Original Application No. 43 of 2011 · High Court · 2012

We have heard Mr. PD Nair, learned counsel appearing for the petitioner, and Mr. AK Sarkar, learned Standing Counsel, NF Railway, for the respondent Nos . 1 to 5. We have also heard Mr. M Chanda, learned counsel, appearing for the pr ivate respondent. 3. By putting to challenge the order, dated 03-11-2011, aforementioned, the petitioner herein contends that he ought to have been impleaded as one of the p arties to OA No. 43 of 2011, wherein the decision, as indicated hereinbefore, ha s been rendered, the ground of raising such a contention being, inter alia, that the private respondent, had earlier filed OA No. 32 of 2008, wherein the presen t petitioner stood impleaded as respondent No. 6 and, in the said OA, while seek ing promotion to the post of Senior Programmer/Senior System Analyst in EDP Cent re, NF Railway, Maligaon (redesigned as IT cadre), he had also challenged the pr omotion of the present petitioner to the said post with effect from 07-09-2006. By order, dated 31-03-2010, O.A. No. 32/2008 was disposed of by learned 4. Tribunal without, however, directing promotion of the private respondent herein and without interfering with the present petitioner’s promotion to the post of S enior Programmer/Senior System Analyst. This apart, the learned Tribunal, in its earlier order, dated 31-03-2010, passed in OA No. 32 of 2008, instead of enteri ng into the merit of the issues, raised before it, observed that if the applican t, i.e., the private respondent herein made any representation on the aforesaid aspects highlighting his grievances, the same shall be considered objectively an d appropriately in accordance with rules and law by the respondent Nos. 1 to 5 b y making reasoned and speaking order within a period of four months from the dat e of receipt of the representation, which could be made by the private responden t herein, but as regards validity of promotion accorded to the present petitione r, who stood impleaded in OA No. 32 of 2008, as respondent No. 6, no observation was made.

#5. Following disposal of the OA No. 32 of 2008, in the manner as mentioned hereinabove, the private respondent herein filed a representation, dated 13-04-2 010, wherein, apart from seeking promotion to the post aforementioned, the priva te respondent herein also contended that not only the empanelment of the present petitioner as Programmer, but even his promotion to the post of Senior Programm er were illegal. The NF Railway did not, however, allow the representation was m ade by the private respondent. In fact, while turning down the private respondent’s request for promoti 6. on to the post of Senior Programmer, the authorities concerned observed, in its order, dated 24-01-2011 that the private respondent had been encadred, in the IT Centre, with effect from 01-04-2005, as Senior Engineer (IT) by office order, d ated 23-03-2010. The private respondent herein would be able to appear whenever selection for the post of Programmer was held, provided that he, otherwise, sati sfied the eligibility criteria.

#7. It is against the order, dated 24-01-2011, aforementioned, that the OA N o. 43 of 2011, which has given rise to the present writ petition, was made and, in the later Original Application No. 43 of 2011, the private respondent sought for being promoted as Senior Programmer/Senior System Analyst and to set aside a nd quash the letter, dated 24-01-2011, and also the letter, dated 20-05-2005. 8. The sequence of events as depicted above make it clear that in the latte r original appeal, namely, OA No. 43/2011, the present petitioner ought to have been impleaded as a party so that he could have placed his case before the learn ed Tribunal, for, we find that the present writ petitioner too, same as the priv ate respondent, has challenged the eligibility of the private respondent not onl y against his empanelment, but also questioning his eligibility for being consid ered for promotion to the post of Senior Programmer. 9. Situated thus, we are of the considered view that all the material facts , which ought to have been placed before the learned Tribunal, had not been plac ed before the learned Tribunal and, on the basis of the facts as had been placed by the private respondent herein vis-à-vis the case, which the official respond ents had pleaded, the Original Application No. 43 of 2011 was disposed of by the impugned order, dated 03-11-2011. This inference gets reinforced, when we notic e that the contention of the present petitioner, if sustained, would have a bear ing on not only the eligibility of the private respondent to be considered for p romotion to the post of Senior Programmer, but would also make the present petit ioner senior to the private respondent. 10. Considering the fact that we are not inclined to express any view or opi nion on the comparative merits of the cases, which the present petitioner and th e private respondent have placed, and, at the same time, we are also of the view that without considering the case of the present petitioner and without accordi ng him an effective opportunity of hearing, an appropriate decision on the subje ct-matter of dispute cannot be reached. We, therefore, in the interest of justic e, set aside the order, dated 03-11-2011, and remand the OA No. 43/2011 to the l earned Tribunal for rendering a decision afresh after having considered the resp ective cases of all the parties concerned including the present petitioner after according them to have their say in the matter. Before parting with this writ application, we make it clear that the obs 11. ervations made in this order are all tentative in nature and the learned Tribuna l shall be free to give its own independent finding as may be warranted by the f acts of the present case and the law relevant thereto. Considering the fact that the private respondent has not been promoted t 12. o the post of Senior Programmer, his promotion to the said post shall not be mad e until the matter is heard and decided by the learned Tribunal. Lest the penal, which includes the petitioner, becomes expires and makes the OA No. 43 of 2011 infructuous, because of delay, which may take place in disposal of OA No. 43 of 2011, we make it clear that so long as the decision is not rendered by the learn ed Tribunal in OA No. 43 of 2011, the empanelment of the private respondent here in, which was the subject-matter of consideration in OA No. 43 of 2011, shall co ntinue to survive. 13. nd disposed of. 14. With the above observations and directions, this writ petition shall sta No order as to costs.