1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9531 OF 2004 WRIT PETITION NO.9531 OF 2004 WRIT PETITION NO.9531 OF 2004 Mohammed Nurul Islam ...Petitioner Vs. Union of India & Ors. ...Respondents ----- WITH WITH WITH WRIT PETTION NO.9530 OF 20045 WRIT PETTION NO.9530 OF 20045 WRIT PETTION NO.9530 OF 20045 Gadadhar Prasad ...Petitioner Vs. Union of India & Ors. ...Respondents ----- Mr. R.G. Walia for Petitioners Mr. S.S. Pakale with Mr. Master for Respondents CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. DATED: 5TH JULY, 2005 DATED: 5TH JULY, 2005 DATED: 5TH JULY, 2005 P.C. P.C. P.C. 1. Both these Petitioners were working as Sailors in the Indian Navy. The Petitioner in Writ Petition No.9530 of 2004 was promoted to the post of Petty Officer Mechanical Engineering (POME) for a period of two years prior to the date when he was to complete 15 years of service. . In the second case he was promoted to that position for 8 months. For occupying this position it is necessary that the person concerned must have Boiler-Room Watch Keeping Certificate or ICE Competency Certificate. It is not disputed that in these two cases the two Petitioners had no such 2 certificate. What has happened is that one day prior to the completion of 15 years service they were again placed into position which they were occupying earlier namely Leading Engineering Mechanic (LME). The grievance of the Petitioners is two fold. Firstly they have not been paid salary for this period as per the work that they did in the Navy namely that of the post of POME. Secondly they are also not been paid the retirement benefits which are payable to the persons who occupied the POME position. 2. Mr. Walia learned Counsel appearing for the Petitioners submitted that the Petitioners having worked into the higher post were entitled to salary as well as retirement benefits of that post. He submitted that these were regular promotions and therefore, the Petitioners cannot be denied of these benefits. 3. As against this statement of Mr. Walia Mr. Pakale learned Counsel appearing for the Central Government submitted that this qualification was necessary to occupy this position and in as much as Petitioners did not have these qualifications they could not say that they had right to occupy those positions. He therefore, defends the recovery of the higher payment given in one case and non-payment of the higher benefits as well as denial of pension. 3 4. Having seen the Petition as well as the reply and rejoinder it is clear that the Petitioners do not have necessary qualifications. If they did not have qualifications, they cannot say that they should be deemed to be in that position and entitled to all the benefits. Undoubtedly, in as much as they have been put in the work during the two periods i.e. two years in the first case and eight months in the other case in the post of POME, they should be paid salary as per that post. As far as this aspect is concerned we accept the statement of Mr. Walia and direct the Respondents to pay the salary of the post of POME, if not paid. However, the Navy Authorities were within their rights to revert the Petitioners in to their existing posts which they did one day prior to their retirement. This being the position the Petitioners cannot say that they were entitled to the pension stating that they were regularly in the post of POME. We dispose of these two Petitions with the following further direction :- 5. As far as Petitioner in Petition No.9530 of 2005 is concerned he has additional submission namely that he acquired the Bronchial Asthma during the service and there is a certificate given by the Commander (Administration) dated 2nd July, 2004 stating that deterioration in his health is attributable to his service. The submission of Mr. Walia therefore, is based on Section 47 of The persons 4 with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995. It is submitted that the Petitioner could not be reverted and should not be made to suffer since he developed a problem during these two years. His submission is that the necessary certificate could not be obtained because of his health problem. As far as this aspect is concerned we reserve the liberty to this Petitioner to represent to Naval Authorities to consider his case as if he has retired in the post of POME. It will be for the Authorities concerned to consider the representation of the Petitioner which we expect them to consider sympathetically and take the decision. Both the Petitions stand disposed of. (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.)