- (1.) ISSUE notice to all the respondents. Steps within a week. All the respondents will file counter affidavit within four weeks. The petitioner will have one week, thereafter, to file rejoinder affidavit. List on 30th January, 2012.
(2.) IT is submitted by Shri Tarun Verma that the judgment of the Central Administrative Tribunal dated 12.4.2011 was passed in ignorance of the Supreme Court judgment in Union of India v. Pushpa Rani & ORs., (2008) 9 SCC 242 in which it was held that ordinarily the upgradation of a post does not involve selection but in some of the service rules and/ or policy framed by the employer for upgradation of the post provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word 'promotion' means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. The Railway Board's Circular dated 9.10.2003 affecting restructuring of posts on the basis of functional, operational and administrative requirements involved promotion on additional posts becoming available as a result of restructuring. The Supreme Court distinguished the judgment in V.K. Sirothia, (2008) 9 SCC 283 in which simple upgradation of the post was involved. The Supreme Court delivered judgments in Union of India v. Pushpa Rani & ORs. on 29th July, 2008. The judgment was not placed before the Tribunal by the counsel appearing for the railways. The judgment in any case in ignorance of the law laid down by the Supreme Court suffers from error apparent on the record, which should have been considered by the Tribunal.
(3.) WE find substance in the contention of Shri Tarun Verma that the Tribunal should not have ignored the judgment of the supreme Court in Union of India v. Uma Rani and held that since the matter was decided on merits, a review was not maintainable and left the matter to be decided by the High Court.;