Allowed

Krishna Kumar Agrahari v. the Union of India and 4 Ors.

Gauhati HC17 May 2018WP(C)/1619/2016

Case brief

AI extract

What is this about?

The Gauhati High Court examined promotional eligibility under Indian Railways Establishment Manual rules. It held that serving staff with requisite qualifications are eligible for promotion regardless of pay scale and set aside the CAT order, directing the Railway to process the petitioner's promotion application.

What did the court decide?

Set aside the impugned order of the CAT and directed respondent No.2 to initiate immediate steps for the petitioner's promotion within three months.

Krishna Kumar Agrahari Vs the Union of India… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010202832016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1619/2016

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1:KRISHNA KUMAR AGRAHARI

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S/O. SRI RAM PHER, WORKING AS LAB ASSTT. GRADE-I, CENTRAL HOSPITAL, N.F. RAILWAY, MALIGAON, GHY.-781011.

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VERSUS

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1:THE UNION OF INDIA and 4 ORS

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REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON, GHY.781011.

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2:THE GEN. MANAGER P N.F. RAILWAY MALIGAON GHY.-781011.

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3:THE CHIEF MEDICAL DIRECTOR N.R. RAILWAY MALIGAON GHY.-781011.

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4:SRI UPEN NARZARY WORKING AS LAB TECHNICIAN APDJ UNDER CMS N.R. RAILWAY ALIPURDUAR PIN-736121.

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5:SRI SUDEEP KRISHNATRAYA WORKING AS LAB. TECHNICIAN CENTRAL HOSPITAL N.R. RAILWAY MALIGAON GHY.-781011

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Advocate for the Petitioner : MR.J P CHAUHAN

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Advocate for the Respondent : MSB DEVI

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH

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HON’BLE MR. JUSTICE SUMAN SHYAM

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JUDGMENT AND ORDER (oral)

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Date : 17-05-2018

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(Suman Shyam, J)

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Heard Mr. K. Paul, learned counsel for the petitioner. Also heard Mr. B. Sarma,

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learned Standing Counsel, N.F. Railway, appearing for the respondents.

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The judgment and order dated 23.12.2015 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench, in Original Application No.040/00093

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of 2015 rejecting the prayer made by the writ petitioner has been assailed in the present writ petition.

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The facts of the case, briefly stated, are that the petitioner was appointed as a Laboratory Assistant under the N. F. Railway on 27.06.2003 whereafter, he was posted at Badarpur. In the year 2013 the petitioner was transferred and posted at the Railway Headquarters at Maligaon. During the year 2011 three vacancies arose in the post of Laboratory Superintendent-III. As per Clause 165(4) of the Indian Railways Establishment Manual, Volume-I (for short IREM Volume-I) the post of Laboratory

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Superintendent Grade-III can be filled up either by way of direct recruitment through Railway Recruitment Board from amongst the persons having the qualifications mentioned therein or by way of promotion of the serving staff in the Medical Department having the requisite qualification. As per Clause 165(4)(ii)(b) of IREM the staff working as Laboratory Technician/Assistant Chemists possessing the qualification of Matriculation with Science plus Diploma in Medical Lab Technology (DMLT) with five years’ service in the grade would also be eligible for promotion by selection.

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According to the petitioner, he had the requisite qualification as prescribed by Clause 165(4)(ii)(b) and was therefore, eligible to participate in the selection process initiated by the authorities for filling up the three vacant posts of Laboratory Superintendent-III by promotion. As such, on 04.01.2011 the petitioner had filed a representation addressed to the respondent No.2 for holding selection process for the post of Laboratory Superintendent-III and also to consider him for promotion since he was the only medical staff in the entire N. F. Railway who fulfilled the requisite qualification and eligibility criteria. The representation filed by the petitioner was, however, rejected by the respondent No.2 by his letter dated 01.12.2011 whereby the petitioner was informed that as per the provisions of the IREM his case cannot be considered for promotion to the post of Laboratory Superintendent-III.

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Being aggrieved by the communication dated 01.12.2011 the petitioner had filed an Online complaint with the Public Grievance Cell and the matter was then referred to the Railway Board for necessary clarification. By the communication dated 20.06.2012 the Railway Board had clarified that the vacancy in the category of

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Laboratory Superintendent-III is to be filled up in accordance with paragraph 165(4) (ii) of the IREM Volume-I. In the wake of the aforesaid clarification issued by the Railway Board, the petitioner had renewed his prayer by filing representations before the authorities but to no avail. On 21.02.2014, the respondent No.2 had eventually informed the petitioner that the cadre restructuring in the department was under process and his case would be examined only when the said process was over. The petitioner kept waiting for a favourable response from the authorities in the matter but since his case was not considered even after expiry of more than five months after the restructuring of the centralised cadre, he was compelled to approach the Central Administrative Tribunal seeking redressal of his grievance.

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The controversy involved in this proceeding revolves around the interpretation of paragraph 165(4) of the IREM Volume-I which is quoted herein below for ready reference :-

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“ 165(4) The posts in the next higher grade of Lab Supdt.III/Chemist in the pay scale of Rs. 5000-8000 will be filled as under :-

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(i) By Direct Recruitment through Railway Recruitment Boards with the following qualifications :

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(a) Educational : B.Sc. with Bio-chemistry/ Micro Biology/Life Science or equivalent plus Diploma in Medical Lab Technology : (DMLT) or equivalent or B.Sc. in Medical Technology (Laboratory) from recognised institutions.

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(b) Age : Between 18 and 30 years.

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(ii) By promotion with the following qualification :

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(a) Serving staff in the Medical Department fulfilling the qualification prescribed for direct recruitment as at (4) (i)(a) above are eligible for being considered for promotion as Lab. Supdt.III/Chemist in scale of Rs. 5000-8000 by a duly constituted Selection Board in accordance with the prescribed procedure.

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(b) The staff working as Lab Technician/ Assistant Chemist in the pay sale of Rs.4500- 7000 and possessing the qualification of Matriculation with Science plus Diploma in Medical Lab Technology (DMLT) with five years service in grade will also be eligible for promotion by selection; the professional qualification being assessed by a trade test at the time of selection.

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Note : - (i) Direct recruitment beyond the prescribed quota is to be resorted to, to the extent of serving staff with requisite qualification as above are not available/suitable.

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(ii) Persons in service as on 1.8.98 with the then existing qualification of Matriculation with Science plus Diploma in Laboratory Technician’s course and five years service as lab Technician/Asstt. Chemist in grade Rs.4500-7000 will also continue to be eligible for promotion by selection, as Lab Supdt. Gr.III/Chemist in the pay scale Rs.5000- 8000.

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[ Authority :- Board’s letter No.PC-V/97/I/11/25(2) dt. 13.7.99]”

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A plain reading of paragraph 165(4) of the IREM Volume-I goes to show that the post of Laboratory Superintendent-III can be filled up either by way of direct recruitment or by promotion as per paragraph 165(4)(ii). It is not in dispute that the petitioner holds a Bachelor degree in Chemistry plus Diploma in Medical Lab

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Technology (DMLT). Therefore, it is apparent that the petitioner had met the qualification norms laid down in paragraph 165(4)(ii)(a) of the IREM for being considered for promotion for the post of Laboratory Superintendent-III.

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Mr. Paul, learned counsel for the petitioner, contends that paragraph 165(4)(ii) (a) of the IREM does not make any distinction amongst the serving staff in the medical department for being considered for promotion to the post of Lab. Supdt.III/Chemist subject to the condition that the qualification prescribed for direct recruitment to the said post is met by the candidate. Under the circumstances there was no justifiable ground for the respondents to reject the prayer of the petitioner for consideration of his case for promotion to the post of Lab. Supdt.-III, more so, in the light of the clarification issued by the Railway Board.

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Mr. B. Sarma, learned Standing Counsel, N.F.Railway, on the other hand, contends that the candidates drawing the pay scale just below the scale of Lab. Supdt.-III can only be considered as belonging to the feeder cadre for promotion to the next higher grade of Lab. Supdt.- III. While admitting that the petitioner fulfils the qualification norms prescribed by paragraph 165(4)(ii) of the IREM, the learned Standing Counsel contends that the petitioner was drawing a lower pay scale as compared to the respondent Nos.4 and 5 and hence, was not in the feeder cadre for promotion to the post of the next higher grade of Lab. Supdt.-III. It is on such count that his case could not be considered by the authorities at the relevant point of time. Mr. Sharma has, however, admitted that the petitioner’s case will now be considered for promotion since he is drawing the pay scale immediately below that of Lab.

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Supdt.-III.

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The learned Central Administrative Tribunal had rejected the case of the petitioner by holding that the graduate staff working in the medical department can only be given preference if they are working in the immediate lower grade pay. It was further held that persons working in the medical department who have qualification for being promoted to the post of Lab. Supdt.-III cannot be permitted to jump the hierarchy of grade pay.

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As noted above, the key question falling for consideration of this Court in the present case would be whether the serving staff in the medical department having the requisite qualification, regardless of their grade pay, would be eligible for being considered for promotion to the post of Lab. Supdt.-III/Chemist as per the mandate of Clause 165(4) of the IREM.

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A conjoint reading of Clauses (a) and (b) of paragraph 165(4)(ii) goes to show that the preference for promotion must be given to those serving staff in the medical department who fulfil the requirement of Clause 165(4)(ii)(a) and the persons coming within the sweep of Clause 165(4)(ii)(b) were also to be treated as eligible for promotion. The use of the expression “also” in Clause 165(4)(ii)(b) of the IREM read with Note (ii) leaves no manner of doubt that it is the serving staff of the department having graduate degree who are required to be given preference for promotion regardless of the grade pay enjoyed by them. This is, however, not to mean that the Laboratory Technicians who are Matriculates and having Diploma in Medical Lab Technology (DMLT) with five years service in the grade would be completely

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eliminated from the promotional avenues. As per Clause 165(4)(ii)(b) their cases are also required to be considered by the authorities but not to the exclusion of those who come within the ambit of Clause 165(4)(ii)(a).

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Mr. Sarma, learned Standing Counsel appearing for the N.F. Railway, has tried to convince this Court that there is ambiguity in the Rules inasmuch giving the meaning as ascribed to Clause 165(4)(i) and (ii) of the IREM by the petitioner’s counsel would lead to an anomalous situation where the junior drawing a lower pay scale would steal a march over the senior Laboratory Technicians having the requisite experience and also drawing higher pay scale merely because they do not have the qualification of being graduate in any of the disciplines mentioned in the Rules. The learned Standing Counsel has, therefore, argued that in order to address the ambiguity in the Rules the Railway authorities have considered the cases of the respondent Nos.4 and 5 for promotion. We are afraid that the submissions of Mr. Sarma to the above effect cannot be accepted by this Court. It is the salutary principle of statutory interpretation that when words of a statute are clear, plain or unambiguous i.e. they are reasonably susceptible to only one meaning, the Courts are bound to ascribe that meaning regardless of the consequences. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense [see Principles of Statutory Interpretation by Justice G. P. Singh, Chapter-I, Syn-5, Page 55, 14^th Edition].

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In the words of Gajendra Gadkar, J. “If the words used are capable of one construction only then it would not be open for the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.

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The IREM Volume-I lays down a set of rules relating to recruitment, training, confirmation and various other steps governing the conditions of service of the Railway employees. The Manual has been published under the authority of the Railway Board and therefore, in our opinion the same would have a force of a statute. From a plain reading of the provisions of Clause 165(4) of the IREM we do not find any ambiguity in the rules. The mere fact that the operation of the rules in a particular manner would produce a result unfavourable to the management cannot be a ground to read into the Rules words that are not inserted therein.

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For the reasons stated herein above, we find sufficient force in the argument advanced by the learned counsel for the petitioner assailing the impugned order dated 23.12.2015 passed by the learned Central Administrative Tribunal. We accordingly set aside the impugned order dated 23.12.2015. Since the learned departmental counsel has admitted before us that there are vacancies available as on date to accommodate the petitioner in the post of Laboratory Superintendent Grade-III, we direct the respondent No.2 to initiate immediate steps for considering the case of the petitioner for promotion to the post of Laboratory Superintendent Grade-III . The direction contained in this order shall be complied with as expeditiously

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as possible but not later than three months from the date of receipt of a copy of this

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order.

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The parties to bear their own cost.

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JUDGE CHIEF JUSTICE.

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Comparing Assistant

Krishna Kumar Agrahari v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

Krishna Kumar Agrahari v. the Union of India and 4 Ors.

Case brief

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What did the court decide?

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