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2007 DIGILAW 1778 (RAJ)

Sayeed Ahmed v. Union of India

2007-09-19

MAHESH CHANDRA SHARMA, R.M.LODHA

body2007
JUDGMENT 1. (Oral) - The unsuccessful original applicant, by means of this writ petition, has taken exception to the judgment of the Central Administrative Tribunal dated 1.6.2001.The following facts are not in dispute : (i) That on 6.8.1969, the petitioner was appointed on contingent basis. (ii) That by the order dated 9.2.1972, he was appointed on the post of Mechanic. (iii) That on 9.2.1975, the petitioner and Kesar Lal Verma (respondent No. 4) were made quasi-permanent while vide orders dated 10.2.1975 and 10.4.1975, Om Prakash Sharma 1 (respondent No. 5) and Om Prakash Sharma II (respondent No. 6) were made quasi-permanent. (iv) That the ad hoc promotion to the post of Head Mechanic was given to the petitioner on 4.7.1983. The said order mentions that ad hoc promotee/s will stand reverted as soon as the regular promotee joins the post and that the promotion shall not confer on the promotee any right for regular promotion/appointment. (v) That the disciplinary proceedings against the petitioner were initiated and he was charge-sheeted on 12.7.1984. (vi) That Om Prakash Sharma II son of Nathu Lal Sharma was given promotion to the post of Head Mechanic on 19.10.1984 while Kesar Lal Verma and Om Prakash Sharma I were promoted as Head Mechanic on 20.10.1984 and' 28.1.1985 respectively. (vii)That pursuant to the disciplinary proceedings initiated against him, on conclusion of the inquiry, the petitioner was removed from service on 25.6.1985. (viii) That the petitioner challenged the order of the disciplinary authority before the appellate authority who vide his order dated 17.3.1986 modified the removal order and awarded punishment of withholding of two grade increments. (ix) That, thereafter, the petitioner was reinstated but again on 14.12.1986, punishment of censure was imposed upon him. (x) That on 5.6.1989, the petitioner was given promotion to the post of Head Mechanic. (xi) That on 21.3.1985, the seniority list of Head Mechanic was issued wherein the petitioner was shown junior to Kesar Lal Verma, Om Prakash Sharma I and Om Prakash Sharma II. (xii)That the petitioner challenged the said seniority list by filing original application before the Central Administrative Tribunal which was dismissed on 1.6.2001. 3. (xi) That on 21.3.1985, the seniority list of Head Mechanic was issued wherein the petitioner was shown junior to Kesar Lal Verma, Om Prakash Sharma I and Om Prakash Sharma II. (xii)That the petitioner challenged the said seniority list by filing original application before the Central Administrative Tribunal which was dismissed on 1.6.2001. 3. The Tribunal held that the promotion given to Kesar Lal Verma, Om Prakash Sharma I and Om Prakash Sharma II to the post of Head Mechanic on 20.10.1984, 19.10.1984 and 20.1.1985 was never challenged by the petitioner The explanation given by the department, that the petitioner could not be considered for promotion in the year 1984-85 because of on-going disciplinary proceedings which was followed by imposition of penalty and even in the Departmental Promotion Committee held in the year 1987, the petitioner was not found suitable was accepted. 4. Mr. R.C. Joshi, the counsel for the petitioner urged that on 4.7.1983 when adhoc promotion to the post of Head Mechanic was given to the petitioner, there were vacancies and at that time neither any disciplinary proceeding nor any charge-sheet was served upon the petitioner and, therefore, his case for promotion ought to have been considered for the vacancies on or before 4.7.1983 and since the petitioner has already been given ad hoc promotion on 4.7.1983, as per his seniority in the rank of Mechanics, in the seniority list of Head Mechanics, the petitioner was entitled to rank senior to the private respondents. 5. At the outset we may notice that the petitioner has not only been candid but made false statement in the original application that he has never been served with any charge-sheet. The counsel for the petitioner did not dispute, and he could not have because it is admitted case of the petitioner in paragraph 5 of the writ petition, that on 12.7.1984 the charge-sheet was issued to him. The private respondents were given promotion thereafter. The OA was filed by him in the year 1995 challenging the seniority of the private respondents in the seniority list of Head Mechanics and much before that he was already charge-sheeted and ultimately punished by with holding of two grade increments. Yet he stated in the OA, "........that the applicant was never served with any charge-sheet....". By making such a glaring false statement, the petitioner has not helped his cause. 6. Yet he stated in the OA, "........that the applicant was never served with any charge-sheet....". By making such a glaring false statement, the petitioner has not helped his cause. 6. We are of the view that the petitioner has no case on merit. The private respondent viz., respondent Nos. 4, 5 and 6 were given promotion to the post of Head Mechanic on 20.10.1984, 28.1.1985 and 19.10.1984 respectively. The petitioner never challenged their promotion. Moreover, when the private respondents were given promotion on the post of Head Mechanic, it is a fact that the disciplinary proceeding against the petitioner were pending. Even if seal cover method were adopted, it would have been of no help to the petitioner because the disciplinary authority by his order dated 25.6.1985 removed the petitioner from service. The said order was though modified by the appellate authority, but it is a fact that ultimately he has been punished with punishment of with holding of two grade increments. Obviously, in the backdrop of the punishment awarded to the petitioner, he could not have been promoted to the post of Head Mechanic when private respondents were promoted. That is why he did not challenge the promotion given to the private respondents on the dates afore-noticed. That the petitioner has been given promotion to the post of Head Mechanic on 5.6.1989 is not in dispute. After the promotion was given to him on 5.6.1989, he did not raise any issue until the year 1995 that he must have been promoted with retrospective effect when his juniors were promoted. No grievance of any sort nor representation of any nature was made by the petitioner that his promotion given on 5.6.1989 on the post of Head Mechanic must relate back to the date his juniors were promoted. Since the private respondents were promoted in the years 1984 and 1985 on the post of Head Mechanic have to be accorded seniority over the petitioner who was promoted to the post of Head Mechanic much later i.e. 5.6.1989. Thus the challenge to the seniority list of Head Mechanic issued on 21.3.1985 by the petitioner was misconceived. 7. The contention of Mr. Thus the challenge to the seniority list of Head Mechanic issued on 21.3.1985 by the petitioner was misconceived. 7. The contention of Mr. R.C. Joshi that since regular vacancies on 4.7.1983 were available and at that time there were no disciplinary proceedings pending against him, the petitioner was entitled to promotion on the post of dead Mechanic on 4.7.1983 and, thus, in the seniority list of Head Mechanic he ought to have been shown senior to the private respondents is noted to be ejected. No such argument was put forth by the petitioner before the Tribunal. There is no mention of such contention in the impugned order. There is no ground set up in the writ petition that such contention was raised before the Tribunal and that was not considered. We, accordingly, do not intend to deal with this argument further.8. The consideration of the matter by the Tribunal is proper and does not call for any interference in the writ jurisdiction. The writ petition is dismissed with no order as to costs.Petition dismissed. *******