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HIGH COURT OF DELHI
JUDGMENT
UMAR DARAZ ..... Petitioner
For the Petitioner: Mr. Mohammad Ali, Mr. R.K. Rajwanshi, Mr. Mutiur Rehman and Ms. Prachi Gupta, Advocates.
For the Respondents: Ms. Aakanksha Kaul, Mr. Manek Singh, Mr. Aman Sahni, Mr. Pranav Gupta and Mr. Simran Gill, Advocates.
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
1. Petitioner impugns judgment dated 25.09.2019, whereby the Original Application filed by the petitioner seeking a direction to the This file is to HMJ Sanjeev Sachdeva. respondents to grant third financial upgradation under the Modified Career Progression Scheme (MACP), has been dismissed.
2. Learned counsel for petitioner submits that when the petitioner was appointed to the class-III post, the same was to be treated as a direct recruitment and not a promotion and as such he was entitled to the benefit of the third MACP. He submits that respondents have incorrectly denied him the benefit assuming the said appointment to class-III post as a promotional appointment.
3. Petitioner on 17.04.1974 was appointed as a Call Man in the Northern Railway, Delhi Division, which is a class-IV post. He was moved from class-IV to class-III (Clerical) after undertaking a test in 1982 and subsequently promoted to the post of Senior Clerk on 27.05.1987 and Head Clerk on 22.02.1996.
4. Benefit of financial upgradation under the MACP was granted to several employees by order dated 21.04.2010. Petitioner was denied the said benefit. Accordingly, petitioner filed the subject Original Application contending that he had only received two promotions, one to the post of Senior Clerk and second to the post of Head Clerk in 1987 and 1996, respectively and his moving from class-IV to class-III was after undergoing a test and as such was not a promotion and was a direct recruitment.
5. The Tribunal by the impugned order has held that moving of MAGGU petitioner from class-IV to class-III was a promotion though after a test and the same could not be compared to Limited Departmental Competitive Examination (LDCE) as the same was strictly by seniority, subject to the employee satisfying certain basic requirements attached to the said promotional post.
6. Reference may be had to the order of promotion dated 12.02.1982 in respect of the petitioner, which reads as under:- “NOTICE As a result of selection from Class IV staff to Class III staff @ 33. 1/3 % against departmental quota the following candidates placed on the provisional panel for the post of clerk Gr. 260-400 (Rs.) are appointed to officiate as such and posted on the stations shown against each;…………………………………………….”
7. It may be noticed that petitioner figures at Sr. No.12 in the said list of employees, who were placed on the panel for the post of Clerk by notice dated 12.02.1982. Further, the notice dated 12.02.1982 shows that the selection process was in respect of 33.1/3 % departmental quota.
8. Reference may be had to the relevant Recruitment Rules in respect of the subject post i.e., Train Clerks, which read as under:- MAGGU “(v) TRAINS CLERKS
126. (1) The posts in the category of Train Clerks in the pay scale Rs.3050-4590 will be filled as under: (i) 50% by direct recruitment through Railway Recruitment Board; (ii) 33. 1/3 % by promotion by a process of selection from eligible categories of staff in level-1 as specified by the Zonal Railways as per procedure prescribed in para 189; and Points men ‘A’ in Level-
2. {Authority: Railways Board’s Letter No. E(NG)I/2010/PM 2/6 dated 09.05.2019} (iii) 16. 2/3 % by promotion entirely on merit of Matriculate Group ‘D’ employees from eligible categories, as specified by the Zonal Railways for (ii) above, with a minimum of 2 years regular service in the concerned seniority unit on the basis of a competitive examination consisting of Written Test and Record of Service of 85 and 15 marks respectively. ”
9. There are three categories of feeder posts to the post of Train Clerk, one is 50% by direct recruitment through Railway Recruitment Board, second is 33. 1/3 % by promotion by a process of selection and thirdly of 16. 2/3 % by promotion entirely on merit based on competitive examination.
10. Admittedly, petitioner falls in category (ii) i.e., 33. 1/3 % by MAGGU promotion. In respect of promotion also, a process of selection has been specified which in the present case was by way of an examination. It is not in dispute that consideration for the post said
33. 1/3 % seats were purely on the basis of seniority. All employees who were senior and eligible had to undergo the selection process prescribed for promotion under the said category including the petitioner. Merely because the petitioner was subjected to examination to test his suitability for the promotional post would not imply that it was not a promotion and was a direct recruitment or an appointment through a competitive examination.
11. It is the admitted case of the petitioner that he does not fall in category (i) i.e., 50% of direct recruitment or category (iii) i.e. 16. 2/3 % by competitive examination and falls in the category of 33. 1/3 %, which, as we have noticed hereinabove, is a promotional post.
12. Clearly, petitioner was moved from class-IV to class-III by way of promotion on 12.02.1982 and as such, the stand of the petitioner that he has not availed of three promotions cannot be sustained. Learned counsel for petitioner relies on Rule 189 of the Recruitment Rules to contend that since the Rule prescribes that promotion shall be made on the basis of selection, the same should be treated as direct recruitment.
13. We are unable to accept the contention, for the reason that the MAGGU Rules cannot be read in the manner in which learned counsel for petitioner is seeking to read the same. For the purpose of ready reference, Rule 189 may be referred to, which reads as under:-
14. Reading of Rule 189 clearly shows that Rule 189 merely stipulates that all promotions shall be made on the basis of selection, which will entail a written test to assess the educational attainments of candidates and is to assess the general suitability of the employee for the promotional post. This rule, when read in conjunction with Rule 126, shows that the process of selection as entailed in Rule 126, would include a written test and merely because an employee undergoes the written test as a process of selection for promotion, the said written test cannot be equated with a competitive examination for the 16.2/3% posts.
15. We find no infirmity in the view taken by the Tribunal in holding that the examination for the promotion as well as the LDCE cannot be equated or compared.
16. Further, reliance placed by the learned counsel for petitioner on MAGGU the judgment of the High Court of Judicature at Madras dated 04.02.2015 in W.P. (C) 30629/2014 titled Union of India Vs. D. Sivakumar, is misplaced, for the reasons that in the said case, the employee had appeared for a selection test and had been selected for the post and the admitted position was that he had got appointed to the said post after a selection process as distinct from the case of the petitioner, who was moved from class-IV to class-III by way of promotion based on his seniority-cum-fitness/selection.
17. We accordingly find no merit in the petition and the petition is consequently dismissed.
SANJEEV SACHDEVA, J. TUSHAR RAO GEDELA, J. NOVEMBER 10, 2022 NA MAGGU