Judgment:
SHRI HRIDAY NARAIN, MEMBER (ADMN.)
This OA was filed by the applicant with a prayer to call for the records pertaining to the panel vide Memo dated 24.8.2004 for up-gradation to the post of HTTE, representation of the applicant dated 23.9.2004 containing the endorsement of the 2nd respondent dated 28.3.2007 and the Notification dated 14/18.12.2007 issued for regular selection for promotion to the post of HTTE and declare the action of the respondents in not issuing orders of up-gradation in favour of the applicant to the post of HTTE with effect from 1.11.2003 and forcing the applicant to appear for the regular selection in terms of the Notification dated 14/18.12.2007 as illegal, arbitrary and direct the respondents to upgrade the applicant as HTTE in scale Rs.5000-8000 with effect from 1.11.2003 on par with junior SC employees and grant all consequential benefits including arrears of pay and allowances, seniority.
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2. The brief facts of the case, as stated by the applicant in the OA, are that the applicant (who expired on 5.8.2008 after filing of the OA) was appointed as Ticket Collector in scale Rs.950-1500/3050-4590 (Vth CPC) on 19.7.1995 on compassionate grounds consequent upon his father's death. During the process of his appointment, the applicant had submitted the caste certificate in the proforma prescribed by the Railway Department in the office of the 4th respondent and after processing his case, the applicant was appointed as Ticket Collector on compassionate grounds. The applicant was subsequently promoted as Senior Ticket Collector in scale Rs.4000-6000 on 9.2.1998.
3. The applicant states that the order promoting him as Senior Travelling Ticket Examiner does not denote the communal status of the applicant and he is also not aware whether he was booked against SC roster point or against UR point in the roster for promotion as Senior Travelling Ticket Examiner in scale Rs.4000-6000.
4. The 4th respondent had identified 110 resultant vacancies (UR-78, SC-21 and ST-11) to be filled up by modified selection i.e., by perusal of SR and CR of the employees. After due process, the 4th respondent had issued Memo dated 24.8.2004 promoting 99 employees to the post of Head Travelling Ticket Examiner (HTTE) in scale Rs.5000-8000 wherein the applicant's name did not figure and several of his juniors (at Sl.Nos.86 to 99 of the Memo dated 24.8.2004) were promoted. Aggrieved by the same, the applicant made several representations to the respondent-authorities to consider him for promotion as HTTE and also to record his communal status as SC in the official records. The 2nd respondent on submission of a copy of the first representation dated 23.9.2004 addressed to the 4th respondent, made an endorsement on 28.3.2007 directing the 4th respondent to verify the official records highlighting the delay in processing the matter.
5. The applicant states that the Government Railway Police, Guntakal, had foisted a false case against him u/s 341 and 376 IPC and during the course of investigation by the Government Railway Police, the applicant was arrested on 12.8.2002 on the following day of the offence alleged to have been committed by him and was released on bail on 28.8.2002. As a sequel to this, the applicant was kept under deemed suspension from 12.8.2002 to 3.12.2002 by the 3rd respondent which was revoked on 4.12.2002. The applicant along with another accused had to face the criminal trial in the Court of the VI Additional Sessions Judge, Ananatapur at Gooty which was ended on 25.2.2005 finding the applicant not guilty u/s 341 and 376 of IPC and the applicant was acquitted u/s 235 (1) of Cr.PC.
6. The applicant on conclusion of the criminal proceedings against him had submitted representation dated 21.6.2005 intimating his acquittal in the criminal proceedings to the 3rd respondent and requesting to treat the period of suspension as duty and to arrange payment of salary thereof. The 4th respondent with the approval of the competent authority had issued Memo dated 3.3.2006 treating the period of suspension from 12.8.2002 to 3.12.2002 as duty with full pay and allowances.
7. The Assistant Commercial Manager in the office of the 3rd respondent had initiated minor penalty disciplinary proceedings against the applicant under Rule 11 of the Railway Servants (DandA) Rules, 1968 alleging violation of Rule 3(1)(iii) of the said Rules on 7.8.2006 for the offence/irregularity for which the applicant was tried and acquitted by the competent Court of law. The applicant had submitted explanation on 17.8.2006 requesting to drop the charge and exonerate him from the allegations in view of his acquittal in the criminal case foisted against him. Till date the disciplinary authority has not disposed of his explanation. The applicant also made several representations to the respondent-authorities requesting to record his communal status as SC in the service record and grant promotion as HTTE in view of his acquittal in the criminal case, the last being the representation dated 20.12.2006 to the 4th respondent, which is pending before the 4th respondent. Thereafter, the 4th respondent included the name of the applicant in the list of eligible candidates enclosed to a fresh notification dated 14/18.12.2007 for promotion to the post of HTTE duly showing his communal status as SC. The applicant states that while considering the issue of granting communal status as SC, the respondents have not extended the benefit of upgradation on par with junior SC employees to the applicant with effect from 1.11.2003. The applicant apprehends that serious prejudice would be caused to him in case the respondents continue with the selection for the post of HTTE launched on 18.12.2007. Hence the present OA.
8. The main ground urged by the applicant is that inaction of the respondents in not granting the benefit of upgradation as HTTE to the applicant with effect from 1.11.2003 on par with his junior SC employees is discriminatory, arbitrary and illegal and is in violation of Articles 14 and 16 of the Constitution.
9. The applicant states that the action of the respondents in forcing the applicant to appear for a regular selection by enlisting his name in the notification dated 14/18.12.2007 ignoring his entitlement for upgradation to the post of HTTE under the modified selection procedure with effect from l1.11.2003 on par with his juniors inspite of restoring his communal status, is illegal, arbitrary and is in violation of Articles 14 and 16 of the Constitution of India.
10. The applicant further states that he has put in unblemished service to the best satisfaction of his superiors and nothing adverse has been intimated by the administration to him any time during his service. Therefore, the respondent authorities have erred in not considering the applicant for promotion to the post of HTTE in the process of cadre restructuring. It is stated that as on the date of considering for promotion to the post of HTTE no departmental proceedings were pending.
11. The applicant submits that the criminal proceedings against him commenced on 11.8.2002 and culminated in his acquittal on 25.2.2005. Even though, as on the date of consideration for promotion to the post of HTTE, the applicant was facing criminal proceedings, this was not a bar for considering his eligibility independent of the criminal action against him, in terms of the Board's instructions in their letter No.E(DandA) 88 RG 6-21 dated 5.2.1993. The respondent-authorities have not followed the procedure enunciated in the said Board's letter which inter alia lays down that selection committee should consider Railway Servants in respect of whom prosecution for a criminal charge is pending and assess their suitability for promotion as in the ordinary course independent of the action faced by the employee and assign position in the selection panel/suitability list and when exonerated/acquitted shall be promoted and the promotion shall be treated as regular from the due date. The applicant, therefore, submits that the respondent-authorities ought to have considered the eligibility of the applicant for promotion to the post of HTTE and ought to have promoted him as HTTE immediately with effect from 1.11.2003 on conclusion of the proceedings as per the extant instructions with all consequential benefits. It is stated that the respondents have not only ignored the Board's instructions dated 5.2.1993 but also have not considered his case for promotion despite repeated requests and representations.
12. The applicant further submits that in terms of Board's letter dated 5.2.1993, continuance of minor penalty proceedings is not a bar for consideration for promotion to higher grade. Further more, the minor penalty proceedings have been launched on 7.8.2006, by which it is evident that the applicant on being acquitted by the Court was free from criminal action against him as on 26.2.2005 and hence eligible to be promoted as HTTE with effect from 1.11.2003 with all consequential benefits on par with his junior who is listed at Sl.No.86 in the promotion order dated 24.8.2004 duly modifying the panel issued by the 4th respondent for the post of HTTE.
13. The applicant states that his father late R.Kurmaiah's service record maintained by the office of the 4th respondents shows his communal status as SC. The applicant further states that he had submitted his testimonials in regard to his communal status etc. to the Welfare Inspector concerned in the office of the 4th respondent at the time of his appointment as Ticket Collector and that the Welfare Inspector had verified the applicant's testimonials at the time of his appointment as Ticket Collector.
14. The respondents have filed reply statement on 9.9.2008 wherein it is stated that the applicant had submitted his testimonials to the Welfare Inspector concerned who was working in the office of the 4th respondent for verification of the applicant's case for appointment. The applicant was promoted as Senior Travelling Ticket Examiner (Sr.TTE) in scale Rs.4000-6000 from scale Rs.3050-4500 as Ticket Collector and he did not mention his communal status as 'SC' though he belongs to SC (Adi andhra) and was booked against the Roster Point No.115 i.e., (UR) in the Roster register maintained. The applicant made representation for promotion as HTTE stating that he belongs to SC community and also to record his communal status in the official records. The same has been brought to the notice of the 4th respondent who ordered thorough investigation. As a result and on the report of the District Collector/Anantapur vide his letter dated 6.9.2006 which was received in response to the letter dated 26.5.2006 sent to him on the representation of the applicant dated 23.9.2004, a decision was taken that he should be treated as SC from the date he represented.
15. It is stated by the respondents that the applicant was arrested on 12.8.2002 by the Government Railway Police and later was released on bail on 28.8.2002. The applicant was kept under deemed suspension from 12.8.2002 to 3.12.2002 by the 3rd respondent and subsequently revoked on 4.12.2002, pending criminal trial in the Court of VI Additional Sessions Judge/Anantapur at Gooty. The criminal proceedings ended on 25.2.2005 and the applicant was not found guilty. He was acquitted u/s 235(1) of Cr.PC. On the request made by the applicant, the 4th respondent issued Memo dated 3.3.2006 treating the period of suspension from 12.8.2002 to 3.12.2002 as duty and he was paid his pay and allowance accordingly.
16. The respondents state that since there was no communal status in the official records showing that the applicant belongs to SC community, his name was not included in the select list of HTTEs in scale Rs.5000-8000 and thus he was not promoted as HTTE along with his junior who was SC. It is stated that the applicant was not considered for promotion to the post of HTTE with effect from 1.11.2003 as he was not senior enough to be considered for the said post.
17. The respondents further state that the Assistant Commercial Manager working in the office of the 3rd respondent had initiated minor penalty disciplinary proceedings against the applicant under Rule 11 of the Railway Servants (DandA) Rules, 1968 alleging violation of Rule 3 (1) (iii) of the Railway Servants (DandA) Rules, 1968 on 7.8.2006 for the offence of irregularity and acquittal by the competent Court of law. On explanation dated 17.8.2006 by the applicant to drop the charges, the disciplinary authority had taken a decision to initiate minor penalty action. As a result, his annual increment raising pay from Rs.4900/- to Rs.5000/- in scale Rs.4000-6000 normally due on 1.2.2008 was withheld for a period of one year (NR) without having the effect of future increments for being responsible for the offence vide his letter dated 16.10.2007.
18. The respondents further state that it is a fact that in terms of Board's letter dated 5.2.1993, continuance of minor penalty proceedings is not a bar for consideration for promotion to the higher grade. However, the applicant was free from the criminal action as on 26.2.2005 and is eligible to be considered for promotion as HTTE with effect from 1.11.2003 on modified selection procedure by the 4th respondent.
19. It is stated that the applicant had not submitted any representation dated 20.12.2006 to the 4th respondent regarding his communal status and for promotion as HTTE in view of his acquittal in the criminal case as verified in the office records.
20. It is further stated that the applicant was not included in the list of Notification dated 20/23.6.2005 for selection to the post of HTTE as he was treated as General category because he neither claimed or produced any record requesting his name to be included in the SC category and he be considered as such for all considerations. It is a failure on the part of the applicant and if he has any grievance it is his own making. It is a fact that the applicant's name was included in the notification dated 14/18.12.2007 for selection to the post of HTTE duly showing the communal status as SC after taking a decision on 8.3.2007 by the 4th respondent that the applicant be treated as SC with effect from 23.9.2004 i.e., from the date of application by the applicant in regard to his communal status. The applicant suppressed his communal status so long from the date of his appointment though he belongs to SC community. It is his own making.
21. The respondents state that it is fact that the 4th respondent issued Notification on 18.12.2007 to fill up 61 vacancies of HTTEs (i.e., UR-49, SC-1 and ST-11). As the applicant is one among the seniors and is in the field of eligibility, he was called for selection, but not to consider him in the present selection as against his entitlement for the post of HTTE with effect from 1.11.2003 on par with his then junior employees.
22. The respondents further state that the applicant had not represented for inclusion of his caste as SC in the official records including in the Service Record, when his caste was not mentioned against his name in the list of results of Pro. TCs announced by ZTC/MLY during 1995, when the caste was mentioned against the other SC employees.
23. It is further submitted that the applicant's caste was not indicted against his name in the memorandum dated 25.9.1995 while directing him for practical training before his absorption wherein the caste is mentioned against the other employees who belong to SC. His caste was also not mentioned when the applicant was promoted as Sr.TTE in scale Rs.4000-6000 vide Office Order No.39 dated 9.3.1998 wherein his caste was indicated for other SC employees. From the above, it is obvious that the applicant was not shown any interest for including his caste SC in the official records. The applicant had realised only when he was not considered for promotion to the post of HTTE under cadre restructuring and then only he represented for inclusion of his caste vide his letter dated 23.9.2004.
24. The respondents further submit that since the genuineness of caste certificate dated July, 2004 was certified by the District Collector/Anantapur District, the applicant was extended the benefits available under SC reservation quota duly treating him as SC with effect from 23.9.2004 i.e., the date of his representation requesting the respondents for the first time to treat him as SC and grant him the privileges as such. The respondents have thus prayed that the OA deserved to be dismissed.
25. During the course of arguments on 18.3.2009, the learned counsel for the respondents produced letter dated 16.3.2009 addressed to him by the Senior DPO/GTL, South Central Railway, Divisional Office, Personnel Branch, Guntakal wherein it is stated that the caste status of father naturally applies to the children and based on the above, administration has considered the caste of the applicant and decided to extend all the benefits from the date of his appointment and the case is under process. Therefore, it is prayed to close the case. The learned counsel for the applicant, however, submits that the respondents may be directed to extend all the benefits to which he is entitled pursuant to the decision taken by the respondents.
26. In view of the above development, it is clear that the grievance of the applicant should stand redressed. However, we direct the respondents to extend all the benefits to the applicant in accordance with their decision to treat his communal status as belonging to SC right from the time of his appointment. More particularly, we direct the respondents to consider his case for promotion as HTTE with effect from 1.11.2003 on par with his junior SC employee and to put him in his proper seniority and also to grant him all consequential benefits including arrears of pay and allowances etc. The OA is thus allowed to the extent indicated above with no order as to costs.
27. Before parting with the matter, we record our displeasure at the way the respondents treated the applicant's representations, with the result that the applicant had to suffer unnecessarily. We hope that the respondents shall take care to avoid similar instances happening in future.