugned order which is bad in law as the same is contrary to the provision of para 321 of IREM. It is submitted that the respondents failed to consider the explanation and ground stated in his detailed representation dated 28.12.2016. He reiterated that eligibility list for 2008 selection was notified in the public domain and nobody represented against the inclusion of his name in the said eligibility list. Even the name of any senior left out by the office in the eligibility list and if they preferred any representation at the relevant time, it was the duty of the respondents to consider it. But there is no provision in the rules to delete or cancel the promotion granted that too, on the basis of written test and interview. Therefore, the reasons assigned in the impugned decision suffer from infirmities and requires to be quash and set aside.
(CAT/AHMEDABAD BENCH OA NO.499/2017) 63.2 It is submitted that as the applicant was having requisite 3 years of non fortuitous service in the grade 6500-10500 and his date of entry in the said grade was 01.03.1993, he was fully qualified for the selection of Group „B‟ Officer as per para 203.1 of IREM Vol-I, It is submitted that as per the provision of 203.2 of IREM Vol.I (Annexure A/2) in case the name of junior employee figures in the eligibility list is considered for selection by virtue of his satisfying the relevant minimum service conditions, all persons senior to him shall be held to be eligible notwithstanding the position that they might have not fulfilled the requisite minimum service condition.
3.3 Learned counsel by relying upon the judgment passed by Hon‟ble Apex Court in the case of Kusheswar Nath Pandey Vs State of Bihar &Ors. reported in (2013) 12 SCC 580 submits that revocation of promotion after 7 years on the ground that same was irregular since, the employee did not passed departmental exam prior thereto was held unsustainable and the promoted employee who had passed the required examination cannot be reverted.
4. Per contra, the respondents have filed their reply and denied the contention of the applicant. The learned standing counsel for the respondent Mr. V. K. Singh mainly submits as under:-
4.1 As per para 203.1 of IREM Vol. I Group C employees are eligible for promotion to Group „B‟ post only when he/she has completed regular non-fortuitous service of 3 years in the revise grade of 1600 - 2660/ 5500 - 9000 + GP 4200.
4.2 In the final eligibility list for the selection to Group „B‟ post published on 10.09.2008 (Annexure A/7), wherein the name of applicant was placed at Sr. No. 64 and his date of entry in scale Rs. 6500 -
10500/9300-34800 + GP 4600 was shown as 21.01.1993, whereas his actual date of entry in the said scale was 01.03.1993.Though the applicant was aware about this fact even then he deliberately appeared in the written test for which he was not eligible and with mala fide intention never brought this administrative error to the notice of the respondents. If applicant‟s correct date of entry in Scale Rs.6500- (CAT/AHMEDABAD BENCH OA NO.499/2017) 7 10500/9300-34800 + GP 4600 had been received from Rajkot Division then the respondents would not have included the name of applicant in the eligibility list for selection for the post of AOM/ACM in the year 2008.
4.3 After receipt of the representation dated 07.11.2015 of one Shri C.P. Singh forwarded by the Director of National Commission for Schedule Caste (Annexure A/12), the eligibility of the applicant in the selection held in the year 2008 case has been re-examined it and prima facie seems that there was an apparent administrative error in considering the applicant‟s date of entry in Scale Rs. 6500 - 10500/9300-34800 + GP 4600 as 21.01.1993 and consequently, calling him for the selection of AOM/ACM. Hence, a Show Cause Notice dated 18.07.2016 (Annexure A/11) was issued to the applicant as to why he should not be reverted to his original post.
4.4 Appointing Authority has been empowered by rule 228 of the IREM Vol.1 to revert an employee to his substantive post, who has been appointed or promoted on the basis of erroneous consideration. Such type of erroneous appointment/promotion etc are dealt in rule 228 (II)
(a) of IREM Vol.1.
"(a) The order of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment.
Therefore, the action of the respondent no. 2 in reverting the applicant to his substantive post vide its speaking order dated 23.10.2017 (Annexure - A/1) is just and proper in terms of para 228 of IREM Vol. I."
4.5 As far as applicability of para 321 of IREM Vol. 1 is concerned, it is regarding limitation on an employee to peruse his seniority but Appointing Authority has been empowered under Rule 228 of IREM (CAT/AHMEDABAD BENCH OA NO.499/2017) 8 Vol.1 to cancel all appointments/promotions granted erroneously without any limitations as soon as error come into the knowledge of the Authority.
4.6 The judgment of Apex Court [(2013) 12 SCC 580] cited and relied on by the applicant is distinguishable on facts. In that case, there was no fault of the applicant whereas, in present case, though the applicant was aware that his date of entry in the Scale Rs.6500-10500 was wrongly mentioned as 21.01.1993 in the eligibility list published in 2008 instead of 01.03.1993, he deliberately concealed the fact and at relevant point of time or later neither did he make any representation nor brought it to the notice of Administration and availed the benefits of the error for long time by suppressing the fact/error. Therefore, it is the fault of the applicant otherwise applicant would not have been eligible to appear in the exam. It was only revealed when the representation of Mr. C. P. Singh one of the employee of railway was received through the Director of National Commission for SC. Therefore, the applicant is not entitled for prayer as sought in this OA.
5. The applicant has filed rejoinder wherein he has reiterated the submissions in the OA. It is stated that the respondents have stressed upon that he was not eligible for taking the promotion examination in 2008. However, they are silent on the issue that the said so called irregularity would have to be deemed to be regularized in view of the provision in para 203.2 of Chapter-2 of the IREM Part-I. It is stated that the respondents have only referred to para 228 (ii)(a) of the IREM. However, a bare reading of para 228 in its entirety, would reveal that said para-228 is confined only to promotions to higher grade and is, therefore, prima facie, not even applicable to the case of applicant. Therefore, the impugned decision is bad in law and contrary to rules.
5.1 The applicant has also produced additional documents to indicate that during the pendency of this OA, his name also figured in a panel for promotion to the rank of Divisional Commercial Manager "a group „A‟ service" vide notification of the Railway Board dated 13.01.2020 (Annexure A/8 of MA 338/2020 in the present OA).
(CAT/AHMEDABAD BENCH OA NO.499/2017) 95.2 The applicant has relied on the judgment passed by Hon‟ble Apex Court in the case of Kusheshwar Nath Pandey V/s State of Bihar, Order passed by Principal Bench, CAT of this Tribunal in OA 642/2014 decided on 12.03.2015 in the case of Sarwar Ali v/s Union of India &Ors and order passed by Hon‟ble High Court of Delhi in WP(C) 11455/2015 in the case of Union of India v/s Sarwar Ali decided on 30.01.2019, the Hon‟ble Delhi High Court confirmed the order passed by Principal Bench, in support of his argument.
6. Heard learned counsel Shri Rahul Sharma for the applicant and Shri V. K. Singh, for the respondents. Perused the materials placed on record.
7. Promotion to Group „B‟ posts in the Railway Establishment is governed under Chapter II Section A of Indian Railway Establishment Manual (in short IREM) Vol I. Relevant part whereof reads as under, "Para 201.1 All vacancies in Group „B‟ are filled by promotion on the basis of selection of eligible Group „C‟ employees and also on the basis of Limited Departmental Competitive Examination (in short LDCE wherever the scheme is in force. Where the scheme of LDCE is in force, selection is held to fill 70% of the vacancies and LDCE is held to fill the remaining 30% of the vacancies. (Railway Board letter No.E/(GP)/2005/2/69 dated 05.901.2006)."
Para-203.1(conditions of eligibility for promotion to Group 'B' post) "For the selection, all Group C employees working on a regular basis in grade the minimum of which is Rs.5000/-in the revised scale and in the higher Group C grades and who have rendered not less than three years of non-fortuitous service in the grade are eligible. There will be no distinction between permanent and temporary employees.
203.2 In case a junior employee is considered for selection by virtue of his satisfying the relevant minimum service conditions, all persons senior to him shall be held to be eligible, notwithstanding the position that they do not fulfill the requisite minimum service condition.
203.4 Zone of consideration......
203.5 Since employees from different stream will be eligible to appear for the selection, their integrated seniority for purpose of the (CAT/AHMEDABAD BENCH OA NO.499/2017) 10 selection should be determined on the basis of total length of non- fortuitous service rendered in Grade Rs.6500-10500 (R.S) and above. In other words the date of appointment to the grade Rs.6500-10500 (R.S) on a non-fortuitous basis will be criterion."
204.1 relates to selection procedure which reads as under:
"The selection is based on written test to adjudge the professional ability, viva voce and assessment of record of service by the selection committee. The marks allotted and qualifying marks under the different head are as follows:
Written test Max. Mark Qualifying
Marks
1 paper on 150 90
professional
subject and
establishment
and financial
rules.
Viva Voce Max. Marks Qualifying marks
i) Record of 25
service 30(including
ii) Viva Voce minimum of 15
25
marks in the record
(Personality,
of service)
address,
leadership and
academic and
technical
qualification)
8. It is an admitted fact that in the year 2006, the applicant who was serving as Sr. Traffic Inspector in his Institution, had been included in the list of eligible candidates for selection to Group „B‟ Officer AOM/ACM. The applicant appeared in the exam but was not successful in the said examination. Thus in the year 2006 itself, the applicant was treated as eligible to appear in the LDC examination. Again in the year 2008, in the final eligibility list of eligible candidates for selection to Group „B‟ post published by respondent no.2 on 10.09.2008, the applicant‟s name figured at Sr. no. 64. In the column of date of entry in pay scale of Rs.6500-10500, the (CAT/AHMEDABAD BENCH OA NO.499/2017) 11 date mentioned was „21.01.1993‟ and in the remark column it is stated "as per SPC (T)/CCG's advice. The respondent no.2 published the panel for promotion to the Group „B‟ post vide order dated 04.02.2009 wherein the applicant has been declared qualified and his name has been included in the said panel. Accordingly, the applicant was promoted and appointed as SS/ADI Group „B‟ post vide order dated 25.02.2009. Subsequently, the order was modified and he was appointed as Assistant Commercial Manager, Ratlam vide order dated 17.03.2009 and he resumed his duties on promotional post on 19.03.2009.
8.1 The documents available on record do not show that there was any objection raised by any aggrieved employee, from the date of issuance of eligibility list dated 10.9.2008 including the name of the applicant as eligible to appear in the examination, and till date of his appointment on promotional post on 19.3.2009. Para 203.1 of IREM states clearly that for the Group „C‟ employee who have rendered minimum three years non-fortuitous regular service in Grade of Rs.6500-10500 and above is a pre-requisite to become eligible for consideration of selection to Group „B‟ post and their integrated seniority for purposes of the selection should be determined on the basis of the date of appointment to the said grade. It is an admitted fact that the applicant was promoted on ad hoc basis to the rank of Divisional Traffic Inspector w.e.f. 15.05.1995 in the pay scale of Rs.7450-11500, which is a group „C‟ post and subsequently on 20.01.1997, he was confirmed as regular Divisional Traffic Inspector in the same pay scale of Rs.7450-11500. Thus, the eligibility of the applicant to appear in the examination for Group-B post in no way could be doubted or questioned.
8.2 However, after a span of more than seven years, the respondent no.2 issued a show cause notice to the applicant on the strength of a complaint filed by an employee regarding mentioning of wrong date of entry of the applicant as 21.01.1993. On the strength of the said complaint and upon examination of their records, the respondents called upon the applicant to show cause why he should not be reverted to the post of Traffic Inspector in scale of Rs.7450-11500/9300-34800 + GP (CAT/AHMEDABAD BENCH OA NO.499/2017) 12 Rs.4600/- and his name interpolated at Sr. no.91(A) in the integrated seniority list notified on 30.09.2009.
8.3 The respondents have relied on para 228 (ii) (a) of IREM Vol.I to justify their impugned action, which states that if the promotion is granted erroneously, the same can be cancelled as soon as it is brought to the notice of appointing authority. The reliance on this para is absolutely misplaced. As noticed hereinabove, the applicant was rightly considered eligible for promotion to the Group-B post in the year 2006 as well as in the year 2008. The applicant satisfies the parameters of Para 203.1 of IREM which states that for the Group „C‟ employee having rendered minimum three years of non-fortuitous regular service in Grade of Rs.6500-10500and above, is a pre-requisite to be eligible for consideration of selection to Group „B‟ post. Despite having been unsuccessful in 2006, it is evident that he was eligible to take that LDCE. If he was eligible in 2006, questioning his eligibility in 2008 is strange, to say the least.
8.4 It is also relevant and important to mention that it is not the case of the respondents that at any point of time, the applicant mis-represented his date of entry in scale of Rs.6500-10500. Rather, in his representation filed on 22.3.2006 he declared his date of entry to be 01.03.1993 in the required grade. We also see that the list of candidates who are eligible to take LDCE is actually prepared and approved by the respondents. In this backdrop, holding the candidate as exclusively responsible for any discrepancy in the eligibility list is again an apparently flawed stand. In this context, vicarious lapse can‟t be attributed to the applicant for this very reason.
8.5 The eligibility list dated 10.9.2008 declaring the applicant to be eligible to appear in the examination for Group „B‟ post and consequent promotion order of the applicant dated 25.2.2009 upon qualifying the examination, was undisputedly in public domain. No one raised any objection qua the eligibility list dated 10.9.2008, much less against the order dated 25.2.2009 granting promotion to the applicant in group-B post.(CAT/AHMEDABAD BENCH OA NO.499/2017) 13
9. In view of the what has been discussed above, we are of considered opinion that the impugned decision of the respondents seeking to revert the applicant to the original position i.e. Traffic Inspector in scale Rs.7450-11500/9300- 34800 + GP 4600 and interpolating his name at Sr. No.91 (A) i.e. below Shri R N Das (Sr. No.90) & above Shri C P Singh (Sr. No. 91) in the integrated seniority list notified vide office letter dated 30th September, 2009, is not just and proper and suffer from infirmities. The respondents have miserably failed to justify their belated action of issuing show cause notice seeking to revert the applicant, particularly in view of the provision contained in para 203.1 of IREM.
10. Accordingly, the OA stands allowed. Impugned order dated 23.10.2017 (Annexure A/1) is hereby quashed and set aside. Interim relief granted on 02.11.2017 stands confirmed. MA if any also stands disposed off. No costs.
(A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) PA