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Judgment
The instant writ petition has been filed by petitioner Union of India through Secretary, Ministry of Defense and others, against the judgment dated 17.04.2013 passed by learned Central Administrative Tribunal, Jodhpur, in O.A. No.67/2012 and order dated 13.09.2013 passed in Review Application No.19/2013 with M.A. Nos.190/2013 and 191/2013, to review the order passed in OA No.67/2012.
Learned counsel for the petitioners at the threshold argued that the order dated 17.04.2013 passed in O.A. No.67/2012 was passed with observations that the respondents (petitioners herein) also agreed with submissions made by the counsel for the applicants that controversy has already been decided in the case of Tulsiram & Ors. Vs. Union of India & Ors., decided on 11.09.2008, but fact was not correct that the controversy is covered in the aforesaid judgment because ACP can be granted to the employees in the event of non-availability of promotion, but in this case, the applicants (respondents herein) were initially appointed as "Mazdoor" in Group-D and they were further promoted to the post of Valve man (semi skilled), therefore, there was no question to grant financial up gradation under the ACP Scheme in the pay scale of Rs.4000-6000 but OA was decided by the Tribunal upon wrong consent given by the learned counsel for Union of India before the Tribunal. Upon aforesaid fact, a review application was filed and the learned Tribunal was apprised with the fact that matter is not covered with the judgment of Tulsiram (supra), but the learned Tribunal dismissed the review application on the ground that judgment was passed with the agreement of the parties.
Learned counsel for the petitioners further invited our attention towards the reply filed before the Central Administrative Tribunal in the OA in which specific fact was disclosed that applicants (respondents herein) were initially appointed as Mazdoor in the office of Garrison Engineer (Army), Suratgarh, and thereafter they appeared in the trade test of Valve Man (Semi Skilled) and after passing said trade test, they were promoted on the post of Valve Man w.e.f. 29.11.1991, 04.12.1991, 10.12.1991, 28.12.1995 and 28.12.1995 respectively. Thus it is a case in which the counsel appearing on behalf of respondents gave consent contrary to the facts, therefore, the order impugned may kindly be quashed and the matter may be remitted to the Central Administrative Tribunal for deciding the OA No.67/2012 afresh.
Per contra, learned counsel for the respondents submits that no error has been committed by the learned Tribunal so as to decide OA No.67/2012 vide judgment dated 17.04.2013 while following the judgment in the case of Tulsi Ram (supra) because the counsel for the non-applicants himself agreed before the Tribunal that the controversy involved in this case is squarely by judgment in the case of Tulsi Ram (supra), therefore, this writ petition may kindly be dismissed.
After hearing the learned counsel for the parties, we have peruse dhe prayer clause of the OA filed by the respondents before the Tribunal. It emerges from OA that following prayer was made by the respondents in their original application before the Central Administrative Tribunal, which reads as infra:
"(a) By an appropriiate wriit,, order or diirectiion respondents may be diirected to grant the beneffiit off 1st ACP iin the pay scalle off Rs..4000-6000 w..e..ff.. due date affter complletiion off 12 years off serviice wiithall consequentiiall beneffiits iinclludiing arrear off pay and allllowances allong wiith iinterest @ 12% per annum..
(b) By an order off diirectiion exempllary cost be iimposed on the respondents ffor causiing undue harassment..
(c) Any other relliieff whiich iis ffound jjust and proper be passed iin ffavour off the applliicants iin the iinterest off jjustiice by the Hon''blle Triibunall.."
As per schedule appended with the Rules, it is obvious that the post of Valve Man can be filled in from the post of Mazdoor (Group-D) and it is not in dispute that the respondents/applicants were initially appointed as Mazdoor Group-D and subsequently after passing trade test, they were promoted on the post of Valve Man and this fact is specifically pleaded in the reply filed by the petitioners/respondents in OA No.67/2012. In paragraph (1) under the head of "introduction" following facts were pleaded by the respondent which reads as infra:
"1. That the applliicants were appoiinted as Mazdoor iin Garriison Engiineer (Army) Suratgarh.On 25.06.1987 the applliicants appeared iin the trade test off Vallve Man (semii skiilllled) and decllared pass.They were promoted on the post off vallve man w.e.ff. 29.11.91, 04.12.91, 10.12.91, 28.12.95, 28.12.95 respectiivelly. As per the jjudgment dated 10.01.205 passed by the Hon''blle Triibunall iin respect off OA No.8/2004 ffiilled by the Devii Lall & Ors.,the appellllants pllaced iin hiigher pay scalle off Rs.950-20-1150-EB-25- 1500 reviised pay scalle off Rs.3050-4590 weff the date off theiir appoiintment as Vallve man.Affter that allll the applliicants appeared iin trade test ffor promotiion to the post off HS-II on 07.12.2002 and qualliiffiied the saiid trade test."
After considering the entire facts of this case and considering the facts of Tulsi Ram"s case (supra), we are of the opinion that facts of both the case are altogether different, therefore, the learned Tribunal ought to have considered the prayer of the applicants at the time of deciding the review application filed against the order dated 17.04.2013 passed in OA No.67/2012, but it emerges from the order passed in review application that fact of promotion of the respondents from the post of Mazdoor to the post of Valve Man has not been considered by the learned Tribunal.
In view of above, we are of the opinion that the Central Administrative Tribunal committed a grave error while deciding the OA No.67/2012, while following the judgment passed in Tulsi Ram"s case because facts of present case are altogether different than the case of Tulsi Ram.
Accordingly, the instant writ petitioner filed by the petitioner Union of India is hereby allowed and the orders dated 17.04.2013 passed by learned Central Administrative Tribunal, Jodhpur, in O.A. No.67/2012 and order dated 13.09.2013 passed in Review Application No.19/2013, are hereby quashed and set aside. The case is remitted to the learned Central Administrative Tribunal, Jodhpur to decide the same afresh on its merit.