R.C. Misra, Member (A) - (1.) THIS Original Application has been filed by the applicant, who is working as Chief Commercial Inspector in the East Coast Railways at Bhubaneswar praying for the following relief: (i) To quash the impugned order under Annexures 5, 10, 11, 12, 15 and 16 as the same are bad, illegal, arbitrary and mala fide in law; and (ii) direct/order/command the respondents No. 2, 3, & 5 to declare the applicant as Senior to the respondent No. 7 retrospectively with all service benefits. (iii) pass such other order(s) as would be deemed fit and proper in the facts and circumstances of the case. In a nut shell the facts of the case are that the applicant was appointed as Commercial Clerk on 16.4.1977 and was promoted as Senior Clerk (Coaching) on 1.1.1984. Respondent No. 7 was appointed as Commercial Clerk on 17.10.1981 and was promoted as Senior Commercial Clerk (Goods) on 25.9.1987 long after the applicant's promotion. The applicant had opted for Commercial Clerk (Coaching) and the respondent No. 7 had opted for Commercial Clerk (Goods). Therefore, the promotional avenues were different in respect of the applicant and respondent No. 7. Respondent No. 7 was officiating as Commercial Controller when he was selected for the post of Senior Research Development Inspector (in short SRDI) which is an ex -cadre post in the scale of Rs. 1600 -2600, subsequently revised to Rs. 5500 -9000/ -. There was a stipulation that the holder of this post will have no right for confirmation and would retain his lien in the parent post. On 28.7.1994, the respondent -Department brought out a circular for filling up of the post of Commercial Inspector in the scale of Rs. 1400 -2300/ - wherein it was laid down that both Commercial Clerks (Goods & Coaching) in the scale of Rs. 1200 -2040 of the Commercial Department were eligible for selection. Both the applicant and respondent No. 7 applied for the aforesaid post of Commercial Inspector, Gr. III, but the respondent No. 7 did not reach the zone of consideration. The applicant having faced the written and viva voce test was promoted to the post of Commercial Inspector, Gr. III on 31.1.1995. Respondent No. 7 who was earlier appointed as Senior Research Development Inspector, (SRDI) an ex -cadre post, was promoted in his parent line as Head Good Clerk. Further, on 27.11.1998 a decision was reached by the respondent -Department after consultation with the recognized unions of the Railways to open a channel of promotion to SRDI/RDI for further advancement of inspectorial staff of the Commercial Department. While the matter stood thus, respondent No. 7 was served with a letter about his poor performance in his job on 13.7.1999 and subsequently, an order of repatriation dated 16.7.1999 was also served on respondent No. 7 for its immediate implementation. But on 20.7.1999 the aforesaid order of repatriation was cancelled. Thereafter, three OAs were filed before this Tribunal. O.A. No. 370/99 was filed by respondent No. 7 with a prayer to quash Annexure -7 of the O.A. which was the order of repatriation dated 16.7.1999 and to implement the order of cancellation of the order of repatriation vide Annexure -8. O.A. No. 554/99 was filed by the present applicant for quashing of the order dated 27.11.1998 (Annexure -A/5) regarding the opening of channel of promotion to the SRDI/RDI and also quashing of Annexure -8 which has been explained above. O.A. No. 386 of 1999 was filed by one D. Gurudiha for quashing of Annexure -5 and Annexure -8. All the three OAs were heard and disposed of by the Tribunal through a common order dated 3.8.2000. The Tribunal held that the post of SRDI has not been en -caderised as Commercial Inspector, Gr. III. Only a channel of promotion has been opened for each of them who are in the scale of Rs. 5000 -8000 for promotion to the post of Commercial Inspector, Gr. II in the scale of Rs. 5500 -9000/ -. The Tribunal further held that order dated 20.7.1999 (Annexure -8) cancelling the order of repatriation which had proceeded on the assumption that the incumbent of the ex cadre post of SRDI/RDI would be merged in the cadre of Commercial Inspector was without any basis. Based upon these findings, the Tribunal rejected O.A. No. 370/99 and partly allowed O.A. No. 386 and 554 of 1999. The prayer of the applicant in O.A. No. 554/99 for declaring that the decision to count ex cadre service experience of respondent No. 7 in Commercial line was illegal was rejected because no order was passed by the departmental authorities to count such experience towards the further promotion of respondent No. 7. The repatriation of respondent No. 7 was upheld and its cancellation vide Annexure -8 was set aside by the Tribunal.
(2.) SUBSEQUENTLY , respondent No. 7 challenging the aforesaid orders of the Tribunal filed OJC Nos. 7493, 8546 and 8548 of 2000 before the Hon'ble High Court of Orissa. Applicant also filed O.J.C. No. 11847 of 2000 before the Hon'ble High Court. During pendency of the aforesaid Writ Petitions in the Hon'ble High Court, the respondent -Department issued the following three official orders. In view of the orders which were issued by the respondent -Department as stated above, respondent No. 7 did not press the writ petitions before the Hon'ble High Court and accordingly, the Hon'ble High Court vide order dated 29.11.2006 disposed of the writ petitions giving liberty to the applicant to pursue the matter as per law. In the meantime, the applicant had filed a representation before the respondent -Department challenging the orders, as stated above, issued by them and this representation was pending. After the WPs were disposed of, the applicant filed O.A. No. 894 of 2006 challenging those orders. Another OA was also filed by another affected employee in O.A. No. 31/2007. Both the OAs were heard and disposed of by a common order of this Tribunal dated 21.12.2009. After discussing the matter at length the Tribunal directed the respondents to consider and dispose of the representation taking into consideration the earlier judgment of this Tribunal and also the orders passed by the Hon'ble High Court. But, respondent No. 3 vide order dated 23.3.2010 (Annexure -15) rejected the representation on the ground that the above mentioned orders had been passed based upon the policy decision taken by respondent No. 2.
(3.) THE applicant has pleaded that in view of withdrawal of the writ petitions by respondent No. 7, the judgment of the Tribunal dated 3.8.2000 stands and therefore, the respondent -Department have committed an illegality by passing orders at Annexures -10, 11 and 12 in favour of respondent No. 7. The orders passed by respondent -Department run contrary to the judgment of this Tribunal. This Tribunal in their order dated 21.12.2009 had directed the respondents that the representation pending before them should be decided taking into account the previous judgment of the Tribunal as well as the orders passed by the Hon'ble High Court of Orissa. The respondent -Department have not properly complied with the directions of this Tribunal since without considering the previous orders of the Tribunal as well as the Hon'ble High Court of Orissa they have rejected representation on the ground of a so called policy decision of respondent No. 2 and passed the impugned order vide Annexure -15. Respondent No. 3 in the speaking order has mentioned that the policy decision of the CPO cannot be challenged, which according to applicant, is totally unauthorized since only the Railway Board can take such a policy decision. The further ground of challenge made by the applicant is that the Tribunal had already held that the order dated 27.11.1998 (Annexure -A/5) is not an order of en -cadrement of SRDI to be tagged with Commercial Inspector, Gr. II but only an order for opening a channel of promotion for CMI -III in the scale of Rs. 5000 -8000/ -. But the authorities had allowed respondent No. 7 to work as SRDI in the scale of Rs. 5000 -8000 vide order dated 23.10.2002 without repatriating him to his parent cadre as Head Goods Clerk. This has taken place during pendency of various litigations and therefore, was illegal with regard to the settled position of law as well as it amounts to a contemptuous action against the orders of this Tribunal. Besides, it has been stated that the authority had also shown undue anxiety to pass the orders while litigations in the High Court of Orissa as well as in the Tribunal were pending. The allegation made by the applicant is that the authorities have willfully and intentionally violated the orders of this Tribunal dated 3.8.2000 which had not been set aside in the higher forum. In view of withdrawal of the writ petitions, the orders of this Tribunal stand as per the submission made by the applicant in this O.A. The applicant has also vigorously pleaded that placing respondent No. 7 higher than the applicant in the seniority list is bad in the eyes of law.;