Central Administrative Tribunal - Allahabad
Pravesh Kumar Bhatnagar Aged About 43 ... vs Union Of India on 26 November, 2013
Reserved on 12.11.2013 CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (This the 26th Day of November, 2013) Honble Mr. Justice S. S. Tiwari Member (J) Honble Ms. B. Bhamathi, Member (A) Original Application No.1664 of 2012 (U/S 19, Administrative Tribunal Act, 1985) Pravesh Kumar Bhatnagar aged about 43 years Son of Shri K.B. Bhatnagar Resident of Near Rai Sahab Ki Kothi Quanoon Gayan Moradabad. . Applicant By Advocate: Shri T.S. Pandey Versus 1. Union of India, through General Manager, Northern Railway, Head Quarters Office, New Delhi. 2. Divisional Railway Manager, Northern Railway, Moradabad Division Moradabad. 3. Senior Divisional Personal Officer, Northern Railway, Moradabad Division Moradabad. .. . Respondents By Advocate: Shri Anil Kumar O R D E R
Delivered by Honble Ms. B. Bhamathi, Member (A) The present Original Application has been filed under Section 19 of Central Administrative Tribunal Act, 1985 challenging the impugned order dated 19.11.2012 by which after medical decategorization, the applicant has been re-deployed as Chief Office Superintendent (Electric) instead of Chief Office Superintendent (Personnel) in violation of the rules contained under IREM Vol.I.
2. The relief/s sought by the applicants are as follows:-
(a) Issue a writ, order or direction in the nature of Certiorari, quashing the order dated 19.11.2012 (Annexure No.1), with the further order of direction in the nature of mandamus commanding the respondents to consider the redeployment of the applicant on the post of Welfare Inspector within a stipulated of time whatever is fixed by the Honble Court.
(b) Issue any other and further writ awarding the cost to the applicant.
(c) Issue any other and further writ order or direction which this Honble Court deem fit and proper in the circumstances of the case but may have not been pleaded and is found just and proper.
3. The applicant has also filed Miscellaneous application 299 0f 2013, under Rule 34 of CAT Rules of Practice,1993, seeking a stay on the impugned order dated 19-11-2012 by way of interim relief.
4. The case of the applicant is that he was appointed in Railways on 07.10.1989 and was found fit in the category B-2. He was working as SE/Elect/AC under Sr. DEE/G, Moradabad Division. After periodical medical examination, he was medically decategorized and found fit in medical category C-1 with hearing impairment. Accordingly, he was re-deployed on a supernumerary post in terms of rule 1304 (a) of the IREM Vol.I vide order dated 7.6.2011. Under rule 1306(1) of the IREM Vol.I, the screening committee was constituted by the respondent No.2 and the applicant was found suitable to be re-deployed on the post of Chief Office Superintendent (Personnel Branch) in place of the post of Chief Office Superintendent (Personnel). The order for aforesaid re-deployment was issued on 21.10.2011 by the respondent No.2. Before redeploying the medically decategorized persons, respondent No.2 sought the approval from the respondent No.1 viz GM, Northern Railway, Headquarters, New Delhi which was accorded on 04.09.2012. However, in the light of the order of respondent No.1, the applicant is being redeployed illegally in the Electrical Branch. No power is vested with the Respondent to overrule the order of redeployment already passed. Further, in the meantime, the applicant gave a representation on 30.10.2012 for redeploying him on the post of Welfare Inspector as he possesses the appropriate qualification. However, Shri R.K. Chaube with lesser qualification has been redeployed on the post of Welfare Inspector. This has been done in contravention of Rule 1306(6) of the IREM Vol. I.
5. The case of the respondents is that Para 1304 (a)/1306 (1) of the IREM Vol.I stipulates that the authorities have to make maximum efforts to redeploy the medically decategorized employee on any other post in the same pay scale/Pay Band as per his/her medical fitness. Such persons are to be redeployed on the supernumerary post till the matter for further absorption against suitability post is considered by the screening committee. On 04.10.2011, the screening committee placed the applicant in the clerical category of Pay Band Rs.9300-34800 with Grade pay Rs.4600/- in the same pay scale and without any financial loss on the post of Chief Office Superintendent, Personnel Branch. On 21.10.2011, the D.R.M. Moradabad indicated the absorption on alternative post with the specific observation that in the applicants case and a few others, approval of General Manager (Personnel) be taken as they are being redeployed in the Ministerial Cadre. The approval of the General Manager (Respondent No.1) was granted for absorption/redeployment in clerical category against existing vacancy vide letter dated 4.9.2012 with the observation that employees should as far as possible be utilized in the Control Office. As the applicant was working as SE/Elect/AC under Sr. DEE/G, Moradabad Division before medical de-categorization and the Electrical Office being the applicants control office under Sr. DEE/G, Moradabad, he was redeployed as Chief OS (Electrical), where he has got lien. The approval of the General Manager, who was the Competent Authority as per rules was duly obtained. Para 1306 (3), 1309(i) and 1313 (a) of IREM Vol.I only stipulates that as far as possible redeployment should be done without any loss of pay/ seniority in the employees own office. This has been completely complied with by the respondents in letter and spirit. Regarding applicants request for re-deployment on the post of Welfare Inspector, the respondents have submitted that post of Welfare Inspector is in the Grade Pay of Rs.4200/- which is lesser than the applicants pay Rs.4600/- and is also out of his Control Office viz Electrical Department, where he is working. The medically decategorized station master, Shri R. K Chaube, working as instructor/ ZRTI/CH, was posted as Welfare Inspector after the screening committee meting held on 26.9.2012 in grade pay Rs 4200. But in accordance with the GMs observation in the letter dated 4.9.2012, his posting order was similarly reviewed and cancelled and he was given a supernumerary post on an interim basis and till further orders vide order dated 1.1.2013.
6. We have gone through the OA, the rejoinder application and stay application of the applicant and the documents produced by the applicants counsel that are available on record as annexuress A-1 to A-11 to the rejoinder and annexure to the petition for stay filed by the applicant.
7. We have gone through the counter affidavit and supplementary counter affidavit filed by the respondents and the single annexure provided by the respondents by way of documentary evidence.
8. We have heard the learned counsel for the parties and perused the pleadings on records and considered the facts and circumstances of the case.
9. Para 1306 (3) of the IREM Vol.I stipulates that alternative employment is first to be found in the employees own District, Sub District, Sub Division, Office, Workshop etc. Para 1306(6) stipulates that a medically decatogorised employee could apply for a particular post, which is likely to be deemed suitable and is known to be vacant under any officer. Such an application must be addressed through the immediate officer of the railway servant concerned and must be forwarded to the officer to whom addressed or to the authority making the appointment. The result of the application must be communicated to the railway servant. Para 1309 (i) states that the alternative post to be offered to the employee should be the best available and that it ensures minimum loss in emoluments. Wherever, the emoluments to the post offered are lower, the employee will be given an opportunity to exercise his choice of accepting or rejecting the offer. Para 1313 stipulates that the pay will be fixed at a stage corresponding to the pay previously drawn in the post held by him before de-categorization.
10. Applying the rule 1306(3) in the instant case, the letter dated 21.10.2011 clearly states that General Managers (P) approval is to be taken in all the cases, including that of the applicant, where redeployment is to take place in the Ministerial Cadre. In response to the letter dated 21.10.2011, the General Manager has observed vide letter dated 04.09.2012 that the services of all the 12 employees, including that of the applicant, may as far as possible be utilized in Control Office. Hence, the last column in the aforesaid letter under the heading recommendation makes mention of the post but not the branch of posting in which redeployment is to be done, in all cases, including that of the applicant. In other words, the General Manager, stated the desirable and uniform criteria/principle for all postings i.e that redeployment be made, as far as possible in their Control Office, keeping in view that their background and experience in earlier posts could be utilised. The above criteria is consistent and in no way or measure detractive of the letter and spirit of Rule contained in Para 1306 (3) of IREM Vol.I. In doing so, the GM, on a specific proposal of Respondent 2 invoked his supervisory capacity to ensure that the rules are implemented acording to its object and purpose. Subsequently, the impugned order dated 19.11.2012 was passed by Respondent 2 posting him as COS (Electrical), instead of the proposal contained in letter dated 21.10.2011 to post him as COS (Personnel) Branch in compliance of the Rules and after due review in the light of the GMs letter 4.9.12. Hence, we hold that there has been no violation of para 1306 (3).
11. As regards the applicants grievance that he was not considered against the post of Welfare Inspector, acceding to the the request of the applicant would clearly be in violation of Para 1306 (3) of the IREM Vol.I. Para 1306 (6) can be invoked when there is a likelihood that the employee could have been considered suitable and when that post is vacant under any other officer. In this case, the indication from the pleadings on record is that the post of Welfare Inspector was vacant. But as per para 1306 (3) the post of welfare inspector could neither be deemed to be directly or remotely connected to the office of electrical branch, in which the applicant worked prior to medical decategorisation, even if the post was vacant. Even where a mismatch between post and branch was made earlier in respect of Shri Chaube, the matter was reviewed in the light of GMs letter 4.9.2012 and cancelled as Rules would have prescribed. Hence, the allegation in the petitioners representation dated 30.10.92 stands disposed as above. Qualification is not relevant under Para 1306(6) for redeployment. As regards the procedure for representation under para 1306(6), if applicant was not likely to be considered suitable, then the procedural part would not arise for consideration. Even so, by way of observation, it is noted that the records show that the applicant gave a representation expressing his option on 30-10-2012, which was directly addressed to DRM, Moradabad. The respondent has annexed the representation of applicant submitted as late as 13.3.13 to the DRM, Moradabad through the Divisional Electrical Engineer to whom the applicant reported to and by which time the impugned order of 19-11-2012 had been passed after all due processes, including review, had been concluded. Hence it is clear that no violation of Para 1306(6) has been made out. Para 1306(6) could not have rationally /logically preceded para 1306(3) as part of adoption and implementation any standard operating procedure for deciding cases of redeployment. Hence, there is no violation of para 1306(3) read with para 1306(6).
12. Para 1309 stipulates that in finding a suitable alternative employment the following is to be observed:-
(i) It should be the best available for which the employee is suited
(ii) It is ensured that the loss in emoluments is minimum
(iii) Make an offer with lower level of emoluments, only if nothing better is available None of the above three applied in the case of the applicants request for being redeployed as Welfare Inspector. In the instant case, the applicant was being offered a posting with the same pay band/ grade pay/ pay scale (and without loss of seniority) etc. which the applicant drew prior to his medical decategorisation. This is as per para 1313 of the Rules. Nothing better could have been offered under para 1309 of the Rules. Also, only where the emoluments to the post offered is lower, then employee will be given an opportunity to exercise his choice of accepting or rejecting the offer. Such a situation did not arise in this case. Further, no prerogative has been granted under the Rules to the medically decategorised employee to suo moto opt for taking a post which involves lower emoluments under para 1309 of the Rules, when a post with scale/band/pay commensurate with what he was getting prior to medical decategorisation was vacant/available in his own department and was being offered by the employer. Hence, we agree with the view of the respondent that the impugned order is also in accordance with paras 1309 and 1313 of the Rules.
13. In view of the foregoing discussions, we are of the view that the impugned order has been passed in accordance with para 1306(3), 1309 (i) and 1313 and we also see no violation of para 1306(6) IREM Vol I. The O.A. is devoid of merits and is liable to be dismissed. Accordingly, the O.A. is dismissed without costs.
(Ms. B. Bhamathi) (Justice S.S. Tiwari)
Member-A Member-J
Sushil
Page No. 10