AI Structured Summary
Not yet generated for this judgment
Judgment
Om Prakash VII, Member (J)
By means of present O.A., the applicant has sought the following reliefs:-
“(i) This Hon’ble Tribunal may be pleased to direct the respondents for re-determination of their date of promotion as of HS-II, HS-1 and MCM w.e.f. 22.03.1995, 30.01.2000 and 20.05.2003 respectively i.e. from the dates their juniors were promoted.
(ii) Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.
(iii) Award the costs of the original application in favour of the applicant”.
The brief facts of the case are that the applicant was initially appointed as Daily Wager on muster roll under Garrison Engineer (Army), Suratgarh. He was deployed as MPA. Suddenly his services were terminated. Aggrieved against the termination order, applicant filed OA No. 93 of 1987. Aforementioned OA was allowed with a direction to the respondents to reinstate the applicant in service. Civil Appeal against the said judgment was preferred by the Union of India before the Hon’ble Supreme Court, which was finally decided on 08.10.1989 with a partial modification that there should not be back wages and the applicants be regularized on the post on which they are reinstated. In compliance with the direction of Hon’ble Supreme Court, the services of the applicant were reinstated but not on the post of MPA, thus, some employee filed another OA No. 221/2004 before Jodhpur Bench of this Tribunal. Vide order dated 05.09.2006, the OA No. 221/2004 was allowed directing the respondents to consider the regularization on the post on which they were initially appointed as MPA. Applicant was transferred and posted under GE Allahabad. Other similarly situated employees under GE Bikaner approached the Jodhpur Bench of this Tribunal and filed OA No. 440/2013, 441/2013 and 442/2013 and prayed that they should be allowed the promotion from the date their juniors were given promotion as HS-II, HS-I and MCM. Aforesaid OAs were finally allowed in terms of order dated 05.09.2013 passed in OA No. 136/2011. In this matter, prayer of the applicant is that similar direction be given in this OA as has been given in OA No. 440/2013, 441/2013 and 442/2013 in favour of the applicant.
We have heard Shri Ashish Srivastava, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents.
Submission of the learned counsel for the applicant is that applicant was appointed as Daily Wager on muster roll in the Military Engineering Services under the Garrison Engineer (Army), Suratgarh and was deployed as MPA. Suddenly the services of the applicant and similarly situated employee without complying the provisions contained under the Industrial Dispute Act, 1947 were cancelled/terminated. Feeling aggrieved they filed OA No. 93 of 1987 before the Jodhpur Bench of this Tribunal, which was allowed by a common order and termination orders were quashed/set aside and respondents were directed to reinstate them with full back wages. Judgment and order passed in the OAs was challenged before the Hon’ble Supreme Court through Civil Appeal, which was finally decided on 08.10.1989. Hon’ble Supreme Court modified the order passed by the Tribunal to the extent of backwages only. Fresh direction was also issued by the Hon’ble Supreme Court to regularize the services of the applicant on the post on which they had been reinstated. It is further argued that the applicant was reinstated in service on 06.11.1989 but the post which was held by him at the time of termination of service was not given to the applicant. Respondents have not complied with the direction given in the Civil Appeal by the Hon’ble Supreme Court, thus, OA No. 221/2004 was filed before the CAT, Jodhpur Bench by some of them with a prayer to regularize the services of the applicant. Aforesaid OA was allowed on dated 05.09.2006 and respondents were directed to consider the regularization of the applicant. Applicant was transferred and posted under Garrison Engineer, Allahabad. He also filed OA No. 1111/2007 along with Shri Shyam Narayan posted under the office of the G.E. (East) Allahabad. OA was decided on 06.07.2011 with the observation that the case of the applicant is squarely covered with the judgment rendered in OA No. 221/2004 passed by Jodhpur Bench and respondents were directed to consider the claim of the applicant on the same direction and contention as contained in the judgment of OA No. 221 of 2004. Since respondents did not comply with the direction given in the aforesaid OA, contempt petition No. 162 of 2011 was moved. During the pendency of the contempt petition, direction given in the aforesaid OA was complied with, thus, proceeding of contempt petition was closed. It was further argued that similarly situated employee under the GE Bikaner approached before the CAT, Jodhpur Bench once again and filed OAs Nos. 440, 441 and 442 in the year 2013 with the prayer that they should be allowed the promotion from the date their juniors were given promotion as HS-II, HS-I and MCM. Aforesaid OAs were allowed in terms of order dated 5.9.2013 passed in OA No. 136 of 2011 wherein similar direction had been given to the applicant of that OA to give promotion as claimed in this matter as well as consequential benefits. It was next argued that juniors to the applicant had been promoted to the post of HS-II, HS-I and MCM w.e.f. 22.3.1995, 30.01.2000 and 20.05.2003 respectively whereas the applicant has been given promotion of HS-II and HS-I w.e.f. 09.09.2015. Thus, referring to the facts disclosed in the OA, it is also argued that since similarly situated employees have been allowed promotions, the respondents are denying the applicant the same benefits as had been extended to the similarly situated employee, thus it clearly indicates that respondents are discriminating to the applicant. Thus, there is a violation of the provision of Articles 14 and 16 of the Constitution of India. He also stated that several representations were moved time and again but no heed was paid. On one occasion on dated 26.12.2019, representation of the applicant was forwarded to the superior authority for necessary action but again no action was taken, thus, present OA was filed. Learned counsel for the applicant referring to the judgment and order passed in OA No. 440, 441 and 442 of 2013 on dated 13.4.2015 argued that applicant be also given the same reliefs because he is similarly situated employee. Learned counsel for the applicant has placed reliance on the following case laws:-
(i) G.C. Ghosh Vs. Union of India and others reported in (1992) 19 ATC 94 (SC) dated 20.07.1988;
(ii) K.K. Stepherd Vs. Union of India and others reported in JT 1987 (3) 600;
(iii) Abid Hussain Vs. Union of India and others reported in JT 1987 (1) SC 147;
Learned counsel for the respondents referring to the counter affidavit argued that although applicant was engaged as Daily Wager on muster roll under the Garrison Engineer (Army), Suratgarh but he was transferred from Suratgarh to Allahabad in the year 1997 on his own request, thus, he got bottom seniority at Allahabad, due to this reason he is not entitled to the same benefit as had been given in OA No. 440, 441 and 442 of 2013 by Jodhpur Bench. It is also argued that if the applicant’s plea is taken into consideration, relief is also claimed since 1995 and at that time he was posted at different place but authority belonging to that place have not been arrayed as respondents. It was also argued that there is a mandatory requirement of passing of trade test. As soon as the applicant cleared the trade test, he was given promotion since 9.9.2015. To substantiate his argument, learned counsel for the respondents referred to the Annexure No. 7 of the OA and further argued that applicant’s seniority has been adjusted at Headquarter CWE Allahabad level on his arrival to Garrison Engineer (West), Allahabad from other Command. His seniority cannot be compared with the personnel serving with other Commands. Applicant can also not claim parity with one Kamaljeet Singh as he was serving under the jurisdiction of Headquarter CWE (AF), MES, Bikaner. Learned counsel for the respondents also referred to the facts disclosed in the counter affidavit and prayed to dismiss the OA.
We have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire records.
From the perusal of record, it is evident that applicant has been engaged as Casual Wager on muster roll. His services were terminated but later-on he was reinstated in compliance with direction given by the Hon’ble Supreme Court. On reinstatement he was placed only as Mazdoor thereafter on the basis of order passed in OA No. 221/2004 by Jodhpur Bench, Kamaljeett Singh and others Vs. Union of India and others on dated 5.9.2006, applicant had filed OA No. 1111 of 2007 before this Tribunal, which was allowed on 6.7.2011 with the direction to the respondents to consider and decide the grievance of the applicants on the same direction and contention as contained in the order dated 5.9.2006 passed in OA No. 221 of 2004 Kamaljeet Singh (supra). It appears that direction given in the aforesaid OA was not complied with by the respondents then applicants of that OA including the present applicant filed contempt petition No. 162 of 2011. During the pendency of the contempt petition, direction given in the OA was complied with, thus, proceedings of contempt petition was closed on 28.01.2013. Perusal of record also shows that OA No.440/2013, 441/2013 and 442/2013 were filed before the Jodhpur Bench of this Tribunal with the prayer for giving them promotion on the post of FGM HS-II, HS-I and MCM from the dates their juniors were promoted. Aforesaid OAs were allowed with the following directions:-
“7. We have considered the rival contentions and also perused record including order dated 05.09.2013 passed by this Tribunal in DA No. 136/2011 with MA No. 82/2011. The facts of the present As are squarely covered by the facts of OA No. 136/2011 with MA 82/2011 and all the applicants in the instant OAs are similarly situated to the applicants of OA No. 136/2011, with MA No. 82/2011. This Tribunal, after considering all the facts and contentions of the parties, in order dated 05.09.2013 in OA No. 136/2011 with MA No. 62X2011 passed the following order:
"12. In view of the discussions made hereinabove, the applicants are entitled to get the relief sought in the OA. Therefore, the respondents are directed to give promotion to the applicants on the post of FGM, HS-II, HS-I and MCM Corthwith from the dates on which their juniors have been given promotions. The respondents are further directed to grant promotion to the applicants on the post of HS-II w.e.f. 22.03.1995, the date on which their juniors were granted promotion on that post and they further directed to grant promotion to the applicants on the post of HS-I and MCM w.e.f. 31.01.2000 and 20.05.2003, from the date on which their juniors were granted promotions, as per rules. Further, the applicants are entitled to get all the consequential benefits including arrears and so far as interest part is concerned, we are not inclined to grant any interest. The respondents are directed to comply with the order within four months from the date of receipt of a copy of this order."
Accordingly, Original Applications No. 440/2013, 441/2012 and 442/2013 are disposed of in terms of order dated 05.09.2013 passed by this Tribunal in C.A. No. 136/2011 with Mr. No. 82/2011 (Annex. A/6). The respondents are directed to comply the order within 4 months from the date of receipt of this order. There shall no order as to costs”.
It also appears that the applicant cleared the trade test on 9.9.2015 and was declared passed. On the basis of result of the trade test, applicant was given promotion with effect from 09.09.2015 for FGM HS-II to HS-I. If facts disclosed in OA Nos. 440/2013, 441/2013 and 442/2013 which had been decided together on dated 13.04.2015 by Jodhpur Bench of this Tribunal are taken into consideration, it reveals that some similarly situated employees cleared trade test and on that basis they were allowed promotion as claimed in the present OA with antedated since 1995. It is relevant to mention here that the applicant has been discriminated as he has not been given promotion with antedated but other similarly situated employees who had approached before the Tribunal have been promoted since 1995. Applicant’s case is also similar to the applicants of OA No. 440, 441 and 442 of 2013 (supra). Only on this ground that he had been transferred in the year 1997 from Suratgarh to Allahabad he cannot be denied with same benefit.
It is clarified that in the year 1995 applicant was posted at Suratgarh on the same post as the applicants of OA Nos. 440,441 and 442 of 2013 (supra) were posted. Annexure SA-1 of supplementary affidavit dated 10.09.2024 clearly reveals that in compliance of the direction given in the OA No. 1111 of 2007 decided by this Bench, respondents belonging to Allahabad Division have complied with the direction given in which all the benefits were extended by them since 20.11.1989. Arrears have also been paid by Allahabad Division itself. If direction given in the OA No. 1111/2007 have been complied with antedated since 1989, therefore, we are of the view that applicant cannot be denied with the similar benefit as has been allowed to the applicants, who were similarly situated in OA Nos. 440, 441 and 442 of 2013 (supra). It may also be mentioned that applicant has arrayed the Secretary concerned as respondent No.1. In case any compliance is to be made from the first station where applicant was initially appointed, direction could be given at his end. Thus, due to non-joinder of authority concerned belonging to first station where applicant was engaged OA is not liable to be dismissed.
As far as plea of the applicant that applicant was not party in the OA of which benefit he is claiming is concerned, it is settled law that it is not necessary for every employee to approach the court of law for the benefit which has already been granted by the court of law in the case of one employee. In this regard, reliance is placed upon the judgment of Hon’ble Apex Court in the case of State of Karnataka & Others vs. C. Lalitha, (2006) 2 SCC 747 wherein Hon’ble Apex Court has held that:-
“29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.”
The applicant has also made out a case that discrimination amongst the equals has been do ne. The Constitution Bench of the Hon’ble Supreme Court in Jagan Nath Parasad Vs State of U.P. Air 1961 SC Page 45 had clearly enunciated that the concept of equal protection of laws postulates in the application of the same laws alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances. It implies that among equals, the law should be equal and equally administered and the like should be treated alike without any discrimination.
Considering the facts and circumstances of the case and in the light of the observation made by the Hon’ble Apex Court, when similarly situated employees have been given benefits then applicant is also entitled for the benefits as has been given to the applicants of OA No. 440/2013, 441/2013 and 442/2013 (supra). Hence, O.A. is liable to be allowed.
Accordingly, O.A. is allowed. Respondents are directed to grant the similar benefits to the applicant of this O.A. which was granted to the applicants of O.A. No. 440/2013, 441/2013 and 442/2013 (supra) as similar employees cannot be treated in dissimilar manner. This exercise shall be completed within a period of 3 months from the date of certified copy of this order. No order as to costs. All associated MAs are disposed of.