Central Administrative Tribunal - Allahabad
Narbadeshwar Pandey vs M/O Railways on 16 November, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH,ALLAHABAD
*****
Orders reserved on : 8.11.2017
Orders pronounced on : 16.11.2017
Hon'ble Mr. Justice Dinesh Gupta, Member (J)
Hon'ble Mr. Gokul Chandr a Pati, Member (A)
O. A. No.330/01103/2014
Narbadeshwar Pandey son of Triloki Nath Pandey r/o House No. 628-A,
Shiv Nagar Colony, Post- Basaratpur, District- Gorakhpur.
............... Applicant
(By Advocate : Shri Rajesh Tripathi)
Versus
1. Union of India through General Manager, Northern Railway, Eastern
Railway, Gorakhpur.
2. The Controller of Stores, North Eastern Railway, Gorakhpur.
3. The Chief Personnel Officer, North Eastern Railway, Gorakhpuyr.
4. The Deputy Chief Mechanical Manager/General Stores Depot/ North
Eastern Railway, Gorakhpur.
5. Gulam Mohammad Sabir, Junior Clerk, General Store, Depot, North
Eastern Railway, Gorakhpur.
6. Umesh Yadav, Junior Clerk General Store, Depot, North Eastern
Railway, Gorakhpur.
7. Lal Babu Yadav, Junior Clerk, General Store, Depot, North Eastern
Railway, Gorakhpur.
8. Satyendra Nath Singh, Junior Clerk Railway Press Eastern Railway,
Gorakhpur.
9. Shiv Das Junior Clerk, General Store, Depot, North Eastern Railway,
Gorakhpur.
10. Subodh Kumar Srivastava, General Store, Depot, North Eastern
Railway, Gorakhpur.
. ............... Respondents
(By Advocate : Shri R.K. Rai)
ORDER
The Applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
i) Issue an order or direction in the nature of certiorari quashing the impugned order dated 1.5.2014 (Annexure No. 1 to the O.A.) passed by respondent No. 3 Chief Personnel Officer, North Eastern Railway, Gorakhpur.
ii) Issue an order or direction in the nature of Certiorari quashing the impugned memorandum dated 1.11.2012 and the impugned office order dated 17.12.2012.
iii) Issue an order or direction in the nature of mandamus commanding the respondents to recast the select list by substituting the name of the applicant in select list for posting on promotion of the post of Junior Clerk PB-1 5200-20200 grade pay 1900 with effect from the date of promotion of contesting respondents.
iv) To issue any order or direction which this Hon'ble Court deem fit and proper in view of the facts and circumstances of the case.
v) To award costs of the application in favour of the applicant.
2. The brief facts emerging from the O.A. are that the applicant is working on the post of Khalasi in the pay band of Rs. 5200-20200 G.P. 1900/-.
2.1 A notification dated 8.12.2011 (Annexure No.2 to the O.A.) was circulated for departmental selection under 33-1/3% quota of Junior Clerk in pay band 5200-20200 G.P. 1900/-.
2.2 The applicant applied for the above post and total 95 candidates were found eligible including the applicant to appear in selection. Written test was held on 12.10.2012 and the result of the same was also declared vide memorandum dated 1.11.2012 (Annexure No.3 to the O.A.) in which 20 candidates were shown passed and name of the applicant is at Sl. No. 11. 2.3 Office order dated 17.12.2012 (Annexure No.4 to the O.A.) was issued by Deputy Chief Material Depot Gorakhpur for posting of 6 general candidates but the name of applicant was not empanelled in this office order.
2.4 Applicant sought information under RTI for furnishing marks of all the candidates. The information given by administration under RTI (Annexure No.5 to the O.A.) showing details of marks awarded out of 85 marks in the written test, applicant has secured 74 marks out of 85, providing details of marks awarded out of 85 marks.
2.5 As per the information, the applicant's name should have been at Sl. No. 3 according to merit in the Deputy CMM Depot Memo dated 1.11.2012 and office order dated 17.12.2012.
2.6 It is submitted that candidates who have secured less marks than the applicant have been empanelled in the office order dated 17.12.2012 whereas the name of applicant is not empanelled.
2.6 It is stated that North Eastern Railway has not taken cognizance of Railway Board letter dated 19.6.2009 (Annexure No.6 to the O.A.) in which Railway Board clearly stated that in case of promotion to general posts, the panel should be strictly prepared as per merit with reference to marks obtained by the candidates in "Professional ability" and 'Record of service' and those securing less than 60% in professional ability and 60% in aggregate, will not be considered eligible for inclusion in the panel further the service record at only those candidates who secure a minimum of 60% marks in 'Professional ability' shall be assessed.
2.7 In spite of the above Railway Board letter dated 19.6.2009, in this selection, North Eastern Railway is not adhering to that order and empanelled candidates who had secured less than 60% marks and less marks than the applicant.
2.8 The aforesaid selection has been made through promotion on 'seniority' which is against the prevailing Railway Board order/letter dated 19.6.2009. The applicant has been deprived of promotion in spite of holding position in merit.
2.9 The applicant preferred several representations on 9.4.2013, 10.5.2013, 6.8.2013 and 3.9.2013 (Annexure No.7 to the O.A.) requesting to rectify the select list and recast a fresh select list. 2.10 Applicant has also filed O.A. No. 1638/2013 before this Tribunal which was disposed of by this Tribunal vide order dated 19.12.2013(Annexure No.8 to the O.A.) directing the respondents to decide pending representation of the applicant.
2.11 Respondents without following the prescribed procedure of law and without providing a reasonable opportunity of hearing to the applicant, passed impugned order dated 1.5.2014. Hence this O.A.
3. Notices were issued to the respondents who in turn filed the Counter reply through which it is stated that notification dated 8.12.2011 was issued for filling up the post of Junior Clerks in pay scale of Rs. 5200-20200 G.P. 900 under 33-1/3% and 16-2/3% for promotion from Group D post. This notification was for filling of 9 posts under 33-1/3% category and 5 posts under 16-2/3% category under para 174 of Indian Railway Establishment Manual Vol. I (In short IREM) (Annexure No. R-1 to counter reply). 3.1 The rule provides for 50% for direct recruitment to Railway Recruitment Board, 33-1/3% by promotion by process of selection from eligible Group D category of staff as per the procedure specified under para 189 of IREM (Annexure No. R-2 to counter reply.). Further 16-2/3% posts by promotion entirely on merit from among the matriculate Group D employees from eligible candidates as specified by the zonal Railways. 3.2 The respondents have carried out exercise for filling up the post of Junior Clerks in pay scale of Rs. 5200-20200 grade pay Rs.1900/- for 9 posts on the basis of seniority-cum-suitability and under merit-cum- seniority for remaining 5 posts on the basis of notification dated 8.12.2011. 3.3 The final select list was declared on 1.11.2012 wherein the applicant was placed at Sl. No. 11. Further in the final select list which was declared on 17.12.2012, applicant failed to secure his place in the select list under 33-1/3 % quota i.e. seniority-cum-suitability.
3.4 Under 16-2/3% promotional quota written exam was also conducted in which the applicant has also participated but failed to clear the written exam against 5 vacancies. Only 3 persons cleared the written examination. Memorandum dated 8.6.2013 issued declaring the result of successful candidate under 16-2/3 % quota conducted on the basis of merit-cum-seniority basis is annexed as Annexure No. R-3 to counter reply. Further, after interview , final select list was declared vide office order dated 4.7.2013 (Annexure No. R-4 to counter reply). 3.5 It is further clarified that as per para 189 of IREM, promotion from Group D post to Group C post under 33-1/3 % quota, all candidates who qualify on the basis of written test and their record of service has been included in the panel in order of seniority for promotion, subject to qualifying marks obtained by the candidates. Therefore, the panel dated 17.12.2012 was notified as per rule 189 of the IREM on the basis of seniority-cum-suitability.
4. Rejoinder reply is filed by the applicant through which he has reiterated the facts as stated in the O.A. and denied the contents of counter reply.
5. Heard learned counsel for applicant Sri Rajesh Tripathi and learned counsel for respondents Sri R.K. Rail.
6. Counsel for applicant reiterated the facts as stated by him in the Original Application and further submitted that applicant has already been given grade pay of Rs. 1900/- which as per the clarification of Railway Board comes under Group 'C' category and examination in which the applicant had participated for promotion is Group C to further Group C and in the notification it is clearly mentioned that the criteria for selection is written examination and service record. However, the respondents have illegally taken into consideration the seniority of the selected candidates and excluded the name of applicant from list of the selected candidates although the applicant secured higher marks in the written examination than the other candidates who have been promoted. Counsel further submitted that Railway Board after the implementation of 6th Pay Commission, issued notification in which it is clearly mentioned that grade pay of Rs. 1800/- will come under Group C category. The respondents are unnecessarily interpreting the merger of grade pay and adhered to the old policy for promotion as they alleged in the impugned order dated 1.5.2014.Counsel further submitted that the respondents have promoted those persons who have failed to even secure less than 60% marks as prescribed in the Railway Board order dated 19.6.2009.
7. Counsel for respondents submitted that notification in question clearly states that it is a promotion from Group D to Group C and against 33-1/3% quota , qualifying criteria is written examination and service records and for promotion the seniority of the qualified candidates will be considered as per para 189 of IREM but the applicant is wrongly interpreting the notification saying that only written examination and service record is the criteria for promotion. Counsel for respondents also drew the attention towards para 189 of IREM. Counsel further submitted that qualifying marks for promotion will be ascertain by the General Manager. The counsel further submitted that applicant appeared in the examination under 33- 1/3% quota and cleared the examination but since he was at Sl. No. 11 in the seniority as such he could not be promoted due to lack of vacancy. However, under 16-2/3% promotion category, written examination was also conducted and applicant appeared in the said examination but he failed to clear the examination. Counsel further stated that criteria for promotion from Group D to Group C is strictly governed by para 189 of IREM.
8. We are unable to accept the contentions raised by the learned counsel for applicant.
9. The applicant has based his claim only on the ground that he has been granted grade of Rs. 1900/- but he has failed to demonstrate that when he was promoted from Group D to Group C. Admittedly, the applicant was working on the post of Khalasi and he has failed to demonstrate when he was promoted from Group D to Group C. It is undisputed fact that notification clearly states that it is a promotion from Group D to Group C and the eligibility criteria is shown as written examination and service record. The contention of the respondents that as stipulated in para 174 IREM, promotion under 33-1/3 % quota is to be governed by para 189 of IREM. For ready reference, para 189 of IREM is quoted below:-
"189. Promotion to higher grades in Group C:- Railway servants in Group D categories for whom no regular avenue of promotion exists 33-1/3% of the posts in the lowest grade of Commercial Clerk, Ticket Collectors, Trains Clerk, Office Clerks, Stores Clerks etc. should be earmarked for promotion. The quota for promotion of Group D staff in the Accounts Deptts, to Group C posts of Accounts Clerks will be 25%. Promotion to Group C will be subject to the following conditions:-
(i) (4) All those qualify on the basis of written test and Record of Services, the qualifying percentage of marks being prescribed by the General Manager, should be included in the panel in the order of their seniority for promotion against the yearly vacancies available for them in Group C categories."
10. It is clear while promotion from Group D to Group C against 33-1/3% quota, the qualifying criteria for inclusion in the panel is written exam and service record and the candidates will be placed in order of seniority in the panel. Hence, for promotion, seniority of the qualified candidates will also be considered and accordingly, respondents have followed this rule and prepared a list of selected candidates in which the name of applicant could not be promoted because he was at Sl. No. 11 in the seniority list and there were only 9 vacancies.
11. In view of the above discussion, the Court is of the view that O.A. lacks merit and deserves to be dismissed. Accordingly, O.A. is dismissed. No order as to costs.
(Gokul Chandra Pati) (Justice Dinesh Gupta) Member (A) Member (J) HLS/-