CIVIL WRIT JURISDICTION CASE No.12334 OF 2005 ----- In the matter of an application under Articles 226 and 227 of the Constitution of India. ---- SANJEET LAL PATHAK, SON OF LATE KALA CHAND PATHAK, RESIDENT OF VILLAGE-BHADARIA, P.O.- BHADARIA, VIA-JAGDISHPUR, P.S. AMARPUR, DISTRICT-BANKA. ….PETITIONER Versus 1. THE UNION OF INDIA, THROUGH THE SECRETARY, DEPARTMENT OF COMMUNICATION, NEW, DELHI. 2. THE POST MASTER, P.O. & P.S. - BANKA, DISTRICT-BANKA. 3. THE CHIEF POST MASTER GENERAL, PATNA. 4. THE SUPERINTENDENT OF POST OFFICE, P.O. & P.S.- BHAGALPUR, DISTRICT-BHAGALPUR. 5. THE DIRECTOR, POSTAL SERVICES, HEADQUARTERS, G.P.O. PATNA, IN THE OFFICE OF THE POSTMASTER GENERAL, PATNA. 6. SRI SHALIM HAQUE, DIRECTOR, POSTAL SERVICES, HEADQUARTERS, G.P.O., PATNA IN THE OFFICE OF THE POSTMASTER GENERAL, PATNA. 7. SRI VISHWANATH RAM, ASSISTANT DIRECTOR(STAFF), HEADQUARTERS IN THE OFFICE OF THE CHIEF POSTMASTER GENERAL, PATNA. 8. THE CENTRAL ADMINISTRATIVE TRIBUNAL, PATNA BENCH, PATNA, THROUGH ITS REGISTRAR. ….RESPONDENTS For the Petitioner : Mr. Purushottam Kr. Jha For the Respondents (Union of India) :Mr.Prashant Kashyap ----- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** S. K. Katriar & K.K.Mandal,JJ. This writ petition is directed against the order dated 28.02.2005, passed by the learned Central Administrative Tribunal, Patna Bench, in O.A. No. 240 of 1999(Sanjeet Lal Pathak Vs. The Union of India & Ors.), whereby the writ petition has substantially been allowed, and the petitioner has been directed to be reinstated in service, but without arrears of salary. 2. A brief statement of facts essential for disposal of this writ petition may be indicated. The petitioner was appointed as an Extra Departmental Packer (for short „EDP‟), in Banka post office, on 2 26.12.1997. He joined as such on 29.12.1997. By an innocuous looking order dated 16.03.1999(Annexure-6), his services were dispensed with. The petitioner challenged the same by preferring O.A.No.240 of 1999, which has been allowed by the impugned order dated 28.02.2005, whereby the respondent authorities have been directed to reinstate him with the following direction: “8. In the circumstances in our opinion the applicant is entitled for the relief. For the reasons stated above the order dated 16.3.1999 is hereby quashed. However, it shall be open for the Respondents to pass a fresh order in accordance with law after giving an opportunity of hearing to the applicant, but the applicant shall be reinstated on the post. However, he will not be entitled for the back wages. There shall be no order as to costs.” 3. As per the directions of the Tribunal, the authorities have passed the order dated 19.9.2005 (Annexure-A to the counter affidavit) reinstating the petitioner in service. The present writ petition is confined to the question of payment of arrears of salary. 4. Learned counsel for the petitioner submits that once an order of reinstatement was passed, the Tribunal ought to have directed for payment of arrears. On the other hand, learned counsel for the respondents has supported the impugned action, and submitted that the petitioner is not entitled to arrears of salary. 5. We have perused the material on record and considered the submissions of learned counsel for the parties. The Tribunal seems to have concluded that the services of the petitioner had been dispensed with because he had failed to supply the certificate in proof of his local residence. No material has been brought to our notice to justify such a conclusion. In other words, the Tribunal has not in the impugned order noticed any material leading to the conclusion that services of the 3 petitioner had been dispensed with because the petitioner had failed to supply the certificate in proof of local address. The materials on record show that, on being fully satisfied about the petitioner the conditions for recruitment criteria including proof of his local residence, he was appointed. Paragraph 6 of the order of the Tribunal is reproduced hereinbelow for the facility of quick reference:- “6. After perusal of the impugned order and Written Statement it is found that the termination order has been passed on the ground that the appointment of the applicant was found irregular on the ground that he has not submitted the local residence certificate. Our attention was drawn to Annexure-A-6 which is a comparative chart wherein the applicant‟s name is found at Sl. No.6. The relevant portion of the comparative charge is hereby reproduced below:- “6. Sri Sanjit Lal Pathak is the residence of Bhadaria, District Banka at a distance of about 20 kms. He is Matriculate with marks 437. His D.B. is on 1.1.75. As he has acquired his residence in this locality at Banka and as such he fulfils the all conditions for appointment to the post of E.D. Pkr, Banka, H.O. Hence Sri Sanjit Lal Pathak is hereby selected for the post of E.D. Pkr., Banka H.O.” 6. There is no indication in the comparative chart, the relevant portion of which is extract hereinabove, that the petitioner‟s appointment was subject to production of the certificate. Even if the respondents had allowed the petitioner to join the post pending supply of the certificate, his services should not have been dispensed with without a call to him to supply the certificate. In that view of the matter, we are of the view that services of the petitioner had not been dispensed with for a valid reason. 7. This takes us on to the question of payment of arrears to salary. We have concluded hereinabove that services of the petitioner had not been dispensed with for a valid cause, this should normally 4 entail payment of arrears of salary. However, in a situation like the present one, the primary onus is on the petitioner to satisfy the Court that he was not gainfully employed during this period in question. No material has been placed either before the Tribunal, or before us, to show that the petitioner was not gainfully employed during this period. Therefore, we find it difficult to direct payment of arrears of salary. 8. In the result, we dismiss the writ petition. (S. K. Katriar) (Kishore K. Mandal) Patna High Court, Dated the 12th day of April, 2010 HR/NAFR