Central Administrative Tribunal - Jaipur
Brij Mohan Meena vs M/O Railways on 8 May, 2023
1
OA No. 607/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 607/2014
Order reserved on: 28.04.2023
Date of order:08.05.2023
CORAM:
HON'BLE MR. DINESH SHARMA, MEMBER (A)
HON'BLE MRS. HINA P. SHAH, MEMBER (J)
Brij Mohan Meena S/o Shri Harphool Meena a/a 47
years R/o Plot no. 337/A, Prem Nagar, Near Malviya
Nagar, Jagatpura, Jaipur. Presently posted as O.S
grade I under Control Office, Store H.Q, N.W.R,
Jaipur.
....Applicant
(By Adv: Shri Amit Mathur )
Versus
1. Union of India through, General Manager, H.Q
Office, North Western Railway, Jagatpura, Jaipur.
2. General Manager, Northern Railway, Baroda
House, New Delhi.
3. Controller of Store, Northern Railway, Baroda
House, New Delhi.
4. DY. Chief Material Manager (P), General Stores
Depot, Northern Railway Shakurbasti, Delhi.
....Respondents
(By Adv: Shri Anand Sharma)
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OA No. 607/2014
ORDER
Per : Shri Dinesh Sharma, Member (A)
The applicant in the present Original Application has prayed for the following reliefs:
"(i) That this Hon'ble Tribunal may graciously be pleased to quash and set aside the orderdated 12.11.13 and dated 05.03.10 issued by the General Store Depot of Northern Railway to deny the claim of the petitionerto get promotion as O.S grade I with effect from 01.11.95.
(II) That respondents may further be directed to grant the promotion to the petitioner as O.S grade I with effect from 01.11.95 (III) Respondents may further be directed P.S. No. 11450 against the vacancy was to be filled up as a shortfall of ST on 06.08.93 on 40-point roaster register basis.
(IV) Any other order, which this Hon'ble Tribunal may deem fit and proper, may be passed as per facts and circumstances of the case."
2. Briefly summarized, the case of the applicant is that he is an employee belonging to S.T. Category. He 3 OA No. 607/2014 was not given promotion, as Head Clerk in the year1991, against a vacancy to which, according to 40 point roster, only S.T. candidates were eligible for consideration, due to a stay obtained by a general candidate, Usha Madan. He however, got this promotion, by order dated30.04.1999, w.e.f. 09.10.1991, when the Tribunal, in O.A. No. 39/1998 vide order dated 14.12.1998, directed the respondents to consider his promotion w.e.f. 09.10.1991. The applicant had to file another Original Application (O.A. No. 1173/2002), to get further promotion, as OS Grade-II, w.e.f. 01.03.1993, and the said O.A. was allowed vide order dated 30.06.2004.Though the applicant had asked for grant of promotion as OS-I also, w.e.f. 01.11.1995, in that Original Application, and the Tribunal had directed, in their order dated30.06.2004, to consider grant of all consequential promotions following promotion to the level of OS-II w.e.f. 01.03.1993, the respondents have not granted him promotion to the level of OS-I, w.e.f. 01.11.1995. The applicant filed a petition for contempt action against the respondent, for not fully complying with the orders of the Tribunal in OA No. 1173/2002 dated 30.06.2004. This petition was dismissed while giving liberty to the applicant to 4 OA No. 607/2014 pursue appropriate action if any grievance still remained. The applicant has moved from the Northern Railways, to North Western Railway since 10.10.2002. He made representation dated 25.03.2010 (Annexure- A/7) before respondents Railways for considering his request for promotion to the post of OS-I w.e.f. 01.11.1995 (when there was a vacancy there to fill the post on the basis of his being the eligible candidate following 40 point roster). His request has been denied, by letter dated 05.03.2010 (Annexure- A/1a) stating that 40 Point Roster Register has been replaced by Post Based Roster as per P.S. No. 11450 effective from 10.02.1995.The applicant has challenged this rejection mainly on ground that the applicant should have been granted promotions, at the time when the vacancies arose, without forcing him to approach the Tribunal every time for consideration for these promotions. After granting him promotion, retrospectively, to the post of OS-II, w.e.f. 01.03.1993, he should have been considered eligible for the consequential promotion to the vacancy that arose, following the same 40 pointroster, in the year 1995.
5OA No. 607/2014
3. The respondents have, in their reply, denied the claim made by the applicant. They have stuck to the reasoning given in the reply (Annexure-A/1a) given to the applicant's representation, that the 40 point vacancy based roster was not applicable from 10.02.1995. Following the post-based-reservation system, a vacancy to which an ST candidate could be considered, occurred in the year 2007, in the Northern Railways. Since the applicant had moved from Northern Railway to North Western Railway, much before that, he was not eligible for promotion as OS-I with North Western Railways.
4. The applicant has filed a rejoinder reiterating the claims made in his Original Application. It is stated that the denial of promotion, on ground that post- based-rosters came into force w.e.f. 10.02.1995, is not correct. This new direction was issued in the year 1997-98, and was made effective retrospectively, from 09.02.1995. Since promotions were made in those years, to non-eligible persons, and denied to the applicant at the relevant time, this retrospective rule cannot be applied to the applicant. His going to a different Railways cannot be read against him since it 6 OA No. 607/2014 was necessitated due to restructuring of Railways, and was not on account of his free will.
5. The matter was finally heard on 28.04.2023. Learned counsels for both the parties forcefully argued in favour of their respective pleadings. Leaned counsel for the applicant produced the judgment of Hon'ble Supreme Court inB.Kumaravel Vs. U.O.I. & Ors. in W.P. (C) 7416/2015 & C.m. Nos. 13673/2015 & 13675/2015 decided on 15.05.2018 in support of his argument that the rule prevalent at the relevant time when the vacancies arose, should be applied for consideration of promotion.
6. We have gone through the pleadings. The issue before us is whether the applicant should be considered for promotion to the level of OS-I, w.e.f. 01.11.1995, on the ground stated by him that he was eligible for such consideration, at that time, following the 40 point roster. Another ground taken by the applicant is that he had been granted all earlier promotions, retrospectively, by orders of this Tribunal, based on the same ground. Promotion to the level of OS-I should also have been granted, following the decision of this Tribunal dated 30.06.2004 in O.A. No. 7 OA No. 607/2014 1173/2002. The respondents have denied his claim stating that the 40-point- vacancy -based roster was not applicable on that date, and it was replaced by post-basedroster, by orders dated21.08.1997, which made the new dispensation applicable w.e.f. 10.02.1995.The applicant has questioned this retrospective application in his case, citing the ruling of the Hon'ble Supreme Court in B.Kumaravel case (supra) to support his case.
7. We had asked the learned counsel for the applicant, at the time of the arguments, whether making such claim, by filing an Original Application in the year 2014, for a consideration of promotion since the year 1995, was not barred by the period of limitation prescribed under section 21 of the Administrative Tribunals Act, 1985. The learned counsel argued that this plea has not been taken by the respondents. Besides, the loss of promotion has resulted in a continuing loss making it a recurring cause of action. The learned counsel also brought to our attention that the Hon'ble Supreme Court had, under similar circumstances (in the case cited above), allowed the benefit of seniority to the petitioners in 8 OA No. 607/2014 that case, without giving any notional or actual financial benefit of promotion.
8. We have gone through the decision cited by the applicant. In that case, the Hon'ble Supreme Court did allow the petitionertherein the benefit of consideration of a rule(rota-quota principle, under the Central Architects Service Group 'A' Rules, 1989),since that was the rule applicable at the time when the petitioner become eligible for promotion. One of the main reasons for the Hon'ble Apex Court applying the old rule was the delay in conduct of DPC, which is not the matter in the present case. Thus, the facts and circumstances of that case are not exactly similar to the facts of the present case. In the present case, the applicant was not even holding the feeder post (OS-II) from which a person gets consideration for promotion to the level of OS-I. This promotion happened, following the orders passed in OA No. 1173/2002, in the year 2004, with retrospective effect. We cannot ignore the fact that though the applicant had specifically prayed for consequential promotion, to the level of OS-I, w.e.f. 01.11.1995, in that Original Application, too, there was no specific order to that effect (to grant retrospective promotion to the level of 9 OA No. 607/2014 OS-I, from the year 1995). The applicant's petition, to initiate contempt action against the respondents also failed, since the Tribunal found the action of the respondents to promote him to the level of OS-II, w.e.f. 1993 sufficient compliance of their order dated 30.06.2004. Granting liberty, to pursue further action to seek remedy against any remaining grievance, cannot, by itself, be taken to mean liberty to raise the same issues again, which are barred by res- judicata.Though it is true that the respondents have not raised that plea, it would be wrong on our part to ignore that we had already decided on the same issuebefore and found no faultwith the action of the respondent in the alleged non-compliance of that decision.
9. Leaving technicalities apart, it is a fact that what the applicant is seeking now, by filing an Original Application in the year 2014, is a consideration for promotion from a date (01.11.1995) almost 2 decades backfrom the year of filing this O.A. and almost 3 decades back from now. This consideration is admittedly on the basis of a vacancy-basedroster system, which got changed, in the year 1997, following decisions of the Hon'ble Supreme Court (in 10 OA No. 607/2014 Sabharwal Vs. State of Punjab (AIR) 1995 SC 1371 & Union of India Vs. Virpal Singh Chauhan (AIR 1996-SC 442) and UOI Vs. J.C. Malikcases), from vacancy-basedroster system to post based roster system. The reason for changing the earlier system was the unfairness found in that system which led to unintendedbenefits, in certain cases (As is apparent in the present case, as it would have meant 3 promotions to an employee, belonging to one category, in five years, and that too, in a small cadre). We cannot force the respondents to apply a system, which got changed, with retrospective effect, due to judicial intervention,as it would amount to a needless stretchingof the ratio of a much later decision (in B.Kumaravel case (supra)), on the facts of the present case. It is also a fact that the applicant is not even working under the same Railways. A past change in the seniority position, by giving him promotion from a past date, without any real or even notional financial benefits (as was directed in B. Kumaravel case cited above) may have little value and would certainly create a bad precedent.
10. For the reasons given in the previous paragraphs, we are not inclined to interfere with the 11 OA No. 607/2014 decision of the respondents. The Original Application is, therefore, dismissed. No costs.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) !Vv~