Calcutta High Court (Appellete Side)
( Donald Alfred Peter vs Union Of India And Others on 17 March, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
17. 3.
2011
skm W.P.C.T. 39 of 2011
( Donald Alfred Peter ... Petitioner.
-Vs.-
Union of India and others .. Respondents)
Mr. Srikanta Paul ... For the petitioner.
Mr. Asim Ganguly ... For Union of India.
Pratap Kumar Ray, J.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 30th July, 2010 passed by the Central
Administrative Tribunal, Calcutta Bench in M.A. 310 of 2006 and O.A. No.
500 of 2006, this writ application has been filed.
The impugned order reads such.
" M.A. 310 of 2006
O.A. 500 of 2006
Date of order: 30.07.2010
ORDER
Per Mr. Chamoak Chatterji, AM The applicant who is an employee of Eastern Railway has come to this Tribunal in terms of the Hon'ble High Court's order in WPCT No. 397/2005 with reference to O.A. 749/08 which was dismissed on 23.3.2005. M.A. 310/06 is for condonation of delay. M.A. does not specify the quantum of delay but since the applicant has come before this Tribunal on the directions of the Hon'ble High Court the delay is condoned and M.A. is allowed accordingly.
2O.A. 500 of 2006 The applicant is an Electric Goods Driver at Asansol, Eastern Railway. He is aggrieved that he has not been promoted to the post of Passenger/Mail/Express Driver from the date he passed the test and that he should be promoted from the date his juniors were promoted and giving all consequential benefits. He is also aggrieved that he was not sent for promotional training from 1991 because of the malice of one Shri S.R.Bhakt. Ex.- CTF(R).
2. Earlier the applicant has filed O.A. 749 of 1998 for the same relief and the Tribunal dismissed the O.A. on 23.3.2005. The applicant then went to the Hon'ble High Court and the Hon'ble High Court in WPCT No. 397/2005 did not set aside the order of the Tribunal but gave the applicant the liberty to approach the Tribunal once again with proper and relevant materials. The Hon'ble High Court further directed that the Tribunal would consider the same on merit without being trammeled by the earlier decision.
3. The case of the applicant is that he was appointed as Cleaner in October 1973 in Steam locomotive. Later he was promoted to Group I as Fireman. Upon the replacement of Steam Loco by Electric Loco he became an Assistant Electric Driver after passing the requisite test. The applicant has stated that since he belongs to the Territorial Army he was sent for training camp at Jamalpur but because of bias of one Shri S.P.Bhakat his training period was treated as unauthorized absence. His increment and upgrading had been stopped. This was later rectified but he had to undergo a serious reprimand by the then Senior D.P.O.
4. The applicant was promoted as Engine Turner on the electric side in 1994. According to the applicant, such promotion to Engine Turner was equivalent to promotion as Driver. He failed three times to pass the promotion tests for Passenger Driver. However, there was no difference between the post of Passenger Driver and the Driver of a Goods train. The respondents, however, has taken no action in the matter and there was the grudge of Shri Bhakt as a result of which his juniors were promoted ahead of him and they were now working as Mail/Passenger Driver. The applicant has further stated that between 15.12.1995 to 20.1.1996 he took the promotional course for Passenger Driver at Bhuli. According to his knowledge he had passed the same but was informed by letter of 3 15.2.1996 that he had failed. His wife then made a representation to the Railway Minister on 4.2.2004.
5. The applicant has stated that the judgement of the Tribunal in O.A. 749/98 was bad as the respondents had not produced the seniority list or the rules for promotion from Goods Driver to Passenger Driver.
6. In reply the respondents have stated that the applicant was appointed as a substitute cleaner on 21.10.1973. He was promoted from time to time and became Assistant Driver Electric after selection/training on 28.3.1985. He became an Electric Shunter after completion of promotional training course as Engine Turner w.e.f. 4.4.1992. He was promoted as Electric Goods Driver in the scale of Rs.5,000-8,000/- since 14.7.1996. The applicant had claimed promotion to the level of Passenger Driver/Mail/Express Driver at par with his junior. For promotion to the level of Passenger Driver/Mail/Express Driver the applicant had to pass the promotional training course from the Electric Loco Training Sector, Eastern Railway Asansol and Zonal Training sector at Bhuli and then pass the selection test. The applicant had failed three times in promotional training results of which were declared on 22.3.1993, 7.3.94 and 16.2.95. Meanwhile, since ha failed in the examination his juniors had been promote ahead of him. The applicant retired from service on 30.11.2002(A/N).
7. The respondents have stated that for promotion to the level of Passenger Driver which was a higher category than Goods Driver, he had to pass the requisite examination which he failed to do. It was incorrect on the part of the applicant to say that a Passenger /Driver was equivalent to a Goods Driver. Passenger drivers had to run a train with human passengers which was not so in the case of a Goods Driver. Also the seniority list of Goods Driver, Passenger Driver, Mail/Express Driver was different since they were published separately grade-wise and communicated to the concerned departments for information to the staff concerned.
8. As regards the bias/malice of Shri S. R. Bhakt, CTF(R), he was not a member of the Selection Committee for the selection training of the applicant. All the three times that the applicant had failed to qualify in the promotional training and selection tests, the same had been done by expert officers and Shri Bhakt was not part of the team.
9. The respondents have stated that the applicant had cited paras 5, 5.2.2 and 5.5.23 of the Manual on Management of Training of 4 Railway Board in support of his case. These paragraphs referred to Refresher Course in Hindi. For promotional training the relevant paragraphs were 5.3.3, 5.5.31 and 5.5.3.2 ( Annexure-R/2). The applicant has not given any relevant materials for fresh appreciation of his case. Therefore, the O.A. should be dismissed.
10. Heard ld. counsel for the applicant and the respondents.
11. The earlier O.A. 749/98 had been dismissed by the Tribunal on 23.3.2005 as the applicant had not given any seniority list in support of his contention. Nothing was shown in support of the contention that Goods Driver and Passenger Driver are the same. Thirdly, juniors had not been impleaded.
12. The applicant had then approached the Hon'ble High Court and Hon'ble High Court in WPCT 397/05 had on 5.7.2005 given the applicant liberty to approach the Tribunal once again with proper and relevant materials which would be considered by the Tribunal on merit. It is seen that no new materials have been produced by the applicant. Since the applicant is aggrieved it is for the applicant to produce the relevant seniority list in support of his contention. He has also not produced any rule to show that a Goods Driver and a Passenger Driver are the same. Since the applicant has raised the seniority issue vis-à-vis his juniors, the juniors have to be impleaded which has not been done. From going through the pleadings as also through the arguments no evidence was given of any malice in his case. Mere statements that such and such person had borne the applicant a grudge will not suffice. There has to be tangible evidence of malice.
13. We have also seen that applicant failed to pass the requisite promotional training and section training for Passenger driver three times. He retired from service on 30.11.2002.
14. In the conspectus of facts and circumstances and in view of the directions given by the Hon'ble High Court in WPCT no. 397/2005 we do not find any merit in the O.A either on facts or as per railway rules. It is also seen that the Manual on Management of Training cited by the applicant is with reference to Refresher courses and not promotional courses. O.A clearly lacks merit and is, therefore, dismissed. No costs.
Sd/: Sd/:
MEMBER(A) Vice-Chairman."
5
Having regard to the impugned order, we are not finding any scope of judicial review. The petitioner has retired long back and assailed the promotional issue. Since the petitioner retired long back and promotional issue was dependent upon the test which he failed, there is no scope to interfere with the impugned order.
The writ application is dismissed.
Urgent xerox certified copy of this order, if applied for, be given.
(Pratap Kumar Ray, J.) I agree.
(Dr. Mrinal Kanti Chaudhuri, J.)