CIVIL WRIT JURISDICTION CASE No.10587 OF 2008 -------- In the matter of an application under Article 226 of the Constitution of India. ---------- 1. The Union of India through the Secretary. Railway Board, Railway Bhawan, New Delhi 2. The General Manager, East Central Railway, Hajipur 3. The G.M.(P), East Central Railway, Hajipur 4. The Chief Commercial Manager, East Central Railway, Hajipur 5. The F.A. & C.A. O, East Central Railway, Hajipur 6. The Divisional Railway Manager, East Central Railway, Danapur 7. The Senior D.P.O. East Central Railway, Danapur 8. The Sr. D.F.M. East Central Railway, Danapur Petitioners Versus S. K. Sheetal son of late Santosh Kumar Sheetal, resident of Sheetal Kunj, Haruganj Hazaribagh Ex-Assistant Commercial Manger E.C. Railway, Danapur P.O Khagaul Dist. Patna (Bihar). Respondent -------- For the petitioners: Mr Bindyachal Singh, Advocate For the respondent: Mr M.P. Dixit, Advocate -------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ---------- Heard learned counsel for the petitioners and learned counsel for the sole respondent. 2. Petitioners are aggrieved by the impugned order dated 29th August, 2007 whereby O.A. No. 161 of 2006 preferred by the sole respondent, a retired Assistant Commercial Manager, E.C. Railway, Danapur has been disposed of granting two reliefs. 3. At the outset learned counsel for the petitioners may declare that petitioners are not aggrieved by the direction of the Tribunal to consider the applicant’s case for promotion/promotions but they are only aggrieved by the direction in the last part of the - 2 - impugned order granting consequential benefits to the applicant (respondent herein) in case he is found fit for promotion at par with juniors 4. Learned counsel for petitioners placed reliance upon paragraph 228 of the Indian Railway Establishment Manual (IREM for brevity) which contains a provision that in case of subsequent grant of promotion from the date juniors were so promoted, no arrear shall be payable on the ground that promotee did not actually shoulder the duties and responsibilities of the higher post. In support of this proposition reliance was placed upon a judgment of the Supreme Court in case of Union of India & another vs Tarsem Lal & ors dated 21st September, 2006 passed in Civil Appeal No. 4222 of 2006, a copy of the judgment has been annexed as annexure 3. 5. Learned counsel for the respondent submitted that so far as benefit of up-gradation of the post he was holding as discussed in paragraph 2 of the impugned order is concerned, after the order of the learned Tribunal reliefs have already been granted to the respondent and he has also been paid dues on that account. The only grievance of the respondent is that in spite of concession recorded in paragraph 3 of the impugned order that Review DPC will be held for the applicant to consider his promotion at par with his juniors in senior scale, no Review DPC has been convened. It was pointed out that as per submission of the respondent before the Tribunal, petitioners herein had assured to make honest effort to consider the case of the applicant even without his self- appraisal in the concerned ACR for the year - 3 - 2004-05. It was further submitted on behalf of the respondent that in the last and last but one paragraph of the impugned order the direction that if the applicant is found fit for promotion at par with juniors, the grant of consequential benefits to the applicant shall follow, is qualified by the Tribunal “as may be in accordance with law”. Hence, it has been submitted on behalf of the respondent that no clarification is needed in respect of impugned order on the basis of paragraph 228 of IREM. According to learned counsel for the respondent, even if monetary benefit of senior scale is denied to the respondent for the period he was in service on the ground of no work no pay, the respondent would be lawfully entitled for notional grant of that scale to the benefit of his retiral dues and appropriate pensionary benefits. 6. It goes without saying that if an order in respect of consequential benefit to the applicant is ultimately passed by the petitioners, the correctness of such order can be tested by the aggrieved employee- the respondent in accordance with law. However, in the facts of the case we are dismayed by the action of the petitioners in not considering his case for grant of senior scale given to his juniors for such a long period in spite of their concession and direction by the Tribunal in the impugned order dated 29th August, 2007. 7. We direct the concerned authorities and the petitioners not to delay the matter any further and consider the case of the respondent in accordance with law and the observations in the impugned order, as early as possible preferably within a period of - 4 - three months. 8. In the facts and circumstances of the case, we find no merit in this writ petition which is dismissed accordingly. No costs. (Shiva Kirti Singh, J) (Hemant Kumar Srivastava, J) The Patna High Court The 23rd August, 2010 shahid/ NAFR