Central Administrative Tribunal - Delhi
Arjun Lal Meena (St) vs Union Of India on 24 February, 2012
Central Administrative Tribunal Principal Bench, New Delhi. O.A. No. 3768/2011 Reserved on : 21.02.2012 Pronounced on: 24.2.2012 Honble Mrs. Meera Chhibber, Member (J) Honble Mr. Shailendra Pandey, Member (A) 1. Arjun Lal Meena (ST), S/o Rati Ram Meena, Aged 35 years, Loco Pilot Passenger Under Sr.DMD/P/ New Delhi/Delhi Divn/ Northern Railway, R/o 9/2, Railway Colony, Kishan Ganj, New Delhi. 2. Rakesh Kumar (SC), S/o Shri Charan Das, Aged 36 years, Loco Pilot Goods, Under Sr. C.C./Shakurbasti, Under Sr.DME/P/N.Delhi/ Delhi Divn./N.Rly. R/o F-1, Police Station Shahdara, Delhi-110032. 3. Ravi Kumar (SC), S/o Shri Attar Singh, Aged 30 years, Loco Pilot Goods, Under Sr. C.C./GZB, Under Sr.DEE/RSO/NDLS/Delhi Divn. R/o A-2/189/38, Amar Colony, East Gokulpur, Delhi-94. 4. Mahesh Kumar (SC), S/o Shri Wattan Chand, Aged 39 years, Loco Pilot Goods, Under Sr. C.C./SSB/ Under Sr.DME/P/NDLS/Delhi Divn. R/o M-322, Mangolpuri, Delhi-110083. 5. Suryadev (SC), S/o Sh. Chhotu Rawidas, Aged 35 years, LPG Under Sr. C.C./SSB/ Under Sr.DME/P/NDLS/ R/o 674, Old Vijay Nagar, Ghaziabad. 6. Arvind Kumar Ranjan (SC), S/o Shri Ram Prasad, Aged 35 years, LPG Under Sr. C.C./SSB/ Under Sr.DME/P/NDLS/ R/o 9/2, Railway Colony, Kishanganj, Delhi. 7. Suresh Kumar (SC), S/o Shri Shree Rama, Aged 36 years, LPG Under Sr. C.C./Shakur Basti/New Delhi. R/o 431-B, Rishi Nagar, Rani Bagh, Shakurbasti, Delhi-34. 8. Ram Kishore (SC), S/o Shri Phool Singh, Aged 33 years, LPG Under Sr. C.C./SSB/ Under Sr.DME/P/New Delhi R/o Plot No.2, SF Rajbagh Colony, Sahibabad, Ghaziabad. 9. Raja Ram (SC), Shri Maikoo, Aged 40 years, LPG Sr. C.C./SSB/ Under Sr.DME/P/New Delhi R/o B-57, Rishi Nagar, Rani Bagh, Delhi-34. 10. Lal Bahadur (SC), S/o Shri Misri Prasad, Aged 34 years, LPG Sr. C.C./SSB/ Under Sr.DME/P/New Delhi R/o WZ-2338/D, Rajapark, Trinagar, Delhi-34. 11. Devender Singh (SC), S/o Shri Uday Singh, Aged 41 years, LPG Sr. C.C./DEE/ Under Sr.DME/P/New Delhi R/o H.No.11, Gali No.1, Braham Puri-53. 12. Satish Chandra (SC), S/o Shri Subedar, Aged 40 years, LPG Sr. C.C./SSB/ Under Sr.DME/P/New Delhi R/o WZ-B/3666, Raja Park, Gali No.6, Delhi-34. 13. Arun Kumar Verma (SC), S/o Shri Gopal Verma, Aged 43 years, LPG/ Sr. C.C./TKD/ Under Sr.DEE/RSO/New Delhi R/o 341, Rly. Colony, Tughlakabad, New Delh-44. 14. Devnath Prasad (SC), S/o Shri Raghubar Ram, Aged 43 years, LPG/Sr. CE/TKD/ Under Sr.DEE/RSO/New Delhi R/o 47-J, Rly Colony, Tughlakabad, Delhi-44. 15. Manoj Kumar Davaskar (SC), S/o Shri Ram Ratan, Aged 37 years, LPG/Sr. C.C./SSB/ Under Sr.DME/P/New Delhi R/o D-7E/304, Bhajanpura, Delhi. 16. Tara Chand (SC), S/o Shri Shobha Ram, Aged 41 years, LPG Sr. C.C./GZB/ Under Sr.DEE/RSO/New Delhi R/o E-77, Sec-9, New Vijay Nagar, Ghaziabad. 17. Chandra Shekhar (SC), S/o Shri Amar Singh, Aged 36 years, LPG Sr. C.C./GZB/ Under Sr.DEE/RSO/New Delhi R/o Inder Garhi, Aadhayatmik Nagar, NTPC Colony, Ghaziabad (UP). 18. Shanjeev Kumar (SC), S/o Shri Kamal Singh, Aged 35 years, LPG Sr. C.C./TKD/ Under Sr.DEE/RSO/NDLS R/o 9721/10, Gaushala Road, Kishanganj, Delhi-6. 19. Nannu Singh (SC), S/o Shri Liladhar, Aged 33 years, LPG/Sr. C.C./GZB/ Under Sr.DEE/RSO/NDLS R/o E-76, Sec.6, New Vijay Nagar, Ghaziabad (UP). .. Applicants By Advocate: Shri Yogesh Sharma. Versus 1. Union of India, Through the General Manager, Northern Railway, New Delhi-110001. 2. Chief Personnel Officer, Northern Railway HQ, Baroda House, New Delhi-110001. 3. The Divisional Railway Manager, Delhi Division / Northern Railway, State Entry Road, New Delhi-110055. 4. The Senior Divisional Personnel Officer, Delhi Division / Northern Railway, State Entry Road, New Delhi-110055. 5. The Senior Divisional Mechanical Engineer/ Power/ Delhi Division / Northern Railway, State Entry Road, New Delhi-110055. 6. Senior Divisional Electrical Engineer RSO, Delhi Division / Northern Railway, State Entry Road, New Delhi-110055. ..Respondents By Advocate: Shri V.S.R. Krishna with Shri Shailendra Tiwary. ORDER
By Honble Mrs. Meera Chhibber, Member (J) 19 applicants have filed this OA challenging order dated 12.8.2011 whereby they have been declared ineligible to appear for selection for the post of Loco Inspector on the ground that they do not have 75,000 kms experience as driving. They have further sought a declaration that they are eligible to appear in the selection since their junior Shri Deep Chand is being called for the selection test and after taking into account the judgments given by this Tribunal and the Honble High Court of Delhi.
2. The brief facts, as stated by the applicants, are that they were placed in the seniority list of Loco Pilot Goods by interpolating their names vide order dated 18.5.2010 (page 119) and benefit of fixation of pay was also given to them on notional basis from an earlier date vide order dated 5.10.2010 (page 132) on the basis of judgment given by this Tribunal.
3. On 20.12.2010, Notification for the post of Loco Inspector for SC/ST was issued by the respondents to be filled from amongst the Loco Pilot (Mail), Loco Pilot (Passenger) and Loco Pilot (Goods) (page 148) by making it clear that the candidates must have 75,000 kms of actual driving experience. In the same letter it was notified that Crew/Power Controller would be eligible to appear in the selection with the condition that before posting they would complete footplate driving experience to the extent of 75,000 kms.
4. Counsel for the applicants invited our attention to letter dated 12.8.2011 (page 45) along with which 2 annexures were annexed giving the list of eligible employees as well as those who were not eligible in terms of Railway Boards letter dated 26.3.2009 RBE No.51/2009. All the applicants herein were shown as ineligible in the list annexed at Annexure-B (page 49) on the ground that they had not completed 75,000 kms driving as on 20.12.2010, i.e., the date of Notification (page 148). Applicants name figured at Sl.No.9, 12, 14, 16, 21, 22, 23, 30, 31, 32, 34, 39, 40, 41, 42, 44, 50, 51 and 54.
5. It is submitted by the counsel for the applicants that in Annexure- A one Shri Deep Chand was shown as eligible at Sl.No.102 with seniority No.689 who was below the applicants yet he was being considered, therefore, applicants should also be considered for the post of Loco Inspector. He further submitted that since it was due to the lapse on the part of the respondents that they were not appointed in time in the feeder post that they could not complete 75,000 kms experience for Driver (Goods), therefore, they cannot be made to suffer for further promotions.
In any case, the experience of 75,000 kms should be relaxed in the case of the applicants also as is being done in case of Crew Controllers as per Clause (iv) of letter dated 26.3.2009 (page 150). Counsel for the applicants also placed reliance on the judgments of this Tribunal in the case of Jitender Singh Vs. U.O.I. & Others decided on 14.8.2008 in OA No. 1892/2007 (page 83), Ashok Kumar Vs. U.O.I. & Others decided by this Tribunal on 10.12.2010 in OA No.499/2010 (page 159), Ajay Veer Saxena and Others Vs. U.O.I. & Others decided on 20.2.2008 (page 162) and the judgment dated 10.9.2007 in Writ Petition No. 8515-17/2006 by the Honble High Court of Delhi in the case of Union of India and Another Vs. Rakesh Kumar and Others (page 195).
6. Respondents on the other have opposed this OA. They have stated that on the basis of various judgments given by the Tribunal and the Honble High Court of Delhi, keeping in view the need based requirement for the post of Loco Inspectors and Power/Crew Controllers, modifications in the eligibility criteria were made by the Railways in their letter dated 26.3.2009. The difference being that now it is mandated that a person should have actual driving experience instead of 3 years footplate experience which used to be possessed by merely accompanying with a driver. In view of above changed position, the judgments pronounced earlier are now distinguishable and not applicable in the present facts and circumstances of the case. They have further stated that even for being drafted as Power/Crew Controllers, 75,000 kms of actual driving experience has been made compulsory with effect from 26.3.2009, as such after 26.3.2009, only such persons would be drafted as Power or Crew Controllers who have completed 75,000 kms of actual driving experience. In Clause (iv) special dispensation was made available to those Power or Crew Controllers who were already working as such on the crucial date, i.e., 26.3.2009, as a special case. This dispensation has not been extended to other drivers or even to those Power or Crew Controllers who were drafted after 26.3.2009 because any such relaxation would make the filling up of the post of Loco Inspectors totally difficult resulting into administrative difficulties as such stipulation would be against the spirit of the revised policy in public interest because these are safety related posts.
7. As far as the case of Ashok Kumar is concerned, they have stated that the said case is also distinguishable inasmuch as the applicant therein was seeking inclusion as Crew Controller which is a parallel post of Loco Pilot which he was already holding in the same grade. In Ashok Kumars case there was no issue of promotion from one level to the other whereas in the instant case, the post of Loco Inspector is a promotional post from amongst the drivers, that too in a higher scale, therefore, the case of Ashok Kumar is distinguishable. In any case Honble Tribunal had only directed the Railways to consider the case of applicant but after considering his case, since he did not possess 75,000 kms of actual driving experience, his case was rejected vide letter dated 14.3.2011 which is annexed with the additional affidavit. They have thus submitted that the reliance placed on the judgments by the applicants herein is misplaced.
8. They have further explained that applications were called from eligible Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail) for filling up 17 posts of Loco Inspector in the pay scale of Rs.9300-34800 plus Grade Pay of Rs.4600/- against short fall of SC/ST quota. The post of Loco Inspector is not in the normal channel of promotion nor there is any common seniority list of all drivers viz. Loco Pilot (Goods), Loco Pilot (Passengers) and Loco Pilot (Mail), therefore, promotion to the post of Loco Inspector cannot be made on the basis of seniority and it has to be made on the basis of merit only. It has already been held by the Full Bench of this Tribunal in the case of B.K. Gupta & Others Vs. U.O.I. & Others in OA No. 2765/2009 that the post of Loco Inspector is not based on seniority but is a general selection post. Since none of the applicants fulfill the eligibility, as mentioned in the Notification, the relief, as claimed by the applicants, is without any merit. The OA may, therefore, be dismissed.
9. We have heard both the counsel and perused the pleadings also.
10. Admittedly, while issuing Notification dated 2012.2010 (page 148) for the post of Loco Inspectors, eligibility was made clear by mentioning that 75,000 kms of actual driving experience is necessary and the selections would be done on the basis of Railway Boards letter dated 26.3.2009. Perusal of Railway Boards letter dated 26.3.2009 is most crucial in this case because counsel for the applicants placed reliance on para (iv) thereof. He strenuously argued that since dispensation has been given to running staff posted as Power/Crew Controllers to appear in the examination even if they had not completed 75,000 kms of actual driving experience, the same benefit should be given to the applicants as well. In order to understand why this dispensation was given to the Power/Crew Controllers only, we had directed the respondents to file additional affidavit. They have explained that earlier the requirement as per rules for the post of Loco Inspector was three years footplate experience but in view of various judgments given by the Tribunal and the Honble High Court of Delhi it was felt necessary to modify the existing criteria as per the need based criteria. Accordingly, letter dated 26.3.2009 was issued which for ready reference reads as under:-
Sub: Filling up posts of Loco Inspectors and Power Controllers /Crew Controllers Modification thereof.
The question of modifying the eligibility criteria for filling up the posts of Loco Inspectors and Power Controllers /Crew Controllers has been engaging attention of Railway Board for quite some time. After careful consideration, the Board have decided to modify the eligibility criteria contained in Boards letters No. E[P&A]II-83/RS-10 [iv] dated 25.11.1992 and E[P&A]II-83/RS-10 dated 9.01.98, as amended from time to time, as under:
[i] The words three years footplate experience mentioned in eighth line of para 1 of Boards letter No. E[P&A]II-83/RS-10 dated 7.10.2002 may be replaced by 75000 Kms of actual driving experience as drivers. This shall also be applicable in the case of drivers medically decategorised upto the level A-3 who are considered eligible for selection for the post of Loco Inspectors in terms of Boards letter No. E[P&A]II-2006/RS-21 dated 3.1.2007.
[ii] Para 2[b] of Boards letter dated 9.1.98 ibid may be substituted as under:
2[b] To perform the duties hitherto being performed by Power /Crew Controllers in the Control Office or in the place where the Crew Controllers were headquartered, eligible and suitable Mail/Express Drivers, Sr. Passenger/Passenger Drivers and Sr. Goods/ Goods Drivers will be drafted. Only drivers having a minimum of 75000 Kms. of actual driving experience shall be eligible to be drafted as Power / Crew Controllers. [iii] Existing running staff, including drivers medically decategorised up to the level A-3, who are posted as Power/Crew Controllers, shall be eligible to be considered for the post of Loco Inspector, if they are already having the requisite 75,000 Kms of actual driving experience.
[iv] Existing running staff, posted as Power/Crew Controllers, who are not medically decategorised and who do not have the requisite 75,000 Kms of actual driving experience, will also be eligible to be considered for the post of Loco Inspector, with the proviso that the shortfall will have to be made good by them by being deployed on footplate duties, prior to their being actually posted to work as Loco Inspector.
2. The above modification will not be applicable in cases where selection process has already been initiated in terms of the instructions contained in Boards letter dated 25.11.1992, 9.1.98 and 7.10.2002 ibid.
3. This has the approval of the President and issues with the concurrence of the Finance of the Finance Directorate of the Ministry of Railways. It is relevant to note that all the judgments which have been referred to by the counsel for the applicants except Ashok Kumar were given on an earlier point of time whereas the policy decision was taken by the respondents at a later point of time. As per Railway Boards letter dated 26.3.2009 the eligibility was laid down. Para (i) deals with the modifications which were carried out in the eligibility for selection to the post of Loco Inspector, therefore, that would be relevant for the present case because applicants herein have prayed that they be considered for the post of Loco Inspectors. Perusal of same shows, instead of 3 years footplate experience, it was mandated that the eligibility would be 75,000 kms of actual driving experience as drivers meaning thereby that the Railway Board took a conscious decision that if a driver is to be promoted as Loco Inspector he must have 75,000 kms of actual driving experience as driver. In other words, this eligibility was prerequisite for promotion to the post of Loco Inspector. Admittedly, applicants did not have this experience, therefore, they were not eligible in terms of this letter.
11. Para (iv), which has been relied upon by the counsel for the applicants was, in fact, a saving clause for those Power/Crew Controllers, who were already drafted as such prior to 26.3.2009 and did not have requisite 75,000 kms of actual driving experience. They were given this dispensation to be considered for the post of Loco Inspector on the basis of judgments which were already given by the courts by making it clear that even though they may be eligible to be considered for the post of Loco Inspector but they would make good the shortfall by being deployed on footplate duties to the extent of 75,000 kms of actual driving prior to their being posted to work as Loco Inspector. In fact, in para (ii) it was made clear that even for being drafted even as Power/Crew Controllers, only such drivers would be considered who have completed minimum of 75,000 kms of actual driving experience meaning thereby that after 26.3.2009, no driver would be drafted even as Power/Crew Controllers, unless he had completed 75,000 kms of actual driving experience.
12. If all the above paragraphs are read together, the intention of the Railway Board is absolutely clear that from 26.3.2009 it would be absolutely necessary for the drivers to have 75,000 kms of actual driving experience for being eligible for the post of Loco Inspectors. The applicants before us were appointed as drivers. The post of Loco Inspector is a promotional post, therefore, naturally they have to conform to the minimum requirement eligibility as prescribed by the Railway Board. Para (iv) of above letter dated 26.3.2009 does not give this dispensation to the normal Loco Pilot (Goods), Loco Pilot (Passenger) or Loco Pilot (Mail), therefore, it is not open to the applicants to claim that they should also be allowed to appear for selections to the post of Loco Inspectors without having the 75,000 kms driving experience. Admittedly, applicants do not have the actual driving experience of 75,000 kms as drivers. If this dispensation was to be given to all the drivers, it would mean the policy decision taken by the Railways would be thrown out of the windows. After all, it is for the administration to decide the eligibility criteria for a particular post. No direction can be given by the court which is contrary to the policy decision taken by the Railways in this context. It is relevant to note that the eligibility as laid down in letter 26.3.2009 was clearly mentioned in the Notification dated 20.12.2010 itself. We are thus satisfied that the relief, as claimed by the applicants, cannot be given in the present case.
13. Counsel for the applicants had also relied on the judgment given in the case of Ashok Kumar. However, perusal of same shows that the applicant therein was already holding the post of Loco Pilot. He had sought direction to be drafted as Crew Controller without completing the 75,000 kms of footplate experience. The respondents have explained that for drafting the drivers as Crew Controllers, there is no element of promotion as the pay scale of driver and Crew Controller was same. In any case the only direction issued by the Tribunal was to consider the case of applicant for the post of Crew Controller. Respondents considered the case of Ashok Kumar in compliance with the directions given by this Tribunal but rejected his claim by issuing order dated 14.3.2011 on the ground that he did not possess 75,000 kms of actual driving experience. He was thus not found suitable for the post of Crew Controller. The letter is placed on record by the respondents along with their additional affidavit which shows that respondents are consistent in their view that unless a person has 75,000 kms of actual driving experience, he can neither be considered for Crew Controller after 26.3.2009 nor for the post of Loco Inspector.
14. In view of above, the judgment in the case of Ashok Kumar does not advance the case of the applicants.
15. Counsel for the applicants further placed reliance on the earlier judgment given by this Tribunal in OA No. 1892/2007 decided on 14.8.2008 in the case of Shri Jitender Singh Vs. U.O.I. & Others (page 83) to state that this Tribunal had already directed the respondents to consider the applicants for further promotions also as they had suffered in the process due to administrative error. We have gone through the judgment dated 14.8.2008 and find that the operative portion reads as under:-
We would like to clarify that while deciding the selections respondents would take care that benefit of correct seniority is given to the applicants because as it is, they have already suffered in the process due to administrative error. If possible applicants should also be considered for next post along with their juniors, in case there is no other legal impediment in their way.
16. From above, it is clear that respondents were directed to consider the applicants for the next post along with their juniors only if there was no other legal impediment in their way, therefore, it cannot be read as a bald direction. The order is conditional for next promotion. Respondents have clarified that the applicants herein do not fulfill the eligibility required because they did not have 75,000 kms of actual driving experience as drivers which was pre-requisite for promotion to the post of Loco Inspectors, therefore, it is wrong on the part of the counsel for the applicants to state that they should have been considered on the basis of the above judgment for the post of Loco Inspector.
17. After discussing all the points, as mentioned above, we are satisfied that since the applicants herein do not fulfill the pre-requisite eligibility, they cannot be granted the relief, as prayed for. The OA is accordingly dismissed. No order as to costs.
(Shailendra Pandey) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh