Rajasthan High Court
Union Of India vs Dinesh Chandra Sharma Son Of Late Shri ... on 9 September, 2024
Bench: Pankaj Bhandari, Praveer Bhatnagar
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 14708/2021
1. Union Of India, Through General Manager, West Central
Zone, West Central Railway, Jabalpur.
2. Railway Board, Through Its Chairman, Rail Bhawan,
Ministry Of Railways, New Delhi.
3. Financial Commissioner, Railway Board, Rail Bhawan, New
Delhi.
4. Financial Advisor And Chief Accounts Officer, West Central
Zone, West Central Railway, Jabalpur.
5. Deputy Financial Advisor And Chief Accounts Officer (C),
West Central Railway, Kota Division, Kota.
6. Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota.
----Petitioners
Versus
1. Dinesh Chandra Sharma Son Of Late Shri Kailash Chandra
Sharma, Aged About 51 Years, Resident Of A-15, Ravi
Vihar, Mala Road, Kota Junction, Kota And Presently
Working As Accounts Assistant, Office Of Senior Divisional
Finance Manager, West Central Railway, Kota Division,
Kota. Postal Address - C/o Dinesh Chandra Sharma, A-15,
Ravi Vihar, Mala Road, Kota Junction, Kota.
2. Prakash Bhaskar Chaudhari Son Of Shri Bhaskar Dongar
Chaudhari, Aged About 50 Years, Presently Working As
Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
(Expired On 15.03.2019) Through Legal Representative
Wife
3. Seema Prakash Choudhary W/o Late Prakash Bhaskar
Chouhdary, R/o 222/223, Bajrang Nagar, Nayapura, Kota
(Raj.) 324001.
4. Dharmendra Kumar Sharma Son Of Shri Ram Kishor
Sharma, Aged About 49 Years, Presently Working As
Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
5. Bhuvnesh Kumar Pandey Son Of Late Shri Hanuman
Prasad Pandey, Aged About 57 Years, Presently Working
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As Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
6. Satish Kumar Dewani Son Of Late Shri Bhagwan Das,
Aged About 57 Years, Presently Working As Accounts
Assistant, Office Of Senior Divisional Finance Manager,
West Central Railway, Kota Division, Kota.
7. Jag Mohan Sharma Son Of Late Shri Budha Ram, Aged
About 53 Years, Presently Working As Accounts Assistant,
Office Of Senior Divisional Finance Manager, West Central
Railway, Kota Division, Kota. (Expired On 10.09.2017)
Through Legal Representative Wife -
8. Smt. Mohini Sharma W/o Late Jag Mohan Sharma,
Resident Of House No. 1133 Gali No. 4, Chopra Farm
Kota, Junction (Raj.) 324002.
9. Jai Kumar C Pathrey Son Of Shri Chandra Pal Pathrey,
Aged About 58 Years, Presently Working As Accounts
Assistant, Office Of Senior Divisional Finance Manager,
West Central Railway, Kota Division, Kota.
10. Ved Prakash Son Of Late Shri Roop Ram, Aged About 58
Years, Presently Working As Accounts Assistant, Office Of
Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota.
11. Ashok Kumar Son Of Shri Bal Kishan, Aged About 58
Years, Presently Working As Accounts Assistant, Office Of
Dy. Fa And Cao(C), West Central Railway, Kota Division,
Kota.
12. Chail Bihari Mudgal Son Of Late Shri Raghu Nandan
Sharma, Aged About 52 Years, Presently Working As
Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
(Retired On 31.10.2021) Present Address Chail Bihari
Mudgal S/o Late Shri Raghu Nandan Sharma 2D Mudgal
Vila Indira Colony, Mala Road, Kota Junction, Rajasthan -
324002.
13. Kalpana Mishra Wife Of Shri S.p.mishra, Aged About 50
Years, Presently Working As Accounts Assistant, Office Of
Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota.
14. Dharmendra Chaturvedi Son Of Shri Durga Prasad
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Chaturvedi, Aged About 54 Years, Presently Working As
Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
(Retired On 31.3.2020) Present Address Charmendra
Chaturvedi S/o Shri Durga Prasad Chaturvedi, In Front Of
Rapp Rest House Station Road, Kota Junction (Raj.)
324002.
15. Joseph Kidder Son Of Shri Franklin Kidder, Aged About 53
Years, Presently Working As Accounts Assistant, Office Of
Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota. (Retired On 31.12.2020) Present
Address Joseph Kidder S/o Shri Franklin Kidder Shiv
Nagar Station Road, Lakheri District Bundi (Raj.) 323603.
16. Ram Swaroop Meena Son Of Shri Ram Narayan Meena,
Aged About 51 Years, Presently Working As Accounts
Assistant, Office Of Senior Divisional Finance Manager,
West Central Railway, Kota Division, Kota.
17. Kailash Mahamana Wife Of Shri Rajendra Singh, Aged
About 54 Years, Presently Working As Accounts Assistant,
Office Of Senior Divisional Finance Manager, West Central
Railway, Kota Division, Kota. Retired On 29.02.2020)
Present Address Kailash Mahamana W/o Shri Rajendra
Singh, House No. 3 D Indra Colony, J.n. Marshall, Mala
Road, Kota Junction, Rajasthan - 324002.
18. Mahram Meena Son Of Shri Shophool Meena, Aged About
57 Years, Presently Working As Accounts Assistant, Office
Of Senior Divisional Finance Manager, West Central
Railway, Kota Division, Kota. (Retired On 31.07.2017)
Present Address Maharam Meena S/o Shri Shophool
Meena, Resident Of Village And Post Bichhidom Malarana
Dungar Hayat Palace, District Sawai Madhopur, Rajasthan
- 322028.
19. Ratan Lal Meena Son Of Shri Hari Pal Meena, Aged About
57 Years, Presently Working As Accounts Assistant, Office
Of Dy. Fa And Cao (C), West Central Railway, Kota
Division, Kota. (Expired On 25.06.2015) Through Legal
Representative Wife -
20. Kailashi W/o Late Ratan Lal Meena, Plot No. 23, Surya
Nagar Colony, Sawai Madhopur - 322001.
21. Ravi Shankar Mudgal Son Of Late Shri Raghu Nandan
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Sharma, Aged About 51 Years, Presently Working As
Accounts Assistant, Office Of Senior Divisional Finance
Manager, West Central Railway, Kota Division, Kota.
22. Jasveer Singh Batra Son Of Late Shri Sajan Das Batra,
Aged About 48 Years, Presently Working As Accounts
Assistant, Office Of Senior Divisional Finance Manager,
West Central Railway, Kota Division, Kota. (Expired On
18.02.2021) Through Legal Representative Wife-
23. Karamjit Kaur W/o Late Jasveer Singh Batra, 301, Guru
Ramdash Apartment Hotel Raj Kasher Mala Road, Kota
Rajasthan - 324002.
24. Rasal Singh Meena Son Of Shri Chhote Ram Meena, Aged
About 52 Years, Presently Working As Accounts Assistant,
Office Of Senior Divisional Finance Manager, West Central
Railway, Kota Division, Kota.
25. Ramkesh Meena Son Of Shri Parsadi Lal, Aged About 52
Years, Presently Working As Accounts Assistant, Office Of
Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota.
26. Mamta Dubey Wife Of Shri Rajeev Dubey, Aged About 46
Years, Presently Working As Accounts Assistant, Office Of
Senior Divisional Finance Manager, West Central Railway,
Kota Division, Kota.
27. Ghanshyam Lal Meena Son Of Shri Dhanna Lal Meena,
Aged About 51 Years, Presently Working As Accounts
Assistant, Office Of Senior Divisional Finance Manager,
West Central Railway, Kota Division, Kota.
28. Suresh B Meena Son Of Shri Badri Prasad Meena, Aged
About 51 Years, Voluntary Retired From The Post Of
Accounts Assistant, Office Of Senior Afa (W And S), West
Central Railway, Kota Division, Kota.
29. Smt. Poonam Ratnani W/o Shri Kishan Ratnani, Aged
About 54 Years, Presently Working As Accounts Assistant,
Office Of Senior Divisional Finance Manager, West Central
Railway, Kota Division, Kota.
----Respondents
For Petitioner(s) : Mr.Ashish Kumar
For Respondent(s) : Mr.Chandra Bhan Sharma
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HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
09/09/2024
1. Petitioners have preferred this writ petition aggrieved by the
order dated 16th February, 2021, whereby the Original Application
(OA), preferred by the respondents, was allowed and the
petitioners were directed not to count the promotion from Junior
Accounts Assistant (for short 'JAA') to Accounts Assistant (for
short 'AA') as promotion and consider the same as up-gradation
due to restructuring.
2. It is contended by learned counsel, appearing for the
petitioner - Union of India, that Central Administrative Tribunal,
Jaipur Bench, Jaipur placed reliance on the order passed by the
Central Administrative Tribunal, Madras Bench, which order was
upheld by the Division Bench of Madars High Court and SLP,
preferred against the said order, was dismissed by the Apex Court.
3. It is contended that Central Administrative Tribunal, Madras
Bench and Madras High Court did not consider the relevant Rules
while deciding the application.
4. Learned counsel for the petitioners contends that the
respondents were working as Junior Accounts Assistant. They
were promoted as Accounts Assistant and in the order itself, it was
mentioned that they are being promoted. It is also contended that
there was a change in pay-scale on promotion from JAA to AA. It
is further contended that there were certain requisites for being
considered as promoted i.e. they were required to complete three
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years' service in the grade and they were also required to pass
Appendix - II Examination.
5. It is argued that under the MACP Scheme, no one, who has
been given three promotions, was entitled to MACP benefit.
6. Learned counsel for the petitioners has drawn attention of
this Court to Indian Railways Establishment Manual, wherein in
para 171(5), it is provided that the posts in the grade of AA, in
scale Rs.1400-2600 will be filled by promotion of JAA in scale
Rs.1200-2040, after they have completed three years service in
the grade and passed Appendix - II Examination.
7. Learned counsel for the petitioner has placed reliance on the
judgments of the Apex Court in the case of Rama Nand & Ors. Vs.
Chief Secretary, Govt. of NCT of Delhi & Ors.:AIR 2020 SC 199,
The Railway Board and Ors. Vs. P. R. Subramaniyam & Ors.:
AIR 1978 SC 284. The reliance is also placed on the judgment of
the Apex Court in the case of Tarsem Singh & Ors. Vs. State of
Punjab & Ors.: AIR 1995 SC 384.
8. It is contended that the order passed by the Apex Court was
merely dismissal of SLP and the same cannot be said to be laying
down of law. Reliance in this regard has been placed on the
judgment in the case of Kunhayammed & Ors. Vs. State of Kerala
& Anr.:(2000) 6 SCC 359, wherein the Apex Court held that
mere dismissal of SLP does not amount to upholding of the order,
from which, leave to appeal is sought.
9. It is contended that Central Administrative Tribunal, Calcutta
Bench was also seized with the matter, wherein Central
Administrative Tribunal, Calcutta Bench, while dealing with the OA
No.335/2007 of Central Administrative Tribunal, Madras Bench,
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held it to be per incuriam, as Central Administrative Tribunal,
Madras Bench had not considered the Rules, which are framed by
Railways and are treated to be Rules under Article 309 of
Constitution of India.
10. Learned counsel, appearing for the applicants-respondents,
has vehemently opposed the writ petition. It is contended that no
promotion orders were passed, rather there was restructuring of
the post and out of 100 posts of JAA, 80 posts were reconstituted
as AA.
11. It is also contended that benefit of MACP Scheme cannot be
withdrawn as appointment of the respondents, on the post of AA,
cannot be treated as promotion.
12. It is further contended that judgment passed by Central
Administrative Tribunal, Madars Bench was confirmed by the
Division Bench of Madras High Court and SLP, preferred by Union
of India was dismissed by the Apex Court and the case of the
applicants is akin to the case before the Central Administrative
Tribunal, Madras Bench, therefore, learned Tribunal has not
committed any error in allowing the OA, filed by the respondents.
13. We have considered the contentions.
14. As to whether promotion of the respondents as AA would be
treated as promotion or should be treated as restructuring of the
post is the question in issue before us.
15. The Apex Court in the case of Rama Nand & Ors. (supra) in
para Nos.15, 17 & 18 held as under:
"15. Learned counsel in the aforesaid context, while
turning to the factual matrix of the present case,
submitted that there are three aspects which are
material in the present case:
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(i) prequalification of minimum of 5 years of service;
(ii) higher financial emoluments;
(iii) rigorous of a specialised training
These make a candidate eligible. It was, thus, a
submission that if all these three are considered
together, there can be no doubt that the present case
is one which should be considered as the promotion for
the purpose of ACP Scheme.
17. The reasons for coming to this conclusion is based
on the principles set out in the BSNL case (supra). No
doubt, sometimes there is a fine distinction which
arises in such cases, but, a holistic view has to be
taken considering the factual matrix of each case. The
consequence of reorganisation of the cadre resulted in
not only a mere re-description of the post but also a
much higher pay scale being granted to the appellants
based on an element of selection criteria. We say so
as, at the threshold itself, there is a requirement of a
minimum 5 years of service. Thus, all Telephone
Operators would not automatically be eligible for the
new post. Undoubtedly, the financial emoluments, as
stated above, are much higher. The third important
aspect is that the appellants had to go through the
rigorous of a specialised training. All these cannot be
stated to be only an exercise of merely re- description
or reorganisation of the cadre. On applying the test in
BSNL case (supra), as per sub-para (i) of para 29,
promotion may include an advancement to a higher
pay scale without moving to a different post. In the
present case, there is a re-description of the post
based on higher pay scale and a specialised training.
It is not a case covered by sub-para (iii), as
canvassed by learned counsel for the appellants,
where the higher pay scale is available to everyone
who satisfies the eligibility condition without
undergoing any process of selection. The training and
the benchmark of 5 years of service itself involve an
element of selection process. Similarly, it is not as if
the requirement is only a minimum of 5 years of
service by itself, so as to cover it under sub-para (iv).
18. We have already observed that the complete
factual contours of the difference between the two
posts would have to be examined in the given factual
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situation and the triple criteria of minimum 5 years of
service, a specialised training and much higher
financial emoluments leaves us in no manner of doubt.
What was done has to be considered as a promotion
disentitling the appellants to the benefits of the ACP
Scheme. As the very objective of the ACP Scheme, as
set out, is "to deal with the problem of genuine
stagnation and hardship faced by the employees due
to lack of adequate promotional avenues."
16. The Apex Court, in the case of Rama Nand & Ors. (supra),
held that for ascertaining whether there is promotion or not, the
factual situation and triple criteria rule has to be applied. The Apex
Court also held that there was requirement of minimum five years
of service, specialised training and higher financial emoluments,
therefore, the same was to be considered as promotion.
17. In the present case in hand, as per Railway Board Circular,
the posts in the grade of AA, in scale Rs.1400-2600 is to be filled
by promotion of JAA in scale Rs.1200-2040 after they have
completed three years service in the grade and passed
Appendix - II Examination. Thus, minimum requirement for being
promoted on the post of AA was three years service as JAA and
passing of Appendix - II Examination. It was thus a promotional
post as it was higher in grade and there was minimum requisite
number of years of service in the lower grade with passing of
requisite examination. The order itself, by which, the respondents
were promoted, specifies that as a result of up-gradation of the
posts of CG - I (re-designated as JAA) scale Rs.1200-2040 to that
of SH now re-designated as AA scale Rs.1400-2600, promotion
order was issued. Thus, there was redesignation of post but at the
same time, promotional avenues were kept open and the earlier
post was not abolished.
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18. The Central Administrative Tribunal, Jaipur Bench has not
referred to the relevant Rule i.e. 1313 (FR 22), which deals with
pay fixation pursuant to the promotions. The Central
Administrative Tribunal, Calcutta Bench had dealt with the entire
matter and had held that the judgment passed by Central
Administrative Tribunal, Madras Bench was per incuriam, as they
have not referred to the relevant Rules. In the present case, the
Central Administrative Tribunal, Jaipur Bench has not referred to
the Rules and has passed the order in consideration of the order
passed by Central Administrative Tribunal, Madras Bench.
19. We are of the considered view that the respondents have
been promoted from JAA to AA, which was a higher pay-scale.
Thus, as per the judgment of Apex Court also, it has to be treated
as a promotion. Since the respondents have been promoted, they
were not entitled to MACP Scheme and withdrawal of MACP by the
petitioners cannot be said to be de hors the Rules.
20. Consequently, we deem it proper to allow the writ petition
while setting aside and quashing the order dated 16 th February,
2021, passed by the Central Administrative Tribunal, Jaipur Bench,
Jaipur.
21. Accordingly, the writ petition is allowed.
(PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J
Preeti Asopa /116
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