Central Administrative Tribunal - Allahabad
N C Rly Engineers Association vs General Manager N C Rly on 1 November, 2023
OA/575/2014
(Reserved on 05.10.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 1st day of ______November____, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No.330/575/2014
1. North Central Railway Engineers Association (N.C.R.E.A.), an
association of Group C Supervising Engineers of North Central Railway,
registered under the Socities Registration Act, 1860 and affiliated to the All India
Railway Engineers federation, office at, 1090, Isaai Tola, Khati Baba, Jhansi-
U.P., through its Finance Secretary, S.K. Gupta, Senior Section Engineer/ NCR/
TRS, Jhansi.
2. Pooran Singh Sharma, aged about, 60 years, Son of , Sri Chiranji Lal
Sharma, Resident of, 16 J, Moti Enclave, Aurangabad, Mathura, Presently posted
as Senior Section Engineer ( Carriage and Wagon), at Baad, North Central
Railway, Agra-U.P.
3. B.N. Gupta, aged about 56 years, Son of, Sri Mathura Prasad Gupta,
Resident of, Quarter No. 940 B, Railway Colony ( West) RB (III), Jhansi-U.P.
Presently posted as Senior Section Engineer, in the office of the Senior Divisional
Electrical Engineer, North Central Railway, Jhansi-U.P.
. . .Applicants
By Advocate : Shri Shyamal Narain
VERSUS
1. The Union of India, through the General Manager, North Central Railway,
Allahabad.
2. The General Manager (Personnel), North Central Railway, Allahabad-
(U.P.).
3. The Chief Mechanical Engineer, North Central Railway, Allahabad-(U.P.).
4. The Chief Electrical Engineer, North Central Railway, Allahabad-(U.P.).
5. The Railway Board, through the Chairman, Rail Bhawan, New Delhi.
OA/575/2014
6. Sri Balbir Singh, son of, Sri Raghu Nath Singh, Loco Pilot (Mail), North
Central Railway, Agra Cantt.
7. Sri Raj Kumar Dwivedi, son of, Sri A.P. Dwivedi, Loco Pilot (Mail), North
Central Railway, Agra Cantt.
8. Sri Akhilesh Singh, son of, Sri Pratap Singh, Loco Pilot Mail (Electrical),
North Central Railway, Jhansi
9. Nitin Kumar Sharma, aged about 47 years, S/o, Sri Om Prakash Sharma,
Working as CLI/HQ/Allahabad, r/o, 336-A, Rail Gaon, Subedarganj, Allahabad.
10. S.K. Tyagi, aged a bout 49 years, S/o, Sri Jagdish Prasad Tyagi, CLI/Agra,
r/o, A-2, West Arjun Nagar, (Near Shishu Bharti School), Agra-U.P. 282001.
11. Narendra Kumar Yadav, aged about 51 years, S/o, Sri Banshi Lal Yadav,
CLI/Agra ( AGC), r/o, D-105, South Railway Colony, Agra Cantt. - U.P. -
282001.
12. Vipin Kumar Srivastava, aged about 47 years, S/o, Sri Prem Kishor
Srivastava, CLI/Agra Cantt. (AGC), r/o,51/225/A-12, Sindhi Colony, West Arjun
Nagar, Agra-282001
13. Naresh Chandra Srivastava, aged about years, S/o, Sri S.P. Srivastava, r/o
House No. 164/2, Tehsil Ke Pichhe, Jhansi- U.P. Pin Code-284001.
. . .Respondents
By Advocate : Shri K P Singh, Shri Anil Kumar
Shri Anand Kumar, Shri Sudama Ram
Shri R K Tiwari, Shri S M Mishra, Shri L M Singh
ORDER
( By Hon'ble Dr. Sanjiv Kumar, Member(Administrative) This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 claiming relief to quash the impugned Eligibility Lists of candidates, as prepared and appended to notifications dated 13.09.2013,06.02.2014,12.03.2014 & 04.04.2014 issued by the Headquarters Office, North Central Railway, Allahabad, on the subject of Selection for promotion from Group 'C' to Group 'B' to the post of Assistant Mechanical Engineer/Assistant Works Manager (AME/AWM), against 70% promotee quota vacancies for formation of 'Provisional Panel' for the year 2011-2013 in the Mechanical Department of the North Central Railway , also to quash and set Page 2 of 29 OA/575/2014 aside the impugned Railway Board order dated 25.04.2011 (RBE No. 53/2011), providing for equating the lower Grade Pay of the Running Cadre with the higher Grade Pay of the Stationary cadre for the purposes of determining eligibility of candidates for promotion/selection to Group 'B' posts and also to quash and set aside the impugned integrated inter-se Eligibility/Seniority List dated 08.01.2014, prepared and issued by the Headquarters Office, North Central Railway, Allahabad for the purposes of making Selection for promotion from Group 'C' to Group 'B' to the post of Assistant Electrical Engineer against 70% promoted quota vacancies for the year 2011-2013, in the Electrical Department of the North Central Railway. Prayer has also been made to direct the respondents to make the proposed promotions from Group 'C' to the Group 'B' post of Assistant Mechanical Engineer/Assistant Works Manager (AME/AWM), in the Mechanical Department, and the post of Assistant Electrical Engineer in the Electrical Department, of the North Central Railway, against 70% promote quota vacancies for the year 2011-2013, only after preparing fresh eligibility lists for the purpose, ignoring the Railway Board Order dated 25.04.2011 (RBE No. 53/2011), and strictly in terms of the rules and provisions existing on the subject, prior to issuance of R.B.E. 53/2011 and issue a direction which this Tribunal may deem fit and proper and also awards costs.
2. On various grounds as in the OA, counter reply has been filed by the respondents on 31.07.2014 & 10.12.2014 on behalf of respondent nos. (9-13) and supplementary counter affidavit on behalf of respondent no. 9-13 on 23.05.2016. No rejoinder has been filed on record.
3. The case came up for final hearing on 05.10.2023, Shri Shyamal Narain, learned counsel for the applicants and Shri M K Sharma as well as Shri Anand Kumar, learned counsel for the respondents were present and heard. Page 3 of 29
OA/575/2014
4. We have carefully gone through the entire records and considered the rival contentions of the parties.
5. The brief facts of the case are that the applicant no. 1, the North Central Railway Engineers Association (N.C.R.E.A.) which is an association of Group 'C' supervising Engineers of North Central Railway registered as a society under the Societies Registration Act, 1860 and affiliated to the All India Railway Engineers Federation. This original application is filed by applicant no. 1 in a representative capacity on behalf of its members which forms the class of Supervising Engineers working as Senior Section Engineers under the North Central Railway, and constituting the feeder cadre for making promotions to the Group 'B' post of AME/AWM in the Mechanical department and AEE in the Electrical department. By means of the instant OA the applicant no. 1 is seeking redress for its members against the impugned orders.
6. Learned counsel for the applicants states that resolution dated 24.02.2014 was passed at a meeting of the NCREA to file a case at Hon'ble CAT Allahabad against the orders impugned herein, and the present OA is being filed in pursuance of the aforesaid resolution, through the Finance Secretary of Applicant No.1 who has been duly authorized for the purpose. The applicant nos. 2 & 3 are members of the aforesaid association/Society, presently working on the Group 'C' post of Senior Section Engineer in the Mechanical and Electrical departments of the North Central Railway at the places indicated against their names in the array of parties and have joined Applicant no. 1 in filing the present OA since they are personally aggrieved and affected by the order impugned herein. Furthermore, it is stated that Mechanical, Electrical and Civil departments under the Railways constitute three very important technical wings of the organization and engineering posts under these departments are called safety category posts carrying well-specified technical qualifications as given in the relevant Recruitment Rules framed for the purpose. The present OA is specifically Page 4 of 29 OA/575/2014 concerned with the Mechanical and Electrical departments of the North Central Railway and the cadre of Junior Engineers/Senior Section Engineers in the Mechanical and Electrical departments is called the cadre of Supervising Engineers, and falls in the category of Group 'C' posts. The next higher post, above the Group 'C' post of Senior Section Engineer in the promotional avenue of the Mechanical Department is the Group 'B' post of Assistant Mechanical Engineer/Assistant Works Manager. In The Electrical Department, promotions from the Group 'C' post of Senior Section Engineer are made to the Group 'B' post of Assistant Electrical Engineer. The vacancies in Group 'B' posts are filled up by promotion on the basis of selection of eligible Group C employees on the criteria of merit-cum-seniority and also on the basis of Limited Departmental Competitive Examination (LDC), where applicable. Presenlty, promotions to the Group B posts of AME/AWM and AEE are made by the respondents to the extent of 70% of the vacancies by means of a selection on the criteria of merit-cum- seniority, and to the extent of 30% of the vacancies, through LDCE. The prescribed frequency of holding the selections under both, 70% and 30%, quota is once in every two years. While the conditions for eligibility for consideration for promotion to Group B posts under both the quotas referred to above is prescribed in the relevant recruitment rules, certain instructions have been issued by the Railway Board on the subject, from time to time.
7. They draw our attention to the Railway Board's letter dated 29.03.2010 RBE No. 46/2010, on the subject of elegibility conditions for promotion from Group C to Group B posts in the major departments having 'Organised Services (except Accounts Department), wherein it is stated that following the implementation of the pay scales recommended by the 6th Pay Commission, the matter regarding eligibility conditions for appearing in the Selection/LDCE for promotion to Group B had been considered and it was decided that for the 70% quota selection, Group 'C' employees working in Pay Band-2 [9300-34800] and Page 5 of 29 OA/575/2014 above, with 3 years of non-fortuitous service in the grade [including non- fortuitous service rendered in the correspondents pre-revised grades] will be eligible. Significantly, it was clearly stipulated in the circular that, "In the integrated seniority of Group C employees eligible for Group B selections [70% quota], employees in Pay Band-2, [9300-34800] with Grade Pay of 4600 will be placed above those in Pay Band-2 [9300-34800] with Grade Pay of 4200/-. In either category, the relative seniority of employees coming from different streams will be determined with reference to length of non-fortuitous service in the Scale of PB-2+ 4600 or PB-2+ 4200, as the case may be''. And as regards the size of the zone of consideration for selections under the 70% quota, the extant instructions provide that if the number of vacancies is 1, the number of candidates to be called shall be 5, if the number of vacancies is 2, the number of candidates to be called shall be 8, if the number of vacancies is 3, the number of candidates to be called shall be 10, and if the number of vacancies is 4 or more, then the number of candidates to be called shall be three times the number of vacancies. The instructions regarding 70% quota selection further provide that the notice to be issued for the purpose, besides containing the names of eligible employees constituting the field, should contain a reserve list carrying the names of extra eligible employees with the indication that the latter would be called for the written examination in the event of some of the eligible employees in the main list were to drop out.
8. They further say that as regards the integrated seniority of employees belonging to different streams/seniority units for the purpose of promotion to Group B Posts, it was provided that where employees from different streams were eligible to appear for the purpose of selection, their integrated seniority should be determined on the basis of total length of non-fortuitous service rendered in the grade of Rs. 6500-10500 and above. In other words, the date of appointment to grade of Rs. 6500-10500 on a non-fortuitous basis will be the criterion. Further, it Page 6 of 29 OA/575/2014 was laid down that in determining the integrated seniority of employees coming from different streams, the inter-se seniority of employees within each stream should be maintained. They further aver that the selection test itself, for promotion from Group C to Group B, under 70% quota, consists of a paper on Professional Subject and Establishment and Financial Rules worth 150 marks out of which, the professional subject carries, at least, 100 marks. The minimum qualifying marks prescribed for the written test is 90 out of 150. Besides, the candidates successful at the written test are further subjected to a Viva voce test worth 25 marks, and 25 marks are allotted for the candidate's record in service, which is assessed objectively on the basis of the grading awarded on the last five years' Confidential Reports. And they say that out of 50 marks allocated to Viva Voce and record of service, the minimum qualifying marks is 30, including, at least, 15 marks in record of service. They further say that essential minimum qualification prescribed for the posts of Junior Engineer/Senior Section Engineer in stationary posts is Diploma/Degree in Engineering, whereas for the post of Assistant Loco Pilot, the said requirement is an I.T.I. Certificate. Earlier, as per Railway Board's directives, an employee was held eligible to appear at the 70% or 30% quota selection/LDCE for promotion to Group B, only if he possessed a diploma or equivalent in the discipline of Engineering . However, this position was somewhat diluted vide Railway Board letter dated 13.10.2003 with a view to providing opportunity to even non-diploma holders to get promoted to Group B gazette technical cadre, which is the feeder cadre for Group A posts. However, in practice, the above mentioned requirement of a minimum length of non-fortuitous service in grade the minimum of which was Rs. 5000/- as a condition of eligibility, coupled with the fact that where employees from different streams were eligible to appear for the 70% quota selection, their integrated seniority used to be determined on the basis of total length of non-fortuitous service in grade Rs. 6500-10500, and above, ensured that in the 70% selection, for the most part, it Page 7 of 29 OA/575/2014 was candidates with qualifications in engineering, serving as Senior Section Engineers, who constituted the bulk of the eligibility list, and got promoted to the Group B Post, and not Loco Pilots, since Loco Pilots with comparatively lower pay scales would figure very low in the integrated eligibility lists prepared for the 70% quota selection. In order to substantiate the aforesaid ground reality, the applicants are bringing on record copy of the notification dated 31.12.2009 issued for 70% quota selection in the Mechanical Department of North Central Railway for the years 2007-2009 and 2009-2011, and the eligibility list appended thereto. A mere glance at this list would show that it was, almost exclusively, consisting of Senior Section Engineers drawing the Grade Pay of Rs. 4600/- and there was only one Senior Loco Inspector from the Running cadre therein, that too, fairly low down, at serial no. 38, in the reserve list. The same position would emerge from a bare reading of the eligibility list issued by the North Central Railway on 03.07.2011 for the purpose of making 70% quota selection in the Electrical Department for promotion to the Group B post of AEE for the period 2009-2011. The applicants say that however, all of a sudden, the Railway Board drastically sought to change the rules of the game by issuing the impugned order dated 25.04.2011 (R.B.E. No. 53/2011) on the subject, "Comparison of grades of running staff with those of stationary staff for the purpose of promotion/selection to Group B posts". By means of this order, it was conveyed that the question of equivalence of grades had since been reviewed in the light of the scales of pay introduced on the basis of pay scales recommended by the 6th Central Pay Commission and it had been decided that for the purpose of determining eligibility of the candidates for promotion/selection to Group B posts, the grades of running staff may be equated with those of the stationary staff as per the table given in the said order. The applicants point out that from the equating table contained in RBE No. 53/2011 that Loco Pilots (Mail/Express), Loco Pilots (Passenger)/Motor Man and Goods Driver and Senior Shunters, all in Page 8 of 29 OA/575/2014 PB-2 and having the Grade Pay of Rs. 4200/- have been equated with the holders of stationary posts in PB-2 with the higher Grade Pay of Rs. 4600/-. All the aforesaid posts in the running cadre have artificially been given parity and equivalence with the posts of Senior Section Engineers in the stationary cadre of Supervising Engineers for the purpose of making selections for promotion to the Group B posts of AME/AWM and/or AEE in the Mechanical and Electrical Departments, respectively. They further point out that further down the equating table, the posts of Shunter and Senior Assistant Loco Pilots in PB-1 with Grade Pay of 2400 have been equated with stationary posts in PB-2 with Grade Pay of 4200.
9. They further point out that careful reading will show that the impugned order RBE No. 53/2011 dated 25.04.2011 fails to disclose any rationale, logic or purpose behind the forced equivalence sought to be brought about between the posts of the running cadre having lower Grade Pay and the stationary posts carrying a higher Grade Pay for the purposes of promotion/selection to Group B posts. By means of one sweeping order, the Railway Board has sought to upset, upturn, reverse, negate and nullify all the hitherto existing provisions, norms and rules in place governing the drawing up of eligibility lists for making promotions/selections from Group C to Group B posts, particularly under the 70% quota, in the Engineering Departments. And as per them, it is wholly incomprehensible as to how by a simple executive order of fiat, the Railway Board could see to undermine and rescind the long-standing statutory rules and provisions contained in the Indian Railway Establishment Manual governing the selection/promotions to Group B posts. They contend that since the impugned order R.B.E. No. 53/2011 was wholly arbitrary, unreasonable, capricious and fraught with serious, far-reaching and disastrous implications upon the career aspirations, seniority and promotional prospects of the cadre of Supervising Engineers, a detailed and comprehensive representation dated 29.07.2011 was Page 9 of 29 OA/575/2014 moved by the All India Railway Engineers Federation, before the Chairman, Railway Board, vehemently protesting the offending RBE No. 53/2011, pointing out its fatal flaws and pitfall and requesting for its immediate withdrawal. They further say that specifically it was contended in the aforesaid representation that since a Loco Pilot gets three normal promotions during his service tenure in Group C there was no need or justification for forcing artificial equivalence between posts in the running cadre with lower Grade Pay and posts in the stationary cadre carrying higher Grade Pay, that too by, impliedly, waiving off the minimum academic/technical qualifications prescribed for appointment by promotion to gazette Group B posts in the Engineering Department.
10. They further say that unfortunately, however, the aforesaid representation dated 29.07.2011, failed to evoke any response whatsoever, and the illegal RBE No. 53/2011 dated 25.04.2011 was sought to be implemented. Due to its deleterious implications when the North Central Railway issued a Notification dated 05.06.2013, publishing and circulating an inter-se seniority list for the purposes of making promotions under the 70% quota to the Group B Posts of AME for the assessment years 2011-2013, clearly stating that the same had been prepared in accordance with RBE No. 53/2011 dated 25.04.2011 and inviting representations against the same. The aforesaid inter-se seniority list, because of the inclusion of staff of the running cadre whose lower Grade Pay had been equated with the higher Grade Pay of the stationary staff of the Engineering cadre by virtue of RBE No. 53/2011 was packed with Loco Pilots and the Engineering cadre staff, ironically, stood reduced to a small minority even though the proposed selection for which the inter-se seniority/ eligibility list had been drawn was for making promotion to gazette Group B posts in the Engineering Department. A joint representation against the aforesaid inter-se seniority list dated 05.06.2013 was submitted by a large number of Supervising Engineers, before the Chief Personnel Officer NCR, Allahabad and it did not fetch any Page 10 of 29 OA/575/2014 response, and another representation dated 05.08.2013 was moved by a large number of Senior Section Engineers. Pursuant to the aforesaid representations, the respondents proceeded to issue a Notification dated 13.09.2013 for making selections for promotion under both, the 70% quota and 30% quota (LDCE) in the Mechanical Department to the Group B post of AME/AWM and appended to this notification was an eligibility list/reserved list in Annexure A and B, which had an overwhelming preponderance of Loco Pilots and other staff of the Running Department, whereas candidates from the Engineering department were few and far between and so aggrieved by their almost complete exclusion from the inter-se eligibility/seniority list due to the havoc played by the offending RBE No. 53/2011, a large number of Senior Section Engineers moved a detailed representation dated 14.10.2013 before the Member (Staff) Railway Board, New Delhi, setting forth their grievances and anguish and praying for relief. In furtherance of the first Notification dated 13.09.2013, issued for making selection under the 70% quota for promotion to the Group B post of AME/AWM in the Mechanical Department, the respondents have issued further Notifications dated 06.02.2014, 12.03.2014, and finally 04.04.2014, appending thereto eligibility lists based upon the professed willingness/unwillingness of candidates. However, the basic fact common to all the eligibility lists is that they are all packed with staff from the Running cadre, to the near disappearance of Senior Section Engineers from the zone of consideration altogether. One example shall suffice to nail the patent absurdity and illegality inherent in the impugned RBE No. 53/2011 which has resulted in a paradoxical situation wherein Applicant no. 2, whose name was featuring at Serial No. 36 in the eligibility list drawn for making promotions under the 70% quota in the Mechanical Department vide a Notification dated 31.12.2009, slipped to Serial No. 67 in the eligibility list appended to the recent Notification dated 06.02.2014, and now, when the final eligibility lists have been issued vide Notifications dated 12.03.2014 and 04.04.2014, his name has been Page 11 of 29 OA/575/2014 pushed out of the list altogether. This fate has befallen scores of other persons as well and the sole reason for which is the mischief caused by the impugned RBE No. 53/2011. And by Notification dated 01.10.2013 an inter-se seniority/eligibility list was circulated by the Headquarters office, North Central Railway, Allahabad, for the purpose of making promotions under 70% quota to the Group B post of AEE in the Electrical Department for the assessment years 2011-2013, ostensibly on the basis of guidelines issued vide Railway Board order dated 24.03.2019, and with the clear averment that the said seniority list had been prepared as per the 5th CPC on the basis of the date of promotion of employees to the grade of 6500-10500, only for the purpose of Group B Selection examination. By means of a covering letter, objections to the said seniority list was also packed with staff from the running cadre to the detriment and exclusion of the staff from the cadre of Supervising Engineers, again owing to the impugned RBE No. 53/2011 dated 25.04.2011. Ignoring the representations of the applicants the respondents are gone ahead and issued a final inter-se seniority list dated 08.01.2014 for the purpose of making promotions under 70% quota to the Group B post of AEE in the Electrical Department for the assessment years 2011-2013. And the net result of the artificially equation forced between the staff of the running cadre with lower grade pay and the much better qualified staff of the stationary supervising cadre of Engineers with higher grade pay has been the pushing down of the stationary staff so low in the inter-se seniority/eligibility list as to be altogether excluded from the 70% selection for promotion to Group B post since the normal zone of consideration is kept to only three times the number of vacancies to be filled up. The applicants contend that apart from the illegalities, defects and infirmities in the impugned orders and actions of the respondents in pushing through the badly flawed R.B.E. No. 53/2011 dated 25.04.2011, as pointed out in the course of this OA, their actions are also in contravention of the Railway Board order dated 26.09.2012 (RBE No. 107/2012) Page 12 of 29 OA/575/2014 which clearly stipulates that the seniority of government servant which existed on 04.09.2008 will be maintained i.e. the holder of post having higher pay scale or post which constituted promotion post for the posts in the feeder cadre will rank en block senior to those holding posts having lower pay scale or the posts in the feeder grade. The said order further makes it clear that where posts having different pay scales prior to 6th CPC recommendations and now after merger have come to lie in the same Pay Band with same Grade Pay, the inter-se seniority of all the employees will be fully maintained with employee in a higher pre-revised pay scale being placed higher vis-à-vis an employee in a lower pay scale. Significantly, it is mandated that "within the same pre-revised pay scale, seniority which existed prior to revision would continue." Hence, they conclude that implementation of RBE No. 53/2011 is in clear contravention of RBE No. 107/2012 dated 26.09.2012. They further state that this anomaly in the Railway Board's instructions, as contained in the impugned RBE No. 53/2011 dated 25.04.2011 have also been pointedly noticed and commented upon by Sri Alok Johri, Member Mechanical, Railway Board in his inspection notes relating to the performance of the Mechanical Department of the North Central Railway. Hence, they want to convey that the impugned RBE No. 53/2011 is badly vitiated in law, being irrational and de' hours the settled rules, provisions and norms governing selections / promotions to Group B posts; hence liable to be quashed and set aside. The impugned eligibility lists, prepared on the basis of the same and is defective, erroneous and unsustainable in law, therefore, deserves to be quashed. Based on this they had also asked for interim relief in condition to the relief to quash the impugned order, to restrain the respondents from making any selections/ promotion. On 12.06.2014, following orders were passed:-
" In view of the above, interim relief as prayed for by the applicants subject to the condition that the panel/ promotion shall not be declared Page 13 of 29 OA/575/2014 pending decision in this OA. the respondents are directed to file a detailed counter affidavit before the next date".
But subsequently, vide order dated 22.10.2014, the respondents with the approval of the competent authority , the selection for the post of AME/AWM ( Group B) in pay Band Rs. 9300- 34800+ G.P. 4800/- against 70% promoter quotation Mechanical Department for the assessment year 2011-2013 was cancelled on the grounds of some anomaly in the inter se seniority of the running staff. It was brought to the notice of this Tribunal on 04.05.2017 and orders were pronounced on 30.05.2017 " ....As such the stay granted by this Tribunal vide order dated 12.06.2014 has become infructuous. Accordingly, MA filed by the respondents for vacation of stay order has also become infructuous and is rejected'.
11. From the submissions of the applicants and the documents filed by them, it is evident that they are basically agitating against RBE No. 53/2011 dated 25.04.2011, the impugned Railway Board order providing for calculating Grade Pay of running staff with the higher grade pay of the stationary cadre for the purpose of determining eligibility conditions for promotion/ selection of the Group B posts and their Main contention is that because of this the balance of convenience impugned is in favour of the running staff who were less qualified and were in lower cadres and grade and who were unable to find earlier any place in the zone of consideration and selection list, and now they are all in large number in the zone of consideration as well as selection list published, pushing out the better qualified stationary staffs who had higher grade pays etc. Their contention is that this is a new policy introduction and is basically executive order which is to be only prospective in nature and the lower grade people who are equated to higher grade pay on the date of this new RBE No. 53/2011 i.e. 25.04.2011, the authorities should consider the said date only the start of their non-fortuitous service of the lower grade running staff for entering into higher grade pay for being equated to the stationary staffs grade pay and their non- Page 14 of 29
OA/575/2014 fortuitous service should be counted prospectively from this date and hence, most of them would not be eligible and come within the zone of consideration as executive orders cannot be retrospective and from the date of entry into the lower grade equivalence of running staff cannot be taken as non- fortuitous service quota. They further argue that this RBE No. 53/2011 is in contravention of the existing RBE 107/2012 etc.
12. Official respondent nos. (1-5) have filed their detailed counter wherein they say that in terms of provisions contained in Chapter II of Indian Railways Establishment Manual, the Group B vacancies in the department having organised services are filled to the extent of 70% through Selection and the remaining 30% through Limited Departmental Competitive Exam (LDCE). The eligibility conditions of the candidates for promotions from Group C to Group B posts are governed by the statutory Recruitment Rules/ Orders. They point out that Railway Board Circular No. E (GP) 2002/2/65 dated 13.10.2003 regarding educational qualification for appointment to Group B posts through promotion on the basis of Selection/LDCE and eligibility conditions for appearing in the Selection/LDCE for promotion to Group 'B' posts in the cadres having 'Organised Services' are reviewed and modified in commensuration with the recommendations of the Pay Commission constituted from time to time. Consequent upon implementation of the Pay scales recommended by the 6th Pay Commission, the pay scales of Rs. 5000-150-8000 and Rs. 5509-175-9000 have since been merged and placed in an identical revised pay Band/ Scale of Rs. 9300-34,800 with Grade Pay of Rs. 4200. Similarly, the pay scales of Rs. 6500- 10500 & Rs. 7450-11500 have been merged and placed in an identical revised pay Band/ Scale of PB-2+GP of Rs. 4600. Therefore, the eligibility conditions for promotion to Group 'B' posts have been modified for all the cadres having ' Organised Services' except Accounts Department in terms of instructions contained in Railway Board's letter dated 29.03.2010 which says:- Page 15 of 29
OA/575/2014
(a) For 70% Selection/30% LDCE employees working in Pay Band PB-2(Rs.
9300-34,800) with Grade Pay of Rs. 4200 and above with 3/5 years of non-forfuitous services (including service rendered in the pre- revised grades) are eligible.
And in terms of para 203.5 of IREM Vol.I, the date of appointment to the grade Rs. 6500-10,500 on a non- fortuitous basis will be the criterion for drawing the integrated seniority if the employees from different streams are eligible to appear for the selection and for 70% Selections (except for Group 'B' post of APO), a fixed zone of consideration depending upon the number of vacancies is determined on the basis of seniority. For 30% LDCE, seniority has no relevance at all and all employees who fulfill the specified eligibility conditions can appear for the examination. The respondents specifically state that in the late 70s complaints were received from running staff that when they have to compete for promotion with non- running categories, they are basically often not selected and placed on the panels i.e. get very low positions on the panels because of their scale of pay being lowest among other eligible categories. The pay scales of running staff are depressed owing to running allowance being paid to them. The matter was accordingly considered by the Board and in order to remove the disadvantageous position of the running staff in such cases, Railway Board vide their letter no. E(NG) I- 78/PM1/ 305 dated 15.06.1979 issued instructions regarding comparable scales of running staff to that of stationary staff. Under these instructions, a table of equivalent grade after adding roughly 30% to the actual scales of pay of running staff was adopted for the purpose of comparison with non- running categories for promotion/ selection. As the same position persisted while forming Group 'B' panels also, it was decided that the equivalence of grades prescribed in the aforestated letter, will also apply for the purpose of selection to Group 'B' post for determining the relative position of running staff in the combined seniority list of Page 16 of 29 OA/575/2014 staff eligible to be considered in the selection. In this regard, instructions were issued vide Railway Board letter no. E(GP) 80/2/122 dated 04.08.1982. These instructions were further revised with reference to posts/ scales operative in running categories vide Board's letter no. E(NG)I-89/PM2/8-A dated 10.01.1992 and letter no. E(NG)I-9/PM2/8 dated 01.10.1999 after revision of pay scales in pursuance of recommendation of 4th & 5th CPCs. In terms of Railway Board's letter No. E(GP)2095/2/87 dated 02.02.2006, it was clarified that the aforementioned instructions are equally applicable for determining eligibility of the candidates to Group 'B' posts also. They further state that thereafter it was brought to Railway Board's notice by the Federation that the Drivers and Guards are still not being considered for selection to the concerned Group B posts against 70% promotional quota as they do not generally come in the zone of consideration. Therefore, vide Railway Board's letter no. E(GP)2005/2/07 dated 02.06.2006 instructions were issued for taking note of earlier Railway Board's letter no. E(GP)80/2/122 dated 04.08.1882 and E(GP) 2005/2/87 dated 02.02.2006 regarding equivalence of grades of running staff and those of Non- running staff while determining the eligibility of running staff for promotion to group B posts of AOM/AME/AEE, both under 70% selection as well as 30% LDCE and consequent upon implementation of sixth CPC recommendations, Group B posts the matter regarding comparison of running staff with those of stationary staff for promotion selection to Group B posts was again reviewed. However, it was observed that the same was no longer required in respect of selections to non-gazetted posts as in terms of instructions contained in Board's letter No. E (NG)I- 2008/PM74 SLP dated 19.06.200, for promotion to general posts where panel is required to be formed on the basis of merit seniority has no role to play. Though, for promotion to Group B posts in PB 2 + GP Rs. 4800 staff in PB2 + GP Rs. 4200 and PB2+ plus GP Rs. 4600 are eligible however while preparing integrated seniority list for 70% selection only those in PB 2 + Page 17 of 29 OA/575/2014 grade pay Rs. 4600 may come in the zone of consideration as running staff has been placed in PB 2+ grade pay of Rs. 4200 therefore they would not have come in the zone for being called for 70% selection. Hence, the question of establishing equivalence was considered reliant so far as promotions to Group B post is concerned, therefore, on persistent demands from the railways the matter was reviewed in consultation with zonal railways Accordingly Railway Board's letter no. E(GP) 2005/2/87 dated 25.04.2011. Instructions have been issued for the equivalence of grades of running staff with that of stationary staff for the purpose of determining eligibility of the candidates for promotion/ selection to Group B posts in the light of the revised pay scales recommended by the 6th Central Pay Commission and in terms of instructions contained in Railway Board's letter no. E(GP) 2002/2/65 dated 13.10.2003, educational qualification of degree/ diploma in engineering is not required as an eligibility condition for promotion from group c to group b posts in non-technical/ technical departments. And in terms of provisions contained in chapter 2 of Indian Railways establishment manual vol. 1 (IREM) the group B vacancies in the departments having organized services are filled to the extent of 70% through selection and the remaining 30% through limited departmental competitive exam (LDCE) the eligibility conditions of the candidates for promotions from group c to group b posts are governed by the statutory recruitment rules /orders under 5th CPC in terms of Railway Board's letter no. E(GP) 99/2/22 dated 22.07.2004 group C employees working in the grade of Rs. 5000 and above with 3/5 years of non-fortuitous service were eligible for appearing in the 70% selection or 30% LDCE for promotion to group B posts in the Cadres having organized services "except in the personnel department. The instructions for the same stipulated that the relative seniority of Group C employees in grades of Rs. 6500-10500 and Rs.7450-11500 coming from different streams for the purpose of selection is to be determined on the basis of total length of non-fortuitous service rendered in any or both the Page 18 of 29 OA/575/2014 grades." Further on consequent upon implementation of 6th CPC, the eligibility conditions relating to pay scales were modified for all the cadres having organized services (excluding accounts department) in terms of instructions contained in Board's letter no. E(GP) 99/2/ 22 dated 29.03.2010. These were:
a) For 70% selections or 30% LDCE for group B posts employees working in pay band PB2 (Rs. 9300 to 34800) with Grade Pay of Rs. 4200 and above with 3/5 years of non- fortuitous service including service rendered in the pre-revised grades are eligible .
b) While preparing the integrated seniority of group C employed eligible for group B selections 70% employees in pay band PB2 with grade pay of Rs.
4600 will be placed above those in pay band PB2 with grade pay of Rs. 4200 United Category the relative seniority of employees coming from different streams will be determined with reference to length of non- forutitous service in the scale of PB 2 + GP Rs. 4600 or PB 2 + GP Rs. 4200 as the case may be. This was done due to the merger of the pay scales of Rs. 5,000 - 150 - 8,000 and Rs. 5,500 - 175 - 9,000 which have been merged and placed in an identical revised pay band/ scale of Rs. 9300 to 34,800 with grade pay of Rs. 4200. Similarly the pay scales of Rs. 6500- 1050 and Rs. 7,450 -11,500 have been merged and placed in an identical revised Pay Band /scale of PB 2 + GP of Rs. 4600 .
13. The respondents further say that basic criteria for drawing of integrated seniority list for grade B selection continued to be governed by para 203.5 of IREM vol.1 as amended vide ACS no 181 dated 05.01.2006 i.e. date of appointment to the grade Rs. 6,500- 10,500 on a non-fortuitous basis being the criterion for drawing the integrated seniority if the employees from different streams are eligible to appear for the selection.
14. They further say that running staff , the frontline personnel on the Indian Railways who drive freight and passenger trains and guards, who are also eligible Page 19 of 29 OA/575/2014 to appear in the Gr. B selection on the railways have been historically placed in comparatively lower pay scales vis-a-vis stationary staff on account of the running allowance being paid to them and were in a disadvantaged position in selections to group c as well as group b posts wherever, pay scales are stipulated as one of the eligibility criterion. Therefore, there were demands from the NFIR and AIRF the recognized railway unions as well as associations of the running staff to bring them at par in so far as their eligibility is concerned for appearing in the competitive examinations and this has been done from 1979 by the process of establishing equivalence between running staff and stationary staff. Running staff belong to safety category posts on IR and their well-being and motivation levels are critical to the operational efficiency of the railways. And 70% selections held for promotion to group B posts the zone of consideration is restricted as it is based on seniority as mentioned above the local running or traffic running staff were not coming in the zone of consideration for 70% selection due to lower positions in the combined seniority list of the eligible employees even though they fulfilled the eligibility criteria of working in the pay scale of Rs. 5,000 and above and also fulfilled the stipulation of minimum years of non-fortuitous service. Therefore, to enable the running staff, to overcome the pay disadvantage, in the integrated seniority lists being prepared for the 70% selections held for promotions to group B posts in the mechanical engineering, electrical engineering and traffic departments, they are grades were equated with those of the stationary staff as under the letter no. E(NG) I-98/PM2/8 dated 01.10.1999. under 5th CPC also, the following recommendations :-
Category of Running Staff Scale of Pay Scale of
applicable stationary post to
Rs. which equated
Rs.
I Loco Running
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OA/575/2014
I Mail/Express Drivers/Sr, 6000-9800 6500-10500
Passenger Driver/ Sr.
Motormen
II Passenger Drivers/ 5500-9000 6500-10500
Motormen/Sr. Goods
Drivers
III Goods Drivers 5000-8000 5500-9000
IV Sr. Shunting Drivers 5000-8000 5500-9000
V Shunting Driver 4000-6000 5000-8000
VI Sr. Diesel Asstts./ Sr. 4000-6000 5000-8000
Elect. Asstt./ Sr. 1st
Fireman
VII Diesel Asstt./Elect. 3050-4590 4000-6000
Asstt./1st Fireman
II Traffic Running
I Mail Guards/Sr. Passenger 5500-9000 6500-10500
Guards
II Passenger Guards/Sr. 5000-8000 5500-9000
Goods Guards
III Goods Guards 4500-7000 5500-9000
IV Sr. Asstt. Guard 4000-6000 5000-8000
V Asstt. Guard 3050-4590 4000-6000
15. The respondents point out that the afforstated pay scales of the running staff, whose apex grade was Rs. 6000- 9800 that they were at a disadvantage in not coming within the zone of consideration for the 70% selection held for promotion to Group B posts as in terms of para 203.5 of IREM Vol.I, as amended Page 21 of 29 OA/575/2014 vide ACS No. 181 dated 05.01. 2006 the date of appointment to the grade Rs. 6500- 10,500 on a non- fortuitous basis was the criterion for drawing the integrated seniority if the employees from different streams are eligible to appear for the selection. Therefore, as has been emphasized earlier, this important category (running staff) was losing out in terms of promotional avenues in view of the depressed pay scales allocated to them and therefore to include them in list of eligible candidates, their pay scales were equated with that of stationary staff, who had the apex grade of Rs. 7450 - 11500 also vide instructions contained in Board's letter No. E(NG) I-98/PM2/8 dated 01.10.1999 (5th CPC scales) and under the 6th pay commission as mentioned above the pay scales of Rs. 5000-150- 8000 and Rs. 5,500-175-9000 have been merged and placed in an identical revised pay band / scale of Rs. 9300-34800 with Grade pay of Rs. 4200 and the pay scale of Rs. 6500 - 10500 & Rs. 7450-11500 have been merged and placed in an identical revised pay band / scale of PB-2 + GP of Rs. 4600. Accordingly, the eligibility conditions for promotion to Group B posts also modified as submitted above. Therefore, following categories of running staff, who were earlier eligible for promotion to Group B posts (after being equated with the pay scales of stationary staff) were rendered ineligible for Group B LDCEs:-
Category of Scale of Pay Scale of Pay Band Grade Pay (VI CPC) Running staff applicable (V stationary (VI CPC) Rs.
CPC) Rs. post to Rs. which equated (V CPC) Rs. I. Loco Running I Shunting Driver 4000-6000 5000- 5200-20200 2400 8000 II Sr. Diesel Asstt./ 5000- 5200-20200 2400 Page 22 of 29 OA/575/2014 Sr. Elect. Asstt./ Sr. 8000 1st Fireman II Traffic Running I Goods Guard 4500-7000 5500- 5200-20200 2800 9000 II Sr. Asstt. Guard 4000-6000 5000- 5200-20200 2400 8000
16. They further state that in a terms of instructions laid down for drawing the integrated seniority list for framing the zone of consideration for the 70% selection as mentioned in para 2.1 above, the following category of running staff were placed at a disadvantage and there were chances of their not finding a place at all in the integrated seniority list (As they have been granted the epics grade of Rs. 4200 / only ):
Category of Pay applicable Stationary Band Pay Running (V CPC) Rs. post to (VI CPC) (VI CPC) Staff which Rs. Rs. eqated (V CPC) Rs. I Loco Running I Mail/Express 6000-9800 6500- 9300- 4200 Driver/Sr. Passenger 10500 34800 Driver/Sr. Motormen II Passenger 5500-9000 6500- 9300- 4200 Drivers/Motormen/Sr, 10500 34800 Goods Guard/Driver II Traffic Running I Mail Guard/Sr. 5500-9000 6500- 9300- 4200 Passenger Guards 10500 34800 Page 23 of 29 OA/575/2014
17. They further say that in order to include these large number of frontline running staff in the mainstream and afford them an opportunity for career progression in Gr. B through participation in the selections held for Group B posts, it was again essential to provide them the equivalence with stationary staff who had been given the apex grade pay of Rs. 4600 /- in the 6th CPC while the Epics grade 4 running staff was 4200. Accordingly the impugned instructions were issued vide Railway Board's letter no. E(GP) 2005/2/87 dated 25.04.2011.
But for these instructions the aforementioned staff who were hitherto eligible for selections to Group B posts would have been deprived of the opportunity of participating in the selection and their channel for promotion to Group B would be drastically reduced or even stopped as they being in the lower grade pay of Rs. 4,200/- would always be lowest in the integrated seniority for 70% Group B selections , the employees in Pay band PB2 with grade pay of Rs. 4600 being placed above those in pay band PB2 with grade pay of Rs. 4200/- .
18. Pursuant to the aforesaid instructions it is stated that the running staff who otherwise would have hardly figured in the zone of consideration for promotion to group B posts are only being made eligible for appearing in the selections and they have to prove their mettle in this selections along with the stationary staff in spite of their orduous nature of duty They do not get any other relaxation or benefit.
19. It would not be out of place to mention that based on the afforementioned instructions, selections/LDCEs for Group B posts are being smoothly conducted for not only mechanical department i.e. AME (to which the current applicants belong ) but also in the electrical (AEE) and traffic transportation department (AOM) to which guards belong on other zonal railways also and no complaints have been received in this regard from any other quarter.
20. It is also reiterated that the running staff belong to safety category posts on Indian Railways and their well being and motivation levels are critical to the Page 24 of 29 OA/575/2014 operational efficiency of the railways. The Group B posts of AME cannot be left unfilled and the selections may be allowed to continue as per the existing guidelines and rules established by the Indian Railways. There are 15 vacancies of AMEs/AWMs on NC Railway out of total 29 posts i.e. more than 50%. The last selection was held more than 4 years back on 29.04.2010.
21. When these selection processes involve various stages like calling for options finalizing of eligibility list, pre selection coaching, preparation of question paper, conducting of written test and supplementary examination, review of service records and performance reports, viva voce etc. Current selection was initiated in December 2011 and is at last stage of finalization; only viva voce test is due to be held. The post of assistant mechanical engineer is a front line post dealing with control and running of trains, maintenance of coaches and wagons, maintenance of diesel locomotives etc. In case of accident, mishaps, the AMEs have to rush to site with accident relief and rescue operations. As the relevant circulars is in practice since 1979 till now, which has already mentioned in the brief facts, in view of the same it is drawn to say that they have been artificially equating the lower grade pay of those running staff with the higher grade pay of the stationary staff for the purpose of determining eligibility of candidates for promotion / selection to Group B post, in terms of railway board order dated 25.04.2011 bearing no. 53/2011. At this stage it cannot be challenged and the same has been perfected by efflux of time. They further say that contention of para 1 (iii) Off the original application are denied and not admitted. So in the eligibility list dated 08.01. 2014 by the headquarter of office NCR for the purpose of making selection for promotion from Group C to Group B to the post of Assistant Electrical Engineer against 70% has been correctly issued. As already submitted above that regarding equivalents of pay scales for the purpose of eligibility of group B, the Railway Board has a large numbers of preceding circulars since 1979 till now and these are being smoothly implemented perfected Page 25 of 29 OA/575/2014 in another zones. There is no ground which has been made out by the applicants to interfere with the impugned orders. The applicants' OA has no merit and the same may be dismissed.
22. Respondents have not specifically mentioned anything about RBE 107 / 2012 dated 26.9 2012 mentioned in para 4.9 of OA. In para 65 they array the contents of para 4.41 of the original application and have denied and not admitted in view of detailed submission made in the preceding paragraphs, it is submitted that the integrated seniority / eligibility list has been correctly issued in view of the RBE number 53 / 2011 after giving place to the running staff also and any allegation contrary to the same are denied.
23. A simple perusal of Annexure 19 at page 124 which is mentioned by the applicants in para 4.41 and para 4.42 of the original application is about the status of promotion made between date of effect and date of implementation of recommendations of 6th CPC and seniority of a staff in merged grades in pursuance of recommendations of 6th CPC and is dated 26.9.2012 which is later than the impugned RBE number 53 of 2011 dated 25.04.2011. The applicants relied on the second para " these posts having different pay scales prior to 6th CPC Recommendations and now after merger have come to lie in the same pay band with same grade pay the inter-se seniority of all the employees will be fully maintained with employee in a higher pre-revised pay scale being placed higher vis-a-vis an employee in a lower revised pay scale being placed higher with this and employee in a lower pay scale within the same pre-revised pay scale seniority which existed prior to revision would continue ."
24. A simple reading of this para shows that it is about merger of different pay scales after instruction of 6th CPC and not about classification and not equating of pay scales for the purpose of deciding inter se seniority for promotion about which RBE number 53/2011 dated 25.4.2011 gives details. Hence, both are not the same subject and not comparable. Although there can be superficial Page 26 of 29 OA/575/2014 similarities between them but the contention of the applicants that RBE number 53 / 2011 is in contravention of RBE 107 / 2012 dated 02.06.1992 is not correct and convincing. As explained in a number of circulars about the equivalence between running staff and the stationary staff, it is evidently clear that it is nothing new, and the same is coming since 1999, being revised after every pay revisions. Their various circulars have come successively one after other, and since the year 1999 it has not been challenged and set aside, so the principle herein is perfected by efflux of time and cannot be challenged at this belated points of time. As has been explained by the respondents, it is based on the criteria that the Running staff emoluments is artificially lower as it has two components basic pay and allowances plus running allowances because they get running allowance. So generally they have slightly lower fixed pay and because of this they were put to disadvantage when they were compared with the stationary staff and their higher pay package. And as they are very very important stakeholders and are involved in day to day running of the trains and are considered as safety categories of employee, the Railway Board consciously made the order no. 53/2011. Hence, the Department since 1999 have been equating running staff with stationary staff and lower running grade staff with slightly higher grade stationary staff for the purpose of inter se seniority for determining the zone of consideration for promotion is not a new principle introduced by the impugned RBE No. 53/2011. And as these are reasoned decisions by the respondents and have been in practice in all other zones since very long time we are not convinced, there is anything irregular in them. Hence, contesting the same at this stage is not having any convincing basis, and there is no ground to interfere with RBE no. 53/2011.
25. Private respondent nos. (9-13) have also submitted their counter reply wherein they give the same process of selection how it has been gone through and Page 27 of 29 OA/575/2014 that it is as per rules prescribed and so they say that the promotion process should be completed and those who are eligible should be given promotion accordingly.
26. Hence, from the records made available before us, we are quite convinced that there is sound basis on which the Railways have been making equivalence between the running as well as stationary staffs and RBE No. 53/2011 dated 25.04.2011 is not passed on any new principle which evolved in 2011 but has been in practice for quite long time. On record we can see as at page 58 of the counter, a circular dated 04.08.1982 no. E(GP) 80/222 of Railway Board on the subject comparison of grades of running staff with stationary categories for the purpose of selection. Further at page 59-60 another Railway Board RBE No. 6/92 dated 10.01.1992 is there on the same subject comparison of Grades of running staff with those of stationary staff for the purpose of promotion/selection of staff followed up by RBE no. 254/99 dated 01.10.1999 on the subject comparison of grade of running staff with those of stationary staff for the purpose of promotion/ selection.
27. The applicants have not filed any rejoinder nor do they in any way denied the existence of these old circulars based on the same principle of equivalence between running and stationary staff which is the basis for the impugned RBE No. 53/2011. Hence, we categorically find that the present circular is in line with the already established principle of equivalence between running and stationary staff for the purpose of promotion and hence, the principle enunciated in the Railway Board's letter dated 25.04.2011 in RBE No. 53/2011 is perfected by time and cannot be challenged at this stage. So, we do not find any grounds to interfere with that order; consequently the whole process of selection based on the said circular cannot be challenged at this stage. So, the other notifications challenged dated13.09.2013, 06.02.2014, 12.03.2014 and 04.04.2014 also cannot be challenged and the provisional panel of the year 2011-2013 in the Mechanical Department of the North Central Railway has to be further taken to its logical Page 28 of 29 OA/575/2014 conclusion and so none of the subsequent steps taken and impugned integrated inter se seniority list dated 08.01.2014 prepared and issued by the Headquarters Office, North Central Railway, Allahabad can be interfered with at this stage. Hence, the present Original Application is disposed of with following directions:-
As pointed out by the applicants through examples and numerous illustrations, after the introduction of the RBE No. 53/2011 the prospects of stationary staff for coming within the zone of consideration and promotion has substantially dwindled, so we find a cause for concern and caution, and the Railway Board should institute a multi-disciplinary Committee to look into the anomaly to find out and suggest if there are possible solution for a win-win situation for both stationary and running staff who are equally important for the organization and without their full co-operation, safety and efficiency will be compromised. And one of the possible solution could be proportionate reservation in promotions to their respective cadre strengths of the running and stationary cadres who compete for the common promotional posts. Such a Committee may be constituted and a report obtained and acted upon in 6 months' time. Till then, based on the prevailing Circulars and RBE No.53/2011, promotion may be effected as envisaged. If the Committee does not find any amicable solution, the respondent competent authority shall pass a speaking order to that effect and make available a copy of the same to the applicants in this case. The whole process should be completed in six months' time.
28. All associated MAs also stand disposed of, accordingly. No costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member-A Member-J
/Priyadarshana/
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