V. K. Pandey & Ors. v. Union of India & Ors.

4. It is in the backdrop of the aforesaid facts that the present Writ Petition has been filed in which the Petitioners have sought the following reliefs (in Writ Petition No. 7103 of

2014) viz. “(a) That this Hon’ble Court will be pleased to issue Writ of Certiorari or a Writ in the nature of Certiorari or any other Writ, direction or Order, calling for the records and proceedings of O.A. No. 180 of 2004 on the file of Central Administrative Tribunal, Mumbai Bench and after going through the legality or otherwise thereof this Hon’ble Court will be pleased to quash and set aside Judgment & Order dated 26.04.2013 passed by the Central Administrative Tribunal, Mumbai Bench in O.A. No. 180 of 2004. (b) That this Hon’ble Court will be pleased to issue Writ of Mandamus or a Writ in the nature of Mandamus or any other Order directing the Respondents to apply the gradings stipulated in DM 06/85 to the Petitioners & grant them suitable grade in appointment with Naval Dockyard since their appointment on 19.07.1999.

(c) That this Hon’ble Court will be further pleased to direct the Respondents to grant all the consequential benefits to the Petitioners including arrears of pay & promotions after treating them as appointed to the Post as per the terms of DM 06/85.” Submissions of Mr. Salil Sagar, on behalf of the Petitioners.

5. Mr. Sagar, Learned Senior Counsel at the outset submitted that the order of the Tribunal dated 16th June, 2003 passed in OA No.989 of 1999 and other connected OAs was a judgement in rem and it was thus that the same would be applicable to the Petitioners as well. He submitted that just as DTM 117/99 was held to be inapplicable to the apprentices in OA No. 989 of 1999 and other connected OAs the same would apply to the Petitioners who were also similarly situated as the apprentices in OA No. 989 of 1999 and other connected OAs. He submitted that since the order of the Tribunal dated 16th June 2003 passed in OA No. 989 of 1999 and other connected OAs was a judgment in rem the same would be applicable to the Petitioners even if they had not approached the Court. He submitted that a judgement in rem would thus apply to all similarly situated persons. In support of his contention, he placed reliance upon the following judgments of the Hon’ble Supreme Court in the case of Deccan Paper Mills Company Limited vs. Regency Mahavir Properties and others[1] and State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others[2].

6. Mr. Sagar then pointed out that the Petitioners being entitled to the applicability/benefits of the said judgment of the Tribunal dated 16th June 2003 passed in OA No. 989 of 1999 and other connected OAs had made a representation to the Respondents on 18th August 2003. He submitted that since the

Petitioners had not received any response, the Petitioners had filed their respective OAs on 17th February 2004. He then placed reliance upon Section 20(2)(b)3 and Section 214 of the Administrative Tribunal Act, 1985 (“the said Act”), and pointed out that there was no delay since the cause of action accrued to the Petitioners on 18th August 2003 i.e. the date on which the Petitioners made their representations to the Respondent and the OAs were thus within time. He then submitted that since the order of the Tribunal dated 16th June, 2003 was a judgement in rem and the Petitioners were being discriminated against and the same was a continuing wrong hence the question of limitation did not arise. He submitted that the Petitioners were not fence sitters but had acted immediately on becoming aware of the order of the Tribunal dated 16th June

20. Applications not to be admitted unless other remedies exhausted.— (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,— (a) ….. (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) …..

21. Limitation.—(1) A Tribunal shall not admit an application,— (a) ….. (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

2003. In support of his contention, that the order dated 16th June, 2003 being a judgement in rem, the question of delay would not arise, he placed reliance upon a judgment of the Hon’ble Supreme Court in the case of Chairman/Managing Director, Uttar Pradesh Power Corporation Limited and others vs. Ram Gopal[5] and a judgment of the Delhi High Court in the case of Union of India & Another vs. Ved Prakash[6].

7. Mr. Sagar then took pains to point out that the Petitioners were on par with batches 60 and 62 who were also beneficiaries of the order dated 16th June 2003. To support this contention, he pointed out the following (i) that the Petitioners had studied together with the students of batches 60 and 62;

(ii) that batches 60 and 62 had passed out from the DAS in

May 1999 and May 2000 respectively and the Petitioners had also passed out in May 1999 and May 2000 respectively (ii) that the Respondents had prepared a Common Merit List of batch 60 and batch 62 with the Petitioners in batch IT-01(1 year training) and batch IT-01(2 years training) respectively; and (iv) that the candidates of batches 60 and the Petitioners

ILR (2009) VI Delhi 448 in IT-01 batch were absorbed into the employment on same day i.e. 19th July 1999. He then submitted that the Respondents had not denied the details provided by the Petitioners to show similarity between the Petitioners and batches 60 and 62. He also pointed out that the Respondents had treated the Petitioners equally to batches 60 and 62 while issuing appointment letters, assigning duties, and even granting promotions. He submitted that in so far as batch 62 was concerned, some of the applicants in OA 989 of 1999 and other connected OAs also joined apprenticeship training on 1st April 1997 i.e. after issuance of DTM 35/97 on 17th March 1997 and, the apprenticeship training of batch 62 was completed along with that of the Petitioners in batch IT-01 (2 year training) and batch IT-02 (1 year training) i.e. on 31st March

2000. He then submitted that the present Petitioners had appeared with batch Nos. 60 and 62 in 70th and 72nd All India Trade Test respectively and were given similar certificates. He thus submitted that the Petitioners were similarly situated with batch no. 60 and 62 and thus could not be discriminated against by the Respondents. In support of his contention that those who are similarly situated ought to be given parity, he placed reliance upon the judgments of the Supreme Court in Punjab State Electricity Board and another Vs. Thana Singh and others[7] and State of Madhya Pradesh and others Vs. Ramesh.

8. He then invited our attention to the letter dated 8th February 1980 to submit that Respondent No.2 had vide the said letter provided that the candidates with (i) two years ITI training plus one year base repair training at DAS (ii) one year ITI training plus two years base repair training at DAS were equal to the three years apprenticeship training and such candidates with such qualification would be eligible for the recruitment post for which 36 months of apprenticeship qualification as prescribed.

9. He then submitted the Tribunal had completely erred and misdirected itself in equating the Petitioners with batch IT- 03 since batch IT-03 had (i) joined apprenticeship training in April 2000 i.e. after DTM 117/1999 was notified; and (ii) OA No. 576 of 2009 was filed by batch IT-03 in the year 2009 which was after eight years of those apprentices joining DAS. He thus submitted that these facts were completely different from the facts in the Petitioners’ case because (i) the Petitioners had joined training at DAS in April 1998 which was before DTM 117/1999 was notified and (ii) the Petitioners’ OAs were filed within limitation since the Petitioners had made representation on 18th August 2003 which had never been decided.

10. Mr. Sagar then submitted that the issue that DTM 117/1999 was not approved by the Ministry of Defence, whereas DM 6/85 was infact approved by the Ministry of Defence, was settled and had attained finality, the benefit of which had been granted to the Applicants in OA No.989 of 1999 and other connected OAs. In support of his contention that once an issue has been decided and attained finality, the doctrine of issue of estoppel would be applicable, he placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and another[9]. It was thus that Mr. Sagar submitted that the Tribunal 2005 (1) SCC 787 had gravely erred in dismissing the Petitioners’ OAs and submitted that the present Petition ought to be allowed. Submissions of Ms. Neeta Masurkar, on behalf of the Respondents.

11. At the outset Ms. Masurkar, submitted that the Petitioners’ contention that the Petitioners were similarly situated with the Applicants in OA No. 989 of 1999 and other connected OAs was entirely misconceived. She pointed out that the Petitioners belonged to IT-01 and IT-02 batches whereas the Applicants in OA No. 989 of 1999 and other connected OAs were from batch AA 58, 59, 60, 61 and 62 who were infact not similarly situated to the Petitioners. In support of her contention and in order to highlight the differences between the Petitioners and the individuals with whom the Petitioner claimed parity, she tendered a chart which set out as follows:- BATCH JOINED PASSED DTM IN FORCE ON JOINING DTM IN FORCE ON PASSING DTM APPLIED EARLIER DTM APPLIED NOW AS PER COURT DIRECTIV E FOR PROSPEC TIVE APPLICAT ION RELATED COURT CASES (APPRENTICESHIP ACT)

AA BATCHES OF APPRENTICESHIP) 3YR Apr- Apr- 06/85 35/97 06/85 DTM dated 14 2YR Apr- Apr- 06/85 06/85 06/85 DTM dated 14 3YR Oct- Dec- 06/85 35/97 06/85 DTM dated 14 2YR Oct- Dec- 06/85 06/85 06/85 DTM dated 14 3YR Apr- Apr- 06/85 35/97 117/99 DTM dated 14 Jan 85 (i) OA Nos. 989/99, 655/00, 584/01 and 124/01 – Allowed by CAT, Mumbai vide Order dated 30 (ii) WP No.437/03 filed by UOI dismissed by Hon’ble High Court of Bombay vide Judgment dated

10 Apr 08. Case implemented. 2YR Apr- Apr- 3YR Oct- Dec- 2YR Oct- Dec- 3YR May- May- 2YR May- May- 3YR Oct- Dec- 06/85 117/99 117/99 DTM dated 14 3YR Apr- May- 35/97 117/99 117/99 DTM dated 17 IT BATCHES OF APPRENTICESHIP IT-01 (1 YR) Apr- May- 35/97 35/97 117/99 DTM dated 17 (a) OA No.360/09, OA No.370/09, OA No.371/09, OA No.178/04 – Dismissed vide CAT, Mumbai Order dated 26 (b) Current Writ Petitions. IT-01 (2 YR) Apr- May- IT-02 (1 YR) Apr- May- IT-02 (2 YR) Apr- May- IT-03 (1 YR) Apr- May- 117/99 117/99 117/99 DTM dated 21 (a)_ OA No.576/09 dismissed by CAT, vide Order 26 Apr 13. (b) WP No.9662/14 – Dismissed vide Order dated 26 (c) SLP (C) No.21936 of 16 filed in Supreme Court – Pending. IT-03 (2 YR) Apr- May- 117/99 117/99 117/99 DTM dated 21 From the said chart Ms. Masurkar pointed out that it was apparent that the present Petitioners and the Applicants in OA No. 989 of 1999 and other connected OAs were not similarly situated because there was a difference in (i) the dates of their joining DAS (ii) the dates of passing entrance examination (iii) the eligibility criteria and educational qualification prescribed in the advertisement issued pursuant to each batch in DAS at entrance examination of DAS.

12. She also pointed out that the Petitioners in the present case as also the Applicants in OA 989 of 1999 and other connected OAs had different duration of training including apprenticeship training on ships. She submitted that the mode of gradation in each trade was also different and based on their marks obtained and internal assessment done on the basis of the various DM/DTM which were applicable on the dates of joining of DAS. She took pains to point out that educational qualification required for apprenticeship before 16th January 1997 was of matriculation and 8th standard passed which was enhanced to ITI vide order of Ministry of Defence dated 14th January 1996 and that such candidates were given rebate/reduction in training period and that the practical training period was reduced to one year and two years respectively. Basis this she submitted that it was inconceivable for the Petitioners to contend that they were similarly situated as the Applicants in Applicants in OA No. 989 of 1999 and other connected OA’s.

13. She then pointed out that the DM 6/85 had infact ceased to exist on 16th January 1997 when DTM 4/97 came into force. She pointed out that DTM 4/97 was then further amended by DTM 35/97 and that the DTM 117/99 was thereafter issued on 21st September 1999 which superseded the earlier DTMs issued. She submitted that vide clause 9(a) of DTM 117/99 the same was given retrospective effect and it was only the retrospective application/effect of the said DTM 117/99 that was struck down by the Tribunal and nothing else. She took pains to point out the Tribunal had not in any manner held that the DTM’s were not valid and/or Respondent No. 3 did not have the power to issue the same. She submitted that it was thus that the question of judgment of the Tribunal dated 16th June 2003 being applicable to the Petitioners in the present Petition did not arise since the same was infact not a judgment in rem but applied only to applicants in OA 989 of 1999 and other connected OAs. She submitted that validity of DTMs not being set aside, the same continued to be applied from the dates on which they were notified/came into force.

14. She then submitted that the concession was given to batch AA-60 due to the fact that they had only few months of apprenticeship left when DM 6/85 was superseded by DTM 35/97. She pointed out that when batch AA-60 joined the DAS, DTM 35/97 did not exist whereas when the Petitioners i.e. IT- 01 and IT-02 joined DAS, the DTM 35/97 was very much in force. She pointed out that batch AA-60 was in the last semester and hence applying DTM 35/97 would have had an adverse impact hence the claims of other batches i.e. AA 58, 59, 61 and 62 were merged by Tribunal and affirmed by this Court. She also pointed out that the training period of batch AA-60 was for two years and three years whereas in Petitioners’ case (batch IT-01 & IT-02) the training period was of one year and two years respectively. She submitted that therefore even the practical training given to the Petitioners was different.

15. She then submitted that the applicable rules in the present case were SRO No.150 of 2000 (Recruitment Rules) from which she pointed out that Column-11 of the said Rules provided that 60% absorption would be from ex-apprenticeship of designated trades and 40% by promotions failing which there would be direct recruitment. She submitted that the Admiral Superintendent in his capacity as “occupier” of Naval Dockyard under the Factories Act 1948, as “Employer” under Section 2(f) of the Apprentice Act 1961 and as per powers conferred vide letter of Ministry of Defence dated 14th November 1996 had the requisite powers to issue DTMs. She submitted that thus the Admiral Superintendent of Naval Dockyard being administrative authority had powers to issue administrative directions in the form of Dockyard Memorandum and thus the same had force of law according to Article 13(3) of the Constitution of India.

16. She then took pains to point out that this fact had specifically been recorded in the Impugned Order and pointed out that the Superintendent was a statutory authority and by powers delegated under the Naval Head Quarter Order dated 4th August 1979, and under the powers vested vide the said letter, the DTMs were issued by the Admiral Superintendent. She then took grave exception to the Petitioners’ conduct to submit that the Petitioners had misled the Tribunal by showing only a copy of part of Naval Dockyard Standing Order to submit that the DTMs were applicable for only one year and that the DM 6/85 was permanent order approved by the head quarter and would thus be applicable. She submitted that the Naval Dockyard Standing Order used by the Petitioners was for internal management and had nothing to do with this matter or issue of gradation and assessment of apprentices.

17. She then submitted that the Petitioners’ contention that the Order dated 16th June 2003 was an order in rem was plainly incorrect. In support of her contention she invited our attention to the order dated 10th April 2008 passed in Writ Petition No.638 of 2004 and pointed out that the same in paragraph 22 thereof specifically recorded as follows:- “10……… Therefore, even if subsequent DTMs could be valid in respect of persons joining as Apprentices after issuance of these DTMs, such DTMs could not be given retrospective effect in respect of Apprentices who had already joined when DM 6/85 was in force.” Basis this she submitted that it was clear that the said order was not an order in rem and would thus be applicable only to those batches who had approached the Tribunal in OA No.989 of 1999 and connected OAs which were disposed of by order dated 16th June 2003 and that the Petitioners could not claim any parity, since as per the date when the present Petitioners joined DAS, DM 6/85 did not exist and DTM 35/97 was in force.

18. Ms. Masurkar submitted that even otherwise the Petitioners were guilty of delay and latches in approaching the Tribunal. She pointed out that the Petitioners had waited for the result in OA 989 of 1999 and other connected OAs and thus were clearly fence sitters. She pointed out that the Petitioners approached the Tribunal by filing their respective OAs on 16th February 2004 which was after a delay of five years from the date of joining of Naval Dockyard. She submitted that there was no explanation whatsoever for this delay as to why the Petitioners waited long to challenge the applicability of DTMs.

19. She then pointed out that the Petitioners had unconditionally accepted their respective letters of appointment without any demur or protest, and it was only after a period of five years of joining Naval Dockyard, they raised an objection for the first time. She submitted that the OAs had been filed well after the period of limitation as prescribed under Section 21 of the Administrative Tribunal Act, 1985 and thus the observations made in the Impugned Order on the aspect of delay were perfectly justified. In support of her contention that the Petitioners were fence sitters who had waited for the outcome of OA. No. 989 of 1999 and connected OAs and thus could not be given benefit arising from the order of the Tribunal dated 16th June, 2003 she placed reliance upon a judgment of the Hon’ble Supreme Court in the case of U.P. Jal Nigam and anr. Vs. Jaswant Singh and Anr10.

20. She submitted that the Tribunal had correctly rejected the O.A.’s filed by the Petitioners and thus submitted that, the present Petitions also deserved to be dismissed. Reasons and Conclusions

21. We have heard Learned Counsel for the Parties, considered their rival contentions as also the case law cited by them. The sum and substance of the Petitioners’ case is that DM 6/85 ought to have been applied to the Petitioners as well, in the same manner that it was applied to the Applicants in OA No. 989 of 1999 and other connected OAs. We are afraid we cannot accept the Petitioners contention for the following reasons, viz.

22. Thus for the above reasons, we find no infirmity in the Impugned Order and the present Petitions are dismissed.

23. In view of the dismissal of the present Petitions the captioned interim applications do not survive and the same are disposed of accordingly.

24. There shall be no order as to costs. (ARIF S. DOCTOR, J.) (CHIEF JUSTICE)