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K.C. Mohanty Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 2107 of 1980
Judge
Reported inAIR1985Ori149
AppellantK.C. Mohanty
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateG.A.R. Dora, Adv.
Respondent AdvocateB. Pal, ;S. Misra and ;R. Saha, Advs.
DispositionPetition allowed
Cases ReferredJagdish Singh v. Union of India
Excerpt:
.....assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - they have further stated that the petitioner was not included in the panel published under annexure-7 as after qualifying at the written examination he failed in the viva-voce test. it appears from the counter of the opposite parties that the petitioner passed the written examination but failed at the viva-voce test. the question is whether the petitioner should have been declared unsuccessful at the viva-voce test after working in the promotional post for more than three years. we are inclined to accept the position that under annexure-2, the board clearly decided that those..........officiating on ad-hoc basis in higher posts to be selected and included in the panels for these posts. annexure-e issued on 13-9-82 has no application to this case where the empanelment dated 24-9-80 under annexure-7 and the office order dated 30-9-80 under annexure-8 are under challenge.8. accordingly, this writ application is allowed. we direct opposite parties 1 and 2 to empanel the petitioner for the post of junior d.t.i. with effect from 24-9-80 and not 29-9-83 and in the said panel the petitioner shall rank senior to opposite parties 3 and 4. annexures 7, 8 and 'x' should be modified accordingly and all consequential service benefits shall be given to the petitioner at an early date. with the aforesaid direction this writ application is disposed of but without any order as to.....
Judgment:

B.N. Misra, J.

1. This application by the petitioner under article 226 of the Constitution of India is directed against the provisional panel dated 24-9-80, Annexure-7 drawn up by the Divisional Personnel Officer, South Eastern Railway, Khurda Road (Opposite Party No. 2) wherein the names of opposite parties 3 and 4 have been included and the name of the petitioner omitted and the office order dated 30-9-80, Ahnexure-8, wherein the promotions of opposite parties 3 and 4 pursuant to Annexure-7 have been regularised by opposite party No. 2.

2. In order to appreciate the point involved in this case it will be necessary to state thefacts briefly. The petitioner was selected by the Railway Service Commission and appointed as Assistant Station Master, Gr. III on 12-1-1962. On 15-8-1971 he was promoted as Assistant Transport Inspector in the scale of Rs. 425-640/- and was confirmed as such on 1-1-1973. Opposite party No. 3 who had joined service under the Railways as a Relieving Clerk on 1-5-54 was promoted as an Assistant yard master, Class II in the scale of Rs. 425-640/-on 13-10-76. Opposite party No. 4 belonging to the Scheduled Caste community was appointed as Assistant Station Master, Gr. III on 6-9-66 and was promoted to the post of Assistant Station Master, Gr. II, in the scale of Rs. 425-640/- on 6-4-75. According to the petitioner, the posts of Assistant Transport Inspector held by him and the posts of Assistant Yard Master and Assistant Station Master, Gr. II, held by opposite parties 3 and 4 respectively, are equivalent posts carrying the same scale of pay, i. e. Rs. 425-640/-. The petitioner claims to be senior to opposite parties 3 and 4 as his promotion was earlier in point of time and he had already been confirmed in the promotional post with effect from 1-1-73, but opposite parties 3 and 4 had not been confirmed in their respective promotional posts. The next higher promotional posts for the petitioner and opposite parties 3 and 4 from their respective posts described above are the posts of Junior D. T. I./T, I. Gr. III, in the scale of Rs. 455-700/-. Being senior to opposite parties 3 and 4 the petitioner was promoted on ad-hoc basis as Junior D. T. I. by order dated 8-3-17 Annexure-1. The petitioner joined as Junior D. T. I. on 11-3-77. Opposite party No. 3 was promoted on ad-hoc as Junior D. T. I. on 6-7-78 and opposite party No. 4 was also promoted on ad-hoc basis as Junior D. T. I. on 31-7-78. Thereafter opposite party No. 2, by his letter 17-5-79, Annexure-2, decided to hold a written examination and a viva-voce test to draw up a panel of four staff (three unreserved and one Scheduled Caste) by selection for regular promotion to the posts of Junior D. T. I./T. I. Gr. III/Moving Inspector Gr. III in the scale of Rs. 455-700/-. The petitioner has been continuously officiating in the post of Junior D. T. I. for more than three years from 11-3-77 and as per Railway Board's Circulars and Orders contained in Annexures 3 and 4, the petitioner's promotion automatically became regular and he could not be reverted to any lower post after three years on any groundexcept for mis-conduct. The petitioner's work all throughout was satisfactory and no defect in his work had ever been noticed or communicated. However, as desired by opposite party No. 2, the petitioner and opposite parties 3 and 4 expressed their willingness and appeared at the written test held on 12-3-80. The petitioner passed the written test and was called to the viva-voce test, vide letter dated 107-80, Annexure-6. The petitioner has asserted that though he passed the viva-voce test his name was not included in the panel dated 24-9-80, Annexure-7. The empanelment of opposite parties 3 and 4 was regularised vide order dated 30-9-80, Annexure-8. According to the petitioner, selection of opposite parties 3 and 4 who were junior to him and regularisation of their promotions ignoring the legitimate claim of the petitioner were arbitrary and discriminatory being violative of the provisions contained in Articles 14 and 16 of the Constitution of India. The petitioner has therefore prayed that Annexures 7 and 8 should be quashed and opposite parties 1 and 2 should be directed to prepare a fresh panel wherein his name should be included and he should be shown senior to opposite parties 3 and 4.

3. In their counter opposite parties 1 and 2 have accepted the particulars as to service career furnished by the petitioner. However, they have stated that the posts of Assistant Transport Inspector, Assistant Yard Master and Assistant Station Master, Grade II in the same scale of pay of Rs. 425-640/- held by the petitioner and opposite party No. 3 and opposite party No. 4 respectively are not equivalent but separate categories of posts. They have further stated that the petitioner was not included in the panel published under Annexure-7 as after qualifying at the written examination he failed in the viva-voce test. It is denied that the petitioner's ad-hoc promotion as Junior D. T. I. conferred on him any right under the Board's circulars or orders for regularisation of his promotion without passing the prescribed tests or that continuous officiating service in the said post beyond three years resulted in automatic regularisation of his promotion. According to the opposite parties 1 and 2, the claim of the petitioner is without any merit. It is worthy of note that during the pendency of this writ application opposite parties 1 and 2 filed an affidavit in support of order dated 3-10-83 passed byopposite party No. 2, Annexure-X, wherein the petitioner has been empanelled for the promotional post of Junior D. T. I. with effect from 29-9-83.

4. Opposite parties 3 and 4 have filed a joint counter. They have denied that the posts of Assistant Transport Inspector, Assistant Yard Master and Assistant Station Master, Grade II are equivalent posts. According to them the three aforesaid posts being separate posts, the petitioner could not claim any seniority over them. They were empanelled under Annexure-7 as they were found suitable for promotion after the written examination and the viva-voce test which they passed. The petitioner was not included in the panel as he did not qualify in the viva-voce test. They have asserted that their selection, empanelment and regularisation of their promotions are legal and proper:

5. It is not in dispute that the petitioner, opposite party No. 3 and opposite party No. 4 were working as Assistant Transport Inspector, Assistant Yard Master and Assistant Station Master, Grade II with effect from 15-8-71, 13-10-76 and 6-4-75 respectively. Though there is no documentary evidence in support of the petitioner's stand that they are equivalent posts, there is again no dispute that the three aforesaid posts carry the same scale of pay of Rs. 425-640/- and are considered equal in all respects for the purpose of entry into the next higher promotional posts of Junior D. T. I./T. I., Gr. III/Moving Inspector.

6. On behalf of the petitioner reliance is placed on Establishment Serial No. 47/76, Annexure-D, which is reproduced hereunder :

'Estt. Sri. No. 47/76

No. P/R & R/SCT/RB/Pt. VIII Dated : 18-2-76.

xx xx xx

'2.2. Panels should be formed for selection posts in time to avoid ad hoc promotions. Care should be taken to see, which forming panels that employees who have been working in the posts on ad hoc basis quite satisfactorily are not declared unsuitable in the interview. In particular any employee reaching the field of consideration should be saved from harassment.'

The Board desire that instructions should be issued to all concerned, for strict complianceof the decision particularly in regard to SC/ST persons.'

7. The petitioner has specifically asserted in his writ application that ever since his promotion as Junior D. T. I. on 11-3-77 he has been performing his duty satisfactorily and that no defect in his work has been noticed. This assertion has not been denied by the opposite parties in their counter. In the present case the petitioner after working as Junior D. T. I. for more than three years was required to take a written examination and a viva-voce test for regularisation of his promotion. It appears from the counter of the opposite parties that the petitioner passed the written examination but failed at the viva-voce test. The question is whether the petitioner should have been declared unsuccessful at the viva-voce test after working in the promotional post for more than three years. This question was examined earlier by this court in the case of Rama Chandra Pradhan v. Union of India (1980) 49 Cut LT 266, and at was answered in the following words :

'There is no dispute that each of the petitioners has been holding the post to which he was promoted for more than two years by the date selection was undertaken. Petitioners, therefore, contend that without a disciplinary proceeding they should not have been reverted. Reliance is also placed on the Establishment Serial No. 47/76 dated 18-2-1976 (Annexure 2) running to the following' effect: --

'Panels should be formed for selection posts in time to avoid ad hoc promotions. Care should be taken to see while forming panels that employees who have been working in the posts on ad hoc basis quite satisisfion are are not declared unsuitable in the interview. In particular, any employee reaching the field of consideration should be saved from harassment.

The Board desire that instructions should be issued to all concerned for strict compliance of the decision....'

Petitioners have asserted that they had worked for a long period in the promotional posts and their work was satisfactory. The assertion has not been refuted in the counter affidavit. Mr. Pal appearing for the Railway Administration with a view to avoiding application of the Establishment Serial in question contended that statutory rules had been framed prescribing holding of written tests for selectionand the decision under Annexure-2 could not override the same. There does not seem to be any force in this submission of Mr. Pal. Annexure-2 is an Establishment Serial and the position appears to be beyond dispute that the Railway Board is entitled to issue general directions with reference to its employees which would be taken as statutory, to that effect is the ratio of the decision of the Supreme Court in the case of The Railway Board v. P. R. Subramaniyam, AIR 1978 SC 284. Mr. Pal's submission on the basis of a single Judge decision of the Rajasthan High Court in the case of Jagdish Singh v. Union of India, (1975) 2 Serv LR 469, is not acceptable as the proposition runs counter to the ratio of the Supreme Court decision. Besides, on facts, the case is also distinguishable. We are inclined to accept the position that under Annexure-2, the Board clearly decided that those who have been working on ad-hoc basis satisfactorily should not be required to undertake a written examination and steps should be taken to see that they are not declared unsuitable in the interview i. e. the viva-voce test. The persons who have been expanelled are junior to the petitioners. They were still in Class-IV while petitioners were for quite a long time working in the Class-111 cadre. There can, therefore, be no dispute that the petitioners had reached the field of consideration and were squarely covered by the direction in Establishment Serial No. 47/76. In that view of the matter, there is considerable force in the submission of Mr. Dora for the petitioners that they should not have been forced to take the written examination and should have only been called to the viva voce test of the interview and that interview should have been carried keeping the spirit of Annexure-2 in view.'

The ratio of the aforesaid decision has full application to the facts of this case. Here the petitioner had reached the field of consideration, had worked satisfactorily in the promotional post for more than three years and therefore the viva-voce test to which he was called should have been conducted strictly in accordance with the instructions contained in Establishment Serial No. 47 of 76 dated 18-2-76. These instructions were not meant to be observed in their violation. In the meanwhile during the pendency of this writ application the petitioner has been empanelled for the post of Junior D. T. I. with effect from 29-9-83, but we see no reason why the petitioner shouldnot have been empanelled under Annexure-7 with effect from 24-9-80 in view of the directions contained in Establishment Serial No. 47 of 76 referred to above. Further, the petitioner had been promoted as Assistant Transport Inspector on 15-8-71, and opposite parties 3 and 4 were promoted as Assistant Yard Master and Assistant Station Master, Grade II on 13-10-76 and 6-4-75 respectively. There is no dispute that the aforesaid three posts carry the same scales of pay and are considered equal in all respects in the field of consideration for promotion to the next higher posts of Junior D.T.I./T.I., Grade III. Therefore, on the strength of Establishment Serial No. 47 of 76 the petitioner was entitled to be empanelled with effect from 24-9-80 the date on which opposite parties 3 and 4 were empanelled and also to be listed as senior to opposite parties 3 and 4. Opposite parties 1 and 2 have filed Annexure-E, Establishment Serial No. 208/82 dated 13-9-82 which clarifies that the intention of the instructions issued under Establishment Serial No. 47/76 (Annexure-D) was not to - (i) supersede or by pass the normal rules of selection, but only the serve as a broad guideline for the authorities dealing with promotions, and (ii) confer any right on employees officiating on ad-hoc basis in higher posts to be selected and included in the panels for these posts. Annexure-E issued on 13-9-82 has no application to this case where the empanelment dated 24-9-80 under Annexure-7 and the office order dated 30-9-80 under Annexure-8 are under challenge.

8. Accordingly, this writ application is allowed. We direct opposite parties 1 and 2 to empanel the petitioner for the post of Junior D.T.I. with effect from 24-9-80 and not 29-9-83 and in the said panel the petitioner shall rank senior to opposite parties 3 and 4. Annexures 7, 8 and 'X' should be modified accordingly and all consequential service benefits shall be given to the petitioner at an early date. With the aforesaid direction this writ application is disposed of but without any order as to costs.

K.P. Mohapatra, J.

9. I agree.


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