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2012 DIGILAW 138 (MAD)

A. Veeraraghavan v. S. Thakir

2012-01-09

N.KIRUBAKARAN, RAO

body2012
Judgment :- (ELIPE DHARMA RAO) 1. This writ petition is directed against the order, dated 27.08.2010, passed by the Central Administrative Tribunal, in O.A.No.90 of 2010, wherein the original application, which was filed by the petitioner herein seeking a direction to the respondents therein to give promotion and fix pay on par with his junior, Mr.Mohamed Baputi and Mr.Paulraj, in the cadre of Chargeman B Junior Engineer Grade I, Section Engineer and in the cadre of Senior Section Engineer from 01.01.1996 to 01.11.2003 and to give him all consequential benefits and revised pensionary benefits and to pay arrears, was dismissed. 2. It is the case of the petitioner that while he was working as Mistry at S & T workshop, Southern Railway, Podanur, he was promoted as Chargeman B on officiating capacity with effect from 03.12.1993 and while officiating in the said cadre, he got regular promotion after passing the necessary examination with effect from 03.04.1995. It is also the case of the petitioner that when he made a request to the second respondent to regularize his service in the cadre of Chargeman B with effect from 03.04.1995, it was rejected as per order dated 15.04.1996, against which, the petitioner filed O.A.No.483 of 1996 before the Central Administrative Tribunal and the same was dismissed on the ground that the matter is pending before the Railway Board. It is the further case of the petitioner that since the Railway Board has not taken any action till 2000, he filed O.A.No.845 of 2001 before the Central Administrative Tribunal to get remedy and as per order dated 22.04.2002, the Tribunal directed the respondents therein to consider the case of the petitioner and to restore promotion given to him in the cadre of Chargeman B vide order dated 04.04.1995 with all consequential service and monetary benefits. 3. It is also the case of the petitioner that as the order passed by the Tribunal in O.A.No.845 of 2001 has not been implemented by the Railway Board, the petitioner filed C.A.No.75 of 2002 and during the pendency of the said application, the Railways have filed W.P.No.38989 of 2002 before the High Court and obtained interim stay of the order passed in O.A.No.845 of 2001. It is the further case of the petitioner that however, the said writ petition was dismissed, confirming the order passed by the Tribunal dated 22.04.2002 and thereafter, as the Board has not given the consequential benefits as ordered in O.A.No.845 of 2001 and in W.P.No.38989 of 2002, and not fixed the petitioners scale of pay as Rs.5500-9000 with effect from 01.01.1996 on par with his junior one Mr.Mohamed Baputty, he filed C.A.No.15 of 2008 before the Tribunal and since the order passed by the Tribunal in O.A.No.845 of 2001 has been fully complied with by the respondents therein, the contempt application filed by the petitioner was dismissed and thereafter, he made a representation on 20.02.2009 to the Chief Personnel Officer, Southern Railway and requested to give him the consequential service and monetary benefits on par with his juniors, viz., Mohamed Baputty and Mr.Paulraj and since there was no response from the respondents 1 to 4, the petitioner has filed O.A.No.90 of 2010 before the Central Administrative Tribunal. 4. The Tribunal, on consideration of the facts and circumstances of the case, dismissed the original application by holding that the petitioner having been selected under examination quota, his claim to regularize his ad-hoc services prior to such regular selection, cannot be entertained since such ad-hoc promotions made de hors the rules do not qualify for regularization. The Tribunal also held that the applicant/petitioner has sought for promotion on par which his juniors, viz., Mr.Mohamed Baputti and Mr.M.Paulraj who were not made as party respondents before the Tribunal and without hearing them, who are likely to be affected, the applicant cannot be granted any relief and moreover, the said Mohamed Baputty has joined the third respondent office during the year 1994 on regular basis, whereas the applicant/petitioner has been promoted regularly at a later date on 04.04.1995. Aggrieved by the said order, the present writ petition has been filed. 5. Heard the learned counsel for the petitioner and perused the entire materials placed on record. 6. Aggrieved by the said order, the present writ petition has been filed. 5. Heard the learned counsel for the petitioner and perused the entire materials placed on record. 6. On going through the entire materials placed on record, it is seen that the petitioner, who was working as Mistry in the year 1993, was promoted to officiate as Chargeman B on ad-hoc basis from 03.04.1995 and after appearing for the written examination and getting marks, he was selected and promoted to the post of Chargeman B on regular basis with effect from 03.04.1995 and when he was reverted as Mistry as per order dated 16.04.1996 on the ground that he was empanelled irregularly by enlargement of panel, the petitioner has approached the Central Administrative Tribunal against the order of reversion, by way of filing O.A.No.483 of 1996 and the said application was dismissed by the Tribunal stating that the matter is pending before the Railways for consideration and thereafter, when the request made by the petitioner was not considered by the Board, again he has filed O.A.No.845 of 2001 before the Tribunal. 7. It is further seen from the perusal of the records that the Tribunal, after taking into consideration the facts and circumstances of the case, set aside the order of reversion, against which, the Union of India filed W.P.No.38989 of 2002 before the High Court and a Division Bench of this Court, to which, Justice Elipe Dharma Rao is one of a Member, once again gone through the entire materials placed on record, and dismissed the writ petition, thereby confirming the order passed by the Tribunal by holding that the action of the Chief Personnel Officer in refusing to include the name of the petitioner in the panel is quite contrary to the instructions issued by the Railway Board, which is the Selection Authority and the Chief Personnel Officer should have obeyed the directions of the Selection Authority instead of raising queries that there is no provision to amend or enlarge the panel, and the same is contrary to paragraph 219 of the Railway Manual, which contemplates that the panel could be amended or enlarged after obtaining permission from the superior and hence, the action of the Chief Personnel Officer amounts to misrepresentation and insubordination. 8. 8. It is also seen from the perusal of the records that when the order of the Tribunal was not implemented, the petitioner has filed a contempt application in C.A.No.15 of 2008 and the Tribunal dismissed the said application on the ground that the respondents therein have complied with the order passed by the Tribunal and allowed the petitioner to file a fresh original application against respondents 1 to 4 for not giving him further promotion and accordingly, the petitioner filed O.A.No.90 of 2010 claiming pay fixation on par with his juniors and the consequential benefits ordered in O.A.No.845 of 2001. But the Tribunal dismissed the said original application on the flimsy ground that when the applicant/petitioner was promoted as Chargeman B on ad-hoc basis he has accepted the condition laid down in the said promotion order that ad-hoc promotion would not confer on him any right for regularization or seniority etc. and having accepted the said condition in the year 1993, now he cannot turn around and ask for regularization of the ad-hoc services, and the said ground which, in our considered opinion, is not a legal ground to reject the relief claimed by the petitioner, in view of the order passed in the earlier application filed by the petitioner in O.A.No.845 of 2001, which was confirmed by the Division Bench of this Court in W.P.No.38989 of 2002 and the Tribunal, without considering the entire order made in the earlier original application, viz., O.A.No.845 of 2001 and the order of the Division Bench made in W.P.No.38989 of 2002, rejected O.A.No.90 of 2010 filed by the petitioner. 9. In view of the above, the order passed by the Central Administrative Tribunal in O.A.No.90 of 2010 is set aside. The writ petition is allowed. However, there will be no order as to costs.