Central Administrative Tribunal - Cuttack
Janakar Patra vs M/O Railways on 25 October, 2021
O.A. No. 66/2020 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 66 of 2020 Present: Hon'ble Mr.Swarup Kumar Mishra, Judicial Member Hon'ble Mr. T. Jacob, Administrative Member Janakar Patra aged about 59 years, S/o Late Banambar Patra, a permanent resident of At - Gadakan, PO - Manchaswar (R.S) Bhubaneswar - 17, Dist Khurda, Senior Clerk in the office of the Workshop Personnel Officer, Mancheswar, Carriage Repair Workshop, Mancheswar PO - Mancashwar, Bhubaneswar, Dist - Khurda.
......Applicant VERSUS
1. Union of India, represented through its Chairman of Railway Board, Rail Bhavan, New Delhi, India - 110001.
2. General Manager East Coast Railways, Rail Sadan, Chandrasekharpur, Bhubaneswar - 17, Khurda Odisha - 751017.
3. Chief Vigilance Officer, Office of the General Manager (Vigilance), Rail Sadan, Chandrasekharpur, Bhuabneswasr 17, Khurda Odisha 751017.
4. Chief Personnel Officer, Rail Sadan, Chandrasekharpur, Bhubaneswar - 751017.
5. Chief Workshop Manager, Macheswar Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
6. Workshop Personnel Officer, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
7. Deputy Chief Electrical Engineer, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
8. Arabinda Barik, Officer Superintendent, Personnel Brach, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
9. Manoj Kanta Barisal, Officer Superintendent, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
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10. Gouranga Charan Rout, Office Superintendent, Personal Department, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
11. Jyotshna Ray/Das. Office Superintendent Personal Branch, Carriage Repair Workshop, E. Co. Rly, Macheswar PO - Machaswar, Bhubaneswar, Dist Khurda 751017.
12. P. K. Routray, Office Superintendent under the office Chief Workshop manager, E. Co. Rly, CRW/Manchewar, Bhubaneswar
- 17, Dist Khurda 751017.
......Respondents
For the applicant : Applicant in person
For the respondents: Mr. T. Rath counsel
Heard & reserved on : 21.10.2021 Order on :25.10.2021
O R D E R
Per Mr.Swarup Kumar Mishra, J.M.
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :
i. To set aside/quash of the order dated 03.12.2001, 03.12.2001, 24.05.2007, 26.02.1993, 09.06.1993 and 27.07.1993 of M. K. Barisal, G. C. Rout & Smt Das and four others and (P. K. Routray and
13 others) that these Jr. Clerk have not been qualified in selection test and illegally given promotion/salary/increment/bonus. ii. And further, this Hon'ble Tribunal may be pleased to direct the respondents (01 to 07) to release the salary of the applicant from 1.9.2013 to 29.11.2013 and from 15.07.2015 to till date Annual increment = 1st July 2013, 1st July 2014, 1st July 2015, 1st July 2016, 1st July 2017, 1st July 2018, 1st July 2019. Bonus = 2015-2016, 2016-2017, 2017-2018, 2018-2019. iii. Medicine purchased from outside medicine store from 02.06.2016 to till date which has been submitted in the WPO/CRW/MCS office Rs. 12831+
2. The grounds taken by the applicant in the OA while praying for the above reliefs are as follows:
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a) That the applicant/petitioner most humbly brings to the notice of this Hon'ble Tribunal that it is wrongly observed in paragraph 2 of the order dated 27.11.2017 at page 7 that 'from the pleadings it is clear that the applicant belongs to electrical wing of the railway'. But it has been categorically averred in the original application that though the applicant was initially appointed under electrical wing, but subsequently he was posted at personnel branch and his wages were charged to the junior clerk post for operation in personnel branch by order dated 08.03.1991 vide A/1 of the Original Application. So the petitioner/applicant is senior to the respondent no. 5 to 8 in personnel branch.
b) That it is most pertinent to mention here that the petitioner/applicant was regularized as Junior Clerk with effect from 08.031996 as per the order dated 10.02.2012 of this Hon'ble High Court of Orissa passed in WP (C) No. 8793 of 2004 but the Junior to the petitioner namely Arabinda Barik, the respondent no. 6, got promotion to the post of senior clerk on 31.08.2002, Gournaga Charan Rout, the respondent no. 8 got promotion to the post of Senior Clerk on 31.08.2002 and Manoj Kanta Barisal, respondent no. 5 also got promotion on 31.08.2002 to the post of senior clerk. The said facts are documentary facts but the learned Tribunal held that the OA is conspicuously silent as to when the respondents no. 6 & 8 were promoted to the post of senior clerk, when the specific stand of the respondent is that the applicant's promotion was antedated to 8.3.2005.
The applicant though has not specifically stated in the prayer but the date O.A. No. 66/2020 4 of promotion of his juniors as 31.8.2002 has been stated but categorically stated that his promotion to the post of senior clerk be antedated to the date his juniors were promoted vide Annexure a/1 of the OA. He has also impleaded the juniors as respondent in the original application. So the findings of the learned central administrative tribunal needs to be rectified. The law is well settled that technicalities should not stand on the way of doing justice to a party.
c) That it is respectfully submitted that this Hon'ble Tribunal has believed the version of the respondents that the applicant was regularized as a junior clerk in electrical department with effect from 08.031996. And also there are three distinct ministerial cadres such as Mechanical, Electrical and Personnel and the applicant deliberately attempted to suppress the fact of his working in electrical department cadre to gain undue advantage of Seniority over person working in personnel branch was given promotion to personnel department. But the petitioner/applicant was given provisional promotion and posted as junior clerk in personnel department by order dated 05.08.2005 of workshop personnel officer.
d) That in paragraph 3(a) in line 3 at page 3 of the judgment, it has been observed by this Hon'ble Tribunal that the applicant was reverted to the substantive post of Khalasi w.e.f. 01.07.1986 which is not correct, rather he was promoted to the post of khalasi helper on 19.04.1990.
e) That the applicant/petitioner challenged the above said order before the Hon'ble High Court of Orissa and the Hon'ble Court was pleased to dismiss O.A. No. 66/2020 5 the same. There after the petitioner filed a review petition and the Hon'ble Court observed that if any cause of action subsists, the petitioner to approach this Hon'ble Tribunal.
f) M. K. Barisal - Khalasi (electrical branch), Khalasi 20.09.1985, Jr. Clerk (Adhoc) - 09.04.1994 DRQ, Jr. Clerk (Regular) - 30.06.2000, Jr. Clerk (regular) - 12.12.2000, Sr. Clerk (regular) - 31.08.2002, O.S (Regular) - 30.11.2006. (Not qualified on selection test against DPQ in P/Branch) It is further mention that Sri M. K. Barisal, who was serving as Khalasi (Regular) in Electrical Department has also been regularized as Jr. Clerk in Personnel Department without any selection test. This is also illegal promotion from the post of Khalasi to the post of Jr. Clerk. He has also submitted Fake/wrong sports certificate at the time of appointment as Khalasi in Electrical branch.
G. C. Rout - Khalasi - (Mechanical Branch), Khalasi - 30.05.1986, Jr. Clerk (Adhock) - 09.04.1994 DRQ, Jr. Clerk (Regular) - 30.06.2000, Jr. Clerk (Regular) 12.12.2000, Sr. Clerk (Regular) 31.08.2002, O.S. (Regular) 30.11.2006 (Not qualified on selection test against DPQ in P/Branch) Secondly Sri G. C. Rout, who was serving as Khalasi (Regular) in Mechanical Department has been regularized as Jr. Clerik in Personnel Department without any selection test. He ahs also been promoted as Sr. Clerk and office superintendent in personnel department, which is contrary to the recruitment rules - he has also submitted fake matric certificate at the time of Jr. Clerk Promotion.
O.A. No. 66/20206 Smt. J. Ray (Das) - and 4 others - Khalasi (mechanical branch), Khalasi - 13.08.1986, Jr. Clerk (Adhoc) - 07.12.1993 DRQ, Jr. Clerk (Regular) 03.12.2001 to 11.07.2005 DPQ (Not qualified on selection test against DPQ in mechanical branch), Jr. clerk (regular) - 12.07.2005, Sr. Clerk (Regular) - 24.05.2007, OS (regular) - 28.05.2013 (Not qualified on selection test against DPQ in P/branch).
Thirdly, Smt. J Ray (Das), who was Khalasi (Regular) serving as Jr. Clerk (Adhock) in Mechanical Department) has also been regularized in Personnel Department as Jr. clerk without any selection test. This also violates the recruitment policy.
These three Jr. Clerks (Sri Barisal, Sri Rout and Smt. Ray) have not been qualified in selection test. Hence these staff cannot work in the Personnel Department).
g) Hon'ble Tribunal has also pointed out these irregularities in OA no. 543 of 1998 mentioning that, their promotion to the rank of Jr. Clerk will be valid only if the qualify in selection test. But these three jr. Clerk have been illegally given promotion/salary.
h) More over for regularize of P. K. Routray and 11 others the Hon'ble Tribunal in OA No. 360/1989 dt. 29.03.1990 passed an order that/the full bench observed that mere length of service would not entitle a person to be regularized in the promotional post, what is further required is that he must be fit to occupy the promotional post, that would include passing of a selection test if it is held for selecting persons to be promoted. There is O.A. No. 66/2020 7 not clear averment either in the application or in the counter that the applicant really appeared at any selection test. In view of the decision of the Full bench of this Tribunal, we would say that the applicants, if they have not appeared at any selection test for the promotional posts must appear of such selection tests and for passing such tests, they may be afforded three chances if they cannot clear the tests in one chance 1. In the result, the application is disposed of by saying that after the applicants are afforded opportunities to pass tests as indicated above and if they should be regularized in the available posts in which they are not officiating and in case after being given three chances any of them does not qualify, he would not be regularized. After following this procedure if there be any vacancy, the railway administration would be at liberty to fill it up according to the joint procedure as laid down in Annexure R/1.
i) P. K. Routray Khalasi (Mechanical Branch) & 11 +2 others, Khalasi - 14.02.1983, Jr. Clerk (Adhoc) - 03.04.194 -Construction cadre, Jr. Clerk (regular) - 01.01.1988, Sr. Clerk (Regular), OS (Regular) (Not qualified on selection test against DPQ in Mech. Branch) That apart from it is humble submitted that P. K. Routrary and 11 others, who were continuing as Khalasi in Mechanical Department were promoted as Junior Clerk on regular basis with effect from their date of promotion on adhoc basis i.e. 01.08.88 pursuant to the examination held in the year 1993, in which no other person was allowed to take part. In such premises WPO/CRW/MCS, allowing P. K. Routray & 11+2 others to continue in the O.A. No. 66/2020 8 promotional post that too in the Mech. Deptt. Is not only illegal but also arbitrary on the part of the authority.
j) Moreover the order passed in CA Nos. 4541-42 of 1992 arising out of SLP (C) Nos. 16298-99/91 dated 21.10.1992 by the Hon'ble Apex Court, that "it has merely proceeded as though two posts of Jr. clerk are available and they should be given to respondents. Even assuming two, posts are available they cannot straight away be accommodated in those posts since there may be other eligible candidates whose rights require to be taken into consideration. "for aught one know, there may be other claimants who would be entitled to promotion their claims require to be considered. Therefore, straightaway, these respondents cannot be fitted in".
k) Though the specific observation was made by the Hon'ble Apex Court for his (Janakar Patra) promotion to the rank of Jr. Clerk, the WPO/CRW/MCS had directed to the applicant (Janakar Patra) to appear at the selection test. For which the applicant had qualified in the test against DPQ in Personnel Branch cadre and absorbed him (Janakar Patra) in the post of Jr. Clerk on 05.08.2005 in the Personnel Branch. But in other hand WPO/CRW/MCS had not seen as such and later on were favoured their promotion as such to the specific observation made by the Hon'ble Apex Court which stated above for All Railway Employees of Indian Railways.
l) Then also the Hon'ble Tribunal in OA No. 24/1993 dated 22.09.1999 passed an order that, bearing this legal position in mind and also that fact O.A. No. 66/2020 9 that the applicants officiated for more than five years as Jr. Clerk, the Hon'ble Supreme Court gave direction that the claim shall have to be considered as and when promotions are made to the post. In other words, the Hon'ble Supreme Court did not mean that promotion of the applicant to the Jr. Clerk would be automatic soon after a vacancy arises "Can the WPO/CRW/MCS allow them to continue in the promotional post that too in such premises.
m) Arabinda Barik, Khalasi 20.05.1991, Jr. Clerk 10.07.2000, Sr. Clerk - 31.08.2002, OS - 30.11.2006. Janakar Patra, Khalasi 30.08.1983, Khalasi Helper 31.08.1984, Jr. Clerk 08.03.1996. Similarly one (Arabinda Barik) who came on transfer from Chakradharpur Division of SE Railway before its bifurcation was adjusted as Junior Clerk with effect from 10.07.2000 and then he pointed out, before the Hon'ble Tribunal in OA 161/2010 dated 29.02.2012 that he is senior than M. K. Barisal & G. C. Rout in the Personnel Branch was promoted to the rank of Junior Clerk with effect from 12.12.2000, Senior Clerk w.e.f. 31.08.2002 and then also promoted to O.S. on 30.11.2006 as such Sl. No. 8 (Arabind Barik) is also junior to the applicant in the rank of Junior Clerk as well in the rank of Senior Clerk. Further promotion to the rank of office superintendent they were promoted. A chart showing the dates of promotion of the above seven respondents vis a vis the petitioner is furnishing in a tabular form and the same is filled herewith as to the present original application. O.A. No. 66/2020 10
3. The respondents in their counter inter alia averred that applicant remain unauthorized absent from duty for the period from 01.09.2013 to 29.11.2013 for which he was imposed with minor punishment for withholding of increment w.e.f. 01.07.2013 for one year with non-cumulative effect vide order dated 17.10.2012. The applicant before completion of the said punishment was once again imposed with another punishment of stoppage of increment for his negligence in duty for a period of two years with non cumulative effect from 01.07.2014 to 30.06.2016 vide order dated 11.02.2013. Thereafter the applicant was issued with major penalty charge sheet and subsequently placed under suspension w.e.f. 15.07.2015. And finally the applicant was compulsorily retired from railway vide punishment notice dated 05.04.2016. Therefore non drawal of applicant's increment from 01.07.2013 was due to imposition of punishment due to unauthorized absent from duty and since he was compulsorily retired from service w.e.f. 05.04.2016 hence he is not eligible for the salary, increment & bonus for those period he has claimed. The respondents submitted that applicant had been compulsorily retired from service w.e.f. 05.04.2016 and in order to avail the medical facilities for retired railway employees under Retired Employees Liberalized health Scheme 1997 (RELHS 1997) the applicant have to enroll himself under the same and since the applicant has not applied for the enrollment. The respondents further submitted the relief sought in this OA has already been adjudicated in OA No. 445/2013 vide order dated 31.08.2016 which has been upheld by Hon'ble High Court of Orissa with dismissal of WP (C) No. 3394 of 2018 followed by Review Petition No. O.A. No. 66/2020 11 202/2018 and also in OA No. 746/2019. The respondents submitted that the same issues were raised by the applicant in the said OAs and were already dismissed by this Tribunal.
4. We have heard the applicant in person and learned counsel for the respondents and have carefully gone through the materials on record.
5. As seen from the record it is necessary to go through the prayer of the applicant in OA No. 746/2019 for better appreciation of this case. The prayer made in OA No. 746/2019 is extracted below:
"In this original application the applicant has sought for the following reliefs:
a) To direct the respondents to antedate his promotion to the date when the respondent no. Sl. No. 8 (Arbind Barik) was promoted to the rank of Senior Clerk and Office Superintendent.
b) To direct the respondents to declare the applicant to be senior to the respondent Sl. No. 8 (Arbind Barik) in the rank of Jr. Clerk & Senior Clerk and Office Superintendent.
c) To pass appropriate orders directing the Respondents-Railways to correct the seniority position of the applicant placing him above Respondent Sl. No. 8 (Arbind Barik) and to extend all other service and consequential benefits, to which he is entitled: and
d) To quash the order dated 27.05.2013 to the extent it relates to the repatriating the applicant back to the electrical department.
e) Consequently to quash the order dated 28.05.13 in relieving the applicant from personnel department.
f) To quash annexure 17, 18, 19 the order dated 26.02.93, 09.06.13 & 27.07.93 (P. K. Routray + 13 others) O.A. No. 66/2020 12
g) To quash Annexure 20, 21, 22 the order dated 03.12.2001, 03.12.2001 & 24.05.2007 (M.K. Barisal & G.C.Rout) & Smt J. Dash & others).
h) Illegally giving promotion/salary to M. K. Barisa, G. C. Rout & Smt. J. Das/Ray & 4others & P. K. Routray & 11+2 others. Proper action may be taken.
i) These three Jr. Clerk (Sri Barisal, Sri Rout and Smt. Ray) have not been qualified in selection test. Hence these staff cannot work in the personnel department.
j) To direct the Respondnets to allow the petitioner to join and peform the duty as Sr. Clerk in the aforesaid office (WPO/CRW/MCS's office) and permitted to sign the attendance register and continue in his previous post of senior clerk in the said office.
k) To direct the respondents to pay the arrear salary/increment as well as current salary to the petitioner from 15.07.2015 to till date.
l) To direct the respondents to allow railway medical facilities as the petitioner is high blood pressure and his wife high diabetes and asthma, taking insulin 3 times a day and his daughter also high blood pressure.
m) To delete with effect from 01.01.1996 and was promoted to the post of Khalasi Helper on ad hoc basis and in place of 03.03.1981 the date 20.11.1984 may please be substituted Janakar Patra.
n) To pass such further order/orders as are deemed just and proper in the facts and circumstances of the case and allow this OA with costs.
6. A bare perusal of the prayer made above with the prayer made in current OA would reveal that prayer made at para 8.1 & 8.2 of this OA had been made at sub para vi, vii, viii, ix & xi of OA No. 746/2019. Similarly, if not exactly worded the prayer in the instant OA at para 8.3 regarding reimbursement of medical bills is somewhat similar to the prayer at sub para xii in OA No. 746/2019.
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7. The said OA No. 746/2019 was dismissed by this Bench vide order dated 13.03.2020. The relevant portion is extracted below:
"8. Heard he applicant in person and the learned counsel appearing on behalf of the respondent railways on the question of admission and perused the records. Having regard to the checkered career and genesis of the matter as mentioned above, we are of the considered view that the points which the applicant in the present OA have now urged, have already been set at rest in the previous round of litigation in OA No. 260/00445 of 2013 and as quoted above, the main relief sought by the applicant therein for direction to be issued to respondent railways to antedate his promotion at par with private respondent nos. 5 to 8 was held to be not tenable in law. This view of the Tribunal has also been upheld by the Hon'ble High Court in WP (C) No. 3394 of 2018. As it reveals, vide paragraph 8(i), the applicant has again reiterated the same prayer in the present OA. We have examined the relief(s) sought for by the applicant in the present OA vis a vis the orders of this Tribunal in OA No. 260/00445 of 2013. The prayer for quashing of the impugned orders vide Paragraphs 8 (vi) and (vii) of the present OA cannot be entertained in the year 2019, the cause of action for challenging the same being hopelessly time barred. On a thorough scrutiny and examination of the materials on record, we are of the considered view that the OA as laid by the applicant is frivolous one and hence, not justiciable, apart form the same being hit by the constructive res judi cata. Accordingly, the same is dismissed at the very threshold. No costs." (emphasis mine)
8. In the instant OA the applicant has prayed for the same relief which was already adjudicated and set at rest in OA No. 746/2019 filed by the applicant and disposed of by this Tribunal on 13.03.2020. Thus the prayer of the applicant in para 8 (i) is hit by constructive res judicata. As regards to prayer at para 8 (ii), the applicant was imposed with punishment of stoppage of increment vide order dated 17.10.2012 & 11.02.2013, suspension vide order dated 15.07.2015 and compulsorily retirement vide order dated 05.04.2016 and those being not O.A. No. 66/2020 14 challenged at any appropriate forum of law, quashed and set aside there is no question of granting any increment, salary or bonus for the said period. As regards to prayer at para 8 (iii) since the applicant was retired from service by way of punishment of compulsory retirement w.e.f. 05.04.2016 there is no way that the applicant being given reimbursement for medicine purchased after that. The applicant after being compulsorily retired had the option to enroll himself and his family under the RELHS 1997, but he himself did not do so, the respondents cannot be held responsible for it. Further the OA is hit by constructive res judicata and multiple relief being sought in one OA.
8. Accordingly, the OA is dismissed. There will be no order as to costs. Pending MAs if any are also disposed of.
(T.JACOB) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) (csk)