1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : D.B. Civil Writ Petition No.2566/2008. (U.O.I. & Another Vs. Lehri Lal & Another) DATE OF ORDER : May 04, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Salil Trivedi for the petitioners. Mr. A.K. Khatri for the respondent(s). BY THE COURT : (Per Hon'ble Mr. Vyas, J.) Instant writ petition has been filed by the Union of India through the General Manager, North-West Railway, Jaipur against judgment dated 31.12.2007 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No.38/07, by which, to the extent of giving direction of protection of the basic pay last drawn at the time of reversion of the original applicant in view of having worked for long period on ad hoc basis, the original application filed by applicant-respondent has been allowed. Brief facts of the case are that respondent-original applicant was appointed as Loco Cleaner in the year 2 1980 and, later on, he was promoted to the post of Fireman-I. Original applicant was further promoted as Diesel Assistant in the year 1993. He appeared in the selection for the post of Goods Driver in the year 1997 and passed the written test but could not qualify the viva voce test. However, he was promoted to the post of Goods Driver on ad hoc basis vide order dated 13.11.1997, Annex.-A/4 to the original application. Respondent-original applicant was also given paper promotion to the post of Senior Shunter in the pay scale of Rs.5000-8000 vide order Annex-A/5 dated 05.08.2002. This promotion was extended to him when respondent Lehri Lal was working on the post of Goods Driver on ad hoc basis. In August 2003, selection for promotion to the post of Goods Driver was conducted, in which, respondent-original applicant appeared in the written- test but could not qualify. Therefore, he was reverted to the post of Loco Pilot (Senior Shunter) vide impugned order dated 25.08.2005. Upon such reversion his basic salary was also reduced from Rs.6,050/- to Rs.5,450/- with effect from 25.08.2005. Respondent-applicant being aggrieved by the said order preferred the original application before the Central Administrative Tribunal, 3 Jodhpur Bench, Jodhpur. Before the Tribunal, it was submitted by learned counsel for the original applicant that the applicant passed the written test for Goods Driver and at that time viva voce test was necessary for selection, in which, after qualifying the written-test the applicant could not get through the viva voce, therefore, he was not selected. But, now, he is required to be considered as selected in the year 1997 onwards on the plea that viva voce test was later on deleted for selection to the post of Goods Driver. Learned Tribunal while considering the above argument held that the respondent-applicant was promoted on ad hoc basis and he was reverted in the event of his failure in the written-test. Therefore, there is no error in the order of reversion. Further, the Tribunal held that it is not inclined to intervene in the administrative procedure for selection and promotion/reversion except proven mala fide; meaning thereby, the learned Tribunal upheld the reversion order passed by the petitioner Department; but, the second prayer of the applicant with regard to protection of pay has been allowed while following the guidelines given by the apex Court in the case of Badri Prasad Vs. Union 4 of India & Others, reported in AIR 2005 S.C. 2531. Therefore, the said judgment rendered by the Tribunal is under challenge to the extent of protection of basic pay last drawn at the time of reversion by respondent Lehri Lal. Learned counsel for the petitioner Department vehemently argued that natural consequence for reversion is to rescind the benefit of promotional post and grant all those benefits which were available prior to ad hoc promotion; but, the learned Tribunal while wrongly applying the ratio laid down in Badri Prasad's case (supra) has passed direction that the respondent- applicant has worked on the post of Goods Driver on ad hoc basis from 1997 to 2005, therefore, he is entitled to protection of basic pay last drawn at the time of his reversion in view of the fact that he had worked on ad hoc basis for a long period. Therefore, the judgment of the Tribunal is contrary to the adjudication made by the Tribunal because on the one hand the Tribunal has upheld the order of reversion and, on the other hand, passed direction to protect the pay of the respondent-original applicant and granted financial benefits for protection of pay which the respondent-applicant was getting when 5 he was working on ad hoc basis on the post of Goods Driver, which is patently illegal. Hence, the judgment impugned passed by the Tribunal deserves to be quashed because in the present case judgment of the apex Court in Badri Prasad's case does not apply. Per contra, learned counsel for the respondent- applicant submits that the Tribunal has not committed any illegality because the respondent has worked on ad hoc basis as Goods Driver from 1997 to 2005. Therefore, the adjudication does not require any interference and the writ petition deserves to be dismissed. We have considered the rival submissions made by both the parties. Admittedly, in the impugned judgment, the learned Tribunal has held that suitability of respondent- applicant Lehri Lal was adjudged for his regular promotion on the post of Goods Driver and he was not found suitable because he did not qualify the written- test. Therefore, obviously once the Tribunal has held that the impugned order passed by the petitioner Department does not require any interference, then, the next stage in the circumstances is only to allow benefits of the lower post from which the petitioner was 6 promoted on ad hoc basis. In the case of Badri Prasad (supra), the facts were altogether different. In that case, the appellants were working on daily-rated basis on different posts and they were given appointment on different dates in the year 1984 as Store Man which is a higher post in Group-C carrying higher scale of pay. The workers in that case worked on the post of Store Man for long period from 1984 till they were reverted by the impugned order dated 29.07.1999 from Group-C post to Group-D post of Khalasi in open line. That reversion order was challenged by the workers and Tribunal partly allowed the claim of the workers by directing consideration of their cases for regularization after ascertaining the minimum eligibility criteria for the post and subjecting them to qualifying tests; meaning thereby, in that case, suitability of the workers was not adjudged, therefore, direction was given by the Tribunal for regularization after ascertaining minimum eligibility criteria for the post and subjecting them to qualifying tests. Here, in this case, admittedly suitability of the respondent-original applicant was adjudged, in which, he was not declared qualified, therefore, the reversion order was passed and, that order of reversion has been 7 upheld by the Tribunal. Therefore, there was no question of granting the benefit of protection of basic pay last drawn at the time of reversion of the respondent-applicant because prior to reversion his suitability was adjudged and he was granted opportunity to appear at the examination. Therefore, the reversion order was passed. In this view of the matter, we are of the view that the learned Tribunal has committed error while applying the judgment of Badri Prasad's case and for granting the relief of protection of last pay drawn at the time of reversion. Consequently, this writ petition is allowed. The judgment impugned passed by the Tribunal, to the extent of granting protection of pay last drawn at the time of reversion in favour of the respondent-original applicant, is hereby quashed and set aside. The original application shall be treated to have been dismissed in toto. No order as to costs. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.