Central Administrative Tribunal - Ernakulam
V Sreerangan Asary vs The General Manager Southern Railway ... on 25 November, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00267/2018
Friday, this the 25th day of November, 2022
Coram:
Hon'ble Mr. Justice K. Haripal, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
V. Sreerangan Asary, aged 51 years,
S/o. Viswanathan Asary,
Chief Office Superintendent,
Office of the Senior Divisional Commercial Manager,
Southern Railway/Divisional Office/Trivandrum - 695 014,
Residing at: "Drishya", Elanjimoodu,
Amman Nagar, Near Panchayat Office,
Karakulam P.O., Trivandrum - 695 564. ...Applicant
(By Advocates: Mr. K. S. Ajayagosh and Mr. S. Rahumudheen)
versus
1. Union of India, represented by the
General Manager, Southern Railway,
Head Quarters Office, Park Town P.O.,
Chennai - 600 003.
2. The Divisional Railway Manager,
Southern Railway, Trivandrum Division,
Trivandrum - 695 014.
3. The Sr. Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Thiruvananthapuram - 695 014.
4. Shri V. S. Suresh,
Chief Office Superintendent,
Office of the Senior Divisional Commercial Manager,
Southern Railway/Divisional Office,
Trivandrum - 695 014. ...Respondents
(By Advocates: Mr. Anil Prasad for R1-3 & Mrs. Shameena Salahudheen
for R4)
This application having been heard on 11 th November 2022, the
Tribunal on 25th November 2022 delivered the following :
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ORDER
Per: Hon'ble Mr. K. V. Eapen, Administrative Member The applicant in this O.A is working as a Chief Office Superintendent (COS) in the office of the Southern Railway in Trivandrum Division. He submits that he should have been given seniority and promotion before the promotion of the Fourth Respondent one Shri V. S Suresh to the post of COS. The applicant is aggrieved by the letter dated 26.02.2018 produced at Annexure A1 issued by the Office of the Third respondent, by which, the said Fourth respondent Shri Suresh has been given retrospective promotion to the post of COS with effect from 03.07.2013. He submits that this is arbitrary, discriminatory and illegal and asks for the following relief:
"(i) Call for the records leading to the issue of Annexure A1 and quash the same, duly declaring that the 4 th respondent is not entitled to be considered for promotion with retrospective effect from 03.07.2013 in preference to the applicant and direct the respondents accordingly;
(ii) Direct the respondents to strictly adhere to para 4.4 of Annexure A2 Railway Board order in the matter of promotion to the fourth respondent against the vacancies existing as on 01.11.2013 and not to grant the said respondent the benefit of promotion anterior to the date of promotion of the applicant (i.e., 01.11.2013);
(iii) Award costs of and incidental to this Application;
(iv) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. The applicant was initially appointed as a Junior Clerk in July 1983 in the Southern Railway Trivandrum Division on an out of turn basis under the Sports Quota. He was promoted after that from time to time and was working as an Office Superintendent in the Pay Band II with GP 4200 with effect from 03.08.2006. He submits that the Railway Board, vide order RBE -3- No. 102 of 2013 dated 4.10.2013, had restructured certain Group C cadres in the Railways, including Ministerial cadres like him. A copy of the said Railway Board order has been produced at Annexure A2. He submits that the relevant portion in the Order dealing with ministerial staff is at Annexure F. Further, he draws attention to paragraph 4.4 of the Order which has outlined the method of filling vacancies which exist on the date of restructuring, to be given effect from 1.11.2013 as well as those vacancies which have arisen out of the restructuring. An extract of this paragraph 4.4 is as below:
"4.4. All vacancies (including chain/resultant vacancies) arising purely due to this cadre restructuring should be filled up by senior employees who should be given benefit of the promotion w.e.f 01.11.2013, whereas for the normal vacancies existing on 1.11.2013, junior employees should be posted by modified selection procedure but they will get promotion and higher pay from the date of taking over the post as per normal rules. Thus, the special benefit of the promotion w.e.f 1.11.2013 is available only for vacancies arising out of cadre restructuring and for the other vacancies, the normal rules of prospective promotion from the date of filling up of vacancy will apply."
3. The applicant submits that from paragraph 4.4 outlined above it is clear that while seniors considered for promotion against vacancies arising out of restructuring would be granted the benefit of promotion with effect from 1.11.2013, the juniors who have been promoted against the vacancies existing as on 1.11.2013 and those arising after 1.11.2013, would be granted the benefit of promotion only under the normal rules, i.e., from the date they shoulder the higher responsibilities. He submits that in light of the Railway Board Circular at Annexure A2, the 3 rd respondent had issued an Office Order dated 26.06.2014 which has been produced at Annexure A3. In this -4- Order he draws attention to Paragraph II.1(a), where his name appears at serial number 2. It has been clearly stated in the Order that the Office Superintendents like him and two others in Pay Band 9300-34800 plus GP 4200 are promoted as Chief Office Superintendents in Pay Band 9300- 34,800 plus GP 4600 against additional posts created consequent to the restructuring of the cadre with effect from 1.11.2013 and that they have been retained temporarily at their present station itself on an 'as is where is' basis till the pinpointing of posts are finalised. Further, he has drawn attention to the orders in respect of the Fourth respondent Shri VS Suresh in the same Office Order at Paragraph II.1(b) wherein, it has been stated that the said Shri V S Suresh, Office Superintendent in the pay band Rs.9300- 34,800 plus GP 4200 is promoted as Chief Office Superintendent in Pay Band 9300-34,800 + GP 4600 against an existing vacancy reserved for SC community. It is also been stated that his promotion will take effect from date of shouldering of higher responsibility.
4. It is submitted by the applicant that from the above orders at Annexure A3 it is clear that the said Shri V. S Suresh the Fourth respondent is the applicant's junior and that he is being considered for promotion only against an existing vacancy and that too with effect from the date he shoulders higher responsibility. After issue of these orders the applicant as well as the Fourth respondent had been continuing in the Divisional Office, Trivandrum as COS. To further establish the point that he is senior to the said Fourth respondent, the applicant has also furnished copies of two Seniority Lists published, as on 29.05.2015 as well as on 1.8.2017, at -5- Annexure A4 and Annexure A5 respectively. In the 2017 Seniority List at Annexure A5 the applicant is shown in the list of COS at serial No. 4 whereas the Fourth respondent Shri V. S. Suresh shown in the list of COS at serial number 5. This he submits, indicates clearly that the Fourth respondent was and has always been junior to the applicant
5. The applicant further submits that he came to know that the Fourth respondent had submitted a representation for antedating his promotion. The applicant submits that he apprehended that due to 'favouritism and other considerations' the Fourth respondent was likely to be promoted with effect from an anterior date overlooking his own priority and seniority. In view of this possibility, he submitted a detailed representation to the third respondent dated 20.3.2017 which is produced at Annexure A6. In the said representation he indicated that there was an attempt to antedate the promotion of the 4th respondent who is junior to him and that such action would be illegal and unsustainable. It is this representation which has been rejected by the respondents by the impugned order at Annexure A1. The impugned order states in the second paragraph that Shri Suresh, who is COS in the Trivandrum Division of the Southern Railway had not been considered for promotion with effect from 3.7.2013 as his APAR for the year 31.3.2013 was not available. It further states that now he is being considered for a promotion from 3.7.2013 against SC point duly obtaining required benchmark which he is eligible.
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6. In this connection the applicant has drawn attention to O.A 3746/2013 and connected cases, wherein the Principal Bench of this Tribunal in its order dated 22.1.2018, had held that reservation in promotion itself is not applicable in view of the absence of collection of quantifiable data as required under Article 16(4A) of the Constitution. A copy of the said Order in O.A 3746/2013 and connected O.As has been produced at Annexure A7. In this order the Principal Bench of this Tribunal has observed, after considering the orders of the Hon'ble Supreme Court in M Nagaraj and others v Union of India and others [2006 SCC 212] and noting the categorical finding of the Hon'ble Apex Court in M. Nagaraj (supra) and as explained in the matter of Suresh Chand Gautam v State of UP and others [ AIR 2016 SC 1321], that the state is not bound to make reservation for SCs and STs in matter of promotion. However, if the State wishes to exercise the discretion and make such provision, it has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It was held that since admittedly in the Railways or any other respondent department no such exercise is conducted, their action in following the rules of reservation in promotion is unjustifiable. The Principal Bench in O.A 3476/2013 directed the respondents to act in terms of M Nagaraj (supra), i.e., without following the rule of reservation in promotions and to redraw the promotional list/panels if already issued with all consequential benefits however without any back wages in the circumstances.
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7. It is to be noted however, that there have been subsequent judgments of the Hon'ble Apex Court in this matter. The applicant also submits that in the Annexure A2 Railway Board Order which has statutory force as it has been issued in exercise of the powers under Rule 123 of the IREC vested in the Railway Board, paragraph 4.4 has clearly specified that the vacancies existing as on 1.11.2013 and arising after 1.11.2013 should be filled only under normal rules. It is also been specified in the said circular that the junior most in the feeder cadre, who would be promoted against these vacancies, should be given the benefit of promotion only from the date he shoulders the higher responsibilities. It is submitted by the applicant that the Fourth respondent, who is junior to the applicant, was given the benefit of such promotion only with effect from 27.6.2014, the date on which he shouldered higher responsibility as is evident from Annexure A4 and Annexure A5. Thus, any attempt to give benefit of promotion in the vacancy which is existing as on 1.11.2013 to the Fourth Respondent with effect from 3.7.2013 is arbitrary and ultra-vires of the Annexure A2 Railway Board Order as well as violative of the constitutional guarantees.
8. It is submitted that the normal rules of promotion are that promotion can only be prospective in light of the paragraph 4.4 of Annexure A2, except where the Railway Board has specifically ordered as in the case of restructuring. Hence the impugned order at Annexure A1 to the extent that it says that proforma promotion would be given to Fourth respondent with effect from 3.7.2013 is arbitrary, discriminatory and contrary to the law. As a result of the proposed promotion with effect from 3.7.2013, the Fourth -8- respondent would jump over the applicant and be placed senior to the applicant, unlike what has been indicated in Annexure A4 and A5 Seniority Lists. This would have a further impact when it would come to promotional posts at the next level, i.e., to Group B Posts in PB2 plus GP 4800. In addition, the applicant has also later produced by way of a Miscellaneous Application the Annexure A8 communication from the Divisional Personnel Officer of the Trivandrum Division to the Divisional Commercial Manager, wherein, it has been specifically indicated that Shri V. S Suresh, COS is to be treated as senior to the applicant by virtue of his promotion on 03.07.2013 earlier than the applicant who was promoted on 01.11.2013. The applicant submits that the Annexure A8 Order was passed during the pendency of this Original Application. It would imply that now the applicant will have to be under the control of the Fourth respondent, who is otherwise junior to him by all standards. It is also submitted that the said assignment of seniority is also against the various judicial pronouncements on the subject.
9. The official Respondents at SI. No. 1 to 3 have filed a reply statement, wherein, it has been submitted that the applicant belongs to the General category and the Fourth Respondent belongs to the reserved category. As such, the Fourth Respondent has the right to be considered for the posts earmarked for Reserved Communities. Since the Fourth Respondent belongs to the Scheduled Caste community, and there was a vacancy as on 3.7.2013 against the quota earmarked for the Scheduled Caste community, he has been considered for the same. Hence, the applicant's -9- statement that the proposed retrospective promotion given to the Fourth Respondent is arbitrary, discriminatory and illegal is not true. The official respondents submits that this was done because, initially, the Fourth Respondent had been considered for promotion in July 2013 itself against the existing SC vacancy but was not given promotion, as he did not fulfil the requisite benchmark grading of 8 marks out of 10, due to the non availability of the Annual Performance Appraisal Report (APAR) for the year 2013. For effecting the promotion to the post of COS from OS, the previous three years APARs gradings, i.e., from 2011 to 2013 prior to the date of the promotion, had to be taken into account. However, the APAR grading of 2013 was made available only later and the Fourth Respondent had met with the requisite benchmark of 8 marks. Hence, he was correctly considered for promotion against the SC point available in July 2013. In this background, the Annexure A1 impugned order was issued in response to the Annexure A6 representation of the applicant, stating that the Fourth Respondent has been considered for promotion from 03.07.2013 against the SC point. It is submitted that the applicant, not belonging to the reserved category, has no right to claim the promotion post which is reserved only for SC category employee. It is also further submitted by the official respondents that the Paragraph 4.4 of Annexure A2 is applicable to the restructured posts and the existing vacancies as on 1.11.2013 only.
10. Regarding the submissions made about the Hon'ble Apex Court judgment in Shri M. Nagaraj (supra), the official respondents pointed out that the Hon'ble Supreme Court had not passed any order of a blanket ban -10- on reservations in promotion. What the Hon'ble Supreme Court had ordered was that the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335, before giving reservation in promotion. It is submitted that the issue of reservation in Government service as well as reservation in promotion for the Reserve Community Employees are settled legal propositions and, as such, the applicant cannot challenge the same. Article 16(4A) had been inserted by the 87th Constitutional Amendment Act 2001. Hence, there was no illegality in giving promotion to the Fourth Respondent with retrospective effect against the post earmarked for a Scheduled Caste. Further, it is submitted that periodical data relating to the adequacy of SC/ST employees in services are collected and the reserved category employees are promoted and posted against the quota reserved for them, without exceeding the outer limit of 50% of the total posts, unless they are recruited against merit. In view of this position, it is submitted that the issue of the Annexure A1 letter cannot be termed as ultra vires to the Annexure A2 Railway Board Order and the normal rules of promotion.
11. The respondents draw attention to two cases. In Dr. Sat Pal v State of Punjab and Ors [2014 (96) SLR 684 (PB and HRY)], the Hon'ble Punjab and Haryana High Court had observed that merely because the general candidate is more qualified and experienced should not be a circumstance to dislodge legitimate claim of Scheduled Caste candidate if such less qualified or less experienced competitor is otherwise found to be eligible. In -11- short it was held that a general candidate cannot be allowed to discard legitimate claim of a reserve candidate merely by claiming himself to be more qualified and experienced than the reserve candidate. Further, in the case of Jarnail Singh and others v Laxmi Narayan Gupta and others SLP(C) 30621/2011, on 17.05.2018 the Hon'ble Supreme Court had observed that the pendency of this Special Leave Petition does not stand in the way of Union of India taking steps for the purpose of promotion from reserved to reserved and unreserved to reserve and also in the matter of promotion on merits. Thus, it is submitted that in view of these cases too, the O.A may be dismissed.
12. The Fourth Respondent has also filed a reply statement, wherein, he has submitted, as also done by the official respondents that he belongs to the Reserve Community and the applicant belongs to the General Category. Since he belongs to the Scheduled Caste Community, when a vacancy arose on 3.7.2013, he was to be considered in that post. The applicant does not belong to the said category and has, therefore, no right to claim the promotion posts reserved for SC category employee. The Fourth Respondent submits that he should have been considered, even earlier, for the promotion to Chief Office Superintendent (COS) in the SC vacancy. Since he was not considered, he had made a representation as at Annexure R4(a), but the same was not allowed. His repeated representations in the year 2016 and 2017 also did not yield any result. All these representations have been produced by him at Annexures R4(b) and R4(c). Finally, he had taken up the issue with the SC/ST Employees Association, who then took it -12- up with the official respondents vide Annexure R4(d). It was only after that the Annexure A1 Order was issued promoting him with effect from 3.7.2013. It is submitted by the Fourth Respondent that his APAR was not available in 2013 to consider him for promotion, as stated by the official respondents. Later, when the same was made available, he had been considered for the promotion in July 2013 against the entitled SC vacancy because he had met with the required benchmark of 8 marks. Thus he submits that the contention raised by the applicant that he was wrongly considered for the proforma promotion from 3.7.2013 cannot be sustained, because of the reasons that he had the required benchmark of 8 marks and also belongs to SC category.
13. In a Rejoinder filed by the applicant, the same position as stated above in the O.A is reiterated. He submits that the said vacancy on 03.07.2013 was not one which had arisen as a result of restructuring ordered with effect from 1.11.2013. The Fourth Respondent had been considered for promotion for the post of COS in 2013 against the SC vacancy, but had not been promoted as he did not have the requisite benchmark. Once he was not promoted, he was therefore to be considered junior to the applicant in the cadre of Office Superintendent. At the time of the implementation of the Annexure A2 order the applicant and the Fourth Respondent were considered together for promotion of the post of COS. The applicant, as the senior employee, was first promoted with effect from 1.11.2013 against the restructured vacancy. The Fourth respondent, as the junior employee, was promoted only with effect from 27.6.2014 which is the date he shouldered -13- the higher responsibility of the vacancy, which even according to the official respondents, was in existence as on 1.11.2013. Thus, the said vacancy as on 03.07.2013 was not one which had arisen as a result of restructuring ordered with effect from 1.1.2013 in the cadre of COS. The applicant is thus to be taken as senior to the Fourth Respondent who is junior to him. Further, no review DPC had been conducted, nor was the case of the Fourth Respondent reconsidered by any Competent Authority or Committee constituted in accordance with law. The action of promoting the Fourth Respondent with retrospective effect is not based on any relevant considerations or material. The Annexure A8 order issued to advance the date of promotion granted to the Fourth Respondent from 27.6.2014 to 3.7.2013 is without assigning any reasons. The applicant submits that the said advancement of the date of promotion of the Fourth Respondent has unsettled the settled seniority of the applicant, which is causing prejudice. Hence, the upsetting of the settled seniority contrary to the directions in Annexure A2 Railway Board Order is arbitrary and discriminatory.
14. We have heard both sides and seen the documents which have been provided. From these documents it does not appears to us that there has been any mistake committed by the respondents in allowing the promotion of the Fourth Respondent with effect from the earlier date of 3.7.2013. It has been clearly mentioned that there had been a Scheduled Caste vacancy in the grade of COS which was available on that date. It was only due to the non-availability of the concerned APAR of the Fourth Respondent at that time, (which was not due to his fault) that the Fourth respondent who was -14- the senior most Scheduled Caste candidate in the grade of Office Superintendent had not been considered contemporaneously for promotion. Later, after the necessary documents were made available, and after due consideration, the Fourth Respondent was given the effect of promotion from 03.07.2013. In addition, the Annexure A2 orders have come into effect with effect from 1.11.2013 and the Paragraph 4.4 is applicable to the vacancies arising out of restructuring and the vacancies which were existing at the point of time. It cannot be taken that the vacancy which had arisen on 03.07.2013, which was reserved for a SC Community, can be considered to be existing as on 01.11.2013 as it had been considered for promotion of the Fourth respondent but not acted upon due to non-availability of one APAR at the precise point of time. As we stated this fact cannot be held against the Fourth Respondent.
15. Hence, to our mind there has been no illegality committed by giving promotion to the Fourth Respondent from the date of 3.7.2013. Further, in such situations employees who are promoted against Reserved Category vacancies do often overtake the employees who are in General Categories. This is something which has always been there and there are several reasons to justify this as has been brought out by the respondents. The orders in M Nagaraj (supra) as well as in other more recent cases do not explicitly ban such roster-based promotions in case there is adequate information/data available to show that the presence of the people from the Reserved Categories in higher posts is not reflective of their general presence in the population. In this case since the promotion was against a specific point -15- earmarked in the roster for the SC community, it does not appear that the said promotion has violated any of the rules or guidelines related to such promotions, or that, as a result of this any judgment of the Hon'ble Apex Court have also been interdicted.
16. We do not find, therefore, in view of the above considerations, that there is any scope for a relook at the matter. We cannot, therefore, find in favour of the applicant.
17. The O.A is accordingly dismissed. No order as to costs.
(Dated this the 25th day of November 2022)
K.V.EAPEN JUSTICE K. HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp
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List of Annexures
Annexure A-1 - A true copy of Letter bearing No. V/P.535/III/Comml/O.C/Vol.VI
dated 26.02.2018, issued from the office of the 3rd respondent. Annexure A-2 - A true copy of Railway Board order bearing RBE No. 102/2013 dated 08.10.2013.
Annexure A-3 - A true copy of Office order bearing No. 15/2014/TE dated 26.06.2014, issued from the office of the 3rd respondent. Annexure A-4 - A true copy of provisional seniority list as on 01.08.2015 communicated from the office of the 3rd respondent under No. V/P.535/III/CommlO.C/Vol.VI dated 29.05.2015.
Annexure A-5 - A true copy of seniority list published as on 01.08.2017 from the office of the 3 respondent under No. V/P.621/III/Seniority/Clerical/Comml. Dated rd 01.08.2017.
Annexure A-6 - A true copy of detailed representation submitted to the 3 rd respondent, dated 20.03.2017.
Annexure A-7 - A true copy of order of the Principal Bench of this Tribunal in O.A No. 3476/2013 and connected cases dated 22.01.2018.
Annexure A-8 - True copy of the communication bearing No. V/P621/III/Seniority/clerical/Comml. Dated 09.04.2018 issued Sr. DPT/TVC. Annexure R-4(a)- True copy of the representation dated 29.10.2018. Annexure R-4(b)- True copy of the representation dated 09.06.2016. Annexure R-4(c)- True copy of the representation dated 09.08.2017. Annexure R-4(d)- True copy of the communication forwarded to the 3rd respondent by the Secretary of the Association.
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