Delhi High Court

Union of India & Anr. Vs. Rakesh Kumar & Ors.

* HIGH COURT OF DELHI : NEW DELHI + WP(C) No. 8515-17/06

Judgment reserved on: August 21, 2007

Judgment delivered on: September 10, 2007

1. Union of India & Anr. ..... Petitioner Through: Mr. Jitender Kumar Singh, Advocate versus Rakesh
Kumar & Ors. ..... Respondent Through: Mr. B.S. Mainee with Ms. Meenu Mainee, Advocates

2. WP(C) No. 4539-41/2006 Union of India & Anr. ..... Petitioner Through: Mr. Jitender Kumar Singh,
Advocate versus Ashok Kumar & Ors. ..... Respondent Through: Mr. B.S. Mainee with Ms. Meenu
Mainee, Advocates

CORAM:

HON'BLE MR. JUSTICE A.K.SIKRI HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may be allowed to see the judgment? NO

2. To be referred to Reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO VIPIN SANGHI, J. * 1. By this
common judgment, we propose to dispose of the aforesaid writ petitions since their facts are similar
and they raise the same issues. The petitioner, Union of India assails the order passed by the Central
Administrative Tribunal, Principal Bench (the Tribunal) in OA No. 1041/05 and MA No. 940/05 dated
6th February, 2006 in W.P.

(C) No. 8515-17/2006, and the Order of the Tribunal in O.A. No.1669/2005 dated 16th December
2005, whereby the Tribunal has allowed the aforesaid OA and directed the petitioner herein to
consider the case of the respondents' for promotion to the post of Loco Inspector, and has allowed
them to appear in the examination to be conducted for making promotions to the said post, as and
when they are held.

2. The respondents, 33 in number in W.P. (C) No. 8515- 17/2006 and two in number in W.P. (C) No.
4539-41/2006, were initially appointed as Diesel Assistants/Fireman Grade 'A' in the grade of Rs.
950-1500/3050-4590. Over the years they earned several promotions including as Goods Driver in
the grade of Rs.5000-8000.

In the years 1999-2000, some of the respondents had been further promoted as Passenger Driver in
the grade of Rs.5000-9000.
3. The respondents, who had been initially appointed in the year 1988-1991 had put in about 8 to 10
years' of service on Foot- plate as Diesel Assistant/Drivers. It appears that before they could be
promoted as Goods/Passenger Drivers and/or could gain Foot-Plate experience in that capacity, they
were screened and were posted in Stationary posts of Power Contoller/Crew Controller/Traction Loco
Controller (hereinafter collectively referred to as Controllers) which was a non-running duty in the
years 2000-2002. These posts of Controllers are in the same scale of pay as Drivers. The
respondents retained their lien in the cadre of Drivers and were also being granted running
allowance. They were allowed to avail of benefits of selection/promotion in the cadre of Drivers in
terms of a circular of the Railway Board dated 9.1.1998. According to this circular, the petitioner had
represented to the Drivers, including the respondents, that those who applied for the post of
Controllers will be screened and will be put to work as such Controllers in the Control Office and
would continue to progress in the running cadre. The tenure of the said assignment was fixed at 3
years. However, it appears that the respondents were continued as Controllers in public interest.

4. It appears that the eligibility criterion for promotion to the post of Loco Inspector was changed from
time to time. Railway Board's circular dated 25.11.1992 prescribed that Mail/Express/Passenger
Drivers and Goods Drivers with at least 5 years experience as Drivers were eligible to appear for
selection to the post of Loco Inspector. Amendments were carried out to the aforesaid circular on
16.5.1996, 9.11.1998 and 9.10.2002. The last of these circulars dated 9.10.2002 stipulated a
condition of 3 years Foot- Plate experience as Drivers for promotion to the post of Loco Inspector.

5. The petitioners initiated the selection process for promotion to the post of Loco Inspector in April,
2005. The respondents, who were Passenger/Goods Driver though posted as Controllers in the year
2000, (who further continued to work in that capacity for more than 3 years) were not included in the
panel drawn for the post of Loco Inspectors.

6. Some of the Passenger/Goods Drivers posted as Controllers challenged their exclusion from being
empanneled for the post of Loco Inspector by preferring OA No. 533/HR/2003, titled Dilraj Singh &
Ors. vs Union of India & Ors., before the Chandigarh Bench of the Tribunal, challenging the circular
dated 7.10.2002 and the letter of the Railway Board by which they were barred from appearing in the
written test as well as viva voce test. The said OA was allowed by the Chandigarh Bench of the
Tribunal vide judgment dated 20th January, 2004 and the petitioner was directed to consider their
tenure as Contoller for the purpose of counting Foot-Plate experience required for the post of Loco
Inspector and they were allowed to participate in the departmental examination for selection to the
post of Loco Inspector, as and when such departmental examinations are held.

7. The aforesaid decision of the Tribunal was upheld by the High Court of Punjab and Haryana which
dismissed the petitioner's writ petitions.

8. The respondents approached the Tribunal by filing the aforesaid OA being aggrieved by the orders
dated 27.4.2005 and 7.10.2002 passed by the petitioner whereby, while initiating the process of
selection for filling up vacancies to the post of Loco Inspector in the grade of Rs.6050-10500, the
petitioner imposed a restriction that only those goods/passenger drivers who have 3 years of Foot-
Plate experience as are eligible to appear in the said selection. However, the respondents did not
have the requisite Foot- plate experience as goods/passenger Drivers.

9. The respondents herein relied upon the aforesaid decision of the Tribunal and of the Punjab and
Haryana, High Court.
10. The respondents further contended that, in fact, some of them had been promoted as Loco
Inspectors on adhoc basis in February, 2005. The argument was that the stand of the petitioner was
arbitrary and rather absurd. While the respondents, Passenger/Goods Driver who were working as
Controllers were considered fit for adhoc promotions to the post of Loco Inspector, when it came to
regular promotion they were sought to be denied the said promotion on the ground that they lacked
the requisite 3 years Foot-Plate experience as Drivers.

11. The petitioners countered the claim of the respondents before the Tribunal by contending that with
the induction of a new policy under Railway Board's letter dated 7.10.2002, 3 years Foot- Plate
experience had been made mandatory for all Drivers irrespective of the fact whether they were
Mail/Passenger/Goods Drivers. It was contended that the category of Loco Inspector is extremely
important for safe running of trains as they are supposed to counsel the train Drivers about safe
running of trains. The condition of 3 years Foot-Plate experience had been introduced considering the
safety aspect of running of trains, and that the respondents had no experience on Foot-Plate working
as Drivers and consequently they did not fulfill the requisite qualification for the said post. Foot-Plate
experience as Drivers was practical experience in running the trains and it did not matter if the
respondents who were ignored, were senior to those who had the experience and were therefore
considered for empanelment to the promotional post of Loco Inspectors, since the respondents
admittedly lacked foot plate experience as Drivers.

12. The petitioner sought to brush aside the judgment of the Chandigarh Bench of the Tribunal and
the fact that the same had attained finality with the dismissal of the writ petition preferred by the
petitioner before the Punjab and Haryana High Court by contending that since the policy formulated
by the Railway Board had been framed for purpose of ensuring safety in running of the trains, the
said decision should not come in their way.

13. The Tribunal referred to the earlier decision of the Chandigarh Bench in the Dilraj Singh and Ors.
vs. Union of India and Ors. (Supra) which decision was binding upon it, and wherein all the
submissions of the parties were considered, and held that since the same was a binding precedent,
merely because the petitioner desired to re-agitate the matter, it was not a good enough reason not to
follow the same. Paras 9 and 10 of the impugned judgment of the Tribunal are relevant and are
reproduced here-in-below :

“9. It is an undisputed fact that an identical issue had been agitated before the Chandigarh Bench of
this Tribunal, which rejected the respondents' contentions and allowed the OA, which in turn, has
been up-held by the Hon'ble High Court of Punjab and Haryana. Learned counsel for the applicants
brought to our notice that this Bench of the Tribunal also allowed a similar OA, being OA
No.1669/2005, Ashok Kumar & Ors vs. UOI & Ors. The law is well settled that the Order and
Judgment rendered by a co-ordinate Bench is binding on the benches of equal strength. In case the
latter Bench disagree with it, the matter will have to be referred before a larger bench, as a theory of
“precedent” has to be followed. On perusal of the judgment rendered by the Chandigarh bench of this
Tribunal as well as this Bench, as noticed hereinabove, we find that all the contention raised by the
parties were duly considered and the respondents' stand that the applicants did not satisfy the
experience required on footplate was rejected. It would be expedient, at this stage, to note the
observations made in paragraph 10 in OA No.553/HR/2003 (Dilraj Singh & Others vs. Union of India
& Others), which reads thus:-

“10. It may be pertinent to mention that vide this Tribunal's interim order dated 10.6.2003, the
respondents were directed to allow the applicants to appear in the Departmental Examination which
was proposed to be held on 14th June, 2003 or thereafter, subject to the ultimate outcome of this OA.
The learned counsel for the respondents has informed us that the said examination has not yet been
held. The applicants, as mentioned above, had reverted to their substantive post of Drivers Goods in
January, 2002. Thus they have almost completed another 2 years against this post. Even if, for
argument sake, their experience as Power/Crew Controller is not taken into consideration, their
combined experience as drivers good before and after being drafted against the above post, will be
more than 3 years and as such they are eligible to participate in the departmental examination which
is yet to be held. In any case, the post of Loco Inspector is a selection post for which the candidates
are required to appear in a written test and viva-voce. In case the applicants reach the required merit
vis-a-vis other candidates, only then they would be appointed to the post. Merely by counting their
experience on the post of Power/Crew Controller, they would not be finally selected for the post.
Taking into consideration the facts and circumstances of the case, we are of the view that the tenure
of the applicants on the post of Power/Crew Controller, cannot be excluded for the purpose of
counting 3 years' foot plate experience required for the post of Loco Inspectors, especially when they
were retaining their lien on the post of Drivers Goods. (emphasis supplied).”

10. Since the issue raised in the present OA stands concluded by the aforesaid judgments, which
have not been either superseded, set aside or over-ruled by higher court till date, we being a co-
ordinate Bench, are bound by the said findings. We do not find any justification in the contention
raised by the respondents that merely because they want to re- agitate the matter, we should differ
with the findings recorded by the co-ordinate Bench of this Tribunal. In our considered view, such a
plea cannot be accepted under any circumstances.” 14. Before us, the orders of the Tribunal are
challenged primarily on the ground that the Tribunal has underplayed the importance of safety in the
running of trains. Loco Inspectors are supposed to counsel train Drivers about safe running of trains.
Such counselling can be given by Loco Inspectors who are having both experience and practical
knowledge of running trains safely and hence Foot-Plate experience has been made an essential
requirement for post of Loco Inspector. It is argued that the Tribunal had wrongly interfered with the
policy decision taken by the petitioners to ensure safe running of trains and that the same would have
very large implications. The experience gained as Controllers does not involve practical running of
trains and therefore does not give Foot-Plate experience. Experience has to be earned and cannot be
implied.

15. On the other hand, learned counsel for the respondents contend that it is wrong to say that the
respondents did not have the requisite Foot-Plate experience. The respondents were in fact working
as Passenger/Goods Drivers and had experience of 8 to 10 years on Foot-Plate as Diesel
Assistant/Drivers. Moreover, even the petitioner recognised the sufficiency of their experience,
inasmuch as, some of them had been given adhoc promotion as Loco Inspectors in February, 2005.

16. Having given out consideration to the matter, we are inclined to agree with the view taken by the
Tribunal.

17. Firstly, we find that the respondents had gained Foot-Plate experience for about 8 to 10 years
since they were working as Diesel Assistants/Drivers since their appointments in 1988-1991. The
Tribunal has specifically dealt with, and rejected, the submission of the petitioner herein in this
respect in Dilraj Singh (Supra). The respondents would have to participate in the selection process
consisting of a written test and a viva-voce, and only on their coming out meritorious, would they be
promoted as Loco Inspectors. Even the petitioner considered that experience as sufficient for granting
adhoc promotions to some of the respondents as Loco Inspectors. It cannot be said that for purposes
of granting adhoc promotions, and working as Loco Inspectors on adhoc basis, the respondents need
not have satisfied the requirement of experience, while the said requirement of experience is
necessary for granting regular promotions. The nature of duties and responsibilities remain the same
whether one works in adhoc capacity or in substantive capacity. It is not even the petitioner's case
that those Controllers who had been granted adhoc promotions, and who did not have the requisite
three years Foot-Plate experience as Drivers, were in any way found deficient in discharge of their
duties as Loco Inspectors. From the aforesaid, it appears that the claim of the petitioners that the
experience of three years on Foot-Plate as Drivers is non negotiable, does not appear to be justified.

18. We may also note that the action of the petitioners in excluding the respondents from being
considered for promotion to the post of Loco Inspectors was also not fair and equitable to the
respondents. When the respondents were represented that they could apply for, and be appointed as
Controllers while they were still working as Diesel Assistants/Drivers, they were not informed that at a
later stage they would be denied the right to be considered for promotion to the post of Loco
Inspectors on the ground that they did not have the requisite 3 years Foot-Plate experience as
Mail/Goods/Passenger Drivers. In fact the representation made to them was to the contrary. It was
represented to them that once they are posted as Controllers, they would retain their lien in the cadre
of Drivers and would also be granted running allowance. They were also informed that they would
avail the benefits of selection/promotion in the cadre of Drivers in terms of Railway Board's circular
dated 9.1.1998. Moreover, even though their tenure as Controllers was only 3 years, it is the
petitioner who continued to take work from them as Controllers even after the period of 3 years in
public interest. Had they been relieved to go back and work as Drivers after the expiry of their
respective fixed tenure of 3 years, in any event, they would have gained the necessary Foot-Plate
experience as Drivers.

Respondents were, therefore, being subjected to a disadvantage for no fault of theirs, and only
because they had cleared the screening process and got postings as Controllers.

19. Considering the fact that no specific material has been brought on record by the petitioners to
substantiate their claim that the lack of Foot-Plate experience as Goods/Passenger Driver is having
an adverse impact in the functioning of such Loco Inspectors on the aspect of safety in running of
trains, we are not inclined to accept the same.

20. In view of the aforesaid, we find no error in the judgment of the Tribunal and we accordingly
dismiss this petition.

VIPIN SANGHI, J.

A.K.SIKRI, J. September 10, 2007 aruna/P.K. BABBAR