Central Administrative Tribunal - Delhi
Sathyan Pilai vs M/O Railways on 20 March, 2023
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Item No. 15 (C-3) O.A. No. 2489/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2489/2015
This the 20th day of March, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Aanad S. Khati, Member (A)
Sathyan Pillai, aged 60 years,
S/o. late Shri Raghavan Pillai
Addl. General Manager (HR)
Room No. 253, August Kranti Bhavan,
Bhikaji Cama Place, R. K. Puram,
New Delhi - 110 066. ....Applicant
(By Advocate : Mr. Anil Kumar Gulati)
Versus
Union of India,
Through Secretary,
Ministry of Railways, Railway Board,
Rail Bhavan, New Delhi - 110 001. ...Respondent
(None)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
"8(i) To set aside the order No. ERB-I/2014/14/6 dated 30.06.2014 issued by the Ministry of Railways (Railway Board), Government of India, New Delhi;2
Item No. 15 (C-3) O.A. No. 2489/2015
(ii) direct the respondent to grant the benefit of „Next Below Rule‟ and proforma promotion to the applicant to Grade-I of RBSS (Under Secretary/Deputy Director) from the date his immediate junior Shri Anil Chopra was granted promotion in that Grade with all consequential benefits of fixation of pay, increments, and grant of pensionary benefits in Grade-I of RBSS (Under Secretary/Deputy Director);
2. The applicant was initially appointed as Section Officer (SO) and was working as such since 2003. He was recommended to be appointed on deputation to Rail Vikas Nigal Limited (RVNL in short), a public sector enterprise under the administrative control of Ministry of Railways. On the basis of acceptance of recommendations of RVNL, the applicant was selected for deputation to RVNL against the post to Manager/Assistant Manager. He was allowed to join new assignment in the year 2004. Re-structuring of Railway Board Secretariat Service (RBSS) cadre was undertaken on 09.03.2005 and cadre strength of RBSS has been revised. While he was on deputation, he was empanelled for promotion as Under Secretary/Deputy Director Grade I of RBSS on ad hoc basis. Along with the applicant, other 68 persons of RBSS were also 3 Item No. 15 (C-3) O.A. No. 2489/2015 empanelled for ad hoc promotion as Under Secretary/Dy. Director. The circular of Ministry of Railways has been issued by Railway Board on 09.07.2007 considering the year wise panel making zone of consideration for year wise panel of 2002-03 onwards till 2004-05 for regular promotion as Under Secretary/Dy. Director. The cut of date for deciding eligibility of officers were drawn as on 01.07.2002 as well as of respective years. The applicant requested Ministry of Railway Board for grant of benefit for proforma promotion under the Next Below Rule (NBR). This was followed by RVNL vide their letter dated 09.09.2008 for grant of certificate under the NBR with reference to the promotion of juniors to the applicant to the grade of Under Secretary/Dy. Director. The Railway Board issued a circular on 11.09.2008 regarding various categories of employees consequent to the recommendations of the 6th Central Pay Commission which has been accepted with effect from 01.01.2006.
The applicant submitted a technical resignation
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Item No. 15 (C-3) O.A. No. 2489/2015
sometime in April/May 2009, which was accepted by the competent authority on 19.05.2009. Consequently, the applicant was observed in RVNL which paid Foreign service contribution and leave salary contribution to the Railways in respect of the applicant's contribution consisted of pension and leave salary contribution up to 19.05.2009. On the basis of revised pay grade I of (Under Secretary/Deputy Director under RBSS, Ministry of Railways issued an order dated 78 of 2010 and notified names of Section Officers of RBSS approved in consultation with UPSC and included him in the grade-I of RBSS (Under Secretary / Deputy Secretary for the year 2004-05 and the applicant's name was there in the said list at Sl. No. 33 for the year 2004-05. Further to this, on 29.06.2011, the RBSS has given promotion in fact regularisation of ad hoc promotion of SOs made in July, 2005 including the applicant. The applicant has made a representation on 28.11.2011 for benefit of NBR in the Grade I of RBSS (Under Secretary/Deputy Director) as his immediate junior one Mr. Anil Chopra at 5 Item No. 15 (C-3) O.A. No. 2489/2015 Sl. No. 34 vide office order No. 24 of 201 has been regularly promoted as Grade I of RBSS and again a detailed representation was made by the applicant on 29.11.2013, Ministry of Railways to get the NBR Rule in this regard which would envisaged the enhancement of pensionary benefit to the applicant. Aggrieved by this he has approached this Tribunal by filing this OA.
3. The representation of the applicant of 2013 for promotion and sanction of pensionary benefits consequent upon the inclusion of the name of the applicant in RBSS for 2004-05 have been examined in detail in consultation with the Finance Directorate of the Ministry and the same was not found feasible in terms of the extant instructions on the subject and the applicant has approached this Tribunal.
4. We have issued notice to the respondents who put appearance. They filed reply wherein it is stated that the applicant served as a Section Officer in the scale of Rs.6500-10500/- (pre-revised). He proceeded on 6 Item No. 15 (C-3) O.A. No. 2489/2015 deputation on 16.03.2004. He was also given ad hoc promotion to the post of Under Secretary/Deputy Director. Since the applicant has opted for absorption in RVNL w.e.f. 19.05.2009 and has rendered technical resignation. However, despite resignation the applicant's name was included in the zone of consideration for 2004-05 in RBSS for promotion in the RBSS cadre as Under Secretary/Deputy Director. It is further stated that in terms of extant rules, which provides for consideration of all eligible officer belonging to the cadre as on crucial date, even if some of them have ceased to serve following their retirement/resignation etc. Subsequently, the extant instructions also stipulates that such officer would however have no right to actual promotion since the applicant was belonging to RBSS cadre as on crucial date of eligibility i.e., 01.07.2004. His candidature was duly considered by the DPC and his name was notified vide office order No. 78 of 2010. It is further stated that the applicant submitted his representation for 7 Item No. 15 (C-3) O.A. No. 2489/2015 notional pension as his pay was at par with the junior in the grade and requested that his PPO be revised accordingly. Said request of the applicant was not found feasible for acceptance for granting the same to him which have been violative of instructions on the subject issued by DoP&T (Annexure A-1). Para 2.4.4 of the said instructions reads as under :-
"2.4.4. While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year
(s)."
5. Heard counsel for the applicant at length. The short question raised by the applicant herein is whether the applicant can be given proforma promotion from the date when his junior was given promotion as he was in the zone of consideration from that date, from the date of DPC. The applicant was not in service in 2010 as he has already tendered technical resignation with effect from 18.05.2009 but the DoP&T issued certain guidelines in the year 1998 wherein it is clearly cited that in case a retired employee was in the zone of consideration and his junior were considered and 8 Item No. 15 (C-3) O.A. No. 2489/2015 promoted then the retired employee shall also be entitled to be considered for promotion. Though the respondents have also relied upon some guidelines issued by the DoP&T but they have given different versions while rejecting the case of the applicant. Learned counsel for the applicant has drawn our attention to sub para 4 of para 25 and para 26 of Master Circular at page 75 which are reproduced below :-
"25 (iv). The benefit of officiating promotion under the rule should be allowed only against promotions in a cadre in vacancies of more than 90 days duration. In other words, the initial vacancy as well as subsequent vacancies on the basis of which the benefit is to be continued should each be of more than 90 days duration."
26. The grant of benefit under NBR to an officer outside the regular line either on deputation under the Govt. or on foreign service will entitle him to the following :
To draw the higher rate of pay to which he may be entitled in the regular line, while holding the post outside his regular line.
To count the period of his service from the date of proforma promotion for increment in the post in which he would have officiated had he been in the regular line."
6. From the above, it is clear that the grant of benefit under NBR to an officer outside regular line either on deputation to government or Foreign service will be 9 Item No. 15 (C-3) O.A. No. 2489/2015 entitle to draw higher rate of pay to which he may be entitled while holding the post outside the regular line.
The counting of period for his service from the date of proforma promotion for increments in the post in which he would have officiated had he been in the regular line. This circular clearly covers the case of the applicant where it is clearly stated that if a person outside the cadre is given ad hoc promotion, followed by consideration for regular promotion, he would be entitled to next promotion. Thus, we are of the considered view that there is a merit in the case of the applicant and that he is entitled to be considered by the respondents for proforma promotion from the date his immediate junior Mr. Anil Chopra has been promoted for the benefit w.e.f. 2005 in the grade of Under Secretary/Deputy Director in RBSS. We hereby direct that the applicant is entitled for notional promotion from the date his junior Mr. Anil Chopra is given promotion but he is not entitled for actual promotion, with all consequential benefits.
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Item No. 15 (C-3) O.A. No. 2489/2015 With this direction, the OA stands allowed. There shall be no order as to costs.
(Dr. A. S. Khati) (Ashish Kalia) Member (A) Member (J) /Mbt/