High Court

Judgment

1. This petition has been filed by the petitioner aggrieved of the order dated

5.12.2024 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad whereby the Original Application filed by the petitioner has been dismissed.

2. The Original Application was filed in the year 2014, seeking to question the order dated 09.05.2014 passed by the respondent no. 3 and seeking promotion as Lecturer (English) with effect from 13.12.2004 with all consequential benefits. The Original Application was filed aggrieved of the rejection of the representation filed by the petitioner dated 11.07.2013. It was contended on behalf of the petitioner that he was eligible to be granted promotion with effect from 13.12.2004 as he was fulfilling all eligibility criteria, however, his claim was illegally rejected and he was belatedly promoted with effect from 20.03.2009, based on which, he had approached the Tribunal from time to time and therefore, the rejection of the representation was not justified.

Learned counsel for the petitioner made submissions that post of Lecturer (English) fell vacant on 01.01.2004, which was reserved for S.C. category candidate and the petitioner being eligible applied for the same, he was declared unsuitable upon consideration of form on 13.12.2004. Fresh notification was issued on 11.05.2006, the petitioner again applied and he was again declared unsuitable on 22.02.2007. Being aggrieved of the order dated 22.02.2007, the petitioner challenged the same by filing Original Application No. 987 of 2007, which was decided on 09.10.2007 directing the respondents to decide his representation, which representation was rejected on 27.11.2007. The petitioner again challenged the order dated 27.11.2007 by filing Original Application No. 41 of 2008, which was allowed on 03.06.2008 and the order dated 27.11.2007 was quashed.

4. Learned counsel for the petitioner emphasized that once the order dated 27.11.2007 was quashed it was incumbent upon the respondents to have granted promotion with effect from 13.12.2004, which was wrongly denied to the petitioner and instead based on the judgement dated 03.06.2008 passed by the Tribunal, order dated

02.09.2008 was passed promoting the petitioner on the post of Lecturer with effect from 20.03.2009. When representation dated

11.07.2013 was filed, no action was taken the petitioner again filed Original Application No. 1597 of 2013, which was disposed of on

13.12.2013 requiring the respondents to decide the representation, which was rejected on 09.05.2014.

5. Learned counsel for the petitioner further submitted that the Tribunal has wrongly dismissed the application on the ground of delay, which is not justified as the petitioner was making repeated representations and therefore, the order impugned deserves to be quashed and set aside.

6. Learned counsel for the respondents supported the order impugned. Submission has been made that the petitioner has already been granted promotion with effect from 20.03.2009 and by filing the Original Application in the year 2014, he is seeking promotion with effect from 13.12.2004. It was emphasized that the rejection of petitioner’s candidature in the year 2004 was never questioned and once the rejection made in the year 2007 was questioned by filing Original Application, in compliance of the directions issued by the Tribunal, he has been accorded promotion and therefore, the plea raised in the petition apparently has no substance and therefore, the same deserves dismissal. 2

7. We have considered the submissions made by counsel for the parties and perused the material available on record.

8. Undisputed facts are that on rejection of petitioner’s candidature on 13.12.2004, no challenge was laid by the petitioner and when on the next occasion the petitioner was declared unsuitable on

22.02.2007, Original Application No. 987 of 2007 was filed, wherein representation was directed to be decided, which was rejected and a fresh Original Application No. 41 of 2008 was filed. The Original Application No. 41 of 2008 came to be allowed by order dated

03.06.2008, wherein it was observed and directed by the Tribunal as under : Reverting to the impugned order dated 27.11.2007/annexure-9 to “5. the O.A., it is clear that respondents have acted under misapprehension and failed to appreciate that the two paras (i.e. para-5 and 6 of the Rules) operate in different field. For convenience, we reproduce relevant paras of the impugned order :- “………… As regards to considering you for promotion for the period of six months on ad hoc basis in terms of Railway Board’s letter dated 10.09.1985 and 08.05.1989, it is to mention that such type of provision for SC/ST candidates is permissible where the selection is on written test only. As regards to concession of marks in allotment of marks in the Viva-voce, as mentioned in your representation, it is informed that for general category candidates, the general standard of marks to consider empanelment against selection posts is 60%. The minimum marks for empanelment against selection post is 60% whereas for SC/ST candidates the minimum percentage for empanelment is 50%. You did not secure the prescribed percentage of marks for empanelment as SC candidate, it is also clarified that there has been no prejudice or bias against you in consideration of your empanelment.” In view of the above, the impugned order dated 27.11.2007/annexure – 9 to the O.A. suffers from error apparent on the face of record and hence cannot be sustained.

6. We also take note of the advertisement/employment notice No. 1 of 2008 (published in times of India, New Delhi 23.02.2006/annexure-1 to the Supplementary Affidavit on record). This advertisement includes the post in question and also indicated the date 01.04.2008 for submitting application by desire candidates. 3

7. Be as it may, if applicant is entitled to the benefit of ad hoc appointment of 6 months’s (vide para-5 of the Rules), selection held on the basis of said advertisement of 2008 will not be given effect to and his continuation after six months (on ad hoc basis) shall depend upon his progress report as contemplated in said para-5 of the Rules. This is subject to the condition that the applicant is able to secure at least 20% marks on the basis of service record as required under para-5 of the Rules.

8. In the result, we set aside the impugned order dated 27.11.2007/annexure-9 to the O.A. and direct the respondents to decide the case of the applicant in view of observation/discussion made above afresh within a period of four weeks of receipt of a certified copy of this Order, which must be filed by the applicant before the concerned respondents within three weeks from today, failing thereof this order automatically stands ineffective.

10. With the above direction O.A. stands allowed. No order as to costs.”

9. Pursuant to the said directions, the order promoting the petitioner was passed. After four years again a representation was made raising similar grievance regarding promotion with effect from

13.12.2004. While rejecting the representation, it was inter-alia observed by the respondents as under : Þvki }kjk ekuuh; dsUnzh; iz’kklfud vf/kdj.k@ bykgkckn esa vks , ua0 987@2007 ds ek/;e ls fnukad 22-2-2007 ds ijh{kk ifj.kke dks pqukSrh nh x;h rFkk ekuuh; U;k;ky; ds vkns’k fnukad 09-10-2007 ¼vks , ua0 987@2007½ ds vuqikyu esa iz’kklu }kjk fnukad 27-11-2007 dks vkids }kjk fd;s x;s Dyse dks vLohdkj dj fn;k x;kA vkids }kjk mDr vkns’k fnukad 27-11-2007 dks iqu% ekuuh; dsUnzsh; iz’kklfud vf/kdj.k@bykgkckn esa vks , ua0 41@2008 ds }kjk pqukSrh nh x;h] ftls ekuuh; U;k;ky; us fnukad 03-6-2008 dks fu.khZr fd;k rFkk ekuuh; U;k;ky; ds vkns’k dk vuqikyu iz’kklu }kjk fnukad 02-9-2008 dks fd;k x;k rFkk deZpkjh }kjk N% ekg dk izf’k{k.k vkfn iw.kZ djus ds mijkUr lq;ksX; ik;s tkus ij izoDrk vaxzsth xzsM is 6500&10500@9300&34800+ thih 4800 ds in ij inksUufr djrs gq, fnukad 20-3-2009 dks fu;fer fd;k x;kA ;g Hkh bafxr djuk gS fd ekuuh; U;k;ky; us vius vkns’k fnukad 03-6-2003 esa dgh Hkh fiNyh frfFk vFkkZr fnukad 01-1-2004 ls ykHk nsus gsrq funsZf’kr ugha fd;k gSA bl izdkj ekuuh; U;k;ky; @bykgkckn ds vkns’k ds vuqikyu esa fu;ekuqlkj vkidks ns; lHkh ykHk fnukad 20-3-2009 ls fn;k tk pqdk gSA vr% ekuuh; U;k;ky; ds vkns’k fnukad 13-12-2013 ds vuqikyu esa vki dk vH;kosnu fnukad 11-7-2013 dk fuLrkj.k fd;k tkrk gSAß 4

10. A perusal of the order passed by the Tribunal and the disposal of the representation made, it is apparent that the respondents have complied with the directions given by the Tribunal and no fault can be found in that.

11. Having enjoyed the benefit of the directions given by the Tribunal, seeking to raise dispute claiming promotion from the year 2004, cannot be countenanced inasmuch as besides the fact that the same was not challenged at the relevant time in the year 2004. Once a subsequent Original Application filed by the petitioner has been allowed and its directions have been implemented, the petitioner is estopped from claiming beyond relief/benefit granted and implementation of the order passed by the Tribunal.

12. In that view of the matter, there is no substance in the petition and the same is, therefore, dismissed. Order Date :- 5.4.2025 (Kshitij Shailendra, J) (Arun Bhansali, CJ) 5

Learned counsel for the petitioner made submissions that post of Lecturer (English) fell vacant on 01.01.2004, which was reserved for S.C. category candidate and the petitioner being eligible applied for the same, he was declared unsuitable upon consideration of form on 13.12.2004. Fresh notification was issued on 11.05.2006, the petitioner again applied and he was again declared unsuitable on 22.02.2007. Being aggrieved of the order dated 22.02.2007, the petitioner challenged the same by filing Original Application No. 987 of 2007, which was decided on 09.10.2007 directing the respondents to decide his representation, which representation was rejected on 27.11.2007. The petitioner again challenged the order dated 27.11.2007 by filing Original Application No. 41 of 2008, which was allowed on 03.06.2008 and the order dated 27.11.2007 was quashed.

4. Learned counsel for the petitioner emphasized that once the order dated 27.11.2007 was quashed it was incumbent upon the respondents to have granted promotion with effect from 13.12.2004, which was wrongly denied to the petitioner and instead based on the judgement dated 03.06.2008 passed by the Tribunal, order dated

02.09.2008 was passed promoting the petitioner on the post of Lecturer with effect from 20.03.2009. When representation dated

11.07.2013 was filed, no action was taken the petitioner again filed Original Application No. 1597 of 2013, which was disposed of on

13.12.2013 requiring the respondents to decide the representation, which was rejected on 09.05.2014.

5. Learned counsel for the petitioner further submitted that the Tribunal has wrongly dismissed the application on the ground of delay, which is not justified as the petitioner was making repeated representations and therefore, the order impugned deserves to be quashed and set aside.

6. Learned counsel for the respondents supported the order impugned. Submission has been made that the petitioner has already been granted promotion with effect from 20.03.2009 and by filing the Original Application in the year 2014, he is seeking promotion with effect from 13.12.2004. It was emphasized that the rejection of petitioner’s candidature in the year 2004 was never questioned and once the rejection made in the year 2007 was questioned by filing Original Application, in compliance of the directions issued by the Tribunal, he has been accorded promotion and therefore, the plea raised in the petition apparently has no substance and therefore, the same deserves dismissal. 2

7. We have considered the submissions made by counsel for the parties and perused the material available on record.

8. Undisputed facts are that on rejection of petitioner’s candidature on 13.12.2004, no challenge was laid by the petitioner and when on the next occasion the petitioner was declared unsuitable on

22.02.2007, Original Application No. 987 of 2007 was filed, wherein representation was directed to be decided, which was rejected and a fresh Original Application No. 41 of 2008 was filed. The Original Application No. 41 of 2008 came to be allowed by order dated

03.06.2008, wherein it was observed and directed by the Tribunal as under : Reverting to the impugned order dated 27.11.2007/annexure-9 to “5. the O.A., it is clear that respondents have acted under misapprehension and failed to appreciate that the two paras (i.e. para-5 and 6 of the Rules) operate in different field. For convenience, we reproduce relevant paras of the impugned order :- “………… As regards to considering you for promotion for the period of six months on ad hoc basis in terms of Railway Board’s letter dated 10.09.1985 and 08.05.1989, it is to mention that such type of provision for SC/ST candidates is permissible where the selection is on written test only. As regards to concession of marks in allotment of marks in the Viva-voce, as mentioned in your representation, it is informed that for general category candidates, the general standard of marks to consider empanelment against selection posts is 60%. The minimum marks for empanelment against selection post is 60% whereas for SC/ST candidates the minimum percentage for empanelment is 50%. You did not secure the prescribed percentage of marks for empanelment as SC candidate, it is also clarified that there has been no prejudice or bias against you in consideration of your empanelment.” In view of the above, the impugned order dated 27.11.2007/annexure – 9 to the O.A. suffers from error apparent on the face of record and hence cannot be sustained.

6. We also take note of the advertisement/employment notice No. 1 of 2008 (published in times of India, New Delhi 23.02.2006/annexure-1 to the Supplementary Affidavit on record). This advertisement includes the post in question and also indicated the date 01.04.2008 for submitting application by desire candidates. 3

7. Be as it may, if applicant is entitled to the benefit of ad hoc appointment of 6 months’s (vide para-5 of the Rules), selection held on the basis of said advertisement of 2008 will not be given effect to and his continuation after six months (on ad hoc basis) shall depend upon his progress report as contemplated in said para-5 of the Rules. This is subject to the condition that the applicant is able to secure at least 20% marks on the basis of service record as required under para-5 of the Rules.

8. In the result, we set aside the impugned order dated 27.11.2007/annexure-9 to the O.A. and direct the respondents to decide the case of the applicant in view of observation/discussion made above afresh within a period of four weeks of receipt of a certified copy of this Order, which must be filed by the applicant before the concerned respondents within three weeks from today, failing thereof this order automatically stands ineffective.

10. With the above direction O.A. stands allowed. No order as to costs.”

9. Pursuant to the said directions, the order promoting the petitioner was passed. After four years again a representation was made raising similar grievance regarding promotion with effect from

13.12.2004. While rejecting the representation, it was inter-alia observed by the respondents as under : Þvki }kjk ekuuh; dsUnzh; iz’kklfud vf/kdj.k@ bykgkckn esa vks , ua0 987@2007 ds ek/;e ls fnukad 22-2-2007 ds ijh{kk ifj.kke dks pqukSrh nh x;h rFkk ekuuh; U;k;ky; ds vkns’k fnukad 09-10-2007 ¼vks , ua0 987@2007½ ds vuqikyu esa iz’kklu }kjk fnukad 27-11-2007 dks vkids }kjk fd;s x;s Dyse dks vLohdkj dj fn;k x;kA vkids }kjk mDr vkns’k fnukad 27-11-2007 dks iqu% ekuuh; dsUnzsh; iz’kklfud vf/kdj.k@bykgkckn esa vks , ua0 41@2008 ds }kjk pqukSrh nh x;h] ftls ekuuh; U;k;ky; us fnukad 03-6-2008 dks fu.khZr fd;k rFkk ekuuh; U;k;ky; ds vkns’k dk vuqikyu iz’kklu }kjk fnukad 02-9-2008 dks fd;k x;k rFkk deZpkjh }kjk N% ekg dk izf’k{k.k vkfn iw.kZ djus ds mijkUr lq;ksX; ik;s tkus ij izoDrk vaxzsth xzsM is 6500&10500@9300&34800+ thih 4800 ds in ij inksUufr djrs gq, fnukad 20-3-2009 dks fu;fer fd;k x;kA ;g Hkh bafxr djuk gS fd ekuuh; U;k;ky; us vius vkns’k fnukad 03-6-2003 esa dgh Hkh fiNyh frfFk vFkkZr fnukad 01-1-2004 ls ykHk nsus gsrq funsZf’kr ugha fd;k gSA bl izdkj ekuuh; U;k;ky; @bykgkckn ds vkns’k ds vuqikyu esa fu;ekuqlkj vkidks ns; lHkh ykHk fnukad 20-3-2009 ls fn;k tk pqdk gSA vr% ekuuh; U;k;ky; ds vkns’k fnukad 13-12-2013 ds vuqikyu esa vki dk vH;kosnu fnukad 11-7-2013 dk fuLrkj.k fd;k tkrk gSAß 4

10. A perusal of the order passed by the Tribunal and the disposal of the representation made, it is apparent that the respondents have complied with the directions given by the Tribunal and no fault can be found in that.

11. Having enjoyed the benefit of the directions given by the Tribunal, seeking to raise dispute claiming promotion from the year 2004, cannot be countenanced inasmuch as besides the fact that the same was not challenged at the relevant time in the year 2004. Once a subsequent Original Application filed by the petitioner has been allowed and its directions have been implemented, the petitioner is estopped from claiming beyond relief/benefit granted and implementation of the order passed by the Tribunal.

12. In that view of the matter, there is no substance in the petition and the same is, therefore, dismissed. Order Date :- 5.4.2025 (Kshitij Shailendra, J) (Arun Bhansali, CJ) 5