Central Administrative Tribunal - Madras
A Badusha Maideen vs M/O Communications on 28 November, 2023
1 of 28 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH 0A4/310/00274/2013 ; DATED TUESDAY, THE 28" DAY OF NOVEMBER, TWO THOUSAND AND TWENTY THREE CORAM : HON'BLE SMT. LATA BASWARAJ PATNE, MEMBER (J) HON'BLE SHRI. VARUN SINDHU KUL KAUMUDI, MEMBER (A) ' A. Badusha Maideen. S/o. Late M. Abdul Rahiman, No.7. Mosikeeranar IT Street, Indira Nagar, Erode - 638 003. (Retired Asst. Postmaster) .«+...Applicant (Advocate: M/s. R. Malaichamy) Versus 1. Union of India, Rep. by the Chief Postmaster General, - Tamil Nadu Circle, Anna Salai, Chennai-600.002; 2. The Postmaster General, Western Region (TN), Coimbatore ~ 641 002; * 3. Superintendent of Post offices, Namakkal Division, Namakkal - 637 007. .. Respondents (By Advocate: Mr. Su. Srinivasan, Sr. CGSC) -- psy | 2 of 28 ORAL ORDER
(Hon'ble Smt. Lata Baswaraj Patne, Member(J) By this Original Application, the applicant is seeking the following relief:-
"To call for the records of the 1* respondent pertaining to his order which is made in No. STA/5-21/N.P LSG (Grievances 21/2012 dated 15.01.2013 and set aside the same, consequent to,
ii) direct the Respondents to promote the . Applicant on par with his juniors to the post of High Selection Grade-I (HSG-1), also iii} to direct the Respondents revise and re-fix the retirement service benefits of the Applicant including pension and to pay the arrears of difference of pay and allowance and other retirement service benefits to the Applicant, and
iv) To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper."
2. The brief facts of the case, in a nut shell, are as follows:-
The applicant is a retired Assistant Postmaster. In his last posting, he worked as Asst. Postmaster, Tiruchengodu Head Post Office and retired from service on the afternoon of 30.06.2008, on superannuation. He completed more than 39 years of service and was due for promotion to the next higher grade of HSG-I & HSG-I, on par with his juniors. It is submitted that 46 junior officials were promoted to HSG-II cadre. Likewise, 17 junior officials were promoted to
3 of 28 HSG-I cadre. He joined the services of the Respondents on 26.07.1968. Junior officials were promoted much earlier than him. Therefore, he made representations from time to time to the respondents to consider his case for promotion on par with his juniors. It is further submitted that a similarly placed person, one Shri. T. Mani, approached this Hon'ble Tribunal in O.A.No. 73 of 2010, claiming the very same relief for notional promotion on par with his juniors and, the said OA was allowed by an order, dated 26.07.2011, and the Respondents have complied with the said order of the Tribunal vide their orders, dated 15.06.2012, 19.06.2012 and June, 2012, respectively, but, for the applicant, it is denied by an order, dated 15.01.2013, stating that the said judgment will apply in personam. Hence, he filed the instant OA seeking the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel, filed a detailed reply and opposed the relief on the ground that the applicant has not been promoted to the HSG-I before his retirement on 30.06.2008 since he did not complete the eligibility condition of three years regular service in the LSG cadre, as on 1* January, 2008, as per the Postal (Selection Grade Posts) Recruitment Rules, 2006, for considering him for promotion to the Higher Selection Grade -IT (HSG-II) cadre. Therefore, there is no question at all, to give further promotion to HSG-I when he was not promoted to HSG-II. The respondents further contended that the applicant is 4 of 28 claiming, the relief on par with 46 Postal Assistant cadre juniors, who have been promoted to the LSG cadre prior to the applicant. 4, | Heard learned counsel on both the sides. Perused the records.
5. Ld. Counsel for the applicant strongly argued that the respondents followed sometimes the Circle Seniority List and sometimes the Divisional Seniority List and, again, coming back to following the Circle Seniority List, therefore, many persons, who joined service, have lost and are losing their promotions. When the matter stood thus, similar issue came up before this Court in the matter of Mr. T. Mani, who had approached the Tribunal with similar grievance in OA No.73/2010. After considering the submissions made by both the parties and taking into account the issues involved in the matter, the said OA was disposed of, vide Tribunal's order, dated 26.07.2011, the relevant portion of which reads as under:-
9, As regards the merits of the matter, admittedly,
-jnitially, promotion from LSG onwards was effected circle wise. It was later on from 1965 changed inasmuch as so far as LSG Cadre is concerned, the same had been divisionalized, while for higher promotion the earlier system of Circle-wise seniority held the fort. But this system was once again changed and the original system of Circle seniority etc., for promotion to the post of LSG onwards restored. The grievance of the applicant is that those juniors to the applicant who were granted LSG on the basis of divisional seniority cannot steal a march over the 5 of 28 applicant when the original system of circle seniority for LSG onwards had been restored. Though promotion as LSG would have counted for further promotion as HSG Grade II and from there to Grade 1, in view of restoration of the original system of circle seniority, according to the applicant, seniority of PA at circle level does have its own impact on further promotion.
10. In the case of Om Prakash Sharma vs Union of India (1986) Supp SCC 218, an almost identical situation arose and the Apex Court has addressed the issue as hereunder:-
The appellants have an iron-clad case. The facts, not disputed, to summarise briefly are that under the Divisional Electrical Engineer there were three separate departments under his administrative control. Members of the staff of the three departments were borne on a common seniority list. In other words they were deemed to belong to one office in the matter of seniority and promotion. This is not only not disputed but the averment to that effect in para 6 of the petition has been admitted in the counter- affidavit filed on behalf of the Railway Administration. It is again admitted that the three appellants since their entry into service were senior to Respondents 3 to 6. For the administrative convenience the Railway Administration trifurcated the cadres. In other words, three units were separated from each other which resulted in each unit having its own seniority list and the common seniority list became irrelevant from the date of the trifurcation. The Unit No. 2 cailed the workshop was amalgamated with the office of the Chief Electrical Engineer, Bombay. That is not controverted, Respondents 3 to 6 belonged to the administrative staff in the department styled as the workshop. The result of the trifurcation and
6 of 28 amalgamation of the workshop with the Bombay office was that the workshop staff including Respondents 3 to 6 were taken over on the seniority list maintained by the Bombay office. It is admitted that on account of availability of vacancies in the Bombay office Respondents 3 to 6 got some accelerated promotions in the cadre of head clerks. Surprisingly after a span of 23 years, Railway Administration reconsidered its earlier decision and detached the workshop staff from the office of the Chief Electrical Engineer, Bombay and brought it back to Jhansi and three former departments under Divisional Electrical Engineer were amalgamated. In other words situation ante as on August 31, 1956 was restored, and members of the staff were brought on common seniority list cadre-wise. This factual averment is unambiguously admitted. Consequent upon amalgamation in 1979 a fresh common seniority list was drawn up in which cadre-wise Respondent 3 was shown senior to Appellants | and 2 and Respondents 5, 6 and 9 were shown senior to Appellant 3. | Obviously when the amalgamation took place, Respondents 3 to 6 could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Article 16 of the Constitution. It may be that they might have enjoyed some accelerated promotion when workshop staff was amalgamated with the Bombay office. But when they were repatriated and re- amalgamated with original two offices and brought back on the common seniority list, they must find their original place qua the appellants. This is not a case where appellants were passed over at the time of selection or denied promotion on the ground of unsuitability. In such a situation status quo ante has to be restored. Obviously Respondents 3 to 6 will be below the appellants and any other view to the contrary would be violative of Article 16 as it would constitute dental of equality in the matter 7 of 28 of promotion. Therefore, the seniority list drawn up on a principle contrary to what is discussed herein would be bad in law and deserves to be quashed,"
_ 11. A comparison of the above case with the case in hand would go to show that there, it was trifurcation of one department while here it divisionalization in various divisions of one Circle cadre. There, prior to trifurcation of the Department, there was a common seniority, as here, too, there was a common seniority at the circle level before divisionalization. There, a few got accelerated promotion, while here, too, as many as 46 got accelerated promotion. There, subsequently, after 23 years, there was amalgamation and original system restored and, here again, after 2] years, there was amalgamation into Circle Cadre and the original system was restored. There, the juniors, as per the common seniority list, were the beneficiaries of trifurcation, as here, it is juniors to the applicant who were the beneficiaries. And, there, the Apex Court allowed the original common seniority to prevail, ie, status-quo prevailed.
12. The above decision of the Apex Court was followed in the case of Kerala State Electricity Board vs N. Sukesan (1996) 9 SCC 397. The facts of the said case and the decision of the Apex Court in that case are, as stated in the decision of the Apex Court, as under:-
Kerala State Electricity Board, hereinafter "the Board", had one common establishment prior to 1964. A need having been felt to have a separate and distinct establishment,~
8 of 28 named as Secretariat Establishment, the same came to be formed with effect from I-
4-1964, vide order of the Board dated 31-3- 1964. With a view to ensure smooth functioning of the Secretariat Service so formed, the Board, in exercise of power conferred by Section 79(c)(k) of the Electricity (Supply) Act, made certain' regulations which, inter alia, laid down the principle of inter se seniority in its clause Vil reading as below:
"VII. The inter se seniority of all categories of persons so appointed initially to the Secretariat will be determined and finalised with reference to the relative general seniority they held in the parent department and their services in the parent department will count for all purposes in the Secretariat Service also."
2. It was, however, felt that the separate service was not conducive to the smooth and efficient discharge of the administrative functions of the Board; and so, by order dated 14-1-1981 the separate and independent status of the Secretariat Service was brought to an end by making regulations called the Kerala State Electricity Board (Integration of Board Secretariat Establishment and General Establishment).Regulations, 1981. In these regulations the principle of seniority was laid down as below in clause 5(c):
"5, (c} Subject to clause (f), relative seniority of persons drawn from the Secretariat Establishment and General Establishment including Accounts wing and holding equated posts shall be determined on the basis of their length of service in the 9 of 28 cadre/category concemed at the time of integration."
3. This principle was amended to read as below by order of 7- 11-1985:
Ma) ***
(b) the relative seniority of persons drawn from the Secretariat Establishment and the General Establishment including the Accounts Wing shall be determined based on their ranking in the advice list of the Kerala Public Service Commission or the Board, as the case may be, at the time of initial recruitment by the Kerala Public Service Commission or the Board to the respective:
establishments under the Board subject to the application of rules regarding obligatory departmental tests."
This virtually required length of service to be taken note of for determining inter se seniority.
4, The High Court of Kerala was approached mainly by officers of the erstwhile Secretariat Service challenging the revised principle of seniority as laid down in 1985. The High Court, by the impugned judgment, held that the principle was hit by Article 14 as unequals were treated as equals and has, therefore, quashed the same. These appeals are by the Board and by some persons of the General Establishment.
5. Shri Poti, the learned Senior Counsel appearing for the Board, has urged that the High Court was not justified in setting aside the principle of 1985, as such a principle had indeed been found valid by this Court in Om Prakash Sharma v. Union of India, which was wrongly distinguished by the High Court. Shri Iyer, the learned Senior Counsel appearing for the private respondents has, however, urged that Om Prakash case was different on facts and the High Court was right in not following the same to sustain the principle of inter se seniority as spelt out in 1985.
10 of 28
6. In our opinion, the decision in Om Prakash case has to be applied in the instant appeals as well, because there the accelerated promotion which some of the respondents got in the cadre of Head Clerks because of the trifurcation was not required to be given weight after the different services/departments were amalgamated again.
Here too, the principle of inter se seniority in the order of 1985 has basically sought to do the same by requiring the inter se seniority to be determined on the basis of the length of service in the cadre/category at the time of integration, and not by taking note of promotions earned in the Secretariat Service.
13. Thus, when a common seniority was maintained and during intermediate period, there had been division in the common seniority list, which once again was got amalgamated, the seniority as existed prior to such divisionalization would hold the fort. 14, The applicant admittedly was senior to those 46 individuals, (We are not talking of the case of Deivasigamani and Kalilannan, who belong to a different category of Accounts Wing). Since promotion to the post of HSG II and I took place after restoring the circle seniority in 2006, the respondents were under an obligation to carry out the drill of rescheduling the seniority as of circle seniority right from the beginning in which event, the applicant becomes eligible for promotion.
15. In view of the above, the OA succeeds. It is declared that the applicant is entitled to be 11 of 28 considered for LSG on the basis of common seniority and further promotion too on the basis of his promotion under the common seniority to the post of LSG.
16. We are aware that the the above would involve review of the DPC for various years and is also time consuming. Instead, it would be advisable to afford the applicant the promotion on notional basis in the grade of HSG II and Grade from the earliest date any of his juniors had been promoted to the said grades. The notional promotion would entail notional fixation of pay (on the ground of no work no pay at the higher post) and the applicant's pay fixed in the higher grade of HS Grade I on the date of his superannuation and his terminal benefits worked out accordingly. Such terminal benefits, ie. difference in gratuity, leave encashment, commutation of pension and difference in pension shall be worked out and revised PPO shall be prepared and the applicant shall be paid the arrears arising out of such re-fixation of pay within a period of two months from the date of communication of this order.
17. No cost."
6. Learned counsel for the applicant further relied upon the order, dated 03.02.2023, passed by the Tribunal in O.A. 1606 of 2015 in the case of M. Shanmugam & 28 Ors. vs. UOI & 3 Ors. The order is extracted hereunder:-
12 of 28 "The applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"1 To call for the records of the 2" Respondent pertaining to his orders made in (1) No. STA/2- 79/NP/2015 dated 27.08.2015, (2) No.STA/5- 22/NP/2015 dated 16.06.2015, (3) No.STA/5- 22/NP/2015 dated 17.07.2015, (4) No.STA/2- 79/NP/2015 dated 10.08.2015, (5) No.STA/5- 22/Repin/2015 dated 10.08.2015, (6) No.STA/2- FOINP/2015 dated 26.08.2015, 7) No.STA/2- 79/NP/2015 dated 03.09.2015, (8) No.STA/S- 22/Reptn/2015, dated 07.09.2015, 9) No.STA/5- 22/Reptn/2015 dated 09.09.2015, 10) No.STA/5- 22/Reptn/2015 dated 16.09.2015, (11) No.STA/2- T9/NP/2015 dated 21.09.2015, (12) No.STA/2- 79INP/Vol IV/2015 dated 23.09.2015 and (13) No.STA/5-22/Reptn/2015/Vol II dated 07.10.2015 respectively and set aside the same; consequent to,
2. direct the Respondents to extend the benefit of judgments of this Hon'ble Tribunal made in O.A.No.679 of 2003 dated 19.03.2004 and the Judgment of the Cuttack Bench of this Hon'ble Tribunal made in O.A.No.1196 of 2004 O.A.Nos. 1213-1221 of 2004 dated 23.07.2008 and further direct to revise and re-fix the retirement service benefits of the Applicant accordingly with all benefits."
2. The brief facts of the case as stated by the applicants are as follows:
All the applicants joined the Respondents Department as a Postal Assistant (PA)/Sorting Assistant (SA). They were granted Time Bound One Promotion (TBOP) after completion of 16 years of service and BCR on 13 of 28 completion of 26 years of service. The applicants retired from service while working as Biennial Cadre Review Sub-
Postmaster/Assistant Sub- Postmaster, (BCR SPM) respectively on attaining the age of superannuation. Since, the introduction of TBOP and BCR, the Postal Department, kept in abeyance of giving promotion to the eligible official to the cadre LSG because the pay to the cadre of TBOP and LSG is one and the same. The pay for BCR and H8G II is also one and the same. The promotion to the cadre of LSG was kept in abeyance by the Department for a very long time. Hence, the BCR officials having 3 years experience _ were eligible for promotion to the cadre of HSG-I as per the instructions Issued by the Department from time to time. The contention of the applicants is that similarly placed persons like the applicants filed O.A. No.679 of 2003 before this Hon'ble -Tribunal claiming promotion to the cadre of HSG I by treating the service rendered in the capacity of BCR as equivalent to HSG -I cadre and it was allowed by an order dated 19.03.2004. The W.P.No. 27062 of 2004 filed by the Department against that order was dismissed by the Hon'ble High Court, Madras on 24.09.2004, The SLP was also dismissed by an order dated 09.03.2011. The grievance of the applicants is that though they had completed more than 3 years in BCR cadre (equivalent to HSG If) and eligible to be promoted notionally to the cadre of HSG I and thereby entitled for revision and re-fixation of the retirement service benefits including pension, the respondent department has not 4 14 of 28 considered their cases for grant of similar relief. Further the Cuttack Bench of this Hon'ble Tribunal! In O.A.No.1196 of 2004 and O.A.Nos. 1213-1221 of 2004 has granted similar relief to similarly situated persons like the applicants and allowed the OAs and thereafter, the Department also complied with the said order vide memo No.ST/26-15/2013 dated 04.02.2015. The applicants' representations in this regard were turned down by the respondent department and hence the present OA.
3. The respondents have filed a detailed reply. The thrust of the reply is that the judgments, cited by the applicants for extension of similar relief as they are similarly situated and their case is covered by the said orders passed by this Hon'ble Tribunal as well as the co- ordinate bench at Cuttack which attained finality as the . respondents have implemented the said orders, are applicable only to those applicants therein since the orders are in personam. The respondents also averred that the benefit of the said judgments cannot be extended/made applicable to the applicants in the present OA unless order is issued by the Postal Directorate to the effect that judgement is open to all similarly placed officials.
4. Heard the learned counsel for both sides in extenso and perused the records.
"5. The main ground on which the applicants have put forward their arguments is that the department has been 15 of 28 stating that the TBOP & BCR promotions are equivalent to LSG & HSG-I respectively. In support of this contention, "the applicants have enclosed a number of communications issued by the department copies of which have been placed for our perusal. In all these communications during the years, Le., 14.02.1984 to 11.10.1991, the department had indicated that employee should get atleast two promotions during the course of their career and it is for fulfilment of this minimum requirement that these schemes have been introduced. In all consequences, the respondents have been indicating that the TBOP/BCR is a promotion. Therefore, it "js the stand of the applicant that now they cannot modify their stand to state that these two promotions are only financial upgradation and not promotion in the sense of the term (sic), The applicants retired from service while working as Biennial Cadre Review Sub-
Postmaster/Assistant Sub-Postmaster, (BCR SPM). They were granted TBOP & BCR accordingly. The Postal Assistant is the feeder cadre to the next higher grade of LSG, HSG-II & HSG-1. After Introduction of the TBOP & BCR scheme, the Postal Department kept in abeyance in giving promotion to the eligible officials to the cadre of LSG because the pay of the cadre of TROP & LSG is one and the same. The pay for the BCR & HSG-II is one and the same and these facts have not been denied by the respondents in their counter affidavit. It is to be noted that the promotion to the cadre of LSG was kept in abeyance by the department for a very long time. Therefore, the BCR 'eh 16 of 28 officials having three years experience were posted to work as HSG-I In the promotional cadre vide letter dated 05.07.2004 and 20.11.2006 respectively and thereafter the minimum requirement of three years service is reduced. It is very clear from the letter dated 20.11.2006 that the BCR/LSG officials were posted in the promotional cadre of HSG-I on adhoc basis till recruitment rules were notified to the cadre of HSG-I. Therefore, the services rendered in the capacity of BCR is equivalent to HSG-IIl. Hence the applicants are also entitled to advance the BCR benefits on completion of 26 years of service in the light of the judgment rendered by this Hon. Tribunal in the matter of K. Perumal & another Vs. UOI in OA 67/2003 decided on 19.03.2004. The order passed by this Tribunal in the said case has been upheld by the Hon'ble High court of Madras "in WP 27062/2004 and the same has attained finality. The applicants also relied upon the order passed by the Cuttack Bench of CAT in OA 1194/2004 & 1213 to 1221/2004. It is to be noted that while considering the issue in respect of the claim of the applicants therein, the Cuttack Bench of this Tribunal considered the judgment passed by this Tribunal as well as the judgments passed by the Principal bench and categorically stated as under:
"4, We have given our thoughtful consideration to the arguments advanced by the parties and have also gone through the materials placed on record. The Madras Bench of the Tribunal in its order dated 19.03.2004 passed in OA No.679 of 2003 held as under:
7. On going through the facts, we do not subscribe to this reply of the respondents. As mentioned earlier, in all correspondences 17 of 28 and letters issued by the respondents from 1991 to 1993 it has been: specifically mentioned that OTBP/BCR are promotions and they correspond to LSG and HSG-II.
There was not even a whisper as to the fact that the so called promotions were only financial upgradations. What we can infer now is that the respondents have invented the term 'financial upgradations' now and want to apply this term in retrospectively in respect of the promotions given to the:
applicants way back in 1991. In our opinion, such actions on the part of the respondents is totally illegal and is incorrect. They cannot change the nomenclature, viz. 'promotions' made already to that of 'financial up-gradations' and deny the consequential benefits after a lapse of 11 years and that too without putting the applicants on notice. It is by now well settled that in matters relating to seniority settled issues should not be disturbed/distorted after a long lapse of time.
When the respondents gave the date of, promotions to the HSG II in the year 1992, the applicants have a legitimate expectation which they have been nurturing since 1992, Now that the settled position cannot be unsettled in the year 2002 and without assigning any reasons and the contention of the respondents that the promotions given earlier are to be construed only as financial upgradations in our considered view cannot be accepted as the same unreasonable and such an argument goes against the letter and spirit of the communications issued by the respondents themselves from 1991 to 1993.
Therefore, this argument put forward by the' respondents has to fail."
5. It is seen that this judgement of the Madras bench was not placed before the Full Bench though convened and rendered the decision on 3"
18 of 28 January 2005. The text of the Full bench decision reads as under:
(a) The TBOP and BCR Schemes' introduced by the Department of posts are not promotion schemes to the next higher posts;
(b) The said schemes are not in conflict with the norms based promotion to LSG & HSG [I as provided in the Recruitment Rules. They are supplementary to the Rules.
The Principle of NBR will not be applicable in such scheme.
(c) The decisions in the case of Rajender Singh (supra) of the Principal bench and in the case of P. Rana Singh (supra) and Niranjan Mahali (supra) do not lay down the- correct law."
6. At the time of deciding similar grievance of similarly situated employees of the Postal Department in OA No.1223/03, the decision of the Full Bench was never brought to the notice of the Tribunal. However, on the basis of the decision of the Madras Bench of the Tribunal, this Tribunal in its order dated 24" June 2008 directed the respondents to consider/reconsider the case of the applicant, therein, in the light of the decision of the Madras Bench of the Tribunal."
and allowed the said OAs. The said order has been Implemented by the respondents, vide order dated 04.02.2015. Hence the same attained finality. The applicants have also relied upon the verdict given by the Hon'ble Apex court of India in the matter of "Inder Pal Yadav & Ors dated 18.04.1985 [1985 SCC(2) 648], 8.1. Rooplal Vs. Lt. Governor in CA No.5363-64/1997 dated 14.12.1999 and the judgment of the Kerala High court dated 11.01.2021 in W.A.No.1663/2020 in the 19 of 28 case Narayani Krishnan Vs, UOJ" on the issue that similarly placed employees those who could not come to the court need not be at a comparative disadvantage to those who rushed to the court, if they are otherwise similarly situated, they are entitled to similar relief.
6. On the other hand, the respondents have relied upon the subsequent orders passed by the co- ordinate Bench of CAT Cuttack in OA No.505/2018, MA No.872/2015 in & OA 596/2015, OA 942/2015 & OA No.666/2015 wherein by orders dated 27.03.2019, 17.03.2020, 16.03.2021 & 02.01.2020, the Cuttack Bench of CAT has rejected the said OAs on the ground of delay and latches. It is also to be noted that the order dated 02.01.2020 in OA 666/2015 has been challenged before the Hon'ble High court of Oris$a in W.P.(C). No.17143/2020. After going through the facts and the order passed by the CAT, Cuttack Bench, the Hon'ble High Court observed thus:
"07. The impugned order reveals that the Tribunal without considering the claim of the applicants on its own merit, rejected the Original Application only on the ground of limitation. Courts do not exist for the sake of discipline, but for the sake of deciding matters in' controversy. Since the Tribunal has not gone into the merits of the case, we set aside the impugned order and remit the matter back to the Tribunal for fresh disposal both on the question of limitation as well as merit. The Tribunal shall consider the claim of the petitioners sympathetically keeping in view the fact that the matter was pending since 2015 and 20 of 28 they have retired in the meanwhile. The Writ Petition is accordingly disposed of. "
and remitted the matter back to the Tribunal to give a thoughtful consideration. To the said orders passed by the _ CAT, Cuttack Bench relied upon by the respondents in support of their contention, we may refer here the order passed by the Hon'ble Apex Court of India in the matter of Inder Pal Yadav & Ors dated 18.04.1985 [1985 SCC(2) 648], S.I.Rooplal Vs. Lt. Governor in CA No.5363-64/1997 dated 14.12.1999 and the judgment of the Kerala High court dated 11.01.2021 in W.ANo. 1663/2020 in the case Narayani Krishnan Vs. UOI relied upon by the applicants. While considering the issue, the Hon'ble Courts have
- observed that the similar benefit has to be extended to the similarly situated persons. It has also been observed that an earlier judgment of another co-ordinate Bench of the same Tribunal is binding on the subsequent Bench. However, if the subsequent co-ordinate Bench is of the opinion that the earlier view taken by the same Bench is not correct it would refer the matter to a larger bench to avoid difference of opinion between two co-ordinate Benches but will not. overrule the Judgement of the co-ordinate Bench as it wil! ' be against all principles of Judicial discipline. After going through the judgements and orders relied upon by the respondents, we have seen that in the said order the Cuttack Bench of this Tribunal has rejected the OA on the sole ground of delay and latches and one of the matter has been remitted back by the Hon'ble-High Court of Orissa for 21 of 28 reconsidering the issue on its own merit. It is clear from the said fact that while passing the said orders, the Cuttack Bench of CAT has not looked Into the aspect of merit. Therefore, in our considered opinion, the said judgements are not applicable to the applicants' case in this OA. It is to be noted that the respondents have not uttered a single word in their reply regarding delay and limitation and it is not their case even while rejecting the representations of the applicants and not while filling the counter affidavit to oppose the claim of the applicants. Therefore the respondents' reliance upon the orders of the Cuttack Bench of CAT dismissing the OAs on the sole ground of delay and latches cannot be acceptable as the same is unreasonable and such an arguments goes against the letter and spirit of the communication issued by the respondents themselves from the year 1984 and 1991. Therefore, this arguments put forward by the respondents has to fall.
7. In the light of the above discussions, we hold that the applicants have made out a case and in the result have succeeded and the ends of justice would be met if the following orders are passed:
The impugned orders dated 27.05.2015, 16.06.2015, 17.07.2015, 10.08.2015, 26.08.2015, 03.09.2015, 07.09.2015, 09.09.2015, 16.09.2015, 21.09.2015, 23.09.2015 and 07.10.2015 respectively are hereby quashed and set aside.
22 of 28 The respondents are directed to consider the case of the applicants for extension of the benefit of judgments of this Hon'ble Tribunal made in O.A.No.679 of 2003 dated 19.03.2004 and the Judgment of the Cuttack Bench of this
- Hon'ble Tribunal made in O.A.No.1196 of 2004, O.A.Nos.
1213 - 1221 of 2004 dated 23.07.2008 and further direct to revise and re-fix the retirement service benefits of the applicants accordingly with all benefits.
The above said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
8. Accordingly, the OA is allowed. No order as to costs."
7. - Ld. counsel for the applicant, by way of additional typed set, relied upon the communication issued by the M/o. Communications, Department of Posts, dated 23.01.2015, addressed to the Chief Postmaster General, Odisha Circle, Bhubaneswar. The same is extracted hereunder:-
"Subject: Regarding implementation of the Hon'ble CAT's order dated 23.07.2008 in OA No. 1196/2004 & 1213 to 1221/2004 filed by Shri B N Lenka and others, Si, I am directed to refer to this office letter of even number dated 09.01.2015 an the above mentioned subject and to say that the proposal for implementing the order dated 23.07.2008 in OA No. 1196/2004 & 1213 to 1221/2004 filed by Shri B N Lenka and others upheld by the Hon'ble High Court of Odisha vide its Order dated 17.01.2012 has been examined in consultation with the Department of Personnel & Training and D/o Legal Affairs, Ministry of Law & Justice and it has been decided to 23 of 28 implement the same in respect of the applicants of this OA only.
2. It is, therefore, requested that the Circle may implement the aforesaid CAT's Order as specific to the applicants of the OA only under intimation to this office. The Hon'ble Tribunal may also be apprised accordingly.
3. This issues with the approval of the Competent Authority.
Yours faithfully.
(Alka Tewari) . Assistant Director General ( SPNY' + After seeking the legal advise from the DoP& T as well as M/o. Law and Justice, decision has been taken to implement the court orders in respect of the applicants of the OAs only.
8. Though the applicant has submitted detailed representation, dated 03.09.2012, wherein the applicant has pointed out his grievance in respect of promotion to the post of HSG II cadre as well as HSG-I cadre and in a Tabular Column, cited 17 employees, who have joined after the applicant, however, applicant's case has been rejected in one line that "The judgement in OA No. 73/10 filed by Sri T. Mani is in personam. Hence, the same cannot be applied to "3 you -
9. Learned counsel for the respondents vehemently opposed the arguments raised by the learned counsel for the applicant on the ground that admittedly the applicant has not been promoted to HSG-II cadre and the 24 of 28 applicant, who joined as Postal Assistant (PA) on 26.07.1968 at Salem East Postal Division and thereafter, transferred and joined in Namakkal Postal Division on 24.05.1972. Further, the applicant was promoted to the Lower Selection Grade (LSG) w.e.f. 25.05.2005 as per his seniority in the Divisional Gradation List of Namakkal Division. More over, the applicant is not fulfilling the eligibility condition of three years regular service in LSG cadre as on 1* Jan of the crucial year as per Department. of Posts (Posts and Telegraphs (Selection Grade Posts)] Recruitment (Amendment) Rules, 2006 and not the initial date of appointment in PA cadre. Moreover, 46 officials (under UR category), as quoted by the applicant, got their promotion prior to the applicant in the LSG cadre as per the Divisional seniority list. Hence, learned counsel for the respondents submits that the applicant is not entitled to, as well, he further submits that the applicant has not raised this issue prior to his retirement and first time he has submitted his representation in the year 2012.
10. Learned counsel for the respondents relied upon the order passed by the Hon'ble Supreme Court in Civil Appeal Nos. 5286-87 of 2005 with Nos. 3405 and 4542-46 of 2006, dated 06.09.2011, in the case of Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy & Ors. and submitted that though this Tribunal observed in the OA that TROP & BCR promotions are equivalent to LSG and HSG-II, however, observation of the Hon'ble Supreme Court in its order that this is only financial upgradation and not promotion.
25 of 28 LH. It is to be noted that as the respondents have themselves admitted that, first they followed the Circle Seniority List, subsequently, it was modified to the Divisional Seniority List and, then, finally, the Circle seniority List is accepted, This issue has been considered by this Tribunal, at length, in O.A. 73 of 2010, in its order, dated 26.07.2011, which was referred to above. We are reiterating the relevant paras once again, which are extracted as under:-
"13. Thus, when a common seniority was maintained and during intermediate period, there had been division in the common seniority list, which once again was got amalgamated, the seniority as existed prior to such divisionalization would hold the fort.
14, The applicant admittedly was senior to those 46 individuals, (We are not talking of the case of Deivasigamani and Kalilannan, who belong to a different category of Accounts Wing). Since promotion to the post of HSG H and I took place after restoring the circle seniority in 2006, the respondents were under an obligation to carry out the drill of rescheduling the seniority as of circle seniority right from the beginning in which event, the applicant becomes eligible for promotion.
15. In view of the above, the OA.
'succeeds. It is declared that the applicant is entitled to be considered for LSG on the basis of
26 of 28 common seniority and further promotion too én the basis of his promotion under the common seniority to the post of LSG.
16. We are aware that the the above would involve review of the DPC for various years and is also time consuming. Instead, it would be advisable to afford the applicant the promotion on notional basis in the grade of HSG Il and Grade from the earliest date any of his juniors had been promoted to the said grades. The notional promotion would entail notional fixation of pay (on the ground of no work no pay at the higher post) and the applicant's pay fixed in the higher grade of HS Grade | on the date of his superannuation and his terminal benefits worked out accordingly. Such terminal benefits, ie. difference in gratuity, leave encashment, commutation of pension and difference in pension shall be worked out and revised PPO shall be prepared and the applicant shall be paid the arrears arising out of such re-fixation of pay within a period of two months from the date of communication of this order.
17. No cost."
12, It is to be noted that the observation made by the Tribunal, in O.A. 73 of 2010, has not been challenged before any of the higher courts in respect of the common seniority which was maintained followed by - division of the \) 27 of 28 common seniority list which once again got amalgamated. Therefore, on the bare perusal of the fact that the applicant who came to be appointed in 1968, he ought to regain seniority among those persons who were appointed later. Therefore, the issue is squarely covered.
13. It is also to be noted it has already been settled by this Tribunal that TBOP & BCR promotions are equivalent to LSG and HSG -Il._ In view of the above, the applicant is entitled to similar relief as was granted by this Tribunal in the matter of T. Mani in O.A. 73 of 2010. Therefore, the respondents are directed to consider the applicant's case on the same lines. The O.A., is disposed of with the following direction:-
7. Inthe light of the above discussions, we hold that the applicant has made out a case and, in the result, the ends of justice would be met if the following order is passed:
The impugned order, dated 15.01.2013, is hereby quashed and set aside.
The respondents are directed to consider the case of the applicant for extension of the benefit of the judgments of this Hon'ble Tribunal made in O.A.No.679 of 2003 on 19.03.2004 and the judgment of the Cuttack Bench of this Hon'ble Tribunal made in O.A.No.1196 of 2004, O.A.Nos.
1213 - 1221 of 2004 on 23.07.2008 and further direct to revise and re-fix the retirement service benefits of the ' applicant, accordingly, with all consequential benefits.
28 of 28 The above said.exercise shall be completed within a period of three months from the date of receipt of a certified _ copy of this order."
Accordingly, the OA is allowed. No order as to costs.