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2013 DIGILAW 656 (JK)

Shahnawaz Rashid v. Union Of India

2013-11-12

Hasnain Massodi, M.M.Kumar

body2013
1. The instant petition has been preferred by the original-applicant by invoking Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir and the prayer made is for quashing order dated 27.08.2012 rendered by Central Administrative Tribunal, Chandigarh (Circuit Bench, Jammu) (for brevity, the Tribunal) while dismissing Original Application No.1331-JK-2011.The petitioner-applicant had challenged before the Tribunal Memo No.E-205/TDM-UDR/29 dated 22.09.2011 withdrawing his promotion order issued on 30.08.2011. A direction was also sought from the Tribunal to restore the aforesaid order and allow the petitioner-applicant to perform his duty on the promoted post of Telecom Mechanic with all consequential benefits. 2. Fact in brief may first be set out. The petitioner-applicant was appointed as a Regular Mazdoor on 11.03.2010 on compassionate grounds because his father was killed by militants on 13.07.1994 while serving as SDE, Anantnag (Department of Telecommunication, Kashmir). The aforesaid department has been later rechristened and is now known as BSNL. On 07.10.2010 respondent No.2 issued an advertisement for filling up of 07 posts of Telecom Mechanic (TM) by way of Limited Departmental Competitive Examination. The last date for submission of applications was 20.11.2010 and the examination was to be held on 23.01.2011. The petitioner-applicant succeeded in the examination and consequently was appointed after successful completion of induction training as Phone Mechanic on 30.08.2011. On 09.09.2011 order of promotion passed in favour of the petitioner-applicant was kept in abeyance, which was eventually cancelled on 22.09.2011. The petitioner-applicant then approached the Tribunal for quashing the order dated 22.09.2011 and for restoration of his promotion order dated 30.08.2011 with all consequential benefits. 3. The Tribunal after examining the pleadings and hearing arguments, dismissed the original application and concluded that merely because the petitioner-applicant had worked for one month on the promoted post would not arm him with any right nor any principles of natural justice were required to follow because cancellation order was a foregone conclusion. The final outcome was to be the same as it existed before following such principles. In that regard Tribunal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in Union of India v. Bikash Kuanar, 2006 AIR SCW 5436. The Tribunal has further held that if there is a mistake committed by the respondent-department then such error can always be rectified by departmental authorities and has thus dismissed the original application. In that regard Tribunal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in Union of India v. Bikash Kuanar, 2006 AIR SCW 5436. The Tribunal has further held that if there is a mistake committed by the respondent-department then such error can always be rectified by departmental authorities and has thus dismissed the original application. Feeling aggrieved, the petitioner-applicant has approached this Court by filing the instant petition. 4. Mr. Abhinav Sharma, learned counsel for the petitioner-applicant has drawn our attention to the averments made in para 17 of the original application where it has been pleaded that the petitioner-applicant was singled out for hostile treatment because two other similarly situated persons were promoted as Telecom Mechanic (TM) on 05.10.2011. It is appropriate to mention that a cutoff date fixed by the respondent is 01.07.2008. The dates of appointment of S/Sh. Tameem Ahmad Bhat and Firdous Rehman as per appointment order is 08.07.2008. They were also promoted as Telecom Mechanic and their orders of promotions were never cancelled. A copy of the order has been placed on record of the Tribunal. In the written statement filed on behalf of respondent Nos. 1 to 6 before the Tribunal stand taken in the corresponding para 17 is that the contents of para 17 of the original application were admitted. However, the promotion order of the applicant alone was cancelled for the reasons already explained in the preceding paras. A perusal of the averments made in the preceding paras would show that since the appointment of the petitioner-applicant as regular mazdoor was made on compassionate ground, he was not eligible for promotion to the cadre of Telecom Mechanic as per the guidelines of the Recruitment Rules of 2002. The Limited Competitive Examination for promotion to the cadre of Telecom Mechanic was held on 23.01.2011 in respect of the recruitment year 2008. Accordingly, the vacancies for the recruitment year 2008 were to be filled up keeping the cutoff date as 01.07.2008. The petitioner-applicant filed his rejoinder and the aforesaid stand of the respondents has been controverted. A reference has been made to the Recruitment Rules of Telecom Mechanic, 2002 issued vide letter No.250-74/2001 Pers-III dated 20.02.2002 which are applicable to the case in hand. The petitioner-applicant filed his rejoinder and the aforesaid stand of the respondents has been controverted. A reference has been made to the Recruitment Rules of Telecom Mechanic, 2002 issued vide letter No.250-74/2001 Pers-III dated 20.02.2002 which are applicable to the case in hand. The same has been reproduced in para-4, which is as under- "B) : Through Limited Departmental Competitive Examination (1) _____________________ (2) _____________________ (3) _____________________ (4) RMs and Casual Mazdoors working in SSA units possessing 10th standard qualification and have been granted temporary status by the department." It was also stated that the petitioner-applicant had successfully undergone eight weeks induction training course, which he completed by securing 853 marks out of 1000. It was after qualifying the induction training course that he was appointed on 30.08.2011. 5. Mr. Ravinder Gupta, learned counsel for the respondents has argued that the petitioner-applicant did not implead S/Sh. Tameem Ahmed Bhat and Firdous Rehrnan as respondents. Mr. Gupta on merit has argued that the recruitment year was of 2008 and cutoff date was 01.07.2008. The petitioner-applicant was appointed as a regular Mazdoor in 2010 and therefore would not be eligible. 6. Having heard learned counsel for the parties at a considerable length and perusing the record with their able assistance, we find that the excuse of lacking eligibility has remained unsubstantiated. The order dated 22.09.2011 which was subject matter of challenge before the Tribunal makes an interesting reading and the same is set out below in extenso:- "Memo NO.E-205/TDM-UDR/29 Dated at Udhampur the 22-09-2011 OFFICE ORDER As per AGM (Rectt.) O/o CGMT Jammu Letter No.862-14/2009/SRT/72 dated 13.09.2011, the result in r/o of Mr. Shahnawaz Rashid R/M of Limited Departmental Competitive Examination for promotion to the cadre of Telecom Mechanic for Recruitment year 2008 held on 23.01.2011 is enclosed. This exam was conducted for recruitment year 2008 as per guidelines of recruitment rule of Telecom mechanics (TMs) of 2002 the date for reckoning the eligibility and counting of service both for competitive and qualifying examination was 1st July of recruitment year. Mr. Shahnawaz Rashid RM appointed on 11.03.2010 as RM on compassionate ground. So he was not eligible for the promotion to the cadre of Telecom Mechanic for Recruitment year 2008. In consequence to this the Promotion order vide letter No.E-523/TDM-Udr/15 dated 30.08.2011 is hereby cancelled for Sr. no.2 (Mr. Shahnawas Rashid R/M). This is issued with the approval of competent authority." 7. So he was not eligible for the promotion to the cadre of Telecom Mechanic for Recruitment year 2008. In consequence to this the Promotion order vide letter No.E-523/TDM-Udr/15 dated 30.08.2011 is hereby cancelled for Sr. no.2 (Mr. Shahnawas Rashid R/M). This is issued with the approval of competent authority." 7. A perusal of the aforesaid order shows that the examination for promotion to the cadre of Telecom Mechanic was conducted in respect of recruitment year 2008 and as per the guidelines of the recruitment Rules of Telecom Mechanic, the date of reckoning eligibility and counting of service both for competitive and qualifying examination was July 01, 2008. It was on the aforesaid premise that the petitioner-applicant was declared ineligible because he was appointed on 11.03.2010 as Regular Mazdoor on compassionate grounds. 8. As against the aforesaid facts, the petitioner- applicant has persuasively argued that two person S/Sh. Firdous Rehman and Tameen Ahmed were also selected in the same competitive examination. Their names in the reliving order dated 26.08.2011 figured at serial No.6 and 20 respectively along with the name of the petitioner-applicant, who is shown at serial No. 19. They were relieved after successful induction training course. As a consequence they were issued appointment letter on 05.10.2011 (Annexure-R). They were also appointed as regular mazdoor after 01.07.2008 i.e. 08.07.2008 like the petitioner-applicant. If sanctity of the cutoff date has not been maintained for them then the same could not have been applied to the petitioner-applicant. The name of both the officers namely S/Sh.Tameem Ahmed Bhat and Firdous Rehman figured in the promotion order dated 05.10.2011 at serial No.2 and 4 respectively. There is no answer given with regard to continuation of promotion order of S/Sh. Tameem Ahmed Bhat and Firdous Rehman. Even the Tribunal has lost sight of the aforesaid fact which has resulted in hostile discrimination against the petitioner-applicant. There is no rational object for classifying the petitioner-applicant to deal with him differently than the persons like S/Sh. Tameem Ahmed Bhat and Firdous Rehman who have been placed in the same category. Therefore, order of the Tribunal is liable to be set aside. 9. It is true that the petitioner-applicant has now been given promotion in the cadre of Telecom Mechanic for the recruitment year 2012 and has successfully passed the examination on 26.10.2013. The aforesaid information has been placed on record by Mr. Therefore, order of the Tribunal is liable to be set aside. 9. It is true that the petitioner-applicant has now been given promotion in the cadre of Telecom Mechanic for the recruitment year 2012 and has successfully passed the examination on 26.10.2013. The aforesaid information has been placed on record by Mr. Gupta, learned counsel for the respondents, which is taken on record as mark "X". However, the fact remains that for the earlier recruitment year, 2008 his claim cannot be defeated on this ground. 10. As sequel to the above discussion this petition succeeds. The order of Tribunal dated 27.08.2012 is set aside. The order dated 22.09.2011 passed by respondent withdrawing promotion of the petitioner is also quashed. Consequently promotion order dated 30.08.2011 passed by respondent is restored. The petitioner shall be entitled to all consequential benefits which shall be calculated assuming that order dated 22.09.2011 withdrawing promotion of the petitioner-applicant was never passed. 11. The writ petition stands disposed of in the above terms.