IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9269 of 2001 Ravi Shankar Prasad, son of Sri Lakshman Prasad, resident of C/o Dasrath Bhawan, Kashinath Lane, East Lohanipur, Kadam Kuan, Patna-800 003. .... Petitioner. Versus 1. Unit Trust of India, Maker Towers, „F‟ Block, 13th Floor, Cuffe Parade, Colaba, Bombay-400 005, through its Chairman. 2. Chief General Manager (Personnel and Administration), Unit Trust of India, Maker Tower, „F‟ Block, 13th Floor, Cuffe Parade, Colaba, Bombay-400 005. 3. The Deputy Manager, Department of Personnel, Unit Trust of India, Maker Tower, „F‟ Block, 13th Floor, Cuffe Parade, Colaba, Bombay-400 005. 4. The Staff Officer, Grade “A”, Department of Personnel, Unit Trust of India, Marine Chambers, 4th Floor, 43, Sir Vithaldas Thackersey Marg (New Marine Lines), Bombay-400 020. ..... Respondents. ****** 06- 4.12.2008 Heard Mr. Madhuresh prasad for the petitioner, and Mr. R.N. Mukhopadhaya for the respondents. This writ petition has been preferred for a direction to the respondents to appoint the petitioner on the post of Staff Officer Grade”A” with consequential reliefs. It is further directed against the order dated 28.6.2001 (Annexure-9), whereby the respondents have expressed their inability to appoint the petitioner for the reasons assigned therein. The respondents have placed on record their counter affidavit and have opposed the writ petition. 2 2. Before we proceed further, we may consider I.A. No.3889 of 2002 filed by the petitioner, wherein it is stated that he has changed his name from „Ravi Shankar Prasad‟, son of Shri Lakshman Prasad, to that of „Ravi Verma‟, son of Lakshman Prasad. Copy of the gazette of India, published in New Delhi on 20.4.2002, notifying the change in his name is marked Annexure-10 to the interlocutory application. The respondents have not filed counter affidavit to the same, nor its learned counsel opposes the same. In that view of the matter, it is clarified that „Ravi Shankar Prasad‟, the petitioner herein, shall henceforth be described as “Ravi Verma”, and the respondents shall take notice of the same accordingly. I.A. No.3889 of 2002 is accordingly disposed of. 3. The relevant facts for the disposal of this writ petition may be indicated. The respondents issued an advertisement which had appeared in the local dailies on 27.5.1993 (Annexure-1), inviting applications for appointment of Staff Officers Grade “Ä”. The petitioner submitted his application and had undergone the whole range 3 of selection process. He received letter dated 6.4.1994 (Annexure-2), from the respondents, informing him that he has been selected for inclusion in the waiting list for the post of Staff Officer Grade „A‟ in Unit Trust of India or its Associates. The petitioner did not receive appointment letter and, therefore, he sent his letter dated 28.10.1994 (Annexure-3), requesting to be informed of the position. It was also requested therein to supply him with the copy of the merit-list. The respondents sent reply dated 23.11.1994 (Annexure-4), informing him that he will be offered appointment for the post of Staff Officer Grade „A‟ as and when vacancies arise in future. This was followed by the communication dated 31.10.1995, from the respondents to the petitioner, that validity of the waiting list has been extended for further period of one year with effect from 2nd of March 1995, i.e. up to 2nd of March, 1996. It further appears from the materials on record that validity of the waiting list was further extended up to 31.3.1998. 4. The petitioner did not receive appointment letter leading to C.W.J.C. No.5952 4 of 1996 (Ravi Shankar Prasad and others Vs. Unit Trust of India and others). The same was disposed of by this Court by order dated 22.10.1997 (Annexure-6). The entire order is reproduced hereinbelow for the facility of quick reference: “22.10.97. Heard learned counsel for the parties. A counter affidavit has been filed pursuant to the Court‟s direction and this writ petition is disposed of with the following order. The petitioners are applicants for direct recruitments in Unit Trust of India and its associate offices. It is not in dispute that the petitioners were subjected to a regular selection process and their names appear in the panel as against serial nos.104 and 124 respectively. The grievance of the petitioners is that they should be considered for appointment on the basis of such panel against the direct recruitment quota. Learned counsel appearing on behalf of the respondent-organisation submits that out of 1068 posts, 429 posts are against direct recruitment quota. He further submits that the said number is more than 30% of the entire posts. He further submits that the allegation made by the learned counsel for the petitioner that direct recruitment quota is diverted in favour of the promotee is not correct. Therefore, this Court is of the view that the petitioners are entitled to a consideration for appointment to the posts belonging to 5 the direct recruits on the basis of their seniority in the panel. Learned counsel for the respondents assures that the petitioners‟ case will be considered in accordance with law on the basis of the panel till 31.03.1998 against the direct recruitment quota in respect of posts in Unit Trust of India and its associate offices. In that view of the matter, this Court dispose of this writ petition recording the aforesaid stand of the respondents. No costs. Sd/- (A K Ganguly) 5. This was followed by the lawyer‟s notice dated 3.9.1998 (Annexure-7) for and on behalf of the petitioner, whereby the respondents were called upon to comply with the order of the Court. The respondents did send their reply to the petitioner‟s counsel by their communication dated 20.10.1998 (Annexure-8), explaining their inability to offer appointment. This was followed by the impugned order dated 28.6.2001(Annexure-9). Learned counsel for the petitioner submits that, in view of the representation of the respondents in the previous writ petition, he is entitled to appointment. He also submits that he is 6 prepared to forego the arrears of salary provided the period notionally counts in his favour. 6. Learned counsel for the respondents has supported the impugned action. He has taken me through the counter affidavit in an effort to satisfy this Court that only 70 appointments of the general/unreserved category were made which took the candidates up to serial no.90 of the combined merit list. The petitioner figured at serial no.104, and, therefore, he could not get the appointment. In other words, it is submitted that no person lower than the petitioner in the merit list has been offered appointment. He lastly submits that a large number of posts of different nature carrying different educational qualifications were intended to be filled up in pursuance of the advertisement. In that view of the matter, the category for which the petitioner was an applicant, was confined to 70 posts, which on account of non- joining of 20 persons went up to serial no.90 of the combined merit list. 7. We have perused the materials on record and considered the submissions of 7 learned counsel for the parties. It appears to me on a perusal of the advertisement that applications were invited to fill up the posts of Staff Officer Grade „A‟ in the Unit Trust of India and its associate offices. It does not mention the number of vacancies sought to be filled up, nor does it mention any post other than Staff Officer Grade „A‟, nor there is any indication therein that different posts with different educational qualifications were sought to be filled up. The second important aspect of the matter is that the validity of the waiting list, meaning thereby the merit list was extended up to 31.3.1998. It, therefore, automatically follows that all the vacancies occurring up to 31.3.1998 were to be filled up from the combined merit list. Furthermore, the respondents had represented before this Court leading to the order dated 22.10.1997 (Annexure-6), that 429 persons had to be appointed by direct recruitment under the advertisement in question. The respondents have not made the slightest attempt to explain in their counter affidavit that 429 posts from the combined merit list have been sought to be filled up. The respondents have only tried to 8 indicate in their counter affidavit that 70 posts of unreserved/general category were sought to be filled up which went up to serial no.90 of the combined merit list. The petitioner figured at serial no.104 resulting in deprivation of appointment. I am afraid the respondents cannot be permitted to take this stand because of their representation before this Court that 429 posts have to be filled up. The respondents cannot be permitted to resile from their position and ignore its undertaking to this Court 8. Another important aspect of the matter which seems to have put the respondents on a course of mis-direction that the Unit Trust of India has been revamped by the terms of the provisions of Unit Trust of India (Transfer of Undertaking and Repeal Act) 2002, which occasioned reduction of vacancies. I am unable to accept the contention for the reasons that vacancies occurring in the Unit Trust of India up to 31.3.1998 have to be filled up. The restructuring of the Unit Trust of India took place with effect from 1.2.2003. If I were to accept the contention on behalf of the respondents, this Court would be 9 assigning retrospectivity to Act of the Parliament where none is intended. 9. In that view of the matter, the impugned order dated 28.6.2001 (Annexure-9) is hereby set aside. The respondents are directed to offer appointment to the petitioner on the post of Staff Officer Grade „A‟ in the Unit Trust of India or its associates as per his position in the combined merit list, subject to usual terms and conditions of scrutiny at this stage, for example, medical evidence, verification of original certificates etc. He would be entitled to his seniority as per his position in the combined merit list and the established procedure and shall be entitled to the notional benefits with effect from the date the person just above him has joined and shall enure to his benefits prospectively including the replacement pay-scale with increments, post-retirement benefit etc. The petitioner‟s seniority shall reckon from the date the person just above him in the combined merit list has been given the seniority. In view of the fair stand taken on behalf of the petitioner, he shall not be entitled to arrears of salary. 10 10. In the result, this writ petition is allowed, and the impugned order dated 28.6.2001 (Annenxure-9), is hereby set aside. This Court will be pleased if the entire process is completed within a period of four months from today. (S K Katriar, J.) S.K.Pathak/