Gujarat High Court
Union Of India & 2 vs Vijayita Sinha W/O Niraj Kumar on 7 January, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/4698/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4698 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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UNION OF INDIA & 2....Petitioner(s)
Versus
VIJAYITA SINHA W/O NIRAJ KUMAR....Respondent(s)
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Appearance:
MR BD KARIA, ADVOCATE for the Petitioner(s) No. 1 - 3
MR ANAND L SHARMA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Page 1 of 11
C/SCA/4698/2010 JUDGMENT
Date : 07/01/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Employees' State Insurance Corporation ("the Corporation"
for short) has filed this petition challenging the judgement of the Central Administrative Tribunal ("the Tribunal for short) dated 27.10.2009 filed by the respondent employee.
2. Brief facts are as under :
2.1. The respondent was appointed as a Lower Division Clerk ("LDC' for short) in Delhi region of the Corporation. While working on the said post, she requested for interregional transfer from Delhi to Gujarat region. Her request was accepted on the condition that she would be placed at the bottom of the seniority in the new region. By an order dated 14.9.2007, she was transferred to Gujarat region as LDC. In such order, it was provided that since she was transferred at her request, she would not be entitled to any TA/DA or joining time. It was further provided that "The above official will be ranked junior most to all the existing regular LDCs in the gradation list of LDCs in Gujarat region and will not be entitled to claim seniority etc. in future. Further the seniority of the above mentioned LDC amongst themselves/transferred to Gujarat region will be fixed taking into account the merit position acquired by him in the respective Competitive Examination(s) of clerks Grade through Page 2 of 11 C/SCA/4698/2010 JUDGMENT which he/she was selected for appointment in ESI Corporation".
2.2. Pursuant to such order, the respondent resumed her duties at Ahmedabad. In the meantime, the department had declared a programme for limited departmental competitive examination for various posts lying vacant in the year 20072008, some of them in the cadre of Upper Division Clerks ("UDC" for short). Interested eligible candidates were invited to apply for the same.
The respondent had applied pursuant to such a requisition prior to her transfer to Ahmedabad. After her transfer she wrote to the department on 16.10.2007 stating that she had applied for the promotion to the said post on limited departmental examination in the month of April 2007 when she was working at headquarter in New Delhi. She has now been posted at Ahmedabad. She may be permitted to appear in the examination from Gujarat region. Her request was accepted. She was allowed to appear in the said test. She cleared the test and was actually offered promotion to the post of UDC under order dated 2.4.2008. She was placed in the scale of Rs.40006000. However, immediately realising that she had only been recently transferred to Gujarat region, the department placed such promotion order under abeyance by passing a further order dated 18.4.2008. She was asked to work as an LDC and continue to do so on such basis. It is not in dispute that such order was implemented and since then she has been discharging her duties as an LDC.
Page 3 of 11C/SCA/4698/2010 JUDGMENT 2.3. The department was of the opinion that the respondent had completed three years of service which was a qualifying service for appearing in the limited departmental examination at New Delhi. In Gujarat region therefore, she was not qualified for getting promoted even if she had passed the test. The department therefore, offered her promotion in Delhi region and under order dated 21.7.2008 asked her to resume duty at New Delhi as UDC. It was clarified that if upon receipt of this order latest by 24.7.2008, she did not accept the promotion, it would be taken that she was not interested in such promotion.
2.4. The respondent immediately approached the Central Administrative Tribunal, Ahmedabad, and complained about the withdrawal of her promotion from Gujarat region and asking her to accept such promotion in New Delhi. By the impugned judgement, the Tribunal allowed the petition and quashed the order dated 18.4.2008 withdrawing promotion of the present respondent in the cadre of UDC at Gujarat region. She was held entitled to arrears of salary.
3. Before us, learned counsel Shri B.D. Karia vehemently contended that the respondent had admittedly not completed three years of service in the Gujarat region. Minimum three years of service was the eligibility criteria for being qualified to appear in the limited departmental examination. Since she had completed three years of service in Delhi region, she could seek promotion on the basis of examination result in such region. Allowing Page 4 of 11 C/SCA/4698/2010 JUDGMENT promotion to her in Gujarat region would permit her to march over her juniors which would be opposed to the very principle of ranking her juniormost in the transferred region. Counsel further submitted that the department had clarified the situation under a communication dated 14.11.2008 to all Regional Directors clarifying that upon transfer of a person who may have cleared the examination should be offered promotion only in the parent region where he or she has completed three years of service.
4. On the other hand, learned counsel Shri Sharma for the respondent original applicant opposed the petition contending that the Tribunal has given cogent reasons. The employee on transfer at request would not surrender the past service rendered on regular basis. In this context, he relied on decision of the Supreme Court in cases of Smt. Renu Mullick v. Union of India and another reported in AIR 1994, Supreme Court 1152, Union of India and others v. C.N.Ponnappan reported in (1996) 1 Supreme Court Cases 524 and Scientific Advisor to Raksha Mantri and another v. V.M.Joseph reported in (1998) 5 Supreme Court Cases 305.
5. Facts are not in dispute. The respondent had completed three years of service as LDC in Delhi region. She had applied for examination for the promotional post of UDC on limited departmental examination. Minimum length of service required for eligibility was three years as LDC. Before the examination could be conducted, she was transferred to Gujarat region at her request. Such transfer was on condition that she would be placed at the bottom of Page 5 of 11 C/SCA/4698/2010 JUDGMENT the seniority in the cadre of LDC in Gujarat region. Her request for appearing in examination from Gujarat region in view of transfer was accepted. She passed the examination. She was also offered promotion in Gujarat region. Nothing has been pointed out to suggest that there were no vacancies in Gujarat region for promotion to the post of UDC in the quota of limited departmental examination or that other candidates who passed along with the respondent were senior to her.
6. The short question therefore, calls for consideration is was the department correct in holding that the employee was not eligible for appearing in limited departmental examination from Gujarat region? This is solely on the basis that she had completed three years as LDC in Delhi region and not in Gujarat region. Undisputedly, the rules require minimum service of three years for an LDC to be eligible for appearing in the limited departmental examination for accelerated promotion to the post of UDC. Nothing has been brought to our notice to point out that the statutory regulation prescribed any such requirement insisting that such service must be in the region from where the candidate seeks such promotion.
7. In that background, we may refer to the decisions of Supreme Court on the point
1) In case of Smt. Renu Mullick v. Union of India and another(supra), the employee had requested for transfer outside the Collectorate. Such request was accepted on the condition that the transferee will not be entitled to count Page 6 of 11 C/SCA/4698/2010 JUDGMENT the service rendered by him in the former Collectorate for the purpose of seniority in the new charge. In other words, he will be treated as a new entrant in the Collectorate to which he is transferred and will be placed at the bottom of the seniority. The employee had to file an undertaking to this effect. Such executive instructions and the undertaking of employee were interpreted by the Supreme Court to hold the service of previous collectorate is taken away for the purpose of counting her seniority in the new charge but that would have no relevance for judging her eligibility for promotion under Rule 4. Such eligibility would have to be judged in terms of Rule alone.
2) In case of Union of India and others v.
C.N.Ponnappan (supra), the employee was transferred outside the seniority cadre on compassionate grounds. It was held that the services rendered previously would not be wiped out and cannot be ignored for judging the eligibility of candidate for promotion. The Supreme Court held as under :
"4. 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 Page 7 of 11 C/SCA/4698/2010 JUDGMENT 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."
3) In case of Scientific Advisor to Raksha Mantri and another v. V.M.Joseph(supra), once again similar situation arose before the Supreme Court. Supreme Court noted with approval the said decision in case of Union of India and others v. C.N.Ponnappan (supra). It was held and observed as under :
"6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Store keeper on the ground that he had completed 3 years of regular service as Store keeper on 7th June, 1980 and , therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Store Keeper for the period from 27th April, 1971 to 6th June, 1977. The appellants contended that, since the respondent had been transferred on compassionate ground, on his own request to the post of Store Keeper at Cochin and was placed at the bottom of the Seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Store Keeper. 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 Page 8 of 11 C/SCA/4698/2010 JUDGMENT 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."
8. In the rejoinder before the Tribunal, the employee had also pointed out that in the past consistently the department had granted such promotions to various employees ignoring the interregional transfers at the request of the employees. Treating the original applicant in present case differently was discriminatory.
9. Under the circumstances, the decision of the department to deny promotion considering the respondent ineligible for appearing in the examination in the Gujarat region was illegal. Consequential decision not to promote her in Gujarat region was also unlawful. In fact, the decision of the department to offer promotion to the respondent in the Delhi region defies logic. By the time, such promotion was offered she had already been transferred to Gujarat region and had no roots left in Delhi region. How could an LDC from Gujarat region be promoted as UDC of Delhi region where seniority in both cadres were maintained region wise, is a fundamental question. Be that as it may, when we hold that the respondent was eligible for appearing in the examination from Gujarat region, subsequent issues become insignificant.
10. The contention that the respondent applied from Page 9 of 11 C/SCA/4698/2010 JUDGMENT Gujarat region is wholly meritless. She had applied from Delhi region when she was an LDC at Delhi. Before the examination was taken she was transferred to Gujarat region. Because of that she applied to the department to appear in examination from Gujarat. The department could not have permitted her to appear from Delhi region. The very fact that the department allowed her to appear in the examination would mean that candidature from the Gujarat region was accepted. As noted, had she not been an LDC from Delhi region, the department could not have permitted her to appear in the examination from Delhi region.
11. We therefore, see no reason to reverse the decision of the Tribunal. However, during the interregnum the respondent has continued as LDC and discharged her duties on such post. She cannot draw salary of the higher post for the entire period when she had not discharged her duty on such post. To that extent the decision of the Tribunal would be modified.
12. In the result, petition is disposed of with a clarification that the respondent would be promoted to the post of UDC with effect from her initial order dated 2.4.2008 with notional pay fixation, seniority and all other consequential benefits except actual salary for the post of UDC. If the post of UDC for Gujarat region is available, she would be posted on such post immediately. If not, on the first available vacancy, she would be so promoted. Decision of the Tribunal is modified to above limited extent.
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(AKIL KURESHI, J.)
(MS SONIA GOKANI, J.)
raghu
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