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2008 DIGILAW 474 (CAL)

Baldev Raj v. Union of India

2008-05-05

ASHIM KUMAR BANERJEE, TAPASH MOOKHERJEE

body2008
JUDGMENT : ASHIM KUMAR BANERJEE, J. The Railway Administration conducted a single promotional process in 2004 by clubbing together all existing vacancies from 2000. Such selection process was contrary to Rule 2.4.1 which mandates the Railway Authority to consider vacancies in respect of each year and prepare a separate list for each year vacancy to find out the suitable candidates to come within the zone of consideration in that particular year, such selection process was challenged by one Birdly Ford Passah in his writ petition being W.P. 13966 (W)/2004. The appellant herein being unsuccessful in the said selection process also filed a separate writ petition being W.P. 14585 (W)/2004. Both the writ petitions were heard one after the other. 2. In the case of Birdly Ford it was argued that since, he was entitled to be considered for 2000 vacancy the confidential report available prior thereto should have been taken into consideration and if those were taken into consideration he would certainly come out successfully in the said promotional process. The Railway Authority on the other hand contended before His Lordship that since Birdly Ford, participated in the selection process such selection process could not be assailed at his instance after being unsuccessful in the said process. 3. The learned Single Judge by His well-reasoned judgment came to a finding that the promotional process adopted by the Railway Authority was defective, unscientific, unsustainable and was liable to be quashed. Despite observing as such, His Lordship did not quash the impugned selection process as all the beneficiaries of the impugned process being the promotees were not made parties in the said writ petition. His Lordship directed the Railway Administration to consider Birdly Ford following the Rule 2.4.1 in the available eighteen vacant posts coupled with a direction in case he comes out successfully he must be given normal benefit from the day when he was entitled to be considered for promotion. Neither Birdly Ford nor the Railway Administration preferred any appeal, and the said judgment attained finality. 4. In the, present case the learned Single Judge held that the appellant being similarly circumstanced his writ petition should also be governed by the judgement in the case of Birdly Ford. Neither Birdly Ford nor the Railway Administration preferred any appeal, and the said judgment attained finality. 4. In the, present case the learned Single Judge held that the appellant being similarly circumstanced his writ petition should also be governed by the judgement in the case of Birdly Ford. His Lordship gave the following directions; “Accordingly, I direct that without disturbing, the impugned selection process, the concerned respondent will consider the probability of the petitioner's selection for any of those 18 posts by following the procedure as contained in Rule 2.4.1, as referred to above and if it is found that the petitioner would have been selected for such promotion to any of those 18 posts by applying the said procedure, then the petitioner should be given promotion in the next available post in the rank of DIG grade with notional fixation of his pay and seniority with effect from the date on which the petitioner would have been selected for such post by following the said Rule 2.4.7., as aforesaid: I make it clear that the entire exercise in this regard should be completed by the concerned respondent positively within 15th January 2006. Consequently the impugned order of transfer need not be interfered with. This writ petition thus stands allowed.” 5. Being aggrieved and dissatisfied with the judgment and order of the learned Single Judge the appellant preferred the instant appeal. 6. Mr. Molay Basu, learned senior counsel, appearing in support of the appeal, contends that the appellant was not similarly circumstanced as he was a Scheduled Caste candidate and he was to be separately treated in terms of Rule 2.3.2 where special consideration was provided for the Scheduled Caste and Scheduled Tribe candidates. Mr. Basu has, however, admitted that this factor was not drawn attention of learned Single Judge at the time of final disposal of the writ petition. 7. Mr. Basu further contends that some of the promotees in the present case were made parties. Hence His Lordship should have considered such distinctive factor in the instant case. Mr. Basu also contends that since the appellant was officiating in the promotional post since 2002 his experience in the officiating post should also have been considered by the Departmental Promotional Committee. 8. Appearing for the Administration Mr. Uday Shankar Bhattacharyya, learned advocate, contends that the appellant being unsuccessfull in the selection process was not entitled to challenge the same. Mr. Basu also contends that since the appellant was officiating in the promotional post since 2002 his experience in the officiating post should also have been considered by the Departmental Promotional Committee. 8. Appearing for the Administration Mr. Uday Shankar Bhattacharyya, learned advocate, contends that the appellant being unsuccessfull in the selection process was not entitled to challenge the same. 9. Mr. Bhattacharyya further contends that no special benefit for being a Scheduled Caste candidate was claimed by the appellant as would appear from a plain reading of the prayers made in the writ petition. 10. Mr. Bhattacharyya further contends that the appellant was given the feeder post in 1999. To become eligible for the promotional post he should have completed five years working in the feeder post. Such period of five years was completed by the appellant in 2004. Hence, he was not entitled to be considered for 2000 vacancies. 11. Mr. Bhattacharyya further contends that after the judgment and order of the learned Single Judge the appellant was considered and he was communicated the result of such consideration. Since he could not come within the zone of consideration for any vacancy prior to 2004 he could not be considered in such vacancies. For the 2004 vacancy he was found not suitable for the promotional post and as such he was not given any promotion. 12. Mr. Bhattacharyya further contends that in terms of the direction of the learned Single Judge the Railway Administration considered him for promotion and rejected his claim. The reasoned order was communicated to him vide letter dated January 16, 2006 which was received by him on January 20, 2006. Since the appellant preferred the appeal on February 14, 2006 after receipt of the order of rejection this appeal is not maintainable without a challenge being thrown to the reasoned order. 13. We have considered the rival contention of the parties. It appears to us that the Railway Administration in the instant case did not file any affidavit-in-opposition before His Lordship although Mr. Bhattacharyya claims that he is in possession of copy of the affirmed affidavit-in-opposition. We cannot take note of such copy of the affidavit at this belated stage that too without being backed up by any formal application. 14. It appears to us that the Railway Administration in the instant case did not file any affidavit-in-opposition before His Lordship although Mr. Bhattacharyya claims that he is in possession of copy of the affirmed affidavit-in-opposition. We cannot take note of such copy of the affidavit at this belated stage that too without being backed up by any formal application. 14. The appellant did not challenge the parent judgment where His Lordship rejected the specific plea of the Birdly Ford that officiating experience should have been taken into consideration. Hence we do not feel inclined to accept Mr. Basu's contention on that score and as such the same is rejected. 15. Giving credence to the submission made by Mr. Bhattacharyya on the factual score we, however, feel that the appellant should have been considered for 2004 vacancies by taking recourse to Rule 2.3.2 wherein special provisions have been made for the Scheduled Caste candidates. We find from writ petition that specific averment was made by the appellant to the effect, that he belonged to Scheduled Caste community and was entitled to get all facilities thereto. Hence the appellant must get the benefit of Rule 2.3.2 if he is otherwise eligible for consideration of promotion. 16. We, therefore, modify the order of the learned Single judge to that extent. The appellant be considered for 2004 vacancy applying Rule 2.3.2. 17. Mr. Bhattacharyya submits that all eighteen vacant posts observed by the learned Single Judge are now filled up. 18. If the DPC considering Rule 2.3.2 finds the appellant for 2004 vacancies he must be absorbed in a future vacancy or any existing vacancy by giving notional fixation retrospectively from 2004 in terms of the order of the learned Single Judge. 19. The entire process must be completed by the DPC within a period of six weeks from the date of communication of this order. 20. The appeal is disposed of accordingly without any order as to costs. 21. Prayer for stay is considered and rejected. Urgent Xerox certified copy of this order, if applied for may be given to the parties. TAPAS KUMAR GIRI, J.:— I agree.