M.K. GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant joined the Indian Railways on 16.01.1981 and belongs to the 1979 Examination Batch of IRSE. In August, 2001 a major penalty charge -sheet was issued to the applicant and after a detailed enquiry the Inquiry Officer exonerated the applicant of all charges in March 2003. However, a disagreement note was issued by the Disciplinary Authority on 31.10.2003 and the applicant was compulsorily retired in April 2005. The applicant challenged the punishment of Compulsory Retirement before the Bombay Bench of the Central Administrative Tribunal in O.A. 315/2005 in February 2007. The above mentioned O.A. was allowed with full consequential benefits. The order of this Tribunal was challenged in Writ Petition No. 2395/2007 by the respondents in February 2007. The Hon'ble Bombay High Court set aside the punishment order on procedural infirmities on 19.4.2007. The orders of the C.A.T. Bombay Bench was upheld and the matter was remanded to the Disciplinary Authority for fresh consideration from the stage the lacuna in procedure had crept in. Although the Hon'ble High Court had given six months' time to the respondents to complete the disciplinary proceedings and to pass the final orders in accordance with law, the respondents took more than 44 months and finally exonerated the applicant on 21.12.2010. The applicant was extended all consequential benefits of pay due to exoneration. While the disciplinary proceedings were pending after remand by the High Court the immediate junior of the applicant by name Shri Anirudh Jain was posted as Divisional Railway Manager (DRM) on 9.10.2007. Since the Departmental Proceedings were going on against the applicant he was not considered for posting as DRM. After the exoneration in December, 2010, the applicant made a representation to the respondents to consider him for posting as DRM. In January, 2011 a panel was approved by the Railway Board for posting of officers of various batches as DRM. The applicant's name was at Serial No. 1 in the said Panel since he was the senior most eligible candidate at the relevant time. However, on 7.4.2011, vide the impugned order the posting of DRMs was notified and the applicants name was not included. In June 2011, the applicant made a representation to the respondents that his name should be considered immediately for posting as DRM, since his non -inclusion in the DRM posting will adversely affect his chances for promotion to the post of G.M. (OL) and later as Member, Railway Board. On 30.8.2011, the applicant was promoted to the Higher Administrative Grade (HAG), and posted as Chief Administrative Officer (Construction) in Central Railway, Mumbai. He was working in the same post at the time of filing the Original Application No. 522/2013 before this Tribunal. Aggrieved by his non -inclusion for the post of DRM, the applicant has approached this Tribunal with the following prayers.

(2.) THIS Tribunal had considered the applicant's prayer for interim relief by way of directive to the respondents to post the applicant as Divisional Railway Manager immediately and till then to stay all further postings dated 20.07.2013 to the post of Divisional Railway Manager. The prayer for interim relief was as follows:

(3.) THE applicant has relied upon a number of citations to support his case. In the case of Harla v. The State of Rajasthan,, AIR (38) 1951 SC 467, the Apex Court had held, "natural justice requires that before a law can become operative it must be promulgated and published. It must be broadcast in some recongnisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable regulation or customs, a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means. Promulgation or publication of some reasonable sort is essential." It is the contention of the applicant that the provision regarding working as DRM as an eligibility for promotion to the post of GM (OL) has not been made public and therefore, cannot be used against those Officers who have not worked as DRM. The applicant has also cited the judgment in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. : (1991) 4 SCC 109 wherein the Hon'ble Apex Court has held that in a case where the disciplinary case was pending against the official if he is exonerated he should be promoted from the date on which his immediate junior was promoted. In the State of Orissa and Anr. v. Mamata Mohanty, : 2011 (1) SLJ 429 (SC) : (2011) 3 SCC 436, the Hon'ble Apex Court had held that not only must State not be arbitrary but must not be seen to be so every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor give an impression of bias, favouritism and nepotism. Once the Court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the Court to rectify the mistake rather than perpetuate the same.