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2007 DIGILAW 215 (ORI)

Mohammed Rahemat Ali Khan v. Broadcasting Corporation of India

2007-03-29

I.M.QUDDUSI, PRADIP MOHANTY

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JUDGMENT I. M. QUDDUSI, J. : This writ petition has been filed against the judgment/order dated 8th November, 2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.608 of 2001 dismissing the OA filed by the petitioner against the order reverting him to the post of Diesel Technician and for a direction to the respondents to promote him to the post of Engineering Assistant with effect from 9.8.2000. 2. The brief facts of the case are that the petitioner was appointed as a Diesel Engine Driver in All India Radio Cuttack on 22.8.1983. Subsequently, he was promoted to the post of Diesel Technician on 30.8.1991. On 20.12.1999, the Prasar Bharati (erstwhile All India Radio) issued a circle to hold a departmen¬tal competitive examination for promotion of Senior Technician, Mast. Technician and Diesel Technician to the post of Engineering Assistant for which 10% departmental quota was fixed. The peti¬tioner was also suitably came in the zone of consideration and he was allotted Roll No.3038 for appearing in the examination in which he appeared but his name did not find place in the select list published on 9.8.2000 (Annexure-3) against which he filed a representation on which opposite parties 3 and 4 under two dif¬ferent letters dated 4.9.2000 and 21.9.2000 intimated the peti¬tioner that he could not score the merit in total marks obtained in the written test as well as performance graded in the ACRs. Ultimately, he filed O.A. No.646 of 2000 before the Tribunal praying therein to direct the respondents to promote him with effect from 9.8.2000 and to pay the arrear salary. During the pendency of the OA, the opposite parties, vide order dated 2.3.2001, promoted the petitioner to the post of Engineering Assistant and posted him at Doordarshan Kendra, Bhawanipatna on the basis of recommendation of review DPC. But he was reverted from that post on 14.9.2001 to the post of Diesel Technician. 3. Being aggrieved, the petitioner filed another applica¬tion (O.A. No.608 of 2001) before the Tribunal, which was dis¬missed as mentioned above. 4. But he was reverted from that post on 14.9.2001 to the post of Diesel Technician. 3. Being aggrieved, the petitioner filed another applica¬tion (O.A. No.608 of 2001) before the Tribunal, which was dis¬missed as mentioned above. 4. Since in the instant writ petition, the petitioner has challenged the order of the Tribunal passed in O.A. No.608 of 2001, which was filed against the order of his reversion during pendency of his OA filed earlier (O.A. No.646 of 2000), the consideration in this writ petition by this Court is confined only to the extent whether the order of reversion of the peti¬tioner dated 14.9.2001 was proper or not. 5. It is clear from the advertisement dated 20.12.1999 that the vacancies for the years 1998-99 and 1999-2000 for the post of Engineering Assistant were to be filed up and the minimum service experience required was five years for Senior Technicians in the AIR/Doordarshan in the grade rendered after appointment thereto on a regular basis or eight years total service in the grade of Technicians and Senior Technicians rendered after ap¬pointment to these grades on a regular basis or Mast Technicians/Diesel Technicians who had put in eight years of service in the grade rendered after appointment thereto on regu¬lar basis as on 1.10.1998 in respect of the vacancies for the year 1998-99 and as on 1.1.1999 in respect of the year 1999-2000. However, it appears that the petitioner was promoted to the post of Engineering Assistant on the basis of the recommendation of the review DPC vide order dated 2.3.2001. His promotion was re-examined by another review DPC on 13.9.2001, which opined that the petitioner was not eligible in terms of STI (T) circular No.DE-4/Sr. Tech/STI (T)/99 dated 20.12.1999. 6. It is an undisputed fact that the petitioner was ap¬pointed as Diesel Engine Driver on 22.8.1983. Subsequently, he was promoted to the post of Diesel Technician 30.8.1991. There¬fore, his service on the post of Diesel Technician till 1.1.1999 was seven years and four months and thus it cannot be said that he had eight years of service experience on the post of Diesel Technician as on 1.1.1999 which was the crucial date mentioned in the advertisement. Subsequently, he was promoted to the post of Diesel Technician 30.8.1991. There¬fore, his service on the post of Diesel Technician till 1.1.1999 was seven years and four months and thus it cannot be said that he had eight years of service experience on the post of Diesel Technician as on 1.1.1999 which was the crucial date mentioned in the advertisement. The petitioner’s plea that as in the recruit¬ment rule, the crucial date for promotion with reference to which eligibility of the Government Servant in the feeder cadre should be determined was 1st July of the year in cases where ACRs are written calendar year-wise or 1st October of the year where the ACRs are written financial year-wise is of no help to him as in the procedure laid down for the Departmental Promotion Committee and model calendar for DPC and related matters relied upon by the petitioner, copy of which has been filed as Annexure-13 to the writ petition, it has been mentioned in paragraph-9 that the crucial date for determining eligibility in case of financial year-based vacancy year would fall on January 1, immediately preceeding such vacancy year and in case of calendar year-based vacancy year also, the first day of the vacancy year, i.e. Janu¬ary 1 itself would be taken as the crucial date. It has been men¬tioned that January 1, 2000 would be the crucial date for the vacancy year 2000 (calendar year) as well as vacancy year 2000-2001 (financial year). In paragraph-10 thereof, it has been mentioned that the Model DPC Calendar may take operational effect from January 1, 1999. However, in paragraph-11 also, it is men¬tioned that the crucial date for determining eligibility would, however, in keeping with the decision noted in Para-9, fall on January 1, 1999 in relation to these transitory vacancy years commencing from January 1/April 1, 1999. 7. In view of the above, the Tribunal, in paragraph-12 of the impugned order, has made observation as under : “12. Before closing, we feel impelled to make some observa¬tions on the plea taken by the applicant that he having come out successful in the examination on merit and his case having been forwarded by the Head of the Station, he should not have been denied the fruit of success. Before closing, we feel impelled to make some observa¬tions on the plea taken by the applicant that he having come out successful in the examination on merit and his case having been forwarded by the Head of the Station, he should not have been denied the fruit of success. Although there is lot of appeal in this submission, we wonder whether it would be prudent to allow such a situation to happen because such a benefit will be re¬stricted only in respect of the applicant who had taken a chance and succeeded. There may be other officers who would also have liked to try their luck had they know that in case they succeed the short-fall in the length of service would be ignored. On this point, we would like to recall what their Lordships observed in the case of Ashok Kumar Sharma & others v. Chander Shekhar & another in Review Petition (Civil) Nos.600-601 of 1993 in Civil Appeal Nos.5407-5408 of 1992, JT 1997 (4) S.C. 99. “The proposition that where applications are called for prescribing a particular date as the last date for filling the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one...” One reason for making such a rule is that if it were known that persons obtaining the qualification after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons would also have applied. Just because some of the persons had applied not¬withstanding that they have not acquired the prescribed qualifi¬cations by the prescribed date; they could not have been treated on a preferential basis. This proposition was also advocated in Rekha Chaturvedi v. University of Rajasthan and others; 1993 Suppl. (3) SCC 168.” 8. Considering the facts and circumstances of the case as discussed above, we find no illegality, impropriety or manifest error of law in the impugned order of the Tribunal. The writ petition is misconceived and therefore dismissed. No order as to costs. PRADIP MOHANTY, J. I agree. Petition dismissed.