Central Administrative Tribunal - Jodhpur
Manoj Kumar Sharma vs M/O Railways on 23 April, 2025
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290/00522/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00522/2016
Reserved on : 25.02.2025
Date of Pronouncement: 23.04.2025
CORAM
HON'BLE Mr JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE Dr AMIT SAHAI, MEMBER (A)
1. Manoj Kumar Sharma S/o Shri Ramakant Sharma, aged
about 39 years, R/o at present resident of Railway Colony,
Railway Station, Makrana, District - Nagaur.
2. Rajendra Kumar Meena S/o Shri Moola Ram, aged about
30 years, R/o Railway Colony, Railway Station, Marwar
Bheenmal, District Jalore.
The applicants are presently holding the post of Junior Engineer
(Jen/Signal) in the North Western Railway, Makrana, District
Nagaur and Marwar Bheenmal, District Jalore respectively.
......Applicants
By Advocate : Mr D.S. Sodha.
Versus
1. The Union of India through General Manager, North-
Western Railway, Jaipur.
2. The Divisional Railway Manager, North Western Railway,
Jodhpur.
3. The Senior Divisional Officer, North Western Railway,
Jodhpur.
......Respondents
By Advocate : Mr B.L. Bishnoi.
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290/00522/2016
ORDER
Per : Hon'ble Mr Justice Rameshwar Vyas Being aggrieved by the order dated 21.07.2016 (Annex. A/1) whereby the respondents denied the benefits of promotion with retrospective effect, the applicants have preferred this OA with a prayer to quash and set aside the above order and seeks direction to the respondents to extend them the benefits of seniority and pay fixation for the post of Junior Engineer (Signal) w.e.f. 10.02.2012, i.e. the date on which the panel for the post of J.E. (Signal) was cancelled, with all consequential benefits.
2. The facts necessary to adjudicate this OA are as under:-
2.1 Vide letter dated 06.09.2010 (Annex. A/2), applications were invited from eligible candidates to fill up three posts of Junior Engineer-II (JE-II)/Signal in unreserved category against 20% intermediate apprentice quota. The applicants herein applied for the post. After appearing in the written examination, they qualified the same and vide letter dated 04.02.2011, they were declared eligible for paper screening for selection to the post of JE-II (Signal). After conducting paper screening on 25.03.2011, provisional panel for selection to the post of JE-II (Signal) was declared. Thereafter, vide letter dated 19.04.2011 (Annex. A/4), Sr. Divisional Signal & Tele-communication Engineer, NWR informed concerned Section Engineer to relieve the applicants and one another Mr Parmeshwar Kumar for JE-II (intermediate) for Phase-I 3 290/00522/2016 training from 02.05.2011 to 24.06.2011 and Phase-II training from 11.07.2011 to 09.09.2011 to be conducted at Secunderabad. Pursuant to above letter, the applicants were relieved to undertake training. They underwent Phase-I training from 02.05.2011 to 24.06.2011 vide order dated 24.06.2011 (Annex. A/5) and Phase-II training from 11.07.2011 to 09.09.2011 vide order dated 09.09.2011 (Annex. A/7) at Indian Railways Institute of Signal Engineering & Telecommunication, Secunderabad. After imparting training at Secunderabad, they were further deputed for field training vide order dated 12.09.2011 (Annex. A/8). Thereafter, vide order dated 10.02.2012 (Annex. A/9), Sr. Divisional Personnel Officer, NWR, Jodhpur cancelled the entire panel citing some irregularities in selection process.
2.2 Being aggrieved by the above cancellation, the applicants herein, i.e. Mr Rajendra Kumar Meena & Mr Manoj Kumar Sharma filed OA No. 80/2012 and 81/2012 respectively before this tribunal challenging the cancellation order dated 10.02.2012. After hearing, both the OAs were allowed on 16.04.2013. This tribunal, while quashing and setting aside the order dated 10.02.2012 qua applicants, directed the department to act further upon the selection process. Operating paragraph 7 & 8 of the said judgment reads as under:
"7. In our considered view we see no reason to cancel the entire selection process in respect of these applicants because they are not 4 290/00522/2016 beneficiaries of any irregularity in the evaluation process of the answer sheet and even as per Selection committee report on the basis of ACRs and working reports they would have been selected. Accordingly, in light of the judgment cited by counsel for the applicants we have no hesitation in quashing annexure A/1 by which the entire process of examination was cancelled because in the present circumstances cancellation of entire process was not warranted and annex. A/1 in both OAs suffers from irregularity and illegality in view of the judgment of the Hon'ble Apex Court cited by the counsel for the applicant. So far as Shri Parmesh Kumar is concerned, he is not before us but whatever process has been initiated for the cancellation of selection of Shri Parmesh Kumar cannot be said to be illegal or irregular in view of the report of the selection committee.
8. In view of the discussions hereinabove made, both the OAs are allowed and Annexure A/1 qua both the applicants in OA No. 80/2012 and 81/2012 are quashed and respondent department is directed to act further upon the selection process qua applicants."
The D.B.C.W.P. No. 12894 & 12896 of 2013 filed against the above order before Hon'ble Rajasthan High Court were dismissed vide order dated 04.09.2015 (Annex. A/11).
2.3 Despite dismissal of writ petitions, the respondents did not implement the order passed by this tribunal on 16.04.2013. Ultimately after three years, vide order dated 26.05.2016 (Annex. A/12), the applicants were promoted to the post of JE/Signal with immediate effect which was subject to various litigation pending before the Hon'ble Supreme Court with regard to seniority. The applicants, being aggrieved by the delay caused by the respondents in implementing the judgment passed by this bench in their favour on 16.04.2013, submitted representation (Annex. A/14) to the respondents on 07.06.2016 seeking seniority and 5 290/00522/2016 pecuniary benefits w.e.f. January, 2012. Vide letter dated 21.07.2016 (Annex. A/1), the Sr.D.P.O., NWR, Jodhpur informed that the benefit of seniority and fixation of pay is admissible to them from the date of taking over charge to the post.
2.4 Being aggrieved by the denial of benefits of seniority and pay fixation from a retrospective date, the applicants have filed this OA with a prayer to quash and set aside communication dated 21.07.2016 (Annex. A/1) and seek direction against the respondents to extend the benefits of seniority and pay fixation for the post of JE/Signal w.e.f. 10.02.2012 with consequential benefits.
2.5 As per reply filed by the respondents, the seniority to an employee is assigned from the date of entry into that grade and applicants were entitled for seniority and other benefits only after induction on the said post and joining the actual working after completion of the due process. It is averred that the claim of the applicants seeking benefits of seniority from retrospective date is not sustainable in view of the settled law that the promotion on selection post is always prospective and cannot be given retrospective effect. It is wrong to say on the part of the applicants that unnecessary delay was caused by the respondents in implementing the judgment passed by the Hon'ble tribunal on 16.04.2013. Giving challenge to the above judgment was the legal right of the respondents. The writ petitions were dismissed on 6 290/00522/2016 04.09.2015 and soon thereafter the matter was processed. After completion of the entire process, the promotion orders were issued on 26.05.2016. Justifying the impugned communication, the respondents prayed to dismiss the OA.
3. Heard learned counsel for the parties and perused the material available on record.
4. It is contended by learned counsel for the applicants that after completion of training, a panel was prepared by the respondents. Thereafter, it was cancelled without any valid reasons. The applicant challenged the cancellation of the panel by way of filing two separate OAs which were allowed on 16.04.2013. It is argued that after allowing the OAs by this tribunal, the respondents were under obligation to give promotion to the applicants without any delay but the respondents delayed the matter by challenging the order passed by this tribunal before Hon'ble Rajasthan High Court by way of filing writ petitions D.B.C.W.P. No. 12894 & 12896 of 2013. After dismissal of writ petitions on 04.09.2015, the respondents committed further delay in implementing the order passed by this tribunal. The applicants also preferred Contempt Petition No. 80/2013 before this tribunal, which was closed on 02.06.2016 by this tribunal after passing of order dated 26.05.2016 (Annex. A/13) giving promotion to the applicants with immediate effect. It is further contended that delay is attributable to the respondents, therefore, the applicants are entitled to get promotion with retrospective 7 290/00522/2016 effect when their names were included in the select panel after completion of training. It is further submitted that on account of delay caused by the respondents, the persons who were junior to the applicants became senior to them. In support of his arguments, learned counsel for the applicants relied upon various provisions of IREM as also upon the following judgments :
(i) Rajasthan High Court D.B. Civil Special Appeal No. 1375/2014 decided on 29.07.2015 [Har karan Ram Bugalia v. State & Ors];
(ii) This bench OA No. 406/2016 decided on 09.05.2023 [Mohd. Husnain v. The BSNL & Ors].
In the matter of Har karan Ram Bugalia (supra), appointments to the petitioners were not accorded for want of verification of qualification. Thereafter, on verification of the documents, the respondents found that the petitioners were eligible to be recruited as Teacher Gr. III. The Hon'ble Rajasthan High Court while allowing the appeal observed as under :
...True it is the delay occurred is not solely due to the respondents, but the relief as claimed by the petitioner, if not given then that shall be quite unjust as the persons who faced selection with him and employed in the year 2008 shall remain senior to him irrespective of the fact that some out of them were less-meritorious.....
In the matter of Mohd. Hussain (supra), this tribunal held that an employee cannot suffer by the reasons of the delay of the authorities in granting promotion due to procedural difficulties. In that case, the applicant were deprived from promotion for the fault of the respondents in not evaluating 8 290/00522/2016 the answer sheets properly. Firstly, he was declared failed and later on after proper evaluation, he obtained more marks resulting in the passing of the examination.
5. On the contrary, learned counsel for the respondents submitted that inclusion of the name of the applicants in the select list does not confer any right to promote them with effect from the date of completion of training. It is a well settled principle of law that promotion becomes effective from the date it is granted, rather than from the date of vacancy arises or post created. Right to get a promotion is not a fundamental right. In the present case, the promotion to the applicants was granted only after a decision of Hon'ble Rajasthan High Court with regard to cancellation of select panel. The Select panel was cancelled on account of finding some irregularities in the selection process. When the order of cancellation of the selection process was quashed and set aside by this tribunal, the respondents had every right to challenge the same before Hon'ble High Court. After dismissal of the writ petitions filed against the order of this tribunal, the respondents complied with the order and accorded the promotion to the applicants with immediate effect. Promotion granted on the basis of selection cannot be given retrospective effect. The applicants failed to disclose the names of junior employees who got promotion in between 2010 and 2016 against the intermediate apprentice quota. No one has been arrayed as party respondents in this OA. In absence of impleading necessary parties, the instant OA is not 9 290/00522/2016 maintainable. He further submitted that it is a well settled law that an employee gets pay of a promotional post only after joining the same and not before that. In view of the above, learned counsel for the respondents prayed to dismiss the OA.
In support of his arguments, learned counsel for the respondents placed reliance upon the following judgments :
(i) K. Meghachandra Singh & Ors v. Ningam Siro & Ors, 2019 0 Supreme (SC) 1279;
(ii) Government of West Bengal & Ors v. Dr. Amal Satpathi & Ors, C.A Diary No. 43488 of 2023 decided by Hon'ble Supreme Court on 27.11.2024.
In the matter of K. Meghachandra Singh (supra), Hon'ble Supreme Court held that law is fairly well settled in a series of cases that a person is disentitled to claim seniority from a date he was not borne in service. The Hon'ble Supreme Court also referred to the case of Jagdish Chandra Patnaik' vs. State of Orissa wherein the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time lag between the year when the vacancy accrues and the year when the final recruitment is made. In para 29 of the judgment, the Hon'ble Court observed as under :
29. Before proceeding to deal with the contention of the appellants' Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it is necessary to 10 290/00522/2016 observe that the Law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in J.C. Patnaik (Supra) the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word "recruited" occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in J.C. Patnaik (Supra) that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued.
In the matter of Dr Amal Satpathi (supra), in para 15 of the said judgment, Hon'ble Court observed as under :
15. The primary question that arises for our consideration in the present appeal is whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement?
6. Having regard to the contentions raised by learned counsel for the parties and material available on record, it emerges that after initiation of selection process vide letter dated 06.09.2010 (Annex. A/2), select panel was prepared for filling up three vacancies under the 20% intermediate apprentice quota for the post of JE-II/Signal. Three persons including the applicants herein were imparted the training. After completion of training, and before their appointment, order dated 10.02.2012 (Annex. A/9) was issued cancelling the selection process. When that order was challenged before this tribunal, this tribunal while quashing and setting aside the same and ordered the department to act further upon the 11 290/00522/2016 selection process qua the applicants. The above factual position suggests that the selection process was not completed till decision of OA No. 80/2012 & 81/2012 on 16.04.2013. The respondents cannot be blamed for taking the matter before Hon'ble Rajasthan High Court. It was their legal right to avail the remedy against the order passed by the tribunal. The respondents accorded appointment to the applicants only after finality of the dispute on dismissal of the writ petitions filed against the order of this tribunal, by the Hon'ble Rajasthan High Court Now the question arises whether a person gets any right for promotion before completion of the selection process. It is a well settled law that promotion is not a fundamental right of the employee. He has right to be considered for the promotion only. In the present matter, without completion of the selection process, the applicant could not claim the pay of promotional post in absence of showing that on account of time lag between the commencement and conclusion of the selection process, some persons who were junior to them got promotion disturbing seniority of the applicants making them junior. In the present matter, the applicants are seeking seniority with retrospective effect without disclosing the name of persons who were junior to them and got promotion prior in time to the date of promotion of the applicants. The applicants also failed to implead any person as party respondent to show that so-called delay has adversely affected their seniority in relation to their juniors. In the 12 290/00522/2016 matter of Dr Amal Satpathi (supra), the Hon'ble Supreme Court has referred to the judgment passed by Hon'ble Supreme Court in the matter of State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 which reads as under :
38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime." (emphasis supplied) In view of the above settled position with regard to promotion and seniority, the applicants have no case to get promotion from a retrospective date, hence, OA is liable to be dismissed.
7. Resultantly, OA is dismissed with no order as to costs.
(Amit Sahai) (Rameshwar Vyas)
MEMBER (A) MEMBER (J)
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