Central Administrative Tribunal - Bangalore
M Ravindra Rao vs South Western Railway on 11 August, 2022
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OA.No.170/00072/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO. 170/00072/2019
ORDER RESERVED ON:-20.04.2022
DATE OF ORDER: 11.08.2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench at
Bangalore)
M. Ravindra Rao,
S/o M. Ramanaiah,
Senior Section Engineer/Permanent Way/Engineering Control
Office of the Divisional Manager,
South Western Railway, Bangalore Divisional Office,
Residing at 167/D, Railway Quarters,
Vasant Nagar, Bangalore-560 042. ....Applicant
(By Advocate, Shri T.C. Govindaswamy- through video conference)
Vs.
1. Union of India Represented by
The General Manager,
South Western Railway HQ, Hubli P.O.,
Pin-580 020, Dharwad District, Karnataka.
2. The Chief Personnel Officer,
South Western Railway HQ, Hubli P.O.,
Pin-580 020, Dharwad District, Karnataka.
3. The Principal Chief Engineer,
South Western Railway HQ Office, Hubli Division ,
Hubli--580 020, Dharwad District, Karnataka. ....Respondents
(By Shri J. Bhaskar Reddy, Senior Panel Counsel- through video conference)
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ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
a) To direct the respondents to include the name of the applicant in panel bearing No. SW/R(HQ)/P.607/Gr. "B" Selection/Civil Engg/2012 dated 09.01.2013.
b) To direct the respondents to consider and promote the applicant as Assistant Divisional Engineer in Group 'B' service along with those who were promoted pursuant to the selection process initiated vide letter No. SWR(HQ)P.607/Gr."B"Selection/CivilEngg/2012/70% dated 03.07.2012 with all consequential benefits, including arrears of pay and allowances, arising there from.
c) To direct the respondents to grant the applicant the benefit of promotion as Assistant Divisional Engineer at par with those who have been promoted pursuant to Panel notified vide No. SWR(HQ)P.607/Gr."B" Selection/Civil Engg/2014/70% dated 03.05.2016 with all consequential benefits including arrears of pay and allowances, arising there from.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant belongs to Scheduled Caste community. He commenced his service as a Permanent Way Inspector with effect from 21.06.1990 and became a Senior Section Engineer/Permanent Way with effect from 3 OA.No.170/00072/2019/CAT/Bangalore Bench 01.11.2003 in the scale pay of Rs.6500-10500 (PB 2 + Grade Pay of Rs.4600/-). His next promotion in the hierarchy was to be to the post of Assistant Divisional Engineer (Group 'B') in the Pay Band of (PB-2 + Grade Pay of Rs.4800/-).
b) The respondents notified a proposal to fill up 19 vacancies of Assistant Divisional Engineer (Group 'B') (UR-15, SC-03, ST-01) against the 70% quota to the filled through a Departmental Examination vide communication No. SWR (HQ) P.607 /Gr. "B" Selection/ Civil Engg /2012/70% dated 03.07.2012.
c) The applicant's name was notified at serial no. 13 of Annexure -B (Standby list). He expressed his willingness to participate in the selection process and requested to include his name for Pre-Selection Coaching referred to in Para 8 of the above mentioned letter dated 03.07.2012.
d) Subsequently, the respondents published a list of 61 names of Final Eligibility List in which the applicant's name was omitted. The applicant's name was also not seen included in the list of candidates, belonging to SC/ST Community, to be sent for Pre-Selection Training.
e) The applicant filed O.A. No.491/2012 in which an interim order was issued on 21.08.2012 by this Tribunal vide which the applicant was directed to be allowed to write the examination on 28.08.2012 with the rider that the result of the examination be kept in a sealed cover. The applicant was then allowed to write the examination but the O.A. was finally dismissed vide an order dated 20.02.2013.
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f) The applicant filed Writ Petition No.15020/2013 (S-CAT) against this Tribunal's order dated 20.02.2013 which was allowed in the applicant's favour vide an order dated 27.01.2014. In their judgment, the Hon'ble High Court of Karnataka further directed that the petitioner belongs to SC community and since he was not initially included in the eligibility list, he was not allowed to appear for the coaching classes. If he fails in the examination taken by him pursuant to the interim order of the Tribunal, he should be provided with special coaching in terms of Clause 8 since he belongs to SC community and through a fresh examination, he should be considered for promotion in accordance with law.
g) A Review Petition No.320/2014 in Writ Petition No.15020/2013 (S-CAT) was filed by the official respondents to the extent of the observations made by the Hon'ble High Court for providing training to the applicant, if he fails in his earlier attempt. The said RA was disposed of by the Hon'ble High Court vide orders dated 15.12.2017.
h) During the pendency of the aforesaid mentioned proceedings, the respondents, vide notification bearing no. SWR/HQ/P.607 Gr 'B' Selection/Civil Engg/2014/70% dated 19.02.2015, published another notification inviting willingness/unwillingness from the enlisted candidates for promotion against the very same 70% quota. This time the applicant was given the necessary pre-selection training. He was included in the final eligibility list, and also subjected to the written test and viva voce. As per para 2 of the communication bearing no. SWR(HQ)P.607/Gr.
"B" Selection/Civil Engg/2014/70% dated 03.05.2016, it was stated that 5 OA.No.170/00072/2019/CAT/Bangalore Bench the name of the applicant will be considered for inclusion in the above provisional panel, depending upon the outcome of 'Major Penalty Disciplinary Proceedings' pending against him for which one SC vacancy was reserved.
i) The Major Penalty Proceedings against the applicant ended in imposition of a major penalty of "removal from service" vide order dated 20.07.2016.
An appeal was filed against the aforesaid penalty which was disposed of vide order dated 24.03.2017 vide which the penalty of removal from service was modified to one of "reduction in the same Grade Pay by 5 stages for a period of 02 years with recurring effect". A Revision Petition filed against the same before the Respondent No.1 was rejected. The applicant was reinstated back into service on 31.03.2017.
j) The applicant submitted that the panel with reference to notification bearing no. SWR(HQ)P.607/Gr. "B" Selection/Civil Engg/2012/70% dated 03.07.2012 (Annexure -A1) was finally published on 9.1.2013. Going by the judgment of the Hon'ble High Court of Karnataka, the applicant ought to have been included at the appropriate place with all consequential benefits arising therefrom. In any case, the applicant was free of cloud, even on the date of notification bearing no. SWR/HQ/P.607 Gr 'B' Selection/Civil Engg/2014/70% dated 19.02.2015, vide which willingness/unwillingness had been invited from the enlisted candidates for promotion against the very same 70% quota. The applicant ought to have been considered and promoted as Assistant Divisional Engineer at par with his colleagues.
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3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant's name had not been included in the list of eligible candidates notified vide No: SWR(HQ)P.607/Gr B Selection/Civil Engg/2012/70% dated 26.07.2012 (Annexure A-2), since he was not coming within the field of eligibility. However, vide interim orders dated 21.08.2012 issued by this Tribunal in OA.No.491/2012, the applicant was allowed to write the written examination. The OA was finally dismissed by this Tribunal on merits vide its order dated 20.02.2013.
b) The applicant approached the Hon'ble High Court in W.P.No.15020/2013 (S-CAT), against this order of this Tribunal. The Honorable High Court vide order dated 27.01.2014 while setting aside the order of the Tribunal stated that "if he fails in the examination taken by him pursuant to the interim order of the Tribunal, he should be provided with special coaching in terms of Clause-8 since he belongs to SC community and a fresh examination has to be conducted for him. If he passes in the examination, he should be considered for promotion in accordance with law".
c) A Review Petition No.320/2014 (S-CAT) was filed by the respondents against this order of the Honorable High Court. The Hon'ble High Court vide its order dated 15.12.2017 disposed of the Review Petition with the direction that "to provide training to the respondent herein was in the peculiar facts and circumstances of the present case so as to provide an 7 OA.No.170/00072/2019/CAT/Bangalore Bench opportunity to the respondent herein and the same shall not be construed as a precedent for any other case, in which the facts are not similar to the facts herein. In such case, if any contentions in that regard are raised, the same would be considered on its own merits without reference to the order under review."
d) The applicant had not qualified in the written examination held in 2012. A fresh selection was initiated and necessary notification was issued vide No.SWR/HQ/P. 607/Gr 'B' Selection/ Civil Engg/2014/70% dated 19.02.2015 for 13 vacancies (UR-08, SC-03 & ST-02). The applicant was included in the final eligibility list of this selection process and was also provided necessary pre-selection training. He was subjected to the written examination and viva voce and was finally placed in the panel as per the communication No. SWR/HQ/P. 607/Gr 'B' Selection/ Civil Engineering/2014/70% dated 03.05.2016. At that point of time, major penalty proceedings were going on against the applicant. Hence, one SC vacancy was kept reserved in case the applicant was to be considered for inclusion in the panel depending upon the outcome of the major penalty proceedings.
e) The major penalty proceedings against the applicant ended in imposition of major penalty of removal from service as per order dated 20.7.2016. The appeal against the penalty was disposed of on 24.03.2017, by imposing a penalty of 'Reduction in the time scale of pay by 5 stages for two years with recurring effect. The penalty will have the effect of postponing his future increments of pay on restoration. The period from the date of removal to reinstatement is to be treated as dies-non.' 8 OA.No.170/00072/2019/CAT/Bangalore Bench
f) The case of the applicant was referred to the next higher authority i.e. Railway Board for taking a final decision regarding his suitability or otherwise for empanelment/ promotion as AEN. The Board decided the applicant to be unsuitable for promotion. This was communicated to the applicant vide letter dated 23.05.2018.
g) A subsequent process of selection of ADEN/AEN was again initiated vide notification No.SWR/HQ/P. 607/Gr 'B' Selection/ Civil Engg/2018/70% dated 18.10.2018. The applicant was again imparted pre-promotion training for this selection process. He has been selected and empanelled for the post of ADEN/AEN, vide panel No.104 dated 15.02.2019. However, it was decided that he could be promoted only after completion of the penalty imposed on him of reduction to lower stage which ended on 31.03.2019.
h) The applicant had not qualified in the selection process initiated in 2012.
He had qualified in the selection process initiated in 2015. However, since major penalty proceedings were pending against him when the panel was issued on 03.05.2016, he was considered to be unsuitable for promotion. Subsequently he was imposed with the penalty of reduction in the time scale of pay by 5 stages for two years w.e.f. 24.3.2017. This penalty period was completed on 31.3.2019. The applicant was subsequently promoted as Group 'B' officer vide office O.O.No.141/GAZ/2019 dated 06.05.2019.
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i) The applicant has requested for his inclusion in the provisional panel finalized on 9.1.2013, and consequent promotion in the year 2013. However, since, the applicant had not qualified in these selections held in 2012, he is ineligible to be considered for the same. He has been promoted on 06.5.2019 subsequent to appearing in the selection process initiated vide No. No.SWR/HQ/P. 607/Gr 'B' Selection/ Civil Engg/2018/70% dated 18.10.2018, after having qualified in the written examination and viva voce. He has been promoted after completion of his penalty period which ended on 31.3.2019.
j) The Board vide letter dated 10.12.2018 had advised to process the case for implementation of the directives of the Hon'ble High Court dated 15.12.2017 as a special case with the same not being construed as a judicial precedent. Accordingly, CGE/SWR/UBL was advised to conduct a special coaching i.e. pre-promotional training in favor of the applicant vide letter No.SWR/HQ/P.607/Selection/Civil Engg/2012/70%/Pt. dated 23.01.2019. The applicant was advised vide letter No.SWR/W.349/70%/14255 dated 06.02.2019 to attend the pre promotional training to be conducted from 18.02.2019 to 08.03.2019. However, the applicant though relieved vide Sr.DEN/Co.ord/SBC's letter No. B/W.135/LDCE dated 14.02.2019 did not report or attend the proposed training. Sr.DEN/Co.ord/SBC was informed vide CGE/WR/UBL's letter No. SWR/W.349/70% dated 18.02.2019 that the applicant did not attend the training and no information has been received from him.
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k) During this process, a fresh selection was on hand, for which the notification was issued vide No. SWR/HQ/P.607/Gr.'B' Selection/Civil Engg/2018/70% dated 18.10.2018 for 06 vacancies (UR-05, SC-01 & ST-
00). The applicant appeared for the due selection, qualified in the written examination, viva voce and was subsequently empaneled in the panel and promoted as Group 'B' officer vide office O.O.No.141/GAZ/2019 dated 06.05.2019.
4. In his rejoinder filed by the applicant, he has averred as follows:
a) On 19.05.2015 a fresh selection was initiated, in which the applicant was considered to be eligible. It is also a fact that the applicant was granted the requisite training as the member of the SC community. The applicant qualified in the written examination as well as in the viva voce. However, he was not placed in the panel, on account of the pendency of the departmental proceedings. Having qualified in the written examination, going by the admitted position and in implementation of the orders of the Hon'ble High Court, the respondents ought to have included the applicant at the appropriate place in the panel notified on 9.1.2013 (Annexure A-
14), against the vacancy meant for the member of SC community.
b) The present OA was filed in early 2019, well before Annexure R-1 produced by the respondents, vide which he has been asked to give reasons for not attending the pre-promotional training to be provided to him. Just prior to the filing of the present OA, the respondents had commenced another process of selection against 70% quota as per letter No.SWR/HQ/P.607/Gr 'B' dated 18.10.2018. The applicant was given the 11 OA.No.170/00072/2019/CAT/Bangalore Bench requisite pre-promotional training, and he qualified in the written examination as well as the viva voce examination conducted on 15.2.2019.
The panel for the selection was released on the same day i.e. on 15.02.2019. The applicant was also promoted as Assistant Divisional Engineer as per an office order No.141/GAZ/2019 dated 06.05.2019.
5. In their reply to the rejoinder filed by the applicant, the respondents have reiterated the points which have already been filed by them in their reply. They have also stated that the applicant had been found unsuitable for promotion keeping in view the penalty proceedings against him. This decision was communicated to the applicant vide office letter No.SWR/HQ/P.607/Group 'B' Selection/Civil Engineering/2014/70% dated 23.05.2018. They have also stated that the applicant subsequently participated in a fresh selection process for which notification was issued vide letter dated 18.10.2018. He was empanelled and finally promoted as Group 'B' officer vide order dated 06.05.2019.
6. Heard the learned counsels for the parties and perused the pleadings made by them.
7. In the present case, the applicant has prayed for inclusion of his name in the panel, the process for which was initiated on 3.07.2012 and finalized on 09.01.2013. As is evident from the pleadings, he had been considered to be ineligible for participating in the selection process in the year 2012. It was on the basis of an interim relief granted by this Tribunal that he could appear in the examination conducted as a part of that process. Subsequently, this Tribunal had dismissed his application. However, the Hon'ble High Court 12 OA.No.170/00072/2019/CAT/Bangalore Bench upheld his eligibility for appearing in the said examination. From the pleadings, it is also apparent, that although the applicant had participated in the examination held in the year 2012, he had failed to qualify the same.
8. The applicant is now relying on a subsequent order of the High Court confirmed on 15.12.2017, vide which it had been directed that in case he failed in the examination, he should be granted pre-promotional training, since he belongs to SC community, and subsequently a special examination should be conducted for him. However, by the time these orders of the Hon'ble High Court were confirmed on 15.12.2017, the applicant had already participated in the subsequent selection process conducted in the year 2015. In that process of 2015, he had been granted pre-promotional training, and had also qualified in the examination. However, he was denied promotion since he was considered unsuitable on the ground that major penalty proceedings were pending against him when the panel was issued on 03.05.2016.
9. The Honourable Apex Court in case of Union of India Etc. Etc. vs K.V. Jankiraman Etc. Etc. decided on 27 August, 1991 (1991 AIR 2010, 1991 SCR (3) 790), had observed as under:
"An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he 13 OA.No.170/00072/2019/CAT/Bangalore Bench is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified."
10. In the present case the applicant had failed to qualify in the selection process conducted in 2012. He had participated in the subsequent selection process of 2015 and had also qualified in it. Once he has participated in the subsequent selection process, then his claim to be a part of the earlier selection process stands automatically extinguished. Even if, for the sake of argument, it is presumed that the applicant had appeared in the pre-promotional training and the examination of 2015, as a part of the earlier selection process in 2012, even then, he could not have been promoted, since he was found to be unsuitable by the respondents in 2015 on the ground of having major penalty proceedings against him which finally culminated in his removal from service. The major penalty imposed on him, after review, was reduced to a lesser penalty of reduction in the time scale of pay by 5 stages for two years with recurring effect. The period of this major penalty ended on 31.3.2019. The applicant was therefore not at all eligible for promotion prior to the culmination of the period of penalty i.e. till 31.3.2019. The applicant has been 14 OA.No.170/00072/2019/CAT/Bangalore Bench finally promoted on 06.05.2019, subsequent to his successful participation in the third selection process initiated in the year 2018.
11. Keeping the above points in view, there is no merit in the present application and the same deserves to be dismissed. Accordingly, the Original Application is dismissed.
12. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
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