Central Administrative Tribunal - Allahabad
Anurag Sharma vs Shri Deepak Dave on 1 November, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ********* Contempt Petition No. 32 of 2008 Connected with Contempt Petition No. 167 of 2008 In Original Application No. 302 of 2004 Allahabad this the _____ day of __________ 2011 Honble Mr. Justice S.C. Sharma, Sr. J.M./HOD Honble Mr. Shashi Prakash, Member (A) Contempt Petition No. 32 of 2008 1. Anurag Sharma, S/o Shri Om Prakash Sharma, R/o RE-10D, Triveni Vihar, Rambag Railway Colony, Allahabad. 2. Nagendra Bahadur Singh, Ram Yatan Yadav R/o RE-3C, Triveni Vihar Rambag Railway Colony, Allahabad. Both working as Supervisor (Works) in Central Organisation, Railway Electrification, Allahabad. Petitioners By Advocate: Sri S.K. Om Versus 1. Shri Deepak Dave, Divisional Railway Manager, North Central Railway, Allahabad. 2. Shri Vivek Sahay, General Manager, Central Organisation Railway Electrification, Allahabad. Opposite Parties By Advocate: Sri Prashant Mathur Contempt Petition No. 167 of 2008 Mohd. Halim Khan son of late Shri Safat Mohd Khan, R/o A-1235/2 Indira Nagar, Lucknow, Presently working as Technical Supervisor, Railway Electrification, Lucknow. Petitioner By Advocate: Sri S.K. Om Versus 1. Shri G.R. Vij, General Manager, Central Organization of Railway Electrification (CORE), Allahabad. 2. Anant Swaroop, Senior Divisional Personnel Officer, Northern Railway, Estate Entry Road, New Delhi. Opposite Parties By Advocates: Sri Anil Kumar Sri Prashant Mathur O R D E R
By Honble Mr. Justice S.C. Sharma, Sr. J.M./HOD Both the above mentioned Contempt Petitions have been moved against one Order passed by the Tribunal in O.A. No. 302 of 2004 on 26.07.2007. It has been alleged by the petitioners that the opposite parties have not complied with the directions given by the Tribunal, and they have committed disobedience hence they may be punished.
2. We have heard Sri S.K. Om, Advocate for the petitioners, and Sri Prashant Mathur and Sri Anil Kumar, Advocates for the opposite parties and perused the entire facts of the case.
3. We have perused the Order passed in O.A. No. 302 of 2004 dated 26.07.2004. O.A. was instituted by Anurag Sharma and Mohd. Haleem Khan for quashing the letter dated 23.07.2003 as well as the order of regularisation of applicants in Group D category and further directing the respondents to screen and regularize the applicants in technical Group C category as has been done with regard applicants counterpart working in other Railway Divisions from the date applicants have been regularized in Group D. The Tribunal decided the O.A. to the following effect: -
In view of the foregoing reasons this OA is allowed. The impugned order dated 23.07.2003 is quashed and set aside and the respondents are directed to screen and regularize the applicants in technical Group C category from the date of the applicants have been regularized in Group D in accordance with Rules. No costs. From perusal of the directions issued by this Tribunal, it appears that the respondents were directed in order to screen the applicants and regularize in technical Group C category. There is also reference, in the body of the Order, of a case decided by the Jabalpur Bench of the CAT in O.A. No. 398 of 1998, which was allowed on 12.03.2003. The Tribunal commented regarding that case, as follows: -
On taking into consideration the applicants are liable to be regularized in Group C category only and no justification for the respondents to regularize them in Group D, and the action of the respondents is illegal, arbitrary and unsustainable in law and further stated that identical and similarly placed persons aggrieved by the action of the respondents have approached the Jabalpur Bench of this Tribunal by filing OA No. 398/1998 which was allowed on 12.03.2003 (the copy of which is produced as Annexure-3). Even though these facts were brought to the notice of the respondents by submitting the representations the respondents have not considered the request of the applicants and rejected to the same by order dated 23.07.2003 (copy of which is produced as Annexure-5). . . . . . . . .
We have perused the order passed by the Jabalpur Bench, in the said order the relevant I.R.E.M. of the Railway Board and also the other orders passed by the Tribunal, were considered we find that the similarity with regard to the issues involved in this application are one and he same which are decided by the Jabalpur Bench, and therefore for the same reasons the applicants are entitled for the reliefs claimed in this application, as the order passed by the Jabalpur Bench was affirmed by the Honble High Court and the Honble Supreme Court.
Learned counsel for the petitioners argued that although in the operative portion there is no mention that the petitioners shall be regularised in technical Group C category as per directions of the Jabalpur Bench in the case of similarly situated person but in the body of the Order it has been held that the applicants of the present O.A. are similarly situated persons like the applicants of O.A. before the Jabalpur Bench, and that the applicants are also entitled for the same treatment.
4. On behalf of the petitioners as well as the opposite parties, several Affidavits, Counter Affidavits, Rejoinder Affidavit and Suppl. Counter Affidavits have been filed, which shall be considered at the relevant place. It has been argued by learned counsel for the opposite parties that there was no direction of the Tribunal to regularize the services of the petitioners in the Technical Supervisor grade out rightly in the scale of ` 5000-8000/- and that the applicants shall be regularised as per rules. A Supplementary Rejoinder Reply was filed on behalf of the petitioners on 07th March 2011 and in that Reply it has been alleged as under: -
. . .however, with great difficulty, they could lay their hands on the order dt. 22.3.05 whereby N.C. Railway, Allahabad regularized the services of Sri Shyam Lal as Supervisor works in the grade of Rs.4500-7000. It may be clarified that later on the grade of Rs.4500-7000 and Rs.5000-8000 have been merged together by the Rly. Board in the grade of Rs.5000-8000 and accordingly applicants are claiming regularization in this very grade. It has further been alleged in the Supplementary Rejoinder Reply that the respondents vide order dated 10.06.04 regularized Sri G.C. Rajput and Sri Vineet Kumar Nigam in the grade of Rs.5000-8000. Annexure RR-1 shows that the services of Shri Shyam Lal, Casual SOM Gr. Rs. 4500-7000 (RSRP) working under ADEN/ NCR/TDL has been regularized as Supervisor (Works) Gr. Rs.4500-7000 (RSRP) and posted at HRS under SSE/ Works/HRS. It is stated that the annexure RR-2 is also relevant in this connection, and it is evident from this order that Sri G.C. Rajput and Sri Vineet Kumar Nigam were regularized in the scale of ` 5000-8000/- whereas the respondents have not regularized the applicants in the scale of ` 5000-8000/-. On behalf of the opposite parties, on 06.09.2011, Supplementary CA has also been filed, and it has been alleged in the Supplementary CA that the services of Shri Shyam Lal casual S.O.M. were considered for regularization in pursuance of the orders passed by this Honble Tribunal in Original Application No. 1332 of 1998 passed by Allahabad Bench of Tribunal as a consequence of the written examination held on 12.10.2004 and also keeping in view their professional qualification with due approval of the competent authority, after adjudging their suitability/fitness by a committee of officers of whom one officer will be from the Railway Recruitment Board, Allahabad. On the basis of this contention, learned counsel argued that the present applicants are not entitled to the benefit of case of Shyam Lal, Casual SOM because he appeared in the written examination held on 12.10.2004, and the examination was conducted by the Railway Recruitment Board whereas despite the time being granted to these applicants, they have not appeared in the written examination, and the applicants cannot be out rightly promoted in the pay scale of ` 5000-8000/-. These applicants were required to participate in the written test for the scale of ` 4500-7000/-, whereas Shyam Lal appeared in that examination. On behalf of the opposite parties, a Supplementary Counter Affidavit was filed on 09.07.2010, and much has been argued by learned counsel for the respondents on the basis of this SCA filed in CP 167 of 2008.
5. It has been alleged in the aforesaid SCA that the petitioners are seeking regularisation in the pay scale of ` 5000-8000/- but it is not in accordance with the Rules. It has further been alleged in the SCA dated 09.07.2010 that seeking regularisation directly in the grade of ` 5000-8000/- is not in accordance with the rules which can clearly be appreciated from the chart annexure SCA-5 dealing with the avenues of promotion. They further alleged that the employee who is not presently regularized in the grade of ` 3050-4590/- Fitter-II (Engineering)-the initial post to which he was appointed. The regularisation in Group D will not have any adverse effect on the status as it would be easier for the applicant to be regularized in Group C. It is stated that initially the applicant is to be regularized in Group D. The post of Junior Engineer-II in the grade of ` 5000-8000/- is to be filled according to the following prescribed quota: -
i. Railway Recruitment Board : 67.5% ii. Intermediate Quota : 07.5% iii. Promotee Quota : 25% It has further been alleged that the services of the petitioners were utilized in the grade of `3050-4590/- which is a Group C post. Although the petitioners were regularised in Group D post but utilized in Group C post hence without following the promotional channel in the pay scale of ` 3050-4590/- it is not permissible to regularize the petitioners directly in the pay scale of ` 5000-8000/- without passing the prescribed tests, and that the matter of regularisation in the grade of ` 5000-8000 is only a prerogative of Railway Recruitment Board by taking a regular examination from all the eligible candidates. The petitioners at no point of time have ever passed any examination/test for Fitter (Engineering) in their initial post. The petitioners can only claim their further advancement of Grade II scale ` 4000-6000 and then Grade-I in the scale of ` 4500-7000/- and thereafter in the grade of ` 5000-8000/-. The promotional avenues have been shown in the next letter of the opposite parties. The petitioners are to be regularized in the pay scale of ` 4500-7000/- and not out rightly in the pay scale of ` 5000-8000/-.
6. On behalf of the opposite parties in CP 167/2008, an Order has been produced passed by this Tribunal on 16.03.2011 in Contempt Petition No. 206 of 2010. On the basis of this Judgment, learned counsel argued that this Contempt Petition has been moved beyond the period of one year and is liable to be dismissed on this ground. But we are of the opinion that the Contempt Petition has been moved within one year of the Order passed by this Tribunal. Learned counsel for the petitioners produced a Judgment of the Honble Supreme Court reported in 2001 AIR SCW 3025 Pallav Sheth Vs. Custodian and others. In view of this Judgment also the Contempt Petition No. 167/2008 is not barred by limitation.
7. From perusal of the Order passed by the Tribunal, it is evident that the petitioners are to be regularized after screening in Technical Group C category. It has not been mentioned in the operative portion of the Order that in which grade petitioners is to be screened/regularized. The petitioners are to be regularized in Technical Group C category. There are numerous posts in Technical Group C. First is Technical III-pay scale ` 3050-4590/-, then Technical II, pay scale ` 4000-6000/-, thereafter Technical I, pay scale ` 4500-7000/- and MCM ` 5000-8000/-. As the Tribunal quashed the Order dated 23.07.2003 and this Order was passed by the respondents regarding regularisation in Group D but as per directions of the Tribunal, this order was quashed and the respondents were directed to regularize/screen the applicants in Technical Group C. For want of any specific directions, it will not be possible for us while sitting in the contempt jurisdiction to interpret that meaning of the Order is to regularize the services of the petitioners in the pay scale of ` 5000-8000/-. Learned counsel for the opposite parties argued that out rightly to regularize a person from the scale of ` 3050-4590/- is not permissible, and the petitioners have been regularised in that scale, and thereafter they will have to be screened. It is also stated by the respondents that the letter has been issued by the opposite parties in order to regularize the petitioners in the pay scale of ` 4500-7000/-, and afterwards petitioners are to be screened and regularised in the pay scale of ` 5000-8000/-. Moreover, this is a post of Master Craftsman and according to opposite parties this post is to be filled up as per result of the selection through the Railway Recruitment Board, and without appearing in the test for the post of Master Craftsman, it is not possible to give the petitioners the pay scale of ` 5000-8000/-. It is not possible for us, in the absence of specific direction, to give any direction to promote the petitioners as Master Craftsman in the pay scale of ` 5000-8000/-. The opposite parties have complied with the Order by regularizing the petitioners in the pay scale of ` 4500-7000/-. In our opinion, compliance of the Order has been made, and out rightly we cannot direct the opposite parties to regularize the petitioners in the pay scale of ` 5000-8000/- without following the procedure. As the Order is silent in this connection hence no such direction can be given. As the Order has been complied with by the opposite parties, Contempt Petitions do not survive and are liable to be dismissed.
8. Contempt Petition No. 32/2008 and Contempt Petition No. 167/2008 are dismissed as the Order passed by this Tribunal has been complied with. Notices are discharged.
Member-A Sr. J.M./HOD
/M.M/
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