Important Point
An employee who had been promoted to a post cannot be reverted back to lower grade without giving him opportunity of being heard even if the promotion was allegedly given due to mistake of administration in reckoning his service tenure.

Headnote:(i) Service Law-Reversion to lower grade-Appellant was appointed in 1964 as Substitute Khalasi in Loco Department-Declared surplus in 1972 and transferred to carriage and wagon department-Passed Semi-skilled Fitter test and was promoted to that post-Passed trade test and was promoted as Skilled Fitter on 9.5.1979-Reverted by order dated 18.4.1980 to post of Khalasi - Departments case was that period between 1964 to 1972 who he was declared could not have been taken into account but wrongly given credit to call him for trade test or he being a fresh Khalasi in 1972-Service record reveals appellant was confirmed as Khalasi in 1965 itself-No mistake committed in counting his service from 1965-Even otherwise reversion could not have been made unilaterally without opportunity of being heard given to appellant-Appellant entitled to be put back to duty on post of Fitter with all consequential benefits.
       Held : The respondents, curiously, overlooked the Service Record of the appellant which contained material documents to indicate that the appellant had already acquired the permanent status. These documents could not have been legally ignored but the respondents, for reasons best known to them, did otherwise. We cannot but categorise their conduct as wholly arbitrary and bad in law. (Para 16)
       Then there is the endorsement made in the Service Book that he is confirmed as Coal Khalasi with effect from 11.4.1965. Reading these documents together, it is apparent that though the appellant was initially appointed as Substitute Khalasi in 1964, he acquired temporary status by virtue of the order dated 30.3.1965 and permanent status with effect from 11.4.1965 as per the entry contained in his Service Book. Having perused the original record and having found that the appellant, who was initially appointed as Khalasi in 1964, was given temporary status in 1965 and was confirmed from 11.4.1965, we are of the positive opinion that it was not a case of mistake on the part of Administration, as contended by Mr. Goswami, but they had rightly given the benefit of previous service to the appellant who was, as a consequence thereof, rightly called for trade tests for the posts of Semi-skilled Fitter and Skilled Fitter and having passed those tests was rightly promoted on those posts. There is, however, a limited reservation. Whether the service rendered by the appellant from the date on which he was appointed as Substitute Khalasi up to the date on which he acquired ‘permanent’ status would be counted for seniority or not is a question which is to be decided by the authorities in the light of the relevant provisions of the Service Rules contained in the Railway Establishment Code or the Manual or Circular letters of the Railway Board. We may, however, make it clear that we are not deciding any dispute of seniority as between the appellant and those who were already working in the Carriage and Wagon Department when the appellant came there. (Paras 9 & 12)
       There is yet another infirmity in the impugned order of reversion. The appellant had been allowed benefit of service rendered by him as Coal Khalasi in the Loco Department from 1964 to 1972 as that period was counted towards his seniority and it was on that basis that he was called for the trade tests which the appellant has passed and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by him from 1964 to 1972 was intended to be withdraw and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant. The appellant having earned two promotions after having passed the trade tests, could not have been legally reverted two steps below and brought back to the post of Khalasi without being informed that the period of service rendered by him from 1964 to 1972 could not be counted towards his seniority and, therefore, the promotion orders would be cancelled. In a situation of this nature, it was not open to the respondents to have made up their mind unilaterally on facts which could have been shown by the appellant to be not correct but this chance never came as the appellant, at no stage, was informed of the action which the respondents intended to take against him. (Para 15)
       Held consequently, that the appellant shall be put back to duty on the post of Fitter will all consequential benefits.
       (ii) Central Administrative Tribunals Act, 1985-Section 20-Limitation for filing claim petition-Condonation of delay-Suit filed prior to coming into force of Act-Decreed - Appeal thereagainst-Transfer to Allahabad Bench of Tribunal-Return of plaint on ground suit had not been instituted in proper court-Petition filed thereafter before Chandigarh Bench-Delay of 1½ month-Refusal to condone delay by Tribunal-Not justified-Suit originally filed in time-Delay condoned. (Paras 17 to 20)

Judgment

S. Saghir Ahmad, J.-Leave granted.

The appellant was appointed as Khalasi under the Loco Foreman, Ambala Cantt and was posted as Coal/Fuel Khalasi at Nangal Dam where he worked upto 15th of September, 1972. On 16th of September, 1972, he was spared and transferred to Carriage and Wagon Department of Northern Railway and was posted as Khalasi at Khanalampura Goods Yard, Saharanpur, where he joined on 20.9.1972. He was again transferred to Ambala Cantt on 11.6.1978 where he passed the trade test for the post of Semi-skilled Fitter and was promoted to that post. He was further promoted, after passing the requisite trade test, as Skilled Fitter on 9.5.1979.

2. By an order dated 18.4.1980, the appellant was reverted to the post of Khalasi in Carriage and Wagon Department. It was this order which was challenged by the appellant in Regular Suit No. 294 of 1980 which was decreed by the VIIIth Additional Munsif, Saharanpur, on 13.11.1981. This judgment was challenged in appeal, filed by the Railway Administration, in the court of the District Judge, Saharanpur which was later transferred to the court of IVth Additional Civil Judge, Saharanpur. While the appeal was pending in that court, Central Administrative Tribunals Act, 1985 came into force and the appeal stood transferred to the Central Administrative Tribunal, Allahabad. The Tribunal allowed the appeal and set aside the judgment and decree passed by the trial court as it was of the opinion that the suit had not been filed in the proper court and consequently directed the plaint to be returned for presentation to the proper Bench of the Tribunal for a fresh decision.

3. The appellant then filed the claim petition under Section 19 of the Central Administrative Tribunals Act, 1985 before the Tribunal at Chandigarh which, by its judgment dated 28.11.1995, dismissed the petition. It is this judgment which is assailed in appeal before us.

4. The respondents had contested the suit as also the Claim Petition mainly on the ground that the appellant was initially appointed as Substitute Khalasi who later acquired the temporary status. In 1972, when the contract system was introduced in the Loco Shed, he was declared surplus and was absorbed in Carriage and Wagon Department as a Khalasi. The period of service rendered by the appellant from 1964, when he was first appointed as Khalasi, to 1972 when he was shifted to Carriage and Wagon Department as Khalasi, was wrongly counted towards his seniority and consequently he was not entitled to be promoted either as Semi-skilled Fitter or Skilled Fitter although he had passed the requisite trade tests for both the posts. When this mistake was noticed, the reversion order dated 18.4.1980 was issued and he was again posted as Carriage and Wagon Khalasi. The claim was also contested on the ground of limitation.

5. Learned counsel for the appellant has contended that the finding recorded by the Tribunal that the appellant having been declared surplus at Ambala Cantt in 1972, was not entitled to count the previous service from 1964 to 1972 towards his seniority, was erroneous and was liable to be set aside as the appellant had been confirmed on the post of Coal Khalasi and having acquired permanent status, there was no question of his being declared surplus. It was on account of his permanent status that he was shifted to Carriage and Wagon Department as Khalasi without his service having been terminated by any specific order. It is also contended that the assertion of the respondents that the promotion orders were made by mistake was wholly wrong as the appellant besides having passed the trade tests for the promotional posts of Semi-skilled Fitter and Skilled Fitter was entitled to count the entire period of service from 1964 to 1972 as Coal Khalasi towards his seniority specially on account of the fact that he was already confirmed on that post with effect from 11.4.1965.

6. Learned counsel for the respondents, on the contrary, contende

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1998 Supreme(SC) 1145

Important PointAn employee who had been promoted to a post cannot be reverted back to lower grade without giving him opportunity of being heard even if the promotion was allegedly given due to mistake of adminis­tration in reckoning his service tenure.

Important Point
An employee who had been promoted to a post cannot be reverted back to lower grade without giving him opportunity of being heard even if the promotion was allegedly given due to mistake of administration in reckoning his service tenure.