Bombay High Court
R-18/13-D vs The Chief Of Naval Staff on 7 July, 2008
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, A.A. Sayed
[1]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 213 OF 1998
S.N.Barik of Bombay
Indian Inhabitant, residing at
R-18/13-D, Navy Nagar, Colaba,
Mumbai 400 005. ... Petitioner.
Versus
1. The Chief of Naval Staff
having his office at Naval
Head quarters, New Delhi.
2. Flag Officer Commanding-in-
Chief, Eastern Naval Command,
haivng his office at Naval Base,
Vishakhapatnam, Andhra pradesh.
3.
having
Mankhurd,
Commodore
his
ig office
Bombay
Bureau
at
400
of
Cheetah
Sailors,
Camp,
088.
4. Officer-in-Charge
Shipwright School,
Vishakapatnam.
5. Union of India. ... Respondents.
Mr.Satendra Kumar, Advocate for the petitioner.
Mr. Y.R.Mishra a/w. A.S.Dubey advocates for the
respondents.
CORAM : Sri R.M.S.Khandeparkar
and Sri A.A.Sayed, J.
DATE : July 7, 2008.
ORAL JUDGMENT (PER R.M.S. KHANDEPARKAR , J.)
1. By the present petition, the petitioner is seeking to quash the declaration of CHSWA "Q" Board Examination issued by the respondents on 16th May, 1992 about failure of the petitioner in Shipwright Artificer Examination and further that the respondents be directed to declare the petitioner to have passed in the said examination and for further consequential ::: Downloaded on - 09/06/2013 13:34:27 ::: [2] relief including the arrears of salary on the basis of such result to be declared by the respondents.
2. Few facts relevant for the decision are that the petitioner joined Indian Navy as Artificer Apprentice Shipwright on 3rd August,1981 and he completed his training in the year 1985. In the same year 1985, the petitioner was promoted to the rank of Shipwright Artificer V Class. On 27th April, 1987, he was promoted to the rank of Shipwright Artificer IV Class, on 27th April, 1988 he was promoted to the rank of 1989 Shipwright he was ig Artificer promoted III to Class the and rank on 27th of April, Shipwright Artificer II Class. The petitioner appeared for his first Chief Shipwright Qualifying Board Examination on 3rd August, 1991 and secured only 42% marks in aggregate and therefore was declared as fail.
Therefore he appeared for the same examination on 16th May, 1992 for the second time and though had secured 55% marks in aggregate, he was declared failed on assumption that in order to pass the said examination he ought to have secured minimum 60% marks in aggregate. On 6th May, 1993, the petitioner appeared for the 3rd time for the said examination and could secure only 50% marks in aggregate and, therefore, was declared as failed.
3. It appears that on 13th February, 1995 the petitioner made a representation to the Flag Officer ::: Downloaded on - 09/06/2013 13:34:27 ::: [3] Comanding-in-Chief, Mumbai that he was wrongly declared as fail in his second attempt in the year 1992 inspite of the fact that he had secured minimum required passing marks in aggregate. In that regard he had drawn the attention of the authorities to the Navy Order dated 24th June, 1988, which specifically disclose the minimum requirement to be 55% of marks in aggregate as the passing marks.
4. The respondents, however, rejected the representation made by the petitioner. His attempts to prefer futile as an his appeal claim to in the that Central regard Government was rejected also by proved the Central Government on 27th August, 1997. Hence, the petitioner has filed the present petition.
5. It is the contention on behalf of the petitioner that in the year 1992, when he appeared for 2nd time for the said examination, the Navy Order which was in force required only 55% marks in aggregate to pass the said examination and, therefore, the respondents were not entitled to declare the petitioner as having failed ignoring the fact that the petitioner had secured 55% marks in aggregate. It is further the submission that the Navy Order No. 36 of 1967 which was sought to be applied in the matter was no more in force as already 8 years have expired from the issuance of the said Navy Order. The Navy Order No. 110/37 provides that " Navy Orders remain operative for eight ::: Downloaded on - 09/06/2013 13:34:27 ::: [4] years from their date of issue. If the matters contains therein still represent current policy, the orders would be incorporated in BRS or reproduced in current Navy Orders." Besides, in 1992 there was already another Navy Order in force dated 24th June, 1988, which prescribed only 55% marks in aggregate as the passing marks. Drawing our attention to the correspondence and various letters written by the Competent Authorities of the Navy from time to time and also recommendation made by such Authorities in relation to the petitioner's case justifying the claim of petitioner the petitioner, submitted the that learned rejection Advocate of for the petitioner's representation and claim clearly disclose arbitrary exercise of powers by the respondents.
6. On the other hand, the learned advocate appearing for the respondents submitted that considering the practice which was followed by Navy all through out and all the candidates were subjected to requirement of acquiring minimum 60 % of marks in aggregate to claim promotion and the same rule having been applied to the petitioner, no fault can be found with the impugned order. He further submitted that undisputedly the petitioner appeared for the said examination in the year 1993 for the third time without making any grievance knowing well that he had failed in the second attempt, it is too late for the petitioner to approach this court with the claim for arrears, on ::: Downloaded on - 09/06/2013 13:34:27 ::: [5] the basis of the letter dated 24th June, 1988. The petitioner having himself accepted the result of the second attempt and having failed in the second attempt, appeared third time for the said examination and could secure only 50 % marks in the third attempt, he is not entitled to seek any relief in writ jurisdiction.
7. Upon hearing the learned advocates for the parties and on perusal of the records, the only point which arises for consideration is whether the passing parentage for Chief Shipwright Artificer Examination in the respondents year 1992 have was 55%, arbitrarily and if denied it was the so, promotion whether the to the petitioner inspite of securing 55% marks in aggregate in the said examination.
8. It is not in dispute that the petitioner secured 55% marks in aggregate in his second attempt in the year 1992. It is also not in dispute that inspite of getting the said percentage of marks he was declared fail in the said examination. It is further not in dispute that in the policy letter dated 24th June, 1988, the minimum percentage of marks was prescribed as 55% marks in aggregate as passing marks. The defence sought to be raised is that in terms of Navy Order No. 36/67 issued in the year 1967, the passing percentage prescribed was 60% marks in aggregate. The fact that Navy Order has maximum life of eight years from the date of its issuance is not in dispute. The only ::: Downloaded on - 09/06/2013 13:34:27 ::: [6] contention which is sought to be raised on behalf of the respondents is that by virtue of the practice that was followed in the Navy all throughout, minimum 60% of the marks in aggregate were required to pass the said examination and the same criteria was applied in case of the petitioner.
9. In order to make good the contention about the practice alleged to have been followed by the respondents, they have filed affidavit and tried to point out the results of such examination held in the year Undoubtedly 1992 in the relation said to result other discloses candidates that all also.
those candidates who had secured 60% marks, were declared passed and the candidates who had secured less than 60% marks were declared to have been failed at the said examination. Being so, can it be said that in view of such practice alleged to have been followed by the respondents in relation to the result to be declared pertaining to the examination in question would create right in favour of the respondents to declare the petitioner to have failed in the said examination ignoring the Navy Order dated 24th June, 1988 which was in force at the relevant time ?
10. It is pertinent to note that the correspondence which followed the declaration of the result of the petitioner between the officers of the Navy invariably discloses that there was a mistake on the part of the ::: Downloaded on - 09/06/2013 13:34:27 ::: [7] Naval authorities in applying the rule as was specified under Navy Order No. 36/67 and in not applying the Rule which was required to be applied for the said examination which provided for securing minimum 55% marks in aggregate as passing marks as per the policy letter dated 24th June, 1988. A letter was addressed to the Chief of Naval Staff by the Flag Officer Commanding-in-Chief on 25th September, 1995, wherein it was clearly observed that the Command was of the view that in June 1992 the Navy Head Quarter letter dated 21st June, 1992 was holding the field and therefore the provision case of of 55% the ig of petitioner.
marks ought
The same
to have
view
been
was
applied
reiterated
in
in the letter addressed to the Flag Officer
Comanding-in-Chief Mumbai on 14th August, 1996. What is further pertinent to note is that the letter which was received from the Eastern Naval Command Head Quarter in the office of Chief of Naval Staff at New Delhi, clearly recorded that the head quarter was in agreement with the recommendation and it had already indicated that nine SWA sailors had scored 55% marks and yet were declared failed. It was therefore requested that the matter needs to be re-examined and the seniority of the sailors was to be restored.
11. Further, the office of the Admiral Superintendent Commodore of the Yard's Division, Naval Dockyard Mumbai addressed a letter dated 22nd February, 1996 to the Flag Officer Commanding-in-Chief, Mumbai ::: Downloaded on - 09/06/2013 13:34:27 ::: [8] wherein it was specifically brought to the notice of the concerned officer that Navy Order No. 36/67 which required 60% marks in aggregate for passing the said examination was not revalidated after the expiry of five years and therefore should be considered as invalid in the year 1992 and further that since the sailor had secured 55% marks in aggregate he ought to have been declared passed. Having observed so, it was concluded as under :-
"5. Conclusion : It would not be wrong to conclude that the sailor is genuinely aggrieved. ig The Ship Wright School while declaring the result of the CHSWA "Q" course in 92 and deciding on the ambiguity arising out of the Navy Order No. 36/67 and NHQ letter TR/79 32/X/P dated 24th June 1988 which lays down 55% as the passing aggregate, chose to err on the side of the Navy order and taking 60% as the passing marks failed the sailor. However when queried on the logic, they promptly shifted the onus of deciding the pass percentage to CABS (Encl.II). Quoting the NHO letter TR/79 32/X/P dated 24th June, 1988, CABS stated that the qualifying marks being applied to all higher rank COURSES was 55% and urged NHQ to amend the outdated No. 36/67 which NHQ has done vide NHQ letter TR/79 32/ dated 25th April, 1995 (Encl.IV)".
After the above conclusion it was recommended thus :-
" Recommendation: The genesis of amending the NO 36/67 (pass percentage 60%) to pass percentage of 55% is NHQ letter TR/79 32/X/P dated 24th June, 1988 and the same was operative when the subject sailor underwent the CHSWA "Q" course in 92 and was declared FAILED despite having secured 55% marks in the aggregate. It is strongly recommended that the sailor be given the benefit of doubt and declared qualified with retrospective effect of 92 and his seniority protected accordingly. After a protracted correspondence on the subject with various agencies and getting no relief, the sailor has now requested the redressal of his grievance in terms of Section 23 of the Navy Act, 1957 and Regulations 235 to 239 of the Regulations for the Navy Part II as ::: Downloaded on - 09/06/2013 13:34:27 ::: [9] amplified vide NQWNC letter JA/2030/Gen/III dated 21st January, 91."
It is thus clear that it was to the knowledge of the respondents all through out that there was a blatant injustice done to the petitioner in declaring him to have failed in the examination inspite of having secured 55% of marks in his second attempt in the said examination. Merely in the name of wrong practice which was followed by the respondents, injustice could not have been allowed to be perpetuated to the petitioner once it was clear to the respondents that there was ig injustice done to the petitioner, it was expected from the respondents to undo the wrong by following proper procedure and granting necessary relief to the petitioner in accordance with the provisions of law. We are surprised that inspite of condemning such wrong, the respondents had chosen to perpetuate the injustice to the petitioner.
12. The contention that the petitioner having accepted the result of 1992 about his failure in the examination and therefore had appeared for the third time in the said examination in 1993 and, therefore the petitioner is estopped from claiming any benefit on the basis of the result secured in 2nd attempt in the said examination, is totally devoid of substance. Once the petitioner was entitled to be declared passed in the second attempt in the said examination having secured 55% of marks in aggregate, merely because out of ignorance of the provisions of law, he had appeared for ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 10 ] the third time in the said examination, that would not create any right in favour of the respondents to deny the benefit of the results of the examination held in 1992, which the petitioner was and is lawfully entitled to claim and enjoy.
13. For the reasons stated above, therefore, we find that the claim of the petitioner is well founded and certainly justified. Undisputedly, the petitioner has already retired. Being so, consequent to the declaration of his result of 1992 and having declared him entitled pass for in monetary the said examination, benefits which he he would would only be have otherwise enjoyed in case he had been in active service during the said period.
14. In the result, we allow the petition and direct the respondents to declare the petitioner having passed in the CHSWA "Q" Board Examination held on 16th May, 1992 and further to grant him all the monetary benefits which he would be entitled to on the basis of such results, including the pensionary benefits.
15. Rule is made absolute in above terms with no order as to costs.
[R.M.S.Khandeparkar,J.] [A.A.Sayed, J.] ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 11 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1325 OF 1998 S.N.MISHRA SWA-2-N-191247-N of Bombay Indian Inhabitant, presently posted at INS Viraat at Bombay and residing at 9 Shiv Kripa Tirandaz, Village opp.I.I.T.Main Gate,Powai, Mumbai 400 076 ... Petitioner.
Versus
1. The Chief of Naval Staff having his office at Naval Head quarters, New Delhi.
2. Flag Officer Commanding-in-
Chief, Eastern Naval Command, haivng his office at Naval Base, Vishakhapatnam, Andhra pradesh.
3. Commodore Bureau of Sailors, having his office at Cheetah Camp, Mankhurd, Bombay 400 088.
4. Officer-in-Charge Shipwright School, Vishakapatnam.
5. Union of India. ... Respondents.
Mr.Satendra Kumar, Advocate for the petitioner. Mr. Y.R.Mishra a/w. A.S.Dubey advocates for the respondents.
CORAM : Sri R.M.S.Khandeparkar and Sri A.A.Sayed, J.
DATE : July 7, 2008.
ORAL JUDGMENT (PER R.M.S.KHANDEPARKAR, J.)
1. Since the facts in this case as well as well as those in Writ Petition No. 213 of 1998 are the same, the points which arise for consideration in this matter ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 12 ] are same as to those in Writ Petition No. 213 of 1998, which has been disposed of by a reasoned judgment today, for the same reasons, the present petition is also liable to be allowed on the same terms and is accordingly allowed and it is directed that the petitioner be declared to have passed the CHSWA "Q"
BOARD Examination held on 16th May, 1992 and further directed to grant him all the consequential monetary benefits alongwith pensionary benefits.
2. Rule is made absolute in above terms with no order as to costs.
[R.M.S.Khandeparkar,J.] [A.A.Sayed, J.] ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 13 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONL NO. 213 OF 1998 Date of Decision : July 7, 2008.
For Approval and Signature :
The Honourable Mr. Justice R.M.S.Khandeparkar:
The Honourable Mr. Justice A.A.Sayed :
1. Whether Reporters of Local Papers may be allowed to see the Judgment?
2. To be referred to the Reporters or not?
3. Whether Their Lordships wish to see the fair copy of the Judgment?
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder?
5. Whether it is to be circulated to the Civil Judges ?
6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office?
***** ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 14 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONL NO. 1325 of 1998 Date of Decision : July 7, 2008.
For Approval and Signature :
The Honourable Mr. Justice R.M.S.Khandeparkar:
The Honourable Mr. Justice A.A.Sayed :
1. Whether Reporters of Local Papers may be allowed to see the Judgment?
2.
To be referred to the Reporters or not?
3. Whether Their Lordships wish to see the fair copy of the Judgment?
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder?
5. Whether it is to be circulated to the Civil Judges ?
6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office?
***** ::: Downloaded on - 09/06/2013 13:34:27 ::: [ 15 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 213 OF 1998 S.N.Barik of Bombay Indian Inhabitant, residing at R-18/13-D, Navy Nagar, Colaba, Mumbai 400 005. ... Petitioner.
Versus
1. The Chief of Naval Staff having his office at Naval Head quarters, New Delhi.
2. Flag Officer Commanding-in-
Chief, Eastern Naval Command, haivng his office at Naval Base, Vishakhapatnam, Andhra pradesh.
3. Commodore Bureau of Sailors, having his office at Cheetah Camp, Mankhurd, Bombay 400 088.
4. Officer-in-Charge Shipwright School, Vishakapatnam.
5. Union of India. ... Respondents.
Mr.Satendra Kumar, Advocate for the petitioner. Mr. Y.R.Mishra a/w. A.S.Dubey advocates for the respondents.
CORAM : Sri R.M.S.Khandeparkar and Sri A.A.Sayed, J.
DATE : July 7, 2008.
. For the reasons separately recorded in the Judgment, the Honourable Court pleased to pass the following order:-
ORDER
14. In the result, we allow the petition and direct the respondents to declare the petitioner having passed in the CHSWA "Q" Board Examination held on 16th May, 1992 and further to grant him all the monetary benefits which he would be entitled to on the basis of such results, including the pensionary benefits.
15. Rule is made absolute in above terms with no order as to costs.
True Copy.
[R.M.S.Khandeparkar,J.] [A.A.Sayed, J.] D.V.Godbole PA to A.A.Sayed,J.
::: Downloaded on - 09/06/2013 13:34:27 :::