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2003 DIGILAW 366 (SC)

UNION OF INDIA v. TUKARAM GOVINDRAO TELANG

2003-03-06

ASHOK BHAN, D.M.DHARMADHIKARI

body2003
ORDER 1. AGGRIEVED BY THE ORDER OF THE BOMBAY HIGH COURT IN WP NO. 5287 OF 2000 IN CONFIRMING THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN ORIGINAL APPLICATION NO. 942 OF 1993 DATED 21-6-2000, THE UNION OF INDIA HAS FILED THIS APPEAL. 2. SHORTLY STATED, THE FACTS ARE: RESPONDENT 1 WHO WAS THE ORIGINAL APPLICANT BEFORE THE TRIBUNAL WAS APPOINTED AS JUNIOR CLERK IN THE WESTERN RAILWAY ON 9-4-1958. ONE SHRI G.R. NACHANKAR WAS APPOINTED IN JANUARY 1959. SHRI G.R. NACHANKAR RESIGNED FROM SERVICE AND WAS REAPPOINTED UNDER GOODS SUPERINTENDENT (FOR SHORT GS) WADI BANDER WITH EFFECT FROM 6-2-1963. RESPONDENT 1 WAS ALSO TRANSFERRED UNDER GS WADI BANDER ON 23-9-1964. IN THE YEAR 1971, A COMPETITIVE EXAMINATION FOR THE POSTS OF SENIOR CLERKS AGAINST 10% QUOTA FROM AMONGST THE CLERKS WAS CONDUCTED. SHRI G.R. NACHANKAR WAS SELECTED AND PROMOTED AND ULTIMATELY APPOINTED AS HEAD CLERK ON 9-1-1974 AND OFFICE SUPERINTENDENT (II) WITH EFFECT FROM 8-9-1977. RESPONDENT 1 WAS NOT PERMITTED TO TAKE THE EXAMINATION ON THE GROUND THAT HE HAD NOT COMPLETED ONE YEARS SERVICE UNDER GS WADI BANDER. 3. ON 17-4-1979, RESPONDENT 1 FILED A SUIT IN BOMBAY CITY CIVIL COURT NUMBERING 4805 OF 1979 FOR A DIRECTION TO FIX HIS SENIORITY AND GRANT OF FURTHER INCREMENTS AND PROMOTIONS ON THE BASIS OF THE DATE OF HIS INITIAL APPOINTMENT IN THE CLERICAL CADRE. THE SUIT WAS TRANSFERRED TO THE CENTRAL ADMINISTRATIVE TRIBUNAL AND REGISTERED AS TA NO. 15 OF 1990. THE CENTRAL ADMINISTRATIVE TRIBUNAL ON 25-3-1991 ACCEPTED THE PLEA OF RESPONDENT 1 AND ISSUED DIRECTIONS TO THE APPELLANT IN THE FOLLOWING TERMS: "ACCORDINGLY, THE APPLICANT IS ENTITLED TO THE CLAIM FOR HIS SENIORITY AND FOR GRANT OF FURTHER INCREMENTS AND PROMOTIONS ON THE BASIS OF THE DATE OF HIS INITIAL APPOINTMENT IN THE CLERICAL CADRE IN THE OFFICE OF THE GOODS SUPERINTENDENT, CENTRAL RAILWAY, WITH EFFECT FROM 9-4-1958 AND ALSO ENTITLED TO HIGHER POST ON THE BASIS OF THE FACTS AND OF THE ORDERS ISSUED BY CENTRAL RAILWAY ADMINISTRATION FOR THE POST OF OFFICE SUPERINTENDENT IN THE OFFICE OF THE CENTRAL RAILWAY ADMINISTRATION. THE RESPONDENT IS DIRECTED TO REFIX THE PAY OF THE APPLICANT IN THE RESPECTIVE GRADES TO WHICH HE IS ENTITLED FROM TIME TO TIME IN THE OFFICES OF CENTRAL RAILWAY ADMINISTRATION. THE RESPONDENT IS DIRECTED TO REFIX THE PAY OF THE APPLICANT IN THE RESPECTIVE GRADES TO WHICH HE IS ENTITLED FROM TIME TO TIME IN THE OFFICES OF CENTRAL RAILWAY ADMINISTRATION. THE RESPONDENTS ARE DIRECTED TO COMPLY WITH THE ABOVE DIRECTIONS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF THE COPY OF ORDER. NO ORDER AS TO COSTS." 4. THE APPELLANT PASSED ORDERS TO PROMOTE RESPONDENT 1 AS HEAD CLERK WITH CONSEQUENTIAL BENEFITS BUT DENIED THE CLAIM FOR PROMOTION AS OFFICE SUPERINTENDENT WITH EFFECT FROM THE DATE MR NACHANKAR WAS APPOINTED ON THE GROUND THAT SUBSEQUENTLY IN THE EXAMINATION HELD ON 22-9-1979, 24-9-1981, 4-2-1982 AND 17-9-1982, RESPONDENT 1 FAILED TO CLEAR THE EXAMINATION FOR SELECTION TO THE POST OF GS AND WAS THEREFORE, INELIGIBLE FOR THE SAID POST. THIS PLEA HAD NOT BEEN RAISED BEFORE THE TRIBUNAL AT ANY STAGE OF THE PROCEEDINGS EARLIER. 5. AGGRIEVED BY THE ACTION OF THE APPELLANT RESPONDENT 1 FILED CONTEMPT PETITION BEFORE THE TRIBUNAL ALLEGING NON-COMPLIANCE WITH THE ORDER OF THE TRIBUNAL, WHICH WAS DISPOSED OF WITH THE OBSERVATION THAT THE UNION OF INDIA HAD MADE A FAIR ATTEMPT TO COMPLY WITH THE DIRECTIONS OF THE TRIBUNAL AND IF THE APPLICANT WAS AGGRIEVED BY THE ORDER PASSED BY THE UNION OF INDIA THEN IT WAS OPEN TO HIM TO FILE SUBSTANTIVE APPLICATION BEFORE THE TRIBUNAL FOR REDRESSAL OF HIS GRIEVANCE AGAINST THE SAID ORDER. THEREAFTER, RESPONDENT 1 FILED OA NO. 942 OF 1993 WHICH WAS DISPOSED OF BY THE TRIBUNAL IN THE FOLLOWING TERMS: "IN THE RESULT, THE OA DESERVES TO BE ALLOWED. THE ORDER DATED 26-91991, DESERVES TO BE QUASHED AND SET ASIDE WITH A DECLARATION THAT THE APPLICANT IS ENTITLED TO THE PROMOTION TO OS (II) FROM 1978 AND OS (I) A FROM 1980 WHEN HIS JUNIOR MR NACHANKAR WAS PROMOTED ALONG WITH ARREARS OF WAGES AND REVISION OF PENSION. THE APPLICANT IS ENTITLED TO COMPOUND INTEREST YEARLY AT THE RATE OF 11 % PER ANNUM FROM THE DATE IT BECAME PAYABLE TO THE DATE OF PAYMENT ALONG WITH COST OF RS 650. THE RESPONDENTS ARE DIRECTED TO COMPLY WITH THE ORDER WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORDER." 6. THE TRIBUNAL TOOK THE VIEW THAT THE PLEA NOW RAISED WAS AVAILABLE TO THE UNION OF INDIA AT THE TIME WHEN TRANSFER APPLICATION NO. THE RESPONDENTS ARE DIRECTED TO COMPLY WITH THE ORDER WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORDER." 6. THE TRIBUNAL TOOK THE VIEW THAT THE PLEA NOW RAISED WAS AVAILABLE TO THE UNION OF INDIA AT THE TIME WHEN TRANSFER APPLICATION NO. 15 OF 1990 WAS DISPOSED OF BY IT GIVING DIRECTIONS TO THE UNION OF INDIA TO GIVE SENIORITY, INCREMENTS AND PROMOTION TO RESPONDENT 1 ON THE BASIS OF HIS DATE OF INITIAL APPOINTMENT WITH ALL CONSEQUENTIAL BENEFITS W.E.F. THE DATE HIS JUNIOR WAS GIVEN THOSE BENEFITS. THAT THE EARLIER ORDER WOULD OPERATE AS RES JUDICATA. IT WAS NOT PERMISSIBLE TO RAISE SUCH A PLEA AND THE CLAIM OF RESPONDENT 1 COULD NOT BE DEFEATED BY RAISING SUCH A PLEA. THE HIGH COURT DISMISSED THE WRIT PETITION FILED BY THE UNION OF INDIA BY A SHORT ORDER OBSERVING THAT IT AGREES WITH THE ORDER PASSED BY THE TRIBUNAL. 7. LEARNED COUNSEL FOR THE PARTIES HAVE BEEN HEARD AT LENGTH. 8. WE FIND OURSELVES IN AGREEMENT WITH THE VIEW TAKEN BY THE TRIBUNAL. ONCE IN TRANSFER APPLICATION NO. 15 OF 1990, ON THE BASIS OF THE MATERIAL PRODUCED BEFORE IT, THE TRIBUNAL HAD DIRECTED THE APPELLANT TO GRANT RESPONDENT 1 SENIORITY, INCREMENT AND PROMOTION ON THE BASIS OF HIS INITIAL APPOINTMENT WITH EFFECT FROM THE DATE HIS JUNIOR WAS GIVEN THOSE BENEFITS, THE SAME COULD NOT BE DENIED TO HIM BY RAISING A FRESH PLEA BY THE DEPARTMENT. THE DIRECTIONS ISSUED BY THE TRIBUNAL BECAME FINAL BETWEEN THE PARTIES. IN OA NO. 942 OF 1993 SUBSTANTIALLY THE TRIBUNAL HAS DIRECTED THE APPELLANT TO FULLY IMPLEMENT THE DIRECTIONS ISSUED IN THE EARLIER APPLICATIONS FILED BY RESPONDENT 1. SINCE THE DIRECTIONS ISSUED IN THE EARLIER CASE BECAME FINAL, THE UNION OF INDIA HAD NO OPTION BUT TO IMPLEMENT THE SAME AND THAT IS WHAT EXACTLY THE TRIBUNAL HAS DONE IN THE SUBSEQUENT APPLICATION. THE DIRECTIONS F ISSUED BY THE TRIBUNAL COULD NOT BE DEFEATED BY RAISING A NEW AND FRESH PLEA ON THE ASSUMPTION THAT HAD THIS PLEA BEEN RAISED RESPONDENT 1 COULD/WOULD HAVE BEEN DENIED THIS RELIEF BY THE TRIBUNAL. 9. FOR THE REASONS STATED ABOVE, WE DO NOT FIND ANY MERIT IN THIS APPEAL AND DISMISS THE SAME. 10. THE APPELLANT IS DIRECTED TO CARRY OUT THE DIRECTIONS ISSUED BY THE G TRIBUNAL WITHIN THREE MONTHS FROM TODAY. 9. FOR THE REASONS STATED ABOVE, WE DO NOT FIND ANY MERIT IN THIS APPEAL AND DISMISS THE SAME. 10. THE APPELLANT IS DIRECTED TO CARRY OUT THE DIRECTIONS ISSUED BY THE G TRIBUNAL WITHIN THREE MONTHS FROM TODAY. RESPONDENT 1 SHALL BE ENTITLED TO THE COSTS IN THIS APPEAL AS PER THE RULES.