Central Administrative Tribunal - Hyderabad
Gulab Namdev vs General Manager on 14 October, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD Original Application No. 327/2006 Date of Order : 14.10.2008 Between: Gulab Namdev ... Applicant And 1.General Manager, S.C.Railway, Secunderabad. 2.Divisional Railway Manager, Nanded Division, S.C.Railway, Nanded. 3.Senior Divisional Personnel Officer, S.C.Railway, Nanded Division, Nanded. 4.Chief Crew Controller, S.C.Railway, Nanded Division, Nanded. ... Respondents Counsel for the applicant ... Mr.S.Lakshma Reddy Counsel for the respondents ... Mrs.M.Venkateswari CORAM: Hon'ble Mr.Justice P.Lakshmana Reddy ... Vice Chairman Hon'ble Mr. H.Hriday Narain ... Member (Admn.) ORAL ORDER
{As per Hon'ble Mr. Justice P.Lakshmana Reddy, Vice Chairman } Heard Ms.Lakshmi representing Mr.S.Lahskma Reddy, learned counsel for the applicant and Mrs.M.Venkateswari, learned standing counsel for the respondents.
3. The applicant approached this Tribunal being aggrieved by the denial of promotion as Diesel Assistant from the cadre of Fireman Gr-II. The applicant pleaded in his application that he was promoted as Fireman Gr-II on 13.12.1983 in Hyderabad Division and during the years 1988-89 several of his juniors were promoted as Diesel Assistants and again during the year 1998 promotions were issued in which the applicant's name was not considered on the ground that he crossed 45 years of age and his case was not considered on the ground that he has not passed psychological test. The applicant made representations to the respondents 2 and 3 and also brought to the notice of th higher officials that he has already passed the Diesel Assistant Conversion course at DTTC Guntakal G&SR course held at Zonal Training College at Moulali and has been passing the refresher course conducted from time to time and he was also being utilized as Diesel Assistant and the psycho test which was not applied to his juniors cannot be applied to him. The applicant made representations on 03.08.2002, 28.10.2002 and finally to the first respondent on 12.06.2003 and also the Director of Public Grievances on 20.07.2003. But his representations were not considered and in the meanwhile the Hyderabad division was bifurcated and the applicant continuing in Nanded Division and holding the post of Fireman in the substantive capacity. The applicant made representations to the 3rd respondent on 08.11.2004 and to the 2nd respondent on 12.07.2005. The respondents have not considered the representations. The applicant further pleaded that he belong to SC community and entitled to be considered for promotion for the Diesel Assistant post against the reserved vacancies and if necessary in relaxation of rules and to promote him on adhoc basis for a period of six months as per the Railway Board instructions. While that being so, the 4th respondent communicated the impugned order stating that the applicant could not be booked on line till further orders and to be utilized on stationary duties. It is further pleaded that since there is no Fireman Gr-II cadre and the post held by the applicant is not existing in division, and therefore the respondents have taken the decision to suppress the said post. The applicant contended that he is deprived of his right to running allowance attached to the post of Fireman Gr-II or Diesel Assistant post and it will effect his pay and allowances and such an action on the part of the respondents involving civil consequences without notice or opportunity is totally illegal and in violation of natural justice. The applicant prayed for the relief of quashing the impugned order dated 29.03.2005 and for a direction to the respondents to consider the applicant for promotion to the post of Diesel Assistant in accordance with the Railway Board dated 29.04.1977 and another letter dated 05.05.1977 with all consequential benefits.
2. The respondents contested the application and filed reply stating that the applicant was appointed as Gangman in the scale of Rs. 200-250 in the erstwhile Hyderabad Division and thereafter transferred to office of Loco Foreman, Purna w.e.f. 04.07.1977 as per the Assistant Engineer, Jalna's letter dated 11.05.1977 as Shed Cleaner Purna in scale Rs.196-232 in the lower scale at his request. He was in Steam Shed, Purna as Shed Cleaner and was promoted to Fireman-C in scale Rs.210-270 w.e.f. 22.02.1984 but not from 13.12.1983 as alleged by the applicant. In the year 1989 the steam shed which was located at Purna for the maintenance of Steam Locomotives was dismantled as the Steam Engines were phased out and Diesel Engines were introduced. As the Diesel Engines do not require maintenance as frequently as required for Steam Engines, the Loco Shed was not required to be provided at Purna and it has resulted the surplus staff who were working in the Steam Shed at Purna. While so the administration in the interest of employees and following the principles of natural justice has redeployed the said surplus staff in different departments of the railways. Two years before dismantling of the Steam Shed, the applicant who was working as Shed Cleaner at Purna was utilised in alternative redeployment and given promotion as Fireman Grade-II. The applicant as part of his duties as Fireman Gr-II he used to break hard coal into small pieces, oil locomotives, clean the ash in the bulk stored coal and to maintain the water level in the locomotives on the ground. He was merely used as assistant to the Fireman Grade-I , but he was never utilised for the operation of Steam Locomotives and he was used only for ground duties. As per the Railway Board's instructions the administration has taken a decision to send the surplus staff for the conversion course at DTTC, Guntakal and G & SR course held at Zonal Training College, Moula Ali and subsequent requisite courses time and again to give opportunity as per Board's instructions dated 29.04.1977 and reiterated vide letter dated 05.05.1977. The applicant was one among the others who were sent to DTTC, Guntakal and G & SR course and subsequent refresher courses. The respondents further pleaded that the post of Diesel Assistant is sensitive and falls under identified as safety category. The recommendations by high level committee vide Serial Circular No.109/2003 the instructions contained therein are to be strictly adhered to without any relaxation in direct recruitment through RRB and in service promotion while conducting selection. In terms of Serial Circular No.95/1997 the Railway Board's instructions the vacancies in the category of Diesel Assistant/Electrical Assistant are required to be filled 50% by lateral induction from amongst the first Fireman who passed atleast 8th class pass and below 35 years of age and the balance 50% of the vacancies by lateral induction of matriculate first Fireman with minimum 3 years continuous service and in the case of shortfall if any to be made good by departmental examination from amongst matriculate cleaner with five years continuous service. The respondents further pleaded that in view of the safety of the passengers the high level committee has recommended the psycho test which has to be cleared by the applicant. As per the Serial Circular No.78/2003 the serving staff are required to be subjected to psycho test at the stage of promotion to the post of Diesel/Electric Assistants and at the stage of deployment of drivers a person who fails in the psycho test is not eligible to be included in the panel. The respondents pleaded that the applicant was sent for psycho test thrice and on all the three occasions the applicant failed the psycho test and therefore he was not eligible to be promoted as Diesel Assistant and hence he could not be promoted. The respondents pleaded that the applicant is not entitled for any running allowance as part of his pay. It is further pleaded that Diesel Assistant post is not a reserved post and it is a post identified as safety category and one has to pass the procedural selection viz. psycho test and therefore the applicant cannot claim promotion on the ground that he belong to reserved category. The respondents prayed for dismissal of the OA.
3. The applicant filed rejoinder stating that Diesel Assistant post is a safety category post but several of the Fireman C who are not possessing the requisite educational qualifications were also promoted to Diesel Assistant post as one time measure and many of the juniors to the applicant were promoted subject to passing psycho test. He further pleaded that the applicant also passed the psycho test as early as on 02.04.2002 and has passed all other tests such as Diesel conversion course, DTTC, Guntakal and G&SR course from ZTC, Moula Ali and in spite of it he was not promoted and the reason given by the respondents was that he failed in psycho test and therefore he was not promoted is not correct, as the applicant passed the psycho test as early as on 02.04.2002. Learned counsel for the applicant further pleaded that the impugned order amounts to reversion from the existing substantive posts of Fireman Gr-II to lower non running post without running allowance and therefore the action of the respondents is in gross violation of Article 311 of Constitution of India and against his right for promotion to the post of Diesel Assistant on par with his juniors and therefore the same is liable to be declared as illegal, without jurisdiction and discriminatory.
4. During the course of hearing learned counsel for the applicant reiterated the contentions raised in the application and the rejoinder. On 25.06.2007 when the matter came up for hearing, learned counsel for the respondents submitted that the applicant was sent for psycho test for thrice i.e. on 10.08.1999, 28.08.2000 and 05.04.2002 and in all those dates the applicant failed. Learned counsel for the applicant contended that the applicant attended the psycho test held on 02.04.2002 and he was found suitable in the psycho test. Considering rival contentions the Tribunal felt that this was purely a question of fact and hence directed both the parties to produce the result of psycho test conducted on 02.04.2002 and 05.04.2002. Now the learned counsel for the respondents has produced the results of psycho test dated 10.08.1999 to 13.08.1999 and 01.09.1999, dated 21.08.2000 to 24.02.2000 and 02.04.2002. As per the said results the applicant failed the psycho test in all the three occasions and found not suitable.
5. Learned counsel for the applicant contended that while he was working as Fireman Gr-II on running duty he was posted to stationary duties by way of impugned order without giving him any notice and therefore it amounts to violation of principles of natural justice and that on account of posting him to stationary duties the applicant will be losing the running allowance and therefore the applicant ought to have been given notice before passing the impugned order.
6. The points that arise for consideration in this application are :
1.Whether the applicant is entitled for promotion as Diesel Assistant ?
2.Whether the impugned order is sustainable in law on account of non issue of prior notice to the applicant ?
Point No. 1:
7. As seen from the representations made by the applicant the applicant has been seeking promotion as Diesel Assistant on the ground that he is reserved candidate. The said representations were rejected on the only ground that the applicant was not found suitable in the psycho test. The respondents relied upon the Serial Circular No.95/1997, dated 10.06.1997 (A-IV)Serial Circular No.178/2003 dated 26.09.2003 (A-V) and Serial Circular No.109/2003, dated 01.07.2003 (A-VI) and Serial Circular No.206/1999 dated 19.08.1999 (A-VII) which are filed along with the reply, to show that passing of psycho test is a must for promotion to Diesel Assistant. As seen from the rejoinder the applicant admitted that the Diesel Assistant post is a safety category post . He further admitted that many of his juniors were promoted as Diesel Assistants subject to passing of Psycho test. So as seen from the rejoinder the applicant admitted that passing of psycho test is a must for promotion to Diesel Assistant. But in the rejoinder the applicant pleaded that he passed the psycho test on 02.04.2002, but the applicant failed to produce any authenticated document to show that he was found suitable. On the otherhand learned counsel for the respondents produced not only the results of psycho test dated 02.04.2002 but also results of 2 more tests held earlier. Learned counsel for the applicant simply filed one typed copy of bio-data, where under in one of the columns it is stated that he attended psycho test on 02.04.2002 and results were found suitable. There is no authenticity of the bio-data. Therefore, in the absence of any certificate given by the Doctor who examined the applicant for psycho test the bio-data given by the applicant cannot be relied upon. The respondents have produced the psycho test results issued by the Psychologist on 05.04.2002 and certified by the Divisional Personnel Officer, S.C.Railway. In view of the authenticated test reports produced by the respondents on the direction of this Tribunal, we have no hesitation to say that the applicant failed in psycho test conducted on 02.04.2002. Therefore, in our considered view the applicant's request for promotion to the post of Diesel Assistant is rightly rejected and this point is found against the applicant.
Point No. 2 :
8. The contention of the applicant in this regard is that no notice was given to the applicant who was working as Fireman Gr-II before posting him to stationary duties. The relevant portion of the impugned order reads as follows :
As per the Orders of Sr.DME-NED Shri Gulab Namdev, IInd Fireman, PAU should not be book on line till further advice and utilized on stationary duty. The orders of Sr.DME referred to in the impugned order is filed as Annexure-III along with the reply. In those orders it is stated that the applicant submitted a representation stating that he passed the requisite training of Diesel Assistants Conversional Course at DTTC/GTL and G&SR initial course at ZTS/MLY and he requested for promotion as Diesel Assistant. But as per the circular No.109/2003 and 178/2003 the post of Diesel Assistant is an identified category for which psycho test is to be conducted before absorption as Diesel / Electrical Assistant and the applicant was sent for psycho test 03 times in Hyderabad Division and as such he was not considered for promotion to Diesel Assistant in scale Rs.3050-4590 on Nanded Division and he should not be utilized as Diesel Assistant with immediate effect. So it is also not disputed that there is no post of Fireman Gr-II after the dismantling of Steam Loco Shed at Purna. All the staff working in the Loco Shed were redeployed. It is not as if that the applicant is reverted to a stationary post and posted somebody else in the place of the applicant. As the post in which the applicant was working itself was abolished and he was not found suitable for promotion he was posted on stationary duty. Merely because stationary duty post does not carry running allowance, it cannot be said that it amounts to reversion. Running allowance is only allowance for those who are on running duty to meet the expenses incurred during the journey. Running allowance cannot be treated as part of pay. The applicant will be paid pay which he was getting as Fireman Gr-II even after he was posted on stationary duty. In our considered view it does not considered as reversion and it is only redeployment and in case of redeployment there is no need for the respondents to give prior notice to the applicant. Administration has got liberty to adjust the surplus staff at appropriate place. In our considered view there is no violation of principles of natural justice and that the respondents in fact tried to utilize the running staff by giving promotion to Diesel Assistant subject to passing of psycho test and those who could not pass the psycho test were adjusted in stationary duties. As it is found that the applicant failed in the psycho test the respondents could not promote him and therefore deployed the applicant in some other stationary duty. If the applicant desires to work in some other post other than that of stationary duty, he may submit a representation to the appropriate authority and in the event of submission of such representation the respondents shall consider the same and dispose of the said representation. But the impugned order cannot be set aside on the ground that no notice was given prior to the passing of impugned order. This point is also found against the applicant.
9. The applicant is given liberty to submit a representation for appropriate posting in the cadre of Fireman Gr-II to the competent authority. In the event of filing any such representation the respondents shall consider the same and dispose of the same within three months from the date of receipt of such representation.
10. In the result the OA is dismissed with the above observations. There shall be no order as to costs.
( HRIDAY NARAIN) (P.LAKSHMANA REDDY) MEMBER (ADMN.) VICE CHAIRMAN Dated : 14th October, 2008 (Dictated in Open Court)