Patna High Court
Prabhat Kumar vs The Union Of India on 25 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11512 of 2021
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Prabhat Kumar S/o Late Rajendra Prasad, Resident of Mohalla-Bahadurpur
Housing Colony, Bhootnath Road, Patna-800026.
... ... Petitioner/s
Versus
1. The Union of India through the Chairman, Railway Board, Ministry of
Railways, Rail Bhawan, New Delhi 110001.
2. The Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New
Delhi 110001.
3. The Joint Secretary (E)-II, Railway Board, Ministry of Railways, Rail
Bhawan, New Delhi 110001.
4. The General Manager, East Central Railway, Hajipur, P.O.-Digghi Kalan,
P.S.-Hajipur, District-Vaishali at Hajipur, 844101.
5. The General Manager (Personnel), East Central Railway, Hajipur, P.O.-
Digghi Kalan, P.S.-Hajipur, District-Vaishali at Hajipur, 844101.
6. The APO/Gaz, O/o the General Manager (O), East Central Railway, Hajipur
844101.
7. The General Manager, Central Railway, Mumbai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jayant Kumar Karn, Advocate
Mr. Hemant Kumar Karn, Advocate
Mr. Jay Karn, Advocate
For the Respondent/s : Mr. Naresh Dikshit, Sr. CGC
Mr. Shyam Bihari Singh, CGC
Ms. Kalpana, Advocate
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Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
2/11
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 25-01-2024
The petitioner has assailed the orders of the Central
Administration Tribunal, Patna Bench dated 15.10.2020 passed
in O.A. No. 339 of 2020 vide Annexure P-13, order dated
07.12.2020
passed in Review Application No. 09 of 2020 read
with order on Miscellaneous Application No. 208 of 2020 on
7.12.2020, order dated 21.08.2020 issued by the General
Manager, ECR vide Annexure P-10 and the order dated
17.12.2020 Annexure - P-15 and further sought for a direction
to consider his name for promotion from the post of Senior
Section Engineer (Electrical) to Group -B Assistant Engineer.
2. The petitioner while working in the Mumbai
Railway Division, he was on deputation to Eastern Central
Railway in the year 1997 and continued to be on deputation till
2005, thereafter his services were absorbed at ECR Hazipur. In
this backdrop such of those persons who were similarly situated
and who were working in the Mumbai Railway Division, their
names were considered for promotion to the post of Group B
Assistant Engineer and petitioner's name was overlooked. Of
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
course petitioner was required to pass certain departmental
examination which is stated to have been conducted in the year
2001. Such departmental examination was conducted by the
Mumbai Railway Division in the year 2001 and it has not been
notified to the petitioner who was on deputation. On the other
hand, Mumbai Railway Division - Respondents 7 has taken a
contention at para 14 to the extent that there was a
communication to the counterpart, namely, borrowing authority
- ECR Hazipur to inform the petitioner in respect of holding of
departmental examination for the post of Group - B Assistant
Engineer, the same has been countered by the ECR Hazipur
respondents in their counter affidavit at para 7, denial of such
receipt of communication from the Mumbai Railway Division.
Therefore, one has to draw inference that petitioner has not been
provided an opportunity of participating in the departmental
examination conducted by the Mumbai Railway Division
insofar as consideration of petitioner's name for the post of
Group - B Assistant Engineer ( promotional post). In this
backdrop the petitioner has approached the concerned authority
and they have declined to grant any relief. In the result
petitioner invoked the remedy of filing original application
before the Central Administration Tribunal and it was rejected at
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
threshold on the score of delay in filing original application and
it was confirmed by this Court in writ petition. Thereafter, he
has approached the Hon'ble Supreme Court. The Hon'ble
Supreme Court while disposing the petitioner's petition made an
observation that petitioner is at liberty to file representation. The
petitioner had submitted representation and it was dismissed.
Therefore, once again petitioner knocked the door of CAT in
respect of the aforementioned relief which was rejected and
thereafter there were certain errors stated to have been
committed by the CAT insofar as certain communication of
departmental examination to the petitioner and the same was
rectified to the extent that there were no communication to the
petitioner insofar as holding departmental examination. He has
also filed review petition and review petition was converted into
miscellaneous application and it was rejected, hence the present
writ petition.
3. Learned counsel for the petitioner submitted that
having regard to the fact that petitioner was on deputation to
ECR Hazipur from Mumbai Railway Division, whatever the
benefit made available to similarly situated employees of the
Railway who were working at Mumbai Railway Division, the
same was required to be extended to the petitioner as long as his
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
lien is vested in the Mumbai Railway Division. It is to be noted
that in the year 2001 departmental examination was conducted
for the purpose of promotion to the post of Group B - Assistant
Engineer. The petitioner has been denied to participate in such
examination. On the other hand, after his absorption in the ECR
Hazipur identical examination was conducted and he had passed
such examination and he was promoted. In this backdrop
question for consideration is whether is he entitled to
retrospective promotion from the date his junior was promoted
at Mumbai Railway Division or not? (on notional basis).
Learned counsel for the petitioner submitted that in Annexure -
A/8, he is relying on para 206.2 and 228 of Indian Railway
Establishment Manual volume 1 to the extent that such of those
deputationist is entitled to have certain service and other
benefits. The Central Administrative Tribunal has not apprised
the aforementioned clauses read with the fact that departmental
examination held by the Mumbai Railway Division was not
made known to the petitioner so as to make an opportunity of
participation in the departmental examination conducted by the
Mumbai Railway Division. The Tribunal has failed to examine
206.1 and 228 of Indian Railway Establishment Manual volume
- 1.
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
4. Per contra, learned counsel for the respondents
resisted the aforementioned contentions and submitted that the
petitioner was provided an opportunity to write examination as
is evident from para 14 of the seventh respondents counter
affidavit.
5. Therefore, there is no infirmity on behalf of the
respondents. Respondents have also supported the orders of the
CAT to the extent that there is no infirmity in all the three orders
read with the impugned order issued by the official respondents.
6. Heard the learned counsels for the respective
parties.
7. Core issue involved in the present lis is whether
petitioner is entitled to have the benefit of promotion to the post
of Group B - Assistant Engineer in the Mumbai Railway
Division, while he was on deputation to ECR Hazipur or not.
Undisputed facts are that petitioner was on deputation to ECR
Hazipur from Mumbai Railway Division from the year 1997 till
2005, in which year he was absorbed in the ECR. Promotion to
the post of Group - B Assistant Engineer at Mumbai Railway
Division occurred in the year 2001. One of the eligibility criteria
for promotion to the post of Group B Assistant Engineer is that
respective employee was required to pass certain departmental
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
examination. Departmental examination were stated to have
been conducted by Mumbai Railway Division in the year 2001
while the petitioner was on deputation to ECR Hazipur. Conduct
of departmental examination was not made known to the
petitioner as is evident from the record. Therefore, passing of
departmental examination for the purpose of Group B -
Assistant Engineer promotion by the petitioner was beyond his
control as he was on deputation to ECR, Hazipur. Therefore,
there are certain lapses on the part of the Mumbai Railway
Division insofar as holding departmental examination for the
post of Group B - Assistant Engineer in the Mumbai Railway
Division by ignoring the claim of the petitioner, who was on
deputation to ECR, Hazipur. For no fault on the part of the
petitioner, he shall not be denied the benefit of participating in
the departmental examination and earning of promotion. It is
true that the petitioner has not passed the departmental
examination for the purpose of promotion to the post of Group
B - Assistant Engineer at the relevant point of time and it was
beyond his control. On the other hand, he has passed
departmental examination at ECR with reference to his
absorption at ECR. Para 206.1 and 228 which reads as under:
"206.1 Consideration of Employees on deputation
-
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
In cases where employees eligible to take the
selection are abroad on deputation / secondment
and are not likely to return in a few months time,
the selection held in their absence should be
finalized without waiting for their return. On their
return they should be called for the first selection
held thereafter and on the basis of their
performance in the selection they should be
considered for proforma inclusion in the panel
framed during their absence abroad. If an employee
is thus included in the anel no arrears would be
payable to him and entitlement to pay in Group 'B'
would commence only from the date of his actual
officiating promotion. For the panel thus enlarged
Board's approval should be obtained. In respect of
eligible employees who are on deputation to offices
/ establishments, within the country, it should be
ensured that adequate advance notice is given to
such employees and they are considered at the
selection without fail.
228. Erroneous Promotions - (I) Sometimes due to
administrative errors, staff are over-looked for
promotion to higher grades could either be on
account of wrong assignment of relative seniority
of the eligible staff or full facts not being placed
before the competent authority at the time of
ordering promotion or some other reasons. Broadly,
loss of seniority due to the administrative errors
can be of two types :-
(i) Where a person has not been promoted at all
because of administrative errors and
(ii) Where a person has been promoted but not on
the date from which he would have been promoted
but for the administrative errors.
Each such case should be dealt with on its merits.
The staff who have lost promotion on account of
administrative error should on promotion be
assigned correct seniority vis-à-vis their juniors
already promoted, irrespective of the date of
promotion. Pay in the higher grade on promotion
may be fixed proforma at the proper time. The
enhanced pay may be allowed from the date of
actual promotion. No arrears on this account shall
be payable as he did not actually shoulder the
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
duties and responsibilities of the higher posts."
8. Reading of the aforementioned provision, it is
crystal clear that certain rights are vested with such of those
employees who are on deputation read with ignoring the name
of an employee for the purpose of promotion. Tribunal has not
appreciated factual aspect of the matter that petitioner has been
denied to participate in departmental examination and further
the aforementioned para 206.1 and 228 have not properly
interpreted to the extent that the petitioner has certain remedies
under these two clauses. In this backdrop ultimately the question
for consideration is whether petitioner is entitled to retrospective
promotion on notional basis or not. No doubt he has not
discharged duties of the post of Group B - Assistant Engineer
from 2001 at par with his immediate junior at Mumbai Railway
Division, at the same time it was beyond his control insofar as
appearing in departmental examination and passing it. On the
other hand, he has passed identical examination and was
promoted at ECR Hazipur. For no fault on the part of the
petitioner, denial of promotion to the post of Group B -
Assistant Engineer on notional basis would be arbitrary. The
Tribunal has not appreciated that petitioner has been denied
opportunity in not writing the examination and to have the
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
benefit of promotion to the Group B - Assistant Engineer in the
Mumbai Railway Division. Therefore, he has to be compensated
by promotion to the post of Group B - Assistant Engineer from
the date his immediate junior who was promoted to the
aforesaid post at Mumbai Railway Division. The same shall be
taken note of and petitioner shall be promoted from the date of
his junior. Such retrospective promotion to the post of Group B
- Assistant Engineer be considered only on notional basis, in
other words, for the purpose of fixation of pay and
consequential service benefits. It is made clear that petitioner is
not entitled to any monetary benefits from the date of his
junior's promotion till regular promotion awarded to him by the
ECR Hazipur.
9. Accordingly, Annexure - P-13 dated
15.10.2020, Annexure - P-10 dated 21.08.2020 and Annexure
P-15 dated 17.12.2020 is set aside. Writ petition stands allowed.
10. The service benefits shall be extended to the
petitioner insofar as the fixation of pay, other than monetary
benefits and the same be considered within a period of three
months. While passing detailed speaking order by the concerned
competent authority, if there is any dispute in respect of who
would be the competent authority, since the petitioner was out of
Patna High Court CWJC No.11512 of 2021 dt.25-01-2024
control as the petitioner's services have been absorbed at ECR,
Hazipur, in that circumstances, it is required to be determined by
the concerned authority and thereafter the paper shall be
transmitted for the purpose of passing speaking order in favour
of the petitioner for complying the directions of this Court.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
saurabhkr/-
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