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Date of Judgment: 04.10.2012
----------------------------------------------------------------------------------------------- B.K.MISRA, J The petitioner, a peon working under the Senior D.M.E.
(Diesel), South Eastern Railway, Bandhamunda (opposite party no.3) was initially appointed as Khalasi (DCH) at Diesel Loco, Bandhamunda on 27.7.1979 and had passed the medical test i.e., physical fitness test in B-I category. The opposite party no.4 was also appointed as Khalasi along with the petitioner who had passed the physical fitness i.e. the medical test in C-I category. The petitioner worked as Khalasi Group-D for more than fifteen years and when the railway administration in the year 1994 for filling up of the post of Diesel Assistant Driver called for options the petitioner applied for the said post along with others. But the selection to the said post was cancelled. It is the case of the petitioner that he was sent for medical examination before the final selection for the post of Diesel Assistant Driver took place and in the said medical examination the petitioner was declared fit in C-I category and on that basis he was reverted from Khalasi (DCH) to the grade of Peon and the petitioner accepted the said post of peon and has been working as such with effect form 10.10.1994 till the date of filing of the writ petition on 25.2.2005 (Annexure-1). Regarding the reversion in rank the petitioner represented to the authorities but the authorities paid a deaf ear to that. Later on, on 13.4.2000, when 42 Khalasis including opposite party no.4 were promoted to the post of Fitter Grade-III, the petitioner being aggrieved made representation to opposite party no.3 on 15.9.2000 and prayed for his promotion to the post of Fitter Grade-III. But when that was not heeded to he sent another representation on 3.1.2001 (Annexure-2). Despite such representation of the petitioner when no action was taken the petitioner approached the Central Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A,No 361 of 2001 but the same was dismissed. Thus, being aggrieved by such order of the Tribunal the petitioner has approached this Court for quashing the order of the Tribunal dated 14.10.2004 under Annexure-3 with a further prayer to direct the opposite parties to consider the case of the petitioner for promotion to the post of Fitter Grade-III.
2. The opposite party no.3 in his counter averred that both the petitioners as well as opposite party no.4 passed the B-1 medical examination before their initial appointment, but the petitioner was de-categorised in C-1 medical classification when he was sent for medical examination for the post of Diesel Assistant Driver and resultantly the petitioner was offered alternative job as he could not have been kept as Artisan/Technical category of Khalasi having found unfit in B-I category. It is also their positive stand that opposite party no.4 was promoted to the post of Fitter Grade-III as he was Khalasi having passed in B-1 medical category in the year 1981. It is also his case that the petitioner when applied for Diesel Assistant Driver which requires A-1 medical category he was sent for medical examination before selection in which the petitioner was declared fit in C-I category and therefore reversion of the petitioner to the post of Peon is not illegal as because he was found fit in C-I category and the petitioner cannot have any grievance with regard to the promotion of opposite party no.4 to the post of Fitter Grade-III as he had passed B-I medical category and there is no change in his medical classification. Accordingly, it is prayed that when due procedure has been followed with regard to the reversion of the petitioner to the post of Peon as he was found fit in C-I medical category, the writ petition having no merit be dismissed.
3. We have heard the learned counsel for the petitioner as well as opposite party no.3. Perused the impugned order at Annexure-
3. From the un-controverted facts on record, it is found that though the petitioner and opposite party no.4 were initially appointed as Khalasi on 27.7.1979 attached to Diesel Loco, Bandhamunda under South Eastern Railway, the petitioner in the year 1994 applied for the post of Diesel Assistant Driver when options were called for by the Railway Administration and before the final selection to the post of Diesel Assistant Driver he was asked to appear at the medical test and in the said test the petitioner was declared fit in C-I category and on that basis he was reverted from Khalasi (DCH) to the post of Peon with reduced scale of pay and the petitioner accepted the said post and continued to function as such in the said post with effect from 10.10.1994 till the date of his filing the writ petition. Learned Tribunal having considered the said fact that the petitioner did not challenge his reversion and when he was declared fit in C-I medical category he does not have any right to question the appointment of opposite party no.4 and accordingly disposed of the said O.A. observing that it was without any merit.
4. We find that the petitioner himself in Para-6 of his writ petition has admitted that when he was declared fit in C-I category he was reverted from the post of Khalasi (DCH) to the post of Peon with reduced scale of pay and the petitioner accepted the said post and continuously worked in that post with effect from 10.10.1994. The petitioner further admitted in his writ petition in Para-8 that only when he came to know that opposite party no.4 has been promoted to the post of Fitter Grade-III on 13.4.2000 he first sent representation to opposite party no.3 as at Annexure-1 dated 15.9.2000 and thereafter filed a second representation before the opposite party no.3 as at Annexure-2 on 3.1.2001. There is no material on record to show that the petitioner had challenged his order of reversion to the post of Peon from the post of Khalasi and about his medical fitness and decategorisation. No material could be produced before us to show that the petitioner had ever represented to the higher authorities challenging the order of reversion. Law is quite well settled that once the order is passed against a person and without raising any objection when that person submits to the jurisdiction or complies with such order he cannot be permitted to challenge the said order for the reason that such conduct of that person would disentitle him for any relief before the Court. Laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person is not vigilant of his rights and acquiesces with the situation, his writ petition cannot be heard after a couple of years. In the instant case, the present petitioner having accepted the fact of reversion of his post of Peon from Khalasi when after medical examination he was found fit in C-I medical category he having joined the post with effect from 10.10.1994 and continued to function as such till the date of filing of the writ petition or till filing of representation in 2000-2001 it would be unjust to give the petitioner remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it. If the petitioner would have been vigilant he could have taken shelter in accordance with law challenging the fact of reversion and when it appears that the petitioner did not rise to the occasion, the Court would be very slow in granting the relief as is being prayed for. (2006) 11 S.C.C. 464, U.P.Jal Nigam and Another -v- Jaswant Singh and Another, AIR 1997 S.C. 2349, State of Punjab and others -v- Krishan Niwas.
5. Thus, in the facts and circumstances of this case and keeping in mind the well established cannons of law, when the Tribunal in the impugned order did not interfere in the matter, we find no substance in the case of the petitioner to interfere with that. Moreover in this case we find that the citations which have been relied upon by the petitioner i.e. , the case reported in 2003(2) All India Services of Law Journal 365, Kunal Singh -v- Union of India and another has no application to the facts of this case and the petitioner cannot derive any benefit of that decision as well as the provision of Section-47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as it is not the case of the petitioner that he acquired disability during his service. What is disability has been defined in Section-2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and there is no material to show that the petitioner was declared as a disabled person by the Competent Authority of the department. On the other hand, it is the case of the petitioner that he was found fit in C-I medical category when he appeared at the medical test for the post of Diesel Assistant Driver.
6. In the aforesaid premises, we do not find any merit in the writ petition and accordingly, the same stands dismissed. No costs.
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B.K.Misra, J.