Gujarat High Court
C N Raval - Retired Postal Assistant vs Union Of India & on 10 January, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
C N RAVAL - RETIRED POSTAL ASSISTANT....Petitioner(s)V/SUNION OF INDIA C/SCA/9047/2011 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9047 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE R.D.KOTHARI ================================================================ 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 ? ================================================================ C N RAVAL - RETIRED POSTAL ASSISTANT....Petitioner(s) Versus UNION OF INDIA & 2....Respondent(s) ================================================================ Appearance: MR MS RAO, ADVOCATE for the Petitioner(s) No. 1 MS MITA S PANCHAL, ADVOCATE for the Respondent(s) No. 3 RULE SERVED for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 10/01/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The petitioner, aged 61 years, a retired Postal Assistant, is before this Court being aggrieved by judgment and order dated 29.4.2011 passed by the Central Administrative Tribunal, Ahmedabad Bench in O.A. No.57 of 2010, by which the Hon ble Tribunal was pleased to dismiss the Original Application.
2. Heard learned advocate Mr.M.S.Rao for the petitioner. Learned advocate for the petitioner invited attention of the Court to the controversy involved in the matter. The present petitioner was serving as a Postal Assistant and in the year 2004, an order came to be issued on 27.5.2004, a copy of which is produced at Page-92. The order is issued by the Chief Post Master General, Ahmedabad City Division. The order pertains to, placement of Postal Assistants in higher scale of BCR (Bi-Annual Cadre Review) in Ahmedabad City Division. The opening part of the order reads as under :
Duly constituted DPC (Departmental Promotion Committee ) has recommended the following officials of your division for their placement in higher scale of BCR from the dates shown against their names...
2.1 The name of the petitioner appears at Serial No.29 and the date mentioned against his name is 01.01.2005 . The later part of the order reads as under :
You are therefore requested kindly to take further action for issue of suitable orders for their placement in BCR scale as effective from the date shown against each individual under intimation to this office.
It is also requested kindly to ensure that placement may not be given if any disciplinary case is pending or punishment is current. Before giving placement in the higher scale of BCR it should be satisfied that the conditions are fulfilled... (emphasis supplied).
3. Learned advocate for the petitioner then invited attention of the Court to Office Memorandum issued by the Department of Personnel and Training, a copy of which is produced at Page Nos.75 to 79. The title of that Office Memorandum reads as under :
Promotion of Government servants against whom disciplinary / court proceedings are pending or whose conduct is under investigation Procedure and guidelines to be followed. (emphasis supplied).
3.1 In this Office Memorandum, Para.2 is relevant for the purpose of deciding the controversy involved in the matter, which reads as under
:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee.
Government servants under suspension.
Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and Government servants in respect of whom prosecution for a criminal charge is pending.
(emphasis supplied).
4. Learned advocate for the petitioner then invited attention of the Court to the method and manner in which the case of the petitioner is dealt by the Department. This is clear from the office noting, a copy of which is available at Page-90 and 91. Typed version of that is available at Page-91(A) and 91(B). The office noting is to the effect that, this is regarding for promotion to BCR cadre year 2004. List of 41 - (forty one) officials are sent to CO for consideration in BCR. Out of them, 33 - (thirty three) officials recommended by DPC for their placement on higher scale of BCR as per list enclosed. If agree, we may issue order for their placement to next higher grade. There are adverse remark against following two officials who are promoted in BCR cadre year 2004.
(1) Shri R.G.Soneri Case under Rule 16 is pending PA, Kanpur Chakla in recovery from pay is continue case pending B2/2J/1/RG1/03 dated 23.10.03.
(2) Shri C.N.Raval Disciplinary Case under Rule 14 is contemplated....
(emphasis supplied).
4.1 Learned advocate for the petitioner vehemently submitted that the very fact that the office note itself shows that the disciplinary case was contemplated will not fall within any of the sub-clauses of Clause-2 of Office Memorandum of DoPT. That being so, the petitioner is denied his legitimate right.
5. Learned advocate for the petitioner submitted that the petitioner challenged the said action of the Department by filing O.A.No.57 of 2010 which came to be decided by judgment and order dated 29.4.2011, a copy of which is produced at Annexure-1 (Page-20 to 25). Learned advocate for the petitioner submitted that the Hon ble Tribunal misinterpreted the sub-clauses (1) to (3) of Clause-2 of Office Memorandum and came to the conclusion that even a case of contemplated proceedings will also be covered under sub-clauses (1) to (3) of clause-2 of Office Memorandum.
6. Learned advocate for the petitioner invited attention of the Court to a decision of the Apex Court in the matter of Union of India v. Sudha Salhan, reported in 1998 (3) SCC 394 = AIR 1998 SC 1094.
6.1 In considered opinion of the Court the ratio laid down by the said decision will be squarely applicable to the facts of the present case.
7. Learned advocate Ms.Mita S. Panchal for the Authorities could not convince this Court despite her strenuous efforts that the judgment and order of the Hon ble Tribunal is right.
8. This Court is of the considered opinion that the language of the Office Memorandum of DoPT is more than clear. Not even remotely it suggests that the cases of, contemplated proceedings are to be covered by the said Office Memorandum and therefore, the denial of the benefits of posting in the higher scale by the Authorities is unjust and unlawful and therefore, it ought to have been quashed and set aside by the Tribunal. This Court is of the opinion that the judgment and order of the Tribunal cannot be allowed to stand. The same is hereby quashed and set aside. The petition is allowed. The respondents are directed to confer all benefits of posting in higher scale at par with the other similarly situated persons which were given to them by order dated 5.8.2004
9. Learned advocate for the petitioner submitted that as the petitioner is deprived of his legitimate rights for no valid reason, the benefit should be directed to be paid along with interest.
10. The request is found to be reasonable. This is a case wherein there is no possibility of second opinion or interpretation of the contents of sub-clauses (1) to (3) of Clause-2 of the Office Memorandum. The office note prepared by the person concerned appears to have been motivated by extraneous consideration, otherwise such mistake could not have occurred and the petitioner would not have been made to suffer for no fault on his part. In view of that, the respondents are directed to confer all the benefits to the petitioner with interest @ 9% per annum from the date it became due and payable till the date it is actually paid.
11. Rule is made absolute.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) vipul Page 7 of 7