IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15309 of 2008 KRISHNA KUMAR CHAUDHARY, S/O LATE RAM SINHASAN CHAUDHARY, R/O VILLAGE-MAJHOULI, P.S. DAWATH, P.O. KOATH, DISTRICT-ROHTAS (SASARAM), AT PRESENT POSTED AS POSTAL ASSISTANT (TBOP) IN THE OFFICE OF CHIEF POSTMASTER GENERAL, BIHAR CIRCLE, PATNA. -PETITIONER Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, GOVT. OF INDIA, MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLONGY, DEPARTMENT OF POSTS, NEW DELHI-CUM-THE DIRECTOR GENERAL, DEPARTMENT OF POST, DAK BHAWAN, NEW DELHI-1. 2. ASSISTANT DIRECTOR GENERAL (D.E.), GOVT. OF INDIA, MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY, DEPARTMENT OF POST, DAK BHAWAN, SANSAD MARG, NEW DELHI-1. 3. THE CHIEF POST MASTER GENERAL, BIHAR CIRCLE, PATNA. 4. THE DIRECTOR GENERAL, POSTAL SERVICE, O/O THE C.P.M.G, BIHAR CIRCLE, PATNA. 5. THE ASSISTANT DIRECTOR, RECRUITMENT, O/O THE C.P.M.G., BIHAR CIRCLE, PATNA. -RESPONDENTS ------ For the Petitioner : M/s Chittaranjan sinha, md. Faiz Ahmad For the Union of : Mr. Rakesh Kumar Singh India 10 12.10.2009 Heard learned counsel for the petitioner and learned counsel for the respondents, representing Union of India and its Department. Learned counsel for the petitioner submits that inspite of petitioner opting for the Scheme of time bound 2 promotion introduced for the staff of Circle / Regional Office in replacement of Lower Division Clerk and Upper Division Clerk into Postal Assistant and as per terms and conditions of Time Bound One Promotion Scheme, as pleaded by the respondents in paragraph 5 of the counter affidavit, the petitioner could not have been held ineligible to appear in P.S. group-B examination 2003 on the basis of D.G. letter no. 9- 70/97-SPG dated 20th May, 1999 and the decision contained in the said letter dated 20th May, 1999, which has been annexed as Annexure-7 to this application, according to the submission of the learned counsel for the petitioner, was itself under challenge before the Central Administrative Tribunal, Patna Bench. The grievance raised on behalf of the petitioner is that instead of deciding upon the legality and propriety of decision contained in Annexure-7 dated 20th May, 1999, the Tribunal has gone upon a different aspect and has rejected petitioner’s case by holding that even if the Scheme applied to the petitioner as a TBOP employee, he could not have been eligible for not having completed five years’ service as LSG. On behalf of the petitioner it was pointed out that paragraph 4 (a) of the Tribunal’s Judgment and order 3 under challenge, refers to a clarification dated 28th July, 2003 and parts of that clarification, extracted in the order, shows that as per clarification the officials promoted under TBOP/BCR Schemes are eligible to take the examination on completion of five years service in LSG rendered from the date the official is notionally promoted to LSG or higher grade so as to be eligible for appearing in the Departmental competitive examination for promotion to P.S. Group-B grade. It was submitted on behalf of the petitioner that he is in TBOP Scheme for much more than five years and, therefore, as per clarification petitioner was eligible to take the examination and, in fact, he is being denied promotion only because of the decision contained in Annexure-7 dated 20th May, 1999. Paragraph 10 of the impugned order of Central Administrative Tribunal shows that the decision has been rendered without answering the question that petitioner’s exclusion is discriminatory. On hearing the parties, we are of the view that some relevant facts need to be noticed by the Tribunal before giving a finding that the petitioner had not completed five 4 years service as LSG. Finding is also required on the issue whether as per clarification, mentioned in paragraph 4(a) of the impugned order, the eligibility to take the examination was acquired on completion of five years of promotion under TBOP/BCR Scheme or not or whether entering in promotion in the LSG was a further requirement. The Tribunal is also required to, thereafter, consider the submission whether the decision challenged by the petitioner dated 20th May, 1999 (Annexure-7) is the only stumbling block in the way of petitioner’s claim that he is entitled to take the promotional examination and, if so, whether the decision contained in Annexure-7 suffers from any illegality or discrimination. In our view those important aspects of the matter have not been considered by the Tribunal. We set aside the impugned order contained in Annexure-8 only for the reasons mentioned above and remand the matter for further consideration by the Tribunal in accordance with law. It is expected that the Tribunal shall consider the matter expeditiously, preferably within a period of four months from the date of production or communication of a copy of this order. 5 The writ petition is allowed, to the aforesaid extent. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) AAhmad