Bombay High Court
V. Subramanyam And 181 Others vs Union Of India Thr.Secty. & 3 ... on 25 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2726 OF 2003.
PETITIONERS: 1. V.Subramanyam.
2. D.P.Mandal.
3. U.G.Gedam.
4. T.C.Bhopare.
5. B.K.Mandal.
ig 6. V.S.Kobragade.
7. S.S.Shagul.
8. S.G.Naxine.
9. P.M.Lambat.
10.N.G.Watekar.
11.B.B.Balki.
12.R.P.Kaushal.
13.D.B.Nakhale.
14.S.K.Punyapwar.
15.A.V.Khade.
16.V.K.Kande.
17.P.J.Lagande.
18.D.S.Nawghare.
19.S.S.Salekar.
20.H.M.Raut.
21.B.R.Virraya.
22.Amiya Biswas.
23.Sheikh Usuf Sheikh Rasul.
24.A.S.Gedam.
25.D.N.Rathod.
26.L.G.Khandare.
27.V.K.Shendre.
28.R.T.Mogre.
29.Rawji Ram.
30.D.G.Kawale.
31.V.D.Satapute.
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32. P.N.Mulguru.
33. S.N.Thombare.
34. R.P.Aswale.
35. D.K.Welhekar.
36. N.M.Dongare.
37. A.K.N.Singh.
38. B.R.Sawankar.
39. K.P.Ramteke.
40. S.C.Shende.
41. M.K.Deogade.
42. B.R.Gadamwar.
43. N.K.Gowardipe.
44. C.G.Umare.
45. A.R.Ambulkar.
46. S.K.Nagpure.
47. S.D.Nandre.
48. S.R.Indurkar.
49. B.H.Nagpure.
50. D.M.Thombare.
51. S.B.Dudhalkar.
52. M.K.Gurunale.
53. M.K.S.V.Shende.
54.V.N.Ulmale.
55. S.V.Chahankar.
56. R.D.Lohankare.
57. C.B.Nikhade.
58. S.M.Sarwar.
59. R.L.Bhoyar.
60. V.W.Karwade.
61. D.M.Jadhao.
62. B.H.Gawai.
63. V.B.Niwte.
64. B.R.Barapatre.
65. R.D.Muneshwar.
66. M.N.Parshive.
67. Gudmitla.
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68. M.J.Bommawar.
69. M.S.Nikure.
70. P.M.Gongale.
71. A.H.Kale.
72. M.T.Mankar.
73. P.Y.Wakade.
74. W.T.Paighan.
75. G.K.Mandal.
76. B.L.Shil.
77. S.B.Pawankar.
78. M.M.Shekh.
79. T.G.Katrejwar.
80. D.S.Kale.
81. N.E.Ray.
82. D.D.Fule.
83. N.R.Pandhare.
84. V.B.Sawan.
85. Y.B.Gandewar.
86. R.G.Pimpalkar.
87. S.L.Chikatwar.
88. T.T.Lingayat.
89. N.C.Sarkar.
90. N.D.Chatpalliwar.
91. C.G.Aswale.
92. O.B.Raut.
93. K.M.Majhi.
94. J.M.Dubey.
95. T.M.Dukare.
96. B.D.Mankayya.
97. P.A.Mukharji.
98. K.Abraham.
99. S.P.Shankapal.
100.C.W.Sagore.
101.S.S.Buradkar.
102.B.B.Nakabe.
103.M.M.Raghul.
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104.P.B.Fulzele.
105. P.C.Kuldeep.
106. N.I.Karse.
107. Malaya Yalaya.
108. P.Chandraya.
109. P.P.Dahule.
110. M.L.Shende.
111. D.D.Nerulkar.
112. N.M.Agalave.
113. S.J.Prajapati.
114. G.G.Deogade.
115. B.K.Gharami.
116. V.K.Hanwale.
117. R.J.Gajbhiye.
118. K.R.Biswas.
119. S.V.Dudhagawali.
120. G.N.Malere.
121. B.K.Raut.
122. V.S.Gangasagar.
123. L.N.Vaidya.
124. G.A.Nagpurkar.
125. P.D.Randive.
126. S.S.Wirutkar.
127. R.M.Bujarkar.
128. S.D.Bhowale.
129. R.N.Neware.
130. V.L.Kambale.
131. W.V.Urade.
132. T.D.Natraj.
133. A.K.Gulghare.
134. Suka Pedaya.
135. M.Aswale K.R.Patil.
136. S.S.Hanmante.
137. G.M.Jogi.
138. N.G.Bunkar.
139. P.C.Zilpe.
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140. R.Vadivelu.
141. S.B.Manne.
142. M.H.Shende.
143. M.K.Mukharjee.
144. D.L.Khonde.
145. P.B.Katkar.
146. N.R.Rasekar.
147. K.D.Nanaware.
148. M.W.Ramteke.
149. A.H.A.G.Sheikh.
150. R.N.Rangari.
151. B.D.Raghulgade.
152. A.,S.Bodhale.
153. Sk.Yusuf Sk.Ismail.
154. N.G.Gonde.
155. K.Ramlu.
156. S.K.Chandankhede.
157. S.S. Nannaware.
158. A.M.Misar.
159. M.C.Kadukar.
160. F.S.Chiwande.
161. D.Dondekar.
162. G.B.Pullakawar.
163. S.P.Jiwtode.
164. E.Ayalayya.
165. B.D.Kale.
166. N.Tadichetty.
167. S.S.Chahande.
168. M.S.Murkute.
169. G.S.Pimpalkar.
170. M.K.Mandare.
171. B.G.Pozare.
172. J.Y.Tepale.
173. B.L.Bhagwat.
174. S.R.Hastak.
175. S.H.Thombare.
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176. B.Kashyap.
177. G.M.Shriwas.
178. W.B.Tandekar.
179. V.W.Khapare.
180. S.T.Chalkure.
181. M.R.Belekar.
182. M.B.Dange.
All Major.
Occu: Employees of Ordnance Factory,
Bhadrawati, Distt.Chandrapur.
: VERSUS :
RESPONDENTS: 1. Union of India through Secretary,
Ministry of Defence (Production), South
Block, New Delhi.
2. Ordnance Factory Board, through
Chairman, D.G.O.F., 10-A, Okland
Road, Khudiram Bose Mark, Kolkata.
3. Ordnance Factory, Chanda, Tq.
Bhadrawati, Distt.Chandrapur through
Senior General Manager.
4. Central Administrative Tribunal,
Mumbai Bench, Mumbai, Gulisthan
Building, Prescot Road, Fort, Mumbai
through Registrar.
WRIT PETITION NO. 1148 OF 2004.
PETITIONERS: 1. Shri Natthu s/o Uddhav Jivtode,
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aged about 51 years, Occu: Labourer,
R/o Godpeth, Bhadrawati, Tq.Bhadrawati,
Distt.Chandrapur.
2. Shri Kamlakar s/o Uddhavrao Wankhede,
aged about 43 years, occu: Labourer, r/o
Quarter No.44-A, Type-2, Sector No.1, O.F.,
Chanda, Tq.Bhadrawati, Distt.Chandrapur.
3. Shri Khushalrao Tukaram Kamdi,
ig aged about 48 years, Occu: Labourer, r/o
Near Sonal Talkies, Bhadrawati, Tq.
Bhadrawati, Distt.Chandrapur.
4. Shri Laxman s/o Chandrabhanji Ghugre,
aged about 45 years, Occu: Labourer,
r/o Suraksha Nagar, Bhadrawati, Tq.
Bhadrawati, Distt.Chandrapur.
5. Diwakar Narayan Sakhare,
aged about 50 years, Zade Plot Bhadrawati,
Distt.Chandrapur.
6. Vivekanand Devendranath Sarkar,
aged about 42 years, Netaji Colony,
Bhadrawati, Distt.Chandrapur.
7. Prabhakar Shamrao Tasalwar,
aged about 52 years, Killa Ward, Distt.
Chandrapur.
8. Keshav Rajeshrao Patil,
aged about 49 years, Panchsheel Ward
Bhadrawati, Distt.Chandrapur.
: VERSUS :
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RESPONDENTS: 1. Union of India through Secretary,
Ministry of Defence (Production), South
Block, New Delhi.
2. Ordnance Factory Board, through
Chairman, D.G.O.F., 10-A, Okland
Road, Khudiram Bose Mark, Kolkata.
3. Senior General Manager,
ig Ordnance Factory, Chanda, Tq.
Bhadrawati, Distt.Chandrapur.
4. Central Administrative Tribunal,
Mumbai Bench, Mumbai, Gulisthan
Building, Prescot Road, Fort, Mumbai.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.M.G.Burde, Advocate for the petitioners.
Mrs.Mugdha Chandurkar, Advocate for respondent no.1 to 3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 25th APRIL, 2016.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J
1. Heard Shri Burde, learned counsel for the petitioners,
Advocate Mrs.Chandurkar for respondent nos.1 to 3. Respondent
no.4 is Tribunal and hence service upon it is dispensed with.
2. That Tribunal has, as per its order dated 24th of March,
2003, dismissed O.A.No.930 of 2002.
3. Advocate Burde submits that the judgment or order
proceeds on premise that amendment to SRO vide SRO No.34
dated 20th of January, 1997 was published in Government Gazette
and was also brought to the notice of all concerned. He contends
that unless and until such amendment, which drastically affects
the service conditions, is brought to the notice of individual, it
cannot be given effect to.
4. He points out that as per unamended SRO No.185 post
of Danger Building Worker was included in Annexure 'A' and then
provision was only for 20% promotion. The amendment,
according to respondents, vide SRO No.34 brings out the change in
this position and as per that amendment 80% of vacancies in
Danger building Worker are to be filled in by transfer, failing
which by direct recruitment and thereafter 20% by promotion. He
contends that thus the promotional avenue available to 248
workers before learned Central Administrative Tribunal (CAT) was
drastically brought down and hence the fact that it was not
brought to their notice was important. This was a specific
challenge and CAT has accepted only oral statement that a Gazette
Notification publishing amending SRO No.34 was published and
circulated.
5. He further contends that respondent nos.1 to 3 being a
model employer is supposed to assist CAT and cannot take
advantage of ignorance of the workers. He states that even as per
amended SRO, direct recruitment is possible as a second
alternative. To justify decision to effect direct recruitment, it was
incumbent upon respondents to demonstrate that efforts were
made to fill in 80% vacancies by transfer. He states that there is
no such material made available by respondents before CAT and
hence the decision to effect direct recruitment is unsustainable.
6. Advocate Mrs.Chandurkar while opposing petition
submitted that a Gazette Notification publishing the amendment
(SRO No. 34) is very much available and she has also produced a
copy thereof on record for perusal. She contends that the only
case presented before Central Administrative Tribunal was of not
taking recourse to promotion. Direct recruitment was opposed by
urging that SRO 185 required 100% posts to be filled in by
promotion. It is this challenge which has been looked into by
learned Central Administrative Tribunal. She contends that as
SRO 185 is found to be validly amended, the challenge as raised
has been answered by Central Administrative Tribunal. Petitioners
never stated that there were no efforts by respondents to fill in the
post by transfer and hence the employer also did not file any
material for that purpose. Learned Central Administrative
Tribunal was not required to consider it and it has also not
recorded any finding in that connection. She, therefore, prays for
dismissal of petition.
7. In his reply, Advocate Burde submits that petitioners are
very senior workers and they were stagnating. He submits that the
transfer is a technical phrase as defined in Service Rule and it does
not imply exactly the same Cadre. The persons working in similar
cadres are given opportunity to improve their qualification after
transfer and also to pass trade-test. He submits that these 80%
posts legally available for effecting such transfers, are declined to
petitioners by taking recourse to direct recruitment.
8. We find that amendment to SRO 185 by later SRO
No.34 is not in dispute. The only question is whether the later
SRO was given necessary publicity. The fact that it has been
published in Gazette published by Union of India is established
before this Court. Submission of Shri Burde is that amendment
was not circulated to affected workers and it was not displayed on
notice board. The learned counsel, however, is not in a position
to point out to this Court provision in any standing order or any
settlement with workers which stipulates that such an amendment
shall not come into force unless and until it is brought to the notice
of concerned workmen. In absence of such provision, publication
in Government Gazette by itself is sufficient knowledge to all
concerned. The learned Central Administrative Tribunal has
accepted the statement made by the responsible authority like
Union of India before it and we find that there exists a Gazette
Notification which shows that the amendment was duly published
in Government Gazette. In this situation, challenge on that count
is unsustainable.
9. Insofar as contention that petitioners ought to have been
first considered for transfer, no such plea is raised in O.A. filed
before the Central Administrative Tribunal. Even in oral argument
advance before learned Central Administrative Tribunal petitioners
have not raised that plea. Perusal of amended rule shows that
80% posts are required to be filled in by transfer and in default of
transfer only direct recruitment is possible. Thus, direct
recruitment cannot be resorted to initially. However, petitioners
never raised that contention before learned Central Administrative
Tribunal. The petitioners wanted to press their plea for promotion
and as per amended provision only 20% vacancies are filled in by
promotion. If petitioners wanted to reach remaining 80%
vacancies, it was necessary for them to point out that, as their
entitlement to transfer has not been considered, the decision of
direct recruitment is bad in law. This was not the case made out
and presented to the learned Central Administrative Tribunal for
consideration. As this was not the case, respondents also did not
get opportunity to point out the steps, if any, taken by them for
effecting transfers and that direct recruitment was the second step.
10. We, therefore, find no jurisdictional error or perversity
in the order of learned Central Administrative Tribunal.
Accordingly, Writ Petition is dismissed.
Rule discharged.
No costs.
JUDGE JUDGE
Chute.
