Judgment:
1. Heard Sri P.B Vijay Kumar, counsel for the applicant and Sri N.R Devaraj, Standing Counsel for the respondents.
2. The respondents are sought to be directed in this O.A. to extend ad hoc and regular promotions to the applicant as Deputy Chief Mechanical Engineer on par with his junior Sri N. Santhana Raman with all consequential and attendant benefits including the difference of salary and retiral benefits with interest by nullifying the decision communicated under proceedings dated 28.9.1995 of the Railway Board as communicated by the C.P.O.3. The applicant after rendering 21 years of Class-Ill service entered the Class-II service in the scale of Rs. 2000-3500/- to the post of Assistant Mechanical Engineer. Later he was promoted to the post of Divisional Mechanical Engineer in the scale of Rs. 3000-4500/- and after 11 years of service he reached the maximum of the scale where his pay stood stagnated. Further according to the applicant he was due for promotion of Junior Administrative Grade Class-I service after rendering 8 years of service subject to clearance by U.P.S.C.4. It is further stated by the applicant that the Railway Board approved his case for appointing him to the scale of IRSME with effect from 23.3.1990 of S.C. Railway by notification dated 30.11.1990, inter alia fixing the seniority of the applicant over Sri N. Santhana Raman.
However, in the seniority list circulated by the Board by proceedings dated 9.11.1994 the said Santhana Raman was shown as senior to the applicant. This was rectified by the Board in the proceedings dated 24.1.1995 and the said fixation was in tune with the earlier proceedings of the Railway Board dated 30.11.1990. Thus, according to the applicant, his seniority over Sri Santhana Raman has been settled as final. However, in spite of the same the said Sri Santhana Raman was promoted to the post of Deputy Chief Mechanical Engineer on ad hoc basis with effect from May, 1991 and on regular basis from February, 1994 whereas the applicant was given ad hoc promotion with effect from July, 1994. He retired on 30.4.1997 while working as ad hoc Deputy Chief Mechanical Engineer.
5. The applicant made a representation dated 1.6.1995 to the Railway Board seeking promotion to the Deputy Chief Mechanical Engineer on par with Sri Santhana Raman on ad hoc as well as regular basis with effect from the respective dates. The applicant was informed by the Railway Board by the impugned proceedings dated 28.9.1995 that he was not selected on considering his performance. On receipt of the proceedings dated 28.9.1995, the applicant made further representation dated 6.3.1996 and 17.4.1997 to the Chairman, Railway Board and the Minister for Railways. However, his representations fell on deaf ears. It, therefore, became necessary for the applicant to approach this Tribunal with the present O.A.6. The applicant points out that he belongs to ST community and had secured several awards by putting hard and meritorious services.
7. This Tribunal in OA 449/88 decided on 8.1.1990 was faced with a similar situation in which a view was expressed that the Ministry of Home Affairs Office Memorandum provides that in promotion by selection to posts within Class-I, which carry an ultimate salary of Rs. 2000/- p.m or less, the Scheduled Castes/Scheduled Tribes Officers who are senior enough in the zone of consideration would be included in that list provided they are not considered unfit for promotion. Further observations made by the Tribunal in the said order which are quite relevant for our consideration are reproduced below : "The grading given in the C.Rs would be relevant only to determine whether he is fit or unfit. In the instant case, the DPC has not found the applicant suitable for promotion. His suitability has been determined by comparison with others on the basis of relative grading as assessed in the C.R. The Committee has not however, recorded that he is unfit for promotion. Unless the Selection Committee finds that the applicant is unfit for promotion he cannot be ignored if he is sufficiently senior enough depending upon the availability of the posts. It is the duty of the Selection Committee in terms of the Ministry of Home Affairs circular dt. 26.3.70 which has been adopted by the Railways by including it in their Brochure, to verify whether the applicant on the basis of his seniority is within the number of vacancies for which the select list is to be drawn and it he comes within this range to consider whether he is fit or unfit. If he is found fit he should be placed in the panel and appointed in his turn, as per his seniority. The record does not disclose that the Railway Board/Selection Committee has, in the instant case, applied the rule of reservation and laid down in the Ministry of Home Affairs circular dt. 10.3.1970 and determined on the basis of his record whether the applicant is fit or unfit for promotion. The fact that he has secured sufficient marks on the basis of his confidential reports, would prima-facie go to hold that he is fit. However, it is for the Selection Committee to further go into the question whether the last year's adverse report (1985-96) renders him unfit for promotion. The Railway Board/Selection Committee is, therefore, directed to assess the fitness of the Applicant in terms of the Ministry of Home Affairs Memorandum dt.
26.3.1970 for the purpose of promotion. This assessment should be done within three months from the date of this order." The above views expressed in OA 449/88 make it necessary in the interest of justice to reconsider the applicant's case.
8. This O.A. is, therefore, disposed of with a direction to the respondent No. 1 to reconsider the applicant's case on the basis of the views expressed by this Tribunal in OA 449/88. For this purpose the applicant shall make a suitable representation to the respondent No. 1 within 15 days from today and after receipt of the representation, the respondent No. 1 shall reconsider the applicant's case and dispose of the same within 4 weeks from the date of receipt of such representation.