Bombay High Court
Union Of India & Ors vs D.V.S.Prabhakar Rao & Ors on 9 August, 2018
Author: M. S. Sonak
Bench: M. S. Sonak
j-os-wp-2720-01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2720 OF 2001
Union of India and ors. ...Petitioners
Versus
D.V.S. Prabhakar Rao and ors. ...Respondents
Ms S.I. Shah i/b S.I. Shah & Co. for the Petitioners
Mr. Abdulrajjak I. Bhatkar for the Respondents.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
DATE : 09.08.2018.
ORAL JUDGMENT:
1] Heard learned counsel for the parties. 2] The challenge in this petition is to the judgment and order dated 6.11.2000 made by the Central Administrative Tribunal (CAT), Mumbai disposing of O.As. instituted by the respondents in the matter of pay fixation. 3] Ms Shah, learned counsel for the petitioners, submits that the Hon'ble Supreme Court in case of Union of India Vs. R.Swaminathan - 1997 (2) SC SLJ 383, has clearly held that where juniors are promoted earlier than their Dinesh seniors, seniors are not entitled to stepping up of their pay Digitally signed by Dinesh Sadanand Sadanand Sherla Date: 2018.08.10 Sherla 11:10:20 +0530 D.S.Sherla page 1 of 9 j-os-wp-2720-01 to the level of the juniors. Ms Shah submits that the view taken by the CAT in the impugned judgment and order is indirect conflict with the law laid down by the Hon'ble Supreme Court in R. Swaminathan (supra) and therefore, the impugned judgment and order warrants interference. 4] Ms Shah submits that on account of the impugned judgment and order, some officers, will secure benefit of stepping up of pay whereas some officers similarly circumstanced will be deprived of such benefit. Ms Shah submits that the CAT was duty bound to follow the law laid down in case of R. Swaminathan (supra), so that such discrimination amongst officers similarly circumstanced would not arise. She submits that this is an additional reason to set aside the impugned judgment and order. 5] Mr A.I. Bhatkar, learned counsel for the respondents, defends the impugned judgment and order made by the CAT. He submits that the relief of stepping up of pay was granted by the CAT vide judgment and order dated 19.7.1994 in various O.As. instituted by the respondents. The special leave petition against the judgment and order D.S.Sherla page 2 of 9 j-os-wp-2720-01 dated 19.7.1994 was dismissed by the Hon'ble Supreme Court on 19.2.1996. As such, the decision of the CAT had attained finality qua the respondents. Mr. Bhatkar submits that merely because in some other matter, the Hon'ble Supreme Court may have taken a different view, was not a ground for the petitioners to review the orders made in pursuance of CAT's order dated 19.7.1994. Mr. Bhatkar submits that there is no jurisdictional error in the view taken by the CAT and therefore, this petition may be dismissed. 6] The rival contentions now fall for our determination. 7] The respondents had instituted several O.As before the CAT seeking for the relief of stepping up of pay so that the same is at par with their juniors. All these O.As. were allowed by the CAT vide judgment and order dated 19.7.1994. The petitioners - Union of India aggrieved by the common judgment and order dated 19.7.1994 in the various O.As. instituted by the respondents, instituted special leave petition before the Hon'ble Supreme Court, the same was dismissed by order dated 19.2.1996 on the ground of inordinate delay of 345 days.
D.S.Sherla page 3 of 9
j-os-wp-2720-01
8] The petitioners - UOI had, however, instituted other
special leave petition to question the judgments and orders made by various Benches of the CAT all over the country granting benefits of stepping up of pay to seniors. The Hon'ble Supreme Court, by its judgment and order dated 12.9.1997 in Civil Appeal No. 8658 of 1996 (case of R. Swaminathan (supra)) allowed the appeals and set aside the judgments and orders made by the various Benches of the CAT allowing stepping up of pay.
9] Based upon the ruling in R. Swaminathan (supra), the petitioners reviewed the orders of stepping up of pay made in favour of the respondents in pursuance of the CAT's judgment and order dated 19.7.1994 and also sought to recover the amounts already paid to the respondents. The respondents, therefore, instituted O.A. Nos. 189, 213 and 408 of 1999 questioning such orders of review and recovery. The CAT, by impugned judgment and order dated 6.11.2000 has allowed the O.As. Hence, the present petition. 10] The CAT has merely followed its ruling in O.A.No. 935 of 1998 decided on 1.2.1999 and there is no clarity whether D.S.Sherla page 4 of 9 j-os-wp-2720-01 the Union of India, at any stage, had questioned the judgment and order dated 1.2.1999 made by the CAT in O.A. No. 935 of 1998. If the Union of India has permitted the decision in O.A. No. 935 of 1998 to attain finality, then, there is no case made out to interfere with the impugned judgment and order dated 6.11.2000, which has merely followed the ruling in O.A. No. 935 of 1998. 11] Even otherwise, we are not persuaded to hold that the impugned judgment and order dated 6.11.2000 or for that matter the judgment and order dated 1.2.1999 in O.A. No. 935 of 1998 are vitiated by any jurisdictional error or perversity.
12] Admittedly, the decision of the CAT dated 19.7.1994 in the O.As. instituted by the respondents had attained finality inter partes, no sooner the SLP against the same came to be dismissed by the Hon'ble Supreme Court. 13] Even before the Hon'ble Supreme Court delivered its judgment in R. Swaminathan (supra) on 12.9.1997, the Union of India, had already implemented the common D.S.Sherla page 5 of 9 j-os-wp-2720-01 judgment and order dated 19.7.1994 granted benefit of stepping up of the respondents. After the Hon'ble Supreme Court decided R. Swaminathan (supra) on 12.9.1997, the Union of India was not justified in issuing orders dated 13.2.1998, not only withdrawing the benefits of stepping up, but also seeking recoveries from the respondents. No such opportunity was granted to the Union of India to reopen all matters which had attained finality.
14] This is also not a case where the Union of India instituted any review petition before the CAT seeking review of the common judgment and order dated 19.7.1994 or before the Hon'ble Supreme Court to recall its order dated 19.2.1996 dismissing the special leave petition against the CAT's order dated 19.7.1994. The order dated 13.2.1998, which was challenged before the CAT in the present matter states that the petitioners had taken a conscious decision not to institute review petitions. In such circumstances, the CAT was right in concluding that the petitioners were not entitled to disturb unilaterally finality which its earlier judgment and order dated 19.7.1994 had attained on account of dismissal of SLP against the same by the Hon'ble D.S.Sherla page 6 of 9 j-os-wp-2720-01 Supreme Court on 19.2.1996.
15] The issue as to whether even such a review petition could be allowed in light of explanation to Order 47 Rule 2 of CPC, at least prima facie, is required to be answered against the Union of India. The explanation provides that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of superior court in any other case, shall not be a ground for review of such judgment.
16] In any case, such an issue is only academic because admittedly the Union of India did not seek any review of the common judgment and order dated 19.7.1994. The CAT has quite correctly held that the Union of India could not have unilaterally withdrawn the benefits granted to the respondents on the basis of common judgment and order dated 19.7.1994 which had in fact attained finality consequent upon dismissal of SLP against the same.
D.S.Sherla page 7 of 9
j-os-wp-2720-01
17] This is not a case where the impugned judgment and
order can be said to be in conflict with the ruling in R. Swaminathan (supra). The CAT, in the impugned judgment and order, has not decided the issue of stepping up of pay for the first time by the impugned judgment and order. That issue was already decided by the common judgment and order dated 19.7.1994, which had attained finality due to dismissal of SLP against the same.
18] There is no merit in the contention based upon discrimination. The respondents, who are beneficiaries of the common judgment and order dated 19.7.1994, which has already finality, constitute a distinct class. Accordingly, there is no question of the impugned judgment and order promoting any discrimination between the officers. The apprehension expressed by Ms Shah that other employees will also claim benefit if this petition is dismissed and the view taken by the CAT is upheld, is quite untenable. In this matter, we are only concerned with the employees who were parties to the O.As., in which, the CAT made its judgment and order dated 19.7.1994, which judgment and order, as noted earlier, has attained finality on account of D.S.Sherla page 8 of 9 j-os-wp-2720-01 dismissal of SLP on 19.2.1996.
19] For all the aforesaid reasons, we see no good ground to interfere with the impugned judgment and order. Accordingly, this petition is dismissed. Rule is discharged. The interim relief, if any, is vacated. There shall, however, be no order as to costs.
20] Pending notices of motion, if any, do not survive and the same are disposed of.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
D.S.Sherla page 9 of 9