Kerala High Court
The Assistant Director (Staff) vs S.Janardhanan on 24 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938
WP(C).No. 37534 of 2008 (S)
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AGAINST THE ORDER IN OA 1024/2000 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 24-06-2008
PETITIONER(S)/RESPONDENTS 1 TO 4 IN THE OA:
------------------------------------------
1. THE ASSISTANT DIRECTOR (STAFF)
O/O THE CHIEF POST MASTER GENERAL, KERALA CIRCLE,
TRIVANDRUM - 33.
2. THE CHIEF POST MASTER GENERAL,
KERALA CIRCLE, DEPARTMENT OF POSTS, TRIVANDRUM - 33.
3. THE DIRECTOR GENERAL,
DEPARTMENT OF POSTS, NEW DELHI.
4. UNION OF INDIA, REPRESENTED BY THE
SECRETARY TO THE GOVERNMENT,, MINISTRY OF COMMUNICATIONS,
DEPARTMENT OF POSTS, GOVERNMENT OF INDIA,, NEW DELHI.
BY ADVS.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
SRI.P.M.M.NAJEEB KHAN, ADDL.CGSC
RESPONDENT(S)/APPLICANTS IN THE OA:
-----------------------------------
1. S.JANARDHANAN, POSTAL ASSISTANT,
O/O THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE,
TRIVANDRUM - 33.
2. S.KRISHNAVENI,
POSTAL ASSISTANT, O/O THE CHIEF POSTMASTER GENERAL, KERALA
CIRCLE, TRIVANDRUM - 33.
3. RAICHEL ANDREWS, POSTAL ASSISTANT,
O/O THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE,
TRIVANDRUM - 33.
4. P.G.SARASWATHI AMMAL,
POSTAL ASSISTANT, O/O THE CHIEF POSTMASTER GENERAL, KERALA
CIRCLE, TRIVANDRUM - 33.
WP(C).No. 37534 of 2008 (S)
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5. K.RATNAMMA,
POSTAL ASSISTANT, O/O THE CHIEF POSTMASTER GENERAL, KERALA
CIRCLE, TRIVANDRUM - 33.
6. K.VIJAYAKUMAR,
POSTAL ASSISTANT, O/O THE CHIEF POSTMASTER GENERAL, KERALA
CIRCLE, TRIVANDRUM - 33.
7. P.SATHEESH KUMAR,
LSG POSTAL ASSISTANT (TBOP), O/O THE CHIEF POSTMASTER
GENERAL, KERALA CIRCLE, TRIVANDRUM
8. V.R.BHADRAKUMAR,
LSG POSTAL ASSISTANT, O/O THE CHIEF POSTMASTER GENERAL,
KERALA CIRCLE, TRIVANDRUM
9. P.KOMALAM,
LSG POSTAL ASSISTANT, POST MASTER GENERAL'S OFFICE,,
COCHIN.
R1-3,5-6 BY ADV. SRI.M.A.SHAFIK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.06.2016, THE COURT ON 19-07-2016 DELIVERED THE FOLLOWING:
WP(C).No. 37534 of 2008 (S)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT. P1 TRUE COPY OF THE OA NO.1024/2000 FILED BY THE
RESPONDENT BEFORE THE CAT ERNAKULAM BENCH
EXT. P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
PETITIONERS.
EXT. P3 TRUE COPY OF THE MA FILED BY THE RESPONDENTS
EXT. P4 TRUE COPY OF THE REPLY TO THE MA DATED 3.4.2001
FILED BY THE PETITIONERS.
EXT. P5 TRUE COPY OF THE REJOINDER DATED 20..5.2001 FILED
BY THE RESPONDENTS.
EXT. P6 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED
06.12.2001 FILED BY THE PETITIONERS.
EXT. P7 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED
26.01.2002 FILED BY THE RESPONDENTS.
EXT. P8 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED
11.03.2002 FILED BY THE PETITIONERS.
EXT. P9 TRUE COPY OF THE CAT ORDER DATED 04.06.2002
DISMISSING THE O.A.
EXT. P10 TRUE COPY OF THE KERALA HIGH COURT JUDGMENT IN
W.P.(C)27926 OF 2002 REMITTING THE CASE BACK TO CAT.
EXT. P11 TRUE COPY OF THE CAT ORDER DATED 24.06.2008.
EXT. P12 TRUE COPY OF THE POSTS AND TELEGRAPHS (SELECTION
GRADE POSTS)RECRUITMENT RULES, 1976
EXT. P13 TRUE COPY OF THE DEPARTMENT OF POSTS (POSTS &
TELEGRAPHS (SELECTION GRADE POSTS) RECRUITMENT
(AMENDMENT)RULES,2002
EXT. P14 TRUE COPY OF THE DEPARTMENT OF POSTS (POSTS &
TELEGRAPHS (SELECTION GRADE POSTS) RECRUITMENT
(AMENDMENT) RULES, 2006
EXT. P15 TRUE COPY OF THE CAT ORDER DATED 11.06.2003 IN
O.A.No.516 of 2001
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
..............................................................................
W.P(C)No.37534 OF 2008
.........................................................................
Dated this the 19th July, 2016
J U D G M E N T
P.R. Ramachandra Menon, J.
Granting of the benefit of TBOP(Time Bound One Promotion) to the respondents, despite the admitted fact that they had not completed the requisite minimum service of '16 years' as on the relevant date in the concerned cadre, but for the reason that such benefit was given to juniors in the cadre, based on their total length of service, is the subject matter of challenge in this writ petition filed by the Departmental authorities. The contention is that the verdict passed by the Central Administrative Tribunal is quite contrary to the law declared by the Apex Court in R. Prabha Devi and others vs. Govt. of India [(1988) 2 SCC 233 and the administrative instructions issued in this regard, giving effect to the law declared by the Apex Court.
2. The respondents herein were working as Lower Division W.P(C)No.37534 OF 2008 2 Clerks (re-designated as Postal Assistants) in the Department of Posts. Considering the slender chance for promotion and as a measure to remove stagnation, a Time Bound One Promotion scheme ('TBOP' in short) was introduced, by virtue of which it was possible to get the next higher scale of LSG (Lower Selection Grade) to those who have completed 16 years of service. Based on the credentials of the employees concerned, the Department was giving the benefit of TBOP, by passing appropriate orders, which however was not extended to the respondents herein for want of qualifying service of 16 years in the cadre. However, pointing out that some of their juniors had already been given the benefit, they approached the Tribunal by filing O.A.1024 of 2000.
3. The claim was opposed from the part of the Department; mainly contending that the applicants, admittedly were not having the requisite service; that they were not justified in seeking to draw parity or analogy with the party respondents stated as juniors, particularly for the reason that the past service of the said respondents was also ordered to be considered by W.P(C)No.37534 OF 2008 3 virtue of other relevant proceedings, upon which they had satisfied the requirements of 16 years for granting the benefit of TBOP scheme; which, accordingly, was given to them. The applicants did not have any such past service and merely for the reason that their name came above the names of party respondents in the Gradation List, the benefit of TBOP was not liable to be extended to them. The law in this regard was stated as declared by the Apex Court in Prabha Devi's case(cited supra). After considering the rival pleadings, the Tribunal dismissed the O.A. 1024 of 2000, as per Ext.P9 judgment dated 04.06.2002.
4. The said verdict was sought to be challenged by filing O.P.No.27926 of 2002 by the respondents. After hearing, Ext.P9 order was set aside and as per Ext.P10 judgment dated 01.01.2008, this Court remanded the matter for fresh consideration also in the light of Exts.P7 and P11 marked in the OP., which were none other than the letters issued by the Director General on 08.02.1996 and 03.08.1997 respectively, which were produced as Annexures -A11 and A12 in the O.A. W.P(C)No.37534 OF 2008 4
5. Pursuant to the remand ordered by this Court, the matter was re-considered by the Tribunal. It was held by the Tribunal that, Prabha Devi's case decided by the Apex Court was having no application to the case in hand; that the recruitment rules could not have been superseded by administrative instructions; and further that no junior was entitled to get higher grade than a senior and since the juniors had been given the benefit of TBOP, it was directed to be extended to the applicants as well. The Tribunal ordered that the applicants shall be given the promotion to the next higher Grade of LSG under the TBOP scheme from the dates their juniors were promoted, further making it clear that their promotion shall only be 'notional' and that the actual benefits flowing therefrom shall be given from the date they are actually promoted. Ext.P11 order (dated 24.06.2008) passed by the Tribunal is under challenge in this writ petition.
6. Along with the writ petition, the petitioners have produced copies of the relevant rules as amended from time to time (Exts. P12, P13 and P14). It is also mentioned that a similarly situated W.P(C)No.37534 OF 2008 5 person by name Raichel Andrews had approached the Tribunal by filing O.A.No.516 of 2001 claiming similar benefits to have her placed in the HSG under the 'BCR scheme' (Biennial Cadre Review Scheme) with effect from the date on which her junior (none other than P.Komalam, the 9th respondent herein) was given the placement. The contentions in the said O.A. , (quite similar to those as made in the present O.A. 1024 of 2000) were held as devoid of any merit in view of the law declared by the Apex Court in Prabha Devi's case and accordingly, the O.A. was dismissed as per Ext.P15. It is stated that, Ext.P15 has become final and as such, it was absolutely not correct or proper for the Tribunal to have taken a different view.
7. Mr. P.M.M. Najeeb Khan, the learned counsel appearing for the petitioners points out that the legal position stands declared by the Apex Court in Prabha Devi's case (cited supra), by virtue of which unless the mandatory requirements/qualification are satisfied, there cannot be any instance of promotion, merely for the reason that a junior has been given promotion. It was pursuant to the said declaration of law by the Apex Court, that W.P(C)No.37534 OF 2008 6 necessary clarification/administrative instructions were issued to govern the field, as borne by Annexure R1(c) dated 17.05.2000. As such, the observation and the finding made by the Tribunal that administrative instructions cannot override the rule as made in paragraphs 22 of Ext.P11 verdict, is not correct or sustainable. We find considerable force in the said submission.
8. The applicants had cited the instance of promotion given to the respondents 7 to 9 under the TBOP scheme, as the basis to grant similar benefits to the applicants as well. According to the applicants, the aforesaid respondents were juniors in the Gradation List. In the case of persons at Sl.Nos. 7 and 8, they had approached the Tribunal by filing O.A.1410 of 1995 for various reliefs. The said respondents were applicants 3 and 4 in the said O.A. The Tribunal had directed to grant them seniority w.e.f. the dates of their initial engagement as RTP Sorting Assistants in the RMS, prior to their joining the Circle Office, which was complied with; whereby the dates of their commencement of continuous service were re-fixed as 27.07.1982 and 25.07.1982 respectively. Based on the said W.P(C)No.37534 OF 2008 7 verdict passed by the Tribunal, the total length of their service was counted as more than 16 years; thus satisfying the requirement for granting the TBOP benefit. This accordingly was given to them based on the total length of service and not with reference to the seniority position in the Gradation List. The position was explained in the reply affidavit filed by the Department in the instant case. This aspect has not been properly considered by the Tribunal while passing Ext.P11. This Court finds that no analogy could have been drawn by the applicants to the case of respondents 7 and 8 in the said circumstance.
9. With regard to the instance of the 9th respondent by name P. Komalam, it is clearly revealed from the pleadings before the Tribunal that the said case also stands on a different footing . As a matter of fact, the 9th respondent was a Rule 38 transferee to the Kerala Postal Circle, from the Bombay Circle and her placement under the TBOP Scheme was by taking into account the whole service, which came to be more than 16 years. The concerned respondents, with whom analogy was sought to be W.P(C)No.37534 OF 2008 8 drawn, were working in the very same postal department, though in different segments (either Railway Mail Service or different Regions/Circles) and as such, it is not an instance where the past service of an employee in a different establishment or employer has been reckoned for the purpose of granting the benefit of TBOP. As it stands so, the judgment rendered by the Apex Court in JT 1992 (1)SC 48 (Chief Engineer-cum Secretary vs. Jagdish Mittar) cited by the learned counsel for the applicants, contending that the past service of the juniors ought not to have been reckoned, does not impress this Court. In the said case, it was in respect of the service rendered by the concerned employees in the C.P.W.D (Central Public Works Department), who got selection and appointment subsequently under the Chandigarh Administration. The learned Counsel for the applicants however points out that there is an observation by the Apex Court in paragraph 5 of the judgment, whereby the rights and interests of a senior is protected, the said paragraph reads as follows:
"We may however, observe that if any junior of the W.P(C)No.37534 OF 2008 9 respondent is given selection grade on the basis of the aforesaid guidelines it is proper that the respondent is also placed on the same scale since the denial of such benefits to senior would be discriminatory. No junior in the same grade could be given a higher pay scale than his senior unless the pay of the junior is personal to him."
This court does not find anything favourable to the applicants from the aforesaid paragraph. The question considered by the Apex Court in the said case was whether selection scale could have been given to the respondent, unless he satisfied the requisite extent of '15 years' of service. The relevant guidelines stipulated that selection grade will not be admissible to an officer, unless he had completed '15 years' of service, which should either be in the basic scale where appointment to the basic scale is from the point of fresh entry into service or as the sum total of employees' service in the basic scale and in the one scale next below. Instead of reckoning the service strictly in the aforesaid terms of the guidelines, the Tribunal granted the relief to the claimant ordering to count the 'sum total' of the applicant's service, rendered as Jr. Engineer in the CPWD and also in the W.P(C)No.37534 OF 2008 10 post of Asst. Engineer in the Chandigarh Administration. This according to the Apex Court was wholly wrong and due to misconstruction of the guidelines. It was accordingly held that the respondent was not entitled to count the service in the lower scale in the CPWD for the purpose of earning selection grade in the Chandigarh Administration. It was thereafter that an observation was made in paragraph 5 as extracted above, which is having only a limited application to the given facts and circumstances therein and does not advance the case of the applicants herein, in any manner.
10. The circumstances under which higher placement was given to the persons listed in Annexure-A10 stand explained in the pleadings raised before the Tribunal and reiterated in the O.P; in as much as their junior one Natarajan, who did not qualify the departmental test was given the benefit of TBOP scheme, to the exclusion of his seniors. It was on receipt of clarification issued by the Ministry of Communication vide Annexure-R1(B), that the 22 individuals concerned were promoted. There is no dispute that the minimum eligibility/requirement to get the benefit of W.P(C)No.37534 OF 2008 11 TBOP is '16 years' of service in the cadre, which admittedly the respondents are not having. The legal position stands declared by the Apex Court in Prabha Devi's case (cited supra). The question of seniority for the purpose of promotion will be considered amidst the eligible candidates and that mere seniority will not entitle one for promotion. The question considered by the Apex Court, as dealt with in the opening paragraph, was whether the service rules requiring '8 years' of approved service as Section Officer, both for the direct recruits as well as for promotees, for being eligible for consideration for promotion to the Grade I post in the Central Secretariat Service was arbitrary, being in contravention of Articles 14 and 16 of the Constitution of India. The validity of the relevant rule was upheld and appeals were dismissed, affirming the verdict already passed by the Tribunal in this regard. It was to give effect to the legal position declared by the Apex Court, that the Ministry issued Annexure- R1C administrative instruction on 17.05.2000, in super-session of the earlier orders, making it clear that unless the condition of having '16 years' of service as provided in the TBOP scheme W.P(C)No.37534 OF 2008 12 was fulfilled, there was no question of granting promotion to the contrary. This being the position, the observation made by the Tribunal in paragraph 17 as well as in paragraph 22 of Ext.P11 order, holding that the statutory rule was upset by administrative action, does not hold good; more so since the law declared by the Apex Court is the law of land by virtue of Article 141 of the Constitution of India.
11. From the above discussion, it can be clearly inferred that the benefit of TBOP given to respondents 7, 8 and 9 was based on the actual length of service, also reckoning their past service in the RMS/Bombay Circle and that no such benefit was claimed by the applicants in the instant case. The applicants do not dispute the fact that they are not having the requisite extent of 16 years' of service, so as to grant the benefit of TBOP scheme; but for the case moulded with reference to granting of benefit to their juniors in the Gradation List. By virtue of the declaration of law as mentioned herein before, and by virtue of the glaring difference between the factual parameters between the applicants and the respondents 7 to 9 and those mentioned W.P(C)No.37534 OF 2008 13 in Annexure A10, this Court finds that the declaration made by the Tribunal in Ext.P11 order is not liable to the sustained. Since the applicants/respondents 1 to 6 are admittedly not having the requisite length of service of 16 years to have granted the benefit of TBOP, as on the date of granting the benefit to their juniors in the Gradation List, Ext.P11 stands set aside. It is however made clear that, this will not bar the way of the applicants in getting the benefits of the TBOP scheme, strictly in terms of scheme, i.e., on satisfaction of the requisite extent of minimum service, on which event, the benefits flowing therefrom shall be disbursed to them accordingly.
The writ petition is allowed. No cost.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk