The General Manager Vs a Thiruselvam

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.8.2010 PASSED IN O.A. No. 432/2005 BY THE CAT BANGALORE VIDE ANNEXURE-E AND ORDER DATED 30.5.2014 PASSED IN RA No.9/2011 BY THE CAT BANGALORE VIDE ANNEXURE-F AND CONSEQUENTIALLY DISMISS THE APPLICATION.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and HON'BLE MR. JUSTICE K. V. ARAVIND

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HC-KAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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Heard Sri. Ajay Prabhu M., learned Central Government Counsel for the petitioners, and Sri. Srikanth N.V., learned counsel for respondent No.1 and perused the entire writ petition papers.

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Respondent No.1, who at that point of time was working as Junior Engineer Grade-I, approached the Central Administrative Tribunal, Bengaluru Bench, Bengaluru (for short, 'the Tribunal'), questioning the promotion of respondent Nos.2 and 3 as Section Engineers and seeking promotion to the post of Section Engineer with effect from the date on which his juniors were promoted to the said post. The Tribunal, after considering the material on record, passed the following order:

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" In view of the foregoing discussions and findings, we order the following:

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The impugned orders at Annexures-A4 and A5 are quashed and set aside in so far as they relate to the promotion of respondents 4 & 5 are concerned. The official respondents are directed to consider the case of promotion of the senior most officials of JE I Grade from the regular diesel mechanical stream for promotion to the three vacancies as on 1.11.2003 in the SE grade by following the modified procedure for promotion laid down in paragraph-4 of RBE

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5/04 dated 6.1.04. This will be done within a period of 2 months from the date of receipt of a copy of this order. The one vacancy of SE in SSD stream which arose on 3.12.2003 shall be filled up as per the normal promotion procedure by considering the claim of the two JE I grade officials available in the SSD stream."

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Aggrieved by the said order, the petitioner-Railways

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filed Review Application No.09/2011 before the Tribunal. The Tribunal by order dated 30.05.2014 (Annexure-F) with the consent of all the learned counsel appearing for the parties, passed the following:

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" We heard Shri N. Amaresh, learned counsel for the Railways in great detail. He would submit that only because of the pendency of the RA, that the original order was not complied with. He would admit what had been raised in RA filed by the Railways is basically a question of factual determination once again of which had been done in the original order itself and even he is unable to point out any juncture of errors which has crept into determination. So, there is no error apparent on the face of record. We appreciate his graciousness. He would submit that after efflux of so much time and the fact that two of the concerned persons have already retired and only one person still is remaining in service may be taken as a measure of resolution of the issue and he had been continuously working in that post for so many years and have become a valuable employee because of his experience

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and an order on agreement can be passed. All counsels are in agreement. Hence;

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i). The applicant will be considered as appointed to the promotional post on the date on which his next Junior was promoted to that post and will be granted all benefits consequent upon it even though he had not been working in that promotional post even for a day, as it was not due to his fault that he had not been given his rightful promotion, and even though he had been claiming for it from day one. It shall be made available to him within two months next.

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ii). Original respondent No.4 will be allowed to continue in that post as he has already worked in that post and gained valuable experience for the Railways. Therefore even though a cloud of suspicion is arising in his promotion at that point, we are inclined to accept Railways contention it will be better if matters remain as it is.

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4. We note with concern that the Bench which was handling the matter earlier had found serious lacunae in the contentions raised by the Railways to the effect that those contentions were not only vague but also weird. But we are satisfied by the explanation now made by Shri N.Amaresh learned counsel to the effect that if at all errors had crept in it was unintentional and therefore at this juncture nothing more need to be said on this. We dispose of RA with the above directions. All the counsels agree that nothing more need to

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HC-KAR

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be done and the matter is thus disposed of. No order as to cost."

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Learned counsel for the petitioner-Railways would submit that respondent No.1 cannot claim the promotional post as a matter of right and further submits that since respondent No.1 has already retired from service, he cannot claim retrospective promotion.

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It is seen that respondent No.1 approached the Tribunal in the year 2005 with the above stated prayer, and the Tribunal allowed the application by order dated 27.08.2010, whereas respondent No.1 retired from service subsequently on 31.05.2012. Instead of implementing the order dated 27.08.2010, the petitioners approached the Tribunal by filing Review Application No.09/2011. Moreover, in the review application, the petitioner-Railways consented to the order being passed thereunder.

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Having consented to the order, and taking note of the retirement of respondent No.1 as well as the another contesting respondent, the Tribunal has rightly passed the order directing to promote the applicant from the date his next junior was promoted to the post. As the promotion due to

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respondent No.1 was denied not due to his fault, respondent No.1 was rightfully entitled to the same. Since in the review, the petitioner-Railways have consented for passing the order to promote respondent No.1, the petitioner-Railways could not have approach this Court by way of the above writ petition.

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Accordingly, the writ petition stands rejected .

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The Tribunal in its impugned order has granted two months time for compliance of its order. Taking note of the same, we also grant two months' time from today to the petitioners to comply with the order passed by the Tribunal.

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Pending I.A's if any, stand disposed of.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(K. V. ARAVIND) JUDGE

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DDU

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List No.: 1 Sl No.: 50

The General Manager v. a Thiruselvam

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The General Manager v. a Thiruselvam

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