| SooperKanoon Citation | sooperkanoon.com/54427 |
| Court | Central Administrative Tribunal CAT Allahabad |
| Decided On | Feb-25-2003 |
| Judge | R T Vice |
| Reported in | (2003)(3)SLJ223CAT |
| Appellant | Ashwani Kumar and ors. |
| Respondent | Divisional Railway Manager, |
2. The facts, in short, giving rise to this application, are that applicants were engaged as Casual Labourers in the Office of Chief Controller, Northern Railway, Allahabad on different dates before 1.5.1988. They had already completed 120 days and were eligible for absorption on regular basis for which purpose proceedings were initiated by publishing the lists of eligible Casual Labourers on 23.12.1988, 13.2.1989 and 25.7.1989. In the aforesaid three lists, names of all those Casual Labourers, who had completed 120 days prior to 1.5.1988, were included. The names of applicants were mentioned in the list dated 23.12.1988, screening test took place between August, 1989 to October, 1989 then apanel of 394 persons, who were selected, was published on 3.2.1990. The names of the applicants were not included in this panel. Aggrieved by which they filed O.A. No. 30 of 1994 in this Tribunal, which was finally decided on 5.9.2000. This Tribunal noticed the contents of Para-10 of the Counter filed by the respondents, wherein it was stated that they had considered only those Casual Labourers who had rendered 235 days of working as on 1.5.1988 in drawing the panel of 3.2.1990.
3. Counsel for the respondents stated that none of the applicants had rendered 235 days of working as on 1.5.88 hence they were not selected.
The applicants, in the above O.A., had mentioned the names of several persons, who had far less number of working days than them, were included in the panel. They fact remains uncontroverted in Paras 5 and 6 of the order. This Tribunal arranged the facts as it was a clear case of arbitrariness. The Tribunal disposed of the O.A. with the following directions: "In view of the above, we direct the respondents to examine the claim of the applicants and if it is correct to review the list drawn on 3.2.1990 and include the names of the applicants after completion of necessary formalities in the list at appropriate places and grant them notional seniority from the date their juniors have been inducted against a Group 'D' post. They shall not however, be entitled to grant pay of Class IV for the period they had not worked on Group 'D' vacancy. They shall be given seniority and their pay shall be fixed after taking the period from the date of appointment of their juniors as notional service. This shall be done within a period of three months from the date of communication of this order." 4. In pursuance of the aforesaid order, the respondents considered the claim of the applicants again and passed the impugned order dated 30.11.2000. Learned Counsel for the applicant has submitted that in paragraph 4 (iii) and paragraph 4(iv) of the O.A., applicants have clearly mentioned the names of those persons who were included in the panel, though the working days were less than the applicants, the facts stated in the above paragraphs have not been denied in paragraph 23 of the Counter reply. The fact accepted by the Tribunal in the earlier order dated 5.9.2000 was the stand of the respondents that only those who had rendered 235 days of working as on 1.5.1998, were included in the panel. The respondents were, thus, required to examine this fact and record findings in the order dated 30.11.2000. But this fact has not been examined and it has been concluded that no persons with less working days than applicants in T and C Department have been placed on the panel.
5. Learned Counsel for the applicant has submitted that the grievance of the applicant's has not been rectified as the fact stated were uncontroverted in the earlier O.A., and they are uncontroverted even now, but the relief has been refused to the applicants. Learned Counsel has further submitted that in the impugned order, it has been vaguely said that after reviewing the entire matter as available on record it has been found that claim of applicant for interpolation cannot be accepted. It is submitted that while rejecting the claim of the applicants, the facts stated in the representation were not even noticed. The facts were mentioned in the order of this Tribunal dated 5.9.2000, which have also not been scrutinised in the light of the direction of the Tribunal. It is submitted that the order is arbitrary and cannot be sustained. The applicants genuine claim has been rejected on the basis of discrimination and arbitrariness, which is fully restablished from the facts available on record.
6. Counsel for the respondents, on the other hand, submitted that the impugned order dated 30.11.2000 is justified and does not suffer from any error of law. The learned Counsel has placed reliance in paragraph 21 of the Counter, wherein it has been stated that there were valid reasons for not considering the applicants in the screening, which was communicated by the then Assistant prosecution Officer to investigate the matter under confidential Note No. E/Screening/90 (T&C) dated 6.2.1990. Learned Counsel has further placed reliance on paragraph 25 of the Counter, wherein it is stated that the Casual Labours, who had worked in the Traffic and Commercial Department for 120 days prior to 1.8.1978, were given preference, on the aforesaid facts, it has been submitted by the Counsel for the applicant that the claim of the applicants have rightly been rejected.
7. I have carefully considered the submissions made by the Counsel for the parties. As already mentioned above, this Tribunal, while deciding O. A. No. 30/94 clearly found that the applicants have been discriminated. The eleven persons, who have been mentioned in paragraph 4 (iv) of the O.A., were mentioned in earlier O.A. also. They were included in the panel, though they had less working days than the applicants. This important fact remains uncontroverted even today. The respondents, though were given opportunity to rectify the error but opportunity has not been availed and the claim has been rejected by impugned order dated 30.11.2000 which is totally vague and criptive order. It does not deal with the controversy, which was pointed out by this Tribunal in the order.
8. The strange part of the case is that in the order dated 30.11.2000, respondents have not mentioned any of the fact as stated in paragraphs 21 and 25 of the counter reply. The case of the respondents throughout was that all persons, who had completed 120 days work before 1.5.88, were eligible for consideration to the absorbed as regular employees, Nowhere it was, mentioned that persons who had worked before 1.8.1978 will be given preference. A new case has now been tried to develop at this stage. No such reason has been mentioned in the impugned order, Similarly, in paragraph-21, attempt has been made to create a doubt as if there was something adverse against the applicants and for that reasons they were not included. This fact also has not been mentioned in the impugned order. The legal position is well settled that if the authority passes the order, which is open for judicial review and it ultimately comes before the judicial review, it cannot be supplemented by fresh facts mentioned in the counter reply. For the above legal position, the judgment of Hon'ble Supreme Court in the case of Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors., AIR "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the begining may, by the time it comes to Court on account of a challenge get validated by additional grounds later brought out." 9. From the aforesaid discussion it is clear that applicants were illegally excluded from being included in the panel, though others with less working days were included. The applicants, thus, are found entitled for the relief as provided in the order dated 5.9.2000, which has been illegally refused to them by the impugned order.
10. For the reasons stated and explained above, this O.A. is allowed, order dated 30.11.2000 (Annexure-2) is quashed. The respondents are directed to include the names of the applicants in the panel dated 3.2.1990 at appropriate places. The applicant will be entitled for the same seniority from the date the persons with less number of working days were inducted against Gr. 'D' post. The seniority shall, however, be on notional basis till the date of filing of this O.A. i.e. upto 15.8.2001. The applicants shall be entitled for backwages from the date of filing of the present O.A. i.e. 16.8.2001 upto the date, they are appointed on the basis of the panel dated 3.2.1990. This order shall be complied with within 3 months from the date a copy of this order is filed before the competent authority.