The Union Of India And 3 Others vs Ajay Rambachan Bhatia (P No. ...
2017 Latest Caselaw 4782 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

               ORDINARY ORIGINAL CIVIL JURISDICTION

                        WRIT PETITION NO. 2780 OF 2016



1. Union of India
Through the Secretary,
Ministry of Defence (Navy)
South Block, New Delhi-110 001.

2. The Chief of Naval Staff,
Naval Headquarters,
DHQ, P.O. New Delhi-110 001.

3. The Flag Officer, Commanding-in-Chief
Headquarters, Western Naval
Command, Shahid Bhagat Singh
Road, Mumbai-400 001.

4. The Admiral Superintendent,
Naval Dockyard, Lion Gate,
Mumbai-400 023.                                   .....Petitioners

       V/s.

Ajay Rambachan Bhatia (P. No.
83515-D), Working as Hostel
Superintendent, Naval Dockyard,
Naval Dockyard Aprentices School,
Group "C", Residing at Dockyard
Apprentices School Hostel and having
his permanent address as
Room No.406, Bach Devi Chawl,
Jawahar Nagar, Khar (East),
Mumbai-400 055.                                   .....Respondent
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Mr. Vijay Kantharia, i/by. Mr. D.R. Shah, Advocate for the

petitioners.

Mr. Abdul Rajjak I. Bhatkar, Advocate for the respondent.



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

                                      SANDEEP K. SHINDE, JJ.

DATED :- 20TH JULY, 2017.

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 petitioners and

Learned Counsel for the respondent.

3. Union of India has preferred this petition

against the order dated 14th August, 2014 passed by the

Central Administrative Tribunal in O.A. No. 270 of 2012.

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4. The facts giving rise to this petition to be stated,

that respondent no.1 herein joined the Naval Armament

Depot as a Canteen Supervisor in February, 2004. He

came across an advertisement issued by the petitioners

for filing up the post of Hostel Superintendent in the pay-

scale of Rs.5,000-150-8,000. That vide order dated 15th

December, 2008 the respondent was appointed as Hostel

Superintendent in the pay-scale of Rs.5,000-150-8,000

(revised 9,300-34,900). On 18th February, 2009 he was

communicated that the Flag Officer, Commanding-in-Chief,

scaled down his pay to Rs.4,500-125-7,000. The

respondent thereupon preferred a representation and

pointed out that, he resigned from the previous service for

betterment of his service conditions in view of the pay-

scale given in the advertisement. His representation was

not considered but vide order dated 26th March, 2009 he

was informed that pay-scale in his appointment order has

been amended. Resultantly, his pay-scale was reduced to

Rs.4500-125-7000. It is the respondents case that, on

11th April, 2012 the Admiral Superintendent, Naval

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Dockyard insisted for recovery of excess salary paid to

him. In the aforesaid circumstances, he approached the

Central Administrative Tribunal in O.A. No. 270 of 2012

and prayed that communication dated 16 th February,

2012 and consequential amendment in his appointment

order whereby his pay-scale was reduced, may kindly be

quashed and set aside.

5. The respondents resisted the petitioner's claim

contending that, by mistake wrong pay-scale was stated

in the advertisement published in the employment news

dated 21st - 27th March, 2009, however, they have

corrected the mistake by issuing Corrigendum on 21st

March, 2009. The petitioners have further contended

that, they have every right to correct the mistake and

accordingly they set right the position by issuing the

Corrigendum followed by re-fixing the pay of the

respondent herein and accordingly issued correct

appointment order on 26th March, 2009.

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6. That after hearing both the sides, the Central

Administrative Tribunal was pleased to quash and set

aside the impugned communication by holding the same

was unjust, illegal and unsustainable and further ordered

that the applicant, respondent herein be paid pay-scale of

Rs.9,300-34,900 as mentioned in his letter of appointment

dated 15th December, 2008. The petitioners were also

directed to restore the above mentioned pay-scale of the

respondent herein within 4 weeks from the date of the

order.

7. Being aggrieved by the said order, the

petitioners have approached this Court by filing this

petition under Articles 226 and 227 of the Constitution of

India.

8. Heard Learned Counsel for the petitioner and

Learned Counsel for the respondent. The petitioner would

contend that, the order dated 26th March, 2009 issued by

the respondents whereby the pay-scale of the respondent

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was revised, was strictly in accordance with the Statutory

Recruitment Rules (SRO) and that the petitioners have

every right to correct the mistake and the mistake cannot

make any Government employee eligible for higher pay-

scale. He would contend that, the mistake in the

advertisement about the pay-scale was corrected and

published on 21st - 27th March, 2009 of employment news

and only thereafter the respondent was appointed on

regular scale. He would contend that, the respondent was

on probation from 15th December, 2008 to 14th December,

2010 and as such during this period the petitioner was

not regularly appointed; however, well before that, the

mistake was corrected in terms of the Statutory

Recruitment Rules. He therefore contended, the Tribunal

fell in error by quashing the impugned communication.

9. On the other hand, the Counsel for the

respondent, supported the order of the Administrative

Tribunal.

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10. It is a matter of record that, advertisement was

issued on 28th June, 2008; petitioner was appointed on

15th December, 2008 in the pay-scale of Rs.5,000-150-

8,000 (as reflected in the advertisement, as well as, in the

appointment order). The Corrigendum was issued on 23 rd

March, 2009 and respondent's pay-scale was re-fixed vide

order dated 26th March, 2009. His revised pay-scale is

Rs.4,500-125-7,000. On 16th February, 2012, the Head-

Quarters, Western Naval Command directed recovery of

the excess salary paid to the petitioner.

11. The petitioners herein had filed counter before

the Tribunal and placed on record the communication

dated 18th February, 2009 issued by the Ministry of

Defence. Clause-2 of the said order reads as under :-

"2. After examining the details, it is intimated that revised pay-scale of Hostel Superintendent post (V) CPC implementation works out to Rs.4,500-125-7,000."

It may be stated that, the petitioners herein had filed

additional written statement before the Tribunal,

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contending in para-4 as under :-

"4. The Recruitment Rules for the post of Hostel Superintendent was notified as SRO 307/1987 on 23-07-1987. Hereto annexed and marked Annexure R-1 is the copy of the said SRO. The Sr. No. which deals with the said post and the prescribed pay scale is Rs.425-15-560-EB-20-640. It is revised after pay commissions as under :

IV Pay Commission (01-03-1986) 1400-40-1800-EB-50-2300

V Pay Commission (01-01-1996) 4500-125-7000

VI Pay Commission (01-01-2006) 5200-20200 -G. Pay 2800"

. Besides, the respondents had also placed on record,

pay-scale calculations of one, Mr. S.S. Shirsat who was

eventually working as Hostel Superintendent. Learned

Counsel thus contended that, it was genuine mistake on

the part of the petitioners in prescribing pay-scale in the

advertisement for the subject post. He would contend that,

Mr. Shirsat who was also working as Hostel

Superintendent was paid in pay-scale of Rs.4,500-125-

7,000.

11. We have perused the Navy Group-C Non-

Industrial                (Miscellaneous              Posts)          Recruitment




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Management Rules, 1987 which prescribes the pay-scale

for the post of Hostel Superintendent and also essential

clarification for the same. The record shows the

prescribed pay-scale for the subject post was Rs.425-15-

560EB-20-640. As against this, the respondent, (original

applicant) has pleaded in the affidavit-in-reply of July,

2017 that the pay-scale was revised to Rs.1,400-2,300

w.e.f. 1st January, 1986 under the Fourth Central Pay

Commission, which was upgraded to Rs.1,600-2660 and

further replaced by pay-scale of Rs.5,000-8,000 w.e.f. 1 st

January, 1996. To substantiate his contention, the

respondent has placed on record, pay-fixation proforma of

Mr. Shirsat, Hostel Superintendent at Exhibit-C to his

affidavit-in-reply. This pay-fixation proforma shows that

the existing pay-scale of Rs.1,400-2,300 was revised to

Rs.5,000-150-8,000. This pay-fixation proforma is dated

1st January, 1996. The contentions raised by the

respondent, original applicant in his affidavit-in-reply of

July, 2017 and the documents placed on record in support

of it, was not countered or refuted and/or disputed by the

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petitioner herein and more particularly, the pay-fixation

proforma of Mr. Shirsat who was eventually working as

Hostel Superintendent. This revision was effected from

January, 1996. In the circumstances, the contention of

the petitioners that pay-scale published in the

advertisement dated 28th June, 2008 for the post of Hostel

Superintendent was a mistake and further they have right

to correct the mistake, cannot be accepted. There is one

more reason to say so, i.e. vide communication dated 18 th

February, 2009 the Ministry of Defence directed the Flag

Officer, Commanding-in-Chief to amend the original

advertisement by issuing Corrigendum for the reason that

the case was filed in CAT, Hyderabad for enhancement of

pay-scale. The petitioners have not explained in the

petition, what was the nature of the case pending in the

CAT at Hyderabad and also as to why Corrigendum was

required for defending the case at Hyderabad. The

petitioners were duty bound to explain, how the pay-scale

advertised at the first instance, was incorrect. Petitioners

have not placed before us files containing notings before

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issuing advertisement to ascertain the fact-in issue. The

petitioners were duty bound to place on record,

calculations to substantiate their decision to reduce the

pay-scale from Rs.5,000-150-8,000 to Rs.4,500-125-

7,000. In the given circumstances in the Corrigendum

dated 21st March, 2009 issued in the employment news

was issued not for correcting the mistake, but may for the

reason, to meet some issues in the litigation in CAT at

Hyderabad. In the fact situation, we are of the opinion

that, the Tribunal has committed no error in exercise of

the jurisdiction in allowing the claim of the respondent by

judgment and order dated 14th August, 2014 passed in O.A.

No.270 of 2012. Resultantly, the petition is dismissed.

Rule is discharged with no order as to costs.

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