JUDGMENT
Mukul Mudgal, J.
1. Rule DB.
2. With the consent of the learned Counsel for the parties, the Writ Petition is taken up for final hearing.
3. This Writ Petition challenges the judgment dated 30th April, 2001 passed by the Central Administrative Tribunal (CAT), Principal Bench, New Delhi in O.A. being No. 663 of 1999 where it was held that the Applicant/Respondent had to be granted seniority with his batch-mates of 1988 and eight years’ service for the eligibility for consideration to Junior Administrative Grade (JAG) will have to be computed from 6.03.1989 when his immediate senior Shri Sanjiv S. Katware joined Indian Railway Store Service (IRSS), since the immediate junior of the Respondent Shri Sanjiv S. Katware was promoted to JAG on 12.02.1999. The Petitioner was accorded to be eligible and entitled for consideration for promotion to JAG with effect from 12.02.1999 on the basis of his notional seniority in service as against the actual service. Consequently, the following directions were given in the impugned judgment:
In the result, the O.A. is allowed. The respondents are directed to place the name of the applicant in the seniority list of IRSS Officers along with those who were appointed in the year 1988 and consider his case for promotion to JAG w.e.f. 12.02.1999 in order of his seniority. It he is found fit for promotion to JAG he should be granted all consequential benefits. No costs.
4. The Respondent Ramawatar Meena belongs to the Scheduled Tribe and had occasion to approach to the Central Administrative Tribunal (CAT) by filing O.A. No1093/1989 which was disposed of on 30th May, 1991 by giving following directions:
In the result, we allow the O.A., quash the letter dated 4.4.1989 (Annexure A-1) and direct the respondents to treat the applicant as having taken in the Railways service in 1988 and accord seniority as such, ahead of the 1989 batch of Railway Engineering Service within a period of two months from the date of service of a copy of this order. In the circumstances of the case, we leave the parties to bear their costs.
5. The above directions were based on the grievance of the Respondent that having appeared successfully for the Junior Service Examination conducted by the U.P.S.C. for appointment in the Railways and having qualified the written examination and the personality test, he qualified in both the written examination and the personality test and was directed to appear for medical examination in the Central Railway Hospital, New Delhi on 8.04.1988. The Respondent had undergone the medical examination in the Railway hospital from 8.04.1988 to 13.04.1988 but the examination remained incomplete because of non-availability of the eye specialist. This was refuted by the Petitioner/original Respondents in the OA. and it was asserted that the Respondent had failed to appear in the medical examination in spite of the repeated notices given to him to that effect.
The Tribunal in the said judgment inter-alia found as follows:
(a) Numerous representations were made to the Railway Authority including Ministry by the Respondent and there was no clear averment in denial by the Petitioner that such representations were never received.
(b) It was also not stated that intimation sent to the Applicant were delivered.
(c) The Railway did not take sufficient steps to intimate to the Respondent to appear in the medical examination on any particular date.
(d) There was nothing to indicate the manner by which the intimation was sent to the Respondent to appear in the medical examination on 03.05.1988 as no letter was sent by the registered post and the presumption under Section 27 of the General Clauses Act, 1897 could not be drawn as there was no registered post employed.
6. Thus it is clear that the Tribunal clearly arrived at a conclusion that it was entirely the Petitioners who were to blame for denial of appointment at the appropriate time to the Respondent. Besides it is not understood as to why an unemployed person seeking employment would seek to avoid the medical test.
7. The aforesaid judgment of the Tribunal dated 30th May, 1991 was challenged in the Hon’ble Supreme Court and the said SLP was dismissed on 15.11.1993 with the following observations:
The Tribunal while passing the order in favor of the respondent has observed that the affidavit in reply filed by the Railways was totally false and the maker of the false averments was liable to be dealt with.
To satisfy ourselves, we have called for the record and there is some basis in the averments made in the affidavit by the Railways. Therefore, it may not be said that what has been stated is false. With this observation, the special leave petition is disposed of.
8. Nevertheless the judgment of the Tribunal stood affirmed and became final.
9. Pursuant to the above judgment applicant/respondent completed his probation period satisfactorily in October, 1995 and was promoted to Senior Scale Officer on adhoc basis in January, 1997 and regularized in May, 1997 in accordance with the rules. Since the Respondent represented to secure appropriate seniority based on the judgment of the Tribunal dated 30th May, 1991 in O.A. No. 1093/1989 which was not given to him, he approached the Tribunal by filing the OA No. 663/1999 which has led to the impugned judgment. The Tribunal in the impugned judgment held as follows:
(a) The earlier order of the Tribunal dated 30th May, 1991 directed the Petitioner to treat the Applicant/Respondent as having been taken in the Railway Service in 1988 and accorded seniority as such ahead of 1989 batch of Railway Engineering Service.
(b) Since Shri Sanjiv S. Katware and Shri M.P.K. Bapurao were shown at serial Nos. 20 and 21 in the seniority list and it was admitted that the applicant/Respondent ranked below Shri Sanjiv S. Katware and above Shri M.P.K. Bapurao, the Applicant/Respondent was entitled to be accorded seniority or being treated as having been taken in the Railway Service in the year 1988 and ahead of 1989 batch of Railway Engineering Service.
10. The refusal of the Petitioner to entertain his candidature for promotion to JAG on the basis of his claim for promotion Along with his batch-mates who joined in the year 1988 was therefore not justified. The relevant Rule which has led to the present dispute is Rule 21 sub rule (4) and (5) of the Recruitment by Promotion Rules which reads as follows:
(4) Appointments to the posts of Senior Scale shall be made by promotion in the order of seniority, subject to the rejection of the unfit, of officers ordinarily with not less than four years service in Junior Scale.
(5) Appointments to the Junior Administrative Grade shall ordinarily be made by selection on merit from amongst officers ordinarily with not less than five year’s service in Senior Scale.”
11. Mr. H.K. Gangwani, learned Counsel appearing on behalf of the Petitioner has contended inter alia:
(a) That the Petitioner had not put in requisite 5 years physical service for being qualified or being promoted to the post of JAG as per the above rules.
(b) He has further submitted that not having protested when he was granted senior scale respondent was estopped from raising such a plea now.
12. Mr. Jayant Bhushan Senior Advocate who appears on behalf of the Respondent, however contended that effect of the order of the Tribunal which was affirmed by the Hon’ble Supreme Court in so far as the merits of the dispute was concerned, could not be wished away and had to be implemented. He further submitted that the stand taken by the Petitioner clearly negated the impact of judgment dated 30th May, 1991. He further submitted that the relevant rules clearly stated that service of 5 years was ‘ordinarily’ required and the present situation indicated the existence of extraordinary or special circumstances as mandated by the Hon’ble Supreme Court while construing the phrase ‘ordinarily’ in its judgment in (2001) 1 SCC 315 titled Eicher Tractors Ltd., Haryana v. Commissioner of Customs, Mumbai and para 6 reads as follows:
Under the Act customs duty is chargeable on goods. According to Section 14(1) of the act, the assessment of duty is to be made on the value of the goods. The value may be fixed by the Central Government under Section 14(2). Where the value is not so fixed, the value has to be determined under Section 14(1). The value, according to Section 14(1), shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation – in the course of international trade. The word “ordinarily” necessarily implies the exclusion of “extraordinary” or “special” circumstances. This is clarified by the last phrase in Section 14 which describes an “ordinary” sale as one “where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale…”. Subject to these three conditions laid down in Section 14(1) of time, place and absence of special circumstances, the price of imported goods is to be determined under Section 14(1-A) in accordance with the rules framed in this behalf.
13. He has also relied upon the judgment of the Hon’ble Supreme Court in titled R.K. Sethi and Anr. v. Oil and Natural Gas Commission and Ors. and para 12 relied upon reads as follows:
12. Once it is held that Telex Operators have been rightly placed en bloc below regular employees in AG-II cadre as a result of the merger of the said cadre in the cadre of AG-II on 25.04.1980, regular employees in AG-II cadre who were senior to the Telex Operators could rightly feel aggrieved if they were denied promotion while their juniors were promoted as AG-I. The “next below rule” in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted. The action of the Commission in extending the benefit of promotion to regular employees in AG-II cadre as AG-I with effect from the date the Telex Operators were so promoted on account of the 12 years’ Policy, being in consonance with this principle, cannot, therefore, be held to be arbitrary or unreasonable. So also the further promotion from AG-I to the post of Superintendent (P&A) under the 18 years’ Policy. We are unable to endorse the view of the High Court that since regular employees in AG-II cadre did not fulfill the criteria laid down in those policies, they could not be extended the benefit of the said policies. The High Court has failed to note that when it was found that certain senior employees were left out of consideration for promotion because they did not fulfill the conditions regarding 18 years’ service contained in the Office Memorandum dated 27.05.1982, the Commission modified the policy contained in the said Office Memorandum by issuing Office Memorandum dated 03.02.1983 whereby it was decided that such senior employees would be considered for promotion and, if found suitable, would be promoted with effect from 01.04.1982. In view of the said modification in the 18 years’ Policy it cannot be said that regular employees in AG-II cadre could not be considered for promotion since they did not fulfill the criterion of 18 years’ service.
14. This plea of Mr. Jayant Bhushan Senior Advocate, learned Counsel for the Respondent is refuted by Mr. H.K. Gangwani, the learned Counsel for the Petitioner by contending that the said judgment related to the merger and could not ipso facto apply to the present case.
15. In so far as the plea of acquiescence is concerned, the Respondent has contended that prior to completion of probation protest could not have been made and thereafter representation was made and the issue was raised after his juniors were promoted.
16. Before examining the rival contentions, it is necessary to first deal with the effect of the judgment of the Tribunal dated 30th May, 1991 in respect of the claim raised by the respondent in respect of his delayed medical examination. Upon accepting the plea of the learned Counsel for the respondent that the delay in completing his medical examination was entirely attributable to the petitioner, the Tribunal directed the petitioner to treat the respondent has having been taken in Railway service in 1988 and accord seniority ahead of the 1989 batch of Railway Engineering Service. In our view this finding of the Tribunal which was not set aside by the Hon’ble Supreme Court and cannot be diluted. The petitioner had to be accorded seniority ahead of the 1989 batch, which is precisely what the Tribunal has done. The Tribunal has also taken the same view and held that since the respondent was accorded seniority as being treated in service from 1988 and ahead of the 1989 batch the petitioner has wrongly refused to accept his candidature for promotion along with batch mates who joined the petitioner in the year 1988. Even if we agree with Mr. H.K. Gangwani that the service required to be rendered under Regulation 21(4) was physical service, the word ‘ordinarily’ used in Rules 5 and 6 has to be given its meaning according to the interpretation put upon the said word by the Hon’ble Supreme Court in Eicher Tractors’ case and in the present case, the respondent belonging to reserved category, being a victim of indifference on the part of the petitioners, is certainly entitled to stress upon the phrase ‘ordinarily’ which clearly indicate that the period is not mandatory and the benefit should be given to the Respondent.
17. Accordingly, we see no reason to interfere with the order of the Tribunal under Article 226 of the Constitution. The writ petition is accordingly dismissed. All pending applications also stand disposed of.