CWP No. 2062-CAT of 2002 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 2062-CAT of 2002
Date of Decision: 23-07-2008
Rajinder Kumar Karmakar ....Petitioner
Versus
Union of India and others .....Respondents
Coram: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE AJAY TEWARI
Present: Shri H.S. Sethi, Advocate, for the petitioner.
Shri Puneet Jindal, Advocate, for the
respondents.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
The challenge in the present writ petition is to
the order passed by the Central Administrative Tribunal,
Chandigarh Bench, Chandgiarh (for short `the Tribunal’), on
11.1.2002 (Annexure P.24), whereby an original application filed by
Rajinder Kumar Karamakar was dismissed. Challenge is also to the
order dated 24.5.2002 (Annexure P.26), whereby the review
application seeking review of the earlier order was dismissed.
It is the case of the applicant that he was appointed as
peon in the Mechanical Branch in the Office of Divisional
Mechanical Engineer, Ambala on 11.12.1982. The petitioner was
appointed against the handicapped quota and is also a scheduled
caste. A circular was issued to seek option from the persons, who
were working on Class-IV post to work as photocopier machine
CWP No. 2062-CAT of 2002 (2)
operator. In pursuance of the said circular (Annexure P.1), the
petitioner gave his option to work as photocopier machine operator.
All seniors to the petitioners gave in writing that they do not want
to work as photocopier machine operator and have no objection if
the petitioner is appointed on such post. A written test was held.
The petitioner appeared in the written test and was also subjected
to viva-voce test vide letter dated 22.8.1989. The petitioner was
appointed as photocopier machine operator. Such appointment was
on adhoc basis. The petitioner also relies upon the communication
dated 3.3.1992, whereby his services were regularised as
photocopier machine operator against an existing vacancy. Later
the seniority of the petitioner was fixed at Serial No. 26-A, vide
communication dated 26.8.1993. Vide communication dated
22.9.1993, the petitioner was promoted as senior clerk after it was
found that 22 employees junior to the petitioner have been
promoted.
However, subsequently a show cause notice was
given to the petitioner on 24.12.1996 on the ground that the
petitioner has neither passed the written suitability test for the post
of senior clerk nor has passed ranker quota selection test from
Class-IV to Class-III category i.e. for the post of clerk. After
considering the reply, an order was passed on 27.3.1997 (Annexure
P.19) reverting the petitioner to the post of peon. It was found that
the petitioner has not produced any documentary proof of the fact
that he has passed any selection test before his promotion from
Class-IV to Class-III. The said reversion was challenged by the
petitioner before the Tribunal, which remained unsuccessful. Even
the review was dismissed. The Tribunal found that the petitioner
has not produced any document in respect of creation of post of
photocopier machine operator and that the petitioner has not
CWP No. 2062-CAT of 2002 (3)
produced any document in respect of having qualified the selection
test. The review application on the basis of additional documents,
remained unsuccessful.
Before this Court, the petitioner has relied upon
communication dated 18.12.1991 (Annexure P.23) issued by the
Divisional Personnel Officer, Northern Railway, Ambala Cantt,
converting one permanent post of office clerk in the pay scale of
Rs.950-1500/- of mechanical department into one permanent post
of photocopier machine operator in the pay scale of Rs.950-1500/-
for mechanical department. On the basis of the said
communication, it is contended that the petitioner was regularised
on 3.3.1992 as photocopier machine operator, which
communication was produced before the Tribunal. Therefore, the
finding recorded by the Tribunal that no post of photocopier
machine operator was in existence, is incorrect.
Still further, it was pointed out on the strength of the
communication Annexure P.27 dated 17.9.1992 written by the the
Director, Establishment (W) Railway Board, addressed to the
General Manager, Northern Railway, New Delhi to the effect that
the Board has decided that if an employee, who has qualified for
the post of office clerk-cum-photo-machine operator is again ready
to sit in the selection for the post of clerk, need not be allowed to sit
in the selection for the post of office work. It was thus,
communicated that the petitioner may not be required to appear in
the selection for the post of office clerk as he was declared
successful in the selection for the post of photo machine operator-
cum-office clerk on 22.8.1989 and 6.9.1989.
Learned counsel for the petitioner also relies upon
Annexure R.2 dated 23.2.1999, wherein it has been communicated
to the General Manager, Northern Railways, New Delhi that the
CWP No. 2062-CAT of 2002 (4)
petitioner has already passed the suitability test for the post of
clerk-cum-photocopier operator, but no post of photocopier has
been got sanctioned. It was also communicated that there is no
need to allow the petitioner to sit in the selection for the post of
office clerk as he has already qualified the due suitability for the
post of photocopier machine operator. It is contended that though
the authenticity of letter dated 10.2.1999 (Annexure R.1) is
disputed by the respondents, but the validity of Annexure R.2 is
not in dispute. Though Annexures R.1 and R.2 have been declared
to be null and void vide Annexure R.3, but the fact remains that
passing of the test before his appointment as a photocopier
machine operator is not controverted even in communication
Annexure R.3. Thus, it is apparent that the petitioner has qualified
the test and was not permitted to sit in the qualifying test
subsequent to his appointment as photocopy machine operator for
the post of clerk.
In the written statement before this Court, it has been
averred that the letters dated 10.2.1999 and 23.2.1999, produced
by the petitioner before the Tribunal along with the miscellaneous
application are forged and fabricated documents and so is
Annexure P.5 i.e. the order of declaration of result. Therefore, the
petitioner, who has taken recourse to forged and fabricated
documents is not entitled to any relief from this Court.
We have heard the learned counsel for the parties. We
are of the opinion that the stand of the respondents that the
petitioner has relied upon forged and fabricated documents is not
really material for determining the controversy between the parties.
Though the petitioner has produced number of documents in the
replication explaining that such documents are not forged and
fabricated documents on various grounds including the reason that
CWP No. 2062-CAT of 2002 (5)
Mahabir Singh, the signatory of such documents has admitted his
signatures on such documents during the course of inquiry. It has
also been pointed out that the documents were endorsed to him
and later the attested copies were supplied. However, since the
issues raised in the present petition, are not really dependent upon
the validity of these letters, therefore, without going into the
authenticity of these documents, we are examining the contentions
of the parties.
The respondents have not controverted the document
Annexure P.23 in respect of creation of the post. The respondents
have also not controverted the communication dated 3.3.1992
(Annexure P.9), whereby the service of the petitioner were
regularised as a machine operator in the pay scale of Rs.950-
1500/-. Documents Annexures P.23 and P.9 read together show
that the services of the petitioner were regularised against a post of
photocopier machine operator, which was duly created. Therefore,
the first reasoning given by the Tribunal is not tenable. The second
reasoning given by the Tribunal that the petitioner has not qualified
the test for appointment to the post of clerk is again not tenable.
Annexure P.27 is not in dispute i.e. the communication from the
Director, Establishment Railway Board. The petitioner was not
permitted to appear in the test as he has already qualified the test
for the post of photocopier machine operator. Annexure R.2, an
admitted document shows that the petitioner has passed the
suitability test. Though communication Annexure R.2 has been
declared as null and void, but this aspect has not been
controverted or explained. Thus, even the second reasoning given
by the Tribunal is not tenable in law.
In view thereof, we are of the opinion that the Tribunal
has erred in law in holding that neither there was any post nor the
CWP No. 2062-CAT of 2002 (6)
petitioner has qualified the test for promotion to the post of
photocopier machine operator.
Consequently, the present writ petition is allowed. The
impugned order passed by the Tribunal is set aside. Accordingly,
the Original Application filed by the petitioner is allowed and the
reversion order dated 27.3.1997 is quashed.
(HEMANT GUPTA)
JUDGE
(AJAY TEWARI)
JUDGE
July 23, 2008
ds