Allahabad High Court: In a writ petition directed against the order of the Central Administrative Tribunal (‘CAT’), wherein the Tribunal directed the Union Government to grant notional promotion to the applicants w.e.f. 02-07-2018, thereby giving them all the consequential benefits as accrued, the division bench of Saumitra Dayal Singh and Rajendra Kumar-IV, JJ. held that denying the respondents to join back and forcing them to wait till the cadre was closed, was an arbitrary and indefensible act of the Indian Railways, a department of Union of India. Thus, the Court upheld the impugned order of the Tribunal.
Background:
The respondents were appointed and served at Integral Coach Factory, Chennai (‘ICF’). Pursuant to letter dated 12-09-2013 issued by Coach Mid Life Rehabilitation Workshop (‘CMLRW’), the respondents applied for deputation from ICF to CMLRW. All the respondents were accepted on deputation at CMLRW in 2013. They served there without any complaint. Their services have been found to be satisfactory both at ICF and CMLRW. On 11-7-2018, the respondents applied to CMLRW to be repatriated at ICF. That application was forwarded by CMLRW and was rejected by the ICF as no valid or substantive reason had been disclosed for the repatriation sought. Thereafter, the respondents moved another application seeking repatriation at ICF for reason of their promotion having become due in their parent department, namely ICF. However, before any promotion may have been granted, cadre of Technician Grade-I/promotional post at ICF, was closed. Therefore, the respondents have continued on the post of Technician Grade-II at CMLRW.
The respondents claimed entitlement to promotion to Technician Grade-I, which has been eventually granted to them at CMLRW.
Analysis
The Court said that the Railways does not have a separate entity or existence distinct from the Union of India. It is an inseparable part of the Union of India. Then, within the department of Railways, there exist various establishments including the ICF, Chennai and CMLRW, Jhansi. The letter dated 12-9-2013 does not create a prohibition on the respondents from seeking repatriation to their parent establishment. Clause-1 of that letter clearly provides for maintenance of lien in favour of the respondents at ICF till existence of cadre. Thus, that cadre continue to exist till the respondents joined back i.e. 3-12-2018.
The Court further said that Clause 7 of the letter provides that those serving on deputation may not be normally returned to their parent establishment, is not a rule to disable the promotions or to disable repatriation. Thus, it only appears to be a clause, as it may not allow frequent switch of preference made by any officer who may first seek deputation.
The Court added that in any case once promotion avenues became open to the respondents, it was wholly logical for them to have sought that promotion. Since that promotion may not have been availed by them while continuing to serve on deputation at CMLRW, they appear to have applied for repatriation. Therefore, Clause 7 will not prevent an officer on deputation from availing promotion that may have become available at his parent establishment, in normal course.
The Court said that both ICF and CMLRW are two arms of the same department of the Union of India. Thus, the department of the Railways, under the Union of India is primarily responsible and liable for the mistake committed either by ICF or CMLRW or both.
The Court accepted the claim made by the respondents to join back ICF, pursuant to their request dated 11-7-2018 and viewed that only ministerial act for allowing the respondents to join back ICF, remained to be performed.
Thus, the Court upheld CAT’s order directing the Union Government to grant notional promotion to the applicants w.e.f. 02-07-2018.
[Union of India v Ashutosh Kumar, 2023 SCC OnLine All 929, Order dated 27-09-2023]
Advocates who appeared in this case :
Counsel for Petitioner: Advocate Vivek Kumar Singh
Counsel for Respondent: Advocate Alok Kumar Dave
