Karnataka High Court
Union Of India vs K Mallikarjun on 30 May, 2013
Bench: N.K.Patil, B.Manohar
1
R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF MAY, 2013
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
Writ Petition No.64274/2012 (S-CAT)
Between:
1. Union of India,
Ministry of Railways,
South Western Railway,
Represented by the General
Manager, Hubli Zone,
Hubli.
2. The Chief Personal Officer,
South Western Railway,
Hubli Zone, Hubli.
3. The Senior Divisional Personal Officer,
South Western Railway,
Hubli Division,
Hubli.
... Petitioners
(By Shri.Ajay U Patil, Advocate)
And
1. K. Mallikarjun,
S/o. L. Doddabasavanagowda,
2
Aged About: 51 years,
Working as Head Commercial Clerk,
BIOP Siding, served by Bellary,
South Western Railway, Hubli.
2. B.V. Ranganath,
S/o. K. Varadaraj,
Aged about 51 years,
Working as Head Commercial Clerk,
Toranagal Railway Station,
South Western Railway,
Toranagal Bellary.
3. Chatrappa,
Working as a Senior Commercial Inspector/
Chief Goods Supervisor,
South Western Railway,
Wasanakere Railway Station,
At and Post Wasanakere,
Koppal Dist. and Taluk.
4. B.R. Minajigi,
Working as a Chief Commercial Clerk/
Sr. Commercial Clerk,
South Western Railway,
Bijapur.
... Respondents
(By Sri. Sadashiv S. Patil, Advocate for R-1 & R2;
R-3 and R4 - served)
******
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 14th February 2012 passed in O.A. No.153/2008 on the file of the Central Administrative Tribunal, Bangalore Bench, Bangalore vide Annexure A, etc. This Writ Petition coming on for Preliminary Hearing, this day, N.K. PATIL. J., made the following: 3
OR DE R Petitioners, assailing the correctness or otherwise of the order passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore ('Tribunal' for short), in Original Application No.153/2008 dated 14th February 2012, vide Annexure A, have presented this writ petition.
2. In the Original Application, the petitioners had sought for setting aside the O.O. No.C/27/04 dated 16th September 2004 vide Annexure A10 therein, insofar as the private respondents are concerned and also the communication dated 16th April, 2007 bearing No.H/P.612/III/CC/Vol.VI vide Annexure A9 and to direct the petitioners 1 to 3 herein to consider the case of respondents 1 and 2 for promotion to the post of Chief Commercial Clerk with effect from the date on which the juniors to respondents 1 and 2, respondents 3 and 4 are promoted with all benefits and consequential benefits flowing therefrom. 4
3. When the matter came up before the Central Administrative Tribunal, Bangalore Bench, Bangalore, first on 1st April 2010, the Tribunal, after hearing both parties, directed the petitioners to re-fix the seniority of the respondents 1 and 2 above that of respondents 3 and 4 and give them all consequential benefits flowing therefrom and directed to complete the said exercise within a period of two months from the date of receipt of a copy of the said order. Being aggrieved by the said order passed by the Tribunal, petitioners filed a writ petition No. 64862/2010. The said writ petition came up for consideration before the Division Bench on 21st June 2011 and the Division Bench set aside the said order and remitted back to the Tribunal with a direction to take a decision on the application for condonation of delay at the first instance and if the delay is condoned, then to proceed to hear the application on merits. Accordingly, the Tribunal took up the matter for consideration and after hearing both sides, passed an order on 14th February 2012, and affirmed and 5 confirmed the earlier order passed by it on 1st April 2010 and granted two months' time for completing the exercise of compliance. Being aggrieved by the said order passed by Tribunal, the petitioners are before this Court, seeking appropriate reliefs, as stated supra.
4. The undisputed facts of the case are that, respondents 1 and 2 herein were working in the Cadre of Head Commercial Clerk from 1st March 1993 in the Guntakal Division of Railways which was under the control of the South Central Railways. On 1st April 2003, a new Zone, namely, South Western Railway was formed to which the Staff from the earlier Guntakal Division were taken. For promotion from the post of Head Commercial Clerk to the post of Chief Commercial Clerk, a combined seniority has to come in existence. However, the petitioners have promoted respondents 3 and 4 apparently juniors ahead of respondents 1 and 2. When their request was not considered in accordance with seniority, even thought they are senior to respondents 3 and 4, both respondents 1 and 2 were 6 constrained to give their individual detailed representation, both dated 13th February 2007, vide Annexures A7 and A8 produced along with their Application before the Central Administrative Tribunal. Instead of considering their representations on merits, the third petitioner herein has issued the communication dated 16th April 2007 vide Annexure A9 produced along with the Original Application, bearing No.H/P.612/III/CC/Vol-VI, through proper channel stating that seniority of respondents 1 and 2 is assigned correctly duly interpolating the names of employees transferred from GTL Division and that they are not coming up for promotion under Cadre restructuring as per their seniority or GTL Division and as advised by DRM (P) GTL vide letter No.G/P.524/II/Comml./Rest Gr.C. dated 28th June 2006. Further, the said petitioner stated therein that the seniority list published under letter of even number dated 19th January 2007 is treated as final. Being aggrieved by the said communication dated 16th April 2007 issued by the 7 third petitioner, vide Annexure A9, the respondent Nos. 1 and 2 herein have filed Application No.153/2008 on the file of the Central Administrative Tribunal, Bangalore.
5. The said matter had come up for consideration before the Tribunal on 1st April 2010 and the application filed by respondents 1 and 2 was allowed and a direction was issued to the petitioners to re-fix the seniority of respondents 1 and 2 above that of respondents 3 and 4 and give them all consequential benefits. Being aggrieved by the said direction issued by the Tribunal, the petitioners herein filed Writ Petition No.64862/2010 and the said petition came up for consideration before the Division Bench of this Court on 12th June 2011 and the writ petition filed by the petitioners was allowed and the order dated 1st April 2010 was set aside and the matter was remitted back on the sole ground that, the Tribunal has allowed the Original Application filed by Respondents 1 and 2, without taking a decision on the application for 8 condoning the delay at the first instance and if the delay is condoned, then to proceed to hear the application on merits. In pursuance of the direction issued by the Division Bench of this Court, referred above, the Tribunal took up the matter for consideration on 14th February 2012 and after hearing both parties, considering the material on records and also after going through the earlier order passed by it dated 1st April 2010, referred above and after examining the merit of the matter, observed that, as a technical compliance whatever delayis there, if at all, is condoned rightly on merit and the respondents 1 and 2 are entitled to the claim prayed for and the benefit is allowed and while affirming and confirming the earlier order dated 1st April 2010 passed by it, allowed two months' time for completing the exercise of compliance of its earlier order. Being aggrieved by the said order passed by Tribunal, the petitioners have presented this writ petition.
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6. We have heard learned counsel appearing for petitioners and learned counsel appearing for respondents 1 and 2, for considerable length of time.
7. Learned counsel appearing for petitioners, at the outset submitted that, in reply to the representation given by respondents 1 and 2 vide Annexures A7 and A8, their request has been considered and a communication has been issued, communicating that, seniority list published under Lr.of even Number dated 19th January 2007 is treated as final and that their case cannot be considered. In spite of being aware of this fact, the respondents 1 and 2 have give their representation after issue of the final seniority list published as early as on 19th January 2007 and there is also inordinate delay on the part of the respondents 1 and 2 to redress their grievance in filing Original Application No.153/2008, on 1st March 2008. Therefore, it is the case of the petitioners that, the Tribunal ought not to have interfered with and issued direction to petitioners to consider the case of 10 respondents 1 and 2. The same is not justifiable for the reason that, they are not coming up for promotion under cadre restructuring as per their seniority of GTL Division and therefore, their case has not been considered. Further, he categorically pointed out that, the Tribunal grossly erred in affirming and confirming its earlier order dated 1st April 2010 passed in Application No.153/2008 vide Annexure B, even when the said order has been set aside and the matter has been remanded back to the Tribunal to reconsider the matter afresh. Instead of deciding the case on merits, independently, the Tribunal has just condoned the delay caused and affirmed and confirmed the earlier order passed by it, without deciding the same on merits of the case, as directed by the Division Bench of this Court in Writ Petition No.64862/2010. Therefore, he submits that, at any stretch of imagination, the impugned order passed by Tribunal cannot be sustained and is liable to be set aside.
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8. As against this, learned counsel appearing for respondents 1 and 2, inter alia, contended and substantiated the order impugned passed by Tribunal, stating that the same is passed strictly in accordance with the material available on records and in fact, the respondents 1 and 2 are seniors to respondents 3 and 4 herein and that the said view has been rightly taken by the Tribunal in its earlier order dated 1st April 2010, which is the order impugned. Hence, interference by this Court, at this stage, is not called for.
9. After careful consideration of the submission of the learned counsel appearing for the parties, after perusal of the order impugned dated 14th February 2012, the earlier order passed by the Tribunal on 1st April 2010 vide Annexures A and B respectively, the individual representations submitted by respondents 1 and 2, both dated 13th February 2007 vide Annexures A7 and A8, the communication issued by the third petitioner dated 16th April 2007 vide Annexure A9 and the order passed by the Division Bench dated 21st June 12 2011 in Writ Petition No.64862/2010, it emerges that, the respondents 1 and 2 have submitted their individual detailed representations, referring item Nos.1 to 7 in reference column and the said representations are sent through proper channel, vide Annexures A7 and A8. They have specifically pointed out regarding the fixation of seniority of Commercial Staff/GTL on par with Commercial Staff/UBL Division, after forming of new zone, South Western Railway with merging of Sections. It is stated that immediately after forming of new zone SWR duly merging of both the Sections in UBL Division, they have represented personally and through SWRES/BAY regarding interpolation of GTL Division Commercial Staff with UBL Division Commercial Staff in scale 5000-80000 (RP) , but, unfortunately, even a provisional seniority list could not be released by the Administration to know their seniority after interpolation with all the lapses on administration side, juniors of Hubli Division in the same Grade have been upgraded under cadre restructuring, which took place 13 on 16th September 2004. They are deprived of the restructuring benefits at the fault of administration and that they have been neglected for upgradation of Hubli Division even though they have been transferred to Hubli Division. Further, they have also stated that because of the lapses on the part of the administration, they are deprived of the restructuring benefits and that there would be high injustification caused to them, if the said selection in grade 6500-10500 (RP) is completed and juniors to the respondents 1 and 2 would be in benefit of two higher grades, keeping them in the same grade till date. When the respondents 1 and 2 herein have pointed out in detail, in a crystal clear manner injustice would be caused to them if the said process of restructuring is completed, by giving representation vide Annexures A7 and A8, the petitioners ought to have considered the matter in greater detail and passed a speaking order, by assigning valid and cogent respondents. On careful perusal of the contents of communication issued by petitioners at 14 Annexure A9 dated 16th April 2007, it is seen that the petitioners have not discussed the grievance of the respondents 1 and 2 mentioned in their representation nor there is any reasoning or finding as such in the entire communication. It is simply a four line communication. When it is stated that juniors to respondents 1 and 2 would be benefited by two higher grades whereas the respondents 1 and 2 would be in the same grade, the petitioners ought to have applied their mind and dealt with the matter in a proper perspective. Therefore, we are of the considered view that, in short, it is not a speaking order. Further, it can be seen that, the said communication issued by petitioners at Annexure A9 is in gross violation of the principles of natural justice. Further, it is pertinent to note that the respondents have worked in the Department of petitioners for several decades and for no fault of them and mainly due to the lacunas on the administrative side, they have been deprived of the restructuring benefits in higher grade while benefiting 15 the juniors to respondents 1 and 2, in an unfair and unreasonable manner. Therefore, taking into consideration the totality of the case on hand and having regard to the facts and circumstances of the case, we are of the view that, at any stretch of imagination, the impugned communication issued by the competent authority at Annexure A9 cannot be sustained and is liable to be set aside at the threshold. This aspect of the matter has not been looked into nor considered by the Tribunal and has proceeded to pass the order affirming and confirming the earlier order passed by the Tribunal dated 1st April 2010 in Application No.153/2008, in gross disobedience of the direction issued by the Division Bench of this Court, wherein the Division Bench has, by its order dated 21st June 2011 in Writ Petition No.61862/2010 has set aside the order dated 1st April 2010 passed by Tribunal and directed to take a decision first on the application for condonation of delay and thereafter decide the matter on merits. Instead of deciding the matter on 16 merits, after deciding on the delay condonation application, as directed by the Division Bench, the Tribunal has condoned the delay but erroneously proceeded to affirm and confirm the earlier order passed by it on 1st April 2010 and granted two months' time to complete the exercise of compliance. The same cannot be sustained. If there was any manipulation of judicial process or detriment was caused to the society and unnecessary prejudice to the respondents 1 and 2, and if there was any lapse on the part of the authorities, then, the Tribunal at best could have remanded the matter back to the competent authority to consider the case of respondents 1 and 2, strictly in accordance with the terms and conditions of the restructuring of the posts coupled with seniority. Instead of that, the Tribunal has proceeded to affirm and confirm the earlier order passed by it, without going into the matter on merits, as directed by the Division Bench, in total disregard to the order passed by the Division Bench. Thus viewed from any angle and taking into 17 consideration the totality of the case on hand, we are of the considered view that, the order impugned passed by Tribunal dated 14th February 2012 in Application No.153/2008 on the file of the Central Administrative Tribunal, Bangalore Bench, Bangalore, vide Annexure A and the communication issued by the third petitioner dated 16th April 2007 vide Annexure A9 produced along with the Original Application cannot at any stretch of imagination be sustained and is liable to be set aside at the threshold.
10. In the light of the facts and circumstances of the case, referred above, we pass the following order:
I] The writ petition filed by petitioners is allowed in part and the order dated 14th February 2012 passed in Original Application No. 153/2008 vide Annexure A and the communication issued by the third petitioner dated 16th April 2007 vide Annexure A9 produced along with the Original Application are hereby set aside;18
II] The matter stands remitted back to the third petitioner to re-consider the matter afresh and to pass appropriate order in accordance with law, after considering the representations submitted by respondent Nos. 1 and 2 vide Annexures A7 and A8 and after affording reasonable opportunity of hearing to them, by issuing notice and decide the same as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order, either from the learned counsel appearing for petitioners or from the respondents 1 and 2, which ever is earlier.
Sd/-
JUDGE Sd/-
JUDGE BMV*