1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : D.B. Civil Writ Petition No.2064/2001. (Union of India & Others Vs. Bal Kishan) DATE OF ORDER : February 11, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Kamal Dave for the petitioners. Mr. J.K. Kaushik for the respondents. BY THE COURT : (Per Hon'ble Mr. Vyas, J.) In this writ petition, the petitioners are challenging the order dated 07.03.2000 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No.5/93, so also, order dated 25.07.2000 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Review Appln. No.13/2000. Brief facts of the case are that the respondent Bal Kishan preferred original application No.5/93 before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter, to be called “the CAT”), in which, he sought the following reliefs: 2 “(i) The respondents may be directed to modify the impugned Office Order No.755E/P3/C&M/Vol.II/92 dated 26th December, 1992 concerning to applicant ad hoc basis Lab. Assistant Grade 975- 1540 (NPS) considering him to be Junior most Lab. Assistant and of reversion to post of Khalasi Helper in Gr.800-1150 (NPS). (ii) The respondents may be directed to regularise on the promotional post of Lab. Assistant. (iii) The respondent may be directed to empanel the applicant for the post of Lab. Assistant in accordance with the record note 2 : 2 dated 27.11.1975 issued by the Board and by Railway Ministry and impugned Order dated 10.11.1990 As per (Annexure No.13) Selection Panel to this effect and allow all consequential benefits to the applicant by modifide including regularisation on the post of Lab. Assistant and maintaining his seniority as per Annexure No.A/1A.” In the above original application, the petitioner Northern Railway filed reply and, after hearing both the parties, finally the learned CAT vide its judgment dated 07.03.2000 passed following order : “10. The O.A. Is accordingly allowed with a direction to the respondents to consider the case of regularisation of the applicant on the post of Lab. Assistant in terms of letter dated 17.1.74 and restore his seniority over respondents Nos. 4 to 7, within a period of three monthsa from the date of communication of this order. In case any need arises to revert a Lab. Assistant, the junior-most Lab. Assistant should be reverted.” Thereafter, a review petition was filed by the petitioner Northern Railway, in which, it is stated that judgment dated 07.03.2000 deserves to be reviewed 3 because as per the said judgment direction has been issued to the Northern Railway to consider the case of the applicant for regularisation on the post of Lab Assistant in terms of letter dated 17.01.1974 and to restore the seniority of the applicant over respondents No.4 to 7; but, in fact, after issuance of letter dated 17.01.1974, another letter was issued on 07.07.1988 which was not placed before the CAT whereby, for selection on the post of Laboratory Assistant Grade 975-1500 (RPS) was ordered to be made through process of selection from amongst Lab Attendants and qualification was prescribed as Matriculate/Higher Secondary with science; meaning thereby, the directions issued by the CAT were in terms of letter dated 17.01.1974 in which different method was prescribed; but, later on, in the year 1988, another circular letter was issued by the Railway Board, whereby, for the purpose of selection against existing vacancies, departmental selection was to be made. While considering the review petition, the learned Tribunal rejected the prayer of review vide order dated 25.07.2000 (Annex.-7), in which, it is observed by the learned Tribunal that at the time of deciding the original application No.5/93 vide judgment dated 07.03.2000 a 4 specific querry was made to the counsel for the petitioner-non-applicants whether order dated 17.01.1974 stood superseded or nor, for which, the petitioner-non-applicants did not give any reply; and, accordingly, it was held that applicant is entitled for regularising his promotion in terms of letter dated 17.01.1974. While observing the above fact, the review petition was also dismissed by the CAT and validity of both judgment passed in the original application as well as order of dismissal of the review petition is subject-matter of this writ petition. Learned counsel for the petitioners vehemently argued that the learned CAT has committed a gross error while issuing direction to the Railway Board to consider the case of the respondent-applicant in terms of letter dated 17.01.1974 because, the said letter was not in existence when directions were issued by the Tribunal inasmuch as on 07.07.1988 another circular letter was issued which was to be taken into consideration for the purpose of issuing directions to the petitioner Northern Railway to consider the case of the applicant although at the time of final adjudication of the original application, subsequent letter dated 07.07.1988 was not placed before the CAT; but, later 5 on, it was brought to the notice of the Tribunal. Learned Tribunal however refused to review the judgment, therefore, the judgment impugned deserves to be quashed because, for the promotion to the post of Lab. Assistant the petitioner is under obligation to follow the directions issued by the Railway Board vide letter dated 07.07.1988, in which, it is prescribed that selection shall be made on the post of Lab. Assistant against promotion quota from amongst the Lab. Attendants working in the Railway, therefore, this writ petition deserves to be allowed and order passed by the CAT in the original application (Annex.-5 dated 07.03.2000) as well as on the review petition (Annex.-7 dated 25.07.2000) may be quashed. Per contra, learned counsel appearing for the respondent contends that perusal of letter dated 07.07.1988 filed along with review petition, it is obvious that letter dated 17.01.1974, upon which, the original application was decided was not superseded; meaning thereby, the respondents were under obligation to consider the case of the applicant for the purpose of promotion as per letter dated 17.01.1974 because the petitioner was senior-most incumbent, therefore, he was initially promoted on the post of Lab Assistant in 6 the Grade of 975-1540 (NPS) vide order dated 22.02.1982 temporarily; and, even if it is presumed that on subsequent date i.e., 07.07.1988 different mode was provided by the respondents, then also, the respondents cannot deny consideration for promotion the respondent-applicant on the basis of letter dated 17.01.1974 because the applicant was already promoted on ad hoc basis against existing vacancy in the year 1982. Therefore, at the time of considering the case of the applicant for promotion the law which was in existence when the vacancy occurred for the purpose of promotion was to be taken into consideration and, admittedly, in this case, on the basis of letter dated 17.01.1974 the respondent-applicant was entitled for regular promotion on the basis of seniority in service because, in the said order, it was specifically mentioned that no written test shall be taken for the purpose of promotion; meaning thereby, the learned Tribunal rightly decided the original application filed by the respondent-applicant to consider is case in terms of letter dated 17.01.1974 on the post of Lab Assistant. In this view of the matter, there is no force in this writ petition and the writ petition deserves to be dismissed. 7 We have considered the rival submissions made by both the parties. Admittedly, respondent No.1 was initially promoted on ad hoc basis vide order dated 02.02.1982 in the pay-scale of 260-430 vide Annex.-A/3. This ad hoc promotion was made on the ground that respondent-applicant was senior-most person and vacancy was in existence against quota of promotion; meaning thereby, the case of respondent-applicant was to be considered for regularisation of promotion in terms of letter dated 17.01.1974 till 1988 when another notification was issued. Before the learned Tribunal, when the decision upon the original application was made vide judgment dated 07.03.2000, the letter dated 07.07.1988 was not on record; and, subsequently, by way of filing the review application, the said letter dated 07.07.1988 was placed before the CAT, upon which, review was sought by the Railway. Learned CAT dismissed the review petition on the ground that before adjudication of the original application a pointed query was made by the Tribunal to the counsel for the Northern Railway whether letter dated 17.01.1974 is superseded or not; but, at that time, counsel who was appearing on behalf 8 of the Northern Railway did not give any reply and, accordingly, the matter was decided on 07.03.2000, in which, it is ordered that the case of applicant- respondent for regular promotion shall be considered in terms of letter dated 17.01.1974. We have perused the said letter dated 17.011974 which is placed on record as Annex.-3. Upon perusal of Annex.-3, it is abundantly clear from para 2 that it was specifically observed that the post of Laboratory Assistant against 25% promotee quota from amongst the eligible staff in the category of Labouratory Attendants may be filled up on the seniority cum suitability basis and no written test is to be practicized; meaning thereby, only seniority and service record was to be seen for the purpose of assessing the suitability of the candidate. In this view of the matter, when the petitioner was senior-most person and was granted promotion on ad hoc basis against existing vacancy of the year 1982, then, for considering his case for promotion on regular basis, the non-applicant-petitioners were under obligation to consider his case in terms of letter dated 17.01.1974 because he was senior-most suitable candidate in the year 1982 and, so also, vacancies were in existence at 9 the relevant time. Therefore, even if it is presumed that later on vide letter dated 07.07.1988 different process of selection was made for granting promotion, then also, applicant-respondent cannot be denied the right of consideration for promotion on the basis of seniority-cum-suitability without there being any need for written test in terms of letter dated 17.01.1974. The subsequent order dated 07.07.1988 was not made applicable retrospectively. In this view of the matter, we find no force in this writ petition. Hence, this writ petition is hereby dismissed. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.