Thursday, November 1, 2012

OA No .241/2008 & 293/2009 Draft ??? Incomplete ???


Draft ??? Incomplete ??? 

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE

TODAY, THIS THE           DAY OF ................. , 2011

ORIGINAL APPLICATION NO.241/2008  & 293/2009

HON'BLE SMT. LEENA MEHENDALE                ...         MEMBER(A)

HON'BLE SHRI V.AJAY KUMAR              ...         MEMBER(J)

OA No.241/2008
C.C. Gudigeri,
S/o Chenna Basappa,
Aged about 47 years,
Working as Chief Enquiry-cum-Reservation Supervisor,
South Western Railway, Mysore,
R/of No.149, 2nd Stage,
Brindavan Extension, Mysore – 570 020.           ...                     Applicant

(By Advocates Shri B. Veerabhadra)

Vs.

1. The Divisional Personnel Officer,
    Personnel Branch,
    South Western Railway,
    Mysore – 570 001.

2. The Chief Personnel Officer,
    Personnel Department,
    South Western Railway,
    Hubli – 580 020.

3. The Union of India,
    Ministry of Railways,
    Rep. By its General Manager,
    South Western Railway,
    Hubli – 580 020.

4. Somashekara, S
   S/o Late K.T. Swamy Gowda,
   aged about 45 years,
   Working as Enquiry-cum-Reservation-Supervisor,
   Mysore Division, Mysore.                        ...                                 Respondents

(By Advocate Shri N.S. Prasad, Standing Counsel for Railways for R-1 to 3
and Shri Izzhar Ahmed for R-4)



OA No.293/2009

Somashekara, S
S/o Late K.T. Swamy Gowda,
aged about 45 years,
Working as Enquiry-cum-Reservation-Supervisor,
Mysore Division, Mysore.                           ...                                 Applicant

(By Advocate Shri Izzhar Ahmed)

Vs.

1. The Divisional Personnel Officer,
    Personnel Branch,
    South Western Railway,
    Mysore – 570 001.

2. The Chief Personnel Officer,
    Personnel Department,
    South Western Railway,
    Hubli – 580 020.

3. The Union of India,
    Ministry of Railways,
    Rep. By its General Manager,
    South Western Railway,
    Hubli – 580 020.                                                   ...                     Respondents

(By Advocate Shri N.S. Prasad, Standing Counsel for Railways)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


            The two applications have been made under Section 19 of the Administrative Tribunals Act, 1985, one being OA No.241/2008 which is made on 27.6.2008 and another being OA No.293/2009 which is made on 1.7.2009.

2.         The applicant in OA No.293/2009 is the 4th respondent in OA No.241/2008.  Since these two OAs were heard together and are dealt with by a single order, for the sake of convenience, we are using the matrix of OA No.241/2008 and whenever necessary specific references will be made from OA No.293/2009.

The effects of the impugned orders are as follows:
i)          Annexure A7 dated 3.9.2007 – It refers to applicant's adhoc promotion as E&RS w.e.f. 24.9.2003 and as Chief E&RS w.e.f. 31.7.2004. Giving reference to the judgement of this Tribunal the adhoc promotion as ECRS w.e.f. 24.9.2003 stands modified as regular promotion to ECRS w.e.f. 1.11.2003 as it appears in the integrated seniority list published in CPO/UBL letters  No.SWR/P.612/Commi  dated  31.1.2007 & 5.4.2007. 
3.         The applicant has impugned the following orders:

            (i)   letter No.Y/P-535/III/9/Vol.V, dated 3-9-2007 (Annexure-A/7),
(ii)  letter No.SWR/P.612/Comml. dated 27-2-2008 (Annexure-A/11),
(iii) letter No.SWR/P.612/Comml. dated NIL, received in the office of the
     Divisional Railway Manager, Mysore on 29-2-2008 (Annexure-A/12)
(iv) letter No.Y/P.612/III/ECRC, dated 26-6-2008 (Annexure-A/15),
                  issued by Respondent No.1.

            Therefore, in the interim prayer, the applicant has also prayed for stay of the order dated 26-06-2008 (Annexure/A-15), as he had not been relieved till then.  This Tribunal vide its order dated 30-06-2008 has ordered maintenance of status-quo as on that date.The same is extended from time to time and is continued till now.

            The Railway authorities had with effect from 1.4.2003 carved out a new Railway of South Western Railway (SWR for short) by taking out two Divisions from the erstwhile Southern Railway (SR) and ond Division from South Central Railway (SCR).  The Hubli Division came from South Central Railway while the Bangalore and Mysore Divisions came from Southern Railway.  In SCR, the post of ECRC-I was a Division controlled post whereas the E&RS was a Headquarters controlled post.  In Bangalore and Mysore Divisions, both were Headquarters controlled posts. 

            For the purpose of effective and full control of the New Railway, the Railway Board had ordered the dte of cadre closure for both Southern Railways and the South Central Railway as 31.10.2003.  Before that decentralization took place in Railways on 23.9.2003 by which the posts of E&RS of SCR was made a Divisional post while in SR, both the posts of ECRC-I and E&RS were made Divisional posts.  The control of these posts therefore came to Bangalore and Mysore Divisional offices.

            It is pertinent to note that there were adhoc promotons to the post of E&RS in all the three Divisions with effect from various dates right from 2000 onwards.  Typically, the dates of regular promotion as ECRC-I and adhoc promotion as E&RS are as below:
Sl.     Name of officer                                               Promotion as
No.                                                                  ECRC-I                      E&RS

1. Shri C.C. Gudigeri

           


The relevance of these names will be explained shorty\ly.

Further, in view of decentralization dated 23.9.2003 and the imminent cadre closure date as 31.10.2003, the Hubli Division regularized their erstwhile adhoc E&RS employees as regular with effect from 6.10.2003 in contrast in Bangalore Division.  However, in Bangalore Division, it was ordered that the adhoc promotions ordered earlier in favour of 12 employees in the category of E&RS would be regularized with effect from 24.9.2003.  Similar order was also passed by the Mysore Division.  The overall effect was that 12 E&RS officers of Bangalore Division and one E&RS officer of Mysore Division were put above above the four E&RS officers of Hubli Division in the seniority list of E&RS.  Further immediately on 1-11-2003, restructuring was also done which is made many more officers from ECRC-I as eligible for promotion as E&RS.  As a result, the three Divisions independently issued respective orders giving adhoc promotion to the grade of E&RS with effect from 1-11-2003 or subsequent thereafter as the case may be.  One such order issued by Mysore Division is seen at Annexure-A/1 in OA No.241/2008 which is dated .............. giving regular promotion to Shri Gudigeri with effect from ................. and adhoc promotion to Shri Venugopal for reasons of restructuring with effect from 1.11.2003 and adhoc promotion to Shri Raghunath on account of restructuring with effect from .......... and adhoc promotion to Shri Sreenidhi with effect from .................  Similar orders of adhoc promotion on account of restructuring were also issued by the Bangalore and Hubli Divisions.  As a result of all these , the combined seniority list of E&RS as issued by SWR on 4-6-2004 contains 49 names in which Shri Gudigeri, Shri Venugopal, Shri Raghunath from Mysore Division are placed at Sl. Nos..................... and the four people from Hubli Division viz., Shri Rudagi, Shri Shirahatti, Shri Sadanand and Shri Ingale are at Sl. Nos. .................... 

            Hence, the four members from Hubli Division challenged the seniority list of ECRS cadre dated 4-6-2004 in OA No.550/2004 (Shri Rudagi and Shri Shirahatti) and in OA No.118/2005 (Shri P.S. Sadanand and Shri Ingale).  The Tribunal looked at the different treatment given by the Hubli Division on the one hand hand and the Bangalore and Mysore Divisions on the other while regularizing the promotion to E&RS and directed the SWR to bring all the regular E&RS at par by giving all of them  the date of promotion as 1-11-2003.  The Tribunal has further instructed to revise the seniority list dated 4-6-2004 by giving appropriate placement to those four applicants.  Hence, the new seniority list was issued by SWR which is at Annexure-A/5 in the present OA No.241/2008 in which Shri K.B. Rudagi and Shri C.S. Shirahatti are at Sl.No.18 and 19 (check).  Shri Gudigeri is at Sl.No.21 and S/Shri P.S. Sadanand and :Ingale are at Sl. No...............   The names above these people are from Bangalore and Mysore Division which is not relevant for the present.

            It is quite obvious from this Annexure-A/7 dated 3.9.2007 which is addressed to the applicant alone that the SWR has taken consideration of only Annexure A4 which was also written individually to the present applicant but has ignored Annexure A1 dated 27.5.2004 under which regular promotion orders were issued from ECRC-I to E&CRS adhoc as below:
1.  C.G.Gudigeri, Adhoc promotion as E&RS regularised w.e.f. 24.9.2003                           (present applicant No.1)

2. S.Venugopal, Adhoc promotion  as E&RS regularised w.e.f. 1.11.2003
3. C.Raghunath, Adhoc promotion as E&RS  w.e.f.  22.03.2004 i.e., the date
     on completion of 2 years of service in his present grade.

4. V. Srinidhi, Adhoc promotion as E&RS from the date of shouldering
     higher responsibility.     

It further mentioned that Shri Srinidhi who is the junior most person is promoted on adhoc basis and will have to be reverted whenever Shri Somashekara  who is senior to all of them becomes due for promotion.  Similarly, the other three senior people are also given regular promotion without prejudice to the claim of Shri Somashekara.


            On comparing the seniority list issued by SWR in respect of E&RS first on 4-6-2004 and later on 31-1-2007 (Annexure-A/5) following facts are revealed:
(i)            In the first list all the four E&RS officers of Hubli Division were put at Sl.No.28 to 31 because their date of regularization were earlier declared as 6-10-2003 whereas 1 to 27 who all belong to SR had all be regularized as E&RS either prior to 24.9.2003 (Sl.No.1 to 14) or on 24.09.2003 (Sl.No.15 to 27), i.e., the very next day of decentralization.
(ii)          The 2nd list (Annexure-A/5) is a partial modification of the first list that has resulted on account of the decision of this Tribunal in OA Nos.550/2004 and 118/2005 and has the effect of refixing the seniority of the officers at Sl.1 to 31 in the first list thereby giving the benefit of this Tribunal judgment to Shri Rudagi who is brought from earlier Sl.No.28 to new Sl.No.17 and Shri Shirahatti who is brought from earlier Sl.No.29 to new Sl.No.18 and Shri P.S. Sadanand who is brought from earlier Sl.No.30 to new Sl.No.29 and to Shri M.A. Ingale, whose earlier Sl.No.31 remains unchanged to new Sl.No.31.
(iii)         The first list contains 49 names of E&RS who stood regularized with effect from 1-11-2003 onwards.  But, the partially modified list stops only at Sl.No.31 thereby leaving unexplained the fate of officers from Sl.No.32 to 49 of the first list.  This aspect is important because the names of Shri S. Venugopal and Shri Raghunath, who received their regular promotion as E&RS with effect from 1-11-2003 on 22-3-2004 respectively as per Annexure-A/1 in the present OA are absent in the second list.  Despite our repeated query to the learned counsel for Respondents, we were not informed as to where these persons stood vis-a-vis Shri Somashekar and Shri C.C. Gudigeri.
(iv)         From the first list, it is clear that Sl.No.32 to 49 all belonged to SR and had all received their regular promotion as E&RS with effect from 1-11-2003 except for the last person viz., Shri C. Raghunath at Sl.No.49 whose date of promotion is 22-3-2004.

            Therefore considering Annexure-A/1 which is SWR order dated 27-5-2004 and SWR seniority list of E&RS dated 4-6-2004 and Annexure-A/4 dated 8-6-2006, postponing Shri Gudigeri's date of regularization as E&RS from 24-9-2003 to 1-11-2003 and Annexure-A/7, dated 3-9-2007, proposing to delete his name from the seniority list of E&RS, it is clear as to where the SWR has failed to properly assign the seniority position to Shri C.C. Gudigeri.  Even assuming that his regular promotion on decentralization which was given on 24-9-2003 would not have been given had Shri Somashekar been regularly considered, it is clear that Shri Gudigeri would still be entitled to regular promotion on restructuring with effect from 1-11-2003 because his junior Shri Venugopal has been given such regular promotion with effect from 1-11-2003.  The SWR was therefore duty-bound to indicate as to where Shri Gudigeri can be placed in the total seniority list of 49 officers as at order dated 4-6-2004.  By not completing this exercise, they have created a scope for letting it to be uncertain as to whether Shri Gudigeri can receive his next promotion as Chief E&RS and when.  Looking at Annexure-A/2, dated 30.7.2004, which is the promotion order for Shri Gudigeri as Chief E&RS, the order is issued after 4-6-2004 which is the date of combined seniority of E&RS of SWR in which Shri Gudigeris name appears at Sl.No.21.  It appears that this promotion would have come to him even if he had been regularised on account of restructuring.  The final effect of the partial modification of the seniority list dated 4-6-2004 is only to push Shri Gudigeri from his position of Sl.No.21 by advancing the position of Shri Rudagi and Shri Shirahatti.  It is obvious that all these aspects have not been examined by the Railway authorities before proposing or ordering the deletion of the name of Shri Gudigeri from the seniority list or before issuing Annexure-A/15, which is the order to revert him from Chief E&RS to E&RS. 

            Further, as compared at para ..... (v) above, if it is presumed that Shri Gudigeri cannot be promoted on decentralization by ignoring the claim of Shri Somashekar, then he still retains his claim for regular promotion on restructuring.  Therefore, comparing his entry as ECRC-I along with others mentioned therein, it is obvious that his seniority will have to be above Smt. Vatsala and could be below the name of Shri Anandaswamy Naidu.  Hence, the Railway authorities cannot revert him from his promotion as Chief E&RS to E&RS without examining the inter-se seniority and promotion to Chief E&RS of Shri Rudagi, Shri Shirahatti, Shri Anandaswamy Naidu and Smt. Vatsala.  It is necessary, in our opinion, to reiterate here that the reversion order at Annexure-A/15 has been issued without taking into account any of the above points.

            At this stage, we also have to consider OA 293/2005 which is the application of Shri Somashekar who stood as senior to Shri Gudigeri in Mysore Division both as ECRC-II and ECRC-I.              Shri Somashekara S.  was working as ECRC-I when he was issued a major penalty charge sheet on 16.10.2003 and imposed with the penalty of reduction to the lower post of ECRC-II in the scale of Pay of Rs.4500-7000 from the post of ECRC-I in the scale of pay of Rs.5000-8000 for one year on non-cumulative basis w.e.f. 22.9.2005.  On completion of the punishment, the applicant was restored to his original status of ECRC-I on 22.9.2006.  Subsequently he was promoted as E&RS (Enquiry-and-Reservation Supervisor) in the scale of Rs.5500-9000 w.e.f. 14.12.2006 based on the seniority assigned in the grade of ECRC-I after the expiry of penalty. It is claimed by him that further promotion to Chief E&RS in the pay scale of Rs.6500-10500 will have to be based on a position of the employees in the inter-se seniority  of E&RS for all the Divisions under the SW Railway, Hubli and has to be based on the combined seniority list of ECRS as on 1.7.2008 which was published on 11.8.2008.  
           
            It is further submitted that Shri Somashekara, ECRC-I w.e.f. 28.4.1989 and was issued a major penalty charge sheet on 16.10.2003.  It was not considered for promotion due to restructuring from 01.11.03  because of the pending DAR proceedings.  Subsequently, on completion of the proceedings, he was imposed with the penalty of reduction to the the lower post of ECRC-II for a period of fiver years with cumulative effect from 22.09.2005.  On appeal, this penalty was modified to reduction to the lower post of ECRC-II for a period of one year with cumulative effect.  On revision, this was further modified to that of reduction to the lower post of ECRC-II for one year with non cumulative effect.  On expiry of the penalty on 22.09.2006, he was restored to his original post of ECRC-I duly protecting the seniority, since the punishment was on non-cumulative basis.  Then he was promoted as E&RS in the scale of Rs.5500-900 from 14.12.2006 based on the seniority assigned in the scale of Rs.5000-8000 after the expiry of penalty.  The applicant is presently working as E&RS in the scale of Rs.5500-9000.

            It is seen from the order dated 28.2.2006 in OA Nos.550 &118/2005 that Shri K.B.Rudagi and Shri Shirahatti  and also Shri P.S.Sdanand and Shri M.A.Ingle  were also subjected to the condition that some other candidates were already promoted based on other criteria  like outstanding qualifications etc., with the approval of the appropriate authority, then their seniority will remain unaffected.    The SWR was also directed to draw up a combined seniority list of E&RS in the grade of Rs.5500-9000  by applying the Rule of integration of cadres.  The effect of this order of the Tribunal was that the present applicant who had already been promoted as ECRS on 24.9.2003  and was purported  to be on adhoc basis by order in Annexure A1, again came to be regularised w.e.f.  1.11.2003.  This order produced at Annexure A4 was passed on 8.6.2006.  The order however, mentions that  “His seniority is being maintained in E&RS category is without prejudice to the claim of his senior Shri Somashekara, who is  undergoing a penalty of reduction as on date”.


3.         The effects of the impugned orders are as follows:
i)          Annexure A7 dated 3.9.2007 – It refers to his adhoc promotion as ECRS w.e.f. 24.9.2003 and his adhoc promotion as Chief ECRS w.e.f. 31.7.2004, then giving reference to the judgment of this Tribunal the adhoc promotion as ECRS w.e.f. 24.9.2003 stands modified as regular promotion to ECRS w.e.f. 1.11.2003 as it appears in the integrated seniority list published in CPO/UBL letters  No.SWR/P.612/Commi  dated  31.1.2007 & 5.4.2007,  it further refers to the fact that prior to restructuring on 1.11.2003 there was one vacancy of ECRS which would have gone to Shri Somashekara who is senior but for his major penalty of reversion and further that his own promotion order at Annexure A4 in the scale of ECRS which is regularised w.e.f. 1.11.2003 is subject to and without prejudice to the seniority claim of Shri Somashekara.  It  further claims that the integrated seniority list published in CPO/UBL 612 has to be of the regular employees working as ECRs as on 1.1.2003 and cannot accommodate ECRS employees who came to be ECRS against restructured  or subsequent vacancies and hence the name of the applicant appearing at Sl.No.21 in the ECRS seniority list appearing in CPO/UBL 612 would be held subject to his representation, if any, within 15 days.

4.         It is quite obvious from this Annexure A7 which is written to the applicant – it has taken little consideration of only Annexure A4 which was also written individually to the present applicant but has ignored Annexure A1 dated 27.5.2004 under which regular promotion orders were issued from ECRC-I to ECRS adhoc as below:
1.  C.G.Gudigeri, Adhoc promotion as ECRS regularised w.e.f. 24.9.2003
2. S.Venugopal, Adhoc promotion  as ECRS regularised w.e.f. 1.11.2003
3. C.Raghunath, Adhoc promotion as ECRS  w.e.f.  22.03.2004 i.e., the date
     on completion of 2 years of service in his present grade.

4. V. Srinidhi, Adhoc promotion as ECRS from the date of shouldering
     higher responsibility.     

It further mentioned that Shri Srinidhi who is the junior most person is promoted on adhoc basis as it will have to be reverted whenever Shri Somashekara  who is senior to all of them becomes due for promotion.  Similarly, the other three senior people are also given regular promotion without prejudice to the claim of Shri Somashekara thus being the combined seniority list of ECRS issued at Annexure A5 in response to the decision of this Tribunal mentioned the name of Shri Gudigere at Sl.No.21 and below him another 10 people who have all came to be promoted as ECRS by virtue of the order passed in OA Nos.550/2004 & 118/2005.  It is interesting to see that out of the list of 31 ECRS promotees 30 are those who were parties to the said OA and present applicant Shri Gudigere is the only member who is outside the parties of the said OA.  It would therefore appear that the Railway officers treated it fit to disturb him only for consideration of Shri Somashekara.  In doing so the Railway authorities have overlooked two aspects namely that in the combined seniority list of 31 ECRS has issued at Annexure A5 is the name seen at the lowest, but at Sl.No.21 and below there are 10 more people assigned as junior to him.  The other factor overlooked by the reviewing authorities that even if he is not a direct authority to the case before this Tribunal in OA Nos.550/2004 & 118/2005, this Tribunal in the judgment have adequately covered him by stating that those employees who have already been promoted prior to 2.11.2003 will not be applicable and that the SWR will have to count them in the combined seniority list.  It is for this reason that the applicant appears at Sl.No.21 and  not at Sl.No.31 in the ECRS seniority list as on 1.11.2003 issued by the Railway authorities on 28.2.2006.
The Railway authorities had with effect from 1.4.2003 carved out a new Railway of South Western Railway (SWR for short) by taking out some Divisions from the erstwhile Southern Railway (SR) and South Central Railway (SCR).  The Hubli Division came from South Central Railway while the Bangalore and Mysore Divisions came from Southern Railway.  In SCR, the post of ECRC-I was a Division controlled post whereas the E&RS was a Headquarters controlled post.  In Bangalore and Mysore Divisions, both were Headquarters controlled posts.  For the purpose of effecive and full control of the New Railway, the Railway Board had ordered the dte of cadre closure for both Southern Railways and the South Central Railway as 31.10.2003.  Decentralization took place in Railways on 23.9.2003 by which the posts of E&RS of SCR was made a Divisional post while in SR, both the posts of ECRC-I and E&RS were made Divisional posts.  The control of these posts therefore came to Bangalore and Mysore Divisional offices.





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