Central Administrative Tribunal - Jaipur
Avinash Choudhari vs M/O Railways on 30 March, 2022
1
OA No. 645/2013 with MA No. 159/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 645/2013
with
MISC. APPLICATION NO. 159/2021
Order reserved on 21.03.2022
DATE OF ORDER: 30.03.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Avinash Choudhari S/o Shri Shrikrishna Choudhari,
Aged about 29 years, at present working as Clerk
D.A.S.K. Divisional Office, Ajmer and R/o 59/27,
Johnsganj, Ajmer.
....Applicant
Shri V.K. Sharma, counsel for applicant.
VERSUS
1. Union of India through General Manager, North
Western Railway, Jawahar Circle, Jagatpura,
Jaipur.
2. Divisional Railway Manager, North Western
Railway, Ajmer.
.... Respondents
Shri P.K. Sharma, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:- 2
OA No. 645/2013 with MA No. 159/2021 "(i) Order dated 21.08.2013 (Ann-A/1) be declared illegal, arbitrary, unjustified and unreasonable and the same may be quashed and set aside.
(ii) The condition imposed by respondents of passing the type speed test be treated illegal and arbitrary and not applicable to the applicant or in the alternative the respondents be directed to give further chances to the applicant for passing the typing speed test.
(iii) The applicant be allowed to continue on the Group-C post i.e. clerk.
(iv) Cost of the application may be awarded to the applicant.
(v) Any other appropriate order or direction as may be deemed expedient in the facts and circumstances of the case be kindly passed in favour of the applicants."
2. The brief facts of the case, as stated by the applicant, are that he was initially appointed as Clerk (Group-C post) in the pay scale of Rs. 3050-4590 (RP) at pay Rs. 3050/- + admissible allowances on compassionate grounds vide letter dated 01.07.2004 (Annexure A/2). As per the appointment letter, there was no condition compelling the applicant to pass type speed test within two years to continue in Group 'C' post. The applicant was performing his duties with utmost devotion and satisfaction. He has performed continuous 8 years of service in Group 'C' post and, 3 OA No. 645/2013 with MA No. 159/2021 accordingly, he has a legitimate right to remain in Group 'C' post. To his utmost shock and surprise, he was served with a show cause notice dated 11.06.2012 (Annexure A/3) stating that since he has failed to clear type test on three occasions, it was proposed to demote/revert him in Group 'D' post and was given time to file his reply to the same. After receiving the said notice, he served a legal notice dated 25.06.2012 notifying illegalities and that he should not be reverted to Group 'D' post. No heed was paid by respondents on the said notice and the applicant approached this Bench of the Tribunal by way of filing OA No. 435/2012, which was disposed of vide order dated 13.07.2012 directing the respondents to consider and decide the legal notice dated 25.06.2012. The said notice was decided by the respondents in cursory manner vide order dated 24.08.2012 (Annexure A/6). After that respondents did not pass any orders of demoting/reverting the applicant and was, thus, in bonafide belief that no action would be taken by the respondents. The respondents instead in arbitrary and illegal manner issued office order dated 21.08.2013 (Annexure A/1) whereby he was demoted/reverted on the post of Bill 4 OA No. 645/2013 with MA No. 159/2021 Poster (Group 'D' post) from the post of Clerk (Group 'C' post). Thus, being aggrieved by unjustified action of the respondents, applicant has approached this Tribunal for redressal of his grievances.
3. Vide order dated 18.09.2013, this Tribunal issued notices to respondents and observed that in the meantime, the operation of the impugned order dated 21.08.2013 (Annexure A/1) is stayed till the next date. The said interim order continued till date. 4 (a). After issue of notices, the respondents have filed their reply stating that applicant was initially appointed as Clerk, which is a Group 'C' post, in the pay scale of Rs. 3050-4590 at pay of Rs. 3050/- plus admissible allowances in work and stores group on compassionate grounds. It is necessary to mention that typing skill is pre-requisite condition for the post of Clerk. This is evident from the letter dated 19.10.2005, (Annexure R/1), that applicant has to pass requisite typing test and he will get minimum three chances. Accordingly, applicant appeared in three consecutive typing tests and he failed in the test. Hence, applicant cannot claim his legitimate right to retain as a Clerk in Group 'C' post. The respondents 5 OA No. 645/2013 with MA No. 159/2021 had served a notice dated 11.06.2012 upon the applicant before reversion and sufficient time was given to the applicant for the same. Thus, the applicant was rightly reverted since he did not fulfil the pre-requisite condition of typing skill for the post of Clerk. Therefore, the respondents have taken action as per rules and there is no violation of any Articles of the Constitution of India. Thus, the O.A. filed by applicant is not maintainable.
(b). Respondents have also filed Additional Reply stating that as per Railway Board's Circular RBE No. 66/2000 dated 07.04.2000 (Annexure R/2), type writing test should be given to employee with a gap of six months between test within a period of two years. Also as per letter dated 19.10.2005 (Annexure R/1), applicant had to pass requisite typing test and he will get minimum three chances. In fact, the applicant was given four consecutive chances for typing test, in which he appeared in three chances and failed three times. Therefore, he was rightly reverted since he did not fulfil the pre-requisite condition of typing skill test for the post of Clerk. Thus, any challenge for the relief is neither just nor legal and the O.A. filed by the applicant deserves to be rejected.
6OA No. 645/2013 with MA No. 159/2021
5. Applicant has filed a rejoinder denying the contentions of the respondents. He further stated that at the relevant time of his appointment, there was no condition of passing the typing test being appointed on compassionate grounds. As there was no condition in the appointment letter issued by respondent no. 2 to pass type speed test within two years after his appointment to continue in Group 'C' post. Even the circular dated 07.04.2000, does not apply to cases where persons are directly appointed to Group 'C' post. As applicant was not promoted but directly appointed in Group 'C' post though on compassionate grounds, but the said circular has no relevance in the case of the applicant. Thus, the entire action of respondents in reverting the applicant deserves to be quashed and set aside. The applicant relies upon the judgments of the Hon'ble High Court of Rajasthan, Jaipur Bench stating that the controversy of providing one more/additional chance has been set at rest by the Hon'ble High Court. It is submitted that Shri Padam Singh Verma was also given four chances by the Railways and in one of which he was absent. Similarly, due to sickness, one Shri Ram Kishore could not appear in type test out of four chances provided to 7 OA No. 645/2013 with MA No. 159/2021 him. This Bench of the Tribunal vide its order dated 12.07.2011 while disposing of OA No. 118/2011 (Ram Kishore vs. Union of India & Ors.) and OA No. 123/2011 (Padam Singh Verma vs. Union of India & Ors.) directed the Railways to give one additional chance to said applicants. It is stated that respondent- Railways have time and again granted additional chance for passing typing test and have issued circulars/letters thereby granting exemption from passing the type test and, thus, O.A. be allowed in favour of the applicant.
6. The respondents have filed MA No. 159/2021 for vacation of stay order dated 18.09.2013 passed by this Tribunal. They stated that the applicant was already given four consecutive chances for tying test in which he appeared in three chances and failed three times. Since applicant has no legitimate right to retain as Clerk in Group 'C' post, he was rightfully reverted. Thus, as action of respondents is as per Circulars dated 07.04.2000 as well as 19.10.2005 and, thus, the interim orders of stay dated 18.09.2013 deserves to be vacated.
8OA No. 645/2013 with MA No. 159/2021
7. Heard learned counsels for the parties and perused the material available on record and also the judgments/orders referred by the applicant.
8. Learned counsel for the applicant as well as the respondents reiterated their submissions as made earlier.
9. The factual matrix of the case is that the applicant was initially appointed as Clerk (Group 'C' post) in the pay scale of Rs. 3050-4590 (RP) at pay of Rs. 3050/- plus admissible allowances in work and stores group, Ajmer Division on compassionate grounds vide letter No. ED/890/2 Vol-14 dated 01.07.2004 (Annexure A/2). At the time of his appointment, there was no condition of passing type speed test within two years in order to continue in Group 'C' post. As per letter No. ED/890/02 Vol-14 (Type Test) dated 19.10.2005, (Annexure R/1), applicant had to pass requisite typing test and was given minimum three chances.
10. We have seen that though applicant had appeared in three typing tests but had failed in the same. In fact, applicant was given four consecutive chances, but he had appeared in three chances and failed in all three. First chance was given vide letter dated 9 OA No. 645/2013 with MA No. 159/2021 19.10.2005 and again letter was issued on 10.04.2006, examination was held on 03.05.2006 in which he failed and was intimated vide letter dated 10.11.2006 (Annexure R/3). Second chance was given vide letter dated 06.02.2007, in which the applicant was absent on the date of examination i.e. on 20.02.2007 which can be perused from Attendance Register (Annexure R/4). Another 2nd chance was given vide letter dated 16.06.2008 and typing test was held on 30.07.2008 in which he failed and was intimated vide letter dated 05.09.2008 (Annexure R/5). Third chance was given to the applicant vide letter dated 05.03.2009 and examination was held on 09.04.2009. Again applicant failed in the typing test and was intimated vide letter dated 05.06.2009 (Annexure R/6).
11. Since the applicant failed to pass typing test in three chances, (actually four), [which was a pre- requisite condition for the post of Clerk (Group 'C' post)], he was served with a Notice dated 11.06.2012 (Annexure A/3) as to why he should not be reverted/demoted to Group 'D' post, but actually speaking, there was no such condition in his appointment letter dated 01.07.2004. Also at the 10 OA No. 645/2013 with MA No. 159/2021 same time, applicant cannot claim to be his legitimate right to retain as a Clerk when he participated in typing test but failed in the same. Instead of filing reply to the said notice, he served a legal notice dated 25.06.2012 (Annexure A/4) upon the respondents challenging the show cause notice. Since no reply was given by respondents to his legal notice, he approached this Bench of the Tribunal by way of filing OA No. 435/2012, which was disposed of vide its order dated 13.07.2012 directing the respondents to consider and decide the legal notice dated 25.06.2012 by way of passing a reasoned and speaking order. It was made clear that till the disposal of the said legal notice, no prejudicial order shall be passed against the applicant pursuant to the impugned show cause note dated 11.06.2012 and after deciding the show cause notice, the respondents will be at liberty to proceed further in accordance with the provisions of law. The said legal notice was decided by the respondents vide order dated 24.08.2012 (Annexure A/6). Thereafter, vide office order dated 21.08.2013 (Annexure A/1) applicant has been reverted /demoted from the post of Clerk (Group 'C' post) to the post of Bill Poster (Group 'D' post).
11OA No. 645/2013 with MA No. 159/2021
12. We do not find any of the grounds raised by the applicant as sustainable as there is no illegality in the action of the respondents. It is clear that the applicant was given three/four chances to complete typing test. The applicant had participated in the typing tests and has failed in the said tests. Thereafter, he cannot state that the said condition of passing typing test was not mentioned in the appointment letter, thus, he cannot approbate and reprobate when after participation, he did not succeed.
13. However, we are in agreement with the judgments/orders dated 12.07.2011 passed by this Bench of the Tribunal in OA No. 118/2011 (Ram Kishore vs. Union of India & Ors.) and OA No. 123/2011 (Padam Singh Verma vs. Union of India & Ors.), relied upon by the applicant, as more or less the facts of that cases are similar to the facts of the present case and, in the interest of justice, we feel that since applicant could not avail one chance, we deem it proper to direct the respondents to grant the applicant a fourth chance / one more chance to pass the typing test and if he is declared successful therein, he may not be reverted/demoted from the post of Clerk (Group 'C' post). In case, the applicant is unable 12 OA No. 645/2013 with MA No. 159/2021 to pass the typing test, the reversion order dated 21.08.2013 (Annexure A/1) passed by the respondents shall remain in force.
14. With these observations and directions, the present Original Application stands disposed of accordingly. No order as to costs.
15. In view of the order passed in the O.A., M.A. No. 159/2021, filed by the respondents for vacation of stay order dated 18.09.2013 passed by this Bench of the Tribunal, also stands disposed of.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/