Hariom Meena vs M/o Railways on 6 November 2026

ORDER

Per: Hon’ble Shri Jayesh V Bhairavia, Member (J)

1. The grievance of the applicant is that the respondents, vide impugned Office Order dated 07.10.2021, have illegally withdrawn his

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promotions to the posts of Senior Clerk, Office Superintendent and Depot Material Superintendent (DMS), and reverted him to the post of Senior Clerk with effect from 28.02.2020, while also revising his pay.

2. By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:- “8.1 Lord ships be pleased to admit this petition. And be pleased to issue order quash and setting aside office order No. E/56/2021 dated 07.10.2021 as Annexure A/1, which is reversion with retrospective effect which is not permissible. 8.2 Be allow to restore original position with all consequential due promotion at par with his juniors. 8.3 That the Hon'ble Tribunal may be kindly pleased to call for the entire record of the applicant in possession of the respondent for its kind perusal. 8.4 Any other relief which the Hon’ble Tribunal deems fit. 8.5 That the Hon’ble Tribunal in the facts and circumstances of the present case may further be pleased to grant cost of the application to the applicant.”.

3. FACTS OF THE CASE 3.1 While working as Khalasi, the applicant appeared in the selection process for the post of Junior Clerk in the pay scale of Rs. 5200–20200 + Grade Pay Rs.1900/-. Having successfully qualified in the examination, he was placed in the panel dated 09.09.2011 with effect from 07.09.2011. Accordingly, he was promoted to the post of Junior Clerk vide order dated 12.09.2011, subject to the condition that he would clear the typing test within two years, failing which he would be liable to be reverted. 3.2 The typing test was conducted on 13.04.2013, nearly after the expiry of the stipulated period of two years, but the same was cancelled by the respondents vide Memorandum dated 20.06.2013. Immediately thereafter, vide communication dated 27.06.2013, another typing test was scheduled to be conducted on 18.07.2013. The result of the said test was declared on 01.10.2013, wherein all the employees, except one, were declared unsuccessful.

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3.3 Aggrieved by the reversion order and the result of the typing test, the applicant, along with other similarly situated employees, approached this Tribunal by filing OA No. 315/2013 (Annexure A/5 refer). The Tribunal, vide Order dated 15.02.2017, directed the respondents as under: “The applicants shall be given an opportunity to appear for one more typing test specifically conducted for them. The test shall be organized within one month of receipt of copy of order.” 3.4 In compliance with the aforesaid directions, the respondents conducted the typing test on 18.04.2017 and declared its result on 04.05.2017, wherein the applicant was declared successful. According to the applicant, the result was given effect from the date of the original panel, i.e., 19.09.2011. 3.5 Thereafter, the respondent No. 3, vide letter bearing No. 839/7/Part- VI dated 21.07.2017 (Annexure A/6 refer) sought advice from respondent No. 1 regarding fixation of the applicant's seniority and further promotion at par with other candidates of the panel. 3.6 Subsequently, respondent No. 3 issued a reminder to respondent No. 1 vide letter bearing No. E.939/7/Part-VI dated 06.11.2017 (Annexure A/7 refer), seeking clarification regarding the applicant's seniority and further promotion. 3.7 The respondent No. 1, vide letter bearing No. E/Stores/1025/9/2 (Min) dated 16.11.2017 (Annexure A/8 refer) advised respondent No. 3 to deal with the matter in accordance with the Master Circulars and instructions issued by the Railway Board from time to time concerning promotion and seniority rules. 3.8 The respondent No. 3, vide letter bearing No. E/839/7(II) Part-6 dated 07.03.2018, forwarded a proposal to respondent No. 1, inter alia, recommending that the applicant be granted upgradation to the post of Senior Clerk in Grade Pay Rs. 2800/- with effect from 01.11.2013 and consequential promotion to the post of Office Superintendent in Grade Pay Rs. 4200/- with effect from 29/31.12.2015 (Annexure A/9 refer).

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3.9 The respondent No. 1 accepted the proposal concerning his promotion to the post of Senior Clerk and, vide letter bearing No. E/Stores/1025/9/2 (Min) Vol. II dated 26.04.2018, advised respondent No. 3 to grant the said promotion and submit a fresh proposal for his promotion to the post of Office Superintendent in Grade Pay Rs. 4200/-, enclosing the promotion orders issued in the grade of Senior Clerk (Annexure A/10 refer) 3.10 The respondent No. 3 issued Office Order No. E/07/2018 dated 18.05.2018, placing his name at Serial No. 8 in the eligibility list for promotion to the post of Senior Clerk (Annexure A/11 refer). 3.11 The respondent No. 3 also issued Office Order No. E/35/2018 dated 18.05.2018, granting him proforma promotion to the post of Senior Clerk in the pay band of Rs. 5200–20200 + Grade Pay Rs. 2800/- with effect from 01.11.2013 (Annexure A/12 refer) 3.12 Thereafter, the respondent No. 3, vide letter bearing No. E/839/1/Mini. Vol. I dated 14.06.2018, forwarded a proposal to respondent No. 1 for his promotion to the post of Office Superintendent in Grade Pay Rs. 4200/- (Annexure A/13 refer). 3.13 In response to the aforesaid proposal dated 14.06.2018, respondent No. 1 issued letter bearing No. E/Stores/1025/9/2 (Min) Vol. II dated 28.06.2018, returning the original copies of the benchmarking/service records, APARs/working reports and assessment sheets of the employees, duly approved by CMM (E&G), for further necessary action (Annexure A/14 refer). 3.14 Thereafter, the respondent No. 3, vide Office Order No. E/52/2018 dated 10.07.2018, granted him proforma promotion to the post of Office Superintendent with effect from 29.12.2015 (Annexure A/15 refer). 3.15 The applicant made a representation dated 28.09.2018, requesting that he be given an option to opt for the Non-Ministerial category

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(Annexure A/16 refer). It is stated that he opted for the Non- Ministerial category. 3.16 The respondent No. 3, vide letter bearing No. E/1030/1 Part-II dated 17.01.2019, sought advice from respondent No. 1 regarding his entitlement to the Non-Ministerial option (Annexure A/17 refer). 3.17 The respondent No. 1, vide letter bearing No. E/Store/1029/2 dated 18.03.2019, sought all relevant correspondence and a statement from the applicant explaining why the option had not been given to him earlier (Annexure A/18 refer). 3.18 The respondents’ Headquarters, vide letter bearing No. E/Stores/1025/0/2 (Min) dated 14.06.2019, advised respondent No. 3 to obtain the applicant's option (Annexure A/19 refer). 3.19 The respondent No. 3, vide letter bearing No. E/1030/1 Part-II dated 02.07.2019, directed the applicant to submit the option form in triplicate within one week (Annexure A/20 refer). 3.20 Accordingly, the applicant exercised his option for the Non-Ministerial category on 02.07.2019 (Annexure A/21 refer). 3.21 The respondent No. 3, vide letter bearing No. E/839/1 Non-Mini Part-I dated 21.08.2019, sought approval from respondent No. 1 for filling up six posts of Depot Material Superintendent (DMS). The Headquarters subsequently approved the promotions to the said posts vide letter bearing No. E/Stores/1025/9/2 (Non-Min) dated 12.09.2019 (Annexures A/22 and A/23, respectively refer). 3.22 The respondents’ Headquarters, vide letter bearing No. E/Stores/1025/9/2 (Non-Min) dated 17.12.2019, approved the eligibility list of employees working as Office Superintendent (Ministerial) in the scale of Rs. 9300–34800 + Grade Pay Rs. 4200/- (Level-6) for promotion to the post of Depot Material Superintendent (Non-Ministerial) in the corresponding pay scale (Annexure A/24 refer).

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3.23 The respondent No.3 issued Office Letter No.E/20/2019 dated 18.12.2019, placing his name in the panel for promotion to the post of DMS (Annexure A/25 refer). 3.24 The respondent No. 3, vide Office Order No. E/75/2019 dated 24.12.2019, promoted him to the post of Depot Material Superintendent (DMS) and posted him at Rajkot under the Senior Divisional Material Manager, Rajkot (Annexure A/26 refer). 3.25 The applicant made a representation dated 08.01.2020 for making an entry of 14 performance certificates in his service sheet (Annexure A/27 refer). 3.26 The respondents’ Headquarters, vide letter bearing No. E/Stores/1025/9/2 (Min) Vol. III dated 26.05.2021 (Annexure A/4 refer), advised respondent No. 3 as under: “In view of the extant rules, the promotion given to Shri Meena as Sr. Clerk in 2011 and thereafter as OS in 2013 needs to be withdrawn. SBI should be advised to take necessary action in this regard. Responsibility should be fixed as to how erroneous promotion was given.” According to the applicant, the aforesaid communication was issued without assigning any reasons. 3.27 The respondents’ Headquarters, vide letter bearing No. E/Stores/1025/9/2 (Min) Vol. III dated 19.08.2021, advised respondent No. 3 to correct the dates of his promotion to the posts of Senior Clerk and Office Superintendent, which were earlier shown as 2011 and 2013, respectively, to 2013 and 2015, in accordance with the records (Annexure A/3 refer). 3.28 The respondent No. 3 issued a show-cause notice bearing No. E.839/1 Non-Mini Part-02 dated 26.08.2021, proposing withdrawal of his promotions to the posts of Senior Clerk and Office Superintendent granted in 2013 and 2015, respectively. The respondents proposed to regularise him as Junior Clerk from the date of passing the typing test, i.e., 04.05.2017, and accordingly indicated his existing and proposed positions (Annexure A/2 refer).

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3.29 The applicant submitted his reply dated 06.09.2021 to the aforesaid show-cause notice (Annexure A/28 refer). 3.30 Being aggrieved by the aforesaid show-cause notice, the applicant approached this Tribunal by filing OA No.360/2021, wherein this Tribunal passed an order dated 14.09.2021 (Annexure A/29 refer). The relevant paras of the same are reproduced as under:- “2. The present OA has been filed against the show cause notice dated 26/08/2021 whereby the applicant has been called upon to give his reply/representation within 15 days’ time with respect to the proposed action of his reversion to the post of Junior Clerk. Pursuant to the said show cause notice, the applicant herein has submitted his representation dated 06/09/2021 Annexure A/27. It is noticed that before the said representation of the applicant is considered and decided by the respondent, he approached this Tribunal by way of this OA. Since the OA is premature, we are not inclined to entertain it at this stage. The learned counsel for the applicant submits that she does not press this OA and requests to allow her to withdraw this OA. Considering the said request on behalf of the applicant, we allow the applicant to withdraw this OA at this stage. It is expected that the respondent will consider the pending reply of the applicant in accordance with the rules and as also in accordance with the principle of natural justice.

3. In view of the above, the OA stands dismissed as withdrawn at admission stage.” 3.31 The respondent No. 3, vide letter bearing No. E.839/1 Non-Mini Part- 02 dated 30.09.2021, recorded its remarks on the reply to the show- cause notice, according to the applicant, without duly considering the facts and circumstances of the case (Annexure A/30 refer). 3.32 The applicant again submitted a representation dated 01.10.2021 to the Deputy Chief Materials Manager (Dy. CMM), requesting that the matter be referred to the higher authorities for clarification and that he be granted a personal hearing (Annexure A/31 refer). 3.33 The respondent No. 3, vide letter bearing No. E.839/1 Non-Mini Part- 02 dated 04.10.2021, directed him to appear personally on 06.10.2021 for a hearing (Annexure A/32 refer). 3.34 It is also stated by the applicant that he was on sanctioned leave from 04.10.2021 to 16.10.2021 on account of his mother's illness at his native place in Rajasthan. The Senior Divisional Material Manager,

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vide letter bearing No. S/E/839/2021/1 dated 05.10.2021, informed the Deputy Chief Materials Manager about the applicant's sanctioned leave (Annexure A/33 refer). The applicant further stated that, despite being on sanctioned leave, he was willing to appear before the Deputy Chief Materials Manager for a personal hearing. 3.35 Despite being aware of his sanctioned leave, the Deputy Chief Materials Manager proceeded to pass Office Order No. E/56/2021 dated 07.10.2021, without waiting for his appearance or affording him an effective opportunity of personal hearing (Annexure A/1 refer). By the said order, the respondents withdrew his promotions to the posts of Senior Clerk, Office Superintendent and DMS and reverted him to the post of Senior Clerk with effect from 28.02.2020, fixing his pay at Rs. 31,000/-. The applicant further stated that his pay was also revised without proper application of mind as the aforesaid promotions had been granted pursuant to the decisions of the Selection Committee, the same could not have been cancelled or withdrawn by a single authority without approval of the competent higher authority. According to him, the impugned order adversely affects his pay, post, status and consequential promotional avenues. Hence, this OA.

4. Pursuant to notice issued by this Tribunal, the respondents have filed their reply opposing the claim of the applicant to which the applicant has also filed his rejoinder.

5. CONTENTIONS OF THE APPLICANT’S LEARNED COUNSEL 5.1 Learned counsel for the applicant, while assailing the impugned order dated 07.10.2021, submitted that the action of respondent No. 3 in withdrawing the applicant's promotions and reverting him is illegal, arbitrary, contrary to the applicable Railway rules and instructions, and violative of the principles of natural justice. Learned counsel contended that the impugned order deserves to be quashed and set aside on the following grounds: 5.2 Learned counsel submitted that the impugned order is contrary to the instructions issued by Headquarters vide letter dated 19.08.2021

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(Annexure A/3), wherein respondent No. 3 was advised to correct the dates of promotion of the applicant to the posts of Senior Clerk and Office Superintendent from 2011 and 2013 to 2013 and 2015, respectively, as per the records. Learned counsel contended that, in disregard of the aforesaid instructions, respondent No. 3 proceeded to regularise the applicant's service as Junior Clerk with effect from 04.05.2017 and revise his promotions, thereby acting beyond its authority. 5.3 Learned counsel further submitted that the applicant's promotions and upgradations had been granted pursuant to the recommendations of the Selection Committee and with the approval of the Chief Materials Manager/Headquarters. Therefore, respondent No.3 lacked the authority to withdraw or cancel such promotions unilaterally without obtaining approval of the competent higher authority. Learned counsel argued that respondent No.3 had virtually assumed the role of an appellate authority over the decisions of Headquarters, which was impermissible in law. 5.4 Learned counsel submitted that this Tribunal, vide order dated 15.02.2017 passed in OA No. 315/2013 (Annexure A/5 refer), specifically directed the respondents to provide the applicant and similarly situated employees another opportunity to appear in the typing test. The applicant successfully cleared the said test conducted on 18.04.2017, and his result was declared on 04.05.2017. Learned counsel contended that the respondents, having granted consequential promotions and upgradations in accordance with the selection of 2011, could not subsequently withdraw the same by disregarding the aforesaid judicial directions. 5.5 Learned counsel contended that respondent No. 3 had misinterpreted Railway Board Circular RBE No. 02/2017 dated 16.01.2017 (Annexure A/34 refer), particularly when the said circular expressly provides that cases already decided in the past need not be reopened. Learned counsel submitted that the applicant's case had already been considered and his promotions granted after due approval; hence,

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reopening the same and withdrawing the benefits already extended to him was unjustified. 5.6 Learned counsel drew our attention to Paragraph 20 of Railway Master Circular No. 34 (Annexure A/35 refer), which provides as follows: “20. Sometimes due to Administrative error, staff are overlooked for promotion to higher grades. This could be either on account of wrong assignment of relative seniority of the eligible staff or full facts not being placed before the Selection Board. Broadly, there can be two types: - a. Where a person has not been promoted at all because of administrative error; and b. where a person has been promoted but not on the date from which he would have been promoted but for the administrative error. 20.1 Each such case should be dealt with on merits. Staff who have not been promoted on administrative error, should on promotion, be assigned correct seniority vis-a-vis their juniors already working, irrespective of the date of promotion. 20.2 The orders of notification, promotion or appointment of a Railway employee in a substantive or officiating capacity to a post is latter found to be erroneous on the basis of facts, should be cancelled and the Railway servant should immediately be brought to the position which he would have held but for the incorrect order of promotion on appointment, following the procedure stipulated for the same. 20.3 Service rendered by the Railway servant concerned in the post to which he was promoted wrongly should not be reckoned for purpose of increment or for any other purpose in that grade. 20.4 Any consequential promotions/appointments made as a result of the erroneous promotion will also be required to be regulated on the lines indicated above.” 5.7 Learned counsel contended that the aforesaid provisions recognise the entitlement of employees to appropriate seniority and consequential promotions where they have suffered on account of administrative errors. Accordingly, the applicant, having successfully passed the typing test pursuant to the Tribunal's directions, was entitled to consequential promotion and seniority at par with other employees of the 2011 panel.

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5.8 Learned counsel further relied upon Paragraphs 16 and 17 of Railway Master Circular No. 31 (Annexure A/36 refer), dealing with removal of names from panels and reversion of employees, and submitted that the respondents had failed to follow the prescribed procedure while withdrawing the applicant's promotions and altering his service position. 5.9 Learned counsel also submitted that the applicant had also appeared in a subsequent selection for the post of Clerk, wherein he qualified in the written examination and his name was included in the provisional panel. Learned counsel pointed out that other candidates of the said selection were working in Grade Pay Rs. 4200/-. In this regard, reliance was placed upon Office Letter No. E/14/2016 dated 28.07.2016 (Annexure A/37 refer). Learned counsel contended that the applicant's eligibility and merit had been repeatedly recognised by the respondents and that his subsequent reversion was discriminatory and unjustified. 5.10 Learned counsel further submitted that respondent No. 3, vide letter bearing No. E.839/1 Non-Mini Part-01 dated 05.02.2021 (Annexure A/38 refer), incorrectly informed respondent No. 1 that the applicant had been afforded three opportunities to pass the typing test but had failed. Learned counsel contended that respondent No. 3 deliberately failed to disclose the additional opportunity granted pursuant to the Tribunal's order dated 15.02.2017, which the applicant had successfully availed of. Thus, the proposal submitted to Headquarters was based upon incomplete and incorrect facts, resulting in an erroneous decision affecting the applicant's service benefits. 5.11 Learned counsel also submitted that the applicant is a meritorious employee, who has rendered satisfactory service and has been issued several performance certificates by the respondents from time to time. Learned counsel contended that, despite his satisfactory performance and continuous service in higher posts, the respondents had subjected him to repeated harassment and deprived him of legitimate promotional benefits.

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5.12 Learned counsel further submitted that respondent No. 3, vide seniority list/letter dated 26.02.2021 (Annexure A/41 refer), fixed the applicant's seniority in the Non-Ministerial cadre in Grade Pay Rs. 4200/- at Serial No. 13, below Shri Pavnesh Singh and above Shri Rajuram, despite the applicant and certain other employees belonging to the same selection panel for the post of Junior Clerk. Learned counsel contended that the applicant's seniority had been incorrectly determined and that the respondents had placed incorrect facts before Headquarters, thereby adversely affecting his promotional prospects. 5.13 Learned counsel also submitted that the applicant had repeatedly approached the Railway Trade Union, the Labour Court at Ahmedabad and the National Commission for Scheduled Tribes, Jaipur, seeking redressal of his grievances regarding seniority and promotion in the Non-Ministerial cadre. Learned counsel pointed out that the National Commission for Scheduled Tribes had issued notice to the respondents vide letter dated 02.12.2020 (Annexure A/42 refer), in connection with the applicant's grievance concerning promotion to the post of Chief Depot Material Manager in Grade Pay Rs. 4600/-. 5.14 Learned counsel contended that the applicant had not been relieved from the post of Depot Material Superintendent till the date of filing of the OA, notwithstanding the impugned order withdrawing his promotions. Learned counsel contended that such circumstances further demonstrate the inconsistency in the respondents' action and the prejudice caused to the applicant. 5.15 Lastly, learned counsel submitted that the impugned action is violative of Articles 14, 16 and 21 of the Constitution of India, being arbitrary, discriminatory and contrary to the principles of natural justice. Learned counsel argued that the applicant was deprived of his legitimate service benefits, seniority, promotional avenues and financial entitlements without following the prescribed procedure and without affording him an effective opportunity of hearing. Accordingly, learned counsel prayed that the impugned Office Order dated 07.10.2021 (Annexure A/1 refer) be quashed and set aside and

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that the applicant be restored to his promotional position with all consequential benefits, including seniority, pay fixation and further promotional benefits.

6. Per contra, learned counsel appearing for the respondents by referring to the counter reply filed on behalf of the respondents submitted that the applicant was initially promoted to the post of Junior Clerk on an ad hoc basis vide Office Order No. BLAQ/0011 dated 12.09.2011, subject to the condition that he would qualify the prescribed typing test within a period of two years. In order to provide reasonable opportunities to all eligible candidates, the Railway Administration conducted typing tests on 29.02.2012, 25.09.2012 and 18.07.2013, in accordance with the prescribed schedule. Thus, the contention of the applicant that the typing test was conducted after an inordinate delay of almost two years was stated to be factually incorrect. Learned counsel further submitted that the typing test scheduled for 30.04.2013 was cancelled for administrative reasons vide notification dated 20.06.2013 and was subsequently conducted on 18.07.2013 after due intimation to all eligible candidates. Although only one candidate qualified in the typing test held on 18.07.2013, the applicant, along with three other candidates, had failed to qualify in all the three typing tests conducted on 29.02.2012, 25.09.2012 and 18.07.2013. In this regard, the respondents relied upon the relevant record placed on record as Annexure R-1 refer. 6.1 Learned counsel further submitted that the applicant, along with other unsuccessful candidates, had challenged the order of reversion before this Tribunal in OA No.315/2013, which was disposed of with a direction to provide all the applicants therein one further opportunity to appear in a specially conducted typing test. In compliance with the said directions, the respondents provided the applicant and other similarly situated candidates an additional opportunity to appear in the typing test. However, the applicant alone qualified in the said additional typing test. His result was accordingly declared (Annexure R-3 refer). The respondents specifically disputed the applicant's

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assertion that the date 19.09.2011 had been reflected anywhere in the result, as alleged by him. 6.2 With regard to the applicant's promotion to the post of Office Superintendent, learned counsel submitted that the applicant had accepted the promotion vide Office Order dated 10.07.2018 and had also resumed duties on the higher post on the same date without raising any objection at that stage. It was only subsequently, by way of a representation dated 28.09.2018, that the applicant sought consideration of his option for a non-ministerial position. The respondents, therefore, contended that the applicant's subsequent objection was an afterthought. In support of this submission, reliance was placed upon the applicant's resumption report (Annexure R-4 refer). 6.3 Learned counsel further submitted that, upon examination of the entire service record and the relevant facts, the competent authority at the Headquarters found that the promotions granted to the applicant to the posts of Senior Clerk and Office Superintendent were erroneous and, therefore, liable to be withdrawn. In this regard, reference was made to Headquarters' communications bearing No. E/Stores/1025/9/2(Min.) Vol. III dated 26.05.2021 and the subsequent clarification dated 19.08.2021. Learned counsel contended that the latter communication was merely a clarification of the earlier communication and that the applicant had selectively relied upon certain expressions therein to advance his case. The relevant clarification, as reproduced by the respondents, reads as under: “In view of the extant rules, the promotion given to shri Meena as Sr. Clerk in 2013* and thereafter as OS in 2015* needs to be withdrawn, he should be advised to take necessary action in this regard. Responsibility should also be fixed as to how erroneous promotion was given. *stand corrected vide clarification dated 19.08.2021” 6.4 The respondents’ counsel also submitted that, in view of the aforesaid directions of the competent authority, the applicant was required to be restored to the position which he would have held but for the

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erroneous promotions. The relevant Headquarters' communications were relied upon which are at Annexure R-5 refer. 6.5 Learned counsel further contended that, pursuant to the decision of the competent authority dated 19.08.2021, a show-cause notice bearing Letter No. E/839/1 (Non-Mini.) Vol. II dated 26.08.2021 was issued to the applicant, thereby affording him a reasonable opportunity to explain his position and defend himself in accordance with the principles of natural justice (Annexure R-6 refer). 6.6 Learned counsel further submitted that the applicant had earlier approached this Tribunal in respect of the same controversy, and OA No. 315/2013 had been disposed of in terms of the aforesaid direction for providing one additional typing test. Learned counsel pointed out that the applicant had subsequently filed another petition, which was dismissed as withdrawn at the admission stage vide order dated 14.09.2021. While disposing of the said matter, this Tribunal had observed as follows: “it is expected that the respondent will consider the pending reply of applicant in accordance with the rules and as also in accordance with the principle of natural justice.” According to the respondents, the applicant's representation dated 06.09.2021 was duly considered and replied to after taking into account the relevant facts and circumstances. 6.7 Learned counsel submitted that the procedure prescribed under Para 228 of the Indian Railway Establishment Manual (IREM) governing erroneous promotions had been duly followed and a reasoned decision was communicated to the applicant. Despite the same, the applicant continued to submit repeated representations seeking a personal hearing and reconsideration of the matter by the Headquarters. The respondents maintained that the decision had already been taken by the competent authority after examining the entire service record and relevant rules. In this context, learned counsel drew attention to the provisions governing erroneous promotions contained in Rule 1326 of

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the Indian Railway Establishment Code, Volume II, 1987 Edition, which, inter alia, provide as follows: “(a) The orders of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment. In the case, however, of a railway servant, who has been erroneously promoted and appointed to a post in a substantive capacity, procedure prescribed in Board's letter No. E50/RCI/16/3 dt. 23-7-1954 for rescinding the irregular confirmation of a railway servant should be followed/and only thereafter the railway servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Railway servant concerned in the post to which he was wrongly promoted/appointed, as a result of the error should not be reckoned for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment.

(b) Any consequential promotion or appointments of other railway servants made on the basis of the incorrect promotion or appointment of a particular railway servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph.

(c) Except where the appointing authority is the Railway Board or the President, the question whether the promotion/appointment of a particular railway servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotions/appointments. Where the appointing authority is the Railway Board or the President, the decision should rest with the President and shall be final.

(d) Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern, and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion or appointment.” 6.8 Accordingly, learned counsel contended that the applicant's case fell within the ambit of the aforesaid provisions and that the action taken by the respondents was in conformity with the applicable rules. 6.9 Addressing the grounds raised by the applicant, learned counsel submitted that the decision to withdraw the erroneous promotions had been taken by the competent authority at the Headquarters, which was one level higher than the concerned appointing authority, namely, the Deputy Chief Materials Manager. Thus, the requirement under Para

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228 of the IREM had been duly complied with. Learned counsel further submitted that the present controversy was not one concerning the removal of the applicant's name from a promotion panel but related to the correction of an erroneous promotion. Therefore, the applicant's reliance upon provisions concerning promotion panels was stated to be misplaced. 6.10 Learned counsel also contended that the order passed by this Tribunal in OA No. 315/2013 merely directed the respondents to provide one further opportunity to the applicant to qualify in the typing test and did not confer upon him any general or specific right regarding the date of promotion, placement in the panel or seniority. The respondents asserted that the additional opportunity had been duly granted and that no further benefit could be claimed by the applicant on the basis of the said order. 6.11 Learned counsel further submitted that the applicant's request for a personal hearing had also been duly considered. He was advised to appear personally on 06.10.2021. However, the applicant was on sanctioned leave from 04.10.2021 to 16.10.2021, as communicated by his controlling authority. Learned counsel contended that the applicant did not bring forward any fresh facts or relevant material in his subsequent representation dated 01.10.2021 warranting reconsideration of the decision. The respondents maintained that a personal hearing was not mandatory in the circumstances, particularly when reasonable opportunities had already been afforded to the applicant. Learned counsel also pointed out that the applicant appeared for the personal hearing only on 28.10.2021, after a considerable lapse of time from the expiry of his sanctioned leave. 6.12 With regard to the applicant's subsequent change of category, learned counsel submitted that the same had been considered on the basis of the applicant's own representation, even after he had resumed charge as Office Superintendent at Bhavnagar Para. Consequently, Office Order No. E-75/19 dated 24.12.2019 was issued posting him as DMS at Rajkot, keeping in view the administrative requirements. Learned

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counsel alleged that the applicant had not complied with the said posting order for more than one year. 6.13 Lastly, learned counsel submitted that the respondents had followed the prescribed procedure under the applicable Railway Rules, examined the applicant's service particulars and communicated a reasoned decision after consideration by the competent authority. Learned counsel contended that the applicant had failed to establish any illegality or procedural infirmity in the decision to withdraw his erroneous promotions. The respondents, therefore, submitted that no prima facie case had been made out in favour of the applicant and prayed that the Original Application be dismissed.

7. In rebuttal to the aforesaid submissions of the learned counsel for the respondents, learned counsel for the applicant, by referring to rejoinder, reiterated the averments made in the OA and controverted the submissions advanced by the respondents. Learned counsel submitted that the applicant, who was initially appointed as Khalasi on 31.05.2006, was senior-most in his cadre and had been promoted to the post of Junior Clerk vide Office Order dated 12.09.2011. However, his name was initially omitted from the list of eligible candidates issued on 27.05.2011 and was included only after his representation dated 14.06.2011. In this regard, reliance was placed upon the appointment order annexed as Annexure A/47. 7.1 Learned counsel further submitted that, pursuant to the directions passed by this Tribunal in OA No. 315/2013, the applicant was granted one additional opportunity to appear in the typing test and, having successfully qualified therein, was entitled to consequential benefits in accordance with the panel dated 12.09.2011. Learned counsel also contended that the respondents could not deny such benefits by subsequently treating his promotion as erroneous. Further, it is submitted that the applicant had consistently sought consideration for the Non-Ministerial cadre and that the omission to obtain his option was attributable to the administration. In this regard, reference was made to the applicant's representations and the correspondence

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exchanged between the authorities, collectively forming part of Annexures A/16 to A/21 and A/48. Learned counsel denied that the representation dated 28.09.2018 was an afterthought and submitted that the applicant had already expressed his preference for the Non- Ministerial cadre. 7.2 With regard to the communications dated 26.05.2021 and 19.08.2021, forming part of Annexure R-5, learned counsel submitted that the latter communication merely corrected the dates of promotion as 2013 and 2015, respectively, and did not authorise the respondents to undertake the impugned reversion in the manner adopted. Learned counsel contended that Respondent No. 3 had exceeded the scope of the Headquarters' clarification by altering the applicant's service status and pay fixation without properly examining his service particulars and entitlement. The applicant further alleged that his reply to the show-cause notice was not duly considered, notwithstanding the observations made by this Tribunal while disposing of the earlier OA on 14.09.2021. 7.3 Learned counsel also submitted that the applicant was on sanctioned leave from 04.10.2021 to 16.10.2021 on account of the illness of his aged mother and that the reversion order was issued before he could effectively avail himself of the opportunity of personal hearing. In support thereof, reliance was placed upon the railway tickets and representations annexed as Annexures A/49 to A/52. Learned counsel contended that the respondents had failed to appreciate the applicant's genuine circumstances and had proceeded mechanically with the reversion. 7.4 Learned counsel reiterated that the applicant's promotion had been granted after following the prescribed selection/DPC procedure, whereas the impugned reversion had been effected without obtaining the requisite DPC advice or following the corresponding procedure. Learned counsel contended that the applicant had successfully qualified in the typing test and that the respondents could not

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retrospectively declare his promotion erroneous without establishing the same in accordance with the applicable rules. 7.5 Learned counsel further pointed out that several junior candidates, who appeared in the typing test held on 12.06.2018 and qualified thereafter, had been promoted to the Grade Pay of Rs. 4200/-. In this regard, reliance was placed upon the typing test result dated 02.07.2018 and the promotion order dated 11.12.2020 (Annexures A/43 and A/44 respectively refer). Learned counsel contended that the denial of similar benefits to the applicant, despite his seniority and earlier qualification, was discriminatory. 7.6 Learned counsel also submitted that the applicant had been discharging his duties as DMS diligently and had received recognition for his outstanding performance from the Railway Administration. In this regard, reliance was placed upon the award communication and Certificate of Merit for the year 2020-2021 (Annexure A/45 refer), as well as the typewriting competition certificate dated 05.10.2013 (Annexure A/46 refer). The applicant further relied upon Annexure A/53, concerning his service particulars, and Annexure A/54, comprising the First Class pass certificate and muster roll for January 2022, to contend that he continued to discharge duties as DMS. 7.7 Lastly, learned counsel submitted that the respondents had failed to properly consider the applicant's seniority, entitlement to the Non- Ministerial cadre and the applicable provisions of Railway Board's Master Circular No. 34. Learned counsel contended that the impugned action was arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India, besides being contrary to the principles of natural justice. Accordingly, learned counsel prayed that the impugned reversion order be quashed and the applicant be granted the reliefs sought in the Original Application, including restoration of his rightful service position with consequential benefits.

8.

ANALYSIS

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8.1 We have carefully considered the pleadings of the parties, the rival submissions advanced by their learned counsel, the documents placed on record and the relevant provisions of the Indian Railway Establishment Manual (IREM), the Railway Establishment Code and the Railway Board's instructions governing erroneous promotions. The principal question which arises for our consideration is whether the respondents were justified in withdrawing the applicant's promotions to the posts of Senior Clerk, Office Superintendent and Depot Material Superintendent (DMS), and reverting him to the post of Senior Clerk with retrospective effect from 28.02.2020, together with revision of his pay, vide impugned Office Order dated 07.10.2021. 8.2 Before examining the rival contentions, it would be appropriate to notice the settled legal position governing erroneous promotions. In Union of India & Another v. Narendra Singh, reported in (2008) 2 SCC 750, the Hon’ble Supreme Court considered a case where an employee had been promoted despite being ineligible under the applicable statutory rules. While upholding the correction of the erroneous promotion, the Hon'ble Supreme Court observed as follows: “32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan [(1997) 6 SCC 766] it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.” (emphasis supplied) The Hon'ble Supreme Court further held that an erroneous promotion granted by incorrectly interpreting the applicable rules cannot be perpetuated merely because the mistake was committed by the administration itself. The employer is entitled to correct such an error by applying the rules correctly, subject, however, to compliance with the prescribed procedure and principles of natural justice. 8.3 In the present case, it is an admitted position that the applicant was initially promoted to the post of Junior Clerk vide Office Order dated

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12.09.2011, subject to the specific condition that he would qualify the prescribed typing test within two years, failing which he would be liable to reversion. The applicant did not qualify in the typing tests conducted on 29.02.2012, 25.09.2012 and 18.07.2013. It is also not disputed that he ultimately qualified in the additional typing test conducted on 18.04.2017, pursuant to the directions issued by this Tribunal in OA No.315/2013, and that the result thereof was declared on 04.05.2017. 8.4 The applicant has sought to derive an entitlement to consequential promotions from the panel of 2011, contending that his successful qualification in the typing test pursuant to the Tribunal's directions entitled him to the same benefits as other employees of that panel. We are unable to accept this contention in its entirety. The Order dated 15.02.2017 passed in OA No.315/2013 merely directed the respondents to provide the applicants therein one further opportunity to appear in a specially conducted typing test. The said Order did not expressly direct that successful candidates should be deemed to have qualified within the original period of two years, nor did it confer any automatic right to retrospective promotion or seniority from the date of the original panel. 8.5 Consequently, the fact that the applicant successfully qualified in the additional typing test in 2017 cannot, by itself, be construed as validating his earlier promotions with retrospective effect from 2013 or 2015. The respondents were, therefore, not precluded from examining whether the subsequent promotions granted to him were in accordance with the applicable Railway rules. In this regard, the principle laid down by the Hon'ble Supreme Court in Union of India v. Narendra Singh (supra) squarely applies, inasmuch as an erroneous promotion cannot be perpetuated merely on the ground that it was granted by the administration. 8.6 At the same time, we find considerable substance in the contention of the applicant that his successful qualification in the additional typing test, the subsequent correspondence exchanged between the Railway

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authorities and the promotions granted to him thereafter were required to be examined in their entirety before arriving at a conclusion that his promotions were erroneous. The respondents could not have proceeded merely on the assumption that his entire subsequent service career was liable to be annulled without determining the precise nature of the error, the applicable rules and the consequences flowing therefrom. 8.7 We may now advert to the provisions governing erroneous promotions. Paragraph 228 of the IREM, inter alia, provides that where a promotion or appointment is subsequently found to have been erroneous on the basis of facts, the employee concerned should be restored to the position which he would have held but for the incorrect order of promotion. The said provision further stipulates that the question whether a promotion was erroneous should ordinarily be decided by an authority next higher than the appointing authority, in accordance with the established principles governing promotions and appointments. 8.8 The aforesaid provision is also reflected in the relevant provisions of Rule 1326 of the Railway Establishment Code, Volume II, 1987 Edition, relied upon by the respondents. The statutory and administrative scheme, therefore, recognises the power of the Railway Administration to correct an erroneous promotion. However, the exercise of such power is not unfettered and must be preceded by an objective determination of the factual and legal basis of the alleged error, by the competent authority, after following the prescribed procedure. 8.9 In the instant case, the respondents have relied upon the Headquarters' communications dated 26.05.2021 and 19.08.2021, forming part of Annexure R-5. The communication dated 26.05.2021 specifically advised withdrawal of the applicant's promotions to the posts of Senior Clerk and Office Superintendent on the ground that the same were erroneous. The subsequent communication dated 19.08.2021 clarified the dates of the said promotions as 2013 and 2015, respectively.

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8.10 We do not find merit in the applicant's contention that the communication dated 19.08.2021 merely corrected the dates of promotion and altogether withdrew the earlier direction concerning erroneous promotions. A conjoint reading of the aforesaid communications indicates that the Headquarters had directed the Railway Administration to examine and correct the erroneous promotions granted to the applicant. The clarification concerning the dates cannot, therefore, be read in isolation so as to nullify the substantive direction contained in the earlier communication. 8.11 However, the applicant's further contention that respondent No.3 was not competent to independently withdraw the promotions granted to him also requires consideration. In this regard, we notice that Paragraph 228 of the IREM specifically contemplates that the question whether a promotion was erroneous should be decided by an authority next higher than the appointing authority, except in cases where the appointing authority itself is the Railway Board or the President. 8.12 The respondents have asserted that the decision regarding erroneous promotions was taken by the competent authority at Headquarters, which was higher than the appointing authority, and that respondent No.3 merely implemented the said decision. If the original record establishes that the competent authority at Headquarters had duly examined the applicant's case and decided the question of erroneous promotion in accordance with Paragraph 228 of the IREM, the objection concerning lack of competence of respondent No.3, merely on the ground that it issued the consequential office order, would not be sustainable. 8.13 Nevertheless, the impugned order dated 07.10.2021 does not sufficiently disclose the independent determination of the competent authority concerning the applicant's entitlement to the different promotional posts, particularly the post of DMS. It is also not evident from the pleadings as to whether the withdrawal of the promotion to the post of DMS was specifically examined and approved by the competent authority in accordance with the applicable rules, or

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whether it was treated merely as an automatic consequence of the withdrawal of the earlier promotions. 8.14 In our considered opinion, the promotion to the post of DMS, being a separate promotion in the Non-Ministerial cadre, required an examination of the applicant's eligibility, the relevant selection/panel, his exercise of option for the Non-Ministerial category and the approval accorded by Headquarters. The mere fact that the earlier promotion to the post of Office Superintendent was found erroneous would not dispense with the requirement of examining the subsequent promotion to DMS in the light of the applicable recruitment and promotion rules. 8.15 The next and equally important issue relates to compliance with the principles of natural justice. The applicant has contended that although he submitted his reply dated 06.09.2021 to the show-cause notice dated 26.08.2021, the same was not duly considered. He has further contended that, notwithstanding his sanctioned leave from 04.10.2021 to 16.10.2021 on account of his mother's illness, the respondents proceeded to pass the impugned order dated 07.10.2021 without affording him an effective opportunity of personal hearing. 8.16 On the other hand, the respondents have submitted that the applicant was afforded a reasonable opportunity to submit his explanation; his reply was duly considered; and the personal hearing scheduled for 06.10.2021 was not mandatory, particularly when he had already been afforded an opportunity to submit his written representation. They have further pointed out that the applicant appeared for the personal hearing on 28.10.2021, after the expiry of his sanctioned leave. 8.17 It is well settled that even where an administrative authority possesses the power to correct an erroneous promotion, such power cannot be exercised in a manner which deprives the affected employee of a reasonable opportunity to controvert the factual and legal basis of the proposed action, particularly when the order entails serious civil

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consequences concerning his post, pay, seniority and promotional avenues. 8.18 In Rajendra v. State of Maharashtra, reported in (2008) 11 SCC 90, the Hon'ble Supreme Court disapproved the cancellation of an approval without hearing the affected party, observing: “We also disapprove the action taken by the second respondent in abruptly cancelling the approval even without hearing the appellant or, as the case may be, the Managing Committee.” The aforesaid principle emphasises that an administrative decision adversely affecting an existing service position cannot ordinarily be taken without affording the affected person an appropriate opportunity to put forth his case. 8.19 The Hon’ble Delhi High Court, in Lt. Governor of Delhi & Others v. Dr. Davindera Kumar, W.P.(C) No.11186/2025, decided on 05.08.2025, while examining an order cancelling promotion and reverting an employee, held that reversion after grant of promotion entails civil consequences and cannot be effected without compliance with the principles of natural justice. The Hon’ble High Court specifically observed that: “5. ……. Reversion after the grant of promotion entails civil consequences and, therefore, cannot be affected without complying with the Principles of Natural Justice.” The Hon’ble High Court further held that the notices issued to the employee, which merely sought information and documents, were insufficient where no specific show-cause notice had been issued concerning the proposed reversion and its consequences. 8.20 Applying the aforesaid principles to the facts of the present case, we find that the applicant was indeed issued a show-cause notice dated 26.08.2021 specifically proposing withdrawal of his promotions to the posts of Senior Clerk and Office Superintendent and indicating the proposed alteration in his service position. Thus, unlike the case before the Hon’ble Delhi High Court in Dr. Davindera Kumar (supra), the applicant had been put on notice concerning the proposed withdrawal of at least those promotions.

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8.21 However, the subsequent course of events assumes significance. The applicant submitted his reply on 06.09.2021, which was pending consideration when he approached this Tribunal in OA No.360/2021. While disposing of the said OA on 14.09.2021 as withdrawn, this Tribunal specifically observed that: “It is expected that the respondent will consider the pending reply of the applicant in accordance with the rules and as also in accordance with the principle of natural justice.” Thus, the respondents were under an obligation to consider the applicant's pending reply in a fair and objective manner before taking a final decision. 8.22 We notice that the respondents issued a communication dated 30.09.2021 recording their remarks on the applicant's reply. Thereafter, the applicant submitted a further representation dated 01.10.2021 requesting reference of the matter to the higher authorities and seeking a personal hearing. The respondents scheduled his personal hearing for 06.10.2021. However, the applicant was admittedly on sanctioned leave from 04.10.2021 to 16.10.2021, a fact which was duly communicated by his controlling authority vide letter dated 05.10.2021. 8.23 In these circumstances, the respondents ought to have considered whether the applicant could reasonably attend the hearing on the scheduled date or whether an alternative date could be fixed, particularly when the hearing had been arranged by the respondents themselves and the applicant had expressed his willingness to appear. The passing of the impugned order on 07.10.2021, immediately after the scheduled hearing date and during the applicant's sanctioned leave, without awaiting his appearance, raises a legitimate concern regarding the effectiveness of the opportunity afforded to him. 8.24 We are conscious of the settled principle that a personal hearing is not an indispensable requirement in every administrative proceeding and that compliance with natural justice depends upon the facts and circumstances of the case. However, where an authority itself decides

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to afford a personal hearing and the employee is unable to attend on account of sanctioned leave duly communicated to it, the authority ought not to proceed in a manner which renders the offered opportunity illusory, particularly when the proposed order is likely to affect the employee's service status and financial entitlements substantially. 8.25 The respondents' contention that the applicant appeared for the personal hearing on 28.10.2021 does not, by itself, cure the aforesaid infirmity. The impugned order had already been passed on 07.10.2021. Any hearing afforded thereafter could be relevant only if the competent authority had genuinely reopened the matter and reconsidered the applicant's objections before passing a fresh decision. The respondents have not demonstrated that the impugned order was reconsidered or modified following the applicant's appearance on 28.10.2021. 8.26 We, therefore, find that although the applicant had been served with a show-cause notice and had submitted his written reply, the manner in which the final decision was taken, particularly in relation to the scheduled personal hearing and the applicant's sanctioned leave, does not inspire confidence that the opportunity afforded to him was fully effective.

9. We may now examine the applicant's contention that the respondents failed to consider his option for the Non-Ministerial cadre and thereby deprived him of his rightful promotional avenues. The applicant has placed reliance upon the correspondence exchanged between the Railway authorities during 2018 and 2019, particularly Annexures A/16 to A/21, to contend that he had consistently sought consideration for the Non-Ministerial category and that the omission to obtain his option at the appropriate stage was attributable to the administration. 9.1 The aforesaid contention cannot be brushed aside merely by describing the representation dated 28.09.2018 as an afterthought. The correspondence placed on record indicates that the respondents

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themselves subsequently initiated the process of obtaining the applicant's option and ultimately accepted his option for the Non- Ministerial category on 02.07.2019. The applicant was thereafter included in the panel for promotion to the post of DMS and promoted vide Office Order dated 24.12.2019. 9.2 Consequently, the question whether the applicant's earlier service in the Ministerial cadre, his option for the Non-Ministerial cadre and the subsequent promotion to DMS were correctly dealt with required a separate and reasoned examination. The respondents were required to determine whether the applicant's promotion to DMS was independently valid under the applicable rules or whether any consequential correction was warranted on account of the alleged erroneous promotion to the post of Office Superintendent. 9.3 We also notice that the applicant has relied upon the promotion orders dated 11.12.2020 concerning certain other employees, who allegedly qualified in the typing test conducted on 12.06.2018 and were thereafter promoted to the Grade Pay of Rs.4200/-. However, mere comparison with other employees would not, by itself, establish the applicant's entitlement to a particular promotion. The principle of equality under Articles 14 and 16 of the Constitution cannot be invoked to perpetuate an illegality or an erroneous benefit, if the applicant's own promotion is found to be contrary to the applicable rules. 9.4 Nevertheless, where the applicant claims that similarly situated employees have been treated differently despite possessing comparable eligibility and service particulars, the respondents are required to examine such contention objectively and demonstrate the distinguishing circumstances, if any. The applicant's plea of discriminatory treatment, therefore, deserves consideration on the basis of the relevant service records, panels, selection proceedings and applicable promotion rules.

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9.5 The applicant's reliance upon Paragraphs 20 and 20.2 of Railway Master Circular No.34 also requires clarification. The aforesaid provisions deal with cases involving administrative errors and erroneous promotions. While Paragraph 20 recognises the entitlement of employees who have been overlooked on account of administrative error to appropriate seniority vis-à-vis their juniors, Paragraphs 20.2 to 20.4 specifically provide for correction of erroneous promotions and regulation of consequential promotions. 9.6 Thus, the aforesaid provisions cannot be construed as conferring an unconditional right upon the applicant to retain all promotions granted to him, irrespective of his eligibility under the applicable rules. At the same time, the respondents cannot rely upon the provisions concerning erroneous promotions mechanically, without examining whether the original promotion was erroneous, the extent of the error, the competent authority empowered to correct it and the consequences flowing from such correction.

10. Another important aspect of the matter is that the impugned order dated 07.10.2021 has not merely withdrawn the applicant's promotions but has also reverted him to the post of Senior Clerk with effect from 28.02.2020 and revised his pay to Rs.31,000/-. The applicant has contended that such retrospective alteration is impermissible and has adversely affected his financial entitlements and promotional avenues. 10.1 In this regard, it is necessary to distinguish between correction of an erroneous promotion and recovery of financial benefits already received by an employee. The Hon'ble Supreme Court in Union of India v. Narendra Singh (supra) recognised the authority's power to correct an erroneous promotion in accordance with the rules. However, the question of recovery of excess payments, if any, is governed by separate legal principles and cannot automatically follow from the cancellation of promotion. 10.2 In State of Punjab v. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, the Hon'ble Supreme Court laid down circumstances in

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which recovery of excess payments made to employees would be impermissible, particularly where such recovery would be inequitable or unduly harsh. The said judgment, however, concerns recovery of monetary benefits and does not, by itself, prohibit correction of an erroneous promotion or lawful refixation of pay. The relevant para of the Hon’ble Supreme Court judgment is reproduced as under:- “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 10.3 In the present case, the respondents have not satisfactorily demonstrated, in the impugned order, the precise basis for fixing the applicant's pay at Rs.31,000/- with effect from 28.02.2020, particularly in view of his subsequent promotion to DMS and the service actually rendered by him in the higher posts. The question of pay fixation, therefore, requires determination in accordance with the applicable Railway rules, the nature of the promotions held erroneous and the consequences prescribed under Paragraph 228 of the IREM and Rule 1326 of the Railway Establishment Code.

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10.4 We also find that the impugned order does not adequately distinguish between the applicant's promotions to the posts of Senior Clerk and Office Superintendent on the one hand and his subsequent promotion to DMS on the other. Such a distinction was necessary because the applicant's promotion to DMS was made under the Non-Ministerial cadre after obtaining the requisite option and approval of Headquarters. The respondents were required to determine whether that promotion was independently sustainable or liable to be regulated as a consequential promotion under the relevant provisions.

11. In view of the foregoing discussion, we hold that the respondents were not precluded from examining and correcting an erroneous promotion merely because the same had been granted by the administration or had continued for some time. The applicant cannot claim an indefeasible right to retain a promotion which is found to be contrary to the applicable Railway rules. The principle laid down by the Hon'ble Supreme Court in Union of India v. Narendra Singh (supra) squarely governs this aspect of the matter.

12. However, the power to correct an erroneous promotion must be exercised by the competent authority in accordance with Paragraph 228 of the IREM and the relevant provisions of the Railway Establishment Code, after objectively considering the employee's explanation and the factual and legal basis of the alleged error. The correction of an erroneous promotion cannot be undertaken mechanically or in disregard of the principles of natural justice.

13. In the present case, we find that the applicant was issued a show-cause notice and submitted his reply. Nevertheless, the circumstances surrounding the personal hearing scheduled for 06.10.2021, the applicant's sanctioned leave duly communicated to the respondents and the passing of the impugned order on 07.10.2021, without awaiting his appearance, indicate that the opportunity of hearing was not rendered fully effective. Further, the impugned order does not sufficiently demonstrate an independent examination of the applicant's promotion to DMS, his option for the Non-Ministerial cadre, the consequential

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alteration of his service position and the basis for retrospective pay fixation.

14. We are, therefore, of the considered view that the matter warrants reconsideration by the competent authority, rather than outright restoration of all the promotions claimed by the applicant. Such a course would balance the applicant's right to a fair consideration of his service claims with the respondents' legitimate authority to correct erroneous promotions in accordance with the applicable rules.

15. Accordingly, we deem it appropriate to set aside the impugned Office Order dated 07.10.2021 and remit the matter to the competent authority at Headquarters for fresh consideration.

16. The competent authority shall, while reconsidering the matter:

(i) examine the applicant's eligibility and entitlement to promotion to the posts of Senior Clerk and Office Superintendent, keeping in view the condition of passing the typing test, the result of the additional typing test conducted pursuant to the Tribunal's order dated 15.02.2017 and the applicable Railway rules;

(ii) examine independently the applicant's promotion to the post of Depot Material Superintendent, including his option for the Non-Ministerial cadre, the relevant panel, the approval accorded by Headquarters and the applicability of the provisions governing consequential promotions;

(iii) determine whether the promotions in question were erroneous within the meaning of Paragraph 228 of the IREM and Rule 1326 of the Railway Establishment Code, and ensure that the decision is taken by the competent authority prescribed therein;

(iv) consider the applicant's reply dated 06.09.2021, subsequent representation dated 01.10.2021 and the relevant material placed on record, including his claim concerning the treatment of similarly situated employees;

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(v) afford the applicant an effective opportunity of personal hearing, if he so desires, before passing a fresh order; and

(vi) determine the consequential issues relating to his service position, seniority, pay fixation and promotional avenues in accordance with the applicable rules and the findings recorded.

17. The aforesaid exercise shall be completed by the competent authority by passing a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this order.

18. In the circumstances, the Original Application is partly allowed to the extent as indicated above.

19. There shall be no order as to costs.

(Sanjiv Kumar)

(Jayesh V. Bhairavia) Member (A)

Member (J)

/pv/

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