-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1782 OF 2002 Union of India, through the General Manager, ) Western Railway, Churchgate, Mumbai, Maharashtra )..Petitioner versus R. Mohankumar, ) Waiter at D/Car, Bombay Central on Western Railway, ) Bombay-400 008. )..Respondent Mr. Suresh Kumar for the petitioner. Mr. S.S. Karkera for the respondent. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: 17 th July, 2009 ORAL JUDGMENT: (Per P.B. Majmudar, J.) This petition is directed against the judgment and order passed by the Central Administrative Tribunal, Mumbai Bench, dated 24th June, 1999 passed in Original Application No. 836 of 1993 as well as the order dated 6th March, 2002 passed in Review Petition No. 33 of 2000. 2. The respondent herein preferred Original Application No. 836 of 1993 before the Central Administrative Tribunal, Mumbai Bench, with a prayer that the reversion order dated 29th December, 1992, passed against him be -2- quashed and set aside and he may be restored to the post of Bill Issuer. The respondent was appointed as a Waiter in Ajmer Division of the Western Railway in the scale of Rs. 775-1025. It is the case of the respondent that by an order dated 11th September, 1987, he was promoted to the post of Bill Issuer in the scale of Rs. 825-1200. Subsequently by order dated 29th December, 1992 he was transferred and posted at CCG in the capacity as Waiter in the pay scale of Rs. 775-1025. The respondent treated the said order as an order of reversion and accordingly challenged the said order by filing the aforesaid original application before the Tribunal. The said application was resisted by the Railway Administration (present petitioner) on various grounds. It is the case of the petitioner that the respondent was not qualified to be promoted to the post of Bill Issuer but his promotion was only a stop gap arrangement. Subsequently he was reverted to the post of Waiter and transferred to Mumbai Division in view of the withdrawal of the catering service in Ajmer Division. 3. It is the case of the petitioner that after cancellation of the so-called promotion order on 13th November, 1987, the respondent had appeared in the departmental test in the year 1990 but he was unsuccessful. Accordingly having accepted the reversion order passed in November, 1987, he cannot challenge the the impugned transfer order on the ground that it is a reversion order in substance. The Tribunal set aside the said order by which he was transferred from Ajmer Division to CCG. The Tribunal found that the transfer of the -3- respondent from Ajmer Division to Bombay Division will remain intact. 4. It seems that against the aforesaid order, the petitioner had filed a writ petition being Writ Petition No. 1285 of 2000. Simultaneously, the petitioner had also filed review petition being Review Petition No. 33 of 2000 before the Tribunal. However, the review petition was dismissed on 2nd May, 2001 on the ground that the writ petition preferred by the petitioner was pending before this Court. The Division Bench of this Court by its order dated 24th July, 2001 disposed of the writ petition by directing the Tribunal to hear and decide the review petition expeditiously. This Court also permitted both parties to produce additional evidence, if they want to produce and to the extent it is permissible in review petition. This Court in the meanwhile stayed the order of the Tribunal dated 24th June, 1999 till the review petition was heard and disposed of. 5. The Tribunal thereafter decided the review petition on 6th March, 2002 by holding that the same is barred by limitation and that the production of documents at a later stage was not permissible. The Tribunal accordingly rejected the said review petition. This necessitated the petitioner to challenge the original order dated 24th June, 1999 passed on O.A. No. 836 of 1993 and the order dated 6th March, 2002 passed in Review Petition No. 33 of 2000. -4- 6. Mr. Suresh Kumar, learned counsel appearing for the petitioner, vehemently submitted that the so-called promotion order dated 11th September, 1987 by which the respondent was promoted as a Bill Issuer was subsequently cancelled by another order dated 13th November, 1987. Mr. Suresh Kumar submitted that the first order of so-called promotion was issued by Divisional Commercial Superintendent, Ajmer who had no authority to issue such order as the post in question is under the control of Divisional Headquarters at Mumbai and only the Divisional Headquarters at Mumbai can pass an order of promotion, if any. He further submitted that the respondent had fraudulently obtained such an order and when it came to the notice of the Department, the Department within short period i.e. within two months cancelled the said order on 13th November, 1987. The said order is at Exhibit-D to the petition. 7. Mr. Suresh Kumar has further submitted that all throughout the petitioner continued in the scale of Waiter and he was never given the pay scale of Bill Issuer. It is also submitted that even in the seniority list which was published subsequently in the year 1990 i.e. by an order dated 14th May, 1990, the name of the respondent appears at serial number 342 which list also makes it clear that the petitioner all throughout remained as a Waiter. The said list is annexed at Exhibit D-1 to the petition. Mr. Suresh Kumar also further submitted that the respondent was not promoted in accordance with the procedure prescribed for such promotion as he was required to appear in the examination -5- which was prescribed for the promotion. He submitted that the challenge before the Tribunal was in connection with the order dated 29th December,1992 , a copy of which is annexed at Exhibit-K to the petition. As per the said order, the petitioner was transferred and posted at D/Car-PCT in the same scale of pay and capacity . In substance, the challenge was only in connection with the transfer order as it was not an order of reversion. 8. Mr. Karkera, learned counsel appearing for the respondent, on the other hand, submitted that the petitioner had not produced necessary documents before the Tribunal and even in review application also the petitioner did not produce documentary evidence on record. He has further submitted that even though the petitioner was promoted as a Bill Issuer he was never given the pay scale for the same. He has fairly admitted that till today no proceedings have been adopted by the respondent in that behalf. Learned counsel for the respondent further submitted that at the time when he was promoted on 13th November, 1987, there was no question of appearing in any examination for the purpose of promotion and that he was rightly promoted to the post of Bill Issuer and since the petitioner had not produced any evidence before the Tribunal, the Tribunal has rightly allowed the application and dismissed the review application. The learned counsel lastly submitted that as per the Railway’s circular it was not necessary for the respondent to pass the departmental examination and that circular was placed on record before the Tribunal. No -6- other arguments have been advanced before us by the learned counsel for the respondent. 9. We have heard the learned counsel appearing for the parties. We have also gone through the petition and documents annexed to the petition. 10. The learned counsel for the petitioner, during the course of hearing, has produced the true copy of the service record of the respondent which was also shown to the learned counsel for the respondent in order to substantiate his say that the respondent all throughout was in the pay scale of Rs. 775-1025 which was prescribed for the post of Waiter and that he was not substantively promoted to the post of Bill Issuer. Mr. Suresh Kumar has further submitted that the respondent surreptitiously and in a wrong manner obtained the order of promotion on 11th September, 1987 and subsequently the said order was cancelled within two months i.e. on 13th November, 1987. Mr. Suresh Kumar further submitted that even in the seniority list of waiters published, the name of the respondent is appearing at Sr. No. 342 which list was published on 14th May, 1990. It is submitted that the aforesaid documents make it amply clear that simply because the respondent was transferred, under the guise of challenge to transfer order, he has challenged the so-called reversion order. It is submitted by Mr. Suresh Kumar that even though this Court has permitted the petitioner to produce additional evidence in the review petition, the Tribunal has not decided -7- the review petition on merits and rejected on the ground of limitation as well as on the ground that no justification is given for not producing the documents earlier. 11. Mr. Karkera, on the other hand, submitted that even as per the letter of the petitioner, it is not necessary for the respondent to pass the departmental examination. He has further submitted that so far as the reversion order dated 13th November, 1987 is concerned, the same was not communicated to the respondent and, therefore, the respondent was not aware that the promotion order is cancelled. Regarding seniority, learned counsel submitted that the respondent was not aware of any such seniority list because it was not sent to the respondent by the petitioner. He further submitted that the respondent had not received any reversion order as the same was not served upon the respondent. It is submitted that since the petitioner had not produced necessary documents before the Tribunal in the original application as well as in the review application, no fault can be found with the order of the Tribunal and on all these grounds he submitted that the petition is required to be rejected. 12. In order to appreciate the controversy, it is required to be noted that it is not in dispute that by an order dated 11th September, 1987, the Divisional Office, Ajmer, passed an order by which the respondent was promoted to the post of Bill Issuer in the scale of Rs. 825-1200 from the pay scale of Rs. -8- 775-1025. By subsequent order dated 13th November, 1987, which is passed by the Divisional Commercial Manager/E Ajmer , the said order was cancelled. It is not possible for us to believe that the respondent was not aware of the same or that it was not served upon him as it is not in dispute that even the seniority list which was published on 14th May, 1990 i.e. after considerable period after the aforesaid cancellation order, the name of the respondent appeared at senior No. 342 in the said seniority list of Waiters. The said seniority list contains names of so many employees. Therefore, the argument of the learned counsel for the respondent that the seniority list was not sent to him is required to be rejected . The learned counsel for the petitioner has submitted that such list is always sent to the Unions where the employees are serving and copy of the same is always notified and it is not necessary that the same is also required to be sent to an individual employee. The respondent has not raised any objection that his name should not have been shown in the seniority list of Waiters as he was serving as a Bill Issuer. Another glaring aspect of the matter which is not disputed is that all throughout the respondent continued to be in the pay scale of Rs. 775-1025 till he was transferred from Ajmer which transfer order he had challenged before the Tribunal. If the promotion of the respondent is not cancelled and had been continued on the post of Bill Issuer, naturally he could have demanded the pay scale for the said post which he never did. The respondent deliberately kept silence on this aspect till this day. That fact itself clinches the issue that after the passing of the order cancelling the promotion i.e. 13th November, 1987, the -9- respondent all throughout continued to serve as a Waiter from which post he was transferred. 13. A Division Bench of this Court earlier permitted the petitioner and the respondent to produce additional evidence in review proceedings before the Tribunal. The Tribunal has not taken the said documents on record on the ground that no explanation is given for such late production. When this Court permitted the parties to produce additional evidence before the Tribunal, it was expected of the Tribunal to allow such production and the order of this Court should have been taken seriously. On reading the review order passed by the Tribunal, an impression is created that due regard to the observations of this Court has not been given by the Tribunal, as this Court in its order had directed the Tribunal to decide the review petition by permitting the parties to produce additional evidence. We are constrained to express our displeasure in that behalf and expect that the directions of this Court are observed in letter and spirit by the Tribunal. Be that as it may, the said factual aspect would not further detain us in deciding the controversy on its own merits. 14. As pointed out earlier, since November, 1987 onwards, the petitioner was never in the pay scale of Bill Issuer and in fact all throughout he remained in the pay scale of Rs. 775-1025. What was challenged before the Tribunal was transfer order. The Tribunal, without applying its mind on this aspect, has -10- mechanically passed the impugned order as if the challenge was to the reversion order before it. It cannot be disputed that the only challenge before the Tribunal was the order of transfer and in that proceeding the Tribunal could not have gone into the issue of reversion. Even assuming that the Tribunal was entitled to go into that question, then also the fact remains that even on merits it is clear that the so-called promotion was not only cancelled on 13th November, 1987 but even the seniority list was published on 14th May, 1990 wherein respondent’s name appeared as a Waiter at Sr. No. 342. It is not in dispute that all throughout the petitioner remained in the pay scale of Rs. 775-1025. These aspects as such are not in dispute. The averments in that behalf have been made in the petition but no reply has been filed by the respondent. 15. It is required to be noted that even before the Tribunal, in reply to the original proceedings , the petitioner has in para 5 (d) stated that the respondent was appointed as a Waiter on 22nd July, 1979 as per Sr. No. 342 of the seniority list of Waiter. The petitioner denied the respondent’s contention that he was appointed as a Bill Issuer in the year 1987. Even as pointed out by the learned counsel for the petitioner, the concerned officer who had promoted the respondent at the relevant time was not authorised to promote because the said promotion was to be effected only by the Divisional Headquarters, Mumbai. In paragraph (j) of the petition, it is averred by the petitioner that as per the record maintained in the Headquarters pertaining to the cadre of waiter, the -11- respondent continued to hold the post of waiter. The respondent was paid in the pay scale of Waiter and at no point of time the respondent was granted to the pay scale of Bill Issuer as per the records. 16. Since the aforesaid facts are not in dispute, in our view, the order of the Tribunal is not sustainable . Even if the promotion was already cancelled in November, 1987 and the impugned order before the Tribunal was only the transfer order, yet the Tribunal has considered the said order as if the same is an order of reversion, which is an error committed by the Tribunal. The Tribunal has not considered the aforesaid aspect in its right perspective. In a review petition, though the petitioner tried to place certain documents on record, the same were not taken on record and, as pointed our earlier, this Court’s direction to the Tribunal to permit the parties to place additional evidence has not been taken into account in a proper manner. Considering the aforesaid aspect of the matter, the impugned orders of the Tribunal are required to be quashed and set aside. 17. Considering the aforesaid aspect of the matter, it is clear that the respondent under the guise of transfer order has tried to challenge the order of cancellation of his promotion which was passed on 13th November, 1987 by filing the Original Application after considerable period. The respondent has also not even challenged the seniority list which was published on 14th May, -12- 1990 and continued to accept the pay scale prescribed for the Waiter. 18. In the result, the impugned order dated 24th June, 1999 passed in Original Application No. 836 of 1993 and the order dated 6th March, 2002 passed in R.P. No. 33 of 2000 are quashed and set aside. 19. We may, however, clarify that since the respondent is continued on the post of Bill Issuer in view of the judgment of the Tribunal and since at the time of admission of this petition the said order has not been stayed by this Court, we direct the petitioner not to recover from the respondent any amount on account of difference in salary between the Waiter and Bill Issuer for the intervening period. Rule is made absolute accordingly. No order as to costs. P. B. MAJMUDAR, J. R.M. SAVANT, J.