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2010 DIGILAW 429 (RAJ)

Union of India v. G. R. Bhaskar Another

2010-02-22

A.M.KAPADIA, GOPAL KRISHAN VYAS

body2010
JUDGMENT 1. - In this writ petition, petitioners Union of India, through the Secretary, Ministry of Communication, Department of Telecom and Chief General Manager, Telecom, Rajasthan Circle have challenged impugned order dated 23.02.1999 passed by the Central Administrative Tribunal, Jodhpur by which the learned Tribunal passed the following order: "The OA is accordingly allowed with the direction to the respondents that the DPC recommendations permitting the applicant to cross the EB with effect from June, 1984 be implemented and the applicant be allowed refixation of his pay in the new pay scales as recommended by the 4th Pay Commission after allowing increments for the years 1984 and 1985 and be further allowed normal increments as and when due till 29.3.1988 and thereafter, as per the penalty imposed, withhold the increment which fell due after 39.3.1988." 2. The main contention of learned counsel for the petitioners is that for the purpose of relief of granting "cross Efficiency Bar", earlier a petition was filed by the respondent-applicant and the same was registered as OA No.204/1989 and the same was dismissed by the Tribunal on 01.11.1991, in which, it was claimed by the respondent-applicant that he was due to cross the Efficiency Bar on 08.06.1982; but, it has not been granted illegally by the department. The learned Tribunal, however, after considering all aspects of the matter, dismissed the said OA vide judgment dated 01.11.1991. Again, in the year 1997, OA No.133/1997 was filed, in which, impugned judgment dated 23..02.1999 was delivered and the OA filed by the respondent-applicant has been allowed by the Tribunal in which it has been ordered that the DPC recommendation permitting the applicant to cross the EB with effect from June, 1984 be implemented and the applicant be allowed refixation of his pay in the new pay scales as recommended by the 4th Pay Commission after allowing increments for the years 1984 and 1985. Learned counsel for the petitioners vehemently argued that while adjudicating the subsequent OA No.133/1997 in which the impugned judgment has been delivered on 23.02.1999, adjudication made in the earlier OA vide judgment dated 01.11.1991 was not even considered. Further, it is submitted that the relevant provisions of law and office memorandums have not been considered at the time of deciding the subsequent OA in which judgment impugned has been passed, therefore, the principle of res judicata applies. Thus the writ petition deserves to be allowed. Further, it is submitted that the relevant provisions of law and office memorandums have not been considered at the time of deciding the subsequent OA in which judgment impugned has been passed, therefore, the principle of res judicata applies. Thus the writ petition deserves to be allowed. 3. Per contra, learned counsel appearing on behalf of respondent-applicant submitted that the order impugned in this writ petition is perfectly in accordance with law, therefore, no interference is called for and the writ petition deserves to be dismissed. 4. We have perused the impugned judgment. 5. Upon perusal of the impugned judgment, it is revealed that in the impugned judgment there is even no mention of judgment dated 01.11.1991 delivered is on record as Annex.-A/1, in which, the same relief was sought by the respondent-applicant, of course, from 1982 and subsequent OA No.133/1997 from the year 1984; but, the fact remains that the material which was placed on record in the earlier OA was considered for the purpose of grant of crossing the Efficiency Bar; and, upon that, earlier OA was dismissed vide judgment dated 01.11.1991. In this view of the matter, while adjudicating the subsequent OA No.133/1997, for the purpose of issuing directions to the respondents to release the benefit of crossing the EB in the pre-revised scale with effect from 01.01.1986, the earlier judgment was to be considered and OMs issued by the department for the purpose of granting the benefit of crossing EB were required to be taken into consideration. But, upon perusal of the impugned judgment, it is revealed that neither the earlier judgment in the case of the respondent-applicant delivered by the Tribunal on 01.11.1991 in OA No.204/1989 was considered nor the OMs were taken into consideration properly while adjudicating the matter. Therefore, in the interest of justice, the order impugned dated 23.02.1999 deserves to be quashed. 6. Accordingly, this writ petition is disposed of. Order impugned dated 23.02.1999 is hereby quashed and matter is remitted to the Central Administrative Tribunal, Jodhpur to decide the same afresh after taking into consideration the earlier adjudication made by the Tribunal vide order dated 01.11.1991 passed in OA No.204/1989 filed by the respondent-applicant, so also, the office memorandums issued and brought to the notice by the department from time to time for the said purpose. It is expected from the Tribunal that the matter will be decided afresh within a period of three months from the date of receipt of certified copy of this order.Writ Petition Disposed of. *******