Ajay Patil S/O Bhagwan Patil vs The Central Administrative ...
2022 Latest Caselaw 4285 Bom

Judgment                                          1                                WP 7393.19.odt


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


                         WRIT PETITION NO.7393 OF 2019


Ajay Patil s/o Bhagwan Patil,
Age 48 years, Occupation-Nil,
R/o. Near Nagarkar's House,
Raj Bhavan Garden, Sadar,
Nagpur-440001.                                                       ..       Petitioner

                          .. Versus ..

1]      The Central Administrative Tribunal,
        Mumbai Bench, through The Registrar
        Gulestan Building, Dr. Ghanshyam
        Talwalkar Marg (Prescot Road), Fort,
        Mumbai-400001.

2]      The Union of India, through The
        Secretary, Ministry of Finance,
        Department of Revenue, North Block,
        New Delhi-110001.

3]      The Chairman, Central Board of Excise
        Custom, Ministry of Finance,
        Dept. of Revenue, 5th Floor,
        HUDCO Vishala Building, Bhikaji
        Cama Place, R.K. Puram,
        New Delhi-110066.

4]      The Chief Commissioner, Goods and
        Service Tax & Central Excise,
        Kendriya Utpad Shulk Bhavan,
        Telenkhedi Road, Nagpur-440001.                              ..       Respondents


---------------------------------------------------------------------------------------------------
Shri P. S. Sahare, Advocate for the petitioner,
Shri N.S. Deshpande, Assistant Solicitor General of India (ASGI) for the
respondents.
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 Judgment                             2                         WP 7393.19.odt


                   CORAM : SUNIL B. SHUKRE AND
                           SMT. M.S. JAWALKAR, JJ.

DATED : 25.04.2022.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Heard. Rule. Rule made returnable forthwith. Heard

finally by consent of the learned counsel appearing for the parties.

2. The case of the petitioner is that he was a daily-wager who

worked on the establishment of respondent no.4 with effect from

01.02.1990 continuously and therefore was entitled to be regularized in

the same Group-D post, in which he rendered such continuous service.

The petitioner had also alternatively claimed that he be given a chance

to take part in the selection process that was initiated for filling up two

posts of Farash, for which he was eligible and that the petitioner was

being deprived of such a chance. With these grievances, the petitioner

had approached the Central Administrative Tribunal, Mumbai Bench at

Nagpur by filing an Original Application bearing O.A. No.936/1999.

3. In response, the respondents contended that the petitioner

performed his duties only on contract basis and therefore, as held by

the Supreme Court, there was no relationship of master and servant

between the petitioner and the respondents and thus the petitioner was

ineligible for being regularized in his service as daily-wager. It was Judgment 3 WP 7393.19.odt

further submitted by the respondents that the claim of the petitioner

was indeed considered for his selection as Farash as well as Sepoy in

the selection process, but the selection process having been initiated for

filling up only general category candidates and the petitioner not

fulfilling the age criteria prescribed for general category candidates,

he was not eligible for his such consideration.

4. Considering such rival contentions and keeping in mind the

rendering of 10 years continuous service by the petitioner with the

respondents and also the proof of service on contractual basis,

produced by the respondents, pertaining to only the year 1998, the

Tribunal thought it fit to dispose of the Original Application with

certain directions. Such consideration made and directions issued by

the Tribunal are to be found in paragraph 3 of its order dated

26.09.2001 whereby the Original Application No.936/1999 came to be

disposed of by the Tribunal. For the sake of convenience, they are

reproduced as under :

"Having carefully considered the rival contentions of the parties and keeping in mind that the applicant has already rendered 10 years continuous service with the respondents and the proof of service on contractual basis produced by the respondents pertains to 1998 only, the present OA is disposed of with a direction to the respondents that in the event that exists a post of Group 'D' either Sepoy or Farash in the reserved category the applicant shall be given preference and after being subjected to selection process he shall be Judgment 4 WP 7393.19.odt

appoint in case he conforms to the eligibility criteria. Till then the applicant shall be allowed to continue on contractual basis. No costs."

5. It would be clear from the above referred directions that

the Tribunal did not accept the contentions of the petitioner regarding

his regularization of service as a contractual employee. Rather, the

Tribunal directed the respondents that if there existed any post in

Group-D either of Sepoy or Farash, the petitioner's claim would be

given preference and the petitioner would be appointed only after

being subjected to selection process, provided the petitioner also

fulfilled the eligibility criteria. These directions were considered by the

respondent no.2 sometime in the year 2014 and by the decision

communicated vide its letter dated 01.04.2014, the respondent no.2

held in paragraph 8 as follows :

"8. Therefore, the Department has fully complied with the Hon'ble CAT's order dated 26.9.2001 which require that Shri Ajay Patil shall be appointed in case he conforms to the eligibility criteria. However, as Shri Ajay Patil did not fulfill the eligibility criteria he could not be appointed as Sepoy or Farrash or as Sweeper-cum-Safaiwala."

6. Before holding so, the respondent no.2 gave detailed

reasons in its communication dated 01.04.2014. Being aggrieved by the

same, the petitioner filed another application being Original

Application No.2077/2015 together with one Misc. Application Judgment 5 WP 7393.19.odt

No.2088/2015 before the Central Administrative Tribunal, which came

to be decided by its order passed on 21.02.2019. By this order, the

Tribunal dismissed the Original Application as being devoid of any

merit. Being aggrieved by the same, the petitioner has filed the present

petition.

7. It is the contention of the learned counsel for the petitioner

that while passing the impugned order, the department did not take

into account the order passed by the respondent no.3 vide its

communication dated 27.02.2009 which requested the department to

implement the order of the Central Administrative Tribunal passed on

26.09.2001 in Original Application No.936/1999 stating that this order

had attained finality and it was not open to the department to reopen

the issue. Ultimately, vide this letter, a request was made to the

department to implement the said order of the Tribunal by regularizing

Shri Ajay Patil i.e. the petitioner on the post of Sweeper-cum-Safaiwala

and send compliance report in the matter to the Board for onward

transmission to the National Commission For Scheduled Castes.

8. If we carefully peruse the communication dated

27.02.2009 which is called by the petitioner to be an order of

respondent no.3, we would find that it is nothing but an opinion of the

respondent no.3 interpreting the order of the Central Administrative Judgment 6 WP 7393.19.odt

Tribunal dated 26.09.2001 as per its own understanding. The order of

the Tribunal dated 26.09.2001 delivered in Original Application

No.936/1999, the operative portion of which reproduced earlier, does

not say anywhere that the petitioner should be regularized, even when

there is not available any post of Farash or Sepoy, even when the

petitioner does not fulfill the eligibility criteria including the criteria

relating to upper age limit. The order also does not say that the

petitioner should be appointed without following the selection process.

The communication dated 27.02.2009, however, makes a request to the

department to implement the said order of the Tribunal "by

regularizing Shri Ajay Patil (the petitioner) on the post of Sweeper-

cum-Safaiwala and send a compliance report in the matter to the Board

for onward transmission to National Commission for Scheduled Castes",

which is not the import of the order dated 26.09.2001. The order dated

26.09.2001 is, in fact, a balanced order and it considers appropriately

the need for fulfillment of eligibility criteria, availability of the vacancy

in the relevant post and the requirement of following of proper

selection procedure. But, all these aspects, essential elements of

Tribunal's order, have been ignored while sending the communication

dated 27.02.2009 by the respondent no.3 to the department and

adding something which was not in the Tribunal's order, a request for

regularization was made, which was an illegality manifestly committed.

Judgment 7 WP 7393.19.odt

Therefore, the communication dated 27.02.2009 could, at best, be

taken as opinion of respondent no.3 having no binding effect on

anyone, in law.

9. The effect of direction issued by the Tribunal in Original

Application No.936/1999 in its true sense, however, has been

considered appropriately in the order passed by the Tribunal on

21.02.2019 which is impugned herein. Not only that, in the impugned

order, the Tribunal has considered appropriately the decision recorded

by the respondent no.2 in the letter dated 01.04.2014. This decision

notes that the petitioner was not found eligible to be appointed as

'Sepoy', because he did not fulfill the age criteria of 18-25 years, which

is the age criteria prescribed for open category candidates. The post of

Sepoy, without any dispute, was to be filled up from open category

candidates and since the petitioner had crossed the upper age limit

prescribed for open category candidates, the petitioner could not have

been considered for being appointed to such a post. After all, the

original order passed by the Central Administrative Tribunal on

26.09.2001, had categorically stated that before appointing the

petitioner, the respondents would have to ensure that the petitioner

fulfilled the eligibility criteria. Therefore, nothing wrong could be found

in non-consideration of the petitioner for his appointment to the post of Judgment 8 WP 7393.19.odt

'Sepoy' by the respondent no.3. It is further seen from the decision

dated 01.04.2014 that the department had also considered on its own,

without there being any direction issued in that regard by the Tribunal,

possibility of appointment of the petitioner to the post of Sweeper-cum-

Safaiwala. Here also, the department found that the petitioner did not

fulfill the eligibility criteria for this post, he being over-age for that post

even after granting of age relaxation. On factual basis, no error in such

a finding was noticed by the Central Administrative Tribunal and there

is no reason for us to disagree with the finding so recorded by the

department in its decision dated 01.04.2014.

10. As regards the direction for considering the claim of the

petitioner to grant him a temporary status, the department found that

the petitioner was not eligible for such a status in accordance with the

office memorandums of DOP&T dated 10.09.1993 and 12.07.1994. The

Tribunal, in its impugned order, noticed no fault in such a finding

recorded in the impugned order dated 01.04.2014 by department. No

contrary material has been brought on record by the petitioner to

enable us to interfere with such opinion of the Tribunal and therefore,

we do not see any reason for us to record a finding that the conclusion

so reached by the department regarding ineligibility of the petitioner to

be accorded temporary status is erroneous.

Judgment 9 WP 7393.19.odt

11. The learned counsel for the petitioner further submits that

there was an admission given by the respondent no.2-Board about the

petitioner not being over-age on the date of the order dated 26.09.2001

and that this fact has not been considered appropriately by the

Tribunal, while passing the impugned order. He submits that,

therefore, a review application was moved by the petitioner being

Review Application No.2006/2019, but even, this application was

rejected by the respondent no.1-Tribunal, vide its order dated

02.05.2019, which has also been challenged by the petitioner in this

petition. In the communication dated 02.09.2008, it is indeed stated by

way of admission given by the Central Board of Excise and Customs

that the applicant was not over-age on the date of delivery of judgment

by the Tribunal on 26.09.2001. The petitioner, while filing Original

Application No.2077/2015, had also taken this ground while

questioning the legality and correctness or otherwise of the decision

dated 01.04.2014. The impugned order passed by the Tribunal in the

Original Application as also the impugned order passed in the Review

Application by the Tribunal, both do not show any consideration of the

submission of the petitioner that as per the own admission given by the

Central Board of Excise and Custom, the petitioner was not over-age on

the date of delivery of the judgment and order dated 26.09.2001 by the

Tribunal. Ordinarily, this fact would have been sufficient for us to Judgment 10 WP 7393.19.odt

quash both the impugned orders and remand the matter for fresh

consideration and decision by the Central Administrative Tribunal. But,

the realistic view of the whole issue is required to be taken. In order to

find out the factual reality, we made a query to the learned counsel for

the petitioner to ascertain the date of birth of the petitioner, to which

the learned counsel for the petitioner replied that the petitioner's date

of birth is 08.05.1970. Such date of birth of the petitioner would make

the petitioner a person of 31 years of age on 26.09.2001 which means

that upper age limit of 25 years prescribed for open category candidates

had been crossed by the petitioner on the date of the judgment itself.

Against the background of this reality, the admission given by the

Central Board of Excise and Customs in its communication dated

02.09.2008 is pushed into realm of falsity and therefore, the statement

made in the said letter cannot be considered to be an admission which

would bind the department. It is only an admission of a fact which

exists and not of the one which does not exist is what binds a person in

law. Therefore, the department cannot be held to be bound by this so

called admission. If this is so, no fruitful purpose would be served by

remanding the matter back to the Central Administrative Tribunal.

12. There is one more aspect which requires consideration by

this Court. The petitioner had made a complaint against the Judgment 11 WP 7393.19.odt

department to State Commission For Scheduled Castes. The complaint

was about his non-regularization as a regular employee. The State

Commission For Scheduled Castes, Pune, in its order dated 25.02.2009,

however, found that the petitioner had misled the Commission, had

provided fictitious, tampered and forged copies of letters to the

Commission and they may result in penal action. With such adverse

finding recorded against the petitioner, this petition deserves no

cognizance in exercise of extra-ordinary jurisdiction of this Court under

Article 226 of the Constitution of India. Of course, the learned counsel

for the petitioner places reliance upon the order dated 19.03.2013

passed by the National Commission For Scheduled Castes

recommending that the order of the Central Board of Excise and

Customs be considered as final order in the matter of regularization of

service of the petitioner as 'Sepoy'. But, even in this order, the finding

recorded by the State Commission For Scheduled Castes has not been

upset.

13. The learned counsel for the petitioner also submits that the

Central Board of Excise and Customs had convened a meeting on

11.02.2014 before the decision dated 01.04.2014 which was

communicated to the National Commission For Scheduled Castes. He

submits that the minutes of the meeting recorded by the Board do not Judgment 12 WP 7393.19.odt

show any consideration of letter dated 27.02.2009 issued by the Board.

We have already considered the effect of this communication dated

27.02.2009, which is called as order of the Board by the petitioner and

we have found that it is nothing but an opinion given by the Board by

interpreting the order of the Tribunal dated 26.09.2001 in its own way,

which has no binding effect on the Department. We have also found

that it was inconsistent with the order of the Tribunal. Therefore,

nothing wrong could be found in non-consideration of an earlier

opinion of the Board, not factually correct, in the subsequent Board

meeting.

14. In the result, there is neither any error of fact nor any

illegality committed by the Tribunal in passing the impugned order and

therefore, no interference in the same is required. The petition stands

dismissed.

                                           (SMT. M.S. JAWALKAR, J.)        (SUNIL B. SHUKRE, J.)
                                Gulande




Signed By:ABHIMANYU
SHANKARRAO GULANDE
PS to the Hon'ble Judge

Signing Date:27.04.2022 15:06