Orissa High Court
Union Of India And Others vs R. Srinivas And Others on 20 July, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.4652 of 2017
In the matter of application under Articles 226 and 227 of the Constitution
of India.
---------
Union of India and Others ...... Petitioners.
- Versus-
R. Srinivas and Others ...... Opposite Parties.
Counsel for Petitioners : Mr. Bimbisar Das, Central Government
Counsel.
Counsel for Opp.Parties : M/s. Swapna Kumar Ojha, G. Nayak and S.
K. Nayak.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
---------------------------------------------------------------------------------------
Date of hearing and judgment : 20.07.2017
---------------------------------------------------------------------------------------
S. N. Prasad, J.This writ petition is under Article 226 and 227 of the Constitution of India having been preferred by the Union of India through the Secretary to Government of India, Department of Defence Production wherein the orders dtd.4th May, 2016 (O.A. No.372 of 2011) and 6th October, 2016 (Review Application No.6 of 2016) passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack are under challenge whereby and where under the Tribunal, while disposing of the original application by remitting the matter back before the respondents to give effect to the promotion in favour of the application w.e.f. 2 31.5.2010 in view of the fact that the applicant's promotion to the grade of Jr. Works Manager w.e.f.31.5.2010 is notional without entitlement of the drawal of arrears of pay and that the said promotion has been given to bring them at par with their juniors who had already been promoted to that grade.
2. The brief fact of the case is that the applicants having been recruited through direct recruitment to the post of Chargeman-II/T in the year 1997, were subsequently promoted to the post of Chargeman-I/T vide order dtd.7.5.2008. In the meantime, the post of Chargeman, Grade-II and Chargeman, Grade-I were merged together forming a common grade in view of recommendation of the 6th Central Pay Commission, known as Chargeman (Technical) carrying the scale of pay of Rs.9300-34800/- (PB-2) with GP Rs.4200/-.
The authorities have published the seniority list of Chargeman (Technical) containing the list of persons coming under the cadre of Chargeman (Technical) who were juniors to the applicants in the post of Assistant Foreman, the applicants being aggrieved with the said gradation list, submitted representation agitating their grievances that they cannot be shown junior to the persons who were junior in the cadre of Assistant Foreman, the authorities, after taking into consideration the grievance of the applicants, have conducted a review departmental promotion committee meeting, the review departmental promotion committee has considered the case of the applicants and recommended for their promotion to the post of Jr. Works Manager with effect from 31.5.2010, i.e. the date on which their juniors had been so promoted. The authorities immediately thereafter, i.e. just after three days, i.e. on 28.2.2011 issued a corrigendum wherein the promotion granted in their favour to the post of Jr. Works Manager 3 w.e.f.31.5.2010 modified to be made effective from 28.7.2010. The grievance of the applicants that the said corrigendum has been issued behind their back and without considering the fact that the juniors have been granted promotion to the higher posts.
3. The applicants, being aggrieved with the same, have approached to the Tribunal for redressal of their grievance, the Tribunal issued notice to the functionaries of Union of India where they have taken the ground that the applicants had been promoted to the post of Jr. Works Manager (Technical) from Chargeman (Technical) with effect from 31.5.2010 with notional pay fixation benefits vide office letter dtd.24.2.2011 but subsequently it came to the notice of the authorities that there were no vacancies of Jr. Works Manager (Electrical) whereas in the Mechanical discipline there were abundant vacancies, in order to bring parity between the different disciplines, it was decided to divert vacancies from the mechanical discipline. The said decision of the authorities have been approved by the Chairman, Ordnance Factories Board on 28.7.2010, hence the posts have been diverted only on 28.7.2010 and the authorities have taken a decision to modify the order of promotion granted in favour of the applicants w.e.f.31.5.2010 to 28.7.2010 for the simple reason that as on 31.5.2010 there were no post available and it is settled that promotion cannot be granted in absence of any vacancy.
The private respondents have appeared before the Tribunal and same ground has been taken as has been taken by the functionaries of Union of India before it.
4
The Tribunal, after taking note of the entire aspect of the matter and considering the admitted position that in the feeder cadre the applicants were senior, hence they cannot be denied the promotion making them juniors in the higher post of Chargeman (Technical), has remitted the matter back to the authorities to give effect to their promotion with effect from 31.5.2010, the date when the Juniors had been promoted.
The Tribunal has taken into consideration the fact that the juniors cannot be given promotion over and above the petitioners and even if the posts were not there in the cadre, the right course would have been for the authorities to shift the date of promotion of the juniors in the feeder cadre instead of shifting the date of promotion granted in favour of the applicants. The Tribunal has taken into consideration the fact that the applicants cannot be made to suffer for all time to come making them juniors to the employees who admittedly were junior in the feeder cadre.
4. The order passed by the Tribunal has been challenged by the Functionaries of the Union of India by way of instant writ petition taking the ground that the Tribunal has not appreciated the fact regarding non-availability of post in the cadre.
The Union of India has also preferred review against the order passed by the Tribunal in the original application on the basis of a letter dtd.22.12.2015 which, according to the petitioner, could not be brought on record before the Tribunal, but the Tribunal, without taking into consideration the document, has 5 dismissed the review on the ground that there is no error apparent on the face of record.
The ground taken by the Union of India in the review application is that since there were no vacancies of the Jr. Works Manager, as such the authorities have taken decision on 22.12.2015 granting notional promotion of the Jr. Works Manager (Electrictal) with effect from 28.7.2010 which led the authorities to issue corrigendum dtd.28.2.2011 wherein it was made clear that the promotion of the persons of electrical discipline will be effective from 28.7.2010 only.
5. Learned counsel representing the applicants / opposite parties herein has submitted that there is no illegality in the order of the Tribunal since the Tribunal has passed order on the basic principle for consideration of the case of employees which has not been followed by the authorities and the principle is that if an employee is senior in the feeder cadre, he has got a right to be promoted on the basis of the seniority but the authorities, even after knowing the position of the applicants in the gradation list, have not considered the case of the applicants, rather considered the case of the persons who admittedly are junior in the feeder cadre, hence the Tribunal has passed a well reasoned order which needs no interference.
6. We have heard the learned counsels for the parties and perused the documents available on record.
The admitted position in this case is that the applicants are senior in the feeder cadre but they have not been granted promotion, rather the juniors in 6 the feeder cadre have been granted promotion, against which the applicants have agitated their grievance before the competent authority, the authority, after taking into consideration the genuineness of the grievance, has convened a meeting of review departmental promotion committee and thereafter granted them promotion w.e.f. 31.5.2010.
The authority subsequently has issued a corrigendum on 28.2.2011 whereby and where under the date of promotion of the applicants has been shifted from 31.5.2010 to 28.7.2010 without issuing any notice to them against which the applicants have preferred original application before the Tribunal, the Tribunal, after taking into consideration the seniority position of the applicants in the feeder cadre, has passed the order remitting the matter before the authority to give effect the promotion w.e.f. 31.5.2010 which has been granted by the authority in view of the recommendation of the review departmental promotion committee. The said order is under challenge before this court.
7. We have appreciated the ground taken by the Union of India and also the argument advanced on behalf of the applicants before the Tribunal and from its appreciation it is evident that the applicants are senior in the feeder cadre which is admitted position in this case. The juniors have been granted promotion to the higher post of Chargeman (Technical) ignoring the case of the applicants. The applicants have subsequently been granted promotion to the higher post taking into consideration their seniority which subsequently been reversed by shifting the date of promotion from 31.5.2010 to 28.7.2010 by virtue of corrigendum dtd.28.2.2011. The corrigendum dtd.28.2.2011 was under challenge before the Tribunal and the Tribunal has answered the issue in favour of the 7 applicants. The legality and propriety of the corrigendum dtd.28.2.2011 is before us for its judicial scrutiny.
8. It is settled proposition that promotion is to be granted subject to availability of vacancy and simultaneously it is also settled that the promotion is to be given strictly in accordance with seniority depending upon the merit of one or the other candidate who are to be considered for promotion to the higher post.
Admitted position herein that juniors have been granted promotion as Chargeman (Technical) depending upon the availability of vacancy at that time, ignoring the case of the applicants in the garb of non-availability of vacancies, which however has been rectified by the authorities by merging the post of Chargeman (Electrical) by bringing the post to Chargeman (Technical) cadre and that decision was taken w.e.f. 28.7.2010 and accordingly the date of promotion having been granted in favour of the applicant w.e.f. 31.5.2010 has been made effective w.e.f. 28.7.2010. The plea of the Functionaries of the Union of India that the corrigendum has rightly been issued since there was no post available on the date when the juniors have been granted promotion w.e.f. 31.5.2010.
This reasoning is not acceptable to this court for the reason that if the post was not there, then the prime duty of the functionaries of the Union of India was to consider the cases of one or the other employees in the cadre strictly in accordance with the seniority, but they have failed to do so which resulted in depriving the applicants from the benefit of promotion and that decision of the authorities made the applicants junior in the next higher hierarchy of the post of Chargeman (Technical). Even if the post was not available, that does not mean 8 that the applicants would be made junior for all time to come and thereby the authorities have committed gross illegality. In that view of the matter the corrigendum dtd.28.2.2011 cannot be said to be justified decision of the authorities.
The Tribunal, after taking note of this aspect of the matter, has deprecated the stand of the Functionaries of the Union of India by remitting the matter before the authorities to give effect of the promotion granted in favour of the applicants w.e.f. 31.5.2010 notionally, according to our considered view, the tribunal has committed no error.
9. So far as the second prayer regarding rejection of the review application No.6 of 2016, the same is also not to be interfered with for the reason that whether notional or with monetary benefit that does not matter rather the date of promotion is material for one or the other employee since the date of entry into the cadre would be material for all practical purposes, i.e. for future avenues of one or the other employees.
The Functionaries of the Union of India has brought one document dtd.22.12.2015 which speaks regarding the decision which has also been taken by the authorities by making the date of promotion effective by shifting it from 31.5.2010 to 28.7.2010. The Tribunal, after taking into consideration the scope of review which is very limited, that can only be exercised if there is any error apparent on the face of record, and the Tribunal has given a conscious reasoning in dismissing the review application that there is no error apparent on the face of record in determining the issue.
9
In that view of the matter, according to our considered view, the orders passed by the Tribunal in the original application as well as review needs no interference, accordingly this court declines to interfere with the same.
In the result the writ petition stands dismissed.
......................... .........................
S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 20th July, 2017/Manas