IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT PETITION NO.25215 OF 2018(S-CAT) BETWEEN:
1. Railway Board Railway Bhavan New Delhi-110 001 By its Secretary.
2. Chairman Railway Board, Railway Bhavan Raisina Road, New Delhi-110 001.
3. General Manager South Western Railway Hubli-580 020 For and on behalf of Union of India and also As an authority of SWR …. Petitioners (By Sri.Narayana Swamy V.K., Advocate) AND Ganesh Kumar Dwivedi Aged about 53 years S/o Sri. Keshava Prasad Dwivedi, Chief Signal and Telecom Engineer (Constn.) South Western Railway Bengaluru-560 046. …Respondent (By Sri.P.A. Kulkarni, Advocate for C/R) This writ petition is filed under Articles 226 and 227 of the constitution of India praying to quash the impugned order dated: 13.12.2017 passed in Original Application No.170/00274/2017 by the Hon’ble Central Administrative Tribunal, Bengaluru at Annexure-A as illegal and contrary to law by issue of a writ of certiorari or any other appropriate writ or order and etc.
This petition coming on for Preliminary Hearing ‘B’ Group, this day, Nagarathna J., made the following:
ORDER The petitioners being the Railway Board and others have assailed the order dated 13.12.2017 passed by the Central Administrative Tribunal (hereinafter referred to as ‘Tribunal’ for the sake of convenience), Bengaluru Bench, Bengaluru in O.A.No.170/00274/2017. By the said order, the Tribunal has directed the respondents, namely, petitioners herein, to consider the case of the respondent herein (applicant before the Tribunal) on par with all those who were appointed when he became eligible at the relevant point of time to be included in the list of Divisional Railway Manager level officers in the zone of consideration for General Manager Post.
2. It is not necessary to go into the factual matrix of the case as we have heard learned counsel for the petitioners and learned counsel for the respondent at length and perused the materials on record. The crux of the matter lies in the guidelines for short listing the posting of the Divisional Railway Managers (DRMs.) in the Indian Railways, dated 16.08.2016. Guideline No.5 reads as under:
“5. Officers being considered for short listing as DRMs. should be less than 52 years of age as on 1st July of the year for which the short list is being made. A short listed officer can be posted as DRM within the period of currency of the short list, even if at the point of his actual posting as DRM, he has crossed the age of 52 years. Once short listed for a particular year, officers will be posted to vacancies earmarked for their service arising in that year, strictly in the order of their seniority in their respective cadre.”
3. The respondent herein was born on 1st July 1964 and therefore completed 52 years of age as on 01.07.2016. But, Clause 5 states that for short listing as DRM he/she should be less than 52 years of age as on 1st July of the year for which short listing has to be made. If the said clause is applied strictly, in the instant case, the respondent is ineligible. It is precise to consider such cases, Clause 15 of the guidelines has also found a place in the said guidelines. It reads as under:
“15. Notwithstanding anything contained in these policy guidelines the competent authority may make relaxation to one or more of the aforesaid conditions in a suitable case. Keeping in view the administrative requirements and public interest after recording the reasons in writing.”
4. The said clause begins with a non-obstante clause. It enables the competent authority to make a relaxation in respect of one or more conditions in a suitable case keeping in view the administrative requirements and public interest after recording reasons in writing. One of the relaxation that could be made is with regard to the age relaxation. As already noted, Clause 5 used the expression “should be less than 52 years of age as on 1st July of the year for which short listing is to be made”. What would happen to the case of an officer who was born on 1st July of the year and whether such officer is entitled to a relaxation, is the question. Then further question is whether Clause 15 is an enabling provision for making such a relaxation. It is in the above context that the Tribunal has directed the petitioners herein to consider the case of the respondent.
5. Having regard to the directions issued by the Tribunal and in view of the aforesaid discussion, the petitioners herein are directed to consider the case of the respondent herein in the light of Clause 15, which is a relaxation provided, having regard to the date of birth of the respondent. The same shall be considered within a period of one month from the date of receipt of the certified copy of this order.
Writ petition is disposed off in the aforesaid terms.
Sd/- JUDGE Cm/-
Sd/- JUDGE