SerialNo.of Ete Order with Signature Office Note as toaction(ifany) Order Order taken on Order 0II • I 02-0 .07 Present: Mr. Karma 'Thinlay, Central I Government Standing Counsel for . II the Petitioners. Mr. A. Moulik, Sr. Advocate with I II\II I Mr. N.G. Sherpa, Advocate for the Respondent.ThisisaWritPetition by way of an L. Chandra Kumar appeal from an order of the Central Administrative Tribunal, Calcutta Bench (Circuit at Gangtok) dated 20.4.2006. By the said order the promotion of the 1 I Respondent Tek Man Sunar was confirmed. The Appenant raises a point before us that I th'e promotion of Sunar was fortuitous and it I I II11 I I occurred because, by mistake, his date of appointment was taken as 22.4.1983 instead of' 22.4.1984, which is the correct date. The mistake was later corrected by the Review Committee.2.Itdoes not appear that these points were at all urged before the Tribunal on behalf of the State because, apart from the mention of the word "fortuitous" there is ( I nothing in the Tribunal's order to show that Sunar's promotion was being opposed. In fact I I I prL the order¢ seems to suggest that the learned Ii State Advocate J.M. Bhattachaljee, then appearing before the Central Administrative II\ Tribunal, submitted that Sonar has beenAL '1 subsequendy adjusted ` against / the 'i th substantive post and the Tribunal passed aft •},`.+v order on that basis. `:1. '®S Order with Signature 3. Mr. Bbattachariee is not appearmg before us; however, change of counsel in no manner changes the case itself. 4. If the matter had stood there, we would have. had no hesitation in dismissing the Appeal, i.e. the Writ Petition of the Appellant. However, there is another point of great importance which appears to have escaped the attention Of the parties so far. The contesting employee of Sunar was one T.C. Arya who was also as]dng for promotion. It was submitted by the Appellant that the post giv¥%c¥%=£=&ovAffiwh=K:&n±n#¥th*f%roch:#%ufff; made for patna was drawn uP°faat;¢£ffi#L°k by way of diversion of funds;/just for accommodating Sunar. Be that as it may, Arya has never. been heard. If the fund diversion from the other post is not to be done, and there is no reason why it should be done, either Arya or Sunar is to be promoted; both persons have a right of hearing and Arya has not b.een heard by the Court till now. 5. On this sinale ground of absence of an essential and necessary party, the Appeal is allowed and the order of the CAT is set aside. The matter will be heard afresh by the Tribunal. However, although the order dated 20.4.2006 is being set aside, it will continue officeNoffasto :ac;:onn5i:aonr!'er` A bha + cdr ##iLkqo; q`fty.7 fry,# afresh and until ;that time the status quo with Serial I_ Date Order with Signature Office Note as to No. ofOrder ofIorder action (if any)takenonOrder (, I I\ \ I II IIIII III I regard to Sunar as obtaining on date, on the basis of order dated 20.4.2006, shall continue. Addition of party application is to be filed, so a.s to implead Arya, by or on behalf of Sunar within one month hereof; if the Tribunal finds any delay in the impleadment of Arya or having the papers served on Arya to cause his appearance, the Tribunal will be entitled on that very ground to rescind the order of promotion now existing in favour of Sunar. However, much the better course is to pass a full and reasoned order after hearing the parties involved.6.Therewillbeno order asto costs.(AjoyNathRay, CJ) t tNN.snggh,jT