JUDGMENT A.K. Yog, J.
1. Judgment and order dated 20-2-2002/Annexure-13 to the writ petition, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (called 'the Tribunal'), rejecting Original Application No. 9 of 1997 --R.B. Verma v. Union of India and 2 Ors., is subject matter of challenge by means of the present writ petition No. 30733 of 2002 under Article 226, Constitution of India.
2. We may give, at the outset, brief fact matrix of the case, lor appreciating 'issue' raised by the petitioner before the Tribunal as well as this Court in the present petition.
3. Petitioner was initially recruited on 5-7-1963 as Upper Division Clerk; thereafter promoted time to time; at relevant time he was working as Assistant Accounts Officer in the office of Superintendent, Local Audit, Central Vehicle Depo, Panagarh (called SLA,CVD Panagarh); he served in that capacity at Panagarh from 1-1-1988 to 1-3-1990; he attained age of superannuation and retired from active service w.e.f. 30-6-1997. While the petitioner serving at Panagarh, Office of Controller of Defence Accounts, Patna issued Part I, Order No. 230 dated 2-i 2-1988/Annexure-14 to the writ petition requiring option from the concerned before 31-12-1988 for availing certain benefits in pay-scale and it was sent to all the concerned officers for information to the employees to avail themselves of the opportunity to take benefit of su:h extension. Relevant extract of said order (Annexure 14 to W.P.) is reproduced for ready reference-
" Office of the Controller of Defence Accounts Patna-19. Part I Order No. 230 dated 02-12-1988.
Subject: Central Civil Services (Revised pay) Rules, 1973. Fixation of pay of a Govt. servant who opts for the revised scale of pay from a date subsequent to 1.1.73 but not later than 31-12-1979. Reference this office Pt. 1.0.0 No. 207 dated 01.5.84.
With reference to Govt. of India, Ministry of Finance (Deptt. Of Expdr) O.M. No. 7 (66) E.III/83 dt. 13-3-1984 circulated under Pt. 1.0.0. quoted under reference a telegram bearing No. 5492 dt. 30-11-88 received from C.G.D.A. New Delhi on the above subject is reproduced as on Annexure 'A' to this Pt. I. Office order for information of all concerned.
2. The last date for exercising option was 31-5-84 which has now been extended upto 31-12-88 as a very special case, The effected individual who could not exercise their option in time and whose request for condonation of delay in exercising option has been rejected by CGDA or whose cases are under reference to C.G.D.A. may also be asked to exercise their option before 31-12-88 without fail.
3. No extension beyond this date will be allowed for what soever reasons.
4. The contents of the appended telegram as Annexure may please be brought to the notice of all concerned including those who are on leave and got it noted by them.
Sd/- R.K. Tewary Asstt. C.D.A. (ANO) No. AH/III/PFC/0167-RPR-1973 C/O The CDA Patna-19 Dated 2-12-1988.
DISTRIBUTION
1. All Section in Main Office.
2. All Sub Offices including Boarder Roads.
4. It has come on record that said letter was issued on the basis of telegram No. 5492 dated 30-11-1988 received from the office of the Controller General. Defence Accounts, New Delhi. By means of said order No. 230 dated 2-12-1988 all concerned in the Main Office and Sub-Offices under Controller of Defence Accounts, Patna were informed that all affected individuals who could not exercise their option in time in past and whose request for condonation of delay in exercising optior was rejected by CGDA or whose cases are under reference to CGDA, may be asked to exercise their option on or before 31-12-1988 without fail.
5. Para-3 of the said order mentioned that no extension was to be allowed for any reason whatsoever beyond aforesaid date i.e. 31-12-1988. Para-4 of the said order No. 230 is particularly required "The contents of the appended telegram as Annexure may please be brought to the notice of all concerned including those who are on leave and got it noted by them." (underlined by us to lay emphasis).
Copy of the said order has also been brought on record by the Respondents and filed as Annexure-CA2 to the counter affidavit (sworn by Ravinesh Kumar), filed on behalf of all the Respondents. Annexure-CA.l to the said counter affidavit is the extract of entries in Receipt Register maintained by office at Panagarh (where petitioner was working) shows that aforesaid order No. 230 dated 2-12-1988 was received and entered in the Register on 17-12-1988 at Sl. No. 357. Original Register has been produced and perused by us.
6. According to the contesting respondents, a telegram, as reminder, with reference to the above order No. 230 dated 2-12-1988 was also sent from Patna to Panagarh on 15-12-1988. Said telegram was received at Panagarh Office and entered in aforesaid Receipt Register on 21-12-1988 at Sl. No. 368. Photostat copy of the relevant extract of Receipt Register (Annexure CA. 1), however does not include said entry relating to 21 -12-1988.
7. Apart from it, contesting Respondents have filed Photostat copy of Telegram No. AN/III/PPC/0167-Vol-II dated 29-12-1988(Annexure-CA 4) containing aforesaid order which shows that it was last reminder to the concerned Establishment to remind and notify that last date for exercising option in the Matter was 31-12-1988.
8. On perusing receipt Register, we find that this letter/telegram was not received after due date, i.e. 31-12-1988. The said document is, therefore, of no consequence.
9. The only documents, relevant for deciding present case, are the order dated 2-12-1988 (received at Panagarh office on 17-12-1983) and the Telegram dated 15-12-1988 (received at panagarh office on 21-12-1988).
10. Grievance of the petitioner, in brief, is that aforesaid order dated 2-12-1988 and telegram dated 15-12-1988 were not circulated/notified or noticed to the concerned at Panagarh office. According to him, he came to know of the same after his transfer and posting at C.C.D.A.(P) Complex, Allahabad . Petitioner, to be precise, contended that aforesaid order/telegram were not received at Panagarh office, hence he had no knowledge of the same, and, therefore, he was deprived of opportunity of grant of extension of time to submit option for revised pay-scale and that he submitted his Memorandum of Appeal to CGDA, New Delhi on 11 -7-l990/Annexure-3 to the writ petition. In para-5 of the Memorandum of Appeal it is contended - "....The aforesaid letter dated 30-11-1988 floated from the office of Hon'ble C.G.D.A. New Delhi was neither received from C.D.A. Patna nor from any other source to enable me to exercise fresh option for fixation of pay......"
11. The petitioner went on pursuing the matter and submitted another Memorandum dated 20-12-1991/Annexure-10 to the petition. Paras-3,5,6,7 and 8 of the aforesaid Memorandum are relevant and for ready reference quoted below:
"3. Sir, in this connection I humbly submit that 1 served in the office of S.L.A. C. V.D. Panagarh (W.B.) w.e.f 1.1.88 to 1.3.90. The aforesaid important telegram of the C.G.D.A. was neither received from the office of the C.D.A. Patna nor from any other source to enable me to exercise fresh option for fixation of pay under RPR-73 w.e.f. 5-7-1976.
5. Sir, in this connection I beg your honour to spare your valuable time to kindly go through the contents of C.D.A. Patna letter No. AN/III/PFC/805 antedating RPR-86 dated 21-8-90 (copy enclosed) addressed to C.D.A 'PD) Meerut under which C.D.A. Patna has admitted in paras 3 and 4 of their aforesaid letter dated 21-8-90 that their Pt. No. 230 dated 2-12-88 and telegram dc ted 29-12-88 and post copy of the telegram bearing No. AN/III/PFC/0167/Vol. II dated 29-12-88 were circulated to their sub-offices located at Panagarh viz. LAO(A) LAO(B), SLA, AD and UA, BSO only and acknowledgement obtained from the only.
6. Sir, to the best of knowledge, I beg to state that the communications mentioned in para 5 above were not sent to the office of SLA CVD Panagarh, where I was working by CDA Patna as stated by me in para 5 of my appeal dated 11-7-90. Had I received any of the above communications I would have exercised fresh option for fixation of my pay and the question of disturbing your honour would not have arisen at this belated stage.
7. Sir, I beg your honour to refer to para 2 of C.D.A.(PF) Meerut letter no. AN/Pay fix Corres/XVI dated 27-2-91 (copy enclosed) addressed to C.D.A. Patna which reads as under:
"Further as per reply para 6 of your letter dated 21-8-90 the name of the office of SLA CVD Panagarh and acknowledged by that office or not to enable this office to take any action for forwarding the case to the C.G.D.A. as requested by the individual."
8. Sir, C.D.A. Patna has neither confirmed the dispatch of their communications mentioned in para 5 above to the office of SLA CVD Panagarh nor quoted the No. and date of acknowledgement of the S.L.A. CVD Panagarh as desired by the CDA (PD) Meerut under their letter dated 27-2-91. The CDA Patna could not reply in affirmation only because that they have not sent their said communication to the office of SLA CVD Panagarh. "
12. The petitioner has, it is evident, categorically stated that he was given no information/intimation of the order No. 230 dated 2-12-1988 followed by telegram dated 15-12-1988. The petitioner, therefore, appears to be labouring in bonafide belief that aforesaid order and telegram were not dispatched and/or received at Panagarh office and that is why he did not receive information of the same. The petitioner, however, categorically stated that he had no knowledge of 'extension of time to exercise option' due to lapse on the part of office.
13. In the counter affidavit (filed on behalf of Respondents in the petition as well as the Tribunal -a copy of which has been placed before us), we find that entire thrust of defence in the instant case, on behalf of the contesting respondents, has been that copy of the order dated 2-12-1988 and following telegram dated 15-12-1988 were dispatches to Panagarh office. There is not a whisper or material to show that order/Telegram in question were actually noticed as mentioned therein. No attempt is made to bring on record to demonstrate as to how these order and Telegram were complied. Respondents do not claim any employee other than petitioner in that office exercised option or that the order/Telegram were placed before the petitioner or he noted those orders with reference to other employee/s in that office.
14. As we have already noted, after perusing original record (placed before us today), we find that receipt of aforesaid order No. 230 dated 2-12-1988 and telegram dated 15-12-1988 at Panagarh office cannot be denied and stands proved from 'Receipt Register'. Counter affidavit, however, falls short on the relevant issue, namely, whether aforesaid order dated 2-12-1988 and following telegram dated 15-12-1988 were at all circulated or notified or published or got noted by the concerned at the relevant point of time. The extended date for submitting option was intended to be circulated and notified by proper publication or by getting it noted by the concerned. It is evident from Photostat copy of the telegram filed as Annexure-CA 4 to the counter affidavit (filed by Respondents before the Tribunal), relevant extract of which reads ".. Please circulate to all Sub Office for acknowledgement. This circular may be given wide publicity. May be displayed on Notice Board and copies may be given to Associations informally. Confirm by return Tele...."
15. When petitioner was pursuing remedy for redressal of his grievance and to allow him to submit option after expiry of extended date on the ground of ignorance due to failure on the part of the Authorities not to circulate the relevant order at relevant point of time, an enquiry was got made which is evident from para-7 and 8 of the Memorandum dated 20-12-1991/Annexure-10 to the writ petition (aforequoted)- which read-
"7. Sir, I beg your honour to refer to para 2 of C.D.A. (PF) Meerut ltter No. AN/Pay Fix Corroes/XVI dated 27-2-91 (copy enclosed) addressed to C.D.A. Patna which reads as under:
"Further as per reply para 6 of your letter dated 21-8-90 the name of the office of SLA CVD Panagarh was not included to whom the Govt. letter for exercising fresh option was sent. Please confirm clearly whether the said circular was forwarded to SLA CVD Panagarh and acknowledged by that office or not to enable this office to take any action for forwarding the case to the C.G.D.As. as requested by the individual."
8. Sir, C.D.A. Patna has neither confirmed the dispatch of their communications mentioned in para 5 above to the office of SLA CVD Panagarh nor quoted the No. and date of acknowledgement of the S.L.A. CVD Panagarh as desired by the CDA(PD) Meerut under their letter dated 27-2-91. The CDA Patna could not reply in affirmation only because that they have not sent their said communication to the office of SLA CVD Panagarh. "
16. The core question to be determined, considering respective pleadings of the parties, is-whether order No. 230 dated 2-12-1988 and following telegram dated 15-12-1988 were circulated and brought to the notice of all concerned(including petitioner) and whether same were not got noted by concerned. These aspects have not been adverted to by the contesting respondents in their counter affidavit.
17. Even the Tribunal has, with respect, miserably failed to take notice of the said aspects. There is not a whisper nor an iota of material on record to show that when aforesaid order and telegram were received by an employee in the office at Panagarh, namely, B.K. Malakar (wrongly mentioned in the Tribunal order as V.K. Malakar), whether same were placed before the Office Incharge or the Head of the Office or the same were made public for information by circulation or by placing them on Notice Board, if any, so that all concerned may be made aware of the same. In other words, what procedure was adopted after aforesaid order and telegram were received? Remains an answered question.
18. With all modesty at our command, we are compelled to observe that the Tribunal has proceeded on conjectures. The fact that B.K. Malakar and petitioner, both working in the same office and signed attendance register on relevant date, is not the least relevant circumstance unless there was something more to show that Malakar had divulged or communicated the contents of the said order/Telegram to the petitioner and such consideration has no bearing on the issue to be determined, namely, whether aforesaid orders were made public or not.
19. On the other hand, we find that contesting Respondents have conspicuously failed to bring on record the relevant facts i.e. similarly situated other employees actually exercised their option on coming to ... know of the aforesaid order/telegram or the petitioner came to know of the option being exercised by his colleagues (on the basis of the aforesaid order and telegram) while dealing with the matters of colleagues in his office.
20. In absence of above, we find that the observation made otherwise by the Tribunal are perverse, based on surmises and purely conjectural.
21. In view of the above, judgment and order dated 20-2-2002/Annexure-13 to the writ petition, suffers from manifest error apparent on the face of record and deserves to be quashed.
22. We may note that Division Bench of this Court earlier passed order dated 28-1-2005, which is quoted below:
"Hon'ble V.M. Sahai, J.
Hon'ble G.P. Srivastava, J.
List on 01.3.2005.
Sri Devi Shanker Shukla, Additional Standing Counsel shall produce the entire record specifically as to whether any signature of the petitioner was obtained intimating the petitioner that he had to exercise option by a particular date.
Let a certified copy of this order be issued to learned counsel for the parties on payment of usual charges by 31-1-2005."
23. In pursuance of the said order, record placed before us but said record does not contain, as candidly stated by learned counsel for the Respondents and the official present in court, that there is nothing on record to show that petitioner had ever noted the aforesaid order or the order/Telegram were otherwise brought to the notice of other employee in the establishment at Panagarh. Respondents have also miserably failed in bringing on record that instructions from higher authorities (contained in the aforesaid order No. 230 dated 2-12-1988/Telegram dated 15-12 1988) requiring their contents to be circulated and noted by the concerned, were ever complied. Silence on this important point on the part of Respondents amount to admitting that said order/Telegram was neither circulated nor got noted by the Office Incharge and that there is also no proof of knowledge of these documents to the petitioner.
24. It is, therefore, held that petitioner had no knowledge of the relevant order dated 2-12-1988 and Telegram dated 15-12-1988 (Annexure-14 to the writ petition and Annexure-C.A.3 to the Respondents' Counter Affidavit respectively).
25. In the facts of the present case and considering delay in the matter which has caused irreparably loss and will further cause irreparable injury to the petitioner, we proceeded to examine the relevant material on record with the consent of the parties, and as already noted above, proceeded to examine evidence and record of the case and instead of remanding the case to the Tribunal, decided the issue ourselves.
26. The result is that the impugned judgment and order dated 20-2-2002/Annexure-13 to the writ petition, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad, rejecting Original Application No. 9 of 1997 (R.B. Verma v. Union of India and Ors.), which suffers from manifest error apparent on the face of record, is hereby set aside.
27. Consequently, the Respondents are directed to consider the option furnished by the petitioner, treating it as being exercised before 31-12-1988, pass appropriate orders and revision/fixation of salary, payment of dues and arrears, with 10% per annum simple interest (from the date it fell due till actual payment), within two months of receipt of certified copy of this judgment and also ensure to get pension revised and balance arrears/dues as per revised pension also be paid within another two months' time along with 9% per annum simple interest payable from the date of its becoming due till the actual payment.
28. Writ petition stands allowed.
29. No order as to costs.