Madhya Pradesh High Court
Arun Joshi vs Union Of India on 20 November, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1 M.P.No.2598/2019
THE HIGH COURT OF MADHYA PRADESH
M.P.No.2598/2019
(Arun Joshi vs. State of M.P. & ors.)
Jabalpur, Dated : 20/11/2019
Shri Manoj Kumar Sharma, learned counsel for the
petitioner.
Shri N.P.S.Ruprah, learned counsel for respondents No.1
to 8.
With the consent of learned counsel for the parties the matter is finally heard.
Challenge in this petition under Article 227 of the Constitution is to an order dated 26.02.2019 passed in Original Application No.200/00595/2016 and order dated 25.04.2019 in Review Application No.18/2019 by the Central Administrative Tribunal,Jabalpur Bench, Jabalpur.
The grievance raised by the petitioner before Tribunal was non-fixation of his lien in the West Central Railway with effect from the formation of said Railway.
Relevant facts briefly are that the petitioner was appointed on 19.07.1989 as Apprentice Mechanic in Central Railway in the Workshop Stream, Parcel, Mumbai. Thereafter, he was promoted as Chargeman B, Chargeman A and Section Engineer on 19.07.1991, 22.12.1992 and 22.12.1994 respectively in workshop. Thereafter, the petitioner was promoted and posted as Divisional Boiler Inspector (DRI) in Jhansi Division under Central Railway on 23.09.1998/5.10.1998. That by order dated 25.05.2000 the petitioner was transferred to Bhopal Division as Boiler Inspector, Central Railway. However, his lien was maintained at Parcel Workshop Mumbai, Central Railway. That 2 M.P.No.2598/2019 on formation of new zone w.e.f. 01.04.2003 the petitioner gave option on 01.11.2012 to join West Central Railway Headquarter. Petitioner's name was included in the seniority list of West Central Railway.
However,prior thereof that is on 21.12.2004 West Central Railway notified examination under 30% LDCE (Limited Departmental Examination) quota for selection of Assistant Mechanical Engineer against six posts (2 posts each of LDC, Workshop and C & W stream). In his application the petitioner mentioned/chose AME/LOCO/WS, thus, he applied for two streams/wings as Loco and WS instead of applying for one wing to which he belonged. The petitioner's application was treated for 1st choice i.e. Loco wing. The petitioner appeared in written and viva voce test.
In these factual grounds the Tribunal dwelling on the relief sought i.e. quashment of order dated 24.05.2014 and transfer order dated 25.05.2016 and for direction to restore the lien as fixed vide letter dated 05.06.2014 in CRWS and direct the respondent to review the panel of 30% LDCE and promote him to the post of Assistant Mechanic. The Tribunal quashed the order dated 24.05.2016 and transfer order dated 25.05.2016 and directed for fixing his lien in CRWS/Bhopal w.e.f. 8.06.2003 and further ordered :
"24. As far as review of selection of AME in 2005 selection is concerned, we are in agreement with the arguments of the learned counsel for the respondents that the applicant never object to his name being put in the Loco stream. It is only after he found out that he would have succeeded in the selection has his name been in "workshop stream"
that the representation was made. The applicant has 3 M.P.No.2598/2019 not produced any document to show that he protested about including his name in Loco stream.
25. It is a settled principle of law that approbation and reprobation cannot be pleaded at the same time. Since the applicant has participated in the entire process of selection under loco stream without any murmur of protest, therefore, he cannot claim for a review now."
Dissatisfied with the order, petitioner sought Review of order vide RA 200/0018/2019 which was dismissed on 25.04.2019.
Though the petitioner submits that the Tribunal grossly erred in fixing petitioner's lien in CRWS Bhopal and had glossed over the fact that determination of seniority was governed by RBE62/2004 that seniority of staff who joined Headquarter office of the New Zonal Railways then their seniority should be determined on the basis of position and grade held by them in the parent Railway on regular basis and on the basis of non- fortuitous length of service in the grade. And that as the petitioner was promoted in Central Railway as Section Engineer on 22.12.1994 (non-fortuitous) on the existing vacancy in the workshop, Parcel. Reference is also made to Para 228 of IREN Vol-I which envisages correction of mistakes.
The fact, however, remains that the petitioner having opted a particular stream on promotion, and on promotion being granted the Loco wing the petitioner has to blame himself and cannot be allowed to retract therefrom.
There is another aspect of the matter. The respondent in their reply filed before the Tribunal had stated that the petitioner though not eligible, his application was accepted by mistake as the vacancies of AME (30% LDCE quota) notified on 4 M.P.No.2598/2019 21.12.2004 (cut of date being 1.02.2005) were meant to be filled by eligible officials of West Central Railways. Whereas, the Petitioner who was posted in Bhopal Division was under the Administrative control of Jhansi workshop/North Central Railway and lien was on Central Railway. Be that as it may. Since name of the petitioner in Loco stream was as per his own option, in our considered opinion, the Tribunal was well within its jurisdiction in rejecting the petitioner's claim to be treated as in Workshop stream/ C & W stream.
In view whereof, when the impugned order is adjudged on the above analysis, we do not perceive any illegality as would warrant an indulgence.
Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (Atul Sreedharan)
Judge Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2019.11.30
16:57:47 +05'30'