Central Administrative Tribunal - Patna
Nirbhay Kumar vs N.F.Railway on 11 May, 2023
1 O.A. No. 050/000074/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/000074/2023
Date of Order:11.05.2023
CORAM
HON'BLE SHRI M.C. VERMA, MEMBER (J)
HON'BLE SHRI SUNIL KUMAR SINHA, MEMBER [A]
Nirbhay Kumar Son of Late Binod Kumar, Commercial Superintendent,
N.F. Railway, Katihar Resident of Lohiya nagar, Opposite Mary
Immacceble School, Katihar (Bihar) Pin
Pin-854105.
.......... Applicant.
By Advocate :-
: Shri Maya Shankar Mishra
-Versus-
1. The Union of India through the General Manager, Northeast Frontier
Railway, Maligaon, Guahati, Pin-781011.
Pin 781011.
2. The General Manager (Personnel), Northeast Frontier Railway,
Maligaon Guahati, Pin 781011.
3. The Divisional Railway Manager, Northeast Frontier Railway, Katihar
Bihar Pin 854105.
4. The Divisional Railway Manager (Personnel), Northeast Frontier
Railway, Katihar Bihar Pin 854105.
5. The Assistant Personnel Officer (Gaz) Northeast Frontier Railway,
Maligaon Guahati Pin 781011.
6. The Assistant Personnel Officer-III,
Officer III, Northeast Fronteir Railway, Katihar,
Bihar Pin 854105.
......... Respondents.
By Advocate :-Shri
: Shri Shri H.P. Singh, Sr.SC
O R D E R (O R A L)
M.C.VERMA,M[J]
1. This OA is at admission stage hearing. On last date, w when this OA came on Board on 27.04.2023, 27.04.2023 prayer was made that it may be heard for final disposal but on request of ld counsel for applicant it was adjourned for today for final hearing. Heard.
Heard..
2. The prayer prayer made in the OA is as under ::- 2 O.A. No. 050/000074/2023
"8.1. That Your Lordships may graciously be pleased to quash and set aside the order E/170/Legal Cell/NS/3052/2023 dated 27.01.2023 issued for the respondent No.5 as contained in Annexure A/4. 8.2. That Your Lordships mayy graciously be pleased to issue appropriate direction to the respondent no.2 to include the name of applicant as candidate consider for appearing in ACM 9Grade 9Grade-B) B) selection 70% quota vacancy in view of notification bearing No.E/254/11/Comml/Pt.VIII(O) dt 27.01.2023 in which examination date fixed of 19.02.2023. Annexure A/5 8.2. Any other relief or reliefs as your Lordships may deem fit and proper in the interest of justice."
3. Attention of ld counsel was drawn to the prayer made in OA and it was inquired inquired from him that evidently prayers made in Para 8.1 & 8.2 are contradictory to each other and how the said two relief claimed can be granted and he submits that inadvertently some error has remained in drafting the prayer however, tthe he grievance of the applicant plicant is that he applied for the post of Assistant Commercial Manager, is eligible for said post but his name has not been included in the list prepared by the respondents, respondents in letter dated 27.01.2023. Hee requests that prayer of the applicant may be trea treated ted to be confined to relief that he may be allowed to participate in the examination to be conducted by the respondents for the post of this Assistant Commercial Manager.
Manager
4. Submitting as above, above ldd counsel for applicant urged that applicant previously was was working as Loco Pilot, (goods) and after being medically medical de-categorization ation in year 2006 he was absorbed in alternative job as Chief Commercial Clerk Clerk. That after alternative job of Chief Commercial Clerk, Clerk in commercial wing wing, the applicant 3 O.A. No. 050/000074/2023 was given provisional promotion to the post of Commercial Superintendent in year 2013.
5. Ld counsel urged further that on 26.12.2022 a N Notification,, copy of which is Annexure -11 of the OA OA, was published by the respondents for selection on the post of Assistant Commercial Manager (Group 'B' ' against 70% quota vaca vacancy).
ncy). Condition of eligibility were given in the said notification and applicant was fulfilling all the criteria and hence offered his candidature but he was rejected to participate in the process of selection proceeding. He approached this Tribunal through this OA and this Tribunal, vide ad-interim interim order dated 10.12.2023 directed the respondents to allow the applicant provisionally to participate in selection procedure and that candidature of applicant is still provisional provisional, he has taken the written test and the result is still awaited. He concluded his submission stating that applicant is in pay level -6 6 for about 9 years and it is also not the case of the respondents that the applicant is not eligible, but respondents has rejected his eligibility only on the criteria of seniority which is not permissible under law nor the notification dated 26.12.2022 speaks so so. He urged to allow the O.A.
6. Ld counsel Mr. H.P. Singh, Singh, appearing for respondents, do not dispute the factual aspect that applicant after medically de de--
categorization was given alternative job of Commercial Clerk and was promoted as Commercial Superintendent in year 2013 and that 4 O.A. No. 050/000074/2023 he is working in pay level-66 for more than three years. He,, however argued that under UR category post of ACM is 01 and there are 100 eligible candidates and therefore it was decided to adopt some mechanism to sort the list of the candidate and therefore senior candidate of pay level 7 were only included and selected for appearing in Central CBT for selection for the post of ACM.
7. We have considered the submissions advance. The condition of eligibility given in Notification dated 26.12.2022 (Annexure A A-1)
1) are as under :-
:
"Condidtion of eligibility
(i) In terms of Railway Board's letter No. E(GP)2019/2/25 dated 27.12.2019 (RBE No. 216/2019) Group 'C' employees working in level level-6 6 and above in Pay Matrix with 03 years of non non-fortuitous service in level-6 6 and above in Pay Matrix (Including non-fortuitous non-fortuitous fortuitous service rendered in the corresponding pre-revised pre revised grade pay) will be eligible.
(ii) The list of Sr. Supervisory Staff of Commercial department, who are eligible to appear for the said selection are enclosed in the Main List and Stand by list as per Annexure-'A' Annexure 'A' in order of seniority. The cut cut-off off date of eligibility on the length of required years of nonnon-fortuitous fortuitous service is as 01.01.2023.
(iii) The candidate who qualify in the written examination and thereafter in Medical examination in the prescribed as per Para 530(a) of IRMIM/Vol IRMIM/Vol-I,I, will be eligible for viva-voce viva voce test provided they are declared physically fit to hold the Group 'B' post. Before commencement of the viva viva-voce test, est, Medical Examination from the respective Railway Medical authority of the candidate concerned should be done, which is mandatory. Final panel will be prepared on the basis of seniority of qualified candidates. The cut of date of eligibility on the length leng of required years of non-fortuitous fortuitous services of the supervisory staff of Commercial department is as on 01.01.2023."
8. It is not disputed dispute that applicant is Group 'C' employee working in Grade Pay level-6 level for more than three years. In n fact the eligibility of the applicant has not been disputed on the ground of lesser pay scale or of rendering of service period in permissible pay scale by the respondents, applicant applicant is eligible as per condition ladi 5 O.A. No. 050/000074/2023 down in the notification. No mention of any mechanism found there in the notification dated 26.12. for sorting list of the eligible candidates Iff the notification is read in between the lines the candidates.
respondents had to give opportunity to all the eligible candidates who have offered their the candidature for the post post. Applicant participated in the selection process.
process In n absence of any said mechanism in the Notification or Rules It would not to be justifiable to deny any eligible candidate to participate in the selection procedure procedure.
9. The he applicant is also under coverage of interim order of the Tribunal and is having status of provisional candidate and hee has also taken the test. Considering the overall entirety and surrounding circumstances we do feel it fit and proper to direct the respondents to not debar the candidate from participating in the selection process on the ground that he is not pay level-7, 7, he be treated as eligible. The OA stands disposed of. Pending MA, if any, also stands disposed of.
(Sunil Kumar Sinha) [M.C.Verma] Member (A) Member [J] mks/-