1 D.B.CIVIL WRIT PETITION NO.1866/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R D.B. CIVIL WRIT PETITION NO. 1866/2009 Union of India and Others Vs. Dharam Pal and Another ......... Date of Order : 13/03/2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Ravi Bhansali for the petitioners. BY THE COURT (PER HON'BLE H.R.PANWAR,J.) By the instant writ petition under Articles 226 and 227 of the Constitution of India, the petitioners seek quashing of the order Annex. P-3 dated 12.9.2008 passed by the respondent No.2 the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short “CAT” hereinafter). We have heard learned counsel for the petitioners. It is contended by learned counsel for the petitioners that passing of Trade Test before carrying out promotions from CMD (Ord. Grade) to CMD-II is statutory requirement and therefore, the respondent No.1 cannot be directed to be accorded promotion w.e.f. 1.1.1996. The facts and circumstances giving rise to the instant writ petition are that respondent No.1 Dharam Pal filed an Original Application No. 107/2004 before the CAT under Section 19 of the Administrative Tribunals Act, 1985 (for short 'the Act of 1985' hereinafter). Similar Original applications came to be filed 2 D.B.CIVIL WRIT PETITION NO.1866/2009 by Mohan Lal and Darshan Singh being O.A. No.105/2004 and 106/2004 respectively. By a common order, the respondent CAT decided the original applications and directed the respondents who are petitioners herein to reconsider the case of the applicants and give them promotion in the pay scale of Rs.4000- 6000 as has been done to the juniors to the applicants while the applicants have already passed the Trade Test. If for any reason, for giving the applicants the pay scale of Rs. 4000-6000 w.e.f. 01.01.1996, any of the juniors in the command have to be reverted to the lower grade, this may be done after following the principles of natural justice. The order dated 12th September, 2008 (Annex.3) passed by CAT has been challenged by the writ petitioners. According to the respondent, the post of CMD-II is a non-selection post and the promotion is made on the basis of seniority subject to passing the trade test on the basis of command wise seniority. The respondent made a representation on 11.12.2002 requesting the authority to release his promotion at par with his juniors w.e.f. 01.01.1996. However, the respondent was given promotion to the post of CMD-II in the scale of Rs. 4000-6000 by order dated 02.06.2003. The respondent claimed that he was never called for appearing in the Trade Test for promotion to the post of CMD-II prior to 02.12.1997. In other Zones, the Trade Test was conducted in the year 1990-91 whereas no such trade test was conducted at Bhatinda Zone before 02.12.1997 to which the respondent belongs and therefore, according to the respondent, he was not at fault for not appearing in the Trade Test. The respondent 3 D.B.CIVIL WRIT PETITION NO.1866/2009 claimed the benefit of promotion to the post of CMD-II from the date his juniors were promoted. The learned CAT noticed that the respondent was appointed as MTD II in the year 1987 and the posts of MTDs have now been restructured into four categories in 1998 and the scheme was made applicable w.e.f. 01.01.1996. The individuals were required to pass the Trade Test and they were given the pay scale of Rs. 4000-6000, subject to finding suitable by the DPC on the basis of seniority. It has not been disputed before the CAT that seniority of drivers is maintained at the command level by the HQ. CE, Western Command, Chandi Mandir. In the year 1991, Trade Test was held for drivers in other zones under the HQ. CE, Western Command but so far as Bhatinda Zone is concerned, no such Trade Test was held prior to 02.12.1997 and first time the Trade Test was held at Bhatinda Zone on 02.12.1997 and the respondent was called for the said Trade Test and he appeared and was successful and therefore, denying promotion to the respondent from the date his juniors were given promotion may be in different Zone, was held to be arbitrary. Even the CAT noticed that the respondent appeared in the Trade Test on 02.12.1997 and he was granted promotion w.e.f. 1.4.1997. The promotions were given in the year 2003 with retrospective effect. The CAT noticed the fact that the respondent was not at fault at any point of time for not appearing in the Trade Test and qualifying the same since the test was not held by the respondent at Bhatinda Zone and when held on 02.12.1997, the respondent appeared and was successful and the persons junior to the respondent as has been 4 D.B.CIVIL WRIT PETITION NO.1866/2009 mentioned in the Annex.A/2 annexed with the O.A. have been given promotion w.e.f. 01.01.1996 whereas the respondent being senior to them was given promotion w.e.f. 01.04.1997. From the facts noticed herein above, it is clear that grant of promotion is not from the date of passing of Trade Test. Had the passing of Trade Test been condition precedent for such promotion, then the respondent could not have been promoted w.e.f. 01.04.1997 when indisputedly he appeared and passed the Trade Test held on 02.12.1997. Keeping the above factual matrix in view, the CAT was of the opinion that the respondent has wrongly been denied promotion w.e.f. 01.01.1996 when his juniors had been given promotion from that date and allowed the OA as noticed above. Before us, learned counsel appearing for the petitioners failed to show any reason why the respondent has been promoted w.e.f. 01.04.1997 when the similarly situated and the juniors to the respondent have been promoted w.e.f. 01.01.1996. Even otherwise, on close scrutiny of the order of the CAT, we are of the considered opinion that the CAT was justified in passing the order impugned. In this view of the matter, We do not find any merit in the writ petition. The writ petition is accordingly dismissed. However, there shall be no order as to costs. Stay petition also stands dismissed. (DR.VINEET KOTHARI),J. (H.R.PANWAR),J. rp