Ms. Vaishali Ravindra Joshi And ... vs Union Of India Through Director ...
2023 Latest Caselaw 935 Bom

Rane                              1/12             WP-1513-2016


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                CIVIL APPELLATE JURISDICTION

                WRIT PETITION NO. 1513 OF 2016



1. Ms. Vaishali Ravindra Joshi

(Maiden name) alias

Mrs. Vaishali Sanjay Joshi

2. Shri. Santosh Atmaram Lohar

alias Shri. Santosh Atmaram Jadhav

3. Shri. Dhananjay Keshavrao Ingole

4. Shri. Ganesh Khalapabhai Patel

5. Smt. Jashree Waman Joshi (maiden name)

alias Supriya Sachin Malshe              )    PETITIONERS

       : VERSUS :

1. Union of India, through Director General

2. The Chief Post Master General

3. Superintendent of Post Offces         )    RESPONDENTS

                                -----

Mr. Vinod Tayade, Advocate for the petitioners.

Mr. Neeta Masurkar a/w. Mr. D.A. Dube, Advocate for

       respondents no.1 to 3.



            CORAM : S.V. GANGAPURWAL, ACTING C.J. &

                      SANDEEP V. MARNE, J.

Rane 2/12 WP-1513-2016

Judgment Resd on : 17th January, 2023.

Judgment Pron. on : 30th January, 2023.

Judgment : (Per Sandeep V. Marne, J.) :

1. By this petition, petitioners assail judgment and

order dated 3rd October, 2013 passed by the Central

Administrative Tribunal (Tribunal) in Original Application No.

352/2012, so also order dated 12 th August, 2014 rejecting the

Review Petition. Petitioners had instituted Original Application

No. 352/2012 for ante-dating their appointments either w.e.f. 1 st

November, 2000 or alternatively w.e.f. 17th October, 2002 so as

to avail the beneft of old pension scheme. By the judgment

impugned in the present petition, the Tribunal has dismissed

the Original Application. Petition seeking review of the

judgment has also been rejected.

2. Brief facts of the case are that, the respondent-

Postal Department had sent a requisition to the Employment

Exchange for flling up the posts of Postal Assistant in Navi

Mumbai Division. Petitioners had apparently registered their

names with the Employment Exchange and their names came to

be sponsored in pursuance of the indent sent by the respondent.

They participated in the selection process consisting of written

test and interview, came to be provisionally selected for Rane 3/12 WP-1513-2016

appointment as Postal Assistant and were issued offers of

appointment. By letter dated 10th January, 1997 they were

directed to join duties within 15 days. Petitioner underwent

theoretical and practical training at the costs of Respondents.

3. However later, respondents revised the merit list on

22nd January, 1997 alleging irregularity in evaluation of marks

obtained by candidates in aptitude test. In the revised merit list,

petitioners' names were deleted from the merit list. They were

however, kept attached as Short Duty Assistant Assistants.

Their names were maintained on waiting list. Representations

were made by them for regular appointments on the post of

Postal Assistant, which were turned down vide order dated 30 th

June, 2000.

4. Petitioners approached the Tribunal by fling

Original Application No. 783/2001 which came to be partly

allowed on 17th October 2002 with a direction to respondents to

grant them regular appointments in accordance with their

seniority against frst available vacancies. The Order of the

Tribunal was unsuccessfully challenged by Respondents before

this Court and before the Supreme Court.

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5. Respondents thereafter appointed petitioners as

Postal Assistants by order dated 17th August, 2004, from

prospective dates. They made representations for ante-dating

their appointments alleging existence of vacancies, which were

turned down on 14th July, 2002. This led to fling of Original

Application No.1/2008 which came to be disposed of by the

Tribunal by its order dated 13 th January, 2010 directing the

respondents to reconsider the whole matter by verifying the

vacancy position, occurring as on 17th October, 2002 and in the

event of availability of vacancies to ante-date their

appointments.

6. By reply dated 9th May, 2011, respondents rejected

their request for ante-dating of appointments on the ground of

non-availability of vacancies as on 17 th October, 2002. This led

to fling of third round of litigation in the form of Original

Application No. 352/2012 seeking ante-dating of appointments

either w.e.f. 1st November, 2000 or alternatively atleast from

17th October, 2002. By judgment and order dated 3 rd October,

2013, which is impugned in the present petition, the Tribunal

proceeded to dismiss the Original Application. Petition seeking

review of the judgment has also been rejected on 22 nd August,

2014.

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7. Appearing for the petitioner, Mr. Tayade, the learned

Counsel would submit that there were 41 unflled vacancies of

Postal Assistants available in Navi Mumbai Division as on 17 th

October, 2002 and this information was conveyed under the

Right to Information Act, 2005 vide letter dated 5 th February,

2010. He would further submit that appointments were given to

the candidates borne on select list upto the year 2000, as and

when vacancies arose and that no recruitment was undertaken

in Navi Mumbai Division during 1996 till 2004. That during

pendency of litigation initiated by the petitioners, recruitment

process for Navi Mumbai Division was undertaken through

other Division and after completion of pre-appointment

formalities, appointments were given in Navi Mumbai Division

for vacancies for the year 2001-2002. That while commuting

vacancies of Postal Assistants for the year 2001, 2002 and

2003, a remark was passed to the effect that vacancies were

reserved for 7 Short Duty Postal Assistants candidates from

outsider quota who had passed selection in 1996 and completed

theoretical training, as well as, practical training.

8. Lastly, Mr. Tayade would reply upon the Offce

Memorandum dated 17th February, 2020 issued by the

Department of Pension and Pensioners Welfare, under which a

special provision is made for application of provisions of Old Rane 6/12 WP-1513-2016

Pension Scheme to candidates selected through common

selection process fnalised prior to 1st January, 2004, who were

issued actual appointment orders after 1st January, 2004 due to

administrative reasons. Mr. Tayade would in support of his

contention rely upon the judgments in Nirmal Chandra

Bhattacharjee and Others Versus. Union of India & Ors. 1991

Supp (2) SCC 363 and Rakesh Ranjan Verma and Ors. Vs. State

of Bihar and Ors. 1992 Supp (2) Supreme Court Cases 343.

9. Per-contra, Ms. Masurkar the learned Counsel

appearing for the respondents would oppose the petition and

support the order passed by the tribunal. She would submit that

it is beyond purview of judicial review either for the Tribunal or

for this Court to direct flling of vacancies, even if they existed.

She would submit that the Department successfully

demonstrated before the Tribunal that no vacancies existed for

appointment of the petitioners as on 17 th October, 2000. She

would dispute application of provisions of Offce Memorandum

dated 17th February, 2020 submitting that the petitioners had

no right of appointment prior to 1 st January, 2004 and that the

provisions of the said Offce Memorandum have no application

to the facts of the present case. In support of her contentions,

Ms. Masurkar, would rely upon the judgments of the Apex Court

in the case of Rakesh Ranjan Verma (supra) and State of Rane 7/12 WP-1513-2016

Uttaranchal and Another Versus. Dinesh Kumar Sharma,

(2007) 1 SCC 683.

10. Rival Contentions of the parties now fall for our

consideration.

11. Petitioners do not dispute correctness of revision of

the merit list after revaluation of marks and deletion of their

names from the select list. This issue has already attained

fnality in view of the judgment and order dated 17 th October,

2002 passed in Original Application No. 783/2001. Therefore

having upheld deletion of their names from the merit list,

petitioners actually lost any right to be appointed in the Postal

Department. However, an equitable relief was granted by the

Tribunal in its judgment and order dated 17 th October, 2002 in

favour of the petitioners for consideration of their cases for

appointments against frst available vacancies. This was done

possibly because the petitioners were issued with offers of

appointments, were imparted theoretical & practical training

and were adjusted as Short Duty Postal Assistants pending

their regular appointments. The Tribunal while deciding

Original Application No. 783/2001, arrived at a fnding that

none of the advertised vacancies were available for Petitioners'

accommodation. It further held that they could not have laid Rane 8/12 WP-1513-2016

their claims for appointment in other divisions. However, only

because they were accorded both theoretical and practical

training at the cost of the Department, by applying the principle

of promissory estoppel, the equitable relief for consideration of

their cases for regular appointments against frst available

vacancies was granted.

12. The department has come out with a specifc case

that no vacancies were available as on 17th October, 2002 for

appointment of petitioners. Infact if the vacancies were indeed

available, the Tribunal would have directed appointments by its

order dated 17th October, 2002. The very fact that the tribunal

used the words 'in the frst available vacancies' itself imply that,

vacancies were not available as on 17 th October 2002 and the

Petitioners acquiesced in the position that they were to be

appointed against vacancies that were to arise after 17 th

October 2002. They did nit challenge order of the Tribunal

directing appointments 'in the frst available vacancies'. Now

they cannot be permitted to take a volte face and contend that

they should have been appointed on 1st November, 2000 or

alternatively w.e.f. 17th October, 2002.

13. After vacancies became available, petitioners were

granted regular appointments by order dated 4th October, 2004.

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It appears that the real cause for heartburn amongst the

petitioners is coming into effect of the New Defned Contributory

Pension Scheme w.e.f. 1st October, 2004. On account of they

being recruited on regular basis on 4 th October, 2004, they are

being governed by the New Defned Contributory Pension

Scheme. This appears to be the reason why they are litigating

strenuously to seek antedating of their appointments.

14. Some effort is made by petitioners to demonstrate

existence of vacancies prior to 17th August, 2004. Though in

the light of our observations made above, it is not really

necessary to go into the material produced by them to show

existence of vacancies, we did embark upon that exercise as

well to examine whether vacancies (capable of being flled up)

did exist and whether Petitioners were wrongfully denied

appointments. Reliance is placed on information supplied

under the Right to Information Act (page-45 of the paper-book)

about the vacancy position during the years 2002-2005 in Navi

Mumbai Division. From that information, it is diffcult to draw a

concrete inference that vacancies were indeed available prior to

17th August, 2004 for appointment of petitioners. Reliance is

also placed on following remark made by the Superintendent of

Post Offces, Navi Mumbai Division, Panvel in the undated 'Chart Rane 10/12 WP-1513-2016

of Computation of vacancies in P.A. Category for the year

2001" :

"Note- 7 SDPA candidates from outsider quota passed in 1996; And who have completed theoretical training and practical training are on waiting list and still to be absorbed".

The above remark, in our view, cannot lead to drawl of an

inference of existence of 7 vacancies. The remark only suggests

availability of petitioners on waiting list for being appointed.

15. The Tribunal in the impugned judgment, has gone

through the pleadings and documents placed before it and has

arrived at a fnding that vacancies were not available for being

flled up. The Tribunal has gone a step further to hold that there

is difference between "vacancies" and "vacancies approved to be

flled up". It has further held that it is always open to the

Government to decide, whether vacancies are to be flled up or

not having regard to various factors. In this connection,

reliance of Ms. Masurkar on the judgment of the Apex Court in

Dinesh Kumar Sharma (supra) is apposite in which the Apex

Court has held that, employee has no right to claim promotion

or seniority from the date the vacancy arose.

16. Both petitioners, as well as, respondents have placed

reliance on the judgment in Rakesh Ranjan Verma (supra). In Rane 11/12 WP-1513-2016

our opinion, the judgment, far from assisting the case of

petitioners, actually militates against them. The Apex Court has

held that, mere existences of some vacancies alone is not

suffcient to confer right upon employees until the Board

decided to fll them. However, the Undertaking given by the

employees therein were held to be not estopping them, as the

Supreme Court, with a view to do complete justice in the case,

directed issuance of fresh advertisement for flling up the post

of Junior Electrical Engineers, for consideration of the cases of

the appellants before it by ignoring the age bar. Such relief

seems to be granted in exercise of power under Article 142 of

the Constitution of India.

17. Reliance of the petitioners on the judgment in

Nirmal Bhattacharya (supra), is of little assistance to them. The

Apex Court has held that a benefcial rule or order should not

be construed so as to result in hardship to employee, when he is

not at fault. In the present case, no hardship is caused to

petitioners on account of interpretation of the Tribunal's

benefcial order dated 17th October, 2002. The order is fully

complied with by granting appointments to them against

available vacancies.

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18. Resultantly, we do not fnd any error being

committed by the Tribunal in dismissing the Original

Application, as well as, Review Petition fled by petitioners. The

petition is devoid of merits and the same is dismissed with no

order as to costs.

                (SANDEEP V. MARNE, J.)                                  (ACTING C.J.)

NEETA
SHAILESH
SAWANT
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2023.01.31
11:11:57 +0530