Central Administrative Tribunal - Allahabad
Mukhtar Prasad S/O Late Parahu Yadav vs Union Of India Through General Manager on 3 May, 2016
Reserved on (03.03.2016) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (This the 03rd Day of May, 2016) Honble Mr. Justice Dinesh Gupta-JM Honble Ms. Nita Chowdhury-AM M.A. No.330/02806 of 2015 In Original Application No.1143 of 2011 (U/S 19, Administrative Tribunal Act, 1985) Mukhtar Prasad S/o Late Parahu Yadav, R/o Sakaldiha Road Alinagar, P.O.- Ali Nagar, District-Chanduali and Posted on the post of Electric Cleaner, N.C.R., Mugalsarai. . Applicant By Advocate: Shri Vinod Kumar Versus 1. Union of India through General Manager, North Central Railway, Allahabad. 2. The Divisional Railway Manager, North Central Railway, Allahabad. 3. The Divisional Personnel Officer, North Central Railway, Allahabad. . Respondents By Advocate: Shri P. Mathur O R D E R
Delivered by Honble Mr. Justice Dinesh Gupta-Member (J) Heard Shri Vinod Kumar, Counsel for the applicant and Shri P. Mathur, counsel for the respondents.
2. By filing this Original Application under section 19 of Central Administrative Tribunal Act, 1985 the applicant is seeking following main relief(s):-
(i) quash the order dated 18.01.2006 passed by the respondent No.3 whereby he has cancelled the selection of the applicant for the post of Assistant Loco Pilot (Diesel/Electric) grade of 3050-4590 (RSRP) of which written examination was held on 09.07.2005 communicated to the applicant vide letter dated 2/8.02.2007 (filed as Annexure No. A-1 of compilation I to this Original Application) and direct the respondents to declare the result of viva-voce.
(ii) Directing the respondents to promote the applicant on the post of Assistant Loco Pilot (Diesel/Electric) Grade of 3050-4590 (RSRP).
2. Later on, on 08.12.2015 applicant filed delay condonation application along with affidavit for condoning the delay in filing the Original Application.
3. As per contention of the applicant by way of affidavit it is stated that admittedly, the applicant has instituted the aforesaid O.A. against the impugned order dated 18.01.2006 passed by the respondents, whereby his candidature was rejected by the respondents along with 07 other similarly situated candidates.
4. All the aggrieved candidates approached before this Tribunal by filing Original Application No.301/2007 (V.K. Verma & Ors. Vs. U.I.O. and Ors). The applicant also approached along with them and signed the Vakalatnama, but due to inadvertent typing mistake, the name of the applicant could not be incorporated as one of the applicant in the arrays of party, which was caused due to typing mistake and the same could not be noticed by his counsel, while filing the said Original Application. However, at the later stage it was noticed by his counsel and moved the Correction Application No.5616 of 2010 in the said O.A. with permission to add the name of the applicant (Mukhtar Prashad) in the array of party.
5. The aforesaid Correction Application was disposed of by this Tribunal on 11.05.2011 observing therein that the applicant will take other legal recourse available to him under the law. Meaning thereby as per liberty provided by the Tribunal, the applicant has instituted the aforesaid O.A. for his claim.
6. It is made clear that having aforesaid liberty the applicant has filed the present Original Application which is well within time, and as such no delay has been caused deliberately or intentional while filing the O.A. therefore, the same is liable to be condoned by this Honble Court.
7. The respondents filed objection to the said delay condonation application and contended that the impugned order dated 18.01.2006 through which the entire selection due to certain discrepancies in the selection for the post of Loco Pilot and for which written examination was held on 09.07.2005 was cancelled by the Competent Authority. The order dated 02/08.02.2007 is in respect of one Shri V.K. Verma and others and not a communication to the applicant.
8. Further, it was contended that the applicant was not party to the proceeding as initiated by Sri V.K. Verma and others by filing Original Application No.301 of 2007 which can clearly be appreciated from the copy of the order.
9. In fact, two Original Applications were decided by a common order dated 09.12.2010. The Correction Application No.5616 of 2010 filed by the applicant was dismissed by this Tribunal vide order dated 11.05.2011 on the request of the applicant without any liberty to file a fresh petition except to take recourse of legal remedy available and as such the interpretation as made by the applicant for granting any liberty is based on hypothetical presumptions and is not sustainable.
10. It was further contended that in pursuance of the direction of the Honble High Court dated 21.02.2014 through which a liberty was granted that a person will not be entitled for appointment under the order of this Court in case they are found ineligible being overage on the relevant date in accordance with the rules and as per the terms of the selection of the year 2005 for promotion and accordingly the case of the applicant was also considered by the respondents by passing a detailed order dated 22.10.2014, which clearly demonstrate that on the date when the notification dated 02.03.2005 was issued the applicant was 43 years 3 months and 25 days and does not fulfill the age criteria. The order passed by the respondents in respect of the aforesaid selection has become final and admittedly could not be the subject matter of the present O.A.
11. It is further submitted that the applicant is failed to explain the day to day delay as required under the Act and the explanation given by the applicant is based on surmises and conjecture and deserved to be dismissed.
12. Counsel for the applicant submitted and reiterated the facts narrated by him in the application and also relied upon 1997 (4) SLR 771 (K.C.Sharma & Ors. Vs UOI & Ors) and submitted that in fact the applicant also intended to join the other applicants but due to inadvertence mistake his name could not be find place in the array of the party. He moved correction application and the same was also dismissed with the condition that he can approach the court for proper legal remedy and thus the Court has granted him liberty to file the present O.A.
13. Counsel for the respondents vehemently opposed the application and reiterated the facts stated by them in their objection.
14. We are unable to accept the contention raised by counsel for the applicant. The O.A. No.301 of 2007 filed by V.K. Verma & Ors in the year 2007 and it was decided on 09.12.2010 along with another O.A. No.387 of 2007 (Mohan Lal Yadav vs. Union of India & Ors.). Correction Application as stated by the applicant filed after the pronouncement of the decision i.e. on 23.12.2010. Since, after the pronouncement of the order, the correction application was in fact not a correction application and was not maintainable and on the submission of the counsel for the applicant that he wants to withdraw the application because there are certain legal lacunas, the application was dismissed as withdrawn by this Court with liberty to take recourse to other legal remedy available vide order dated 11.5.2011. Thus, the applicant cannot take the presumption that he was given liberty to file fresh O.A. The applicant has to show before this Court the delay in filing this O.A. challenging the order dated 18.01.2006 to which we afraid that the applicant has failed to explain and the case law cited by the applicant will also not help to him as it stands on different facts.
15. The disposal of the Correction Application by simply withdrawing the same will not give any ground to the applicant for condoning the delay. Hence, the applicant has failed to satisfy the Court to explain the delay and as such the Delay Condonation Application lacks merit and deserves to be dismissed. Accordingly, it is dismissed.
16. So far as the merit of the case is also concerned, the respondents filed writ petition No.15088 of 2011 (Union of India vs. CAT & Ors) before Honble High Court against the order passed by this Court in O.A. No.301 of 2007 and the Honble High Court decided the said writ petition vide order dated 21.2.2014 and finally dismissed the writ petition with the observation that we find no good ground to interfere with the order impugned. However, it is clarified that if any candidates found ineligible for whatsoever reason it may be, being overage on the relevant date or ineligible in accordance with the rules applicable on the relevant dates as per the terms of selection of the year 2005 for promotion on the post of Assistant Loco Pilot then such a person will not be entitled of appointment only because of the order of the Tribunal or the order of this Court. On qualified eligible applicants may be given appointment.
17. In the light of the above order and this Court order, the applicant in O.A. No.301 of 2007 (V.K. Verma & Ors vs. UOI & Ors) including the applicant, were considered by the respondents and the respondents passed a reasoned and detailed order not only in respect of applicant of O.A. No.301 of 2007 but also in respect of present applicant (Mukhtar Prasad) and in case of the applicant, a detailed order was passed on 22.02.2014 and found him ineligible for appointment on the reasons that the applicant does not fulfill the age criteria and passed maximum required age. This fact was also brought by the respondents by way of affidavit. Hence, the applicant even if succeed in the O.A and get the relief which the applicants of O.A. No.301 of 207 got, it will serve no purpose as the applicant and other persons were already considered by the respondents in the light of the order of this Court as well as in the light of the order of Honble High Court and the applicant was declared unfit on the ground of overage.
18. In this way, the O.A. also lacks merit and accordingly the same is dismissed on merit also. No costs.
(Nita Chowdhury) (Justice Dinesh Gupta)
Member (A) Member (J)
Sushil
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