Gauhati High Court
Page No.# 1/5 vs Ratul Das Mes No. 226125 on 9 November, 2021
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/5
GAHC010083382021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4345/2021
THE UNION OF INDIA AND 2 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF DEFENCE, SOUTH BLOCK, NEW DELHI 110001
2: THE CHIEF ENGINEER
HEADQUARTER EASTERN COMMAND
ENGINEERS BRANCH
FORT WILLIAM
KOLKATTA
700021
3: THE COMMANDER OF WORKS ENGINEER
AIRFORCE
BORJHAR
PO GUWAHATI AIRPORT
GUWAHATI 781015
ASSAM
4: THE GARRISON ENGINEER (AF)
BORJHAR
GUWAHATI 78101
VERSUS
RATUL DAS MES NO. 226125
S/O LATE BHABANANDA DAS,
MATE REFRIGERATOR MECHANIC (SSK) O/OO THE GARRISON ENGINEER,
AIR FORCE,PO GUWAHATI AIRPORT, GUWAHATI 781015, ASSAM
PERMANENT RESIDENT OF VILLAGE BORDAHI,PO GERUA, PS HAJO, DIST
KAMRUP ASSAM 781102
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Advocate for the Petitioner : MR H GUPTA
Advocate for the Respondent : MR. A AHMED
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
09.11.2021 Heard Mr. H. Gupta, learned counsel for the petitioners. Also heard Mr. A. Ahmed, learned counsel, appearing for the sole respondent/original applicant.
This writ petition has been filed by the petitioner Union of India challenging the order dated 11.09.2020 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati in O.A. No.40/2017, by which the Tribunal has allowed the Original Application of the respondent/ original applicant and has directed that he be promoted to the post of Refrigerator Mechanic (SK) in the Military Engineering Services, which is a Grade-III post.
The case of the respondent/original applicant before the Tribunal was that initially he joined his services as Mazdoor on 01.11.2003 and thereafter he became Mate Pipe Fitter (Semi Skilled) and consequently, after passing an examination, he became Pipe Fitter (Skilled). It appears that the respondent/original applicant wanted to change his trade from Pipe Fitter to that of the Refrigerator Mechanic for which he took valid permission from the concerned authority and when such permission was granted to him, he appeared in the examination of Refrigerator Mechanic in the year 2015. In the subsequent year, i.e. 2016, result of the said examination was declared and promotion order was also issued in his favour promoting him as Refrigerator Mechanic. Thereafter, the said promotion order was cancelled vide order dated 04.02.2017. This order was challenged by the respondent/original applicant Page No.# 3/5 before the Tribunal.
The stand of the Union of India before the Tribunal was that the respondent/original applicant was a mechanic in a different trade, i.e. Pipe Fitting, and he could not have been promoted to the post of Refrigerator Mechanic.
All the same, this aspect was considered by the Tribunal in detail and while disposing of the Original Application vide order dated 11.09.2020 gave its finding in Paragraphs 15 & 16, which read as under:-
"15. In the present case, the applicant has already availed the promotional avenue from Mazdoor to Mate Pipe Fitter (SSK) and appeared in the Trade Test for Pipe Fitter (SK) where he passed the Trade Test on 02.01.2012. The applicant also appeared in the Trade Test of Refrigerator Mechanic (SK) by submitting willingness certificate which was countersigned by Assistant Engineer E/M in the office of the Assistant Garrison Engineer, E/M (AF). Even, Garrison Engineer (AAF) Borjhar vide letter dated 20.12.2014 has forwarded the nominal roll of the applicant for inclusion for the Trade Test for SSK to SK Refrigerator Mechanic before the presiding officer in the office of the Command Works Engineer (CWE) Air Force, Borjhar. Thereafter, the applicant appeared in Trade Test held on 23.12.2014 and declared passed by the competent authority in the test for Refrigerator Mechanic (SK) vide PTO No.4 dated 27.01.2015. Thus, it is candid clear that the applicant appeared in the different Trade i.e. Refrigerator Mechanic (SK) with due permission and approval of the authority under which the applicant was serving. After exploring the papers and documents as annexed which is undisputed by the respondents that the authority who recommended or granted permission to the applicant to appear in the different Trade Test for promotion of Refrigerator Mechanic (SK) is not the authority to do so. The respondent simply stated that as per existing policy the promotion of Refrigerator Mechanic (SK) from Pipe Fitter (SK) is not permissible but they failed to submit or produce under which rules and provisions of law debars avail promotion to the post of Refrigerator Mechanic (SK) by appearing in concerned Trade Test and after having passed the Trade. The applicant in his original trade also served as a Pipe Fitter (SK), however, he preferred to choose the other Trade i.e. Refrigerator Mechanic (SK) for which he appeared in the Trade Test with due Page No.# 4/5 permission and came out successful.
16. In view of the above, we are of the view that there is no such impediment on the basis of materials submitted by the respondent authorities to avail Refrigerator (SK) after being declared successful and figured in the promotional list. We find that the action of the respondents for dropping the name of the applicant from the promotional list for the post of Refrigerator Mechanic (SK) is not appreciable and hence, not accepted."
In other words, the writ petitioners before this Court could not show any provision of law before the Tribunal by which such a change of trade was impermissible nor any Rules were shown before the Tribunal. Now, at this stage when an order has been passed in favour of the respondent/original applicant, the writ petitioners have shown before this Court the Military Engineering Services (Industrial Group 'C') Recruitment Rules, 1990, which were applicable at the relevant point of time, according to which certain qualifications, etc., were also necessary before one is made a Refrigerator Mechanic, a qualification which the respondent/original applicant admittedly does not have.
Since these Rules were not placed before the Tribunal at the relevant point of time, we think it appropriate in the interest of justice that the Tribunal should re-examine the matter in the light of the Rules, particularly, in view of the fact that the Tribunal has powers to review its order under Section 22(f) of the Administrative Tribunals Act, 1985. Accordingly, the writ petition is dismissed.
We, however, make it clear that the dismissal of the writ petition will not prejudice the case of the writ petitioners in case a review petition is filed before the Tribunal.
JUDGE CHIEF JUSTICE
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Comparing Assistant