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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