Central Administrative Tribunal - Allahabad
Jai Prakash vs General Manager, N E Rly on 27 April, 2023
O.A. No. 551/2021
(Reserved on 25.4.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No. 551/2021
This the 27th Day of April, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Jai Prakash son of Shri Raghunath aged about 44 years resident of Quarter
No. 559-C, BLW, Varanasi presently working as Welfare Inspector in
Production Unit, BLW, Varanasi.
......Applicant
By Advocate: Sri Vinod Kumar
Versus
1. Union of India through General Manager (P), North Eastern Railway/
BLW, Varanasi.
2. Senior Personnel Officer, BLW, Head Quarter, Varanasi.
3. Sri Dipesh Kumar Pandey, Staff No. 51200015524, presently working
as Technician Grade I (Welder) BLW at Varanasi.
...Respondents
By Advocate: Sri S.C. Mishra
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A. has been filed by the learned counsel for the applicant under Section 19 of the Administrative Tribunals Act, 1985 with the prayer for quashing the order impugned dated 30.7.2021 and to direct the respondent to restore the panel list dated 25/27.1.2021 passed by respondent No. 1 with all consequential benefits.
2. The facts in brief is that applicant is working as Technician Grade I (Fitter) BLW at Varanasi. A notification dated 17.3.2020 was issued from the office of respondents under 35% open General Selection Departmental quota whereby notifying one post of Welfare Inspector to the pay grade of Rs. 35400-112400 Level -6. Applicant being eligible applied for the same. After written test, a panel was prepared and the same has been circulated on 20.1.2021 and applicant has been empanelled as one of the selected candidate against the post of Welfare Inspector, pursuant to which applicant had joined on the post on 25/27.1.2021. Thereafter, after expiry of more than 6 months, applicant has received the impugned reversion order dated 30.7.2021, by which applicant has been reverted to the lower post of Technician Grade I (Fitter) BLW, Varanasi replacing Sri Dipesh Kumar Pandey (respondent No. 3) who was also candidate but could not be qualified Page 1 of 8 O.A. No. 551/2021 against the notified post. Applicant has challenged the revision order dated 30.7.2021 in this O.A.
3. Per contra, respondents have filed counter reply and denied the contention of the applicant. It is stated that in the aforesaid selection, based on overall performance in written examination, assessment of record of service and other criteria stipulated for selection, the selection committee recommended the name of applicant to be placed on the panel for the post of S&WL, Level 6 and after approval of the panel by the competent authority, i.e. PCPO/BLW/Varanasi, the final result was published and posting order dated 25/27.1.2021 was issued. After obtaining model answer and OMR sheet through RTI, respondent No. 3 Sri Deepesh Kumar Pandey had given a representation dated 5.3.2021 claiming that model answer of question Nos. 21 and 44 provided by question setter to evaluator are not correct whereas he had answered the same correctly. The General Manager had considered the issue and directed to re-evaluate the answer sheet of all the candidates and after re-evaluation 14 candidates were found qualified. After re-evaluation and based on over all performance, the selection committee recommended the name of respondent No. 3 to be placed on the panel for the post of S&WL, modifying the earlier recommendation and applicant has been repatriated to his parent /earlier post.
4. Heard the learned counsel for the parties. None present for the respondent No.3 despite service of notice.
5. Learned counsel for applicant argued with vehemence and contended that in the result dated 20.1.2021, applicant was declared successful and applicant assumed the charge on the selected post and received the salary against the higher post from the month of January 2021 upto July 2021. It is argued that prior to the issuance of reversion order, neither any show cause notice was issued to the applicant nor any kind of information or cause of reversion has been disclosed by the respondents. It is further submitted that in the impugned order, it is mentioned that this order is being issued in compliance of the Railway Board order dated 8.7.2009 as per provision of IREM Volume I para 219 (1) and as such the panel is being amended by replacing with respondent No. 3 and reverting the applicant on his original post. It is further argued that the circular dated 27.11.2018 provides that the promotional panel can be amended by the next higher authority than the approving authority of the panel, but in the instant case, one of the same authority i.e. General Manager (P) BLW, Varanasi himself approves the panel dated 20.1.2021 and also amend the same vide impugned order dated 30.7.2021. Learned counsel for applicant also relied on the following case laws:-
Page 2 of 8 O.A. No. 551/2021i) O.A. No. 1441/2017 (Lal Ji Prasad Gautam Vs. UOI and others) decided on 20th August , 2018- CAT, Allahabad Bench.
6. Learned counsel for the respondents argued that on a representation received from respondent No. 3 regarding model answer of question Nos. 21 and 44 provided by question setter to evaluator are not correct whereas he had answered the same correctly, the General Manager had considered the issue and directed to re-evaluate the answer sheet of all the candidates and after re-evaluation 14 candidates were found qualified and after re-evaluation and based on over all performance, the selection committee recommended the name of respondent No. 3 to be placed on the panel for the post of S&WL, modifying the earlier recommendation and applicant has been repatriated to his parent /earlier post. Learned counsel for respondents relied on the following case law:-
i) O.A. No. 76/2019 (Raja Ram Vs. UOI and others ) decided on 5th March 2019- CAT Allahabad bench.
7. Learned counsel for the applicant has filed written submission by which he has reiterated the facts as stated in the O.A. and also relied upon certain case laws in support of his claim:-
i) State of U.P. Vs. Sudhir Kumar Singh and others 2020 0 Supreme (SC) 602.
ii) Uma Nath Pandey Vs. State of U.P. AIR 2009 SC 2375
iii) M/s A.S. Motors Pvt. Ltd. Vs. Union of India 2013 AIR SCW 3830
8. We have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
9. From perusal of record, it is evident that applicant appeared in the selection and was declared successful and joined the post and worked for more than 6 months. He was reverted to his original post even without issuing any show cause notice or without intimating the cause of reversion.
10. In the case of Raja Ram Vs. UOI (supra), applicant was ordered to be reverted from the post of ACM to that of CCI purportedly on the ground that panel dated 26.6.2018 was erroneously drawn as respondent No. 6 had secured higher marks than the applicant, though in the panel his name did not figure whereas in the instant case, this is not the case. The model answers of the question Nos. 21 and 44 provided by the question setter were not correct and on representation of respondent No. 3, respondents have revaluated the answer sheet and issued a fresh panel without any show cause notice.
11. In the case of Lal Ji Prasad Gautam Vs. UOI (supra), this Tribunal has observed as under:-
"8. We have considered the submissions as well as the pleadings by both the parties. Before examining the merit, the Full Bench judgment dated 05.05.1989 in the case of Sh. Jetha Nand (supra) which was relied upon by Shri Vinod Kumar, learned counsel for Page 3 of 8 O.A. No. 551/2021 the applicant, to argue that the applicant cannot be reverted to Group 'D' post after officiating in a promotional Group 'C' post for more than 18 months, needs to be discussed. In this case, the following questions were referred to Full Bench:-
"In these circumstances, it is necessary to clarify the position of law with regard to employees working on ad-hoc basis for more than 18 months, some of those may have passed the test later and some may not have passed the test but whose work is satisfactory, could their services be regularised even if they have not passed the test? Whether they have a right to be regularised merely because their work is satisfactory and a person of more than 18 months has elapsed? If not, in what circumstances, they acquire any right, if any, to be retained in service and entitled to any relief against their reversion. Could they not be required to appear for the test. If they appeared and failed, whether any further chance should be given to them to appear and pass the test and until then whether they can be reverted or not? These and several other questions are arising in several cases and all too frequently. We, therefore, deem it necessary to refer the entire case to a larger Bench for decision on all the posts arising in this case and on all incidental points that may be relevant in this regard and for the final disposal of this case."
9. The question that is relevant for us to decide this OA is that if a Group 'D' employee, who is promoted on ad-hoc basis to a Group 'C' post after qualifying in the prescribed selection test and has worked on adhoc basis on the said promotional post for more than 18 months, whether he can be reverted after 18 months without following the Discipline and 5 Appeal Rules. The findings from the Full Bench Judgment dated 05.05.1989 as indicated below would be relevant in this regard:-
"46. It is true that the Railway Administration laid down a policy by a Circular dated 9.6.1965 that an employee who had officiated in a promotional post more than 18 months is not liable to be reverted without following the Discipline and Appeal Rules. This policy decision was, however, amended by a subsequent Circular of the Railway Board dated 15.1.1966, to say that the above principle would apply to a Railway servant who had been selected after a test and empanelled for appointment to the promotional post. The Railway have also made it clear that this principle would not Page 4 of 8 O.A. No. 551/2021 be applicable to an employee who was officiating merely as a stop-gap arrangement or on adhoc basis. Thus the criteria laid down by the Railway Board is that a Railway servant, in order to have the protection from being reverted after 18 months of adhoc officiating in a promotional post applies only in the case of those Railway servants who have been selected or empanelled for the said promotional post.
47. Reverence may be made to the Railway Board's Circular dated 15.1.1966 and the two subsequent Circulars dated 5.12.1984 and 30.4.1985 wherein the words are:
"the safeguard applies to only those employees who have acquired a prescriptive right to the officiating posts by virtue of their empanelment of having been declared suitable by the competent authorities."
This Rule laid down in Circular dated 15.1.1966 has been reiterated in Circular letter dated 5.12.1984 and Circular dated 20.4.1985. The promotion quoted above spells out the concept of right when a person is acting in adhoc capacity in a promotional post. If he is not been duly selected or until found suitable and empanelled for promotion, he does not acquire a prescriptive right for the Post provided also in these three Circulars. It will be seen that the prescriptive right to hold that post comes from the selection after a test. They are found suitable for being included in the panel of names for that post. The basic feature is that the Railway servant should first be qualified and found suitable by a test, to be empanelled for appointment to the promotional post. It is only then, he acquires a prescriptive right to hold the post. Such a person acquire a further right when he completes 18 months officiation in the in the promotional post and that is why he cannot be reverted without following the procedure under Discipline and Appeal Rules. In other words, such a person cannot be reverted except after drawing up charges against him and holding a regular disciplinary proceedings.
We answer the first question accordingly. .................. .................
56. In regard to the last question as to when an adhoc employee can be reverted the answer is that if he has been appointed in a stop-gap arrangement, he can be reverted at any time. If he has not qualified in the selection test, he can still be reverted. If he has qualified in the test and had continued in ad-hoc capacity for more than 18 months, he cannot be reverted except after Page 5 of 8 O.A. No. 551/2021 following the Discipline and Appeal Rules. Further, we have also held that a person who has so far not qualified in the selection test and is holding an adhoc post in the promotional post, he should be given several chances to qualify in the selection test and if even after repeated chances given to him he fails, there would be no other alternative but to revert him. The cardinal principle is that he must have qualified in the selection test to become suitable for the post.
57. Coming to the facts of the present case, the Applicants have been officiating for nearly 10 years or more now but they have not passed the selection test in the year 1973, 1975 and 1978. They filed a suit and obtained an injunction order from holding the test for them in 1981 and they have not appeared in any selection test thereafter. Now they claim regularization without qualifying any selection test.
58. Our answer is that they cannot be regularized until they pass the selection test, for which they may be afforded some opportunities. 6 They may appear in the selection tests-one in the year 1989 and in case any one not succeeding, he may then again appear in the year 1990. The 'Record Note' pars 22 of the meeting dated 27.11.1975 quoted earlier in this order may be adhered to by the respondents. Meanwhile, the Applicants may not be reverted."
The ratio of above judgment is that if the employee concerned has qualified in the test as had continued in ad-hoc capacity for more than 18 months, he cannot be reverted except after following Discipline and Appeal Rules as per the existing guidelines of the Railway Board. Further, if they have not qualified the selection test, then instead of reverting, they should be allowed additional reasonable opportunity to clear the test.
10. Coming back to the facts of the present case, the applicant admittedly cleared the recruitment test on the basis of 'best amongst failures' basis as indicated in the order dated 01.03.2016 (Annexure SCA2), which stated in unambiguous terms that the employees who have cleared the test will be allowed promotion on ad-hoc basis for 06 months and after reviewing their performance during the ad-hoc period, they will be eligible for regular promotion. The applicant was allowed to continue on ad-hoc basis as Junior Clerk (Group 'C' post) till 09.11.2017 i.e. more than 18 months, before the respondents found that the performance of the applicant during six months of his ad-hoc promotion was not found satisfactory, due to which he was reverted by the Page 6 of 8 O.A. No. 551/2021 competent authority. If the applicant's performance was not satisfactory, then noting prevented the respondents to revert the applicant immediately after six months from initial date of ad-hoc promotion of the applicant, before he completed 18 months i.e. any time before 01.09.2017, when the applicant had completed 18 months time. Since he had cleared the selection test, as per the ratio of the judgment of Full Bench in the case of Sh. Jetha Nand (supra), the applicant cannot be reverted from Group 'C' post to Group 'D' post after 18 months i.e. after 01.09.2017 without adopting the procedure laid down under the Discipline and Appeal Rules.
11. ........
12. .......
13. In view of above, the OA succeeds. The impugned order dated 09.11.2017 (Annexure A-1) reverting the applicant to Group 'D' post is not sustainable under law. Accordingly, the said impugned order dated 09.11.2017 is set aside and quashed and the respondents are directed to reinstate the applicant in the promotional post as per the order dated 01.03.2016 within two months from the date of receipt of a certified copy of this order and also to allow the applicant's continuity with notional benefit on the Group 'C' post, which he was holding before passing the order dated 09.11.2017 from the date of reversion till the date of reinstatement of his service in Group 'C' post. But no any arrear differential salary for the aforesaid period will be allowed to the applicant on principal of 'no work no pay'. The respondents will be at liberty to take appropriate disciplinary action against the applicant if there is any allegation of misconduct under the appropriate rules."
12. In the case of State of U.P. Vs. Sudhir Kumar Singh (supra), Hon'ble Apex Court has observed as under:-
39. An analysis of the aforesaid judgments thus reveals:
(1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3)No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can Page 7 of 8 O.A. No. 551/2021 therefore be said to have been caused to the person complaining of the breach of natural justice.
(4)In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5)The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.
13. In the instant case applicant had worked for more than 6 months and he was reverted to the lower post without any notice. Applicant's name find place in the merit list on the basis of selection process. Procedure adopted in the matter by the respondents reveals that respondents by flouting principle of natural justice have reverted the applicant. The impugned order reverting the applicant is liable to be quashed.
14. Accordingly, O.A. is allowed. Impugned order dated 30.7.2021 is quashed. Respondents are directed to reinstate the applicant in the promotional post within two months from the date of receipt of certified copy of this order and also allow the applicant's continuity with notional benefit on the post of Welfare Inspector at BLW Varanasi, which he was holding before passing of the impugned order dated 30.7.2021 from the date of reversion till the date of reinstatement of his service. But no any arrear differential salary for the aforesaid period will be allowed to the applicant on principle of no work no pay. The respondents will be at liberty to take appropriate action after adopting the rule of principle of natural justice and providing opportunity to the applicant.
15. There shall be no order as to costs. All pending MAs in this O.As are also stand disposed off.
(Dr. Sanjiv Kumar) ( Justice OM Prakash VII)
Member (A) Member (J)
HLS/-
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