The Lieutenant Governor And ORS. v. D.C.Subramanyam And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] ...

WP.CT/132/2020 The Lieutenant Governor and others ... Petitioners Vs.

D. C. Subramanyam & Others ... Respondents Mr.Shatadru Chakraborty, Mr. Ramendu Agarwal, Advocates ... for the petitioners Mr.P.C.Das, Advocate ...for the respondents (On virtual mode) December 15, 2021 [GNC] Item No.3 The writ petitioners assail an order dated January 01, 2020 passed by the Central Administrative Tribunal, Kolkata Bench in OA No.350/66/AN/2016.

Learned advocate appearing for the Administration submits that by the impugned order, in effect, the writ petitioners were directed to be given appointment prior to a date of 2006 when they were actually appointed through fresh selection process, although, some of them were working since 1995. He submits that, the Administration cannot grant appointments to any of the petitioners on a date prior to their actual appointment through the selection process. Therefore, the direction contained in the impugned order is contrary to law. Learned advocate appearing for the private respondents submits that the private respondents are working since 1995 and some of the private respondents will superannuate in a short span of time. He refers to the judgment of the Supreme Court passed in Special Leave to Appeal (Civil) NB.20041/2008 dated September 30, 2011. (Union of India vs. Sarju). He submits that,

the Tribunal misapplied the ratio of such decision of the Supreme Court. He contends that the Court be pleased to remand the matter for fresh adjudication, then, necessary directions be issued for expeditious disposal of the Original Application.

The private respondents approached the Tribunal for the second time through OA/351/0066/2016 in which the impugned order was passed. The direction in the impugned order is as follows:

"8. Keeping in view of the above, the respondent authorities are hereby directed once again to examine each and every case of the 17 applicants, against the above yearwise vacancies as shown by the above letter. If vacancies were available as indicated, each applicant shall be accommodated against the vacancies in the order of seniority of their engagement and the benefits of Old Pension Scheme shall be extended to each of them separately with revised appointment order. In case, any applicant or the applicants cannot be accommodated for to want of vacancy, prior to the date of the present regular appointment, details speaking order shall be issued by them. Accordingly, Speaking Order No.D/249 dated 18thMay 2016 is hereby set aside and quashed."

There is some force in the submission of the petitioners that the private respondents cannot have the date of appointment to be anterior to the date of their appointment through a selection process although the private respondents may be working with the authorities from a prior point of time. For the purpose of calculation of pension, the date of appointment through selection process is to be taken into consideration.

There is also some force in the contention of the private respondents that, the past period of engagement should be taken

into consideration for the purpose of calculating pension receivable by the private respondents.

These issues were not considered and decided by the Tribunal.

In such circumstance, it would be appropriate to set aside the impugned order dated January 01, 2020 and remand the matter to the Central Administrative Tribunal for a fresh adjudication. The Central Administrative Tribunal, Kolkata Bench is requested to take up the matter on remand as expeditiously as possible and to make endeavour to dispose of the same within a period of a month from the date of communication of this order.

WPCT/132/2020 is disposed of accordingly.

(Debangsu Basak, J. ) (Jay Sengupta, J. )