Rajendra Kumar Gautam vs Union of India

These two petitions have been filed by drivers employed in the Central Bureau of Investigation. The petitioners filed an original application before the Central Administrative Tribunal when they were denied the appointment of participating in the selection for promotion on the post of Head Constables in the Executive Cadre. The ground of such denial was that since the petitioners belong to the Motor Transport Cadre, therefore, they stand excluded for consideration on the post of Head Constable in the Executive Cadre.

The petitioners took a plea that they were appointed in the executive cadre as Constables and that they had never opted to go into the Motor Transport Cadre which was formed later on. They, therefore, pleaded that this denial of an opportunity to seek promotion is arbitrary and contrary to the rules.

The respondent-C.B.I. took a stand that as a matter of fact the cadre formation of the Motor Transport Section took place for which options were invited and that the petitioners willingly on their own participated in the Motor Trade Test that was conducted whereafter they were placed in the said category. Consequently, it was not open to them to question their status in the Motor Transport Cadre. The Tribunal after having examined the facts came to the conclusion that the petitioners had never objected to their names appearing in the list of Motor Transport Cadre employees and in the year 2000, after almost five years of the formation of the Cadre, they had raised this issue at the time of promotion which was impermissible. The Tribunal further held that the rules provide only for direct recruitment and in the case of drivers it is a matter of screening only. The stand taken in the counter affidavit was that the petitioners had already opted to remain in the Motor Transport Cadre and therefore they had no claim left in the executive cadre.

Learned counsel for the petitioner contends that the said denial was contrary to the record inasmuch as the petitioners had specifically vide their representation dated 2.2.1996 refused to join the cadre of Motor Transport. The aforesaid letter/representation filed by the petitioners is stated to have been forwarded to the Head Office on 6.2.1996 for consideration. The respondents however appear to have taken a stand that the Motor Trade Test was conducted in which the petitioners had voluntarily participated whereafter the list was drawn up and for this reliance has been placed by Sri Sharad Kumar Srivastava on the document dated 6.2.1996 which is a fax message indicating formation of the Motor Transport Cadre in which the name of both the petitioners find place at Serial Nos. 2 and 3 respectively. On the strength of this document it is urged that the petitioners will be presumed to have exercised their option for remaining in the Motor Transport Cadre as they participated in the Motor Trade Test where they were found eligible by a duly constituted committee. It is therefore submitted that the list which was prepared and circulated clearly indicates the willingness of the petitioners. Sri Sharad Kumar Srivastava has further invited the attention of the Court that this selection had been preceded by a letter which was circulated on 4.7.1995 whereby the list of Constables, who according to the respondents, had opted for being included in the cadre where the name of both the petitioners find place. He contends that the petitioners never chose to challenge their such placement and in the circumstances the claim that was filed at the stage of promotion of Head Constables almost after four years was not entertainable. Consequently, even otherwise, the Tribunal was justified in proceeding to reject the claim petitions of the petitioners.

Having considered the documents which have been brought on record as also the judgment of the Tribunal, we find that the main issue of contest between the parties related to the very factum of exercise of option as was being demanded from the employees for the purpose of placing them in the Motor Transport Cadre. The petitioners case in the claim petition and supported by the supplementary rejoinder affidavit was that prior to their alleged placement, they had already given it in writing that they do not wish to join the Motor Transport Cadre. This representation dated 2.2.1996 was on record and before this Court the counter affidavit on behalf of the respondents categorically admits such an application being available and being forwarded to the C.B.I. Headquarters for appropriate orders. There is no material to indicate as to whether such applications dated 2.2.1996 were either disposed of or rejected. The contention of Sri Sharad Kumar Srivastava that the representations had been rejected is not borne out from the document which has been filed as Annexure 3 to the writ petition. This communication is in relation to the subsequent representations filed by the petitioners at the stage of promotion in the year 2000.

Consequently, in the absence of any material to indicate that the representations of the petitioners dated 2.2.1996 had been either rejected or accepted, it cannot be conclusively said that the respondents had rejected the request of the petitioners for not exercising their options.

This issue to our mind, was germane to the controversy and the learned Tribunal appears to have totally missed this fact inspite of the document having been placed on record as indicated above. It is not the case of the respondents that this document was not available. To the contrary as noted above, the document was available on record which had been forwarded on 6.2.1996 itself by the respondents for consideration by the Headquarters at C.B.I.

Apart from this the learned Tribunal ought to have proceeded to examine the issue that arose with regard to the invitation for exercising the option. The Tribunal does not appear to have touched these facts inspite of the same having been pleaded by the parties. Consequently, such facts which require a determination and an assessment have to be made by the Tribunal itself which is the Court of first instance for the purpose of arriving at a correct conclusion. The matter therefore requires a remittance to the Tribunal for decision afresh allowing the parties to bring on record such material as is being sought to be indicated through the arguments to establish as to whether the petitioners had exercised their option or not.

Consequently, the judgment dated 5.11.2003 of the Central Administrative Tribunal is set aside. The writ petition is allowed and the matter is remitted back subject to the observations made hereinabove to the Tribunal for decision afresh with a request that the matter may be disposed of expeditiously preferably within a period of six months'' from the date of production of a certified copy of this order and the parties shall cooperate in the disposal of the same.