Bombay High Court
Shri Natthu Uddhav Jivtode And 7 Ors vs Union Of India Thr.Secty. And 3 Others on 25 April, 2016
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2726 OF 2003.
PETITIONERS: 1. V.Subramanyam.
2. D.P.Mandal.
3. U.G.Gedam.
4. T.C.Bhopare.
5. B.K.Mandal.
ig 6. V.S.Kobragade.
7. S.S.Shagul.
8. S.G.Naxine.
9. P.M.Lambat.
10.N.G.Watekar.
11.B.B.Balki.
12.R.P.Kaushal.
13.D.B.Nakhale.
14.S.K.Punyapwar.
15.A.V.Khade.
16.V.K.Kande.
17.P.J.Lagande.
18.D.S.Nawghare.
19.S.S.Salekar.
20.H.M.Raut.
21.B.R.Virraya.
22.Amiya Biswas.
23.Sheikh Usuf Sheikh Rasul.
24.A.S.Gedam.
25.D.N.Rathod.
26.L.G.Khandare.
27.V.K.Shendre.
28.R.T.Mogre.
29.Rawji Ram.
30.D.G.Kawale.
31.V.D.Satapute.
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32. P.N.Mulguru.
33. S.N.Thombare.
34. R.P.Aswale.
35. D.K.Welhekar.
36. N.M.Dongare.
37. A.K.N.Singh.
38. B.R.Sawankar.
39. K.P.Ramteke.
40. S.C.Shende.
41. M.K.Deogade.
42. B.R.Gadamwar.
43. N.K.Gowardipe.
44. C.G.Umare.
45. A.R.Ambulkar.
46. S.K.Nagpure.
47. S.D.Nandre.
48. S.R.Indurkar.
49. B.H.Nagpure.
50. D.M.Thombare.
51. S.B.Dudhalkar.
52. M.K.Gurunale.
53. M.K.S.V.Shende.
54.V.N.Ulmale.
55. S.V.Chahankar.
56. R.D.Lohankare.
57. C.B.Nikhade.
58. S.M.Sarwar.
59. R.L.Bhoyar.
60. V.W.Karwade.
61. D.M.Jadhao.
62. B.H.Gawai.
63. V.B.Niwte.
64. B.R.Barapatre.
65. R.D.Muneshwar.
66. M.N.Parshive.
67. Gudmitla.
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68. M.J.Bommawar.
69. M.S.Nikure.
70. P.M.Gongale.
71. A.H.Kale.
72. M.T.Mankar.
73. P.Y.Wakade.
74. W.T.Paighan.
75. G.K.Mandal.
76. B.L.Shil.
77. S.B.Pawankar.
78. M.M.Shekh.
79. T.G.Katrejwar.
80. D.S.Kale.
81. N.E.Ray.
82. D.D.Fule.
83. N.R.Pandhare.
84. V.B.Sawan.
85. Y.B.Gandewar.
86. R.G.Pimpalkar.
87. S.L.Chikatwar.
88. T.T.Lingayat.
89. N.C.Sarkar.
90. N.D.Chatpalliwar.
91. C.G.Aswale.
92. O.B.Raut.
93. K.M.Majhi.
94. J.M.Dubey.
95. T.M.Dukare.
96. B.D.Mankayya.
97. P.A.Mukharji.
98. K.Abraham.
99. S.P.Shankapal.
100.C.W.Sagore.
101.S.S.Buradkar.
102.B.B.Nakabe.
103.M.M.Raghul.
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104.P.B.Fulzele.
105. P.C.Kuldeep.
106. N.I.Karse.
107. Malaya Yalaya.
108. P.Chandraya.
109. P.P.Dahule.
110. M.L.Shende.
111. D.D.Nerulkar.
112. N.M.Agalave.
113. S.J.Prajapati.
114. G.G.Deogade.
115. B.K.Gharami.
116. V.K.Hanwale.
117. R.J.Gajbhiye.
118. K.R.Biswas.
119. S.V.Dudhagawali.
120. G.N.Malere.
121. B.K.Raut.
122. V.S.Gangasagar.
123. L.N.Vaidya.
124. G.A.Nagpurkar.
125. P.D.Randive.
126. S.S.Wirutkar.
127. R.M.Bujarkar.
128. S.D.Bhowale.
129. R.N.Neware.
130. V.L.Kambale.
131. W.V.Urade.
132. T.D.Natraj.
133. A.K.Gulghare.
134. Suka Pedaya.
135. M.Aswale K.R.Patil.
136. S.S.Hanmante.
137. G.M.Jogi.
138. N.G.Bunkar.
139. P.C.Zilpe.
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140. R.Vadivelu.
141. S.B.Manne.
142. M.H.Shende.
143. M.K.Mukharjee.
144. D.L.Khonde.
145. P.B.Katkar.
146. N.R.Rasekar.
147. K.D.Nanaware.
148. M.W.Ramteke.
149. A.H.A.G.Sheikh.
150. R.N.Rangari.
151. B.D.Raghulgade.
152. A.,S.Bodhale.
153. Sk.Yusuf Sk.Ismail.
154. N.G.Gonde.
155. K.Ramlu.
156. S.K.Chandankhede.
157. S.S. Nannaware.
158. A.M.Misar.
159. M.C.Kadukar.
160. F.S.Chiwande.
161. D.Dondekar.
162. G.B.Pullakawar.
163. S.P.Jiwtode.
164. E.Ayalayya.
165. B.D.Kale.
166. N.Tadichetty.
167. S.S.Chahande.
168. M.S.Murkute.
169. G.S.Pimpalkar.
170. M.K.Mandare.
171. B.G.Pozare.
172. J.Y.Tepale.
173. B.L.Bhagwat.
174. S.R.Hastak.
175. S.H.Thombare.
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176. B.Kashyap.
177. G.M.Shriwas.
178. W.B.Tandekar.
179. V.W.Khapare.
180. S.T.Chalkure.
181. M.R.Belekar.
182. M.B.Dange.
All Major.
Occu: Employees of Ordnance Factory,
Bhadrawati, Distt.Chandrapur.
: VERSUS :
RESPONDENTS: 1. Union of India through Secretary,
Ministry of Defence (Production), South
Block, New Delhi.
2. Ordnance Factory Board, through
Chairman, D.G.O.F., 10-A, Okland
Road, Khudiram Bose Mark, Kolkata.
3. Ordnance Factory, Chanda, Tq.
Bhadrawati, Distt.Chandrapur through
Senior General Manager.
4. Central Administrative Tribunal,
Mumbai Bench, Mumbai, Gulisthan
Building, Prescot Road, Fort, Mumbai
through Registrar.
WRIT PETITION NO. 1148 OF 2004.
PETITIONERS: 1. Shri Natthu s/o Uddhav Jivtode,
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aged about 51 years, Occu: Labourer,
R/o Godpeth, Bhadrawati, Tq.Bhadrawati,
Distt.Chandrapur.
2. Shri Kamlakar s/o Uddhavrao Wankhede,
aged about 43 years, occu: Labourer, r/o
Quarter No.44-A, Type-2, Sector No.1, O.F.,
Chanda, Tq.Bhadrawati, Distt.Chandrapur.
3. Shri Khushalrao Tukaram Kamdi,
ig aged about 48 years, Occu: Labourer, r/o
Near Sonal Talkies, Bhadrawati, Tq.
Bhadrawati, Distt.Chandrapur.
4. Shri Laxman s/o Chandrabhanji Ghugre,
aged about 45 years, Occu: Labourer,
r/o Suraksha Nagar, Bhadrawati, Tq.
Bhadrawati, Distt.Chandrapur.
5. Diwakar Narayan Sakhare,
aged about 50 years, Zade Plot Bhadrawati,
Distt.Chandrapur.
6. Vivekanand Devendranath Sarkar,
aged about 42 years, Netaji Colony,
Bhadrawati, Distt.Chandrapur.
7. Prabhakar Shamrao Tasalwar,
aged about 52 years, Killa Ward, Distt.
Chandrapur.
8. Keshav Rajeshrao Patil,
aged about 49 years, Panchsheel Ward
Bhadrawati, Distt.Chandrapur.
: VERSUS :
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RESPONDENTS: 1. Union of India through Secretary,
Ministry of Defence (Production), South
Block, New Delhi.
2. Ordnance Factory Board, through
Chairman, D.G.O.F., 10-A, Okland
Road, Khudiram Bose Mark, Kolkata.
3. Senior General Manager,
ig Ordnance Factory, Chanda, Tq.
Bhadrawati, Distt.Chandrapur.
4. Central Administrative Tribunal,
Mumbai Bench, Mumbai, Gulisthan
Building, Prescot Road, Fort, Mumbai.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.M.G.Burde, Advocate for the petitioners.
Mrs.Mugdha Chandurkar, Advocate for respondent no.1 to 3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 25th APRIL, 2016.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J
1. Heard Shri Burde, learned counsel for the petitioners, Advocate Mrs.Chandurkar for respondent nos.1 to 3. Respondent no.4 is Tribunal and hence service upon it is dispensed with.
2. That Tribunal has, as per its order dated 24th of March, ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 9 2003, dismissed O.A.No.930 of 2002.
3. Advocate Burde submits that the judgment or order proceeds on premise that amendment to SRO vide SRO No.34 dated 20th of January, 1997 was published in Government Gazette and was also brought to the notice of all concerned. He contends that unless and until such amendment, which drastically affects the service conditions, is brought to the notice of individual, it cannot be given effect to.
4. He points out that as per unamended SRO No.185 post of Danger Building Worker was included in Annexure 'A' and then provision was only for 20% promotion. The amendment, according to respondents, vide SRO No.34 brings out the change in this position and as per that amendment 80% of vacancies in Danger building Worker are to be filled in by transfer, failing which by direct recruitment and thereafter 20% by promotion. He contends that thus the promotional avenue available to 248 ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 10 workers before learned Central Administrative Tribunal (CAT) was drastically brought down and hence the fact that it was not brought to their notice was important. This was a specific challenge and CAT has accepted only oral statement that a Gazette Notification publishing amending SRO No.34 was published and circulated.
5. He further contends that respondent nos.1 to 3 being a model employer is supposed to assist CAT and cannot take advantage of ignorance of the workers. He states that even as per amended SRO, direct recruitment is possible as a second alternative. To justify decision to effect direct recruitment, it was incumbent upon respondents to demonstrate that efforts were made to fill in 80% vacancies by transfer. He states that there is no such material made available by respondents before CAT and hence the decision to effect direct recruitment is unsustainable.
6. Advocate Mrs.Chandurkar while opposing petition ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 11 submitted that a Gazette Notification publishing the amendment (SRO No. 34) is very much available and she has also produced a copy thereof on record for perusal. She contends that the only case presented before Central Administrative Tribunal was of not taking recourse to promotion. Direct recruitment was opposed by urging that SRO 185 required 100% posts to be filled in by promotion. It is this challenge which has been looked into by learned Central Administrative Tribunal. She contends that as SRO 185 is found to be validly amended, the challenge as raised has been answered by Central Administrative Tribunal. Petitioners never stated that there were no efforts by respondents to fill in the post by transfer and hence the employer also did not file any material for that purpose. Learned Central Administrative Tribunal was not required to consider it and it has also not recorded any finding in that connection. She, therefore, prays for dismissal of petition.
7. In his reply, Advocate Burde submits that petitioners are ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 12 very senior workers and they were stagnating. He submits that the transfer is a technical phrase as defined in Service Rule and it does not imply exactly the same Cadre. The persons working in similar cadres are given opportunity to improve their qualification after transfer and also to pass trade-test. He submits that these 80% posts legally available for effecting such transfers, are declined to petitioners by taking recourse to direct recruitment.
8. We find that amendment to SRO 185 by later SRO No.34 is not in dispute. The only question is whether the later SRO was given necessary publicity. The fact that it has been published in Gazette published by Union of India is established before this Court. Submission of Shri Burde is that amendment was not circulated to affected workers and it was not displayed on notice board. The learned counsel, however, is not in a position to point out to this Court provision in any standing order or any settlement with workers which stipulates that such an amendment shall not come into force unless and until it is brought to the notice ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 13 of concerned workmen. In absence of such provision, publication in Government Gazette by itself is sufficient knowledge to all concerned. The learned Central Administrative Tribunal has accepted the statement made by the responsible authority like Union of India before it and we find that there exists a Gazette Notification which shows that the amendment was duly published in Government Gazette. In this situation, challenge on that count is unsustainable.
9. Insofar as contention that petitioners ought to have been first considered for transfer, no such plea is raised in O.A. filed before the Central Administrative Tribunal. Even in oral argument advance before learned Central Administrative Tribunal petitioners have not raised that plea. Perusal of amended rule shows that 80% posts are required to be filled in by transfer and in default of transfer only direct recruitment is possible. Thus, direct recruitment cannot be resorted to initially. However, petitioners never raised that contention before learned Central Administrative ::: Uploaded on - 06/05/2016 ::: Downloaded on - 29/07/2016 23:44:17 ::: 14 Tribunal. The petitioners wanted to press their plea for promotion and as per amended provision only 20% vacancies are filled in by promotion. If petitioners wanted to reach remaining 80% vacancies, it was necessary for them to point out that, as their entitlement to transfer has not been considered, the decision of direct recruitment is bad in law. This was not the case made out and presented to the learned Central Administrative Tribunal for consideration. As this was not the case, respondents also did not get opportunity to point out the steps, if any, taken by them for effecting transfers and that direct recruitment was the second step.
10. We, therefore, find no jurisdictional error or perversity in the order of learned Central Administrative Tribunal.
Accordingly, Writ Petition is dismissed.
Rule discharged.
No costs.
JUDGE JUDGE
Chute.
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