Central Administrative Tribunal - Allahabad
Smt Chanda Devi vs Union Of India on 23 August, 2018
Reserved
(On 16.08.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 23rd day of August 2018
Hon'ble Mr. Gokul Chandra Pati, Member (A)
Hon'ble Mr. Rakesh Sagar Jain, Member (J)
Original Application Number. 330/00045 of 2011
Smt. Chanda Devi, W/o Shri Santosh Kumar Anand, presently working
as Accounts Clerk / Store in Headquarter office, N.C. Railway under
FA&CAO /N C Railway / Allahabad, R/o 207 - C, New Railway Colony,
Subedarganj, Allahabad.
...............Applicant
By Adv: Shri Sudama Ram
VE R S U S
1. Union of India through the General Manager, North Central
Railway, Headquarters Office, Allahabad.
2. F.A.&C.A.O./NCR/H.Q./ Allahabad.
3. Dy, F.A. & C.A.O. / General / NCR / HQ / Subdearganj,
Allahabad.
4. Shri O.P. Srivastava, Sr. A.F.A. in the office of FA&CAO / NCR /
Allahabad.
.................Official Respondents
5. Shri Ravindra Kumar Pandey, presently working as Junior
Accounts Assistant in Traffic Accounts Office, N.C. Railway,
N.Y. Marg, (Loco Colony), Allahabad.
6. Shri Anwar Mujamil Khan, working as Junior Accounts Assistant
in Traffic Accounts Office, N.C. Railway, N.Y. Marg, (Loco
Colony), Allahabad.
7. Shri Chandra Bhavan, working as Junior Accounts Assistant in
Traffic Accounts Office, N.C. Railway, N.Y. Marg, (Loco
Colony), Allahabad.
.........Private Respondents
By Adv: Shri Sanjay Kumar Tiwari & Shri Sanjay Kumar Rai
ORDER
By Hon'ble Mr. Gokul Chandra Pati, Member (A) This OA has been filed with the prayer for following reliefs:-
"i. The Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned order of reversion passed vide Office Order No. 49 of 2008 (Annexure A-1), 2 impugned decision / reply by Dy. FA & CAO (G) / NCR / Allahabad / respondent no. 3 as communicated vide letter of Sr. AFA / Admn. Dated 19.07.2018 (Annexure A-
2) and direct the respondents to restore the promotion order of the applicant as Junior Accounts Clerk Grade Rs. 4500 - 7000 passed vide Office Order No. 36/2008 dated 18.6.2008.
ii. The Hon'ble Tribunal may further be pleased to direct the respondents to grant benefit of proforma promotion as Junior Accounts Clerk in Grade Rs. 4500 - 7000 as per panel declared vide Office Order No. 31 (157) dated 14.08.2006 i.e. from the date her other 3 colleagues were promoted.
iii. Any other writ or order or direction which the Hon'ble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued in the interest of justice.
iv. Cost of the Application may also be awarded."
2. The facts in brief are that the applicant, who is working as Account Clerk, was promoted as Junior Account Assistant (in short JAA) in the pay scale of Rs. 4500-7000, for which a written test was held on 20.5.2006 to decide suitability. The applicant, alongwith other candidates as per the letter at Annexure A-3 to the OA appeared in the test and she was declared suitable with the highest marks as per the letter dated 14.8.2006 (Annexure A-5) alongwith other three candidates and the list and secured highest marks among the successful candidates as per the list (Annexure A-4). Other three candidates apart from the applicant were promoted vide order dated 14.9.2006, although four vacancies were there as stated in par 4.5 of the OA. It is further stated that one Sri SN Sinha was promoted although his name was not included in the written test result. Finally, the applicant was promoted as JAA vide order dated 18.6.2008 (Annexure A-8) and her name was shown in the provisional seniority list of the JAA (Annexure A-9).
3. It is the case of the applicant that suddenly she was reverted vide the impugned order dated 19.8.2008 (Annexure A-1) without any show cause notice to the applicant and without mentioning any reason for such an order. The applicant represented and when no action was taken, she filed the OA No. 440/2010 which was disposed of vide order dated 3.5.2010 (Annexure A-12) with a direction to dispose of the applicant's representation dated 4.10.2008 (Annexure (Annexure A-
11). In compliance, the respondent no. 3 passed the speaking order dated 19.7.2010 (Annexure A-2) which is also impugned in this OA. It 3 is also stated in para 4.24 that the private respondents no. 5 to 7 being junior to her as she was selected vide the panel dated 14.8.2006 and her selection was done on zonal/combined seniority basis, they were promoted ignoring the case of the applicant.
4. The official respondents 9referred hereinafter as respondents) have filed the Counter Reply countering/replying the averments in the OA. The private respondents did not appear in the case. It is stated in the Counter that the test on 20.5.2006 was both for promotion and for granting Assured Career Progression Scheme (in short ACP) and the applicant was called for the test for the purpose of sanction of ACP as she had completed 12 years of service and she was not within the zone of consideration for promotion as JAA and that the test was for the purpose of qualifying for ACP and promotion. Since the applicant was found suitable, she has been extended the ACP benefit in the pay scale of Rs. 4500-7000 with effect from 30.7.2005 as stated in the order dated 19.7.2010. It was further stated that the name of Sri S.N. Sinha was deleted subsequently. It is stated in the Counter Reply that when the applicant was promoted vide order dated 18.6.2008, the senior employees who were left out represented, after which the mistake of ignoring the applicant's seniors was detected. This mistake has been corrected by reverting the applicant vide order dated 19.8.2008 (Annexure A-1) as per the para 228 of the Indian Railway Establishment Manual (in short IREM). With regard to the issue of reservation of posts as per Roster, it is stated in para 12 of the Counter that the roster basis is not applicable for promotion of Accounts Clerks to Junior Accounts Assistant under seniority cum suitability quota in respect of 20% of posts in the cadre of JAA, since ar per the instructions (copy at Annexure CR-7 of the Counter), 80% of JAA posts are to be filled up by direct recruitment and reservation is not applicable for promotion if more than 75% posts are filled up be direct recruitment as per the circular at Annexure CR-6. Regarding the averment about Shri S.N. Sinha, it was stated in para 11 of the Counter Reply that the name of Shri Sinha was deleted subsequently from the promotion list.
5. The respondents have also filed a Supplementary Affidavit on 8.5.2012, stating that in view of vacancy in the post of JAA arising from 4 2.12.2011, the applicant has been promoted as JAA with effect from 2.12.2011 vide order dated 23.3.2012, copy of which was attached to the Suppl. Affidavit. The applicant has filed Supplementary Rejoinder on 9.7.2012 and has not denied that she has been promoted as per the order dated 23.3.2012, but she reiterated her claim against the vacancy notified in 2006 and alleged that three private respondents who were wrongly promoted by the official respondents in violation of para 214 of the Indian Railway Establishment Manual (in short IREM), which states that for non-selection promotion the number of candidates to be called for the test should be equal to the number of vacancy. It was further averred that the notice dated 25.4.2006 fir the written test clearly mentioned that it was the test for promotion to JAA and there was no mention about ACP and that the vacancy in JAA was four including one for SC candidate.
6. We have heard learned counsels for both the parties and also perused the record produced before us through the pleadings. At the time of hearing, learned counsel for the applicant submitted a copy of the judgment of Hon'ble Apex Court in the case of Ram Ujarey vs. Union of India reported in 1992 (2) ALSJ 43 in support of the applicant's case. He mainly stressed on the point that the applicant had secured highest marks in the written test and was promoted on 18.6.2008 after a delay of more than 2 years from the date of declaration of result, although others who were also successful as per the order dated 14.8.2006, had been promoted vide order dated 14.9.2006. The claim of the applicant is to be promoted from the date from which her other colleagues were promoted i.e. from 14.8.2006 as mentioned in para 8(ii) of the OA. Learned counsel for the applicant also stressed on the point that no show cause notice was issued before reverting the applicant vide the impugned order dated 19.8.2008.
7. Learned counsel for the official respondents drew our attention to para 13 and 16 of the Counter and stated that the cadre was centralized from 1.4.2003 and then decentralized from 1.1.2008 upto a certain level of posts carrying the pay scale of Rs. 5500-9000. Hence, the seniority position changed after 1.1.2008. It was further submitted that as explained in para 16 of the Counter, for the promotion to JAA 5 from Accounts Clerk, which is restricted to 20% of the vacancy, the reservation principles will not apply as per the circular at Annexure CR-
6. After notification of the result of the test on 14.8.2006, three candidates were promoted as they were senior to the applicant, who was included in the list of eligible candidates for test for the purpose of ACP. The ACP benefit was sanctioned in favour of the applicant w.e.f. 30.7.2005 vide order dated 30.10.2006 as stated in the impugned order dated 19.7.2010. Lastly, it was pointed out that the applicant has already been promoted w.e.f. 2.12.2011.
8. The question to be decided in this case is whether the applicant is entitled for antedating her promotion from 2.12.2011, when she was allowed promotion to 14.8.2006 when other three employees empanelled with her were promoted, or from 18.6.2008 when she was promoted before issue of the impugned order cancelling the promotion. There is no dispute about the criteria of seniority-cum-suitability for the promotion to JAA. For such posts, para 214 of the IREM states as under:-
"214. (a) Non-selection posts will be filled by promotion of the senior most suitable Railway servant. Suitability whether an individual or a group of Railway Servants being determined by the authority competent to fill the posts on the basis of the record of service and/or departmental tests if necessary. A senior Railway servant may be passed over only if he/she has been declared unfit for holding the post in question. (Authority:-Railway Board s letters No. E(NG)I-2002/PM-1/37 dated 1-11-2002)
(b) When, in filling of a non-selection post, a senior Railway servant is passed over the authority making the promotion shall record briefly the reason for such super session.
(c) In respect of promotions to non-selection post, the following principles should be followed:
(i) Staff in the immediate lower grade with a minimum service of two years in that grade will only be eligible for promotion, unless a longer length of service in the lower grade has been stipulated as a condition of eligibility for promotion in any particular category. The Service for this purpose includes service, if any, rendered on ad hoc basis followed by regular service without break. The condition of two years service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration. If by virtue of the above rule, a junior is eligible for such promotion, his senior will also be eligible for such promotion, even though he might not have put in a total service of two years, or more (if stipulated in a particular category in the lower grade).
(Authority:-Railway Board s letter No. E(NG)I-85-PM1/13(RRC) dt. 9.02.87 and E(NG)I-97/PM1/39 dated 7.8.98).
(ii) The number of eligible staff called for consideration should be equal to the number of existing vacancies plus those anticipated during the next six months due to normal wastage (i.e. retirement/superannuation) likely acceptance of requests for voluntary retirement/resignation, the vacancies in the higher 6 grades in the channel, the filling up of which will result in the need to make consequent appointments from the proposed select list, staff approved to go on deputation to other units, staff already empanelled for ex-cadre posting, creation of additional posts already sanctioned by the competent authority and due to staff likely to go out on transfer to other Railways/Divisions. However, in the case of promotion by trade test, the vacancies should be calculated on the basis of existing vacancies plus those anticipated to occur during the next four months.
........................................................................................."
It is clear from the above provision, the procedure adopted by the official respondents to call 17 candidates for the written test as stated in the order dated 25.4.2006 (Annexure A-3) was incorrect, since the number of vacancy in the post of JAA was 4 as stated in para 6 of the Counter and 17 candidates were called. The explanation that the list also contained the list of candidates for ACP is difficult to accept, since the order dated 25.4.2006 mentioned that the test was for promotion to the post of JAA and did not say anything about ACP. As per para 214, the number of persons being called for the test should be equal to 4 plus number of vacancies likely to occur in next six months. It was also necessary to specify in order dated 25.4.2006 as to who were called for promotion and who were called for ACP to avoid the complications and claims in future.
9. The applicant's counsel has raised the issue of prior notice before reverting the applicant as per the order dated 19.8.2008. The stand taken by the official respondents is that the applicant's promotion was due to a mistake committed by the authorities by ignoring other senior employees while promoting the applicant and that the mistake can be corrected as per the para 228(II) of the IREM, which states as under:-
"228. Erroneous Promotions. (I).......................................
(II) In pursuance of Rule 1326-R.II, 1987 Edition the following provisions shall govern the pay and increments of the Railway servant whose promotions or appointments in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts:
(a) The orders of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment.
In the case, however, of a railway servant, who has been erroneously promoted and appointed to a post in a substantive capacity, procedure prescribed in Board's letter No. E5O/|RCI/16/3 dt. 23-7-1954 for rescinding the irregular 7 confirmation of a railway servant should be followed/and only thereafter the railway servant concerned should be brought down to the position which he would have held but for the erroneous promotion/ appointment by the issue of orders as mentioned above. Service rendered by the Railway servant concerned in the post to which he was wrongly promoted/appointed, as a result of the error should not be reckoned for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment.
(b) Any consequential promotion or appointments of other railway servants made on the basis of the incorrect promotion or appointment of a particular railway servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph.
(c) Except where the appointing authority is the Railway Board or the President, the question whether promotion/appointment of a particular railway servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotions / appointments. Where the appointing authority is the Railway Board or the President, the decision should rest with the President and shall be final.
(d) Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern, and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion or appointment. The orders refixing the pay should be issued expressly under Rule 2927-R.II."
From above, on detection of the erroneous promotion, the order of such promotion is to be cancelled as soon as it is brought to the notice of the appointing authority and if the promotion to a post of substantive capacity, then the procedure as laid down in the letter dated 23.7.1954 of the Railway Board is to be followed. In the applicant's pleadings as well as in the representation dated 4.1.2010 (Annexure A-11), there is no issue raised as to whether the procedure laid down under para 228(II) of the IREM has been followed or not. If as per the Railway Board letter dated 23.7.1954, notice was required to be issued before reversion, then it should have been included in the pleadings of the applicant. Regarding violation of the principles of natural justice, it is seen that the applicant had filed an earlier OA No. 440/2010 and vide order dated 3.5.2010 of this Tribunal (Annexure A-12), the respondents were directed to consider the representation dated 4.1.2010 and also the OA No. 440/2010 while deciding the representation. Hence, as per the order of the Tribunal, opportunity was granted to the applicant to place her case before the respondents, who passed the order dated 19.7.2010 after considering the representation and the points mentioned in the OA No. 440/2010. Hence, we are of the view that there is no violation of the principles of natural justice, at least in 8 respect of the impugned order dated 19.7.2010 and the ground of non- issue of prior notice will not be helpful for the applicant.
10. Another ground taken by the applicant relates to application of reservation for the promotion of Accounts Clerk to JAA. Contentions in para 12 of the Counter Reply state are that the reservation policy is not applicable for the promotion to JAA as for this cadre, direct recruitment is 80% of vacancies i.e. more than 75% (as per the copy of the document at Annexure CR-4) for which reservation is not applicable as per the Railway Board circular dated 22.6.1989 (Annexure CR-3). Nothing has been stated in the Rejoinder to contradict these contentions or any circular or rule has been furnished to prove that reservation is applicable for the promotion to JAA. There is no document on record (including copy of the notes attached to the OA) to support the contention in para 4.2 of the OA that out of four vacancies for promotion, one was reserved for SC candidates. It is also noticed that there is no specific denial in the Counter Reply that out of four vacancies one was earmarked for SC candidates.
11. One of the ground projected by the applicant is that since there were four vacancies of JAA, her case was not considered by the respondents on 14.9.2006 by which other persons selected with the applicant as per the order dated 14.8.2006, were promoted. It is stated in para 9 of the Counter that the applicant was not within the zone of consideration for promotion, her inclusion in the panel was for the purpose of granting ACP only. Since the notification dated 25.4.2006 (Annexure A-3) mentioned only about the promotion with no mention of ACP and the order dated 14.8.2006 did not mention the fact that the list is for promotion and for ACP, the contentions in para 9 of the Counter Reply appear to be in conflict with these in the notification dated 25.4.2006. No satisfactory justification for such discrepancy has been furnished in the Counter Reply, except stating that there were other senior employees compared to the applicant without furnishing any details. Further, it is not explained in the Counter Reply how the applicant could be promoted in 2008 vide order dated 18.6.2008, if her seniors were there at the time of consideration of promotion of three employees on 14.9.2006 from the panel dated 14.8.2006. As stated in the Counter Reply, representations were received from the senior 9 employees for overlooking their case after promotion of the applicant on 18.6.2008 and the fact that there were senior employees to the applicant was known to the respondents only in 2008. This would imply that the authorities also did not know that there were applicant's senior in 2006 (unless some seniors who were in service in 2006 were retired by 18.6.2008) and if it is so, then reasons for not considering the applicant's case against fourth vacancy in September, 2006 are not explained by the respondents. We also note that the status of the applicant's seniority could have been changed in June, 2008 when applicant was promoted, due to decentralization of the cadre w.e.f. 1.1.2008 as stated in para 16 of the Counter Reply, which did not have necessary details to come to a definite conclusion in this regard.
12. In view of above, learned counsel for the respondents was directed to produce the file in which three employees were promoted on 14.9.2006 after qualifying the test. The file was produced before the Bench on 16.8.2018. The noting just prior to 14.9.2006, stated that there were four vacancies at serial no. 20, 40, 60 and 80. Out of four vacancies, proposal was sent for promoting three passed candidates at serial no. 20, 40 and 60. The reason for not filling up the fourth post at serial no. 80 was not mentioned. Thereafter, the respondents proceeded assuming that there was no vacancy till after decentralization of the cadre on 1.1.2008, three vacancies arose and against one vacancy, the applicant was promoted to the grade of JAA w.e.f. 18.6.2008. Then it was found that there were some senior employees to the applicant who had been left out from being called to the test in 2006 and since they also represented for promotion after the applicant's promotion, the promotion of the applicant was cancelled vide order dated 19.8.2008 (Annexure A-1). When the detailed position was placed before the F.A. & C.A.O. (respondent no.2), he has observed on 8.10.2008 as under:-
"This is a classic example of indifferent attitude of Administrative section towards its employees. Was the SO/adm and SAO/adm not aware of the seniority list of employees. Responsibility should be fixed for this lapse on SO and SAO......."
13. From above, it is clear that the case of the applicant has been handled in an insensitive manner as observed by the F.A. (respondent no.2) in the file. It is not clear why it is being said that there was no 10 vacancy till 1.1.2008, when there was the fourth vacancy, which was noted at the time of promoting three employees on 14.9.2006. The para 6 of the Counter Reply also mentioned that there were four vacancies when the test was conducted in 2006. It is seen that against fourth vacancy, there was another person i.e. Kishan Lal in the panel dated 14.8.2006 (Annexure A-5) left out apart from the applicant after promotion of three employees on 14.9.2006. It is also a fact that there were employees senior to the applicant at the time of holding the test in 2006 and they were called for test subsequently and were given promotion. We noted that although there was a proposal to promote the applicant against an available vacancy after the observations of the F.A. in the file, but it was not followed up. From the manner in which the matter of promotion/reversion has been dealt in the file gives an impression that such an important matter has been handled in an ad- hoc manner without any reference to the rules. By not mentioning in the list of persons for consideration for suitability test vide notification dated 25.4.2006 that some have been called for promotion and some have been called for ACP, was a lapse. Further, ignoring senior persons from being called for test for promotion, was another lapse, as observed by the F.A. in the file on 8.10.2008.
14. Learned counsel for the applicant has cited the case of Ram Ujarey (supra) decided by Hon'ble Supreme Court. In that case, the reversion was effected without referring to the service record and the seniority of the petitioner and without ascertaining seniority. In this case, the reversion was due to the fact that other senior persons were available when the applicant was promoted and the impugned reversion was done as per the provisions of the para 228 of the IREM. Further, the applicant has been promoted w.e.f. 2.12.2011 as averred in the Supplementary Counter Affidavit filed on 8.5.2012. The facts in the cited case are different from the present OA and hence, the cited case is distinguishable.
15. In the circumstances as discussed above, we are of the considered opinion that the applicant's representation for promotion was wrongly rejected vide order dated 19.7.2010 (Annexure A-2). It is also noted that after promoting the applicant on 18.6.2008, she was reverted without proper verification of available vacancy in the cadre 11 (as revealed during examination of the file) and without ascertaining about the fourth vacancy of JAA that was available in 2006 as mentioned in para 6 of the Counter, which was vacant after promoting three persons on 14.9.2006. As discussed in para 12-14 above, this conclusion was arrived at without a detailed review of vacancies in the cadre, particularly in view of the availability of fourth vacancy in 2006 and how such vacancy was filed up has not been explained by the respondents in their pleadings. Hence, the contention in the impugned order dated 19.7.2010 that there was no vacancy, is not in accordance with the facts of the case.
16. The speaking order dated 19.7.2010 has indicated one reason that the applicant was called for ACP and not for promotion, which is not borne out by the notification dated 25.4.2006 (Annexure A-3), as the said order mentioned about promotion only. The panel dated 14.8.2006 also did not mention that it is being made for both promotion and ACP. Hence, this reason indicated in the order dated 19.7.2010 is also not acceptable.
17. In view of the above and taking note of the fact that the applicant's promotion was cancelled since it was detected that some of her seniors were left without promotion due to administrative lapse and the applicant has received the benefit of promotional pay scale through ACP and she was also allowed promotion as JAA w.e.f. 2.12.2011 vide order dated 23.3.2012, the only grievance of the applicant now left, is to antedate her promotion to the post of JAA, which will have no financial implications. Further, the reasons mentioned in the impugned order dated 19.7.2010 for rejection of her representation is not correct as discussed above. Hence, we set aside and quash the order dated 19.7.2010 (Annexure A-2) and remit the matter to the respondent no. 2/competent authority to reconsider the applicant's representation dated 4.1.2010 only to the extent of antedating her promotion from 2.12.2011 to 18.6.2008 as per the rules, taking into account the observations made in this order. The applicant is also given liberty to submit a fresh representation to the respondent no. 2/competent authority within 15 days from the date of receipt of a copy of the order, mentioning the details of her juniors, if promoted prior to 2.12.2011 with proof/documents/justifications in support thereof, which shall also 12 be considered by the respondent No. 2 / competent authority, who shall pass a speaking order to communicate his/her decision in the matter to the applicant within four months from the date of receipt of a copy of this order.
18. If it is decided by the respondent no. 2/competent authority that antedating the applicant's promotion to 18.6.2008 is not possible, it will imply that the applicant's promotion order dated 18.6.2008 was erroneous and in that case, the respondent no.2/competent authority shall take action against the officers and staff responsible for such erroneous promotion as per the para 228(II) (d) of the IREM and as per the note of the F.A. dated 8.10.2008 in the file, if such action has not been taken already.
19. The OA is allowed in part as above. No costs.
(Rakesh Sagar Jain) (Gokul Chandra Pati)
Member (J) Member (A)
/pc/