The Secretary To Govt. Of India, ... vs Shri B.V. Shriram
2017 Latest Caselaw 3421 Bom

                                                   1              J-WP-6066-13.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                       WRIT PETITION NO.  6066 OF 2013


 1. The Secretary to Government of India,
    Ministry of Finance, North Block,
    New Delhi.

 2. The Director General,
    Geological Survey of India,
    27, JL Nehru Road,
    Kolkata - 16.

 3. The Secretary to Gov. of India,
    Department of Mines,
    Ministry of Steel & Mines,
    Shastry Bhavan,
    New Delhi.

 4. The Secretary to Govt. of India,
    Department of Personnel & Training, 
    Ministry of Personnel, 
    Public Grievance & Pensions,
    North Block, New Delhi.

 5. The Deputy Director General,
    Geological Survey of India,
    Central Region, Nagpur.                             ..... PETITIONERS

                               ...V E R S U S...

 1. Shri B. V. Shriram,
    10-78, Balaji Anjanadri Venture,
    Kanchivani Singaram, Uppal,
    (Via Pizadiguda) Hydrabad 500088.

      (Amendment as per Court's order
       dated 25/10/2016)

 2. Central Administrative Tribunal,
    Bombay Bench, Mumbai.                               ... RESPONDENTS




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 -------------------------------------------------------------------------------------------
 Shri Mugdha R. Chandurkar, Advocate for the petitioners.
 Smt. Jayshree Rao, Advocate for the respondent No.1.
 -------------------------------------------------------------------------------------------


                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                                 ARUN D. UPADHYE, JJ.

DATED :-

21/06/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this writ petition, the petitioners challenge the order

of the Central Administrative Tribunal dated 14/12/2012 allowing the

original application filed by the respondent and directing the petitioners

to consider the respondent for promotion to the post of Junior

Geophysicist w.e.f. 1999.

Few facts giving rise to the petition are stated thus :-

The respondent was appointed by the petitioners in the

Geological Survey of India as a Senior Technical Assistant Geophysicist

on 31/12/1980. The respondent was promoted to the post of Assistant

Geophysicist in 1986. On 22/11/2002, the respondent was further

promoted to the post of Junior Geophysicist. In the year 2006, the

respondent filed an original application bearing No.456/2006 before

the Central Administrative Tribunal seeking a direction against the

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petitioners to consider him for promotion to the post of Junior

Geophysicist from 1999. The claim of the respondent was based on an

order passed by the Central Administrative Tribunal at Hyderabad in

Original Application No.119/2001 dated 13/11/2003. By the said

order, the Tribunal at Hyderabad had allowed the original application

filed by some employees of the Geological Survey of India for

considering their claim for promotion to the post of Assistant

Geophysicist. It was the case of the applicants before the Tribunal at

Hyderabad that the petitioners were not justified in not conducting the

D.P.C. from the year 1984 to 2001 for promoting the employees to the

post of Assistant Geophysicist. According to the Tribunal at Hyderabad,

it was not proper on the part of the petitioners not to hold the DPC for

several years and deny promotion to its employees. The Tribunal at

Hyderabad therefore directed the petitioners to consider the claim of

the employees that had approached the Tribunal at Hyderabad for

promotion to the post of Assistant Geophysicist w.e.f. 1999. The order

of the Tribunal at Hyderabad was challenged by the petitioners before

the Andhra Pradesh High Court. The Writ Petition was however

dismissed. The petitioners challenged the orders of the Central

Administrative Tribunal, Hyderabad and the Andhra Pradesh High

Court before the Hon'ble Supreme Court in Civil Appeal No.4156/2008.

When the impugned order was passed on 14/12/2012, the Civil Appeal

filed by the petitioners before the Hon'ble Supreme Court was pending.

4 J-WP-6066-13.odt

The Hon'ble Supreme Court has decided the appeal on 14/02/2017. It

is observed by the Hon'ble Supreme Court in the Judgment in the

appeal that a promotion could take effect only from the date on which it

is granted and not from the date of occurrence or creation of vacancy.

The Hon'ble Supreme Court observed that it was not proper on the part

of the Central Administrative Tribunal at Hyderabad to ignore this well

established principle and grant the benefit of promotion to the

applicants that had approached the Central Administrative Tribunal at

Hyderabad w.e.f. 1999. The Hon'ble Supreme Court however held that

since the promotions were granted to the applicants before the Tribunal

at Hyderabad with retrospective effect by implementing the order of

Central Administrative Tribunal, Hyderabad, it was not proper to

interfere with the order of the Tribunal that was affirmed by the High

Court. The Hon'ble Supreme Court observed that the benefit of the

order was availed by the employees that had approached the Central

Administrative Tribunal at Hyderabad and most of them stood

superannuated. In the aforesaid background, the Hon'ble Supreme

Court did not interfere with the order of the Tribunal, though it had

held that the Tribunal could not have issued directions against the

present petitioners to promote the original applicants with retrospective

effect i.e. 1999. In the aforesaid set of facts, the order of the Tribunal is

assailed by the petitioners in the instant petition.

5 J-WP-6066-13.odt

Mrs. Chandurkar, the learned counsel for the

petitioners submitted that it is apparent from a reading of the Judgment

of the Hon'ble Supreme Court that promotion cannot take effect from

the date of occurrence or creation of vacancy and it can take effect from

the date on which it is actually effected. It is submitted that though the

Hon'ble Supreme Court found that the Tribunal at Hyderabad was not

justified in allowing the original application filed by the applicants

before it and granting the promotion to the applicants with

retrospective effect, in the peculiar facts of the case, since the order of

the Tribunal was implemented and most of the applicants before it had

retired on attaining the age of superannuation, the order was not

interfered with. It is submitted that the respondent cannot seek parity

with the employees that had approached the Tribunal at Hyderabad in

the year 1999. It is submitted that in 2000, the original applicants in the

matter before the Tribunal at Hyderabad had approached the Tribunal

with the prayer for their promotion to the posts of Assistant

Geophysicists. It is submitted that the respondent did not take any

action against the petitioners till an order was passed in favour of the

employees that had diligently approached the Tribunal at Hyderabad in

the year 2003. It is submitted that the original application was filed by

the present respondent after waiting for the decision in the matter of

the employees that had approached the Tribunal at Hyderabad. It is

submitted that there cannot be a parity between the original applicants

6 J-WP-6066-13.odt

that had approached the Tribunal at Hyderabad in the year 2000 and

the present respondent who had filed the original application in the

year 2006. It is submitted that the Central Administrative Tribunal did

not consider these aspects of the matter while deciding the original

application filed by the respondent. It is submitted that even otherwise,

the respondent was placed at Sr.No.28 in the seniority list of employees

that were entitled to be considered for promotion to the posts of

Assistant Geophysicist and only 24 posts were required to be filled in

from the open category.

Mrs. Rao, the learned counsel for the respondent has

supported the order of the Tribunal. It is submitted that the respondent

had intervened in the matter before the Hon'ble Supreme Court and the

intervention application filed by the respondent was allowed by the

Hon'ble Supreme Court. It is submitted that when the employees that

were junior to the respondent are promoted to the posts of Assistant

Geophysicists in view of the order of the Tribunal at Hyderabad, it

would be improper to deny similar relief to the respondent. It is

submitted that the employees that were junior to the respondent have

been promoted to the post of Assistant Geophysicist in terms of the

order of the Tribunal at Hyderabad. It is submitted that similar relief

cannot be denied to the respondent merely because the respondent had

filed the original application in the year 2006 and the original

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applicants before the Tribunal at Hyderabad had filed the same in the

year 2000. It is submitted that the Tribunal has rightly considered these

aspects of the matter, specially the aspect that employees junior to the

respondent have been promoted to the posts of Assistant Geophysicists

w.e.f. 1999 and granted similar relief to the respondent. It is submitted

that if the petitioners can promote the respondent on the posts of Senior

Geophysicist w.e.f. 31/12/2008 by applying the order passed by the

Tribunal at Hyderabad in the case of original applicants therein, the

petitioners should not have denied the promotion to the respondent on

the post of Junior Geophysicist. The learned counsel for the respondent

sought for the dismissal of the writ petitioner.

On hearing the learned counsel for the parties, it

appears that the Tribunal was not justified in allowing the original

application filed by the respondent. Unfortunately for the Tribunal, the

Hon'ble Supreme Court had not decided the civil appeal filed by the

petitioners before the Hon'ble Supreme Court challenging the Judgment

of the Tribunal at Hyderabad and the Judgment of the Andhra Pradesh

High Court till the Tribunal decided the matter. The Hon'ble Supreme

Court has decided the civil appeal on 14/02/2017. It is clearly held by

the Hon'ble Supreme Court in the Judgment in the civil appeal that the

Tribunal at Hyderabad was not justified in granting the benefit of

promotion to the original applicants before it with retrospective effect.

8 J-WP-6066-13.odt

The Hon'ble Supreme Court, by relying on several decisions rendered by

the Hon'ble Supreme Court from time to time held that a promotion

would take effect from the date on which it is granted and not from the

date of occurrence or creation of the vacancy. By applying the said

principle which is well settled, the Hon'ble Supreme Court held that the

Tribunal should not have directed the petitioners to grant promotion to

the original applicants before it, with retrospective effect i.e. from the

year 1999. The Hon'ble Supreme Court did not interfere with the order

of the Tribunal, only by taking a sympathetic view in the matter as the

original applicants that had received the benefits of the Judgment of the

Tribunal at Hyderabad had been superannuated and the order of the

Tribunal at Hyderabad was implemented since long. The Tribunal was

not justified in passing the impugned order by only relying on the order

passed by the Tribunal at Hyderabad. Merely because some of the

diligent employees had approached the Tribunal at Hyderabad and had

secured the relief, the Tribunal could not have granted the relief in

favour of the respondent in an original application filed by him in the

year 2006.

Apart from the aforesaid, there is an additional reason

for denying the relief to the respondent. The Hon'ble Supreme Court

has time and again held that there cannot be a parity between the

vigilant litigant and the non-vigilant ones. The original applicants

9 J-WP-6066-13.odt

before the Tribunal at Hyderabad were vigilant enough to file the

original application in the year 1999. The respondent herein did not file

an original application along with them. The respondent sat on the

fence waiting for the result of the proceeding before the Tribunal at

Hyderabad. The Tribunal at Hyderabad decided the proceeding in

favour of the original applicants before it in the year 2003. The Andhra

Pradesh High Court dismissed the petition filed by the petitioners in the

year 2006. By taking advantage of the orders that were passed in favour

of vigilant litigants the respondent, who did not do anything in the

matter for almost 6 years, filed the original application before the

Central Administrative Tribunal at Mumbai to seek directions against

the present petitioners on the basis of the order passed by the Tribunal

at Hyderabad. Though the respondent was already promoted to the post

of Assistant Geophysicist in 2003, by filing the original application in

2006, he sought the said promotion with effect from 1999 on the basis

of the Hyderabad Tribunal's order. It is settled that the non-vigilant

litigants would not be entitled to the relief that is granted to the vigilant

litigants long time back. As the vigilant and non-vigilant litigants fall in

different classes, there cannot be any parity between them. It would be

worthwhile to refer to the Judgments of the Hon'ble Supreme Court,

reported in 2006 (11) SCC 464, 1997 (11) SCC 13, 2007 (9) SCC 274

and 1995 (5) SCC 628 in this regard.

10 J-WP-6066-13.odt

Hence, for the reasons aforesaid, the writ petition is

allowed. The impugned order of the Tribunal is quashed and set aside.

The original application filed by the respondent stands dismissed. Rule

is made absolute in the aforesaid terms with no order as to costs.

                      JUDGE                                       JUDGE


 Choulwar