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2006 DIGILAW 2487 (RAJ)

Fazalluddin v. Union of India

2006-08-18

P.S.ASOPA, S.N.JHA

body2006
Judgment P.S. Asopa, J.-Since the controversy raised in the aforesaid two writ petitions is based on common facts and question of law as decided by the Central Administrative Tribunal, therefore, both the writ petitions were heard together and are being decided together. 2. The Writ Petition No. 6801/1997 is directed against the Judgment of the Central Administrative Tribunal dated 02.09.1997 passed in OA No. 46/97 filed by the petitioner whereby his reversion order dated 14.01.1997 from the post of Compositor Gr.II to Compositor Gr.III has been held to be valid being passed in compliance of the Central Administrative Tribunals Judgment dated 04.01.1996 in OA No. 157/95 -Bishan Lal vs. Union of India & Ors. wherein the petitioner was one of the respondent and did not challenge the same. The OA filed by petitioner was dismissed being not maintainable. 3. In Writ Petition No. 5389/2001, the petitioner has challenged the Judgment dated 16.05.2001 of the Central Administrative Tribunal in OA No. 71/1996 wherein Shri Puran Singh and 4 others filed the original application against the order dated 17.01.1996 of promoting Respondent No. 4 of the said appeal (present petitioner) as Compositor Gr.II in Ticket Printing Press which has been held to be illegal and further direction has been given to restore the position of the applicants as if Respondent No. 4 had not been absorbed against the sanctioned strength of the cadre of Compositors in Ticket Printing Press (For short "TPP") for the same reasons mentioned in Judgment dated 04.01.1996 in OA No. 157/95 and further observations made by the Central Administrative Tribunal in Para No. 18 in aforesaid Judgment dated 04.01.1996 for accommodation of the petitioner in the Compositor cadre without prejudice to the right of any eligible person have been explained. 4. All the facts of earlier writ petition have been mentioned in the subsequent writ petition also wherein the Judgment of the Central Administrative Tribunal (For short "the CAT") dated 16.05.2001 is challenged, therefore, facts have been taken from the said petition. 5. The petitioner was appointed as Khalasi in Store Department vide order dated 09.04.1977. Subsequently, petitioner was transferred in TTP as Khalasi and vide order dated 03.02.1979, petitioner was promoted as Junior Compositor in the pay scale of 210-290. Thereafter, trade test for the post of Compositor Gr.III was conducted, but the petitioner failed. 5. The petitioner was appointed as Khalasi in Store Department vide order dated 09.04.1977. Subsequently, petitioner was transferred in TTP as Khalasi and vide order dated 03.02.1979, petitioner was promoted as Junior Compositor in the pay scale of 210-290. Thereafter, trade test for the post of Compositor Gr.III was conducted, but the petitioner failed. It has been averred by the petitioner that on 210.1981, the General Manager decided to give one more chance to the failures. On 13.01.1982, petitioner was promoted as Junior Proof Reader after passing the trade test in the pay scale of 260-400. On 20.06.1983, Railway Board passed the order of re-classification of grades and pay scale of 210-290 and 260-400 were merged. On 21.04.1984, petitioner was reverted to the post of Helper Khalasi on the ground of non-availability of the post of Junior Proof Reader. On 02.03.1985, petitioner was again promoted to the post of Junior Proof Reader on officiating basis in the pay scale of 260-400. On 16.02.1994, an order was passed by the General Manager to implement the order dated 210.1981 permitting the failures to avail one more chance of trade test for promotion to the post of Compositor Gr.III. On 211.1994, Deputy Controller, Ajmer passed an order permitting the petitioner and other candidates, who failed in the result dated 29.05.1981 to re-appear in the test for promotion on the post of Compositor Gr. III. Shri Bishan Lal received a notice dated 17.02.1995 by which he was informed that Respondent Nos. 4 & 5 had submitted an appeal and if decision thereon had been taken to the effect that as per the provisions of Rule 228 of the Indian Railway Establishment Manual, they had to be brought back to their original post of Compositor occupied by them on 01.08.1978 and on their passing trade test, they would be given seniority with reference to the position of their Junior Puran Singh. If this is done, there would be one employee excess in the grade of Compositor Gr.III where Bishan Lal is juniormost. On 21.03.1995, petitioner was promoted to the post of Compositor Gr.III and Shri Bishan Lal was reverted on the post of Khalasi Helper. When the orders dated 211.1994 and 21.03.1995 were passed to revert Shri Bishan Lal and providing seniority to the petitioner in Compositor unit, Bishan Lal filed OA No. 157/95. 6. On 21.03.1995, petitioner was promoted to the post of Compositor Gr.III and Shri Bishan Lal was reverted on the post of Khalasi Helper. When the orders dated 211.1994 and 21.03.1995 were passed to revert Shri Bishan Lal and providing seniority to the petitioner in Compositor unit, Bishan Lal filed OA No. 157/95. 6. In the aforesaid OA No. 157/95, an interim order was passed on 20.04.1995 in favour of Bishan Lal whereby operation of the order dated 21.03.1995 was stayed, which was subsequently clarified that stay is only so far as applicants reversion is concerned. When the compliance of the order dated 20.04.1995 was not made, a contempt petition was filed by Shri Bishan Lal. The said interim order was complied with and the notices were discharged on 16.08.1996. After the Judgment of the CAT dated 04.01.1996 in Bishan Lals case, petitioner was reverted from the post of Compositor Gr.II to Compositor Gr.III vide order dated 14.01.1997. Against which petitioner has filed the original application which was registered as OA No. 46/96 and the said OA was dismissed on 02.09.1997 on the ground that the petitioner has not challenged the Judgment of the CAT in case of Bishan Lal dated 04.01.1996 despite being a party to the said Judgment , therefore, OA filed by the petitioner is not maintainable. It has also been stated by the petitioner that the Railway Board re-classified the grades and pay scale of 210-290 and 260-400 were merged vide order dated 20.06.1983, therefore, he was not required to pass the test for the post of Compositor Gr.III on his accommodation as Compositor Gr.III vide order dated 21.03.1995 and Bishan Lal was rightly reverted to the post of Khalasi Helper being junior to him. Whereas the case of Bishan Lal is that he was rightly promoted as Compositor Gr.III on being passing the test and is senior to petitioner, who has no right to continue in Compositor cadre. On the same line, the other applicants in OA No. 71/1996 submitted that the petitioner could not have been promoted vide order dated 17.01.1996 as Compositor Gr.II on account of having no right of seniority in Compositor cadre Gr.III. 7. On the same line, the other applicants in OA No. 71/1996 submitted that the petitioner could not have been promoted vide order dated 17.01.1996 as Compositor Gr.II on account of having no right of seniority in Compositor cadre Gr.III. 7. The respondent Railway filed reply to the writ petition and stated that they have passed the orders dated 211.1994 and 21.03.1995 under the impression that injustice is being done to the petitioner, but subsequently when the Central Administrative Tribunal delivered the Judgment and made the observations which have already been explained in the subsequent writ petition that the petitioner can only be accommodated without prejudice to the rights of the party and further when the rights of the parties have been prejudiced on account of accommodation of the petitioner, they have reverted him vide order dated 14.01.1997. 8. The Central Administrative Tribunal considered all the facts and circumstances available on record and came to the conclusion that Respondent No. 4 (petitioner) was holding the post of Compositor earlier in TPP, but was reverted and declared surplus and further absorbed on the post of Junior Proof Reader in the same press on his passing the trade test for Junior Proof Reader. He has since continued on the said post which carries the same scale which is available to the Compositor. He also did not challenge his being declared surplus at relevant time and there is no provision for change from one seniority unit to another seniority unit even in the same press. Since he was in a different seniority in TPP, his being brought back to the seniority of Compositor is not in accordance with law, therefore, reversion of Shri Bishan Lal from the post of Compositor Gr.III in order to absorb the Respondent No. 4 (petitioner) in the said unit is not valid. However, some observations were made by the CAT to accommodate the Respondent No. 4 (petitioner) if the post is available and the same be made without prejudice to the rights of the applicants. The said OA filed by Shri Bishan Lal was accepted on 04.01.1996 and orders dated 21.03.1995 and 211.1994 were quashed. The Judgment dated 04.01.1996 of the Central Administrative Tribunal in OA No. 157/95 filed by Bishan Lal was not challenged by the petitioner and he has challenged only the reversion order dated 14.01.1997. The said OA filed by Shri Bishan Lal was accepted on 04.01.1996 and orders dated 21.03.1995 and 211.1994 were quashed. The Judgment dated 04.01.1996 of the Central Administrative Tribunal in OA No. 157/95 filed by Bishan Lal was not challenged by the petitioner and he has challenged only the reversion order dated 14.01.1997. The Central Administrative Tribunal dismissed the OA No. 46/97 filed by the petitioner on the ground that petitioner has not challenged the Judgment in Bishan Lals case dated 04.01.1996, therefore, OA is not maintainable. 9. When the said Judgment was mis-interpreted by the respondent Railway, Puran Singh and 4 other persons apprehending their reversion and disturbance of seniority filed another OA No. 71/1996 against the order dated 17.01.1996 whereby the petitioner was promoted to the post of Compositor Gr.II and further sought direction to restrain the respondents from interpolating the Respondent No. 4 (petitioner) in the seniority of Compositor in TPP. The Central Administrative Tribunal in Para No. 8 of the Judgment dated 16.05.2001 explained its observations made in Judgment dated 04.01.1996 and came to the conclusion that action of respondent Railway of absorbing the petitioner and assignment of seniority in Compositor cadre is illegal. Against the said Judgment , second writ petition was filed. The respondents have also filed reply to the Second Writ Petition No. 5389/2001 on the same line. 10. The submission of Counsel for the petitioner in both the writ petition is that the Central Administrative Tribunal acted beyond its jurisdiction in enlarging the scope of the contempt petition against the interim order by holding that Bishan Lal is senior to the petitioner and further has not given any weightage to the fact that the Railway Board has rightly passed the order dated 211.1994 and 21.03.1995 to remove injustice caused to him by promoting him to the post of Compositor Gr. III for which he was not required to pass the test on account of merger of the post vide order dated 20.06.1983. Further, the petitioner was rightly promoted to the post of Compositor Gr. II on passing of the test vide order dated 17.01.1996 and the Central Administrative Tribunal committed an error in quashing the same. 11. III for which he was not required to pass the test on account of merger of the post vide order dated 20.06.1983. Further, the petitioner was rightly promoted to the post of Compositor Gr. II on passing of the test vide order dated 17.01.1996 and the Central Administrative Tribunal committed an error in quashing the same. 11. The submission of the Counsel for the Railway before this Court is that while passing the order dated 211.1994 and 21.03.1995, they have not been able to appreciate the position of the rules, according to which, a person cannot be transferred from one seniority unit to another seniority unit and after the Judgment of the CAT dated 04.01.1996 in OA filed by Bishan Lal also, they have not properly understood the implication of the observations which were made without prejudice to the right of any affected party. But when the CAT clarified its observation in the subsequent OA filed by Puran Singh and 4 others, they have accepted the interpretation of the rules given by the Central Administrative Tribunal in OA No. 157/95 and 71/1996 vide Judgment s dated 04.01.1996 and 16.05.2001 respectively and has not filed writ petitions as the restoration of the aforesaid impugned order would be contrary to the rules and will also prejudice the right of other affected persons working in the Compositor unit. 12. We have gone through the record of both the writ petition and further considered rival submissions of the parties. 13. Before proceeding further, it would be appropriate to consider Paragraph No. 18 of the Judgment dated 04.01.1996 in OA No. 157/95 filed by Bishan Lal, which is as under:-"As regards Respondent No. 4, he was also holding the post of Compositor earlier in TPP but was reverted and declared surplus but was absorbed on the post of Proof Reader in the same press (TPP) on his passing trade test for Proof Reader. He has since continued on the said post which carries the same scale of pay which is available to Compositor Gr-III. He also did not challenge his being declared surplus etc. at relevant time. There is no provision for change from one seniority unit to another, even in the same press. Since he was in a different seniority unit though in TPP, his being brought back to the seniority unit of Compositor Gr.III, is not in accordance with the rules. He also did not challenge his being declared surplus etc. at relevant time. There is no provision for change from one seniority unit to another, even in the same press. Since he was in a different seniority unit though in TPP, his being brought back to the seniority unit of Compositor Gr.III, is not in accordance with the rules. Therefore, the applicants reversion from the post of Compositor Grade-III in order to absorb Respondent No. 4 in the said post is not valid. However, it was stated before us during the arguments that two posts of Compositor Grade III are available now in TPP and besides the applicant Respondent No. 4 remained throughout in TPP, we are of the view that if additional post of Compositor Gr.III is available in TPP, Respondent No. 4 may be fitted against that post without causing any prejudice to any of the rights of the applicant accruing to him by virtue of his holding the post of Compositor Grade-III in TPP." 14. In the aforesaid paragraph of the CATs Judgment , the observation of the accommodation of the petitioner made by the CAT is without causing any prejudice to any of the rights of the applicant (Bishan Lal) accruing to him by virtue of his holding the post of Compositor Gr.III in TPP. 15. The petitioner against his reversion order dated 14.01.1997 by which he was reverted from the post of Compositor Gr.II to the post of Compositor Gr.III, filed OA No. 46/97 and the same was dismissed on 02.09.1997 on the ground that the petitioner has not challenged the order passed by the Tribunal on 04.01.1996, which has attained finality, therefore, his application is not maintainable. Para 8 of the said Judgment is as follows:- "Thus whatever seniority has been assigned to Shri Fazalluddin, the applicant, vis a vis Shri Bishan Lal, Respondent No.4 in the present O.A., is in accordance with the order dated 04.01.1996 passed by the Tribunal in the O.A. Filed by Shri Bishan Lal to which Shri Fazalluddin was made a respondent. Para 8 of the said Judgment is as follows:- "Thus whatever seniority has been assigned to Shri Fazalluddin, the applicant, vis a vis Shri Bishan Lal, Respondent No.4 in the present O.A., is in accordance with the order dated 04.01.1996 passed by the Tribunal in the O.A. Filed by Shri Bishan Lal to which Shri Fazalluddin was made a respondent. The subsequent clarification dated 012.1996 says nothing new but it merely reiterates the position stated in Paragraph 18 of the Trubunals order dated 04.01.1996 in which it was abundantly made clear that if Shri Fazalluddin is fitted in TPP in the post of Compositor Gr.II this would be without causing any prejudice to any of the rights of Shri Bishan Lal. These rights would obviously include the right to have higher seniority than that granted to Shri Fazalluddin. In the Contempt Petition filed by Shri Bishan Lal, Shri Fazalluddin, Respondent No. 4 in that O.A., could not have been made a party. The arguments that the applicant in the present O.A. was not a party to the Contempt Petition filed by Shri Bishan Lal and he is not bound by any clarifications issued by the Tribunal have no relevance in our view. Now promotion was granted to Shri Fazalluddin in the post of Compositor Gr.III. It is this improper action which has been undone by the respondents by passing the impugned order Annexure-A1 dated 14.01.1997, in view of the directions of the Tribunal contained in the order dated 04.01.1996 passed in O.A. No. 157/95 filed by Shri Bishan Lal. The applicant in the present O.A. did not seek any remedy by way of appeal or review of the order passed by the Tribunal on 04.01.1996 which has attained finality. Therefore, the present application filed by Shri Fazalluddin is not maintainable. It is, therefore, dismissed at the stage of admission. No order as to costs." 16. The applicant in the present O.A. did not seek any remedy by way of appeal or review of the order passed by the Tribunal on 04.01.1996 which has attained finality. Therefore, the present application filed by Shri Fazalluddin is not maintainable. It is, therefore, dismissed at the stage of admission. No order as to costs." 16. The CAT has taken the same view as taken in order dated 04.01.1996 in the subsequent Judgment dated 16.05.2001 in OA No. 71/1996 filed by Puran Singh and 4 others and came to the conclusion that the CAT cannot commend any action which would adversely affect the right of those already in the cadre and has further held that Respondent No. 4 (petitioner) had failed to establish his claim in OA No. 157/95 and he fails to establish the same in this OA for the same reason. The relevant portion of Para No. 8 of the said Judgment is as under:- "In fact, the respondents while projecting the possibility of absorbing Shri Fazluddin as a Compositor did not come before the Tribunal with complete facts. It appears that the respondent misread the observations of the Tribunal and took it as a permission not only to absorb Respondent No. 4 as Compositor Gr.III but they have gone ahead by promoting him as Compositor Gr.II vide impugned order, where Bishan Lal has been shown to be continuing in Gr.III only. We are, in fact, surprised at this interpretation of the order, when the Tribunal did not permit the absorption of Shri Fazluddin over the head of Shri Bishan Lal, the impugned order proposed to place Shri Fazluddin in still higher grade. This action of the respondents has caused obvious apprehensions in the minds of Applicants 1 to 4 and Applicant No. 5 also is rightly aggrieved. Applicant No. 5 was already holding the post as Compositor Gr.III on regular basis and as per the decision in Bishan Lals case, we do not find any reason for Shri Fazluddin to have been appointed not only in Gr.II but even as Compositor Gr.III. The action of the respondents is contrary to the provisions of rules as held in Bishan Lals case and is liable to be struck down. The action of the respondents is contrary to the provisions of rules as held in Bishan Lals case and is liable to be struck down. If the department wanted to find a remedy to grant benefit of Shri Fazluddin for their own admitted lapse, it was for them to work out a scheme which would not affect the rights of the persons who were already in the seniority unit of Compositor Gr.III, and Gr.II. In Railways, the distribution of posts in various grades is on percentage basis and the right of promotion within that percentage belongs to only those, who are in that cadre. Outside these prescribed percentages, if the department wants to held Respondent No. 4 they have to find an alternative solution. We cannot commend any action which would adversely affect the right of those already in the cadre. Respondent No. 4 had failed to establish his claim in OA 157/95 and he fails to establish the same in this OA for the same reasons." 17. Before us also, Counsel for the petitioner has not been able to establish the case that under which rule, transfer from one seniority unit to another seniority unit is permissible. He has also not able to explain why he has not challenged his absorption to the post of Junior Proof Reader in the same pay scale which is in another seniority unit. The contention of the petitioner that the CAT has enlarged the scope of contempt petition, is wholly misconceived as the said interim order dated 20.04.1995 merged in the order dated 04.01.1996 passed in OA No. 157/95, which has not been challenged by him. As regard the contention of the petitioner that he is not required to pass the test for Compositor Gr.III on account of merger of the grade vide order dated 20.06.1983, we have gone through the said document and are of the view that the same is re-classification of the grade and pay scale. Certain categories of the pay scale of 210-290 has been upgraded in 260-400 and same is not merger. In our view, the Central Administrative Tribunal has not committed any error in giving the aforesaid findings. 18. Certain categories of the pay scale of 210-290 has been upgraded in 260-400 and same is not merger. In our view, the Central Administrative Tribunal has not committed any error in giving the aforesaid findings. 18. The CAT has not committed any error in dismissing the OA No. 46/97 vide order dated 02.09.1997 filed by the petitioner as not maintainable on account of the fact that the order dated 04.01.1996 in Bishal Lals case, wherein he was party, has not been challenged by him and further in accepting the Original Application No. 71/96 filed by Puran Singh and four others vide order dated 16.05.2001. 19. In view of above, the impugned Judgment s of the Central Administrative Tribunal do not call for any interference and both the writ petitions are dismissed with no order as to costs.