OA 293-2009 and 241 -2008 tentative draft ????

OA 293-2009 and 241 -2008
tentative draft
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 Enquiry-cum-Reservation Supervisor in the scale of Rs.5500-9000 w.e.f. 14.12.2006 based on the seniority assigned in the scale of pay of Rs.5000-8000 after the expiry of penalty.  His further promotion to Chief ECRS 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 ECRS 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.

2. 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 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,  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 judgement 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.