ORDER
Mukesh Kumar Gupta, Member (J)
1. By present OA, applicant seeks direction to consider him for the post of JE-II in grade Rs. 5000-8000/- at par with his junior such as Respondent No. 3 with all consequential benefits, including costs etc.
2. Facts as stated are that applicant was initially appointed as Casual Khalasi on 30.08.1972, became a regular Group ‘D’ employee on 20.06.1974 and was posted at Panipat. In 1978 he was further promoted as Assistant ‘PED’ in pay scale of Rs. 210-260/- after qualifying trade test. In 1980, after qualifying trade test, he was further promoted as PED-III in grade of Rs. 260-400/-, PED-II in 1984 in grade of Rs. 330-480/- and PED-I grade Rs. 480-560/- on 1.10.1986. He was placed in the panel issued vide communication dated nil 4/86 at serial No. 47 and Shri Atar Singh (Respondent No. 3) at serial No. 49. He as well as Respondent No. 3 were promoted and posted against existing vacancies vide notice dated 08.08.1986 and placed at serial Nos. 33 and 35 respectively. The scale of Rs. 480-560/- has been revised to Rs. 4500-7,000/- since 1.1.1996.
3. Applicant’s grievance is that he became eligible for the post of Junior Engineer-II in grade of Rs. 5000-8000/- against 25% ranker quota. Eligibility criteria for said post is 3 years regular service in PED having matriculation qualification and below the age of 45 years. He was not called to appear in said selection, notice for which had been issued on 27.6.2002 and 8.9.2003. Respondent No. 3 was also not called for to appear in written test.
4. In the meantime, he was considered in another channel, i.e. Master Craftsmen (in short MCM), which is a terminal grade in pay scale Rs. 5000-8000/- vide letter dated 22.1.2003. There is no further promotional prospects in said post of MCM. Along with applicant, one Shri Ram Khilawan was also considered for said post of MCM and placed at serial No. 2 vide letter dated 22.1.2003. When it came to his notice that vide letter dated 08.09.2003, 27 candidates were called to appear in written test despite he being senior, he made a representation on 3.10.2003. At that point of time he was posted at Panipat as PED-I, which is evident from seniority list issued on 15.2.2003. Thereafter, he was promoted as MCM in grade of Rs. 5000-8000/- and posted at the same station vide letter dated 28.7.2004. Since respondents failed to consider his representation, he made another representation and drew the attention of authorities that one junior viz. Shri Atar Singh (Respondent No. 3) was promoted as JE-II on restructuring and upgradation by respondents. Shri Ram Khilawan was also upgraded to the post of JE-II as such respondents discriminated against him without any rhyme & reason. MCM/PED is a terminal post with no further avenue of promotion, whereas JE-II has future avenue of promotion as JE-I etc. In these circumstances, Shri K.K. Patel, learned Counsel, contended that respondents’ action is arbitrary, malafide and discriminatory and he has been intentionally and deliberately denied the benefit of promotion as JE-II. Thus, respondents’ action is violative of Articles 14 & 16 of the Constitution of India.
5. Respondents by filing reply contested the claim laid, it was stating that applicant had been working as MCM/PED in the grade of Rs. 5000-8000/- to which post he was promoted w.e.f. 27.1.1996. In terms of Railway Board Circular dated 9.10.2003, restructuring of certain categories, the post of Mistries in grade of Rs. 4500-7000/- plus Rs. 100/- special allowance excluding supervisors of P. Way were upgraded. The post of JE-II in the scale of Rs. 5000-8000/- was merged with Technical Cadre of Supervisors. The grade of MCM is also placed in pay scale of Rs. 5000-8000/-. He was called to appear in the test for JE-II vide Annexure P-4 dated 8.9.2003 where his name figures at serial No. 18, but he failed to appear in the supplementary written test of JE-II in grade of Rs. 5000-8000/- held on 20.09.2003. Combined seniority list had been issued on 5.2.2003 wherein his alleged junior appeared at serial No. 29, but he did not make any representation against the same with the prescribed time limit.
6. By filing rejoinder, applicant contested the plea raised by respondents and reiterated his contentions raised vide OA. It was emphasized that he was not called for written test by respondents vide order dated 08.09.2003. The person who is placed at serial No. 18 in the said communication, his designation/station of posting was shown at Jind, whereas applicant was posted at Panipat. Therefore, respondents be directed to strict proof whether applicant was informed and served with the order dated 08.09.2003 to appear in the supplementary written test. Respondents be also directed to produce record where he had failed to appear in the said test. He had made representation on 4.8.2003 and 3.10.2003, which remained unconsidered.
7. We heard learned Counsel for parties and perused the pleadings carefully.
8. Since there had been a great confusion as to whether applicant was promoted as MCM w.e.f. 22.01.1996 as stated in reply para 3 or w.e.f. 1.11.2003 vide order dated 28.7.2004, as projected by applicant, respondents were directed to produce record and also to explain how the order of restructuring had been implemented vide which senior was ignored for promotion to the grade of JE-II. Pursuant to said direction, Respondents filed affidavit of Divisional Personnel Officer, Northern Railway, New Delhi, dated 18.05.2007 stating that applicant was promoted as MCM w.e.f. 1.11.2003 under restructuring vide order dated 28.07.2004. The date mentioned in the counter reply i.e. 27.1.1996 was not correct and, therefore, they tendered their apology. However, it was maintained therein that applicant was called for supplementary test vide letter dated 08.09.2003 at serial No. 18 indicating his designation as ACF/JHI. However, his actual designation was PED-I. Respondents further maintained that said letter was duly addressed to Senior Section Engineer at Panipat Station. Shri Attar Singh had not been promoted under restructuring scheme. He qualified the selection already held prior to restructuring and promoted vide order dated 30.10.2003. Thus, in selection process only those candidates who qualified were empanelled and promoted in the order of seniority.
9. On bestowing our careful consideration to all aspects of matter, we note that following facts are established that vide communication dated 22.1.2003 (Annexure P/3) two persons were called for suitability test for post of MCM, viz. Govind Singh, PED-I, Delhi and Ram Khilawan, PED-I, Kishan Ganj. Applicant was directed to be ready for said suitability test. He had submitted representation dated 04.08.2003 (P/5) requesting that he may be called for JE-II Grade under 25% Ranker quota. Vide another letter of said date with reference to communication dated 23.01.2003, he had also made a request that he should also be considered for MCM/PED suitability test. Respondents issued notice dated 08.09.2003 (P/4) vide which 27 officials were directed to appear in supplementary test for post of Junior Engineer-II (General) against 25% Ranker quota in General Wing, placing applicant at serial No. 18 as ‘ACF-I/JMI’. He had made a representation on 3.10.2003 (P/6) to concerned authority stating in specific that in the absence of any communication for said examination of JE-II, he could not appear in supplementary test and, therefore, with reference to his seniority, he be included in the written examination for said post of JE-II. It is much thereafter that he was promoted as MCM w.e.f. 1.11.2003 vide order dated 28.07.2004, which order was the outcome of restructuring in the cadre of Artisan.
10. Despite our specific directions, respondents have not produced before us any document establishing service upon the applicant of the notice dated 8.9.2003 requiring him to attend supplementary examination for post of JE-II, on 20.09.2003. Various representations made, particularly on 4.08.2003 and 3.10.2003 remained unattended. There is not even a word on said aspect in the reply filed by respondents.
11. Shri K.K. Patel, learned Counsel also relied upon R.E.B. No. 31/2005 dated 22.02.2005 wherein it has been prescribed that MCM and Mistries are eligible to be considered for promotion/selection as JE Grade-II based on their integrated seniority. The post of MCM (redesignated as Sr. Technician) will no longer be personal to Technician Gr.I but will constitute a part of the regular hierarchy in the artisan cadre. The post of JE-II earmarked for promotion by selection will be filled from amongst Sr. Technicians in identical grade Rs. 5000-8000/- subject to the condition that the existing Technician Grade-I as may be senior to those fitted as Sr. Technician as per procedure in force until now will also be considered for selection for promotion.
12. Perusal of above would lead to irresistible conclusion that applicant had not been put to notice for JE-II examination held on 20.09.2003 and therefore, he cannot be made to suffer. It is no doubt true that posts of MCM as well as JE-II both carry pay scale of Rs. 5000-8000/-, but fact remains that the same are distinct and different cadres. The post of MCM has no further promotional avenue while channel of promotion is available to JE-II. We find justification in the contention raised by applicant that because of laxity on the part of Railway Administration, he cannot be made to suffer and his subsequent promotion under restructuring as MCM w.e.f. 1.11.2003 will not dis-entitle him to be considered for the post of JE-II subject to the condition that he qualifies such an examination.
13. Accordingly OA succeeds. Respondents are directed to consider applicant for selection to the post of JE-II in the grade of Rs. 5000-8000/- against 25% Ranker quota in General Wing by holding supplementary test and if he qualify such examination & is found fit under the rules in vogue, his promotion be regulated from the date similarly situated persons were so promoted in said grade. His promotion would have no financial effect as he is already placed in same scale w.e.f. 1.11.2003. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No costs.