Calcutta High Court (Appellete Side)
Ram Ratan Mukherjee & Anr vs Union Of India & Ors on 7 February, 2022
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WP.CT 83 of 2021
Ram Ratan Mukherjee & Anr.
Vs
Union Of India & Ors.
_______
Mr.Shibendra Narayan Sukul,
Mr. Sagnik Chatterjee.
..... for the Petitioners.
Mr. Saptarshi Bhattacharjee
Mr.Subhankar Chakraborty
..... for the Respondents.
Heard On : 13.01.2022
Judgment on : 07.02.2022
Rabindranath Samanta, J:-
1. This writ petition depicts the struggle of the petitioners
Ram Ratan Mukherjee and Radhaballav Jana since their
retirement from railway services on superannuation on
30.11.2013 to establish their rights to promotion and
monetary benefits in terms of the order dated 08.10.2013
issued by the Railway Board, Ministry of Railways,
Government of India on restructuring of certain ' Group -
C' Cadres. Failing in their appeals to the respondent
authorities to get relief, they as a first round of litigation
filed application being O.A No. 350/949/2018 in the
Central Administrative Tribunal, Calcutta Bench,
(hereinafter be referred to as the Tribunal) seeking
promotional and monetary benefits in terms of the
aforesaid order of the Railway Board. By order dated
28.09.2018 the Learned Tribunal disposed of the
application permitting the petitioners to make a
comprehensive representation to the respondent no. 2,
the Divisional Personnel Officer, South Eastern Railway,
Kolkata within two weeks from the date of receipt of the
order and if any such representation was preferred before
the respondent no. 2, then the respondent no. 2 was
directed to consider the same as per extant rules and
regulations in force and pass a reasoned and speaking
order communicating the same to the petitioners within a
period of six weeks from the date of receipt of the
representation. In compliance thereof the petitioners
made the representation on 24.10.2018. By order dated
03.12.2018 the respondent no. 2 disposed of the
representation with the following observations :
" Hon'ble CAT/Calcutta Bench, Calcutta while disposing
of the aforesaid O.A No. 350/949/2018 on 28.09.2018
issued the direction upon the applicants as well as to the
railway respondents, the operative portion of which is,
interalia, reproduced hereunder:
........Applicants are allowed to make a comprehensive
representation to Respondent no. 2 within two weeks from
the date of receipt of this order and, if any such
representation is preferred before Respondent No.2 then
the said Respondent no. 2 is directed to consider the same
as per extant rules and regulations in force and pass a
reasoned and speaking order communicating the same to
the applicants within a period of six weeks from the date
of receipt of the representation.
In compliance of the said order dated 28.09.2018
of Hon'ble CAT/Cal, I, the undersigned, being Respondent
no. 2 and Principal Chief Personnel Officer of South
Eastern Railway, Garden Reach has considered your
representation dated 26.10.2018 keeping in view the
railway records & relevant rules and regulations and pass
the following reasoned order:-
You have superannuated w.e.f 30.11.2013 while
working as Technician Grade-I(TL) under SSEE/SRC.
Railway Board vide RBE No. 102/2013 circulated the
guidelines for restructuring of certain Group 'C' cadre w.e.f
01.11.2013. It has been clearly stipulated in Para 4 of the
said circular that in the case of Artisan staff, the benefit of
restructuring under these orders will be extended only on
passing the requisite Trade Test.
In order to implement the order, percentage wise
revised cadre strength was certified by Accounts and
necessary list of candidates who were to be trade tested
for extending such benefits was circulated on 06.12.2013.
The trade test was conducted on 25.12.2013 &
26.12.2013 and result published on 06.01.2014 for the
successful candidates.
You had retired from service on superannuation
w.e.f 30.11.2013 without passing the requisite Trade Test
which is mandatory for getting the benefit of restructuring
as per Railway Board's order. As such, you are not
entitled to get any benefit of restructuring, as claimed.
Further, a letter was sent to Railway Board
seeking clarification whether restructuring benefit can be
extended to such staff who had retired from railway
service in between 01.11.2013 and actual implementation
of the order. In reply Railway Board vide their letter dated
13.08.2018 has clarified that the benefit of restructuring
will be extended to artisan staff only on passing the
requisite Trade Test and staff who demitted service
without passing the requisite Trade Test may not be
allowed the benefit of restructuring.
Thus, keeping in view the fact vis-à-vis railway
rules explained above, your prayer for granting
restructuring w.e.f 01.11.13 benefit of fixation and
pensionary benefits thereof cannot be entertained and
hereby rejected.
This diposes of your representation dated
26.10.2018."
2. Being aggrieved by and dissatisfied with the aforesaid
order dated 03.12.2018, the petitioners filed the Tribunal
application being No. O.A 350/242/2019 for the second
time seeking the following reliefs:
" i) to quash and set aside the speaking order dated
03.12.2018 and to grant promotion and fixation benefits
restructuring of the cadre with effect from 01.11.2013
and releasing all pensionary benefits with fixation of the
applicant's basic pay on regularisation of their promotion
to the post of Sr. Tech. ( Fitter). w.e.f. 01.11.2013.
ii) to direct the respondents to quash and set aside the
impugned speaking order and give the effect of promotion
and fixation benefits on due restructuring of the cadre in
terms of Rly. Boards order with effect from 01.11.2013
and releasing all pensionary benefit with arrear from the
date of retirement of the applicants.
iii) to direct the respondents authorities to produce the
entire records of the case before this Hon'ble Tribunal for
proper adjudication on the point of issue.
iv) And to pass such further order/orders, direction or
directions as this Hon'ble Tribunal may deem fit and
proper."
3. By the impugned order dated 20.01.2021 the Learned
Tribunal dismissed the tribunal application preferred by
the petitioners. Challenging this order the petitioners
have preferred the instant writ petition.
4. Now, the only point which falls for determination is
whether the petitioners are entitled to get promotional
and monetary benefits in terms of the Railway Board's
order dated 08.10.2013.
5. To adjudicate upon the plea of the petitioners the facts
which are necessary may be summarized as under:
The petitioners were in the post of the Fitter (
Electrical) under SSE(TL)/ Santragachi of Kharagpur
Division, South Eastern Railway and both of them
retired from their services on 30.11.2013. Before their
retirement the Railway Board vide its aforesaid order
dated 08.10.2013 made a provision for promotion and
monetary benefits to the concerned employees on
restructuring of certain Group-C cadres with effect from
01.11.2013. Based on the Railway Board's order, the
C.P.O/Gardern Reach issued a circular bearing Estt Sl
No. 108/2013 and lastly D.R.M(P) Kharagpur vide its
office no. EEANR/TL/SrTech/ Restructuring/13 dated
06.12.2013 issued a list for conducting trade test of the
eligible candidates on assured vacancies and in that list
the names of the petitioners Ram Ratan Mukherjee
and Radhaballav Jana figured at Serial Nos. 13 and 17
respectively for promotion to the post of Senior Tech in
the pay band of Rs. 9300-34800 with Grade Pay of Rs.
4,200/-. But, they were denied the promotion and
fixation benefits on the ground that they already retired
from services on 30.11.2013.
6. Aggrieved by the decision of the railway authorities they
made repeated representations to the concerned railway
authorities for getting promotion and fixation benefits,
but to no effect. Under such circumstances, they
preferred the aforesaid tribunal applications.
7. Admittedly, the petitioners before their retirement were
posted as fitter (Electrical) under SSE (TL), Santragachi
and both of them retired from services on
superannuation on 30.11.2013. In this context, it will be
apposite to refer to the relevant provisions viz Clause 4
and Clause 4.7 of the order dated 08.10.2013 of the
Railway Board which read as under:
" 4 The existing classifications of the posts
covered by these orders as 'selection' and 'non
selection', as the case may be remains unchanged.
However, for the purpose of implementation of
these orders. If any individual Railway servant
becomes due for promotion to a post classified as a
'selection' post, the existing selection procedures
will stand modified in such a case to the extent that
the selection will be based only on scrutiny of
service record and confidential reports without
holding any written and /or viva-voice test. This
modified selection procedure has been decided
upon by the Ministry of Railways as a onetime
exception by special dispensation, in view of the
numbers involved, with the objective of expediting
the implementation of these orders. Similarly for
the posts classified as 'non selection' at the time of
this restructuring the promotion will be based only
on scrutiny of service records and confidential
reports. In the case of Artisans staff, the benefits of
restructuring under these order orders will be
extended only on passing the requisite Trade Test.
4.7 Employees who retire/resign or expire in
between the period from the date of effect of these
orders to the date of actual implementation of these
orders, will be eligible for the fixation benefits and
arrears under these orders w.e.f 01.11.2013, if they
are otherwise eligible for the said benefits."
8. It is all along the stand of the railway authorities that
as the petitioners retired from services and as they
could not participate in the trade test, the promotional
and monetary benefits under the order dated
08.10.2013 could not be extended to them.
9.Learned Counsel appearing for the petitioners has
submitted that clause 4.7 of the order confers
indefeasible rights upon the petitioners to fructify the
benefits as available under the aforesaid order of the
Railway Board.
10. As clause 4.7 enjoins, an employee who expired was
also entitled to get the benefits of the aforesaid order.
Similarly, the employee who resigned from service after
enforcement of the order was also entitled to get the
benefits. In such conspectus of situations, insisting for
trade test by those employees who either died or resigned
from service sounds illogical. That being so, the stand
taken by the railway authorities not to extend the
aforesaid benefits to the petitioners who retired on
30.11.2013 is vitiated with severe arbitrariness.
11.We may advert to another aspect of the matter by
referring to a letter dated 06.12.2013 issued by the
Assistant Personnel Officer- I on behalf of Sr. Divisional
Personnel Officer, South Eastern Railway/ Kharagpur by
which a panel of 26 employees belonging to the cadre of
the petitioners was prepared for conducting of requisite
trade test for promotion to the post of Sr. Tech in pay
band Rs. 9300-34800 with G.P Rs. 4,200/- in TL wing of
Electric. (G) Deptt. under restructuring scheme vide
Estt. Serial No. 108 of 2013. As it appears, the names of
the petitioners appear at Serial No. 15 and 17 of the list.
It is interesting to note that the aforesaid 26 employees
including the petitioners were included in the list to
fill up 26 vacancies ( UR - 20, SC- 04, ST- 02 ) for the
posts of Senior Tech in the aforesaid pay band. On
scrutinising the list it is evident that 20 employees of Un-
reserved category, 4 employees belonging to Scheduled
Caste and 2 employees belonging to Scheduled Tribe
figured in the list to fill up the aforesaid promotional
posts. This shows that the concerned railway authority
did not undertake any competitive test among more
employees beyond 26 posts to select candidates for the
promotion. The list demonstrates the latent intent of the
railway authorities to promote all the 26 employees
included in the list to the post of Senior Tech.
12.If the railway authorities seriously desired to
conduct the trade test of the petitioners they ought to
have undertaken such exercise prior to their retirement.
While a valuable right of the petitioners was at peril on
their retirement on 30.11.2013, the railway authorities
should have taken all endeavour with seriousness to
conduct the test immediately after the Railway Board's
order dated 08.10.2013 was issued. Instead, they
protracted the exercise of conducting the test and such
procrastination continued after the petitioners retired
from the service. Such gross laches on the part of the
railway authorities do not countenance their stand that
no promotional or monetary benefits could be extended
in favour of the petitioners as they did not undergo the
trade test.
13.Now, the question crops up how the laches and
errors crept in the process of selecting the petitioners for
promotional posts could be dealt with. It goes without
any say that this writ court by invoking its extraordinary
power of judicial review can set right the laches or
errors on the part of the state authority to prevent
gross injustice to the concerned party.
14.As observed above and in exercise of the
extraordinary power of judicial review we feel that the
rights accrued to the petitioners to get the benefits of
promotion and fixation of pay on restructuring of cadre
vide the Railway Board's Order dated 08.10.2013 should
be protected.
15.In view of the above, the point as raised is answered
in the affirmative.
16.In the result, the impugned order dated 20.01.2021
passed by the Learned Tribunal in O.A. No.
350/242/2019 is hereby set aside. Consequently, the
tribunal application is allowed.
17.The order dated 03.12.2018 passed by the
Respondent No. 2 is hereby quashed. The respondents
railway authorities are directed to grant promotion and
fixation benefits on restructuring of the cadre in terms of
the Railway Board's order dated 08.10.2013 in favour of
the petitioners with effect from 01.11.2013. They are also
directed to release all pensionary benefits with fixation of
the basic pay of the petitioners on regularization of their
promotion to the post of Sr. Tech (Fitter) with effect from
01.11.2013.
18.Thus the writ petition is disposed of.
19.No order as to costs.
20.Urgent certified website copy of this judgment, if
applied for, be given to the parties upon compliance with
all requisite formalities.
(Rabindranath Samanta, J.)
I agree,
(Harish Tandon,J.)
