Patna High Court
Yogendra Prasad vs The Union Of India And Ors on 1 December, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4737 of 2017
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Yogendra Prasad, Son of Late Gulab Shah, Retired Senior Section Engineer
(Construction) SSE/Elect/Con./APDJ-N.F. Railway, Maligaon, Guwahati,
Residing at Rajiv Nagar, Road No. 25D, Gulab Bhawan, Patna- 24, P.S.-
Rajiv Nagar, District- Patna.
... ... Petitioner/s
Versus
1. The Union of India through General Manager, N.F. Railway, Maligaon,
Guwahati (Assam).
2. The General Manager Con. N.F. Railway, Maligaon, Guwahati Assam.
3. The F.A. and C.A.O., N.F. Railway, Maligaon, Guwahati, Assam.
4. The Chief Electrical Engineer (Con.) N.F. Railway, Maligaon, Guwahati
Assam PIN- 781011.
5. The Divisional Electrical Engineer (Construction), N.F. Railway, Alipur
Dwar Junction.
6. The Deputy Chief Personnel Officer (Con.), N.F. Railway, Maligaon,
Guwahati.
7. The Senior Personnel Officer (Con.), N.F. Railway, Maligaon, Guwahati-
781011.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Satish Chandra Mishra, Advocate.
Mr. Md. Nurul Hoda, Advocate.
Mr. Uma Kant Mishra, Advocate.
For the Respondent/s : Mr. Rakesh Kumar Sinha, C.G.C.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 01-12-2022
On 03.11.2022, the following order was passed:
"None appears for the Railways.
Matter is relating to fixation of pension.
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
Therefore, Railway counsel is hereby directed to
secure service record (Service Book of the
petitioner - Yogendra Prasad). He is also hereby
directed to ascertain from the concerned official-
respondent even though petitioner was promoted to
the post of Senior Section Engineer on temporary
basis, however he has been extended pay scale of
Senior Section Engineer, once he has been extended
pay scale attached to the post of Senior Section
Engineer in the year 1997 and he continued to hold
such post till 31.03.2015, the date on which he has
attained age of superannuation and retired from
service, the concerned authority have undertaken
any action to consider the petitioner name for
regular promotion to the post of Senior Section
Engineer during the period from 31.10.1997 till
31.03.2015. Further whether the petitioner has been
extended annual increment from 1998 to 2015 and
so also whether has he been extended any benefit of
TBA/MACP. If it is so, necessary material be placed
on record in order to examine whether petitioner is
entitled to fixation of his pension with reference to
last pay drawn in the post of Senior Section
Engineer or not.
If the aforesaid direction is not complied, in
that event, second Respondent - The General
Manager (Construction), North Frontier Railway,
Maligaon, Guwahati, Assam is hereby directed to
draft an official who is well conversant with the
matter.
Relist this matter on 01.12.2022 as a last
chance."
2. Today, learned counsel for the respondent
furnished Service Book of the petitioner - Yogendra Prasad. On
18.11.1997, there is entry in the Service Book of the petitioner
as under:
"Promoted to Sr. Section Engineer (Ad-hoc) in
Scale Rs. 7450-225-11550 (RP) w.e.f. 21.10.1997
vide Office Order No. 178/1997 dated 31.10.1997
and the pay fixed on Rs.7450/- w.e.f. 21.10.1997 in
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
Scale Rs. 7450-11550."
3. The Tribunal refused to grant relief to the
petitioner in so far as fixation of pay and pension in the post of
Sr. Section Engineer while recording at Para-6 and 7 as under:
"6. The only question to be examined in this
OA is whether a person on an ad-hoc promotion in
a temporary organization can claim pension on the
basis of that last pay drawn if his substantive lien is
at a lower post in the parent permanent
organization. It transpires that those working in the
Construction organization have no permanent
status and their permanent lien is maintained in the
different cadres in open line in the Railways. As
and when they become due for promotion in the
open line cadre, such persons are considered and it
there is a requirement for some test, the persons in
Construction Wing are also invited to take the test.
In the present case, the applicant on his own
volition declined to take the test for promotion
from Technician Grade-III to Technician Grade-II,
apparently because he was already in higher grade
in the Construction Wing on ad-hoc basis. It is seen
from the Annexure at R/3 i.e. the order dated
25.08.2014 that a large number of persons similarly
situated in Construction Wing took the said test and
passed whereas the applicant has been shown
unwilling.
7. The applicant has not been able to show
any specific rules on the point that in the Railways,
Construction Wing people are granted pension on
the basis of ad-hoc promotion in the higher grade
even though their substantive lien in open line in
lower grade, nor has he cited any such case."
4. In the present case, it is to be noted that from
21.10.1997 till 31.03.2015, the petitioner has discharged duties
of the post of Sr. Section Engineer and pay scale attached to the
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
post has been extended. The reasons for not extending pension
with reference to Sr. Section Engineer is that petitioner declined
to take test for promotion from Technician Grade-III to
Technician Grade-II on the score that he had already occupied
the next higher grade / post in the Construction Wing. It is to be
noted that during the period from 22.10.1997 till 31.03.2015, the
respondents have not taken any action to revert the petitioner
from the post of Sr. Section Engineer on the score that
petitioner was required to pass certain test for promotion to the
post of Technician Grade-II from Technician Grade-III. Further,
it is to be noted that if the petitioner is not eligible to hold the
post of Technician Grade-II, as to how petitioner was promoted
to the post of Sr. Section Engineer on Ad-hoc basis. Further, no
order of reversion has been passed and so also there is no
observation made by the respondent-Department that there were
any deficiency in petitioner's services while discharging the post
of Sr. Section Engineer from 21.10.1997 till 31.03.2015, the
date on which he has attained age of superannuation and retired
from service. Further, no material have been placed on record by
the respondents that they have undertaken review of promotion
to the post of Technician Grade-II so as to revert such of those
persons who have not fulfilled the requisite criteria to hold the
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
post of Technician Grade-II. Therefore, the contention of the
respondent that petitioner failed to pass certain test to the post of
Technician Grade-II cannot be appreciated. The aforesaid
material have not been taken into consideration by the Tribunal
while deciding OA No. 487 of 2015. Due to inaction on the part
of the respondent in not taking timely action against the
petitioner in reverting him or conducting promotional test from
time to time. Further, Respondents have not produced materials
like Rules of Recruitment or Executive Orders and final
seniority list of feeder cadre in order to ascertain the eligibility
criteria and whether petitioner fulfills criteria or not.
5. In the light of the fact that petitioner has
rendered service more than a decade in the post of Sr. Section
Engineer with pay scale attached to the post, only the word used
in the promotion order is that such a promotion order is on
adhoc, an employee or officer cannot be promoted to higher
post on adhoc basis for more than a decade. In such
circumstances, meaning of adhoc may not exist.
6. Having regard to the fact that petitioner had
rendered service in the post of Sr. Section Engineer for more
than one decade, one has to draw inference that he is a regular
holder of the post of Sr. Section Engineer. Therefore, revisit of
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
eligibility to promotion at this distance of time would be a
daunting exercise for the Respondent-Department. Retrieving
correct data to rework seniority commencing from the year 1997
or earlier would be extremely difficult, resulting further
litigation among retired persons. The matter, in our view, must
rest there so that the pensioner is not left in a stake of
uncertainty at this stage of his life after rendering decades of
service to the Respondent-Department.
7. In view of these facts and circumstances,
petitioner has made out a prima facie case so as to interfere with
the order of the Tribunal dated 23.12.2015 passed in O.A. No.
487 of 2015 and it is set aside and O.A. No. 487/2015 is
allowed.
8. In the result, the concerned respondent is hereby
directed to extend all service and monetary benefits from time to
time during the period from 21.10.1997 till 31.03.2015 against
the post of Sr. Section Engineer as if he is a regular holder of the
post of Sr. Section Engineer. Further, concerned respondent is
hereby directed to undertake re-fixation of pay and pension of
the petitioner in the post of Sr. Section Engineer and calculate
arrears of pay and pension. Difference of pay and pension shall
be disbursed within a period of three months from the date of
Patna High Court CWJC No.4737 of 2017 dt.01-12-2022
receipt of this order, failing which the petitioner is entitled to
interest on arrears amount at the rate of 8% per annum.
9. Accordingly, writ petition stands allowed.
(P. B. Bajanthri, J)
( Purnendu Singh, J)
mantreshwar/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 07.12.2022
Transmission Date N.A.
