Central Administrative Tribunal - Allahabad
Rohit Kumar Sharma vs General Manager N C Rly on 2 March, 2021
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
(RESERVED)
Central Administrative Tribunal, Allahabad Bench, Allahabad
O.A. No. 330/00386/2020, O.A. No. 330/00487/2020
and O.A. No. 330/00601/2020
This the 2nd day of March, 2021.
Hon'ble Mrs. Justice Vijay Lakshmi, Member (J)
Hon'ble Mr.Tarun Shridhar, Member (A)
O.A. No. 386/2020 (Leading case)
1. Rohit Kumar Sharma aged about 36 years son of Sri
Mahesh Kumar Sharma.
2. Quazi Shadab Uddine aged about 36 years son of late
Quazi Shakil Uddine.
3. Jahar Singh aged about 34 years son of Sri Bhagwan Das.
4. Amit N.S. Chauhan, aged about 41 years son of Sri
Narottam Singh Chauhan.
5. Shivpati Singh aged about 36 years son of Sri Tej Bahadur
Singh.
6. Mukesh Kumar Yadav, aged about 39 years son of Sri
Komall Singh Yadav.
7. Atik Ahmad aged about 40 years son of Sri Rafiq Ahmad.
8. Hirday Kumar aged about 38 years son of Sri Jagdish
Prasad Anand.
9. Vivek Seth aged about 37 years son of Sri Hari Babu Seth.
10. Amit Singh Yadav, aged about 34 years son of late Gulab
Singh Yadav.
11. Nand Kishore aged about 35 years son of Sri Kamal Singh.
12. Chandrakant Rahul, aged about 37 years son of Sri
Mahendra Pratap..
13. Indrapal Singh Bhadauria, aged about 38 years son of Sri
Kishan Lal Ahirwar.
14. Mohammad Haroon Mansuri aged about 44 years son of Sri
Habib Khan.
15. Mohd. Sajid Ali, aged about 42 years son of late Abdul
Wahid.
16. Pramod Kumar Goswami aged about 39 years son of Sri
Ganga Prasad Goswami.
17. Sanjay Kumar Yadav aged about 40 years son of Chatur
Singh Yadav.
18. Ravindra kumar Verma aged about 35 years son of Sri
kalicharan Verma.
19. Sanjay Kumar aged about 33 years son of Sri Ram Charitar
Prasad.
20. Mukesh Kumar aged about 37 years son of Sri Ramjeevan
Shivhare.
21. Amelian Helarues Kujjur aged about 36 years son of Sri
Raphel Kujur.
All the applicants 1 thru' 21 are presently posted as Loco Pilot
(Goods) at Jhansi under the Jhansi Division of the North Central
Railway.
Page 1 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
22. Gyanendra Mishra aged about 39 years son of Sri Brijendra
Chandra Mishra presently posted as Loco Pilot (Goods) at Juhi
under the Jhansi Division of the North Central Railway.
Applicants
By Advocate: Sri Shyamal Narain
Versus
1. Union of India through the General Manager, North Central
Railway, Allahabad, U.P.
2. The Divisional Railway Manager, North Central Railway,
Jhansi, U.P.
3. The Divisional Railway Manager (Personnel), North Central
Railway, Jhansi, U.P.
Respondents
By Advocate: Sri L.M.Singh
O.A. No. 487/2020
1. Narendra Kumar aged about 38 years son of Sri Kamta
Prasad Tiwari.
2. Fahad Sadat, aged about 37 years son of late Sadat Yar
Khan.
3. Jagram aged about 34 years son of Sri Shiv Ram.
4. Arvind Kumar aged about 39 years son of Sri Sharda
Prasad.
5. Kalideen aged about 35 years son of Sri Jagannath.
6. Kamta Prasad aged about 42 years son of Sri Binda
Prasad.
7. Abdul Aleem Beg aged about 39 years son of Sri Abdul
Mueed Beg.
8. Rajneesh Saxena aged about 33 years son of Sri Anup
Kumar Saxena.
9. Arun Kumar aged abou t 38 years son of Sri Shiv Prasad.
10. Pawan Gupta aged about 36 years son of Sri Om Prakash
Gupta.
11. Abhishek Kumar Agrahari aged about 32 years son of Sri
Arun Kumar Agrahari.
12. Satish Kumar Namdeo aged about 40 years son of Sri S.D.
Namdeo.
13. Dwarika Prasad Tamrakar, aged about 37 years son of L.T.
Babu Lal Tamrakar.
14. Raj Kumar aged about 41 years son of Sri Lurkhur Ram.
15. Sonu Rajput aged about 34 years son of Sri Lallu Rajput.
16. Shiv Narayan Kushwaha aged about 40 years son of Sri
Basanta.
17. Santosh Kumar aged about 48 years son of late Shiv
Bodhan Prasad.
18. Bhuwanesh kumar Awasthi aged about 42 years son of Sri
Shiv Prasad Awasthi.
All the applicants 1 thru' 18 are presently posted as Loco Pilot
(Goods) at Banda/Lobby under the Jhansi Division of North Central
Railway.
Page 2 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
Applicants
By Advocate: Sri Shyamal Narain
Versus
1. Union of India through the General Manager, North Central
Railway, Allahabad, U.P.
2. The Divisional Railway Manager, North Central Railway,
Jhansi, U.P.
3. The Divisional Railway Manager (Personnel), North Central
Railway, Jhansi, U.P.
Respondents
By Advocate: Sri L.M.Singh
O.A. No. 601/2020
1. Javed Khan, aged about 33 years, son of Sri Mohd. Ismai.
2. Rohit Raj, aged about 35 years, son of Sri Shyam Bihari
Thakur.
3. Jeetendra Kumar aged about 32 years, son of Sri Kedar
Prasad.
4. Jaydev Likhar, aged about 37 years, son of Sri Narayan
Das.
5. Dhan Singh, aged about 35 years, son of Sri Narayan Das.
6. Mohd. Ilyas, aged about 38 years, son of Sri Mohd. Usman.
7. Amit Kumar Verma, aged about 36 years, son of Sri Ram
Kishan Verma.
8. Arun Kumar Tiwari, aged about 32 years, son of Sri Satya
Prakash Tiwari.
9. Arun Kumar Verma, aged about 32 years, son of Sri Raja
Ram.
10. Prem Prakash II, aged about 32 years, son of Sri Akhilesh
Kumar Singh.
11. Saurabh Sahu, aged about 30 years, son of Sri Rajendra
Kumar Sahu.
12. Hemant Kumar, aged about 33 years, son of Sri Kameshwar
Prasad.
13. Harsh Kumar, aged about 40 years, son of Sri Ram Ayodhya
Singh.
14. Praveen Kumar, aged about 41 years, son of Sri Chandra
Mohan Sharma.
15. Vinod Keshari, aged about 37 years, son of Sri Hari Shankar
Keshari.
16. Aniruddh Sharma, aged about 36 years, son of Sri Mahesh
Kumar Sharma.
17. Shailendra Kumar aged about 35 years, son of Sri Prabhu
Dayal.
18. Vikram Kumar aged about 36 years, son of Sri Ram Vinay
Roy.
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O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
19. Rahul Raikwar, aged about 32 years, son of Sri Om
Prakash.
20. Brajesh Kumar Rai, aged about 43 years, son of Sri Baboo
Lal Rai.
21. Rakesh Kumar Chaurasia, aged about 37 years, son of Sri
Ganga Ram Chaurasia.
22. Sher Singh Yadav, aged about 31 years, son of Sri Manik
Chandra.
23. Ashish Kumar , aged about 36 years, son of Sri Sukkhan
Lal.
24. Jaswant Kumar, aged about 37 years, son of Sri Jagdish
Prasad.
25. Jawed Anwar, aged about 35 years, son of Sri Shekh Wasil.
26. Vikash Khare, aged about 36 years, son of Sri Krapaqram
Khare.
27. Ramesh Kumar Pathariya aged about 40 years, son of Sri
Pooran Lal.
28. Naresh Kumar Verma, aged about 44 years, son of Sri
Ghanshyam Das.
29. Pradeep Singh Kushwaha, aged about 42 years, son of Sri
Ram Das Kushwaha.
30. Shankar Lal Meena, aged about 33 years, son of Sri Prabhu
Lal Meena.
31. Brijesh Kumar aged about 40 years, son of Late Prakash
Chand.
32. Syad Shahid Hasan, aged about 41 years, son of Late
Iftakharul Hasan.
33. Devendra Srivastava, aged about 38 years, son of Late
Babu Lal Srivastava.
34. Deepak Sen, aged about 40 years, son of Late Ram Charan
Sen.
35. Mohd. Tanvir Khan, aged about 36 years, son of Late Mohd.
Shamim.
36. Vivek Kumar Rajpoot, aged about 38 years, son of Sri
Shyam Sunder Rajpoot.
37. Sumit Sahu, aged about 36 years, son of Late Munna Lal
Sahu.
38. Chandan Singh, aged about 40 years, son of Late Kishori
Sharan.
39. Ramesh Chander Raikwar, aged about, 46 years, son of
Late Shankar Lal.
40. Brajesh Kumar, aged about 34 years, son of Sri Jageshwar
Das.
41. Ved Prakash Nam Deo, aged about 42 years, son of Sri
Chunti Lal.
42. Jai Kishan, aged about 33 years, son of Sri Ram Kishan.
43. Braj Gopal, aged about 36 years, son of Sri Chhakki Lal.
44. A.K. Akela, aged about 37 years, son of Sri Brahm Deo
Mahto.
45. Kundan Kumar, aged about 29 years, son of Lal Babu Singh.
46. Harendra Kumar, aged about 36 years, son of Sri Braj
Nandan Singh.
Page 4 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
47. Ranjeet Kumar Sinha, aged about 38 years, son of Late
Rajendra Kumar Sinha.
48. Chandra Bhushan Prasad, aged about 35 years, son of Sri
Rajendra Prasad.
49. Man Singh Meena, aged about 35 years, son of Sri Girraj
Meena.
50. Harsahay Meena, aged about 40 years, son of Sri Sukhji
Ram Meena.
51. Aniruddh Pachouri aged about 37 years, son of Sri Ram
Prakash Pachouri.
52. Amzad Ahmad Khan, aged about 40 years son of Sri
Shamim Ahmad Khan.
53. Santosh Pathak, aged about 39 years, son of Late Saliqram
Pathak.
54. Sanjeev Singh Yadav, aged about 40 years, son of Sri Laxmi
Narayan Yadav.
55. Brajesh Kumar aged about 32 years, son of Sri Pravesh
Prasad.
56. Vivek Kumar Sahoo, aged about 33 years, son of Sri
Jagdish Prasad Sahoo.
57. Ashwani Goswami, aged about 40 years son of Sri Lakhan
Lal Goswami.
58. Deepak Sharma, aged about 40 years, son of Sri Mahesh
Sharma.
59. Pradeep Sahu, aged about 42 years, son of Sri Suresh
Chandra Sahu.
60. M.K. Agrawal, aged about 48 years, son of Sri Ram
Swaroop Pansari.
61. Pappu Kumar, aged about 31 years, son of Sri Surya Nath
Singh.
62. Shailendra Kumar Dhariya, aged about 40 years, son of Sri
Om Prakash.
63. Santosh Rajpali, aged about 41 years, son of Sri Pooran Lal
Rajpali.
64. Rabish Kumar, aged about 35 years, son of Sri Kailash
Mahto.
65. Anil Sahu, aged about 33 years, son of Sri Babu Lal Sahu.
66. Gajraj aged about 36 years, son of Sri Ram Kishore.
67. Ashok Aryan, aged about 31 years, son of Sri Amrendra
Dubey.
68. Rajeev Chaurasiya, aged about 48 years, son of Sri
Balswaroop Chaurasiya.
69. Amit Kumar aged about 42 years, son of Sri Dhruv Kumar
Singh.
70. Jitendra Kumar, aged about 40 years, son of Sri Pitam Das.
71. Om Prakash Pandey, aged about 33 years, son of Sri
Kamlesh Pandey.
72. Vishal Agarwal, aged about 37 years, son of Sri A.K.
Agarwal.
73. Shiv Prakash aged about 36 years, son of Sri Heera Lal.
74. Kashi Ram Mishra, aged about 35 years, son of Sri Jag
Prasad Mishra.
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O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
75. Kailash Chandra, aged about 35 years, son of Sri
Harprasad.
76. Mahesh Kumar, aged about 35 years, son of Sri Shyam Lal.
77. Komal Kumar, aged about 39 years, son of Sri Asha Ram.
78. Rakesh Kumar, aged about 44 years, son of Sri Brandavan
Lal.
79. Rana Gyan Rajan, aged about 34 years, son of Sri
Shivkumar Prasad Singh.
All the above applicants, 1 thru' 79, are presently posted as Loco
Pilot (Goods), at Jhansi under the Jhansi Division of North
Central Railway.
80. Brajesh Narwaria, aged about 42 years, son of Sri Nathu
Ram Narwaria.
81. Chandra Bhan Singh, aged about 40 years, son of Sri Ram
Singh.
82. Bhuwan Mohan Shukla, aged about 52 years son of Sri Uma
Shankar Shukla.
The above applicants 80 thru' 82 are presently posted as
Loco Pilot (Goods), at Gwalior under the Jhansi Division of
North Central Railway.
83. Keshav Kumar Tiwari aged about 33 years son of Sri Kamal
Deo Tiwari.
84. Dinesh Chaudhree aged about 37 years son of late Mahesh
The above applicants 83 and 84 are presently posted as
Loco Pilot (goods) at North Central Railway, Prayagraj.
85. Rajeev Kumar aged about 33 years son of Sri Ram Preet
Mahto.
86. Kapil Sahu aged about 36 years son of Sri Ram Sewak
Sahu
The above applicants 85 and 86 are presently posted as
Loco Pilot (Goods) at Lalitpur under the Jhansi Division of North
Cntral Railway.
87. Ravi Shankar Kumar, aged about 32 years son of Sri Shiv
Kumar Prasad, presently posted as Loco Pilot (Goods) at DNR
(Danapur) under the East Central Railway.
88. Kuldeep Sachan, aged about 34 years son of Sri Prakash
Narain Sachan.
89. Ram Pratap Singh aged about 40 years son of Sri Kanchan
Singh.
90. Mahesh Verma, aged about 32 years son of late Arjun
Prasad.
91. Pushpendra katiyar, aged about 34 years son of Sri Satish
Chandra Katiyar.
92 Ajay Kumar aged abut 35 years son of Sri Ram Varan Roy.
93. Sangeet Kumar aged about 29 years son of Sri Nanhey Lal.
94. Santosh Kumar Sahu aged about 38 years son of Sri Ganga
Ram Sahu.
95. Dharmendra Kumar Saini aged about 40 years son of Sri
Moti Lal Saini.
Page 6 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
The above applicants 88 thru' 95 are presently posted as Loco Pilot
(Goods) at Juhi, Kanpur under the Jhansi Division of North Central
Railway.
Applicants
By Advocate: Sri Shyamal Narain
Versus
1. Union of India through the General Manager, North Central
Railway, Allahabad, U.P.
2. The Divisional Railway Manager, North Central Railway,
Jhansi, U.P.
3. The Divisional Railway Manager (Personnel), North Central
Railway, Jhansi, U.P.
Respondents
By Advocate: Sri L.M.Singh
ORDER
By Hon'ble Mrs. Justice Vijay Lakshmi, Member (J) Since the issue and grievance involved in all the three above mentioned O.As is the same and emanates out of the same impugned order dated 11.8.2020, with the same respondents, and since the pleadings and annexures are almost the same, all these O.As namely O.A. No. 330/00386/2020, O.A. No. 330/00487/2020 and O.A. No. 330/00601/2020, were clubbed together, vide order dated 2.11.2020 and all are being decided herewith by this common order. As the numbers of annexures and paragraphs of the pleadings are different in all the OAs, the O.A. No. 386/2020 is taken up as the leading case for the sake of clarity and convenience and the annexure numbers marked by the parties in O.A. No. 386/20 will be referred to in this judgment accordingly. However, there are some annexures, which have not been filed in O.A. No. 386/2020, but are filed in rest of two OAs. Those will be referred to in accordance with their numbers in the specific O.As.
2. We have heard at length Sri Shyamal Narain, who is the learned counsel for the applicants in all the three OAs, Sri L.M. Page 7 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 Singh, learned Standing Counsel for Railways, who is representing the respondents in all the these OAs, and have carefully perused the records as well as the judgments cited by learned counsel for parties.
3. The reliefs prayed by the applicants in the above mentioned OAs are quoted separately as under:-
In O.A. No. 386/2020, the applicants have prayed for the following reliefs:-
i) That this Hon'ble Tribunal be pleased to quash and set aside the impugned order/notice dated 11.8.2020 (Annexure No.A-1 to compilation No. I).
ii) That this Hon'ble Tribunal be pleased to grant such other relief as the applicants might be found entitled to in the facts and circumstances of the case.
iii) That this Hon'ble Tribunal be pleased to award the costs of this Original application in favour of the applicants, throughout.
In O.A. No. 487/2020, the applicants have prayed for the following reliefs:-
i) That this Hon'ble Tribunal be pleased to quash and set aside the impugned orders/notices dated 11.8.2020 and 25.8.2020 (Annexure Nos. A-1 and A- 2 to compilation No.1 respectively).
ii) That this Hon'ble Tribunal be pleased to grant such other relief as the applicants might be found entitled to in the facts and circumstances of the case.
iii) That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favour of the applicants, throughout.
Page 8 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 In O.A. No. 601/2020, the applicants have prayed for the following reliefs:-
i) That this Hon'ble Tribunal be pleased to quash and set aside the impugned orders/notices dated 11.8.2020 and 25.8.2020 (Annexure Nos A-1 and a-2 to compilation No.1 respectively).
ii) That this Hon'ble Tribunal be pleased to grant such relief as the applicants might be found entitled to in the facts and circumstances of the case.
iii) That this Hon'ble Tribunal be pleased to award the costs of this Original application in favour of the applicants, throughout.
4. For a correct decision of the controversy involved in all these OAs, it is necessary to have a glance on the background facts of the case. The applicants in these OAs are presently working as Loco Pilot (Goods) in North Central Railways. They were initially appointed as Diesel/Electrical Loco Assistant, which post, in due course, got re-designated as Assistant Loco Pilot.
5. The channel of promotion from Assistant Loco Pilot to Loco Pilot Mail, from lowest to higher level is as follows:-
i) Assistant Loco Pilot to Shunter ii) Shunter to Loco Pilot (Goods)
iii) Loco Pilot (Goods) to Loco Pilot (Passenger)
iv) Loco Pilot (Passenger to Loco Pilot (Express/Mail).
6. The duties assigned to a Loco Pilot is to drive a train which can be a Goods train, a passenger train or an express/mail train. A Loco Pilot is assisted in the cabin of engine by one Assistant Loco Page 9 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 Pilot. The post of Loco Pilot is a safety category post, involving the risk and responsibility of safety of lives and properties of several persons. Therefore, before the Assistant Loco Pilots are assigned independent responsibility to drive a train, whether as Loco Pilot (Goods) or Loco Pilot (Passenger/Mail/Express), the Railway department mandatorily follow certain norms, like ensuring the passing of competency test and training etc. The feeder cadre for the post of Loco Pilot (Goods) is 'Shunter'. However, it appears that due to shortage of Shunters in Railways, who could be considered for promotion to the post of Loco Pilot (Goods), the Ministry of Railways vide Railway Board's letter RBI No. 101/2008 dated 22.8.2008,(hereinafter referred to as 2008 circular in short) (its copy has been annexed in all the OAs by the applicants and it is Annexure No. A-2 in the leading O.A.), decided that in the eventuality of non-availability of Shunters, the General Manager may consider the Assistant Loco Pilots with two years of service and 60,000 Kms. of foot plate experience, as eligible for promotion to Loco Pilot (Goods), subject to certain conditions. These conditions were specified as under:-
"i) suitability of such Asst. Loco Pilots to work independently as Driver (Loco Pilot (Goods) shall be personally certified by the Mechanical/Electrical Officer (as the case may be), incharge of power of the Division concerned;
ii) Such promotee drivers be placed under the supervision of a dedicated Loco Inspector for 5 trips or 500 kms of driving whichever is earlier;
iii) For sections classified as "ghats', such promote drivers may work with a regular driver as 'co' Page 10 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 driver' for seven days or 1000 kms. , whichever is later;
iv) provision of hands on training for independent loco driving to Diesel /Electrical Assistants in their induction and refresher courses shall be included in the course content for the promotional trainings;
v) Training centers should be got equipped with simulators progressively
7. The respondents assessed that they need 465 number of employees to work as Loco Pilot (Goods). They found 402 employees, out of available Assistant Loco Pilots, provisionally eligible vide a list annexed with the letter dated 22.12.2015 (Annexure No. A-3), issued by DRM (P), Jhansi. The names of all the applicants in the aforesaid three OAs, were found included in this list. Aforesaid letter dated 22.12.2015 (Annexure A-3) issued by DRM (P), Jhansi, which contains the list of 402 candidates/Assistant Loco Pilots, consisting all the applicants of aforesaid three OAs is also reproduced below for a ready reference:-
"Sub: Promotion to the post of Loco Pilot Goods PB 9300-34800 + G.P. 4200 by suitability with prescribed benchmark in transpiration power department on Jhansi Division.
****** As a result of scrutiny of service recorded to consider the staff for promotions to fill up the 465 vacancies (UR= 367, SC 48, ST=50) for the post of Loco Pilot Goods in PB 9300-34800 + G.P. 4200 and as per Page 11 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 guidelines issued vide Rly Bd's L. No. E(NG)1-2008/PM- 1/15 dated 3.9.2009, L.No.E(NG)1-2008/PM-1/15-Vol. II dated 7.6.2010, 21.11.11, E(NG)1-2008/PM-1/15 dated 15.1.2013 & 24.5.13, the following employees have been found suitable as per prescribed bench mark for the post of Loco Pilot Goods in transportation Power department After this there is a list of names of 402 Assistant Loco Pilots, who were found eligible/suitable for the post of Loco Pilot (Goods), starting from Sl. No. 1 to Sl. No. 402. None other eligible candidates are available.
The above candidates are worned (sic) (it may be warned) that merely placement on the provisional select list has no guarantee for retention for their names on the provisional select list which will depend on satisfactory service and fulfillment of the conditions mentioned in the Rly Bd's L. no. E (NG)10-2006/PM-7/21 dated 22.8.2008.
The above select list is purely provisional and subject to the outcome of the final decision in O.A. no. 825/2012 filed before Hon'ble CAT/ALD by Shri Santosh Kumar Singh & others Vs. UOI and others.
The placement of above candidate in the select list is also provisional subject to minimum sixty thousand Km foot place experience. If at any stage, it is found that any candidates has not completed sixty thousand Km foot plate experience on the date of suitability i.e. on 21.12.15, his name will be deleted from the select list.
Page 12 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 The above select list is subject to free from DAR & Vig. Clearance.
The staff concerned may be advised accordingly and a copy of select list may be placed on the notice board for information of staff concerned."
8. Thereafter, an order No. 828/2015 was issued on 31.12.2015 (Annexure A-4), under the signature of the same officer, who had issued eligibility list dated 22.12.2015. By the order dated 31.12.2015, 283 persons, out of 402 were promoted as Loco Pilot (Goods). Applicants in all the instant OAs, were included in this list also and were posted at different stations, like Jhansi, Banda and Gwalior etc.
9. A perusal of the aforesaid letter dated 31.12.15 (A-4) shows that it also contains the following conditions,:-
¼c½ fuEufyf[kr deZpkfj;ksa ds uke bla dk;kZy; ds le&la[;d i= fnukad 22-12-15 ds vuqlkj yks-ik- ¼xqM~l½ ih-ch- 9300&34800 $ 4200 ¼th-ih-½ ds in ij inksUufr gsrq flysDV fyLV esa j[ks x;s gS budh inksUufr yks-ik- ¼xqM~l½ ds in ij dj in&LFkkiuk buds uke ds vkxs n"kkZ;s x;s LVs"ku ij bl "kRkZ ds lkFk dh tkrh gS fd bu dEkZpkfj;ksa us fu/kkZfjr izh-&izeks"kuy dkslZ mRrh.kZ dj fy;k gSA vr% deZpkfj;ksa dks inksUUkfr iznku djus ls iwoZ izh-izeks"kuy dkslZ dk mRrh.kZ gksuk lqfuf"pr fd;k tk;sA (Thereafter the names of 283 Assistant Loco Pilots are mentioned with their place of posting).
1- mijksDr inksUufr vkns"k ekuuh; dsUnzh; iz"kklfud vf/kdj.k bykgkckn esa nk;j vks, la-825@2012 ds vafre fu.kZ; ds v/khu gksaxsA 2- mijksDr inksUufr rFkk ifj.kkeh YkkHk iw.kZr% vLFkkbZ@izksfotuy vk/kkj ij gksxsA Page 13 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 3- ;fn dksbZ ofj- deZpkjh inksUufr ls fdUgh dkj.kkssa ls ofapr jg x;k gks rks Hkfo'; esa dfu'B deZpkjh dks fcuk uksfVl fn;a inkour dj ofjp deZpkjh dks inksUur fd;k tk;sxkA 4- ;fn dksbZ deZpkjh fuyEcu esa gS vFkok mlds fo:) dksbZ "kkfLr yfEcr gS vFkok izHkkoh gS rks mls inksUufr u nh tk;s ,oa bldh lwpuk bl dk;kZy; dks lEiw.kZ fooj.k lfgr nh tk;sA 5- inksUufr deZpkjh inksUufr osrueku esa osru fu/kkZj.k viuh vxyh osru o`f) ls pkgrs gS] rks os viuk fodYi 01 ekg ds vUnj ns ldrs gSA
10. All these 283 employees enlisted in the aforesaid letter, were also granted pay scale of PB-2 + G.P. of Rs. 4200/- w.e.f. 31.12.2015. However, respondents at a later stage realized, that despite the fact that all these candidates having been found eligible for Loco Pilot (Goods), which carries a higher pay scale of PB -2 + G.P. of Rs. 4200/-, the two mandatory pre-conditions i.e. passing of competency test and working under the supervision of a Loco Inspector, before they could be given independent charge of running a train as Loco Pilot (Goods), were yet to be fulfilled. Hence, their pay fixation was directed to be revised with effect from a subsequent date, when those mandatory conditions were satisfied. This implied that certain excess amount already made, were required to be recovered and their future salary was also required to be regulated accordingly.
11. For this purpose, a show cause notice was issued by the respondents on 11.8.2020, seeking clarifications from the applicants, before re-fixation of their pay w.e.f. the date of passing of competency test etc. and for recovery of the excess amount paid to the applicants for the earlier period after 31.12.2015. Page 14 of 33
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12. It is this impugned show cause notice dated 11.8.2020, which is under challeng in all these OAs. As some of the applicants have made representations, which was disposed of by the respondents by the order dated 25.8.2020 giving them further time of 15 days to submit their claim with proof,. the order dated 25.8.2020 is also under challenge in two OAs i.e. O.A. No. 487/2020 and O.A. No. 601/2020.
13. Learned counsel for applicants has challenged the legality and correctness of the impugned notice dated 11.8.2020, and impugned order dated 25.8.2020, mainly on the following grounds:-
i) It is not merely a notice, but tone and tenor of this notice, clearly indicates that the respondents have already made up their minds to go ahead with the recovery and they are only doing lip-
service of inviting representations from the applicants. In this regard, our attention has been drawn to the following part of the impugned notice:-
d`i;k loZlacf/kr dks uksV djk;s ,oa ;fn og bl lEcU/k esa dqN dguk pkgrs gSa@vFkok izR;kosnu izLrqr djuk pkgrs gS] rks vki deZpkfj;ksa ls izkIr djs ,oa bl dk;kZy; dks i= izkIrh ds pkSng ¼14½ fnu ds vUnj fHktokuk lqfu"pr djsa] le;kof/k mijkUr izkIr izR;kosnuks ij dksbZ dk;Zokgh ugha dh tk;sxh] ,oa ;g le>k tk;sxk fd deZpkfj;ksa dks bl lEcU/k esa dqN Hkh ugh dguk gS] vkSj ekg vxLr 2020 ls fuEukuqlkj iqu% fu/kkZfjr osru dk Hkqxrku ,oa vf/kd gq;s Hkqxrku jkf"k dh x.kuk dj vklku fdLrksa esa dVkSrh deZpkfj;ksa dks lwfpr djrs gq,a lqfuf"pr dh tk;sxhA
ii) It is contended by ld. Counsel for the applicant that this Tribunal earlier, had already accepted this argument and had granted interim relief to the applicants by separate orders passed Page 15 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 in all these three OAs, by directing the respondents, not to take any action in pursuance of the impugned notice dated 11.8.2020.
iii) It is next contended that all the applicants are Group 'C' employees, working on such post since 31.12.2015 and therefore, no recovery is possible against them in wake of the law as laid down by the Hon'ble Supreme Court in the landmark case of State of Punjab and others Vs. Rafiq Mashig and others, 2015 (4) SCC page 334. The law laid down by Hon'ble Supreme Court in Rafiq Mashih's case has also been recognized and enforced, as per circular RBE No. 72/2016 dated 22.6.2016 (Annexure No. A-7) which has adopted the same mutatis mutandis.
iv). The further submission of ld. Counsel for the applicant is that the impugned notice is also violative of the RBE No. 101/2008 dated 22.8.2008 and therefore, the impugned notice needs to be withdrawn on the ground of merits.
v). Learned counsel for the applicants, while drawing our attention to annexue No. A-8 in O.A. 487/2020 and Annexure A-2 in O.A. No. 601/2020, which is the impugned order dated 25.8.2020, passed by the respondents on the representations made by some of the applicants of O.A. No. 487/2020 and O.A. No. 601/2020 and which is under challenge in these 2 OAs, has contended that even assuming for the sake of argument that the order dated 11.8.20 is a show cause notice, the order dated 25.8.20 is certainly not a show cause notice and therefore, it can be challenged in a court of law. Page 16 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
14. On the aforesaid grounds, it has been prayed that the OAs be allowed and the reliefs claimed be granted.
15. In support of his contention, learned counsel for the applicants has placed reliance on the following judgments:-
i) Oryx Fisheries Private Limited Vs. Union of India and others (Special Leave Petition (c ) No. 27615/2008
ii) K.I. Shephard & Others Vs. Union of India and others reported in 1988 AIR 686,
iii) Satyam Iron and Steel Co. Pvt. Ltd. Vs. Commissioner of C.Ex (Writ Petition No. 28405 (W) of 2014.
16. The respondents have filed Counter Affidavit in all the OAs, raising a preliminary objection about the maintainability of the OAs by contending that the challenge in these OAs, is to a show cause notice and as per well settled legal position, a show cause notice cannot be challenged in a court of law, except, in a case, where it is issued by a person having no authority or jurisdiction to issue such notice. Whereas, in the instant matter, the respondent Railway department had full authority to issue notice to the applicants. Moreover, the applicants had ample time and opportunity to reply to such notice but instead of giving reply to the notice, they have rushed to the Tribunal, challenging the impugned notice dated 11.8.2020, by means of O.A., which are liable to be dismissed on the ground of maintainability.
17. It is next contended by ld. Counsel for the respondents that interim relief of staying the recovey of order dated 11.9.2020 was given to the applicants at the admission stage, without calling counter reply, only in view of the inability of learned counsel for the Page 17 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 respondents to produce the authority based on which the impugned order/notice has been issued. It is contended that only on the ground that while hearing on interim relief on the very first day of admission, when the respondents' counsel had no instruction and the stay was granted only till the next date of listing, it cannot be said that such order or authority to pass such order/notice never existed with the respondents. In this regard, our attention has been drawn to para 1327 of Indian Railway Establishment Code, which says that if a mistake in pay fixation has been noticed within 5 years, the recovery of excess payment can be made.
18. It is next contended that as per 2008 circular, the pay of the promoted employees was to be determined only after passing of the required mandatory pre-promotional course and grant of competency certificate of working independently as Loco Pilot (Goods). Admittedly, all the applicants are Assistant Loco Pilots, which is not a feeder cadre for the post of Loco Pilot Goods, because the feeder post for such is of Shunters, whereas the 2008 circular specifically mandates that all the employees coming from non-feeder category are required to have a competency certificate, before driving a train independently and their pay cannot be fixed in the higher scale of the promotional post till such competency certificate is achieved. Hence, the plea of the applicants cannot be sustained.
19. On the aforesaid grounds, it has been prayed by ld counsel for the respondents that all the OAs are liable to be dismissed and be dismissed.
Page 18 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 Findings:
20. We have given our thoughtful consideration to the rival submissions, made by the learned counsel for both the parties.
21. The key issues to be decided in this case are:-
(1) whether the challenge to the impugned order/notice in the OAs is maintainable?
(2) Whether the impugned notice/order is violative of 2008 circular or any other circular?
(3) Whether the applicants are entitled to the benefits of judgment rendered by Hon'ble Apex Court in the case of Rafiq Masih (supra)?.
22. In so far as the legality of the impugned notice qua the 2008 circular or any other circular issued by the respondents, is concerned, it would be useful to recollect even at the cost of repetition the relevant conditions mentioned in the aforesaid circular dated 22.8.2008 (Annexure No. A-2), which are reproduced below:-
i) Two years service as Diesel/Electrical Assistant (re-
designated as Assistant Loco Pilot Diesel/Electrical) and 60,000 Kms. Experience on foot plate;
ii) The suitability of such Assistant Loco Pilots to work independently as Driver/Loco Pilot (Goods) to be personally certified by the Mechanical/Electrical officer (as the case may be), in-charge of power Division concerned.
iii) Such promotee drivers be placed under the supervision of a dedicated Loco Inspector for five trips or 500 Kms of driving, whichever is earlier.
Page 19 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
iv) For section classified as Ghats, such promote drivers may work with a regular driver as co-drivers, for 7 days or 1000 kms. , whichever is later.
23. Thus, the aforesaid RBE 2008 circular letter (Annexure No. A-2 to the O.A.) clearly shows that nowhere does it specifies that the promotion would be granted even without fulfillment of the mandatory conditions mentioned above. A bare perusal of the aforesaid Railway Board circular, clearly shows that before promotion to Loco Pilot (Goods), Assistant Loco Pilots are mandatorily required to fulfill the specified conditions, which are meant to meet the competency requirement. This appeals to reason also because the feeder category for the post of Loco Pilot (Goods) is normally Shunter category and not from the category to which all the applicants herein belongs to. Therefore, to give such persons full responsibility of driving a train independently without enquiring that whether they have acquired the required competency, would amount to keeping at risk the safety of lives and property of public.
24. A perusal of Annexure No. A-3, filed by the applicants, which is the letter dated 22.12.2015, consisting the list of 402 candidates shows that it is clearly mentioned in it that all the above candidates are warned that merely placement in the provisional select list has no guarantee for retention of their names in the provisional select list , which will depend on satisfactory service and fulfillment of conditions mentioned in letter dated 22.8.2008.
Page 20 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
25. The respondents, at a later stage, realized that an irregularity has been caused by them in promoting the Assistant Loco Pilots to the post of Loco Pilot (Goods), without ensuring that whether all of them have fulfilled the required mandatory conditions or not. Therefore,they issued the impugned show cause notice dated 11.8.2020, which is reproduced below for a ready reference:-
dk;kZy;
eaMy jsy izca/kd ¼dk0½ >kWlh fnukWd& 11-08-2020 ^^i= la-ih@fofo/k @yksdks ik;yV@,yvkj lhlhlh@>kWlh] ckank] Xokfy;j ,oa tqgh fo'k;%& fnukad 31-12-2015 dks l-yks-ik-@ofj-l-yks-ik- ls yks-ik-xq ysoy&6 esa inksUur deZpkfj;ksa ds osru dk iqu% fu/kkZj.k ds laca/k esaA jsyos cksMZ ds i= la0 E(NG)I-2006/PM 7/21 fnukad 22-08-2008 vkjchbZ la0 101@2008 ds funsZ"kkuqlkj egkizca/kd egksn; ds vuqeksnu ls fuEufrf[kr la-yks-ik-@ofj-la-yks-ik- xzsM is 1900@2400 ls yks-ik-xq- xzsM is 4200@ysoy&6 esa ftudh nks o'kksZ dh lsok iw.kZ gks x;h Fkh o ftUgksus 60000 fdyksehVj QqVIysV iw.kZ dj fy;s Fks] dks bl d;kZy; ds i=kad ih@328@yks- ik-xq-@2015@,yvkj fnukad 31-12-2015 ds }kjk inksUur fd;k x;k Fkk] buds osru dk fu/kkZj.k ih-ih-lh- mRrh.kZ gksus o la{kerk mijkUr yks-ik-xq- ds in ij dk;Zxzg.k fd;s tkus ds frfFk ls fd;k tkuk Fkk] ijUrq budks osru fu/kkZj.k inksUufr frfFk fnukad 31-12-2015 ls dj fd;k x;k Fkk] ftldks fu;ekuqlkj la"kksf/kr fd;k tkuk vko";d gSA vr% osru fu/kkZj.k fuEu izdkj ls fd;k tkrk gS ,oa bl nkSjku gq,s vf/kd Hkqxrku dh x.kuk dh tk jgh gS] ftlls vkidks voxr djkrs gq,s vklku fdlrksa esa dVkSrh lqfuf"pr dh tk;sxhA d`i;k loZlacf/kr dks uksV djk;s ,oa ;fn og bl lEcU/k esa dqN dguk pkgrs gS@vFkok izR;kosnu izLrqr djuk pkgrs gS] rks vki deZpkfj;iksa ls izkIr djs ,oa bl d;kZy; dks i= izkIrh ds pkSng ¼14½ fnu ds vUnj fHktokuk lqfu"pr djsa] le;kof/k mijkUr izkIr izR;kosnuks ij dksbZ dk;Zokgh ugha dh tk;sxh] ,oa ;g le>k tk;sxk fd deZpkfj;ksa dks bl lEcU/k esa dqN Hkh ugh dguk gS] vkSj ekg vxLr 2020 ls fuEukuqlkj iqu% fu/kkZfjr osru dk Hkqxrku ,oa vf/kd gq;s Hkqxrku jkf"k dh x.kuk dj vklku fdLrksa esa dVkSrh deZpkfj;ksa dks lqfpr djrs gq,a lqfuf"pr dh tk;sxhA Page 21 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020
-
¼"kSysUnz JhokLro½ d`rs eaMy jsy izca/kd ¼dk0½ >kWlh izfr%& lhfu-Mh0bZ0bZ0@vksih] lhfu-Mh-,e-bZ-@vks,.M,Q ,oa lhfu-Mh-,Q-,e-
>kalh dks lwpukFkZA ofj-e-dk-vf/kdkjh]vij e.My jsy izcU/[email protected] jsy izcU/kd egksn; dks lwpukFkZA
26. It is well settled legal position that a show cause notice cannot and should not be challenged in a court of law, except under certain rare circumstances.Hon'ble Supreme Court has deprecated judicial interference at the stage of issuance of show cause notice unless it is without 'jurisdiction' or in abuse of process.
27. In the case of Satyam Iron and Steel Co. Pvt. Ltd (supra), the Hon'ble Calcutta High Court while relying on its earlier judgment in the case of Indian Cardboard Industries Ltd.Vs. Collector of Central Excise 1992 (58) ELT 508 Cal. has enumerated the exceptions when a show cause notice can be challenged as under:-
"The exception, carved out in the case of Indian Cardboard Industries Limited (Supra), in my opinion, still holds the field. The aforesaid exception can be aptly quoted hereunder:
"15. On the basis of the decisions cited it appears that the Court in exercise of its jurisdiction under Art. 226 of the Constitution will interfere with a show cause notice in the following circumstances:
(1) When the show cause notice ex facie or on the basis of admitted facts does not disclose the offence alleged to be committed;
Page 22 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 (2) When the show cause notice is otherwise without jurisdiction;
(3) When the show cause notice suffers from an incurable infirmity;
(4) When the show cause notice is contraiy to judicial decisions or decisions of the Tribunal;
(5) When there is no material justifying the issuance of the show cause notice." Therefore, to sum up, the High Court can interfere under Article 226 of the Constitution of India against a show cause notice where the same is issued by an authority in exercise of the power which is absent; the facts does not lead to commission of any offence; the show cause notice is otherwise without jurisdiction; it suffers from incurable infirmity; against the settled judicial decisions or the decisions of the Tribunal and bereft of material particulars justifying commission of offence. The Supreme Court, in the case of Union of India v. Vicco Laboratories, reported in 2007 (13) SCC 270 + (S.C.) also deprecates interference at the stage of issuance of show cause notice by the authorities unless it is without jurisdiction or in abuse of process of law in the following words:
"Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the Page 23 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out." "31. Since the authority have not decided the issue finally as the petitioner was invited to give defence to the allegations made in the said show cause notice, this Court does not feel that any case within the parameters, as set forth in the above noted report, has been made out.Since the time to file reply to a show cause notice, has expired, as the petitioner decided to challenge the said show cause notice before this Court, this Court feels that the petitioner should be given another opportunity to file reply thereto. The petitioner is directed to file reply to the impugned show cause notice within three weeks from date.The adjudicating authority is requested to dispose of the proceedings initiated against the petitioner within the reasonable period. It goes without saying that this order shall not be construed to have any impact on the merit or demerit of the respective case of the parties and it is open to the authority to decide the proceedings independently without being influenced by any observations made herein and by referring the reasoned order contending Page 24 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 the findings on the respective contentions of the parties."
28. Learned counsel for the applicants has relied upon two judgments of Hon'ble Supreme Court rendered in Oryx Fisheries Private Limited Vs. Union of India and others and K.I. Shephard & Others Vs. Union of India and others, in support of his pleadings regarding maintainability of present OAs against show cause notice.
29. We have perused both these judgments carefully and are of the view that no benefit can be given out of these judgments to the applicants because the facts are entirely different. Oryx Fisheries' case before Hon'ble Supreme Court, was a case between exporter/supplier (applicant) and buyer of seafoods and other related products.The goods/shrimps were supplied, under a contract to the buyer. After taking possession of the goods/ shrimps supplied, the buyer, found that the fishes were of very poor quality. A dispute arose between them. The goods packages being perishable, and the validity of shrimps packages having expired, ultimately the entire consignment of shrimps was to be destroyed.
A claim amounting to Rs. 83000/- US dollars was made by the buyer Co. to the supplier co. for the loss suffered by it due to cheating the buyer co. by supply of decomposed shrimps, unfit for human consumption, by means of a letter addressed to Chairman, Marine Products Export Development Authority, in short (MPEDA), which in turn sought clarification from the Exporter/supplier . In addition to it, the buyer also issued a legal notice to the supplier asking it to pay 83000 US dollars plus the destruction cost within 7 Page 25 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 days. The applicant (supplier) replied to the notice and denied all the allegations.
The letter sent by Director, MPEDA was also replied by the exporter. The Director , MPEDA decided to convene a joint meeting between the buyer and supplier to arrive out some amicable settlement between the two but when the mediation efforts also failed, the Director MPEDA issued a show cause notice dated 23.1.2008, calling upon the appellant supplier to show cause why their certificate of registration should not be cancelled.
The appellant replied to this notice vide its letter dated 4.2.2008. However, without giving the appellant any opportunity of personal hearing, the registration certificate of appellant (supplier) was cancelled.
In the background of the aforesaid facts, the question for consideration before Hon'ble Apex Court was whether the respondents, in cancelling the registration certificate of the appellant acted fairly and in compliance with principles of natural justice? (para 18 of the judgment) and the Hon'ble Supreme Court held that even a quasi judicial authority must act fairly and record reasons in support of its conclusion, for maintaining judicial accountability and transparency. Accordingly, Hon'ble Supreme Court quashed the impugned orders as well as the show cause notice, giving liberty to the authorities concerned to proceed from the stage of show cause notice afresh in accordance with law and following a fair procedure.
Thus, the facts discussed above clearly indicate that in the above cited case, the show cause notice was duly replied in time by the appellant but as opportunity of personal hearing was not given to him, the impugned order as well as the notice were quashed by Hon'ble Supreme Court, whereas in the instant OAs, the applicants Page 26 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 have not yet replied the show cause notice and have rushed to the Tribunal for quashing the same.
It is noteworthy that although in O.A. Nos. 487/2020 and 601/2020, an order dated 25.8.2020 passed on the representations made by some applicants is also under challenge, but a careful perusal of it shows that even this order cannot be treated as a final order. For a ready reference, the aforesaid order dated 25.8.2010 is reproduced below:-
mRrj e?; jsyos dk;kZy;
eaMy jsy izca/kd ¼dk0½ >kWlh fnukWd& 25-08-2020 ^^i= la-ih@fofo/k @yksdks ik;yV@,yvkj lhlhlh@>kWlh] ckank] Xokfy;j ,oa tqgh fo'k;%& fnukad 31-12-2015 dks l-yks-ik-@ofj-l-yks-ik- ls yks-ik-xq ysoy&6 esa inksUur deZpkfj;ksa ds osru dk iqu% fu/kkZj.k gsrq izkIr izR;kosnu ds laca/k esaA &&&&& vidks bl dk;kZy; ds lela[;d i= fnukad 11-08-2020 ds }kjk jsyos cksMZ ds i= la0 E(NG)I-2006/PM 7/21 fnukad 22-08-2008 vkjchbZ la0 101@2008 ds funsZ"kkuqlkj egkizca/kd egksn; ls la-yks-ik-@ofj-la-yks-ik- xzsM is 1900@2400 ls yks-ik-xq- xzsM is 4200@ysoy&6 esa ftlesa ftu deZpkfj;ksa dh nks o'kksZ dh lsok iw.kZ gks x;h Fkh o ftUgksus 60000 fdyksehVj QqVIysV iw.kZ dj fy;s Fks] mudks bl d;kZy; ds i=kad ih@328@yks-ik-xq-@2015@,yvkj fnukad 31-12-2015 ds }kjk inksUur fd;k x;k FkkA mDr cksMZ ds i= fnukad 22-08-2008 ds vuqlkj deZpkjh dk osru fu/kkZj.k inksUufr ij muds }kjk ih-ih- lh- ,oa la{kerk ¼daEihVsUlh½ ijh{kk mRrh.kZ djus ds mijkUr yks-ik-xq- ds in ij dk;Zxzg.k fd;s tkus ds frfFk ls fd;k tkuk Fkk] ijUrq budk osru fu/kkZj.k inksUufr vkns"k fnukad 31-12-2015 ls dj fd;k x;k Fkk] bl laca/k esa lacaf/kr deZpkfj;ksa ls i= fnukad 11-08-2020 ds }kjk jsyos cksMZ ds i= fnukad 31-12- 2015 ds }kjk tks deZpkjh mijksDr jsyos cksMZ ds fn"kkfunsZ"kkuqlkj inksUufr "krksZ ds fnukad 31-12-2015 dks iw.kZ ugha djrs Fks] mudks fnukad 31-12-2015 ls yks-ik-xq- xzsM is 4200 esa osru fu/kkZfjr dj vf/kd Hkqxrku dh x.kuk dj vklku fdLrksa esa dVkSrh gsrq loZlacaf/kr deZpkfj;ksa dks mfpr ek?;e ls uksfVl Page 27 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 tkjh fd;k fd;k Fkk] ftlesa lacaf/kr deZpkfj;ksa ls mijksDr jsyos cksMZ ds i= fnukad 22-08-2008 ds laca/k esa lk{; lfgr vkosnu ekaxs x;s FksA bl laca/k esa deZpkkfj;ksa ds }kjk vosnu izkIr gq,s ftlesa muds }kjk iqu% osru fu/kkZj.k gsrq jsyos cksMZ ds i= fnukad 22-08-2008 ds fo:) dksbZ Bksl lk{; izLrqr ughs fd;k gSA vr% izkIr izR;kosnuks dk v/;;u djus ds mijkUr rFkk jsyos cksMZ ds i= fnukad 22-08-2008 esa fn;s x;s fn"kkfunsZ"kks ds vuqlkj deZpkfj;ksa ds izR;kosnu dk fuLrkarj.k djrs gq,s tks deZpkjh fnukad 31-12-2015 dsk jsyos cksMZ ds i= fnukad 22-08-2008 vkbchbZ la[;k 101@2008 dh "krksZ dsk iq.kZ ugha djrs Fks ysfdu mlds inksUufr vkns"k fnukad 31-12-2015 ds inksUufr ij osru fu/kkZfjr dj fn;k x;k Fkk] mudk osru fu;euqlkj ih-ih-lh ,oa dEihVsUlh ijh{kk mRrh.kZ djrs dh frfFk ls fu/kkZj.k djrs gq, ekg vxLr 2020 ds fu;fer osru fd }kjk Hkqxrku fd;k tk jgk gSA mDr laca/k esa ;g Hkh voxr djk;k tkrk gS fd fnukad 11-08-2020 dks tkjh i=@lwph esa lEefyr lHkh yks-ik-xq- tks fnukad 31-12-2015 ls gq, vf/kd osru Hkqxrku dh dVkSrh ds lca/k esa lk{; lfgr viuk izR;kosnu 15-12-2020 rd bl d;kZy; esa izLrqr djrs gS rc Hkh muds vkosnu dks Lohdkj dj mids izR;kosnuks dks jsyos cksMZ ds funsZ"kkuqlkj fuLrkfjr fd;k tk;sxkA rnksijkUr mudh flRkEcj 2020 ls vklku fdLrksa esa vf/kd gq, osru Hkqxrku dh jkf"k dh dVkSrh izkjEHk dh tk;sxhA d`i;k laoZlacf/kr deZpkfj;ks dks O;fDrxr :i ls voxr djk;sA ¼vkj-ih-iky½ d`rs eaMy jsy izcU/kd ¼dk0½ >kWlh izfr%& lhfu-Mh0bZ0bZ0@vksih] lhfu-Mh-,e-bZ-@vks,.M,Q ,oa lhfu-Mh-,Q-,e-
>kalh dks lwpukFkZA ofj-e-dk-vf/kdkjh]vij e.My jsy izcU/[email protected] jsy izcU/kd egksn; dks lwpukFkZA
30. Thus, it is clearly apparent that even by the aforesaid impugned order dated 25.8.2020, the applicants have been granted a further time of 15 days to present their case along with proof. Page 28 of 33
O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 Therefore, we have no hesitation to hold that the applicants had the time and opportunity to submit their representations along with required proofs and to wait for the result, but they have rushed to Tribunal, hence, the orders dated 25.8.20 and 11.8.20 both are in nature of show cause notice, issued by a competent authority, whereby time and opportunity has been granted to the applicants to reply or represent before the authorities. As the applicants without replying or without furnishing the required proofs have rushed to the Tribunal by means of instant OAs, we are not inclined to interfere at this premature stage.
31. In so far as the recovery part is concerned, the Hon'ble Supreme Court in a catena of judgments has held that excess payments of public money or tax payers money belongs neither to the officers, who have effected overpayment nor the recipients, therefore, in case of irregular/wrong pay fixation, any such amount paid or received without authority of law, can always be recovered, barring few exceptions of extreme hardship but not as a matter of right. In such situation, law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment to the payees and financial loss to the State exchequer. 32 In view of the above discussion, we are of the opinion that , merely on the basis of the fact that this Tribunal, at the admission stage had granted interim relief to the applicants without calling counter reply from the respondents, by staying the recovery till the next date, does not mean that even after exchange of affidavits and hearing final arguments from both sides, the position will remain the same.
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33. It is also noteworthy that interim reliefs granted to the applicants, was challenged by the respondents before the Hon'ble High Court by means of Writ-A No. 12823/2020 (Union of India and 2 others Vs. Central Administrative Tribunal and 22 others), which was decided by the Hon'ble High Court vide order dated 16.12.2020 (filed before us on 22.1.2021) with a direction to expedite the hearing of the OA and to decide it within a period of one month from the date of receipt of copy of the order. It was further directed that if the OA is not disposed off within the period given above, interim relief granted by the Tribunal, will come to an end automatically.
34. Learned counsel for the applicants has repeatedly argued that as all the applicants are Group 'C' employees, recovery cannot be made from them in the wake of law laid down by the Hon'ble Supreme Court in the land mark case of Rafiq Masih (supra).
35. In our humble opinion, the judgment of Rafiq Masih is not applicable in the instant OAs, because infact there is no order of recovery issued by the respondents and only a notice for recovery has been issued. It is seen earlier that even by the impugned order dated 25.8.2020 also, time has been granted to the applicants to represent their case. However, the applicants without submitting their representations and required proof, have rushed to this Tribunal. In the aforesaid circumstances, when infact, there is no order of recovery, we cannot quash it by placing reliance of Rafiq Masih case.
36. All the applicants, despite having full knowledge of the mandatory conditions for promotion to the post of Loco Pilot Goods, Page 30 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 are trying to take undue advantage of the mistake committed by the department while promoting them to post of Loco Pilot (Goods) without fulfilling the mandatory conditions/competency. There is a catena of judgments of Hon'ble Apex Court, wherein it has been held that a mistake committed earlier, at any point of time, cannot be permitted to be perpetuated in all times to come and pay fixation can be done in accordance with entitlement under intimation to the applicants. No one can be paid higher emoluments without doing job required for securing the said emoluments and a trainee cannot said to be a full-fledged promote of a higher level. Therefore, the respondents have the full right to go back and to hold that the applicants will be deemed to be promoted from the date they got their competency certificate and they would be eligible for promotion from the date of receipt of said competency certificate. There is nothing wrong in the aforesaid decision taken by the respondents Railways.
37. No doubt, the applicants were placed in a select list of employees after having completed the minimum requisite conditions of 6000 Kms. foot plate and 2 years of experience of Assistant Loco Pilot. However, there is always a distinction between the "Eligibility" and "Sufficiency of Qualification" or Competency by fulfilling the conditions to handle a job. Logically, the applicants were entitled to higher pay scale on fulfilling the conditions because only then, they would be actually performing the higher level task. Hence, the applicants cannot be given the higher pay scale of promotional post while they were under training and yet to fulfill the conditions, required for promotion, as clearly mentioned in 2008 circular. We cannot read more into the circular Page 31 of 33 O.A. No.386/2020, O.A. No. 487/2020 and O.A. No. 601/2020 than specified, in wake of the welll settled legal position regarding the interpretation of statute/ guidelines/circulars.
38. On the basis of the aforesaid discussions, the conclusion seems to fall in favour of the respondents and the balance of justice is certainly with them. We are in agreement to the grounds taken by the respondents and are of the firm opinion that all the three OAs are liable to be dismissed. Accordngly, all the OAs are dismissed. There shall be no order as to costs.
39. However, before parting with the judgment, we direct the respondents that since the time to file reply to the impugned show cause notice/order/ making representation, has expired, as the applicants decided to challenge the said show cause notice before this Court, this Court feels that the applicants should be given another opportunity to file reply thereto. Therefore, all the applicants are directed to file reply to the impugned show cause notice within three weeks from today. The adjudicating authority is directed to dispose of their representations within a reasonable period, preferably within 2 months from the receipt of representation along with a certified copy of this order. It goes without saying that this order shall not be construed to have any impact on the merit or demerit of the respective case of the parties and it is open to the authority to decide the proceedings independently without being influenced by any observations made herein.
(Tarun Shridhar) (Justice Vijay Lakshmi)
Member (A) Member (J)
HLS/-
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