SHAHNAWAZ RASHID Vs. UNION OF INDIA

JUDGEMENT

(1.) The instant petition has been preferred by the original-applicant by invoking Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir and the prayer made is for quashing order dated 27.08.2012 rendered by Central Administrative Tribunal, Chandigarh (Circuit Bench, Jammu) (for brevity, the Tribunal) while dismissing Original Application No. 1331-JK-2011. The petitioner-applicant had challenged before the Tribunal Memo No. E-205/TDM-UDR/29 dated 22.09.2011 withdrawing his promotion order issued on 30.08.2011. A direction was also sought from the Tribunal to restore the aforesaid order and allow the petitioner-applicant to perform his duty on the promoted post of Telecom Mechanic with all consequential benefits. Fact in brief may first be set out. The petitioner-applicant was appointed as a Regular Mazdoor on 11.03.2010 on compassionate grounds because his father was killed by militants on 13.07.1994 while serving as SDE, Anantnag (Department of Telecommunication, Kashmir). The aforesaid department has been later rechristened and is now known as BSNL. On 07.10.2010 respondent No. 2 issued an advertisement for filling up of 07 posts of Telecom Mechanic (TM) by way of Limited Departmental Competitive Examination. The last date for submission of applications was 20.11.2010 and the examination was to be held on 23.01.2011. The petitioner-applicant succeeded in the examination and consequently was appointed after successful completion of induction training as Phone Mechanic on 30.08.2011. On 09.09.2011 order of promotion passed in favour of the petitioner-applicant was kept in abeyance, which was eventually cancelled on 22.09.2011. The petitioner-applicant then approached the Tribunal for quashing the order dated 22.09.2011 and for restoration of his promotion order dated 30.08.2011 with all consequential benefits.

(2.) The Tribunal after examining the pleadings and hearing arguments, dismissed the original application and concluded that merely because the petitioner-applicant had worked for one month on the promoted post would not arm him with any right nor any principles of natural justice were required to follow because cancellation order was a foregone conclusion. The final outcome was to be the same as it existed before following such principles. In that regard Tribunal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in Union of India v. Bikash Kuanar, 2006 AIR(SCW) 5436) The Tribunal has further held that if there is a mistake committed by the respondent-department then such error can always be rectified by departmental authorities and has thus dismissed the original application. Feeling aggrieved, the petitioner-applicant has approached this Court by filing the instant petition.

(3.) Mr. Abhinav Sharma, learned counsel for the petitioner-applicant has drawn our attention to the averments made in para 17 of the original application where it has been pleaded that the petitioner-applicant was singled out for hostile treatment because two other similarly situated persons were promoted as Telecom Mechanic (TM) on 05.10.2011. It is appropriate to mention that a cutoff date fixed by the respondent is 01.07.2008. The dates of appointment of S/Sh. Tameem Ahmad Bhat and Firdous Rehman as per appointment order is 08.07.2008. They were also promoted as Telecom Mechanic and their orders of promotions were never cancelled. A copy of the order has been placed on record of the Tribunal. In the written statement filed on behalf of respondent Nos. 1 to 6 before the Tribunal stand taken in the corresponding para 17 is that the contents of para 17 of the original application were admitted. However, the promotion order of the applicant alone was cancelled for the reasons already explained in the preceding paras. A perusal of the averments made in the preceding paras would show that since the appointment of the petitioner-applicant as regular mazdoor was made on compassionate ground, he was not eligible for promotion to the cadre of Telecom Mechanic as per the guidelines of the Recruitment Rules of 2002. The Limited Competitive Examination for promotion to the cadre of Telecom Mechanic was held on 23.01.2011 in respect of the recruitment year 2008. Accordingly, the vacancies for the recruitment year 2008 were to be filled up keeping the cutoff date as 01.07.2008. The petitioner-applicant filed his rejoinder and the aforesaid stand of the respondents has been controverted. A reference has been made to the Recruitment Rules of Telecom Mechanic, 2002 issued vide letter No. 250-74/2001 Pers-III dated 20.02.2002 which are applicable to the case in hand. The same has been reproduced in para-4, which is as under-