ASHOK KUMAR RAY vs RAILWAY

1
O.A. No. 050/00651/2017
7

CENTRAL ADMINISTRAT
TIVE TRIBUNAL
PATNA BENCH,
PATNA
651/2017
O.A. No. 050/006


Pr
Reserved on: -25.08.2026
ronounced on:- 04.09.2026

C O R A M
M
HON’BL
LE JUSTICE MR. NARENDRA KU
UMAR JOHARI, MEMBER [J]
CHANDRA, MEMBER [A]

HO
ON’BLE MR. KUMAR RAJESH C

mar Roy, Son of Late R.P. Roy, res
Ashok Kum
sident of Quarter No. 532/B, Neura
a
Colony, Roa
ad no. 13, Khagaul, P.O. and P.S. Kha
agaul, District-Patna-801105 (Bihar).

……… Applicant
Versu
us

Patna
Bench
1. The Unio
on of India through the General Manag
ger EC Railway, Hajipur.
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
2. The Gene
eral Manager (Personnel), EC Railway
y, Hajipur.
3. The Chie
ef Signal and Telecommunication Eng
gineer, EC Railway, Hajipur.
4. The Divi
sional Railway Manager, EC Railway
y, Danapur.
5. The Senio
or Divisional Personnel Officer, EC R
Railway, Danapur.
6. The Assi
stant Personnel Officer, EC Railway D
Danapur.

cant:- Mr. G. Bos
ndents:- Mr. M.D. D
…….. Respondents
se, ld. Sr. Advocate
Dwivedi, ld. ASC
For Applic
For Respo
O R D E
E R
Per: Mr. Kumar Rajesh C
Chandra, Member (A):
1. The inst
tant OA has been filed by the
applicant seeking the following
g
relief:-
i. The respondents specially the D
i
Divisional Railway Manager. E.C.

l
e
e
y
Railway, Danapur (Respondent
Personnel Officer, E.C. Railway,
directed to give effect of promotion
Jointer Grade-I with effect from 2
give consequential benefits.
i. The applicant may be granted any
No.4) and the Senior Divisional
Danapur (Respondent No.5) may be
n to the applicant to the post of Cable
3.06.2007 and thereafter accordingly
ii
y other consequential benefits, which
s Court.
h
may appear just and proper to this
i. The pay of the applicant may als
iii
so be fixed notionally from 2007 as
le of Rs. 4500-7000/- (now Rs. 5200-
s
-
Cable Jointer Grade-I in pay scal

2
O.A. No. 050/00651/2017
7

20200/- with Grade Pay of Rs. 28
the cadre of M.С.М.
v. Any other relief or reliefs may be
800/-) and also consequent benefits in
n
iv
granted to the applicant to which, he
e
is found entitled to.
v. The cost of litigation may be awar
v
rded in favour of the applicant .

ef facts of the case, as per the
2. The brie
instant O.A., are discussed and
d
delineat
ted as follows:
1 The applicant was appointed on c
compassionate ground as a Khalasi
i
2.1
in the year 1993 after death of his
s father Late R.P. Roy, who died in
n
harness on 15.06.1990.
2 The applicant was promoted in G
Group 'C' category as Cable Jointer
r
2.2
in the year 2001 in pay scale of
Rs. 950-1500/- (3050-4500/-) and
d
he was upgraded as Cable Jointer
r Grade-II in pay scale of Rs. 4000-
-
6000/- by order dated 03.03.2
005 ( Annexure A-1 ) under the
e
Patna
Bench
restructuring w.e.f. 01.11.2003.
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
3 The letter dated 17.11.2008 ( A
Annexure A-2 ) and seniority list
t
2.3
dated 09.08.2007 ( Annexure A-
-3 ), which the applicant got under
r
R.T.I. Act, show that there were
03 posts available in CG Grade-I
I
and 02 posts in CG Grade-II and
d obviously after the applicant was
s
promoted to the grade of Cable
Joiner Grade-II, the applicant and
d
one Shri Bishun Dayal Choudhar
ry, who is just above the applicant,
,
were posted as Cable Jointer Grad
de-II.
4
Shri Bishun Dayal Choudhary wa
as posted as Cable Jointer Grade-II
I
2.4
along with the applicant. Mr. Ch
haudhary was posted as Grade-I in
n
the year 2007 and since then the
applicant was promoted as Cable
e
Jointer Grade-II with effect
from 01.11.2003 under the
e
restructuring. He was also to be p
promoted along with Bishun Dayal
l
Chaudhary in 2007 as Cable J
Jointer Grade-I from the list as
s
contained in Annexure A-2, that
t reflects that three post of Cable
e
Jointer Grade-I were vacant, and
therefore, the applicant were also
o
to be promoted in the year 2007 a
at least.
5
Thereafter, the Divisional office
of Danapur Division of its own,
,
2.5
without approval of the Headqua
arters and the Railway Board, took
k
a decision to abolish the cadre of
f Cable Jointer and merged it in the
e
cadre of Signal Maintainer.

3
O.A. No. 050/00651/2017
7

6 The applicant made an appeal b
before the A.D.R.M., East Central
l
2.6
Railway, Danapur by Annexure
e A-4 , stating that he should also
o
have been promoted in 2007 itsel
lf and further stated that in view of
f
the statement stated above prom
motion should be in Cable Jointer
r
Grade-I with effect from 2005.
7 The Assistant Personnel Officer
r by Annexure A-5 informed the
e
2.7
A.D.R.M., East Central Railway
y, Danapur that since no sanction
n
was given, hence in the strength o
of Cable Jointer Grade-I there were
e
two vacant post in Cable Jointer
r Grade-I whereas the vacancy in
n
Cable Jointer Grade-III was nil m
meaning thereby the applicant could
d
have been promoted in Cable Join
nter Grade-I in 2007 or 2005 itself.

8 The Appellate Authority therea
after referred the matter to the
e
2.8
Headquarters and the Headquarte
er on 10.01.2012 ( Annexure A-6 )
)
stated that the cadre of Cable Jo
ointer shall remain separate, since
e
Patna
Bench
they are mainly connected with th
he main activity.
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
9
The Divisional Office through the
e Assistant Personnel Officer, East
t
2.9
Central Railway, Danapur by
y his letter dated 23.05.2012
2
( Annexure A-7 ) gave promotion
n to the applicant in Cable Jointer
r
Grade-I in Pay Band of Rs. 520
0-20,200/- with Grade Pay of Rs.
.
2800/-.
10
The applicant represented by A
Annexure A-8 dated 06.06.2012 to
o
2.1
the Senior Divisional Personne
l Officer, East Central Railway,
,
Danapur, stating that he should h
have been promoted in 2005 itself
f
in Cable Jointer Grade-I or at le
east 2007 when Mr. Bishun Dayal
l
Chaudhary was promoted as Cabl
le Jointer Grade-1.
3. Per con
ntra, the Respondents have conte
ested the claim of the applicant
t
by filing
g written statements in which it w
was stated that:
1 In Cable Jointer Grade-I, only
02 posts were available and one
e
3.1
person was already working as M
MCM against the lower grade post.
.
Hence, the vacancy in Cable Jo
ointer Grade-I was only one and
d
accordingly, only Shri Bishun
Dayal Choudhary who was also
o
senior to the applicant, was promo
oted against one vacancy in 2007.
2 It is also stated that after implem
mentation of restructuring, 03 posts
s
3.2
of Grade-III and one post of Grad
de-II was surrendered. It is further
r
stated that Shri D.P. Singh was
MCM and no post of MCM was
s

4
O.A. No. 050/00651/2017
7

there after restructuring hence wa
as adjusted against the lower grade
e
post of Cable Jointer Grade-I as th
he reversion was not possible.
3 Moreover, the headquarter has n
never set aside the decision of the
e
3.3
Division rather it communicated
d that TCM and line man may be
e
merged in one cadre and Cable Jo
ointer will remain separate cadre.
4. Ld. coun
nsel for applicant has filed the re
ejoinder to the written statement
t
in which
h it was stated that:
The applicant could not be prom
moted at the material time as one
e
4.1
staff was available in the high
her grade (MCM Grade) without
t
sanctioned post. The submissio
on will be that if someone was
s
working without sanction then he
e cannot have any right to the post
t
and an employee who had been
n duly selected should have been
n
asked to work in that place.
Patna
Bench
Moreover, the vacancy position
is clear from Annexure A-2. The
e
4.2
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
Cable Jointer Cadre Grade-I, ther
re were 3 posts and against Grade-
-
II there were two posts. Shri
i Bishun Dayal Choudhary was
s
promoted to Grade I and the
applicant should have also been
n
promoted alongwith Shri Bishun D
Dayal Choudhary.
As per the authority of the Ge
eneral Manager (P), EC Railway,
,
4.3
Hajipur, the DRM EC Railway,
Danapur issued an Establishment
t
Office Order No. 866 of 2004 d
dated 08.11.2004 ( Annexure A-9 )
)
by which 27 posts of Signal & T
Telecommunication Department of
f
Danapur Division were sanction
ned. This sanction order contained
d
the post of Cable Jointer also.
It is also stated that the Sr. DS
STE by a letter dated 01.03.2005
5
4.4
( Annexure A-10 ) requested the
Sr. DPO, EC Railway, Danapur
r
that the employees working in d
different cadre may be sanctioned
d
for payment. In the said list the na
ame of Smt. Kanti Sharma appears
s
as Chief Office Superintendent a
at Sr. No. 10. This name could not
t
have been sanctioned for payme
ent when it was not in the list as
s
contained in Annexure A-9.
It is further stated that the statem
ments made in para-6 of the written
n
4.5
statement are matters of records.
Moreover, the statement made by
y the respondents that one post of
f
4.6
Grade-II after vacating was surr
rendered is not at all true and the
e

5
O.A. No. 050/00651/2017
7

respondents have not produced a
any document to show as to when
n
and which post was surrendered.
5. After he
earing the learned counsels for
both the parties and perusal of
f
the mat
terial available before this Trib
bunal, We have considered the
e
matter in
n its entirety and arrived at follo
wing conclusions:
1 The first issue which requires con
nsideration is whether the delay in
n
5.1
filing the Original Application de
eserves to be condoned. M.A. No.
.
354/2017 has been filed by the
applicant seeking condonation of
f
delay in filing the Original Applic
cation.
2 From the pleadings and the doc
cuments available on record, it is
s
5.2
apparent that the grievance of th
he applicant relates to his alleged
d
non-promotion to Cable Jointer
Grade-I in the year 2007, when
n
Patna
Bench
according to him, Shri Bishun D
Dayal Choudhary was promoted to
o
Digitally
signed by
POOJA
KUMARI
the said grade.
POOJA
KUMARI
3 The applicant's claim for retrospe
ective promotion essentially arises
s
5.3
out of the alleged denial of prom
motion to Cable Jointer Grade-I in
n
the year 2007. The applicant a
admittedly became aware of the
e
relevant promotion of Shri Bishun
n Dayal Choudhary and of his own
n
alleged supersession at that point
of time.
4 The applicant, himself, subm
mitted representations thereafter,
,
5.4
including the representation dated
d 06.06.2012, specifically claiming
g
retrospective promotion. Thus,
there can be no doubt that the
e
applicant had acquired full kno
owledge of the alleged cause of
f
action, at the latest, by the year 20
012.
5 The applicant was, thus, aware
of the alleged cause of action as
s
5.5
early as in the year 2007. Ind
deed, the applicant subsequently
y
submitted representations in the m
matter, including the representation
n
dated 06.06.2012 ( Annexure
A-8 ), claiming retrospective
e
promotion. Despite having know
wledge of the alleged denial of his
s
promotion and having pursued th
he matter before the departmental
l
authorities, the applicant appr
roached this Tribunal after an
n
inordinate delay of approximately
y ten years.
6 Section 21 of the Administrative
Tribunals Act, 1985 prescribes the
e
5.6
period within which an applica
ation is required to be instituted
d
before the Tribunal, subject to th
he Tribunal being satisfied that the
e

6
O.A. No. 050/00651/2017
7

applicant had sufficient cause for
r not making the application within
n
the prescribed period.
7 The applicant has failed to furn
nish any satisfactory or sufficient
t
5.7
explanation covering the entire p
period of delay. The mere fact that
t
the applicant continued to m
make representations before the
e
departmental authorities cannot e
extend the period of limitation or
r
revive a stale cause of action. On
nce the applicant was aware of the
e
alleged denial of promotion, h
he was required to approach the
e
appropriate forum within the
e period prescribed under the
e
Administrative Tribunals Act,
1985. The medical certificates
s
annexed with the M.A. for cond
donation of delay relating to the
e
applicant being a patient of
f spondylitis and wife having
g
undergone a surgery are found
d to be not only old but also does
s
not satisfactorily explain the de
elay of filing this O.A. in 2017. A
A
Patna
Bench
person with spondylitis is not s
so gravely ill that he cannot file
e
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
this O.A.
8 Even if we take a very lenient vie
ew in this matter of delay, a useful
l
5.8
reference can be drawn from
the observation of the Hon’ble
e
Supreme Court of India in Civi
il Appeal No. 317 OF 2025 in the
e
matter of Sri H. Guruswamy V
Vs. A. Krishnaiah (since deceased
d
and represented by LRs) decid
ded on 08.01.2025 as recorded in
n
Para 16 that is being reproduced a
as under:
“ Para 16. The length of th
which the court must take
whether the delay should b
the approach of the respo
want to fix their own per
instituting the proceeding
period of limitation. Once
right to have the matter c
own inaction for a long,
deliberate delay and in s
cannot be heard to plead th
be preferred as against
considering the plea for c
not start with the merits of
duty to first ascertain the b
by the party seeking cond
cause assigned by the litig
side is equally balanced th
merits of the matter for the
e delay is definitely a relevant matter
r
g
into consideration while considering
be condoned or not. From the tenor of
f
y
ondents herein, it appears that they
riod of limitation for the purpose of
gs for which law has prescribed a
f
a
e it is held that a party has lost his
s
s
considered on merits because of his
it cannot be presumed to be non-
such circumstances of the case, he
-
e
o
hat the substantial justice deserves to
the technical considerations. While
condonation of delay, the court must
of the main matter. The court owes a
e
t
a
d
bona fides of the explanation offered
donation. It is only if the sufficient
t
r
e
gant and the opposition of the other
hat the court may bring into aid the
e purpose of condoning the delay”.

7
O.A. No. 050/00651/2017
7

9 Therefore, we have examined th
he applicant's claim on merits as
s
5.9
well. It is necessary to bear in
mind that an employee does not
t
acquire an indefeasible right to
promotion merely because a post
t
appears to be vacant. Promotion i
is dependent upon the existence of
f
a duly sanctioned vacancy, the
applicable recruitment/promotion
n
rules, eligibility, seniority, selecti
ion procedure and other conditions
s
prescribed by the competent autho
ority.
10 In the present case, the appl
icant principally relies upon the
e
5.1
documents showing the cadre s
strength/vacancy position and the
e
promotion of Shri Bishun Day
yal Choudhary. The respondents,
,
however, have specifically expl
lained that the apparent vacancy
y
position cannot be treated as equi
ivalent to the availability of a clear
r
sanctioned promotional vacancy
y because one of the posts was
s
occupied by Shri D.P. Singh, wh
ho was being adjusted against the
e
Patna
Bench
lower grade following restructurin
ng.
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
11
The applicant has not placed b
before us any conclusive material
l
5.1
establishing that, after taking in
nto account the restructuring and
d
adjustment of existing incumbent
ts, a clear and sanctioned vacancy
y
in Cable Jointer Grade-I was avai
ilable for his promotion in 2007.
12 The fact that Shri Bishun Daya
al Choudhary, who was admittedly
y
5.1
senior to the applicant, was prom
moted against the available vacancy
y
does not, by itself, establish that
the applicant was also entitled to
o
simultaneous promotion. The
applicant has to establish the
e
existence of another clear vacan
ncy against which he could have
e
legally been promoted.
13
The applicant has also not de
emonstrated any statutory rule or
r
5.1
administrative instruction under
which he acquired an enforceable
e
right to retrospective promotion
from 2005 merely on the basis of
f
the alleged vacancy position.
14
We are also unable to accept
the applicant's contention that an
n
5.1
employee allegedly adjusted ag
gainst a lower-grade post could
d
simply be treated as occupyin
ng no post for the purpose of
f
determining the applicant's pr
romotional entitlement. Such a
a
conclusion would require exam
mination of the validity of the
e
restructuring and adjustment or
ders and the sanctioned strength
h

8
O.A. No. 050/00651/2017
7

applicable at the relevant tim
me. No such legally enforceable
e
foundation has been established b
before us.
15 The subsequent promotion of
f the applicant as Cable Jointer
r
5.1
Grade-I by order dated 23.05.201
12 is also a relevant circumstance.
.
The applicant has not established
d that the said order was expressly
y
intended to operate retrospectivel
ly or that the competent authority,
,
under the applicable rules, was
bound to grant him retrospective
e
seniority and pay from 2005 or 20
007.
16 The Tribunal, while exer
cising jurisdiction under the
e
5.1
Administrative Tribunals Act
t, cannot direct retrospective
e
promotion merely on equitable c
considerations in the absence of a
a
demonstrated violation of a statut
tory or enforceable service right.
17 The applicant has thus failed
d to establish either that a clear
r
5.1
sanctioned vacancy was availab
ble to him in 2007 or that the
e
Patna
Bench
respondents acted contrary to th
he applicable service rules in not
t
Digitally
signed by
POOJA
KUMARI
POOJA
KUMARI
promoting him along with Shri Bi
ishun Dayal Choudhary.
18 We, therefore, find no sufficien
nt basis to interfere with the action
n
5.1
of the respondents. For the reaso
ons recorded above, the applicant
t
has failed to establish sufficient c
cause for condonation of the delay
y
as well as his claim that could be
established on merits.
19
Accordingly, this O.A. is dism
missed as barred by limitation as
s
5.1
well as on merits as we have also
examined the claim on merits. We
e
find no legally enforceable b
basis for granting retrospective
e
promotion to the applicant as C
Cable Jointer Grade-I with effect
t
from 2005 or 2007.
20
M.A. No. 354/2017 seeking c
ondonation of delay is dismissed
d
5.2
and M.A. No. 320/2022 seeking
early hearing also stands disposed
d
of.
21 In the facts and circumstances o
of the case, there shall be no order
r
5.2
as to costs.

(Kumar R
Mem

Rajesh Chandra)
mber (A)
(Narendra Kumar Johari)
)
Member (J)

pk/-