Union Of India Through The General ... vs Champeshwar Rajhans
2022 Latest Caselaw 39 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No. 937 of 2015
    1.     Union of India through the General Manager of South Eastern
    Railway/Garden Reach, Kolkata represented by the Senior Divisional
    Personnels Officer, namely, D.N. Diggi, South Eastern Railway,
    Chakradharpur Division at Chakradharpur, District :- West Singhbhum State:-
    Jharkhand
    2.     The Senior Divisional Personnel Officer, South Eastern Railway,
    Chakradharpur Division at Chakradharpur, P.O. & P.S. :- Chakradharpur,
    District :- West Singhbhum, namely, D.N. Diggi, S/o Lt. Mahendranath Diggi

                                                          ...     ...      Petitioners
                                      Versus
    Champeshwar Rajhans                    ... ...  Respondent
                     ---------

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

Through Video Conferencing

For the Petitioners : Mr. Mahesh Tiwary, Advocate For the Respondent : Mrs. M.M. Pal, Sr. Advocate

---------

12/05.01.2022 Heard learned counsel for the petitioners Mr. Mahesh Tiwary and learned Senior Counsel for the respondent Ms. M.M. Pal.

2. Respondent is one of the 50 candidates out of total 1837 candidates empaneled as Gangman by Senior Divisional Personal Officer, Chakradharpur by order dated 23rd May, 1999 who were declared medically unfit in the prescribed medical category. Since none of the candidates was given alternative appointment by the Railway Administration, several such applicants moved the learned Central Administrative Tribunal and were appointed on provisional basis by orders passed in their original applications. Initially on 26th February, 2010, 5th April, 2010 and 21st March, 2013 eight such candidates were granted provisional appointment. Thereafter, pursuant to the orders passed in the contempt petitions by the learned Tribunal, 18 others were also provisionally appointed. The last candidate, i.e. Shri Basudev Singh was appointed on 16th May, 2013 pursuant to the order passed in O.A. No. 65 of 2010. As such, in total 23 candidates out of 50, who were found medically unfit, have been given provisional appointment. Four did not turn up. One applicant Rajan Gope expired (O.A. No. 194 of 2010). The case of one applicant Sri Chandrashekhar was dismissed by the learned Tribunal and the writ petition filed against the order of the Tribunal is still sub-judice. Another applicant Shri Biswanath Samadar has preferred original

application in 2020 bearing no 184 of 2020, which is sub judice before the learned C.A.T. One Shri Sujeet Kumar Prasad, applicant in O.A. No. 172 of 2010 was declared unfit in Cye One and below category. The Railways had preferred writ petitions against the orders passed in O.A. No. 30 of 2008 and 32 of 2008, in which no stay was granted vide order dated 14th October, 2009 passed by this court in W.P.(S) No. 2207 of 2009 (Annexure D to the counter affidavit). This writ petition has been dismissed for default as per the statement made by learned Senior Counsel for the respondent.

3. This applicant's/respondent's O.A. bearing No. 051/00004/2014 with M.A.051/00039/2014 was allowed by the learned Tribunal vide order dated 31st October, 2014 directing the Railways to extend similar benefits to this applicant as have been given to the applicants in O.A. No. 176 of 2010 [R] and O.A. No. 65 of 2010 [R]. The operative portion of the order passed by the learned C.A.T. is quoted hereunder:

"6. Heard the parties and considered their arguments/submissions/ documents. The facts/views which emerge are as below:-

[a] The sum and substance of the applicant's arguments have their roots in a number of judgments passed, [over the years and recently] by this Tribunal in similar matters. In this regard, it is also noted that the judgment of this Tribunal in OA 176 of 2010 [R] dated 10.07.2012 is based on the judgment in another case i.e., OA 65 of 2010 [R]. Further, that the judgment in OA 65 of 2010 [R] itself has touched upon a number of other decisions. That being the case, and to extent the judgment in OA 176 of 2010[R] also extensively refers to the same, it appears appropriate [for the sake of easy comprehension] to reproduce the relevant extracts as below:-

"2. in common orders in OA 84 of 2006 with OA 136 of 2006 and OA 30 of 2008 with OA 32 of 2008 filed by similarly situated candidates, the matter was considered by this Tribunal. In the order passed in OA 84 of 2006 with OA 136 of 2006, the Tribunal directed the respondents to confer appointment on Group 'D' post with require only C- 1 medical standard w.e.f prospective date. In OA 30/2008 & 32/2008 also similar order was passed by the Tribunal taking note of the order passed in OA 84/2006 with OA 136/2006. The applicant has, therefore, prayed for extending the benefit of alternative appointment to the applicant at par with the same and similarly situated persons in the aforementioned O.As.

3. Heard the learned counsel for both the sides.

4. It is noted that in OA 65/2010 in the matter of Mespal Guria and 2 others vs. Union of India and others, there was a dissenting opinion between the two members of the Division Bench and the matter was referred to Full Bench. The Full Bench of the Tribunal as constituted by the Hon'ble Chairman, CAT, Principal Bench comprising two

of us have today passed the order in the said OA. The relevant portion of the said order in paras 16 to 19 are as follows:-

"16. What emerges from the discussion made hereinabove are:

[i] The present dispute is solely confined to the employment notice of 05.05.1998 and its selectees which arose due to a different view of a collateral Bench in OA No 74 of 2009;

[ii] The Railway Board's circular of 25.09.2009 which has finally settled the score having expressly debarred alternative employment even to RRB selectees, has been made applicable prospectively, i.e. only to post 25.09.2009 recruitees/selectees in OA 653/2009;

[iii] The present applicants are bye-products of 05.05.1998 employment notice and are as such similarly circumstanced to the applicants of OAs 113/114 of 2005, OAs 84 and 136 of 2006, OAs 30 and 32 of 2008 and OA 23 of 2010.

They are aggrieved by the same and similar speaking orders issued on 08.01.2008, challenged in OA 30 and 32 of 2008 and OA 23 of 2010, hence deserve same and similar benefits so long the issue is not settled by the higher forum. [iv] The issue of applicability of the Railway Board's circular of 2000 to non RRB, Group 'D' selectees selected and Divisional Level is subjudice before the Hon'ble High Court at Ranchi in W.P. No. 2259 of 2009, which is filed against the decisions in OA 30 and 32 of 2008. However, no appeal is said to be filed against the decision in OA 23 of 2010 as yet.

[v] It appears that OA 74 of 2009 in which the Collateral Bench took a different view, was decided during pendency of WP 2259 of 2009 and the latest decision of this Tribunal which is in OA 23 of 2010 is not yet reversed in appeal.

17. The said writ petition being 2259 of 2009 is still subjudice. Perusing a copy of the writ petition, it is noticed that the dispute regarding applicability of the circulars of 2000, to non RRB candidates, is an issue raised also before the Hon'ble High Court, which is yet to be decided The issue being subjudice before the Hon'ble High Court, there is no escape from the conclusion that this Bench cannot venture to over-step its jurisdictional limitation of being subject to the decision of the Hon'ble High Court and encroach upon the judicial supremacy of the Hon'ble High Court to decide the issue which is already subjudice therein.

18. That the recommendations of the Division Bench Members to get the issue decided by a Larger Bench was probably made ignoring the fact that the same issue is subjudice before the Hon'ble High Court in Ranchi.

19. Since the decision of a Tribunal cannot be impeached collaterally and is binding until reversed on appeal, till the issue is finally decided in W.P. No. 2259 of 2009, we think it appropriate to direct the authorities to grant the benefit of OA 23 of 2010 to the present applicants, subject to the outcome of the decision of the Hon'ble High Court at Ranchi in WP 2259 of 2009. It is however, made clear that this order is restricted only to the candidates selected of 05.05.1998 notification."

5. The learned counsel of both sides agreed that the applicant in the instant OA was also a candidate selected

on the basis of notification dated 05.05.1998 and his case was similarly placed with those of applicants in OA No.65 of 2010 [R]. He also agreed that the instant OA is fully covered by the judgment of the Full Bench.

6. Considering the submissions made by the parties, this OA is, disposed of with direction to the respondents to extend the same benefits to the applicant of this OA as ordered in the order dated 10.07.2012 passed by full Bench of this Tribunal in OA 65/2010."

[b] Given the facts and circumstances of this case, as evident from the records/ pleadings, and the judicial background /history outlined above, there seems to be no doubt that the case of the applicant, who was also a candidate selected on the basis of notification dated 5.5.1998, is also entirely similarly situated as that of the applicants in other O.As i.e., 176 of 2012 and 65 of 2010 who had been granted relief in the past by virtue of judgments of this Tribunal.

[c] That being the case, there is substantive merit in the submissions of the applicant. By not considering his request for appointment to an alternative post, the respondents appear to have acted arbitrarily as also in a manner discriminatory to the applicant. In the circumstances, there is an ample justification to condone the delay of the applicant in filing this OA. Even otherwise, similar O.A.s have been admitted and heard over the years, even recently. In coming to this conclusion, this Tribunal also takes note of standing judicial rulings which hold that delays per se cannot obliterate the substantive claims of an aggrieved party, since dispensation of justice is [and remains] the primary objective. As a result, MA/051/00039/2014 is allowed.

7. In sum, this Tribunal holds that the applicant is entitled to the same benefits as have been extended to the applicants in OA 176 of 2010 [R] and the applicants in OA 65 of 2010 [R]. As such, this OA succeeds and the reliefs prayed for in para 8 of this OA are allowed. The respondents are directed to take further appropriate and consequential action within a period of three months from the date of receipt/communication of this order.

8. Accordingly, this OA along with MA /051/00039/2014 stands disposed in terms of the above directions. No order as to costs."

4. The delay in approaching the learned Tribunal was also condoned on being satisfied with the explanation urged and in particular the history of the previous litigations by other applicants and the decision of the full Bench of the learned C.A.T. in O.A. No. 65 of 2010. Railways have challenged the order passed by the learned Tribunal primarily on two grounds. One, that the original application was filed after 16 years of creation of the panel on 5 th May, 1998 and the other being that the rule for alternative appointment to medically unfit candidates in Non-technical categories was introduced by General Manager vide Railway Board's letter dated 20th August, 1999

(RBE No. 211/ 99) circulated under South Eastern Railway Establishment Serial No. 215/99. However, the power to offer alternative appointment to medically unfit candidates has ceased to exist after issuance of letter No. 99/E(RRB)/25/12 dated 25th May, 2009. Therefore, according to the learned counsel for the petitioners, the rule for providing appointment to non-technical categories did not exist now. The question of considering respondent's case therefore does not arise. However, the other applicants have been diligently pursuing their grievances before the Railway Administration and the learned courts and therefore, the benefits thereof should not be extended to the present respondent, who has approached the learned C.A.T. after 16 years.

5. Learned counsel for the applicant/respondent submits that approach of the Railways in offering employment to the candidates who had approached the C.A.T. earlier is discriminatory as all such candidates stood on equal footing after being declared medically unfit and if the rule provided for granting alternative employment, the cases of all those should have been considered at par. It is further submitted that there is no deliberate delay on the part of this applicant in approaching the learned C.A.T. since the last candidate, i.e. Sri Basudev Singh has been granted provisional appointment on 16th May, 2013. It is submitted that the Railways are not diligent in pursuing their challenge to the orders passed by the learned C.A.T. as writ petition preferred by them being W.P.(S) No.2207 of 2009 has been dismissed for default in 2017 and till date it has not been restored. It is submitted that in such circumstances, since the order of the learned Tribunal does not suffer from any perversity and the delay in moving the learned Tribunal has also been condoned, on being satisfied with the explanation and the history of litigation, no interference is called for in the impugned order.

6. We have considered the submission of the learned counsel for the parties and taken note of the rival pleadings on record. We have also gone through the impugned order and the supplementary affidavit filed by the petitioners pursuant to the order dated 17th January, 2021 whereby this Court had posed two questions upon the petitioners:

(A) As to how many candidates in the panel of 5th May, 1998 have been offered alternative employment on they being found medically unfit for B-1 B-2 categories and (B) The date by which the last appointment has been given to any of the candidates.

7. The contents of the supplementary affidavit have been taken note of in the opening paragraph of this order. It appears that out of 50 such medically unfit candidates out of total 1837 candidates empanelled as Gangman by Senior Personnel Officer, Chakradharpur's panel dated 23rd May, 1999, twenty three (23) have been offered appointment pursuant to the order passed by the learned tribunal from time to time and the last one, who has been conferred appointment on provisional basis is Shri Basudev Singh, who was appointed on 16th May, 2013. It further appears that though the Railways, being aggrieved by the order of the learned Tribunal, has preferred W.P.(S) No. 2207 of 2009 but this court has refused to grant any stay upon the order passed by the learned Tribunal. The said writ petition has been dismissed for default due to non-representation on the part of the Railways on 6th April, 2017. The learned Tribunal has considered the case of the applicant on grounds of parity as would appear from the operative part of the impugned order quoted hereinabove. Railways have been granting provisional appointment to the other applicants who approached the learned Tribunal and got orders in their favour, the last appointment having been made in May, 2013. In that background, we are of the view that the claim of this respondent should not be denied on technical grounds of having approached the learned Tribunal in the year 2014 when otherwise all such medically unfit candidates including those 23 who were offered appointment on provisional basis stood on the same footing. However, we are also conscious that this recourse to seek relief after prolonged delay should not be encouraged as the right of affected persons also gets extinguished over a period of time if they sleep and snore and do not approach the court in reasonable time.

8. As such taking an overall view of the matter, we are of the opinion that the impugned order passed by the learned Tribunal

does not call for any interference in the facts and circumstances and for the reasons discussed hereinabove.

9. However, we make it clear that the case of the respondent should not be treated as a precedent for other such persons approaching the court after a prolonged delay.

10. The writ petition is accordingly dismissed.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.)

sm/ pramanik