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PETITIONER: RADHANATH GHASI OTHERS

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT20/10/1995

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1995 SCALE  (6)129

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.Venkataswami :           Leave granted.           Heard counsel on both sides.           The  appellants  challenged  orders  of  reversion dated 13.3.1989  issued by the Divisional Personnel Officer, Adra,  South   Eastern  Railway  unsuccessfully  before  the Central Administrative Tribunal, Calcutta Bench.              The circumstances leading to the passing of the impugned reversion  orders and  challenge thereto may now be noted.           The appellants  were working  in the South Eastern Railway as  Gangmen. Pursuant  to a  scheme dated  24.8.1969 introduced by the Railway Board for direct Track Maintenance for the purpose of improvement in the maintenance of Tracks, the appellant  applied for  and were  selected after written and viva voce tests and posted on ad hoc basis on 18.10.1985 as D.T.M./Mate.  Approximately after  a period of 13 months, the appellants were reverted at the end of 1986 to the posts of Gangmen. The appellants did not challenge that reversion.           Subsequently, it  is  the  specific  case  of  the appellants that  no suitable  candidates were available from regular promotional avenue for promotions and in view of the necessity for  appointment to  the posts  of  permanent  way Mistry, the  Selection Board  constituted for the purpose of recommending/empanelling suitable candidates recommended the names of  the appellants.  Accordingly,  the  names  of  the appellants  were   included  in   the  List  issued  by  the Divisional  personnel  officer,  Adra  by  Memorandum  dated 1.6.1989 for  the said  posts.  While  the  appellants  were working as  Permanent Way  Mistries, all of a sudden without any opportunity  being given to them, the impugned orders of reversion came to be passed.           The appellants  challenged the  impugned orders of reversion by  filing two  O.As on various grounds before the Central  Administrative   Tribunal,  Calcutta   Bench.   The

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respondents while  admitting the  selection and inclusion of the appellants in the panel for the appointment of permanent Way Mistries  supported the  orders of reversion by filing a written statement before the Tribunal stating as follows :- "I totally  deny that  neither  there  was  a selection,  nor   there  was   any  selection proceedings therefor,  nor  was  approval  of competent authority  obtained  for  so-called empanelment in 1988. Certain officials of the Division mischeviously  and erroneously  have enlisted these  persons who  were promoted on ad hoc  basis  in  the  year  1985  and  1986 against  work-charged  post  for  the  Direct Track Maintenance  as if they were empanelled afresh in  1988 without  the approval  of the competent authority.      It is  admitted that the applicants were erroneously  promoted  as  P.W.  Mistry  were posted  against   reqular  posts.   (Emphasis supplied)      As aforesaid  the promotion  itself  was irregular and as a consequence the posting of the  applicants  against  regular  posts  was irregular by itself.      The regular  posting orders  as notified 6.7.88, 13.7.88  and 12.10.88 are. Therefore, liable to be cancelled.      ........      I state  that the  applicants  are  well aware that  they have  not appeared  for  any selection test  whatsoever for  the formation of a panel of P.W. Mistry in the year 1988 or near  about   that   period.   Having   taken advantage of the erroneous notification dated 1.6.88  of   their  alleged  empanelment  the petitioners are  attempting to avail of undue benefit of erroneous promotion."           On the  basis of  the above  averments and counter averments,  the   Tribunal  has  dismissed  the  appellants’ applications by holding as follows :      "We are  of the view that the applicants have been  given the  above  appointment  for D.T.M. scheme  after appearing  for a  proper selection test  and  after  proper  (SIG)  to allow them  to continue  working as  much  as long as  the  D.T.M.  work  in  the  division continues. Therefore,  the order of reversion which appears  to have  been  passed  in  the meantime, is  vacated to the above extent. It is, however,  made clear  that this promotion to  the  applicant  is  not  in  the  regular channel of  promotion to  the  post  of  P.W. Mistry in  terms of  the  relevant  promotion rules and  the respondents  are at liberty to give promotion  to other  eligible persons to the post  of P.W.  Mistry  in  terms  of  the relevant  Recruitment   Rules,  the   present applicants shall  continue in  their  present posts as long as the work for which they have been promoted  and appointed continues. If in the future  the work  is  completed  and  the respondents  think   it  fit  to  revert  the applicants to  their original posts then they should  be  given  a  proper  hearing  before taking such a measure."

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         The Tribunal  dismissed the two review application filed by the appellants.           It is  under these circumstances these appeals are filed by special leave.           Though counsel  for the appellants and respondents argued respectively for allowing and dismissing the appeals, we find that the Tribunal’s order suffers from a fundamental error in  not appreciating  correctly the contentions placed before it. Consequently, the impugned orders of the Tribunal have to  be set  aside and the matter has to be remanded for fresh disposal  in the light of specific rival pleadings, in accordance with  law and  in the  light of  the observations made hereinafter.           From the  narration of  facts as above, it will be noticed that  the challenge  before  the  Tribunal  was  not against the  first termination  orders of the year 1986. The appellants were  aggrieved  by  the  orders  of  termination issued on  13.3.1989. The Tribunal, however, proceeded as if the appellants were promoted for a fixed period and they can be continued as long as the D.T.M. work in the Adra Division continues. This  assumption on  the part  of the Tribunal is wrong as  we have  seen earlier  that the  respondents  have admitted  that  the  appellants  were  promote  against  the regular vacancies,  but  their  stand  was  that  they  were wrongly promoted  by mistake  committed  by  the  Divisional Personnel Officer,  Adra. The respondents went to the extent of  stating   that  ’certain   officials  of   the  Division mischeviously and  erroneously have  enlisted these  persons who were  promoted on  adhoc basis in the year 1985 and 1986 against work-charged  post for  the Direct Track Maintenance as if  they were  empanelled  afresh  in  1988  without  the approval of the competent authority’.           Whether the  respondents have established the said fact or  not has  not been gone into by the Tribunal. In the circumstances, we  are  setting  aside  the  orders  of  the Tribunal under  appeal by allowing the appeals and remitting the matters  for fresh  disposal in  the light  of  specific rival and  also  in  the  light  of  the  observations  made hereinbefore. Ordered accordingly. However, there will be no order as to costs.