SUPREME COURT OF INDIA
Bhadei Rai
Vs.
Union of India
C.A.No.3154 of 2005
(Ashok Bhan and D.M.Dharmadhikari JJ.)
06.05.2005
D. M. Dharmadhikari, J.
1. Leave, prayed for, is granted.
2. Learned counsel for the appellant and learned Standing Counsel for the Union
of India representing the Railways are heard at length.
3. The appellant started his service in the Railways on daily-rated as Khalasi
in the year 1979. He was given a temporary status on that post with effect from
1.1.1982. According to the Railways, he was granted promotion on 31.3.1985
purely on ad hoc basis to the post of Riggor in the pay scale of Rs.121-1500.
For a long period between 1985 and 1999 the appellant continued to work on the
promoted post of Riggor carrying higher scale of pay. The post of Riggor is
Group 'C' post but the appellant was regularized and absorbed in lower Group
'D' post by order passed on 5.10.1999. Although, he had completed more than
twenty years of service on higher Group 'C' post of Riggor, he was repatriated
to his parent division in Group 'D' post carrying lower scale of pay.
4. Aggrieved by his repatriation to a lower post he filed a petition in the
Central Administrative Tribunal and claimed relief of his regularization in
Group 'C' post in which he had been made to continuously work for a period of
twenty years.
5. The Central Administrative Tribunal by order dated 17.11.1999 rejected the
appellant's claim of his absorption and continuance on the higher Group 'C'
post. It was held by the tribunal that the appellant's substantive post was a
Gangman in Group 'D'. His ad hoc promotion to the higher post of Riggor was on
his posting in the Project. The work in the project having been completed, he
had to be repatriated to his substantive post. The claim of the appellant was
turned down by the tribunal stating that the appellant cannot be regularized in
Group 'C' post as that would affect the legitimate chances of others in Group
'C' post. It was observed that the appellant had to await his turn for regular
promotion from Group 'D' post to Group 'C' post.
6. The appellant challenged the order of the tribunal by Writ Petition under
Article 227 of the Constitution of India in the High Court of Delhi at New
Delhi. The High Court by the impugned common order passed in cases of several
other railway employees upheld the order of the tribunal and dismissed the Writ
Petition. The appellant, therefore, has approached this Court in appeal by
seeking special leave.
7. Learned counsel appearing for the appellant contends that the appellant
having been made to work on the higher post in Group 'C' for a long period of
twenty years with higher scale of pay should not be reverted to Group 'D' post
with lower scale of pay. It is submitted that the appellant's claim for
regularization in Group 'D' post was justified and relief prayed for by him
ought to have been granted by the Central Administrative Tribunal.
8. The learned Standing Counsel appearing for the Railways supported the order
of the tribunal contending inter alia that the appellant worked on a higher
post of Riggor under an order of ad hoc promotion which created no legal right
in his favour to claim regular promotion or regularization, to the detriment of
claims of other employees in the Group 'C' post.
9. After hearing learned counsel for the parties we find that claim of the
appellant deserves to be partly allowed on the basis of judgments of this Court
in a somewhat similar situation in the case of Indra Pal Yadav vs. Union of
India (Writ Petition No.548 of 2000) decided on 13.1.2003. In the case of Inder
Pal Yadav (supra) this Court held that since promotion from Group 'C' to Group
'D' was ad hoc, the order of reversion to the post in parent department cannot
be questioned. This court, however, held that although the order of reversion
from promoted post in Project to substantive post in regular line is
unquestionable, the appellant, in any case, is entitled to pay protection. The
relevant part of the order of this Court in Inder Pal Yadav's case reads thus:
"However, while the petitioners cannot be granted the reliefs as prayed
for in the writ petition, namely, that they should not be reverted to a lower
post or that they should be treated as having been promoted by reason of their promotion
in the projects, nevertheless, we wish to protect the petitioners against some
of the anomalies which may arise, if the petitioners are directed to join their
parent cadre or other project, in future. It cannot be lost sight of that the
petitioners have passed trade tests to achieve the promotional level in a
particular project. Therefore, if the petitioners are posted back to the same
project they shall be entitled to the same pay as their contemporaries unless
the posts held by such contemporary employees at the time of such re-posting of
the petitioners is based on selection. *
Additionally, while it is open to the Railway Administration to utilize the
services of the petitioners in the open, they must, for the purpose of
determining efficiency and fitment take into account the trade test which may
have been passed by the petitioners as well as length of service rendered by
the petitioners in the several projects subsequent to their regular
appointment."
10. In the case of the present appellant, the aforesaid directions squarely
apply. The appellant had to undergo a screening test in the year 1995 and
in the result declared in 1997, the appellant had qualified. A long period of
twenty years has been spent by the appellant on a higher post of Riggor in
group 'C' post. In such circumstances, he is legitimately entitled to the
relief of pay protection and consideration of his case for regular appointment
to Group 'C' post on the basis of his long service in Group 'C' post.
11. Relying, therefore, on the decision of this Court in the case of Inder Pal
Yadav (supra) the present appeal is partly allowed by modifying the orders of
the Central Administrative Tribunal and of the High Court. It is directed that
the appellant's pay which he was last drawing on the date of his repatriation
from Group 'C' post to Group 'D' post, shall he protected. It is further
directed that appellant shall be considered for promotion to Group 'C' post in
his turn with others, with due regard to the fact of his having passed the
screening test and his work and performance for long twenty years on the post
of Riggor in Group 'C'.
12. The appeal, thus, succeeds to the extent indicated above. In the
circumstances, the parties shall bear their own costs.