Mahesh Kumar Bajpai vs Union Of India & Ors.

By Justice Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are that applicant was enrolled in the Employment Exchange Office, Kanpur and as per advice of authority of Employment Exchange, the applicant appeared before the respondents for interview to the post of Tailor (Semi Skilled). Applicant was declared successful in the interview. Although applicant was declared successful in the interview but he has not been given appointment. In the aforesaid selection, 18 candidates were given appointment. Applicant made several representations to the General Manager but no heed was paid to him. Ultimately, applicant sent a representation to the Hon’ble Prime Minister. In response to it, on 24.04.1990, the Staff Officer of respondent No. 2 has replied to the representation of the applicant expressing his inability to appoint the applicant as there was a ban on recruitment. Aggrieved by discriminatory attitude of the respondents, the applicant along with few other candidates, who were selected but were not given appointment approached this Tribunal by filing OA No. 1022 of 1990 seeking a direction to the respondents to give appointment in pursuance of the aforesaid selection. The aforesaid original application was disposed of by the Tribunal by its order dated 03.11.1992 observing therein that since the ban as alleged has been lifted and the applicants were already trade tested and declared successful, they should be given priority over new comer or fresh candidate. Instead of complying with the order of this Tribunal, respondents filed an application to review the aforesaid order of the Tribunal. Review Application was heard and was rejected with the observation that even if the ban has not been removed, the order will came into effect whenever the ban is lifted and even otherwise the order will remain in effect despite the fact that any appointment or engagement has been made. Respondents have issued fresh notification for appointment to the post of Tailor (Semi Skilled). Aggrieved against the aforesaid notification, applicant again filed original application No. 563 of 1999 before this Tribunal. After hearing both the parties, the aforesaid original application was allowed by order dated 24.11.2004 with the following direction:-

The aforesaid order of the Tribunal was challenged before the Hon’ble Allahabad High Court by way of Writ Petition No. 568 of 2005 in which Hon’ble High Court had initially granted interim order in favour of the respondents. Subsequently, after hearing both the parties, the writ petition of the respondents was dismissed by judgment and order dated 11.01.2013. After receiving the judgment of Hon’ble High Court, applicant submitted a representation dated 08.04.2013 to the applicant for compliance of aforesaid judgment of Hon’ble High Court. Ultimately order of the Tribunal was complied with and applicant was given appointment to the post of Tailor (Semi Skilled) w.e.f. 16.01.2014. In this matter, applicant is seeking appointment to the post of Tailor (Semi Skilled) from the date of order of the Tribunal dated 24.12.2004 (after four weeks of delivery of order of the Tribunal).

We have heard learned counsel for the parties and perused the record.

Submission of the learned counsel for the applicant is that respondents are duty bound to give appointment to the applicant in pursuance of orders of the Tribunal dated 03.01.1992 as well as 24.11.2004 but the respondents have issued appointment letter in the year 2014 which is totally discriminatory and not in accordance with law. Learned counsel further submitted that respondents may be directed to modify the appointment letter as per the direction of the Tribunal and give all consequential benefits to the applicant as against the order of the Tribunal respondents have filed writ petition, which was already dismissed.

In rebuttal, learned counsel for respondents argued that all 18 candidates whose PVR was received before the ban was imposed on direct recruitment by Government of India were appointed. It has also been argued that the applicant taken legal course of action continuously with respondents since 1990 and which ended on 11.01.2013 when Hon’ble High Court Allahabad vacated the stay order dated 07.01.2005 in Civil Misc. Writ Petition No. 568 of 2005, thus, applicant was entitled to be appointed after the decision of Hon’ble High Court i.e. 11.01.2013. He also argued that in compliance of the direction of the Hon’ble High Court, applicant was appointed as Tailor (Semi Skilled) w.e.f. 16.01.2014. There is no illegality or infirmity in the appointment order.

We have considered the rival submissions of the parties and perused the entire records.

In this case, the main point for adjudication of the case is that whether applicant’s appointment from the date of judgment of the Hon’ble High Court is correct or appointment should have been made giving effect from the date of judgment of Tribunal.

From the perusal of the record, it reveals that the applicant was declared successful in the examination held for the post of Tailor (Semi Skilled) and his name finds place in the list prepared for the aforesaid post but due to administrative reason, he could not be given appointment. Applicant made several representations to this effect. When his request was not acceded to, applicant filed original application No. 1022 of 1990 for direction to the respondents to give appointment in pursuance of aforesaid selection. OA No. 1022 of 1990 was disposed of by the Tribunal by its order dated 03.11.1992. Instead of complying with the order of the Tribunal dated 03.11.1992, respondents filed an application to review the order dated 03.11.1992 mentioning therein that since ban was still in existence, no appointment in compliance of the order dated 03.11.1992 can be made. The review application of the respondents was rejected by its order dated 04.03.1993. It is also evident from the record that respondents issued notification dated 26.04.1999 by which fresh selection for the post of Tailor (Semi Skilled) was started. Aggrieved against the aforesaid notification, applicant filed OA No. 563 of 1999 before this Tribunal seeking a direction to the respondents to give appointment to the applicant in pursuance to the order of the Tribunal dated 03.11.1992. After hearing both the parties, this Tribunal allowed aforesaid OA by order dated 24.11.2004 whereby respondents were directed to grant relaxation in age to the applicant and to give him appointment order within a period of four weeks from the date of communication of this order subject to their being medically fit. Tribunal also clarified that applicant would not be entitled for any back wages. Against the order of the Tribunal dated 24.11.2004, respondents approached the Hon’ble High Court, Allahabad by filing writ petition No. 568 of 2005 in which Hon’ble High Court initially granted the stay order in favour of the respondents but finally the writ petition of the respondents was dismissed by order dated 11.01.2013.

From the perusal of order of the Tribunal dated 24.11.2004, it is also evident that respondents have specifically pointed out that ban has not yet been lifted. On this issue, Tribunal observed that whenever ban order is lifted, he should be given appointment letter. It is also specifically held by the Tribunal in the order dated 24.11.2004 that respondents could not have advertised the posts calling fresh applications when the Tribunal had categorically stated in earlier order dated 03.11.1992 that no new comer or fresh candidates would be given priority over the applicant. This Tribunal in its order dated 24.11.2004 has already rejected the plea of the respondents about the over age of the applicant. Thus, we are of the view that reliefs claimed by the applicant in this OA regarding notional appointment w.e.f. 24.12.2004 has legal force because issue has already been decided by this Tribunal. Although order was complied with in the year 2014 after dismissal of the writ petition yet notional benefit should have been given as directed by the Tribunal in its order dated 24.11.2004, thus respondents have committed illegality in not giving the appointment notionally w.e.f. 24.12.2004. Interpretation as argued by the respondents is not acceptable. Writ petition was dismissed vacating the stay order then its legal corollary would be that judgment and order passed by the Tribunal has to be complied with in its letter and spirit from the date of judgment.

Accordingly, the OA is partly allowed. Respondents are directed to treat the applicant as notionally appointed on 24.12.2004. Applicant is not entitled for any back wages. This exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order. No order as to costs. All associated MAs stand disposed of.