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2013 DIGILAW 1158 (MP)

Vishvendra Nath Gupta v. Union of India

2013-09-24

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
ORDER By this petition under Articles 226 and 227 of the Constitution of India the petitioner is challenging the validity of the impugned order dated 26-8-2008 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (hereinafter referred to as "the Tribunal") in O.A. No. 439/2006 whereby the original application of the petitioner has been dismissed. 2. Sans unnecessary detail the facts lie in a narrow compass. On 30-9-1994 the petitioner, who was serving on the post of Deputy Director General of Mines Safety, Central Zone, Dhanbad was appointed to the post of Chief Inspector of Mines (in short "CIM") for all the territories w.e.f. 1st October, 1994 to 30th October, 1994. Indeed, 31st October, 1994 was the last date of service of the petitioner and he stood retired on this date only. Earlier an Original Application No. 93/1995 was filed by the petitioner before the learned Tribunal praying that the pensionary benefit should be provided to him holding that he stood retired from the post of CIM but vide order dated 21-12-2000 this prayer was not granted by learned Tribunal, but, the original application was partly allowed for other reliefs by granting difference of emoluments etc. For ready reference we think it apt to quote paras 6 and 7 of the order of learned Tribunal which read, thus:- “6. Accordingly, it is ordered that the applicant be paid difference of emoluments as determined on his pay as Dy. DGMS and the basic minimum pay of DGMS for the period from 1-10-1994 to 30-10-1994. 6.1 The respondents shall comply with this order within a period of three months from the date of receipt of this order. 7. This OA is partly allowed without any order as to costs. 3. Indeed, against that part of the order by which his claim to provide pension holding that he stood retired from the post of CIM was not accepted by the Tribunal, the petitioner filed writ petition before this Court which was registered as W.P. No. 199/2001. This petition was dismissed by the Division Bench on 30-10-2003 (Annexure P-6). 3. Indeed, against that part of the order by which his claim to provide pension holding that he stood retired from the post of CIM was not accepted by the Tribunal, the petitioner filed writ petition before this Court which was registered as W.P. No. 199/2001. This petition was dismissed by the Division Bench on 30-10-2003 (Annexure P-6). Thereafter, a review application (MCC No. 3647/2003) was filed by the petitioner and the order passed in the writ petition was clarified holding that the Rules 33 and 50 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Rules of 1972") shall be applied in full force and further it was made clear that if the petitioner is still having any grievance he can approach the appropriate legal forum. Thereafter, the petitioner filed fresh original application which was registered as O.A. No. 439/2006, which has been dismissed by learned Tribunal by passing the impugned order on 26-6-2008 (Annexure P-1). 4. The contention of Shri Parag Chaturvedi, learned counsel for the petitioner is that if the document Annexure P-2 which is the Gazette Notification dated 30th September, 1994 by which the petitioner was appointed on the post of CIM w.e.f. 1-10-1994 to 30-10-1994 is read in juxtaposition to Annexure P-3 dated 26th September, 1994 which is the office order conferring the powers to the petitioner being the Head of the Department for exercising the financial and administrative powers under the delegation of Financial Power Rules, 1978, General Financial Rules, 1963 and Fundamental and Supplementary Rules w.e.f. 1-10-1994 and to 31-10-1994, it would be as clear like a noon day that indeed the petitioner was appointed on the post of CIM and only on account of typographical error in Annexure P-2, 30th October, 1994 has been printed and therefore, the learned Tribunal has erroneously dismissed the said original application of the petitioner. 5. 5. On the other hand, Shri Dharmadhikari, learned counsel appearing for the respondent argued in support of the impugned order and submitted that this point has already come to an end as to whether the petitioner was appointed to the post of CIM upto 31st October, 1994 or not because in the earlier round of litigation the Division Bench of this Court in W.P. No. 199/2001 has categorically rejected the said relief of the petitioner and in that regard our attention has been drawn to the order of this Court passed in the said writ petition on 30-10-2003. Learned counsel further submits that second inning was directed to be played by the petitioner only for the limited purpose of interpretation of Rules 33 and 50 of the Rules of 1972 and other ancillary rules and hence, the learned Tribunal has rightly passed the impugned order rejecting the original application of the petitioner. Learned counsel further submits that indeed, the post of DGMS is a promotional post and the promotion is to be made on the basis of promotion rules inter alia with the eligibility of the candidate having three months service in the line of promotion before retirement. Learned counsel submits that since only from 1st October, 1994 to 30th October, 1994 the petitioner had served on the post of CIM, therefore, his case was not coming under the promotion rules and if that is the position learned Tribunal has rightly rejected the claim of the petitioner. 6. Having heard learned counsel for the parties we are of the considered view that this petition deserves to be dismissed. 7. It is not in dispute that the post of DGMS which is akin to that of CIM is a promotional post and promotion rules are there and if that is the position we do not have any scintilla of doubt that in order to promote a suitable candidate it requires recommendation of the DPC and approval of the appointment committee of Cabinet (ACC). It is not the case of the petitioner that during the intervening period the DPC was convened and therefore, according to us the question of regular promotion of the petitioner on the post of DGMS does not arise. It is not the case of the petitioner that during the intervening period the DPC was convened and therefore, according to us the question of regular promotion of the petitioner on the post of DGMS does not arise. That apart, the ACC's OM dated 11-4-1989 lays down that no officer can be promoted to the higher post in his own line of promotion unless he has a minimum three months service before retirement. According to us, merely because for the purposes of conferring financial powers, certain powers were conferred to the petitioner being the Head of the Department vide Annexure P-3 it would not confer any right to him so as to claim his appointment on the post of DGMS/CIM for the purposes of pensionary benefit on the ground that he was appointed on the said post for a limited period of 30 days. According to us, as it is apparent from Annexure P-2 very specifically the petitioner was appointed on the post of CIM from 1st October, 1994 to 30th October, 1994 and thus, we are of the view that for no other purposes this appointment order was issued. 8. We do not find any merit in the contention of learned counsel for the petitioner that vide Annexure P-4 dated 31-10-1994 one Shri B.N. Singh was appointed on the post of CIM from 1st November, 1994 until further orders and therefore, the same criteria should be adopted for the purposes of petitioner also for the simple reason that the post of DGMS/CIM is a promotional post and person is to be promoted on the recommendation of the DPC and has to face the DPC and he should have minimum period of the eligibility before his retirement in the line of promotion. 9. We further do not find any merit in the contention of learned counsel for the petitioner that certain orders were passed in favour of Shri S. Kumar in regard to his appointment which was also for one month and he is also getting the same pensionary benefits. Indeed, this was not the case of the petitioner either in the original application filed earlier or before this Court in writ petition or even in the review petition. Indeed, this was not the case of the petitioner either in the original application filed earlier or before this Court in writ petition or even in the review petition. Further it was not the case of the petitioner before the learned Tribunal in fresh O.A. No. 439/2006 which he filed for the second time upon which the impugned order has been passed rejecting the original application. For the first time this point has been raised which is having nexus with the facts and therefore, now it cannot be decided by this Court in writ jurisdiction for the first time. Indeed, we find sufficient force which de jure learned counsel for the respondent has placed before us that the point involved in the petition has already been put to rest by this Court when this relief was not granted to the petitioner. We think it appropriate to quote the relevant portion of para-5 the order passed by the Division Bench of this Court earlier on 30-10-2003 in W.P. No. 199/2001, which reads thus:- “...Since the petitioner performed the functions of CIM and the Head of the Department which are the functions of DGMS from 1-10-1994 to 30-10-1994 and the post of DGMS is a higher post in the line of the petitioner, the Tribunal rightly held that the respondents should have paid him emoluments available in the higher pay scale during the time he actually discharged the duties of DGMS in accordance with FR 49(i). However, the claim of the petitioner seeking fixation of pension on the basis of the higher pay scale of DGMS was rightly rejected...” Hence, the entire argument of learned counsel for the petitioner cannot be considered again particularly when that point has already attained finality and as a matter of fact the learned Tribunal has rejected his original application on this ground only. Thus, we do not find any merit in the contention of learned counsel for the petitioner that the aforesaid order dated 30-10-2003 passed in W.P. No. 199/2001 has been diluted by the subsequent order passed in review application on 23-1-2004. We have also gone through the said order passed in review application and we do not have any scintilla of doubt in holding that it pertains to clarification of the Rules 33 and 50 of the Rules of 1972 holding that they shall apply in its full force. 10. We have also gone through the said order passed in review application and we do not have any scintilla of doubt in holding that it pertains to clarification of the Rules 33 and 50 of the Rules of 1972 holding that they shall apply in its full force. 10. For the reasons stated hereinabove, we do not find any merit in the petition and accordingly the same is hereby dismissed. No costs.