Central Administrative Tribunal - Ernakulam
D.Sarangapani vs Union Of India on 31 August, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.1007/2012
Monday this the 31st day of August 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
D.Sarangapani,
S/o.E.Dhanapalan,
Sr. Divisional Engineer, (Co-ordination),
Southern Railway, Palghat Division.
Residing at No.228, Kokila Dhwani,
Railway Quarters, Kallekulangara P.O.,
Hemambika Nagar, Palghat - 678 009. . . . . . Applicant
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. Union of India
represented by the Secretary to the Government of India,
Ministry of Railways, (Railway Board),
Rail Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway, Head Quarters Office,
Park Town P.O., Chennai - 600 003.
3. The Union Public Service Commission,
New Delhi - 110 001 through its Secretary. . . . . Respondents
(By Advocates Mr.Sunil Jacob Jose [R1-2]
& Mr.Thomas Mathew Nellimoottil [R-3])
This application having been heard on 3 rd August 2015 this Tribunal
on 31st August 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant who is presently working as a Senior Divisional Engineer (Coordination) in the Junior Administrative Grade in the Palghat Division of Southern Railway has challenged Annexure A-1 order dated 10.2.2012 of the 2nd respondent by which he was denied his due seniority on the ground that he was included only in the supplementary panel. The brief facts of the case are that the applicant was initially appointed as an Apprentice Junior Engineer/P.Way on 7.1.1981 and promoted from time to time. In the meanwhile he appeared and got selected to Group B service under the 25% Limited Departmental Competitive Examination quota. Though initially he was not included in the panel, later vide Annexure A-3 his name was also included. On the basis of Annexure A-3 he was promoted as an Assistant Engineer and further to Senior Scale on 30.7.1997. Thereafter he was promoted on adhoc basis to the JAG on 27.11.2007. While so the 1st respondent Railway Board vide Annexure A-7 and Annexure A-8 published a list of officers included in the Indian Railway Service of Engineers for the year 2002-03 with the benefit of such inclusion with effect from 14.1.2005. Subsequently the respondents published a list of persons included for promotion into the IRSE for the year 2003-04 vide Annexure A-9. In Annexure A-9 a number of persons including one Shri.Kuppaiahdevar Rajkumar at Sl.No.3 of Southern Railway have been included for the panel year 2003-04 with the benefit of Junior Scale of Group 'A' of IRSE with effect from 17.2.2005. Since the papers were not placed before the UPSC in time the applicant's name was overlooked in Annexure A-9. On submitting a representation his name was included for the year 2003-04 by a supplementary panel vide Annexure A-10. Though his name was included in the panel year 2003-04 he was given the benefit of Junior Scale of Group 'A' of IRSE only with effect from 14.9.2006 whereas others have been given the benefit with effect from 17.2.2005 as evidenced from Annexure A-9. Again, in another supplementary seniority list (Annexure A-11) of the 1st respondent the applicant's name is at Sl.No.6 in which all the 6 persons including the applicant for the panel year 2003-04 is placed en-bloc below Shri.Kunji Lal Meena, junior most direct recruit officer of IRSE 2000 batch and above (1) Shri.Partha Mukhopadhayay, senior most IRSE promotee officer of 2004-05 panel. It was also indicated that the applicant would get the monetary benefit of junior scale only with effect from 1.11.2006. Aggrieved by the assignment of seniority and grant of monetary benefits only with effect from 1.11.2006 the applicant submitted a representation dated 27.1.2008 to the 1st respondent stating that he ought to have been granted the benefit with effect from 17.2.2005 at par with the others who were included in the 2003-04 panel and that his seniority should be assigned just below Shri.Kuppaiahdevar Rajkumar of the 2003-04 penal. He had also indicated that the non-inclusion of his name in the original panel and the delay in finalizing the supplementary panel were not on account of any lapses on his part but for reasons directly attributable to the respondents. Due to lack of response to Annexure A-12 the applicant submitted another representation dated 11.11.2011 to the 1st respondent marked as Annexure A-13. Annexure A-13 was finally rejected by Annexure A-1 stating that the UPSC has clarified that the date of effect of the recommendation of the supplementary DPC shall only be prospective. The applicant has therefore filed this O.A seeking the following reliefs :
1. Call for the records leading to the issue of Annexure A-1 and quash the same.
2. Declare that the applicant is entitled to be granted all the benefits at par with all those who are included in Annexure A-9 panel and direct the respondents accordingly.
3. Direct the respondents to grant the applicant the benefit of inclusion into the IRSE with effect from 17.2.2005 with all consequential benefits including seniority, emanating therefrom, within a time limit as may found just and proper by this Hon'ble Tribunal.
4. Award costs of and incidental to this application.
5. Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. The respondents in their reply state that induction of Group 'B' officers of the Railways to Group 'A' is on the basis of the recommendations of the DPCs held by UPSC. The recommendations of the DPC is sent for approval of the President and after the approval of the same, notification for promotion to Group 'A' are issued subject to their being clear from DAR/Vigilance angle. The promotions are given from the date of UPSC's letter forwarding the DPC minutes, in terms of the extant instructions contained in DoP&T's OM dated 10.4.1989 which stipulates that in cases where the Commission's approval is also required the date of UPSC's letter communicating its approval or the date of actual promotion of the officer, whichever is later, will be the relevant date.
3. In keeping with the operational needs of the Railways and cadre position of eight organized services (viz. IRSE, IRSEE, IRSME, IRTS, IRAS and IRPS) it was decided to provide additional promotion quota in Group 'A'/Jr.Scale of IRSE, IRSEE, IRSME, IRTS and IRPS ranging from the vacancy year 2002-03 to 2004-05. IRSE was provided an additional promotion quota for the vacancy years 2002-03, 2003-04 and 2004-05.
According to Annexure R-1 it was indicated that since the DPCs for the respective services for the vacancy year 2002-03 were already due, the DPC proposals for the above five services were being prepared by including the proposed additional promotion quota slots. Accordingly, the DPC proposal for induction into Group 'A'/Jr.Scale of IRSe for the vacancy year was sent to UPSC on 30.5.2003. Subsequently the proposal for 2003-04 was also sent to UPSC on 16.6.2003. UPSC vide letter dated 4.9.2003 advised the Board that pending decision on the issue of additional promotion quota, the DPC proposals might be processed and sent to the Commission taking into account only the normal promotion quota vacancies (ie. excluding the proposed additional slots) so that promotions of the officers were not held up. In view of the UPSC's advice dated 4.9.2003 the DPC proposal in respect of IRSE for 2002-03, sent to UPSC earlier, was recast and a DPC proposal sent on 14.11.2003 for convening a regular DPC. Similarly the DPC proposal in respect of IRSE for 2003-04, sent to UPSC earlier, was recast and a DPC proposal sent on 18.12.2003 for convening a regular DPC.
4. In the proposal sent on 18.12.2003, a revised self contained note covering the vacancies of both the years together ie. 2002-03 and 2003-04 was sent, and UPSC were requested that the DPC for the vacancy year 2003-04 may be held simultaneously with that for the vacancy year 2002-
03. However, the DPC for the vacancy year 2002-03 was held on 18-19 November and 31 December 2004 and the minutes of the DPC received under UPSC's letter dated 14.1.2005. As per the extant instructions, the date of effect of promotions was given from 14.1.2005. The DPC for the vacancy year 2003-04 was held on 31.1.2005 and the minutes of the DPC received under UPSC's letter dated 17.2.2005. As per the extant instructions the date of effect of promotions was given from 17.2.2005.
5. The DPCs for IRSE for 2002-03 and 2003-04 were held within a time gap of one month. Sixteen officers although empanelled against the vacancies of 2002-03, were not promoted as they all ceased to be in service by the date of effect of the DPC recommendations ie. 14.1.2005. As they retired after the vacancy year in which they were empanelled, no extended panel was provided vice them as per the extant provisions. Six officers although empanelled against the vacancies of 2003-04, were not promoted as they all ceased to be in service by the date of effect of the DPC recommendations ie. 17.2.2005. As they retired after the vacancy year in which they were empanelled, no extended panel was provided vice them as per the extant provisions. However, as per Board's decision the 22 vacancies were carried forward to the subsequent DPC for 2004-05. Accordingly, a DPC proposal for the vacancy year 2004-05 for 65 promotion quota vacancies (inclusive of 22 carried forward vacancies) was sent to UPSC vide Board's letter dated 20.6.2005. In respect of IRSE the DPC proposal for the vacancy year 2004-05 for 65 promotion quota vacancies (inclusive of 22 carried forward vacancies) was sent to UPSC vide Board's letter dated 20.6.2005. It was however, seen that the following 8 vacancies of 2002-03 actually occurred during the year 2003-04 :
S. Name of Officer Rly. Category Recommended Date of birth Date on which No. against which ceased to be in vacancy service 1 O.P.Tiwari CR GEN GEN 08/03/43 31/08/03 2 A.K.Sinha NFR GEN GEN 01/02/44 31/01/04 3 Mohinder Singh NR GEN GEN 07/01/43 30/06/03 4 M.A.Khan NR GEN GEN 03/03/43 31/03/03 5 K.Ramachandran SER GEN GEN 23/05/43 31/05/03 6 V.K.Irudayaraj SR SC GEN 04/03/43 30/04/03 7 M.Abdul Razack SR GEN GEN 21/04/43 30/04/03 8 D.Kannan SR GEN GEN 09/11/43 30/09/03
6. Based on the revisions made in the DPC proposals in the cases of induction into Group 'A'/Jr. Scale of IRPS, IRSME and IRTS, the DPC proposal sent to UPSC on 20.6.2005 in respect of IRSE was revised.
Accordingly, a supplementary DPC proposal for 8 vacancies of 2003-04 along with a regular DPC proposal for 2004-05 (for 57 vacancies) in the case of IRSE also was sent to UPSC on 2.12.2005. Out of the 8 vacancies in the supplementary DPC proposal, 3 General vacancies pertained to Southern Railway. The UPSC conducted the supplementary DPC for 2003- 04 and regular DPC for 2004-05 on 10 & 11 August 2006 and forwarded the DPC minutes under their letter dated 14.9.2006. The applicant was recommended for inclusion in the panel for promotion to Group 'A'/Jr. Scale of IRSE against the 3 supplementary vacancies of Southern Railway for the year 2003-04. Promotions of the officers (including the applicant) empanelled in the Supplementary DPC were notified on 9.11.2006, 1.12.2006 and 11.1.2007 giving effect to their promotion prospectively from 14.9.2006 ie. the date of UPSC's letters forwarding the supplementary DPC minutes. UPSC vide letter dated 7.7.2005 (Annexure R-4), cited Para 6.4.2(i) of DOPT's OM No.22011/5/86-Estt.(D) dated 10.4.1989 that 'vacancies due to death, voluntary retirement, new creations, etc. clearly belonging to the category which could not be foreseen at the time of placing facts and material before the DPC.' In such cases, another meeting of the DPC should be held for drawing up a panel for these vacancies as these vacancies could not be anticipated at the time of holding the earlier DPC. If, for any reason, the DPC cannot meet for the second time, the procedure of drawing up of year wise panels may be followed when it meets next for preparing panels in respect of vacancies that arise in subsequent year(s). Also, para 6.4.4 of the same OM, as further clarified by UPSC vide letter dated 18.4.2006 stipulates that 'while promotions will be made in the order of the consolidated list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s).' In the instant case, the vacancies arising out of the retirement of Shri.V.K.Irudayaraj, M.Abdul Razack and D.Kannan of SR were unforeseen as it was not possible to anticipate before the DPC whether they would be empanelled in the year 2002-03. Therefore, only a supplementary DPC, as per the extant policy contained in DOPT's OM dated 10.4.1989 was required to be held against these unforeseen vacancies and was accordingly held by UPSC. The promotion having been given prospectively with effect from 14.9.2006, the DITS was also fixed on that basis as per extant rules. In view of the foregoing, the applicant is not entitled to promotion in Group 'A'/Jr.Scale of IRSE with effect from 17.2.2005 and he is not entitled to any consequential benefits, including seniority in Group 'A' flowing therefrom. They further submit that in the instant case the vacancies arising out of the retirement of Shri.V.K.Irudayaraj, M.Abdul Razack and D.Kannan of SR were unforeseen as it was not possible to anticipate before the DPC whether they would be empanelled in the year 2002-03. Therefore, only a supplementary DPC, as per the extant policy contained in DOPT's OM dated 10.4.1989 was required to be held against these unforeseen vacancies and was accordingly held by UPSC. The promotion having been given prospectively with effect from 14.9.2006, the DITS was also fixed on that basis as per extant rules.
7. Heard the counsel for applicant and respondents and considered the written submissions made. In the O.A it is the contention of the applicant that his selection into the IRSE through a supplementary panel for the year 2003-04 was irregular and that he should have been part of the main panel for the year 2003-04. He has accordingly sought refixation of his date of promotion to 17.2.2005 ie. the date on which the candidates in the main panel for 2003-04 were promoted, and seeks his seniority accordingly and resultant benefits. The respondent has countered his claims. It is their argument that the applicant was promoted in a supplementary panel for 2003-04 and as such his promotion to IRSE would be different from the candidates cleared through the main panel for the year 2003-04. The respondents averred that the applicant's date of promotion ie. 14.9.2006 was fixed in accordance with the instructions on the subject.
8. On a perusal of documents placed before us it is seen that there was confusion and delay in the DPCs for the various cadres for the year 2002-03 and 2003-04. Apparently this was due to a decision of the respondents to increase the promotion quota in various cadres. Accordingly proposals were sent to 3rd respondent with enhanced intimation of vacancies for promotion. However, the 3 rd respondent did not agree to this and asked the 1st respondent to revise the proposals as per original quota for promotion. The recast DPC proposal for IRSE for 2002-03 was sent to UPSC on 14.11.2003 for convening DPC. Similarly the DPC proposal for IRSE for 2003-04 was revised and sent to UPSC on 18.12.2003. The applicant points out that while sending the revised DPC proposal for 2003-04 the fact that 3 officers had already retired and whose names were included in the original proposal was not made known to UPSC. No consideration was therefore given for the retirement vacancies either in the 1st respondent proposal or 3rd respondent DPC minutes. These 3 retirement vacancies pertaining to Southern Railway in the general category had occurred on 30.4.2003, 30.4.2003 and 30.9.2003. Thus by the time the revised proposal was sent to UPSC a material change had occurred in the original proposal. The respondents' averment that these retirement vacancies arose after 2003-04 and therefore could not have been considered is incorrect. Since the DPC took place after their retirement, the retired officers, subject to eligibility, could have been notionally promoted and against their vacancies an extended panel should have been prepared to accommodate 3 other candidates. Had this been done, the DPCs that were held subsequently including DPC for 2003-04 would have had a different composition in the zone of consideration of eligible candidates, and the candidates promoted as a consequence of the DPC. Instead the 1st respondent opted for supplementary panels to fill such vacancies created due to retirement which was irregular. Though Shri.V.K.Irudayaraj, M.Abdul Razack and D.Kannan of Southern Railway could not be promoted in the DPC empanellment of year 2002-03, however, their retirement in Apr., 2003 (2 persons) and Sept., 2003 (1 person) was known and the fact of these vacancies, known and foreseen, should have been included in the vacancies computed for the year 2003-04 particularly as the DPC for 2003-04 was held on 31.1.2005.
9. Since the three known and foreseen retirement vacancies of officers supra was not taken into account while computing the vacancies for the year 2003-04, the Respondent Nos.1 and 3 should hold a review DPC for the year 2003-04 after taking into account all the anticipated vacancies for the year including the three retirement vacancies supra and fix the position of the applicant, as per seniority and fitness, in the appropriate slot in the year 2003-04 with consequential benefits. These vacancies were known and foreseen should have been placed in the facts and material placed before the DPC for the year 2003-04.
10. O.A. is disposed of accordingly. No order as to costs.
(Dated this the 31st day of August 2015)
P.GOPINATH JUSTICE N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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