Madhya Pradesh High Court
Union Of India vs Rakesh Kumar Ranjan on 21 November, 2019
Author: Atul Sreedharan
Bench: Atul Sreedharan
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{W.P No. 21246/2013 & W.P No.21252/2013}
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(DIVISION BENCH : HON'BLE Shri Justice Atul Sreedharan &
Shri Justice J.P Gupta)
Writ petition No.21246/2013
Union of India & others
Vs.
Rakesh Kumar Ranjan;
&
Writ petition No.21252/2013
Union of India & others
Vs.
Mukesh Kumar Singh;
Shri S.P Singh with Shri Arun Soni, Advocates for the petitioners
Shri Akash Choudhury, Advocate for respondents
ORDER
(Delivered on /11/2019) As per: J.P. Gupta. J.
This order shall govern the disposal of aforesaid two writ pe- titions as these petitions are filed under Article 227 of the Constitution of India, the petitioners have challenged the legality and validity of the com- mon order dated 06/08/2013 passed by the learned Central Administra- tive Tribunal, Jabalpur in Original Application No.471/2010 (Rakesh Ku- mar Ranjan Vs. Union of India & others) & Original Application No.472/2010 (Mukesh Kumar Singh Vs. Union of India & others) and common order dated 28/10/2013 passed in Review Application No.29/2013 (Union of India & others Vs. Rakesh Kumar Ranjan) and Re- view Application No.30/2013 (Union of India & others Vs. Mukesh Kumar Singh) respectively ignoring the ban imposed on alternative appointment for medically unfit candidates by Railway Board Circular dated 2 {W.P No. 21246/2013 & W.P No.21252/2013} 25/05/2009 and allowing the original applications with the direction to consider the case of the respondents, who were found medically unfit for the post of Traffic Apprentice, with direction to consider the case of the respondents for alternative appointment in the category for which they were found medically fit, within a period of 3 months from the date of communication of the order, considering that the circular dated 25 th May, 2009 is not applicable in the cases which were pending for consideration before the aforesaid date. In other words, the circular has prospective ef- fect.
2. The aforesaid impugned orders have been challenged on the ground that the circular dated 28/07/2010 issued by the Railway Board further clarify that the circular dated 25 th May, 2009 is applicable to all the cases pending on the date of 25 th May, 2009. In other words, after 25 th May, 2009 the competent authority has no power to consider the case of the candidate who found medically unfit for the post he applied. The aforesaid circulars have binding effect on the parties. Their validity have not been challenged, therefore they have force of law. Apart from it, learned CAT, Jabalpur has ignored the judgments of other Benches of CAT that have considered the binding effect of the aforesaid circular and rejected the similar prayer. Therefore, the Hon'ble Tribunal has committed gross legal error and impugned orders deserve to be set aside.
3. Learned counsel appearing on behalf of the respondents has submitted that the impugned orders are in accordance with the law. There is no illegality in the impugned orders as the respondent's representation or matter was pending before the competent authority for consideration before passing of the circular dated 25/05/2009 and in which it was not mentioned that it has retrospective effect and later 3 {W.P No. 21246/2013 & W.P No.21252/2013} circular dated 28/07/2010 is merely general clarification which does not come under the purview of binding law and the same will also be applicable in the cases arising after the date of 28 th July, 2010 and further submitted that in the similar matter Ahmedabad Bench of CAT in O.A No.445/2009 allowing the original application of the applicant in the case and directed the present petitioners as directed by the Jabalpur Bench of CAT by the impugned orders and the order of CAT, Ahmedabad was challenged before the Hon'ble High Court of Gujarat at Ahmedabad in Special Civil Application no.3638/2013 and the Hon'ble High Court of Gujarat by order dated 10/07/2013 confirmed the order of the Tribunal at Ahmedabad. Against which the applicant filed Special Leave Petition (Civil) No.3640/2014, in which by order dated 03/02/2014 notices were issued to the respondent and on appearance of the parties vide order dated 28/10/2014 after hearing the counsel for the parties, the SLP was dismissed and question of law is kept open. In the circumstance, this case, having the same nature, deserves same fate.
4. Having heard learned counsel for the parties and on perusal of the record, in view of the judgments of CAT, Ahmedabad about which SLP was dismissed after hearing the parties. The present petitions deserve to be set aside as the Hon'ble Tribunal has not directed to appoint the respondent on any post. The Tribunal has only directed to consider their case for the post for which the respondent was medically fit considering the circular, instruction, and policy of the Railway, which was prevailing at the time of considering their case. If the circular dated 25th May, 2009 is given effect on all the pending cases in which the candidates who were not on fault will suffer on account of delay which might have been caused deliberately for ulterior motive and the 4 {W.P No. 21246/2013 & W.P No.21252/2013} candidates who in ordinary way or on basis of having approached or otherwisely ready to satisfy the authority and got the appointment would be in a beneficial position and in this way the retrospective effect will cause the effect of discrimination among the candidates whose case was pending before the date of 25th June, 2009 and this act would be in violation of Article 14 of the Constitution of India. Therefore we are of the view that the circular dated 25th May, 2009 is not applicable in the case or matter pending for consideration before the aforesaid date.
5. The other objection of the petitioners is that the respondents have not challenged the validity of the aforesaid circulars before the Tribunal which are enforceable as law. Therefore learned Tribunal can't ignore the aforesaid circulars. The aforesaid contention has no substance as in the present case there is no controversy about the validity and legality of the circulars. There is a question of interpretation with regard to retrospective or prospective effect of the circular and the learned Tribunal is of the view that the circulars have no retrospective effect. Therefore on the aforesaid ground the impugned orders can't be termed bad in law.
6. Learned counsel appearing on behalf of the petitioner has also placed reliance on the orders of Jodhpur Bench of the CAT passed in OA No.335/2010 dated 25th April, 2012 and order of the Ahmedabad Bench of the CAT passed in OA No.38/2010 dated 02 nd July, 2013 and CAT, Delhi passed in OA No. 814/2012 dated 13 th March, 2012 and CAT, Delhi in OA No.1118/2012 dated 4th April, 2012 in which it is held that the circular dated 25th May, 2009 has a retrospective effect. Therefore ignoring the aforesaid view the impugned orders passed by the CAT, Jabalpur are not sustainable.
5
{W.P No. 21246/2013 & W.P No.21252/2013}
7. In view of this Court as mentioned earlier considering the order passed by the Ahmedabad Bench of CAT in OA No. 445/2009 and confirmed by the High Court of Gujarat about which SLP was dismissed after hearing of the parties, the aforesaid order of Ahmedabad Bench of the CAT is in the same line of the impugned orders passed by the CAT, Jabalpur. In such circumstance, the aforesaid contention of the petitioner has no merit and High Court exercising the power under Article 227 of the Constitutiion of India, can't be set aside the impugned orders on the aforesaid count.
8. In view of the aforesaid discusssion, we are of the view that the petitions have no merit and the impugned orders can't be said to be illegal and in this case two views are possible, therefore the view taken by the Hon'ble Tribunal can't be set aside on the ground that there is another view also possible. Hence these petitions are dismissed.
No order as to cost.
Certified copy as per rules.
(ATUL SREEDHARAN) (J.P.GUPTA)
JUDGE JUDGE
Digitally signed by TARUN KUMAR
tarun/ SALUNKE
TARUN DN: c=IN, o=HIGH COURT OF MP,
ou=GOVERNMENT,
postalCode=482002, st=Madhya
KUMAR
Pradesh,
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SALUNKE
serialNumber=0e7afab970b523fc5e
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KUMAR SALUNKE
Date: 2019.11.21 14:34:50 +05'30'
6
{W.P No. 21246/2013 & W.P No.21252/2013}
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR (DIVISION BENCH : HON'BLE Shri Justice Atul Sreedharan & Shri Justice J.P Gupta) Writ petition No.21246/2013 Union of India & others Vs. Rakesh Kumar Ranjan;
& Writ petition No.21252/2013 Union of India & others Vs. Mukesh Kumar Singh;
ORDER For consideration (J.P.GUPTA) Judge __/11/2019 Hon'ble Shri Justice Atul Sreedharan (ATUL SREEDHARAN) Judge /11/2019 Post for : __/11/2019 ( ) Judge __/11/2019 7 {W.P No. 21246/2013 & W.P No.21252/2013}