Central Administrative Tribunal - Allahabad
(U/S 19 vs Shailendra Kumar Burlah Kothi on 2 February, 2012
[Reserved]
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
(THIS THE 02nd DAY OF FEBRUARY, 2012)
HONBLE MR. JUSTICE S. C. SHARMA, Sr. MEMBER (J)
HONBLE MR. D. C. LAKHA, MEMBER (A)
Contempt Petition No. 86 of 2011
In
Original Application No. 525 OF 2009
(U/S 19, Administrative Tribunal Act, 1985)
Rakesh Kumar, a/a 36 years, S/o Shri S. P. Singh, R/o House No.A-36, Sahpur Awas & Vikas Colony, Gorakhpur.
Applicant
V E R S U S
1. Shailendra Kumar Burlah Kothi, General Manager, Northern Railway, Baroda House, New Delhi.
2. Suresh Kumar Seth, Chief Personnel Officer, Northern Railway, Baroda House, New Delhi.
..Opp. Parties/Contemnor
Advocate for the applicants:- Sri K. K. Mishra.
Advocate for the Respondents: Sri Prashant Mathur.
Sri Anil Dwivedi.
O R D E R
Delivered By; Honble Mr. Justice S. C. Sharma, Sr. Member-J Instant Contempt Petition has been moved under the Contempt of Court Act, in order to punish the respondents/contemnor for disobedience of the order passed by this Tribunal in O.A. No. 525 of 2009. Notices were issued to the respondents to explain that as to why contempt proceedings may not be initiated against them and the respondents filed objection stating that hey have already complied with the order passed by this Tribunal in the above mentioned O.A..
2. We have heard Sri K. K. Mishra, Advocate for applicant and Sri Prashant Mathur along-with Sri Anil Dwivedi, Advocates for respondents and perused the entire facts of the case.
3. Annexure-1 is the copy of the order passed by this Tribunal in O.A. No. 525 of 2009 and it has been alleged by the applicant that in pursuance of the notification issued by the Railway Recruitment Board, Chandigarh on dated 28th January, 2006 applicant appeared in the Written Examination for the post of Commercial Apprenticeship in grade Rs.5,500-9,000/- and the applicant was declared qualified in the Written Examination (Pre as well as Main), but the appointment was not given to the applicant, rather an order was passed by the respondents that the applicant is not fit for giving appointment on the post of Commercial Apprenticeship, because for that post medical fitness is required of being C-1 category, but when the applicant was examined he was found medically fit in C-2 category and accordingly the appointment was not given to the applicant. Being aggrieved from the action of the respondents, applicant filed O.A. No.525 of 2009 and it was decided with following directions:-
13. In view of the above, the O.A. is allowed to the extent that as in the case of Respondent No.4, the applicant is entitled to be considered for alternative appointment to a post having exile pay scale of Rs.5500-9000/- in the commercial categories. The impugned order dated 11.07.2008 is therefore, quashed and set aside. Respondents are directed to constitute a Medical Board and inform the applicant to be present on a particular date for medical examination that may be prescribed by the Respondents/Medical Board and if the applicant meets the medical standard C-2 he will be considered for any one of the post in the commercial category, against the direct recruit vacancy carrying the pay scale of Rs.5500-9000/- for which the medical examination is C-2. The drill be performed within a period of four months from the date of communication of this order.
4. Hence, in view of the order passed by this Tribunal the following points are to be considered:-
(a). The applicant is entitled to be considered for alternative appointment to a post having exile pay scale of Rs.5500-9000/- in the commercial categories.
(b). Respondents are directed to constitute a Medical Board and intimate the applicant to remain present on particular date for medical examination.
(c). If the applicant meets the medical standard C-2 he will be considered for any one of the post in the commercial category.
(d). And the applicant will be considered for appointment on any one of the post in the commercial category, against the direct recruit vacancy carrying the pay scale of Rs.5500-9000/- for which the medical examination is C-2.
5. Undisputedly, in pursuance of the direction of the Tribunal respondents constituted the Medical Board in order to decide the category of medical standard of the applicant. The Medical Examination was conducted on 10th October, 2011 by C.M.S. divisional Hospital/DLI and the applicant was found fit in C-2 Medical Category. The applicant has not objected this fact that he was not found fit in C-1 medical category and now the respondents are required to undertake the further drill for the compliance of the order passed by this Tribunal. As per direction of the Tribunal the applicant is to be considered for alternative appointment to a post having exile pay scale of Rs.5500-9000/- in the commercial categories. Because this fact has not been challenged by the applicant that for the post of Commercial Apprenticeship in the scale of Rs.5500-9000/- the candidate is required the medical standard of C-1 and the applicant was not found fit in the C-1 medical category, rather he was found fit in C-2 medical category and now the applicants candidature is to be considered for giving appointment on alternative appointment, but there are conditions in making the compliance of the order and for giving alternative appointment to applicant in scale of Rs.5500-9000/-. It will be material to state that there was no direction of the Tribunal to create supernumerary post for the applicant having C-2 medical category. The applicant is to be considered for alternative appointment in that scale of Rs.5500-9000/- only in the commercial categories. And such candidature is to be considered against the direct recruitment vacancy only in medical examination C-2.
6. On dated 18th November, 2011 respondents have passed an order that they have completed the exercise in pursuance of the order passed by this Tribunal, but no alternative appointment can be given to the applicant, because no post is available as per requirement of the Tribunal and the applicant is only to be considered for appointment in commercial category for which the medical standard is C-2 against direct recruitment quota. It has been alleged by the respondents in the compliance report that in the commercial category for C-2 Medical category against the direct recruitment the only post is available of Catering Inspector having revised pay scale Rs.9,300-34,800+4,200/- and the applicant is not fulfilling the requirement required for Commercial Supervisor, Inquiry-cum-Reservation Supervisor or Commercial Superintendent, because for these posts the medical qualification is C-1 and moreover, there is no direct recruitment quota in these categories. The erstwhile element of 20% direct recruitment for the category of Commercial superintendent introduced under the Railway Boards circular dated 09th October, 2003, but it had already been taken away by the respondents by issuing circular number RBE 147/2006 dated 06th October, 2006. And in view of this Railway Boards circular these posts are to be filled up through L.D.C.E. from amongst the serving graduates possessing the service criteria as prescribed. Under these circumstances it was not possible to provide alternative appointment to the applicant in these categories of posts in the Commercial division.
7. As the case of the applicant is to be considered against the direct recruitment quota in the Commercial Category, but as no other post is available in the commercial category except the post of Catering Inspector and for the post of Catering Inspector certain qualifications are required which are as under:-
(a). Higher Secondary (10+2) or equivalent.
(b). Diploma in Catering from a recognized Institute.
(c). Two years experience in an established hotel will be desirable qualification.
The applicant was holding the qualification as Graduation (in Arts) and Post Graduation (in History) and these qualifications are more-than the qualification required for the post of Catering Inspector, but besides having the higher qualification it is also essential that the candidate must possess the Diploma in Catering from a recognized institute and it is not a case of the applicant that he is possessing the Diploma in Catering and it is the case of the respondents that the applicant was not possessing this qualification, hence alternative appointment cannot be given to the applicant on the post of Catering Inspector. The respondents alleged that direction was given by the Tribunal for considering the case of the applicant for alternative appointment with certain conditions and respondents considered the case of the applicant as per direction of the Tribunal, but no alternative appointment can be given to the applicant in the commercial category, because only one post is available for the applicant as per direction of the Tribunal of Catering Inspector, but for this post applicant is not eligible as he was not possessing the Diploma in Catering from a recognized institute and rest of the post are to be filled up in the Commercial category through L.D.C.E., hence as per direction of the Tribunal no alternative appointment can be given to the applicant against direct recruitment quota.
8. Applicant raised certain preliminary objections in the matter and it has been argued by the learned counsel for the applicant that on behalf of the respondents Sri R. K. Malhotra has filed the affidavit to state about the compliance of the order passed by this Tribunal. That Sri R. K. Malhotra is not the Contemnor in the present case and he is the only serving Divisional Personnel Officer in the office of the D.R.M., Northern Railway, State Entry Road, New Delhi, and hence Sri R. K. Malhotra is not at all competent to file affidavit on behalf of the respondents/contemnor. It is a fact that in the Contempt Petition Sri Shailendra Kumar Burlah Kothi and Suresh Kumar Sethi are the respondents/contemnor and they have not filed the affidavit for themselves. That the affidavit filed by Sri R. K. Malhotra on behalf of contemnor cannot be treated as affidavit on behalf of the respondents/contemnor. It will be material to state that no direction has been given by the Tribunal that these respondents/contemnors shall appear in person before the Court to explain that as to why contempt proceedings may not be initiated against them or they must present in person to explain that as to why disobedience has been committed. The compliance report has been filed by the applicant himself along-with Contempt Petition and only respondents are to be heard that whether the contempt is made out or not of the order passed by this Tribunal and if the respondents are required to appear in person then he may be directed to appear in person, otherwise if we are satisfied that sufficient compliance of the order has been made then the affidavit of Sri R. K. Malhotra can also be accepted.
9. It is a fact that in the Contempt Petition the contemnor must appear if ordered for personal appearance, but there is no order on the order sheet for personal appearance, hence in our opinion it is not going to make any difference if the affidavit is filed by Sri R. K. Malhotra on behalf of respondents/contemnor.
10. It has been argued by the learned counsel for the respondents that the direction of the Tribunal was to consider the case of the applicant for alternative appointment to the post having pay scale Rs.5500-9000/- against direct recruitment quota in the Commercial Category having the medical standard C-2 and the respondents considered the case of the applicant as per the parameters of the Tribunal, but the applicant was not found fit for giving appointment on the post of Catering Inspector and rest of the posts in the Commercial category are to be filled up through L.D.C.E. quota. Respondents Advocate argued in this connection that the respondents have considered the case of the applicant for giving alternative appointment in the right perspective and in support of his arguments he cited the order of the C.A.T. reported in 1986 Administrative Tribunal Cases 47 Ram Chander Vs. Union of India and Ors. and the Tribunal in this case held that the word consider has different shades of meaning and must in rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. Reasoned decisions by tribunals, such as the Railway Board in the present, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. And on the strength of this order of the Tribunal learned counsel for the applicant argued that the respondents were required to consider the case of the applicant for alternative appointment with positive mindset and when the approach of the respondents in considering the case of the applicant for alternative appointment is not the positive approach rather it has been considered with negative approach. We have perused the compliance report and we are of the opinion that the respondents have considered the case of the applicant for alternative appointment as per direction of the Tribunal and it cannot be said that the case of the applicant has been considered with negative approach, because only one post is available in the Commercial Category of Catering Inspector against direct recruitment having C-2 standard of medical category and for the post of Catering Inspector one must possess the Diploma in Catering from a recognized institute and it is not the case of the applicant that he is possessing the Diploma in Catering from a recognized institute and moreover, there was no direction of the Tribunal to consider the case of the applicant by creating the supernumerary post.
11. It has been argued by the learned counsel for the applicant that one Sri Sanjib Kr. Saha was appointed on the alternative category of commercial apprentice in grade Rs.5500-9000/- and there was post of Commercial Superintendent, but the same has not been extended to the applicant. That the applicant was declared failed in C-1 medical category, but declared passed in C-2 medical category. The respondents have given proper explanation in the compliance report. In para 9 of the report it has been alleged that Sri Sanjib Kr. Saha, who was also provided the alternative appointment on having been failed in requisite medical category for which he was originally recruited. However, it is found that Sh. Sanjib Kumar Saha was recruited as Traffic Apprentice for which the medical classification was A-2. However, he was not found fit in his original appointment as Commercial Apprentice by the Competent Authority keeping in view his educational qualification and vacancies in the category in which the element of direct recruitment was involved. As directed by the Honble CAT/ALD, your case has also been considered on the same lines, but your case incongruent with that of Sh. Sanjib Kr. Saha as you are found unfit in medical category C-1, but found fit in medical category C-2. The direct recruitment element is involved in such categories for which medical classification is C-2 is only the case of Catering Inspector, but you do not possess the required educational qualification prescribed for the post of Catering Inspector. And hence the case of the applicant was also considered on the same lines as of Sri Sanjib Kumar Saha and it cannot be said that the similar treatment has not been given to the applicant in giving alternative appointment.
12. For the reasons mentioned above, we are of the opinion that the as per direction of the Tribunal respondents considered the case of the applicant for giving alternative appointment, but the applicant was not found fit for the alternative post in the commercial category as only one post of Catering Inspector was available for which the educational qualification was Diploma in Catering is required which the applicant is not possessing and rest posts in the Commercial Category is to be filled up through L.D.C.E. quota and the applicant is to be given appointment against direct recruitment quota, but the post is not available in the Commercial category. In our opinion proper compliance has been made of the order passed by this Tribunal and it cannot be said that the respondents have committed any willful disobedience of the order passed by this Tribunal. Under these circumstances this Contempt Petition is liable to be dismissed.
13. Contempt Petition is dismissed. Notice discharged.
Member-A Sr. Member-J
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