- (1.) These two writ applications W.P.C.T No.140 of 2009 and W.P.C.T No.328 of 2008 arose out of challenge of the self -same order dated 28th November, 2008 passed by the learned Central Administrative Tribunal, Kolkata Bench, in original application No.803 of 2003 filed by one Sri Girish Kumar assailing the decision of Departmental Promotion Committee rejecting his candidature for the promotional post of Higher Administrative Grade, hereinafter referred to as HAG for brevity, by relying upon down -graded and non -communicated annual confidential reports for brevity referred to as ACR, of the years 2002 -2003 to 2005 -06 along with other factors due to lack of qualifying bench mark. Learned Tribunal below allowed the said original application by the order dated 28th November, 2008 directing the respondents to consider the candidature of applicant afresh for selection and recommendation to the promotional post of Higher Administrative Grade by ignoring the non -communicated and down - graded ACRs as mentioned in the said order within 4 months from the date of communication of the order.
(2.) Assailing said order, W.P.C.T No.140 of 2009, a writ application, was filed by the Union of India represented by Secretary, Ministry of Railway, Railway Board, Rail Bhawan, Raisina Road, New Delhi as writ petitioner, praying following reliefs which read such: i) A writ of and/or in the nature of Mandamus be issued declaring that the impugned judgement and order dated 28th November, 2008 passed by the learned Central Administrative Tribunal, Calcutta Bench in O.A. No.803 of 2007 (Girish Kumar Vs. Union of India and Ors.) is contrary to the law and the same should not be given effect to ; ii) A writ of and/or in the nature of certiorari be issued directing the respondent to produce all relevant papers relating to this case before this Hon'ble Court so that conscionable justice may be administered by quashing the impugned judgement and order dated 28th November, 2008 passed by the learned Central Administrative Tribunal, Calcutta Bench in O.A. No.803 of 2007 (Girish Kumar Vs. Union of India and Ors.) iii) A writ of and/or in the nature of Prohibition be issued prohibiting the respondent from taking any steps in terms of the said impugned order dated 28th November, 2008 passed by the learned Central Administrative Tribunal, Calcutta Bench in O.A. No.803 of 2007 (Girish Kumar Vs. Union of India and Ors.) ; iv) Rule NISI in terms of prayers (a), (b) and (c) above and to make the Rule absolute, if no cause is shown and/or insufficient cause has been shown; v) Stay of operation of the order dated 28th November, 2008 passed by the ld. Central Administrative Tribunal in O.A. No.803 of 2007 (Girish Kumar Vs. Union of India and Ors.) till the disposal of the writ petition and to allow the petitioners to implement the said panel already prepared; vi) Ad -interim order in terms of prayer (e) above; vii) Any other or further order/orders be passed as this Hon'ble Court may deem fit and proper.
(3.) Assailing said order of Tribunal, another writ application W.P.C.T No.328 of 2008 was filed by the applicant of original application Sri Girish Kumar praying the following reliefs: a) Dispensing with compliance of the Writ Rules of this Hon'ble Court in so far as service of notice is concerned; b) Issue of a Writ of Mandamus and/or writ in the nature thereof commanding the respondent authorities not to give any effect or further effect to the panel prepared by the Departmental Promotion Committee till the case of the writ petitioner is considered afresh for Higher Administrative Grade against the vacancies 2007 -2008 and the periods subsequent thereto; c) Issue of a writ of mandamus and/or writs in the nature thereof commanding the respondents not to take any action in respect of the Panel prepared by the Departmental Promotion Committee excluding the nature of the petitioner with regard to Higher Administrative Grade against the vacancies of 2007 -2008 and the periods subsequent thereto; d) Issue a writ in the nature of Certiorari calling upon the Registrar, Central Administrative Tribunal, Calcutta Bench, to transmit and produce the records of the O. A. No.803 of 2007 as also the respondent authorities to produce before Your Lordships all the relevant records relating to selection made to Senior Administrative Grades (SAG) for promotion to Higher Administrative Grade (HAG) against the vacancies of 2007 -08 so that upon perusing the same conscionable justice may be done by and between the parties; e) Issue of a writ of and/or in the nature of Prohibition prohibiting the respondents in any manner whatsoever from taking any step in respect of the panel prepared by the Departmental Promotion Committee for the Higher Administrative Grade against vacancies of 2007 -08 and the periods subsequent thereto; f) Issue of any other appropriate writ and/or order of direction under Article 226 (1) of the Constitution of India; g) Issue Rule NISI in terms of prayers (b) (c) (d) (e) and (f) above; h) Stay of the operation of the action taken by the respondents in furtherance to the panel prepared by the departmental promotion committee with regard to Higher Administrative Grade against the vacancies of 2007 -08 and the periods subsequent thereof; i) Injunction restraining the respondents and each one of them and their servants and agents from taking any steps in further to the any panel prepared by the departmental promotion committee for vacancies of 2007 -2008 and subsequent thereof with regard to Higher Administrative Grade, till the case of the petitioner is considered afresh; j) Interim order in terms of prayers (h) and (I) above; k) To make the Rule absolute; l) Costs. Initially said writ applications were heard at the motion stage by different Division Bench of Calcutta High Court resulting conflicting interim orders. To resolve the conflict appropriate order dated 27th August, 2009 was passed by us which read such: " Re: CAN 5098 of 2009 Heard the learned Advocates appearing for the parties. The issue involved herein as to whether non -communicated down graded ACR could be considered by the Departmental Promotional Committee while considering the promotional issue to the Higher Administrative Grade for which the respondent's case was considered. Learned Tribunal answered the point in favour of the respondent by the impugned order, challenging which this writ application has been filed. The respondent also has filed another writ application being W.P.C.T 328 of 2008 assailing the said order of the learned Tribunal below on the grievance that learned Tribunal below ought to have passed an order restraining promotion of other candidates without considering the respondent's candidature first in terms of the order of the Tribunal. In the said writ application already there is an order restraining the respondent from providing any promotion in the language "no step for appointment to the promotion post to be given". In this writ application an interim order was passed in terms of prayer (e) on 20th May, 2009 by the Division Bench (coram: Amit Talukdar and Tapas Kumar Giri, JJ). This application has been filed seeking modification of that order. The order passed in this writ application was with a rider "in the meantime". Learned advocate Mr. Basu submits that, it clearly reflects the fact that the interim order was for the limited period for two weeks after summer vacation in terms of the said order and accordingly it has already been expired. Since there is another order passed by another Division Bench (coram Kalyan Jyoti Sengupta and Prasenjit Mandal, JJ) on 24th December, 2008, which subsequently was extended by Bench (coram: Amit Talukdar and Tapas Kumar Giri, JJ) in the writ application filed by the respondent as already quoted and as the said writ application has been directed to be heard along with this writ application by the order dated 20th May, 2009, we are modifying the interim order in terms of the order passed by the earlier Division Bench (coram Kalyan Jyoti Sengupta and Prasenjit Mandal, JJ) for a limited period of three weeks from this date. Application C.A.N 5098 is allowed to that extent. Let this matter along with W.P.C.T. 328 of 2008 be posted for hearing on 2nd September, 2009 as "Fixed Item". This order is passed to avoid any conflict in between the order dated 20th May, 2009 passed in this writ application earlier and the order passed in the writ application W.P.C.T. 328 of 2008. The effect of the order as passed today, is prospective. Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned advocates appearing for the parties on usual undertakings.";