Central Administrative Tribunal - Jaipur
Central Administrative Tribunal vs Uoi & Ors.) on 24 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ,,,,,,,,,,,,,,,ORDERS OF THE BENCH Date of Order: 24.05.2017 OA No. 291/00123/2017 with MA No. 291/00163/2017 Mr. Pushpendra Singh Tanwar, proxy counsel for Mr. R.P. Tiwari, counsel for applicants.
Mr. Anupam Agarwal, counsel for respondent nos. 1 to 4.
Mr. C.B. Sharma, counsel for respondent no. 5.
Mr. C.B. Sharma, proxy counsel for Mr. Mukesh Agarwal, counsel for respondent nos. 6 to 9.
It is a D.B. matter. D.B. is not formed today.
2. Counsel for private respondents submits that because of interim relief granted on 10.03.2017 and since continued, the respondent nos. 5 to 9 are not getting promotions to the post of Mail Express Guard and, therefore, prays for vacation of I.R. He further submits that M.A. No. 291/00163/2017 has also been filed on behalf of respondent no. 5 for vacation of interim relief dated 10.03.2017.
3. Heard. In this context, counsel for private respondents while referring to the order of the Tribunal dated 08.05.2015 in OA No. 03/2011 (Man Mohan Usparia vs. UOI & Ors.), in which applicant no. 1 and applicant no. 4 in this OA (Sh. M.H. Farooqi and Shri Karim Baksh Gauri, respectively) were also two out of the three applicants in that OA, and specifically referred to para 13 and 16 of the order, which read as under: -
13. With regard to the submissions of the learned counsel for the applicants that the Railway Administration should have carried out the exercise as directed by the Honble Supreme Court in the case of M. Nagaraj and Others vs. Union of India and Others (supra) before making any promotion for reservation to S.C. employees and since they have not carried out such an exercise, therefore, the selection of 10 SC category candidates should be quashed and set aside, we are not convinced with the submissions of the learned counsel for the applicants under the facts and circumstances of the present OA. It is not disputed that 10 candidates of Scheduled Castes category have been selected on the post of Senior Goods Guard but the applicants have not made them party-respondents. Learned counsel for the applicants has made only Shri Ram Prakash B one of the candidates as party-respondent in the representative capacity. In our opinion, ten is not such a larger number that the applicants could not have made all of them as party respondents especially when they are all employees of the Railways and are working with the same Railways as the applicants. Therefore, in our opinion no adverse orders can be passed against the 10 Scheduled Castes selected candidates behind their back without giving them a chance of hearing. According to us, it will be against the principle of natural justice.
16. Thus, on the basis of the above discussions, we direct the respondents to calculate the vacancies of the Senior Goods Guard on the basis of the cadre strength of 122 of Senior Goods Guards rather than 110 posts of Senior Goods Guard and accordingly revise the list of Senior Goods Guard issued vide order dated 28.10.2010 (Annexure A/1) and order dated 25.10.2010 (Annexure A/2). Those employees who would be promoted to the post of Senior Goods Guard on the basis of this exercise, would be entitled to all consequential benefits. The respondents are directed to carry out this exercise within a period of three months from the date of receipt of a copy of this order.
4. Counsel for respondents clarified that the 05 private respondents in this OA (respondent nos. 5 to 9) were amongst the 10 candidates of Scheduled Castes category as referred in para 13 of the aforesaid order, and as no orders have been passed against them in the aforesaid order dated 08.05.2015 in OA No. 03/2011 and as they have already been promoted as Senior Passenger Guards but their promotions to the post of Mail Express Guards have been withheld and are not being made because of I.R. He further submits that the applicants never earlier challenged the orders dated 20.11.2015 (Annexure A/2) vide which the private respondents were promoted as Senior Passenger Guards and on these grounds prayed for the vacation of I.R.
5. Counsel for official respondents, in this context, submits that promotions in the Railways are made from Goods Guard to Senior Goods Guard and thereafter to Senior Passenger Guard followed by Mail Express Guard. With reference to the directions of the Tribunal in para 16, vide order dated 08.05.2015 in OA No. 03/2011 (quoted above), he explained that the list of Senior Goods Guard issued vide order dated 28.10.2010 and order dated 25.10.2010 has been revised vide order dated 18.12.2015 (Annexure A/6) in which the names of 11 persons have been added in the select list dated 25.10.2010 as at Sl. No. 40A to 40K and includes the name of the six applicants in this OA, i.e. M.H. Farooqi at Sl. No. 40G, Govind Ram Gupta at Sl. No. 40B, Babu Lal at Sl. No. 40C, Karim Baksh Gauri at Sl. No. 40D, Rajesh Sharma 40F and Surendra Singh at Sl. No. 40H and therefore they have also been promoted as Senior Goods Guard w.e.f. 28.10.2010 (except one Shri Babu Lal w.e.f. 01.01.2011) vide Annexure A/7 order dated 21.12.2015. However, prior to issue of this order dated 18.12.2015 (Annexure A/6) and order dated 21.12.2015 (Annexure A/7), Annexure A/2 select list dated 20.11.2015 (page 32 to 34 of the OA) for promotion from Senior Goods Guard to Senior Passenger Guard was issued by the respondents in which the names of private respondent nos. 5 to 9 are included i.e. Virendra Kumar Kholi figures at Sl. No. 82, Chote Lal Bijoria at Sl. No. 79, Dhan Singh at Sl. No. 81, Vijendra Singh at Sl. No. 83 and Balraj Bairwa at Sl. No. 84. Thereafter, promotion and posting list for Senior Passenger Guard was issued vide Annexure A/2 order dated 20.11.2015 (at page 35 to 38 of the OA) wherein the names of 04 private respondents figure at Sl. No. 77 to 80 and one of the respondents Shri C.L. Bijoria has not been promoted at that time due to a penalty being in force. He further submits that as the private respondents have already been promoted and made Senior Passenger Guard, therefore, they are eligible for promotion to the next promotional post of Mail Express Guard as per order dated 06.02.2017 (Annexure A/1) wherein their names figure at Sl. No. 76 to 80, and the applicants who are still working as Senior Goods Guard and have not been promoted as Senior Passenger Guard as yet, have no just and valid basis for being promoted as Mail Express Guard. Counsel for official respondents also submits that select list as at Annexure A/1 order dated 06.02.2017 has already been made subject to the SLP No. 4831/12 and Petition No. 314/16 pending in the Honble Apex Court in this regard.
6. Counsel for applicants, on the other hand, opposing the prayer for vacation of interim relief, referred to arguments advanced on 10.03.2017 when the I.R. was granted, and submits that the applicants had duly earned their revised seniority and selection to the post of Senior Goods Guard and their names find place in the select list at 40B to 40H (in the list revised from 40A to 40K) in order dated 18.12.2015 (Annexure A/6) and they have been promoted to Senior Goods Guards w.e.f. 28.10.2010 as per order dated 21.12.2015 (Annexure A/7). However, before issuing these orders, the official respondents issued the selection and promotion list of Senior Passenger Guards on 20.11.2015 (Annexure A/2) and though in view of the revised seniority and selection and appointment of the applicants to the post of Senior Goods Guard as at Annexure A/6 and Annexure A/7, an amendment was required to be made in the select list and promotion to Senior Passenger Guard (Annexure A/2), but no such revision was made. Now even further the select list for Mail Express Guard has been issued as at Annexure A/1 dated 06.02.2017 wherein the names of applicants do not figure and the applicants are being deprived without reason for their promotion to the post of Senior Passenger Guard and thereafter to Mail Express Guard, while the juniors are getting the benefits.
7. In this context, counsel for official respondents explained that the applicants have not yet been made Senior Passenger Guard and no objections were raised at that time when Annexure A/2 orders dated 20.11.2015 were issued and belatedly only the orders are being challenged, which in any case are subject to various pending Court cases and Annexure A/1 dated 06.02.2017, which is the select list for Express Mail Guard has also made subject to SLP No. 4831/12 and Petition No. 314/16 pending in the Honble Apex Court. He further submits that promotions are made on the basis of roster points reserved for various categories.
8. Considered the aforesaid contentions and perused the record. It is seen that O.A. No. 03/2011 was filed by one Shri Man Mohan Usparia in which Shri Karim Bux and M.H. Farooq were also applicant nos. 2 and 3 in that OA and both are now also applicant no. 1 and 4, respectively, in the present O.A. along with 04 other applicants. The matter in O.A. No. 03/2011 was related to seniority and promotion from the post of Goods Guard to Senior Goods Guard, in which vide order dated 08.05.2015, the following directions were given by the Tribunal:
16. Thus, on the basis of the above discussions, we direct the respondents to calculate the vacancies of the Senior Goods Guard on the basis of the cadre strength of 122 of Senior Goods Guards rather than 110 posts of Senior Goods Guard and accordingly revise the list of Senior Goods Guard issued vide order dated 28.10.2010 (Annexure A/1) and order dated 25.10.2010 (Annexure A/2). Those employees who would be promoted to the post of Senior Goods Guard on the basis of this exercise, would be entitled to all consequential benefits. The respondents are directed to carry out this exercise within a period of three months from the date of receipt of a copy of this order.
9. In this regard, it is noted that as per the aforesaid directions, the exercise to revise the list of Senior Goods Guard was carried out by the official respondents, though not exactly within 03 months, and the order issued as at Annexure A/6 dated 18.12.2015 shows that certain additions/revisions were made to the select list for Senior Goods Guard from Sl. No. 40A to 40K for 11 persons which includes the name of M.H. Farooqi at Sl. No. 40G and Karim Baksh Gauri at Sl. No. 40D, (who were also the applicants in O.A. No. 03/2011) and the names of other 04 applicants in the present OA are at Sl. No. 40B (Govind Ram Gupta), 40C (Babu Lal), 40F (Rajesh Sharma), 40H (Surendra Singh). Thereafter vide order dated 21.12.2015 (Annexure A/7) the persons were promoted to the post of Senior Goods Guard w.e.f. 28.10.2010, except applicant Shri Babu Lal who has been promoted w.e.f. 01.01.2011 in view of a penalty being in force, and posted at respective places. However, it is also noted that before carrying out the exercise, as per the directions of the Tribunal and issuing orders dated 18.12.2015 (Annexure A/6) and dated 21.12.2015 (Annexure A/7), two orders both dated 20.11.2015 (Annexure A/2) were issued in which in the first order (page 32 to 34 of the OA) 85 persons were placed on the select list for Senior Passenger Guard against 104 vacant post of Senior Passenger Guard (of which, 73 were for General, 12 for ST, 19 for SC), and thereafter vide the second order (page 35 to 37 of the OA) 81 persons were promoted to the post of Senior Passenger Guard. The names of the 04 out of the 05 private respondents figure at Sl. No. 77 to 80 in the promotion list and the promotion of Shri C.L. Bijoria has been withheld on account of penalty being in force. In this regard, it was queried from counsel for official respondents that as to why after issue of the revised select list of Senior Goods Guard on 18.12.2015 (Annexure A/6) and promotion list of 21.12.2015 (Annexure A/7) w.e.f. 28.10.2010 / 01.01.2011 no consequential amendments were made in the select list of Senior Passenger Guard dated 20.11.2015, and why the names of the applicants did not find place in the select list of Senior Passenger Guard (as they were given the status of Senior Goods Guard with retrospective effect from 28.10.2010 and in 01 case from 01.01.2011. It was also queried whether the persons in the select list for Senior Passenger Guard (Annexure A/2 dated 20.11.2015) were all senior to the applicants, in view of the applicants names being added between serial no. 40A to 40K in the select list of Senior Goods Guards and their subsequent promotions with retrospective effect. Counsel for official respondents submits that, at this stage, he can only say that whether such a revised list was issued, is required to be verified. Counsel for official respondents also submits that the promotions are based on seniority and reservation points in the roster.
It is also noted that in earlier OA No. 03/2011 (decided on 08.05.2015 Annexure A/5) directions were given in para 16 of the order to revise the list of the Senior Goods Guard, but at the same time in para no. 13, it was observed that no adverse orders can be passed against the 10 Scheduled Castes selected candidates behind their back without giving them a chance of hearing and as averred by the counsel for private respondents, the present 05 private respondents are out of those 10 candidates referred in that order.
10. Thus, taking into account the above position and facts and circumstances of the case, it appears appropriate to modify the Interim Relief to the extent that the official respondents can consider promotion of private respondent nos. 5 to 9 to the post of Mail Express Guard subject to the following observations and conditions: -
(i). Whether the applicants who have been placed in the revised select list of Senior Goods Guard vide order dated 18.12.2015 (Annexure A/6) and promoted as such from 28.10.2010 / 01.01.2011 vide order dated 21.12.2015 (Annexure A/7) have been given the consequential benefits as per order of this Tribunal dated 08.05.2015 in OA No. 03/2011 that those employees who would be promoted to the post of Senior Goods Guard on the basis of this exercise, would be entitled to all consequential benefits. And
(ii). What would be the effect of reservation on promotions to the post of Senior Passenger Guard and Mail Express Guard.
11. In case the private respondent nos. 5 to 9 are not adversely affected by any of these above factors, then they may be considered for promotion to the post of Mail Express Guard. It is also made clear that the promotions, if any, given to the private respondents would be subject to any further directions in this regard and necessarily to the final outcome of the O.A. The Misc. Application stands disposed of accordingly. A copy of this order be given to the counsels for the parties.
List on 19.07.2017.
(MS. MEENAKSHI HOOJA) ADMINISTRATIVE MEMBER Kumawat