{"id":104704,"date":"2003-08-26T00:00:00","date_gmt":"2003-08-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/om-prakash-sood-vs-union-of-india-anr-on-26-august-2003"},"modified":"2016-01-20T15:31:36","modified_gmt":"2016-01-20T10:01:36","slug":"om-prakash-sood-vs-union-of-india-anr-on-26-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/om-prakash-sood-vs-union-of-india-anr-on-26-august-2003","title":{"rendered":"Om Prakash Sood vs Union Of India & Anr on 26 August, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Om Prakash Sood vs Union Of India & Anr on 26 August, 2003<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: M. B. Shah, Dr. Ar. Lakshmanan.<\/div>\n
           CASE NO.:\nAppeal (civil)  9169 of 1996\n\nPETITIONER:\nOm Prakash Sood\t\t\t\t\t\t\n\n\nRESPONDENT:\nVs.\n\nUnion of India & Anr. \t\t\t\t\t\n\n\nDATE OF JUDGMENT: 26\/08\/2003\n\nBENCH:\nM. B. Shah & Dr. AR. Lakshmanan.\n\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
Dr. AR. LAKSHMANAN, J.\n<\/p>\n
The short but core point for consideration by this Court in this appeal <\/p>\n
is\u2013<\/p>\n
(a)\twhen admittedly the appellant had been paid the salary of <\/p>\n
Technical Assistant till the last day;\n<\/p>\n
(b)\twhen he had been signing the attendance register only as <\/p>\n
Technical Assistant which was authenticated by two gazzetted <\/p>\n
officers including the Deputy Manager of the respondent <\/p>\n
organization;\n<\/p>\n
(c)\tWhen the appellant had never worked as Key Board Operator <\/p>\n
on regular basis;\n<\/p>\n
(d)\tWhen at the time of exercising his option to function as Key <\/p>\n
Board Operator, the appellant clearly spelt out that he reserves <\/p>\n
his right to revert back as Technical Assistant in accordance <\/p>\n
with the practice in vogue in respect of other supervisory posts;<\/p>\n
How far is the Central Administrative Tribunal right in holding that the <\/p>\n
respondents are right in their contention that the appellant was promoted as <\/p>\n
Key Board Operator and his pay as Key Board Operator would be drawn and <\/p>\n
paid to him in due course and he should superannuate on attaining his age of <\/p>\n
58 years instead of 60 which is for Technical Assistant.<\/p>\n
In other words, when an individual has not served in a particular post <\/p>\n
but had been serving in a lower post can the respondent superannuate the <\/p>\n
appellant on the basis of the post not held.\n<\/p>\n
 The short facts of the case are as follows:-\n<\/p>\n
The appellant had been working as Technical Assistant since 1971 <\/p>\n
and the age of superannuation of Technical Assistant is 60 years.  In late <\/p>\n
eighties, Department introduced Phototype setting Key Board Operator posts.  <\/p>\n
The age of superannuation of Key Board Operator is 60 years, later on <\/p>\n
reduced to 58 years.  In 1989 the appellant was promoted on ad hoc basis as <\/p>\n
Key Board Operator but was reverted as he did not qualify in the trade test in <\/p>\n
Hindi.  Again, in 1993 after he qualified in the trade test, he was offered the <\/p>\n
post of Key Board Operator and the appellant had stated that he reserved his <\/p>\n
right to revert as Technical Assistant as such a reversion from supervisory <\/p>\n
grade to workmen grade was permissible in other trades.<\/p>\n
All along the appellant had been working as Technical Assistant and <\/p>\n
had been drawing the salary as Technical Assistant only, and his signing the <\/p>\n
attendance register as Technical Assistant was authenticated by the <\/p>\n
Technical Officer and the Deputy Manager till December, 1994.  As in August, <\/p>\n
1994, the respondents issued an order indicating the superannuation of the <\/p>\n
appellant as 31.12.1994, on his attaining the age of 58 years, and the <\/p>\n
appellant vide his letter dated 08.09.1994 invited their attention to his <\/p>\n
representation dated 28.12.1993 whereby he had stated that he would be <\/p>\n
accepting the post of Key Board Operator subject to the condition that he is <\/p>\n
permitted to revert back to the post of Technical Assistant on his attaining the <\/p>\n
age of 58 years.  The respondents, were, therefore, requested to reconsider <\/p>\n
their decision.  However, since there was no reply, the appellant again on <\/p>\n
07.11.1994 and 15.11.1994 requested them to consider his request.  But <\/p>\n
there was once again no information, which compelled the appellant to move <\/p>\n
the matter before the Assistant Labour Commissioner praying for a direction <\/p>\n
to the respondent to give a reply to the appellant to his request.  Before the <\/p>\n
Assistant Labour Commissioner, the respondents submitted that the appellant <\/p>\n
had not given any unequivocal refusal to take up the post of Key Board <\/p>\n
Operator.  Hence, the appellant gave his unequivocal refusal to hold the post <\/p>\n
of Key Board Operator vide his letter dated 16.12.1994 and the Assistant <\/p>\n
Labour Commissioner too gave a direction to the respondents to give a reply <\/p>\n
to the appellant’s representation.\n<\/p>\n
As even till 28.12.1994, there was no reply which prompted the <\/p>\n
appellant to move the matter to the Central Administrative Tribunal <\/p>\n
contending that he never accepted the post of Key Board Operator and his <\/p>\n
original representation contained only conditional acceptance on knowing the <\/p>\n
mind of the respondents which they spelt out before the Assistant Labour <\/p>\n
Commissioner, the appellant had clearly given his refusal to accept the post <\/p>\n
of Key Board Operator.\n<\/p>\n
The Tribunal, however, rejected all the contentions of the appellant <\/p>\n
and accepted those of the respondents that just because the appellant had <\/p>\n
been signing the attendance register it does not mean that he had worked as <\/p>\n
Technical Assistant; that if his pay as Key Board Operator has not been <\/p>\n
claimed, the same would be claimed and given to him; that there is no <\/p>\n
question of conditional acceptance and hence his request for reverting back <\/p>\n
cannot be acceded to.\n<\/p>\n
Thus, the order of the Central Administrative Tribunal has been <\/p>\n
challenged as erroneous.\n<\/p>\n
The respondents filed counter affidavit through its Manager, <\/p>\n
Government of India, Press denying the allegations contained in the special <\/p>\n
leave petition\/appeal.  According to the respondent, the appellant along with <\/p>\n
others as per his request was trade tested on 10.08.1993 which he duly <\/p>\n
qualified and appointed to the post of P.T.S. Key Board Operator w.e.f. <\/p>\n
27.12.1993, wherein it was specified in clear-cut terms that he shall not be <\/p>\n
allowed to revert back to his erstwhile post, once he is appointed as P.T.S. <\/p>\n
Key Board Operator.  It is further submitted that the appointment of the <\/p>\n
appellant as P.T.S. Key Board Operator is very clear and does not leave any <\/p>\n
room for accepting his appointment conditionally.  However, the appellant <\/p>\n
accepted the post vide his application dated 28.12.1993 instead of submitting <\/p>\n
an out-right refusal to accept the same, due to unfavourable conditions as <\/p>\n
stated by him, attached to the post and he also exercised his option for <\/p>\n
fixation of his pay in the new scale, vide application dated 25.01.1994 which <\/p>\n
is available to the persons who are appointed on regular basis.  Thus, it is <\/p>\n
submitted that the contention of the appellant that he accepted to the post of <\/p>\n
P.T.S. Key Board Operator conditionally is, therefore, nullified.  It is further <\/p>\n
submitted by the respondents that with the abolition of the IBM Section where <\/p>\n
the appellant along with his colleagues was working as Technical Assistant <\/p>\n
and that of the post of Technical Assistant itself the position held by the <\/p>\n
appellant also stands abolished as soon as he vacated the post.  However, at <\/p>\n
the fag end of his career, the appellant submitted his intention to revert back <\/p>\n
to his erstwhile post of Technical Assistant, vide his application dated <\/p>\n
15.11.1994 which was duly considered but his request could not be acceded <\/p>\n
to and that the appellant was accordingly communicated of the decision vide <\/p>\n
office memorandum dated 02.01.1995.\n<\/p>\n
The appellant filed a detailed rejoinder to the counter affidavit filed by <\/p>\n
the respondents.  We heard Mr. K.B. Sounder Rajan, learned counsel for the <\/p>\n
appellant and Mr. P.P. Malhotra, learned senior counsel for the respondents.  <\/p>\n
Our attention was drawn to the averments contained in the special leave <\/p>\n
petition, counter affidavit and rejoinder affidavit and also the various <\/p>\n
Annexures filed by the appellant herein.  We have also perused the order <\/p>\n
passed by the Central Administrative Tribunal.  The Tribunal in its order dated <\/p>\n
12.05.1995 held as under:-\n<\/p>\n
“(a)\tThe memorandum of promotion clearly stipulated that <\/p>\n
applicant would not be allowed to seek reversion.\n<\/p>\n<\/p>\n
(b)\tThe stand of the respondents is that the post of Technical <\/p>\n
Assistant stands abolished as and when the incumbent gets <\/p>\n
promoted as KBO.\n<\/p>\n<\/p>\n
(c)\tThe two posts of Technical Assistants maintained were of <\/p>\n
provisional basis occupied by two incumbents who could not <\/p>\n
qualify in the Trade Test, whereas the petitioner qualified in <\/p>\n
the Trade Test and, therefore, there was no post of Technical <\/p>\n
Assistant available to him.\n<\/p>\n<\/p>\n
(d)\tThe signing in the Attendance Register as Technical Assistant <\/p>\n
does not mean that the petitioner was holding the post of <\/p>\n
Technical Assistant.\n<\/p>\n<\/p>\n
(e)\tAs regards pay granted as of Technical Assistant only, the <\/p>\n
respondents were preparing bills to pay the arrears of pay and <\/p>\n
allowances being the difference but in the pay as Key Board <\/p>\n
Operator and that as Technical Assistant.”\n<\/p>\n
On the above, the Tribunal dismissed the appeal.  The appellant also <\/p>\n
filed a review application before the same Bench which was also dismissed <\/p>\n
by order dated nil, copy of which is annexed and marked as Annexure XIV to <\/p>\n
this appeal.  Both the learned counsel reiterated their respective contentions <\/p>\n
which had been taken by them in their special leave petition and the counter <\/p>\n
affidavit.\n<\/p>\n
The appellant was appointed and subsequently confirmed as <\/p>\n
Technical Assistant on which post he was working since 09.08.1971.  He is <\/p>\n
entitled to retire with the rights and liabilities governing that post which at the <\/p>\n
moment permits an incumbent to the post of Technical Assistant to <\/p>\n
superannuate on reaching the age of 60 years and not on reaching the age of <\/p>\n
58 years.  The appellant had taken to the trade test of Key Board Operator in <\/p>\n
Hindi and English only to prove his proficiency that even though without <\/p>\n
practice he is an efficient operator on the Key Board Off-set Photo Type <\/p>\n
Setting Training and there was no acceptance, implicit or otherwise that he <\/p>\n
accepted the post of Key Board Operator on the terms and conditions offered <\/p>\n
by the respondents.  On the contrary, the appellant had clearly kept the <\/p>\n
counter condition that he will accept the offer of appointment to the post of <\/p>\n
Key Board Operator only if he was allowed to revert to his original post of <\/p>\n
Technical Assistant and retire after reaching the age of 60 years and not at <\/p>\n
the age of 58 years.  However, the respondents are taking advantage of their <\/p>\n
own wrong because on the one hand they have neither replied to this <\/p>\n
condition put forward by the appellant, on the other hand, they have neither <\/p>\n
fixed his pay as Key Board Operator nor took work from him as Key Board <\/p>\n
Operator.  On the contrary, the appellant was allowed to sign the attendance <\/p>\n
register as Technical Assistant drawing salary and allowances as Technical <\/p>\n
Assistant and was even allowed an increment of Rs.40\/- on 01.03.1994 <\/p>\n
raising his pay from Rs. 1920\/- to Rs. 1960\/- in the pay-scale of Rs. 1320-<\/p>\n
2040.  Since the appellant continued to work as Technical Assistant and has <\/p>\n
refused to accept the post of Key Board Operator and continued to serve till <\/p>\n
the last day of reaching his superannuation i.e. 58 years as available to the <\/p>\n
post of Technical Assistant and no effort to cut-short his career and make him <\/p>\n
retire even by a day earlier than 60 years would amount to negation of legally <\/p>\n
protected rights.  The notice dated 26.08.1994 which falls in this category also <\/p>\n
and, therefore, we are of the opinion that the notice of retirement dated <\/p>\n
26.08.1994 is liable to be quashed and set aside.  In the instant case, the <\/p>\n
respondent had retired the appellant treating him as Key Board Operator <\/p>\n
whereas the documentary evidence annexed to the special leave petition <\/p>\n
would all prove that he was holding the post of Technical Assistant and as <\/p>\n
such the date of retirement only on his attaining the age of 60 years and not <\/p>\n
the age of 58 years.\n<\/p>\n
We have perused the Annexures filed by the appellant along with the <\/p>\n
special leave petition.  A perusal of the Annexures show that the appellant <\/p>\n
was originally treated ad hoc Key Board Operator (in short “KBO”) on <\/p>\n
26.09.1989 when the age of superannuation of KBO was 60 years.  As there <\/p>\n
was a move to revert the appellant on account of not qualifying in the Hindi <\/p>\n
test, he did agitate before the Tribunal in O.A. No. 1239 of 1990 which was <\/p>\n
decided on 24.07.1992 with a direction to the respondent to afford two <\/p>\n
opportunities to the appellant to qualify in the relevant test.  When the <\/p>\n
appellant gave the test and qualified in the same, by the time the age of <\/p>\n
superannuation of KBO was brought down to 58 years.  Obviously, the <\/p>\n
appellant who has been holding a substantive post of Technical Assistant the <\/p>\n
age of superannuation of which is 60, would not want to opt for KBO for a <\/p>\n
marginal short time increase in his pay and allowances which ultimately would <\/p>\n
result in his superannuation at 58 years.  Instead, if he continued as <\/p>\n
Technical Assistant as the same would enable him to serve up to 60 years, <\/p>\n
when his pay was to touch the same level, if not more.  It is on account of this <\/p>\n
reason that when an offer of appointment as KBO was issued vide Annexure-<\/p>\n
II, the appellant had clearly indicated that he never applied for appointment as <\/p>\n
KBO and he gave the test only to prove his efficiency in the Hindi test.  Again, <\/p>\n
citing the Rule position as to the date of superannuation of 60 years in the <\/p>\n
post of Technical Assistant, the appellant accepted the offer of appointment <\/p>\n
as KBO clearly stating that he shall be reserving his right to revert back to the <\/p>\n
substantive post of Technical Assistant on his completing 58 years of age <\/p>\n
rather than retire at 58 as KBO.  It is also seen from the Annexures that till <\/p>\n
December, 1994,  the appellant had been signing the Attendance Register <\/p>\n
only as Technical Assistant duly authenticated by the higher authorities <\/p>\n
including the Deputy Manager (Annexure-IV).\n<\/p>\n
When a Certificate of pay was requested for, the same was given by <\/p>\n
the respondents for the month of October,1994 on 08.11.1994 clearly spelling <\/p>\n
out the designation of the appellant as Technical Assistant (vide Annexure-V) <\/p>\n
Thus, though the respondents claimed that on account of new technology <\/p>\n
posts of KBO were created, the appellant was retained only as Technical <\/p>\n
Assistant and it is pertinent to notice here that in addition to the appellant <\/p>\n
herein two more persons were functioning as Technical Assistant as could be <\/p>\n
found from a reply in the Industrial Disputes Application No. nil of 1994, <\/p>\n
wherein the respondents have clearly stated, that there are two Technical <\/p>\n
Assistants still holding the post of Technical Assistant because they are not <\/p>\n
interested to be absorbed as PTS KBOs.\n<\/p>\n
Mr. P.P. Malhotra, learned senior counsel, submitted that since the <\/p>\n
condition was put when the appellant was appointed to the post of KBO, he <\/p>\n
shall not be allowed to revert back.  True, the offer of appointment contained, <\/p>\n
inter alia, a condition to the said effect.  However, the appellant gave a <\/p>\n
conditional acceptance in view of practice prevailing reserving his right to be <\/p>\n
reverted to the post of Technical Assistant.  The documents filed in this case <\/p>\n
show that the appellant was signing the attendance register as Technical <\/p>\n
Assistant and he was paid his allowance till the date of his retirement, only <\/p>\n
the pay as was admissible for a Technical Assistant.  This, in our opinion, <\/p>\n
would show that the Department had not accepted the conditional acceptance <\/p>\n
given by the appellant and kept him as a Technical Assistant.  When the offer <\/p>\n
of appointment was stated to be very clear and does not leave any room for <\/p>\n
accepting the appointment conditionally, the condition reserving the right for <\/p>\n
reversion would mean a conditional acceptance which was either to be <\/p>\n
outrightly rejected by the Department by a specific order or was to be <\/p>\n
accepted with the said condition in view of prevailing practice.  In either way, <\/p>\n
it is beneficial to the appellant.  The records will show that whereas the <\/p>\n
appellant was allowed to continue as Technical Assistant during the entire <\/p>\n
period and was paid his pay and allowances as was paid to Technical <\/p>\n
Assistant.  He was, however, retired on completing the age of 58, treating him <\/p>\n
as KBO which is totally illegal.\n<\/p>\n
The learned senior counsel for the respondent submitted that the <\/p>\n
appellant had not made any case for interference by this Court in the exercise <\/p>\n
of its extraordinary jurisdiction under Article 136.  This Court has held in a <\/p>\n
number of cases that the powers of this Court under Article 136 are <\/p>\n
unfettered and are invoked invariably when this Court reaches the conclusion <\/p>\n
that a person has been dealt with arbitrarily.  The case on hand is one such <\/p>\n
wherein the Department treated the appellant as a Technical Assistant all <\/p>\n
through but superannuated him at 58 while the age of superannuation for <\/p>\n
Technical Assistant is 60.\n<\/p>\n
It is further submitted by the learned senior counsel for the respondent <\/p>\n
that the reversion was not admissible in the case of the appellant.  This <\/p>\n
submission has no force.  Neither the appointment letter indicates anywhere <\/p>\n
that the promotion offered was temporary or on ad hoc or on regular basis nor <\/p>\n
have the posts of Technical Assistant being abolished.  Hence it is futile to <\/p>\n
contend that reversion was not admissible in the case of the appellant.  The <\/p>\n
appellant has been singled out as could be evident from the fact that some <\/p>\n
Compositors Grade-I who were promoted as Section Holder in November, <\/p>\n
1993 were permitted to be reverted to the post of Compositors Grade I w.e.f. <\/p>\n
October, 1994.  Along with the rejoinder, the appellant has annexed the office <\/p>\n
orders dated 22.11.1993, 24.06.1994 and 21.10.1994 as Annexure-II.<\/p>\n
When the appellant had made his intention clearly to accept the <\/p>\n
promotion as KBO only on a specific condition of his exercising his right to <\/p>\n
revert, only two options are left to the respondent, namely, either to accept <\/p>\n
the conditional acceptance or to permit the appellant to continue as Technical <\/p>\n
Assistant.  In the case of the appellant, the latter only prevailed throughout as <\/p>\n
could be seen from Annexures IV and V.  The appellant was treated only as a <\/p>\n
Technical Assistant by the respondents.\n<\/p>\n
It was argued by the learned counsel for the respondent that the entire <\/p>\n
post of Technical Assistant stand abolished since 1988.  This was denied by <\/p>\n
the appellant.  The appellant pointed out that two Technical Assistants who <\/p>\n
could not qualify test were not promoted as KBO and were still holding on the <\/p>\n
post of Technical Assistant and that they are functioning as Technical <\/p>\n
Assistants despite crossing 58 years of age.\n<\/p>\n
As regards the contention of the respondent that a mere signing as <\/p>\n
Technical Assistant does not given the appellant the right to serve in that <\/p>\n
post, we are of the opinion that the same cannot be accepted in view of the <\/p>\n
fact that if the appellant was working as KBO, the Higher Authorities cannot <\/p>\n
permit the attendance register being signed as Technical Assistant through <\/p>\n
out the disputed period.  Permitting signing of the attendance register as <\/p>\n
Technical Assistant paying the salary as Technical Assistant, declaring the <\/p>\n
designation as Technical Assistant even after 12 months of the so-called offer <\/p>\n
of appointment as KBO and indicating in the PPO the salary and designation <\/p>\n
of the appellant as Technical Assistant \u2013 all this cannot be an inadvertent <\/p>\n
mistake by the respondents.  In reality, the appellant was never treated as  <\/p>\n
KBO at all and all along he had been treated only as Technical Assistant.<\/p>\n
As noticed earlier, the appellant after submitting the conditional <\/p>\n
acceptance continued to work only as a Technical Assistant.  He was taken <\/p>\n
by surprise when in August, 1994 the appellant was issued with a letter <\/p>\n
wherein his date of superannuation was indicated as 31.12.1994.  This letter <\/p>\n
would mean that on the basis of the acceptance given by the appellant, the <\/p>\n
appellant was promoted as the KBO in which event his right to revert back as <\/p>\n
Technical Assistant is fully secured.\n<\/p>\n
For the foregoing reasons, we are of the opinion that the impugned <\/p>\n
action of the respondent should be declared as devoid of merit and the <\/p>\n
appeal is liable to be allowed.  The appellant shall be deemed to have <\/p>\n
continued in service and his pension and retiral benefits should be fixed <\/p>\n
accordingly.  However, he shall not be entitled to get any salary after his <\/p>\n
retirement on 31.12.1994.  The difference of retiral benefits should be given <\/p>\n
within eight weeks from today with 6 per cent interest.<\/p>\n
In the result, the judgment and order dated 12.05.1995 in O.A. No. <\/p>\n
2571 of 1994 passed by the Central Administrative Tribunal, Principal Bench, <\/p>\n
New Delhi is set aside and this appeal stands allowed as indicated above with <\/p>\n
cost of Rs.5,000\/- to be paid to the appellant by the respondents.                               <\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Om Prakash Sood vs Union Of India & Anr on 26 August, 2003 Author: . A Lakshmanan Bench: M. B. Shah, Dr. Ar. Lakshmanan. CASE NO.: Appeal (civil) 9169 of 1996 PETITIONER: Om Prakash Sood RESPONDENT: Vs. Union of India & Anr. DATE OF JUDGMENT: 26\/08\/2003 BENCH: M. B. Shah & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-104704","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOm Prakash Sood vs Union Of India & Anr on 26 August, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/om-prakash-sood-vs-union-of-india-anr-on-26-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Om Prakash Sood vs Union Of India & Anr on 26 August, 2003 - 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