-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.6599 OF 2002 NO.6599 OF 2002 NO.6599 OF 2002 Subodh Taneja ...Petitioner v/s Union of India and ors. ...Respondents Mr G.K. Masand for Petitioner. Mr Rajiv Chavan with Ms R. Ambekar for Respondents. CORAM : D.K. DESHMUKH AND V.M. KANADE JJ. DATE : 10TH MARCH 2008. -2- P.C. :- 1. By this petition, the petitioner challenges, the order passed by the Central Administrative Tribunal dated 8th February 2002 in original application No.868 of 1996. That original application was filed by the petitioner against the order dated 17th May 1996 passed by the respondent No.4 whereby order dated 14th March 1996 was withdrawn. The facts that are material and relevant are that the petitioner was appointed on 10th February 1976 as Inspector, Customs and Central Excise at Nagpur. In 1979, the petitioner applied for transfer on inter-collectorate basis to Bombay Customs Office. The petitioner’s request was granted and he was transferred to Bombay by order dated 31st March 1980. He joined on transfer at Bombay. The petitioner thereafter made a representation that three years’ service rendered by him at Nagpur before his transfer to Bombay should be considered for the purpose of fixing his seniority. On that representation, the petitioner was informed by office order No.86 of 1996 dated 14th March 1996 that the services of three years rendered by him before transfer at Nagpur Customs and Central Excise Collectorate as Inspector of Central Excise shall be taken into consideration for the purpose of fixing his -3- seniority. That order dated 14th March 1996 was withdrawn by letter of the Deputy Commissioner dated 17th May 1996. The only reason given in that letter for withdrawing the order dated 14th March 1996 was Ministry’s letter dated 22nd April 1996. The petitioner therefore approached the Central Administrative Tribunal. The only relief claimed by him was for setting aside the order dated 17th May 1996 whereby the earlier order dated 14th March 1996 was withdrawn. The petitioner claimed that his seniority should be decided on the basis of letter dated 14th March 1996. The petitioner has stated in his original application that in the letter dated 17th Mary 1996, the only reason given for withdrawing the order dated 14th March 1996 is the communication from the Ministry dated 22nd April 1996. He stated that inspite of his application, he has not been given copy of the communication dated 22nd April 1996. The Government was served with the original application and the Government filed its affidavit. Perusal of that affidavit shows that the Government was relying on the transfer order dated 31st March 1980, but copy of that order was not produced. The Government was also relying on the communication dated 22nd April 1996 from the Ministry, but copy of that communication was also not produced. In the affidavit, a new ground was taken that the petitioner was working as Inspector at Nagpur. On his transfer, he joined as Preventive -4- Officer, it was a different department and therefore, the services rendered by him at Nagpur cannot be considered. The Central Administrative Tribunal decided the original application and disposed it off. Perusal of the order of the Central Administrative Tribunal shows that the only ground that weighed with the CAT was that the petitioner joined as Preventive Officer at Bombay and therefore, he cannot claim that his services rendered at Nagpur as Inspector should be considered. What is pertinent to note is that the Tribunal has nowhere considered whether the petitioner had applied for being posted as Preventive Officer at Bombay or he was posted as Preventive Officer by the Government on its own. 2. The learned counsel appearing for petitioner submits that the benefit of counting past service of the petitioner was extended to the petitioner by order dated 14th March 1996. That order was withdrawn by communication dated 17th May 1996. The communication dated 17th May 1996 relies on Ministry’s letter dated 22nd April 1996. Copy of that letter was never supplied to the petitioner. He submits that what was challenged by him in the application was the withdrawal of order dated 14th March 1996. The learned counsel also pointed out to us that subsequently the same benefit was again extended to the petitioner by Circular dated 23rd -5- November 1998 and according to the learned counsel, that circular has never been withdrawn and therefore, in his submission the CAT was not justified in dismissing his original application. The learned counsel further submits that the reason that the petitioner was posted as Preventive Officer at Bombay and therefore he cannot claim benefit of his service at Nagpur was not given at any point of time till the affidavit was filed before the CAT. The leaned counsel submits that the reason given was an after thought and therefore, it was for the Tribunal to find out as to whether at the request of the petitioner he was posted as Preventive Officer or the department on its own did it. We have heard learned counsel appearing for the respondents. According to him, the petitioner himself had applied for being posted as Preventive Officer and therefore, he was posted as Preventive Officer at Bombay. The post was in a different department and therefore, the services rendered by the petitioner at Nagpur cannot be taken into consideration. The learned counsel, however, could not point out that the Tribunal has decided that the order withdrawing the benefit granted to the petitioner is valid or invalid. He also cannot point out that the Tribunal considered the Circular dated 12th February 1958 whereby the same benefit was conferred on the petitioner. -6- 3. From perusal of the record it is clear that the only challenge in original application was communication dated 17th May 1996. That communication reads as under :- "In pursuance of the Ministry’s letter F.No.A-23024/5/96-Ad. III.A dated 22.04.96, Estt. Officer Order No.86/96 dated 14.03.96 is hereby withdrawn." . It is clear from this communication that it is solely based on the communication dated 22nd April 1996 from the Ministry. The petitioner had referred to this in his original application. He has also made a grievance that copy of that letter was never given to him. Therefore, it was for the Government to file copy of that letter from the Ministry and justify its decision. Perusal of the affidavit shows that copy of that letter has not been produced, only that letter has been paraphrased. Perusal of the order of the CAT however, shows that the reason given in the letter dated 17th May 1996 for withdrawing the benefit granted to the petitioner has nowhere been considered by the CAT. We find from the record that the same benefit was subsequently extended to the petitioner by Circular dated 23rd November 1998. That was on record. That has also not been considered by the Tribunal. We also find -7- that the sole reason given by the Tribunal was that the petitioner was posted as Preventive Officer at Bombay, which post is in a different department. However, in our opinion, while rejecting the request of the petitioner on this ground, two aspects were to be considered. As this was not the reason given earlier, whether this reason can be accepted or liable to be rejected as an after thought. Secondly, whether it was at the request of the petitioner that he was posted as Preventive Officer or the department itself posted him as Preventive Officer. Both the aspects have not been looked into by the CAT. The CAT has also not considered whether the respondent No.4 was justified in withdrawing the order dated 14th March 1996 on the basis of the Ministry’s letter dated 22nd April 1996. In our opinion, the CAT should have insisted on the Government to produce the communication dated 22nd April 1996 from the Ministry and then the Cat should have considered whether the reason given in that communication is valid or invalid. In our opinion, the Tribunal has omitted from it consideration relevant and material aspects and therefore, the order of the Tribunal is liable to be set aside. In our opinion, following order would meet the ends of justice. 4. The order dated 8th February 2002 passed by the Central Administrative Tribunal, Mumbai Bench, -8- Mumbai is set aside. Original application No.868 of 1996 is remitted back to the Tribunal for de novo consideration and hearing in accordance with law. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( V.M. KANADE J.)