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2005 DIGILAW 2555 (RAJ)

Chandan Singh v. Central Administrative Tribunal

2005-09-22

GOPAL KRISHAN VYAS, N.N.MATHUR

body2005
Judgment N.N. Mathur, J.-By way of instant petition under Article 227 of the Constitution of India the petitioner has challenged the order of the Central Administrative Tribunal, Jodhpur Bench dated 01.05.2003. 2. The short facts giving rise to the instant petition are that the petitioner was visited with a penalty of stoppage of two increments with cumulative effect. The appellate authority reduced the same to reduction of pay from Rs. 4,750/-to Rs. 4,670/-for a period of 9 months i.e., from 13.08.2002 to 13.05.2002. He took voluntary retirement w.e.f. 19.06.2002. However, he was deprived of the promotion because of aforesaid penalty. Thus, he filed a OA before the Tribunal claiming promotion the date from which persons junior to him were promoted on the post of Senior Diesel Assistant. He placed reliance on Para 3.1 of the Railways Boards Circular dated 21st January, 1993 which provides for the procedure to be followed in case of Railway servant on whom a penalty has been imposed and his juniors have been promoted to the next higher grade during the pendency of the penalty. The Tribunal rejected the contention relying on Para 3.9 of the Circular. Interpreting the Circular the Tribunal held that the Circular provides that the said Circular is attracted only in a case where the disciplinary proceedings are pending and the name of Railway servant is already borne on selection panel. In the instant case the appellant on the date of promotion of his junior was undergoing a minor penalty, which was still in currency. In view of the finding rejected the OA. Hence, instant petition. 3. Assailing the Judgment of the Tribunal learned Counsel has referred to Para 3.6 of the Circular dated 21st January, 1993 which reads as follows:- "3.6 If Minor Penalty is given:-If the disciplinary against the person under suspension etc. for whom a vacancy has been reserved, is finalized within a period of two years of the approval of the provisional penal in the case of promotion to selection posts or at any point of time-in the case of non-selection post-and if such a person is inflicted only a minor penalty, he should automatically be assigned the position in the selection penal/suitability list and his employment/enlistment announced and he may be promoted in his turn. If his juniors has already been promoted before interpolation of his name in the selection penal/suitability list, he should be promoted reverting the junior most person if necessary and his pay on promotion should be fixed under the normal rules." 4. It is submitted that the Tribunal has failed to consider that it was a case of fixation of pay by upgradation of the post of Diesel Assistant to Senior Diesel Assistant. Once the post is upgraded the person has to be given the benefit of upgradation when person junior to him have already been given. On the other hand it is submitted by the learned Counsel for the Railways Administration that no person junior to petition was promoted between the period of date of expiry of punishment and the date of voluntary retirement i.e. 19.06.2002. The persons junior to petitioner were promoted on the post of Senior Diesel Assistant on 10.01.2003. In rejoinder the petitioner has pointed out that Mohanlal a person junior to him was promoted on 011.2001. 5. Having considered the rival contentions, we are of the view that the petition deserves to be allowed. The circular extracted above clearly provides that as a result of disciplinary enquiry if a person has been inflicted with a minor penalty, he shall be automatically assigned the position in the selection panel. The provision further provides that if a junior has already been promoted before interpolation of his name in the selection panel, he should be promoted from the date his juniors have been given promotion. In the instant case it is not in dispute that Mohanlal is junior to the petitioner and he has been given promotion. Thus, the petitioner is also entitled to promotion on the post of Senior Diesel Assistant from the date Mohanlal was given promotion. 6. Consequently, the petition is allowed. The order of the Tribunal dated 01.05.2003 is set aside. The petitioner shall be given promotion w.e.f. the date person junior to him was given promotion on the post of Senior Diesel Assistant. As the petitioner had already retired he will be given notional promotion. He will be entitled to the monetary benefit as the consequence of the promotion. No order as to cost.