Punjab-Haryana High Court
Union Of India And Others vs Mahender Kumar And Another on 16 May, 2014
Author: Arun Palli
Bench: Sanjay Kishan Kaul, Arun Palli
C. W. P. No. 438 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No. 536
Case No. : C. W. P. No. 438 of 2008
Reserved On : April 26, 2014
Date of Decision : May 16, 2014
Union of India and others .... Petitioners
Vs.
Mahender Kumar and another .... Respondents
CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON'BLE MR. JUSTICE ARUN PALLI.
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Whether reporters of local newspapers may be allowed to see
the judgment ?
Be referred to the Reporters or not ?
Whether the judgment should be reported in the Digest ?
* * *
Present : Mr. Jagdish Marwaha, Advocate
for the petitioners.
Mr. Aman Chaudhary, Advocate
for respondent no. 1.
Respondent no. 2 formal party.
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ARUN PALLI, J. :
Mahender Kumar (respondent no. 1) joined service as Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 2 Technician on 06.09.1986 and was subsequently promoted to Grade-II and thereafter to Grade-I. For filling up the posts of Master Crafts Man (MCM) in the grade of Rs.1400-2300, a circular dated 09.05.1997 was issued by the Department. Respondent no. 1, who belongs to Scheduled Caste category, competed for selection against the said post. He qualified the trade test and on the basis of his service record and confidential reports, his candidature was approved by the Selection Committee. Accordingly, a notification dated 24.06.1997 was issued. Subsequently, vide order dated 19.10.2001, respondent no. 1 was appointed as Junior Engineer-II (JE-II) in the grade of Rs.5000-8000. As may be expedient to point out here, the pay scale/grade for the post of MCM as well as that of JE-II is Rs.5000-8000. The next promotion from the cadre of JE-II is to JE-I i.e. to the post of Assistant Signal and Telecommunication Engineer (ASTE). That is a Group-B post. Posts of MCM and JE-II, in the scale of Rs.5000-8000, are in Group-C. Respondent no. 1, considering himself to be eligible to compete for the promotion to the post of ASTE, requested petitioner no. 4 to allow him to appear in the written test. Vide letter dated 25.07.2003, petitioner no. 4 allowed respondent no. 1 to provisionally attend pre-selection training for counseling him to prepare for the written test. In the meanwhile, Assistant Personnel Officer, Diesel Component Works (DCW), Patiala, referred the matter to the Railway Board, New Delhi, for a clarification as to whether the service of respondent no. 1 as MCM in the scale of Rs.1400-2300 could Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 3 be considered or clubbed with his service as JE-II in the scale of Rs.1400- 2300 to qualify for three years non-fortuitous service in the said scale. In response, vide letter dated 07.10.2003, a clarification was rendered that the post of MCM cannot be considered equal to the post of JE-II even though the scales of pay for the two posts were same. It was also clarified that the post of MCM is held on personal basis and in fact, the MCM are eligible for promotion as JE-II based on their seniority. As is discernible from the records, respondent no. 1 still made a few representations to the Department reiterating his view point, but to no avail. However, vide letter dated 21.09.2004, respondent no. 1 was declared ineligible to appear in the written test for promotion to the post of ASTE. Since the written test was slated to take place on 06.10.2004, respondent no.1 approached the Central Administrative Tribunal, Chandigarh (for short - the Tribunal), vide O. A. No. 900/PB/2004. Accordingly, he assailed the clarifications issued on behalf of the Railway Board, declaring him ineligible and prayed that he be declared eligible and the Department be directed to allow him to participate in the promotion process.
The petitioners (Department), in the reply filed by them, stated, inter alia, that the post of ASTE is not classified as Group-A or Group-B. The same could be filled by the Department by way of direct appointments through UPSC and the candidate selected, pursuant to the said process, would be in Group-A. Alternatively, the said post could also be filled from Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 4 out of Group-C staff by way of promotion and the candidate selected as a result of the said process is designated as Group-B Officer. It was asserted that a notification to fill up one post of ASTE Group-B against 70% rankers' quota was issued on 10.07.2003. And in terms of the instructions issued by the Railway Board, a candidate must have rendered three years of non- fortuitous service as JE-II in the scale of Rs.5000-8000 and above. It was maintained that respondent no. 1 was not considered eligible as he had not rendered requisite three years of service as JE-II on the date of notification i.e. 10.07.2003, since he was promoted as JE-II on 19.10.2001 and thus, he had only 01 year 08 months and 21 days' service. Further, respondent no. 1 held the post of MCM on personal basis.
Petitioner no. 5 (Shri Rattan Singh), who was arrayed as respondent in the O. A., filed a separate written statement. In short, he also disputed the claim of respondent no. 1 and maintained that his service as MCM from 09.05.1997 cannot be clubbed with his service as JE-II for the purpose of determining eligibility.
Thus, the short issue, arising for consideration of the Tribunal was whether the service rendered by respondent no. 1 as MCM could be considered and counted towards three years' required service and if yes, whether he was eligible to compete for promotion to the post of ASTE on the date of notification dated 10.07.2003.
As is discernible from the records, the Tribunal referred to the Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 5 Rules governing the post of ASTE, particularly Col. 11 of the Indian Railways, Department of Signal Engineering and Telecommunication, Group-B posts, Recruitment (First Amendment) Rules, 1982. And on an analysis of the said Rules, Para 203.1 of the Indian Railways Establishment Manual, and a Railway Board's letter dated 22.07.2004, the Tribunal observed that the non-ministerial Group-C staff in the scale of Rs.425 (now revised to Rs.5000-8000) and higher Group-C grades, who have rendered minimum three years' non-fortuitous, are eligible to sit in the test. That is all what the Rules postulate. Nowhere does the said Rules require that only the JEs are eligible to compete. Therefore, the Rules suggest that the service of three years required for a feeder cadre employee is not viz-a-viz particular post or for that matter, JE-II. Thus, respondent no. 1, who had been promoted as MCM in the scale of Rs.5000-8000, Group-C, on 24.06.1997, had rendered almost 06 years of service and was fully eligible to compete. We deem it apposite to refer to the operative part of the order rendered by the Tribunal and the same reads as thus :-
"9. We now proceed to examine the rule- position. The post of ASTE is governed by the Rules known as "Indian Railways, Department of Signal Engineering and Telecommunication, Group `B' posts, Recruitment (First Amendment) Rules, 1982", a copy of which is placed at Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 6 Annexure A-5. Column 11, which is relevant for the purpose of the case before us, provides as under :
"(a) 75% of the vacancies shall be filled by promotion through selection (which will include ordinarily a written test and also a viva-voce test) of the non- ministerial Group `C' staff of the Signal and Telecommunication Engineering Department. The selection will normally be made from :
Staff holding the posts in the grade the minimum of which is Rs.425/- in the revised scale and in higher Group `C' grades on a regular basis, provided that they have rendered a three years' non- fortuitous service and have reached stage of Rs.560.
(b) 25% of the vacancies shall be filled through a limited departmental competitive examination open to all non- ministerial Group `C' staff of the Signal Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 7 and Telecommunication Engineering Deparment holding the posts in the grade the minimum of which is Rs.425/- in the revised scale and in higher Group `C' grades and have put in a minimum of five years' non-fortuitous service in the grade." A bare perusal of the above rule-position would make it clear that the post of ASTE is a selection post, which is to be filled up by promotion on the basis of a written test and interview and all non- ministerial Group `C' staff in the scale of Rs.425/- (now revised to Rs.5000-8000) and higher Group `C' grades who have rendered minimum of 3 years non-fortuitous staff are eligible to sit in the test. It is no where provided that only JE-II are eligible to be promoted. Considered on this basis, the applicant, who had been promoted as MCM in the scale of Rs.5000- 8000 (Group `C') on 24.6.97 had rendered about 6 years' non-fortuitous service and was fully eligible to sit in the test and interview on the date of issue of Annexure R-III."Monika
2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 8
We have heard the counsel for the parties and perused the records. In our view, the instant petition is wholly bereft of merit and is thus, liable to be dismissed for the reasons as set out hitherto below.
A bare analysis of the statutory rules makes it precise and clear that the promotional vacancies are filled out of Group-C staff of the Department of Signal and Telecommunication Engineering. The Rules further required that the staff holding the posts in the grade, the minimum of which is Rs.425 in the revised scale and in the higher Group-C grades on a regular basis, who have rendered minimum of three years non-fortuitous service and have reached the stage of Rs.560, are eligible. We must clarify, at this point in time, that the corresponding scale to a pay scale, the minimum of which is Rs.425, is Rs.5000-8000. Thus, respondent no. 1, who served in the cadre of MCM and thereafter, as JE-II, which posts carry a same scale i.e. Rs.5000-8000 was indeed eligible for consideration for promotion. Needless to assert the said perception and understanding finds a complete resonance even from Para 203.1 of the Indian Railways Establishment Manual and the Railway Board's letter dated 22.07.2004, as have been duly referred to and relied upon by the Tribunal. To sum it up, suffice it would be to say that service of three years required under the Rules, is not viz-a-viz a particular post or for that matter, JE-II. In fact, what the Rules postulate is a three years' service in a grade, the minimum of which is Rs.425. Private respondent worked as MCM in the scale of Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 9 Rs.425, as revised from time to time, w.e.f. 24.06.1997, thus, he was eligible to compete for promotion to the post of ASTE. As is rightly pointed out by learned counsel for the private respondent, in fact, an opportunity was provided by the Department to all Group-C employees, who were in a particular scale to compete for selection, irrespective of their designation.
To be fair to the counsel for the petitioners, we may also notice the decisions, which he had placed reliance upon i.e. Roshan Lal and Another vs. State of Punjab and others reported as 96 (3) RSJ 785, Sushil Kumar Soni vs. The State of Punjab reported as 1994 (2) RSJ 125 and Union of India and another vs. K. N. Sivadasa and others reported as 1997 (4) RSJ 219.
In our view, none of the aforesaid decisions have any bearing on the matter in issue and thus, do not advance the case of the petitioners any further. In Roshan Lal's case (supra), the petitioners did not possess three years' requisite experience as Workshop Attendant and were thus, not found entitled to be considered for promotion. In Sushil Kumar Soni's case (supra), the principle of law, reiterated by this Court was that merely because at some stage, two posts were placed in the same scale, it could not be said by any logic that the said posts were equated. In the case of K. N. Monika 2014.05.19 17:30 I attest to the accuracy and integrity of this document High Court Chandigarh C. W. P. No. 438 of 2008 10 Sivadasa (supra), the requisite service for the purpose of eligibility was required to be in the eligible cadre. Therefore, any service, which was rendered prior to regular appointment in the cadre, could not be counted as it could not be considered as service in the eligible cadre.
We are reminded to point out, at this juncture that the Tribunal, vide an interim order dated 04.10.2004, had allowed respondent no. 1 to sit in the test with a direction that the result of selection be not declared. Since respondent no. 1 was held eligible, it was accordingly ordered that the result of his written examination be declared and further action be taken as per rules. We may note that the operation of the order rendered by the Tribunal was stayed by this Court on 14.01.2008. We are not inclined to interfere with the order passed by the Tribunal, and thus dismiss the petition, and vacate the stay order dated 14.01.2008 and consequently, direct the Department to now comply with the order passed by the Tribunal within a period of two months from today. Parties are left to bear their own costs.
( SANJAY KISHAN KAUL ) ( ARUN PALLI )
CHIEF JUSTICE JUDGE
May 16, 2014
monika
Monika
2014.05.19 17:30
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integrity of this document
High Court Chandigarh