Union of India vs Subhash S. Birhade

B.P. Colabawalla, J.

This Petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 1st March, 2001 passed by the Central Administrative Tribunal (hereinafter referred to as "the Tribunal") in Original Application No.1442 of 1995, whereby the Tribunal directed the Petitioners herein to grant to the 1st Respondent arrears of pay and allowances with effect from 6th July, 1981. The further direction given was that Respondent No.1''s pay fixation may be done on the basis of notional seniority and thereafter the arrears be paid vis-a-vis Respondent No.2 herein, who was his junior.

In this Writ Petition, Rule was issued by this Court on 18th February, 2002 when Respondent No.1 was represented by an Advocate who waived service. This Petition was called out today for final hearing when none appeared for the Respondents. In view thereof, we have proceeded to dispose off this Writ Petition after hearing Mrs. Bharucha, the learned Advocate appearing on behalf of the Petitioners.

Petitioner No.1 is the Union of India through the Director General, Ordanance Factory Board, Calcutta and Petitioner No.2 is the General Manager of the Ordanance Factory, Ambernath. Respondent Nos.1 and 2 are both employees of the said Ordanance Factory at Ambernath.

Respondent No.1, being an employee of the said Ordanance Factory, is currently working as Chargeman Gr.I, Extrusion and Foundry at Ambernath. He holds a degree of B.Sc. in Chemistry and belongs to the category of Scheduled Caste. In the year 1979, an advertisement in the local newspapers appeared inviting applications from candidates belonging to SC / ST, for appointment in the Ordanance Factory. Respondent No.1 being qualified and eligible, applied for the same alongwith other candidates. After interviews were conducted, four candidates were selected out of which Respondent Nos.1 and 2 were also in the select list. As a result of the interview, the four candidates selected in the order of merit stood as under :-

Mr. Rajput, despite being first on the merit list, did not join the said Ordanance Factory. Therefore Respondent No.1 became first on the merit list and Respondent No.2 was second on the said list. After being selected, Respondent No.1 was required to comply with certain formalities including filling in a declaration form and obtaining a Police Verification Report. The Police Verification Report of Respondent No.1 was received by the Petitioners on 10th November, 1979 and that of Respondent No.2 on 2nd October, 1979.

After receipt of the Police Verification Report of Respondent No.2, he was appointed by the Petitioners on 26th October 1979 i.e. 22 days after the receipt of his Police Verification Report. In contrast, Respondent No.1 came to be appointed on 6th July, 1981 i.e. after a lapse of 1 1/2 years after the receipt of his Police Verification Report. Since the delayed appointment of Respondent No.1 adversely affected his service conditions, by his letter dated 29th September 1989, the 1st Respondent made a representation to Petitioner No.2 wherein he sought redressal of his grievance of having suffered discrimination at the hands of the Petitioners and the humiliation of being superseded by his colleague viz. Respondent No.2 herein, who was selected alongwith Respondent No.1, and whose name was lower in the order of merit.

In response thereto, Petitioner No.2 stated that the 2nd Respondent was offered appointment earlier in point of time because his Police Verification was received earlier. According to Respondent No.1, the aforesaid response was utterly vague and evasive, especially with regard to the issue of seniority, in view of the fact that Respondent No.1''s Police Verification Report was received hardly 39 days after the Police Verification Report of Respondent No.2. In contrast, his appointment (i.e. Respondent No.1) was delayed for more than a period of 18 months and therefore, he was clearly discriminated against.

Being aggrieved by the aforesaid action of the Petitioners, Respondent No.1 approached the Tribunal by filing Original Application No.124 of 1991. After hearing the parties, the said Original Application was disposed off by an order dated 4th January, 1994 wherein it was directed that Respondent No.1 shall be given seniority from the same date his junior (i.e. Respondent No.2 herein) was given, and should be placed above Respondent No.2. The Tribunal however directed that there shall be no payment of wages or allowances for that period. It further directed that after recasting of the seniority-list, all consequential benefits be given to Respondent No.1 on merits.

Despite the aforesaid order, the Petitioners continued to pass different orders on different dates which initially constrained Respondent No.1 to file a contempt petition in which the Tribunal held that the order dated 4th January, 1994 was not clear and it must have presented considerable difficulties to the Petitioners in considering what was really intended to be given to Respondent No.1. In view thereof, Respondent No.1 was constrained to file a second Original Application being Original Application No.1442 of 1995. The impugned order is passed in this Original Application.

The only argument canvassed by Mrs. Bharucha on behalf of the Petitioners, was that the Tribunal had erred in law to grant monetary benefits to Respondent No.1 from 6th July 1981, when the application itself came to be filed in the year 1994 and therefore granting of the arrears of pay right from 6th July, 1981 was the clearly an error apparent on the face of the record.

We have carefully perused the Writ Petition, annexures thereto as well as the impugned order. It is not in dispute that Respondent No.1 had claimed notional seniority with effect from the date of his junior''s appointment i.e. 26th October 1979 and consequently back-wages etc. from 6th July, 1981 being the date he was actually appointed. In this regard, Respondent No.1 had approached the Tribunal by filing Original Application No.124 of 1991 which was decided on 4th January, 1994. By the said order, the Tribunal directed that Respondent No.1 be given seniority from the date his junior viz. Respondent No.2 herein was given and he should be placed above Respondent No.2 in seniority. The said order has not been challenged by the Petitioners and has therefore attained finality. Though Respondent No.1 was given the notional seniority as per the said order, no back-wages and allowances were given to him. It is in this light, and in view of the earlier order passed by the Tribunal on 4th January, 1994 that the Tribunal came to the conclusion that Respondent No.1 was entitled to back wages at least from the day on which he actually started working i.e. from 6th July, 1981 when he was appointed. The Tribunal therefore ordered accordingly. We find that the view taken by the Tribunal was fully justified, much less suffering from any perversity or error apparent on the face of the record, requiring our interference in writ jurisdiction. The Tribunal has given valid and cogent reasons in the impugned order in which we find no infirmity. We are therefore not persuaded to interfere in our writ jurisdiction and set aside the order impugned herein. We therefore find no merit in this Writ Petition. It is hereby dismissed. Rule is discharged. There shall be no order as to costs.