Central Administrative Tribunal - Allahabad
D K Pathak vs Union Of India on 13 October, 2023
O.A./1926/2010
(Reserved on 03.10.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No.1926 of 2010
Pronounced on this the 13th Day of October, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Devendra Kumar Pathak, a/a 50 years, S/o Shri S.N. Pathak, R/o
Amilliya Khurd, Post Samahan (Meja Road), District Allahabad.
2. Aditya Narain Dhawan, a/a 50 years, S/o Late L.L. Dhawan, R/o
702/10, Harshwardhan Nagar Meerapur, Allahabad.
3. Sourin Pal, a/a 58 years, S/o Late Saurabh Pal, R/o 176/117,
Allenganj, Allahabad.
3/3 Jhansi Pal w/o Late Sourin Pal R/o 176/117 Allenganj
Allahabad.
4. Kamal Kishore, a/a 43 years, S/o Late Shri Shiv Balak, R/o
170B/2A, Nayay Vihar Colony, Sulemsarai, Allahabad.
....Applicants
By Advocate: Shri A.K. Dave
Versus
1. Union of India through General Manager, North Central Railway,
Allahabad.
2. General Manager, North Central Railway, Allahabad.
3. General Manager (P), North Central Railway, Allahabad.
4. Chief Commercial Manager, North Central Railway, Allahabad.
5. Deputy Chief Commercial Manager, North Central Railway,
Allahabad.
...Respondents
By Advocate: Shri Manoj Kumar Sharma
ORDER
Delivered by Hon'ble Dr. Sanjiv Kumar, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief to set aside the impugned rejection speaking order passed by General Page 1 of 11 O.A./1926/2010 Manager dated Nil communicated along with letter No.797-E/Estha/Va/Court Case 10 dated 25.08.2010 issued by G.M. (P) office along with covering letter dated 01.09.2010; and to direct the respondents to consider the applicants' promotion in the grade of Rs.5000-8000/- as C.M.I. under restructuring by way of modified selection scheme issued by railway board vide letter dated 09.10.2003 from the date their junior counterparts have been promoted w.e.f. 01.11.2003; to direct the respondents to fix the seniority of the Applicants in the grade of Rs. 5000-8000/- as C.M.I from the date junior to the applicants have been given that grade by way of Modified selection under restructuring scheme as per railway board letter dated 09.10.2003, w.e.f. 1.11.2003; and to direct the respondents to pay all the consequential benefits; and to pass any other order; and to award the cost of the application.
2. The facts of the case are that applicant No.1 after successful completion of training from 06.05.1982 to 30.06.1982, was appointed as goods clerk w.e.f. 09.10.1982 in the grade of Rs.260-420/- and he was further promoted as senior goods clerk in the grade of Rs.1200-2040/- w.e.f. 07.10.1986, which was revised in 5th Pay Commission as Rs.4000-6000/-. The applicant No.2 was initially appointed as booking clerk in the grade of Rs. 975-1540/- w.e.f. 16.04.1987 who was promoted as Senior Booking Clerk in the grade of Rs.1200-2040/- w.e.f. 27.07.1993. Applicant No.3 was initially appointed as parcel poster w.e.f. 28.05.1977 and thereafter he was promoted as Parcel Clerk w.e.f. 21.03.1983 in the grade of Rs.260-430/-. Further applicant No.3 was promoted and posted as claim tracer in the grade of Rs. 1200-2040/- after clarifying written test and applicant No.4 was initially appointed as Junior Clerk in the grade of Rs.950-1500 w.e.f. 22.07.1992 and he was promoted as claim tracer in the grade of Rs. 1200-2040/- after clarifying written examination. Applicant No.1 appeared in suitability test for the post of claim tracer grade of Rs.1200-2040/-(RPS) on 23.11.1996 and he was declared successful and posted in the office of Deputy Chief Commercial Manager Claim at Varanasi w.e.f. 06.02.1997. Applicant No.2 also Page 2 of 11 O.A./1926/2010 appeared in the written test for the post of claim tracer on 18.03.1996 and was working on the said grade at Varanasi.
3. While working as claim tracer the applicants were declared surplus and were permitted to work on the supernumerary posts viz. Commercial Inspector, claim tracer, senior clerk, and clerk. The names of the applicants were shown at Sl.No.9, 12, 14 and 17 as claim tracer in the grade of Rs.4000-6000/-. By the aforesaid letter dated 13.08.2001, 38 employees including the applicants were spared with them by the office of Chief Commercial Manager/ Claim Northern Railway Varanasi and sent to D.R.M. Divisional Office, Lucknow Northern Railway for further posting. In pursuance of the above referred letter dated 13.08.2001, Divisional Personnel Officer, Northern Railway Lucknow vide letter dated 01.10.2001 redeployed the surplus staff as redeployed T.T.E. for line training the name of station shown against the name of the employee and the name of the applicant No.1,2, and 3 was shown at Sl.No.15.12 and 9 in the said order. All the applicants after successful completion of training were posted as redeployed T.T.E. at Prayag Station North Central Railway Allahabad. Applicant No.4 Shri Kamal Kishore who was medically decategorised vide order dated 18.10.2001 was sent back to Dy. Chief Commercial Manager Claim, Varanasi for further action and thereafter he was posted as claim tracer in the year 2001 in the office of Dy. Chief Commercial Manager Claim Varanasi.
4. Later on all the applicants submitted their option for transfer to new zone of North Central Railway as per G.M.N Railway Circular dated 20.08.2002 and submitted their option in the month of September 2002 on different dates. Except applicant No.4 who was transferred to N.C.R. H.Q. Allahabad vide letter dated 05.11.2003 in the Grade of Rs.4000-6000/- as claim tracer, in compliance of the G.M.(P) NDLS letter dated 07.05.2004 and GM(P) NCR letter dated 17.10.2003 applicant Nos. 1,2 and 3 were transferred to G.M.(P) NCR ALD on the same pay and grade vide order dated 22.04.2004 as claim tracer and vide order dated Page 3 of 11 O.A./1926/2010 07.05.2004 issued by Senior Commercial Manager, applicant Nos. 1,2 and 3 were posted as claim tracer in the grade of Rs.4000-6000/- in the claim office NCR/HQ/Allahabad under CCM (M&R) and had been working as such till the time of filing the O.A. After the applicants had submitted their option for joining new zone, NCR Railway Board issued orders of restructuring of various categories of railway employees in Group 'C' and 'D' vide order dated 09.10.2003 which was circulated on Northern Railway Divisional Office, Lucknow by the letter dated 28.10.2003 and before the applicants could know about the details of the restructuring they were transferred to North Central Railway in pursuance of G.M. (P) NDLS letter dated 07.01.2004 and resumed on North Central Railway H.Q. Allahabad by letter dated 22.04.2004 and as such before restructuring benefit could be obtained by the applicants on Northern Railway, they were transferred to N.C.R. and juniors to the applicants on Lucknow Division who were deployed as RTTE along with the applicants were granted promotion from grade of Rs.4000-6000/- to the next grade of Rs.5000-8000/- under restructuring through modified selection w.e.f. 01.11.2003 vide letter dated 19.06.2006 issued by DRM(P) Lucknow.
5. The applicant Nos. 1,2 and 3 jointly submitted representation to the DRM(P) N. Railway Lucknow dated 25.08.2006 and sent a copy of the same to Chief Commercial Manager (FM) NCR Allahabad for granting up-gradation in the grade of Rs.5000-8000/- to the applicants w.e.f. 01.11.2003 from the date their juniors were promoted under restructuring. The C.C.M. (FM) Allahabad duly forwarded the representation dated 25.08.2006 and enquired from DRM(P) Lucknow office about granting of restructuring benefit to the redeployed staff of claims office posted on Lucknow Division in ticket checking cadre vide letter dated 29.08.2006 and D.R.M.(P) N.R. Lucknow replied to the G.M.(P) NCR, Allahabad that the restructuring benefit to the juniors of the applicants Shri S.K. Mullick, Shri R.K. Mishra and Shri S.P. Mishra were granted w.e.f. 01.11.2003 and the applicants could Page 4 of 11 O.A./1926/2010 not be given the benefit of restructuring since they were transferred to N.C.R. on 27.04.2004 and vide letter dated 21.08.2007, North Central Railway Headquarter Office enquired from G.M. (P) Northern Railway regarding the process of selection for filling up the post of C.M.I. in grade of Rs.5000-8000/- adopted by N.R. In reply to the aforesaid letter dated 21.08.2007, Northern Railway vide their letter dated 18.09.2007 confirmed that in their office claim tracer grade Rs.4000-6000/- were given promotion as C.M.I. grade Rs.5000-8000/- through modified selection process under restructuring . Finally the N.C.R. HeadQuarter Office notified by their letter dated 02.01.2008 for modified selection of the applicants for promotion to the post of C.M.I grade Rs.5000-8000/- against existing vacancy.
6. After notification dated 02.01.2008, the promotion of the applicants has been held in abeyance without any justifiable reasons and the applicants are being subjected to work in the lower grade of Rs.4000-6000/- while they are entitled for all the benefit of higher grade of Rs.5000-8000/- w.e.f. 01.11.2003 and are being deprived of financial benefits from the date their juniors have been granted the same. It is stated that Shri M.J. Khalid head booking clerk got his cadre changed from head booking clerk to C.M.I. duly approved by the Competent Officer from Northern Railway to North Central Railway Headquarter Allahabad by order dated 25.02.2008 and he has been placed below all the applicants in the grade of Rs.5000-8000/-.
7. Applicants state that they have been discriminated against in the matter of promotion to the Grade of Rs.5000-8000/- as C.M.I. under the scheme of restructuring w.e.f. 01.11.2003 under Railway Board's order dated 16.10.2003 since juniors to the applicants have been granted the said promotion w.e.f. 01.11.2003. The applicants submitted a number representations in the year 2009 on 12.01.2009, 23.01.2009, 15.06.2009, 21.08.2009 and 29.10.2009. As respondents failed to take any action, they were compelled to Page 5 of 11 O.A./1926/2010 file O.A./497/2010 for implementing the restructuring under their circular dated 02.01.2008 and the Hon'ble Tribunal after hearing both the parties disposed of the O.A. with the direction to decide the representation of the applicants dated 15.06.2009 within a period of three months from the date of receipt of a certified copy of the order by passing a reasoned and speaking order. Pursuant to that General Manager (P) N.C.R. issued the impugned order dated 25.08.2010 as speaking order whereby the claim of the applicants has not been granted. Hence, against the same speaking order, the applicants have approached this Tribunal to seek relief and claim equal terms with other similarly placed employees within the employment of Railways on various grounds of equality, equity and discrimination as they were entitled to such promotion and higher pay.
8. Respondents have filed their counter reply wherein they agreed to the key facts as mentioned in the O.A. that the applicants were working on the post of claim tracer in grade 4000-6000 under Northern Railway Varanasi in 2001. The applicants were declared surplus and they were redeployed as TTE Grade 4000-6000/- and posted under Lucknow Division of Northern Railway on 13.08.2001. After the formation of new zone of N.C. Railway, they had opted for their posting in the N.C. Railway Headquarter office and were absorbed against the post of claim tracer in the same grade w.e.f. 10.05.2004 and after joining the new zone of N.C.R. the applicants had submitted their representation for their promotion to the grade of Rs.5000-8000/- as their juniors who were working in Lucknow Division, Northern Railway as redeployed TTE after surrender of the post of claim tracer, had been promoted in Northern Railway as Head TTE, Grade 5000-8000/- w.e.f. 01.11.2003 under restructuring scheme. They emphatically say that the claim of the applicants could not have been acceded to as the cadre of N.C. Railway has been closed w.e.f. 31.10.2003 and their lien was terminated at N. Railway, as such, they have no right for promotion at their parent cadre of Northern Railway and hence in pursuance to the earlier order of Page 6 of 11 O.A./1926/2010 the Hon'ble Tribunal dated 03.05.2010 passed in O.A.497/2010, the respondents could not consider the case of the applicants and vide their speaking order dated 25.08.2010 they rejected the petition of the applicants due to reasons quoted therein and as there is no case for the applicant, they prayed to reject the O.A.
9. In their rejoinder, the applicants have reiterated the same facts as in the O.A.
10. The case came up for final hearing on 03.10.2023. Shri A.K. Dave, learned counsel for the applicant, and Shri Manoj Kumar Sharma, learned counsel for the respondents were present and heard.
11. We have carefully gone through the entire record and considered the rival contentions of the learned counsel appearing for the parties.
12. From the record it is clear that the following facts are not denied -
that the applicants while working as claim tracers in the grade of Rs.4000-6000/- under Northern Railway Varanasi in 2001 were redeployed as TTE grade 4000-6000/- and posted under Lucknow Division of Northern Railway on 13.08.2001 as earlier they had been declared surplus and after formation of new zone of North Central Railway as they had opted for their posting in the N.C. Railway headquarter office and were absorbed against the post of claim tracer in the same grade w.e.f. 10.05.2004. This fact unequivocally shows that till 10.05.2004, the applicants were still working in Northern Railways' jurisdiction and not in the jurisdiction of North Central Railways.
13. From the record it is further clear that in Northern Railway similarly placed employees in Lucknow Division who were redeployed as RTTE along with the applicants were granted promotion from grade of Rs.4000-6000/- to the next grade of Rs.5000-8000/- under restructuring through modified selection w.e.f. 01.11.2003 vide letter dated 19.06.2006 issued by DRM (P) Lucknow (as in para 4.18 of the O.A, page 9). In the counter reply Page 7 of 11 O.A./1926/2010 at page 10 para 17 the respondents mention that the contents of para 4.18 and 4.19 of the Original Application are not admitted as alleged and in reply submitted that the applicants had opted to join N.C. Railway at their own and after opting for N.C.R they are not entitled for benefit given to their erstwhile juniors in Northern Railway. Hence, the factum that their juniors were given promotion in Northern Railway retrospectively w.e.f. 01.11.2003 vide letter dated 19.06.2006 issued by DRM (P) Lucknow is not denied. If these two sets of facts are true then the question arises that who is responsible for not giving opportunity to the applicants for exercising an informed option if in their parent Northern Railway where they were earlier posted they had better prospects of being promoted and getting the benefit of restructuring as their juniors got. Is it the employees who could have dreamt in advance as to what opportunities lie or do not lie in one zone or the other? Different zones of Railways cannot be treated as watertight compartments having their rules and interpretations and implementations contradictory to each other. Had the applicants known that they had better prospects in their parent cadre they would not have opted for transfer. This anomaly has arisen only because timely benefits are not given and employees are not fully informed of the possible chances of promotion and other career benefits. If the Railway Board and Railways as an organization was careful and all the decisions were taken in real time and not on a future date retrospectively, this type of anomaly would not have arisen and the applicants would have no opportunity of grievances.
14. We have gone through the speaking order which is as under:
" In compliance of Hon'ble Central Administrative Tribunal order dated 3.2.2010 passed in Original Application no.497 of 2010 Sh. Devendra Kumar Pathak, Sh. Sourin Pal, Sh. A.N. Dhawan and Sh. Kamal Kishore, I have gone through the representation of applicants dated 15.6.2009 carefully. I have also gone through the Original Application filed by the applicants and the Policy guidelines issued by Railway Board on the subject. The applicants have sought Page 8 of 11 O.A./1926/2010 promotion in the category of Commercial Inspector Gr. 5000-8000 under the cadre restructuring by way of modified procedure w.e.f. 1.11.2003, as has been done on Northern Railway.
It is noted that the applicants were working as Claim Tracer Gr. Rs.4000-6000 under Dy.CCM/Claims/Varanasi in 2001. On being declared surplus there, they were redeployed as TTE Gr. Rs. 4000-6000 and posted under LKO/Divn of N.Railway on 13.8.2001. After formation of new zone i.e. North Central Railway, the applicants opted for their posting in N.C. Railway and were absorbed against the post of Claim Tracer in the same grade on the basis of their options w.e.f. 10.5.2004.
It is seen that the orders for cadre restructuring were issued by Railway Board vide their letter no. PC-III/2003/CRC/6 dated 9.10.2003, in which the category of Claim Tracer was not covered for restructuring. Accordingly, the cadre restructuring was not implemented in this category on N.C. Railway. Promotions, if any, given to the category of Claim Tracer by any other Railway under restructuring is against the spirit of the orders of cadre restructuring issued by Railway Board on 9.10.2003 and cannot form the basis for extending similar benefit on NCR.
I also find that the category of Commercial Inspector on N.C. Railway is a unified cadre of Commercial, Rates, Claims, R&D & Marketing streams of Commercial Department. The Commercial Inspector category grade Rs.5000-8000 is an open category in which the posts are filled up by way of selection as per the procedure prescribed in the AVC circulated vide No. NCRPS 2287/06 dated 03-8-2003 wherein the employees from the categories of Booking Clerk, Parcel Clerk, Goods Clerk and Claim Tracer in grade Rs. 4000-6000 are considered for selection. Therefore, the request of the applicants to consider them for promotion under cadre restructuring separately by way of modified procedure of selection is not agreeable as per extant rules.
In view of the above, I do not find any merit in the claim of the applicants for giving them promotion under restructuring.
The applicants may be advised accordingly."Page 9 of 11
O.A./1926/2010
15. A simple perusal of the said document shows that it mentions that promotions, if any, given to the category of claim tracer or any other railway employee under restructuring is against the spirit of the order of cadre restructuring issued by Railway Board on 09.10.2003 and cannot form the basis for extending similar benefit for NCR showing that the respondents accept that Railway Board's restructuring circular are interpreted differently in different zones which is certainly not a healthy sign and the Board has to take corrective action about the same.
16. If facts are such that certain similarly placed claim tracers who were declared surplus and were redeployed as TTE/RTTE along with the applicants who remained in Northern Railway even after the applicants were shifted due to their option to North Central Railway on 22.04.2004 were given promotion from grade of Rs.4000-6000/- to next grade of Rs.5000-8000/- under restructuring through modified selection w.e.f. 01.11.2003 vide letter dated 19.06.2006 issued by DRM (P) Lucknow. And as on 01.11.2003 the applicants were in Northern Railway and the rules of Northern Railways were relevant and applicable to them, hence, the present case becomes a case of clear discrimination of similarly placed employees being differently treated. Merely because the applicants subsequently after the relevant date of 01.11.2003 had been transferred to North Central Railway in the year 2004, they cannot be treated by the Railway Board in a different manner. The Board has to find a solution for them and ensure that they get the said scale given to their juniors. However giving them the said benefit of higher grade in their new cadre NCR may entail double benefit of cadre change as well as higher grade. Hence in the fitness of things justice will be done if the applicants are given an option to go back to NR their parent cadre where their juniors have got promotion. The Board shall give them option to get back to Northern Railway and promote them in the said higher grade in Northern Railway and place them above their juniors w.e.f. 01.11.2003 when their juniors were given higher Page 10 of 11 O.A./1926/2010 grade and promoted and given the benefit of restructuring under modified selection similar to others.
17. Considering the case, we have no doubt and we find balance of convenience in favour of the applicants and we pass the following orders:
This O.A. is allowed and the Chairman/ Secretary Railway Board shall take a decision to give an option to the applicants to go back to their parent cadre of Northern Railway where the GM NR will give them promotion as was given to similarly placed juniors in Northern Railway w.e.f. 01.11.2003 with all consequential benefits. The applicants will also be entitled for arrears at 6% simple interest per annum. The applicants are directed to give their option to go to their parent cadre- NR- to the competent authority among the respondents in NCR within three weeks of getting a certified copy of this order, failing which their option should be considered closed. GM NCR who is impleaded here on behalf of the Government of India shall intimate this order immediately to the Chairman/ Secretary Railways so that they can take appropriate decisions in time. The whole process of their promotion and giving them consequential benefits should be completed in the next six months' time. All associated M.As. are also disposed of. No costs.
(Dr. Sanjiv Kumar) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
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