Central Administrative Tribunal - Delhi
Vinod Kumar vs Railway Board on 9 May, 2025
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C-3/Item-19 OA-1225/2025
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./1225/2025
Reserved on: 16.04.2025
Pronounced on: 09.05.2025
Hon'ble Dr. Chhabilendra Roul, Member (A)
Vinod Kumar,
Age - 53 + years
S/o Late Shri Bhagwan Dass,
R/o 92, Munirka Enclave,
New Delhi-110067 ...Applicant
(Thru' Sh.Ajesh Luthra with Sh.R.K. Chauhan, Advocates)
Versus
1. Union of India
Through its Secretary
Railway Board,
Ministry of Railways, Rail Bhawan,
New Delhi
2. The Secretary
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pension,
North Block, New Delhi
3. The Director/Estt (Spl)
Railway Board,
Ministry of Railways, Rail Bhawan,
New Delhi
4. The CRB & CEO
Railway Board,
Rail Bhawan, New Delhi
5. Shri Panna Lal
NFHAG/IRSE/North
Service through Director/Estt(Spl) (Respondent No.3)
Railway Board, Ministry of Railways,
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C-3/Item-19 OA-1225/2025
Rail Bhawan, New Delhi ...Respondents
(Through Shri R.K. Jain, Advocate)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The applicant by way of the present OA has challenged the order dated 29.11.2021, whereby the junior of the applicant has been shortlisted and selected to be posted as the DRM/Salem/Southern Railway.
2. The factual matrix of the present case are that the applicant was selected and joined the Indian Railway Service of Engineers (IRSE) through the Union Public Service Commission (UPSC) pursuant to the Engineering Services Examination, 1995, and was appointed on 28.04.1997. The respondents issued an inter-se seniority list of directly recruited IRSE officers based on the said examination, vide seniority list dated 14.11.2000, wherein the name of the applicant was placed at Serial No. 21, whereas the name of Shri Panna Lal was placed at Serial No. 24, indicating that Shri Panna Lal is junior to the applicant. The applicant has placed reliance on the said seniority list, annexed as Annexure A-5, to substantiate his claim of seniority over Shri Panna Lal. The applicant is presently working as 3 C-3/Item-19 OA-1225/2025 Executive Director (Station Planning) in the Rail Land Development Authority (RLDA) at Delhi.
2.1 The respondents issued an order dated 29.03.2025 whereby they brought out new guidelines which are in stark contrast to the previous guidelines of 2016. The applicant made a representation dated 1.04.2025 against the said guidelines and requested the respondents to consider him for empanelment for being posted as DRM as per the old guidelines. The respondents have not yet responded to the applicant in respect of his representation. Being aggrieved, the applicant has filed the present OA seeking the following relief:
"8.1 To quash and set-aside the order dated 29.3.2025 whereby applicant's junior i.e. Sh. Panna Lal, NFHAG/IRSE (Indian Railway Service of Engineers) has been posted as DRM (Divisional Railway Manager) / Salem/ Southern Railway and to further direct the respondent that applicant be posted as DRM (Divisional Railway Manager) forthwith with all consequential benefits.
8.2 To quash and set-aside the clause 6 (iii) &
(iv) of Guidelines dated 3.9.2024 to an extent whereby un-communicated below-
bench mark ACRs/APARs (if any) have been taken into consideration while judging the suitability of applicant for short listing and posting as Divisional Railway Managers." 4
C-3/Item-19 OA-1225/2025
3. Notices were issued to the respondents and they have filed their counter reply to which the applicants have also filed their rejoinder.
4.1 Learned counsel for applicant submits that the applicant is fully eligible to be posted as Divisional Railway Manager (DRM) in terms of the latest guidelines issued by the Secretary, Railway Board, vide letter dated 03.09.2024, bearing No. E(O)III-2024/PL/04, annexed as Annexure A-2. It is submitted that under the earlier Guidelines, for Shortlisting and Posting of Divisional Railway Managers, dated 16.08.2016, bearing No. E(O)III-2016/PL/02, annexed as Annexure A-4, the panel for consideration involving the applicant was required to be made for the period from 01.07.2023 to 30.06.2024. Accordingly, the respondents were obliged to finalise the panel either before 01.07.2023 or within the prescribed period of the panel's currency, i.e., up to 30.06.2024. Under the guidelines dated 16.08.2016, only the preceding five years' Annual Performance Appraisal Reports (APARs) were required to be considered, and officers were required to be assessed at least as 'Very Good+' in their APARs for the said period. Learned counsel for applicant submits that all APARs of the applicant for the preceding five years were rated 'Outstanding', and he met the other eligibility criteria relating to age and fitness for posting as 5 C-3/Item-19 OA-1225/2025 DRM. However, instead of finalising the panel as mandated, the respondents arbitrarily delayed the shortlisting process. Subsequently, they issued fresh guidelines dated 03.09.2024 (Annexure A-2), to the prejudice of the applicant. Had the consideration been made timely in 2023 as per the earlier guidelines, the applicant would have been entitled to be shortlisted. Nevertheless, the applicant submits that he continues to meet the eligibility criteria even under the new guidelines dated 03.09.2024.
4.2 Learned counsel for applicant further submits that Clause 6(iii) and Clause 6(iv) of the new guidelines dated 03.09.2024 are contrary to the law laid down by the Hon'ble Supreme Court in Dev Dutt vs Union of India, reported as (2008) 8 SCC 725, and Sukhdev Singh vs Union of India, 2013 (9) SCC 566. The Hon'ble Apex Court has clearly held that uncommunicated APARs which are downgraded, or below-benchmark cannot be relied upon for denying promotion or other benefits. Pursuant to these decisions, the Department of Personnel and Training (DOP&T) issued Office Memoranda dated 14.05.2009 and 13.04.2010, and the Railway Board also issued corresponding circulars dated 18.08.2009 and 17.09.2010. The new guidelines, although extending the scope to consider APARs of the entire service career, including those prior to 2008-09, fail to ensure 6 C-3/Item-19 OA-1225/2025 communication of below-benchmark APARs for the period prior to 2008-09. Thus, the guidelines dated 03.09.2024 violate the principles laid down by the Hon'ble Supreme Court and are legally unsustainable.
4.3 It is further contended by learned counsel for the applicant that the said Clause 6(iii) and (iv) show non- application of mind and have caused severe prejudice and adverse civil consequences to the applicant. It is also argued that Clause 6(iii) and (iv) of the guidelines are arbitrary, unjust, violative of the principles of natural justice, and infringe the applicant's fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution of India. 4.4 Learned counsel for the applicant reiterates that the applicant fulfils all eligibility conditions under both the old and the new guidelines. However, vide order dated 29.03.2025, the respondents posted a junior officer, Shri Panna Lal, as DRM, to the exclusion of the applicant. Aggrieved by the same, the applicant submitted a detailed representation dated 01.04.2025 (Annexure A-3), asserting his eligibility and requesting his posting as DRM. However, the same is still pending with the respondent. 7
C-3/Item-19 OA-1225/2025 4.5 In support of his averments, learned counsel for
applicant places reliance on the judgment of Hon'ble High Court of Rajasthan in Union of India vs. Ms. Neelima Jauhar, C.W. No. 3838/2016 dated 30.08.2016, wherein it was directed by the Rajasthan High Court that the respondents in that case, i.e. UOI should consider the case of the applicant therein for empanelment ignoring un- communicated below bench mark APARs.
4.6 Learned counsel for applicant further cited the judgment of Hon'ble Apex Court in Abhijit Ghosh Dastidar vs. Union of India, Civil Appeal No.6227/2008, para 4 of which is as under:-
"4) It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-
communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
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C-3/Item-19 OA-1225/2025 4.7 Learned counsel for applicant further cites the
judgment of the Hon'ble Apex Court in case of R.K. Jibanlata Devi vs. High Court of Manipur through its Registrar General and others dated 24.02.2023, relevant portion whereof reads as follows:
"3.1 Relying upon the decisions of this Court in the case of Sukhdev Singh v. Union of India and Others, reported in (2013) 9 SCC 566; Prabhu Dayal Khandelwal v. Chairman, UPSC, reported in (2015) 14 SCC 427 (Paragraphs 7 to 9) and Rukhsana Shaheen Khan v. Union of India and others, reported in (2018) 18 SCC 640, it is submitted that the DPC had materially erred in taking into consideration the ACR for the year 2016-17 (uncommunicated ACR) and also the ACR for the year 2019-2020 which was communicated to the petitioner only on 8.4.2021. It is submitted that if the ACRs for the years 2016-17 and 2019-20 both having "Good" grading are excluded, in that case for rest of the years, the petitioner was having grading "Very Good" and therefore the petitioner would have got the promotion accordingly.
3.2 Making above submissions and relying upon the aforesaid decisions, it is prayed to direct the DPC/High Court to ignore the uncommunicated ACR for the year 2016-17 and also the ACR for the year 2019-20, both having "Good" grading and to consider the case of the petitioner for promotion taking into consideration the remaining ACRs, namely, ACRs for the years 2017-18 and 2018-19 in which the petitioner was having "Very Good"
grading.
xxxx xxxx xxxx xxxx
8. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and thereafter the DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years, i.e., 2017-18 and 2018-19. Such an exercise be completed within a period of six weeks from today. 8.1 In case after fresh exercise as above the petitioner is promoted to the post of Assistant Registrar, it goes without saying that she shall be entitled to all the 9 C-3/Item-19 OA-1225/2025 consequential benefits including the arrears, seniority etc. w.e.f. 09.04.2021 - the day on which the juniors came to be promoted."
5. Per contra, learned counsel for the respondents submits that the change from 01.07.2024 to 01.01.2024 has been effected in view of the DOPT guidelines, wherein the consideration period has been shifted from the financial year to the calendar year. Moreover, officers similarly placed as the applicant have been granted age relaxation due to this change in the consideration period. This has already been provided for in the revised policy dated 03.09.2024, specifically in Clause No. 16. In view of this, it cannot be said that the change from financial year to calendar year is arbitrary. The said policy is fully in consonance with the DOPT guidelines, and officers adversely affected by this change have been suitably granted age relaxation. It is further submitted that the Government, being best placed to assess suitability for particular posts, has taken a considered decision to revise the criteria for selecting officers for important managerial positions such as Divisional Railway Manager (DRM). Such decisions are in the nature of policy decisions, best left to the wisdom of the executive authorities. There is no arbitrariness in the formulation or implementation of this policy. Furthermore, the eligibility criteria are based on expert opinion regarding the suitability 10 C-3/Item-19 OA-1225/2025 of officers for important positions like DRM. As regards the issue of non-communication of below-benchmark APARs, learned counsel for the respondents submits that the present case concerns posting to a managerial position such as DRM and does not relate to promotion. A clear distinction is drawn between promotion and selection for posting to a managerial position. The judgment cited by the applicant pertains to promotion and is not applicable to the present case of selection for posting. It is also submitted that the revised policy has been uniformly applied to all officers, including the applicant. The applicant is not the only officer affected; nine other officers from various Railway Services have also been impacted by the new policy. Thus, the policy decision to select competent officers in the most appropriate manner for crucial positions like DRM is valid, and there is no arbitrariness, malafide intention, or discrimination against the applicant. Consequently, the present OA lacks merit and deserves to be dismissed.
6. In rejoinder, learned counsel for the applicant submits that the two clauses of the policy dated September 2024 are arbitrary inasmuch as they impose stringent conditions for posting officers who already belong to the same rank and grade pay. These conditions are more stringent than those applied for promotion or elevation from a lower rank to a 11 C-3/Item-19 OA-1225/2025 higher rank. It is submitted that, ordinarily, in cases of promotion, the APARs of the last five years are considered, and promotion involves elevation to a higher rank with greater responsibilities. However, in the present case, although the officers are of the same rank, for the purpose of managing different positions such as DRM, a more stringent condition has been imposed by considering the entire service record for empanelment and selection. Thus, it is contended that the impugned clauses are arbitrary and impose an unjustified burden on officers already serving in the same rank and grade pay.
7. Analysis 7.1 Heard both the counsels and perused the records of the case thoroughly. From the pleadings by both the parties and submissions by the respective counsels, the following issues relevant for adjudication of the case are culled out:
(i) Whether the respondents were bound to finalize the panel of officers to be posted as DRM before 1.07.2023?
(ii) Whether the present applicant is entitled to be considered for empanelment for being posted as DRM as per the guidelines dated 16.08.2016 for 12 C-3/Item-19 OA-1225/2025 the consideration period from 1.01.2004 to 31.12.2024?
(iii) Whether the guidelines dated 3.09.2024 are liable to be quashed because these are bad in law?
(iv) Whether the order dated 29.03.2025 is liable to be quashed because it is based on the guidelines of 3.09.2024 which are alleged to be bad in law? 7.2 Issue no.(i) 7.2.1 Learned counsel for the applicant has referred to the Railway Board circular dated 16.08.2016 (Annexure A-4) vide which the respondents were required to prepare the panel of officers to be posted as DRMs before 1st July of the concerned year. He referred to clause 5 of the aforesaid Railway Board circular dated 16.08.2016, which reads as follows:
"5. Officers being considered for short listing as DRMs should be less than 52 years of age as on 1st July of the year for which the short list is being made. A short listed officer can be posted as DRM within the period of currency of the short list, even if at the point of his actual posting as DRM, he has crossed the age of 52 years. Once short listed for a particular year, officers will be posted to vacancies earmarked for their Service arising in that year, strictly in the order of their seniority in their respective cadre."13
C-3/Item-19 OA-1225/2025 7.2.2 It is the claim of the applicant that he should have been considered for empanelment to be posted as DRM for the period 1.07.2023 to 30.06.2024. During that period, the applicant had all the requisite qualifications as per the guidelines of 16.08.2016 and he could have been empanelled to be posted as DRM. However, the respondents have not carried out the exercise of empanelling officers during this period and revised the guidelines vide Railway Board order dated 3.09.2024, depriving the applicant a chance to be considered for empanelment during the period 1.07.2023 to 30.06.2024.
7.2.3 The claim of the applicant has been stoutly refuted by the learned counsel for the respondents stating that the Railway Board, following the guidelines of DoP&T, have shifted the shortlist year from 1st July of the year to 30th June of the next year to 1st January to 31st December of the calendar year. In view of the transition period of change from the shortlist year to calendar year, the vacancies of 2023-2024 were reckoned as vacancies for the calendar year 2024. As a one-time measure, the officers who were eligible age-wise as on 1.07.2023 and become overage as on 1.01.2024, were eligible to get age relaxation. In view of this, there is no discrimination against the present applicant. 14
C-3/Item-19 OA-1225/2025 However, it has been adopted for all the officers who fall under similar circumstances.
7.2.4 I do agree with the contention of the learned counsel for the respondents that during the transition period shifting to calendar year, some employees are bound to get adversely affected. However, for the same reason, the respondents have taken care of such eventuality by giving age relaxation to overage employees. For organizational efficiency, an organization do undertake changes in the policy and guidelines. If such guidelines adversely affect a section of employees, the organization is obliged to take remedial measures. In the instant case, the respondents have taken such remedial measures by giving age relaxation to overage employees during the transition period. The applicant has no indefeasible right to be considered for empanelment as DRM during the transition period from 1.07.2023 to 30.06.2024. In view of this, issue number (i) is decided against the applicant.
7.33 Issue no.(ii) As we have decided issue no. (i) against the applicant, the applicant has no indefeasible right to be considered for empanelment for short listing period 1.07.2023 to 30.06.2024. As per the old guidelines of 16.08.2016, it is a 15 C-3/Item-19 OA-1225/2025 policy decision by the respondents to change the shortlist year to calendar year with effect from the shortlist year of 2024. As we have already discussed in respect of issue no.(i), the applicant has no indefeasible right to be considered for shortlist period of 1.07.2023 to 30.06.2024. The old guidelines dated 16.08.2016 have become irrelevant for the next shortlist period i.e. 1.01.2024 to 31.12.2024. Accordingly, issue no.(ii) is also decided against the applicant.
7.4 Issue no.(iii) 7.4.1 Issue no.(iii) is relating to the allegation by the applicant that the aforesaid guidelines are bad in law and they are liable to be quashed. The learned counsel for the applicant has relied on the set principles laid down by the Hon'ble Apex Court in Abhijit Ghosh Dastidar (supra) that below benchmark APARs are required to be communicated to the concerned employees and in absence of such communication, such APARs should not be considered for promotion to higher grade. Non-communication of below benchmark APARs is violative of Article 14 of the Constitution and it has been reiterated in various other judgments as cited by the learned counsel for the respondents in paragraph 3.7 above. The revised guidelines 16 C-3/Item-19 OA-1225/2025 of the respondents for consideration of officers to be empanelled as select officers to be posted as DRM specify that the service record of entire career of officers shall be taken into consideration. Referring to para 6 (iii) of the said guidelines, learned counsel for the applicant states that the respondents have changed the criteria for empanelment to draw shortlist of officers to be posted as DRM from five years to the entire service period. The APARs of the employees which were not adverse but below benchmark were never communicated before issuance of DoP&T OMs dated 14.05.2009 and 13.04.2010, duly endorsed by the Railway Board vide its circulars dated 18.08.2009 and 17.09.2010. 7.4.2 The applicant belongs to 1997 batch of IRSE. His below benchmark APARs, if any, were never communicated to him before 2009-2010 as was the practice prevalent then. When the respondents have taken a decision to consider the entire service period for select list of officers for being posted as DRM, this violates the established principle as held by the Hon'ble Apex Court in Abhijit Ghosh Dastidar (supra) case. I do agree with the contention of the learned counsel for the respondents that the change in the guidelines to consider APARs of five years to the entire service period may adversely affect officers who have joined prior to 2009-2010 and whose below benchmark APARs might not have been 17 C-3/Item-19 OA-1225/2025 communicated to them. However, the guidelines may be tweaked to include a clause that the officers who might have earned below benchmark APARs prior to issuance of Railway Board circulars dated 18.08.2009 and 17.09.2010 may be communicated such below benchmark APARs so as to get their representation, if any, before considering them for being shortlisted for being posted as DRM. I do not find it appropriate to quash the guidelines dated 3.09.2024 in entirety but would suggest that the respondents should incorporate a clause that if any officer has earned below benchmark APAR before he/she being considered for being shortlisted to be posted as DRM, he/she shall be communicated such below benchmark APARs and adequate time should be given to raise their grievances, if any, in that respect. Issue no. (iii) is decided accordingly. 7.5 Issue no.(iv) As issue no.(iii) has not been decided exclusively in favour of the applicant, I do not find that the guidelines dated 3.09.2024 are entirely bad in law. Accordingly, I cannot accept the contention of the learned counsel for the applicant that the order dated 29.03.2025 i.e. the impugned order should be quashed because it is based on defective guidelines of 3.09.2024.18
C-3/Item-19 OA-1225/2025 8. Conclusion (i) In view of the above analysis, the respondents are
directed to consider to incorporate a clause in the new guidelines that before empanelling officers into the select list for being posted as DRM, below benchmark APARs for the period prior to 2009-10 will be communicated to individual employees. Such employees have the liberty to represent against such below benchmark APARs and the competent authority shall consider such representation within a specified time, or in the alternative, the selection committee may ignore such below benchmark APARs to consider officers to be included in the select list.
(ii) In case of the present applicant, the respondents shall communicate below benchmark APARs, if any, pertaining to the period 1997 to 2010 and give him adequate opportunity to represent before being again re-considered for short listing under the new guidelines dated 3.09.2024. To that extent, the respondents should reconsider the case of the applicant to be shortlisted for being posted as DRM.
(iii) All the above exercises should be completed within a period of 8 weeks from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Dr. Chhabilendra Roul) Member (A) /dkm/