Bhagwan Singh vs Union Of India And Ors

S.N. Terdal, J

We have heard Mr. S.K.Gupta, counsel for applicant and Mr. VSR Krishna, counsel for respondents, perused the pleadings and alldocuments produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(1). The respondents may graciously be ordered to grant promotion of the applicant from Group 'B' to Group 'A'/Junior Scale of Indian Railway Service of Mechanical Engineers (IRSME) in the panel for year 2010-11 w.e.f. 31.12.2007 the date from which immediate juniors were granted promotion vide orders dated 13.03.2013 and 21.03.2013 by suitably modifying/amending the same.

(2). The respondents may graciously be ordered to grant promotion to the applicant w.e.f. 31.12.2007 the date from which immediate juniors were granted benefit of date for increment on the time scale(DITS) subsequently to the junior scale of Group 'A' of IRSME.

(3) The respondents may graciously be ordered to recalculate year-wise increments of pay and allowances admissible w.e.f. 31.12.2007 and arrange payments of arrears expeditiously to the applicant from the date his juniors were promoted.

(4) The respondents may graciously be ordered to recalculate all retiral consequential benefits admissible to the applicant and arrange payment expeditiously.

(5) The respondents may graciously be ordered to recalculate pension of the applicant admissible and arrange payment of arrears of pension to the applicant expeditiously.

(6) Cost of this OA together with Counsel's fees may also be granted.

(7) Pass any other or further order, which this Hon'ble Tribunal may deem fit and proper in the interest of justice.

(8) Any other relief, which this Hon'ble Tribunal may deem fit and proper may also be graciously granted in the interest of justice."

The relevant facts of the case are that the applicant was working in Group 'B' post. He retired on superannuation on 31.08.2012. Thereafter for vacancies for the year 2009-10, DPC was held on 19th-21st December, 2012. For the vacancies of 2009-10, as the applicant was in the zone of consideration his name was also considered as per the DoP&T OM Instructions of 12.10.1998. But, however, as the applicant had retired before the date of holding of the DPC he could not be promoted. The said DoP&T instructions are extracted below:

"G.I.Dept. of Per.& Trg., O.M.No. 22011/4/98-Estt.(D), dated 12.10.1998

The undersigned is directed to invite reference to the Department of Personnel and Training (DoP&T), O.M.No.22011 /5/86-Estt(D), dated April 10, 1989 (vide Sl. No.39 of Swamy's Annual, 1989) containing the consolidated instructions on DPCs. The provisions made in Paragraph 6.4.1 of the aforesaid Office Memorandum lay down the following procedure for preparation of year-wise panel(s) where for reasons beyond control, DPC(s) could not be held for the year(s) even though vacancies arose during the year(s):-

(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.

(iii) Prepare a 'Select List' by placing the select list of the earlier year above the one for the next year and so on.

Doubts have been expressed in this regard as to the consideration of employees who have since retired but would also have been considered for promotion, if the DPC(s) for the relevant year(s) had been held in time.

The matter has been examined in consultation with the Ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum, dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order, if eligible employee, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration, if the DPC (s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s). Name of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s), may, if need be, prepared extended panel(s) following the principles prescribed in the Department of Personnel and Training, O.M. No.22011/8/87-Estt.(D) dated 9-4-1996. "

As a consequence of the said DPC, 145 Group 'B' officers were promoted and appointed as Group 'A' officers w.e.f 31.12.2012 vide order dated 13.03.2013 (Annexure A-1). In the said promotion list, for the reasons stated above, his name was not appearing. Subsequently vide another order dated 21.03.2013 in compliance of the provisions of para 334 of the Indian Railway Establishment Manual, Volume-1 (IREM-Vol.1) and taking into consideration all relevant factors, an inter-se-seniority list was prepared giving the date for increment on the time scale (DITS) w.e.f. 31.12.2007 as per the list annexed to the above said order dated 21.03.2013. In the said list, names of some of juniors of the applicants who were in service as on 31.12.2012 and who were promoted in the above said DPC w.e.f. 31.12.2012 are included. On that basis the applicant prayed for the above stated relief.

The counsel for the applicants vehemently and strenuously contended that as his juniors in Group 'B' were given promotion and increment as per para 334 referred to above w.e.f. 31.12.2007, the applicant is entitled to the relief prayed for. In support of his contention, the counsel for the applicant relied upon the following judgments of Hon'ble High Court and the orders of the CAT (PB), New Delhi:-

"1. High Court judgment in Union of India and Anr. Vs. P.G.George (WP (C) No. 4864/2010)

High Court judgment in S. Narayanswamy Vs. Union of India and Ors (WP (C) 4699/2012).

CAT (PB) order in Jagdish Lal Jokhani Vs. Union of India and Ors. (OA 204/2010)

CAT (PB) order in Yad Ram Vs. Union of India & Ors (OA 2054/2010)

CAT (PB) order in M.L.Bokolia Vs. Union of India & Ors. (OA 2846/2010)

CAT order in P.G.George Vs. Union of India & Ors (OA No.1409/2009 with connected OAs.)

The counsel for the respondents equally vehemently and strenuously contended that the applicant though retired, his name was considered only for the purpose of avoiding consideration of ineligible Group 'B' employee who would not have been in zone of consideration if the DPC was held in time for the vacancies for the year 2009-10 and the name of the applicant is not considered for giving promotion and the said consideration of the applicant is as per the above extracted DoP&T OM instructions. He further submitted that DITS is given to only those who have been actually promoted in the above stated DPC as per the provisions of the above stated Para 334 and as the applicant was not actually promoted he was not entitled for being considered for DITS under above said para 334. In view of the same, the laws laid down by the Hon'ble High Court are of no help to the applicant. The relevant portion of para 334 is extracted below:-

"334. In the case of Group 'B' officers permanently promoted to Junior Scale of Group 'A' services:

(1) Officers of a particular department promoted from the earlier panel shall rank senior to officers promoted from the later panel.

(2) If two or more than two officers are promoted on the same date, the following method shall be followed to determine their inter-se-seniority within the Railway:-

(i) The relative seniority of officers of each Railway shall be in the order of their position in the panel for that Railway.

(ii) The DITS of the above officers, shall be determined by giving weightage based on:

(a) the year of service connoted by the initial pay on permanent promotion to Group 'A' service; or

(b) half the total number of years of continuous service in Group 'B', both officiating, and permanent;

Whichever is more, subject to a maximum of 5 years; provided that the weigtage so assigned does not exceed the total non-fortuitous service rendered by the officer in Group 'B'.

(iii) The DITS of the junior officer(s) in any Railway shall not be earlier than the DIS of his immediate senior in the same panel......."

(Emphasis supplied)

In view of the facts and circumstances of the case referred to above, as the applicant being retired employee w.e.f. 31.08.2012, he was not entitled for actual promotion in view of the above extracted OM and as he was not promoted permanently to Group 'A' post, he is not entitled for DITS under para 334 of the above said IREM Volume-1 and the said OA is devoid of merit.

Accordingly, OA is dismissed. No order as to costs.