Sh. Davender Prasad Verma And Anr. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 349 Del

JUDGMENT

A.K. Sikri, J.

1. By way of this writ petition, the petitioners challenge the judgment and order dated 30th July, 1999 passed by the Central Administrative Tribunal, Principal Bench in OA No. 2444/93 which was filed by the petitioners herein. By reason of the aforesaid judgment, the OA filed by the petitioners herein was dismissed. The petitioners who were appointed as storemen with effect form 5th June, 1982 were given promotion as Material Checking Clerk (MCC) with effect from 10th March, 1993 and thereafter they were reverted back as Storemen vide order dated 9th November, 1993. This order of reversion dated 9th November, 1993 was challenged by the petitioners in the aforesaid OA. The case put forth by the petitioners was that while the petitioners were working as Storemen, some persons who had joined as Storemen later than the petitioners and were junior to them, were promoted as Material Checker(MC) ignoring the rightful claim of the petitioners. The names of these junior persons disclosed by the petitioners were Sh. Bahoram Singh and Sh. Pawan Kumar who were appointed as Storemen on 14th June, 1982 whereas the petitioners were appointed as Storemen on 5th June, 1982. When the petitioners represented against this supersession the respondents realised their mistake and promoted the petitioners as MCC. However, within few months, the petitioners were again reverted as Storemen without any rhyme or reason whereas the aforesaid junior persons were still retained as MCCs. The respondents had argued that the petitioners were only promoted as provisionally and nobody who was junior to them at the level of MCC had been continued as such. Letter dated 25th September, 1992 giving them provisional promotion was produced. In taking into consideration the language of this letter dated 25th September, 1992 which mentioned that their promotion was on provision basis and not regular, the OA filed by the petitioners was dismissed. Dealing with the contention of the counsel for the petitioners to the effect that while reverting the petitioners, their juniors were retained, the learned Tribunal observed as under:

"Whatever may be their seniority as Storemen the fact remains that some persons who joined as Storemen were infact promoted as Material Checkers form 1986 and the applicants were not given such promotion. The applicants did not approach the Tribunal in time to initiate their grievance of non-promotion as Material Checker in 1986 for a number of years after the cause of action arose. The applicants cannot now seek to reopen the question of their supersession in 1986 at such a late stage when they had filed the present OA only in November, 1993. The posts of Material Checker till it was abolished was an immediate feeder cadre for the post of Material Checking Clerk. In view of this, the so called juniors at the level of Storemen had become seniors to the applicants in the next higher grade and it cannot therefore be contended that they continued to be juniors even after they were promoted as Material Checker in the next higher grade of MCs which was earlier than that of the applicants. There is not doubt a reference in the Railway letter that the applicants should be assigned their actual seniority as MCC above their junior but it does not spell out as to who are that juniors. In such a situation their seniority as MCCs will count only form the date of their actual promotion as such and not with reference to their seniority at the level of Storemen which was initially two levels below that of MCCs. We therefore, hold that the letter dated 15.2.93 as at Annexure A-11 and 1.3.93 as at Annexure A-12 did not assign seniority to the applications above Shri Bahram Singh and Shri Pawan Kumar who had been promoted earlier."

2. After giving our considered thought to the issue at hand, we are of the opinion that the learned Tribunal has not approached the problem in correct perspective. The learned Tribunal was not right in observing that the petitioners did not approach the Tribunal in time raising the grievance of non-promotion as MC in 1986. There was no necessity for the petitioners to approach the learned Tribunal at that time as the petitioners had made representations to the department which in fact favorably considered those representations by assuaging their grievance administratively. The documents produced on record before the learned Tribunal amply demonstrate this fact. The Bridge Line Office Lajpat Nagar had forwarded their representations by letter dated 21st January, 1993 with the following recommendation:

"The above named employees were ignored while promoting the storeman as M.C. The seniority of M.C.'s was being controlled by your office at that time and all the MCs working in the sub-division were promoted by your office.

It appears that these two storemen who were senior have been ignored and junior persons have been promoted as M.C. grade Rs. 225-308(Rs)/825-1200(RPS).

Now there is a ban for promotion as storeman and the category of M.C. has since been abolished and all MCs working in Bridge Branch have been promoted as MCC grade Rs. 950-1500 as per instructions contained in your office letter No. 803/E/1/Br/WC/Misc.dt. 23.10.92

752.E/3-II/BR.

It is therefore requested that the case may please be examined at your end and action taken accordingly."

3. From the aforesaid letter, it is clear that the department accepted the fact that the petitioners had been ignored when their juniors were promoted as MCs. Since the MC category had been abolished and all MCs working in Bridge branch were promoted as MCCs, the Hqrs. was requested to examine the matter and take action accordingly. The Hqrs. did examine the matter which resulted into issuance of letter dated 15th February, 1993. This letter reads as under:

"The Chief Bridge Engineer has accorded approval to promote S/Sh. Devindra Prasad Verma & Birbal Singh Storeman as MCC Gr. 950-1500/RPS as per instructions contained in this office letter No. 752-E/3-III(BR) dated 25-9-92. They will, however, not claim the benefit of MC as they did not actually officiate that post. They should be assigned their actually officiate that post. They should be assigned their actual seniority as MCC with respect to their juniors."

4. The reading of the aforesaid letter clearly reveals that not only approval was accorded to promote the petitioners as MCCs, a direction was given to assign them the seniority as MCCs with respect to their juniors i.e. vis-a-vis the persons how had been wrongly promoted earlier after superseding the petitioners. The only rider which was put was that these two petitioners shall not claim the benefit of MC as they did not actually officiate on that post. It is thus clear form this decision of the respondents themselves that the petitioners were directed to be given the benefit of notional promotion as MCs with effect from the date their juniors were promoted, and when MCs posts stood abolished in the meantime, then actual promotion as MCCs. It was directed that they would be given seniority above the two junior persons. This was followed by anther letter dated 26th February, 1993 which is to the same effect as earlier communication dated 15th February, 1993 of the Northern Railway Hqrs. office. In view of this position borne out from the aforesaid decision taken by the department, there was no necessity for the petitioners to approach the learned Tribunal. The learned Tribunal failed to notice that the promotion given to the petitioners to the post of MCCs coupled with restoring their seniority would clearly mean that the petitioners were treated as seniors to the two persons, namely, Sh. Bahoram Singh and Mr. Pawan Kumar by the department itself and necessary orders were passed to this effect. It is on the basis of these two decisions that the promotion orders were issued in the case of the petitioners promoting them as MCCs.

5. Once the events are unfolded in the aforesaid sequence, there would not be any difficulty in holding that the reversion order dated 9th November, 1993 passed in the cases of these petitioners, was clearly illegal and in violation of Article 14 of the Constitution of Indian inasmuch as when they were reverted, their juniors were still retained. Such a reversion of the petitioners while retaining the juniors was clearly offended the equality clause enshrined in Article 14 of the Constitution of India, and therefore, there would be no hesitant in observing that such an action of the respondents was clearly arbitrary. In the case of The Manager, Govt. Branch Press and Anr. v. D.B. Belliappa , the Apex Court had occasion to consider a similar case and striking down the termination of the employee in that case when the juniors were retained, following pertinent observations were made by the Apex Court:

"Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled ti to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2), proviso

(c), the authority cannot withhold such information form the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of reasons", as Lord Denning put it in Breen v. Amalagamated Engineering Union (1971) 1 All ER 1148 "is one of the fundamentals of good administration" and, to recall the words of this Court in Khudi Ram v. State of West Bengal in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability." The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 & 16(1)."

6. No reason are forthcoming as to why the petitioner were revered except stating that the petitioners were promoted provisionally, and therefore, they had no right to hold the post. The respondents could have been justified had it been a simple case of promotion on provisional basis subject to making the promotion on regular basis and one could contend that it was only a stop-gap arrangement. However, that is not the position in the instant case. Here, as already noted above, the petitioners were given the promotion after the department had realised its mistake that the petitioners were earlier wrongly ignored when their juniors were promoted. It was to cure this illegality that the promotion orders were passed meting out fair treatment to the petitioners. However, the same was unceremoniously undone within few months for which no reasons are disclosed and now the action is sought to be justified on the purported ground that the promotion of the petitioners was 'provisional'. It may be mentioned here that when this case came up for hearing on 20th August, 2001 after hearing the learned counsel for the parties, the court, inter alia, passed the following order:

"No specific explanation has been offered by respondents for their reversion either before Tribunal or his court. It remains to be seen whether petitioners could be reverted as a matter of course because their promotion was provisional in terms of letter dated 15.2.1993.

L/C for respondents prays for adjournment to cite some judgments in support."

7. Inspite of the aforesaid order, the learned counsel for the respondents could neither come out with any cogent explanation nor could he support his case by citing any judgment.

8. The result of the aforesaid discussion is that the reversion order dated 9th November, 1993 reverting the petitioners was illegal. The learned Tribunal was therefore not correct in dismissing the OA filed by the petitioners. This writ petition is accordingly allowed.