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2023 DIGILAW 2300 (RAJ)

Union of India v. Brij Lal

2023-12-22

PUSHPENDRA SINGH BHATI, RAJENDRA PRAKASH SONI

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JUDGMENT : This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs: "It is, therefore, most humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed:- A. By an appropriate writ order or direction, the order impugned dated 03.06.2016 (Annex.3) passed by the learned Tribunal, Jodhpur in Original Application No.163/2012 may kindly be quashed and set aside and the Original Application filed by the applicant-respondent may kindly be dismissed. B. Any other appropriate writ order or direction, which the Hon'ble Court deems fit, may kindly be passed in favour of the petitioners. D. Writ petition filed by the petitioner may kindly be allowed with costs." 2. As per the pleaded facts, the applicant-respondent no.1 was initially appointed as Mazdoor in the year 1983, and lastly he was promoted as Elect. SK in the year 1999. In the year 2002, the applicant-respondent no.1 appeared in Trade Test for promotion to the post of Elect. HS-II, result whereof was published on 23.12.2002, wherein the applicant-respondent no.1 was declared successful, while some other persons were declared unsuccessful (including respondent no.2); however, the applicant-respondent no.1 was not granted promotion, instead the candidates who had been declared unsuccessful in the aforesaid Test, were promoted on the post in question w.e.f. 20.05.2003. 2.1. Thereafter, the applicant-respondent no.1 made representations to the concerned authority and the promotion of respondent no.2 was cancelled. In the year 2008, again trade test for Elect. HS II was conducted wherein the earlier unsuccessful candidates were declared successful and given promotion to the post in question with effect from 20.05.2003. Once again representations were sent by the applicant-respondent no.1. Though the concerned authority replied that promotion of respondent no.2 had been reverted however vide order dated 08.05.2010, the promotion on the post in question earlier accorded to the respondent no.2 had been restored w.e.f. 20.05.2003, whereafter another representation was made by the applicant-respondent no.1 and the same was rejected vide order dated 25.07.2011. 2.2. Subsequently, the applicant-respondent no.1 went before the Central Administrative Tribunal (in short, 'Tribunal'), Jodhpur challenging the aforementioned orders dated 08.05.2010 and 25.07.2011, and vide impugned order dated 03.06.2016 the Original Application No. 163/2012 of the respondent no.1 was allowed, with the following directions: "12. 2.2. Subsequently, the applicant-respondent no.1 went before the Central Administrative Tribunal (in short, 'Tribunal'), Jodhpur challenging the aforementioned orders dated 08.05.2010 and 25.07.2011, and vide impugned order dated 03.06.2016 the Original Application No. 163/2012 of the respondent no.1 was allowed, with the following directions: "12. In the light of the above discussion we hold that Annexures-A/1 and A/2 qua respondent No.4 have to be declared illegal and are to be quashed and set aside to the extend of depriving the promotion and seniority to the applicant. We do so. The official respondents are directed to consider the case of the applicant for promotion to the post of Elect. HS II w.e.f. 20.05.2003 as per then prevailing pay scale with all consequential benefits....." Thus, the present petition has been preferred claiming the afore-quoted reliefs. 3. Learned counsel for the petitioners-Union of India and others, submitted that the applicant-respondent no.1 being junior to the respondent no.2 could not have claimed promotion along with him, as promotions had been made while adhering to the seniority roll, reservation roster and relaxation in the condition of passing of trade test, and accordingly, the respondent no.2 had been promoted as per communication dated 20.05.2003 issued by the Ministry of Defence. 3.1. It was further submitted that as per the seniority list, applicant-respondent no.1 fell below the respondent no.2 and thus had no claim even though he passed the trade test; respondent no.2 had been promoted on the post in question as per the policy in vogue, more particularly, in view of a common seniority so prepared whereby senior-most employees were granted promotions irrespective of whether the said persons passed the trade test or not. 3.2. It was also submitted that in pursuance of the letter dated 20.05.2003 of the Ministry of Defence, 13 persons were considered for promotion to the post in question as per seniority roll and reservation roster under relaxation of the condition i.e. Trade Test etc. as one time measure vide letter dated 07.02.2005, whereafter the said policy was amended and clarification was given that individuals who were promoted by way of passing Trade Test of HS-I category between 01.01.1996 to 19.05.2003 would be En Block Senior to those who got promotion as a result of restructuring of cadre in relaxation of the condition of passing the trade test, in accordance to the same the respondent no.2 had been reverted. 3.3. 3.3. In support of such submissions, learned counsel relied upon the judgment rendered by a Division Bench of this Hon'ble Court in the case of Union of India & Ors. v. Gopal Singh & Ors. (D.B. Civil Writ Petition No. 2020/2014), decided on 23.02.2017. 4. On the other hand, learned counsel for the respondent no.1 while opposing the submissions made on behalf of the petitioners, submitted that the respondent no.1 was initially appointed as mazdoor and thereafter promoted to the post of Mate Elect SK; a trade test for promotion to the post of Elect. HS II was conducted and in the 2002, respondent no.1 was declared successful, however instead of granting promotion to the respondent no.1 other candidates who had failed in the said test were promoted. 4.1. It was further submitted that the candidates who had earlier been declared unsuccessful in the trade test conducted in the year 2002, and who had passed the trade test in 2008, ought not have been given promotion prior to the respondent no.1, as he had already passed the said test in 2002 itself. Therefore, as per learned counsel, the impugned order passed by the learned Tribunal is justified in law. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgment cited at the Bar. 6. This Court observes that the respondent no.1 passed the trade test for promotion to the post in question in the year 2002, however, instead of promoting the respondent no.1, other ineligible candidates (including respondent no.2) were promoted, despite the fact that the said candidates passed the trade test taken in the year 2008, which the respondent no.1 passed the same in the year 2002 itself, resulting in filing of aforesaid application before the learned Tribunal by the respondent no.1 and the same was allowed. 7. At this juncture, this Court considered it appropriate to refer to the judgment rendered by a Division Bench of this Hon'ble Court in the case of Union of India & Ors. v. Samander Singh & Ors. (D.B. Civil Writ Petition No.8877/2011, decided on 06.01.2012), as relied by the learned Tribunal; relevant portion whereof reads as under: "It is not in dispute that respondent No.1 has successfully passed the trade test 2002. v. Samander Singh & Ors. (D.B. Civil Writ Petition No.8877/2011, decided on 06.01.2012), as relied by the learned Tribunal; relevant portion whereof reads as under: "It is not in dispute that respondent No.1 has successfully passed the trade test 2002. It that is so, then he is entitled to be considered for the promotion and this right of the respondent No.1 cannot be taken away due to making of any new policy, which resulted in introducing some changes in the cadre. If the sole objective for conducting the test was to enable the candidate to become eligible for consideration to promotion, then it has to be brought to its logical end within the framework of the scheme, which governs the case of promotion of the employees so far as such eligible candidates are concerned....." 8. This Court further observes that it is not in dispute that the respondent no.1 had passed the trade test for promotion to the post in question in the year 2002 and thus promoting persons from a retrospective effect who had not even passed the said test in the relevant year, on the basis of relaxation of the condition of restructuring policy, on count of a common seniority list so prepared, whereby respondent no.1 fell below the respondent no.2 in seniority, and therefore passing of the trade test would be of little consequence for the sake of promotion. 8.1. It is observed that the above mentioned action of the petitioners would render the very idea of taking a trade test for the purpose of promotion of persons on the post in question as futile, not only that but conducting the said test and then not granting promotion on the basis of the same, is not justified in law. 9. This Court also observes that the judgment cited on behalf of the petitioners does not render any assistance to their case. 10. In view of the above, this Court finds that the learned Tribunal has passed the impugned order after taking into due consideration the overall facts and circumstances of the case and duly appreciating the material placed on record before it as also the afore-quoted precedent law, and therefore, the said well reasoned and speaking order does not call for any interference by this Court in the present petition. 11. 11. Thus, in light of the aforesaid observations as well as in view of the afore-quoted precedent law and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition. 12. Consequently, the present petition is dismissed, while upholding the impugned order dated 03.06.2016 passed by the learned Tribunal. All pending applications stand disposed of.