(1.)The legality of the impugned order of reversion of the appellant from the post of OS grade II by order dated 30/08/1996 is the subject matter of challenge in this appeal. The brief facts necessary to adjudicate the dispute between the parties are that the appellant and respondent no. 3 were appointed as LDC in the ordnance factory at Jabalpur on 11.1. 1980 and on 3.1.1980 respectively. The said respondent no. 3, on his own request on compassionate ground, was transferred to the factory at Itarsi on 10. 7.1984 and, therefore, in accordance with the relevant rules governing the seniority, was required to be treated as the lowest in the cadre of LDC at Itarsi. The appellant was brought on promotion as udc w. e. f. 6.4.1986 and respondent no. 3 was promoted to the UDC at Itarsi in the year 1992. On the basis of their seniority in the cadre of UDC at Itarsi, the appellant was further promoted to OS grade II on 12.1.1994 w. e. f. 31.12.1993. In the meanwhile, on 27.4.1985 another ldc at Itarsi, having been promoted to the UDC, the respondent no. 3 assailed the said order of promotion before the tribunal, alleging intr alia that he has been excluded from consideration erroneously. The tribunal disposed of that matter by order dated 17.8.1994 and came to the conclusion that the appropriate authority committed error in not considering the past services of the respondent no. 3 in the cadre of LDC while he was at jabalpur. But since by that date, the respondent no. 3 had already been promoted to the post of UDC w. e. f. 1992, the tribunal directed that respondent no. 3 would be entitled to his notional seniority in the cadre of UDC but he would not be given any backwages for the past period. This order of the tribunal, which was passed in OA 514/1989, was assailed by the Union of India as well as by respondent no. 3 himself in civil appeals arising out of SLP (C) nos. 6401-6402/95. Both these appeals stood disposed of by order dated 28/08/1995 on the basis of a concession of the learned counsel appearing for the respondent no. 3 to the effect that he does not claim seniority but his past services, wherever experience is a criteria, would have to be taken into account for the purposes of determining the extent of experience. This Court, therefore, held that the order of the tribunal will have to be so read. Subsequent to the aforesaid order of this court dated 28/08/1995, the department concerned issued a notice to the present appellant on 16/08/1996, obviously being of the view that the order of this Court, permits for counting the seniority of respondent no. 3 w. e. f. 27.4.1985 on the date on which he was illegally excluded from promotion and therefore the appellant should be reverted. After the aforesaid notice, the final order emanated on 30/08/1996, which clearly indicates that the appellant stands reverted due to re-amendment of the seniority in question. The appellant, therefore, assailed the aforesaid order by approaching the tribunal and having unsuccessful before the tribunal, approached the High court in a writ petition. Both the tribunal and the High Court construed the order of this Court dated 28/08/1995 passed in the aforesaid two civil appeals and held that the appropriate authority has rightly re-determined the seniority and on account of such re-determination, the order of reversion is merely consequential and, therefore, refused to interfere with the order of the High Court.
(2.)Mr. P. N. Mishra, the learned senior counsel appearing for the appellant, contends that in view of the clear and categorical terms of the order of this Court dated 28/08/1995, the question of re-amendment of the seniority in the cadre of UDC does not arise particularly when the counsel appearing for respondent no. 3 fairly conceded that he does not claim any seniority in the cadre. According to Mr. Mishra, the order of this court dated 28/08/1995 has been misconstrued and misread by the departmental authorities as well as by the tribunal and, therefore, the impugned order of reversion is vitiated.
(3.)Mr. Anoop Choudhary, the learned senior counsel appearing for the department and the learned counsel appearing for the affected respondent no. 3, on the other hand, contend that the impact of the earlier order would be that respondent no. 3 would be entitled to get his promotion in the cadre of UDC on the date he was illegally excluded from consideration and, therefore, necessarily he would be held senior to the present appellant in the cadre of UDC. According to the learned counsel, the concession that he would not claim any seniority, relates to the seniority in the cadre of LDC and does not affect, in any way, so far as the seniority in the UDC is concerned and, in accordance with the principles, since the only person available at Itarsi, in respect of one of the posts meant for reserved category, was respondent no. 3 and he had the necessary experience, he was entitled to get that promotion retrospectively and necessarily, therefore he would be treated senior to the present appellant in the cadre of UDC. According to the learned counsel, the order of reversion, therefore, is justified.