Matters Related to Promotion

Union of India and Others vs. Hari Ram Shukla and Others

Filed under: The Constitution of India
Appellant: Union of India and Others
Respondent: Hari Ram Shukla and Others
Citation: 2002 VI AD (Delhi) 679
Court: In the High Court of Delhi
Judge: SB Sinha and AK Sikri

Facts

Hari Ram Shukla and others (names not mentioned) were visually handicapped persons engaged as Cane Weavers in the Engineer-in-chief’s Branch, New Delhi for more than two decades. Their main grievance was that after the 4th Pay Commission’s recommendations they had been placed in the pay scale of Rs. 900-1150/- but were not considered for upgradation to the skilled Grade having a pay scale of Rs. 950-1500/-.

Hari Ram and other such employees filed a petition in the Central Administrative Tribunal on the ground that even though their category had been made eligible for promotion to the grade of upholsterer, no one belonging to their category had been promoted to the rank of an upholsterer.

According to them, it was mandatory to pass the trade test for such promotions but the blind Canemen had never been permitted to undertake such tests with the result that no one belonging to this category had been promoted for more than a decade.

The Tribunal had carefully examined the material placed before it and in a detailed analysis had observed the following:

  • It had not been clearly established by the UOI and others that the committee of experts had examined the issue of placement of Canemen into skilled category.
  • Even the Anomalies Committee had not taken a decision in the matter.
  • It was illogical on the part of the UOI and others to contend that the category of Canemen could not be placed into skilled category only because the initial Recruitment Rules prescribed minimal qualification of 8th class without any trade certificate.

According to the Tribunal, weaving was a job involving skill, which had to be acquired and there was considerable scope for improving the skill with experience.

The Tribunal further pointed out that all the Canemen who had filed this petition possessed qualifications much higher than the prescribed qualifications since they were matriculates and holders of certificates issued to them by recognized training institutions.

In light of these reasons the Tribunal held that these Canemen had a claim for upgradation. Furthermore, the Tribunal also pointed out that in the Indian Railways the Canemen had been put in the skilled category way back in November 1992.

The Tribunal also referred to several previous judgments and directed that the UOI should review the matter and should provide opportunities to Canemen in their set-up so that they are on par with the opportunities available to the Canemen in Indian Railways. They were further directed to ensure compliance within a period of two months.

The Union of India and others filed the present Writ Petition against the order of the Tribunal.

Arguments made on behalf of UOI and Others

The lawyer on behalf of the UOI argued that these Canemen had been provided promotional avenues as per the Recruitment Rules. It was argued that the category of Canemen to which these employees belonged was a feeder category for promotion to Upholsterer and through this route, they could achieve higher levels as applicable to the industrial cadre by opting for the Carpenter category.

Further, it was contended that the plea of the Canemen for promotion to the skilled category on the ground of higher qualification was not acceptable as no such qualification was prescribed for Canemen at the stage of induction in accordance with the Recruitment rules. It was also argued that the Expert Body of Executives did not find Canemen good enough to fit into the skilled category and it was not for the Court to substitute its opinion for that of the Expert Body.

Arguments made on behalf of Hari Ram Shukla and Others

The lawyer appearing on behalf of the Canemen supported the judgment of the Tribunal by pointing out that the grievances of these Canemen arose due to the discriminatory practice of the UOI while implementing the recommendations of the Third Central Pay Commission.

Some employees’ organizations had made request to the Pay Commission for the appointment of a classification Tribunal for the purpose of classifying various trades on the basis of the job content and fitting the employees into scales recommended by the Pay Commission.

The workers representative was apprehensive about the fact that if the work of classification was not carried out in a systematic manner, the existing anomalies would be perpetuated as the workers would get fitted into new scales primarily on the basis of their existing scales which did not correctly reflect the skills, duties, responsibilities and difficulties involved in their jobs. The Secretary of Defense Production and the Director General of Ordinance Factories also emphasized the need for reviewing the existing categorization of workshop staff.

Observations of the Court

The Court analyzed the arguments put forth by both the parties. The Court did not find any illegality or irrationality in the judgment passed by the Tribunal. According to the Court the Tribunal had directed the UOI to consider the case of the Canemen and the Court was not inclined to interfere in this judgment.

The Court also pointed out that despite being visually handicapped these Canemen did not want to depend on others and wanted to make their own living by their own efforts. The Court further held that the promotional avenues provided in the Recruitment rules did not really help these employees.

The effect was that although they had worked for a number of years, they were neither treated as skilled nor had their posts been upgraded and they had not even managed to get a single promotion. According to the Court these Canemen deserved better treatment by their employers but they were denied even equal treatment.

The Court expressed hope that the UOI and others who had filed this petition would sensitize themselves and acknowledge the rights of these Canemen and provide them their legitimate due without further delay. The Court held that the directions of the Tribunal should be complied with within two months. The writ petition was dismissed with costs of Rs. 10,000/-.

Cases Referred:

  • Council of Scientific & Industrial Research & Anr vs. KGS Bhatt, 1989 (2) SCALE 395
  • Randhir Singh vs. Union of India & Ors, (1982) 1 SCC 418
  • Raghunath Prasad Singh vs. Secy. Home (Police) Deptt. Govt. of Bihar, AIR 1988 SC 1033
  • Zia-Ud-Din vs. Delhi Admin & Anr, (1990) ATLT (CAT) 445

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M. Krishna Das vs. the Chairman, Railway Board and Ors

Filed under: Section 47 of the Persons with Disabilities Act, 1995
Appellants: M. Krishna Das
Respondent: The Chairman, Railway Board and Ors
Citation: O.A. 712 of 1998
Court: In the Central Administrative Tribunal Ernakulam
Judges: A.V. Haridasan and T.N.T. Nayar

Facts

M. Krishna Das joined the Southern Railway as a trade Apprentice. During the course of service, unfortunately his left leg had to be amputated. He was therefore, absorbed as a telephone Operator in the year 1979.

He made a representation stating that he may be posted as Train Examiner (Controller). On the said request by order of the Divisional Railway Manager, he was posted as Train Examiner (Controller) at Palghat Divisional Officer subject to the condition that he would rank junior most to all permanent and temporary Train Examiners on the date of joining, that his posting to work in the control office was purely temporary and that in case the necessity for operating the post of TXR in control officer cases or if his performance was found not satisfactory, he would have to return as Telephone Operator.

While so, by order he was also promoted as Chief Train Examiner against the restructured post and was posted to Bangalore Division. Explaining that he was not in a position to carry out his transfer to Bangalore Division on account of his physical condition, he submitted a request on 30.7.93 that he may be posted against a vacancy of CTXR Controller, or that he may be retained at Palghat itself as TXR (Controller).

Though a formal order of his posting as CTXR was issued, he was not relieved from Palghat and the impugned orders were issued canceling his promotion saying that he was medically unfit to hold the post.

Even with his disability, Krishna had been granted a Certificate of Merit by the Divisional Railway Manager, Palghat on 13.4.87 for outstanding work as TXR (Controller). He therefore submitted a representation of the Chief Personnel Officer to cancel the order of cancellation of his promotion and to give him promotion as Chief train Examiner, Head Train Examiner, Chief Train Examiner and Chief Works Superintendent in the Train Examination Control were available at Palghat was stationary posts.

Finding that he was not given promotion, the Krishna filed an application challenging the orders and praying for a direction to the Chairman railway Board to give effect to the promotion granted to him as Chief Train Examiner.

The said application was disposed off permitting him to make a representation to the second respondent (name not mentioned) and directing the second respondent to take a decision within 3 months from the date of receipt of the representation as sympathetically as possible.

Further, Krishna, pursuant to the above judgment of the Tribunal made a representation pointing out that one post of Chief Train Examiner from Coimbatore was then under orders of transfer to the Trivandrum Division, and that the said post was available at Palghat, and that the stationary post in the Train Examiner Control of Palghat Division was then occupied by a person who was not physically handicapped.

The representation was stating that no stationary post was available in the Control Office Palghat, which did not involve the duties of train examination. Aggrieved he filed O.A which was disposed of permitting him to make a representation to the first respondent (name not mentioned) setting out the grounds on which he considers himself fit to discharge the duties of the post equivalent to a Chief Train Examiner within a period of one month and direction the first respondent that he should examine what relief could be given to him on humanitarian grounds.

Krishna, accordingly submitted a representation stating that the post of CTXR (Controller) in the Control Cadre of Palghat was a stationary post, which did not involve any field work and despite his physical handicap he had been awarded a Certificate of Merit, that the Government of India had directed that 3% of the posts under the Central Civil Service should be reserved for the physically handicapped, and that all the four grades in the TXR cadre were available at Palghat.

In compliance with the orders of the Tribunal in O.A. 375/94, the impugned order was issued rejecting his claim for reviewing the cancellation of his promotion as Chief Train Examiner and for implementing the order of promoting him as Chief Train Examiner and posting him at Palghat. Against this he filed the present petition.

Arguments made on behalf of Krishna

It was argued on behalf of Krishna that the cancellation of his promotion as Chief Train Examiner and the proposal to accommodate him in an alternate post of (C-1)’ category was null and void and he prayed for a direction to Chairman Railway Board to give effect to the promotion granted to him as Chief Train Examiner and to accommodate him in the stationary post of Chief Train Examiner C&W Control Cell at Palghat Division.

It was further contended that while issuing the orders, the competent authority has not taken into account the observations contained in the order of the Tribunal in O.A. 375/94, that identical grade meant an alternate post in the grade of Chief Examiner, the fact that the post of CTXR (Controller) in Palghat was a stationary post and was presently manned by persons who did not suffer any disability as also the provisions contained in the Persons with Disabilities Act, 1995.

Arguments made on behalf of Chairman Railway Board

It was argued on behalf of Railways that as Krishna had been informed while posting him as TXR that he would have no claim for promotion in TXR cadre, the Railways could not be faulted for canceling his promotion as CTXR. It was further argued that as medical classification (B-1) was required for appointment in the TXR cadre, he had been cleared only in (C-1) category and had been validly found unfit for promotion as CTXR.

Observation of the Court

The Court observed that Krishna was posted as TXR Controller and his officiating promotion as HTXR was regularized against a regular vacancy, though it was started on the note that his continuance in “the grade” was subject to availability of a stationary post since he was unfit for general service in the open line.

It was not stated that, he did not belong to the cadre of TXR but stated only that his continuance in the “grade” would be subject to availability of stationary post.

It was because he belonged to the cadre of TXR and was senior enough that he was selected for promotion as CTXR. The cancellation of his promotion was not legally valid because he did not decline promotion.

The cancellation for the reason that (B-1) medical classification was required for being posted in the TXR cadre was also untenable because he had already been posted in TXR cadre, and promoted regularly as HTXR.

If with medical classification (C-1) he could be promoted, the contention that he could not be promoted to the higher post of CTXR, which also required the same medical classification, was questionable.

The Court observed that when normally an official climbs the ladders of hierarchy of service, the higher he goes, the lesser would be the physical exertion and higher the managerial supervision in intellectual exertion.

Therefore, if he could perform his duties as TXR and HTXR which required medical classification (B-1), the cancellation of his promotion as CTXR, without considering whether as a matter of fact he would be in a position o discharge the duties of the post or not was untenable and arbitrary.

The Chairman, Railway Board, instead of considering the feasibility of giving him an appropriate posting commensurate with his seniority and merit and taking a humanitarian view, found fault with his posting in TXR cadre forgetting the fact that despite the physical disability, Krishna had rendered meritorious and outstanding service as TXR.

The Court directed the Railway Board to give effect to the promotion of Krishna by appointing him on a post of Chief Train Examiner C&W Control, Palakkad with effect from 8.8.1995, and to give him, notional fixation of pay and grant increments with effect from that date.

It was made clear that for any valid reason, they were free to give him an alternate suitable posting without loss in emoluments or status. The above directions were to be complied with by issuing necessary orders promoting him as CTXR C&W Control, Palakkad w.e.f 8.8.95 within a period of two months from the date of receipt of a copy of this order.

The application was allowed.

Sections Referred

  • Section 47 of the Persons with Disabilities Act, 1995

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