1.0 The petitioner has prayed to quash and set aside the decision of the Appellate Authority as duly approved by the CMD and also the decision of the Grievance Committee and direct the respondents to give the petitioner deemed date of appointment earlier than those who were appointed from serial nos.21 onwards in the select list and on the basis of such deemed date to revise his pay scale and seniority etc. for considering him for future promotions and also to give him all monetary benefits on the basis of such deemed date as if he was appointed not in the year 1986 but on the said deemed date.
2.0 In pursuance of an advertisement and selection procedure, the petitioner was selected on the post of Junior Engineer (Production) by direct recruitment in the year 1983 by the respondent Corporation. A select list was prepared in this connection wherein the name of the petitioner was shown at serial no.13. The candidates whose names appeared below the petitioner, beginning from serial no.21 onwards, were issued appointment orders in the year 1984. Thereafter the petitioner, who is at serial no.13, was issued appointment letter in the year 1986.
2.1 In short, his juniors, whose names appeared at serial nos.21 to 63 on the select list were given appointment orders in the year 1984. The petitioner therefore made several representations to the respondent Corporation to which no reply was received till the respondent vide Memorandum dated 3rd February 1992 rejecting the representations of the petitioner.
2.2 Thereafter the petitioner approached this Court by filing Special Civil Application No.13734 of 1993 which came to be disposed of with a direction that the Grievance Cell of the Respondent Corporation should decide the pending cases as expeditiously as possible but not later than 31.01.1995.
2.3 In pursuance of the same the representation of the petitioner came to be rejected on 13.09.1995. Hence the present petition was filed.
3.0 Mr. K.K. Nair, learned Advocate for the petitioner contended that the Committee accepted the grievance of the petitioner that he had not been given seniority on the basis of ONGC Rules and the Committee also noted that while giving offer of appointment to the petitioner in the year 1986 a stipulation was made in the said offer letter that his seniority in the cadre of Jr. Engineer (Prod) will be determined on the basis of the date of issue of offer of appointment if he joined within stipulated period of 45 days.
3.1 He contended that the condition incorporated in the appointment order is inconsistent with the Regulations and that in such contingency the Regulation must prevail. He urged that a stipulation cannot override the rules and regulations. He further submitted that provisions of Regulation 19 were not followed in the case of the petitioner and the seniority was not given on the basis of the same.
3.2 Learned Advocate for the petitioner further submitted that the petitioner has restricted his claim only for the purpose of monetary benefit and he is not claiming any promotion and seniority. In this regard he has placed reliance on the decision of the Hon’ble Supreme Court in the case of State of Kerala and others Vs. E.K. Bhaskaran Pillai, reported in (2007)6 SCC 524 wherein it is held as under:
“4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 1561972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah V. Union of India, reported in (1989)2 SCC 541, Virender Kumar V. Avinash Chandra Chadha, reported in (1990)3 SCC 472, State of Haryana V. O.P. Gupta, (1996)7 SCC 533, A.K. Soumini V. State Bank of Travancore ((2003)7 SCC 238 and Union of India Vs. Tarsem Lal ((2006)10 SCC 145. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India Vs. K.V. Jankiraman ((1991)4 SCC 109, State of A.P.
V. K.V.L. Narasinha Rao ((199) 4SCC 181, Vasant Rao Roman V. Union of India ( (1993 Supp (2) SCC 324) and State of U.P. V. Vinod Kumar Srivastava ((2006)9 SCC 621). We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of the delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard andfast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
5. However, so far as present case is concerned, as per direction given by the Court, the petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect I.e. 15 91961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed OP No.585 of 1975 i.e.1561972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 1591961 but he filed a petition dated 1561972 and the Court granted the benefit from the date of filing of the petition before the Court i.e. 1561972. The incumbent in the meanwhile has retired on 3171980. Therefore looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.”
3.3 Mr. Nair has submitted that the petitioner should not suffer due to the delay and latches on the part of the respondent inasmuch as the respondent has not issued the appointment order to the petitioner in the year 1984 though he was selected in the year 1984. He has placed reliance on the decision in the case of Pillai Sitaram Patrudu & Ors V. Union of India and others, reported in JT 1996(4) SC 731 wherein it is held that in case of delayed appointment for no fault of the incumbent, he is entitled to the ranking given in the select list and appointment.
4.0 Learned Advocate reiterated that the petitioner has restricted to his claim for monetary benefits and not for promotion. He has also relied upon the proceedings at AnnexureA to the petition pointing out that the petitioner was at serial no.13 in the select list.
5.0 Mr. B.B. Naik, learned Senior Counsel appearing for the respondent raised a preliminary objection that the petition is not maintainable inasmuch as it is time barred and it suffers from latches. He submitted that the petitioner had joined the respondent Corporation as Junior Engineer (Production) in the year 1986 and therefore after a lapse of eight years he cannot claim reliefs prayers as made in the present petition. He placed reliance of the Hon'ble Apex Court in case of Rajendra Pratap Singh Yadav and others versus State of Uttar Pradesh and others reported in 2011(7) SCC 743 wherein in para 45 it is held as under:
“45. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of a person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services.”
6.0 He placed reliance of the Hon'ble Supreme Court in case of Shiv Dass v. Union of India & Ors. reported in AIR 2007 S.C. 1330, wherein, the following observations made in Para10 are relevant;
“10. .......If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.”.
7.0 Mr. Naik, further placed reliance on the decision of the Hon'ble Apex Court in case of C. Jacob versus Director of Geology and mining and another reported in (2008) 10 SCC 115 and also in case of Eastern Coalfields Limited versus Dugal Kumar reported in (2008) 14 SCC 295.
8.0 Mr Naik, learned Senior Counsel further submitted that on merits also the petitioner has no case. He submitted that the delay occurred due to functional change in the organization in the year 1984 with the set up of business groups decentralizing the recruitment of Class III post. He further submitted that the petitioner joined service without any grievance and the appointment order stipulated that the seniority in the cadre will be counted from the date of issue of the appointment letter. He therefore submitted that the petition deserves to be dismissed.
9.0 As a result of hearing and perusal of the record it is found that the appointment orders to the post of Junior Engineer (P) level were issued at the regional level as the said post is of decentralized cadre. The name of the petitioner along with 29 others from the said select list were released for Bombay Offshore project at Bombay for issuing appointment orders for their posting at BRBC. However, since Bombay Offshore having their own select panel, the order of appointment of the 30 persons earmarked to Bombay Offshore Project could not be issued at that point of time and as such the appointment orders were held up for a long period.
10.0 It appears that the delay occurred due to functional change in the organization in the year 1984 with the set up of business groups decentralizing the recruitment of ClassIII post. Since the post in question is a ClassIII post, its recruitment was also decentralized and concerned projects/regions were delegated power to make their own recruitment on the basis of their work recruitment.
11.0 It is pointed out that due to functional change in requirement, the names released for Bombay Offshore of JE(P) for the period from 1984 to 1986 includes the names of all those persons who have been recruited directly as JE (P) or departmental candidates who have been promoted to the post of JE (P) during the period.
12.0 It is pointed out that due to delay in issuing appointment order to the petitioner, the Headquarters of the respondent Corporation at Dehradun acquired the list of these persons of Bombay Offshore Project and issued their appointment orders for posting to other regions.
13.0 In the appointment order of the petitioner it is specifically mentioned that the seniority in the cadre will be counted from the date of issue of these offer if he joins within the stipulated period i.e. 45 days. The petitioner had accepted this condition, meaning thereby at the relevant time he has not objected to the said condition while joining duty. It is also pointed out that as per rules the panel technically becomes null and void after one year, but as a good will gesture, the petitioner was issued offer of appointment. Thus, once having accepted the appointment order with the aforesaid condition without any demur, the petitioner is estopped from claiming any relief at this stage.
14.0 It is further required to be noted that the petitioner is claiming the relief for the period prior to his joining when he was not in the employment of the Corporation. The relief is claimed after about nine years. As per the ratio laid down by the Apex Court as stated hereinabove, no relief can be granted to the petitioner at a belated stage.
15.0 It is also required to be noted that the petitioner was not appointed in the year 1984. Thereafter he was appointed in the year 1986 with a condition that the seniority in the cadre will be counted from the date of issue of the appointment letter. Such a condition was incorporated due to certain functional change in the requirement which caused delay in appointment. Even though the select list was to be lapsed after one year, the respondent Corporation has still issued appointment order to the petitioner.
16.0 There is also some substance in the contention of the respondent that as the post of Junior Engineer (P) is of decentralized cadre and group of persons from the said select list were released for the different regions, the seniority of such Junior Engineer (P) was maintained regionwise and therefore the case of the petitioner for seniority cannot be accepted.
17.0 It is also required to be noted that in fact the petitioner has not actually worked on the post in question till his appointment in the year 1986. There is nothing on record to show that the petitioner has claimed appointment immediately after his juniors were appointed. In view of these facts, when the petitioner has not actually worked on the post in question, it would not be appropriate to grant relief as prayed for by him.
18.0 In the case of State of Kerala (supra) the persons junior to the petitioner therein were appointed and later on the petitioner was promoted from retrospective effect and arrears were not paid. Such is not the issue in the instant case. In the case of Pillai Sitaram (supra) the issue was with regard to promotion and in the present case the petitioner was not at all appointed in service in 1984. Therefore the ratio laid down in the said decisions would not be applicable to the facts of the present case.
19.0 In the result, since the petitioner was not appointed in the year 1984 and in view of the attending circumstances and specific condition in the appointment order and also the delay caused in approaching the Court, the reliefs as prayed for by the petitioner cannot be granted. The petition is therefore dismissed. Rule is discharged with no order as to costs.
(K.S. JHAVERI, J.) niru*