ASHIM KUMAR BANERJEE, J. - (1.) MRINAL Kanti Samaddar, the respondent above named, was working as Law Assistant in Chittaranjan Locomotive Works. He was appointed as such on December 1, 1986. He was promoted as Assistant Law Officer on February 22, 1992 and, subsequently, as Law Officer with effect from June 19, 2000.
(2.) HE started drawing the scale of Law Officer since his promotion to the said post. HE continued to enjoy such scale up to July 1, 2002 when the Railway recalled the benefit on the ground that his original upgradation in the post of Law Officer was irregular since he did not spend eight years non-fortuitous service in the Fidder post. Such benefit was restored to him with effect from May 1, 2004 after completion of eight years period. The Railway initiated a recovery proceeding for the overdrawn pay for three years from 2000 to 2003. Such action of the Railway became subject matter of challenge in a Tribunal application filed by Mrinal being O.A. No.946 of 2006. The Tribunal disposed of the same vide judgment and order dated August 9, 2007 inter alia allowing the application. The Tribunal set aside the order impugned dated January 12/20, 2005 and the communications dated September 21, 2005 and October 23, 2006. The Tribunal directed to re-fix his seniority with effect from February 20, 1992 and give all consequential benefit therefor. Being aggrieved, the Eastern Railway filed the instant application before us which was heard by us on the above mentioned dates. Mr. Ashok Chakraborty, learned senior counsel appearing for the Railways being assisted by Mr. Ashim Gangully, learned advocate contended as follows :- i) The initial entry of Mrinal in 1992 was ad hoc, subject to a regular selection process. He was successful in the promotional process and got the regular appointment in 1995 as Assistant Law Officer. Hence, he should be considered to have promoted to the post of Assistant Law Officer in 1995 and not 1992. He would thus not be entitled to claim seniority and/or scale as on that date (1992). ii) His subsequent promotion to the post of Law Officer should also be considered as regular after 2003 and not 2000 since he was to serve the Fidder post of Assistant Law Officer by giving eight years nonfortuitous service in the said post. Mr. Chakraborty further contended that as per Article 309 of the Constitution the Service Rules were having statutory force and the Railway was within their right to implement such rule correctly and if necessary by correcting their mistake as and when surfaced.
(3.) TO support his contention, he cited the decisions of the Apex Court in the case of Sanjay Kumar Sinha-II and Others VS- State of Bihar and Others reported in 2004 Volume-X Supreme Court Cases Page-734 and 2000 Volume-VIII Supreme Court Cases Page-4 (State of Haryana VS- Haryana Veterinary and Ahts Association and Another). On the issue of right to challenge the action of the Railway while correcting any mistake Mr. Chakraborty cited the Division Bench decision of this Court in the case of Pradip Biswas VS- Union of India and Ors. reported in 2010 Volume-II Calcutta Law Journal (Calcutta) Page-806. He also drew the analogy of right of an ad hoc appointee so elaborately discussed in the Constitution Bench decision of the Apex Court in the case of Uma Devi-III reported in 2006 Volume-IV Supreme Court Cases Page-1. Mr. L.K. Gupta, learned senior counsel appearing for Mrinal, while opposing the application, drew our attention to the relevant annexure to the petition to show that the appointment in the post of Assistant Law Officer as on February 18, 1992 duly gave him the regular scale for the post of Assistant Law Officer. Hence, his subsequent promotion to the post of Law Officer rightly fixed him at the higher scale with effect from April 16/June 15, 2000 and the Railway was not entitled to upset such extension of benefit by the subsequent order passed in 2005. Mr. Gupta contended that Mrinal got the benefit in the post of Assistant Law Officer from 1992. The Railway never altered such situation even after correction of so-called mistake. Hence, the Railway could not disturb his subsequent promotion to the post of Law Officer and the Tribunal was right in upsetting such attempt.;