Central Administrative Tribunal - Jabalpur
Sateesh Chandra vs West Central Railway on 25 June, 2024
OA No. 1157 of 2023
Reserved
(On 19.06.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH/
JABALPUR.
Dated: This the _25th day of _June__ 2024
Hon'ble Mr. Justice, Akhil Kumar Srivastava, Member (J)
Hon'ble Mr. Kumar Rajesh Chandra, Member (A)
Original Application No. 1157 of 2023
Sateesh Chandra, S/o Shri Ghanshya Das, a/a 35 years, working
as SMM Office/Diesel Loco Shed Itarsi, under Dy. CMM/CRWS,
West Central Railway Itarsi Pin 451111, R/o Sai Colony Itarsi,
461115.
. . .Applicant
By Adv: Arun Kumar Soni
VERSUS
1. Union of India Through its General Manager, West Central
Railway, Indira Market, Jabalpur Pin 482001.
2. Chairman, Railway Board, Rail Bhawan, New Delhi. Pin
110001.
3. Principal Chief Personal Officer, Office of General
Manager, Indira Market, Jabalpur Pin 482001.
4. Purnima Jain Dy. Chief Personal Officer (Gazetted) Office
of General Manager Indira Market, Jabalpur Pin 482001.
5. Sanjeev Kumar,OS CPMM. Indira Market, Jabalpur, Pin
482001.
. . . Respondents
By Adv: Shri Shri S.P. Singh and Shri D.S. Baghel
1
OA No. 1157 of 2023
ORDER
By Kumar Rajesh Chandra, Member (A) The instant OA has been filed to direct the respondents to promote the applicant on the post of AMM with all consequential benefits in the light of posting order dated 28.07.2023 as had been issued following the process in the light of Rules and instructions of the Railway, further to direct the respondents to grant seniority w.e.f. 28.07.2023 of the post of AMM and all consequential benefits, any other order as deemed fit by this Tribunal and to award cost.
2. The brief facts of the case are that the applicant was appointed in the Railway service as Sr. Clerk through RRB vide order dated 26.02.2013 and he was promoted to the post of Office Superintendent in the Grade Pay of Rs. 4200/- w.e.f. 27.02.2015. Vide order dated 13.05.2022 the applicant was mutually transferred from SECR to WCR Bhopal Division on mutual request transfer basis and has been granted seniority of Shri Gautam Kumar OS w.e.f 01.11.2018 as per para 310 of IREM Vol. I and he has no objection against his seniority. 2 OA No. 1157 of 2023
3. As per RBE No. 102/2019 the period of training counted as service for appearing in the examination should not be construed to mean that the period sent on training would be counted towards fixation of seniority. On 24.02.2023 a combined notification for holding selection for promotion to the post of AEN, AME, AEE, AMM, AOM and ACM Group 'B' GP Rs. 4800/- against 30% LDCE quota had been issued by the respondents. As per said notification minimum 05 years non-fortuitous regular service as on 01.01.2023 in level 6 and 7 put together was required for the above mentioned post. The applicant has submitted his application within time for the post of AMM as he was eligible as per said notification. On 18.04.2023 the respondents have issued a list of eligible candidates who were found suitable for the post of AMM and the name of the applicant was placed at Sl. No. 25. The applicant appeared in the written test and after being declared successful; he was called for interview and after getting successful in the interview had also cleared the medical test and his posting order was issued vide order dated 28.07.2023. After issuing the posting order the applicant was regularly making request to the authorities to relieve him so that he can join on the selected post, but no action 3 OA No. 1157 of 2023 has been taken by the respondents. Thereafter, the applicant submitted a detailed representation dated 05.08.2023 requesting him to relieve him, but no action has been taken by the respondents. Therefore, having left with no option the applicant filed OA No. 746/2023 before this Tribunal. The Tribunal vide order dated 08.08.2023 passed the following order in the said OA:-
"Considering the limited prayer made by learned counsel for the applicant, we dispose of this Original Application at the admission stage itself with a direction to the competent authority of the respondent department to consider and decide the applicant's representation dated 05.08.2022 (Annexure A-5), if not already decided, by passing a reasoned and speaking order, within a period of one month from the date of receipt of a copy of this order. For this purpose, the applicant shall provide copy of this order along with the OA to the respondents. Needless to say that this Tribunal has not commented anything on the merits of the case."
4. When the said order was not complied then the applicant filed Contempt Petition No. 53/2023 in which reply has not been filed by the respondents, but MA for extension of time has been filed by the respondents in which the respondents submit that since Mr. Sanjeev Kumar made a complaint and disputed the eligibility of the applicant as he had been mutually transferred from SREC to WCR, therefore, there is delay in deciding the claim of the applicant.
4 OA No. 1157 of 2023
5. The law relating to mutual transfer in the Railways is quite clear and further this Tribunal has also settled the legal position that eligibility of service and seniorities are two different things and they cannot be clubbed and also experience once gained cannot be curtailed / denied just on the basis of posting from one office to another for the purpose of eligibility of service, hence the respondents are trying to question the settled legal position settled by this Tribunal and Hon'ble Supreme Court. The action of the respondents is contrary to their own rules and also against the verdict of judicial pronouncement of this Tribunal as well as Hon'ble Apex Court as the selection for the post of AMM was on the basis of LDCE 30% quota and seniority plays no role in LDCE selection, and the applicant is also not disputing his seniority. As far as the eligibility is concerned the Hon'ble Supreme Court in the matter of Scientific Advisor to Raksha Mantri and another vs. V.M. Joseph has held that, "eligibility for promotion cannot be confused with seniority as they are two different and distinct factors". Hence the applicant prayed to allow his OA.
5 OA No. 1157 of 2023
6. Private respondent No. 5 has filed his reply in which he submits that the applicant has joined West Central Railway on Inter Railway Mutual transfer on 14-05-2022 vice Shri Gautam Kumar, Office Superintendent working under SMM (Diesel) Itarsi having lien and seniority under DYCMM (CRWS) Bhopal Division of West Central Railway. He was relieved from his earlier working Railway South East Central Railway Bilaspur vide letter dated 13- 05-2022. As per rule 310 of Indian Railway Establishment Manual volume-I, 2009 Edition filed he is eligible for the seniority in WCR in Grade pay Rs. 4200/- from the date of 01-11-2018 because the employee Shri Gautam Kumar, Office Superintendent with whom he has taken Inter Railway Mutual Transfer was promoted in Bhopal Division WCR vide order no-28/ESTT/Cadre/1 dated 01- 11-2018. West Central Railway issued notification dated-24-02- 2023 for promotion to the post of Group "B" AMM, Annexure-A-5 of the O.A relevant item is item -04 at page 30 of the O.A. wherein the eligibility condition for appearing in the exam was 05 year regular service in the Grade-Pay 4200 as on 01-01-2023. The further relevant item is item no-V at page 31 of the O.A. Which has applicable in case of Inter Railway Own request transfer on bottom seniority in recruitment Grade only, and this 6 OA No. 1157 of 2023 clause is not applicable in case of Inter Railway Mutual transfer because it is permissible in intermittent promotional Grades and providing benefit of seniority of the employee to whom mutual transfer was resorted to. The applicant was wrongly made eligible to appear in the examination for promotion to the post of Group "B" AMM based on his date of promotion in SECR Bilaspur in Grade Pay 4200 on 26-02-2015 as Office Superintendent whereas on joining the services in WCR on Inter Railway Mutual Transfer on 14-05-2022 vice Shri Gautam Kumar, Office Superintendent working under SMM (Diesel) Itarsi having lien and seniority under DYCMM (CRWS) Bhopal Division of West Central Railway he is eligible to get seniority in intermittent promotional Grade 4200from the date of his promotion 01-11-2018 only. This very fact has been brought to the notice of Railway administration by answering respondent no-05 vide Annexure-A-13 page 54A of the O.A. It is further submitted that applicant was initially recruited in the post of Senior Clerk in Western Railway Mumbai on 21-02- 2013. Railway Administration WCR has rightly taken the cognisance of the rule 310 of Indian Railway Establishment Manual volume-1, 2009 Edition and obtain the approval of next higher authority of Railway Board under Rule-221 and deleted the 7 OA No. 1157 of 2023 name of the applicant from Group 'B' Panel to AMM because he was not at all eligible and accordingly the letter to this effect has been issued by WCR on 14.12.2023.
7. Respondents Nos. 1 to 4 have filed their counter reply in which they submit that since objections were received regarding ineligibility of the applicant for the candidature of the said post and therefore the matter was examined as per the extant rules and the Railway Board vide letter dated 13.12.2023 conveyed the approval for removing the name of Shri Sateesh Chandra from 30% Group 'B' panel of AMM dated 27.07.2023 and including the name of Shri Sanjiv Kumar in Group 'B' panel. In pursuance of the same, this office has revised the panel vide letter dated 14.12.2023, and the applicant has been removed from the panel as such he is not entitled any of the relief(s) as claimed by him in this O.A. as he is not in the panel of Group 'B' post of AMM. Therefore, no relief regarding promotion to the post of AMM along with consequential benefits may be awarded and as such this Original Application may kindly be dismissed as being rendered infructuous. A notification for selection to the Group 'B'post of AMM (Vacancy- UR-01, SC-00, ST-00 Total-01)- GP-4800(Level- 8 OA No. 1157 of 2023
8)/Pay Band-2-LDCE 30% quota was issued Vide HQ/Personnel Department/JBP/WCR's L.No. WCR/PHQ/GAZ/ Selection/Gr B/LDCE-30%/2021 Dated 24.02.2023 (Annexure-A/5). In the said notification, Para 1.4,Para 1 Note-V and Para 7 Note-1 state as under-
"Para 1.4 the eligibility criteria for AMM selection in Store department is as under:
"Group C Ministerial/Non-ministerial staff of stores department holding the post in Level-6 (GP-4200) & above with 5 years regular service in level-6 & above (including non-fortuitous service rendered in the corresponding pre-revised grade) as on 01.01.2023".
Para 1.Note-V:
"...For other cases, the length of service shall be derived on the basis of the dates in the seniority list in the relevant grade".
Para 7. Note-1 If any candidate is subsequently found ineligible for the above selection, at any stage, his/her candidature will be rejected without assigning any reason."
8. It is also submitted that as per final eligibility list published vide this office letter dated 04.05.2023, wherein it was mentioned that at any stage it is found that the candidate is found ineligible, his candidature will be cancelled with immediate effect. It is further submitted that applicant never challenged these conditions before or after appearing in examination. Shri Sateesh Chandra, the applicant also applied for the same against above notification. Centralized CBT was conducted on 25.06.2023 and as per the 9 OA No. 1157 of 2023 results five employees in the order of merit were called for Viva- Voce conducted on 26.07.2023. On the basis of overall merit position, Shri Sateesh Chandra, OS/SMM/ET was empanelled vide HQ/Personnel / WCR's letter dated 27.7.2023. In the meanwhile, Shri Sanjeev Kumar, OS/ PCMM Office/WCR/JBP submitted representation dated 30.07.2023 wherein he stated that he has qualified the exam for AMM selection and raised objections regarding the candidature of Shri Sateesh Chandra stating that Shri Sateesh Chandra joined WCR on mutual transfer on 14.05.2022 vice Shri Gautam Kumar who was promoted as OS in GP 4200/- (level-6) on 01.11.2018 and thus he did not fulfil the eligibility criteria.
9. Shri Sateesh Chandra, OS/SMM/D/ET also submitted representation dated 02.8.2023/05.08.2023 wherein he stated that he has been empanelled vide PCPO Office order No.221/2023 Dated 28.7.2023 for Group 'B'AMM Post, but he was not relieved and not allowed to take charge of AMM/E- PP/HQ/JBP. He also filed OA No. 200/746/2023 before Hon'ble CAT, Jabalpur Bench (Circuit sitting-Indore) regarding consideration and deciding the applicant's representation dated 10 OA No. 1157 of 2023 05.8.2023. Hon'ble CAT, Jabalpur Bench (Circuit sitting-Indore) has given direction to consider and decide the applicant's representation dated 05.08.2023, if not already decided by passing a reasoned and speaking order, within a period of one month from the date of receipt of a copy of this order. In compliance of CAT's order, reasoned and speaking orders have been passed vide letters dated 06.09.2023 & 19.12.2023. in view of above representations, matter was examined with extant rules/provisions/administrative instructions stipulated under para 310 of IREM Vol. I and para 4 (ii) of RBE No. 08/2019.
10. They further submit that transfers are of three types:-
a. Administrative Ground Transfer: Where seniority of employee is fully protected.
b. Own Request Transfer: It is one way transfer on own request, where employee is getting bottom seniority in the new seniority unit. However, in terms of RBE No.40/2008, the services rendered by him in the previous unit may be reckoned for determining his eligibility where a minimum length of service is prescribed as a condition for promotion in the new 11 OA No. 1157 of 2023 unit, subject to the condition that the length of service which is so allowed to be counted does not exceed the length of service of his immediate senior in the new unit.
c. Mutual Transfer: It is a two way transfer. In terms of RBE No.08/2019, Para-4(ii), Railway servants transferred on mutual exchange from one cadre of a division, office or railway to the corresponding cadre in another division, office or railway shall retain their seniority on the basis of the date of promotion to the grade or take the seniority of the railway servant with whom they have exchanged, whichever of the two may be lower (Authority: Para 310 of IREM Vol.I).
There is no further relaxation on mutual transfers for counting his past service for promotion.
11. Shri Sateesh Chandra, the applicant was promoted as OS in Level-6 on 26.02.2015 in SECR. After that, he arrived in this railway i.e. WCR on Inter Railway Mutual Transfer w.e.f 14.05.2022 vice Shri Gautam Kumar, OS/SMM/D/ET who was promoted as OS in Level-6 on 01.11.2018 in WCR. As Shri Sateesh Chandra, the applicant joins a new seniority unit by 12 OA No. 1157 of 2023 virtue of mutual transfer from SECR to WCR, so in terms of above guiding principles, his length of service in this railway as OS in Grade Pay-4200 (Level-6) will be counted wef 01.11.2018, the date on which Shri Gautam Kumar was promoted in this grade and therefore it was concluded that, Shri Sateesh Chandra, OS/SMM/D/ET would be assigned seniority of Shri Gautam Kumar, with effect from 01.11.2018 in GP 4200 (Level-6) instead of 26.02.2015 (date of promotion as OS in SECR before his mutual transfer). Hence, Shri Sateesh Chandra is not completing 05 years regular service as on 01.01.2023 (as per eligibility condition mentioned in the notification counted from 01.11.2018. Shri Sateesh Chandra, in his application for the said selection has mentioned about his mutual transfer. He has also mentioned his effective date of seniority in level-6 as 01.11.2018. It is apparent that Shri Sateesh Chandra was aware that he is not eligible as per the eligibility condition. In this regard Para 228 of IREM, VoL- I also stipulates that, "the orders 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 13 OA No. 1157 of 2023 cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment", and with the approval of General Manager of this railway, matter was sent to Ministry of Railway (Railway Board) for alteration in the panel as it was within the competence of Railway Board. Railway Board vide letter dated 13.12.2023 conveyed the approval for removing the name of Shri Satessh Chandra from the 30% Group 'B' panel of AMM Dated 27.07.2023 and including the name of Shri Sanjiv Kumar in the said Group 'B' panel (Annexure R/1) and in compliance of the same, this office has revised the panel vide letter dated 14.12.2023. The applicant is repeatedly citing the judgments/rules which relates to own request transfers whereas the applicant's case is a case of transfer on mutual basis. Moreover the applicant must know that placing in seniority is the base of counting the service in the new units. How is eligibility of those employees who came on transfer should be dealt with, has been explained in the Notification issued under letter No. WCR/PHQ/GAZ/Selection/Gr B/LDCE-30%/ 2023. dated 24.02.2023 at Para 1. Note-V as "As per Railway Board's letter No. E(NG)1-2006/PM1/5 dt. 21.03.2006 (RBE No 34/2006) and E(GP)2005/2/74 dt. 13.03.2008 (RBE 40/2008), in case of 14 OA No. 1157 of 2023 persons transferred at his own request to a new unit in the same category of post and assigned bottom seniority therein, the service rendered by them in the previous unit may be reckoned for determining their eligibility wherever a minimum length of service which is so allowed to be counted does not exceed the length of service of their immediate senior in the new unit and this benefit of counting of service will be applicable only in those cases where the staff join the new unit on request transfer (not in mutual transfer) in the same category of posts. For other cases, the length of service shall be derived on the basis of the dates in the seniority list in the relevant grade".
12. Chapter 3 of the IREM Vol-l deals with the fixation of seniority. Fixation of seniority on own request transfer (IREM Para
312) and fixation of seniority in mutual transfers (IREM Para 310) have been explained in separate Paras. Applicant's contention that own request transfer and mutual request transfers are same then what is the need to explain both the transfer cases separately at Para 310 and 312 of IREM. Apart from this, Railway Board's Master Circular 34 part-II describe separately "Seniority of staff who seek transfer on their own accord" and Part III deals 15 OA No. 1157 of 2023 with "Transfer on Mutual Exchange". They have also submitted that four employees senior to Shri Sateesh Chandra were not eligible to apply in the said selection, as their effective sate of promotion in Grade Pay Rs. 4200/- was 01.11.2018. They further submit that in view of above the present OA is misconceived and without substance, hence is liable to be dismissed and prayed to dismiss the OA.
13. The applicant has not filed any rejoinder.
14. Heard learned counsel for the parties and perused the pleadings and documents available on record.
14. From the record it is evident that the case is built against the applicant in the OA. Rule 310 and Rule 221 of IREM Vol. I for mutual transfer reads as under:-
"(a) Railway servants transferred on mutual exchange basis from one cadre of a Division /Office /Railway/ PU/ Unit to the corresponding cadre in another Division/Office/ Railway/PU/Unit shall retain their seniority on the basis of the date of promotion to the grade or take the seniority of the railway servants with whom they have exchanged, whichever of the two may be lower."
15. The respondents have decided the representation of the applicant on 19.12.2023 by a speaking order in which they 16 OA No. 1157 of 2023 specifically mentioned that the selection of AMM (30%) LDCE) was conducted for filling up of 01 vacancy (UR-01) and the eligibility criteria as per the Notification issued under letter No. WCR/ PHQ/ GAZ/ Selection/Gr B/LDCE - 3-%/2023 dated 24.02.2023 as under:-
"Para 1.4- "Group C Ministerial/Non-ministerial staff of stores department holding the post in Level-6 (GP-4200) & above with 5 years regular service in level-6 & above (including non-fortuitous service rendered in the corresponding pre-revised grade) as on 01.01.2023"
Para 1. Note-V: "As per Railway Board's letter No. E(NG)I- 2006/PM1/5 dt. 21.03.2006 (RBE No 34/2006) and E(GP)2005/2/74 dt. 13.03.2008 (RBE 10-2008), in case of persons transferred at his own request to a new unit in the same category of post and assigned bottom seniority therein, the service rendered by them in the previous unit may be reckoned for determining their eligibility wherever a minimum length of service which is so allowed to be counted does not exceed the length of service of their immediate senior in the new unit and this benefit of counting of service will be applicable only in those cases where the staff join the new unit on request transfer (not in mutual transfer) in the same category of posts. For other cases, the length of service shall be derived on the basis of the dates in the seniority list in the relevant grade".
16. In view of the above, they have concluded that the applicant is not fulfilling the eligibility criteria of 05 years regular service in Level-6 us on 01.01.2023 as mentioned in the notification and as per IREM Para 310. Hence applicant is ineligible for selection to the post of AMM against Notification 17 OA No. 1157 of 2023 No.WCR/ PHQ/ Gaz/ Selection/ Cir.B/ I.DCT-302023 dated 24.02.2023.
17. The applicant has cited the order dated 04.04.2024 of this Tribunal passed in OA 410/2022 in which the Tribunal has passed the following orders:-
"Accordingly, the Original Application is allowed. The order dated 02.03.2022 (Annexure A/1), wherein the candidature of the applicant has been rejected for not having minimum qualifying service is set aside. The respondents are directed to consider the case of the applicant for promotion through review DPC within a period of 60 days from the date of receipt of a certified copy of this order. If found fit, he may be promoted with effect from the same date when others have been promoted through the said selection process. He would also be entitled to consequential financial benefits, on which no interest would be payable. No order as to costs."
18. The above cited case is on request transfer and not on mutual transfer, hence it is not applicable in the present case. The applicant has not completed five years of service in the grade pay of Rs. 4200/- so it is not applicable to the present case. The mutual transfer basis will not be granted the benefit of past seniority, the applicant took transfer vis-a-vis Shri Gautam Prasad in the same grade pay. He will be eligible on 0112.2023 and not on 01.01.2023. The applicant has wrongly appeared in the test and passed, which is later on reviewed and corrected by 18 OA No. 1157 of 2023 deleting the applicant's name. Hence, we find no merit in the OA and the same is dismissed. There is no order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Member (A) Member (J)
/Piyush/
19