Central Administrative Tribunal - Delhi
Sh. Satpal Singh Yadav vs Union Of India Through The on 17 January, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2835/2012
Reserved on : 07.01.2014.
Pronounced on :17.01.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Satpal Singh Yadav,
S/o Sh. Suraj Bhan,
R/o C/o Pryga General Store,
Main Vijay nagar Road,
Vill. & PO Bawana,
Delhi-39. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through the
General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divisional Railway Manager,
Northern Railway, State Entry Road,
New Delhi.
3. The Divisional Personnel Officer,
DRMs Office, State Entry Road,
Northern Railway, New Delhi. . Respondents
(through Sh. Satpal Singh, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant of this O.A. was initially selected by the Railway Recruitment Board as Assistant Loco Pilot on 22.03.2005. After working in Ambala Division for some time he was transferred to Delhi Division, Northern Railway on 08.08.2008. In the year 2009, the Railway Recruitment Board, Chandigarh invited applications for the post of Junior Engineer-II. Since the applicant fulfilled the eligibility criteria, he also applied for the same through proper channel after obtaining the NOC from the competent authority. On 03.11.2011, on being selected in the aforesaid selection, the Railway Recruitment Board, Chandigarh forwarded his name to General Manager(P), Northern Railway for issuing the appointment to him. On 02.01.2012 the Northern Railway Headquarter allotted the Delhi Division to the applicant and the DRM Office, New Delhi issued the offer of appointment to him for the post of Junior Engineer-II. This offer was also accepted by the applicant.
1.1 Separately, while working as Assistant Loco Pilot the applicant was placed under suspension on 16.01.2010 and issued a major penalty charge sheet on 23.08.2010. The Disciplinary Authority vide his order dated 15.12.2010 passed the penalty order dismissing the applicant from service. The applicant appealed against this order but the Appellate Authority rejected his appeal. The applicant filed a revision against the order of the Appellate Authority. On 31.01.2012 the Revisional Authority after taking advice from the Railway Rates Tribunal reduced the penalty from dismissal of service to reduction in pay for three years. Consequently, he was reinstated as Assistant Loco Pilot on 07.03.2012 and has been working there ever since.
1.2 Earlier when the applicant had been dismissed from service he was informed by the DRM Office that he was not eligible for appointment as Junior Engineer-II. However, on his reinstatement he approached the competent authority to allow him to join as Junior Engineer-II. He submitted a representation on 01.05.2012 and requested the competent authority to accept his technical resignation from the post of Assistant Loco Pilot and permit him to join as Junior Engineer-II. His representation was forwarded to the General Manager for advice by the DRM office. After waiting for some time, the applicant made another representation on 19.06.2012. However, on 09.07.2012 the respondents passed the impugned order, which reads as follows:-
Sub: Slection of Sh. Satpal Singh Yadav, ALP/DLI as JE-II/ C&W, through RRB/CDG.
In connection with the above subject it is intimated that the request of Sh. Satpal Singh Yadav S/o Sh. Suraj Bhan, ALP/DSL/DLI to join as JE/C&W can be considered only after the decision of the intervening period & on completion of the punishment. Aggrieved by the same, the applicant has filed this O.A. before us.
2. In their reply, the respondents have not disputed the facts of the case. They have, however, stated that their Headquarters Office at Baroda House had advised that the request of the applicant to join as Junior Engineer-II can only be considered after decision of the intervening period by the Competent Authority on completion of the punishment.
3. We have heard both sides and have perused the material on record. The applicants counsel has argued that the applicant has been appointed afresh as a direct recruit on the post of Junior Engineer-II. He is not seeking any benefit of his past service. Hence, the decision of the respondents to appoint him as Junior Engineer-II only after he has completed the period of punishment and a decision has been taken on the intervening period is against Rules and unsustainable. In this regard, the applicants counsel has shown to us the General Conditions of service for recruitment which are laid down in Paras-217, 218 and 219 of the Railway Establishment Code. These read as follows:-
217. Recruitment of Group C and Group D staff.- The rules for the recruitment of non-gazetted railway servants are contained in the Indian Railway Establishment Manual.
218. Nationality.-(1) A candidate for appointment to Railway Services must be-
a citizen of India, or a subject of Nepal, or a subject of Bhutan, or a Tibetan refugee who came over to India before Ist January, 1962, with the intention of permanently settling in India, or a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, the East African countries of Kenya, Uganda and the United Republic of Tanzania opr from Zambia, Malawi, Zaire, Ethopia and Vietnam with the intention of permanently settling in India;
Provided that a candidate belonging to categories (b), (c), (d) and (e) above shall be person in whose favour a certificate of eligibility has been issued by Government of India.
(2) A candidate in whose case a certificate of eligibility is necessary may be admitted to the examination but the offer of appointment may be given only after the necessary eligibility certificate has been issued to him by the Government of India.
The recruitment rules may provide inter alia for-
qualifications, age and the scales of pay applicable for the various posts in the service and important conditions of service, like leave, pension, non-contributory Provident Fund benefits, etc. no male candidate who has more than one wife living or no female candidate who has married a person having already a wife living shall be eligible for appointment to a railway service, unless the competent authority exempts the candidate from the operation of this rule;
proportion of vacancies to be filled by direct recruitment and promotion of railway servants from subordinate services;
in the case of probationers, consequences of failure to pass prescribed departmental examinations, if any, e.g. loss of appointment, stoppage of increments etc. passing obligatory language examination whenever prescribed in the recruitment regulations for each service in Group A. 3.1 Learned counsel argued that none of these conditions is coming in the way of the applicants appointment as Junior Engineer-II. Learned counsel has also quoted the Master Circular No.21 Compendium on Resignation from Railway Service dealing with Acceptance of resignations tendered by Railway servants. The relevant paras are as follows:-
2. In case a Railway servant against hom an enquiry or investigation is pending (whether he has been placed under suspension or not) submits his resignation, such resignations should not normally be accepted. Where, however, the acceptance of resignation in such cases is considered necessary in the public interest, the same may be accepted with the prior approval of the authority competent to dismiss the Railway servant concerned provided one or more of the conditions laid down below are fulfilled:
(a) where the alleged offences do not involve moral turpitude:
OR
(b) where the evidence against the delinquent officer is not strong enough to justify the assumption that if the departmental proceedings were continued the officer would be removed or dismissed from service; OR
(c) where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.
3. In cases in which a Railway servant has committed an offence for which the penalty is dismissal or removal from service, his resignation should not be accepted. Thus, there is a bar on accepting resignation of those who have been awarded penalty of dismissal or removal from service or who are facing proceedings which may result in such a punishment. In the instant case, learned counsel for the applicant argued that the applicant had already been awarded punishment of reduction in pay for three years. Hence, he is not covered by any of these conditions and therefore the respondents should accept his resignation.
4. After hearing the submissions of both sides, we are convinced that as per the above quoted Rules, there is no bar in either relieving the applicant or allowing him to join him as Junior Engineer-II without waiting for completion of three years period of the penalty awarded to the applicant. We find force in his contention and therefore allow this O.A. and quash the impugned order dated 09.07.2012. We direct the respondents to appoint the applicant as Junior Engineer immediately with consequential benefits of seniority and pay fixation determined on the basis of the date on which his juniors were appointed as Junior Engineer-II. The applicant will, however, not seek any benefits of his services rendered as Assistant Loco Pilot. This exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/