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2001 DIGILAW 1653 (AP)

R. Chakranapani v. Union Of India

2001-12-18

L.NARASIMHA REDDY, S.R.NAYAK

body2001
ORDER : S.R. Nayak, J. The unsuccessful applicant before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, (for short the Tribunal), being aggrieved by the order of the learned Tribunal dated 7-3-2000 in O.A.No. 144 of 1999, has filed this writ petition. The background facts leading to the filing of the writ petition be noted briefly as under: 2. The petitioner entered into service as Peon in the office of the South Central Railway in the year 1981. Subsequently he was promoted, against the promotion quota from Group D to Group C against 33?%, to the post of Shroff from the specified category of Group-D who possessed SSC qualification. The next avenue of promotion to the petitioner is to the post of Senior Shroff in the scale of Rs. 1200-2040. A notification bearing No. AOP/AOI/Pt.III dated 30-3-1995 was issued for the purpose of preparation of a panel of eligible candidates for appointment to the post of Senior Shroff. The petitioner responded to the said notification and he was called for the test, but he was not selected. At the relevant point of time, the petitioner was placed at S.No.1 in the seniority list in the feeder cadre i.e., in the cadre of Shroff. Although the petitioner stood at S.No.1 in the seniority list in the feeder cadre of Shroff, he was not selected. Aggrieved by that action, the petitioner filed O.A.No.277 of 1996 before the learned Tribunal. However, that O.A. was dismissed on the ground that the petitioner did not challenge the validity of the letter dated 12-9-1979 of the Deputy Director, Establishment, Railway Board, New Delhi, whereby a revised chart for filling up the post of Senior Shroff and other posts in the Cash and Pay Department of S.C. Railway was issued. Thereafterwards, the petitioner again responded to the notification issued for the purpose of preparation of the panel of eligible candidates for appointment to the post of Senior Shroff in the year 1997. According to the Department, the petitioner failed in the written test and, therefore, his name was not included in the select panel. In the background of non-selection of the petitioner for being empanelled for appointment to the post of Senior Shroff, the petitioner instituted O.A.No.144 of 1999 before the learned Tribunal. According to the Department, the petitioner failed in the written test and, therefore, his name was not included in the select panel. In the background of non-selection of the petitioner for being empanelled for appointment to the post of Senior Shroff, the petitioner instituted O.A.No.144 of 1999 before the learned Tribunal. The contention of the petitioner before the learned Tribunal was that the post of Senior Shroff was a non-selection post and, therefore, having regard to his seniority at S.No.1 in the feeder cadre of Shroff, he ought to have been promoted to the post of Senior Shroff, and in treating the post of Senior Shroff as a selection post. The appointing authority committed an irregularity and an illegality. On the other hand, the Railway Administration contended that the post of Senior Shroff is a selection post, and in so maintaining, the Railway Administration placed reliance on the Letter No. E(NG) 1-70PMI/253 dated 12-9-1979 issued by the Deputy Director, Establishment, Railway Board, New Delhi. Relevant portion of the said letter reads- "The question of classification of posts in Cash and Pay Department had been raised by some of the Railways and after careful consideration the Ministry of Railways have decided that the posts in the Cash and Pay Department may be classified as indicated below: Category Scale Classification Cashier Rs. 330-480 Selection Senior Cashier Inspector of Cashiers/Asst. Divisional Cashiers Rs. 425-540 Non-selection Cashiers Rs. 455-700 Non-selection Divl. Cashiers Rs. 550-750 Selection Divl. Cashiers Rs. 700-900 Selection The selection in respect of Shroffs may also be on similar lines. Hindi version will follow. Sd/- Dwarka Dass Deputy Director, Establishment Railway Board." The learned Tribunal accepting the contention of the Railway Administration, particularly placing reliance on the sentence "the selection in respect of Shroffs may also be on similar lines" occurring in the above letter of the Deputy Director, Establishment, Railway Board, held that the post of Senior Shroff is a selection post and, therefore, no objection can be taken to the non-selection of the petitioner to the post of Senior Shroff. In that view of the matter, the learned Tribunal by its order dated 7-3-2000 dismissed O.A.No. 144 of 1999. Hence this writ petition by the unsuccessful applicant. 3. Mr. K.W.J. Bose, appearing for Mr. In that view of the matter, the learned Tribunal by its order dated 7-3-2000 dismissed O.A.No. 144 of 1999. Hence this writ petition by the unsuccessful applicant. 3. Mr. K.W.J. Bose, appearing for Mr. K.R.Ashok, the learned Counsel for the petitioner would contend that Rule 169(3) of the Indian Railway Establishment Manual, Vol.I (for short, IREM), clearly shows that the post of Senior Shroff is a promotional post, and that post is required to be filled up by the mode, promotion-cum-suitability only, and the action of the Railway Board in placing reliance on the letter of the Deputy Director, Establishment, Railway Board, dated 12-9-1979, is totally misconceived. He would also maintain that the observation made by the Deputy Director, Establishment, Railway Board in the form of clarification, in the above letter cannot be equated to an amendment of the statutory rule contained in Rule 169(3) of IREM. 4. On the other hand, Mr. Gouri Shankar Sanghi, learned Standing Counsel for Railways, would support the order of the learned Tribunal, and would maintain that Rule 169(3) of IREM read with the letter of the Deputy Director, Establishment, Railway Board, dated 12-9-1979, and the revised chart of channel of promotion of Class III staff of Cash and Pay Department of SC Railway issued in pursuance of the letter dated 12-7-1979, would clearly establish that the post of Senior Shroff is a selection post and not a non-selection post. 5. Before proceeding to consider the rival contentions of the learned Counsel, it would be appropriate to notice the relevant Rules. Rule 169(3) of IREM reads- 169. (a). Accounts Department. (I) Cash and Pay Officer-Shroffs: (1) xxx (2) xxx (3) The following higher grade posts are available to them in the normal channel of promotion:- Rule 212 of IREM reads- "212. Declaration of posts as 'selection' or 'non-selection posts' - The posts are declared as 'selection' or non-selection posts for the purpose of promotion by the Railway Board depending upon the requirement of the service." 6. From the reading of the above Rule, it is quite apparent that it is within the domain of the power of the Railway Board to classify a post as 'selection post' or 'non-selection post'. At the time of hearing, we pointedly asked the learned Standing Counsel for Railways whether the Railway Board has issued any notification or communication treating the post of Senior Shroff as a 'selection post'. At the time of hearing, we pointedly asked the learned Standing Counsel for Railways whether the Railway Board has issued any notification or communication treating the post of Senior Shroff as a 'selection post'. The answer from the learned Standing Counsel is that there is no such notification or communication. In the absence of such notification issued by the Railway Board, the provisions of Rule 169(3) would clinchingly show that the post of Senior Shroff is a non-selection post. This intendment of the rule is quite apparent and clear when sub-rule (3) of Rule 169 of IREM speaks about filling up of the posts of Senior and Head Shroff by 'normal channel of promotion'. 7. The argument built up by the learned Standing Counsel for Railways on the basis of the letter dated 12-9-1979 issued by the Deputy Director, Establishment, Railway Board, is required to be noticed only to be rejected. In the first place, the said letter cannot be equated to a statutory instrument on par with Rule 169(3) of IREM. Secondly, even assuming that the sentence "the classification in respect of Shroffs may also be on similar lines" occurring in the said letter would enable the recruiting agency to consider the post of Senior Shroff as a selection post, even then, we cannot give effect to that clarification issued by the Deputy Director, Establishment, Railway Board, New Delhi, because, admittedly that is his personal opinion, and not an amendment of the Rule 169(3) of IREM by the Railway Board. Further, the revised chart of channel of promotion of Class III staff of Cash and Pay Department of S.C. Railway, was issued at a time when the post of Senior Shroff was carrying the scale of pay of Rs. 330-480. Secondly, nothing is placed before us to show that the revised chart of channel of promotion placed before us is a statutory instrument, in the sense that it was issued by the Railway Board itself as a rule making authority under the statute. On the other hand, the IREM, Vol. I, was published in the year 1989 when the post of Senior Shroff was carrying the scale of pay of Rs. 1240-2040, and it clearly shows that the post of Senior Shroff has to be filled up by normal channel of promotion. On the other hand, the IREM, Vol. I, was published in the year 1989 when the post of Senior Shroff was carrying the scale of pay of Rs. 1240-2040, and it clearly shows that the post of Senior Shroff has to be filled up by normal channel of promotion. We are, therefore, constrained to hold that the post of Senior Shroff is a non-selection post and not a selection post, and, therefore, it is required to be filled up only by way of promotion. In that view of the matter, we cannot sustain the order made by the learned Tribunal. The order of the learned Tribunal suffers from an error apparent on its face. 8. In the result and for the foregoing reasons, we allow the writ petition and set aside the order of the learned Tribunal dated 7-3-2000 made in O.A.No.144 of 1998. A direction shall issue to the Railway Administration to promote the petitioner to the post of Senior Shroff with effect from the date on which his immediate junior was promoted, subject to the petitioner fulfilling the other eligibility criteria under the relevant rules and regulations. No costs.