IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 21150 of 2008 Between: P. Nanda Kumar, S/o. P.V. Subbaiah, Hindu R/o. Rly.Qtrs. No.311/3, Nanded, Maharashtra State. ..... PETITIONER AND 1 The Chief Personnel Officer, 4th Floor, S.C. Railway, South Central Railway, Rail Nilayam, Secunderabad. 2 The Asst. Personnel Officer, S.C. Railway, Nanded, Maharashtra State. 3 Sri Prabhu Sambhaji S/o. Sambhajai, Presently working as O.S-II in the Maharashtra. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ order or direction more particularly a one in the nature of writ of Mandamus declaring the action of the Official respondents in treating the respondent N.3 as Senior to the petitioner by giving restructuring benefits in the post of Station Master II in the scale of Rs. 5500/- - 9000/- and O.S. Gr-II to Contrary to the Railway board serial Circular 191/03 dt. 28-10-2003 clause No. 2 and issuing promotion orders in proceedings No. NP/563/Admn-Cad/Optd./O.S. Gr.-I dt. 28-8-08 which is confirmed by the central administrative Tribunal in its Judgment dt. 24-3-2008 in OA No. 111/07 is legal, arbitrary and volatile of article 14 and 16 of the constitution of India and consequently directs the Official respondents to promote the petitioner to the post of office superintendent Gr.I in the scale of Rs. 6500 - 10500 duly treating him as senior to the respondent No. 3 with all monetary benefits including seniority pay fixation and all other benefits and pass Counsel for the Petitioner:MR.J.M.NAIDU Counsel for the Respondent No.: MR.A.KRISHNAM RAJU The Court made the following : O R D E R: (per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed questioning the order of the Central Administrative Tribunal, Hyderabad, in O.A.No.111 of 2007 dated 24-03-2008, whereunder the petitioner challenged the order of the second respondent dated 07-07-2006 promoting the third respondent to the category of Office Superintendent, Grade-II in the scale of Rs.5500-9,000 with effect from 30-11-2004, and consequently sought a direction that he be considered for promotion to the post of Office Superintendent, Grade-I, treating him as senior to the third respondent. Facts, in brief, are that the petitioner was originally appointed as Rakshak in Railway Security Department on 23-07-1976 and progressed upto Assistant Sub-Inspector (ASI) of RPF in the scale of Rs.4000-6000. Thereafter, he was medically decategorized for the post of ASI on 16-02-2004 but was found fit in medical classification C-1 and was kept under supernumerary post with effect from that date in the scale of Rs.4000-6000. Following the medical decategorisation, the petitioner was absorbed as Office Superintendent, Grade-II, on 04-07-2005 in the Operating Department of Nanded Division, after he was granted the benefit of promotion to the post of ST/PF in his parent department, in view of the judgment of this Court in W.P.No.20368 of 2004, which was confirmed in W.A.No.993 of 2005 dated 07-06-2005. It is also his case that his seniority is being maintained in the ministerial cadre in the grade of Rs.5500-9000. The third respondent was initially appointed as Yard Porter (Operating) on 15-03-1982, that he was promoted as Pointsman-B and Pointsman-A before becoming Assistant Station Master-II in 1992, that he was further promoted as Assistant Station Master-I in the scale of Rs.4500-7000 on 27-12-1994, that he was medically decategorised on 12-09-2003 and was kept in a special supernumerary post of Assistant Station Master-I in the scale of Rs.5000-8000 and that on 30-11-2004, he was absorbed as Head Clerk in the scale of Rs.5000-8000 in the ministerial cadre of Operating Department. It is the specific case of the petitioner that employees, who are medically decategorised, have to be absorbed in an alternative post of equivalent scale, and if no such post is available, they should be absorbed in a lower post duly granting the benefit of pay protection as per Railway Board’s circulars governing medical decategorisation, that the third respondent was absorbed in the higher post of Head Clerk, which carried the pay scale of Rs.5000- 8000, and was promoted to Office Superintendent, Grade-II, and as there was restructuring in his department, he was given the benefit retrospectively from 01-11-2003. Alleging that the third respondent was in the scale of Rs.5500-9000 and was granted the benefit of restructuring and would be considered for promotion to the next higher grade of Office Superintendent, Grade-I earlier than the petitioner, he approached the Tribunal. The Tribunal, on perusing the comparative statement and service particulars of the petitioner and the third respondent, noted that absorption of third respondent in a higher scale of Rs.5000- 8000 with effect from 30-11-2004 did not make any material difference in the final analysis because though he would have been promoted to Station Master-II grade in the scale of Rs.5500-9000 with effect from 21-07-2004, his junior in the parent department got promoted and as a result of restructuring, he would have got the benefit from 01-11- 2003. The Tribunal also noted that the third respondent was getting higher grade from December, 1994, compared to the petitioner and also at the time of medical decategorisation, and even if he had not been absorbed in the higher scale of Rs.5000-8000 after holding the supernumerary post, he would still have got the higher scale of Rs.5500-9000 when his turn for promotion from Assistant Station Master-I to Station Master-II came on 21-07-2004 and, held that the order of the second respondent promoting the third respondent cannot be said to be irregular and that the petitioner had also got a similar benefit of divisional promotion and implementation with retrospective effect from the date of restructuring. Regarding another contention raised by the petitioner that he should be considered as senior to the third respondent and promoted to the post of Office Superintendent Grade-II earlier than the third respondent, it was stated by the official respondents before the Tribunal that the medically decategorised staff absorbed in an alternative post should complete the prescribed period of two years in the new cadre. Heard the learned counsel for the petitioner and the learned counsel for the official respondents. On a perusal of the material available on record, it is clear that the third respondent was getting higher scale compared to the petitioner and also at the time of medical decategorisation, and even if he had not been absorbed in the higher scale of Rs.5000-8000, after holding the supernumerary post, he would still have got the higher scale of Rs.5500-9000 when his turn came on 21-07-2004 for promotion from Assistant Station Master-I to Station Master-II and that the petitioner had got the similar benefit of divisional promotion and implementation with retrospective effect from the date of restructuring. Hence, we do not find any justification to interfere with the order of the Tribunal. However, the Tribunal was justified in not interfering with the order of the second respondent and observing that the respondents would follow the rules and promote whoever is senior and suitable for that post. The Writ Petition fails and is, accordingly, dismissed. No order as to costs. ______________________ GHULAM MOHAMMED,J ____________________ G.BHAVANI PRASAD,J Dt:26-09-2008 Usd