Central Administrative Tribunal - Allahabad
Jagroop Singh vs Union Of India on 19 July, 2023
Reserved on 06.07.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 19th day of July, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 1421 of 2014
Jagroop Singh s/o Late Ram Khilawan Singh, r/o - Arsh Nagar
(Dhussa), Post - Pipal Gaon, District - Allahabad
........... APPLICANT
By Advocate: Shri O.P. Gupta
Versus
1. Union of India through General Manager, NCR, Allahabad.
2. Senior Divisional Commercial Manager, Allahabad Division, NCR,
Allahabad.
3. Divisional Railway Manager, Allahabad Division. NCR, Allahabad.
..........RESPONDENTS
By Advocate: Shri Rajni Kant Rai
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri O.P. Gupta, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"(i) to direct the respondents to treat the applicant as promoted on the post of Senior Section Engineer (C&W) with retrospective effect from 31-1-2011 and to re-fix his pay in the Pay Band Rs 9300-34800 + Grade Pay 4600 w.e.f. 31-1-2011 by allowing him benefit of two increments i.e. for the Jan. 2011 and Jan. 2012 and to make payments of difference of pay arrears accordingly to the applicant.
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(ii) to direct the respondents further to re-fix his pension and to make payment of pension arrears accordingly to the applicant.
(iii) to pass such other order or directions to which this court may deem fit and proper in the facts and circumstances of the present case."
3. The compendium of the facts narrated in the instant original application is that the applicant is aggrieved for not being given promotion on the post of Senior Section Engineer in his department from the date it was accrued to him despite the fact that vacancies were there and he was eligible to be considered for promotion. Accordingly, by way of the instant original application, the applicant seeks a direction to the respondents to treat him promoted on the above post with retrospective effect from 31.01.2011 thereby granting him the consequential benefits. He also seeks a direction to the respondents to re-fix his pension in above terms and pay arrears accordingly.
4. Disclosing a brief history of the case, learned counsel for the applicant submits that the applicant while working as Technician II was promoted as Junior Engineer II in the year 1995 under the Divisional Mechanical Engineer (Carriage & Wagon), NCR Allahabad. Thereafter, he was again promoted from the post of JE-II to JE-I vide order dated 18.04.2002. Lastly, he was promoted as Senior Section Engineer on 26.03.2013.
5. Learned counsel for the applicant goes on to submit that applicant belongs to OBC category but he has never been allowed any service benefit of OBC. Learned counsel for the applicant submits that the existing grievance of the applicant is that despite there were sufficient vacancies available for the post of Senior Section Engineer, he was not considered for promotion. Vide promotion order dated 31.01.2011, ten Junior Engineers Grade - I were considered and promoted to Senior Section Engineer. Out of those ten persons, six were from general category. Subsequently, in the year 2012, four Junior Engineers - I were considered and
2|Page promoted to Senior Section Engineer vide promotion order dated 11.04.2012. All those four persons were from reserved categories and no one was from general category. Subsequently, in the year 2013, twenty Junior Engineers including the applicant were considered and promoted as Senior Section Engineers vide promotions order dated 26.03.2013. Out of those twenty persons, sixteen candidates were from general category and four belonged to reserved ones. Thus, the applicant's counsel submits that the applicant suffered perpetual financial loss of salary w.e.f. 31.01.2011 as if the applicant was also considered for the aforesaid promotion in the year 2011 itself, he would have drawn salary in the Pay band Rs. 9300-34800 + Grade Pay 4600 w.e.f. 31.01.2011 be getting the benefit of two more notional increments for the years Jan 2011 and Jan 2012.
6. Learned counsel for the applicant further submits that the above promotion was to be considered by the DPC on the basis of Seniority cum suitability. Next senior to the applicant namely one Nirmal Kumar was considered and promoted vide promotion order dated 31.01.2011. But some of the vacancies of general category were kept vacant and were not filled by the respondents at that time. Had this not been done, the applicant would have got promoted as well from the same date. Thus, learned counsel submits that the respondents acted illegally and arbitrarily and because of that, the applicant was deprived from his legal right of consideration for promotion.
7. Learned counsel for the applicant also submits that being aggrieved from the action of the respondents, the applicant submitted representations before the respondents on 22.04.2011, 26.08.2011, 28.02.2012, 04.06.2012, 27.11.2012, 13.05.2013, 09.09.2013, 25.04.2012 and lastly on 20.07.2014. However, the applicant failed to obtain the relief. Learned counsel for the applicant also submits that he demanded the correct position of vacancies of the general categories for the posts of Senior Section Engineers fallen in the Allahabad Division during the years 2010-2011, 2011-12 under the R.T.I Application however no reply was furnished. During the
3|Page pendency of this OA, again an RTI was filed on 12.08.2016 and vide letter dated 12.09.2016, the applicant was informed that in the year 2012, total 7 vacancies of general category for the post of Sr. Section Engineers had fallen vacant due to superannuation and death.
8. Learned counsel for the respondents vehemently opposes the submissions of the learned counsel for the applicant and by way of counter affidavit, he submits that in Railway there exist no provision of reservation for giving any benefit in promotion to any OBC candidates on community basis. The benefit to OBC is only permissible in Direct Recruitment quota and thus the contention of the applicant is not liable to be accepted.
9. Learned counsel for the respondents further submits that in terms of Railway Board instructions on implementation of 6 th CPC Merger of grades - Revised classification and mode of filling of non gazetted posts was modified vide RBE 161/2009 according to which the category of JE-I and JE-II was merged and the category of SE and SEE was merged and after merger the category JE GP 4200 and SSE GP - 4600 was left. The post of SSE was to be filled 20% by Direct Recruitment and 80% by promotion from Junior Engineers. Learned counsel further submits that as per records, there were total 11 vacancies in the category of SSE out of which 09 vacancies were for UR candidates and 01 vacancy was reserved for SC and other 01 for ST community against 80% quota prescribed for promotion from lower grade. Accordingly, the suitability with prescribed benchmark was conducted and the senior most 09 employees as per strict seniority position and 01 SC + 01 ST employee against reserved posts were considered from accelerated seniority. Learned counsel further adds that only much senior employees to the applicant were considered for promotion and even Shri Anuj Kumar Srivastava who was senior to Shri Jagroop Singh was also not considered for promotion. Therefore, the statement of the applicant that only candidates from general seniority were promoted is false and baseless.
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10. Learned counsel for the respondents further submits that as per records, it is evident that to fill up vacancies of SSE / C&W in the year 2012, the calculation was done as per Post Based Roaster. Total six vacancies were vetted by the R.P. Cell and concerned gazetted officer out of which four posts were reserved for SC and two posts were reserved for ST candidates. To substantiate his claim, learned counsel submits that in terms of the verdict of the Apex Court in several cases and in compliance thereof instructions issued by Railway Board, the Post Based Roaster has been implemented w.e.f. 10.02.1995 and the vacancies arose due to demitting office by the UR, SC or ST community candidates is filled by the candidates of same community, therefore, in the year 2012 the vacancies arisen due to vacation of Roaster points by SC, ST candidates were filled accordingly.
11. Learned counsel for the respondents also submits that the applicant was junior to all those candidates eligible against Promotion Quota in the zone of consideration and none junior to him was considered. Further, none junior candidate belonging to the same community (General) other than the applicant has ever been promoted earlier. The applicant was promoted on his term on occurrence of vacancy against 80% Promotion Quota. Thus, learned counsel submits that the grounds taken by the applicants are frivolous and the instant application is liable to be dismissed being devoid of merits.
12. Learned counsel for the applicant denies the submission of learned counsel for the respondents and by way of his rejoinder affidavit, submitted that a perusal of the promotion order of the year 2011 reveals that total 10 persons were promoted in the month of Jan 2011. Out of them, 6 persons from unreserved category (UR) and 4 persons from reserved category (3 from SC and 1 from ST).
13. In support of his averment, learned counsel for the respondents has placed reliance upon the judgment dated 10.08.2022 of the Hon'ble Supreme Court of India passed in Civil Appeal No. 3314 of 2010 along with Civil Appeal No. 5933 of 2010 and Civil Appeal
5|Page No. 9436 of 2010 titled Union of India and others Vs. Gopal Meena and others submitting that similar controversy as is prevalent in the instant case of the applicant was decided by the Apex Court in the above judgment thereby providing relief to the aggrieved candidate. Learned counsel submits that on the similar lines, the instant case deserves to be allowed in favour of the applicant.
14. Learned counsel for the applicant vehemently challenges the reliance placed upon by the respondents' counsel in the judgment quoted in the preceding paragraph submitting that the said judgment is not applicable in the instant case as the applicant herein is not claiming his promotion from retrospective effect on the basis of any reservation which is given to an OBC candidate. Instead, applicant herein claims promotion from retrospective effect from the year 2011 because the respondents have themselves agreed to the fact that in the year 2011, there were total 11 vacancies for the SSE out of which, 9 were for UR and 01 vacancy was there for SC and ST each. But according to the promotion letter pertaining to the year 2011, only 5 persons of UR category were promoted and 04 posts were left unfilled. Had all the vacancy posts were filled at that time itself, the applicant would have got a chance of promotion in that period.
15. We have considered the rival contentions advanced by the learned counsel appearing for the parties and gone through the documents on record and also perused the judgments referred.
16. As the facts of the case have been narrated above, the same are not reiterated for the sake of brevity. It is an admitted fact that the applicant had been working in the respondents' organization till 30.11.2013 when he was retired upon attaining superannuation. Although there is a delay in filing the instant original application as the cause of action arose in the year January, 2011 itself but the applicant was only filed in November, 2014. However, the delay already stands condoned in view of an earlier order of the Tribunal. Hence, the case is fit to be decided on its merits.
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17. The limited dispute which is required to be settled here is whether the applicant was liable to be promoted in the year 2011 itself or not to the post of Senior Section Engineer. It is an admitted fact that promotion to the above post was to be considered by the DPC on the basis of Seniority cum Suitability. It has been alleged by the applicant that one Shri Nimral Kumar who was next senior to him was considered and granted promotion in the same year but the applicant was left bereft. It has also been alleged that the applicant could only be granted the promotion to the above post in the year 2013 which ultimately denied him two notional increments which he would have otherwise got if granted promotion in the year 2011 itself.
18. By the respondents' own submission, there were total 11 vacancies of the post of Senior Section Engineer in the year 2011 out of which 09 vacancies pertained to UR category and 01 vacancy each was reserved for SC and ST community. However, a plain perusal of the promotion order dated 31.01.2011 reveals that a total of ten persons were promoted to the post of Senior Section Engineer which implies that one vacancy remained unfilled. Thus, it is evident that the promotion order dated 31.01.2011 suffers from discrepancy if the submissions of the respondents and order dated 31.01.2011 is compared with the promotion order. Therefore, on this very ground itself, the case of the applicant requires re-consideration.
19. Furthermore, as per respondents own submission through the RTI reply furnished to the applicant vide letter dated 12.09.2016, it has been stated that in the year 2012, total seven vacancies of general category for the post of Sr. Section Engineers had fallen vacant due to superannuation and death. Thus, the candidature of the applicant should have been considered for the year 2012 as well wherein only four promotions were made despite the fact that there existed more vacancies.
20. It is true that the applicant has not challenged the promotion order dated January 2011 or April 2012. Nonetheless, in view of the above quoted deliberations, this Tribunal is of the considered opinion
7|Page that the instant case of the applicant requires reconsideration specifically in view of the discrepancy that exists in the promotion order of the year 2011 and 2012. Therefore, the matter is liable to be partly allowed and is accordingly, partly allowed to the extent that the competent authority amongst the respondents is hereby directed to retrace the promotion orders of the year 2011 and 2012 and accordingly, reconstruct the same thereby granting promotion to the applicant by placing his name on the promotion order of the year 2011 or 2012 in accordance with the vacancy position and also on the basis of Seniority cum suitability. Once promoted, the applicant shall be granted the benefit of re-fixation of pay from the back date thereby allowing him the number of increments as accrue. The applicant's pension shall also be fixed accordingly thereby granting his all the consequential benefits. The order must be complied with by the respondents within a period of three months from the date of its receipt, without fail.
21. All associated MAs stand disposed of accordingly.
22. There shall be no order as to costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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