Central Administrative Tribunal - Madras
Anurag Raj vs M/O Railways on 10 January, 2024
ae 1 OA 952/2023 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/00952/2023 . Dated \S day the Wedday of January Two Thousand Twenty Four CORAM : HON'BLE SMT. LATA BASWARAJ PATNE, Member (J) & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A) 1) Anurag Raj, Hospital Assistant, HQrs Railway Hospital Southern Railway, Perambur, Chennai-600 023. 2) Munna Kumar, Hospital Assistant, HOQrs Railway Hospital Southern Railway, Perambur, Chennai-600 023. 3) Sourabh Kurmar, H Hospital Assistant, HQrs Railway Hospital Southern Railway, Perambur, Chennai-600 023, 4) Shankar Kumar, Hospital Assistant, HQrs Railway Hospital Southern Railway, Perambur, Chennai-600 023.2 5) Prakash Chandra Kumar, Hospital Assistant, HOrs Railway Hospital Southern Railway, Perambar, Chennai-600 023. 6) Shubham Gangare, Hospital Assistant, HOrs Railway Hospital Southern Railway, Perambur, Chennai-600 023 ... Applicant By Advocate M/s.R.Pandian NO OA 952/2023 Vs 1) Union of India rep. By General Manager, Southern Railway, Park Town, Chennai-600003. 2) Principal Chief Personnel Officer, Southern Railway, Park Town, Chennai-600 003. ... Respondents By Advocates Mr. M.Kishore Kumar SPC 3 OA 952/2023 ORDER
(Pronounced by Hon'ble Smt.Lata Baswaraj Patne, Member(3)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"To call for all the records leading to the issue of:
(1} Notification No. P(RT)608/IrClerk/16 2/3%/2022-23 dated 16.08.2023 by the 2nd Respondent (ist impugned Order);
{2} Orders of Rejection of the Candidature of the Applicants (Letter No.nil dated nil) for Selection to the post of Junior Clerk in Pay Matrix Level 2 of VII CPC against 162/3% LDCE Quota {Impugned Orders 2(a} to (f}); and {3) Alert Notice No. P(RT}608/JrClerk/16 2/3%/2022-23 dated 18.10.2023 by the 2nd Respondent (3rd [mpugned Order),and consequently,-
{}Quash and set aside Notification No. P(RT)608/JrClerk/16 2/3%/2022-23 dated 16.08.2023 issued by the 2nd Respondent (ist Impugned Order) and Alert Notice No. P(RT)608/Ir.Clerk/16 2/3%/2022-23 dated 18.10.2023 by the 2nd Respondent (3rd Impugned Order), to the extent these Orders exclude the Applicants from eligibility for the Selection;
(ii) Quash and set aside the Orders of Rejection of the Candidature of the Applicants (Letter No. nil dated nil) for Selection to the post of Junior Clerk in Pay Matrix Level 2 of VII CPC against 162/3% LDCE Quota (impugned Orders 2{a) to (f));
(iii) Direct the Respondents to admit the Applicants for the Selection; and
(iv)Pass such other orderforders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. The brief facts of the case, as stated by the applicant, are as follows:
The Applicants were appointed to the post of Safaiwala in the Medical Department of Head Quarters Unit of Southern Railway during the year 2016, after due selection by Railway Recruitment Cell, Chennai.
Subsequently, the designation of the post of Safaiwala of Medical O 4 OA 952/2023 Department was revised as "House Keeping Assistant" by the Railway Board, vide their Order RBE 163/2018. The Seniority List for the posts of House Keeping Assistant and those working as Hospital Assistants, in Level 1 (VII CPC) of the Medical Department of the Head Quarters Unit of the Southern Railway is @ common one, as published by the 2nd Respondent, vide No.P(S)612/VIII/HKA, dated 14.07.2023. The 2nd Respondent issued a Notification, dated 16.08.2023, for filling up of vacancies of Junior Clerks in Pay Matrix Level 2 of VII CPC against 16 2/3% LDCE Quota, calling for applications from willing eligible employees. Though the Applicants submitted their applications as they are eligible, being Matriculates with 2 years of regular service, their candidature has been rejected without assigning any reason, whereas the names of two other employees who are juniors to the Applicants have been included in the List of eligible employees. As the Written Test, as a part of the Selection Process, is to be held shortly and the candidature of the Applicants has been rejected without assigning any reason, the applicants have filed the present OA seeking the aforesaid relief.
3. After notice, respondents have entered appearance through their counsel, and filed their reply and opposed the relief. The respondents contended that the seniority list for the posts of Safaiwalas (House Keeping Assistants) and Hospital Attendants (Hospital Assistants) were issued as a common seniority list only in 2023, after the Railway Board had clarified, vide letter, dated 28.06.2023, inter- alia, that Hospital Assistants in Level-1 are to be treated as Direct Recruitment posts, 5 OA 952/2023 instead of promotional posts to Safaiwalas. Board had further reiterated, vide the said letter that all the erstwhile Group 'D' categories, like Hospital Attendants, Orderlies, Dispensary Peons, Stretcher Bearers, Watchman, Safaiwalas or Sanitary Cleaners, etc., which are eligible otherwise in terms of para 182 of the IREM Vol.1, will continue to be eligible to appear in the selection for promotion as Dresser GriII/OTA GrIII along with Hospital Attendants against 50% promotion vacancies. The posts of Safaiwala had been redesignated as House Keeping Assistant and the designations, Lab Attendants, Hospital Attendants, Stretcher Bearer, Dhobi, Bhisty, Peon, Jamadar, Peon, etc., were redesignated as Hospital Assistants, vide RBE No,201/2018, dated 27.12.2018. Accordingly, a conscious decision was taken by the Southern Railway to issue common inter-se seniority list for the posts of House Keeping Assistants and Hospital Assistants, vide letter, dated 14.07.2023.
3,1. The respondents further submitted that the applicants have annexed a notification, dated 23.06.2022, for the post of Junior Clerk issued by another Production Unit, operating under the Ministry of Railways, viz., Integral Coach Factory (in short, ICF). In this regard, it is submitted that the applicants have annexed a copy of Para 174 of the Indian Railway Establishment Manual, wherein it is stipulated as follows:
174(1) The posts in the category of Office Clerks in the pay scale Rs.3050- 4500 will be filled as under:
fi) (50% by direct recruitment through Railway Recruitment Board, {it} 33 1/3 % by promotion by a process of selection from eligible ' 3.2 6 OA 952/2023 Group "D categories of staff as specified by the Zonal Railways as per procedure prescribed in para 189, and
(iii) 16 2/3 % by promotion entirety on merit of Matriculate Group D employees from eligible categories, as specified the Zonal Railways for (ii) above, with a minimum of 2 years regular service in the concerned seniority unit on the basis of a competitive examination _ consisting of Written Test and Record of Service of 85 and 15 marks respectively. Authority Railway Boards letter No. ECNG)E-
2003/CFP/2 dated 22.9.2003) It is clearly evident from the above stipulation that the Railway Board has delegated the power to decide the eligible categories to the Zonal Railways. Each Zonal Railway/Production Unit has the right to decide and lay down the eligible categories, based on their unique requirements, after following due procedure. In the facts of this case, comparison between notifications issued by one Zonal Railway with that in another Production Unit, is not permissible. In this regard, it is submitted that in the case of Harbans Lal & Ors. v. State of Himachal Pradesh & Ors., (1989) 4 SCC 459, the Hon'ble Supreme Court has held as under:
"The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of equal pay for equal work cannot be enforced." (Emphasis Supplied).7 OA 952/2023
3.3. The respondents further submitted that the applicants have no right to seek judicial Interference with the policy decision taken by the railway administration. The Hon'ble Supreme Court has held on 11.04.2007, in Civil Appeal No. 1892 of 2007, as follows:
"14. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review [vide Asif Hameed v. State of J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd.. v. Union . of India - 1990 (3) SCC 223; Khoday Distilleries v. State of Kamataka - 1996 (10) SCC 304, Balco Employees Union v. Union of India - 2002 (2) SCC 333), State of Orissa vs. Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva Sangh vs. State of Andhra Pradesh- 2006 (4) SCC 162]."
3.4 The respondents further submitted that, in a similar Original Application No,1121/2019, decided on 01.10.2019, this Hon'ble Tribunal! was pleased to pronounce that the post of Hospital Attendant does not come under the category of Group 'D' category "for whom no regular avenue of promotion exists" and uphold the rejection of Hospital Attendants for selection to the post of Junior Clerk in Southern Railway Headquarters. Hence, they prayed for dismissal of the OA.
4, Heard learned counsels, MrR.Pandian for the applicant and Mr. M.Kishore Kumar for the respondents.
4) 8 OA 952/2023
5. The applicant has challenged the notification as well as the select list by filing this Original Application on 03.11.2023. it is to be noted that in the impugned notification, the category of Hospital Assistant was not notified. it is also to be noted that in other regions, the said category is specifically notified. Therefore, the applicant does not have a right to claim that the post which is held by the applicant as Hospital Assistant has to be notified which was followed by the department earlier or in other zones and the said post of Hospital Assistant has to be notified. It is also to be noted that while dealing with a similar issue, this Tribunal, vide its order, dated 01.10.2019, in OA 1121/2019, has considered at length and dismissed the OA. The relevant para of the said OA is extracted hereunder:
"4, We have heard both sides and perused the records along with the OA. On a perusal of the pleadings and records, we find that the point for consideration is whether a "Hospitel Attendant" can apply for the post of Junior Clerk which is . reserved for Safaiwalas of the Medical Department. The applicant in this case mainly rely upon the para 189 of IREM for claiming promotion to the post. Para 189 of IREM reads as follows:- "189. Promotion to higher grades in Group 'C':-
Railway servants in Group 'D' categories for whom no regular avenue of promotion exists 33-1/3% of the posts in the lowest grade of Commercial Clerks, Ticket Collectors, Trains Clerks, Office Clerks, Stores Clerks, etc, should be earmarked for promotion. The quota for promotion of Group 'D' staff in the Accounts Deptts. to Group 'C' post of Accounts Clerks will be 25%." if we go through the said IREM Rule, it can be seen that Railway servant in Group 'D' category for whom no regular avenue of promotion exists 33-1/3% of the posts in the lowest grade of Commercial Clerks, Ticket Collectors, Trains Clerks, Office Clerks, Stores Clerks etc. can be
- earmarked for promotion. Here, according to the respondents, the applicant has changed over to the post of Hospite! Attendant on his own request and the respondents had appointed him as Hospital Attendant as per order dated 9 OA 952/2023 01.3.19 and the applicant has joined as Hospital Attendant.
According to the respondents, the post of Hospital Attendant has its own regular avenue of promotion i.e. as Dresser Grade III, Dresser Grade II, Dresser Grade I and Pharmacist. So, the post of Hospital Attendant does not come under the category of Group 'D' category "for whom no regular avenue of ' promotion exists." Further, we have also come across Annexures Ri and R2 produced by the respondents in this case. If we go through Annexure Ri, it can be seen that the Railway Board has considered the lack of promotional avenues for Safaiwalas and Jamadars and a Committee was constituted with 5 SAG level officers and 2 representatives from both the Federations to review the existing channel of promotion for Safaiwalas/Jamadars. The said recommendations were accepted by the Board and it had issued Annexure R2 letter PBC No.60/2017 dated 08.5.2017. It is specifically mentioned in Point No.3 that Ministerial vacancies [In Medical Department will be exclusively thrown open only to Safaiwala's of Medical Department subject to their fitness in selection etc. against 33 1/3% quota in for which separate selection will be conducted, _ It clearly shows that the Committee studied the lack of promotional avenues for Safaiwalas and had recommended the Ministerial vacancies of Medical Department for giving to Safaiwalas'' of the Medical Department. Safaiwalas does not have any regular promotional avenue and it is only because of that the Ministerial vacancies of the same department are set apart for the promotion of Safaiwalas. We do not find any arbitrariness or injustice in doing the same. As regards the Hospital Attendants' are concerned, they have their own separate avenues of promotions. The applicant in this case has volunteered for the post of Hospital Attendant and he was considered by the competent authority and he was posted as Hospital Attendant as per order dated 01.3.19 along with 28 other Safaiwalas who were working then. So, the applicant has come to the post of Hospital Attendant on his own volition _ and he is expected to get the promotional avenues attached to the same. He cannot revert back to the post of Safaiwala for applying to the post of Junior Clerk. It is only because of that the respondents had rejected the application filed by the applicant in this case. We do not find any arbitrariness or legality in the notification for the selection of Junior Clerk produced as Annexure A4 and the rejection of the representation given by the applicant and others which is produced as Annexure A6 in this case. There is no merit in the contention put forward by the applicant in this case. There is no merit in the relief sought before this Tribunal. So, we find that the OA is misconceived and it is liable to be dismissed. 5.
10 OA 952/2023Accordingly, OA is dismissed. No costs."
6. The above said order of this Tribunal is squarely applicable to the case of the present applicant and, hence, we do not find any merit to interfere with the matter, that, too, after completion of selection. The OA is dismissed. No order as to costs.