Central Administrative Tribunal - Delhi
Shri Santosh Ku. Agarwal vs Ministry Of Railways on 9 May, 2014
Central Administrative Tribunal
Principal Bench
O.A.No.4366/2013
with
O.A.No.270/2014
New Delhi, this the 9th day of May, 2014
Honble Shri G. George Paracken, Member (J)
Honble Shri P.K. Basu, Member (A)
O.A.No.4366/2013
1. Shri Santosh Ku. Agarwal
S/o late Shri Hiralal Agarwal
Aged about 52 years,
R/o 13-D, Railway Board Officers Flat
Bir Tikendrajit Marg,
Chanakyapuri, New Delhi
2. Shri Uma Shankar S Yadav
S/o D.N.S. Yadav
Aged about 52 years,
R/o Bungalow No. 20
Kauwa Bagh, Railway Colony,
Gorakhpur, U.P.-273012 .Applicants
(Through Mr. Ajit Singh, Advocate)
Versus
1. Ministry of Railways
Through the Secretary
Railway Board, Rail Bhawan,
Raisina Road, New Delhi-1
2. The Chairman
Railway Board, Rail Bhawan,
Raisina Road,
New Delhi-1 ....Respondents
(Through Mr.R.L. Dhawan and Mr.VSR Krishna, Advocates)
O.A.No.270/2014
Sh. Rajesh K. Tripathi
S/o late Shri Sharad Bhushan Tripathi
Aged about 52 years
5-B, Railway Board Flats,
Sarojini Nagar, New Delhi-23 .Applicant
(Through Mr. Ajit Singh, Advocate)
Versus
1. Ministry of Railways
Through the Secretary
Railway Board, Rail Bhawan,
Raisina Road, New Delhi-1
2. The Chairman
Railway Board, Rail Bhawan,
Raisina Road,
New Delhi-1 ....Respondents
(Through Mr.R.L. Dhawan and Mr.VSR Krishna, Advocates)
ORDER
Shri P.K. Basu, Member (A) Since both OA No.4366/2013 and OA No.270/2014 raise the same issue, they are being disposed off by this common order.
2. The applicants belong to Indian Railways Service of Engineers (IRSE) of 1982 batch. The railway prepares a shortlist of officers of different categories i.e. IRSE, IRTS, IRSME etc. every year through which shortlisted officers are posted as Divisional Railway Managers (DRM) in the railways. For the year 2012-13, the applicants were included in one such shortlist under the IRSE category and were placed at serial number 3, 5 and 6. Similarly, there were other shortlisted candidates from other streams. This shortlist was finalized on 26.03.2013. The applicants have filed this OA seeking the relief that the respondents be directed to provide the details of guidelines adopted for formation of DRM panel and also to keep the DRM shortlist of 2012-13 in continuation for a minimum duration of one year from the date of formation of the said panel with further direction that any further posting order with respect to the post of DRM be made from the shortlist of 2012-13. The applicants have also prayed that the formation of any other DRM panel for the year 2013-14 be withheld.
3. The matter was fixed for hearing on interim relief on 17.12.2013 and the respondents were asked to file reply/ instructions. The next date was fixed for 24.12.2013. However, before the matter could be heard on interim relief, the respondents issued order dated 20.12.2013 posting 16 officers as DRM out of the 2013-14 shortlist. The applicants allege this this was done by the respondents just to frustrate the claim of the applicants. The Tribunal stayed any further postings from the panel of 2013-14 on 24.12.2013.
4. The applicants state that the attitude of the respondents shows their malafide intention as when the matter was posted for hearing on interim relief on 24.12.2013, there was no hurry to issue the order dated 20.12.2013 especially because in earlier years such as 2011-12, the respondents have kept the shortlists operational for more than a year whereas in the present case, despite the fact that the matter is before the Tribunal, hurriedly a shortlist was formed and posting order issued.
5. The applicants case is that the significance of posting as DRM is because for the higher post of General Manager (GM), there are 26 posts of GMs out of which 16 posts are of GM (OL), which 16 posts will not be available as promotional avenue to the applicants as those who have not been posted as DRM, are not eligible to be considered for the posts of GM (OL). Therefore, by not exhausting the 2012-13 shortlist and suddenly introducing the 2013-14 shortlist, the applicants opportunity of promotion as GM later on would be restricted. In fact, it is argued that 21 officers had been posted from the shortlist of 2012-13 vide order dated 20.07.2013, therefore, there was no need for the respondents to scrap that shortlist and form a fresh shortlist and issue fresh posting from a fresh shortlist, just after five months. Posting order dated 26.06.2010 has also been produced as Annexure A-2 in which it is stated that officers at serial number 7 Shri P.K. Sanghi, serial number 9 Shri A.K. Manocha and serial number 12 Shri P.V. Vaidialingam had all crossed the age of 52 years as on that date (the cut off age for eligibility to be posted as DRM), though the respondents claim that anybody beyond 52 years is not considered for posting as DRM. By formation of this new panel, the applicants became ineligible because they have crossed 52 years of age.
6. The applicants, therefore, state that they have been discriminated against by the respondents by not continuing with the 2012-13 shortlist and suddenly drawing the 2013-14 shortlist by which time the applicants crossed 52 years. It was argued that from 2013-14 list, Shri Anand Prakash of 1982 batch, Shri Alok Kansal of 1983 batch, Shri Om Prakash Singh (SC) of 1983 batch and Shri Rajesh Argal of 1984 batch have been posted as DRM out of 16 officers posted vide order dated 20.12.2013. While Shri Anand Prakash is junior to one of the applicants Shri Rajesh K. Tripathi, Shri Shri Alok Kansal, Shri Om Prakash Singh and Shri Rajesh Argal are junior to all the three applicants (all 1982 batch officers).
7. The applicants further stated that in the case of Shri M.K. Gupta Vs. The Union of India and others, OA No.522/2013, the Mumbai Bench of the Central Administrative Tribunal, in similar circumstances, while holding that the respondents had failed to act as a model employer, observed as follows:
In our considered view, there is a serious lack of transparency in the decision on posting of DRMs. There is no discussion in the note file to examine/ analyse the merits and demerits of any candidate.
8. The respondents, first of all, state that the guidelines prescribed by the railway Board for posting of DRMs, as amended from time to time, read as follows:
(i) Postings of DRMs should be made by considering the suitability of SAG officers of all departments batch by batch. From each department, from one batch year, a maximum around six (o6) officers should be picked up for posting of DRMs;
(ii) Officers to be posted as DRMs should have generally `Very Good+. They should have been assessed as `Outstanding at least twice and should have a minimum of 2 clearances for posting as DRM including one clearance in the latest ACR or should have a minimum of 3 clearances including 1 in the latest 2 ACRs;
(iii) Normally, at one time, officers of one department should not occupy more than 18 posts of DRMs;
(iv) Normally, officers with around 22-26 years Group `A should be selected for posting as DRMs, on recognition of the fact that the task is arduous and the relatively younger officers would be preferable for the same. However, officers with longer service who have age in their favour and have missed the chance of working as DRM should also be considered for posting as DRM;
(v) The normal tenure of a DRM should be around 2-3 years;
(vi) While posting officers as DRMs, care should be taken to see that in each batch those with excellent record and age in their favour should be posted to heavier Divisions so as to gain valuable experience.
2. An upper age of 52 years should be observed for posting of officers as DRMs.
3. Officers who refuse posting as DRMs should not be considered for such posting for a period of two years from the date of refusal.
4. Only SA Grade officers should be posted as DRMs.
9. There is an age limit of 52 years for posting as DRM. Secondly, from each department, from one batch, a maximum of six officers should be picked up for posting as DRM. Therefore, officers are picked up from different short lists depending upon the persons already functioning as DRM from that caregory. Since from the IRSE quota, Shri Sudhir Agarwal and Shri Sanjeev Mittal were senior to the applicants, they were posted as DRM. There is no guarantee that even if 2012-13 list is valid, the applicants will be posted as DRM. It was vehemently emphasized that the post of DRM is not a promotional post and, therefore, the applicants cannot claim as a matter of right to be posted as DRM. It was further argued that the age of 52 years is with respect to the cut off date which is 1st July and it may happen that by the time a person is posted after all the formalities etc., he may have crossed the age of 52 years as has happened in the case of following officers:
S.No. Name Date of birth as in A-2 Age On 1.04.09* On 26.06.2010 3. J.N. Jha 5.1.1958 Less than 52 yrs. 52 yrs. 5 months 7. P.K. Sanghi 6.9.1957 - do - 52 yrs. 9 months 9. A.K. Manocha 30.7.1957 - do - 52 yrs. 8 months 10. S.S. Gupta 3.3.1958 - do- 52 yrs. 3 months 12. P.D Vaidialingam 5.6.1958 - do - 52 yrs. 21 days 21. R. Kuppan 20.9.1957 - do - 52 yrs. 9 months *cut off date later changed to 1st July
10. Therefore, since the applicants were not below 52 years on the cut-off date of 1st July, they could not have been included. On the question of why 2012-13 panel was not valid for one year, the respondents state that there is no hard and fast rule how long a shortlist would be valid as seen from the following data:
S. No. Year Date of Approval
1. 2009-10 06.10.09
2. 2010-11 05.02.11
3. 2011-12 14.07.12
4. 2012-13 26.03.13
5. 2013-14 08.11.13
11. It was further argued that in case this Tribunal now directs the respondents to go by 2012-13 shortlist, a chaotic situation would be created in the Ministry of Railways as some officers have been posted from 2013-14 panel and 2014-15 panel is also due, therefore, at best, the Tribunal may direct the Ministry of Railways to formulate a clear cut detailed policy on posting of DRMs.
12. The respondents also relied on order dated 11.04.2012 in OA 1248/2010. This application had been filed by 17 persons who had been selected for Research, Designs and Standards Organization (RDSO) at that time, which was an attached office of the Ministry of Railways. The gist of that case is summarized in the following paragraphs of that order:
5. .as an attached Office of the Ministry of Railways, the ministerial cadre of the RDSO was based on the pattern in the Railway Board and the Central Secretariat Service. It was a 3-tier structure of LDC, UDC and Assistant. The applicants fell in the category of Assistants (Rs.5500-9000). As a result of the change in the status of RDSO to that of a Subordinate Office on the pattern of Zonal Railways, a 6-tier structure came into being in the ministerial cadre i.e. comprising Junior Clerks, Senior Clerks, Head Clerks, Office Superintendent Grade-II, OS Grade-I and the Chief Superintendent. The applicants were placed as OS Grade-II in the scale of Rs.5500-9000. Their further promotional channels were as OS-I (Rs.6500-10500) and Chief Superintendent (Rs.7450-11500).
It is stated that because of these structural changes in the ministerial cadre of the RDSO there have been changed channels of progression and redistribution of the duties and responsibilities among the posts pertaining to various grades. Under the changed pattern the posts of Assistants (new OS-II) in the RDSO remain no more comparable to the Assistants in the Central Secretariat/ the Railway Board.
Emphasizing that the channel of progression and nature of duties and responsibilities are among the prime determinants for grant of pay scale to a category, the law laid by the Apex Court in the Judgment in S.C. Chandra & Ors. Versus State of Jharkhand & Ors. [JT-2007 (10) 4SC 272) of the prerequisite of complete and wholesale identity between two groups for a sustainable claim of pay parity has been invoked.
It is also stated that the applicants have been allowed to retain `Group-B Non-Gazetted classification on personal basis; hence it is not a case of any anomaly as such. For these reasons, the claims of the applicants for parity with CSS/ RBSS Assists and for grant of Apex Group `C scale have been viewed to be without any substance.
6. In the instant OA, the thrust of the applicants arguments is on the loss of status and adverse impact on the promotional prospects The respondents logic seems to be that since the claims of the applicants in the cited case were rejected, in the instant matter also, since the claim is based on the logic that not being selected as DRM affects future promotional prospects as GM (OL), the principle laid down in OA 1248/2010 will apply in this case as well. Another issue raised by the respondents is that Union of India should have been made a party and in this regard clause 4 of Section 79 of CPC was cited along with the judgment of the Honble Supreme Court in Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi, AIR 1977 SC 1701. We are not, however, persuaded by this argument as Section 22 of the Administrative Tribunals Act, 1985 clearly stipulates that this Tribunal shall have power to regulate its own procedure and not bound by the procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by principles of natural justice. The Ministry of Railways has been made a party along with Chairman, Railway Board. The absence of `Union of India is a mere technicality.
13. We have heard the learned counsel for the parties and also perused the relevant record and the judgments cited.
14. The fact is that DRMs post is a very important post for a railway officer and denying that post to anybody who would otherwise be eligible is definitely hurting the service prospects of that railway officer. This becomes more significant because unless a person is posted as DRM, he cannot be considered for 16 posts of GM (OL), thus restricting his promotional prospects. It is, therefore, necessary that the railway adopts transparent and fair procedure regarding their policy by posting an officer as DRM. What appears from the facts of the case is that the railway has not been very consistent. Sometimes shortlists have been kept live for more than a year and in the present case, within five months of issuing promotion order from 2012-13 panel, much before the completion of the year, a fresh panel is created and posting order of 16 persons promoting them as DRM is issued. The arbitrariness of the action is clear from the fact that when the matter was to be heard on the prayer of consideration of interim relief, respondents quickly issued the posting orders of 16 DRMs out of the 2013-14 panel on 20.12.2013 before the date fixed i.e. 24.12.2013. This is not how a model employer like the Ministry of Railways should have acted. While we accept that nobody junior to the applicants has been picked up from the IRSE panel of 2012-13, on account of this rush job, several persons junior to the applicants as a result of getting into 2013-14 panel got the job of DRM, thus prejudicing the applicants career prospects. It is a fact that there have been cases where officers eligible on the date of panel got the promotion as DRM when they have crossed the age of 52 years. So when 2012-13 panel was live on 20.12.2013, the applicants should have been posted as DRM instead of the four IRSE junior officers who have been promoted from 2013-14 panel.
15. We agree with the applicants that the exercise of hurriedly preparing the panel and issuing posting orders was just to frustrate the case of the applicants in these OAs and was not required due to some exigency of administration. Moreover, the Bombay Bench of the Central Administrative Tribunal has also found that there is a severe lack of transparency in the posting of DRMs. It was a pure whimsical exercise on the part of the authorities. We also do not accept the plea of the respondents that utter chaos would prevail if any order is passed by the Tribunal to hold back posting of officers promoted as DRMs. There is no denying the fact that the applicants are senior to some of those who have been posted as DRM. They are competent and, therefore, are in the shortlist and it is only the arbitrary behavior of the respondents that they have been discriminated against in the posting as DRM.
16. We also do not agree with the learned counsel for the respondents that the order in OA 1248/2010 will apply in this case also. The facts and circumstances of both the cases are completely different. Just because one leg of the grounds in both the cases is similar (that the claim is based on the logic that promotional aspects get affected) that the order of OA 1248/2010 should apply in this case is a very specious argument and we are not persuaded by it.
17. We find merit in the OA and hold that the respondents have acted in a very arbitrary and prejudiced manner which needs to be rectified. The respondents no.1 and 2 are, therefore, directed to post the applicants as DRM whenever they issue the next order of posting and immediately draft a clear cut policy of posting of DRMs. Till such time the aforesaid exercise is undertaken, 2012-13 panel will be valid. As regards 2013-14 shortlist bearing names of 16 officers who have already been posted as DRM, in order to avoid any administrative problems for the Railways, we observe that they may be allowed to continue as such but the balance panel will remain inoperative. No costs.
( P.K. Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/