1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R UOI & Ors. Vs. Shri Gurlal Singh & Anr. D.B. CIVIL WRIT PETITION NO.6634/2005 under Article 226 and 227 of the Constitution of India. Date of order : 02nd August, 2006 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Vineet Kumar Mathur for the petitioner. Mr. Vijay Mehta for the respondents. ------ BY THE COURT : (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. This writ petition is directed against the order of the Central Administrative Tribunal dated 15th February, 2005 allowing the original application filed by respondent Gurlal Singh for predating the date of financial benefits extended to him w.e.f. September 2 2000 to 15th September, 1999 as per the order Annex.A/4 on which the respondent-applicant had placed reliance. The grievance was raised in the circumstances that the respondent-applicant was employed with the appellant under M.E.S. on 15.10.1987. On 9.8.1999, the present appellants introduced an scheme for ameliorating the service condition of its stagnated employees. Higher grades were extended for extending financial benefits to the candidates, who had not got any promotion during the last 12 years or 20 years as the case may be, from the post which they held. On this premise, the respondent- applicant has made the claim for the financial benefits flowing from the scheme dated 9.8.1999 w.e.f. 15.10.1999 when he had completed 12 years service without any promotion. His case was approved for extension of benefits under the aforesaid scheme w.e.f. 15.10.1999 as was claimed by the respondent vide Annex.A/4 dated 3 10th Jan., 2001 filed along with the original application in which his name was approved for placement in the pay scale of Rs.4000-6000 w.e.f. 15th October, 1999. However, he had passed the requisite test after 9.8.1999 in September, 2000 and for that reason notwithstanding the approval by the Headquarter for extending the benefit of order dated 9th August, 1999 to the respondent, the benefit was not released to him with effect from the date approved but was approved w.e.f. September 2000 that is to say from the date he passed the trade test. On his representation for predating the extension of financial benefit w.e.f. 15.10.1999, his prayer was rejected vide Annex.1 dated 17.12.2003 with the original application. The reference was made to the fact that it is seen from the earlier correspondence that the name of the individual was sponsored to appear in the test held on 15.11.1990 to 17.11.1990 and he was declared absent. Hence, the individual is not entitled to get the benefit of ACP Scheme w.e.f. 9.8.1999. The reliance was placed on para 2 of the clarificatory note 4 dated 6.12.2001 issued by the respondents. Para 2 of said note reads as under:- “2. DOP&T has clarified that as a special case the employees who qualify the trade test in first attempt after 09-08-99 may be allowed benefit of ACP from 09-08-99 only and not from the date of passing of trade test. However, employees who qualifying in the trade test subsequent attempts will be allowed financial upgradation only from the date of passing of trade test. In no case, the benefit should be given to an individual wef 09- 08-99, who had earlier appeared in the trade test before 09-08-99 but failed or has not appeared in the Trade Test at all or has not otherwise passed the trade test.” About this condition and his alleged absence from taking the trade test held in the year 1990, which was held between 15.11.1990 to 17.11.1990, the applicant had responded before the Tribunal that though he was called to appear in the trade test in 1990 as Scheduled Caste candidate, but he had immediately 5 informed the competent authority that he was not SC candidate and his name be included amongst the candidates from the general category. He also pleaded that he was not required to take the trade test held on 15.11.1990 to 17.11.1990 because the 16 persons senior to him were not called for taking the trade test and, therefore, he could not have been called for taking the trade test as a member of general category and being not a member of scheduled caste, he was not eligible to appear on the basis of roster point. These facts have not been disputed and not even denied by the petitioners. Apparently, there is no dispute that if the non-appearance in the trade test dated 15.11.1990 is not taken into consideration as an effective opportunity to take the trade test for availing the benefit thereunder, the respondent was entitled to claim the additional financial emoluments under order dated 9.8.1999 read with clarification dated 6.12.2001 w.e.f. 15.10.1999 when he had completed 12 years service, because the trade test passed by him in September 2000 was the first one which he was eligible 6 to appear and he did appear and passed that test after ACP Scheme dt.9.8.1999 had come into force. The Tribunal found on these undisputed facts that the present respondent was entitled to get the benefit of additional financial emoluments w.e.f. 15.10.1999. However, in coming to this conclusion, the Tribunal has struck down the condition itself and the clarification dated 6.12.2001. On the undisputed facts, it is obvious that sponsoring the respondent to take trade test as a scheduled caste candidate to which category he did not belong was not at all an effective opportunity offered to the applicant, the fruit of which he could have availed. He could not have got any advantage by taking the test as a scheduled caste candidate. He had brought the fact immediately to the notice of the competent authority and the mater was not perused by the competent authority. He rather accepted his position of his being not a 7 member of scheduled caste and not inviting him to appear as a general candidate by keeping silent. The fact that 16 persons were senior to him in general category to which the petitioner belongs were not sponsored to appear in the trade test held in 1990 does support the plea of the respondent that fall within the zone of consideration. The respondent-applicant was not eligible to be sponsored as a general category to take trade test between 15.11.1990 and 17.11.1990. Thus, the opportunity to which the competent officer has alluded for denying benefit of financial emoluments to the respondents w.e.f. 15.10.1999 was like illusion of mirage. Any order has to be read in a reasonable manner and not in pedantic manner. The reading of para 2 of the Clarification Note leaves no room of doubt that failure to avail the opportunity prior to 9.8.1999 or having offered the opportunity not being successful prior to 9.8.1999 refers only to the effective opportunity offered to incumbent. The fact that the respondent was offered to take trade test as a member of scheduled caste on his 8 roster point and if the petitioner had not availed the opportunity, which did not belong to him after informing the competent authority that he was not a member of scheduled caste, he cannot be held responsible for the absence attributed to the applicant employee and for the lapse on the part of petitioner employer, the respondent-applicant who had acted in rightful manner cannot be penalised for remaining absent from test held held in November 1990 for which he was ineligible, when neither the scheme dated 9.8.1999 nor the clarification dated 6.12.2001 was in force. However, we are constrained to observe that in the facts and circumstances, there was no occasion for the Tribunal to have entered into the question of vires, legality or validity of the condition of extending benefit w.e.f. the date 9.8.1999 or from the date of passing of the examination on completing 12 years whichever is later, in case the incumbent had any opportunity to take the trade test prior to 9.8.1999. There is no dispute that after 9.8.1999, the respondent 9 had passed the trade test in first attempt when it was rightfully offered to him. The conclusion was irresistible on the scheme itself that the respondent applicant was entitled to avail the financial benefits of higher grade w.e.f. 15.10.1999 on completion of 12 years service as was approved by the authority vide letter dated 15.1.2001. Therefore, to the extent the Tribunal has held the condition under clarification dated 6.12.2001 to be invalid deserves to be set aside, however, without affecting the benefits extended to the respondent- applicant w.e.f. 15.10.1992 to the additional financial benefits. Accordingly, the petition is partly allowed as above. No order as to costs. [ GOPAL KRISHAN VYAS], J. [ RAJESH BALIA ], J. 10 babulal/