Central Administrative Tribunal - Ahmedabad
Prem Prakash vs M/O Railways on 24 September, 2020
(CAT/AHMEDABAD BENCH/OA/224/2017) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH, AHMEDABAD
Original Application No.224 of 2017
This the 24 day of September, 2020
Reserved on : 17.09.2020
Pronounced on : 24.09.2020
CORAM :
HON'BLE SHRI JAYESH V BHAIRAVIA, MEMBER (J)
HONBLE DR A K DUBEY, MEMBER (A)
Prem Prakash, (Male-35 years),
Sita Ram Park, Shyam Town,
Gulabnagar, Jamnagar-361007. ... Applicant.
By Advocate Shri O P Khurana/S.S.Chaturvedi
V/s
1 The Union of India,
Through: The General Manager,
Western Railway, Churchgate,
Mumbai - 400 020.
2 The Divisional Railway Manager(E),
Western Railway, Kothi Compound,
Rajkot - 360 001.
3 Shri Ramesh J Rathod,
Chief Loco Inspector,
C/O. Chief Crew Controller,
Western Railway, Loco Lobby,
HAPA - 361 120. ... Respondents
By Advocate Shri M J Patel
ORDER
Per Dr A K Dubey, Member (A) 1 The applicant in this OA seeks quashing of the impugned order No.EM/1025/31/2/LI dated 13.01.2015 (Annexure A/1) of the respondent no.2 in which his name was deleted from the panel of Chief Loco Pilot notified vide OM of even number dated 16.12.2014 (Annexure A/5) and instead, in the same category, another person, the third respondent (private (CAT/AHMEDABAD BENCH/OA/224/2017) 2 respondent) in this case, was included. The reliefs sought by the applicant are as under:-
"8(i) Admit and allow this Application holding the Respondents' action as to deleting his name from the panel dated 16.12.2014 (Ann. A/5) as quite arbitrary and illegal as per the impugned order dated 13.01.2015 (Ann. A/1) as quite arbitrary and illegal and be pleased to quash and set aside the same.
(ii) Hold the Promotion/ Reversion/Transfer order dated 16.01.2015 (Ann. A/6) as to promoting the Respondent No.3 at S.No.5 as CLI scale 9300-34800 + 4600 (GP) in place of the Applicant without any notice or assigning any reasons as quite arbitrary and illegal and be pleased to quash and set aside the same.
Amendment prayer (ii) And also be further pleased to set aside and quash the impugned order dated 07.09.2015 (Ann. A/8) as the facts stated under Para 4 to 6 of the letter are fabricated to bestow undue benefits on the Respondent no.3 by illegally deleting Applicant's name from the approved panel.
(iii) Direct the Respondents to hold the original panel dated 16.12.2014 (Ann. A/5) as quite valid and grant the Applicant his due promotion to the post of CLI scale 9300-34800 + 4600 (GP) as per his panel position and from the effective date of the order dated 16.01.2015 by deleting name of the Respondent no.3 from the promotion order dated 16.01.2015, and also be pleased to direct the Official Respondents to pay to the Applicant the due amount of admissible arrears of pay and allowances with interest @ 9% p.a.
(iv) Be pleased to direct the Official Respondents to promote him against the existing vacancy and if there is no existing vacancy, restrain the Respondents from holding any selection for promotion to the post of Chief Loco Inspector, scale 9300-34800 + 4600 (GP) during pendency and until final disposal of this application.
(v) Direct the respondent no.1 to hold an inquiry into the matter of deleting applicant's name from panel dated 16.12.2014 and promoting the respondent no.3 as per order dated 16.01.2015 in place of the Applicant without any notice and without assigning any reason thereto, and also fixing the responsibility, recover the amount to be paid to the Applicant from salary of the concerned official held so responsible.
(vi) Award cost of this application from the Respondents as the Hon. Tribunal may be pleased to quantify. And
(viii) May be pleased to pass any further order as deemed fit and proper in the interest of justice."
Since the impugned order was dated 16.01.2015 and the OA was filed on 26.04.2017, the applicant also filed MA No.215/2017 the same day. The said MA was allowed by this Tribunal on 03.10.2018.
(CAT/AHMEDABAD BENCH/OA/224/2017) 32 Respondents filed the reply dated 24.07.2017. Thereupon a rejoinder has been filed by the applicant on 06.10.2017. Same day the applicant preferred MA 416/2017 to carry out certain amendments in the OA which this Tribunal allowed on 22.02.2018.
3 Shri O P Khurana, learned counsel for the applicant submitted that in response to the communication vide memorandum No.EM/1025/31/2/LI dated 05.06.2014 (Annexure A/2), in which it was decided to conduct selection for the post of Chief Loco Inspector (CLI) in the scale PB-2 + 4600 (GP) for the five vacancies - 4 UR and one SC. The said memorandum made it clear that the selection would consist of a written test followed by the record verification and those Loco Pilots of goods/passenger/mail/express who were having 75000 Kms of actual driving experience could be considered eligible for appearing in the selection process. Subsequent to that, vide memorandum of even no. dated 15.07.2014 (Annexure A/3) stipulated that vide Memo dated 05.06.2014 (Annexure A/2) applications were called for and gave a list of employees who were considered eligible to take the written test as part of selection for promotion to CLI. This included applicant's name at serial no.16 (not as per seniority). The written test was held on 02.09.2014, 04.09.2014 and 15.10.2014. Vide memorandum of even no. dated 13.11.2014 (Ann. A/4) a list of eight persons was brought out who after the written test as part of the selection process, were found eligible and considered for record verification. It included the applicant's name. Subsequently, vide OM of even no. dated 16.12.2014 (Annexure A/5), the respondents published the names of the employees who were picked up for drawing up the panel of suitable employees for promotion to the post of (CAT/AHMEDABAD BENCH/OA/224/2017) 4 CLI. It included the name of applicant at serial no.5. This Memorandum (Annexure A/5) was a communication by the Selection Board to the Divisional Office, Rajkot as also it conveyed the approval of competent authority to notify the panel. Vide memorandum no.EM/839/31/2/LI Vol.I dated 16.01.2015 (Annexure A/6), the respondents finally published the panel for promotion to the post of CLI containing five names which had four names as advised in memorandum dated 16.12.2014, but the fifth name which should have been the applicant was substituted and instead the name of Shri Ramesh J Rathod who is respondent no.3 (private respondent) in this OA was put there. Before publication of memorandum dated 16.01.2015, memorandum No.EM/1025/31/2/LI dated 13.01.2015 (Annexure A/1 the impugned order) was issued in which substitution of the applicant's name by the 3rd respondent's name was approved by the competent authority and accordingly the panel was to be notified. Pursuant to this, the OM dated 16.01.2015 (Annexure A/6) was issued notifying the promotion and placement of the new selectees. 4 The counsel for the applicant further submitted that the applicant had made a representation in this regard vide his request dated 19.04.2017 (Annexure A/7), but of no avail. He submitted that since he had cleared the test and at the stage of final notification for promotion & posting only his name was substituted, the only reason that he could think was that it might have been due to wrong verification of records. Otherwise there was no justifiable reason for not including his name in the final panel for promotion to CLI. He alleged that it was deliberately done with a view to bestow undue favour on respondent no.3. The matter was also taken up (CAT/AHMEDABAD BENCH/OA/224/2017) 5 by the Trade Union with the DRM but it was of no avail. The applicant claimed that he had given many representations but had mis-placed the copies and hence unable to produce the same before Tribunal except one at Annexure A/7. The counsel for applicant also refuted the counter point of the respondents that the certificate of actual working was called for from the Lobby in Charge and applicant's name was deleted only after finding that the actual working experience was not completed. The counsel submitted that the respondents even went to the extent of issuing memorandum of charges dated 30.01.2015 (Annexure A/9), asking the applicant, to explain why he submitted wrong actual working km of driving for selection process of CLI. To this charge memo, the applicant replied on 23.02.2016 (Annexure A/10), in which he maintained that as per his own personal calculation, his actual driving experience was more than 75000 kms and that is why he had applied. The department however issued an order dated 23.09.2015 awarding "Censure" to him for this so called delinquency. The applicant is relying upon a statement compiled on the basis of salary slip showing that he has much more kms of experience than 75,000 for the period between January 2012 to June 2014. 5 The respondents have furnished the reply in which they have maintained that his actual foot plate experience of 75,000 kms was not there and hence he could not make to the panel despite having cleared the written test. In the reply, the respondents have maintained that on the basis of permitting him to appear in the application submitted by applicant showing 75000 kms of driving experience was initially the basis of written test. On the basis of record verification he was placed on the panel for (CAT/AHMEDABAD BENCH/OA/224/2017) 6 promotion to the post of CLI. However, since he has not actually completed 75000 kms of actual driving experience, his name was finally deleted vide order dated 13.01.2015 (Annexure A/1). The respondents (except respondent no.3) have maintained that on actual verification of foot plate experience of the applicant, the branch officer and the Sr. DME certified that applicant had not completed 75000 kms driving experience vide Sr. DME letter No.M 441/10/1/2 dated 01.01.2015 (Annexure R/1). The counsel also submitted that the applicant's representation was replied to vide letter No.EM/839/31/2/LI dated 07.09.2015 (Annexure R/2) and even the Western Railway Union was informed vide communication No./EM/1025/31/2/LI dated 20.01.2017 that Shri Prem Prakash LP (Goods) had not completed 75000 kms actual foot plate working experience. The reply had put on record the letter to the Principal Diesel Traction Training Centre dated 28.04.2016 relieving the applicant so as to enable him to join his new posting (Annexure R/4).
6 In response to the reply of the respondents, the applicant has filed an affidavit in rejoinder reiterating his grounds and the details. Among the grounds he has also mentioned that the name of an SC employee placed in the panel should not have been removed or replaced by another SC candidate who was initially not placed there in the panel. 7 Heard Shri O P Khurana, learned counsel for applicant and Shri M J Patel, learned counsel for respondents (except respondent no.3). The counsel for applicant reiterated his submissions made in the OA, and the MA for amendment. He stated that when the department published his (CAT/AHMEDABAD BENCH/OA/224/2017) 7 name as eligible candidate and allowed him to appear for written test as part of selection process for promotion to CLI, the issue of foot plate experience did not creep in. This is obvious from Annexure A/5 and the Annexure A/5 came after OM dated 13.11.2014 at Annexure A/4. The notified eight names were considered for record verification. The counsel further stated that the memorandum dated 16.12.2014 (Annexure A/5) clearly mentioned five names who were placed in the panel for promotion to the post of CLI. This panel clearly shows the applicant and the remarks it contained was it was against reservation. It is obvious that before that vide OM dated 13.11.2014 (Annexure A/4) the eight names were considered for record verification. Till the issue of memorandum dated 16.12.2014 at Ann. A/5, there was no occasion to doubt his experience. Then suddenly the issue of non fulfilment of 75000 kms of foot plate experience crept in. On this ground his name was removed and replaced by respondent no.3. The counsel submitted that in addition he was even served with charge memo for wrong declaration and was awarded "Censure", and all the while he had experience of more than 75000 kms of driving.
8 The counsel for the respondents 1 & 2 submitted that till the stage when names for the panel for promotion were suggested, papers were processed on the basis of information given by the applicants. The point maintained by the applicant that he did have the requisite experience as per his own calculation. The counsel for the respondents said that a reading of the very communication dated 05.06.2014 (Annexure A/2) which invited application for the promotion to CLI makes it clear that employees (CAT/AHMEDABAD BENCH/OA/224/2017) 8 who were fulfilling the eligibility condition and desirous to appear in the selection process could submit their application in the prescribed proforma to their supervisor. This communication clearly mentions that employees working as Loco Pilots of goods/passenger/mail/express having 75000 Kms of actual driving experience would be considered eligible for appearing in the selection process. The counsel further submitted that since the official record did not support his claim, respondents had no other option but to substitute his name It was only at the final stage that upon verification/cross checking, it came up that he did not have the requisite foot plate experience. The respondents underwent the entire process of obtaining the approval of competent authority to replace him by another SC candidate who had the requisite foot plate experience and who had cleared the written test also as is clear from the memorandum dated 13.11.2014 (Annexure A/4). That he submitted wrongly that he had requisite actual driving experience had to be examined and proceeded against since it was a false statement in a matter for examination for the higher post and that is why the charge memo was issued and proceeded with.
9 From the foregoing discussions and the submission of the counsel for the applicant as well as the respondents 1 & 2, it is very clear that there was a notification inviting application to take the written test and those who fulfilled the criteria could apply for it. The department went ahead and brought out a list of the persons who were considered eligible to take the written test (Annexure A/3). The applicant appeared in and cleared the written test and figured in the list of 8 candidates who were found eligible and considered for the record verification. This list dated 13.11.2014 (CAT/AHMEDABAD BENCH/OA/224/2017) 9 (Annexure A/4) included the name of third respondent also. The Selection Board made recommendation with five names against the five vacancies out of the eight names of the list dated 13.11.2014 and sent it to the Divisional Office for drawing of a panel of employees for promotion to the post of CLI, vide memo dated 16.12.2014 (Annexure A/5). We are therefore able to appreciate that till the issuance of communication dated 16.12.2014 (Ann. A/5), these were all as per recommendation. Then the communication dated 13.01.2015 in which the issue of substitution of the applicant with the third respondent was approved (Annexure A/1) and accordingly, the memorandum dated 16.01.2015 (Annexure A/6) did not show the name of applicant and instead of him, the name of third respondent appeared there. Even this order was subject to the condition that there is no major DAR/B&C/SPE/Vig. cases pending against them or any penalty of withholding of promotion, increment etc was pending and the same was left to be verified by the superior concerned before implementation of the promotion order. It is again interesting that the case was not taken up by the applicant immediately after publication of the order dated 16.01.2015. The applicant chose to sleep over it for more than two years and made a representation only on 19.04.2017.
10 After going through the records before us and the papers presented and hearing the arguments of counsel for both parties, it is very clear that the entire episode of deletion of applicant's name from the panel for promotion to CLI hinges on his eligibility of having completed 75000 kms of actual driving experience. The applicant has his own interpretation and basis of calculating his actual driving experience. However, in this matter (CAT/AHMEDABAD BENCH/OA/224/2017) 10 upon verification the same was contested and the records of the respondents show that he had less than the prescribed km of actual driving experience. We are also able to appreciate that by way of response to the disciplinary proceeding, the applicant had maintained that he had completed the requisite km experience. Subsequently, the proceedings were concluded and he was awarded "Censure" by the competent authority. Since it is a matter where requisite experience is necessary, which was duly made clear and published to those who were slated to take the written test, we also appreciate that and it is only the department which may have the authentic, admissible and reliable records of such experience and if the department has categorically said that the person does not have the requisite experience, we are unable to find any bias or discrimination by the respondents in this entire episode.
11 Under these circumstances, and keeping the factual matrix and revelations by documents and records produced before us, we see that the applicant has not been able to establish that the selection process suffered from any irregularity or discrimination or bias. On the other hand, documents and records clearly establish that every step of the employer was pursuant to the extant instructions. Thus we are constrained to arrive at the conclusion that the applicant's case lacks merit. Accordingly, we dismiss the OA. No costs.
(Dr A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) abp (CAT/AHMEDABAD BENCH/OA/224/2017) 11