Allahabad High Court
Mohammad Saleem vs Union Of India & Others on 7 November, 2017
Bench: Bharati Sapru, Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 30.10.2017 Delivered on 07.11.2017 Court No. - 35 Case :- WRIT - A No. - 45302 of 2009 Petitioner :- Mohammad Saleem Respondent :- Union Of India & Others Counsel for Petitioner :- Manish Goyal,Deepak Saxena,Ranjit Saxena Counsel for Respondent :- A.S.G.I.,A.K.Saxena,Rizwan Ahmad,S.C. Hon'ble Bharati Sapru,J.
Hon'ble Siddharth,J.
(Delivered by Hon'ble Siddharth, J.) Heard Sri Ranjit Saxena, learned Counsel for the petitioner and Sri A.K.Saxena, learned Counsel for the respondents.
The above noted writ petition is directed against the order dated 29.5.2009 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad dismissing Original Application No. 1572 of 2002, whereby the relief of promotion prayed by the petitioner was denied to him.
The brief facts of the petition are that the petitioner, while working as Chargeman Grade-II at Itarsi (Madhya Pradesh) sought transfer to Ordnance Clothing Factory, Shahjahanpur. This transfer was on his own request and on the condition that he will forego his seniority at the place of transfer and shall be placed at the bottom of the seniority list. Accordingly, the petitioner joined at Shahjahanpur on 17.3.1995 and was placed at serial No. 28 when his seniority required him to be placed at serial No. 3 just above Sri D.N. Tripathi, who was his immediate junior.
The petitioner became entitled to promotion on the post of Chargeman Grade-I w.e.f., 28.10.1996 and further to the post of Foreman w.e.f., 30.10.2002, with reference to the date of promotion of his immediate junior, Sri D.N. Tripathi. His claim for promotion was rejected in 1997 by the Director General, Ordnance Equipment Factory, Kanpur and then by the Ordnance Factory Board, Kolkata on the ground, that his seniority shall be reckoned from the date of his reporting at Ordnance Clothing Factory, Shahjahanpur and not from the date of his posting and Ordnance Factory Itarsi.
The petitioner challenged his non-promotion on the ground, that even by his transfer on his own request from Itarsi to Shahjahanpur, he did not lost the benefit of the period of his regular service at Itarsi, which has to be counted towards experience and eligibility for promotion. On this ground, he preferred Original Application No. 1572 of 2004 before the Tribunal, which was dismissed by the impugned order and hence this writ petition.
The stand of the respondents in the counter affidavit is that the seniority of the petitioner shall be counted from the date he joined at Shahjahanpur on his own request, since he cannot be permitted to affect seniority of other employees working at Shahjahanpur. He has given an undertaking to forego his seniority and, therefore, it will operate as estoppel against him. It is also stated in the counter affidavit that the post of Chargeman Grade-II was Ordnance Factory based post and, therefore, his seniority was counted on the basis of the length of service rendered in the factory. The length of service in other unit/factory was not relevant for considering promotion of the petitioner to the post of Chargeman Grade-I. All India Seniority List is not maintained for the post of Chargeman Grade-II. The services of Chargeman Grade-II is dealt by the respective units whereas the service matters of Chargeman Grade-I are dealt by the Ordnance Factory Board, Kolkata. It was not feasible to count the period of working of the petitioner at the factory at which he was posted at the former stage, as it will deprive the rights of the other incumbents of the factory. The petitioner abdicated his seniority, while joining at Shahjahanpur, therefore, his length of service has nothing to do with the length of service rendered at Itarsi and that is only relevant for the purpose of leave, retiral benefits etc., which do not affect the seniority of other employees at Shahjahanpur.
In support of his contention, the learned counsel for the petitioner has argued that the total regular service in a particular grade has to be taken into consideration as part of experience of an employee for the purpose of considering eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place of transfer. In support of his contention, he has relied upon the judgment of the Apex Court in the case of "Union of India and others Vs. C.N. Ponnappan, Manu/SC/0209/1996" and "Scientific Advisor Raksha Mantri and Another Vs. V.M. Joseph Manu/SC/0363/1998".
The learned counsel for the respondents has not relied upon any precedent and has argued that the case laws, cited on behalf of the petitioner, are not applicable to the facts of the present case and petitioner is not entitled for any relief on their basis.
We have given thoughtful consideration to the rival submissions of the parties and we have found para 4 of the judgment in the case of "Union of India and others Vs. C.N. Ponnappan, Manu/SC/0209/1996", supporting the case of the petitioner. For ready reference para 4 thereof is quoted as under :-
"The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred".
Similarly, we have found para 5 of the judgment in the case of "Scientific Advisor Raksha Mantri and Another Vs. V.M. Joseph Manu/SC/0363/1998" also supporting the case of the petitioner, which is as follows:-
"Even if an employee is transferred at his own request, from one place to another, on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors".
The learned Administrative Tribunal failed to consider that there is marked difference between the criteria for considering the eligibility for promotion which is distinct from criteria of seniority of the employee vis-a-vis other employees. While considering the eligibility for promotion, the total period of service rendered by employee in a particular grade/post has to be considered, while for considering seniority the date of posting at a particular place of posting is relevant. In the present case, there was no dispute of seniority rather the dispute was regarding the determination of the eligibility of the petitioner for promotion on the basis of total service rendered by him as Chargeman Grade-II. Simply because of his working in Grade-II being at two places and his transfer at his own request, foregoing his seniority, the period of service rendered by him on the subsequent place of posting cannot be wiped out and it will remain relevant while considering the case of promotion of the petitioner to the next higher post.
The arguments on behalf of the respondents, in this regard, are not legally correct and cannot be accepted since the service at the later place of posting was relevant as held by the Apex Court.
In view of the above factual and legal position, the order dated 29.5.2009 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 1572 of 2004 is quashed. The respondent Nos. 1 and 2 are directed to grant notional promotion to the petitioner as Chargeman Grade-I w.e.f., 28.10.1996 when his junior was promoted and grant further notional promotion as a Foreman w.e.f., 30.10.2002, when again his juniors were promoted, after counting the length of service rendered by the petitioner as Chargeman Grade-II at Ordnance Factory, Itarsi. Since, the petitioner has retired from service, therefore, his retiral dues may be re-fixed as per the pay scale payable to the Chargeman Grade-I w.e.f., 28.10.1996 and Foreman w.e.f. 30.10.2002 and these arrears should be paid to him alongwith 7% simple interest per annum. The interest of 7% is being awarded on the arrears of due salary on the ground that the petitioner was denied the benefit of the dues of the said amount on account of fault of the part of the respondents.
"In Abati Bezbaruah V. Deputy Director General, Geological Survey of India, (2003) 3 SCC 148: AIR 2003 SC 1817: 2003 AIR SCW 1266, the apex Court held that interest is a compensation for forbearance from detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him".
"In Secretary, Irrigation Department, Government of Orissa v. G.C. Roy, AIR 1992 SC 732: 1992 AIR SCW 389: (1992) 1 SCC 508, the Constitution Bench of the apex Court observed that a person deprived of use of money to which he is legitimately entitled as of right, to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages".
The respondents shall pay the dues of the petitioner within a period of one month from the date of production of certified copy of this order before the concerned respondent.
The writ petition is, accordingly, allowed. However, there shall be no order as to costs.
Order Date :- 07.11.2017 Ruchi Agrahari