IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE VILAS V.AFZUL PURKAR WRIT PETITION No.7158 OF 2000 Between: Chidanand. ..... PETITIONER AND The Chief Air Staff, New Delhi and others .....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE VILAS V.AFZUL PURKAR WRIT PETITION No.7158 of 2000 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) The petitioner herein is an applicant in O.A.No.1641 of 1998 before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (hereinafter referred to as “the Tribunal”). The said O.A. was filed by the petitioner seeking benefit of seniority and pay fixation with retrospective effect from the year 1987, when, according to him, the selection for the post of Civilian Mechanical Transport Driver had taken place. The relief sought by the petitioner was not granted by the Tribunal, and aggrieved thereby, he has filed the present writ petition. The facts in brief are that the petitioner was initially appointed as a Mess Waiter under the control of the 3rd respondent on 01.08.1974 at Air Force Station, Bidar and posted to the Academy under surplus deficiency scheme, and later, he was absorbed in the existing vacancy of Gardner with effect from 27.06.1975. Thereafter, seven vacancies of Mechanical Transport Driver posts were released by the Air Headquarters during 1989 for local recruitment and the Air Force Academy was allotted with only one vacancy. The petitioner participated in the selection for the said posts earlier in 1987, but on the ground that he has substandard height, he was not selected. The petitioner questioned the same in O.A.746 of 1989 before the Tribunal. The Tribunal initially dismissed the O.A. on 22.12.1993 on merits. But, later on a review application moved by the petitioner before the Tribunal, the Tribunal considered the review petition on the ground that the height requirement for Civilian and the Airmen are different, and accordingly, disposed of the said review petition, with a direction to the respondents herein to apply the relevant minimum height requirement in respect of Civilian Mechanical Transport Driver to the case of the petitioner. It was further directed that if the candidate possessing height less than 165 cms can be recruited as Civilian Mechanical Transport Driver, the applicant’s case also will be considered accordingly. It is stated that the respondents have not complied with the said order and not considered the case of the petitioner in appointing him as Civilian Mechanical Transport Driver. For non-compliance of the said order, the petitioner filed the contempt petition in C.P.No.38 of 1995 and the same came to be disposed of by the Tribunal on 07.09.1995 basing on the statement made on behalf of the respondents herein, which is reproduced hereunder for the sake of convenience: “…the respondents are considering the case of the applicant for recruitment as Civil Mechanical Transport Driver. But presently there is no vacancy, but as and when recruitment to the post of Civil Mechanical Transport Driver is going to be made, the case of the applicant will also be considered for such recruitment from amongst the serving Group-D employees.” Thereafter it appears that recruitment took place in the year 1996 as per the averments made in paragraph-8 of the counter affidavit of the respondents filed in this writ petition and the petitioner was appointed with effect from 05.08.1996 as per the Air Force Academy letter dated 02.08.1996 and working in the post of Civilian Mechanical Transport Driver. In the present O.A. the Tribunal noticed the above and was of the view that the petitioner had not sought the relief as sought for now either in the earlier O.A.No.746 of 1989 or in the Contempt Petition No.38 of 1995, referred to above, and as such his request for fixation of pay from 1987 does not arise. The petitioner had not claimed nor was granted any relief that he is entitled to be appointed from the date of his selection. Further, the Tribunal also declined to grant the relief to the extent of seniority also on the ground that no person is appointed in the respondent Academy between 1987 and 1996 and as such the question of petitioner’s seniority being affected does not arise. However, the petitioner was granted liberty to approach the department to grant him proper seniority if he is aggrieved by posting of some other candidates on the basis of the earlier notification. However, dissatisfied for the same, the petitioner has filed the present writ petition. We have heard Sri J.M.Naidu, learned counsel appearing for the petitioner, who has reiterated his submissions and contended that for no fault of the petitioner he was denied for appointment, though he participated in the selection in 1987. He also submits that though the petitioner was selected, his appointment was wrongfully denied by applying the height standards. The learned counsel further submits that the petitioner was seeking employment as a Civilian Mechanical Transport Driver and for that, the height requirement as applicable to an Airman was not relevant, and as such the rejection of the case of the petitioner in the first instance in 1987 itself was wrong and it had to be ultimately set right only when the Tribunal granted relief to the petitioner while passing orders in the review petition in O.A.No.746 of 1989. The petitioner, therefore, submits that though he was given the appointment order on 02.08.1996 and working with effect from 05.08.1996, he is entitled to all the benefits of pay scale as well as seniority from the date of his selection. The learned standing counsel for the respondents supports the order of the Tribunal and contends that the claim of the petitioner is not tenable. We have considered the aforesaid submissions of both the counsel. The petitioner is claiming pay fixation and seniority with effect from 1987 i.e., the date of his selection, though he was given appointment in August, 1996. We do not see any enforceable legal right accrued by the petitioner for the relief now sought for by him. The petitioner, admittedly has been appointed only with effect from 05.08.1996 and benefits accruable to the post to which he is appointed from that date would be available to him and not for the date anterior thereto. If the prayer of the petitioner is accepted, it would amount to granting him pay scale though he has not worked in the said post from 1987, as well as seniority though he was not on the cadre prior to 05.08.1996. The relief to that extent, therefore, was rightly denied by the Tribunal. It is also to be noticed that in the contempt petition filed by the petitioner in C.P.No.38 of 1995 it was specifically recorded by the Tribunal that no recruitment had taken place by that time and as and when a recruitment takes place, the case of the petitioner will be considered, which in other words means that even by the date of said order in the contempt petition i.e., by 07.09.1995 no recruitment had actually taken place and in 1996 only i.e. on 02.08.1996 he was given appointment. The said order of appointment was given in pursuance of directions of the Tribunal in the review application No.20 of 1995 in O.A.No.746 of 1989 dated 29.06.1994, which merely directed that “if a candidate possessing height less than 165 cms can be recruited as Civilian Mechanical Transport Driver, the applicant’s case also will be considered accordingly”. It is, therefore, clear that the petitioner was not granted any relief of appointment as on the date of his earlier selection in 1987. Further, while dismissing the O.A.No.746 of 1989 by earlier order dated 22.12.1993, the petitioner’s prayer that he is entitled to be appointed as Civilian Mechanical Transport Driver on the basis of his selection in 1987 was rejected, and only relief granted to him in the review petition, which is extracted above, deals with consideration of his case. Thus, even from this perspective, it cannot be said that the petitioner can claim any benefit prior to his date of appointment i.e., 05.08.1996. We, therefore, do not see any infirmity, legal or otherwise, warranting interference with the impugned order of the Tribunal. Learned counsel for the petitioner has relied upon a decision of Punjab and Haryana High Court in the case of Pran Nath Khurana vs. State of Haryana[1] which in turn referred a decision of the Supreme Court in the case of Om Parkash v. State of Haryana[2]. The proposition relied upon by the learned counsel for the petitioner is that the petitioner is entitled to the benefit of pay scale and seniority with retrospective effect. Paragraph-3 of the said judgment shows that in view of the aforesaid decision the deemed promotion itself was with effect from a retrospective date and in view of that it was stated that the promottee cannot be deprived of pay and other allowances to which he would have been entitled to. The above said decision has absolutely no application to the facts of the case. In view of this conclusion, therefore, the writ petition is devoid of any merits and is liable to be dismissed. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ______________________ V.ESWARAIAH,J _________________________________ VILAS V.AFZUL PURKAR,J October 7th, 2009. Ivd/Dsr Note: Furnish copy in 10 days B/o Dsr [1] 1996(1) SLR 320 [2] 1994(6) SLR 228 (SC)