Punjab-Haryana High Court
Union Of India And Others vs Central Administrative Tribunal on 19 March, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No. 2024-CAT of 2007
Date of Decision: 19.03.2014
Union of India and others ..Petitioners
Versus
Central Administrative Tribunal, Chandigarh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON'BLE MR. JUSTICE ARUN PALLI
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Namit Kumar, Advocate, for the petitioners.
None for respondent No.2.
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SANJAY KISHAN KAUL C.J. (Oral)
Shri Rajinder Kumar Bajaj/respondent No. 2 was appointed as a Postal Assistant on 02.08.1965 and was confirmed on 01.03.1969. He was placed in the next higher grade firstly on introduction of One Time Bound Promotion Scheme (OTBP) on 30.11.1983 and then again under the 'Biennial Cadre Review (BCR) Scheme' on completion of 26 years of service on 01.10.1991. The said respondent No.2 sought transfer from Faridkot Division where he was recruited to Bhatinda Division which request was acceded to vide an order dated 17.06.1994 as per the terms and conditions specified therein. The contents of the order read as under:-
"Approval of Director Postal Services Punjab Region Chandigarh is hereby conveyed for the inter Division transfer of Shri R.K.Bajaj, ECR Official of Faridkot Division from Faridkot Division to Bathinda Division subject to the following terms and conditions:-
1. He will not claim any TA & TP.
2. He will not confer any right to his seniority on Divisional level.
3. He will be adjusted in Bathinda Division to work as BCR official in any capacity."Sharma Ravinder 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 2
2. Respondent No.2 joined Bhatinda Division on 18.06.1994 and was assigned the seniority at the bottom at Sr. No. 89 in view of the terms and conditions set out in the order dated 17.06.1994. Respondent No.2, however, submitted a representation on 22.08.2002 seeking benefits of his earlier service rendered in Faridkot Division towards his seniority which purported to be a reminder to an earlier representation dated 09.09.1999, though copy of the earlier representation does not appears to be on record. This representation was rejected on 22.10.2003. In the meantime, respondents No. 3 to 6 who have been arrayed as proforma respondents before us, earned their promotions. Respondent No.2 made further representations but to no avail as they were also rejected on 31.08.2004.
3. The aforesaid grievance gave rise to respondent No.2 to file an Original Application No. 700/PB/2004 before the Central Administrative Tribunal, Chandigarh Bench, which was disposed of on 25.11.2005. The Tribunal took note of two decisions of the Hon'ble Supreme Court in Union of India and others Vs. C.N.Poonappan 1996(1) S.C.C. (L&S) 824 and Scientific Advisor to Raksha Mantri Vs. V.M.Joseph 1998 S.C.C. (L&S) 1362. In terms of these pronouncements where an employee is transferred on compassionate grounds from one unit to another, though he looses his seniority and is placed at the bottom of the seniority list at the transferred place, the service rendered at the place from where he has been transferred has to be counted as experience for the purpose of eligibility for promotion at the transferred place. The Tribunal opined that the eligibility for promotion cannot be confused with seniority as they are two distinct factors and issued the following directions:-
"In line with the discussion above, present O.A. is disposed of and the respondents are directed to consider the case/eligibility of the applicant first for promotion to LSG (norm based) taking into account his entire service, including that rendered in Faridkot Division, and then, for HSG-II and HSG-I. The respondents will pass a detailed speaking order within 3 months of receipt of a copy of this order. Needless to say that in case, applicant gets promoted to these posts, he will be entitled to consequential benefits, which may be paid to him within the period stipulated above."Sharma Ravinder 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 3
4. The Department assuming it to be the requirement to only pass a speaking order, rejected the request of respondent No.2 vide order dated 22.02.2006. The basis of passing of the order was that the seniority of respondent No.2 would continue to be at the bottom. This was perceived by respondent No.2 to be a violation of the directions passed by the Tribunal on 25.11.2005, thus he filed the contempt proceedings in which notices were issued by the Tribunal. It is at that stage that the present writ petition has been filed under Articles 226 of the Constitution of India seeking to assail the order of the Tribunal dated 25.11.2005 as also the subsequent orders passed on the contempt proceedings.
5. In the present petition notice of motion was issued and the proceedings before the Tribunal under the provisions of the Contempt of Courts Act, 1971 were stayed vide order dated 08.02.2007. Subsequently, the petition was admitted and stay was directed to be continued on 01.10.2007.
6. When the matter has now been taken up, none has appeared for respondent No.2 despite it being a day dedicated to hearing of regular matters. Learned counsel for the petitioner has further informed us that Mr. C.M.Chopra, Advocate, who had entered appearance for respondent No.2 has informed him that he is no more appearing in the matter as the file has been taken away from him. On verification, the Court Master informed us that there is no other Vakalatnama on record of any other counsel and thus we have proceeded to judgment.
7. We may notice that the first important fact is that the transfer of respondent No.2 from Faridkot Division to Bhatinda Division was as per his own request. Not only that, the order of transfer dated 17.06.1994 made it quite clear that consequence would be that it would not confer any right to his seniority on divisional level meaning thereby that his earlier service rendered with Faridkot Division would not be counted for seniority. That should have put the matter at rest. If respondent No.2 was not so desiorous, he ought not to have joined the post. There is nothing on record to show that the transfer was requested on any compassionate ground as in Union of India Vs. C.N.Poonappan's case (supra).
8. Learned counsel for the petitioners has brought to our notice the judgment of the Hon'ble Supreme Court in Union of India and others Vs. Deo Narain and others 2008(1) SCC 84 which has inter-alia examined the Sharma Ravinder 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 4 earlier judgments of the Hon'ble Supreme Court in Union of India Vs. C.N.Poonappan's case (supra) and Scientific Advisor to Raksha Mantri Vs. V.M.Joseph's case (supra) wherein it has been concluded that when the transfer is on the condition that the employee will be placed at the bottom of the list of the employees in the transferred cadre, it would not be open for him to make a grievance that other persons working in the transferred cadre are shown senior to him for promotion. He cannot claim seniority above the employees in the transferee Department. The concept of seniority and eligibility was elucidated by making a distinction that a person may be eligible but he would be promoted as per the seniority which would be assigned to him. In that context it was observed that in C.N.Poonappan's case (supra), the ratio was that the earlier service would not be wiped out and that would be treated as 'experience' for eligibility for promotion and if he is found eligible, then his case for promotion has to be considered on the basis of seniority 'at the transferred place'. Thus, the seniority would be at the bottom of the list. Same is the position qua judgment of Scientific Advisor to Raksha Mantri Vs. V.M.Joseph's case (supra).
9. There can really be no quibble over the aforesaid proposition and this issue is no more res-integra in view of the aforesaid judicial pronouncements and thus respondent No.2 would hardly be in a position to contend now that he should get benefit of seniority in the cadre of transferred Department.
10. It is pointed out to us that the other aspect urged by respondent No.2 before the Tribunal was that he, having been given certain financial benefits under the OTBP & BCR Schemes, the past service ought to be counted for the purposes of promotion. In this behalf, learned counsel for the petitioner has explained that even this issue is no more res-integra in view of the judicial pronouncement of the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd. Vs. R.Santhakumari Velusamy and others 2011(9) SCC 510. The BCR Scheme was explained as an up-gradation scheme to give relief against stagnation which neither involved creation of any new posts nor involved advancement to a higher post. The scheme was thus held not to involve any process of selection for conferment of the benefit of higher pay scale.
Sharma Ravinder 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 5The distinction between promotion and up-gradation was thus explained in para No.21 of the aforesaid judgment, with a reference being made to BCR Scheme in para Nos.22 and 24 as under:-
"21. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge :
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both-that is advancement to a higher position and advancement to a higher pay scale - are described by the common term `promotion', does not mean that they are the same.
The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a Sharma Ravinder process of selection, as contrasted from an 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 6 upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale. (iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(v) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
22. In this case, the BCR scheme did not involve creation of additional posts but merely restructured Sharma Ravinder the existing posts as a result of which 10% of the posts 2014.03.20 14:43 I attest to the accuracy and integrity of this document CWP No. 2024-CAT of 2007 7 in Grade III were placed in a higher grade (Grade IV) to give relief against stagnation. This is evident from the terms of the BCR scheme and the clarification contained in the letter dated 7.5.1993 that no posts were sanctioned, as far as 10% BCR was concerned.
23. xx xx xx
24. To sum up, the BCR scheme was an upgradation scheme to give relief against stagnation. It did not involve creation of any new posts. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. The upgradation was given to the senior most 10% of BCR scale employees in Grade III strictly as per seniority. BCR scheme as per circular dated 16.10.1990 was thus a scheme for upgradation simplicitor without involving any creation of additional posts or any process of selection for extending the benefit. Such a scheme of upgradation did not invite the rules of reservation."
11. The aforesaid judgment of the Hon'ble Supreme Court thus really elucidated how the BCR Scheme would not give any benefit including qua the aspect of promotion, the plea sought to be advanced by respondent No.2 to gain promotion.
12. We are thus of the view that the impugned order of the Tribunal dated 25.11.2005 cannot be sustained and is set-aside. The contempt proceedings initiated are thus also quashed. The Rule is made absolute leaving the parties to bear their own costs.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE 19.03.2014 'ravinder' Sharma Ravinder 2014.03.20 14:43 I attest to the accuracy and integrity of this document