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Judgment
This writ petition has been filed by petitioner, Padam Chand G., way back in the year 2002 challenging order dated 19.11.2001 passed by Central Administrative Tribunal, Jaipur Bench, Jaipur (for short ''the Tribunal'') in Original Application No. 251/2001 with the prayer that the respondents be directed to modify order dated 06.06.2001 and regularise services of the petitioner on the post of Khallasi in the Department of Carriage and Wagon instead of Engineering Department with all consequential benefits.
The petitioner was initially appointed on the post of Khallasi on 19.06.1978 under Head TXR, which post has now been re-designated as C.W.S.(G) Carriage and Wagon(Senior Section Engineer (General). Since then, he was discharging duties on the post of Khallasi. The petitioner submitted various representations to the respondents for regularisation of his services on the post of Khallasi. The petitioner was screened for the purpose of regularisation on 02.06.1984 and was found fit, but at that time, a criminal case under Section 3 of R.P.U.P. Act was pending against the petitioner and Prem Singh, another employee working on the same post as Khallasi on casual basis, therefore, his case could not be considered for regularisation. According to the petitioner, many of his juniors were regularised and posted on the respective posts. Criminal case under Section 3 of R.P.U.P. Act was decided by the Court concerned vide judgment dated 07.06.1999, whereby the petitioner and aforenamed Prem Singh were acquitted. The petitioner submitted an application to the respondents on 16.08.1999, requesting that since he has been acquitted, therefore, he may be given regular appointment on the post of Khallasi with seniority and all other consequential benefits on the basis of screening test held on 02.06.1984. Two more applications were also submitted by the petitioner in this behalf on 02.05.2000 and 24.07.2000. Senior D.P.O. of the respondent passed an order on 02.05.2000 on last of such application of the petitioner made on the same day stating that after enquiry, reply be sent to the petitioner, but no reply was sent to the petitioner. Finally vide letter dated 27.07.2000, the petitioner was informed by the respondents that major DAR case was pending against him, therefore, he could not be reqularised. The aforesaid DAR case eventually resulted in awarding of penalty of stoppage of one annual grade increment without future effect vide order dated 21.02.2001.
At the time when original application was filed by the petitioner before the Tribunal, his appeal filed against the said order was pending. The Tribunal vide impugned order dismissed the original application filed by the petitioner accepting contention of the respondent-Railways that on account of pendency of criminal case against the petitioner as also imposition of penalty of stoppage of one annual grade increment without future effect in DAR case, he could not be regularised on the basis of screening test held on 02.06.1984 and the Tribunal, subsequently upheld the action of the respondents, who contended before the Tribunal that after finalisation of both the cases, petitioner''s services were regularised vide order dated 06.06.2001 on the post of Gangman in Engineering Department in the scale of 2610-3540 and he was posted in P.W.1. At Mahidpur Road Station. The aforesaid post of Gangman carried higher scale to that of the post of Khallasi which is in the scale of 2550-3200, for which he was screened for the purpose of regularisation. It was contended that at that time when the criminal case and DAR case was pending, there was no vacancy in the Carriage and Wagon Department, therefore, petitioner''s services could not be regularised in that department and there is no impediment for regularisation of the petitioner against the post of Gangman under P.W.1. At Mahidpur Road in the Engineering Department where the vacancies were available.
This Court on 04.12.2014 required the respondents to file counter after examining grievance of the petitioner in the light of aforesaid two developments namely acquittal of the petitioner in criminal case and exoneration of the petitioner in DAR case following the decision of the Tribunal, which has set aside order of penalty, particularly when the petitioner has qualified screening test held on 02.06.1984 for being regularised on the post of Khallasi in Carriage and Wagon Department. Today, when the matter was called out, Mr. Ganesh Chandra Gupta, learned counsel appearing on behalf of Mr. Shailesh Prakash Sharma, counsel for the respondents has again prayed for adjournment. We declined the prayer for adjournment and proceed to decide the writ petition after hearing learned counsel for the parties.
Mr. Pradhuman Singh, learned counsel for the petitioner has argued that many of the juniors to the petitioner were screened and regularised in the Carriage and Wagon Department itself on the basis of screening test held on 02.06.1994 and regularisation of the petitioner was withheld due to pendency of criminal case and DAR case. Criminal case had ended in acquittal of the petitioner and in DAR case, the petitioner challenged the penalty order passed by the disciplinary authority, which was upheld by the appellate authority, before the Tribunal by way of filing Original Application No. 181/2000. The Tribunal vide order dated 10.01.2012 has set aside the penalty order. Therefore, there cannot be any impediment for consideration of case of the petitioner for regularisation on the post of Khallasi from the date his juniors were regularised on that post in Carriage and Wagon Department. Contention of leaned counsel for the petitioner is that at the time when the screening test was held by the respondents on 02.06.1984, the petitioner was found fit, therefore, he would have also been regularised in that department but for the aforesaid two factors. Contention of the respondents that there was no vacancy cannot be accepted because juniors of the petitioner were regularised and the fact that vacancies were available in 2001 when the respondents regularised services of the petitioner that too on provisional basis on the post of Gangman on 06.06.2001 in Engineering Department could not be relevant for the purpose of deciding entitlement of the petitioner to claim regularisation on the post of Khallasi in 1984. Learned counsel for the petitioner has submitted that channel of promotion to both the post of Gangman and Khallasi are different as the person appointed on the post of Gangman is further promoted to Mate, A.P.W.I. and P.W.I., while a person appointed on the post of Khallasi is further promoted as Senior Khallasi, Fitter Gr. III, Fitter Gr. II and Fitter Gr. I, therefore, the petitioner cannot be deprived of his entitlement of regularisation on the post of Khallasi in Carriage and Wagon Department. Both the posts are different having separate avenues of promotions. The petitioner was initially appointed on the post of Khallasi and has been working on that post ever since he entered in service of the respondents. He has been wrongly de-categorised and regularised on the post of Gangman in the Engineering Department.
It is contended that Prem Singh, who was also co-accused in the same criminal case in which the petitioner was involved, was also acquitted by the Court concerned and has been subsequently regularised on the post of Khallasi. Copy of the judgment dated 07.06.1999 passed by Additional Chief Judicial Magistrate, Railways, Kota(Annexure-1) has been placed on record showing that the petitioner as well as Prem Singh were co-accused in the same criminal case and both of them were acquitted by the same judgment. Copy of order of regularisation of Prem Singh dated 03.07.2001(Annexure-13) has been placed on record. According to him, Prem Singh was regularised as Khallasi from the date his junior Prem Prakash was regularised in the scale of 2650-4000 and proforma promotion was granted to him w.e.f. 05.10.2000, though actual benefits were directed to be paid from the date of actual joining. Reference is also made to the case of one Abrar Hussain, Senior Cleaner, who was also acquitted from criminal case under R.P.U.P. Act, was promoted as Helper Khallasi vide order dated 20.02.2001 in Carriage and Wagon Department itself, as a result of which, vacancy became available.
Mr. Ganesh Chandra Gupta, learned counsel for the respondents opposed the writ petition and submitted that the petitioner has failed to point out instance of any of his juniors, who were promoted at the time when he was screened on 02.06.1984. Learned counsel for the respondents has submitted that on promotion of Abrar Hussain, vacancy became available in 2001 which was after 1984. The Tribunal was fully justified in holding that the respondent-railway was well within its rights to decide as to in which department the petitioner should be promoted. Casual labourers were screened for regularisation against Group-D post and they could be regularised against available vacancies.
Perusal of the impugned order passed by the Tribunal and number of documents placed on record clearly indicate that there were only two impediment for regularisation of the petitioner on the post of Khallasi in Carriage and Wagon Department namely (i) pendency of criminal case and (ii) penalty awarded in the DSR case. Undeniably, in the criminal case, the petitioner has been acquitted and the penalty of stoppage of one annual grade increment without cumulative effect, which was upheld by the appellate authority, has eventually been set aside by the Tribunal in separate Original Application filed by the petitioner. Besides, the petitioner has placed on record copy of judgment of criminal case in which he was tried along with co-accused Prem Singh. Both of them have been acquitted vide judgment dated 07.06.1999. We find on record copy of order dated 03.07.2001 by which casual labourer Prem Singh, who too was screened with the petitioner and was adjudged suitable for regularisation on the post of Khallasi and whose regularisation was also withheld due to pendency of aforesaid criminal case, has been eventually regularised as Khallasi in the scale of 2650-4000 and further considered for proforma promotion w.e.f. 05.10.2000. Though actual benefits in his case have been ordered to be paid from the date he actually takes over the charge of that post. We also do not find any justification in the view taken by the Tribunal that department would be at liberty to regularise casual labourer in the department where vacancies is available because the petitioner has amply demonstrated that the post of Gangman, even though, may be having higher scale to that of Khallasi, but avenues of promotions for both the categories of posts are entirely different. A person appointed on the post of Gangman is further promoted to Mate, A.P.W.I. and P.W.I., while a person appointed on the post of Khallasi is further promoted as Senior Khallasi, Fitter Gr. III, Fitter Gr. II and Fitter Gr. I.
We also find on record that apart from one Prem Singh, one Abrar Hussain, Senior Cleaner, who was also screened, but his promotion was withheld on account of pendency of criminal case under R.P.U.P. Act, was promoted as Helper Khallasi in Carriage and Wagon Department vide order dated 20.02.2001 when he was acquitted in that criminal case. We are citing these instances for the purpose of highlighting discriminatory attitude of the respondent-Railways towards the petitioner that whenever persons became free from criminal case, they were regularised/promoted in the Carriage and Wagon Department itself. The case of the petitioner cannot be said to be different from the case of Prem Singh, as he was also one such employee, who was in the same status as that of the petitioner and was screened with the petitioner and both of them were adjudged suitable, but not regularised because of their involvement in criminal case. Both of them were tried together and acquitted simultaneously. While Prem Singh was regularised on the post of Khallasi vide order dated 03.07.2001, the petitioner also ought to be regularised.
In the result, writ petitioner deserves to succeed and the same is, accordingly, allowed. Order dated 19.11.2001 passed by the Tribunal is quashed and set aside and the respondents are directed to grant benefit of regularisation to the petitioner on the post of Khallasi w.e.f. 05.10.2000, the date on which Prem Singh was regularised. Since the petitioner has continued in Engineering Department during long pendency of this litigation, which started from filing of original application before the Tribunal in 2001, whatever monetary benefits, he has drawn during this period, will not be liable to be recovered from the petitioner. However for the purpose of promotion of the petitioner, he shall be considered for the same from the date, his immediate junior has received such promotion after regularisation and his pay shall be calculated from stage to stage by notionally arriving at the scale of pay, which would have been payable on the post of promotion now held by petitioner''s such immediate junior.
Compliance of this order be made within a period of three months from the date of production of certified copy of this order before the respondents.
Stay application also stands disposed of.