Union Of India And Ors vs Om Prakash Gaur And Ors on 22 August, 2012

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Rajasthan High Court - Jaipur

Union Of India And Ors vs Om Prakash Gaur And Ors on 22 August, 2012

Petitioners have filed the writ petition questioning the legality of the order dated 10.11.2010 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in Original Application No.254/2009. The Tribunal has allowed the Original Application and quashed the impugned order dated 26th February, 2005. Prayer was made by the respondent No.1 before the Tribunal to quash the impugned orders dated 30th November, 2004 and 26th February, 2005 and petitioners be directed to continue the respondent No.1 in the upgraded scale w.e.f. 01.12.1998 as before with all consequential benefits.

The facts are that earlier the respondent No.1 had filed original application No.182/95 praying for direction to the petitioners to consider his candidature for promotion to Grade-III in the pay scale of Rs.1600-2660/- at par with his junior without insisting on the respondent No.1 for completing minimum prescribed years of service in the base grade under BCR Scheme, with all consequential benefits. Tribunal vide judgment dated 20th September, 2001 in O.A. No.182/95, following order was passed in para No.16 :-

16. We, therefore, allow this OA and direct the respondents to consider the candidature of the applicant for promotion to Grade-III, Rs.1600-2660, under BCR Scheme without insisting the applicant for completing the minimum prescribed service in the basis grade. All other conditions of BCR Scheme except the length of service will however be applicable while considering his promotion to Gr.III, Rs.1600-2660. In case the applicant is found suitable for promotion, he shall be promoted to Grade-III, Rs.1600-2660 with effect from the date his erstwhile junior was promoted. The applicant shall also be entitled to all consequential benefits. The above directions shall be complied within a period of 3 months from the date of receipt of a copy of this order.

The Union of India preferred D.B. Civil Writ Petition No.1543/2002 before this Court questioning the order dated 20th September, 2001. Subsequently, BSNL issued instructions dated 24th February, 2004 based upon the judgment dated 9th October, 2002 rendered by the Apex Court in Civil Appeal No.10692/95, whereby the competent authority had agreed to implement the aforesaid judgment. One of the conditions stipulated was in the following terms :-

(i) While implementing the BCR Scheme, all the officials who were promoted earlier to GR.II by virtue of passing the Limited Departmental Examination etc. and thus became senior to the officials who were promoted later to Gr.II through 2/3rd seniority quota or on the basis of length of service i.e. OTBP, even though they have not completed total 26 years of service, may be considered for promotion to BCR Gr.III, whenever their juniors in Gr.II were promoted to Gr.III on completion of 26 years of service.

Same has also been referred by the Tribunal in its order. Writ petition was admittedly withdrawn by the Union of India. The order passed by Tribunal attained finality. An order was passed on 9.8.2004 by Department, the relevant portion of the order dated 9.8.2004 is quoted below :-

...the competent authority on the advice of othe review DPC is pleased to promote the following officials from Grade-II to Grade-III in the scale of Rs.1600-50-2300-60-2660 (CDA) on the following terms and conditions w.e.f the dates given in front of them by comparing with Sh.Nanag Ram Sharma who got BCR w.e.f.18.12.92 and is junior to below given officials, without insisting on their completion of 26 years of service.

The respondent No.1 was granted the benefit of Gr.III under BCR Scheme w.e.f. 1.7.1993. The said benefit was required to be extended to the respondent No.1 w.e.f. 18.12.1992 i.e. the date from which such benefit was given to his junior Shri Nanag Ram Sharma, however, the respondent No.1 is not aggrieved by granting the benefit with effect from 1.7.1993. Grievance of the respondent No.1 in this case is regarding order dated 26.02.2005 whereby the AO(Cash) was directed to take corrective measures for recovery of the undue amount paid to the respondent No.1 on account of wrong fixation.

Tribunal has allowed the application and has quashed the order dated 26.2.2005. Stand taken by the petitioners in the reply is the same which was taken in the earlier original application dealt with by the Tribunal. The Tribunal in the impugned order has held that :-

4. The stand taken by the respondents in the reply is the same which was taken by them in the earlier OA and noticed by this Tribunal in para-3 of the judgment (Ann.A/4). However, this Tribunal, after noticing the stand taken by the respondents in the reply in the earlier OA, had given specific direction that the applicant be promoted to Gr.III under BCR Scheme without insisting him for completing the minimum prescribed service in the base grade. Thus, in view of this categorical finding given by this Tribunal in the earlier OA, relevant portion of which has been reproduced above, the question which requires our consideration is whether it was permissible for the respondents to ignore the categorical finding given by this Tribunal which has attained finality by issuing the impugned order (Ann.A/2) especially when the respondents have themselves implemented the judgment of this Tribunal vide order dated 9.8.2004 (Ann.A/5) by granting the benefit of the pay scale of Rs. 1600-2660 to the applicant w.e.f. 1.7.1993 and restructured scale of Rs.5500-9000 w.e.f. 1.12.1998. According to us, such a course was not permissible for the respondents especially when the judgment of this Tribunal had attained finality and even the writ petition filed by the respondents against the earlier judgment passed by this Tribunal had also been withdrawn. Not only that, the judgment given by this Tribunal has also been implemented. Thus, in such a situation, we fail to see how the respondents can reopen the entire issue which was given quietus in the year 2004 not only by withdrawing the writ petition put also by implementing the judgment of this Tribunal.

5. At this stage, we wish to notice the judgment of the Apex Court in the case of Shiv Pujan Prasad (Dead) by Lrs. V. State of U.P. & Anr. [JT 2009 (14) SC 526]. That was a case where the appellant, Shiv Pujan Prasad, was initially appointed as an Overseer in the Public Works Department of the State of UP. Subsequently, he was promoted to the post of Assistant Engineer against the post reserved for Scheduled Caste category. However, he was reverted from the said post as it was found that he did not belong to Scheduled Caste category. Aggrieved by the order of reversion, writ petition was filed before the Lucknow Bench of the Allahabad High Court, which was dismissed. Subsequently, the matter was brought up to the Apex Court. The Apex Court set aside the judgment as the impugned order was passed without giving any effective opportunity to submit his defence. The Apex Court directed the District Collector, Varanasi, to hold a fresh inquiry after giving reasonable opportunity to Shiv Pujan Prasad to defend his case. He was also permitted to hold the post of Assistant Engineer and it was ordered that his further posting would be governed by the outcome of the inquiry which was directed to be completed within two months. Pursuant to the direction given by the Apex Court, fresh inquiry was held and it was found that Shiv Punjan Prasad belonged to Manjhi (Majhwar) by caste, which is a scheduled caste. A copy of the inquiry report was also sent to the Registrar of the Supreme Court. Subsequently, at the instance of a third, fresh inquiry was conducted. Under these circumstances, the Apex Court held that the department was not justified in reopening the issue at the instance of third party and it was not permissible for the government to conduct fresh inquiry especially when the department had accepted the earlier inquiry report. It was further held that there was a clear finding of the High Court that the appellant had not forged the caste certificate and that finding has become final. Under these circumstances, a direction was issued to release all his dues. The ratio as laid down by the Apex Court in the case of Shiv Pujan Prasad is clearly affected in the facts and circumstances of this case. In the instant case also the direction given by this Tribunal in the earlier OA has not only attained finality but the same was also implemented by the respondents themselves, as already stated above. Thus, it was not permissible for the respondents to ignore the earlier order dated 9.8.2004 (Ann.A/5) by issuing the impugned order (Ann.A/2), contrary to the direction given by this Tribunal in the earlier OA.

After hearing learned counsel for the petitioners at length, we are satisfied that the matter is squarely covered by the earlier decision of which elaborate discussion has been made by the Tribunal in the impugned order. No interference is called for in the impugned order. Earlier Writ petition was dismissed as withdrawn against order of Tribunal dated 20th September, 2001. Order dated 20th September, 2001 has attained finality.

In view of above discussion, Writ Petition is dismissed. No costs.

 (NARENDRA KUMAR JAIN-I),J.        (ARUN MISHRA),CJ.

Sanjay
S.No 68.

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

Sanjay Solanki JUNIOR PERSONAL ASSISTANT.

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Rajasthan High Court - Jaipur