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2010 DIGILAW 663 (ORI)

SRI C. SUBBA RAO v. UNION OF INDIA

2010-09-21

PRADIP MOHANTY, S.K.MISHRA

body2010
JUDGMENT : S.K. Mishra, J. - Petitioner has filed this writ petition to quash the order of the Central Administrative Tribunal, Cuttack Bench, hereinafter referred to as the Tribunal' for brevity, passed on 27.08.2001 in O.A. No.365 of 2000. Petitioner further prayed that writ of mandamus be issued directing the opposite parties to regularize and/or confirm him in the grade and/or cadre in the existing scale of pay in the Construction Organization or against the PCR (Permanent Construction Reserve) vacancies in the Construction Organization in the existing grade or cadre, with the consequential benefits. 2. The admitted facts of the case may be stated, briefly, as follows : Petitioner was initially appointed as a Casual Supervising Mistry on 04.05.1976 under the I.O.W. (Construction), Jagadalpur and worked in various capacities. While working in the Construction Organization, he was screened for absorption in Group-D post in Open Line. Having been found suitable in the screening, he was released in the screening on 19.07.1986 and was absorbed as Khalasi in the Steam Loco of Mechanical Department of Waltair Division in the order dated 22.07.1986. The petitioner claims that by the time he came to the Open Line, he was given promotion to the level of Supervising Mistry Grade-I on 16.05.1986. The petitioner claims that the Deputy Chief Engineer (Construction) required his services in the Construction Organization and after working in Open Line from 22.07.1986 to 15.10.1986, he was again transferred back to the Construction Organization. In the Construction Organization he was given ad hoc promotion to the post of Supervising Mistry Grade-I w.e.f. 01.03.1987, after he cleared the trade test. According to the petitioner, he was further promoted to the I.O.W. Grade-III initially for a period of three months from 01.06.1989 to 01.09.1989. Later, in order dated 16.05.1990, he was promoted and allowed to continue as I.O.W. Grade-III. This promotion was also given after he cleared the trade test. The petitioner further pleads that in order to regularize the locally recruited Group C and D staff, the Ministry of Railways created PCR posts to the extent of 40% of the construction cadre as on 01.04.1973. This was reviewed on 01.04.1984, and again, has been increased to 60% of the construction cadre from 01.04.1988. The petitioner further pleads that in order to regularize the locally recruited Group C and D staff, the Ministry of Railways created PCR posts to the extent of 40% of the construction cadre as on 01.04.1973. This was reviewed on 01.04.1984, and again, has been increased to 60% of the construction cadre from 01.04.1988. Petitioner claims that several staff holding lien in Open Line have also been confirmed with retrospective effect terminating their lien in Open Line in Waltair Division, but he has been treated in a discriminatory fashion in so far as he has never been confirmed in Construction Organization. It is, further, pleaded that the petitioner has all along remained in Construction Organization from 1976, except for about three months when he worked in Open Line, his juniors in the Open Line have acquired several promotions and he has also been discriminated against in the Open Line. 3. Opposite parties in their counter mainly resorted to the plea that the petitioner being a lien holder in the Open Line cannot claim absorption in Construction Organization against the PCR post. They also stated that his claim for regularization in different posts in Construction Organization to which he was given ad hoc promotion from time to time is also barred by limitation because he has approached the Tribunal many years after such ad hoc appointment. The opposite parties plead that according to Rules, a lien holder from Open Line on secondment to the Construction Organization is not eligible to get regularized in Construction Organization. The opposite parties further plead that petitioner has to seek for his promotion in the Open Line to which cadre he belongs. The opposite parties further stated that a large number of persons working in the Construction Organization have been given several ad hoc promotions from one post to the next higher post. This was reviewed by the General Manager and a policy decision was taken to review all cases, where more than two ad hoc promotions have been given. As the petitioner enjoyed more than two ad hoc in the Construction Organization, his case was due to be reviewed for the purpose of his reversion in the Construction Organization to a lower post. As the petitioner enjoyed more than two ad hoc in the Construction Organization, his case was due to be reviewed for the purpose of his reversion in the Construction Organization to a lower post. Faced with this prospect, the petitioner approached the Tribunal for his regular absorption in the posts in Construction Organization to which he has been promoted on ad hoc basis from time to time. 4. The Tribunal, after taking into consideration the pleadings of the parties and the materials placed before it, came to the conclusion that the petitioner got absorbed in Open Line of his own volition, and hence, his status in the Construction Organization is that of a lien holder. It, further came to the conclusion that the promotion of lien holders in the borrowing Railway Department is purely a temporary one for so long as they are on deputation with the borrowing Railway Organization. Such promotion will not allow the person concerned to any preferential treatment in his own parent cadre. The Tribunal, further, held that the PCR posts were created in 1978. On 01.04.1988, the PCR posts were raised from 40% to 60% of the cadre. The original PCR posts must have been filled up much earlier. Since the petitioner has not applied for absorption in the PCR posts and approached the Tribunal for the first time in 2000, his claim is stale. Moreover, in the meantime, in the Circular dated 17.03.1989, it has been provided that personnel having lien in Open Line would not at all be eligible for confirmation against Construction Reserve Posts since these posts meant for confirming the locally recruited personnel in Construction Organization, who have no lien or permanency status or those who are confirmed against construction reserve lower cadre. The Tribunal, further, held that the petitioner was absorbed in the post of Khalasi in Steam Loco Shed. With the abolition of Steam Loco and closure of Steam Loco shed, the eligible staffs in the Steam Loco Shed were considered for coming over to running side as per their option. The petitioner never submitted such option at the relevant time. He has come up for absorption only after the Railways have taken a decision to review all the cases of more than two ad hoc promotions. His prayer for absorption in Construction Organization is also, therefore, highly belated. The petitioner never submitted such option at the relevant time. He has come up for absorption only after the Railways have taken a decision to review all the cases of more than two ad hoc promotions. His prayer for absorption in Construction Organization is also, therefore, highly belated. Holding thus, the Tribunal rejected the application filed by the petitioner. 5. In assailing the findings recorded by the Tribunal, learned counsel for the petitioner submitted that the petitioner was never a lien holder in the Open Line. Rather, he was absorbed in the Construction Organization and worked there for more than 25 years. He had worked only for a few months in the Open Line. It is, further, contended that after such a long period he cannot be repatriated to the Open Line in view of the fact that he has not gathered any experience in the work in the Open Line. It is further contended that the letter issued by the railway authorities to review all ad hoc promotions does not apply to the present petitioner. Therefore, learned counsel for the petitioner submits that the order impugned be set aside and necessary directions for regularization be passed. 6. Learned counsel for the opposite parties, on the other hand, submitted that the petitioner being a lien holder in the Open Line his cases for regularization in the Construction Organization cannot be considered. Secondly, basing on the Rules of the Railways vide Estt. Serial No.144/1988 (Railway Board's instructions), Waltair, it has been made clear that the posting in the Construction Organization will be treated purely on ad hoc basis and such persons will have no claim to the post or grade held by them. Such persons will be considered for promotion in their respective parent cadre in accordance with rules governing such promotions. It is also contended by learned counsel for the opposite parties that petitioner had no specific knowledge, eligible criteria for confirmation against 40% PCR posts as on 01.04.1995. Hence, his case was not considered. After, increase of the PCR posts to 60% on 01.04.1988 the additional posts were filled up in the year 1989. At the time of filling up the additional PCR posts, the petitioner was an Open Line lien holder of Waltair Division and as per the Railway Boards Circular personnel having lien in Open Line were not eligible for regularization in PCR posts. At the time of filling up the additional PCR posts, the petitioner was an Open Line lien holder of Waltair Division and as per the Railway Boards Circular personnel having lien in Open Line were not eligible for regularization in PCR posts. Therefore, he has rightly been not regularized. Learned counsel for the opposite parties, therefore, prays to dismiss the writ petition. 7. It has been held by the Tribunal the petitioner joined as Casual Supervising Mistry in the Construction Organization in the year 1976. It is also not disputed that on 04.11.1976, the petitioner was allowed regular scale of pay of Rs.330-480/- in the Construction Organization. On 01.01.1982, he was granted temporary status. On 23.09.1983, he was appointed as the Supervising Mistry Grade-II (Grade- 'C post) with the pay scale of Rs.330-480/. On 16.05.1985, he was promoted as the Supervising Mistry (Grade-I) with scale of pay of Rs.380-560/-, 1400-2300/-, 5000-8000/-. On 22.07.1986, the petitioner was screened in Group-'D' as Shed Khalasi in Steam Loco Shed/Waltair. He worked till 15.10.1986 for a period of 21/2 months in the Steam Loco Shed, presently abolished. It is also borne out from Annexure-3 that on 16.08.1986, the Deputy Chief Engineer (Construction), Koraput, vide his letter dated 16.08.1986, the Deputy Chief Enginee' (Construction), Koraput, vide his letter dated 16.08.1986 requested the D.R.M.(P)/Waltair through Chief Engineer (S & C)/Waltair to release the petitioner to the Construction Organization in the interest of administration. It appears from the said Annexure-3 of the brief, the services of the petitioner were very essential to assist the I.O.W. (C)/Koraput in preparing the completion drawings, material statements, MAS returns and closing of the stores as he was well conversant with the transactions right from the beginning. He, further, stated that the services of the petitioner were essentially required to close the I.O.W.-1 (Con) unit. Thus, as per the aforesaid request, the petitioner was restored to the Construction Organization on 15.10.1986. On 01.03.1987, the petitioner was posted as Supervising Mistry, Grade-I. On 01.06.1989 the petitioner was posted as Inspector of Works (IOW) Grade-III (re-designated Junior Engineer, Grade-II having higher responsibility on qualifying the suitability test in the same scale. 8. Thus, as per the aforesaid request, the petitioner was restored to the Construction Organization on 15.10.1986. On 01.03.1987, the petitioner was posted as Supervising Mistry, Grade-I. On 01.06.1989 the petitioner was posted as Inspector of Works (IOW) Grade-III (re-designated Junior Engineer, Grade-II having higher responsibility on qualifying the suitability test in the same scale. 8. While learned counsel for the petitioner failed to establish that the petitioner had no lien in the Open Line, it is undisputed at this stage that he had worked only for 21/2 months in the Open Line, more specifically in the Steam Loco Shed since discontinuation of Steam Locomotives, the Steam Loco shed has been permanently closed and the petitioner has not gained any experience in any other stream of the Open Line. It remains undisputed that since his posting in the Construction Organization from 15.10.1986 till the date of filing of the Original Application before the Tribunal, he continued to work as employee of the Construction Organization. It is also without dispute that he has worked only 21/2 months in the Steam Loco Shed in Open Line. Before that, for about ten years, he has worked in the Construction Organization wherein keeping in view his expertise and successfully passing the trade tests, he has been given two ad hoc promotions. The Hon'ble Supreme Court in N.S.K. Nayar and others Vs. Union of India and others took note of the Telegraph Engineering Service (Class-I), Rules (1965) and observed that Rule-27(b) provides that the post in Senior Time Scale (STS) be filled up by promotion of permanent officers of Telegraph Engineering Service, Class II who are on the approved list for promotion to Junior Time Scale (JTS). Such promotions, under the rule, are purely temporary, in an officiating capacity to hold charge. The Supreme Court further took the view that the Rule 27(b) of the Rules has been made to enable the Government to meet an ad hoc shortage of officers to man the posts in STS. The Class-II officers have long experience to their credit and their nature of work was almost identical to that of the posts in JTS. The direct recruits to JTS are deputed to work in Class-II posts to acquire experience. The Class-II officers have long experience to their credit and their nature of work was almost identical to that of the posts in JTS. The direct recruits to JTS are deputed to work in Class-II posts to acquire experience. However, the Supreme Court further observed that Rule-27(b) has been enacted to enable the Government to fill up the large number of vacancies in STS by appointing Class-II officers with a frog-leap from Class-II to STS by passing the JTS. The object of having Rule 27(b) of the Rules is to provide a source of appointment to meet an administrative exigency of short tenure. It could never be the intention of the framers of the Rule to permit the appointments under the said Rule to go on for 10 to 15 years. The appointments for such a long period cannot be considered to be purely temporary/officiating and to hold charge. Taking work from persons so appointed in the STS posts for 10 to 15 years and denying them the right of regularization and the consequent benefits in the said grade, is wholly arbitrary and is violative of Article 16 of the Constitution of India. Holding thus, the Hon'ble Supreme Court directed the Union of India not to revert any of the employees promoted to STS and if necessary the Government shall create supernumerary posts in the STS, etc. to the accommodate the petitioner and other officers similarly situated persons. 9. This view of the Hon'ble Supreme Court is applicable to the case in hand. It is undisputed that the petitioner was initially appointed in the Construction Organization and was deputed to the Open Line where he worked for 21/2 months being absorbed as temporary Khalasi in the Steam Loco Shed. Thereafter, as per the desire of the higher officers and keeping in view his expertise and knowledge in the field, he was brought to the Construction Organization again as is evident from the aforesaid letter (Annexure-3). Thereafter, he worked for a long period, i.e., from 1986 to 2000. Thereafter, as per the desire of the higher officers and keeping in view his expertise and knowledge in the field, he was brought to the Construction Organization again as is evident from the aforesaid letter (Annexure-3). Thereafter, he worked for a long period, i.e., from 1986 to 2000. In the meantime, the Chief Personnel Officer, South Eastern Railways, Garden Reach, Calcutta on 13.12.1999, brought out a Circular in which it was directed that more than one ad hoc promotion should not be made, and whenever ad hoc promotions were found inescapable in exigency of service, the same shall be ordered only for short duration up to four months from amongst the senior most eligible staff strictly in the existing guidelines under the Indian Railway Establishment Manual. The effect of such guidelines came up for consideration before a Division Bench of this Court in OJC Nos.5477 and 5459 of 2002 to which one of us (Justice Pradip Mohanty) was a party. As per the Judgment dated 07.03.2006, the Division Bench held as follows : A perusal of the Railway Board's circular dated 13.11.2001 shows that it was directed therein that all second or more ad Hoc promotions granted to the staff in violation of its instructions should be terminated with effect from 01.12.2001. As it appears from the record, for the first time, the Board issued instructions not to make second ad hoc promotion in the year 1999. But opposite parties 2 to 9 were already given promotion in the year 1997 prior to issuance of the said direction of the Railway Board. The Board has not directed that the second ad hoc promotion given prior to the instructions issued by it for the first time should also be terminated. The instructions were only to the extent that those second or more ad hoc promotions which were given contrary to the instructions of the Railway Board, meaning thereby that after issuance of such direction if any second or more ad hoc promotion has been made, the same shall be terminated. The direction was issued in the year 1999 without any retrospective effect. Therefore, in view of this, opposite parties 2 to 9 do not come within the ambit of the said direction of the Railway Board. 10. The direction was issued in the year 1999 without any retrospective effect. Therefore, in view of this, opposite parties 2 to 9 do not come within the ambit of the said direction of the Railway Board. 10. This observation of the Division Bench of this Court is squarely applicable to the case in hand, as promotions were given to the present petitioner, even prior to the issuance of the letter in the year 1999. He was given the second ad hoc promotion about a decade prior to issuance of such circular letter. In the afore-quoted case the Division Bench of this Court has held that the Circular is not retrospective in operation. That apart, it is seen that the petitioner in the Construction Organization worked for a long period. If his services taken into consideration from 1976, he has been working there for more than 34 years. He was asked to work in the Open Line only for 21/2 months. Thus, in the Steam Loco shed, which has been permanently closed, the petitioner has not gathered any expertise either in diesel or electricity powered locomotives. Therefore, he cannot be given promotion in the Open Line and in case he is directed to work in such stream, it may cause hazards and is dangerous to the society and public at large. Moreover, the petitioner has rendered his services for more than three decades in the Construction Organization and his transfer to the Construction Organization in the year 1986 was on the request of the Deputy Chief Engineer (Construction), Koraput, so that his expertise and efficiency can be utilized in completion of a target. Thereafter, he remained for a long period in the Construction. Hence, in all fitness of things, the petitioner should not be asked to revert back to a lower post and the Railways (Union of India) as a Model employer should recognize the services rendered by the petitioner and should accord regularization to him in the Construction Organization. 11. In above view of the matter, we quash the order passed by the Tribunal, i.e., Annexures 25 and direct that the petitioner should not be reverted to any lower post. He should be regularized in the Construction Organization within a period of two months of receiving certified copy of this order. The writ petition is accordingly allowed. Petitioner is directed to file the requisites within two weeks. No costs. He should be regularized in the Construction Organization within a period of two months of receiving certified copy of this order. The writ petition is accordingly allowed. Petitioner is directed to file the requisites within two weeks. No costs. Pradip Mohanty, J. 12. I agree. Final Result : Allowed