Ashok Kumar Singh v. Union Of India

By A.K.Gaur, Judicial Member:- 1.Through this Original Application the applicant has claimed for following reliefs:- 1. Call for the records from the respondents, specially the records of both the DPCs

2. After perusing the record of both the DPC's, be pleased to pass suitable order in the interest of justice

3. Any other relief deemed fit land proper under the circumstances of the case may kindly be granted 4.Allow the application with cost.

2. This is 3rd round of litigation before this Tribunal. The applicant was working as Assistant Station Master and was removed from service on 20.5.1992. After agitating the matter before appellate and Review authorities he was reinstated as Booking Clerk in the Commercial Department. Aggrieved by the said order the applicant again filed OA-829 of 1995. The said OA was allowed by this Tribunal on 28.2.2002. The applicant was reinstated as Assistant Station Master with all consequential benefits. As the order passed and directions issued by this Tribunal were not followed in letter and spirit, Contempt Petition No.57 of 2002 was filed by the applicant which was later on dismissed by this Tribunal on the undertaking of the counsel for the respondents. As the applicant was granted liberty to file fresh OA in the event if he was not satisfied with the compliance of the order by the respondents. The applicant was constrained to file OA-926 of 2004 wherein he claimed directions to the respondents authorities to pay full arrears of difference of pay between the wages of Booking Clerk and the wages of Assistant Station Master with effect from 20.5.1992 and interest thereon at the rate of 12% per annum from 20.5.1992 till actually paid. The applicant also claimed wages for the post of ASM in grade of Rs.5,500-9000 with effect from 26.6.1995 and interest thereon at the rate of 12% per annum and further promotion in the scale of Rs.6500-10500 retrospectively with effect from 19.11.1997. This Tribunal after considering the parties' case disposed of the aforesaid Original Application by means of order and judgment dated 17.11.2005 (Annexure-A-2). The operative portion of the order is being reproduced hereunder:- Considering all the facts and circumstances of the case we are of the considered view that ends of justice would be met if we direct the respondents to convene a review D.P.C. to consider the promotion of the applilcant in the grade of Rs.6500-10,500/- from the date his immediate junior has been promoted i.e. on 19/20.11.1997. We do so accordingly. If the applicant is found fit for promotion then he shalll be entitled for all consequential benefits. The respondents are directed to comply with the ;aforesaid order within a period of three months from lthe date of receipt of a copy of this order. According to the applicant the respondents without holding review DPC or taking a fresh decision declared him unfit for promotion on the basis of the recommendation of the earlier DPC. Therefore, the applicant was ;constrained to give legal notice to the respondents. When no heed was paid to the same, the applicant filed Contempt Petition on 4.4.2006 against the respondents. In reply filed to the contempt petition the respondents filed an order dated 29.5.2006 and on the basis of the same the Tribunal was pleased to dismiss the contempt petition. However, liberty was granted to the applicant to agitate the matter afresh in case he was still dissatisfied with the order dated 29.5.2006...

3. Denying the claim of the applicant the respondents filed their reply and submitted therein that in compliance of the order of the Tribunal passed in OA-926 of 2004 the respondents constituted 3 Members Committee for reviewing the same. The meeting of the Review Committee held on 19.5.2006 to adjudge the suitability of the applicant for the post of Station Superintendent/Station Manager in grade of Rs.6500-10500. After proceeding the case of the applicant the Review DPC do not find the applicant suitable for the post. Under the Rules the matter; was referred to the next higher authority and after taking approval, the decision was communicated to the applicant vide letter dated 29.5.2006 (Annexure3-A-1). The respondents also submitted that the Review DPC was convened as per lthe prescribed procedure. The relevant portion of the DOPT's instructions filed as Annexure-R-1 to the reply is given below:- It is important to mention here that the as per para 219 of IREM Vol.I and amendment made thereunder, the eligible candidates who are participating in the selection are required to obtain 60% marks in the professional ability (Written + Interview) and thereafter 60% aggregate marks to secure position in the select panel. Since, the applicant could not get 60% aggregate marks in professional ability as well as total 60% aggregate marks in the selection therefore, he was not found suitable for promotion as Station Superintendent/Station Manager in the grade of Rs.6500-10,500/-. Rejoinder has been filed by the applicant but nothing new has been indicated therein.

4. We have heard Shri M.W. Harsulkar, learned counsel for the applicant and Shri Vijay Tripathi, learned counsel for the respondents. Learned counsel for the applicant has vehemently argued that the matter of promotion of the applicant has been dealt with by the respondents with bias mind and ill will. On the other hand the learned counsel for the respondents has argued that the service record of the applicant is not clean and unblemish. Apart from the charge-sheet issued in the year 1991 under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 another charge-sheet under Rule 11 was issued against the applicant on 7.5.1999. One increment of the applicant was withheld for six months with cumulative effect. Later on this penalty was modified by the appellate authority as Censure. The learned counsel for the respondents has placed reliance on the decision of the Apex Court rendered in 2007(3)SLR-642 -Union of India Vrs. S.K. Goel wherein the Hon'ble Supreme Court has held that there will ordinarily be no interference by Court of Law in the proceeding and recommendation of DPC unless such DPC meetings are held illegally or any gross violation of the Rules or there is misgrading of Confidential Report of eligible officer, who were being considered. The DPC enjoyed full discretion to device its methods and procedure for objective assessment and suitability of merit.

5. The learned counsel for the respondents further placed reliance on 2007(1)SCC (L&S)page 944 -Union Public Service Commission Vrs. L.P.Tiwary and referred paras 12 & 13 of the judgment to show that it is settled that evaluation made by an Expert Committee should not be easily interfered with by the Court which does not have the necessary expertise to undertake the exercise which is necessary for this purpose. It has been contended by the learned counsel for the applicant that the DPC is a High Level Committee and once it has considered the merits of the respective candidate, the applicant though considered was not found fit for promotion. When a High Level Committee considered the respective merit of the case, assessed the grading and considered their case for promotion, this Tribunal or the High Court cannot sit over the assessment made by the DPC as appellate authority. In support of this contention the learned counsel has placed reliance on 1996(2)SCC page l488 -Nutan Arvind (Smt.) Vrs Union of India and 2005 SCC (L&S) 738 -Union Public Service Commission Vrs. KL. Rajaiha.

6. From the aforesaid decision rendered by the Hon'ble Apex Court it is wholly evident that the case of the applicant has been considered by a Review DPC Committee in accordance with the provision of Rules and after careful analysis of the merits of the case the Committee found the applilcant unfit for promotion and the said decision of the Committee is not open to the judicial review.

7. In view of the aforesaid observations we find no merit in the case. The OA lis accordingly dismissed. No costs. (A.K. Gaur) (Dr. G.C. Srivastava) Judical Member Vice-Chairman