Central Administrative Tribunal - Delhi
Raghubir Singh vs Union Of India : Through on 23 November, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1755/2009 New Delhi, this the 23rd day of November, 2009 CORAM: Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) S/Shri 1. Raghubir Singh, S/o Mange Ram 2. Hari Prakash, S/o Ved OPrakash 3. Ajeet Kumar Kotya, S/o Khushi Ram 4. Varun Singh, S/o Fussan Singh 5. Navendru Garg, S/o Vishnu Dutt Gupta All of them working as Elect./Diesel Asstt. Loco Pilot under DRM, State Entry Road New Delhi Applicants (By Advocate: None) versus Union of India : Through 1. Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New Delhi 2. General Manager, Northern Railway, Headquarters Office, Baroda House, New Delhi 3. Divl. Railway Manager, State Entry Road, DRM Office, New Delhi Respondents (By Advocate: None) O R D E R By Dr. Veena Chhotray, Member (A):
Despite opportunities, no reply was filed by the respondents and their right to do the same was forfeited. As none appeared for the parties even on the second call, the present OA is being disposed of under rules 15 and 16 of the CAT (Procedure) Rules, 1987.
The applicants, 5 in number, are working as Electrical/Diesel Assistant Loco Pilot under the Northern Railway. Directly appointed to the post in different Railways and transferred to the Northern Railway on their own requests, the applicants are aggrieved at not being considered for selection to the post of Loco Pilot (Goods) Grade 5000-8000.
This is the third round of litigation. The first OA No.1458/2009 was disposed vide the Tribunals order dated 29.5.2009 (Annexure A/7) permitting the applicants to withdraw the OA with liberty to file a fresh application for the same cause of action. The second OA No.946/2008 was disposed vide the Tribunals Order dated 22.1.2009 (Annexure A/6) in which the relief claimed had not been allowed on the ground as the relevant Circular dated 21.3.2006 had not been challenged. However, the applicants had been given liberty to challenge the aforesaid Circular of the Railway Board in appropriate proceedings in accordance with law. This occasioned for filing the instant OA. It seeks the following reliefs:-
Quashing the impugned order dated 09.04.2008 regarding the selection for the post of Loco Pilot (Goods) and also circulating a list of the eligible candidates for appearing in the written test; Quashing the Railway Boards Circular dated 21.06.2006 on the ground that it interferes and infiltrates the law as laid down by the Apex Court; Issuing a direction to the Respondents to declare the the results of the applicants which has been placed in a sealed cover and if they have made the grade, they should also be given the consequential benefits; Pass any other or further relief as deemed fit and proper in the facts and circumstances of the case; and Award of costs of the proceedings.
2. The brief facts of the case are that the applicants had been directly appointed as Diesel/Electrical Assistants under the different Railways on different dates. Subsequently they were transferred to the Northern Railways on their own request in the same post. The applicant No.5 (Shri Navindu Garg) had been transferred on exchange basis with one Shri Chetan Murti and accordingly has been assigned the seniority from 07.03.2005 being the date of appointment of the latter. The remaining four applicants have been assigned bottom seniority on their transfer to Delhi Division. This fact has been accepted by the applicants and there is no dispute about it. The relevant particulars regarding the dates of initial appointment and those of joining the Northern Railways in respect of the five applicants as given in Para-4 of the OA are as under:
Name Date of Apptt. Railway Date of Joining NR Raghubir Singh 06.04.1998 S.E.C. Rly. 24.09.2006 Hari Prakash 01.03.2000 Western Railway 01.02.2006 A.K. Kotya 16.04.2004 Central Railway 13.07.2007 Varun Singh 22.02.2002 S.C. Railway 26.07.2007 Navendu Garg 29.11.2001 S.E.C. Rly.
19.07.2007 While the applicants were working in the Delhi Division, the respondents had initiated the selection process for the post of Loco Pilot (Goods) grade Rs.5000-8000 to fill up 445 posts, out of which 329 were unreserved, 49 reserved for SCs and 73 for STs. As per the prescribed qualifications, the eligibility norms are as follows:-
1. Two years service as First Fireman/Diesel Assistant/ Electric Assistant and
2. 60,000 Kms experience of foot-plate as Fireman/Diesel Assistant/Electric Assistant. The applicants claim is that despite their fulfilling the prescribed qualifications, their names had not been included in the eligibility list. As per Para 4.6 in the initial list of a total of 813 candidates circulated along with the first Notification dated 18.6.2007, only 2 applicants viz. Hari Prakash and Raghubir Singh had been included at serial nos. 432 and 433. Subsequently, however, the list was amended and in continuation of the earlier Notification another Circular dated 09.04.2008 issued prescribing the time schedule for holding the tests and also enclosing the revised eligibility list. As per the averment in this case, none of the applicants has found place (para 4.7 of OA).
4. In the above context, the OA has referred to the respondents Circular No. E(NG)I-2006/PM/I/5, dated 21.3.2006 (Annexure A-1A). This Circular was on the subject of counting of service rendered in the old unit on own request transfer for the purpose of qualifying service for promotion in new unit (R.B.E. No.34/2006) and was in partial modification of the earlier instructions contained in the Ministrys letter dated 17.4.1997 on the subject. As per the old policy, staff transferred on request basis were to be treated as direct recruits in the new seniority unit/cadre for the purpose of seniority and the service rendered in the absorbing unit alone counted for eligibility wherever a minimum length of service is specified as a condition for consideration for promotion including promotion to general selection post. This policy, however, had come in for reconsideration in view of the requests made by the federations viz. AIRF and NFIR. Modifying the earlier policy, the following instructions were issued:-
(i) while persons who seek transfer on request basis will continue to be assigned bottom seniority in new unit/cadre as per the extant procedure, the service rendered by them in the old unit may be reckoned for determining their eligibility wherever a minimum length of service is prescribed as a condition for promotion including promotion to General Posts in the new unit, subject to the condition that the service so allowed to be counted does not exceed the length of service of their immediate senior in the new unit; and
(ii) the benefit of counting of service at (i) above will be applicable only in those cases where the staff join the new unit on request transfer in the same category of posts. For example, this benefit will be admissible in a unit as ASM but not in a case where a Commercial Clerk in the old unit joins on request transfer in another unit as Office Clerk.
These instructions will be applicable from the date of issue of this letter.
5. The case of the applicant is that even the present instructions issued by Railway Boards Circular dated 21.6.2006 is a nullity in the eyes of law because it seeks to infiltrate the law as laid down in several judicial pronouncements including by the Apex Court. The following cases have been relied upon in support:-
OA No.1536/2005 Shri Manish Jain & Ors vs Union of India & Ors decided by the Tribunal (Principal Bench) vide judgment dated 29.11.2006 (Annexure A/4); OA No.2153/2001 Sandeep Kumar Kaushik & Ors vs. Union of India & Ors decided by the Principal Bench of the Tribunal vide order dated 4.10.2002 (Annexure A/4) Besides the above, Full Bench judgment of the Tribunal (Madras Bench) in T.A. No.65/1987 decided on 5.10.1987 (K.A. Balasubramanian v. Union of India & Ors) as also the decision of the Apex Court in Renu Mullick (Smt) v. Union of India & Anr, (1994) 26 ATC 602 have also been relied upon
6. We have considered carefully the contentions before us in the Original Application and the annexures attached with it. Even though we do not have any inputs on behalf of the respondents in this matter, the view is being taken considering the averments in the OA and established law on the subject.
We find that the OA No.1536/2005 (OA 1536/2005) (supra) where also the applicants were working as Electrical Assistants and had been denied an opportunity for appearing in the departmental examination for the post of Goods Driver on the ground of ineligibility, the issue was not exactly identical to the present case. On the other hand, this was a case in which the respondents had allowed the applicants for participating in the test by relaxing the eligibility considering the fresh criteria prescribed in this respect and the applicants fulfilling the same.
However, the OA No.2153/2001 (Sandeep Kumar Kaushik & Ors vs. UOI & Ors) (supra) had involved the issues identical to the present case. The applicants therein were Group-C candidates claiming for promotion to Group B. Their cases also were of transfer on request from different Divisions of the Railways to Delhi Division. The applicants here also had been allowed bottom seniority in the Delhi Division. Their grievance, like the applicants in the instant OA before us, was of their names having been deleted from the eligibility list of candidates for the LDCE on the ground that they had not completed the prescribed 5 years service in the stipulated pay scale under the Northern Railway. The OA had been allowed by the Tribunal relying upon the CAT Full Bench Judgment decision in K.A. Balasubramanian v. Union of India & Ors and also citing the view taken by the Apex Court in Renu Mullick (Smt) case (supra). In K.A. Balasubramanians case, the specific point noted was that in order to be eligible the prescribed length of service had to be in a particular grade and had no reference to a particular unit. In Renu Mullicks case also the apex court had observed that the relevant rule did not lay down about the prescribed period to be spent in one unit. Taking these into account the OA had been allowed.
In the above background, we find a considerable substance in the averments in the OA that the aforesaid Circular of the Respondents has sought to dilute the law as laid down in the judicial pronouncements; which would have an overriding effect over the circular-even if the same is construed as statutory in nature.
7. To conclude, the impugned Railway Boards circular dated 21.6.2006 is held as ultra vires and set aside. As regards the other prayer of the applicant regarding their consideration for promotion, the respondents would consider it appropriately in accordance with rules and instructions taking their revised seniority into account. Para 8.3 of the OA mentions regarding the results of the applicants being already in a sealed cover. In the event of the same being true and if the applicants have made grade, the respondents are also directed to declare their results. Needless to say that the applicants being found eligible for the promotional posts, they would be entitled to consequential benefits as per law. With these directions, the OA is allowed and the respondents are directed to comply with our directions within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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