Central Administrative Tribunal - Allahabad
Sharad Yadav vs Union Of India on 10 July, 2019
Reserved
(On 28.05.2019)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Dated: This the 10th day of July 2019
Original Application No. 330/01413 of 2016
Hon'ble Ms. Ajanta Dayalan, Member - A
Hon'ble Mr. Rakesh Sagar Jain, Member - J
1. Sharad Yadav, S/o Sri Jagdish Yadav
2. Jitendra Kumar Kushwaha, S/o Maan Singh Kushwaha
3. Mahesh Sahu, S/o Nand Lal Sahu
4. Deepak Raikwar, S/o Makku Lal Raikwar
5. Renu Devi, D/o Sohan Lal
6. Manju Lata Sahu, D/o Raghuveer Prasad Sahu
7. Dinesh Kumar, S/so Harivansh Kumar
8. Balram Meena, S/o Kishan Lal Meena
9. Rajesh Kumar Meena, S/o RamJi Lal Meena
10. Khen Singh, S/o Mohan Singh
11. Dharmendra Kumar, S/o Ramesh Chandra
12. Suresh Chand Meena, Ss/o sDhani Ram Meena
13. Abhishaik Kumar, S/o Indra Dev Prasad
14. Shailendra Kumar Shahni, S/o Rameshwar
15. Giriraj Prasad Meena, S/o Badan Lal Meena
All applicants are posted Head Bearer in Railway Catering
Commercial Department, Jhansi under the respondent Sr. D.C.M.
/ S.M. Jhansi
. . .Applicants
By Adv: Shri S.M. Ali
VERSUS
1. Union of India through General Manager, Head quarter, North
Central Railway, Allahabad.
2. Divisional Railway Manager (P), North Central Railway, Jhansi.
3. Senior Divisional Personnel Officer, North Central Railway,
Jhansi.
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4. Senior Divisional Commercial Manager, North Central Railway,
Jhansi.
5. Station Manager, North Central Railway, Jhansi.
. . . Respondents
By Adv: Shri Amit Kumar Rai
ORDER
By Hon'ble Ms. Ajanta Dayalan, Member - A The present OA has been filed by the applicants - Sharad Yadav and 14 others seeking quashing of impugned order dated 19.10.2016 (Annexure A-1) declaring applicants as not eligible for appearing in the examination for the post of Ticket Examiner against departmental quota for Commercial department. They have also sought appointment to the post of Ticket Examiner with all consequential benefits. As interim relief, the applicants had also sought for appearing in the written examination scheduled to be held on 20.11.2016.
2. The learned counsel for the applicants stated that all the applicants have been recruited to the post of Head Bearer / Head Waiter under Commercial Department in 2012 as per appointment orders issued in September - October 2012 (Annexure A-3). The applicants were also issued Identity Cards by the respondent which also show that they are under Commercial Department (Annexure A-4). They have also been allotted PF numbers. They are receiving salaries and the pay slips show (Annexure A-5) their department as Commercial. The learned counsel for the applicants pleaded that all the applicants are working under Railway Catering under Commercial Department.
3. The learned counsel for the applicants further stated that the respondents department issued notification for promotion to the post of Ticket Examiner against 16.67% departmental quota for Commercial / Operating Department. Promotions were to be on selection basis. However, Divisional Railway Manager, Jhansi vide impugned letter dated 3 19.10.2016 (Annexure A-1) has declared all the applicants as not eligible with the remark "Due to not working in Commercial / Operating Department".
4. The written test for the said post was to be held on 20.11.2016. Applicants made a joint representation dated 21.10.2016 (Annexure A-7). This Tribunal vide its order dated 11.11.2016 permitted the applicants to appear in the written test held on 20.11.2016, but their results were to be declared subject to final outcome of the OA.
5. The case of the applicants is that the applicants are working in Commercial Department, as it is clear from their appointment letters, Identity Card issued as well as the pay slips issued to them. Hence, it is not correct to deny them from appearing in the examination for Ticket Examiner's post against the quota of 16.67% for Commercial / Operating Department. They have argued that they are all working in Railway Catering, which is under Commercial Department and hence, are eligible for consideration for promotion under departmental quota for Commercial / Operating Department.
6. The respondents have contested the case of the applicants and have stated that the selection of Ticket Examiner against 16.67% departmental (LDCE) quota was notified for 39 vacancies (and not 139 as mentioned in para 4 of the counter reply) on 01.01.2016 (Annexure CR-1). Further, as per Railway Board's guidelines of the selection i.e. IREM para 127 and 189 (Annexure CR-2) and their letter dated 16.02.2012, only commercial staff and operating staff who are working in Grade Pay of Rs. 1800/- are eligible to apply for the said post. Catering staff are not eligible as they have a separate avenue of channel defined for catering staff. The representation dated 21.10.2016 was received 4 from the applicants on 24.10.2016. The applicants have been informed vide letter dated 09.11.2016 (Annexure CR-3) quoting paragraph 189 of IREM. The respondents have further stated that as per interim order dated 11.11.2016 of this Tribunal, the applicants have been called for appearing in the written test held on 15.01.2017 vide their office letter dated 21.11.2016 (Annexure CR-4). The respondents have stated that Catering staff is different and is an independent unit. They have separate cadre, but with same controlling officer. They have reiterated that paragraph 189 of IREM is clear and as per this paragraph Catering staff is not eligible for selection to the post of Ticket Examiner as they have separate avenue of promotion defined for Catering staff. They have also stated that Catering cadre is not included in Commercial Dpartment as per Railway Board's defined procedure for promotion / selection vide letter dated 03.09.2009 (Annexure CR-5). Accordingly, the respondents have concluded that the applicants are not entitled for consideration for promotion for the post of Ticket Examiner under the departmental quota of Commercial Department. The OA, therefore, lacks merit and deserves to be dismissed.
7. We have heard leaned counsels for both the parties and have also gone through the pleadings in this case. We have also given our thoughtful consideration.
8. We find that the notification for examination for the post of Ticket Examiner (Annexure CR-1) itself refers to paragraph 128 -189 and para 189 (ii) of IREM in particular in its lead paragraph itself and states that in accordance with these paragraphs and Headquarters letter dated 16.02.2012, employees qualifying for the eligibility conditions are invited to apply. Further, the notification states that only Operating / Commercial Department's Class IV employees with grade pay Rs. 1800/- were eligible for the said examination. Further, para 127 of IREM, annexed as Annexure CR-2, reads as under:-
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"127. (1) The posts in the category of Ticket Collectors in the pay scale Rs. 3050-4590 will be filled as under
(i) 50% by direct recruitment through Railway Recruitment Board;
(ii) 33-⅓% by promotion by a process of selection from eligible Group 'D' categories of staff as specified by the Zonal Railways as per procedure prescribed in para 189; and
(iii) 16-⅔%by promotion entirely on merit of Matriculate Group 'D' employees from eligible categories, as specified by the Zonal Railways for (ii) above, with a minimum of 2 years regular service in the concerned seniority unit on the basis of a competitive examination consisting of Written Test and Record of Service of 85 and 15 marks respectively."
9. Further, we find that paragraph 189 of IREM states as follows:-
189. Promotion to higher grades in Group 'C':- Railway servants in Group 'D' categories for whom no regular avenue of promotion exists 331/3% of the posts in the lowest grade of Commercial Clerks, Ticket Collectors, Trains Clerks, Office Clerks, Stores Clerks, etc. should be earmarked for promotion. The quota for promotion of Group 'D' staff in the Accounts Deptts. to Group 'C' post of Accounts Clerks will be 25%. Promotion to Group 'C' will be subject to the following conditions: -
(i) All promotions should be made on the basis of selection. There should be written tests to assess the educational attainments of candidates. Group 'C' categories referred to above should be suitably linked with specified categories in the lower grades on broad affinity of work to form groups for promotion but it should be ensured that the prospects are made equal in the different groups.
The test should be correlated to the standards of proficiency that can reasonably be expected from railway servants who are generally non- matriculates. The aim of the examiners should be to assess the general suitability of the Group 'D' railway servants offering themselves for promotion to Group 'C' posts from the point of view of their knowledge of English and their general standard of intelligence. The factors of selection and their relative weight will be as indicated below:-
Factors/ Maximum Marks Heading s
(a) Written 85 Test
(b) Record 15 of Service Total 100 Note: 1. Written test should consist of one paper of 3 hours duration divided into two parts - Part 'A' to test the working knowledge of the Railway servant of the English language and Part 'B' his general standard of intelligence and proficiency through questions in Arithmetic, General Knowledge mainly pertaining to Railway matters and matters immediately pertaining to the work he has been acquainted with during his Railway service. In drawing up the questions it must be ensured that they are not set as such a standard as to make it impracticable for a Group 'D' railway servant of average intelligence and normal standards of efficiency to qualify in the test.
(2) Assessment under the heading Record of Service will be based on entries in the Service Book/personal file regarding academic/ technical qualifications, awards/ punishments, etc. 6 (3) Selections should not be restricted to three times the number of posts to be filled but kept open to all eligible candidates who would like to be considered for such selections.
(4) All those who qualify on the basis of written test and Record of Service, the qualifying percentage of marks being prescribed by the General Manager, should be included in the panel in the order of their seniority for promotion against the yearly vacancies available for them in Group 'C' categories.
(ii) Group 'D' railway servants to be eligible for promotion to Group 'C' posts should have put in a minimum 3 years of continuous service. This does not apply to Scheduled Castes and Scheduled Tribes candidates.
(iii) For promotions to Group 'C' posts in the Ministerial cadre, Group 'D' staff will be required to possess a typing speed of 30 w.p.m. in English or 25 w.p.m. in Hindi. Promotions may, however, be allowed on provisional basis and the concerned staff given two year's time from the date of promotion, to qualify the prescribed typewriting test; and if they fail to qualify the typewriting test within the said period, they will be liable to be reverted.
(iv) Training:
(a) The standard of training imparted to the Group 'D' railway servants selected for Group 'C' posts should be the same as for direct recruits for the same Group 'C' categories and in the case of failures in the first attempt such employees may be given second - chance to qualify.
(b)Group 'D' railway servants when promoted to Group 'C' posts in the Accounts Deptt. shall go through the same training and test and shall be subject to the same conditions of service as are in force for the new recruits.
During the period of their training they would get as stipend the pay that they would have normally drawn on promotion to Group 'C'. All allowances like Dearness, Compensatory and House Rent Allowances will be allowed to them at the scales applicable, had the stipend been treated as pay. Note: Employees in lower Group 'C' scale of Rs. 825-1200(RPS)/ 2750-4400 (RSRP) and Rs. 950-1400(RPS)/ 3050-4590 (RSRP) for whom no regular avenue of promotion exists will also be eligible to appear in the selection held for promotion of Group 'D' employees to Group 'C' against the prescribed quota.
189-A Promotions of Persons with Disability: - There shall be no discrimination in the matter of promotion merely on ground of physical disability. This will apply to the categories of staff who have been recruited from the open market against the vacancies reserved for recruitment of physically handicapped and the staff who acquire disability during service and are absorbed in suitable alternative employment as per provisions contained in Chapter-XIII. Such staff will be considered for promotion in their turn based on their eligibility and suitability along with others in the selection/suitability/trade test, for promotion to higher grade post.
10. We, therefore, find that the notification for the said post clearly refers to para 128 to 189 and Para 189 (ii) of IREM in particular in the lead sentence itself. Further, we find that para 127 of IREM while fixing quota of 16-2/3% by promotion clearly states that this will be from matriculate Group 'D' from eligible categories. In addition, para 189 of IREM clearly states that Railway servants in Group 'D' category for whom no regular avenue of promotion exists, 33-1/3% of the post in the lowest 7 grade of Commercial Clerk, Ticket Collector etc should be earmarked for promotion. We, therefore, find that it is clear that quota for Ticket Collector's post is only in respect of Group 'D' employees for whom no regular avenue of promotion exists. In case of Catering department, the respondents' department has clearly stated that they have separate avenue of promotion. This has not been denied even by the applicants. Actually, in their rejoinder affidavit the applicants have themselves admitted this. That the posts were advertised under Commercial Department, appointment letters were issued by Commercial department and salary is being drawn from Commercial Department is only because the Catering service is a unit attached with Commercial Department for the purpose of drawl of salary etc. They have been attached under overall supervision of same controlling officer i.e. Sr. DCM, Jhansi. However, they are a separate category distinct from regular Commercial department and have separate channel of promotion earmarked for them. Hence, they are not entitled for promotion against quota reserved for those erstwhile Group 'D' categories for which no regular avenue for promotion exists.
11. The argument put forth by the applicants in their rejoinder affidavit as well as during the arguments at Bar that similar benefit has been granted in Allahabad Division is not acceptable. Firstly, Allahabad Division is not a respondent in the present OA. More importantly, even if this benefit is extended in Allahabad Division, that cannot be made as a ground for giving this benefit in Jhansi Division. This is because of the clear position of rules and procedures and instructions of the railways quoted in the preceding paragraphs. As is clear therefrom, quota of 16- 2/3% by promotion to the post of Ticket Examiner exists only for those categories of Group 'D' employees for whom no regular avenue for promotion exists. In case of catering department, it is an admitted fact 8 that separate avenue of promotion exists. This is not denied even by the applicants. As such, there is no case for catering department staff to be considered for promotion against quota reserved for eligible categories - i.e. categories where no avenue of promotion exists. Hence, grant of similar benefit in case of Allahabad Division cannot be taken as a ground. It is settled principle of law held by the Apex Court that a mistake cannot be quoted as a ground for relief to others who are similarly situated.
12. We also do not find other grounds taken in the rejoinder affidavit whereby number of OMs and instructions have been enclosed, to be justified. These instructions are not directly relevant in the present case as they only change some other eligibility criteria for promotion from Group 'D' cadre. These, however, do not change the basic condition that promotion quota for Group 'D' cadre will be for eligible categories where no regular avenue for promotion exists. The change in other conditions such as number of years of service, condition of completion of probationary period or some other general clarificatory orders, do not have bearing on the basic criteria relevant here - that is promotional quota is to be reserved for categories in Group 'D' cadre where no regular avenue for promotion exists.
13. Besides above, we also note that the basic requirement of separate promotion quota only for those categories where no regular avenue for promotion exists, is just and proper. Being deprived of any regular avenue for promotion, these categories of Group 'D' employees have been allowed to have an earmarked separate promotional quota of 16-2/3% of total posts in these categories to be considered for promotion thereagainst. These promotions are to be on selection basis. Allowing non entitled categories for these promotions will mean reduction 9 of promotional posts for Group 'D' categories for which no regular avenue of promotion exists and hence, will be unfair and unjust to these categories.
14. In view of all above, we do not find any merit in the arguments put forth by the applicants. The OA, therefore, lacks merit and is accordingly dismissed.
15. There is no order as to costs.
(Rakesh Sagar Jain) (Ajanta Dayalan)
Member - J Member - A
/pc/