M.P No. 88 of 2010 · Gauhati High Court

According to the petitioner, in view of the above sequence of ev ents his name was included for consideration for upgradation at the Rangiya Divi sion in terms of the Railway Board’s letter No. PC-III/2003/CRC/6 dated 9.10.200 3 (for short, hereinafter referred to as ’Instructions on Restructuring/ IOR’) f ollowed as policy guidelines on the subject, it being his specific case that he had never been considered for upgradation at Maligaon before he was released the refrom on 28.11.2003. The petitioner has pleaded that though following the polic y decision of bifurcation of the Alipurduar Division by constituting the Rangiya Division the cadre of the latter was closed with effect from 1.11.2003, only 10 posts out of the 71 earmarked to be sliced away from the Alipurduar Division we re transferred by that date and the remaining 61 posts were allocated to it (Ran giya Division) on various dates by communications No. E/191/AP(C)RNY-Divn/47/A dated 10.6.2004, No. E/191/AP(C)RNY-Divn/47/A dated 6.1.2005 and No. E/191/AP(C) RNY-Divn/47/A dated 14.11.2005 transferring 20,9 and 32 posts respectively in in stallments. In the above view of the matter, the Divisional Railway Manager 4A. (P) Rangiya by his letter No. EQ/Labour Court/RNY Pt.I dated 23.2.2007 addressed to the General Manager (P), NF Railways, Maligaon pointed out that restructurin g of the Rangiya Division with effect from 1.11.2003 in view of the delayed rele ase of 61 posts had in fact been effected only for 76 posts and that a fresh exe rcise ought to be undertaken for extending the restructuring benefit to the dese rving members of the staff. It was inter alia pointed out in the said letter tha t the staff who had joined the Rangiya Division after 1.11.2003 had not been acc orded any restructuring benefit in the earlier place of posting i.e. in the pare nt division/ unit and that as contemplated they could not get the restructuring benefit with effect from 1.11.2003 on the basis of 121 posts allotted to the Div ision. This proposal was turned down by the respondent Railways and the decision to that effect was communicated to the DPO/RNY, NF Railway vide letter No. E/28 3/1(Rest)(Q) dated 8.8.2007. Being aggrieved, the petitioner approached the lear ned Tribunal.

The respondent Railways in their written statement while admitti ng the bifurcation of the Alipurduar Division and creation of the Rangiya Divisi on as well as the decision to apportion the posts of the former in the ratio of 50 : 50, conceded that 70 posts earmarked for the Rangiya Division were not tran sferred at a time by the Alipurduar Division and in fact the staff were transfe rred in a phased manner. Referring to the IOR, the respondents averred that rest ructuring of cadres was to be with reference to the sanctioned strength as on da te following the date on which the cadre in the headquarter offices of new Zonal Railways/ new Divisions were closed and that the said benefit was to be restric ted to the persons who were in a particular cadre on the cut off date and in ter ms of paragraph 3.1 of the Railways Board’s letter No. PC/III/2003/CRC/6 dated 6 .1.2004. Contending that the cadre of the Rangiya Division was closed with effec t from 1.11.2003, they referred to a meeting held on 3.2.2005 with regard to cad re restructuring of Rangiya Division which inter alia recorded that the same wou ld be done on the basis of the posts available as on 1.11.2003 and that in case the number of incumbents were more as on 1.11.2003, the posts transferred to Ra ngiya Division after 1.11.2003 would be notionally taken into account for restru cturing to the extent of the number not available in the concerned unit. They, t herefore, admitted that the restructuring of the clerical cadre of the Personnel Branch of the Rangiya Division was done on 31.3.2005 on the total strength of 7 6 posts existing as on 1.11.2003. Reference was also made of the letter No. E.28 3/218(HQ)(C) dated 5.4.2004 of the General Manager (P), Maligaon to the effect i n essence that the staff who had joined the Rangiya Division/ HQ before or after 1.11.2003 would get the benefit of restructuring at their original place of pos ting. According to them, in terms of this letter the restructuring of the cleric al cadre was done in the Alipurduar Division and 61 posts referred to in the com munications dated 10.6.2004, 6.1.2005 and 14.11.2005 were transferred to the Ran giya Division in succeeding phases.

Adverting to the Railway Board’s letter No. PC-III/2003/CRC/6 da ted 6.1.2004, the respondents pleaded that all vacancies arising out of the rest ructuring were to be filled up by senior employees who were to be given the bene fit of promotion with effect from 1.11.2003 whereas the junior employees were to be posted by modified selection procedure. According to them, the petitioner ha ving joined the Rangiya Division on 1.12.2003 i.e. after 1.11.2003 restructuring was carried out by the General Manager (P), Maligaon based on the instructions contained in the letter dated 5.4.2004 and in the process, 19 staff were promote d as per PBR and seniority. They stated that having regard to his placement at s erial No. 50 in the seniority list at Maligaon where he had been serving, his ca se did not come within the purview of promotion against restructuring of cadre o n seniority and suitability basis. They endorsed the validity of the impugned de cision by referring to Para 19 of the IOR maintaining that the petitioner, in th e facts and circumstances, was not entitled thereunder for a fresh consideration for promotion as claimed by him.

ned hereinabove were retained and, thus, dilation thereon is uncalled for. Though additional pleadings were filed, the basic facts as outli The learned Tribunal by the impugned decision sustained the demu 8. r of the respondents and negated the challenge of the petitioner. In arriving at its ultimate conclusion to the above effect, the following factors were taken n The cut off date for implementing the benefits of restructuring admitted ote of:- (i) ly was 1.11.2003. Restructuring of the line staff of the Rangiya Division was done as per (ii) bifurcated cadre in terms of the NF Railways Circular No. E/283/218(HQ)(C) dated

5.4.2004. (iii) The petitioner was transferred to the Rangiya Division after the cut off date i.e. 1.11.2003. (iv) The benefit of officiating promotion had been accorded to 19 Head Clerks at NF Railways, Maligaon vide order dated 22.11.2004. In the said promotion pro cess no junior to the petitioner to the exception of one Smt Ramila Thakuria, a Scheduled Caste candidate did figure. This amounted to consideration of the peti tioner’s case for restructuring benefit as on 1.11.2003 as he was admittedly at NF Railways, Maligaon as a part of the cadre thereat. (v) Once a person has been considered for restructuring in one zone/ divisio n, merely on account of transfer to a newly created division he would not be ent itled to concessional benefits under the scheme of the IOR for the second time. (vi) uld be entitled to the benefit consequent thereupon. (vii) Mere change in the total strength of the Rangiya Division by addition of 61 posts on transfer after 1.11.2003 was irrelevant vis-à-vis the petitioner’s Restructuring did not signify that each and every person in the cadre wo expectations for consideration for restructuring benefits in terms of the IOR. (viii) ision/ zone and not in the newly created zone/ division. The benefits of restructuring was to be made available in the parent div

Mr Chanda with particular reference to Para 1 and Para 19 of the IOR as well as the letter dated 23.2.2007 has insistently urged that in absence of a meaningful consideration of the petitioner’s case for promotion to the hig her post of Office Superintendent-II in the CPO, Maligaon, the denial of the ben efit of restructuring is per se illegal, arbitrary and discriminatory and that t he learned Tribunal having failed to address itself to this vital aspect of the lis, the impugned judgment and order is unsustainable in law and is liable to be set aside. According to the learned counsel, though on records the cadre of the newly created Rangiya Division was closed on 1.11.2003, it is apparent from the contents of the letter dated 23.2.2007 that all the 121 posts earmarked for it had not been released by the Alipurduar Division by then and that, therefore, th e respondent Railways ought to have permitted the proposed exercise of according restructuring benefit vis-à-vis the staff who have joined the Rangiya Division after 1.11.2003. Restructuring of 61 posts of clerical cadre of the Personnel Br anch at the Alipurduar Division as represented by the letter dated 8.8.2007 bein g wholly irrelevant vis-à-vis the petitioner’s grievance, the learned Tribunal f ell in error in rejecting the impugnment thereof without appropriately scrutiniz ing the facts attendant thereon, he urged. As one of the reliefs prayed for by t he petitioner before the learned Tribunal was annulment of this communication da ted 8.8.2007, the learned Tribunal ought to have adjudged the validity or otherw ise thereof in the overall conspectus of facts, he insisted. That the impugned j udgment and order is vitiated by an erroneous interpretation of the IOR renderin g it irreversibly incurable has also been underlined. Mr Chanda by drawing the a ttention of this Court to the Memoranda dated 17.5.2007 and 6.9.2007 has submitt ed that as the revised process of restructuring promotion is evident therefrom, refusal of the same relief to the petitioner is grossly erroneous.

Mr Sarkar per contra has reiterated chiefly on the basis of the letter dated 5.4.2004 of the General Manager (P), Maligaon that as recited there in the case of the petitioner was duly considered for promotion prior to 1.11.2 003 while he was still in the cadre of CPO, Maligaon and as in terms of his seni ority in service and otherwise he could not be accorded the same, as per Para 19 of the IOR, he was not entitled to be considered afresh for any restructuring b enefit and, thus, the conclusion of the learned Tribunal is unassailable. As the petitioner admittedly was released from his cadre in the CPO, Maligaon after 1.

11.2003, the proposal for consideration for restructuring benefits in terms of t he letter dated 23.2.2007 vis-à-vis him and other similarly situated transferee/ optees was obviously untenable and, therefore, the decision communicated vide l etter dated 8.8.2007 is not flawed. That the restructuring of cadres was to be w ith reference to the sanctioned cadre strength as on 1.11.2003 was sought to be re-emphasized by the learned Standing Counsel, NF Railways with reference to the Memo No. PC-III/2003/CRC/6 dated 6.1.2012.

The pleadings on record and the arguments advanced on the basis thereof have received our due consideration. That on 1.11.2003 the petitioner ad mittedly was serving in the CPO, Maligaon is not in dispute. There is no wrangle at the Bar that he had opted for the Rangiya Division before 1.11.2003 but was in fact released by the CPO, Maligaon on 28.11.2003 and he eventually joined the said Division on 1.12.2003. In terms of Para 1 of the IOR dated 9.10.2003 the r estructuring of cadre was to be with reference to the sanctioned cadre strength as on the date following the date on which the cadres in the headquarter offices of new Zonal Railways/ new Divisions were closed i.e. 1.11.2003 qua the Rangiya Division. This paragraph further mandated that the restructuring would be restr icted to the persons who had worked in a particular cadre on the cut off date. P ara 19 which is of formidable significance is extracted hereinbelow for ready re ference: (cid:28)Due to re-organisation of Zonal Railways/ Divisions cadre are in a fluid situat ion. It may, therefore, take some time for the cadres in the headquarter offices of New Zones and New Divisions to stabilize. In the circumstances, new Zonal Ra ilways are required to ensure that the staff transferred to headquarter offices of new Zonal railways/ new Divisions are not extended the double benefit of rest ructuring. In case an employee has been given the benefit of restructuring on th e old (parent) railway in terms of these orders, he will not be allowed the bene fit of restructuring again on the headquarter offices of new Zonal Railways/ new Divisions. In other words, no railway servant will be considered for double pro motion as a result of this restructuring. (cid:29).

A plain reading of this paragraph of the IOR, to start with, doe s not mandate obligatorily the consideration of the case of any member of the st aff transferred to the headquarter offices of new Zonal railway/ new Divisions a t the parent office. The inhibition is only against grant of double benefit of r estructuring. The letter dated 5.4.2004 (Annexure-6 to the writ petition) in ess ence seems to suggest that the staff who had joined the Rangiya Divisional Headq uarter before or after 1.11.2003 would get the benefit of restructuring at their original place of posting. This letter reaffirms that the cadre of the Rangiya Division had been closed with effect from 1.11.2003. Taking the clue from this l etter, it is obvious that the respondent Railways thus have consistently contend ed against entitlement of the petitioner’s consideration for restructuring benef it in terms of the letter dated 23.2.2007 asserting that his case had been once considered for promotion at CPO, Maligaon before his release on 28.11.2003. It t ranspires from their additional pleadings that as on 1.4.2003 in the PNO Guwahat i Unit there were 75 Head Clerk (E) and in the seniority list circulated by the General Manager, Maligaon the name of the petitioner figured at serial No.50 as an unreserved candidate and further that by order dated 22.9.2004, 19 Head Clerk s (E) were promoted to OS-II (E) consequent on the restructuring. The responden ts have candidly stated that having regard to the seniority position of the peti tioner (cid:28)his promotion was not due (cid:29).

On a conjoint reading of the written statement filed before the learned Tribunal as well as the affidavit-in-opposition filed in the instant pro ceedings, it is not unimpeachably clear as to whether the case of the petitioner in view of his seniority position at the CPO, Maligaon had at all been consider ed for promotion to the next higher post of OS-II. This Court has not been led t o any record to reinforce the plea of the respondents that the petitioner’s case was in fact considered for promotion, he being within the zone of consideration therefor but in view of his lower placement in order of seniority he could not be accorded the same. In the face of this state of pleadings and the materials o n record, it is not possible to conclusively hold that as contemplated in Para 1 9 of the IOR the petitioner’s case had in fact been considered for restructuring benefit at the CPO, Maligaon.

That the additional 61 posts as above were transferred to the Ra ngiya Division after 1.11.2003 is apparent as well from the letter dated 12.7.20 07 of the Divisional Railway Manager (P), Alipurduar Junction (Annexure-19 to th e writ petition). In this factual premise, the relevance of restructuring of 61 posts of clerical cadre of the Personnel Branch/ APDJ based on a total of 172 po sts vis-à-vis the claim of the petitioner for restructuring benefit as an optiee / transferee to the Rangiya Division who had actually joined the same on 1.12.20 03 passes one’s comprehension.

The process of revised restructuring of the Engineering Departme nt and the Operation Department at the Rangiya Division much after 1.11.2003 as is evident from the Memoranda dated 17.5.2007 and 6.9.2007 belies the plea of ri gidity of that date i.e. 1.11.2003 vis-à-vis the exercise to that effect in ter ms of the IOR and the letter dated 5.4.2004 in particular. Viewed in this contex t, the denial of the petitioner’s claim for restructuring benefit on the basis o f the entire gamut of posts allotted to the Rangiya Division, in our view, canno t be approved. Not only the assertion of the consideration of the case of the pe titioner for promotion at the CPO, Maligaon is demonstrably unconvincing, the pr oposal of the DRM(P), Maligaon as detailed in the letter dated 23.2.2007 on the basis of the recorded facts cannot be lightly brushed aside.

On a totality of the consideration of all aspects as recited her einabove, we are left unpersuaded that the petitioner’s claim for consideration for restructuring benefit is opposed to the letter and spirit of Para 19 of the IOR dated 9.10.2003. The petitioner having opted to join the Rangiya Division o n its bifurcation from the Alipurduar Division while encadred in the cadre of He ad Clerk at the CPO, Maligaon, we are of the unhesitant opinion that in the prev ailing facts and circumstances, his challenge to the letter dated 8.8.2007 ought to be sustained and consequential directions should be issued for affording him an opportunity to avail the said benefit. Ordered accordingly.

The impugned judgment and order of the learned Tribunal is, thus , interfered with. The respondent Railways would consider the case of the petiti oner for restructuring benefit on the basis of the 121 posts allotted to the Ran giya Division released after 1.11.2003, however, strictly in terms of the IOR da ted 9.10.2003 and accord him his entitlements pursuant thereto as is permissible .