ATUL KUMAR BEN Vs. UNION OF INDIA

JUDGEMENT

(1.) This miscellaneous petition filed under Article 227 of the Constitution of India by Atul Kumar Ben and Dilip Kumar Jahariya, both Senior Assistant Loco Pilot, West Central Railway, Jabalpur seeks to challenge the order dated 04.09.2020 passed by the Central Administrative Tribunal (for short the "Tribunal") in Original Application No.200/381/2020 (Mukesh Kumar and others vs. Union of India and others), by which the original application filed by the private respondents No.5 to 8 herein, all Senior Assistant Loco Pilots, was disposed of as infructuous. The petitioners by way of present petition have also challenged the order dated 30.09.2020 passed by the Tribunal dismissing Review Application No.200/06/2020 (Kunjbihari Meena and others vs. Union of India and others) filed by present petitioners and private respondents No. 9 to 12 herein against the interim order dated 30.07.2020 and final order dated 04.09.2020 passed in the aforesaid original application.

(2.) The private respondents No.5 to 8 herein (original applicants before the Tribunal) in their original application have challenged the panel dated 27.07.2020 on the premise that the petitioners and the private respondents No.9 to 12 herein being junior to them in the feeder carde of Senior Assistant Loco Pilot, have wrongly been empanelled for promotion to Loco Pilot Shunter/Loco Pilot Goods-II in Grade Pay of Rs.4200/- and are sought to be sent for promotion course to ZRTI, Central Railway, Bhusawal. The case of the private respondents No.5 to 8 herein (original applicants) before the Tribunal was that the order dated 27.07.2020 so far it relates to Serial No.1, 3, 5, 7, 8, 9, 10, 11, 12, 13, 16, 17, 20, 23, 24, 32, 33 & 34 and so on till Serial No.73 reserved category employees having been considered for promotion on the post of general category is contrary to RBE No.117/2016 dated 30.09.2016. Similarly, the candidates at Serial No.74 to 100 in the panel are also junior to them. They are being considered for promotion, violating seniority position inasmuch as straight away providing reservation in promotion is contrary to the ratio of the judgment of the Supreme Court in M. Nagraj vs. Union of India , 2006 8 SCC 212. The private respondents No. 5 to 8 herein (original applicants) contended before the Tribunal that panel dated 27.07.2020 being contrary to RBE No.117/2016 dated 30.09.2016, so far it relates to reserved category candidate is non est and is liable to be set aside being violative of long standing practice prevailing in the Railways and that they being senior to those respondents (before the Tribunal) are entitled for promotion over and above such junior strictly in accordance with the seniority.

(3.) The Tribunal vide order dated 30.07.2020 while issuing notices in the original application to the official respondents as well as to the private respondents (including petitioners herein) directed the Railways to consider the case of the respondents No.5 to 8 (original applicants before the Tribunal) for promotional posts of Loco Pilot Shunting-II (Level - 4)/Loco Pilot Goods (Level - 6) with reference to Annexure A-1, on the basis of seniority list, if otherwise found suitable. The Railways in compliance of the aforesaid interim order of the Tribunal dated 30.07.2020 cancelled the earlier panel dated 27.07.2020 and has issued a revised panel of 100 candidates on 06.08.2020. The Railways, at the same time, contested the original application before the Tribunal by filing reply thereto contending that it has assessed the vacancies for promotion on the post of Loco Pilot Shunting-II (Level-4) from Senior Assistant Loco Pilot (Level-4) and worked out vacancy assessment. The vacancy assessment has been done as per roster. Total 111 vacancies for the post of Senior Assistant Loco Pilot (Level-4) were assessed out of which 79 vacancies were earmarked for Unreserved candidates, 21 for Scheduled Caste candidates and 11 for Scheduled Tribe candidates. The employees who have completed 2 years of working on the post of Senior Assistant Loco Pilot (Level-4) and fall under the zone of consideration are eligible for promotion to the post of Loco Pilot Shunting-II (Level-4). There were 27 Senior Assistant Loco Pilots as per seniority list who have passed the prescribed promotional course and fall under unreserved category. Therefore, in order to give promotion to the remaining 52 Unreserved candidates, 21 Scheduled Caste candidates and 11 Scheduled Tribe candidates, an online promotional course has been arranged to accommodate 100 candidates and a list consisting unreserved candidates from Serial No.1 to 73 and Scheduled Caste/Scheduled Tribe candidates from Serial No.74 to 100 was prepared. These vacancies were required to be filled by the employees who are in the zone of consideration for promotion as per the extant guidelines and directions issued in Paras-2 to 5 of OMF No.36012/11/2016-Estt. (Res-I) {Pt-II} dated 15.06.2018 issued by DoPT and circulated for compliance through RBE No.91/2018 dated 19.06.2018, which refers to an interim order passed by the Supreme Court "that pendency of this special leave petition shall not stand in the way of the Union of India taking steps for the purpose of promotion from "reserved to reserved" and "unreserved to unreserved" and also in the matter of promotion on merits".