Central Administrative Tribunal - Cuttack
Sri Nikunja Ranjan Guru vs East Coast Railway on 20 February, 2025
1 O.A.No. 260/00635 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00635 of 2021
Reserved on 18.02.2025 Pronounced on 20.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Nikunja Ranjan Guru, aged about 49 years, Son of
Arkhita Guru, at present working as AXEN/
Con./E.Co.Railway/Dhenkanal, Resident of Flat
No.301, Specific Royal Palace, Sailashrre Vihar,
Chandrasekharpur, Bhubaneswar-751021.
......Applicant
VERSUS
1. Union of India, represented through the General
Manager, East Coast Railway, Rail Sadan,
Chandrasekharpur, Bhubaneswar-751017, Dist.-
Khurda, Odisha.
2. Principal Chief Personnel Officer, East Coast
Railway, Rail Sadan, Chandrasekharpur,
Bhubaneswar-751017, Dist.-Khurda, Odisha.
3. Director, Establishment (GP) Railway Board, Rail
Bhawan, New Delhi-110001.
4. Mr. P.B.Manjuthhapa, AEN Group-B, South Western
Railway, At/P.O./Town/Dist.-Hubli, Karnataka-
580031.
......Respondents
For the applicant : Mr. N.R.Routray, Counsel
For the respondents : Mr. D.P.Mohapatra, Counsel
2 O.A.No. 260/00635 of 2021
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicant Sri Nikunja Ranjan Guru, AXEN /Con./ECR/Dhenkanal has filed this OA on 22.12.2021 confining his relief to the effect that the Respondents be directed to antedate his date of promotion to the post of AEN Group-B w.e.f. 13.05.2005 by quashing the order of rejection dtd. 16.12.2021 of his representation for the reasons as under:
(a) On 17.09.1997, he joined S.E.Rly. as Section Engineer (Works);
(b) On 24.03.2004, notification was issued for drawing of a panel for promotion to 21 posts of AEN Group-B against 70% quota;
(c) After holding necessary examination/test, 14 candidates were promoted to AEN Group-B vide order dated 14.10.2004 and final panel was issued by the CPO on 09.03.2006.
(d) The process of selection, in question, was the subject matter of challenge before this Bench in OA No. 167/2006 3 O.A.No. 260/00635 of 2021 (S.N.Mishra Vs. UOI & Ors) and OA No. 623/2006 (P.R.Nayak Vs UOI & Ors).
(e) This Tribunal vide order dated 26.05.2007 allowed OA No. 167/2006 filed by Sri S.N.Mishra and the said order was upheld by the Hon'ble High Court of Orissa vide order dated 29.08.2008 in W.P.(C) No. 15445/2007.
(f) OA No. 623/2006 filed by Sri P.R.Nayak was dismissed by this Tribunal on 16.03.2009, which was quashed by the Hon'ble High Court of Orissa in W.P.(C) No. 5260/2009 vide order dated 17.03.2020.
(g) On 05.02.2021, Railway Board circulated Provisional Integrated All India Seniority List of Group-B officers of Civil Engineering Department as on 01.04.2018 and 01.01.2019 for forming the panels of Group-A/Jr. Scale of IRSE for the vacancy year 2018 and 2019.
(h) On 11.06.2021, the Zonal Integrated Seniority list was prepared and published.
(i) On 17.02.2021 applicant submitted representation to the Railway Board stating that since the delay in joining AEN 4 O.A.No. 260/00635 of 2021 Group-B post was not attributable to him, all the officers in E.Co.Rly. empanelled vide memorandum dated 09.03.2004 should be kept at one place in the integrated seniority list as on 01.01.2018 and 01.01.2019 instead of scattered manner.
(j) On 26.03.2021, his representation was forwarded by the E.Co.Rly. to Railway Board.
(k) On 18.05.2021, Final Integrated All India Seniority List of Group-B officers of Civil Engineering Department as on 01.04.2018 and 01.01.2019 was published.
(l) On 12.07.2021 he submitted another representation. Since no consideration was given to his representation, he approached this Tribunal in OA No. 382/2021, which was disposed of on 22.09.2021.
(m) His representation was considered and rejected by the respondents vide letter dated 18.11.2021 without due application of mind, which, according to the applicant is liable to be quashed.
(n) By filing MA 701/2021, applicant has prayed to condone the delay in filing this OA.
5 O.A.No. 260/00635 of 2021
2. Respondents by filing their counter to the OA as well as objection to MA 701/2021 have contested the case of the applicant both on merit as also on limitation stating inter alia as under:
(i) On 18/24.03.2004, notification was issued for formation of Group-B Panel of 21 posts of AEN under 70% quota in Engineering Department for the year 2003-2005;
(ii) Written examination was held on 25.07.2004 and supplementary written examination on 01.08.2004;
(iii) Out of 63 candidates, who appeared at the written test, 23 candidates came out successful in the written test, who were to submit the medical fitness certificate to appear the viva voce test;
(iv) On Sri Somnath Mishra could not submit the medical certificate in time and another candidate Sri U.K.Moahaptra offered his unwillingness to appear at the viva voce test.
Thus, out of 23, 21 candidates, who had submitted medical fitness certificates appeared at the viva voce test conducted on 01.10.2004;
6 O.A.No. 260/00635 of 2021
(v) A provisional panel containing 14 candidates against UR vacancies was published on 14.10.2004 wherein the name of the applicant did not figure. One UR post was kept untouched for Sri T.K.Das, whose name appeared at Sl. No. 1 of the panel as disciplinary proceedings was pending against him. One post was also kept untouched for Sri Somnath Mishra, who was to face the supplementary test on production of the medical fitness certificate.
(vi) Sri Somnath Mishra submitted representation to allow him to appear at the test, which was rejected by the Railway board on 10.01.2006;
(vii) Thereafter, on 09.03.2006 final panel was published containing names of 16 UR candidates, including the names of Sri T.K.Das and the present applicant.
(viii) On 22.03.2006, applicant joined as AEN Group-B.
(ix) In the year 2021, after a gap of one and a half decade, applicant approached this Tribunal in OA No. 382/2021 seeking to antedate his date of promotion and correction of 7 O.A.No. 260/00635 of 2021 his seniority position, which was disposed of on 22.09.2021 directing consideration of his representation.
(x) His representation was considered and rejected on 16.12.2021, against which, he has filed this OA on 22.12.2021 praying to antedate his date of promotion to the post of AEN Group-B w.e.f. 13.05.2005, which is hit by the law of limitation. Accordingly, respondents have prayed for dismissal of this OA.
3. The applicant filed their rejoinder stating therein that since the rejection of his representation was on merit, the respondents are estopped under law to raise the point of limitation and in support of his stand he has placed reliance on the decision of the Hon'ble Apex court in the case of M.S.Gill & Ors Vs chief Election Commissioner, AIR 1978 SC 851. It is submitted that the date of joining of the applicant has been delayed due to undue favour shown to Sri Mishra by misusing the administrative power. Subsequently, Sri Mishra approached this Tribunal and the order passed by this Tribunal was carried to the Hon'ble High Court in W.P.(C) No. 24824/2011 and after the order of the Hon'ble High Court of Orissa dated 16.05.2022, 8 O.A.No. 260/00635 of 2021 Sri Mishra was placed in the AEN Panel below the applicant vide memorandum dated 09.01.2023. Accordingly, Ld Counsel for the applicant has submitted that the applicant is entitled to the relief claimed in the OA.
4. Respondents have also filed reply to rejoinder stating therein that the selection for 70% quota vacancy is based on seniority cum suitability only and not on merit. The selection consists of written examination followed by viva voce (record of service and interview). In all these stages, candidates are required to obtain qualifying marks after which panel is prepared as per seniority. Therefore, securing highest marks or achieving topmost merit in the interview counts for nothing. It is stated that formation of a panel for promotion means to select eligible candidates against some vacancies and post them according to administrative requirement. None can claim as a matter of right to be promoted merely because of empanelment. Hence, applicant having accepted and joined in 2006 without any demur, he cannot rise from slumber after a lapse of one and a half decade questing his posting in the All India Seniority List prepared based on the date of joining of the candidates. 9 O.A.No. 260/00635 of 2021
5. Ld. Counsel for the parties during hearing reiterated their stand taken in their pleadings noted above. After giving due consideration to the arguments advanced, we have perused the pleadings and the materials placed in support thereof.
6. Admittedly, the applicant did not raise any voice insofar as his promotion to AEN Group-B in 2006 is concerned. He, for the first time, rose from slumber by making representation on 17.02.2021 against the Integrated Seniority List of Group-B for formation of panel of Group-A/Jr. Scale of IRSE for the vacancy year 2018-19 was published by the Railway Board in 2021. The Railway Board in letter dated 18.11.2021 intimated to the applicant stating inter alia as under:
"5. It is stated that the provisional integrated seniority lists as on 01.04.2018 & 01.01.2019 have been prepared in terms of instructions contained in Railway Board's letters dated 13.05.2011, 07.01.2013 and 05.02.2019. A brief for preparation of integrated seniority lists for the purpose of formation of Group 'A' panels of organized services of Indian Railways is enclosed at Annexure-l. As per Para 1(1) of Board's letter dated 07.01.2013, the Group 'B' seniority of each Department is integrated on All India basis in the order of Group 'B' dates of the officers, without disturbing the prevailing inter-se seniority on each Railway Zone/Production Units. The integrated seniority lists have therefore been correctly prepared as per Para 1 (i) of Board's letter dated 07.01.2013. The Zonal seniority has been maintained as per the panel. The request of the applicants 10 O.A.No. 260/00635 of 2021 for forming the integrated seniority lists by placing all the officers of one panel together is not tenable. Moreover, this will be a gross violation of the existing policy and will lead to representations/grievances/courts cases from other Group 'B' officers.
6. In terms of the extant policy, the integrated seniority list has been prepared on the basis of the Group 'B' dates (le. date of assumption of the charge in Group 'B') and accordingly the Group 'B' officers of particular Zonal Railway are placed in different places and not en block while maintaining their inter se seniority on that Railway. In the process, officers with an earlier Group 'B' date find a place between them. Shri N.R.Guru (of East Coast Railway) who has been placed at S. No. 226 & 208 respectively of the integrated seniority lists as on 01.04.2018 & 01.01.2019 does not figure immediately next to Shri P.K.Ghosh (of East Coast Railway) who is at S.No. 168 &156 respectively in the integrated seniority lists as on 01.04.2018 & 01.01.2019, because in between them Group 'B' officers of the other Zonal Railways/PUs having earlier Group 'B' date than Shri N.R. Guru, have occupied a place between them. Some officers with a later Group 'B' date than that of Shri Guru are figuring above him as such officers are senior to their junior officers on their Railway having an earlier Group 'B' date, and they are therefore correctly placed as per Para 1(i) of Board's letter dated 07.01.2013 mentioned above. In such situation, the senior will obtain the Group 'B' date of the junior (on his Railway) as he could not be promoted at the material time along with his junior because of various reasons (court case, DAR/Vigilance position, etc.)
7. That the applicant has compared the preparation of Group 'B' panels of different zonal Railways, and also compared his seniority with officers figuring in those panels. In this regard it is stated that as per para 207 of Indian Railway Establishment Code, Vol.-I, appointment to Group 'B' Service by promotion of staff employed on the Railway is made by the General Manager of the concerned Zonal Railway. Selections (including LDCE) to Group 'B' are made by the Zonal Railways independently at their own level, and these are to be held once in two years (as per para 201.2 of Indian Railway Establishment Manual, Vol-1) 11 O.A.No. 260/00635 of 2021 The procedure for assessment of vacancies for Group 'B' selections by the Zonal Railways has been given in para 5 of Master Circular No.68 on Instructions governing promotion from Group 'C' to Group 'B' posts (Updated in July 2019). It would be seen therefrom that the Group "B" panels are framed by the Zonal Railways keeping in view the existing and anticipated vacancies on their Railway. As and when Group 'B' vacancies arise, officers from the Group 'B' panel are appointed to Group 'B' post. Thus officers from the same panel of a particular Railway may have different Group 'B' dates (ie the date on which they have assumed the charge of the Group "B"
post) Moreover, mere empanelment to a Group 'B' post does not confer Group 'B' status to an official Logically, an official will be categorized as Group 'B' only after joining and assuming the charge of the said post
8. In view of the foregoing, no change in the final integrated seniority lists circulated vide Railway Board's letter 18.05.2021 is called for. The applicant may be informed accordingly."
7. Further, in letter dated 16.12.2021, the applicant was intimated as under:
"It is noteworthy that inclusion of name in panel or publishing a panel does not confer any right on the person concerned for immediate promotion and posting.
It may be seen that candidates have got promoted as AEN one after another at different times in order of their seniority in the panel. This is evident from the seniority list published as on 01.04.2021 by East Coast Railway. Shri J.V.Krishna got promoted as AEN on 08.11.2004 whereas Shri P.K.Ghosh got promoted on 13.05.2005 as AEN, although both of them are borne on the same panel.
Shri P.K.Ghosh was senior to you and therefore, you cannot claim the date of promotion at par with him. Your claim would have been considered valid had Shri Ghosh been found junior to you.12 O.A.No. 260/00635 of 2021
Therefore, the date of seniority assigned to you is just and proper and no further change in the present status is called for. This letter along with Railway Board's Speaking Order dated 18.11.2021 comprising of 06 pages is being sent to you in duplicate. You are requested to please retain one copy with you for your information and record and return back the other copy superscribed as "Acknowledgement copy" to this office duly signed by you with date, as a token of receipt."
8. According to the applicant, the matter relates to antedating his promotion to AEN Group-B to 13.05.2005 at par with other similarly placed persons vide panel of the year 2004 and due to delay in promoting him to the AEN Group-B, he was made to suffer but nothing is placed on record as to what action he had taken for all these years starting from his induction to AEN Group-B till submission of representation in 2021. The applicant has filed MA No. 701/2021 taking the stand of Covid-19 for condonation of delay for the period from 15.03.2020 to 14.03.2021 but the pleadings is conspicuously silent relating to steps taken for over a period of one and a half decade. Taking into consideration the law that a settled thing should not be unsettled after a long lapse of time and the express provision under Section 21 of the AT Act, 1985, applicant's grievance relating to the year 2004-2005 is grossly barred by limitation.
13 O.A.No. 260/00635 of 2021
9. However, it is not in dispute that the applicant joined in AEN Group-B post on 22.03.2006 while the other selected persons joined the said post prior to him. It is also not in dispute that the promotion, seniority etc. upto Group-B is done/maintained in respective railway zones. The Railway Board issued the Integrated seniority list of AEN Group-B for promotion to Group-A/Jr. Scale of IRSE wherein the name of the applicant was shown in a place as per the date of joining in AEN Group-B. According to Ld Counsel for the applicant, the applicant submitted representation requesting that the names of all the promotees to AEN Group-B should be kept at one place in the integrated seniority list published as on 01.01.2018 and 01.01.2019 instead of scattered manner and the said representation was forwarded by the E.Co.Rly to the Railway Board for consideration stating inter alia that all the eight officers, namely M.Sreenivasa Rao, K.S.Satyanarayana, P.Sankaraiah, B.K.Tripathy, M.V.Ramana, K.C.Gouda, P.K.Ghosh, and N.R.Guru were empanelled for Group-B promotion vide memorandum No. DCPO(G)/Con/Gaz/Gr.B/Engg- 70%/Panel final (2003-05) dated 09.03.2004 (sic) and the zonal seniority list is being maintained as per the panel merit irrespective 14 O.A.No. 260/00635 of 2021 of their date of joining in Group-B. We find that the said representation of the applicant was duly considered and rejected by the Railway Board stating therein that in terms of the extant policy, the integrated seniority list has been prepared on the basis of the Group 'B' dates (le. date of assumption of the charge in Group 'B') and accordingly the Group 'B' officers of particular Zonal Railway are placed in different places and not en block while maintaining their inter se seniority on that Railway whereas Integrated All India Seniority list is prepared in accordance with Railway Board's letters dated 13.05.2011, 07.01.2013 and 05.02.2019 and, that, officers with an earlier Group 'B' date find a place between them. Shri N.R.Guru (of East Coast Railway) who has been placed at S. No. 226 & 208 respectively of the integrated seniority lists as on 01.04.2018 & 01.01.2019 does not figure immediately next to Shri P.K.Ghosh (of East Coast Railway) who is at S.No. 168 &156 respectively in the integrated seniority lists as on 01.04.2018 & 01.01.2019, because in between them Group 'B' officers of the other Zonal Railways/PUs having earlier Group 'B' date than Shri N.R. Guru, have occupied a place between them. Some officers with a later Group 'B' date than 15 O.A.No. 260/00635 of 2021 that of Shri Guru are figuring above him as such officers are senior to their junior officers on their Railway having an earlier Group 'B' date, and they are therefore correctly placed as per Para 1(i) of Board's letter dated 07.01.2013 mentioned above. In such situation, the senior will obtain the Group 'B' date of the junior (on his Railway) as he could not be promoted at the material time along with his junior because of various reasons (court case, DAR/Vigilance position, etc.). It is not the case of the applicant that All India Integrated Seniority List is prepared de hors any provision of Railways nor it is the case of the applicant that his request was turned down without due application of mind. In this OA, the applicant did not challenge the Railway Board's Circulars dated 13.05.2011, 07.01.2013 and 05.02.2019 mandating the manner of preparing All India Integrated Seniority List and it is a settled principle of law in the case of Railway Board vs. P.R.Subramaniam, AIR 1978 SC 284 that the Railway Board Circulars carry the statutory force of law. The decision taken by the Railway Board is a matter of policy, which also has not been challenged in this OA. Besides, any interference in the matter, would have all India adverse repercussion. The All India 16 O.A.No. 260/00635 of 2021 Integrated Seniority List has been issued strictly in accordance with the said policy decision. Hence, we are of the considered view that this OA deserves to be dismissed.
10. Another important aspect, which has been noticed is that, one of the prayers of the applicant in this OA is to direct the respondents to place him in Sl. No. 157 of the All India Integrated List, which prayer he did not press in course of hearing. Thus, going by the existing prayer of the OA, it establishes that allowing the present relief to the applicant, obviously, he will be placed above many of the persons, whose names have been placed above him in the All India Integrated Seniority list, but they have not been arraigned as parties and, therefore, in absence of the parties, who shall be affected in the matter of seniority, no relief can be granted is the law of the land vide Indu Shekhar Singh and others v. State of U.P. and others, (2006) 8 SCC 129, and Vijay Kumar Kaul and others v. Union of India and others, reported at (2012) 7 SCC 610). It establishes that the applicant has made an indirect effort to get the relief, which he is not entitled to directly and, is thus barred by law that one cannot do indirectly what one cannot do directly ["Quando aliquid prohibetur 17 O.A.No. 260/00635 of 2021 ex directo, prohibetur et per obliquum"] (Vide Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association and Ors, (2024) 1 SCC (L&S) 819).
11. In view of the detailed discussions made above, we find no merit in this OA, which is dismissed. Accordingly, MA also stands dismissed.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS