Delhi High Court
Union Of India vs Sh. Vipul Nautiyal on 25 March, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.12760/2009
%
Date of Decision: 25.03.2010
Union of India .... Petitioner
Through Mr.Chandan Kumar, Advocate for the
Petitioner.
Versus
Sh. Vipul Nautiyal .... 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 NO
in the Digest?
ANIL KUMAR, J.
*
The petitioner, Union of India through the General Manager,
Northern Railway, Baroda House, New Delhi, has challenged the order
dated 24th August, 2009 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi in T.A. No.834/2009, titled as 'Sh.Vipul
Nautiyal v. Union of India' allowing the original application of the
respondent and directing them to consider the application of the
respondent on a methodology evolved by the petitioner for promotion as
AOM, and on his selection, to post him within a period of 3 months
from the date of receipt of the copy of the said order.
The respondent had challenged his non selection for promotion
from Group C to B to the post of AOM against 30% quota vacancies.
The respondent had earlier been transferred from Bangalore and he had
joined to a lower post at Moradabad and was regularized in the Scale of
Rs.5,000-8,000/- on 2nd August, 2002. For promotion from Group C to
B, a notification dated 30th July, 2008 was issued contemplating that as
on 1st August, 2007 an employee ought to have had five years service in
the grade. According to the respondent on 1st August, 2007 he fulfilled
the eligibility criteria, but his candidature was not considered though
he was placed in the grade of Rs.5,000/-8,000/- on 2nd August, 2002
and by 1st August, 2007 he had completed five years.
The respondent also contended that even before 2nd August, 2002
he had completed two years four months service in the regular grade of
Rs.5,000-8,000/- as he was promoted in the regular grade of Rs.5,000-
8,000/- in July, 1997 at Bangalore Southern Railways, however, in the
December, 1999 he was transferred to at Harawala Station, Moradabad
Division Northern Railways.
Another plea of the respondent is that when he was transferred to
Moradabad Division as per rules, he was placed at the bottom seniority,
though he was spared to join at Motichur Railway Station on 12th July,
2002, and he joined his promotional grade of Rs.5,000-8,000/- at
Motichur Railway Station, on 12th July, 2002 on which post he
continues till today.
Though the notification dated 30th July, 2008 contemplated five
years service on 1st August, 2008 in the grade which had been
completed by the respondent, however, he was not considered resulting
into filing of original application by the respondent which has been
allowed by order dated 24th August, 2009. While allowing the original
application, the Tribunal relied on UPSC vs. Satyanarayan (2009) 2 SCC
(L&S), 265 and held that the notification did not contemplate
continuous service of five years service and the service earlier rendered
by the respondent also ought to have been considered by the petitioner,
and considering the entirety of facts and circumstances, it could not be
held that the respondent did not have five years service in the said
grade for consideration for selection for promotion as he fulfilled the
criteria.
The learned counsel for the petitioner is unable to explain as to
how the respondent did not fulfill the eligibility criteria as he has
already been placed in the regular grade of Rs.5,000-8,000/- in July,
1997 on which he worked in July, 1999, and then he was again
promoted to regular grade of Rs.5,000-8,000/- in June, 2002 and
thereafter he was placed in the said grade at Motichur Railway Station
on 12th July, 2008. In the circumstances, it cannot be held that the
respondent did not fulfill the eligibility criteria of five years of service in
the said grade.
The petitioner has also filed an affidavit dated 25.11.2009 of Sh.
R.K. Lohra, Divisional Personal Officer, DRM Office, Moradabad during
the pendency of the present writ petition deposing that frequent
selection process is governed by Para 2012 of IREM Volume-1, which
contemplates that the selection for appointment to Group B post should
be held twice in a year. It also contemplates that due to unforeseen
development if for new post, upgradation etc., the panel is exhausted
and if biennial selection is away by more than 6 months then fresh
selection should be held. The affidavit dated 01.02.2010 further
discloses that a letter dated 01.02.2010 was issued to the respondent
subject to outcome of the present petition stipulating that selection for
Group B Post of AOM against 30% quota has been initiated by Head
Quarter Officer which also has one Scheduled Category vacancy for
which last date to submit the application form in the Divisional Office
was 11.01.2010, and consequently, the respondent may submit his
application to appear in the said selection subject to final outcome of
the W.P.(C) No.12760/2009.
Apparently on the basis of the said letter dated 01.01.2010, the
petitioner cannot decline to comply with the order of the Tribunal
directing them to consider the applicant for promotion as AOM, and in
case he is selected, to post him on the post of AOM within a period of 3
months from the date of the order of the Tribunal
The learned counsel for the petitioner has failed to explain as to
why the respondent was not considered for promotion within three
months after order dated 24th August, 2009 as on filing of the present
petition on 28th October, 2009, no stay order against the order dated
24th August, 2009 has been granted by this Court.
Though in the affidavit dated 01.02.2010, it is stated that the
respondent has accepted to participate in the selection process,
however, nothing has been produced prima facie to show that the
respondent has to be considered only pursuant to the fresh application
invited by the petitioner by letter dated 01.01.2010 from the
respondent, as the order of the Tribunal is that the respondent has to
be considered for promotion to the post of AOM and on his selection he
is to be posted as AOM which order has not been stayed or varied by
this Court.
In the totality of the facts and circumstances, the learned counsel
for the petitioner has failed to make out any ground for interference by
this court with the order of the Tribunal dated 24th August, 2009
holding that the respondent was entitled for consideration for selection
pursuant to Notification dated 30th July, 2008.
In the circumstances, this Court does not find any such illegality
or irregularity in the order of the Tribunal dated 24th August, 2009,
which shall require any interference by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India. The writ
petitioner rather should comply with the order of the Tribunal dated
24th August, 2009 forthwith. Therefore writ petition is without any merit
and it is dismissed.
ANIL KUMAR, J.
MARCH 25, 2010 MOOL CHAND GARG, J.
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