Central Administrative Tribunal - Ernakulam
Udayaraj Janardhanan vs M/O External Affairs on 19 January, 2023
1
Central Administrative Tribunal
Ernakulam Bench
O.A No.180/00410/2016
Thursday, this the 19th day of January, 2023
CORAM:
Hon'ble Mr. K. Haripal, Judicial Member
Hon'ble Mr.K.V. Eapen, Administrative Member
Mr. Udayaraj Janardhanan,
S/o Mr. V.K. Janardhanan, aged 48 years,
Junior Passport Assistant,
Passport Office, Kozhikkode,
resiging at Ushanira, 29/2241,
Pipeline Road, PO Kuthiravattom,
Kozhikode, PIN 673016. - Applicant
(By Advocate: M/s M.R. Hariraj & Co.)
Versus
1. Union of India,
represented by the Secretary to Government of India,
Ministry of External Affairs,
New Delhi-110 001.
2. Chief Passport Officer and Joint Secretary CPV,
Ministry of External Affairs,
New Delhi-110 001.
3. Passport Officer,
Ministry of External Affairs,
Kozhikode-673 007. - Respondents
(By Advocate: Mr. N. Anilkumar, SPC)
The O.A having been heard on 5th January, 2023, this Tribunal delivered the
following order on 19th January 2023:
ORDER
Per: Mr. K.V. Eapen, Administrative Member The applicant in this OA has filed the same seeking the following relief:-
(i) To call for records leading to Annexure A13 and to quash the same OA No.180/00410/2016 2
(ii) To declare that the applicant is entitled to be granted pay fixation, considering his past service and past increments drawn by him in the pay scale and to direct the respondents to grant such fixatin to the applicant with all consequential benefits including arrears of pay and allowances with interest @12 per annum on delayed payment
(iii) To declare that the applicant is entitled for consideration for adhoc promotion as Senior Passport Officer in preference to his juniors and to direct the respondents to consider the applicant for such promotion and grant the applicant such promotion in accordance with law with effect from the date of promotion of his junior with all consequential benefits including arrears of pay and allowances with interest @12 per annum.
(iv) To declare that the applicant is entitled to be included in the old pension scheme as his juniors and contemporarires who are granted such benefit as per Annexure A15 and to direct the respondents to grant such benefit to the applicant with all consequential benefits including refund of pension contributions if any made from the applicant with interest @12% per annum.
(iv)(a)To direct the respondents to consider the applicant for regular promotion as Senior Passport Assistant with effect from the date of promotion of his juniors
(iv)(b) To direct the respondents to permit the applicant to appear for the Limited Departmental Competitive Examination notified by Annexure A 16(B) and to direct the respondents to consider the applicant for promotion as Senior Superintendent based on his merit in the said examination.
(v) To grant such other reliefs as may be prayed for and the court may deem fit to grant and
(vi) To grant the costs of this Original Application.
2. The applicant is aggrieved by the refusal of the respondents to grant him fixation of pay and allowances and adhoc and regular promotion based on his date of appointment in the LDC cadre consequent to the approval extended for on his withdrawal of his resignation. The applicant had started his employment in the Passport office, Kozhikode under the Ministry of External Affairs as a Casual OA No.180/00410/2016 3 Labourer. Later he had been disengaged and was not considered for grant of temporary status and regularisation. Aggrieved by this, he had approached this Tribunal in OA No.709/2008. Subsequently, two Writ Petitions were also filed in this regard before the Hon'ble High Court of Kerala as WP No.25647/2009 and WP No.34447/2001. After the final disposal of these Writ Petitions, the applicant was granted temporary status on 10.12.2010 vide the office order at Annexure A2. Later, he was granted regular appointment as Peon (redesignated as Office Assistant) with effect from 15.04.2015 vide the Order produced at Annexure A3. Subsequently his date of regularisation with notional fixation was ordered with effect from 01.08.2007 and he was also granted promotion to the post of Lower Division Clerk with effect from (w.e.f.) 25.08.2010 vide Office Order dated 12.05.2014 produced at Annexure A4. It was also indicated in the order at paragraph 5that as he was not in service on the date of promotion his pay would be fixed notionally and actual financial benefits would be reckoned from 17.12.2010, which is the date of joining as CL/TS.
3. Shortly, after the Office Order at Annexure A4 was passed on 12.05.2014, the applicant submitted a letter dated 02.07.2014, produced at Annexure A5, to the 2 nd respondent stating that he had been selected by the Public Service Commission of Kerala for appointment to the post of clerk/cashier in Kozhikode District Cooperative Bank. He stated in the letter that he proposed to join the new job effective from 14.07.2014 and therefore requested to be relieved of duty from his present job with effect from 11.07.2014. His resignation was accordingly accepted and he was relieved vide the office order of the Ministry of Extenral Affairs, Passport Office, Kozhikode dated 14.07.2014 produced at Annexure A-6. As per OA No.180/00410/2016 4 this office order, the applicant was relieved of his duties with effect from 14.07.2014 (AN). However soon after joining the new post he had a change of mind as he realized that there was no connection between the actual nature of work and the designation, since he was assigned with field duty which required him to visit the residences/work places in search of defaulters to the said Bank to make them clear their dues. He then submitted the letter at Annexure A7 dated 01.08.2014 addressed to the 2nd respondent in which he submitted that he wished to work in a 'tension free atmosphere' and that in the Passport Office he had full job satisfaction and could work in peaceful and calm atmosphere. He therefore prayed for orders to treat "....... my absence with effect from 14.07.2014 as break in service and reinstate me as Lower Division Clerk in CPV Division, Ministry of External Affairs at the earliest, if possible so as to enable me to join back service with effect from August, 2014"
4. It appears that the request made by the applicant by AnnexureA7 dated 01.08.2014 was rejected by the letter of the Ministry of External Affairs New Delhi dated 27.08.2014 at Annexure A8, relying on Rule 26(5) of the CCS(Pension) Rules 1972. Immediately on receipt of A8 the applicant again approached this Tribunal and filed OA No.865/2014. Another representation was given to the respondents while this OA was pending for disposal, was also rejected vide Annexure A9 dated 10.10.2014. It was indicated therein that as per Rule 26(5) of the CCS(Pension) Rules his request to be reinstated in the post of LDC cannot be acceded to. He amended the OA No.865/2014 to quash the Annexure A9 letter as well. Finally on 24.06.2015 the OA was disposed of by this Tribunal with the following directions:
OA No.180/00410/2016 5 "The applicant shall be permitted to join the office of the respondents as LD clerk on any working day within one month from this date. OA is allowed as above. No order as to costs."
5. It appears however that the above order of this Tribunal was not immediately implemented. An MA had to be filed praying for direction to the respondents for the applicant to join. An order was passed in this connection by this Tribunal on 05.08.2015 in the MA directing the respondents to permit the applicant to join the respondent's office as LDC on 10.08.2015. This was then complied with through an office order of the Ministry of External Affairs, Passport Office, Kozhikode dated 10.08.2015 produced as Annexure A12. It was mentioned therein that the applicant "...... who had voluntarily resigned from the post of LDC in this office w.e.f 14-7- 2014(A/N) has reported for duty in the grade of LDC with effect from 10-08- 2015(F/N)". Subsequent to this another order was issued on 23.09.2015 (Annexure A13) fixing the pay of the applicant at Rs.5830/- with Grade Pay of Rs.1900/- in Pay Band I, Rs.5200 - Rs.20,200/- with date of joining service shown as 10.08.2015. This Office Order at AnnexureA13 has been impugned by the applicant and he seeks to quash it by this Original Application. Meanwhile the posts of LDC and UDC had been redesignated as Junior Passport Assistant and Senior Passport Assistant respectively in the said office. It is submitted by the applicant in the OA that some juniors of his were given an adhoc promotion as Senior Passport Assistant vide the office order of the Ministry of External Affairs dated 04.04.2016 produced at Annexure A14. The applicant claims that he is senior to the officials named in this office order at Sl Nos.9 & 10 (S/Shri K.Anilkumar & K.Anoop Babu) as per the seniority list of Junior Passport Assistants as on 01.04.2016 published in May 2016. In this seniority list of Group 'C' Junior Passport Assistants as on 01.04.2016 OA No.180/00410/2016 6 produced at Annexure A15 the applicant appears at Sl. 303 with date of appointment in the Passport Office as 01.08.2007 and date of appointment in the present grade as 25.08.2010. However in the column for the post held substantively he is indicated as 'temporary'. The two juniors mentioned earlier - K.Anilkumar & K.Anoop Babu- appear at Sl.No.304 & 305. It is the contention of the applicant that he is being overlooked, whereas, the persons at Sl.No.304 & 305 have been given adhoc promotions to Senior Passport Assistant with effect from (w.e.f. )01.04.2016 vide Annexure A14. The applicant submits that the respondents have been treating him as a fresh entrant in service with effect from 10.08.2015 and therefore refusing him benefits. In addition, he submits that his juniors have also been granted the benefit of being included in the old pension scheme.
6. The applicant is therefore seeking the relief as brought out in the opening paragraph on the ground that he did not lose the seniority of his past service. It is submitted that the refusal to grant him pay fixation by reckoning his past services and increments drawn by him before withdrawal of resignation is unfair. The juniors mentioned earlier were also given promotion later on a regular basis w.e.f. 1.04.2018 as per Annexure A16(A) dated 06.08.2018. It also appears that they were allowed to appear in the Limited Departmental Competitive Examination(LDCE) for promotion/selection to the post of Assistant Superintendent in Pay Matrix Level 6 from Senior Passport Assistant in Pay Matrix Level 4 as per the notification for the said examination dated 04.08.2022 {Annexure A16(B)}. When this specific issue was agitated before this Tribunal on 19.09.2022 in MA 638/2022, the applicant was allowed through an interim direction to appear in the LDCE to be held on 01.10.2022 or any other adjourned date. The MA No.638/2022 OA No.180/00410/2016 7 was allowed to that extent. The applicant has also produced a copy of the order passed by the respondents placing his juniors S/Shri K.Anilkumar & K.Anoop Babu, Senior Passport Assistant in the Old Pension Scheme at Annexure A18, along with their entitlement to contribute to the General Provident Fund(GPF) at Annexure A19. He claims all these reliefs for himself as well.
7. During oral submissions Shri M.R. Hariraj learned counsel for the applicant drew our attention to the Rule 26 of the Central Civil Services (Pension Rules) 1972 (Pension Rules) relating to Forfeiture of Service on Resignation . Specifically, he drew attention to Rule 26(1) which states as follows:-'Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority entails forfeiture of past service.'. Further, Rule 26(4) permits the Appointing Authority to allow a person to withdraw his resignation in the public interest subject to certain conditions. One of the conditions as per Rule 26(4)(iii) is as follows;- "that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days". In addition to the above provisions learned counsel also drew our attention to Rule 26(5) & 26(6) which are reproduced below:-
Rule 26(5): "Request for withdrawal of a resignation shall not be accepted by the Appointing Authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
OA No.180/00410/2016 8 Rule 26(6): "When an order is passed by the Appointing Authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service."
(emphasis added)
8. It is the contention of the learned counsel for the applicant that from Rule 26(6) it is clear that when an order is passed by the appointing authority allowing a person to withdraw his resignation and resume duty the order shall be deemed also to include the condonation of interruption of service. It is clear, however, that the period of interruption would not count as qualifying service. In the context of the Pension Rules, the term 'Qualifying Service' has been defined separately under Rule 3(q) as :- "'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules". Hence, the matter of qualifying service as indicated in Rule 26(6) is only in the context of counting service for purpose of pensions and gratuity and nothing else. Otherwise when an order is passed by competent authority allowing a person to withdraw his resignation and resume duty it is also to be taken into consideration, that the order automatically includes the condonation of the interruption of service . This would mean there is no interruption of service right from the date of the appointment for all other purposes which includes the counting of service for seniority, promotion etc.. In this connection learned counsel also drew our attention to Union of India & Ors v. K.B. Rajoria decided on 28.03.2000 by the Hon'ble Supreme Court {2000 (3) SCC563}, wherein it had been held that service can be notionally reckoned even if the person concerned is not actually working in the post. In other words regular service does not mean that there has to be actual service in the post. Further, he has also brought OA No.180/00410/2016 9 to our notice:- S.Krishnamurthy v. The General Manager, Southern Railway {AIR 1977 Supreme Court 1868}, which has laid down that any promotion denied has to be set right with suitable orders regarding salary and seniority by the Court.
9. It is submitted that the applicant has filed the Original Application based on the above provisions in the Rules and judgements of the Apex Court to grant him a pay fixation after considering his past service and past increments with all consequential benefits including arrears of pay and allowances. The additional relief sought is to declare that he is entitled for consideration for an adhoc and later, regular promotion as Senior Passport Assistnt with effect from the date of promotion of his juniors and also for the further consideration of his promotion, as per the notification at Annexure16(B), for the post of Assistant Superintendent (Assistant) in the Pay Matrix Level-6 from Senior Passport Assistant.
10. The respondents have filed a detailed reply controverting these points. It is submitted by the respondents that as per Rule 26(1) of CCS Pension Rules relating to Forfeiture of Service on Resignation, the resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority entails forfeiture of past service. Since the withdrawal of resignation was not done in public interest by the appointing authority but was on the strength of a direction by the Court, the applicant was allowed to join duty in the grade of Lower Division Clerk on 10.08.2015 (F/N.). His pay was accordingly fixed at the entry pay prescribed for LDC with Grade Pay of Rs.1,900/-. Further, it is submitted that the applicant had forfeited the service put in by him prior to his resignation and was placed in the grade of LDC afresh. Hence, the question of according any OA No.180/00410/2016 10 promotion does not arise. All the other personnel that he has mentioned in the Annexure 14 order were having continuous service in the grade of LDC (re- designated as Junior Passport Assistant). They were promoted purely on the basis of their seniority in the grade. As far as the Seniority List at Annexure A15 is concerned, the respondents have submitted that the applicant's name was inadvertently entered at Sl.No.303 whereas his name should have been indicated in the Seniority List in accordance with his actual date of joining in the grade after withdrawal of his resignation i.e. as on 10.08.2015. They submit that it is necessary to issue a Corrigendum Order relating to the Seniority List of Junior Passport Assistant incorporating the corrected position of the applicant. This is being prepared and will be issued soon. [However, no such new seniority list has been presented by the respondents after filing their reply in July 2016 to this Tribunal, it should be noted.]
11. What the respondents have sought to emphasize is that since it has been specifically provided in the Rules that withdrawal of resignation unless allowed in public interest by the appointing authority entails forfeiture of past service i.e. the Government servant will not be entitled for any pension, gratuity or terminal benefits their action in treating the applicant as a fresh entrant in the grade is perfectly legitimate and just. Further, since his subsequent appointment as LDC has occurred after the introduction of New Pension Scheme for Central Government Employees i.e. after the year 2004, the question of his being eligible for Old Pension Scheme does not arise. It is also provided under Rule 26(2) of the CCS Pension Rules, 1972 that a resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission another appointment,whether OA No.180/00410/2016 11 temporary or permanent under the Government where service qualifies. It is submitted that the Tribunal in paragraph 10 of the Annexure A10 order in OA No.865/2014 had observed that since the applicant had resigned his post as LDC in the Passport Office in order to take up his appointment in the Kozhikode District Cooperative Bank, and the said bank was not a body controlled or financed by the Government but a Cooperative institution, the rejection of the request to return to his former employment in the Passport Office made by the applicant cannot be sustained. The respondents say that having therefore availed the benefit of the argument that his resignation from service was not to take up employment under the Government, he cannot now turn back and demand the condonation of interruption in service and avail the seniority or benefit of his past service as this is in complete contradition to his prayer in OA No.865/2014 and the said observation of the Tribunal.
12. Shri N. Anilkumar the Learned Senior Panel Counsel appearing for the respondents in oral submissions also made the point that the Annexure A10 Order of the Tribunal in OA No.865/2014 was totally silent on the treatment of the interregnum period between the resignation of the applicant and his joining on 10.08.2015. The orders of this Tribunal were only to the extent that the applicant would be permitted to join, without specifically indicating as to how the period between the date of acceptance of his resignation and joining i.e between 14.07.2014 and date of joining on 10.08.2015 is to be treated. In effect therefore he was not in service for more than a year. The respondents have taken his service to have begun with effect from 10.08.2015. The Seniority List at Annexure A15 as indicated in the reply statement was erroneous. Since the applicant was not in OA No.180/00410/2016 12 service he cannot be considered senior as compared to those whom he terms as juniors and others for promotion. Countering this learned counsel for the applicant Shri M.R. Hariraj submitted that the Tribunal was silent on this aspect in its order at Annexure A10 in OA No.865/20014 as it was conscious that the Rule 26(6) of the CCS (Pension) Rules 1972 takes care of such situations. There was no question that the applicant had been allowed to rejoin the earlier post that he was holding. Further, drawing attention to the DoPT OM No.28035/2/2007-Estt(a) dated 04.12.2007 produced in Swamy's Pension Compilation as Government of India Decision No.3, under Rule 26, he submitted that the said OM draws attention to Sub-rule 4 of Rule 26 which provides the conditions under which the appointing authority may permit a person to withdraw his resignation in the public interest. One of these conditions is that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days. In the present case the applicant had resigned from duty w.e.f. 14.07.2014 and it had been accepted vide Annexure A6. Further, within a period of just 16 days on 01.08.2014, he had made a representation to be allowed to join back in service vide Annexure A7. When this was not agreed to on 27.08.2014, vide Annexure A8, he had no option but to file the OA No.865/2014. Even his 2nd rejection when he made another representation, was dated 10.10.2014 produced at Annexure A9. All these steps were taken within the period of 90 days. The fact that the Tribunal had taken time till 24.06.2015 to finally dispose of the matter which was caused to some extent by the delay in furnishing the reply statement by the respondents besides other reasons cannot be held against the applicant. Further, it is also a fact that even after the orders of the Tribunal were passed, he had to file an OA No.180/00410/2016 13 MA to get it implemented and only after that was disposed with a specific direction to the respondents to permit him, that he was able to join the respondent's office as L.D.C. w.e.f. 10.08.2015. Hence any delay of over 90 days in this connection cannot be held against him.
13. We note that the respondents have not taken up this line of argument that there was a gap of more than 90 days, in their reply statement or submissions. All that they have indicated, without mentioning in so many words, is that they had considered his resignation as 'final' when submitted on 14.07.2014 and were later, in effect, 'forced' to take him back because of the direction of the Tribunal to make him join on 10.08.2015. In other words, the appointing authority had not allowed any withdrawal of the resignation in the public interest as envisaged under Rule 26(1). Hence they have treated the case as fresh appointment with effect from that date. However, after due consideration we are unable to accept this line of argument of the respondents. If the respondents were so truly aggrieved with the order of this Tribunal in OA No.865/2015 directing them to take the applicant back they could have filed a OP(CAT) in the High Court or even asked the Tribunal for a clarification about its effective date etc. The fact of the matter is they did not and had proceeded to allow the applicant to rejoin the office. In our mind there is no question that this should not be considered, as is sought to be made out in the reply statement, as a fresh appointment. The applicant's rejoining service can only be taken in continuation with his earlier service in the same organization. Once the respondents passed the order allowing him to join on 10.08.2015 to our mind they are bound by Rule 26(6) of the CCS(Pension) Rules 1972, which, in effect, means they have allowed the applicant to withdraw his resignation and resume duty. There OA No.180/00410/2016 14 is no evidence produced anywhere that they even asked for a review of the order of this Tribunal, let alone appealing the same.
14. It is therefore quite clear to us that since the appointing authority had passed an order on 10.08.2015 noting that the applicant had reported for duty (Annexure A12), it implies that his resignation was allowed to be withdrawn and he is resuming duty. There cannot be any other interpretation and such an action has to be viewed as done in the public interest. If this is to be taken as given then automatically while the interregnum period cannot be counted for the purpose of qualifying service, the order would be deemed to include the condonation of the interruption in service. This also implies that the applicant after his reverting back has to regain his past seniority and position from the point where he was as if he had not left. In other words his appointment in the Passport Office has to be once again counted with effect from 01.08.2007 onwards. Effectively, therefore, his service has to be counted by the respondents on this basis and he has to be given his consequent seniority as well as arrears of pay, increments etc on this basis. His adhoc and regular promotions to the post of Senior Passport Assistant and to Senior Superintendent also will have to be ordered on this basis with effect from the date his immediate juniors were given such promotions, if he has otherwise qualified. In addition in case his juniors have been placed with the ambit of Old Pension Scheme he too will have to be considered for the same.
15. In view of the above, we are allowing the Original Application. The reliefs as prayed for are granted as indicated above. However, we also clarify that no pay and allowances will be given for the interregnum period indicated earlier when he was OA No.180/00410/2016 15 not in the service of the respondent though the period will count for fixing of seniority etc. Further, no interest will be paid on any arrears or on any refunds made to him. We are also making no order as to costs.
K.V. EAPEN JUSTICE K. HARIPAL
Administrative Member Judicial Member
va
OA No.180/00410/2016
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List of Annexures
1. Annexure A1(a)- True copy of judgement dated 18.12.2007 in OP 34447/2001 of the Hon'ble High court of Kerala
2. Annexure A1(b) - True copy of final order dated 10.08.2009 of this Hon'ble Tribunal in OA No.709/2008
3. Annexure A1(c) - True copy of the judgement dated 14.10.2009 in WP(c) 25647/2009
4. Annexure A2 - True copy of the order No.KoZ/551/13/2006 dated10.12.2010
5. Annexure A3 - True copy of the order No.1(35)AD/KZD/93(Vol-III) dated15.14.2014
6. Annexure A4 - A true copy of the order No.1(27)AD/KZD/99(Vol-II) dated 12.05.2014
7. Annexure A5 - A true copy of representation dated 02.07.2014
8. Annexure A6 - A true copy of the office order No.KoZ/586/4/2010 dated 14.07.2014
9. Annexure A7 - A true copy of representation dated 01.08.2014
10. Annexure A8 - A true copy of Order F.No.V.IV/441/7/94 dated 27.08.2014
11. Annexure A9 - A true copy of Orer No.V.IV/414/07/94 dated 10.10.2014
12. Annexure A10 - A true copy of the final order dated 24.06.2015 in OA 865/2014
13. Annexure A11 - A true copy of the order dated 5.08.2014 in MA 695/2015
14. Annexure A12 - A true copy of the office order KOZ/551/13/2006 dated 10.08.2015
15. Annexure A13 - True copy of Order No.KOZ/586/04/2010 dated 23.09.2014 issued by the 3rd respondent
16. Annexure A14 - A true copy of the order No.I(27)AD/KZD/99/Vol-III dated 4.4.2016
17. Annexure A15 - A true copy of the relevant portion
18. Annexure A16 - A true copy of the order No.KOZ/586/6/2002 dated 16.3.2016
19. Annexure A16(A)- Order No.1(27)/AD/KZD/99Vol.III(K-12) dated 06/08/2018
20. Annexure A16(B)- Notification dated 04/08/2022
21. Annexure A17 - True copy of the Memorandum No.49014/2/2014-Estt(C) dated 26.02.2016
22. Annexure A18 - True copy of the Order No.V.VI/551/50/2016 dated 28/12/2016
23. Annexure A19 - True copy of the Order No.KOZ/586/6/2002 dated 16/3/2016
24. Annexure A20 - True copy of the Order No.KOZ/586/6/2002 dated 16/3/2016 *** Annexure R1(a)- True copy of the appointment order from the KDC Bank dated 04.06.2014 *** OA No.180/00410/2016