Supreme Court Of India

Union of India and Others V. T. G. Abraham and Others

Civil Appeal No. 6547 Of 1995. 22-04-1997

JUDGMENT

1. The Union of India and its officers have brought in challenge the order of the Central Administrative Tribunal, Bench at Cuttack, Cuttack passed in favour of Respondent 1 herein. By the said order, the Tribunal has taken the view that the appellants while issuing memo dated 23-2-1988 calling for eligible persons to claim re-employment to the post of JTO-I (Electrical) had introduced an additional requirement that the applicant should hold the rank of Junior Warrant Officer (JWO) in addition to the requirement of 10 years' experience in Electrical Trade on Air Force Airrcraft and ground installation. Respondent I had the requisite experience, but he was not holding the rank of JWO. Consequently, he could not put forward his claim for being considered for re-employment. Respondents 2 to 5, on the other hand, were his juniors in the lower grade, but they could apply and were selected for re-employment. It is this grievance which was canvassed by Respondent 1 before the Tribunal. It also transpired that subsequently, the authorities themselves realised the error in the earlier memo and consequently they issued a fresh circular dated 31-1- 1989 by which it was mentioned that it was proposed to fill up a few vacancies in the rank or JTOs-I in various trades from amongst the JTOs-II working in ARC. So far as re-employment in the cadre of JTO-I (Electrical) is concerned, it was mentioned in the said circular that Ex-IAF person with Electrical Trade having 10 years' experience on Air Force Aircraft and ground installation would be considered. The said circular obviously ran parallel to the viwepoint canvassed by Respondent 1 and on the basis of which he had submitted that the earlier memo was defective. It is also not disputed that Respondent 1 did apply pursuant to the second circular of 31-1-1989, but thereafter did not appear at the interviws which were held somewhere in February 1990 purshant to the said second circular. In the meantime, he approached the Tribunal. The Tribunal after hearing the parties concerned took the viwe that when the basic requirement of the Rules for re-employment for the cadre of JTO-I (Electrical) was only 10 years' experience and there was no further requirement of the applicant being entitled to hold the rank of JWO, the first memo dated 23-2-1988 was contrary to the Rules. The result was that Respondent 1 was wrongly denied a chance to compete for being re-employed on the said post of JTO-I (Electrical). This would have resulted then in voiding the appointments given to Respondent 2 to 5 pursuant to the said memo. However, their appointments were saved and were not quashed. The Tribunal considering the equities of the case passed the impugned order and issued direction as under

"However, we feel that quashing the selection at this late stage may do more harm than good. Therefore, in the interest of equity and justice, we direct that the respondents will consider the case of the applicant for promotion to the post of JTO Grade-I and if found suitable he would be given promotion from the date his juniors were promoted even by a creating a supernumerary post, if necessary. The process of selection should be completed within sixty days from the date of receipt of a copy of the judgment." *

2. It is this order of the Tribunal which has been seriously brought in challenge by the Union of India and its officers in this appeal by special leave

3. The learned Senior Counsel appearing for the appellants, Mr Iyer, submitted that Respondent 1 was not entitled to any relief for two obvious reasons. Firstly, he was already given a chance to be considered for reemployment pursuant to the second circular of January 1989. He did apply pursuant thereto, but did not think it fit to appear at the interview. Consequently, he cannot be permitted to blow hot and cold and to again contest on the basis that he was wrony denied an opportunity to get reemployment pursuant to the earlier memo. Secondly, it was submitted that even though the Rules may require the minimum qualification of 10 years' experience, the authorities in their discretion with a view to get the best talent by way of re-employment, could impose as additional condition of the applicant being also of JWO's rank

4. The learned counsel for Respondent 1, Mr Rawal on the other hand submitted that so far as the second circular was concerned, it itself accepted the viewpoint canvassed by him that the earlier memo was defective. Otherwise there would have been no occasion for the appellants themselves to issue the circular by giving up the additional requirement of the applicant holding the rank of IWO. He further submitted that as he was wrongly deprived of an opportunity to contest for promotion to the post of JTO-I (Electrical) pursuant to earlier memo dated 23-2-1988, if he would have contested as per the second circular, he would have obviously been junior to Respondents 2 to 5 who got selected earlier when Respondent 1 did not get any opportunity to contest qua them and therefore, Respondent 1 cannot be estopped from challenging the legality of earlier circular dated 23-2- 1988. So far as the second ground was concerned, it was submitted that such was not the contention of the appellant before the Tribunal and even otherwise, the appellants themselves by issuing the second circular clarified that the additional requirement for the applicant to hold the rank of IWO was superfluous and was not essential for being considered for re-employment

5. Having given our anxious consideration to the rival contentions, we find that so far as the first circular dated 23-2-1988 is concerned, it certainly went beyond the requirements of the Rules governing the question of reemployment of the staff concerned to the said post of JTO-I (Electrical). The only requirement was re-employment of ex-IAF persons with Electrical Trade having 10 years' experience on Air Force Aircraft and ground installation. Respondent 1 admittedly fulfilled this qualification. He was therefore eligible to be considered for re- employment. Still he was not permitted to contest because of the wording of the circular dated 23-2-1988 which required additional qualification for the applicant to hold the rank of Junior Warrant Officer. Therefore, the Tribunal was perfectly justified in taking the view that the selection pursuant to the aforesaid circular dated a 23- 2-1988 was not a regular and a legal one. However, the Tribunal has passed an equitable order in favour of Respondents 2 to 5 in not disturbing their appointments

6. In these circumstances, the directions issued in paragraph 5 of the judgment of the Tribunal cannot be found fault with. It may also be noted that though second selection did take place pursuant to which interviews b were also held on 6-2-1990, Respondent I cannot be estopped from challenging the earlier circular because he did not think it fit to appear at the interview at the second stage. The reason is obvious. If he was not permitted to contest pursuant to the circular dated 23-2-1988 for re-employment and was wrongly kept out and even if he did get selected pursuant to the second circular, an irreparable injury would have been caused to him by making him junior to those with whom he would have otherwise effectively competed. Consequently, no estoppel could be urged against Respondent I on this ground7. Under these circumstances, in our view the order passed by the Tribunal is perfectly justified in the facts and circumstances of the case. The learned Senior Counsel for the appellant submitted that this is not a case of promotion, but a case of re-employment. Be that as it may, even if it is reemployment, the re-employment is only of those limited class of persons who are eligible to apply for the re- employment as per the Rules. A total outsider cannot come and contest for such re-employment. Pursuant to the directions of the Tribimal, the appellants will have to consider the case of Respondent 1 for retrospective re-employment according to the Rules. If he is found suitable, appropriate ranking and seniority will have to be given to him qua Respondents 2 to 5 as per relevant rules. Subject to this clarification, this appeal is dismissed with no order as to costs. Interim relief vacated.

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