1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2482 OF 2001 M. Joykutty, Stenographer Gr. II, O/o Chief Engineer (CTU), Central Water Commission, Khadakwasla, Pune – 411 024 .....Petitioner V/s. 1) The Union of India through the Secretary to the Govt., Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi – 1. 2) The Chairman, The Central Water Commission, Sewa Bhawan, R.K.Puram, New Delhi – 66. 3) The Chief Engineer, The Central Water Commission, CW&PRS Campus, Khadakwasla, Pune 411 024 ..... Respondents Mr.D.V.Gangal a/w Mr.Sandeep Marne, for the petitioner. Mr.S.M.Shah a/w Mr.A.S.Rao and Mr.V.B.Tiwari, Mr.H.K.Vardhan, for the Union of India. Mr.D.A.Nalawade, Govt. Pleader, for the State. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : JUNE 19, 2009 2 ORAL JUDGMENT : (Per P.B.Majmudar, J. ) 1. The order passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application No.327 of 1996 dated 11-01-2001 is impugned at the instance of the petitioner in this petition. The petitioner was appointed on the project work of Chukha Hydro Electric Project in Bhutan, as a Lower Division Clerk as a local recruit. It seems that at the relevant time, the recruitment was made in the said project through the Government of India in its Central Water and Power Commission (Now Central Water Commission). The petitioner accordingly started working on the aforesaid post at the said project at Bhutan. The said project ultimately came to an end on 31-12-1990. 2. It is not in dispute that the petitioner was already paid retrenchment/gratuity amount by the said Bhutan Project Department. The petitioner thereafter, approached the Central Administrative Tribunal, New Delhi, by way of O.A.No.2213 of 1990, on the ground that he was appointed as Stenographer (Grade I) with the General Manager, Chukha Hydro Electric Project, Bhutan and that the decision taken by the Central Water Commission dated 11-06-1990, by which his prayer for absorption is rejected, is illegal and arbitrary. It was the case of the petitioner before the Tribunal that the petitioner was required to be absorbed on the aforesaid post of Stenographer (Grade I) in the Central Water Commission 3 and that the action of the said department by not absorbing him is illegal. The Tribunal after considering the rival contentions, by its order dated 24-07-1991 came to the conclusion that after giving necessary age relaxation to the extent of service rendered by the petitioner at Chukha Project, his case should be considered for absorption. The Tribunal directed that till applicant is finally absorbed as indicated in the order of the Tribunal, he shall continue to serve as Stenographer (Grade I) in the Office of the Central Water Commission. The said order was not challenged by the respondent Department and the said order ultimately attained finality. 3. The petitioner subsequently, by an order dated 03-11-1992 passed by the Central Water Commission, Government of India, was appointed as Stenographer (Grade II). It is the case of the Department that at the relevant time, though attempts were made, no post of Stenographer (Grade I) was available in any other Department, the petitioner came to be appointed as Stenographer (Grade II), as per the conditions contained in the said order. The said order is produced on record which is dated 03-11-1992. 4. The petitioner thereafter preferred an application being O.A. No.327 of 1996, before the Central Administrative Tribunal, Mumbai, by which various reliefs have been claimed by the petitioner in the said 4 Original Application. However, during the course of hearing before us, the learned counsel for the petitioner has restricted the prayer to a limited point i.e. protection of pay for the earlier services which the petitioner has rendered between 1974 till his absorption. The learned counsel for the petitioner submitted that pay of the petitioner in the cadre of Stenographer (Grade II) should be properly fixed by appropriate pay fixation, considering the service rendered earlier upto the appointment order dated 03-11-1992. He further submitted that the petitioner is not claiming arrears of salary for the intervening period, but his prayer is limited to an extent that his pay is required to be fixed notionally. He submitted that the earlier service rendered by the petitioner cannot be said to be wiped out. 5. On the other hand, the learned counsel for the respondent submitted that since the petitioner has not prayed before the Central Administrative Tribunal, New Delhi, now the prayer made by the petitioner cannot be considered as it is barred by res-judicata. The learned counsel for the respondent – Department further submitted that in any case, the earlier appointment was made on the project at Bhutan and the petitioner was not an employee of the respondent department, now the petitioner cannot claim benefit of earlier service rendered at Bhutan. 6. We have heard learned counsel for the petitioner and the 5 learned counsel for the respondent at length and have gone through the orders passed by the Tribunal at New Delhi and Mumbai. It is required to be noted that the rights of the petitioner are already adjudicated and crystalized by the order of the Tribunal at New Delhi. The Central Administrative Tribunal, New Delhi, in the earlier Original Application, has given directions that the respondent should continue the petitioner on the post of Stenographer (Grade I) till the final absorption as indicated in the order of the Tribunal. Subsequently, by an order dated 03-11-1992, the Department appointed the petitioner on the post of Stenographer (Grade II), as no post of Stenographer (Grade I) was in existence at the relevant time. 7. The question which requires consideration is as to whether the order passed by the Department on 03-11-1992 which is based on the directions given by the Tribunal, can be construed as fresh appointment order and as to whether the petitioner is entitled to service benefits from that day, or whether the earlier service rendered by the petitioner in the project is required to be counted for the purpose of retiral benefits. In our considered view, the Central Administrative Tribunal, Mumbai, has not considered these aspects, but has rejected the claim of the petitioner on the ground that the petitioner was appointed at the project in Bhutan and the petitioner having been paid retiral compensation, he is not entitled to 6 retiral benefits. In para No.16 the Tribunal has found that in view of the discharge certificate from the project, it is crystal clear that the applicant was an employee of the project only, otherwise, on completion of project he would have been automatically repatriated to Central Water Commission. It is true that the Tribunal at Mumbai, on its own has found that the appointment of the petitioner was on the particular project independently. However, since the claim of the petitioner was already adjudicated by the Tribunal at New Delhi, and it is found that the petitioner was entitled for absorption and till then, he may be allowed to continue on the post of Stenographer (Grade I) and since that order has not been challenged by the respondent herein, the said order cannot be ignored in a subsequent proceeding taken out by the petitioner before the Tribunal at Mumbai. Whether earlier service rendered by the petitioner can be counted for the purpose of pay fixation after the petitioner’s appointment order as Stenographer (Grade II), is required to be considered by going through the observations made by the Tribunal at New Delhi. 8. The learned counsel for the respondent submitted that the petitioner having accepted and acted upon the order dated 03-11-1992 which can be said to be fresh appointment order, cannot now make any grievance subsequently in this behalf. So far as the order dated 7 03-11-1992 is concerned, it is required to be considered as to whether petitioner’s appointment can be said to be a fresh appointment or whether pay of the petitioner is required to be protected considering the earlier service rendered by the petitioner in the said project. All these questions are required to be considered in accordance with law. 9. So far as the order dated 03-11-1992 is concerned, it is not in dispute that the same is passed in compliance with the directions given by the Central Administrative Tribunal, New Delhi. Considering the facts and circumstances of the case, while setting aside the order of the Tribunal, the matter is sent back to the Tribunal to consider the following points : - (a) Whether the order dated 03-11-1992 can be construed as a substantive fresh appointment given to the petitioner as Stenographer (Grade II) or whether the petitioner can be said to be absorbed as Stenographer (Grade II) in view of the fact that no post of Stenographer (Grade I) was available ? (b) Whether by interpreting the order of the Tribunal, New Delhi, can it be said that the earlier services rendered by the petitioner are required to be taken into account for the purpose of pay fixation of the petitioner on the post of Stenographer (Grade II) at the time when he was appointed on the said post by an order dated 03-11-1992 ? (c) Whether the petitioner having accepted the said order as fresh appointment, is entitled to relief on the basis of the earlier services rendered by him and whether the same can be counted for the purpose of pay fixation so far as the post of Stenographer (Grade II) is concerned ? 8 (d) Whether the petitioner is entitled for the benefit of pay protection on the basis of the service rendered in the project at Bhutan, in view of the order passed by the Delhi Tribunal. 10. Since the the order of Delhi Tribunal has not been considered from the aforesaid angle by the Tribunal at Mumbai, the matter is remanded to the Central Administrative Tribunal, Mumbai Bench, Mumbai, to decide the aforesaid points in accordance with law. In view of the concession on the part of the learned counsel for the petitioner that the claim of the petitioner is now restricted to a limited point i.e. pay fixation in the Cadre of Stenographer (Grade II), the Tribunal at Mumbai, is required to consider only said aspect. The learned counsel for the petitioner submitted that in case the petitioner succeeds before the Tribunal, he will not claim any monetary benefits for the said past service and the same can be treated for notional purpose only and the petitioner will not ask for any monetary claim in case he succeeds before the Tribunal. 11. The Tribunal may accordingly pass the order in accordance with law and may find out as to whether the pay of the petitioner is required to be protected by giving benefit of past service rendered by the petitioner in the said project. The writ petition is accordingly partly 9 allowed by setting aside the impugned order of the Central Administrative Tribunal, Mumbai Bench, Mumbai. It is clarified we have not expressed any opinion in any manner whatsoever and all these questions are kept open for the consideration of the Tribunal and the Tribunal shall decide the same in accordance with law. Considering the fact the this petition is pending since long, the Tribunal shall decide the matter within a period of six months from the receipt of the order of this Court. 12. Rule is accordingly made partly absolute to the aforesaid extent. No costs. ( R.M.SAVANT, J. ) (P.B.MAJMUDAR, J.)