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2009 DIGILAW 400 (CAL)

UNION OF INDIA v. Ranjit Kumar Sarkar

2009-05-20

Amit Talukdar, Tapas Kumar Giri

body2009
JUDGMENT: A. Talukdar, J. 1. INITIALLY upon hearing the learned Counsel for the Railway Administration, we called upon the learned Counsel for the respondent to file his affidavit and fixed the matter for hearing. However, we were not inclined to grant any interim order on the basis of our perception on the entire materials that were placed before us in the light of the submissions made at the Bar. 2. BUT since the learned Counsel for the Railways insisted for an interim order which we did not wish to pass, he felt that the purpose of this application would be fruitless. In such trajectory, we have chosen to hear him afresh as also the learned Counsel for the respondent. The Calcutta Bench of the Central Administration Tribunal in O.A. No. 502 of 2066 on 18.7.2008 passed the following order: "In view of our finding made above we direct that a review DPC be convened to consider the case of the applicant for promotion to SAG grade ignoring the 'average' entry made in the year 2002. In lieu thereof the DPC may consider his ACR for a year down beyond the 5 years period. If the applicant is declared fit, he shall be promoted with effect from the date his junior got promotion to SAG level with consequential monetary and service benefits. Such consideration be made within 3 months from the date of communication of this order." 3. THIS has been made the subject-matter of judicial review at the instance of the Railway authorities before us. 4. IN support of his submissions the learned Counsel for the Railways has referred to the decisions in the case of KM. Mishra vs. Central Bank of INdia and Ors., reported in 2008(2) SCC (LandS) 833 and in the case of M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors., reported in 2008(2) SCC 119 , to illustrate his point that the decision of the Selection Committee cannot be questioned by the Court. After having carefully heard the submissions made at the Bar and on considering the said two decisions placed before us, viz. K. M. Mishra vs. Central Bank of India (supra) and M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors. (supra), we are prima facie of the opinion that this application is liable to be dismissed in limine for the following reasons: 1. K. M. Mishra vs. Central Bank of India (supra) and M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors. (supra), we are prima facie of the opinion that this application is liable to be dismissed in limine for the following reasons: 1. The order which we have quoted hereinabove simply gives direction to review the DPC. The order is not final and the authorities concerned will have the scope to examine the same in the light of the performance of the respondent. 2. The decisions in K.M. Mishra vs. Central Bank of India and Ors. (supra) and M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors. (supra) referred to on behalf of the petitioners cannot be said to be applicable in the fact situation of the present case as there is clear arbitrary and manifest bias exhibited by the authorities on account of the fact that the respondent has approached the Court, he was graded 'average'. This can be found from paragraph 27 of the finding of the learned Tribunal as well as paragraph 14 thereof. 3. In our view the said two decisions being KM. Mishra vs. Central Bank of India and Ors., (supra) and M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors. (supra) relied upon by the Railway authorities are quite distinguishable from the factual matrix of the present case in view of the fact that simply as the respondent has approached the Court he was sought to be victimised in the said fashion and rightly the learned Tribunal passed the direction which we have quoted hereinabove, 5. WE are of the considered view, in exercise of our power of Judicial Review, we cannot sit in judgment over the said finding of the learned Tribunal. Accordingly, finding no merit in this application, the same is dismissed. However, there will be no order as to costs.