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IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, RAJEEV MISRA, JJ.
Union of India and Others - Petitioners
Versus
Indrajeet and Others - Respondents
Writ - A No. 61227 of 2009
Decided On : 10-12-2019
Constitution of India – Article 226 – Issue on Promotions – Record reveals that even at the time of earlier judgement passed by this Court in Writ Petition Board's Circular was in existence and operating, but same was not considered by this Court. It appears that same was not brought to the notice of this Court. Thus the above judgement suffers from the vice of per 'ignorantia' & per 'incuriam' or 'sub silentio' and cannot be held to be a binding law.
Facts of the case: Counsel for petitioners contended that prior to promotion of applicants-respondents-1 and 2, on the post of Junior Clerk, which is a Group-C post, there was already, in existence, a Railway Circular –Learned counsel for petitioners submitted that High Court's judgement was passed in ignorance of Board's Circulars as same were not placed before this Court – According to learned counsel for petitioners aforesaid Circulars, cover the field and very much in existence but unfortunately could not be considered – Therefore, aforesaid judgement in Jai Prakash and others (Supra) rendered by this Court is per incuriam – Even otherwise, if the view taken by this Court vide judgement is applied, it covers vacancies which occurred and promotions made against such vacancies
Finding of the court: Counsel appearing on behalf of applicants-respondents-1 and 2, then contended that since benefit of exemption has been granted to other selected candidates therefore, applicants-respondents-1 and 2 are also entitled to same benefit – It is further submitted that some other persons, who did not possess typing skill, have been regularized – Submission so made is wholly misconceived –Court has already discussed the effect of Railway Board's Circular and also Circular Applicants-respondents-1 and 2 cannot claim any right dehors the aforesaid circulars – Applicants-respondents-1 and 2 are claiming perpetuity in illegality – It is well settled that two wrongs will not make one right –Court find that impugned judgment and order passed by Tribunal cannot be sustained
Result: Writ Petition allowed
JUDGMENT :
1. Heard Mr. Rajnish Kumar Rai, learned counsel for petitioners and Mr. Ram Gopal Tripathi, learned counsel representing respondents -1 and 2.
2. This writ petition under Article 226 of Constitution of India has been filed against judgment and order dated 29.05.2009 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as "Tribunal") in Original Application No. 734 of 2006 (Indrajeet and another Vs. The General Manager, North Eastern Railway and others) (hereinafter referred to as OA) whereby aforesaid OA filed by respondents-1 and 2 has been allowed with the following directions:
“7. Accordingly, we find that orders dated 08.06.2006/ Annexure-12, 18.06.1998/ Annexure-4, 14.09.2000/ Annexure-5 AND 22.05.2000/ Annexure-6 cannot be sustained and are, accordingly, set aside, with direction to the respondents to consider the Applicants and all other persons, (who are similarly situated as the applicants), to be considered and treated similarly as jai Prakash, Nagendra Nath, Jai Singh and Ramphal Prasad and others as per order dated 03.06.2006 (Annexure-11-Compilation-II) and should not be compelled to rush to Tribunal/Court.”
3. Case set up by applicants-respondents-1 and 2 is that they were initially appointed on the post of Khalasi which is a Group 'D' Cadre Post and working in North Eastern Railway, Gorakhpur. They were promoted on the post of Junior Clerks which fall in the cadre of Group-C, against vacancies, which occurred up to 31st March, 1997. Selection process commenced vide notification dated 20.08.1997. Applicants-respondents-1 and 2 were selected pursuant to aforesaid notification. Ultimately selections so made were notified on 29.05.1998. However, as applicants-respondents-1 and 2 did not possess typing qualification, their promotions were made provisional.
4. Applicants-respondents-1 and 2 claimed to be be exempted from typing test as per judgement of this Court in Writ Petition No. 65560 of 2005, Jai Prakash and others Vs. Central Administrative Tribunal, Allahabad Bench and others, decided on 17.10.2005. According to applicants-respondents-1 and 2, since similarly situated Group-D, employees namely Jai Prakash, Ramphal Prasad, Jai Singh and Nagendra Nath, who were also promoted as Junior Clerks from Group D, were exempted from typing test, they (applicants-respondents 1 and 2) were also entitled to the same benefit. Petitioners did not agree to aforesaid request of applicants- respondents-1 and 2. Therefore, applicant-respondents 1 and 2 filed O.S. No. 734 of 2006 (Indrajeet and another Vs. The General Manager, North Eastern Railway and others), which has been allowed vide judgement and order dated 29.05.2009. Thus feeling aggrieved by judgement and order dated 29.08.2009 passed by Tribunal, petitioners have now approached this Court by means of present writ petition.
5. Learned counsel for petitioners contended that prior to promotion of applicants-respondents-1 and 2, on the post of Junior Clerk, which is a Group-C post, there was already, in existence, a Railway Circular dated 07.04.1994. Aforesaid Circular provides that typing skill is compulsory for the post of Junior Clerk in the Cadre of Group-C. Such candidates, who get selected for promotion to the post of Junior Clerk in Cadre of Group-C but do not possess typing skill, be granted provisional promotion and shall have to acquire typing skill within two years of promotion. Relevant extract of Circular dated 07.04.1994 reads as under:
“In case of promotion from group 'D' to group 'C' in the ministerial cadre and promotion of clerks as Senior Clerks against LDCE quota, the employees will henceforth be required to acquire the typing skill within a period of two years and their promotion will be provisional subject to acquiring the prescribed typing qualification within the stipulated period. ”
(Emphasis added)
6. The aforesaid Board's Circular was substituted by another Circular dated 20th August, 1997 wherein it was
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