Central Administrative Tribunal - Jabalpur
Rajesh Pathak vs M/O Railways on 18 June, 2019
1 OA 200/01059/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/01059/2018
Jabalpur, this Tuesday, the 18th day of June, 2019
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
Rajesh Pathak, S/o Late M.N. Pathak,
Date of Birth 31.12.1964,
Presently posted as Chief Freight Traffic Manager,
West Central Railway, Jabalpur (M.P.),
R/o Bunglow No.15, Railway Officers Colony,
Rail Sourabh, Kanchghar, Jabalpur (M.P.)
-Applicant
(By Advocate - Shri Manoj Sharma)
Versus
1. Union of India through its Secretary,
Ministry of Railway, Rail Bhawan,
New Delhi - 110001.
2. Railway Board, Rail Bhawan, New Delhi - 110001.
Through it's Secretary.
3. Chairman, Railway Board, Rail Bhawan, New Delhi -
110001.
4. Director (Establishment) Railway Board,
Rail Bhawan, New Delhi - 110001
-Respondents
(By Advocate - Shri A.S. Raizada for the respondents and
Shri Sanjayram Tamrakar for Intervenors)
(Date of reserving order : 09.05.2019)
Page 1 of 17
2 OA 200/01059/2018
ORDER
By Navin Tandon, AM.
The applicant is aggrieved that his request for posting as Divisional Railway Manager (DRM) has been rejected by the respondents.
2. The applicant has submitted as under:
2.1 He belongs to 1988 batch of Indian Railway Traffic Service (IRTS) and his date of birth is 31.12.1964.
2.2 He was regularly promoted to higher posts and is presently in Senior Administrative Grade (SAG). He has been awarded by the Department several times. The applicant has been graded as outstanding and he has also been found fit for posting as DRM by the Reporting, Reviewing and Accepting Authorities in the APARs (Annexure A-2-A).
2.3 The Vigilance Department had conducted a preventive check in which the answer sheets of LDCE for Assistant Operations Manager was seized on 14.02.2013.
Further a questionnaire was issued to the applicant on 21.11.2013 alleging some irregularities in evaluation of answer sheets of LDCE for Assistant Operations Manager Page 2 of 17 3 OA 200/01059/2018 by the Chief Vigilance Officer. This was promptly replied on 23.11.2013.
2.4 He was issued with a charge-sheet dated 16.06.2015 (Annexure A-4) regarding irregularities in the evaluation of answer sheets in LDCE of Assistant Operations Manager. He immediately replied to the said charge-sheet on 31.07.2015. The Inquiry Officer and Presenting Officers were appointed on 22.02.2016 to hold the departmental enquiry to the chargesheet dated 16.06.2015. The departmental enquiry was closed by the Inquiry Officer on 16.07.2016.
2.5 To the best of knowledge of the applicant, the Inquiry Officer had prepared and submitted his report to the Disciplinary Authority within the next one month. After almost two years, a copy of the inquiry report along with Disciplinary Authority's memorandum of disagreement was served to the applicant vide letter dated 06.06.2018 (Annexure A-9), which was received by him on 07.06.2018. The applicant duly replied to the disagreement note on 07.06.2018 (Annexure A-10). Page 3 of 17
4 OA 200/01059/2018 2.6 The Disciplinary Authority exonerated the applicant on 10.07.2018, which was communicated to the applicant vide letter dated 23.07.2018 (Annexure A-11). 2.7 Meanwhile, the applicant was eligible and due for his posting as DRM for the panel of the year 2016-17, which was to be prepared w.e.f. 01.07.2016. His name was excluded from the select list due to pending disciplinary proceedings. Several of his batchmates and juniors were included in that panel.
2.8 The applicant submitted his request for posting as DRM on 30.07.2018 (Annexure A-14). The same has been rejected through Railway Board's letter dated 12.09.2018, communicated to the applicant on 26.10.2018 (Annexure A-1).
2.9 The applicant submits that the respondent department has taken abnormally long time in concluding the disciplinary proceedings vis-à-vis the model time frame given by CVC and DoPT guidelines (Annexure A- 12 collectively).
3. He has sought for the following reliefs:
"8. RELIEF SOUGHT:Page 4 of 17
5 OA 200/01059/2018 It is, therefore, prayed that this Hon'ble Court may kindly be pleased to:-
8.(i) Summon the entire relevant record from the possession of the official respondents for its kind perusal;
8.(ii) Quash and set aside the impugned rejection order dated 12.09.2018 Annex.-A/1 (Served to applicant on 26.10.2018;
8.(iii) Command the direct the respondent authorities to hold, declare and quash Clause 12 of the guidelines dated 16.08.2016;
8.(iv) Any other order/orders, which this Hon'ble Court deems, fit proper.
8.(v) Cost of the petition may also kindly be awarded."
4. The respondents, in their reply, have submitted as under:
4.1 The posts of DRM are general ex-cadre posts and are filled from eight (08) Group 'A' Railway services, which includes Indian Railway Traffic Services (IRTS).
The posts of DRM are not filled up by promotion but by posting from amongst officers who are already working in Senior Administrative Grade. These posts are within 'selection' posts and not 'promotional' posts. 4.2 From the panel year 2016-2017 onwards, the procedure for short listing and posting of DRMs in the Indian Railways are regulated by guidelines contained in the Ministry of Railways' letter No.E(O)III/2016/PI/02 Page 5 of 17 6 OA 200/01059/2018 dated 16.08.2016 (Annexure A-7). In terms of Para 10 of these guidelines, at the time of inclusion in the shortlist as well as at the time of actual posting as DRM, officers should be clear from vigilance angle.
4.3 In terms of Para 12 of the guidelines dated 16.08.2016, once the short list of DRM for a particular year has been prepared and approved by the competent authority, no officer shall be considered for short listing/posting as DRM even if he happens to fulfill the eligibility conditions at a later point of time. 4.4 In Para 15 of the guidelines, it has been clearly stated that for the purpose of interpretation/application of these guidelines, the decision of the Ministry of Railways shall be final.
4.5 Since a major penalty chargesheet was pending against the applicant at the time of consideration of his name for inclusion in the DRM short list for 2016-2017, the selection committee did not recommend inclusion of his name in the said short list.
4.6 The disciplinary proceedings being quasi-judicial in nature requires that before submitting the same to the Disciplinary Authority for a final decision, all the Page 6 of 17 7 OA 200/01059/2018 facts/circumstances and records of the case have to be examined in detail. In this process, time is taken to scrutinize the documents, examination of cases as per rules and also requires comments/advice from the CVC. 4.7 In view of Rule 12 of Board's guidelines dated 16.8.2016 which provides that once the short list of DRM for a particular year has been prepared and approved by the competent authority, no officer shall be considered for short listing/posting as DRM even if he happens to fulfill the eligibility conditions at a later point of time and in view of the fact that the applicant had already crossed the upper age limit of 52 years, the request of the applicant for his posting as DRM from the current short list could not be agreed. The position has already been conveyed to the applicant vide letter dated 12.09.2018 (Annexure A-
1).
4.8 The next promotion of the applicant is to Higher Administrative Grade (HAG) for which he is not due at this point of time.
4.9 The process of short listing eligible officers and posting them against the posts of DRMs is not a promotion necessitating adoption of 'Sealed Cover' Page 7 of 17 8 OA 200/01059/2018 which is applicable only in cases of promotion from one feeder grade to the next higher grade. Consequent upon his exoneration in July 2018, the applicant having already crossed the upper age limit of 52 years is no more eligible to be considered for inclusion of his name in the current DRM short list for the year 2018-2019.
5. Shri Vidyadhar A. Malegaonkar, an IRTS officer of 1991 batch has filed an intervention application. He submits that his name is in the select list for posting as DRM for the year 2018- 2019. His date of birth is 18.03.1967. Therefore, for the panel year 2019-2020, he would be more than 52 years of age as on 01.07.2019 and, therefore, he would lose his right to be posted as DRM. In the present select list, all the officers above him have already been posted as DRM (Annexure IR-2 collectively). His orders for DRM have not been issued since this Tribunal vide order dated 01.02.2019, have directed the respondents "to keep one post of DRM from IRTS quota vacant and cannot be operated from the current panel." On account of such interim orders, the right of the intervener to be posted as DRM would be frustrated for no fault of his.
Page 8 of 17
9 OA 200/01059/2018 5.1 In case the intervener is not posted as DRM, his promotion to the post of General Manager would be jeopardized as per the policy guidelines issued vide resolution dated 16.08.2016 (Annexure IR-3).
6. Heard learned counsel for the parties and perused the pleadings available on record.
7. Learned counsel for the applicant argued that the applicant is a very bright officer and he was likely to be included in the select panel for 2016-2017 as DRM. The respondents have deliberately delayed the finalisation of the Vigilance case at every stage. In the Vigilance cases, there are clear guidelines/time limits (Annexure A-12 collectively) from Central Vigilance Commission (CVC) for conducting investigation and departmental enquiries. The applicant has prepared a chart (Annexure A-13), wherein it has been clearly indicated that the respondents have taken extra 1515 days to finalise his Vigilance case, i.e. over and above the time limits prescribed by the CVC. Had this avoidable delay not happened, the applicant would have been cleared of the disciplinary proceedings much before the select panel for 2016-2017 was Page 9 of 17 10 OA 200/01059/2018 prepared. He highlighted the fact that he was exonerated from all the charges on 10.07.2018 (Annexure A-11). 7.1 He placed reliance on Union of India & Ors. vs. K.V. Jankiraman & Ors. (1991) 4 SCC 109 and argued that the applicant should not be punished for no fault of his as regards his posting as DRM. He also cited the judgment of Hon'ble Delhi Court in W.P. (C) 4871/2017 dated 23.08.2017 in the case of Union of India & Anr. vs. D.C. Sharma & Anr. as well as the orders of the Principal Bench of this Tribunal in OA No.3030/2017 dated 08.01.2019 (Shishir Dutt vs. Union of India & Ors.) and OA-3831/2018 dated 04.02.2019 (Sameer Dikshit vs. Union of India & Ors.)
8. On the other hand, learned counsel for the respondents submitted that the Vigilance case has been dealt with as per the procedure laid down. His name was not considered for inclusion in the select list of 2016-2017 as disciplinary proceedings were going on against him. Subsequent to his exoneration in the disciplinary proceedings, he had become more than 52 years of age. His subsequent request for posting as DRM has been correctly rejected by the respondents on 12.09.2018 (Annexure Page 10 of 17 11 OA 200/01059/2018 A-1) in terms of Para 12 of the guidelines of posting as DRM (Annexure A-7).
9. Learned counsel for the intervener submitted that he is first on turn in the panel of 2018-2019 to be posted as DRM from IRTS quota. He has prayed for vacating the stay granted by this Tribunal. He argued that the applicant has no locus standi for being considered for posting as DRM as he has already crossed age of 52 and he is not in a select list for 2018- 2019.
FINDINGS
10. During the argument, both the learned counsel for the respondents as well as intervener highlighted the fact that posting as DRM is not a promotion. It is only a posting from a select list from Senior Administrative Grade (SAG), and after completing the term as DRM, an officer is again posted in the cadre in SAG.
11. Learned counsel for the applicant agreed that posting as DRM is not a promotion. However, he urged that it is a prestigious assignment and posting as DRM is a prerequisite for being considered as General Manager (Open Line) (Annexure IR-3). Therefore, by not posting the applicant as DRM for no Page 11 of 17 12 OA 200/01059/2018 fault of his, he would be debarred from posting as General Manager (Open Line).
12. We find that in this case the Vigilance department seized the answer-sheets for selection on 14.02.2013. However, the chargesheet was issued to the applicant on 16.06.2015, i.e. after more than two years. Further from perusal of Para 4.3 of the O.A and Para 4.0 of the reply of the respondents, it is seen that the Inquiry Officer submitted his report on 16.07.2016. However, the Disciplinary Authority sent his disagreement note in June 2018, i.e. almost two years. From the above, it is very clear that the time taken by the respondents in concluding the disciplinary proceedings was far beyond the time limits set by CVC itself. The applicant cannot be faulted for this.
13. It is also worthwhile to mention that the Disciplinary Authority exonerated the applicant from all the charges.
14. In the matters of K.V. Jankiraman (supra), the Hon'ble Apex Court has held as under:
"(16)........The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, Page 12 of 17 13 OA 200/01059/2018 increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately........
xxx xxx xxx (24)......As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly."
15. While the case of K.V. Jankiraman (supra) deals with promotion, but it has highlighted the pitfalls of pending disciplinary proceedings, where the officer is not at fault. It is very clear that posting of DRM is not a promotion but it is a steppingstone for reaching the higher echelons of the hierarchy. An officer, who has been graded as 'outstanding' by his superiors, would obviously expect to have forward movement in his career in a respectful manner. The guidelines for posting as General Manager (Open Line) (Annexure IR-3) clearly indicate that posting as DRM is a prerequisite for posting as GM. Page 13 of 17
14 OA 200/01059/2018
16. In the case of D.C. Sharma (supra), decided by the Hon'ble High Court of Delhi on 23.08.2017, the officer was seeking enlistment in the select panel of DRM for the year 2014-15. The Hon'ble High Court has held as under:
"(14). Having perused the record, including the impugned order and the response furnished by the petitioner, we are of the view that there is absolutely no merit in the present petition. It is clear to us that the petitioner has acted in the most casual and cavalier manner while dealing with the case of the respondent. The petitioner has been completely unmindful of the prejudice to which the respondent was being put on account of the petitioner taking its own sweet time for finally granting the vigilance clearance to the respondent, which came to be granted on 01.06.2016 - by when he had crossed the age bar of 52 years and he was, therefore, no longer eligible to be considered for posting as DRM.
xxx xxx xxx (19). The tribunal while passing the impugned order has considered the decision of the Supreme Court in Union of India v. Alok Kumar, (2010) 5 SCC 349 on the issue of vigilance clearance. In the said decision, the Supreme Court, inter alia, observed that unless the rules so require, the advice of the CVC is not binding on the employer department. In our view, the tribunal was correct in observing that the 'Sword of Damocles' was kept hanging over the head of the respondent for almost 7 years for no valid reasons. If the petitioner were to be allowed to function in the manner as demonstrated in the facts of the present case, it would be very easy for the petitioner employer to sidetrack any deserving officer by initiating a vigilance inquiry, without any real substance, at the Page 14 of 17 15 OA 200/01059/2018 crucial time when the officer's case comes up for consideration for posting as DRM and on that basis deny the shortlisting of the officer. We cannot permit the petitioner to get away with such conduct."
17. In the matters of Shishir Dutt (supra), decided on 08.01.2019, the officer is seeking empanelment for being chosen as DRM for the year 2016-2017. While allowing the case, the Principal Bench of this Tribunal has held as under:
"(17). In terms of emoluments and rank, the applicant cannot be made to suffer a detriment. For the service rendered by him spread over three decades, which is uniformly rated as meritorious, he cannot be rewarded with denial of a post which he is otherwise entitled to, and as regards which, he has a legitimate expectation."
1 (18). The relevant rules mandate that a person can be appointed as DRM only if he is not left with two years of service. The issue of this very nature was dealt with by this Tribunal in OA No.3365/2015, D. C. Sharma vs. UOI & Ors., and it was held that by the time an officer is considered by review DPC, he crosses the age of 52 years, he cannot be denied the post of DRM. The judgment is said to have been upheld by the Hon'ble Delhi High Court.
18. In the matters of Sameer Dikshit (supra), decided on 04.02.2019, the officer is seeking inclusion in the panel for appointment to the post of DRM for the year 2016-2017. His Page 15 of 17 16 OA 200/01059/2018 name was not considered due to pending disciplinary proceedings. The Principal Bench has held as under:
"(7). We, therefore, allow the OA and set aside the impugned order dated 09.08.2018. We direct the second respondent to pass fresh orders on the feasibility or otherwise of the applicant being included in the panel for appointment to the post of DRM for year 2016-2017, duly taking into account all the developments that have taken place so far. It shall be open to the applicant to submit the relevant documents through a representation.
The orders in this behalf shall be passed by respondents within six weeks from the date of receipt of a copy of this order. We further direct that in case the second respondent is of the view that the applicant was otherwise entitled to be considered for inclusion in the panel for appointment to the post of DRM, the feasibility of convening a review DPC, without any loss of time, shall be considered. There shall be no order as to costs."
19. We are convinced with the averment of the applicant that the respondents have taken abnormally long time in finalising the disciplinary proceedings. Further, the applicant was exonerated of all the charges at the end. Therefore, it would be travesty of justice if his claim for posting as DRM is denied due to some technical stipulation.
20. In view of the settled legal position as detailed above and the facts of the case, it is our considered view that the Page 16 of 17 17 OA 200/01059/2018 applicant's case should be considered for inclusion in the select list for DRM for the year 2016-2017.
21. Accordingly, the Original Application is allowed. Respondents are directed to convene a review meeting of the Selection Committee for the year 2016-2017 and consider the inclusion of the applicant in the panel for appointment to the post of DRM. This exercise should be completed within a period of six weeks from the date of receipt of a certified copy of this order. If found fit, the applicant should be posted as DRM thereafter. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
Page 17 of 17