Bombay High Court
Shri. Arun Kumar Shrivastava vs Union Of India, Through The ... on 29 March, 2017
Bench: V.K. Tahilramani
10.wp 9019.13.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9019 OF 2013
Shri Arun Kumar Shrivastava
Retired Central Govt. Employee was
working as Director/Controller Warehousing
Material Organisation, Naval Store Depot,
Ghatkopar (West), Mumbai 400 086 and
Residing at Naval Park, 02 Kaveri,
L.B.S. Marg, Ghatkopar (West),
Mumbai 400 086 .. Petitioner
Vs.
1. Union of India through
The Defence Secretary,
101, A South Block, Ministry of Defence,
New Delhi 110 011.
2. The Chief of Naval Staff
For Principle Director of Civilian Personnel
Integrated Headquarters, Ministry of
Defence (Navy), Sena Bhavan,
New Delhi, 110 011.
3. The Flag Officer Commanding-in-Chief,
For The Chief Administrative Officer,
Command Civilian Personnel Officer,
Naval Headquarter,
1/7
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10.wp 9019.13.doc
Western Naval Command,
Shahid Bhagat Singh Road,
Mumbai 400 023. .. Respondents
Ms.Manda Loke, for the Petitioner.
Smt.Neeta Masurkar a/w Mr.Vinay S.Masurkar & Mr.Vinod
Joshi, for Respondents No. 1 to 3 / Union of India.
CORAM : SMT. V.K.TAHILRAMANI &
M.S.KARNIK, JJ.
29th MARCH, 2017
JUDGMENT (PER M.S.KARNIK, J) :
. Rule. By consent of the parties, Rule is made
returnable forthwith and the matter is heard finally.
2. The petitioner in this Petition has sought direction to
the respondents to implement and comply the order dated
09/01/2012 in Original Application No. 285 of 2011 passed by
the Hon'ble Central Administrative Tribunal, Bombay Bench,
Mumbai (hereinafter referred to as 'Tribunal' for short) The
petitioner has also prayed for the following reliefs.
10.wp 9019.13.doc
".....(ii) That this Hon'ble Court may be pleased to issue
appropriate writ in the nature mandamus or order and
direction to the respondents to implement the order dated 9 th
January, 2012 and further direct them to amend Recruitment
Rules as per 6th Pay Commission and issue Promotion order
w.e.f. 26 September, 2008 i.e. date of officiating as Director.
(ii) That this Hon'ble Court may be pleased to issue
appropriate writ in the nature mandamus or order and
direction to the respondents for implementation of the
Promotion order and further to issue direction for granting
officiating allowance to the applicants w.e.f. 26 Sept., 2008.
(iii) That this Hon'ble Court may be pleased to issue
appropriate writ in the nature mandamus or order and
direction to the respondents for granting officiating allowance
to the applicants w.e.f. 9 May 07 to 24 Aug, 07;..."
3. The petitioner had filed Original Application No. 285
of 2011 before the Tribunal in respect of the grievance
pertaining to the officiating allowance for working on the post of
Director with effect from 01/10/2008. Second grievance of the
petitioner relates to his regular promotion to the post of
Director. The said Original Application came to be disposed of
by partly allowing the Original Application in the following
terms.
"...5. In this backdrop, we are of the considered opinion
that the respondents should consider the case of the
applicant for grant of officiating Allowance as per rules,
duly taking into consideration F.R.49. Respondents shall
do the needful within three months from the date of
receipt of a copy of this order so far as the first grievance
of the applicant regarding Officiating Allowance is
concerned. On considering his case, if the applicant is
found to be eligible, he shall be entitled to arrears, etc.
10.wp 9019.13.doc
from the date he has been discharging the duties of
Director in question. Ordered accordingly.
6. Turning to the second grievance of the applicant, i.e.
regular promotion to the post of Director, it is noted from
the impugned order as well as reply that the respondents
are in the process of seeking suggestion for providing a
combined service of NSO/SNSO from various quarters.
This would also need an amendment to the recruitment
rules. Therefore, this whole procedure would require
some time to do the needful to redress the grievance of
the applicant and other similarly situated officers, if any.
7. Keeping in view the totality of the facts and
circumstances of the case, and the submissions made by
the parties at the bar, the respondents are also directed to
carry out the process of amendment of the recruitment
rules within a period of six months from the date of
receipt of a copy of this order and do the needful within
the said period in terms of para (c) of the order dated
15.06.2010 read with similar averments made in the
reply. Ordered accordingly...."
4. Pursuant to the order dated 09/01/2012, the
respondents filed Misc. Application No. 1020 of 2012 submitting
compliance report in respect of the order passed by the Tribunal.
The said Misc. Application was disposed of by the Tribunal by
order dated 15/01/2013 observing that the directions issued by
the Tribunal have been complied with. The relevant portion of
speaking order dated 25/10/2012 passed by the respondents in
compliance with the Tribunal's order reads thus :
"....6. As regards the Tribunal's direction for payment of
officiating allowance, it is to state that you were entrusted
with the duties of CWH by the MS when :
10.wp 9019.13.doc
(i) The officer holding the post of Director (stores) proceeded
on leave from 09th May to 24th Aug 2007.
(ii) The Director was promoted and posted out wef.26 Sep.
2008 and the post was lying vacant because of ineligibility of
officers in the feeder grade for promotion as per existing RRs.
These two temporary officiating arrangements were made by
the officer-in-charge of Material Organisation and not by the
Cadre Controlling Authority which is IHQ MoD (Navy)/DCP
or by MoD, the Appointing Authority for the post of Director.
Besides above, you are not fulfilling all the criteria under F.R.
49 as contained in Chapter VI (Combination of
Appointments) in Swamy's Compilation on Fundamental
Rules.
7. In so far as the Tribunal's direction for completion of
revision of RRs within six months and considering your case
for promotion to the grade of Director, it is stated that the
proposal for amendment of RRs of NSOs is in progress and
presently the case is with MoD/DOP &T. However, the case
for one time relaxation of qualifying service for promotion
from SNSO to Director was considered by DOP&T and
accordingly, two officers viz Shri Hari Om Singh and yourself
have been promoted to the grade of Director in the pre-
revised pay scale of Rs.14300-18400/- (now revised to
Rs.37400-67000 with Grade Pay of Rs.8700) vide IHQ letter
No. CP(G)/4006/DIR/DPC dated 21 Sep 2012.
8. In view of the position explained above, your prayer for
promotion to the grade of Director has already been
addressed to. However, your request for officiating allowance
or pay of the higher post for the periods in which you were
holding the charge of Director /CWH under he internal
arrangement of Material Organisation (MB), was not found
admissible under extant rules."
5. The Tribunal by order dated 15/01/2013 also
disposed of Contempt Petition No. 1 of 2013 filed by the
petitioner observing that the order of the Tribunal is duly
10.wp 9019.13.doc
complied with. As indicated earlier, the petitioner's main prayer
is for implementing order dated 09/01/2012 passed by the
Tribunal. The principal contention raised by the learned
Counsel for the petitioner is that the implementation of the
order passed by the Tribunal is not in consonance with the
provisions of F.R. 49 (Fundamental Rules). Learned Counsel for
the petitioner placed reliance on F.R. 49 to contend that
respondents have not implemented the order passed by the
Tribunal.
6. In our opinion, the present Petition is completely
misconceived. In the light of directions issued by the Tribunal
and after considering the provisions of F.R. 49, the respondents
have passed a speaking order dated 25/10/2012 in compliance
with the order passed by the Tribunal. If the petitioner is
aggrieved by the order dated 25/10/2012, it is for the petitioner
to seek appropriate recourse against the same in accordance
with law. The petitioner is virtually calling upon the Tribunal to
decide the legality and propriety of the order dated 25/10/2012
10.wp 9019.13.doc
in contempt proceedings which is not the scope of contempt
jurisdiction. The said prayer therefore cannot be entertained in
this Petition. The Contempt Petition filed by the petitioner
before the Tribunal contending non-compliance of the order
passed by the Tribunal has rightly been rejected by the Tribunal
holding that the order of the Tribunal is complied with.
Consequently the Tribunal is also justified in rejecting the
Review Petition filed in respect of the order in Contempt Petition
holding that there was no error apparent on the face of the
record.
7. In this view of the matter, as the directions issued by the
Tribunal are duly complied with, we do not see any reason to
issue directions as prayed for by the petitioner in exercise of our
extraordinary writ jurisdiction.
8. The Writ Petition, therefore, stands rejected with no
order as to costs. Rule is discharged.
(M.S.KARNIK, J.) (SMT. V.K.TAHILRAMANI, J.)
