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2013 DIGILAW 916 (RAJ)

Jaswant Singh Rao v. Union of India

2013-05-07

ARUN BHANSALI, DINESH MAHESHWARI

body2013
JUDGMENT 1. - By way of this writ petition, the petitioner-applicant has questioned the order dated 31.07.2000 as passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (the Tribunal) in Original Application (OA) No.182/1998 whereby the Tribunal has dismissed the OA filed by him on his grievance against denial of the correct date of promotion. 2. The OA leading to this writ petition was filed by the petitioner-applicant seeking the following reliefs:- "(i) That the impugned order dated 24.7.97, (A-1) changing the date of regular promotion of applicant to the post of Head Typist from 18.10.94 to 24.7.97, and order dated 22.10.97 Annexure A/2, rejecting the claim of applicant for due fixation of his pay from 18.10.94 on the post of Head typist, may be declared illegal and the same may be quashed and the applicant allowed all consequential benefits including payment of arrears of difference of pay along with interest at market rate. (ii) That any other direction, or orders may be passed in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case in the interest of justice. (iii) That the cost of this application may be awarded." 3. The reliefs aforesaid were claimed by the petitioner-applicant while stating the facts that he was initially appointed as Power Khalasi at Rewari; and was accorded regular promotions as Typist and Senior Typist. Then, he was promoted to the post of Head Typist with effect from 14.01.1994 against the work-charged post initially for a period of six months that was extended by three months. The applicant was, then, promoted on regular basis to the post of Head Typist under the order dated 18.10.1994 and was transferred to Lalgarh Workshop. He submitted the option for fixation of his pay under the communication dated 14.11.1994. However, by a letter dated 24.08.1995, the Divisional Superintending Engineer (Co-ordination), Northern Railway, Bikaner Division expressed his inability to relieve the applicant on account of excessive work load in the Engineering Branch and hence, the applicant continued to serve under him. 4. The applicant further stated that by another order dated 12.09.1995, he was ordered to be transferred to the Operating Branch on his own request but was still not relieved and was retained in the Engineering Branch for administrative and service exigencies. 4. The applicant further stated that by another order dated 12.09.1995, he was ordered to be transferred to the Operating Branch on his own request but was still not relieved and was retained in the Engineering Branch for administrative and service exigencies. The applicant further stated that his due fixation was not carried out as per the option submitted by him on the post of Head Typist despite repeated representations and despite interdepartmental communications in that regard. The applicant stated the grievance that the Divisional Personnel Officer, Northern Railway, Bikaner Division issued a peculiar order on 24.07.1997 whereby he was purportedly promoted and posted in the Engineering Branch. According to the applicant, he had already been promoted under the order dated 18.10.1994 without any rider and there was no occasion to change the date of his promotion. The applicant protested against the order dated 24.07.1997 but his claim was rejected under the communication dated 22.10.1997. 5. The applicant asserted before the Tribunal that he had been given promotion to the post of Head Typist on regular basis without any rider from 18.10.1994 and he was entitled to due pay fixation as per the option given; and that changing the date of regular promotion results in evil consequences and such an order was rather punitive in nature and was ex facie illegal. The applicant contended that even after passing of his promotion order as Head Typist and transfer to Lalgarh Workshop on 18.10.1994, he was not relieved by the department on account of work exigencies; and only after his repeated representations that his promotion was given effect to but the promotion was illegally made effective from a subsequent date i.e., 24.07.1997. The applicant referred to the fact that in the case of a similarly situated employee Shri Dharmpal, the promotion was treated to be effective from the date of issuance of promotion order i.e., 17.09.1997 and not from the date of his actual release i.e., 06.04.1999. 6. The stand of the respondents while contesting the OA had been that the applicant did not join Lalgarh Workshop on being promoted; that he prayed for mutual transfer with one Shri Prabhu Dayal of operating Branch and accordingly, he was transferred to Operating Branch on 12.09.1995 but he did not join on that post either. 6. The stand of the respondents while contesting the OA had been that the applicant did not join Lalgarh Workshop on being promoted; that he prayed for mutual transfer with one Shri Prabhu Dayal of operating Branch and accordingly, he was transferred to Operating Branch on 12.09.1995 but he did not join on that post either. Subsequently, one post was transferred from operating branch to engineering branch and the applicant was promoted as Head Typist against the transferred post with effect from 25.07.1997 and hence, there was no illegality in the action of the respondents. 7. The Tribunal proceeded to dismiss the OA essentially on the consideration that the promotion to a regular post takes effect from the date on which the employee joins thereat. Tribunal was of the view that when the applicant had joined the regular post only on 25.07.1997, the respondents had rightly treated him as promoted to the post of Head Typist on regular basis from that date. As regards Dharmpal, the Tribunal observed that the said employee was not before it and full details of his case were not available and hence, no opinion could be expressed in his regard. The observations and considerations of the Tribunal could be noticed in the following:- "4. It is fact that the applicant continued to work as Head Typist on a work charge post till he was regularly appointed as Head Typist on 25.7.1997. Work charge post cannot be treated as permanent or regular post as such a post is created from time to time depending upon the needs of a particular work. Though the applicant had been promoted from 18.10.1994 as Head Typist on regular basis, but he could not join the regular post at Lalgarh Workshop on account of various reasons as enumerated above. As a matter of fact, promotion to a regular post takes effect from the date one joins the regular post, and the applicant had joined the regular post only on 25.7.1997. Thus, the respondents have rightly treated the applicant as promoted to the post of Head Typist on regular basis w.e.f. 25.7.1997. The applicant has cited the case of one Dharampal, who was given seniority in the promoted post from the date of the promotion order and not from the date of joining. Thus, the respondents have rightly treated the applicant as promoted to the post of Head Typist on regular basis w.e.f. 25.7.1997. The applicant has cited the case of one Dharampal, who was given seniority in the promoted post from the date of the promotion order and not from the date of joining. Since Dharampal is not before us and full details of his case are not available on record, we would not like to express any opinion on the case of Dharampal." 8. Questioning the order aforesaid, it has been contended on behalf of the applicant that the Tribunal has not considered the relevant factual aspect of the matter and has failed to apply the relevant principles of law to the present case. It is submitted that the principle that promotion would always be from the date of joining cannot be applied in a blanket form in the present matter because the applicant was not allowed to join on the promoted post for administrative exigencies and for paucity of staff; and was retained at a particular branch by the respondents. It is submitted that there was no fault on the part of the applicant where for his date of promotion was to be changed from 18.10.1994 to 24.07.1997. The respondents, on the other hand, have supported the order impugned. 9. After having heard the learned counsel for the parties and having perused the material placed on record, we have formed an opinion that the case of the respective parties as involved in Original Application No.182/1998 deserves re-consideration by the Tribunal and hence, the matter deserves to be restored to the file of the Tribunal. 10. In our view, the case of the applicant with reference to the fact that he was indeed promoted on regular basis on 18.10.1994 but was not allowed to join at the promotional post because of the administrative exigencies of the respondents appears not to have acquired due attention during the course of adjudication. Moreover, the reference by the applicant of his several representations for correct fixation of pay in accordance with promotion and departmental exchanges including the communication dated 22.01.1996 from the respondent No.3 to the respondent No.2 have also not gone into consideration in the order impugned. Moreover, the reference by the applicant of his several representations for correct fixation of pay in accordance with promotion and departmental exchanges including the communication dated 22.01.1996 from the respondent No.3 to the respondent No.2 have also not gone into consideration in the order impugned. Even the suggestion about treatment of a similarly situated employee Shri Dharmpal was also not considered by the Tribunal for want of the said person before it and the details of his case. 11. With respect, we are of the view that the matter required due consideration of all the relevant factual and legal aspects and the claim of the applicant could not have been rejected merely with an abstract reference to the principle about promotion taking effect from the date of joining. All the relevant factual aspects, particularly the reasons where for the applicant though promoted from 18.10.1994 but was not relieved, in our view, require a deeper scrutiny. The inter-departmental communications, even if not decisive of the matter, in the given set of peculiar circumstances, could not have been ignored altogether. Similarly, when the applicant referred to a different treatment to a similarly circumstanced employee with reference to relevant dates, the respondents could have been called upon to clarify their position in that regard. 12. In our view, the grievance of the applicant-petitioner cannot be considered as wholly unfounded or baseless and requires consideration with reference to all the relevant and material factual aspects and surrounding circumstances. 13. We would hasten to observe that the observations herein are, of course, not our final expression on the merits of the case, which is left open for consideration and adjudication by the Tribunal. We have only indicated that the matter requires re-consideration for all the relevant aspects having not gone into consideration while passing the order impugned. The parties are, otherwise, left free to make their submissions before the Tribunal and obviously, the Tribunal would be considering the matter afresh in accordance with law. 14. Accordingly and in view of the above, the writ petition is partly allowed. The impugned order dated 31.07.2000 is set aside. Original Application No.182/1998 shall stand restored for reconsideration of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. The parties may appear, in the first place, before the Tribunal on 28.05.2013 for fixation of the date of convenience of the Tribunal for hearing of the matter. The impugned order dated 31.07.2000 is set aside. Original Application No.182/1998 shall stand restored for reconsideration of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. The parties may appear, in the first place, before the Tribunal on 28.05.2013 for fixation of the date of convenience of the Tribunal for hearing of the matter. The matter being an old one, it would obviously be desirable that the same is taken up for reconsideration in priority. No costs.Petition Partly Allowed. *******