Central Administrative Tribunal - Mumbai
& C.P.No.49/2013 vs The Union Of India on 14 February, 2014
1 O.A.No.522/2013 & C.P.No.49/2013 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. O.A.No.522/2013 & C.P.No.49/2013 Dated this Friday, the 14th day of February, 2014 CORAM: HON'BLE DR. MRUTYUNJAY SARANGI, MEMBER (A) HON'BLE SHRI ARVIND JAYRAM ROHEE, MEMBER (J) Shri M.K.Gupta, Son of Late Shri Murari Lal Gupta, age: 54 years (Date of Birth: 11.10.1958), working as: Chief Administrative Officer (Costruction) Central Railway, Headquarters Office, CST, Mumbai 400 001 and residing at: L-42, Badhwar Park, Woodhouse Road, Colaba, Mumbai 400 005. ... Applicant (Applicant by Shri R.G.Walia, Advocate) vs. 1. The Union of India, Through the Secretary, Railway Board, Rail Bhavan, New Delhi 110 001. 2. Chairman, Railway Board, Rail Bhavan, New Delhi 110 001. 3. The General Manager, Central Railway, Headquarters Office, CST. Mumbai 400 001. 4. The General Manager, Eastern Railway, Headquarters Office, Fairlie Place, 17, N.S. Road, Kolkata. 700 001. 5. S.L. Verma, Divisional Railway Manager, (DRM), Nagpur, South-East Central Railway, Office of the Divisional Railway Manager (DRM), Nagpur -441 111 6. L.M. Jha, Chief Administrative Officer, (Construction) South, Office of Chief Administrative Officer ), East-Central Railway, Mahendru Ghat, Patna, Bihar 800004. 2 O.A.No.522/2013 & C.P.No.49/2013 7. Mr. Sanjeev Mittal IRSE, Divisional Railway Manager (DRM) Hubli, South-Western Railway, Office of Divisional Railway Manager(DRM), Hubli, Karnataka- 580029. ... Respondents (Respondents by Shri S.C. Dhawan, Advocate) O R D E R Per: Dr. Mrutyunjay Sarangi, Member (A):
The applicant joined the Indian Railways on 16.01.1981 and belongs to the 1979 Examination Batch of IRSE. In August, 2001 a major penalty charge- sheet was issued to the applicant and after a detailed enquiry the Inquiry Officer exonerated the applicant of all charges in March 2003. However, a disagreement note was issued by the Disciplinary Authority on 31.10.2003 and the applicant was compulsorily retired in April 2005.
2. The applicant challenged the punishment of Compulsory Retirement before the Bombay Bench of the Central Administrative Tribunal in O.A. 315/2005 in February 2007. The above mentioned O.A. was allowed with full consequential benefits. The order of this Tribunal was challenged in Writ Petition No. 2395/2007 by the respondents in February 2007. The Hon'ble Bombay High Court set aside the punishment order on procedural infirmities on 19.4.2007. The orders of the C.A.T. Bombay Bench was upheld and the matter was remanded to the Disciplinary Authority for fresh consideration from the stage the lacuna in 3 O.A.No.522/2013 & C.P.No.49/2013 procedure had crept in. Although the Hon'ble High Court had given six months' time to the respondents to complete the disciplinary proceedings and to pass the final orders in accordance with law, the respondents took more than 44 months and finally exonerated the applicant on 21.12.2010. The applicant was extended all consequential benefits of pay due to exoneration. While the disciplinary proceedings were pending after remand by the High Court the immediate junior of the applicant by name Shri Anirudh Jain was posted as Divisional Railway Manager (DRM) on 9.10.2007. Since the Departmental Proceedings were going on against the applicant he was not considered for posting as DRM. After the exoneration in December, 2010, the applicant made a representation to the respondents to consider him for posting as DRM. In January, 2011 a panel was approved by the Railway Board for posting of officers of various batches as DRM. The applicant's name was at Serial No.1 in the said Panel since he was the senior most eligible candidate at the relevant time. However, on 7.4.2011, vide the impugned order the posting of DRMs was notified and the applicants name was not included. In June 2011, the applicant made a representation to the respondents that his name should be considered immediately for posting as DRM, since his non-inclusion in the DRM posting will adversely affect his chances for promotion to the post of G.M. (OL) and later as Member, Railway Board.
4O.A.No.522/2013 & C.P.No.49/2013 On 30.8.2011, the applicant was promoted to the Higher Administrative Grade (HAG), and posted as Chief Administrative Officer (Construction) in Central Railway, Mumbai. He was working in the same post at the time of filing the Original Application No. 522/2013 before this Tribunal. Aggrieved by his non-inclusion for the post of DRM, the applicant has approached this Tribunal with the following prayers.
(a) To call for the records which led to the passing of the impugned orders dated 27.8.2013 and 7.8.2013 and after going through its propriety, legality, and constitutional validity be pleased to quash and set aside the same.
(b) To hold and declare that the applicant cannot be denied his future consideration for promotion to the post of General Manager (Open Line) and AGM only on the ground that he has not worked as Divisional Railway Manager (DRM).
) To hold and declare that the non- posting of Applicant as Divisional Railway Manager (DRM) shall not preclude his consideration for promotion to the post of General Manager (Open Line) and AGM.
(d) To hold and declare that for consideration for promotion to the post of General Manager (Open Line) and AGM, the working on the post of Divisional Railway Manager (DRM) is not an Eligibility Condition as provided under the Rules. Therefore, the applicant cannot be denied his consideration to the post of General Manager (Open Line) and AGM.
(e) To hold and declare that the Note (i.e. last portion) ... The fitness for AGM/GM(OL) shall be given in respect of those officers who have worked/are working as DRMs (Please see column 7(b) of Part-I in the ACR/APAR form, as incorporated therein as illegal, wrong and quash and set aside the same.
(f) To quash the Declaration of Not Eligible recorded in the impugned ACR/APAR 5 O.A.No.522/2013 & C.P.No.49/2013 (Annexure A2) of the applicant for fitness for promotion to the post of General Manager (Open Line) and AGM, and to declare that the same be replaced byFit in the said ACR/APAR (Annual Performance Appraisal Report) for General Manager (Open Line) and AGM promotion.
(g) To hold and declare that the Applicant is even otherwise eligible for consideration of promotion for the post of General Manager (Open Line) and AGM and it may be declared that the Applicant complies with condition of having worked as Divisional Railway Manager (DRM) as his juniors were posted in the year 2007 onwards itself and in all his relevant ACR/APAR (Annual Performance Appraisal Report) he was found Fit for the post of Divisional Railway Manager (DRM).
(h) To quash and set aside the impugned posting Order of Divisional Railway Manager dated 20.07.2013 and direct the Respondents to post him as Divisional Railway Manager, immediately.
(i) To hold and declare that the non- posting of the applicant vide impugned posting order dated 7.4.2011 was illegal and wrong and thus be pleased to quash and set aside the same with directions to the respondents to post the applicant as Divisional Railway Manager (DRM) immediately and to give the posting effect from 7.4.2011.
(j) Any other or further orders may be passed by this Tribunal in the interest of justice and equity.
(k) Cost of this application may be provided for.
3. This Tribunal had considered the applicant's prayer for interim relief by way of directive to the respondents to post the applicant as Divisional Railway Manager immediately and till then to stay all further postings dated 20.07.2013 to the post of Divisional Railway Manager. The prayer for interim 6 O.A.No.522/2013 & C.P.No.49/2013 relief was as follows:
(a) Pending hearing and final disposal of this Original Application, the Respondents-
Railway Administration be directed to post the Applicant as Divisional Railway Manager (DRM) immediately and till then stay to all further postings and posting dated 20.07.2013 to the post of Divisional Railway Manager (DRM).
(b) Pending hearing and final disposal of this Original Application, the Respondents be directed not to PUT the stamp of Not Eligible for the post of General Manager (Open Line) in the future ACR/APARs i.e. from 1.4.2012 to 31.03.2013 onwards of the Applicant.
) Ad-interim reliefs in terms of prayer clause 9(a) and 9 (b) above. After hearing the counsel for the applicant and the respondents this Tribunal vide order dated 21.10.2013 had granted Interim Relief to the applicant as per the following orders:
11. Having regard to the fact that he was found fit for the purpose of DRM and Railway Board's approved List of Officers for the post of Divisional Railway Manager figured the name of the applicant at Sr.No.1 and also having 7 O.A.No.522/2013 & C.P.No.49/2013 regard to the admission of the higher authority that under peculiar circumstances unfortunately the applicant could not be posted as DRM, we are satisfied that the applicant has made out a prima facie case, for consideration.
The respondents may file their detailed reply as asked for within two weeks from today. Rejoinder if any, may be filed by the applicant within one week thereafter. Respondents will produce the necessary file on the next date of hearing.
12. In the meantime, respondents are directed to consider the applicant for posting as DRM so as to enable him to fulfill the requisite criteria for consideration for the post of General Manager (OL) according to his turn. Be it mentioned that although the applicant is presently working in the HAG or Higher Administrative Grade and the post of DRM (SAG) is a Senior Administrative Grade but the applicant has given an undertaking that he will forgo higher grade pay in the event he is given the post of DRM in Senior Administrative grade post. 8 O.A.No.522/2013 & C.P.No.49/2013 Subsequently on 25.10.2013 on a request for To be Spoken to minor corrections were carried out in the order with regard to the nomenclature of General Manager and DRM, without modifying the substantive directives in the interim order.
In pursuance of the Interim Order passed by this Tribunal, the respondents passed an order No.E(O)III/Spl./2013/38 dated 02.12.2013 where they mentioned that the applicant cannot be posted as DRM as he is already working in the HAG and there is no post of DRM in HAG, it being a SAG post. The letter from the Railway Board to the General Manager, Central Railway reads as follows:
Please refer to the correspondence on the above subject. The directions passed by the Hon'ble CAT/Mumbai in para 12 of their order dated 21.10.2013 passed in the above mentioned O.A. forwarded by Shri M.K. Gupta vide his letter dated 28.10.2013, have been considered in Board's Office. The competent authority have held that the post of DRM is in SAG and there is no provision for posting an HAG officer as DRM in SAG. Postings of DRMs are processed by short listing of eligible and suitable SAG officers only.
Therefore, it is not for Shri Gupta to forego his promotion to HAG and request for posting in SAG only to work as DRM. This is fundamentally incorrect and cannot be agreed to. It may be added that Shri Gupta has since crossed the age limit of 52 years. Therefore, the competent authority has not agreed to the request of Shri Gupta for his posting as DRM in SAG by 9 O.A.No.522/2013 & C.P.No.49/2013 foregoing his promotion to HAG.
2. The above position may be advised to Shri M.K.Gupta.
4. The applicant has placed his prayers for relief on the following grounds:
(i)the applicant has had an excellent record and had obtained Outstanding Gradings in his Annual Performance Appraisal Reports (APARs). He was placed at one of the top positions in his Branch and due to his age advantage he could have risen to the post of Member in the Railway Board. Due to the disciplinary case, his career has been severely affected. However, had he been given the posting of DRM immediately after his exoneration, he would have got the opportunity of being considered for the post of G.M. (OL) and subsequently for Member, Railway Board.
(ii) The applicant has been victimised by the delay in deciding his case by the Railway Authorities after the High Court had remanded it back with a directive to start the departmental inquiry afresh from the stage that the procedural deficiencies had crept in. Although the 10 O.A.No.522/2013 & C.P.No.49/2013 Hon'ble High Court's order was to dispose and finalise the departmental proceedings within a period of six months, Railways took 44 months to finalise the Disciplinary Proceedings and in the process the applicant lost precious time where he could have been considered for DRM's post. For this inordinate delay which is unjustified the applicant should not be made to suffer in his career progression.
(iii) The applicant has also challenged the practice of the Railways to post General Manager (OL) only from those Officers who worked as DRM. It is his contention that there is no such rule nor there is any transparent guideline issued by the Railway Board in this regard which has been made public.
(iv)Similarly, practice of mentioning fitness for GM (OL) in the A.P.A.R. Of the officers has been challenged by the applicant. He has specifically challenged the Note No.2 in paragraph No.4 under the heading, Grading and Fitness which reads as follows:
(ii) Fitness for GM (OL) shall be 11 O.A.No.522/2013 & C.P.No.49/2013 given in respect of those officers who have worked as DRMs (Please see column
5 (b) of part -1). It is his contention that this requirement has not been spelt out in any rules or published guidelines of the Railway Board.
(v) The applicant has also drawn the attention of this Tribunal to the A.P.A.R. For the period from 05.09.2011 to 31.03.2012 wherein the Reporting Officer has made him Fit for posting as General Manager (Open Line) with a remark N.B.: vide his representation forwarded to Board, he is considered fit for GM openline in view of his performance in present assignment. The Reviewing Officer who was Member Engineering in the Railway Board reported Yes. I agree. He could not work as DRM, due to administrative reasons. He has the required maturity and leadership qualities to work as GM/OL. In order to prepare him for this he may be posted as AGM. However, the Chairman, Railway Board as the Accepting Authority has noted While I agree with the assessment and sentiments expressed by the Reviewing Officer Shri Gupta is unfortunately not eligible for posting as AGM, not having worked as DRM. The applicant claims that this is in direct 12 O.A.No.522/2013 & C.P.No.49/2013 contrast to the assessment of the previous year as recorded in the APAR for the period from 1.4.2011 to 1.9.2011. In this report under the Col. Fitness for Promotion for the Posts of GM and GM (OL) stamping has been done as Not Eligible. Although it is not clear what the Reporting Officer had written about his fitness as AGM and GM (OL) and the Reviewing Authority has simply said I agree.. Accepting Authority who was the Member (Engineering), Railway Board has noted I agree. due to peculiar circumstances, he could not be posted as DRM ang got his HAG promotion, I consider him fit for DRM, AGM, GM (OL) This was confirmed by the Chairman Railway Board and he gave his endorsement dated 25.10.2012 as confirmation of fitness for G.M.(OL) . The same Chairman, Railway Board has changed his opinion in less than two month's time, without any valid reason. The applicant, therefore, contends that due to the peculiar facts and circumstances, he is eligible for GM (OL) more so because he is prepared to work as DRM, even at this late stage, foregoing his pay in HAG, just to acquire the experience as DRM and to make himself eligible for the post of GM (OL). The applicant has repeatedly stressed that he was prepared to work as DRM right from the date he was exonerated and made repeated representations to the higher authorities to post him as DRM. It is his contention that denying him posting as DRM in April 2011 on the ground that he was being considered for 13 O.A.No.522/2013 & C.P.No.49/2013 promotion to HAG is unfair because he could have been posted much earlier as DRM had his disciplinary case been finalised early without a delay of forty four months and he could have also been posted as DRM in December 2010 itself, when he was exonerated. He had also agreed to forego the pay of HAG, just to get the experience of working as DRM. The respondents have done injustice to his career by not posting him as DRM with the possibility of his not being considered for GM (OL) and Member Railway Board at a later stage.
(vi) The applicant brought to our notice that his immediate junior Shri Anirudha Jain came to be posted as DRM on 9.10.2007 and subsequently many of his juniors have been posted as DRM. Consequently it is possible that many of his juniors will be posted as GM (OL) and he might be deprived of this opportunity.
5. The applicant has relied upon a number of citations to support his case. In the case of Harla vs. the State of Rajasthan A.I.R. (38) 1951 SC 467 the Apex Court had held, natural justice requires that before a law can become operative it must be promulgated and published. It must be broadcast in some recongnisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable regulation or customs, 14 O.A.No.522/2013 & C.P.No.49/2013 a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means. Promulgation or publication of some reasonable sort is essential. It is the contention of the applicant that the provision regarding working as DRM as an eligibility for promotion to the post of GM (OL) has not been made public and therefore, cannot be used against those Officers who have not worked as DRM. The applicant has also cited the judgement in the case of Union of India and Ors. vs. K.V. Jankiraman and Ors. (1991) 4 SCC 109 wherein the Hon'ble Apex Court has held that in a case where the disciplinary case was pending against the official if he is exonerated he should be promoted from the date on which his immediate junior was promoted. In the State of Orissa and Anr. vs. Mamata Mohanty (2011) 3 SCC 436 the Hon'ble Apex Court had held that not only must State not be arbitrary but must not be seen to be so every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion It should neither be suggestive of discrimination nor give an impression of bias, favouritism and nepotism. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same --
In yet another case, viz. Union of India and 15 O.A.No.522/2013 & C.P.No.49/2013 Anr. vs. Hemraj Singh Chauhan and Ors. (2010) 1 SCC (L&S) 1002 wherein the Hon'ble Apex Court held that:
35. both the Central Government and State Government are to act as a Model Employers, which is consistent with their role win a Welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. The applicant has relied upon the case of S.B. Bhattacharjee vs. S.D. Majumdar and Ors. (2007) 10 SCC 513 wherein the Hon'ble Apex Court had held that although a person has no fundamental right for promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of a service of an employee including his right to be considered for promotion in-disputably are governed by the rules framed under the provisions appended to Article 309 of the Constitution of India. The applicant has therefore, pleaded for his fundamental right to be considered for promotion to the post of G.M. (OL) by the Railway Authorities.
6. The respondents in their reply have refuted the claim of the applicant for the post of DRM and his challenge to the provision regarding the requirement 16 O.A.No.522/2013 & C.P.No.49/2013 of DRM posting for the post of GM (OL) on the following grounds.
(i)The posts of AGM GM (OL) are not promotional posts. They are ex-cadre posts and therefore, it is not a must that, all officers in HAG should be posted as AGM and GM (OL).
(ii) The applicant is well aware that only officers in SAG can work as DRM. Since he has already been given the Grade of HAG he is no longer eligible to be considered for the post of DRM. He is also over-aged since the age limit for consideration to the post of DRM is 52 years.
(iii) The Applicant was not considered for posting as DRM since he was being considered for promotion to HAG. The posting orders for the DRM came out in April 2011 and the applicant got his promotion in HAG in August 2011. Since the DRM is at SAG level he was not offered posting as DRM in view of his impending promotion. Although the applicant has expressed his willingness to work as DRM in the SAG foregoing his pay in the HAG he has never agreed that he was prepared to forego his promotion to HAG to work as DRM.
(iv) The applicant has only a right to be 17 O.A.No.522/2013 & C.P.No.49/2013 considered for promotion. Since there is no fundamental right for promotion the Railway Board has considered his name for posting as DRM and decided to overlook him since he was on the verge of promotion to HAG.
(v) The applicant was exonerated on technical ground by the Hon'ble High Court and after the exoneration the Railway Authorities have taken some time to decide his case. But the applicant never approached the Hon'ble High Court for expediting the disciplinary proceedings and therefore, he was also a party to the whole process which took around 44 months to finalise. Having forfeited his chance to agitate before the Hon'ble High Court on the matter of delay, he cannot protest at this stage before this Tribunal.
(vi) The applicant's O.A. is barred by limitation since his major grievance about not being considered for the post of DRM arose in April, 2011 when he was not posted as DRM. He has approached this Tribunal belatedly only on 5th September, 2013 after a delay of two and a half years.
(vii) Learned counsel for the respondents has drawn the attention of the Tribunal to 18 O.A.No.522/2013 & C.P.No.49/2013 letter No. No.E(O)III/Spl./2013/38 dated 02.12.2013 in which the Railways have carried out the orders of this Tribunal and after considering the applicant's representation have decided that the applicant cannot be posted as DRM since he is in HAG and is already over-aged. The respondents contend that the present O.A. has become infructuous because of this subsequent order which the applicant has not cared to challenge.
(viii) Apart from being barred by limitation the applicant is also barred by principle of estoppel since he is out of his own volition accepted the higher grade of HAG, having fully known that by accepting this Higher Administrative Grade he has made himself ineligible to be posted as DRM which is an SAG level post. By his own action for accepting his Higher Grade, he has forfeited the right to be considered for the post of DRM.
(ix) The posting of DRM and GM (OL) is governed by guidelines which have been issued from time to time by the Railway Board. The Resolution 1986 dated 16.7.1986 issued by the Railway Board, has been valid for a number of years, as guidelines 19 O.A.No.522/2013 & C.P.No.49/2013 for appointment to posts of G.Ms and equivalent in Railways. The objective of this scheme was to lay down clear guidelines for selection of officers from amongst the various Railway Services for appointment to posts of General Managers and equivalent in the Indian Railways, so as to provide equitable opportunities for the members of the various services and to ensure that these posts are manned by persons of prove ability and competence, having due regard to the specific requirement of each post, for the smooth and efficient running of the Railway system. Accordingly in para 6, under Assessment of suitability: the Railway Board has clearly stated the Selection Committee will assess the suitability in all respects of officers belonging to the Group 'A' Services listed in Appendix II on merits, based on the record of their service and experience and any special requirements of the post(s) for which selection is to be made. In judging the suitability of the officers, the Selection Committee will give due consideration to their performance, as Divisional Railway Managers and as Principal Heads of Departments in the Railways. 20 O.A.No.522/2013 & C.P.No.49/2013 These Guidelines of the Railway Board have been published as Resolutions of the Railway Board VIDE NO. E(O)III-84 PM6/132 dated 16.7.1986 in the Gazette of India (Ordinary) sent to the Manager, Govt. of India Press, Mayapuri, Ring Road. The respondents have challenged the contention of the applicant that the guidelines have not been published and are not transparent.
(x)The Applicant is not correct in stating that seniority alone is the criteria for being posted as DRM. There are other officers also who have not been posted as DRM despite their seniority. The learned counsel for the respondents quoted the case of Smt. Sunita Bassi who was not posted as DRM despite being the senior most among the IRTS Officers in 1981. It is the contention of the respondents that mere placing in the Panel is not a guarantee for posting as DRM. It does not give any indefeasible right for posting. It gives a right only to be considered and in the present case, the applicant has been considered and not posted because of his impending promotion to the HAG grade.
(xi) The Board's power to post as DRM and GM (OL) cannot be challenged in this Tribunal because this Tribunal has no power to post 21 O.A.No.522/2013 & C.P.No.49/2013 any one to any post. This Tribunal does not have power to examine the suitability of any candidate for a posting.
(xii) There is only one Chairman of Railway Board and 7 Members. It is not correct on the part of the applicant to claim that he is going to be a Member in the Railway Board because it is difficult to predict at this stage who will become a Member. In the list of IRSE Officers (SAG) and above as on March 2012 there were 52 Officers as per seniority and the applicant's name was at Sr. No.45, it is therefore, not clear how the applicant can claim to be a Member in the Railway Board superseding so many officers.
(xiii) The Annual Performance Appraisal Report (APAR) forms have been designed keeping in mind the guidelines issued by the Railway Board for posting of AGM's and GM's and the experience of the Officers and their performance. The Reporting Officers, Reviewing Officers and the Accepting Authority are required to clearly indicate the fitness for promotion to the important post like AGM and GM (OL) considering the above factors. There is nothing wrong in this requirement in the APAR.
7. The learned counsel for the respondents has 22 O.A.No.522/2013 & C.P.No.49/2013 analysed the citations quoted by the applicant and has stated that the judgment in those cases are not applicable mutatis mutandis to the case of the applicant. For example, in the case of K.V. Jankiraman and Ors (supra) the Hon'ble Apex Court has dealt with the case of candidates whose case is kept in sealed cover which is not the case for the present applicant.
In the case of UOI vs. Hemraj singh Chauhan and Ors. (supra) the Hon'ble Apex Court's judgement dealt with the matter of promotion whereas the G.M. (OL) post is only an ex-cadre post.
The case of State of Orissa and Anr vs. Mamata Mohanty (supra) will not be applicable since there is no illegality in the order passed by the authorities in the present case. The judgement on publication of Rules in the Harla's case (supra) is valid in the facts and circumstances of the present case since the guidelines by the Railway Board have been published in the Official Gazette.
8. The respondents, on their part, have relied on a number of cases and citations to substantiate their arguments. The main contention in the citations revolves around the power of this Tribunal and the averment that no courts can interfere in the matter of promotion and posting. They have quoted the case of State of Bihar and Anr vs. Arvind Kumar and Anr. (2012) 12 SCC 395 in which the Hon'ble Apex Court has 23 O.A.No.522/2013 & C.P.No.49/2013 relied upon the judgement in the case of Manish Goel v. Rohini Goel (2010) 4 SCC 393 and quoted para 14 as under:
14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions.
The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. In the case of State of West Bengal vs. Subhaskumar Chatterjee and Ors. the Hon'ble Apex Court held that Mandamus cannot be issued compelling State to act contrary to law State is under obligation to follow statutory rules and cannot act contrary to rules Court cannot direct Government to act contrary to rules -Such directions may result in destruction of rule of law Constitutional courts having power of judicial review, have jurisdiction only in case of unjust treatment by State action or inaction - In the case of Indian Railway Service of Mechanical Engineers Association and others, Civil Appeal No. 2389 of 1993 , the Hon. Apex Court had held this court has constantly taken the view that the court hardly interferes with matters of policy of the government.
9. We have heard the learned counsels for both the sides. We have also examined the documents submitted and the various rules and guidelines issued by the Railway Board from time to time. We are 24 O.A.No.522/2013 & C.P.No.49/2013 aware of the position that for a Government official right to promotion is not an indefeasible right but right to be considered for promotion is fundamental. We are also of the view that if an act of injustice would have perpetrated on an employee, it needs to be examined and corrected if possible. In this case, there are certain facts which are incontrovertible but they co-exist with certain situations which are redeemable. We propose to discuss them in the following paragraphs.
(i) A perusal of the records show that the applicant has had an outstanding career. The entries in his Annual Appraisal Report show him to be an officer of maturity and good leadership. In normal course he would have risen in the ladder of promotion as per his eligibility and proficiency. His career got a setback because of the Disciplinary Proceedings against him. It is pertinent to note that the Hon'ble High Court had passed an order in April 2007 wherein the Writ Petition was disposed of by the Hon'ble High Court. Punishment Order and other impugned order were quashed and set aside on ground of procedural infirmities which in effect was upholding the orders of this Tribunal. The Hon'ble High Court remanded the case back to the Disciplinary Authority for initiating the 25 O.A.No.522/2013 & C.P.No.49/2013 process of Disciplinary Proceedings from the stage the lacunae/infirmity in procedure had crept in. The respondents have not given any satisfactory explanation why the period of six months stipulated by the High Court was exceeded by as much as thirty eight months and finally case was disposed of with an exoneration of the applicant after a gap of forty four months. This has resulted in gross injustice to the applicant depriving him of the opportunity to be posted as DRM. Even the applicant could have been posted as DRM immediately after his reinstatement in service when his juniors were already working as DRM. The reason why experience as DRM is insisted on for the posting as GM (OL) is that exposure to the post of DRM enhances the ability of an officer to discharge the functions of GM (OL). In the maze of the elaborate structure of the Railways the post of GM (OL) is one of the most important assignments. It requires thorough understanding of the operational aspects of Railways quick decision-making ability and a total grip over the entire gamut of technical and nontechnical activities ensuring the successful running of the Railways. The post of DRM is a 26 O.A.No.522/2013 & C.P.No.49/2013 significant step towards acquiring such experience and expertise and therefore, a stint as DRM is accorded the required priority when an officer is being considered for posting as GM (OL). Having deprived the applicant of this exposure because of the delay in finalising his Disciplinary Proceedings the Railways should have posted him as DRM immediately on his reinstatement. The applicant had made a number of representations to the Railways to expedite his disciplinary proceedings. We do not agree with the contention of the counsel for the respondents that he was party to the delay. It has been brought to our notice that during the pendency of the Disciplinary Proceedings the Railways have filed as many as five Civil Applications before the High Court for extension of time to complete the inquiry, which were all dismissed on a single-day by the Hon'ble High Court because of non-prosecution.
(ii) We are tempted to quote the case of UOI and Anr. vs. Hemraj Singh Ch ahan and Ors. (2010) 1 SCC (L&S) 1002 where the Hon'ble Apex Court has clearly stated that the State should be a model employer and in the present case, we fail to understand how 27 O.A.No.522/2013 & C.P.No.49/2013 Railways have acted as a model employer by delaying the Departmental Proceedings despite the clear order by the Hon'ble High Court to finalise it within six months time. Nor have they cared to utilise the services of an efficient officer by posting him as DRM.
(iii)We do not agree with the contention of the respondents that the applicant is affected by the doctrine of estoppel by simply accepting promotion to the post of HAG. A promotion to a higher grade is a coveted position for any Government Official. The fact that the post of DRM is operated at SAG level is known to the applicant and therefore, he offered to work in that level foregoing his pay at HAG although strictly speaking this is not required. It is not unusual in Government that a person holding a higher pay can work on a lower grade. It is only the opposite which is more or less impossible. A person at a lower grade is not expected to work in a post of higher grade.
(iv) In this case, Railway have also acted in a biased manner by simply saying in their letter No. NO. E(O)/III/Spl/2013 dated 2.12.2013 that the applicant has become over-aged and hence cannot be posted as DRM. When they are fully responsible for the applicant getting 28 O.A.No.522/2013 & C.P.No.49/2013 over-aged due to the delay in finalising the Disciplinary Proceedings despite the orders of the Hon'ble High Court to finalise such proceedings in six months, they are not expected to punish the applicant by first delaying the Departmental Proceedings and then denying him the post of DRM which will make him eligible to be considered for GM (OL). We are of the considered view that the action on the part of the respondents in denying posting to the applicant as DRM on the ground that he was being considered for the HAG, is wholly arbitrary, irrational and untenable and the same cannot stand in the eyes of law.
(v)On the contention of the Respondents that the applicant is just one of the 52 Officers in IRSE as on March 2012 and therefore, there is no guarantee that he will become a Member in Railway Board, the learned counsel for the Applicant has rightly brought to our attention the date of superannuation of his colleagues vis-a-vis his date of superannuation and the fact that he will retire much after them gives him a fair chance to become Member in Railway Board. But unless he is posted as GM (OL) he will not be eligible to become a Member, Railway Board.
(vi) That brings us to the question whether the requirement of posting as DRM for 29 O.A.No.522/2013 & C.P.No.49/2013 priority in posting as GM (OL) is correct in law. Here we stand in agreement with the respondent. We do not agree with the contention of the applicant that there is a lack of transparency in the rule governing the post of DRM, GM (OL). As we have discussed in the preceding paragraphs exposure to the post of DRM will certainly add to the ability and eligibility of the officer to hold the post of GM (OL). The fact that the Railway Board has issued guidelines from time to time on such posting and published them in the official gazette of the Union makes these guidelines completely transparent and hence they are legally valid. We are, therefore, not inclined to interfere with this provision nor are we inclined to interfere with the format of the APAR. The requirement of assessing the suitability/fitness of an officer in his APAR for posting at various levels is a welcome step and needs to be continued. We find no illegality or invalidity in this provision. However, coming to the main contention of the applicant that he should be posted as DRM to make him eligible as GM(OL) we hold that this is a valid prayer and needs to be considered by the respondents.
30O.A.No.522/2013 & C.P.No.49/2013
(vii) We have called for the official records with regard to the DRM posting which was considered in File No.2011/SCC/15/02. We do not find any reasons recorded for overlooking the case of the applicant. In our considered view, there is a serious lack of transparency in the decision on posting of DRMs. There is no discussion in the note file to examine/analyse the merits and demerits of any candidate. Officers have simply been picked up and proposed for the post of DRM without any justification for such posting.
10. Keeping in view the above facts, we are inclined to partly allow the O.A. The applicant should be posted as DRM forthwith to give him exposure required to be considered as GM (OL). We also order that in case the respondents do not post him as DRM it will not stand in his way to the post of GM (OL). This particular handicap will not be held against him, because it is our considered view that the Railways are squarely responsible for delay in finalising his Disciplinary Proceedings and in the process depriving him of the opportunity of working as a DRM as per his turn. The O.A. is allowed only to this extent. There is no order as to costs.
11. The C.P.No. 49/2013 is dismissed as infructuous in view of our order in the above Original 31 O.A.No.522/2013 & C.P.No.49/2013 Application.
(A.J. Rohee) (Dr. Mrutyunjay Sarangi) Member (J) Member (A) sj*