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2002 DIGILAW 816 (PAT)

Ranjan Kumar Sinha v. Union Of India

2002-07-30

R.N.PRASAD, RAVI S.DHAVAN

body2002
Judgment Ravi S.Dhavan and R.N.Prasad JJ. 1. All things considered, this matter has seen a graceful solution between the petitioner and the Union of India through Central Provident Fund Commissioner, New Delhi and other three respondents i.e. respondents no. 2, 3 and 4, The solution in the present case is that the petitioner gets all notional seniority as from the date of his passing of the departmental examination on 6.5.1983 or any date during that year and this would meet ends of substantial justice. A fair approach by counsel for Union of India has seen an end to litigation. 2. The petitioner was appointed as Lower Division Clerk in the office of the Regional Provident Fund Commissioner, Bihar on 13th February, 1975. He was promoted as Upper Division Clerk with effect from 2nd July, 1978 on ad hoc basis and later regularised with effect from 23rd August, 1980. He passed the departmental examination of Head Clerks on 6th May, 1983. Thereafter, he was appointed on an ad hoc basis as Enforcement Officer/Assistant Accounts Officer vide order no, 738 dated 26th February, 1992. This was done against the final order in the cadre of Head Clerks on 1.1.1989. The period between 6.5.1983 and 1.1.1989 is explained as one of inaction in so far as petitioner is concerned because other staff members in the department were litigating with the administration. However, on this it is explained to the court that when the petitioner (and another) laid a claim to seniority, the Central Administrative Tribunal had directed by its order dated 25th January, 2000 that the matter of seniority of the petitioner and another incumbent be examined by a speaking order. The quota and vacancy are not denied in the subsequent speaking order of 2nd May, 2000, on the directions of the Tribunal. 3. The Regional Provident Fund Commissioner examining the matter of seniority, in his order dated 2nd May, 2000, mentions that this assessment is on the basis of the records placed before him. It is expected that the entire records must have been placed before him as there cannot be any escape from suppressed records.Then, in the cadre of Head Clerks the matter is explained as ad hoc vacancy and in the same cadre and in respect of the same vacancy, it is accepted that there was regular vacancy. It is expected that the entire records must have been placed before him as there cannot be any escape from suppressed records.Then, in the cadre of Head Clerks the matter is explained as ad hoc vacancy and in the same cadre and in respect of the same vacancy, it is accepted that there was regular vacancy. All that is discernible from the order of the Regional Provident Fund Commissioner is that on the place where the petitioner (and another) should have been promoted someone else was sitting on ad hoc basis. This in itself would not. deprive the petitioner of his rightful due. During the course of hearing the court did ask counsel for the Union of India whether as a consequence of passing the examination, the petitioner was entitled to a promotion from the due date. The answer was in affirmative. 4. Merely because the department had been in a long drawn litigation with the other staff, the ills must not descend on the petitioner. It is another aspect that the entire seniority list may not be disturbed. But, the only mitigating circumstances in equity would be that the petitioner receives notional seniority as on May, 1983 as a consequence of passing the departmental examination. This in itself would be substantial justice. 5. In the circumstances, the court does not agree with the order of the learned Tribunal under challenge, which order is quashed by a writ of certiorari. 6. As learned counsel for the Union of India has accepted that notional seniority would meet ends of justice, the court is not passing any order on this aspect. This notional seniority, consequently, would mean difference of emoluments and placement of seniority in the cadre in which the petitioner is, as of date i.e. the cadre of Enforcement Officer. Learned counsel for the Union of India requests for three months time to complete this exercise. Time as prayed for is granted. 7. The petition succeeds. No order as to costs.