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Judgment
Shri OP Gupta, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents, were present at the time of hearing.
The instant execution application has been filed by the applicant seeking execution of the order dated 19.07.2023 passed by the Tribunal in OA No. 1421 of 2014. The operative portion of the aforesaid order is as follows:
“It is true that the applicant has not challenged the promotion order dated January 2011 or April 2012. Nonetheless, in view of the above quoted deliberations, this Tribunal is of the considered opinion that the instant case of the applicant requires reconsideration specifically in view of the discrepancy that exists in the promotion order of the year 2011 and 2012.
Therefore, the matter is liable to be partly allowed and is accordingly, partly allowed to the extent that the competent authority amongst the respondents is hereby directed to retrace the promotion orders of the year 2011 and 2012 and accordingly, reconstruct the same thereby granting promotion to the applicant by placing his name on the promotion order of the year 2011 or 2012 in accordance with the vacancy position and also on the basis of Seniority cum suitability. Once promoted, the applicant shall be granted the benefit of refixation of pay from the back date thereby allowing him the number of increments as accure. The applicant’s pension shall also be fixed accordingly thereby granting his all the consequential benefits. The order must be complied with by the respondents within a period of three months from the date of its receipt, without fail.”
Learned counsel for the applicant has argued that a copy of the aforesaid order was furnished to the respondents’ department on 04.08.2023 through registered post. Thereafter, a time extension application was filed by the respondents which was allowed vide order dated 08.01.2024 thereby granting the respondents a time of further three months to comply with the order dated 19.07.2023. Learned counsel for the applicant further argued that subsequently, the respondents passed the order dated 16.01.2024 thereby denying any promotion to the applicant either for the year 2011 or 2012. Learned counsel argued that the order dated 16.01.2024 is illegal and disobeying to the directions given by the Tribunal.
Vide compliance affidavit filed on 16.08.2024, learned counsel for the respondents argued that the competent authority of the department considered the case of the applicant in accordance with existing rules of the department and thereafter passed the order dated 16.01.2024. Learned counsel further argued that the order dated 16.01.2024 is a reasoned and speaking order as all the facts and circumstances of the case have been recorded therein and it has been explicitly explained as to why the applicant cannot be granted any promotion either for the year 2011 or 2012. If the applicant was dissatisfied with the aforesaid order, he should have approached before the appropriate judicial forum challenging the same but instead this misconceived execution application has been filed.
Learned counsel for the applicant has filed objection dated 18.09.2024 against the aforesaid compliance affidavit of the respondents and referring to the same, it was argued that the respondents have not complied with the order of the Tribunal in letter and spirit and no cogent reasons have been assigned for not granting any promotion to the applicant despite a clear direction from the Tribunal.
Learned counsel for the respondents has also filed a supplementary affidavit dated 21.10.2024 and referring to the same, he argued that when the case of the applicant was examined it was found that in the seniority list from which the employees were promoted in the year 2011, two senior employees namely Shri Zafar Mehdi and Shri Anuj Kumar Srivastava were placed above to the applicant and in this situation, it was not possible to give promotion to the applicant ignoring his seniors and thus, the applicant is not eligible and entitled for promotion in the year 2011 against 01 UR vacancy. Further, panel of Direct recruitment quota of 20 candidates (UR-10, OBC-05, SC-02 and ST-03) was received on 11.10.2011 by RRB/ALD before the assessment of vacancies for promotion for the year 2012 which was done on 20.10.2011. Due to this, there were no vacancies of UR category and only 06 vacancies of reserved category (SC – 04 and ST – 02) were there at the time of assessment of vacancies in the year 2012. Hence, the promotion order was issued on 11.04.2012 in which 04 employees out of 06 vacancies of reserved category (SC – 04 and ST – 02) were found suitable for promotion to the post of SSE. Hence, the applicant is also not eligible and entitled for the promotion in the year 2012. Thus, the respondents’ counsel reiterated his averment that nothing sustains in the instant execution application and the same may be rejected.
A reply dated 25.10.2024 to the aforesaid supplementary affidavit has also been filed by the applicant arguing that respondents have not complied with the directions of the Tribunal passed in the subject OA and thus, the substantial compliance of the order in letter and spirit remains undone.
We have considered the rival contentions advanced by the learned counsel for the parties and carefully gone through the documents on record.
The instant execution application has been filed by the applicant seeking execution of the order dated 19.07.2023 passed by the Tribunal in OA No. 1421 of 2014 the operative portion of which has already been quoted at second paragraph of this judgment. A perusal of the said judgment reveals that it was passed after hearing the parties at length and carefully perusing the records. Several discrepancies were observed and highlighted in the promotion orders dated January 2011 and April 2012 in reference to which the applicant is claiming promotion. Although the applicant did not challenge the said promotion orders in the OA but in view of the discrepancies observed, it was held that the case of the applicant was liable to be reconsidered. And accordingly, the subject OA was partly allowed to the extent that the competent authority amongst the respondents was directed to retrace the promotion orders of the year 2011 and 2012 and to reconstruct the same by granting promotion to the applicant by placing his name on the promotion order of the year 2011 or 2012 as per the vacancy position and also on the basis of seniority cum suitability. It is pertinent to mention here that respondents were merely directed to retrace the promotion lists of 2011 and 2012 and accordingly, grant promotion to the applicant as per the existing vacancy position. There was no specific direction as to which of his seniors were to be demoted or replacing whom the applicant should be adjusted. It was incumbent upon the respondents to have promoted the applicant in accordance with the two factors viz. vacancy position and seniority cum suitability regardless of what would have ensued in doing the same. Thus, the averment of the respondents that upon effecting the promotion, several difficulties would have followed is not acceptable.
Further, a perusal of the order dated 16.01.2024 passed by the respondents in compliance of the directions given by the Tribunal reveals that it is more of an order passed on the representation of the applicant and less of an order passed in compliance to the directions of the Tribunal. Needless to say, in case the respondents were not willing to comply with the order of the Tribunal or had any dissatisfaction with the same, they should have approached before the higher judicial forum to challenge the same. No such step was taken at the end of the respondents and they just waited for several months only to not comply with the directions of the Tribunal even after filing the time extension application on their behalf.
Thus, on the basis of aforesaid deliberations, the Tribunal is of the considered opinion that full and substantial compliance of the order of the Tribunal has not been done at the end of the respondents. Therefore, in the interest of justice, the competent authority amongst the respondents is hereby given another opportunity to file supplementary compliance affidavit / fresh compliance affidavit after complying with the directions of the Tribunal given in the judgment dated 19.07.2023 passed in OA No. 1421 of 2014, in letter and spirit. The said compliance affidavit must be filed within a period of four weeks supplying a copy of the same to the applicant’s counsel. In case the compliance affidavit is not filed, the applicant will be at liberty to take steps to issue further direction for compliance of the order.
List on 17.12.2024.