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Judgment
Dinesh Maheshwari, J.—After having heard the learned counsel for the petitioners and having perused the material placed on record, this Court is clearly of the view that no case for interference in the just and proper order dt. 28.03.2012 as passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (''the CAT'') in Original Application (''OA'') No. 288/2009 is made out; and this writ petition does not merit admission. The facts of the case are more or less indisputable and could be noticed in brief as follows: On 24.07.2006, the petitioners related with North Western Railway, Bikaner circulated the names of the persons likely to be considered for selection to the post of Chief Inspector of Tickets (''CIT'') wherein, as per seniority, the name of the applicant Shri Bhagirath Bhat (respondent No. 2 herein), who was working on the post of Junior Inspector of Tickets, figured at serial number 2.
The list so circulated by the petitioners came to be questioned in an OA (No. 172/2006) by three incumbents namely S/Shri Bhushan Lal Taneja, Poonam Chand Bhati, and Ashok Kumar Bhatnagar, who were shown at serial numbers 11/14, and 13 respectively, essentially on their claim of seniority over two other incumbents S/Shri Tara Singh and Shokat Beg, who were shown at serial numbers 8 and 9 respectively. Noteworthy it is that in the said OA (No. 172/2006), the applicants neither challenged the selection process as such nor the seniority position of the present respondent No. 2 Shri Bhagirath Bhat; and their claim had only been against the aforesaid two incumbents shown at serial numbers 8 and 9. The present respondent No. 2 was not even impleaded as a party to that OA for the reason that his position was comparatively higher (at serial number 2) and the applicants had no lis with him.
However, by way of interim relief in the said OA (No. 172/2006), the CAT, even while permitting the present petitioners to go ahead with the selection process, prohibited them from publishing the result until the next date. Thereafter, due to non-constitution of Division Bench for a substantial length of time, the case could not be taken up by the CAT though the present respondent No. 2 did move an application for modification of the interim order. As the things would have it, before his application for modification of the interim order could be considered by the CAT, the present respondent No. 2 retired on 31.05.2007. Nevertheless, the application so filed him was considered and allowed by the CAT on 19.09.2007 and the interim order was modified to the extent that the present petitioners were left free to declare the result of selection process of all candidates except the private respondents of the aforesaid OA No. 172/2006.
It is also noticed that much prior to the passing of the aforesaid order dt. 19.09.2007, the present petitioners had declared the panel on the basis of selection conducted on 21.11.2006 wherein the name of the present respondent No. 2 figured at serial number 2. This order, however, contained a rider that the empanelment for the post of CIT in the grade of Rs. 6500-10500 would depend on completion of the rest of the selection process as per the directions of CAT in OA No. 172/2006; and that final result of selection would be declared after decision of the said OA.
It appears that the said OA (No. 172/2006) was finally decided on 23.05.2008 and in compliance of the final order, the seniority position was revised subject to the final outcome of the writ petition (No. 10123/2008) pending in this Court. In the revised panel, however, the name of the applicant-respondent No. 2 was not included for the reason of his retirement prior to the declaration of the result. The applicant-respondent, therefore, filed the OA (No. 288/2009) leading to this writ petition while seeking the following reliefs:-
(A) That by an order or direction in the appropriate nature, the order dt. 13.05.2009 (Annex.A/1) may kindly be quashed and set aside and accordingly, the respondents may kindly be directed to provide the benefits of promotional post of Chief Inspector of Ticket to the applicant with effect from the date 21.11.2006 or from any other date when the final result of the panel for the post of Chief Inspector of Ticket in the grade of Rs. 6500-10500 was prepared by them.
(B) That any other order or direction, which this Hon''ble Tribunal deems fit and proper, in the facts and circumstances of the case, may kindly be passed in favour of the applicant.
(C) That the cost of the Original Application may kindly be awarded in favour of the applicant.
The petitioners contested the OA so filed by the applicant-respondent No. 2 primarily on the contention that on the basis of the Railway Board''s circular No. 831-E/63/2-XII/EIV dt. 20.03.1982, the selection panel was to contain the names only of the serving employees; and the applicant, having retired before release of the final selection panel, could not have been included therein. The petitioners also contended that the applicant was not entitled to any monetary benefit on the doctrine of no work no pay'', particularly when he had not worked on the post of CIT.
The CAT considered the rival submissions and, after taking note of the relevant aspects concerning OA No. 172/2006 that came to be filed for the reason of the dispute amongst other incumbents, observed that the said OA was neither against the selection process nor against the entitlement of the applicant; and that the challenge was essentially to the placement of other incumbents, standing lower than the applicant Shri Bhagirath Bhat. The CAT further observed that in fact, the applicant made all his efforts for modification of the interim order but the order could not be modified before his retirement only due to non-constitution of Division Bench. The CAT further observed that the interim order was indeed modified later; and it would go to show that had there been a Division Bench constituted prior to the superannuation of the applicant, alike order would have been passed. The CAT referred to the doctrine of Actus curiae neminem gravabit and expressed the opinion that present one was the case where the applicant-respondent No. 2 ought not be left to suffer for the act or omission on the part of the CAT. The CAT, therefore, proceeded to allow the OA declaring the applicant entitled to be promoted to the post of CIT but made it clear that such promotion would be notional for the applicant having already retired; and directed that his terminal benefits would be worked out on the basis of such notional promotion. The CAT observed and directed as under:-
Arguments were heard and documents perused. The fact that on 21.11.2006 a panel has been prepared in which the name of the applicant figured in at serial No. 2 is not disputed. Again, though OA No. 172 of 2006 was filed challenging the earlier pre-select list, it was not against the selection process nor against the entitlement of the applicant for selection but limited to some inter-se seniority dispute with which the selection of the applicant was not connected. Had there been no case pending, the applicant would have not only been promoted but would have been the beneficiary of the higher pay and allowances till he retired and his retirement benefits would have been based on the last pay drawn. In fact, the applicant did make entire efforts to see that the interim order passed earlier was modified, but unfortunately due to non constitution of Division Bench, the order could not be got modified before his superannuation. The fact that the Tribunal did modify the interim order clearly goes to show that had there been a Division Bench constituted prior to the superannuation of the applicant, a like order would have sure been passed. The doctrine Actus curiae neminem gravabit does apply in full force to the case of the applicant. It is not the case of the respondents that had the panel been prepared prior to the superannuation of the applicant, even then his name would not have figured in for any plausible reason. Thus, the non promotion of the applicant before his superannuation is purely due to the delay that had occurred in passing the order modifying the interim order. He should not be made to suffer for the reason which is beyond the control of the applicant.
In view of the above, the OA is allowed. It is declared that the applicant should be deemed to have been promoted to the next grade of Chief Inspector of Tickets in the grade of Rs. 6500 - 10500 (Pre-revised) and such a promotion shall be notional. The pay fixation shall also be notional since the applicant did not perform the duties of the said post but the terminal benefits such as pension, DCRG, and leave encashment shall be worked out on the basis of the last pay fixed on the basis of notional promotion and the difference between the amount due and drawn shall be made available to him and revised pension shall be continued to be paid. To that extent, there shall be revision of the PPO.
This order with reference to Revision of the PPO on the above lines and payment of the arrears of terminal benefits shall be fully complied with, within a period of six months from the date of communication of this order.
Under the circumstances, there shall be no order as to cost
Seeking to question the order aforesaid, it is contended on behalf of the petitioners that the CAT has proceeded rather on surmises and conjectures; and has not considered the Railway Board''s circular dt. 20.03.1982 wherefor the name of the applicant could not have been included in the selection panel, which was issued much after his retirement. It is submitted that the said circular dt. 20.03.1982 was not even challenged and the applicant was, therefore, not entitled to any relief.
In a comprehension of all the facts and circumstances, this Court is not impressed with the submissions made on behalf of the petitioners and finds no reason to interfere in the just and proper order as passed by the CAT in due regard to the fundamentals of the principles of equity, justice and good sense.
It remains indisputable that the seniority position of the applicant (respondent No. 2) was not even remotely in question in the other OA (No. 172/2006) filed by three incumbents against the placement of two other incumbents. Neither the applicant was a party to the said OA nor even the selection process as such was challenged. Yet, the CAT, in its interim order prohibited the petitioners from publishing the result of selection process.
Thereafter, it was only due to non-constitution of the Division Bench of the CAT that the case was not taken up and the interim order continued to operate wherefor the selection process as a whole had come to a halt. The applicant-respondent No. 2 even moved an application seeking modification of the interim order but this application could also not be considered for non-constitution of Division Bench of CAT. The application was, of course, considered after his retirement and indeed the interim order was modified where the present petitioners were left free to declare the result of selection process of all the candidates except private respondents of the said OA No. 172/2006.
The doctrine of Actus curiae neminem gravabit is founded on justice and good conscience; and is a fundamental guide for administration of justice. A person cannot be left to be prejudiced by any act of the Court/Tribuanal; and obviously, the applicant herein could not have been left to be prejudiced by the interim order of CAT and then, for the delay in consideration of his application for modification because of non-constitution of the Bench.
In the given scenario and history of the case, this Court is clearly of the view that the CAT has passed a proper and just order so that the applicant is not left to suffer for some fault or shortcoming, which could be attributed to any aspect or any person but himself.
The arguments as advanced with an abstract reference to the Railway Board''s circular cannot be countenanced as to override the requirements of equity and justice. It is not the case that had the panel been published before the retirement of the applicant his name was not likely to occur therein. In fact, the present petitioners had declared the panel on the basis of selection conducted on 21.11.2006 wherein the name of the applicant-respondent No. 2 did figure at serial number 2. In the ordinary course, he was not to be denied selection to the post of CIT merely for a dispute of placement amongst the persons at serial numbers 8 and 9 on one hand and at numbers 11, 13 and 14 on the other. In this Court''s opinion, it would have been rather a travesty of justice if the CAT would have denied adequate relief to the applicant in the peculiar facts and circumstances of the case.
It is noticed that even while applying the doctrine of Actus curiae neminem gravabit, the CAT has moulded and granted the relief so as to balance the equity with the other requirements of law. The petitioners have been directed to consider the applicant only as deemed promoted on the post of CIT on notional basis and payment of any salary with respect to grade of CIT has not been allowed. As per the directions, the pay fixation would be notional and the terminal benefits of the applicant would, of course, be worked out on the basis of last pay that would be fixed on notional basis. This Court finds no reason to interfere in extra-ordinary writ jurisdiction in the just and proper order so passed by CAT in this case. The writ petition is, therefore, required to be dismissed.
In the last, the learned counsel for the petitioner submitted that in any case, for the purpose of carrying out the requirement of the order as passed by the CAT, the process would take some extra time and, therefore, the time allowed by the Tribunal may be enlarged.
Having regard to the circumstances of the case, it is considered appropriate to grant this prayer and to enlarge the time granted by the Tribunal by further two months, i.e., to say that in any case, the petitioners would be expected to carry out the compliance of the order passed by the CAT on or before 27.11.2012. Subject to enlargement of time as above, the petition stands dismissed summarily.