Union Of India & Others vs Sh.Ashok Kumar
2010 Latest Caselaw 452 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.13012/2009

%                         Date of Decision: 27.01.2010

Union of India & Others                              .... Petitioners
                     Through Mr.Amit Dubey, Advocate


                                  Versus

Sh.Ashok Kumar                                             .... Respondent
                          Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be                  YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                     NO
3.    Whether the judgment should be reported in                 NO
      the Digest?

ANIL KUMAR, J.

*

The petitioners has challenged the order dated 31st October, 2008

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No.850 of 2008 titled Ashok Kumar v. General Manager,

Northern Railway, directing petitioners to hold a review DPC to consider

the claim of the respondent for promotion to the post of Loco

Pilot/Goods Driver and in case the respondent is found fit for promotion

by review DPC then to grant all the consequential benefits from the date

the juniors to the respondent were promoted. The petitioners has also

challenged the order passed by the Central Administrative Tribunal in

CP No.155 of 2009 titled Ashok Kumar v. Shri Vivek Sahai and others

whereby pursuant to order dated 8th July, 2009 promoting the

respondent notionally and not granting arrears from 25th January,

2006, the petitioners were directed to grant all the arrears from the date

the juniors to the respondent were promoted.

While directing the petitioners to hold a review DPC, the Tribunal

had noted in its order dated 31st October, 2008 that since methodology

of promotion had not been followed by the DPC as per the rules and

procedures, which was challenged by the respondent as his service

record from Nagpur Division was not called before declaring the panel

for promotion and service record of only 16 days' working of respondent

in Delhi was considered, the petitioners were directed to hold a review

DPC to consider the claim of the respondent for promotion after

considering all the relevant material in accordance with the rules. The

Tribunal had categorically held that considering only the working report

of 16 days in Delhi Division was not appropriate for not including the

respondent in the panel of promotion.

The order dated 31st October, 2008 was not challenged by the

petitioners rather after holding a review DPC an order dated 8th July,

2009 was passed allowing promotion to the respondent. However, while

promoting the respondent, he was promoted notionally without granting

the arrears from the date the juniors to the respondent were promoted.

The order dated 31st October, 2008 which was not challenged by the

petitioners was categorical that in case the respondent is found fit for

promotion by the review DPC, the respondent shall be entitled to all

consequential benefits from the date his juniors has been promoted. If

order dated 31st October, 2008 was not challenged and rather review

DPC was held and the respondent was promoted from 8th July, 2009,

why the respondent shall not be entitled for arrears from 25th January,

2006 when juniors to the respondents were promoted has not been

explained by the learned counsel for the petitioners.

The petitioners has challenged the order dated 31st October, 2008

the in the present petition after holding a review DPC and

recommending promotion of the respondent. In the circumstances

petitioners cannot impugn the said order. For promotion of the

respondent, his entire record had to be considered and not for just 16

days when he was posted at Delhi. The Tribunal while passing the order

had also held that in case of respondent shall be found suitable for

promotion by review DPC, he shall also be entitled for all the

consequential benefits. Despite the specific order to hold the review

DPC and in case the respondent is found fit for promotion, grant all

consequential benefits, the respondent had been given only notional

promotion. The respondent, therefore, had filed a contempt petition

being CP No.155 of 2009 which was also disposed of by order dated 9th

July, 2009 directing the petitioner to pay actual arrears accrued to the

respondent within a period of one month.

Why the order had not been complied with has not been

explained nor any grounds have been disclosed for varying or modifying

the said order dated 31st October, 2008. The respondent was not

promoted on account of non consideration of his entire relevant record.

The respondent cannot be faulted for this and in the circumstances, he

cannot be deprived of consequential benefits. In the circumstances, the

writ petition is without any merit and is liable to be dismissed.

The writ petition, in the facts and circumstances, is dismissed.

However, pursuant to the order of this Court, the amount due to the

respondent was deposited by the petitioners with this court. Notice of

dismissal of the petition and the amount lying deposited be sent to the

respondent who shall be entitled to withdraw the amount in the facts

and circumstances.

The petitioners are also directed to intimate the respondent about

the dismissal of the petition and the amount deposited by the petitioner

in the Court which the respondent is entitled to receive.

ANIL KUMAR, J.

January 27, 2010                               MOOL CHAND GARG, J.
'anb/Dev'