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Judgment
ORDER
By Hon’ble Mr. Mohan Pyare, Member (A)
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
“8.1That the Hon’ble Tribunal may graciously be pleased to
set aside/ to quash the impugned order dated 12.01.2015
issued by the Divisional Railway Manager, North Central
Railway, Respondent No.3, rejecting the representation of the applicant for his promotion on the post of
Technician-I/SPA w.e.f. 12.1.2009 at par with his junior
Sri Mohd. Rafique on the ground that adverse
confidential report of the applicant for the period ending 31.3.2007 was considered by the DPC in the year 2008 for his promotion on the post of Technician-I/SPA. Despite the fact that the representation made by the applicant against the said adverse confidential report was not decided and the applicant was wrongly denied his promotion on the post of Technician-I w.e.f. 12.1.2009 at par with his junior.
8.2That the Hon’ble Tribunal may graciously be pleased to direct the DRM/NCR, Allahabad, Respondent No.3 to consider the case of the applicant for promotion on the post of Technician-I w.e.f. 12.1.2009 at par with his junior Sri Mohd. Rafique as he was illegally ignored for the same with all consequential benefits. The respondent No.3 may also kindly be directed to consider promotion of the applicant on the post of MCM in the year 2011 accordingly with all consequential benefits.
8.3That the Hon’ble Tribunal may graciously be pleased to direct the DRM/NCR/Allahabad Respondent No.3 to allow all the consequential benefits after his promotion on the post of Technician-I w.e.f. 12.1.2009 and MCM in the year 2011 with fixation of his pay in this grade and payment of arrears of salary on this account with payment of all retiral dues and pensionary benefits on the basis of his last pay drawn on his date of retirement on 30.9.2013 with payment of arrear thereof as well.
8.4That the Hon’ble Tribunal may graciously be pleased to allow interest @ 12% per annum on the amount of arrears of pay and arrear of settlement dues on the applicant from the date of the same is due till the date it is actually paid to the applicant.
8.5That the Hon’ble Tribunal may graciously be pleased to allow the heavy cost in favour of the applicant in this matter.
8.5That the Hon’ble Tribunal may graciously be pleased to pass any other order or direction as may deem fit and proper in the facts and circumstances of the case.”
The brief facts of this case are that the applicant was appointed as Khalasi under Electrical Foreman/ Power Supply, Northern Railway, Allahabad, was allowed temporary status on 17.05.1976 and regularized in the year 1978. He was promoted on 01.01.1984 as Helper under Senior Section Engineer/ Power Supply, Northern Railway, Mirzapur. Thereafter, he was promoted on the post of Switch Pump Attendant Grade Rs. 950-1500/- on 01.08.1990 under the Senior Section Engineer/ Electrical, Power Supply, Kanpur. In June, 1991, he was transferred from Kanpur to Mirzapur. The applicant was promoted on the post of Technician-II Grade Rs.4000-6000 on 15.11.2003. Subsequently, his pay was revised in grade Rs.5200-20200 pay band 2800 under the Section Engineer at Mirzapur as per Sixth Central Pay Commission. The Sr. Electrical Engineer (G) N. Railway, Allahabad vide letter dated 18.02.2008 communicated the confidential report of the applicant for the period ending 31.03.2007 with overall clarification as ‘Below Average’ in the confidential report. The applicant vide his letter dated 02.04.2008 submitted a detailed representation against the adverse confidential report to the Sr. Divisional Electrical Engineer/G, Allahabad through proper channel i.e. the Sr. Section Engineer/Electrical/Power Supply, Mirzapur but no decision was taken or communicated to the applicant up to the date of DPC in the year 2008 for promotion to the post of Technician-I/SPA for which the applicant was also considered along with his junior Sri Mohd Rafique who was promoted w.e.f. 12.09.2009 but the applicant was not promoted. Vide the impugned order dated 12.01.2015, it is admitted by the respondent that the applicant was not promoted w.e.f. 12.09.2009 along with the aforesaid junior only due to his confidential report for the year ending 31.03.2007 being ‘Below Average’ making him unfit. When no action was taken on the request of the applicant for promotion to the post of Technician-I w.e.f. 12.01.2009 at par with his junior Mohd. Rafique, he made a detailed representation dated 15.10.2013 and 12.05.2014. Aggrieved with the fact that the representation of the applicant was not even considered and his promotions were adversely affected, the applicant filed O.A./330/01311 of 2014 Harish Chandra Vs. Union of India & Ors before this Tribunal which was disposed of vide order dated 10.10.2014 with the direction to decide the representation of the dated 12.05.2014 with a detailed reasoned and speaking order. After this the DRM/NCR/Allahabad decided the representation of the applicant dated 12.05.2014 rejecting the same on the ground that the applicant was considered for promotion to the post of Technician-I/SPA in the year 2008 along with his junior Mohd Rafique but his ACR for the year ending 31.03.2007 was ‘Below Average’, therefore, he was not found fit for promotion. The applicant retired from service on 30.09.2013 and even until then his representation dated 02.04.2008 against the adverse confidential report was not decided.
We have heard learned counsel appearing for the parties.
Submission of the learned counsel for the applicant is that due to non-consideration of the applicant for promotion to the post of Technician-I w.e.f. 12.01.2009 at par with his junior Sri Mohd. Rafique under the pretext of adverse confidential report for the year ending 31.03.2007 against which the representation made by the applicant vide his letter dated 02.04.2008 was not decided is totally illegal and due to this further promotion of the applicant to the post of MCM which was due in the year 2011 was also adversely affected and the applicant was denied promotion to the post of MCM till his retirement on 30.09.2013. He states that it is a settled principle of law that if the representation made by an employee against his confidential report is not considered and decided and kept pending undecided by the authority concerned then the DPC should not consider it rather ignore it while considering the employee concerned for promotion and the same should have been done in the case of the applicant also.
Submission of learned counsel for the respondents is that the alleged representation regarding below average report has not been received by the office of Sr. Divisional Electrical Engineer (G), and this fact has already been replied to by this office vide letter dated 12.01.2015. He further states that the applicant Shri Harish Chandra was not promoted in the category of Technician-I, G.P. 2800/- due to confidential report of the year ending 31.03.2007 being below average, however, the applicant has been considered for promotion as Tech-1/SPA/in G.P. 2800/- on 21.02.2011. Thus, he argues that the present original application is misconceived and the same should be dismissed.
We have considered the rival submissions of learned counsel appearing for the parties, and gone through the entire documents on record.
Perusal of the documents reveals that the said representation moved by the applicant dated 02.04.2008 against the adverse confidential report has been duly received by the Senior Section Engineer, Mirzapur through his stamp. If the same has not been received by the office of Sr. Divisional Electrical Engineer (G), it is not the fault of the applicant as it should have been forwarded by the Senior Section Engineer, Mirzapur for further action. This lapse on the part of the respondents had affected the applicant’s promotional avenues and is not acceptable in the eyes of law. Even while deciding the representation of the applicant dated 12.05.2014 in compliance with this Tribunal’s order dated 10.10.2014, this issue of the undecided representation dated 02.04.2008 was not reasonably resolved.
Accordingly, the impugned order dated 12.01.2015 is quashed, the respondents are hereby directed to first decide the representation of the applicant dated 02.04.2008 annexed as Annexure A-3 of the O.A. by passing a detailed reasoned and speaking order supported with requisite facts and documents and if the applicant’s case is found fit, then he should be granted promotion to the post of Technician-I with effect from the date his junior was promoted along with all the consequential benefits arising therefrom including the arrears and the pensionary benefits. The said exercise should be completed within a period of three months from the date of receipt of a certified copy of this order.
Thus, the O.A. stands disposed of with the above direction. All associated M.A.s also stand disposed of. No costs.