-1- Civil Writ Petition No.6648-CAT of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January 17, 2008. Mohd. Kamil ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.H.S. Saini, Advocate, for the petitioner. Mr.Nitin Kumar, Advocate, for respondents Nos. 1 to 4. -.- MOHINDER PAL, J. In this petition filed under Articles 226 / 227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari, thereby quashing the order -2- Civil Writ Petition No.6648-CAT of 2007. dated November 22, 2005 (Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `the Tribunal') whereby Original Application No.338- HR/2004 filed by the petitioner under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as `the Act'), was dismissed. The petitioner was initially appointed as Cleaner in the Northern Railway on February 14, 1986. On October 14, 1988, he was deputed to work as Assistant Pump Engine Driver, Grade -III (`APED' for short). However, he was paid the salary of a Cleaner. On December 11, 1989, he was promoted as APED Grade-III on ad hoc basis. He continued on the ad hoc arrangement till October, 1992, when he was reverted to the post of Cleaner without affording him any opportunity of hearing. He challenged this action of the respondent-Department by way of filing Original Application No.1405/HR/1992 before the Tribunal. The Tribunal stayed reversion of the petitioner to the post of Cleaner and, thus, he continued to work as APED Grade- III. In the meanwhile, petitioner submitted representation dated July 26, 1999 (Annexure A-8 to Annexure P-1) to the respondent- Department that he was working continuously since December 11, 1989, on the post of APED Grade-III, but had not been called for APED Grade-II Trade Test whereas employees junior to him had been posted after taking their APED Grade-II Trade Test and the name of the petitioner had been ignored from the seniority list. In the said representation, the -3- Civil Writ Petition No.6648-CAT of 2007. petitioner prayed that he be called for the Trade Test of APED Grade-II being senior and be assigned seniority. The Original Application No.1405/HR/1992 was disposed of by the Tribunal vide order dated January 17, 2001, by directing the respondent-Department to put the petitioner to the Trade Test for qualifying for the post of APED Grade-II, if not already done, after submission of his representation dated July 26, 1999 (Annexure A-8 to Annexure P-1). It was further directed that if the petitioner qualified the Trade Test and was found eligible and fit for promotion to the post of APED Grade-II, he be promoted to the said post with effect from the date his juniors were promoted and be granted all consequential benefits. The petitioner was called upon to appear for Trade Test for the post of APED Grade -III and was declared successful on April 26, 2001 vide result Annexure A-4 to Annexure P-1. Subsequently, vide order dated May 11, 2001 (Annexure A-5 to Annexure P-1), he was regularized on the post of APED Grade-III with immediate effect. After two months of his regularization, the petitioner was called for Trade Test for promotion to the post of APED Grade-II and then for APED Grade-I. He qualified both these tests and was given promotions as APED Grade-II and APED Grade-I with effect from October 15, 2001 and January 19, 2004, respectively. The petitioner submitted various representations ( (Annexures A-8 to Annexure P-1, A-9 to P-1 etc.) requesting the -4- Civil Writ Petition No.6648-CAT of 2007. respondent-Department to grant him promotions to the posts of APED Grade III, APED Grade-II and APED Grade-I with effect from the dates his juniors were promoted. However, when the respondent-Department did not consider the case of the petitioner for the said promotions, he was constrained to file Original Application No.338-HR/2004 before the Tribunal. Which was dismissed vide the impugned order dated November 22, 2005 (Annexure P-4). We have heard Mr. H.S.Saini, Advocate, appearing for the petitioner and Mr. Nitin Kumar, Advocate, appearing for respondents Nos. 1 to 4 and have gone through the records of the case. In the order dated January 17, 2001, whereby Original Application No.1405/HR/1992 filed by the petitioner was disposed of by the learned Tribunal, the following directions were issued to the respondents:- “ In the light of the facts mentioned above, we dispose of the present O.A with a direction to respondents to put the applicant also to the Trade Test for qualifying for the post of APED, if not already done after the date of his representation dated 26.7.1999. In case of his qualifying the same and being otherwise found eligible and fit for the said -5- Civil Writ Petition No.6648-CAT of 2007. post, to promote him to the post of APED w.e.f the date the persons junior to him have been promoted. In these circumstances, he be given all the consequential benefits also w.e.f the date of his promotion to the post of APED including his claim to regular scale of pay and allowances etc. etc. of the said post. Respondents are further directed to comply with these directions within a period of three months from the date of receipt of copy of this order.” In compliance with the above order passed by the Tribunal, the petitioner was called for Trade Test for the post of APED Grade-III and was declared successful. As stated above, he was also called for Trade Tests for promotions to the posts of APED Grade-II and APED Grade-I, which he also qualified. He was given promotions as APED-Grade-III, APED Grade-II and APED Grade-I. However, despite various representations having been made by the petitioner for granting him promotions to the posts of APED Grade-III, APED Grade-II and APED Grade-I from the dates his juniors were promoted, the respondent-Department did not pay any heed to the matter. Thus, the respondent-Department complied with the order of the Tribunal dated January 17, 2001, passed in Original Application No.1405/HR/1992 in part. This Original Application -6- Civil Writ Petition No.6648-CAT of 2007. was filed in 1992, when the petitioner was reverted from the post of APED Grade – III to the post of Cleaner without affording any opportunity of being heard. He was working on the post of APED Grade -III since October 14, 1988. His reversion was stayed by the Tribunal vide order passed in Original Application No.1405/HR/1992. It is not disputed that the persons junior to the petitioner were promoted during the pendency of Original Application No.1405/HR/1992, which was decided on January 17, 2001. It is not the case of the respondent-Department that service record of the petitioner was blemished or he had been awarded any punishment. In fact, the petitioner successfully cleared the Trade Tests and was given promotions as APED- Grade-III, APED Grade-II and APED Grade-I. The case of the respondent-Department before the Tribunal while opposing Original Application No.338/HR/2004 was that for promotion to the higher grade, twin requirement of clearance of Trade Test and completion of two years' service in the feeder grade was to be fulfilled. It was further the case of the respondent-Department that while first promotion to the pose of APED Grade-III had been given to the petitioner in compliance with the order of the Tribunal dated January 17, 2001, subsequent promotions to the posts of APED-Grade-II and APED Grade-I could be considered only on his qualifying the Trade Test and completing stipulated two years' service in the concerned Grade. The Tribunal, vide the impugned order, -7- Civil Writ Petition No.6648-CAT of 2007. upheld the contentions raised before it on behalf of the respondent-Department by observing as under:- “ Now, what remains to be seen is only whether the CAT order dated 17.1.2001 has been correctly complied with by the respondents or not. Here, it would be pertinent to note that if any departure from the Rules, prescribing qualifying of the test and completion of two yearsf service in the grade has to be considered, it could possibly be after relaxing the mandatory provision of the Rules which aspect also remains a moot point, having not been touched upon by either party, in arguments. The CAT order , too, does not speak of any relaxation being considered/granted in applicant's favour. Viewing the whole matter, in totality, it is clear that the applicant has already got adequate relief. Besides, as would be seen from A-11 and A-12, the applicant has himself submitted to the obligatory requirement of completion of two years' service in the related grade to become eligible for further promotion. Any casual tinkering with the service Rules, on part of this Tribunal, may not be in the best -8- Civil Writ Petition No.6648-CAT of 2007. interest of service discipline & efficiency. Apart from this, the clock cannot be put back on every count to meet every relief conceived of to be claimed by the applicant at this belated stage in this long-drawn litigation” After observing thus, the Tribunal rejected the claim of the petitioner. The above observations made by the Tribunal, in the facts and circumstances of the case enumerated above, are not sustainable and, in fact, are contradictory to its own order passed in Original Application No.1405/HR/1992 dated January 17, 2001, vide which it was ordered that in case the petitioner qualified the Trade Test, he would be given promotion with effect from the date the persons junior to him had been promoted. He was also awarded all the consequential benefits with effect from the date of his promotion including his claim to regular scale of pay and allowances. The order of the Tribunal dated January 17, 2001, could not be interpreted by the respondent- Department in a manner that the petitioner was only to be promoted as APED Grade-III if he qualified the Trade Test and was to be given seniority. In fact, in the order dated January 17, 2001, it has been specifically observed by the Tribunal that “we dispose of the present O.A with a direction to the respondents to put the applicant also to the Trade Test for qualifying for the post of APED, if not already done after the date of his representation dated 26.7.1999”. The representation dated -9- Civil Writ Petition No.6648-CAT of 2007. July 26, 1999 (Annexure A-8 to Annexure P-1) had been made by the petitioner praying for taking his Trade Test for the post of APED Grade-II when persons junior to him, whose names were mentioned in the representation, were put to Trade Test for promotion to the post of APED Grade-II and were promoted as such. Thus, the claim of the petitioner for granting him promotions to the posts of APED Grade-III, APED Grade-II and APED Grade-I, after he had qualified the Trade Tests for these posts, from the dates his juniors were promoted should not have been rejected by the Tribunal. Admittedly, the petitioner was eligible to be considered for regularization/promotion along with his juniors and at that time his Original Application No.1405/HR/1992 was pending before the learned Tribunal. The respondent-Department should have comprehended the matter in its right perspective and should have given promotions to the petitioner to the posts of APED Gradei-III, Grade-II and Grade-I from the dates his juniors were promoted and for this purpose any debate on the question of relaxation or waiving off the provisions of any Rule was uncalled for. The Tribunal, while passing the impugned order, should have rectified the mistake committed by the respondent-Department in this regard because if the petitioner had not been called for the Trade Tests along with his juniors and his juniors were promoted by the respondent-Department, it was not the fault of the petitioner, more so when the matter was sub-judice before the Tribunal. Under the circumstances, we hold that the condition of two -10- Civil Writ Petition No.6648-CAT of 2007. years of service in the lower grade, would be deemed to be waived off. The petitioner had been raising his grievance before the respondent-Department for claiming regularization/promotion at par with his juniors time and again and the delay, if any, cannot be attributed to him and he cannot be made to suffer if the respondents did not decide his claim in time and in right perspective. For the aforesaid reasons, this writ petition is allowed, the order dated November 22, 2005 (Annexure P-4) passed by the Tribunal is set aside and the respondent-Department is directed to promote the petitioner as APED Grade-III, APED Grade-II and APED Grade-I from the dates when juniors to him were promoted with all consequential benefits including arrears of pay and allowances to which he may be found entitled to. There shall be no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE January 17, 2008. ak