Jharkhand High Court
Nand Ram vs The Union Of India Through General ... on 12 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1- W.P.(C) No.454/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.454 of 2023
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Nand Ram, aged about 72 years, son of Late Dil Bahadur
Chhetri, resident of Chutia, P.O. & P.S.-Chutia, District-
Ranchi, PIN-834001 ... ... Petitioner
Versus
1. The Union of India through General Manager, S.E.
Railway, Garden Reach, P.O. & P.S.-Garden Reach,
Kolkata-43.
2. The Chief Personnel Officer (Cons.), S.E. Railway,
Garden Reach, P.O. & P.S.-Garden Reach, Kolkata-43.
3. The Chief Signal & Telecom Engineer (Cons.), S.E.
Railway, Garden Reach, P.O. & P.S.-Garden Reach,
Kolkata-43.
4. The Deputy Chief Signal & Telecom Engineer (Cons.),
S.E. Railway, Adra Division, P.O. & P.S.-Adra, West Bengal,
PIN-723121.
5. The Deputy Chief Signal & Telecom Engineer (Const.)
S.E. Railway, P.O. & P.S.-Hatia, District-Ranchi, PIN-
834003 ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP SRIVASTAVA
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For the Petitioner : Mrs. M.M. Pal, Sr. Advocate
Mrs. Rashmi Mehta, Advocate
Mrs. Mohua Palit, Advocate
For the UOI : Mrs. Chinta Khushbu Hembrom, Adv.
Mr. Abhijeet Singh, C.G.C.
--------
C.A.V. on 24.01.2024 Pronounced on 12.02.2024
Per Sujit Narayan Prasad, J.
1. This writ petition is under Article 226 of the Constitution of India, directed against the order dated 16.09.2022 passed by the learned Central Administrative Tribunal in O.A. No.461 of 2018, whereby and whereunder, the following reliefs have been -2- W.P.(C) No.454/2023 sought for:-
(a) The order dated 16.09.2022 passed by the learned CAT in O.A. No.461 of 2018 (Annexure-15) be quashed.
(b) The Respondents be directed to extend the benefit of his pay protection which he had last drawn before his repatriation on the ex-cadre post of TCM (II) w.e.f 31.03.2005 in the scale of Rs.4000-6000.
(c) The Respondents be directed not to discriminate this petitioner and to extend the same benefit of pay protection on repatriation at par with his similarly situated persons.
(d) The Respondents be directed to pay the arrears and to recalculate his post retiral benefits and pensionary benefits on that basis with interest within a specified period.
(e) Any other relief or reliefs for which the petitioner is entitled to.
2. The brief facts of the case, as per the pleading made in the writ petition based upon the pleading of the original application filed before the Tribunal, needs to be referred which reads as under:-
3. It is the case of the writ petitioner/applicant that he has joined the Allahabad Division of erstwhile Northern Railway (Now North Central Railway) in 1983 as Temporary Electric Khalasi in the scale of Rs. 196-232 and subsequently went on deputation to Railway Electrification Project in 1984 as Khalasi. -3- W.P.(C) No.454/2023
4. While, serving in Railway Electrification Project, he was promoted on ad-hoc basis as TCM Grade II in the scale of Rs. 260-400 vide order dated 27.03.1985. He was given further ad- hoc promotion as Telephone Operator Grade - II (Sr. T.C.) on ad-hoc basis in the scale of Rs.1200-2040 w.e.f. 01.03.1987.
5. The writ petitioner/applicant, in the meanwhile, was promoted to Khalasi Helper in the scale of Rs.2650-4000 on regular basis in open line under North Central Railway w.e.f. 30.06.1988. The writ petitioner/applicant was later re- designated as TCM Grade II (ad-hoc) vide the Office Order of Railway Electrification Project dated 24.09.2002.
6. It is the further case that the writ petitioner/applicant was transferred from RE to the office of District Signal and Telecommunication Engineer (Construction) Division, Ranchi and was relieved from RE on 31.03.2005. On joining the DSTE (Cons.), Ranchi, he was reverted to the post of his substantive grade, i.e. Khalasi Helper in the scale of Rs. 2650- 4000/-.
7. Aggrieved with the pay fixation reducing his pay and scale, the writ petitioner/applicant approached the Tribunal by filing O.A No. 221 of 2007 praying to set aside the order dated 22.07.2005 reverting him to the pay scale of Rs. 2650-4000 and temporarily fixing his pay at Rs.2650/- per month.
8. The Tribunal, thereafter, disposed of the OA vide order dated 05.12.2008 directing the respondents to consider the possibility or otherwise for engaging him on a higher pay scale, since, he was serving on a higher scale for a number of years. -4- W.P.(C) No.454/2023 In compliance with the Tribunal's direction, the respondent Department considered the case of applicant and passed a speaking order on 27.02.2009 holding that there is no statutory provision to absorb a staff on same pay scale, grade and capacity which he held on ad-hoc basis in another unit.
9. The writ petitioner/applicant, being aggrieved with the above order of the respondents, approached the Tribunal by filing O.A. No.129 of 2009 challenging the respondents' order dated 27.02.2009 and the office order dated 22.07.2005.
10. The Tribunal, thereafter, disposed of the O.A. vide order dated 07.12.2009 quashing and setting aside the order dated 27.02.2009 and directing the respondents to consider the direction given by this Tribunal in OA 221 of 2007 and also the issue of pay protection of the applicant. The respondent authorities, in compliance with the Tribunal's direction, considered the applicant's case for pay protection and engagement on higher pay scale and rejected the same vide order dated 20.03.2010.
11. Being aggrieved with the above order of respondents, the writ petitioner/applicant approached the Tribunal in O.A. No. 90 of 2010 which was dismissed as withdrawn on submission of the counsel for respondents on the ground that the grievance of the applicant has been redressed.
12. It is evident from the factual aspect as referred hereinabove based upon the pleading that the writ petitioner had joined the Allahabad Division of erstwhile Northern Railway -5- W.P.(C) No.454/2023 (Now North Central Railway) in 1983 as Temporary Electric Khalasi in the scale of Rs.196-232.
13. He went on deputation to Railway Electrification Project in 1984 as Khalasi. While serving in Railway Electrification Project, he was promoted on ad-hoc basis as TCM Grade II in the scale of 260-400 vide order dated 27.03.1985. He was given further ad-hoc promotion as Telephone Operator Grade-II (Sr. T.C.) on ad-hoc basis in the scale of 1200-2040 w.e.f. 01.03.1987. The writ petitioner/application, in the meanwhile, was promoted to Khalasi Helper in the scale of 2650-4000 on regular basis in open line under North Central Railway w.e.f. 30.06.1988.
14. Later on, the writ petitioner/applicant was re-designated as TCM Grade-II (ad-hoc) vide Office order of Railway Electrification Project dated 24.09.2002. The writ petitioner/applicant was transferred from RE to the office of the District Signal and Telecommunication Engineer (Construction) Division, Ranchi and was relieved from RE on 31.03.2005.
15. The writ petitioner on joining the District Signal and Telecommunication Engineer (Construction) Division, Ranchi, he was reverted to the post of his substantive grade, i.e., Khalasi Helper in the scale of Rs.2650-4000/-.
16. The writ petitioner/applicant, being aggrieved with the aforesaid order, has approached to the Tribunal by filing O.A. No.221 of 2007 praying to set aside the order dated 22.07.2005 reverting him to the pay scale of Rs.2650-4000 and temporarily -6- W.P.(C) No.454/2023 fixing his pay at Rs.2650/- per month. The learned Tribunal has disposed of the said O.A. vide order dated 05.12.2008 directing the respondents to consider the possibility or otherwise for engaging him on a higher pay scale since he was serving on a higher scale for a number of years.
17. The respondent, in compliance with the learned Tribunal direction, considered the case of the writ petitioner and passed a speaking order on 27.02.2009 holding that there is no statutory provision to absorb a staff on same pay scale, grade and capacity which he held on ad-hoc basis in another unit.
18. The writ petitioner/application, again has approached to the learned Central Administrative Tribunal by filing O.A. No.129 of 2009 challenging the order dated 27.02.2009 and the office order dated 22.07.2005. The learned Tribunal has disposed of the said OA vide order dated 07.12.2009 by quashing and setting aside the order dated 27.02.2009 with a direction upon the respondent to consider the direction given by the Tribunal in OA No.221 of 2007 and also the issue of pay protection of the applicant/writ petitioner.
19. The respondent authorities, in compliance of the aforesaid direction of the learned Tribunal, has considered the applicant's case for pay protection and engagement on higher pay scale but rejected the same vide order dated 20.03.2010.
20. The writ petitioner, being aggrieved with the aforesaid order has again approached the Tribunal by filing O.A. No.90 of 2010, which was dismissed as withdrawn on submission of the -7- W.P.(C) No.454/2023 learned counsel for the respondents that the grievance of the writ petitioner/applicant has been redressed.
21. The contention of the applicant is mainly based upon the order passed by the Hon'ble Apex Court in the case of Inder Pal Yadav & Ors. Vrs. Union of India & Ors., reported in (2005) 11 SCC 301 and based upon the same, the Hon'ble Apex Court has passed a judgment in the case of Bhadei Rai Vrs. Union of India & Ors., reported in [(2005) 3 JCR 87 (SC)] by taking the plea that at least the pay protection is to be given in the light of the aforesaid order.
22. The written statement was filed, wherein, the plea was denied. The learned Tribunal after appreciating the argument advanced on behalf of the parties and stand taken by them, has decided the original application by dismissing it, against which, the present writ petition has been filed.
23. Mrs. M.M. Pal, learned Sr. Counsel appearing for the writ petitioner has assailed the impugned order on the following grounds:-
(i) The order passed by the learned Tribunal suffers from patent illegality and suffers from perversity on the ground that the judgment passed by the Hon'ble Apex Court in the case of Inder Pal Yadav (Supra) although, has been taken note but the relief pertaining to pay protection has not been considered, rather, the learned Tribunal has come to the finding as under
paragraph-16 thereof that the fact of the case is squarely covered with the judgment rendered by the Hon'ble Apex Court -8- W.P.(C) No.454/2023 in the case of Inder Pal Yadav (Supra) but even then, the benefit of pay protection which was granted in the aforesaid case, has not been allowed.
(ii) The evidence has also been produced by way of document of the similar benefit having been granted in favour of the other co-employees on the basis of direction passed by the Ranchi Bench of the Central Administrative Tribunal in O.A No.604/1997 and O.A. No.398/98 by granting benefit of pay protection but the different parameters have been given by the Tribunal rejecting the said claim.
Even though, the said document was part of the pleading which was not rebutted by the respondents but there is no finding to that effect in the order passed by the learned Tribunal.
24. Learned counsel, based upon the aforesaid ground, has submitted that the order passed by the learned Tribunal suffers from an error and hence, it is not sustainable.
25. The further submission has been made that the identically placed persons have been granted benefit of pay protection and further, the learned Tribunal has admitted the fact that the case of the writ petitioner is squarely covered by the judgment passed in the case of Inder Pal Yadav (supra) then the Tribunal ought to have passed an order at least for granting pay protection in favour of the writ petitioner.
26. Per contra, learned counsel appearing for the respondent- Railway has vehemently argued by countering the argument -9- W.P.(C) No.454/2023 advanced on behalf of the writ petitioner by taking the following grounds:-
(i) The order passed by the learned Tribunal is least to be interfered with by the High Court in exercise of power conferred under Article 226 of the Constitution of India, since, the High Court is to exercise the power of judicial review and that can only be exercised if there is any error on the face of the order.
(ii) It has been submitted by referring to the factual aspect that the learned Tribunal has not erred in passing the order, since, the writ petitioner is seeking the benefit on the basis of ad-hoc promotion granted to the higher post and once the benefit will be granted for the purpose of regularizing the promotion, as the first and second prayer are herein, the same will lead to discrimination to the other identically placed co-
employees.
27. The learned Tribunal, after taking note of the aforesaid fact, has denied the said relief, hence, the same cannot be said to suffer from an error.
28. We have heard the learned counsel for the parties, gone across the finding recorded by the learned Tribunal and the documents appended with the paper book.
29. The dispute herein is that the writ petitioner is claiming benefit of promotion on the basis of the ad-hoc promotion granted.
30. However, Mrs. M.M. Pal, learned Senior Counsel appearing for the writ petitioner, in course of argument, has submitted - 10 - W.P.(C) No.454/2023 that the writ petitioner at least is entitle for pay protection, in view of the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra), followed in the case of Bhadei Rai (supra) and the Division Bench of this Court in the case of Mrinal Kanti Chakroborty Vrs. Union of India, reported in (2008) 3 JCR 51.
31. This Court, in order to consider the aforesaid submission, deems it fit and proper to refer the factual aspect of the aforesaid judgment.
32. The Hon'ble Apex Court in the case of Inder Pal Yadav (Supra) has considered the factual aspect, wherein, the litigant concerned has been granted promotion from Grade-'C' to Grade-'D' on ad-hoc basis. Subsequent thereto, the order of reversing to the post in parent department has been passed. The appellant therein has prayed his entitlement to pay protection.
33. The Hon'ble Apex Court by taking into consideration the fact that the appellant in the said case has rendered service in Grade-'D' for a long period and also held eligibility and hence, passed the direction, which reads as under:-
"6. However, while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional - 11 - W.P.(C) No.454/2023 level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such reposting of the petitioners is based on selection.
7. Additionally, while it is open to the Railway Administration to utilise the services of the petitioners in the open line, they must, for the purpose of determining efficiency and fitment take into account the trade tests which may have been passed by the petitioners as well as the length of service rendered by the petitioners in the several projects subsequent to their regular appointment.
8. Where a trade test is provided under the relevant rules for the purpose of promotion to Group C, we make it clear that it will not be necessary for the petitioners to take the trade tests over again, if they had already taken any comparable test while they were on duty in the projects. It is stated by the learned counsel appearing on behalf of the Railway Authorities that during the pendency of the writ petitions several of the petitioners had applied for promotion in the open line from Group D to Group C but only some were successful. It is not necessary to go into this question since we proceed on the basis that there was a requirement of passing a qualifying trade test held for the purpose of promotion from Group D to Group C post held in the projects.
9. However, we make it clear that so far as further promotions are concerned that is from Group C to Group B, the observations of this Court will not serve to grant any benefit to the petitioners. It is open to the respondent authorities to proceed in the matter of further promotion in accordance with the rules. We, accordingly, dispose of these writ petitions and special leave petitions with the aforesaid observations."
34. The Hon'ble Apex Court, in the case of Bhadei Rai (supra) applying the principle laid down in the case of Inder Pal Yadav (supra), in the facts of the aforesaid case, wherein, the appellant had to undergo a screening test in the year 1995 and the result declared in the year 1997, the appellant had - 12 - W.P.(C) No.454/2023 qualified.
35. A long period of 20 years has been spent by the appellant in the higher post of riggor in Group-'C' post. In such circumstances, he is legitimately entitled to the relief of pay protection and consideration of his case for regular aappointment to Group-'C' post on the basis of his long service in Group-'C' post.
36. The Hon'ble Apex Court in the case of Bhadei Rai (supra) relying upon the ratio laid down in the case of Inder Pal Yadav (supra) has allowed the appeal partly by modifying the order of the Central Administrative Tribunal with a direction that the appellant's pay which he was drawing on the date of his repatriation from Group-'C' post to Group-'D' post shall be protected. With a further direction that the appellant shall be considered for promotion to Grade-C post in his terms with others with due regard to the fact of having passed the screening test and his work and performance for long 20 years on the post of riggor in Group-'C'. For ready reference, paragraph-10 and 11 of the judgment rendered in the case of Bhadei Rai (supra) is being referred as under:-
"10. In the case of the present appellant, the aforesaid directions squarely apply. The appellant had to undergo a screening test in the year 1995 and in the result declared in 1997, the appellant had qualified. A long period of twenty years has been spent by the appellant on a higher post of Riggor in group 'C' post. In such circumstances, he is legitimately entitled to the relief of pay protection and consideration of his case for regular - 13 - W.P.(C) No.454/2023 appointment to Group 'C' post on the basis of his long service in Group 'C' post.
11. Relying, therefore, on the decision of this Court in the case of Inder Pal Yadav (supra) the present appeal is partly allowed by modifying the orders of the Central Administrative Tribunal and of the High Court. It is directed that the appellant's pay which he was last drawing on the date of his repatriation from Group 'C' post to Group 'D' post, shall be protected. It is further directed that appellant shall be considered for promotion to Group 'C' post in his turn with others, with due regard to the fact of his having passed the screening test and his work and performance for long twenty years on the post of Riggor in Group 'C'."
37. The Division Bench of this Court in the case of Mrinal Kanti Chakroborty Vrs. Union of India (supra), has also granted the benefit of pay protection by relying upon the judgment rendered in the case of Inder Pal Yadav (supra) and Bhadei Rai (supra), relevant paragraph of the case of Mrinal Kanti Chakraborty (supra) needs to be referred herein which reads as under:-
"19. We find that the aforesaid proposition of law is squarely applied in the facts and circumstances of the present case and in view of that, this writ petition is partly allowed by modifying the orders of the Central Administrative Tribunal, Patna with its Ranchi Bench and the impugned administrative orders with the direction that the petitioners pay which he had last drawn before his repatriation on the ex-cadre post of Senior Estimator in the scale of Rs. 6500-10500/- shall be protected.
20. This writ petition is allowed to the extent indicated above limited to the protection of pay of the petitioner Mrinal Kanti Chakraborty. No order as to costs."- 14 - W.P.(C) No.454/2023
38. It is, thus, evident from the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra) that the benefit of pay protection is required to be given if the person concerned has been retained in service even on ad-hoc basis and considering the aforesaid fact, the direction was passed therein by the Hon'ble Apex Court to grant benefit of pay protection on the basis of last pay drawn of the higher post.
39. The main contention of the learned senior counsel for the writ petitioner is that the aforesaid judgment has been referred before the learned Tribunal. Although, the said judgment has been taken note, as would be evident from paragraph-16 but the original application has been rejected by showing no interference with the impugned decision.
40. The contention has been made as such that at least the original application ought to have been allowed partly by protecting the interest by granting pay protection on the basis of the last pay drawn as per the direction passed in the case of Inder Pal Yadav (supra) but there is no reference to that effect in the impugned judgment, even though, the learned Tribunal has come to the conclusive finding about the applicability of the judgment passed by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra) fully.
41. This Court, in order to appreciate the aforesaid argument, has gone across the paragraph-16 of the order passed by the learned Tribunal and found therefrom that the learned Tribunal has come to the conclusive finding about the full applicability of - 15 - W.P.(C) No.454/2023 the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra). For ready reference, paragraph-16 of the order passed by the learned Tribunal is being referred as under:-
"16. The facts of the instant OA being analogous to the above case, ratio of the judgment of Hon'ble Supreme Court in WP(C) 548 of 2000 is directly applicable in the instant case."
42. The question is that when the learned Tribunal has come to the conclusive finding about the full applicability of the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra) then the Tribunal ought to have passed an order granting the benefit of pay protection by partly allowing the original application as per the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra), wherein, while partly allowing the appeal the respondents have been directed to grant pay protection to the appellant of the said appeal, namely, Inder Pal Yadav. But, the learned Tribunal even though has come to the conclusion about the full applicability of the said judgment but the benefit of pay protection has been discarded without assigning any reason in the impugned order, rather, the learned Tribunal has gone into the past conduct of the writ petitioner, who on earlier occasion, has withdrawn the original application.
43. The learned Tribunal, therefore, has not entered into the merit of the issue by judging the case of the writ petitioner on fact even though, the judgment has been held to be fully applicable in the facts and circumstances of the case as per the - 16 - W.P.(C) No.454/2023 observation so made at paragraph-16 of the order passed by the Tribunal.
44. Further, the learned Senior Counsel for the writ petitioner has taken the ground of error/perversity, since, the document to the effect that based upon the order passed by the learned Tribunal, the benefit of pay protection has been given by the respondents and to strengthen her argument, the document to that effect dated 15.02.2003 was filed, as has been appended as Annexure-12 to the paper book but there is no finding in the order passed by the learned Tribunal.
45. The law is well settled so far as the power which is to be exercised under the power of judicial review, as per the judgment rendered by the Hon'ble Apex Court in the case of West Bengal Central School Service Commission & Ors Vrs. Abdul Halim & Ors., reported in (2019) 18 SCC 39, wherein, at paragraph-30 it has been held as under:-
"30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC
137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to - 17 - W.P.(C) No.454/2023 interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari."
46. Likewise, the Hon'ble Apex Court in the case of T.C. Basappa Versus T. Nagappa, reported in (1955) 1 SCR 250, wherein, it has been held as under:-
"An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
47. It is evident from the aforesaid judgment that the power of judicial review is to be exercised if the error apparent on the face of such order.
48. On the ground of 'perversity', the power of judicial review is well to be exercised. The interpretation of the word 'perversity' has been made by the Hon'ble Apex Court in the case of Arulvelu and Another Vrs. State represented by the Public Prosecutor and Another, reported in [(2009) 10 SCC 206] at paragraph 27, which is quoted hereunder :-
"27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
- 18 - W.P.(C) No.454/2023
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
49. The Hon‟ble Apex Court in yet another judgment rendered in Kuldeep Singh Vrs. Commissioner of Police and Others, reported in [(1999) 2 SCC 10] has held under paragraphs 9 and 10 which reads as under :-
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of „guilt‟ is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
50. The 'perversity' since means that if any factual aspect supported by document having not been rebutted or even rebutted, if brought before the Court of law or any quasi- judicial authority, it is the bounded duty of such authority or the adjudicator to give a finding either way, otherwise, in absence of any finding to that effect, the order passed by such adjudicator or quasi-judicial authority, will be said to suffer - 19 - W.P.(C) No.454/2023 from the vice of perversity.
51. We, on the basis of the said principle and coming to the second ground in assailing the impugned order, whereby and whereunder, the specific ground was taken that the identically placed employees have been granted benefit of pay protection on the basis of the order passed by the learned Tribunal in O.A No.604/1997 and O.A. No.398/1998 then the question is that why there is no consideration of the said order by the Tribunal and instead of doing so, the Tribunal has travelled to the conduct of the petitioner, therefore, this Court is of the view that non- consideration of the said document on the relief granted to the identically placed persons by virtue of the order passed by the Tribunal is considered to be the perversity on the face of the impugned order.
52. Therefore, this Court is of the view by applying the principle of judicial review as per the judgment referred hereinabove that the order passed by the Tribunal requires to be interfered with.
53. Accordingly, the order dated 16.09.2022 passed by the learned Central Administrative Tribunal in O.A. No.461 of 2018 is hereby quashed and set aside.
54. In the result, the instant writ petition stands allowed.
55. The question which this Court is to be considered that the case of the writ petitioner has been held to be squarely covered by the judgment rendered by the Hon'ble Apex Court in the case of Inder Pal Yadav (supra) and further, the identically - 20 - W.P.(C) No.454/2023 placed co-employees have already been granted benefit of pay protection by virtue of the order passed by the Tribunal, then why such benefit will not be granted to the writ petitioner herein.
56. The Court has also considered the fact that whether the matter is to be remitted before the Tribunal for fresh adjudication, but it has been informed that the writ petitioner has already been retired from service way back and as such, this Court is of the view that remitting the matter before the Tribunal will lead to unnecessary harassment, since, now the writ petitioner has already superannuated from service on attaining the age of superannuation on 31.05.2012.
57. Therefore, this Court is of the view that instead of remitting the matter before the Tribunal, the prayer which has been sought for by the writ petitioner so far as it relates to the pay protection is concerned, is required to be dealt with herein.
58. The Hon'ble Apex Court since has decided the said issue in the case of Inder Pal Yadav (supra) which has also been admitted by the Tribunal by coming to the conclusion that the factual aspect of the case of Inder Pal Yadav (supra) is exactly similar to that of the present one.
59. Further, the identically placed employees have already been granted such benefit as per the order passed in O.A No.604/1997 and O.A. No.398/98 on the basis of the order passed by the learned Tribunal.
60. Therefore, this Court taking into consideration the law laid - 21 - W.P.(C) No.454/2023 down by the Hon'ble Apex Court that the identically placed litigant is to be given benefit without insisting upon such litigant to come with the order, reference in this regard may be made to the judgment rendered in the case of State of Uttar Pradesh & Ors. Vrs. Arvind Kumar Srivastava & Ors., reported in (2015) 1 SCC 347, wherein, at paragraph-22.1, it has been held as under:-
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."
61. This Court, therefore, is of the view that the fact about extending the same benefit in favour of the other litigants in pursuant to the order passed by the learned Tribunal since is not in dispute and the Hon'ble Apex Court has already considered the aforesaid aspect by granting pay protection, as such, such benefit is also required to be given to the writ petitioner.
62. Accordingly, the writ petitioner is held entitle for pay protection on the basis of the pay scale which he was last drawing before his repatriation on the ex-cadre post of TCM (II) - 22 - W.P.(C) No.454/2023 w.e.f 31.03.2005 in the scale of Rs.4000-6000.
63. The respondents are directed to release all consequential/monetary benefits within the period of two months' from the date of receipt/production of copy of this order.
64. Accordingly, this writ petition stands disposed of with the aforesaid observation/direction.
65. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) I agree (Pradeep Srivastava) (Pradeep Srivastava, J.) A.F.R. Rohit/