Bhaskar Bhattacharya, ACJ. - (1.) This application under Article 226/227 of the Constitution of India is at the instance of one of the respondents in an application under section 19 of the Administrative Tribunals Act ("Act") and is directed against order dated January 2, 2007 passed by the Central Administrative Tribunal, Calcutta Bench, in O.A. No. 73 of 2006 heard analogously with O.A. No. 164 of 2006, thereby allowing those original applications and setting aside the promotion of the present writ petitioner to the post of the Senior Deputy Director General (Scientific and Technical Support Service) of the Geological Survey of India ("G.S.I."). Consequently, the order dated 29th November, 2004 and other order dated 30th December, 2005 were also quashed. The employer was directed to act strictly according to the Rules prevalent at the time when the vacancy arose by convening a new D.P.C. with further direction that such exercise should be completed within a period of ninety days from the date of communication of the said order.
(2.) Being dissatisfied, the respondent No. 5 before the Tribunal, whose appointment was set aside, has come up with the present writ application.
(3.) The facts giving rise to filing of the present writ application may be summarized thus: (a) One Dr. Mrinal Kanti Mukhopadhyay, the respondent No. 5 herein, working as Senior Deputy Director General (Operations) G.S.I, filed O.A. No. 73 of 2006 before the Tribunal thereby challenging the action of the employer to consider Shri Prakash Murlidhar Tejale (hereinafter called Tejale), the petitioner before us, for the post of Director General, G.S.I by holding a D.P.C. in 2005 and showing him to be the only eligible officer for promotion to the said post. His allegation was that Tejale was not at all eligible to be considered for the said post in terms of the Recruitment Rules as he originally belonged to the Geophysics Instrumentation Cadre and was last holding the post of the Deputy Director General (Geo-Physics Instrument) wherefrom there could be no promotion to the post of Senior Deputy Director General (Scientific and Technical Support Service). According to the applicant, he was holding the post of Senior Deputy Director General (Operations) and being a member of the mainstream of Geological Cadre, he had the eligibility for consideration of promotion to the post of Director General. He alleged that he was not considered to the post of Director General, G.S.I, on the ground that Tejale was promoted to the grade of Senior Deputy Director General at an earlier point of time though in fact the latter could not have been considered for promotion to the grade of Senior Deputy Director General (Scientific and Technical Support Services). (b) In the past, the respondent No. 5 had filed another application under section 19 of the Act being O.A. No. 1069 of 2005 which was disposed of by the Tribunal by its order dated September 30, 2005 by directing the employer to complete the D.P.C. proceeding for filling up the post of Director General, G.S.I, and the connected process within a period of three months from the date of communication of that order in accordance with law, keeping in view, the various Government orders and instructions including that of DOPT contained in the letter dated October 25, 2004. The Tribunal further directed the employer not to disturb the interim arrangement made for looking after the duties to the post of D.G., G.S.I, by the respondent No. 5. The Tribunal, however, did not' decide the question of seniority in dispute and left it to the Government to decide in a fair and just manner. (c) By filing the subsequent application before the Tribunal, out of which the present writ application arises, the respondent No. 5 contended that the promotion of Tejale to the grade of Senior Deputy Director General was illegal as the post of Deputy Director General (Geo- Physics Instrumentation) is not a feeder post for promotion as would appear from the relevant Recruitment Rules which were amended by the Government vide notification dated 24th May, 2004. He, therefore, prayed for quashing of the order of promotion dated October 11, 2004 by which Tejale was granted promotion to the post of Senior Deputy Director General (Scientific and Technical Support Service). He also prayed for a direction upon the employer to confer on him, the additional charge to the post of D.G., G.S.I. (d) The employer and the present writ petitioner had opposed the application by filing separate reply wherein they took the point of limitation by pointing out that Tejale having been promoted on 11th October, 2004 to the post of Senior Deputy Director (Scientific and Technical Support Service), the application under section 19 of the Act was filed long after the period of one year as prescribed under section 21 of the Act and as such, the same should be dismissed as barred by limitation. It was further contended that the applicant without availing all the departmental remedies available to him could not approach the Tribunal. (e) On the merit of the case, the employer as well as the present writ petitioner contended that the stream of Geo-Physics and Engineering in the G.S.I, had been merged on the basis of recommendation of the Fifth Central Pay Commission and in paragraph 76.9 of the said report, the Commission had recommended the merged of the disciplines of the Geo-Physics Instrumentation and Mineral Physics cadre to only one discipline i.e. General Physic and similarly, the Discipline of Electrical Engineering and the Mechanical Engineering were advised to be merged to one discipline i.e. Engineering. They further contended that such concept had been taken into consideration for the promotion to the post of Senior Deputy Director General (Scientific and Technical Support Service) and had also been notified in the Recruitment Rules for the post of Senior Deputy Director General (Scientific and Technical Support Service) along with existing Rules for promotion to the post of Director General by making Senior Deputy Director General (Operations) and Senior Deputy Director General (Scientific and Technical Support Service) as feeder cadres. They also contended that as Tejale had more than five years combined service in the Senior Deputy Director General (Scientific and Technical Support Service) and Deputy Director General (Gee-Physics) i.e. the merged discipline of Geo-Physics Instrumentation and Mineral Physics as on 1st January, 2005, the crucial date, being the 1st January, of the year of vacancy, he had satisfied the eligibility condition of the Recruitment Rules. (f) It appears from the record that the respondent No. 5 retired with effect from 31st March, 2006 and few days earlier, one Bijan Kumar Sana, the respondent No. 6 herein, filed a separate application thereby praying for the self-same relief claimed by Dr. Mukhopadhyay and the said application gave rise to Original Application No. 164 of 2006.;