Central Administrative Tribunal - Delhi
Krishan Kumar Singh vs Union Of India Through on 11 August, 2011
Central Administrative Tribunal Principal Bench OA No.3683/2010 MA No.2030/2011 New Delhi this the 11th day of August, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Shailendra Pandey, Member (A) Krishan Kumar Singh, S/o late Shri Nawal Singh, Hd. TTE, North Central Railway, Agra Fort, R/o 11/113 Gudri Sud Nai Ki Mandi, Agra. -Applicant (By Advocate Mrs. Meenu Mainee) -Versus- Union of India through: 1. General Manager, North Central Railway, Allahabad. 2. Divl. Railway Manager, North Central Railway, Agra. 3. Station Superintendent North Central Railway, Agra Fort. -Respondents (By Advocate Shri Rajender Khatter) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
8.2 That this Honble Tribunal may be further pleased to direct the respondents to consider the case of the Applicant by retaining his name in the panel by enlarging the panel as per Railway Boards circular of October, 1984 as well as the judgment of this Honble Tribunal in O.A. No.425/1999 (Annexure A-2).
8.3 That this Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper in view of the facts and circumstances of the case.
8.4 That the cost of these proceedings may kindly be granted in favour of Applicant.
2. Briefly stated, facts of the case are that applicant while working as Travelling Ticket Examiner (TTE) in the grade of Rs.4000-6000 was promoted as Head TTE under the restructuring scheme in the grade of Rs.5000-8000 w.e.f. 9.10.2003 in terms of the order dated 20.06.2008. One Shri V.K. Singh, who was admittedly senior to the applicant in the cadre of TTE, filed OA-2050/2008 before the Central Administrative Tribunal, Principal Bench, seeking direction to promote him under restructuring scheme in terms of the Railway Boards circular No. RBE No.13/1993. It is not disputed that the said OA was disposed of by the Tribunal vide order dated 06.08.2009 to re-examine the case of V.K. Singh for promotion as per the aforesaid guidelines of Railway Board. On reconsideration of the matter it was found that Shri V.K. Singh was found suitable for promotion under the restructuring, on expiry of the punishment imposed upon him, i.e., from 1.9.1995. As such, modified provisional panel was drawn vide letter dated 28.1.2010 and the name of Shri V.K. Singh was incorporated at serial No.6 in the provisional panel dated 28.01.2010. The applicant being junior his name was deleted from the provisional panel dated 20.06.2008. Feeling aggrieved by the deletion of the name of applicant from the panel applicant filed OA-1367/2010. The said OA was disposed of vide order dated 27.04.2010 with a direction to decide the matter, treating the OA as representation of the applicant by passing a speaking order. In terms of the direction given by the Tribunal the competent authority has passed the order, thereby rejecting representation of the applicant.
3. As can be seen from the impugned order Shri V.K. Singh, one of the eligible employees was not considered for promotion under restructuring due to the reason that a major DE case was pending against him at the time of restructuring. As such, he was not placed on the provisional panel dated 20.06.2008. As can also be seen from the prayer clause the applicant is not making any grievance for incorporation of the name of Shri V.K. Singh in the panel and deletion of the name of applicant from provisional panel dated 20.06.2008 being junior-most. The only grievance projected by the applicant is that even if his name has to be deleted from the panel being a junior-most person, still his name can be retained in the panel by enlarging the panel as per the Railway Boards circular of October, 1984 as well as the judgment of the Tribunal in the case of Shinder Singh v. Union of India & Ors., OA No.425/1999, decided on 29.10.2001 (Annexure A-2). Thus, the matter is required to be considered whether the applicant has made out a case for retaining his name in the panel by enlarging the panel in the light of the Railway Boards circular dated October, 1984. Vide the impugned order, relevant portion of which is reproduced herein, respondents have given the following reasons why the aforesaid instructions of the Railway Board are not attracted in the instant case and thus reads:
Contents of Railway Boards instructions issued on October 1984 pertains to a normal selection and provides that a panel once approved and announced can be enlarged on following reasons:
(i) Incorrect assessment of vacancies.
(ii) Increase of vacancies during the process of selection.
(iii) Administrative errors due to seniority dispute which are decided subsequently making staff eligible for selections.
None of the above conditions are involved in your case. The said instruction pertains to normal selection where positive act of selection is mandatory, but restructuring is based purely on modified selection process in terms of RBE No.177/2003 dated 09.10.2003 and RBE No.05/2004 dated 06.01.2004. As such provisional panel dated 20.06.2008 could not be enlarged. Being junior most person in the panel you are not considered eligible for promotion under restructuring scheme.
4. Respondents in the reply have further stated that after deletion of the name of the applicant from the provisional panel dated 20.06.2008 the applicant has been granted promotion in the next panel dated 18.02.2010 from which the name of Shri V.K. Singh who was senior to the applicant has been deleted and the name of applicant has been included in the top of the panel at serial No.1.
5. We have heard the learned counsel of the parties and gone through the material placed on record. Shri V.K. Singh was entitled to the benefit of restructuring in terms of para 3.9.1 of Railway Boards RBE No.13/1993, after the expiry of the penalty even if penalty was in force. Thus, it was not permissible for the respondents not to consider the case of Shri V.K. Singh for restructuring in terms of the aforesaid circular. In other words, if the respondents have considered the case of eligible persons in terms of RBE-13/1993 in right perspective, in that eventuality applicant could not have been empanelled. Be that as it may, the question which requires our consideration is whether the applicant is entitled to the benefit of Railway Boards instructions issued in October, 1984 and in the light of the decision of the Tribunal in Shinder Singhs case (supra). It may be stated that the learned counsel of applicant has also placed reliance on another decision of the Chandigarh Bench of this Tribunal in OA-419/HR/2006 in the case of Lukman Ali & Anr. v. Union of India & Ors., decided on 10.12.2008. The applicant has reproduced the instructions issued in October, 1984 in para 4.8 of the OA, which thus reads:
A question has arisen as to whether a panel once approved and announced can be enlarged and whether enlargement of such panels is covered by the term procedural irregularities or other defects to enable the same being done with the approval of the authority next higher than the one that approved the panel. The matter has been examined and it is considered that the cases for enlargement of panels can arise due to the following reasons:-
(i) Incorrect assessment of vacancies.
(ii) Increase of vacancies during the process of selection.
(iii) Administrative errors due to seniority dispute which are decided subsequently making staff eligible for selections.
As regards cases falling under item No.1 & 2 above, it is felt that no enlargement of panel should normally be done in such cases. If, however, it is considered necessary in special circumstances, to enlarge a panel on this account, this may be done with the approval of the Railway Board as a panel already announced cannot be expanded without calling vacancies assessed for empanelment as per extant rules.
As regards cases falling under item No3 above, in view of the fact that Railway Board vide letter No.E[NG]63/MI/92 dated 15/17/09/64 have permitted the benefit of proforma seniority and proforma fixation to staff where they could not be promoted in time due to administrative errors, it is felt that enlargement of panel in such cases may be done with the approval of the authority next higher to the one that approved the panel as in such cases they are only to be given proforma position in the panel to enable them to get the benefit of proforma promotion. This would also appear to be in order on the analogy of Boards letter No.E[NG]1-72/PMI/211 dated 16.12.1972 which permits interpolation of name of an employee on deputation abroad in the panel already finalized but who could not be called for selection because of his being abroad and his junior having been promoted, on the basis of his performance in the next selection by adjustment of his seniority with his juniors.
6. As can be seen from the portion extracted above, conditions No.1&2 are not attracted in the instant case, as the earlier panel was not drawn on account of incorrect assessment of vacancies or increase of vacancies during the process of selection. Similarly, condition No.3 is also not applicable, which speaks that administrative errors due to seniority dispute, which are decided subsequently making staff eligible for selection. Thus, none of the conditions, as stipulated above, is attracted in the instant case. Further, from the perusal of the instructions, as quoted above, it is also evident that regarding the cases falling under item Nos.1&2 above, Railway authorities have specifically stated that normally no enlargement of panel should be done in such cases and in case it is considered necessary to enlarge a panel on this account even in that eventuality approval of the Railway Board is necessary. As regards cases falling under item No.3, Railway Board has clarified under what circumstances the panel should be enlarged. It has been specifically made clear in the Railway Boards instructions that enlargement of the panel is permitted where benefit of proforma seniority and proforma fixation to staff where they could not be promoted in time due to administrative error and his junior has been promoted has been given, which will result in the reversion of the persons who were already promoted. As already stated above, it is not a case of such nature. Thus, we see no infirmity in the action of the respondents whereby they have been denied the benefit of enlargement of panel to the applicant.
7. The further submission made by the learned counsel of applicant that the instructions dated October, 1984 pertain to normal selection and it is not applicable to modified selection, need not be considered, as we have already held that none of the conditions, as stipulated in the instructions of October, 1984 is attracted. It is true that the selection procedure in the case of regular promotion is different to that of promotion granted under restructuring scheme, as the promotion granted under the restructuring scheme is by way of modified procedure, where one employee is considered against one post, whereas in normal selection against one post three employees have to be selected and the selection is by way of a positive act. There is no dispute in the instant case that the selection/promotion was made by way of modified procedure.
8. Now, we may also consider the judgment relied upon by the learned counsel of applicant. As can be seen from the judgment rendered in Shinder Singh (supra) the dispute was regarding seniority list. In the seniority list issued on 22.01.1992 whereas name of applicant figured at serial No.9 whereas name of respondent No.2 did not figure in that list at all. The respondent authority issued another seniority list on 4.10.94 in which applicant was shown above respondent No.2, who at that time working in the Construction organization. Subsequently, based upon the said seniority list applicant was promoted as Head Draftsman. In the list of Chief Draftsman applicants name figured at serial No.30 whereas name of respondent No.2 figured at serial No.32. However, on 12.3.98 a show cause notice was served upon applicant stating, inter alia, that since the seniority of respondent No.2 was to be correctly fixed in accordance with the representation made by the said respondent, it was proposed to demote the applicant to the post of Head Draftsman. It was in this factual background that the issue of enlargement of the panel was considered by this Tribunal and it was held that since the applicant was duly promoted as Head Draftsman and thereafter Chief Draftsman by following the prescribed procedure, the respondent authority should not have demoted applicant in the way they have done. Applicant cannot take any assistance from this judgment.
9. Further, we are of the view that the applicant cannot also take any assistance from the judgment of the Chandigarh Bench of the Tribunal in Lukman Alis case (supra). That was a case where the panel was published on the basis of seniority amongst the selected candidates and not on the basis of merit. The Tribunal held that the panel has to be prepared on the basis of merit and thereby OA was allowed qua applicant No.1, which resulted in demotion of respondent No.4, as there were two posts. The Tribunal further observed that since respondent No.4 has undergone training, respondents may consider him to adjust against the vacant post of JE-II (Electrical) if available. We fail to understand how the applicant can take any assistance from this judgment. Rather, the ratio as laid down by the Chandigarh Bench is that if an empanelled person is reverted he should be adjusted against the next available vacancy. In the instant case applicant has been granted promotion in the next panel dated 18.02.2010 in place of Shri V.K. Singh, who was senior to the applicant by deleting his name from the provisional panel and including the name of applicant at serial No.1. Thus the grievance of the applicant has been redressed in accordance with the rules.
10. Thus, in view of what has been stated above, we are of the view that the applicant has not made out any case for our interference. The OA, therefore, fails and is accordingly dismissed, with no order as to costs.
(Shailendra Pandey) (M.L. Chauhan) Member (A) Member (J) San.