Rajeev Singh And Anr vs The Union Of India, Through The ...
2017 Latest Caselaw 4718 Bom

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                CIVIL APPELLATE JURISDICTION

            WRIT PETITION (ST) NO. 19739 OF 2017



1. Rajeev Singh, Age : 37 years,
Working as Works Manager,
Ordnance Factory, Chanda
R/at Q. No.04/A, Type 4, Sector
6, Ordnance Factory Chanda Estate,
Bhadrawati, Chandrapur,
Dt. Maharashtra-442501

2. Naveen James, Age : 38 years,
Working as Works Manager,
Ordnance Factory, Chanda
R/a7t Q. No.04/A, Type 4, Sector
6, Ordnance Factory Chanda Estate,
Bhadrawati, Chandrapur,
Dt. Maharashtra-442501             ......Petitioners


       V/s.

1. The Union of India,
through The Secretary,
Ministry of Defence,
South Block,
New Delhi 110 001

2. The DGOF & Chairman,
Ordnance Factory Board,
10-A, Shahid Khudiram Bose
Road, Kolkata.700001




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3. The Sr. General Manager,
Ordnance Factory Chanda,
Bhadrawati, Chandrapur Dt.,
Maharashtra

4. The Secretary
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110 069.

5. The Secretary,
Department of Industrial Policy
& Promotion, Ministry of
Industry & Commerce,
Udyog Bhawan,
New Delhi-110 011.                            .......Respondents


                         -----
Mr. Vicky A. Nagrani, Advocate for the petitioners.

Mr. D.A. Dube a/w. Mrs. Anjali Helekar, Advocate for
respondent no.1/UOI.

Ms. Lata Patne a/w. Mr. Vinod Joshi, Advocate for
respondent no.4.



               CORAM :-            SMT. V.K. TAHILRAMANI, &

                                   SANDEEP K. SHINDE, JJ.

               DATE :-             19 th JULY, 2017.





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ORAL JUDGMENT (PER :- SANDEEP K. SHINDE, J):

1. Rule. By consent, Rule is made returnable

forthwith and the matter is heard finally.

2. Heard Learned Counsel for the petitioner,

Learned Counsel for respondent no.1 and Learned

Advocate for respondent no.4.

3. The petitioners are presently working as Works

Manager, Ordnance Factory, Chanda. They were initially

appointed as Assistant Works Manager in the year 2009

and 2008 respectively. They were promoted to the post of

Works Manager in the year 2013 and 2011. An

advertisement was published in the Employment News by

UPSC inviting applications from eligible candidates for

filling up total 42 posts of Deputy Controller of Explosives

in Petroleum and Explosives Safety Organisation (PESO).

They would claim that, they were fulfilling all conditions

and requisite qualifications for the post of Deputy

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Controller of Explosives. Its their case that, experience

certificate was required from the parent department and

thus they requested for such certificate. Respondents

no.2 and 3 rejected their request and as such petitioners

had filed O.A. No. 487 of 2012 before the Tribunal. That

by way of interim order, the respondents were directed to

issue provisional experience certificate so that they could

appear in the recruitment process. The petitioners were

selected for the said post. Respondent no.5 sought

Character and Antecedent Verification and Medical

Examination reports from respondent no.2, on three

occasions, for issue of offer of appointment orders in

favour of petitioners. It is petitioners case, that offer of

appointment is being delayed due to non-receipt of the

above reports. Finally vide order dated 30 th December,

2014 respondents no.2 and 3 rejected their request.

Aggrieved by the said order, the petitioners approached

the Central Administrative Tribunal in O.A. No. 722 of

2015. Pending the O.A., the Tribunal vide order dated 28 th

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December, 2015 directed the respondents not to fill up

two vacant posts of Deputy Controller of Explosives from

the reserved panel till the next date of hearing. The

petitioners sought directions to respondents no.2 and 3 to

issue the "Character and Antecedent Verification and

Medical Examination Reports", to respondent no.5 and

contended that the refusal of the same was arbitrary and

improper. The Tribunal, after hearing the petitioners and

the respondents, was pleased to dismiss the claim of the

petitioners vide order dated 11th April, 2017.

4. Aggrieved by the said order, this petition is

preferred under Articles 226 and 227 of the Constitution

of India.

5. Heard Learned Counsel for the petitioners and

the respondents. Perused the Original Application, O.A.

No.170/51 dated 21st October, 1952 and the counter of the

respondents filed before the Tribunal.

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.               The Learned Counsel for the petitioner would

contend that, order dated 13th December, 2014 passed by

respondents no.2 and 3, inter-alia, rejecting their request

for Character and Antecedent Verification and Medical

Examination Report is unreasonable and arbitrary. The

next contention is, the order is discriminatory, in as much

as, the other employees working in other Ordnance

Factories have already been released and joined the PESO

as Deputy Controller, Explosives. The Learned Counsel

would contend that, one Shri. Tejveer Singh who was

working as Assistant Works Manager at the Vehicle

Factory, Jabalpur, Ordnance Factory Board had rejected

his technical resignation. However, the Jabalpur Bench of

Central Administrative Tribunal had considered his O.A.

No. 968 of 2015 and directed the respondents to consider

his application for grant of technical resignation on lien

basis. On the other hand, the Learned Counsel appearing

for the respondents would contend that, there is acute

shortage of officers at Ordnance Factory, Chanda and

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therefore the Competent Authority, i.e. Ordnance Factory

Board, Calcutta have taken a decision not to issue

provisional Experience Certificate and Medical

Examination Report. The Learned Counsel further

contended that, the Ordnance Factory, Chanda was

experiencing acute shortage of officers and prior

replacement would be required and as such it was not

possible on their part to forward the provisional

experience certificate to PESO. He would refer to decision

of Ordnance Factory Board, Calcutta which had decided

that department could not spare the

applicants/petitioners being Group "A" Officers in

Chemical Engineering Stream on compelling reasons,

functional requirements and in public interest. He has

brought to our notice that the Group "A" Officers of

Chemical Engineering Stream had applied for the post of

Controller of Explosives and out of nine, four officers had

been selected for the said post. He would further contend

that, due to shortage of officers in general, officers

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belonging to the Chemical discipline in particular, it was

decided, not to process the case of all four officers. The

Learned Counsel has made a reference to Government of

India, MHA OM No.170/51-Ests., dated 21st October, 1952

which stipulates as follows :-

"vi. Notwithstanding anything contained in the preceding paragraph in a case in which a particular employee cannot be spared without serious detriment to important work in hand public interest would justify withholding of his application even if otherwise the application would have been forwarded."

On this premise, he would contend that no interference is

called for in the order passed by the Tribunal.

6. We have perused the O.M. dated 21 st October,

1952 which regulates the manner in which he

applications of the employees are to be forwarded for

other employment. Clause (vi) empowers the

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administrative authorities to withhold application if it is

likely to ensue serious detriment to important work in

hand, so also in public interest. It appears from pleadings

of respondents, that applicants play pivotal role in

Production Shop Floor to plan, chalk out production and

all sorts of managerial decisions to achieve the production

targets fixed by organisation from time to time and there

is an acute shortage of officers in overall IOFS Cadre. We

find force in the contention of the respondents, in as much

as, they have pleaded that the petitioners being Group "A"

Officers in Chemical Engineering Stream, their transfer

would not be in the public interest and their retention in

the same establishment is a functional requirement. This

being administrative decision, the Tribunal rightly refused

to interfere with the same and as such we do not find any

irregularity or fault on the part of the Tribunal in

dismissing the claim of the petitioners.

7. The petitioners next contention is that, the

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respondent's decision is selective, in as much as, in the

case of Tejveer Singh, the respondents have released his

necessary documents/certificates which enabled him to

secure the post of a Deputy Controller of Explosives. In

our view, the petitioners contention is not correct as it

appears, case of Tejveer Singh is different. He was a

Group "B" Officer and he was applying for a Group "A" post

and therefore it was an advancement of character

promotion. It is admitted position that the applicants

herein who are proposing to join the post of Deputy

Controller of Explosives carries less grade-pay then what

is being drawn by them at present. It further appears,

nine Group "A" officers of Chemical Engineering Stream

had applied for the post of Deputy Controller of Explosives

and out of nine, four officers have been selected for the

said post. It is admitted fact that, the respondents herein

decided not to process the cases of these four officers

(Group "A") for issuing a copy of report of Character and

Antecedent Verification including the petitioners herein.

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This decision was taken as there is acute overall shortage

of officers in IOFS Cadre. Besides, the petitioners herein

are holding the post of Works Manager in the pay-scale of

Rs.15,600- 39,000 with grade pay of Rs.6,600/- whereas

pay-scale of the post applied for is Rs.15,600/- to

Rs.39,000/- with the grade pay of Rs.5,400/-. Looking at

these facts, the contention of the petitioners cannot be

accepted that, they were treated differently and/or

selectively as against the selection of that of Tejveer

Singh. We have already stated hereinabove that, Tejveer

Singh is not a Group "A" officer. His pay-scale is lesser

then the pay-scale of the petitioners herein and therefore

it cannot be said that the petitioners are being

discriminated by the respondents and meted out a

different treatment. It may also be stated that, one Nitesh

Chaurasia, Works Manager at Ordnance Factory, Itarsi

though selected by UPSC, the department of the Industrial

Policy and Promotion was informed by the Ordnance

Factory Board vide letter dated 19th March, 2015 that in

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view of shortage of officers in the Chemical Stream,

Ordnance Factory was unable to spare the services of

officers. It shows that, Group "A" officers who are selected

by UPSC were retained by the respondents by taking

recourse to Clause (vi) of the O.M.170 of 1951 dated 21 st

October, 1952. We therefore hold that the petitioners

were not treated selectively.

8. After perusing the pleadings and the documents

placed on record, the decision of the respondents that not

to relieve the petitioners from the present position cannot

be faulted with. The respondents have pleaded that the

petitioners are working at managerial level, in-charge of

shop floor operations and doing supervisory work in

production. The respondents have further pleaded, since

Ordnance Factory deals with production of defence

equipment for the country, their continuation of Ordnance

Factory, Chanda was absolutely essential and therefore in

public interest, they were not relieved.

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9. That for the aforesaid reasons, we do not find

any fault in the decision of the respondents which, in our

view, was taken in public interest by considering the

nature of work being carried out and the position of the

petitioners in the Ordnance Factory. As such, no

interference is called for. The petition is accordingly

dismissed. The Rule is discharged.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)