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2022 DIGILAW 370 (TRI)

Union of India v. Biltu Saha

2022-09-14

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. Biswanath Majumder, learned CGC appearing for the Union of India-petitioners as well as Mr. T.D. Majumder, learned senior counsel appearing for the respondents. 2. This is a petition under Article 226 of the Constitution of India for enforcement of the Constitutional and Fundamental Rights of the petitioners guaranteed under Articles 14 and 21 of the Constitution of India and their legal and statutory right guaranteed under Paragraph No.5.6.2 and 5.6.6 along with note of the Rules/Instructions relating to Comptroller and Auditor General's Manual of Standing orders (Administrative) Volume-I (Third Edition). 3. The petitioner No.1 is an independent authority created by and deriving its powers from the Articles 148 to 151 of the Constitution of India as well as the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 and the petitioner No.2 is the functionary under the petitioner No.1 and competent to file the instant petition. They are within the territorial limits of this Hon'ble High Court and therefore, it is most humbly and respectfully submitted that they have ab initio to present this writ petition under Article 226 of the Constitution of India for expressing their grievances. 4. The petitioners by means of this writ petition set upon the impugned order dated 01.11.2018 passed by the Central Administrative Tribunal, Guwahati Bench, Circuit Court at Agartala in Case No.O.A. 041/00161 of 2018. The tribunal vide its impugned order dated 01.11.2018 allowed the O.A. and directed the petitioner to 'reckon the seniority of the applicants from the date of their initial appointment and to extent all the consequential benefits within a period of three months from the date of receipt of this order. However, the applicants shall not be entitled for arrears of financial benefits up to the date of this order', subject to outcome of the writ petition pending before the Hon'ble Punjab and Haryana High Court vide Case No.WP(C)No.149 of 2017. The petitioner has respectfully submitted that the order dated 01.11.2018 is contrary to law as laid down by the Hon'ble apex court in M. Srinivasa Prasad & Others v. Comptroller & Auditor General of India and Others reported in (2007) 10 SCC 246 . 5. The petitioner has respectfully submitted that the order dated 01.11.2018 is contrary to law as laid down by the Hon'ble apex court in M. Srinivasa Prasad & Others v. Comptroller & Auditor General of India and Others reported in (2007) 10 SCC 246 . 5. The petitioners have submitted that after the order was passed on 01.11.2018, they have made several discussions and communications with the legal cell of Agartala Office and Headquarter at Delhi and further steps which caused some delay due to administrative reasons as well as office procedure and movement of records from one office to another which are not intentional but beyond the control on the part of the petitioners. 6. It is relevant to mention here that in the similar and identical issue in Sri Sanjay Singh and 10 Others filed O.A. No.3657 of 2016 before the Central Administrative Tribunal, Principal Bench, New Delhi against the Comptroller and Auditor General of India (CAG) & Another wherein the tribunal on 10.10.2018 vide its judgment disposed of the said O.A. thereby allowing the O.A. and extending seniority along with consequential benefits. Against the said impugned order dated 10.10.2018 passed by the Central Administrative Tribunal, New Delhi in O.A. No.3657 of 2016, the Comptroller and Auditor General of India (CAG) & another has filed W.P.(C)432 of 2020 before the Hon'ble Delhi High Court, titled as Comptroller and Auditor General of India (CAG) & another v. Sri Sanjay Singh and Others wherein the Hon'ble High Court of Delhi on 14.01.2020 has granted stay on operation of the impugned order of the tribunal till next date of hearing on 28.04.2020. 7. The brief fact of the case is that the respondents herein, the applicants in the O.A. 041/00161 of 2018 were appointed as Assistant Audit Officer in the year 2010 on probation of two years with the petitioner's department. After completion of their probation on different dates, their service is reckoned only from the date of confirmation of service but not from the dates of initial appointment. The respondents have further stated that once the confirmation is declared, the service shall commence from the date of initial appointment, not from the date of declaration of probation. After completion of their probation on different dates, their service is reckoned only from the date of confirmation of service but not from the dates of initial appointment. The respondents have further stated that once the confirmation is declared, the service shall commence from the date of initial appointment, not from the date of declaration of probation. They have further stated that seniority lists published as on 31.03.2016 as well as 31.03.2017 in the cadre Assistant Audit Officer wherein the persons junior to the respondents have been declared seniors in total violation of law. They have also contended that they are senior to the pro-respondents No.6, 7 & 8. So, a direction is sought to set aside the impugned promotion order dated 05.04.2017 of pro-respondent No.6 to the post of Audit Officer. The respondent filed O.A. before the Central Administrative Tribunal vide Case No.041/00161 of 2018. 8. The petitioners have further submitted that they were not able to file the written statement. On 01.11.2018 the tribunal allowed the original application subject to the outcome of the pending writ petition being WP(C)No.149 of 2017 before the Hon'ble Punjab and Haryana High Court. The petitioner herein Union of India being aggrieved has preferred this writ petition for assailing the impugned order dated 01.11.2018 passed by the Central Administrative Tribunal and prayed for setting aside the said impugned order dated 01.11.2018. 9. Mr. Majumder, learned CGC appearing for the petitioners have submitted that the Central Administrative Tribunal directed to reckon the seniority of the applicants from the date of their initial appointment and to extent all the consequential benefits within a period of three months from the date of receipt of this order. However, the applicants shall not be entitled for arrears of financial benefits up to the date of this order. According to Mr. Majumder, learned CGC sufficient opportunity is not given to the petitioners for filing the written statement and without giving opportunity to the petitioners, the tribunal has passed the order. 10. But from a query to this court, this court finds from the order dated 01.11.2018 passed by the tribunal that despite granting so many opportunities to file the written statement, the respondents, the petitioners herein have not filed their written statement and accordingly, the tribunal has passed the order. 11. On the other side, Mr. 10. But from a query to this court, this court finds from the order dated 01.11.2018 passed by the tribunal that despite granting so many opportunities to file the written statement, the respondents, the petitioners herein have not filed their written statement and accordingly, the tribunal has passed the order. 11. On the other side, Mr. T.D. Majumder, learned senior counsel appearing for the respondents have submitted that the present petition is not at all maintainable in its present form and nature because the same does not disclose any cause of action for failure of the respondents to carry out any of the Legal and Constitutional or statutory obligations for which writ would be issued against the respondents. 12. Mr. Majumder, learned senior counsel has submitted that the respondents No.1 to 5 had challenged the seniority list for the post of Assistant Audit Officer dated 31.03.2016 and 31.03.2017 under the Administrative control of the Accountant General (Audit), Tripura whereby the junior in service to the respondents had been treated as senior. According to him, this is a gross violation in the eye of law. 13. Having heard the counsel for the parties and on scrutinizing the records, we are of the consider opinion that the matter may be remand back to the Central Administrative Tribunal, Gauwahati Bench, Circuit Court at Agartala for deciding the case and also providing opportunity of filing any counter-affidavit/written statements by the Central Government of India. The matter since it is pertains to 2016, the same needs to be heard on priority basis. The Union of India shall file the written statements/objections to the OA within three weeks and thereafter, in any event, if the Union of India fails to file their written statement within the stipulated time, the tribunal shall proceed ex parte and decide the matter on merits. Since, there is a difference with regard to the similar identical issue which was in consideration between the Punjab and Haryana High Court as well as Delhi High Court, it is open for the tribunal to consider all respect and pass orders on merit of the case. This exercise shall be completed as expeditiously as possible. 14. In terms of the above, this petition stands disposed of.