1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO.1177 OF 2009. PETITIONERS : 1. Union of India, through the Comptroller and Auditor General of India, 10 Bahadurshah Zafar Marg, New Delhi 110 124. 2. The Accountant General (A & E)-II, Maharashtra, Nagpur. 3. The Deputy Accountant General (Administration), O/O Accountant General (A&E)-II, Maharashtra, Nagpur 440 001. -VERSUS- RESPONDENT: Avinash S/o S. D. Sharma, Aged about 39 years, Presently working as Divisional Accountant Officer, Grade- II in the O/O the Executive Engineer, Kukdi Irrigation Division No.II, Shrigonda, Distt. Ahmednagar. Shri S. B. Bangde, Advocate for the petitioners. Shri Sumant Deopujari, Advocate for the respondent. CORAM: A. H. JOSHI AND R. K. DESHPANDE, JJ. DATED: 15TH JANUARY 2010. ORAL JUDGMENT : (Per R. K. Deshpade, J) 1. Rule. Rule is made returnable forthwith and heard by consent of parties. 2. Heard Shri Bangde, learned Advocate for the petitioner and Shri Deopujari, learned Counsel appearing for the respondent no.1. 3. This petition challenges the judgment and order dated 2 30-11-2007 passed by the Division Bench of the Central Administrative Tribunal, allowing the O. A. No.34 of 2006 filed by the Respondent. The Tribunal has directed the appellant to convey review DPC to consider the case of the applicant for promotion to DOA Grade-II from the date of his juniors who were promoted, and promote the applicant also from the same date and grant him all consequential benefits. The Tribunal has held that in view of the fact that the adverse remarks were toned down in respect of the respondents no.11 & 15, they were promoted in the year 2003. However, the respondent who was the applicant before the Tribunal was on the identical facts and circumstances, but was promoted in the year 2006. The Tribunal has recorded a finding that there seems to be no reasonable basis for treating the applicant in a different manner than respondents no.11 & 15, and so also many other persons who are junior to the applicant. 4. Shri Bangde, learned Counsel appearing for the applicant has challenged the judgment and order of the Tribunal mainly on the ground that the first order of promotion was issued on 13-3-2003 by which 7 persons junior to the respondents were promoted, however, the respondent did not challenge the same and it is only after the promotion of 12 junior persons effected on 2-1-2006, the respondent filed the Original Application before the Central Administrative Tribunal. According to Shri Bangde, it was barred by limitation, and hence, the Tribunal ought to have dismissed the Original Application on this sole ground. 5. We have gone through the pleadings in the original application and the reply filed by the present petitioners before the Tribunal. In para 6 of the O.A., the respondent has pointed 3 out that from 13-3-2003, he has been making representations, and appeal dated 19-3-2003 preferred by him has not been decided. This fact, however, has not been disputed by the appellants. The respondent was promoted after filing of the original application on 28-10-2006 after taking into consideration the fact that the adverse entries recorded in his confidential report were expunged. The respondent, therefore, claimed that he should be given deemed date of promotion from 13-3-2003 when his juniors were promoted as the adverse entries against him are also expunged. In view of this factual position, we do not think that the Tribunal has committed an error in interfering with the original application filed by the respondent. The expungment of adverse remarks and promotion of the respondent by order dated 2-1-2006 of junior furnished the respondent a cause of action, as a result of which, the original application was filed on 16-1-2006. The contention of Shri Bangde that the application was barred by limitation is, therefore, rejected. 6. On merits of the matter, the Tribunal has held that the respondent was entitled to have same treatment which was provided to the respondents no.11 & 15 in the Original Application No.34 of 2006, and there was no reasonable basis for treating the respondent in a different manner. In view of this, it was held that the case of the respondent was required to be considered as on the date when the juniors to the respondent no.1 were promoted with effect from 13-3-2003. 7. Thus, the aforesaid findings are not challenged in the present appeal by Shri Bangde. However, he has invited the attention of this Court to the directions given in para 6 of the 4 judgment which is reproduced below. “6. In view of the above the respondents are directed to convene a review DPC to consider the case of the applicant for promotion to DOA Grade-II from the date his juniors were promoted and promote the applicant also from the same date and grant him all consequential benefits. OA allowed in terms of the above directions. No costs.” [Quoted from page 20 of the appeal paper book] 8. According to Shri Bangde, the Tribunal ought not to have issued direction to promote the applicant with effect from the same date and to grant him all consequential benefits. According to him, no such direction could be issued by the Tribunal in the nature of mandamus, particularly, when in earlier part of the aforesaid directions, the appellant is directed to consider the case of the respondent for promotion. 9. It is no doubt true that the Tribunal has directed to convene review DPC to consider the case of the respondent for promotion to DOA Grade-II from the date his juniors were promoted. Obviously, further direction to promote the respondent from the same date and to grant him all consequential benefits will have to be read as a consequential direction, which would be operative only in the event if upon consideration of the claim of the respondent for promotion he is found suitable. Shri Deopujari the learned Counsel appearing for the respondent does not dispute this position that the direction to promote the applicant and to grant him consequential benefits shall operate only if the respondent is found fit for promotion to DOA Grade-II as on 13-3-2003 after keeping in view the expungment of adverse remarks. 5 10. In the result, except the clarification made in the aforesaid para, we do not find any infirmity in the order passed by the Tribunal. 12. In the result, petition is dismissed with no order as to costs. JUDGE JUDGE //MULEY//