1. By this writ petition filed under Article 226 of the Constitution of
India, the petitioner has assailed the judgment and order dated
16.09.2009 as well as the order dated 01.02.2010 passed in O.A.
No.819/2007 and in R.A. No.11/2010 whereby the original application
filed by the petitioner as well as the review application filed by him were
dismissed.
W.P.(C.) No.3369/2010 Page 1 of 7
2. It is the case of the petitioner that he joined the services of Indian
Railways w.e.f. 28.03.1982 as skilled Mechanist. He was thereafter
promoted to Mechanist Grade-II on 01.02.1992 and was confirmed as
such w.e.f. 20.07.1998. As per the seniority list dated 26.08.1997 his
rank was fourth in the list. The cadre of Mechanist was a separate
cadre with its specific responsibilities. Vide order dated 06.01.2009,
four categories of cadres namely, MOM/Tech-I/Tech-II and Tech-III
were merged in the cadre of isolate category as Technician Grade-I.
During the year 2003-2004, 32 employees from various cadres were
transferred as Technicians. This was done with a view to extend the
benefit of re-structuring. In this process benefits of upgradation were
granted to juniors of the petitioners as well as similarly situated
persons. Thus, the petitioner along with the others who were similarly
situated persons represented against the aforesaid action of the
respondents by way of filing the representation but it was not
considered.
3. The petitioner and other similarly situated persons then filed O.A.
No.1081/2005 before the Central Administrative Tribunal for redressal
of their grievances due to transfer of junior and similarly situated
persons to the post of Technician without calling for their options by
contending that the respondents violated the principal contained under
Article 14 and 16 of the Constitution of India. While disposing the
aforesaid original application, the respondent No.2 was directed to
consider the representation made by the petitioner and pass an
W.P.(C.) No.3369/2010 Page 2 of 7 appropriate order. The order disposing the O.A. is dated 16.09.2009. A
representation was made in consonance with the directions given in the
aforesaid O.A.by the petitioners and Others which was considered by
respondent No.3 and was disposed of vide order dated 08.08.2008
whereby an assurance was given that the merger of all cadres took
place in consultation with the unions and with a view to provide better
promotional avenues to the staff working in those categories. However,
the benefits sought for by the petitioners was not granted to them on
the ground that there had been no surrender of post or redeployment
and even after restructuring all cadre and there was no change in the
cadre of strength of Mill wright, Electrician and Crane Driver.
4. It was also informed to the petitioner that as far as Mechanist
several posts have been surrendered and only the senior staff members
in the grade have been transferred to the technician grade and as such
there was no pick and choose or arbitrary action by the respondents.
According to them there was no scope for granting benefit of
restructuring in any of the affected cadres. However, the respondents
also agreed to consider cases of remaining staff working in those cadres.
5. It is also the case of the petitioner that vide order dated
29.08.2008, the respondents decided to transfer mechanist to
Technicians-II as was done earlier by transferring five Mechanist who
are junior to the petitioner. The respondent also transferred two
mechanists who were senior to the petitioner. Thus, persons, senior as
well as the juniors were transferred in clear violation of existing policy
W.P.(C.) No.3369/2010 Page 3 of 7 which was bad in law. It has been submitted that while passing the
order dated 29.08.2008, the respondents failed to consider the claim of
the applicant/petitioner on the plea that the channel of promotion for
the petitioner in his category was separate and, therefore, it did not
deserve consideration at this stage.
6. The petitioner thereafter filed the present O.A. praying inter alia
for quashing of the order dated 08.08.2008 and 29.08.2008 whereby
some of the mechanist were transferred to posts of technicians without
inviting options from the affected employees and to redesignate the
petitioner as Technician with retrospective effect from the date his
claimed juniors had been so redesignated with consequential benefits of
financial upgradation under the restructuring scheme.
7. However, the Tribunal after considering all the submissions made
on behalf of both the parties made the following observations:
6. To conclude, the detailed factual scrutiny does not reveal any trace of arbitrariness in the actions of the respondents. Even as per the 1991 Masters circular, the requirement to
declare only the junior most employees as
surplus, was not a mandatory obligation in all situations. At the most, it was only a general guideline to be followed normally. As per the respondents, in this case, they have consistently followed the policy of adjusting only the senior most persons in different grades in the
redesignated categories. We also note that the
Whatever may have been the reasons for the
respondents to follow this policy at the given point of time, in hindsight the wisdom of
their action stands vindicated. This is
evidently so because many of the
W.P.(C.) No.3369/2010 Page 4 of 7 redesignated staff also got the opportunity for further promotions under the restructuring scheme. The allegation of pick and choose in such selection has not been
found to be borne out as per facts before us. The catch is in the respective grades. Since the applicant belonged to Machinist Grade-II and the five posts identified for surrender initially in 2003 were of Machinist Grade III, the applicant could not have been considered for redesignation. As per the respondents, the
persons who were considered i.e. JS Bajpayee and Ashok Kumar, were the seniormost in this category of Machinist Grade III. The contention of the applicants that they were junior to him is based on a blurring of the grade-wise differences on which the readjustments had been made.
Further in the subsequent order of 2009 passed in pursuance of the Tribunals direction in the OA 2804/2005, two persons who had been
redesignated i.e. Shri Deen Dayal and Shri
Rajendra Prasad were admittedly senior to the applicant as Machinist Grade II. Hence the
contention of arbitrariness or pick and choose is not borne out.
We also do not find that the questioning of the grades in which these posts had been declared as surplus or the decision for merger of the cadres with small strengths tenable. This, of course, depends upon administrative exigencies and is well within the domain of the executive. In a catena of judgments, the Apex Court has zealously laid down the limits of judicial
interference in such matters. With due respect, we would like to quote the dicta of the Apex Court in P.U. Joshi Vs. Accountant General, Ahmedabad & Ors., (2003) 2 SCC 632:
" .Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertains to the field of policy is within the exclusive discretion and jurisdiction of the state subject of course to
W.P.(C.) No.3369/2010 Page 5 of 7 the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the government to have a particular method of
recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the state."
Again in Mallikarjuna Rao & Ors. Vs. State of Andhra Pradesh & Ors., (1990) 2 SCC 707, the Apex Court had observed:
"It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue
directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution."
In view of the forgoing, we do not find any justification for our meddling with the decisions taken by the respondents who have not only
followed consistently a uniform policy in the matter of readjustment of the redesignated posts but have also made sincere efforts to implement the directions of the Tribunal to give better chances of promotion to maximum possible
number of employees rendered surplus. The OA is found to be utterly bereft of merit and is dismissed. No order as to costs.
8. The aforesaid order clearly goes to show that the Tribunal has
examined the entire facts in detail and it was observed that both the
grounds raised by the petitioner that it was a pick and choose policy
and further that the persons junior to him were transferred has no legs
to stand. It had been found that this was essentially a case of
identification of surplus posts for surrender and readjustment of the
incumbents against certain specified posts carrying the same pay scale.
It is for that reason that the Review Application filed by the petitioner
was also dismissed.
W.P.(C.) No.3369/2010 Page 6 of 7
9. We have given our thoughtful consideration to the submissions
made on behalf of the petitioner and we find that except raising the
issues again the petitioner is unable to bring out any illegality or
infirmity committed by the Tribunal while passing the impugned order.
10. In view of the aforesaid, we find no reason to interfere with the
order passed by the Tribunal in dismissing the petition filed by the
petitioner while exercising powers under Article 226 of the constitution
of India. Accordingly, the writ petition is dismissed with no orders as to
costs.
11. All the pending applications are also disposed of.
