Punjab-Haryana High Court
Union Of India And Others vs Raghubir Singh And Others on 18 September, 2013
Author: Surinder Gupta
Bench: Surya Kant, Surinder Gupta
CWP No. 20612 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: 18.09.2013
CWP No. 20612 of 2013
Union of India and others
...Petitioners
Versus
Raghubir Singh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: - Mr. Jagdish Marwaha, Advocate
for the petitioners.
1 To be referred to the Reporters or not?
2 Whether the Judgment should be reported in the
Digest?
SURINDER GUPTA, J
The instant petition under Article 226/227 of the Constitution of India is directed against judgment dated 10.04.2013 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the CAT') in OA No. 1346-PB-2011.
2. Briefly stated, Raghubir Singh and Naib Singh respondent Nos. 1 and 2 (applicants in O.A. No. 1346-PB-2011) joined the services of Diesel Loco Modernization Works, Patiala in the year 1989. Raghubir Singh-respondent No.1 joined Technician Grade III in April 1989 and Naib Singh as Class IV employee on 10.01.1989. Raghubir Singh-respondent No.1 was promoted as Technician Grade II in the year 1992 while Naib Singh was promoted as Tehnician Grade III in the year 1992.
3. Respondent No.1 had been working as Technician Grade I w.e.f. 11.01.2003 while Naib Singh-respondent No.2 as Technician Grade II on 03.04.1995. The pay band of Technician Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -2- Grade II and Grade I is the same i.e. ` 5200-20200 with grade pay of ` 2800/-. respondent No.3-N.P. Singh joined as Technician Grade III on 22.04.1994 and respondent No.4-Pritam Chand joined as Technician Grade III on 07.10.1994. On the relevant date, they were in the pay band of `. 5200-20200 with grade pay of `. 19,00/-. Both were admittedly lower in rank than respondent Nos. 1 and 2.
4. In the trade of Electrical fitter, there is a cadre known as Junior Engineer-II, in the pay band of ` 9300- 34800 with grade pay of ` 42,00/-. 25% of the vacancies in cadre of grade II are meant for Intermediate Apprentices quota. In the written test, held on 10.05.2011 for the empanelment for the post of Junior Engineer, respondent Nos. 1 and 2 though also qualified but finally respondent Nos. 3 and 4 were selected and empaneled vide letter dated 13.07.2011. The information taken under the Right to Information Act, 2005, disclosed the following comparative merit in a tabulation sheet of respondent Nos. 1, 2, 3 and 4 and one Hardeep Singh:-
S.N. Name Cate. Written Service Total marks S/Sh./Emp No. Test (out Record (out (out of 80) as of 50) of 30) per Col. 5 & 6
1. 2. 3. 4. 5. 6. 7.
1. Pritam Chand SC Tech. III 26.75 30 56.75 303979
2. Hardeep Singh SC Tech-II 28.075 24 52.75 303943
3. Naib Singh SC Tech.II 29.5 24 53.5 303922
4. Raghubir Singh UR Tech. I 34.5 26 60.5 5 Narinder Pal UR Tech. III 36.25 30 66.25 Singh 303892 Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -3-
5. The record further disclosed that while preparing the above panel, the ACRs of respondent Nos. 1 and 2 for the last three years were taken into consideration while no ACRs of respondent Nos. 3 and 4 were either available or looked into.
Instead a 'Special Report' was called on 27.06.2011 i.e. after the exam and they have been awarded 30 out of 30 marks for the service record as per that report, thereby putting the rank of the applicant-respondent Nos. 1 and 2 and their length of service to eclipse and giving undue benefit to respondent Nos. 3 and 4. Thereafter, representation dated 16.11.2011 was submitted but no action was taken. Original Application filed by respondent Nos. 1 and 2 has been allowed by the Tribunal vide order dated 10.04.2013 observing as follows:
"14. We are satisfied that there is discrimination in the award of marks in respect of service record of the applicants vis-a-vis private respondents. Special reports were called in respect of the private respondents on 27.6.2011 i.e. after the result of the written test had been announced. They were awarded marks in respect of service record on the basis of special reports, but the applicants were awarded marks in respect of service record on the basis of ACRs. This is unfair and discriminatory.
15. Therefore, this O.A. is allowed. Order No. DMW/PS/190/IMA/JE-II/Elect. Ftr. dated 13.7.2011 (Annexure A-1) whereby respondents No. 4 and 5 have been selected and empanelled for Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -4- the post of Electrical Fitter Grade JE-II is quashed and set aside. The official respondents are directed to seek instructions of the Railway Board for assessment of the service record which is non- discriminatory, fair and wholesome. Thereafter, the service record of the five candidates who had qualified in the written test should be re-assessed. The process of selection should be completed within a period of 3 months from the date of receipt of a copy of this order."
6. The aggrieved Union of India and other petitioners have filed this writ petition.
7. Learned counsel for the parties have been heard and record perused.
8. Learned counsel for the petitioners has argued that respondent Nos.1 and 2 in the application before CAT have not challenged the empanelment of the candidates to compete for the post of Electric Fitter Grade JE-II. Respondent Nos. 1 and 2 have participated in the selection process fully knowing the criteria of selection as such are estopped by their own act and conduct from challenging the same. The grant of marks to respondent Nos. 3 and 4, on the basis of their evaluation in the special report was challenged before the CAT. In fact, ACRs of respondent Nos. 3 and 4 were not available as the same have not been written by the competent officers. As per policy of the petitioners, their special reports were called after written examination and grading was done accordingly. Respondent Nos. 1 and 2 got similar benefit earlier when they were promoted Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -5- from technician Grade III to Technician Grade-II as such they stood debarred from challenging the selection criteria.
9. It is the admitted case of parties that there were two vacancies of Electric Fitter Grade JE-II in the pay scale of ` 9300- 34800 with grade pay of ` 42,00/- against Intermediate Apprentices quota. One vacancy each was reserved for Scheduled Caste and General Category. Raghubir Singh- respondent No.1 and N.P. Singh-respondent No.3 applied against the General Category vacancy while Naib Singh-respondent Nos. 2 and Pritam Chand-respondent No.4 applied against the reserved vacancy. Respondent Nos. 3 and 4 belong to Technician Grade III category while respondent Nos. 1 and 2 who were much senior than respondent Nos. 3 and 4 and were working as Technician Grade I and II, respectively. Both Pritam Singh and N.P. Singh were given 30 out of 30 marks for their service record while Raghubir Singh was awarded 26 marks and Naib Singh 24 marks on this account. While explaining these marks, learned counsel for the petitioners has submitted that the marks allowed to Raghubir Singh and Naib Singh were based on their ACRs of last three years. So far as as Technician Grade III are concerned, their ACRs are not recorded and as such a 'Special Report' was called and on that basis they were given 100% marks for their service record. Learned counsel for the petitioners has tried to justify the action of the petitioners calling the special report of respondent Nos. 3 and 4 as per part practice and that at one point of time, similar benefit was also given to respondent Nos. 1 and 2 as well.
10. We are not impressed with the submission made by Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -6- learned counsel for the petitioners. It is a case where the employees not only senior in the rank but also having more experience have been ignored by adopting a strange procedure, which is not only discriminatory but is also alien to the service jurisprudence. Such a procedure adopted by the petitioners, if allowed, will cause heartburn amongst the senior employees and at the same time facilitate the authorities to adopt pick and choose policy in utter disregard to the concept of equality enshrined in Articles 14 and 16 of the Constitution. The employees, who are competing for a promotional post should be tested on an uniform pattern without any undue advantage of fortuitous circumstances. The petitioners cannot justify their action of assessing one employee on the basis of his previous ACRs and other by calling a 'special report' with regard to his current work and conduct. An employee who had worked very hard during the last three years may have been assessed differently by the assessing officers, while the officer who is writing the special report may not be in a position to assess the working of junior employees for the last three years. His simply describing his work as "good" or "outstanding" may jeopardize the service career of seniors. It appears that the Railways, which is a very big organization, instead of improving upon its lapse and lacuna is trying to defend its indiscriminate act and policy, which has resulted into unfair and arbitrary consequences. (11) The Tribunal has then rightly given liberty to the petitioners to seek instructions of the Railway Board for assessment of the service record based on criteria which is non- discriminatory, fair and wholesome and to reassess the service Atul Kumar Tripathi 2013.10.08 12:11 I attest to the accuracy and integrity of this document Chandigarh CWP No. 20612 of 2013 -7- record of the five selected candidates.
(12) The argument of learned counsel for petitioners that respondent Nos. 1 and 2 have participated in the selection process fully knowing the criteria for selection, carries no weight as there is nothing on record to suggest that respondent Nos. 1 and 2 were apprised about their evaluation vis-a-vis respondent Nos. 3 and 4 on the basis of service record. Mere fact that respondent Nos. 1 and 2 may have been allowed the similar evaluation as given to respondent Nos. 3 and 4 for their promotion to the post of Technician Grade II is not a relevant fact. The present dispute relates to promotion to the post of Electric Fitter Grade JE-II for which the technician Grade I, Technician Grade-II and even Technician Grade III were made eligible and by adopting the procedure of taking work assessment report, much junior persons were promoted by ignoring the number of years of service and seniority of respondent Nos. 1 and 2. We find no legal or factual infirmity in the order dated 10.04.2013 (P-1) passed by the CAT.
13. Consequently, the writ petition fails and the same is dismissed.
(SURYA KANT) (SURINDER GUPTA)
JUDGE JUDGE
18.09.2013
Atul
Atul Kumar Tripathi
2013.10.08 12:11
I attest to the accuracy and
integrity of this document
Chandigarh