Central Administrative Tribunal - Jodhpur
Madan Singh S/O Shri Hanuman Singh vs Union Of India on 5 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.136/2011
with
Misc. Application No.82/2011
Jodhpur this the 05th day of September, 2013
CORAM
Honble Mr.Justice Kailash Chandra Joshi, Member (J),
Honble Ms. Meenakshi Hooja, Member (A)
1. Madan Singh S/o Shri Hanuman Singh, aged 50 years, R/o Modern Market, Alakh Sagar Road, Bikaner.
2. Inder Singh S/o shri Ganga Ram, aged 51 years, R/o Near Pashu Chikitsalaya, Rampura, Lalgarh, Bikaner.
3. Rustam Ali S/o Shri Bhanwar Bagwan, aged 51 years, R/o D-20, Sashtri Nagar, Bikaner.
4. Amer Singh S/o Shri Magan Singh, aged 44 years, Sangalpura Mohalla, Sagar Road, Bikaner.
5. Shiv Kumar S/o Shri Shri Ram, aged 44 years, Behind PHED Office, Indira Colony, Bikaner.
6. Ghanshyam S/o Shri Shiv Lal, aged 45 years, Vinoba Basti, Behind Rampuria Ice Factory, Bikaner.
7. Girdhari Singh S/o Shri Chhagan Singh, aged 46 years, R/o Maji sa ka Bas, Near Ram Deo Mandir, Bikaner..
8. Umaid Singh S/o shri Baney Singh, aged 45 years, R/o Subhash Pura, Lalgarh, Bikaner.
9. Om Prakash Singh S/o Shri Jeth Mal Singh, aged 50 years, R/o Near Mata ji ka Mandir, Purani Ginanni, Bikaner.
10. Rampal Singh S/o Shri Jagbir, aged 45 years, R/o F-20, Raj Nagar Colony, Sagar Road, Bikaner.
11. Raghuveer Singh S/o Shri Moti Singh, aged 45 years, R/o Maji sa ka bas, Nawal Sagar Kua, Bikaner.
12. Hira Lal S/o Shri Dhanna Ram, aged 44 years, R/o Near Panwar Sar Kua, Roshanghar Road, Bikaner.
13. Narayan Singh S/o Shri Ajmal Singh, aged 50 years, R/o Hanuman Hatha Gali No.3, Bikaner.
14. Afzal Beg S/o Shri Ameer Beg, aged 45 years, R/o Rampura, Lalgarh, Bikaner.
15. Shiv Ratan S/o shri Surja Ram, aged 50 years, R/o Near Ram Nath Yogi Kulia, Sujandesar, Bikaner.
16. Gopal Singh S/o Shri Onkar Singh, aged 48 years, R/o Near Melborn English School, Adarsh Colony, Bikaner.
17. Ranjeet Singh S/o Shri Vasu Deo, aged 45 years, R/o P-51/1, MES Colony, Sagar Road, Bikaner.
18. Mohan Singh S/o Shri Vishwanath Singh, aged 50 ytears, R/o B-94, Sadulganj, Bikaner.
All applicants are FGM and are posted under the Garrison Engineer (N), MES, Bikaner.
.Applicant
Mr. Vijay Mehta, counsel for applicant.
Versus
1. Union of India, through the Secretary to the Government, Ministry of Defence, Raksha Bhawant, New Delhi.
2. Commander Works Engineer, MES, (Air Force), Bikaner.
.Respondents
Smt. K. Parveen, counsel for respondents.
ORDER (Oral)
Per Justice K.C. Joshi, Member (J) The present OA has been filed by 18 applicants against the respondents under Section 21 of the Central Administrative Tribunals Act, 1985, for the following reliefs:-
The applicants pray that they may kindly be allowed to file and prosecute the OA jointly. The applicants pray that the respondents may kindly be directed to give promotion to the applicants on the post of FGM HS-II, HS-I and MCM forthwith from t he dates their above said juniors have been given promotions. The respondents may kindly be directed to grnat promotion to the applicants on the post of HS-II w.e.f. 22.03.1995, the date on which their junior was promoted on the said post. They may also be directed to grant promotion to the applicants on the post of HS-I and MCM from 31.01.2000 and 20.05.2003, the date on which their juniors were granted promotions to the said posts. They also pray that consequently the respondents may kindly be directed to assign due seniority to the applicants on the promoted posts as also to pay salary and other benefits of the promoted posts to the applicants. Interest at the rate of 12% on due amount may also be granted to the applicants. Any other order, as deemed fit, giving relief to the applicant may also be passed. Costs may also be awarded to the applicants.
2. The short facts of the case as averred by the applicants are that the applicants were initially appointed on the posts of DES and MPA SK in the year 1989. Later on, both these posts were redesignated as FGM SK. It has been averred that the services of the applicants were terminated against which the applicants filed an OA before this Tribunal, which was allowed and the respondents were directed to reinstate the applicants with back wages. In implementation of the order passed by this Tribunal, the applicants were reinstated w.e.f. 1989 but they were appointed on the post of Mazdoor. Being aggrieved by that order of reinstatement, the applicants filed another OA bearing OA No.242/2006. It has been further averred that similar OA was also filed by other persons and in OA No.221/2004 this Tribunal vide its order dated 05.09.2006 directed the respondents to consider the regularization of the applicants on the posts against which they were appointed from the date of their initial appointments and it was further directed that the applicants shall be entitled to all consequential benefits. The applicants OA bearing No.242/2006 was also allowed vide order dated 06.02.2008 in terms of the order passed in OA No.221/2004.
3. It has been further averred that in terms of the order passed in OA No.221/2004 and OA No.242/2006, the respondent No.2 vide PTO dated 03.10.2008 appointed applicant Nos.1 to 9 &16 on the posts of DES w.e.f. 10.11.1989 and applicants No.10 to 15 were appointed on the post of MPA w.e.f. 10.11.1989, and the applicant Nos. 17&18 were appointed on the posts of MPA w.e.f. 11.11.1989 and 13.02.1989 respectively by order dated 03.10.2008. This order dated 03.10.2008 was passed by the respondent No.2 in terms of the order dated 06.02.208 passed by this Tribunal in OA No.242/2006 and further due to re-designation of the posts of MPA and DES, the applicants were appointed as FGM w.e.f. 06.07.1994. It has been further averred that while implementing the order passed in OA No.242/2006, the respondent No.2 issued a PTO dated 24.11.2008. The applicants were called to appear in the trade test and applicants appeared in the same and were declared successful vide order dated 22.06.2009. Thereafter, the respondents No.2 granted the benefits of ACP to the applicants vide letter dated 23.09.2010. It has been further averred that while the applicants were granted due designation and salary vide order at Annexure-1 passed in implementation of the order passed by this Tribunal in OA No.242/2006, they came to know that some of their juniors were promoted in the meanwhile. The applicants gathered required information and came to know that their juniors namely Mohan Lal Meena and Parmatma Swaroop were granted promotion on the post of HS-II w.e.f. 22.03.1995, while Shri Ram Lal, Madan Lal, Gomamd Ram and Lila Dhar were granted promotion on the post of HS-II on 20.06.1995, 30.08.1995, 30.06.1995 and 28.09.1995 respectively. All the three persons were further granted promotion on the post of HS-I and MCM w.e.f. 31.01.2000 and 20.05.2003. Being aggrieved by the above order, the applicants filed a joint representation to the respondent No.2 on 15.12.2010 drawing their attention that their juniors have been promoted therefore they should also be promoted. Thereafter, the applicants filed an identical representation on 17.01.2011 and again on 02.04.2011. It has been averred that the respondent No.2 assured the applicants to redress their grievances, but when their grievances have not been redressed, then they approached this Tribunal by way of filing the present OA for the relief as stated in Para No.1.
4. By way of reply, the respondents denied the rights of the applicants to get the promotions from the date from which their juniors were promoted and it has been averred that the applicants were taken in the seniority list during 2010 after the decision of this Tribunal in OA No.242/2006 dated 06.02.2008. Hence, the plea of the applicants that their juniors were promoted as HS-II, HS-I and MCM does not seem to be in order as they were not borne in the seniority list at that time. Moreover, these applicants were not regular incumbent of the post of FGM (SK) and were physically working as Mazdoor/ Mate and have also not passed requisite Promotion Trade Test for the post of FGM (HS-II/HS-I) until 28.02.2009 and only after implementation of the order of this Tribunal dated 06.02.2008 their names were included. Hence, the applicants do not have the merit to seek promotion retrospectively at par with other promotees mentioned in Annexure-A/5. The respondents have also denied the other averments made in the OA.
5. The applicant filed a rejoinder and while reiterating the same facts, it has been averred that this Tribunal directed the respondents to appoint the applicants from the year 1989 on the said post in due pay scales in the year 1989, vide order dated 03.10.2008. Thus, the applicants were inducted in the said cadre in the year 1989 and are holders of the said posts, redesignated as FGM from the year 1989. It has been further averred that no documentary evidence has been filed by the respondents in support of the reply showing any seniority list of other employees.
6. A Misc. Application for condonation of delay bearing MA No.82/2011 has been filed along with the OA, the same is allowed for the reasons in the application because it is always better to decide the matter on the merits rather to decide the matter on technical ground as the same advances the cause of justice.
7. The applicants have sought the permission to pursue the matter jointly as per the relevant provisions of the Central Administrative Tribunals. Accordingly, applicants are permitted to do so because the applicant are pursuing the same cause and also have challenged the same order.
8. Heard both the parties. Counsel for the applicants contended that the respondents have failed to revise the seniority list as per the order of this Tribunal and simply by failure of the respondents in not revising the seniority list, the rights of the applicants cannot be deprived to grant promotion and seniority.
9. Per contra, counsel for the respondents contended that the applicants have no right to grant promotion as their names were not included in the seniority list.
10. We have considered the rival contentions of both the parties and also perused the documents available on record. Since the applicants are appointed in the year 1989 and are senior to the employees named mentioned the respondents therefore, they are entitled to get promotions prior to the date on which their juniors have been promoted. They cannot be deprived promotion only on the ground that their names were not included in the seniority list. The respondents cannot take benefit of their long administrative decision and also when this Tribunal ordered to appoint the applicants with retrospective effect with all consequential benefits, there was no reason for the respondent No.2 to pass the orders granting their seniority from any other dates because the order passed by this Tribunal amounts to stating that the applicants had been in service even on the date when the other persons were appointed on the post of FGM (SK). Therefore, the relief granted by the Tribunal has been disallowed by promoting the juniors earlier to the applicants on the post of FGM, SH-II, SH-I and MCM.
11. So far as the facts of promoting the juniors earlier to promotion to the applicants have not been denied by the respondents in his reply and a plea has been raised in para No.4.9 of the reply. But in our considered view the plea raised in Para No.4.9 of the reply cannot be a ground to deny seniority to the applicants because in the earlier OA decided by this Tribunal, all the consequential benefits have been granted to the applicants and in consequence thereof the applicants are entitled to get their seniority from their initial appointment and further they are re -designated on the post of FGM from the date when the applicants became entitled of the same. So far as the grounds taken by the respondents that the applicants have not passed the trade test till 28.02.2009 is concerned, the same is not tenable because when this Tribunal passed the order to give all the consequential benefits to the applicants then it shall be presumed that the applicants have passed the trade test from the date on which their juniors were passed because they were allowed to take the trade test in pursuance of the judgment of this Tribunal.
12. In view of the discussions made hereinabove, the applicants are entitled to get the relief sought in the OA. Therefore, the respondents are directed to give promotion to the applicants on the post of FGM, HS-II, HS-I and MCM forthwith from the dates on which their juniors have been given promotions. The respondents are further directed to grant promotion to the applicants on the post of HS-II w.e.f. 22.03.1995 the date on which their juniors were granted promotion on that post and they further directed to grant promotion to the applicants on the posts of HS-I and MCM w.e.f. 31.01.2000 and 20.05.2003, from the date on which their juniors were granted promotions, as per rules. Further, the applicants are entitled to get all the consequential benefits including arrears and so far as interest part is concerned, we are not inclined to grant any interest. The respondents are directed to comply with the order within four months from the date of receipt of a copy of this order.
13. Accordingly, the OA is allowed as stated above with no order as to costs.
(Meenakshi Hooja) (Justice K.C. Joshi)
Administrative Member Judicial Member
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