PRADEEP KUMAR PANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this writ petition seeking to quash the order dtd. 11/2/2015 passed in O.A. No. 260/0071/2015 under Annexure- 13, whereby the Central Administrative Tribunal, Cuttack Bench, Cuttack, taking recourse to Sec. 20 of the Administrative Tribunals Act, 1985, declined to entertain the Original Application, since other remedies available to the petitioner were not exhausted and, as such, the same is premature one. The petitioner has also prayed to quash the order dtd. 6/8/2014 under Annexure-6, by which the petitioner, due to medical unfit, has been requisitioned to be spared for de-novo screening for his alternative appointment in similar grade; as well as the office memorandum dtd. 12/11/2014 under Annexure-7, by which the appointment of the petitioner was approved in alternative category as ECRC in PB-1 with Grade Pay of Rs.2800.00 in Commercial Department, consequent upon medical unfit and subsequently re-screened by the duly constituted screening committee on 31/10/2014; and the order dtd. 14/11/2014 under Annexure-8, whereby it was indicated that the petitioner may be directed to undergo training of Pro. ECRC being medically unfit staff and approved for absorption as ECRC in PB-1 in GP of Rs.2800..00 The petitioner has also prayed for a direction to the opposite parties, more particularly opposite party Nos. 2 to 5 not to disturb him from the post of Chief Controller of Sambalpur Division under East Coast Railway and to extend all such service benefits as due and admissible to the post of Chief Controller.

(2.) The brief fact of the case giving rise to filing of this writ petition is that consequent upon the selection procedure adopted by the opposite parties for appointment to the post of Goods Guard, the petitioner was appointed against the said post in the scale of Rs.4,500.007,000/- at Titilagarh, Sambalpur Division of East Coast Railway. After completion of four years of service, as per the rule, the periodic medical examination (PME) was conducted to examine the fitness of the running staff. Accordingly, he was directed to appear before the Medical Board on 7/9/2007, where he was declared as medically de-categorized from A2 to B1 due to vision problem. Keeping in view the alternative employment rule of the Government of India, Ministry of Railway, i.e., RBE No. 89/99, the medically de- categorized persons, including the present petitioner, were extended with alternative employment. In terms of the said rule, the allied service to the post of Goods Guard was found to be the Sec. Controller by the Screening Committee and accordingly the petitioner, vide order dtd. 26/2/2008, was offered with the order of appointment against the post of Sec. Controller. Thereafter, the petitioner was directed to undergo training of Pro. SCR and after completion of the said training he was released from the Zonal Railway Training Institute on 16/4/2008 and was directed to report before the Sr. D.P.O./ Sr.D.O.M., Sambalpur East Coast Railway, vide order dtd. 16/4/2008. Accordingly, the petitioner was issued with an order of posting as Sec. Controller in the scale of Rs.5,500.009,000/- as alternative posting by a duly constituted screening committee and after successful completion of the PCR training, vide office order dtd. 18/7/2008 issued by the Divisional Railway Manager, Sambalpur. After completion of three years of service as Sec. Controller, considering his performance, the case of the petitioner was considered along with other similarly placed incumbents and vide office order dtd. 24/11/2011 he was given promotion to the post of Chief Controller (CHC), Sambalpur in Pay Band-2 with G.P. of Rs.4600.00.

(3.) Mr. B.K. Sharma, learned counsel appearing for the petitioner vehemently contended before this Court that the Tribunal has committed gross error apparent on the face of record by not entertaining the Original Application on the ground of availability of alternative remedy, which is not an absolute bar to entertain such application. Further, while making de-categorisation, no opportunity of hearing was given to the petitioner, nor the medical report was supplied to him and, as such, by making re-screening to the medically de-categorised persons and giving an alternative appointment against a lower rank, which amounts to reversion, no reason has been assigned for the same. Therefore, the action taken by the authority is absolutely misconceived one and cannot be sustained in the eye of law. Non-entertaining of the Original Application by the Tribunal, in view of Sec. 20 of the Administrative Tribunals Act, cannot have any justification because the expression "ordinarily" in Sec. 20 (1) of the Act in the context means "generally", but not always or in all cases. In other words, normal rule is that the applicant should first avail of the departmental or other prescribed remedy available to him before applying to the Tribunal under Sec. 19 of the Act. Therefore, even if Sec. 20 of the Act puts a mandate to go for alternative remedy, that itself cannot debar the petitioner to approach the Tribunal because the petitioner had already been appointed and rendered service for more than six years and also got a promotion and the action was taken by the authority without giving opportunity of hearing and without complying the principle of natural justice. As such, denial of benefit to the petitioner on the ground of alternative remedy cannot be sustained. To substantiate his contention, learned counsel for the petitioner has placed reliance on Narendra Kumar Behera v. Orissa Administrative Tribunal, 89 (2000) C.L.T. 148; Sanjay Pradhan v. State of Odisha and others, 2021 (II) OLR-486; State of Punjab v M/s. Bandeep Singh and others, (2016) 1 SCC 724 M/s Ranjit Construction v State of Odisha and others, 2018 (I) OLR-808; and Purna Chandra Hota and others v. Sambalpur University and others, 2019 Vol-1 OLR-5.