Central Administrative Tribunal - Delhi
Sh. V.K. Bhatnagar vs Union Of India Through on 12 November, 2010
Principal Bench, New Delhi.OA-2956/2009
New Delhi this the 12th day of November, 2010.
Hon ble Mrs. Meera Chhibber, Member (J)
Hon ble Dr. A.K. Mishra, Member (A)
Sh. V.K. Bhatnagar,
S/o Sh. R.S. Bhatnagar,
Working as presenting officer RCT/Bhopal
On Western Central Railway,
Bhopal. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the Secretary,
Railway Board,
Rail Bhawan,
New Delhi.
2. The Director Establishment (Gazetted Promotion)
Railway Board, Rail Bhawan, New Delhi.
3. The General Manager,
Western Central Railway, Bhopal. . Respondents
(through Sh. Rajinder Khatter, Advocate with Sh. Probir Roy, Dy. Director
(Estt), departmental representative)
O R D E R
Dr. A.K. Mishra, Member (A)
The applicant has challenged the Circular/Letter dated 29.06.2007 of the Railway Board in which the system of distribution of promotion quota vacancies among different Railways was modified and a revised principle of allotment of vacancies for Group A officers on the basis of the extent of prevalence of stagnation among Group-B officers of different Railways was introduced. His prayer is to set aside this order to the extent that it was made effective retrospectively from the year 2005-2006 and also to declare the action of the respondents in not releasing any vacancy to the West Central Railway (WCR) where the applicant was working in the year 2005-2006 as illegal and accordingly direct the respondents to allot at least one vacancy which would have been released had the old system of distribution been followed for the year 2005-2006 and further to direct the respondents to consider the applicant along with others against such a vacancy in WCR.
2. The applicant joined the WCR on 25.12.1995 as a Group-B officer and became eligible for promotion to Group-A on completion of three years of regular service. As per the information received by the applicant under the Right to Information Act, 2005, there were 5 officers of WCR including the applicant, who were under the zone of consideration for one vacancy, but due to change of principle in distribution of vacancies among Railways, which was given retrospective effect from 2005-2006, no vacancy was released for WCR. As a result, the applicant could not be considered for promotion, although his juniors were considered by the DPC for the vacancies, which were released for other Railways for the year 2005-2006.
3. At the time of hearing, the learned counsel for the applicant submits that a change in principle of distribution of vacancies, which was introduced in the Railway Board Circular dated 29.06.2007, could not have been given retrospective effect. It could be made applicable prospectively for the year 2007-2008 onwards, but not in respect of the vacancies for the year 2005-2006. He further submits that the meeting of the DPC, which recommended the names of officers for promotion against the vacancies for the year 2005-2006, was held in the month of April 2007 on the basis of vacancies which were distributed by the respondent authorities for the year 2005-2006 following the revised principle even before the Circular was issued. Such action on the part of the respondents was, on the face of it, irregular. He also tried to argue that allotment of vacancies was made in an arbitrary manner and sought to draw our attention to the statement at page 172 (Annexure-IV to the Additional Reply) which, according to him, revealed release of disproportionately higher vacancies to Northern Railway.
4. The learned counsel for the respondents and the representative of the Railway Board clarified that the Circular dated 29.06.2007 is not a notification modifying a Rule. It is only a letter, which brings to the notice of all concerned about the revised principle in allotment of vacancies. According to them, the earlier principle was based on 50% weightage to stagnation and 50% to roster points determined by the proportion of Group-B officers in a Railway as against the total number in the cadre. Keeping in view the stagnation position, which was obtaining in many Railways, it was decided in the year 2006 that the allotment of vacancies should be made 100% on the basis of prevalence of stagnation. This was done with a view to ensuring that senior officers are given better opportunities of promotion.
5. The applicant has mentioned at paragraphs 4.8 and 4.10 of his application that the Competent Authority, the Member Staff of the Railway Board, approved the revised principle on 08.06.2006 within 15 days of initiation of the proposal by the Director concerned on 23.05.2006. He has described this process as having been completed with unseemly haste without proper consultation.
6. The learned counsel for the respondents submits that the decision was taken by the competent authority in the year 2006 and accordingly it was given effect to in respect of the DPCs, which were held for the vacancies distributed for the year 2005-2006 and there was no irregularity in it. Since the objective was to relieve stagnation and provide better opportunities of promotion to comparatively senior officers, this policy decision could no be challenged by stating it to be a mala fide exercise of power. He placed reliance on the case of Dilip Kumar Garg and Another Vs. State of Uttar Pradesh and Others, (2009) 4 SCC 753 in which it was held that policy matters relating to requirement of passing a qualifying examination etc. were within the executive domain. The Supreme Court observed that administrative authorities had experience in administration and the Courts should respect their decisions, which should not be interfered with unless there was clear violation of constitutional provision, or a statute. 6.1 It was further argued on behalf of the respondents that the applicant is a comparatively junior officer, who, seniority wise, stood at Serial No.3 in WCR. He had only 9 years of experience whereas the officers who have been promoted had 11 years of service. It is not the case of the applicant that someone junior to him has been promoted and the revision of principle of allotment has caused any real prejudice to him.
7. The learned counsel for the applicant, in reply, submits that the applicant has a right to be considered although he does not have a right to be appointed on a higher post. This right was affected because of change in principle of distribution of vacancies among the Railways. His grievance is that he was not considered although some of his juniors in other Railways were considered by the DPC. It is clarified on behalf of the respondents that candidates 5 times the number of vacancies given to a Railway are called for interview. Because of this principle, 45 officers belonging to general category were considered by the DPC for Northern Railway as 9 vacancies were released to Northern Railway; but the candidates, who were ultimately selected, were all senior to the applicant. The applicant could not possibly have a valid grievance of not being considered because of non-availability of any vacancy at WCR.
8. For better appreciation, we called for the records of the Railway Board on the subject of distribution of vacancies in Group-A. On perusal, it is seen that the proposal for change of the principle for distribution of vacancy was initiated as early as 31.10.2005 in which it was suggested that there should be a single panel for all the Railways, which would ensure that officers would get their promotions strictly on the basis of their seniority-cum-suitability and there would be no occasion for resentment that officers comparatively junior in some other Railway were getting promotions whereas seniors elsewhere were stagnating. The relevant paragraphs of the note dated 31.10.2005 are extracted below:- 3. In the present system, though distribution of vacancies among the Railways is done in such a way that the stagnation levels on the different Railways are not widely disparate, it is possible for an officer with a later date of entry in Group B to get promoted before an officer from another Railway with an earlier date of entry in Group B . Though Group B seniority is separate for each Railway, instances of the above kind generally result in resentment and representations. Also, sometimes a vacancy gets allotted to a Railway keeping in view the length of service of the senior most officers of that Railway but, if any of these officers is found unfit by the DPC, the vacancy is used by the next junior officer of that Railway even though he may have put in much less service in Group B . These are some of the anomalies in the present system, which can be done away with, if a unified panel is formed.
4. However, if a single panel is to be formed, it is possible that officers of some of the zonal Railways where the stagnation level is much less, may not get promotion for a few years. Under the present system too, such Railways get very few vacancies (and sometimes no vacancy at all) on the basis of the 100point roster based on cadre strength, but in the proposed system, which is to be based only on length of service in Group B , such Railways will not get included till such time the stagnating officers of other Railways are promoted first. However, the proposed system apart from being simpler, would also be a better one as it addresses the issue of stagnation more effectively. The statement at S.No.8 indicates roughly the officers of different Railways who are likely to be selected for 2005-06 in two departments, if the revised system is adopted.
5. Since the existing practice has been in vogue for several years, IRPOF may have to be consulted before the proposed system can be introduced. AM (Staff) may kindly see for approval before informal discussions are held with IRPOF on this matter.
8.1 The matter was discussed in a meeting with the Secretary General of Officers Federation and based on the inputs receipts through such consultations, it was decided that separate panels would be maintained for separate Railways but the weightage proforma would be modified to permit 100% weightage being given to the length of service of officers in Group-B. Therefore, a conscious decision was taken in consultation with the representative of the Federation of Officers to adopt the revised method initially for two years in respect of vacancies for 2005-2006 and 2006-2007 and review the position at the time of allotment of vacancies for 2007-2008. The relevant extract from the note dated 23.05.2006 would make it clear:- 4 This proposal is different from the one contained in pages 6-7n/ante (which was not acceptable to IRPOF) as we would not be making a single All-India panel based strictly on integrated seniority with reference to date of entry in Group B but will be continuing with Railway-wise panels but only ensuring that there are no wide disparities among the officers inducted from the different Railways. Besides, it is proposed to adopt the revised method for only 2 years as of now and review the situation while considering allotment of vacancies for 2007-08.
5. This has been discussed by the undersigned with Secy.General/IRPOF who has agreed to the proposed changes. Board (MS) may kindly see for approval. The proposal would also be a step towards fulfillment of the assurance given by Board (MS) to IRPOF in the informal meeting held on 15.9.05 that efforts would be made to reduce the stagnation level to 10 years or less in all services.
Therefore, the allegation that the revision of the principle was made in haste is not borne out by the facts; on the other hand, it was formulated after due consultation with the representative of the Officers Federation. As a matter of fact, the original proposal to have a unified panel for all the Railways was modified to maintain Railway-wise separate panel. 8.2 As regards the statement containing in figures of Railway-wise allotment of vacancies for the year 2005-2006, it was clarified that the Northern Railway had not got anything disproportionately higher, which was not justified by the revised principle. Rather the officers of Northern Railway upto the 12th position in the seniority list had either 12 years or 11 years of service, whereas the officers of WCR had 10 to 6 years of service.
9. We find that the Railway Board has taken a conscious decision to revise the principle of allotment of vacancies of Group-B officers basing it 100% on prevalence of stagnation in order to provide better opportunity to senior officers. It is a prudent and justifiable decision taken after due consultation to mitigate the grievance of senior officers, who were stagnating whereas comparatively junior officers of different Railways got away with unfair advantage. By no stretch of imagination, this decision can be called arbitrary. The admitted position is that no one junior to the applicant has been promoted because of operation of this principle. Therefore, we do not consider that the applicant has any valid grievance. In the result, the O.A. is dismissed. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member(A) Member(J)
/vv/
