Gujarat High Court
Union Of India & 2 vs Shri Hussain Abdulsattar Shaikh on 28 January, 2016
Bench: S.R.Brahmbhatt, K.J.Thaker
C/SCA/1327/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1327 of 2016
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UNION OF INDIA & 2....Petitioners
Versus
SHRI HUSSAIN ABDULSATTAR SHAIKH....Respondent
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Appearance:
MS ARCHANA U AMIN, ADVOCATE for the Petitioner Nos. 1 3
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 28/01/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned advocate for the parties.
2. The petitioners, by way of this petition, have approached this Court invoking Article 227 of the Constitution of India with following prayers.
(a) a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned order dated 21/10/2011 at Annexure N and order dated 30/11/2015 at Annexure Q;
(b) pending admission and final hearing of this Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER petition kindly stay the operation and implementation and execution of the impugned orders at Annexure N and Annexure Q;
(c) grant such other and further relief as may deem fit and proper in the interest of justice.
Thus, essentially the challenge is made to the order dated 21st October 2011 and also to the order dated 30th November 2015 in which the tribunal directed the petitioners to implement the order of promotion of the respondent, which had in fact issued way back in the year 2001 to be more precise on 11th April 2001.
3. The facts in brief as could be gathered from the memo of the petition would indicate that the present respondent was appointed with the petitioners, as substitute on 13th February 1972 and was absorbed as Cleaner vide order dated 6th March 1979. The selection procedure for the post of Driver (Goods) for Dabhoi (DB) Station which was a Narrow Gauge Railway Line at the relevant point of time was initiated by the petitioners. The respondent after qualifying in several tests, was appointed as Driver and as the respondent attended the DSL Driver Course from 17th June 1994 to 6th August 1994 and passed necessary training in ZDM5Loco, he was promoted to the post of Senior Assistant Driver since 31st August 1995 in the pay scale of Rs.5200 20200 and Grade Pay of Rs.2,400/ and posted at Dabhoi Station.
4. Thereafter, the respondent appeared in the requisite tests for the promotional post of Assistant Diesel Shunter for Broad Gauge Railway Line, for which the selection procedure was initiated by the petitioners. The respondent was qualified and advised to undergo training of WDM2, which is mandatory before placement on the post of Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER Shunter in view of the RBE 227. A letter dated 19th March 1999 was addressed by the Sr. DME (E) BRC, along with the list of the employees who had not passed the WDM2 training at ABR/RTM and informing them to get willingness/unwillingness of such employees for training and further advising that the seniority and promotion of those employees, upon submission of unwillingness for training, would be affected. However, the respondent vide letter dated 10th April 1999 denied to go for WDM2 training and informed the authority to send his juniors for such training and he has no objection if his juniors are given promotion.
5. On 11th April 2001, the petitioners had prepared a list of selected employees placing them on the panel for the post of shunter with specific remarks whether the required training in Board Gauge Loco is undertaken or not. If the training is taken, then name of the stations are shown where the successful employees were transferred as the Dabhoi Station was having a narrow gauge line. The training in WDM2 and WDM4 is very important as for diverting a train from narrow gage line to broad gage line, special training in controlling the power circuit is required for the safety of the people traveling in trains as well as the goods to be carried through Railways.
6. The employees junior to the respondent, who had undergone the training successfully are transferred to different Railway Stations having Broad Gage Railway Lines in view of the fact that the Dahod Station was having a narrow gage line.
7. That vide letter dated 12th October 2004, the Sr. DME BRC, advised the SE, DB to relieve the employees named therein to attend WDM2 course commencing from 25th October 2004 to 15th December 2005 at Ratlam, as the respondent was selected and placed on the panel Page 3 of 8 HC-NIC Page 3 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER of the employees of promotional post of Shunter. The respondent was advised to go for WDM2 training at Ratlam, but the respondent refused to go for training vide letter dated 26th October 2004 in guise of Ramzan Month. Thereafter, again the respondent advised to attend WDM4 course at Bandra commencing from 31st January 2005 to 26th March 2005 which was again refused by him vide letter dated 24 th January 2005. Though the respondent was informed several times to attend the Goods Driver Promotion Course (WDM2 & WDM4), the respondent refused to attend the same. Despite giving ample chances to the respondent to attend the training so that after completion of the requisite training for the promotion to the post of shunter, the respondent can be promoted to the post of Shunter, but again he refused to undergo the training. The respondent approached the Tribunal by way of filing O.A. No.298 of 2009 seeking declaration that not giving training to the respondent in B.G. Loco Shed and nonpromotion as Shunter in the scale of Rs.40008000/ is exfacie illegal, arbitrary and unjust and further seeking direction against the petitioners herein to promote him as Shunter on the basis of the select list of 11th April 2001.
8. The tribunal directed the petitioners to implement the Select List 11th April 2001 and to grant promotion to the respondent herein to the post of Shunter vide order dated 21st October 2011. The said order was placed before the Competent Authority. The Competent Authority after perusing the said order and considering the prevalent rules passed an order stating that as the respondent herein has refused to undergo the promotional training which is essential for promotion to the post of shunter, he cannot be promoted to the said post. The said order was communicated to the respondent vide letter dated 1st March 2012.
9. The said order dated 1st March 2012 was challenged by the Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER respondent by filing O.A. No.241 of 2012, which came to be disposed of vide order dated 30th November 2015 directing the petitioners to implement the order dated 11th April 2001 within one month. Therefore, the two orders dated 21st October 2011 and 30th November 2015 gave rise to the present petition.
10. Learned advocate for the petitioners, invited Court's attention to the original promotion order, which is placed in this compilation on page no.20 and contended that the fact remains to be noted that the respondent - employee had not fulfilled the requirement of undergoing training, which was essential for the promotion. The posting at Dabhoi would indicate that the original petitioner and respondent hereinabove could not have completed his training and therefore, the order of the tribunal directing to implement the promotion order was not justified in the first instance. So far as the challenge to the said order after expiry of some time is concerned, it was urged to the Court that as the Competent Authority was in seisin of the matter, the said order could not be challenged. However, in any manner, the order dated 30th November 2015 is challenged, as while passing the said order and issuing direction, the tribunal did touch upon the merits of the claim of the respondent and therefore, the Court may not be inclined to non suit the petitioners at this stage.
11. Learned advocate for the petitioners, invited Court's attention to the governing instructions of Executive Railway Board, which have been placed on record at page no.15 and typed copy at 15A, preciously instructions of Rule 227 (i) and on the strength thereof, urged that the original petitioner before the tribunal could not have successfully claimed for promotion.
12. Learned advocate for the petitioners also indicated that the Page 5 of 8 HC-NIC Page 5 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER original petitioner in fact attained the age of superannuation and retired from the services on 31st May 2011.
13. We are of the considered view that this petition is required to be dismissed in limine for the following reasons.
i. The close perusal of the promotion order produced at page no.20, do not indicate anywhere that the promotion was effected linked with any condition, which was required to be fulfilled on the part of the person promoted. As the promotion order is absolutely silent qua the promotion being linked with any condition, there could have been no question of denying promotion to the respondent. We are unable to appreciate the contention that the requirement of training could be read into the promotion order on the strength of the instructions i.e. R.B.E. Instructions namely 227 (i). For the sake of convenience, the same is reproduced as under : "227. Promotion Courses
(i) Railways may prescribe requisite promotional courses posting of which should be precondition for further promotion to a grade in a cadre."
ii. The plain and simple reading also would not indicate anywhere that the same is a condition. In fact, it is rather indicative of the fact that there was a condition for promotion and if that condition was not fulfilled, the promotion itself could not have been accorded. The fact remains to be noted that the order of the promotion of the original petitioner is a promotion order, in fact and is not merely a penal. When it is not a penal, the question of nonimplementation of it would pale into insignificance, as the promotion order was required to Page 6 of 8 HC-NIC Page 6 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER be implemented. The promotion order on the plain reading thereof is went silent qua original petitioner's requirement of fulfilling any criteria of training. The same cannot be treated against him for denying him benefits, when he had to approach the tribunal as he was not given benefit of promotion till 2011 though his name appeared in the promotion order and he was in fact promoted. It is not the case of the present petitioners that the original petitioner had not been in the list of promotion. The Court hastened to add here that the promotion and consideration promotion is always a matter of contention. However, when the promotion itself is granted and when the promotion order is blissfully silent qua any condition, then this nonimplementation thereof when complained, cannot be justified on account of any condition, which is not embedded.
iii. The reasoning adopted by the tribunal appears to be just and proper and otherwise also, when the original petitioner also attaining the age of superannuation and retired, training or nontraining would be of no consequence, as the denial of this benefit, which is nothing but monitory benefit, if at all flowing from the order would accrue to him without harming the administration in any manner. At the same time, it is also required to be noted that the original petitioner, if had not been sent for training, it cannot be said that it was his fault. The training of the original petitioner, if not fulfilled by him, then nothing prevented the administration from removing his name from the list or from deleting or withdrawing the order qua him after affording him an opportunity. The said opportunity is also not granted to him. These are the factors, which would militate against the challenge to the order impugned besides the Court will have to be mindful of the fact that the reasoning given by the tribunal and the fact that the original petitioner had to move the tribunal for even implementation of the order of the tribunal and challenge to the subsequent order would not infuse Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue Feb 02 00:43:39 IST 2016 C/SCA/1327/2016 ORDER any life into the challenge, which is sought to be resurrected at the end of present petitioner, for challenging the order dated 21st October 2011 as the time lag between the two i.e. order of tribunal passed on 21 st October 2011 and the inaction on the part of the authorities in not either challenging the same or implementing the same, resulted into compelling the original petitioner to move the tribunal again for implementation thereof and when the implementation was ordered under the guise of direction to implement the order, the present petitioner cannot challenge the order dated 21st October 2011 without there being any justifiable reasons for not challenging the same.
16. Hence, the petition being meritless, deserves rejection and accordingly the same is rejected. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) (K.J.THAKER, J) Rathod...
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