1. The present petition is filed for quashing the order dated 23.09.2011 passed by the Central Administrative Tribunal, Circuit Bench, Ranchi in O.A. No. 21 of 2010, rejecting the claim of the petitioner by not giving promotion and seniority with retrospective effect from 1993 when juniors to the petitioner have been given promotion. The petitioner was initially appointed as Temp. Trains Clerk in 1981 at Barkakana and was promoted as Head Train Clerk with effect from 14.08.1985. The petitioner was given independent duty as Goods Guard on 03.07.1988 and subsequently, the petitioner was transferred on the same Pay Grade and capacity and posted at Patratu. While working as Goods Guard, the petitioner was made responsible for the train accident on 25.06.1990. A disciplinary action was initiated against the petitioner and the petitioner was removed from the Railway services with effect from 05.06.1991. Against the said punishment, the petitioner filed appeal before the appellate authority that is, Additional Divisional Railway Manager, Eastern Railway Dhanbad. The appellate authority modified the punishment of dismissal from service and awarded the punishment of reversion from the post of Goods Guard to Train Clerk with effect from 15.06.1993. In addition to reversion, the petitioner was also debarred from working as Goods Guard, which was directly connected with the running of the train. The petitioner made representation before the Additional Divisional Railway Manager, Barkakana. On the representation of the petitioner, the Additional Divisional Railway Manager passed the order dated 19.06.2000, observing as under:
"As per DA rules once punishing authority passed his order, the concerned authority himself cannot modify the punishment which lies with the next higher authority. However, while imposing punishment in the instant case, the punishing authority decides imposing a punishment under a DA rules has made certain observation in the punishment notice itself which does not come under the purview of classification of penalties mentioned under DA Rules-68.
As such the observation becomes infructuous. Accordingly if necessary the Administration may like to take decision in this regard as deem fit other than the penalty duly imposed."
2. Subsequently, by the order passed by the Additional Divisional Railway Manager (dated 19.05.2000), the examination for promotion to Goods Guard was completed in the year 1992 and because of the debarment, the petitioner could not appear in the said examination. Another notification was published in which the petitioner appeared in the examination for Goods Guard. Since result was not published for which the petitioner filed O.A. No. 8 of 2002 before the Central Administrative Tribunal, seeking for a direction upon the respondents for publication of the result and promotion with effect from 2002. In the said O. A. No. 8 of 2002, the Tribunal held that the said portion in the order of the authority debarring the petitioner from appearing in the test meant for Goods Guard should be treated as non est and directed the publication of the result within three months from the date of communication of the order of the Tribunal. Against the said order, the respondent filed the writ petition in the High Court being W. E (S) No. 206 of 2005 which was dismissed on 11.05.2006. Thereafter, the result was also published and the petitioner was granted promotion to the post of Goods Guard vide order dated 24.08.2006.
3. Aggrieved that the promotion has not been given to the petitioner with retrospective effect that is, with effect from 1993, the petitioner filed another CCPA No. 02 of 2005 which was disposed of on 23.02.2007 holding that such benefits as claimed by the petitioner is beyond the scope of CCPA and giving liberty to the petitioner to seek appropriate legal remedy. Thereafter, the petitioner filed O.A. No. 21 of 2010 (R) before the Central Administrative Tribunal. The Central Administrative Tribunal dismissed the Original Application holding that it is not possible to accept the contention of the petitioner for hypothetical grounds. As he has been permitted to appear in the examination for selection of Goods Guard, he would got the benefit of promotion from 1993. Being aggrieved by the dismissal of the Original Application, the petitioner has filed this writ petition.
4. The learned counsel appearing for the petitioner laying emphasis upon the order passed by the Additional Divisional Railway Manager dated 19.06.2000 and also the order passed by the Central Administrative Tribunal in O.A. No. 8 of 2002 submitted that both the Additional Divisional Railway Manager and the Central Administrative Tribunal have clearly held that the punishment debarring the petitioner from appearing in the examination is non est and since it does not come under the purview of classification of penalties therefore, the petitioner ought to have been given promotion with effect from 1993 itself. The learned counsel further submitted that based on the representation of the petitioner, the Additional Divisional Railway Manager has made an observation that debarment has become infructuous, as the same was not kept in view by the Tribunal.
5. The order passed by the Central Administrative Tribunal in O.A. No. 8 of 2002 was given effect by promoting the petitioner as Goods Guard at par with the junior with effect from 28.03.2002 and his pay was revised as Goods Guard with effect from 28.03.2002 on proforma basis with actual monetary benefit being payable with effect from 04.02.2003 that is, from the date of his shouldering higher responsibility. In case, if the petitioner was not given promotion with retrospective effect from 1993, the petitioner ought to have raised the issue only in O.A. No. 8 of 2002. By perusal of the order of the Tribunal in O.A. No. 21 of 2010 (R), it is seen that the prayer of the petitioner in O.A. No. 8 of 2002 itself was for publication of the result and promotion with effect from 2002 only. It has also been found his debarment from the post of Goods Guard had effect till 26.09.2000 when the CPO informed the DRM, EC Railway Dhanbad that the Chief Operating Manger had ordered that the applicant shall be permitted to appear in the selection in other categories. Pursuant to that, notification dated 14.07.2000 was issued whereby the applicant was made eligible for appearing in the examination and subsequently, by order passed by the Tribunal in O.A. No. 8 of 2002, his result was declared and he was promoted on the post of Goods Guard with effect from 24.08.2006. However, subsequently, the order passed by the Tribunal as affirmed by the High Court has been given effect to and the petitioner has been given promotion with retrospective date from 28,03.2002 that is, the date on which his junior namely, B.K. Singh was promoted. In view of the aforesaid, we do not find any merit in this writ petition. Accordingly, it is dismissed.
