Central Administrative Tribunal - Cuttack
Rabin Kumar Sethi vs D/O Post on 26 July, 2019
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 327 of 2015 Present: Hon'ble Mr. Gokul Chandra Pati, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) OA 327 of 2015 Rabin Kumar Sethi, aged about 53 years, S/o Late Prahnanath Sethi, Postal Assistant, Khurda Head Post Office, Khurda, R/o Balichhak Sahi, PO - Jatni, Dist. - Khurda.
OA 328 of 2015 Surendra Narayan Sahoo, aged about 59 years, S/o late Janaradana Sahoo, Asst. Postmaster (SB), Khurda HO, Khurda, R/o At/PO - Nursinghpur, Dist. - Nayagarh.
OA 329 of 2015 Benudhar Jena, aged about 58 years, S/o Late Lokanath Jena, Postal Assistant, Khurda HO, Khurda, R/o Khati Sahi/PO - Chilik Nuapada, Dist. - Puri.
OA 330 of 2015 Satrughna Pradhan, aged about 59 years, S/o Late Ananta Pradhan, PRO (P) Puri HO, Puri, R/o At-Raghupati Nagar, PO - Puri-2, Dist. - Puri.
OA 331 of 2015 Raj Kumar Suar, aged about 54 years, S/o Raghunath Suar, Postal Assistant, Sakhigopal Sub Post Office, Puri, R/o Bimanbadu Sahi, PO/Dist-Puri.
OA 332/2015 Biswanath Jena, aged about 58 years, S.o Late Dhabaleswar Jena, SPM, Retang Colony, Sub Post Office, Jatani, Dist. - Khurda.
OA 333 of 2015 Haldhar Das, aged about 59 years, S/o Late Shyamsundar Das, SPM, Manikarnika Sub Post Office, Puri, R/o Matimandap Sahi, PO/PS/Dist-Puri.
OA 846 of 2015 Brahma Keshava Rao, aged about 60 years, S/o Late Jagannath Rao, Ex-Section Supervisor (LSG), O/o Post Master General, Berhampur Region, Berhampur, Ganjam, Vill/Post/PS - Aska, Dist. - Ganjam.
OA 27 of 2016 Narayan bharsagar, aged about 67 years, S/o Late Khesethri Bharsagar, Vill - Sanasamura, PO - Kartang, PS - Binka, Dist. - Subarnapur.
OA 557 of 2018 Bishnu Charan Swain, aged about 72 years, S/o Late Bholanath Swain, R/o Belatala, Via - Pattamundai, Dist. - Kendrapada.
......Applicants VERSUS Respondents in OA 327/2015, OA 328/2015, OA 329/2015, OA 330/2015, OA 331/2015, OA 332/2015, OA 333/2015 :
1. Union of India, represented through its Director General of Posts, Ministry of Communications, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi - 110001.2
2. The Chief Postmaster General, Odisha Circle, Bhubaneswar, Dist. - Khurda, Pin - 751001.
3. The Sr. Superintendent of Posts Offices, Puri Division, Puri-1.
Respondents in OA 557 of 2018 :
1. Union of India, represented through its Director General of Posts, Ministry of Communications, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi - 110001.
2. The Chief Postmaster General, Odisha Circle, Bhubaneswar-751001.
3. Assistant Director (Staff), O/o Chief Post Master General, Odisha Circle, Bhubaneswar-01.
4. The Superintendent of Post Offices, Balasore Division, Balasore, Dist. Balasore, Pin - 756001.
Respondents in OA 27/2016, OA 846 of 2015 :
1. Union of India, represented through its Director General of Posts, Ministry of Communications, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi - 110001.
2. The Chief Postmaster General, Odisha Circle, Bhubaneswar, Dist. - Khurda, Pin - 751001.
3. The Superintendent of Post Offices, Bolangir Division, Bolangir.
4. The Secretary, Dept. Of Personnel & Training, Ministry of Public Grievance & Pension, Govt. of India, New Delhi.
For the applicant : Mr.B.Moharana, counsel (OA 327, 328, 329, 330, 331, 332 and 333 of 2015) Mr.D.K.Mohanty, counsel (OA 27/16 & OA 846/15) Mr.S.Patra, counsel (OA 557/2018) For the respondents: Mr.P.K.Mohanty, counsel (OA 327/15) Mr.B.Swain, counsel (OA 27/16, 331/15, 557/18) Mr.B.P.Nayak, counsel (OA 328/15) Mr.C.M.Singh, counsel (OA 329/15) Mr.M.R.Mohanty, counsel (OA 330/15) Mr.G.R.Verma, counsel (OA 332/15) Mr.A.K.Mohapatra, counsel (OA 333/15, OA 846/15)) Heard & reserved on : 16.7.2019 Order on : 26.7.2019 O R D E R Per Mr. Gokul Chandra Pati, Member (A) In all these OAs the issues to be decided are common and facts are similar. Therefore these OAs were taken up for consideration and heard together as agreed by the counsels of all the parties. The reliefs prayed in these OAs are mentioned below :
3Reliefs prayed for in OA 327/2015, OA 329/2015, OA 331/2015, OA 332/2015, OA 333/2015 "(i) To quash the order dated 10/13.4.2015 under Annexure A/5;
(ii) To issue directions to the respondents to treat the promotion to LSG as regular promotion and promote the applicant to HSG-II after eight years of LSG and HSG-I after three years of HSG-II cadre retrospectively with all consequential benefits;
(iii) And pass such other orders or directions as the Hon'ble Tribunal may deem just and proper."
Reliefs prayed for in OA 27/2016 "(i) To quash the order dated 20.11.2015 under Annexure A/7;
(ii) To direct the respondents to promote the applicant to LSG, HSG after 8 years of LSG and HSG-I after 3 years of HSG-II cadre retrospectively with all consequential benefits.
(iii) To pass any other order(s) as deem fit and proper."
Reliefs prayed for in OA 557/2018 "(i) The order dated 24.7.2018 under Annexure A/6 be quashed;
(ii) The respondents be directed to treat promotion of the applicant to LSG as regular promotion, to consider the case of the applicant for promotion to next higher grade i.e. HSG-II after eight years of LSG and HSG-I after three years of HSG-II with all consequential benefits;
(iii) Pass any other order/orders as would be deemed just and proper."
Reliefs prayed for in OA 328/2015, OA 330/2015 "(i) To quash the order dated 10.4.2015 under Annexure A/5;
(ii) To issue directions to the respondents to treat the promotion to LSG as regular promotion and promote the applicant to HSG-II after eight years of LSG and HSG-I after three years of HSG-II cadre retrospectively with all consequential benefits;
(iii) And pass such other orders or directions as the Hon'ble Tribunal may deem just and proper."
Reliefs prayed for in OA 846/2015 "(i) To quash the order dated 23.9.2015 under Annexure A/7;
(ii) To direct the respondents to promote the applicant as LSG after completion of 16 years of regular service i.e. 1997, HSG-II after 8 years of LSG and HSG-I after 3 years of HSG-II cadre retrospectively with all consequential benefits.
(iii) To direct the respondents to calculate and disburse the differential salary and give the higher pension to the applicant.
(iv) To pass any other order(s) as deem fit and proper."
2. It is seen from the above that the most relevant issue to be decided in all these OAs is whether the applicant would be eligible for promotion to HSG-I 4 retrospectively with all consequential benefits in view of the law laid down in different judgments of the Tribunal as well as of Hon'ble High Court. Brief facts of the OAs :
3. In OA 327/2015, the applicant joined as Postal Assistant on 8.3.1982 and he claims that he was eligible for the benefit under the scheme of Time Bound One Promotion Scheme (in short TBOP) after completion of 16 years of service. The scheme of Biannual Cadre Review (in short BCR) was also launched in 1991 for the benefit of promotion to LSG cadre after completion of 8 years. The applicant states in the OA that he was promoted to LSG cadre after completion of 16 years of regular service on 5.12.1997 and he applicant claims the benefit of HSG-II after 8 years from the date of promotion to LSG cadre and to the scale of HSG-I after completion of 3 years in HSG-II in the light of the order dated 4.2.2015 (Annexure A/3) passed by the respondents allowing such benefits on notional basis to other employees who are stated to be similarly placed as the applicant in pursuance to the order dated 23.7.2008 of this Bench of CAT passed in OA 1196/2004. This order was challenged by the respondent department before the Hon'ble High Court and vide order dated 17.1.2012 the Hon'ble High Court dismissed the writ petition. The respondents thereafter filed SLP before Hon'ble Apex Court and the said SLP was dismissed on 9.1.2013. Thereafter the respondents implemented the directions of the Tribunal vide the order dated 4.2.2015 (Annexure A/3) giving retrospective benefit of HSG-II and HSG-I scales on notional basis. The applicant then submitted a representation on 9.3.2015 (Annexure A/4) to the respondents to extend similar benefit to him since it has been extended to other similarly placed employees vide order dated 4.2.2015. But the said representation has been rejected vide order dated 10/13.4.2015 (Annexure A/5) which is impugned in this OA.
4. In OA 27/2016, the facts are similar except some minor differences. In this case, the applicant was appointed as Postal Assistant on 24.10.1968 and although the applicant was promoted to LSG cadre on 21.8.2007, he claims to be promoted retrospectively after completion of 16 years as per the scheme applicable for TBOP and HSG-II and HSG-I cadre after completion of required years of service in LSG. It is stated that the benefit of HSG-II and HSG-I from the date of entitlement was not allowed to the applicant. It is averred in the OA that he is entitled to the benefit of the order dated 23.7.2008 of the Tribunal passed in OA 1196/2004, which was upheld by Hon'ble High Court. In pursuance to the aforesaid order of the Tribunal, the respondents issued the order dated 4.2.2015 (Annexure A/4) by which other similarly placed employees were given the benefit of HSG-II and HSG-I retrospectively on notional basis. It is claimed in para 4.9 of the OA that the employees who are juniors to the applicant have been given the benefit of retrospective notional 5 promotion to LSG/HSG-II and HSG-I vide order dated 4.2.2015 (Annexure A/4), while ignoring the case of the applicant. The applicant, filed the OA No. 422/2015, which was disposed of with a direction to the respondents to dispose of the representation dated 7.4.2015 filed by the applicant before the respondents for similar benefit as extended to the employees junior to him vide order dated 4.2.2015 (Annexure A/4). The representation has been rejected vide order dated 20.11.2015 (Annexure A/7) which is impugned in this OA. It is further stated that the applicant was given the benefit of HSG-II w.e.f. 1.1.1995 after completion of 26 years of service and claimed benefit from earlier dates. He retired from service on 31.5.2008. It is stated that if the same benefits are also allowed to the applicant on notional basis, then he will be entitled for higher pension.
5. In OA 557/2018, the applicant was appointed as UDC on 13.7.1972 and was allowed promotion to LSG cadre w.e.f. 1980 as Supervisor and was also promoted under modified BCR scheme w.e.f. 1.10.1991. On 26.8.2005 he was promoted to HSG-II rank. It is stated in the OA that vide order dated 4.2.2015 (Annexure A/3 of the OA) his juniors were allowed the benefit of promotion retrospectively on notional basis on the basis of the order in OA No. 1196/2004 and accordingly he filed representation dated 11.4.2015 (Annexure A/4) for similar benefits. On this representation no action was taken by the respondents, who issued a fresh order dated 23.2.2018 (annexure A/5). The applicant submitted another representation dated 14.5.2018 which has been rejected vide order dated 24.7.2018 (Annexure A/6) on the ground that such benefit was granted to the applicants of OA No. 1196/2004 and it was specific to the applicants of the OA No. 1196/2004. Being aggrieved, this OA has been filed on the ground that the applicant had no knowledge of the judgment passed by Madras Bench of CAT in OA 679/2003 and also in OA 1196/2004 and he came to know after the memo dated 4.2.2015 (Annexure A/3) was issued by the respondents promoting his juniors to the cadre of LSG, HSG-II and HSG-I retrospectively after completion of stipulated period of service in pursuance to the Tribunal's order. The claim is that since his juniors are given the benefit the same benefit should be also given to the applicant. It is seen that the order dated 4.2.2015 (Annexure A/3) was modified by the respondents by retaining the identical benefits to 10 employees granted vide order dated 4.2.2015 and by mentioning that the said order will be applicable for the applicants of OA No. 1196/2004 only (Annexure A/5). In this case although it is not mentioned in the OA as to date of retirement of the applicant, but it is seen from the OA that the age of the applicant as on the date of filing the OA was mentioned to be 72 years, which implies that he has retired about 12 years prior to filing this OA.
66. In OA 846/2015, the applicant joined as Postal Assistant on 26.6.1981. After completion of 26 years of service he was given the next higher scale under BCR Scheme on 8.1.2008. He was promoted to LSG w.e.f. 23.7.2014. But he was not granted the benefit of HSG-II and HSG-I from the date of his entitlement, although he was granted upgradation under the BCR Scheme after completion of 26 years of service w.e.f. 1.1.2008. The applicant made a representation to the authorities and for non-consideration of the said representation, he filed the OA No. 374/2015, which was disposed of on 3.7.2015 with a direction to the respondents to dispose of the representation within 2 months. The respondents rejected the representation on the ground that TBOP was not at par with LSG. His grievance is that without giving the benefit to him, his juniors were given the benefit as per the order dated 4.2.2015 (Annexure A/4). He retired from service on 30.9.2015.
7. In OA 329/2015, the applicant joined service as Postal Assistant on 24.2.1981. He was promoted to LSG cadre after completion of regular service of 16 years on 20.2.1997. The applicant claims to be entitled for promotion to HSG-II cadre after completion of 8 years in LSG cadre and to HSG-I cadre after 3 years of regular service in HSG-II. It is stated that by order dated 4.2.2015 the respondents have notionally promoted similarly situated persons to the cadre of LSG/HSG-II and HSG-I retrospectively from date of their entitlement while ignoring the case of the applicant. The applicant made representation to the respondent authorities praying for extending the similar benefit as has been extended to the similarly placed persons but the same has been rejected vide order dated 10/13.4.2015 which is impugned in this OA. It is seen that on date of filing the OA was 58 years.
8. In OA 331/2015 the applicant joined service as Postal Assistant on 21.8.1984 and was promoted to LSG cadre after completion of regular service of 16 years on 8.9.2000. The applicant claims to be entitled for promotion to HSG-II cadre after completion of 8 years in LSG cadre and to be promoted to HSG-I after 3 years of regular service in HSG-II cadre. Since he was not granted the said benefit from the date of his entitlement, he made a representation to the authorities on 18.3.2015, but the same has been rejected vide order dated 10/13.4.2015 (Annexure A/5) which is impugned in this OA. The applicant was 54 years as per the declaration made in the OA.
9. In OA 332/2015, the applicant joined service as Postal Assistant on 13.8.1979 and was promoted to LSG cadre on 13.8.1995 after completion of regular service on 16 years. The applicant claims that he was entitled to be promoted to HSG-II cadre after completion of 8 years in LSG cadre and to be promoted to HSG-I after 3 years of regular service in HSG-II. But he was not granted the said benefit from the date of his entitlement. By order dated 4.2.2015 the respondents have notionally promoted similarly situated persons 7 to the cadre of LSG/HSG-II and HSG-I from the date of their entitlement. The applicant made representation to the respondent authorities on 9.3.2015 (Annexure A/4) praying for extending the similar benefit as has been extended to the similarly placed persons, but the same has been rejected vide order dated 10/13/4/2015 (Annexure A/5) which is impugned in this OA. It is noted that on the date of filing the present OA, the applicant was 58 years.
10. In OA No.333/2015, the applicant joined service on 25.8.1979 as Postal Assistant. He was promoted to LSG cadre under TBOP scheme w.e.f. 24.8.1995 after completion of regular service of 16 years and to HSG-II under BCR scheme w.e.f. 1.7.2008. The applicant made representation to the respondents on 18.3.2015 to extend the benefit as extended to similarly placed persons vide order dated 4.2.2015 (Annexure A/4). The representation has been rejected vide order dated 10/13.4.2015 which is impugned in this OA. It is seen that the age of the applicant as on the date of filing the OA was mentioned to be 59 years.
11. In OA 328/2015, the applicant joined service as Postal Assistant on 20.7.1989. He was promoted to LSG cadre after completion of regular service of 16 years on 20.7.1995. The applicant claims that he was entitled to be promoted to HSG-II cadre after completion of 8 years in LSG cadre and to HSG- I after 3 years of regular service and he was not granted the said benefit from the date of his entitlement. But vide order dated 4.2.2015, the respondents have notionally promoted similarly situated persons to the cadre of LSG/HSG- II and HSG-I from the date of their entitlement. The applicant made representation to the respondent authorities on 9.3.2015 (Annexure A/4) praying for extending the similar benefit as has been extended to the similarly placed persons but the same has been rejected vide order dated 10.4.2015 (Annexure A/5), which is impugned in this OA. It is seen that on the date of filing of the OA, the applicant was 59 years.
12. In OA 330/2015 the applicant joined service as Postal Assistant on 14.2.1979. He was promoted to LSG cadre after completion of regular service of 16 years on 31.7.1995 and claims to be entitled for promotion to HSG-II cadre after completion of 8 years in LSG cadre and to be promoted to HSG-I cadre after 3 years of regular service. He made representation to the authorities on 18.3.2015 claiming benefits granted to others vide order dated 4.2.2015, but the same has been rejected vide order dated 10.4.2015 (Annexure A/5) which is impugned in this OA. The applicant was 59 years on the date of filing of the OA.
13. From above, it is noticed that in all the OAs, the applicants have claimed the benefits allowed to other similarly placed employees who are also claimed to be juniors to the applicants in some of the OAs, by placing them in HSG-II and HSG-I cadre on promotion retrospectively from the date of their eligibility 8 in accordance with the order dated 23.7.2008 of this Tribunal in OA No. 1196/2004 vide order dated 4.2.2015 issued by the respondents. The respondents have implemented the order of the Tribunal after dismissal of the SLP filed by the respondents before Hon'ble Apex Court. All the applicants have represented to the authorities in 2015 for similar benefits after issue of the order dated 4.2.2015 and then filed these OAs when the representations were rejected. At the time of submission of the representation, some of the applicants had also retired from service long back and the applicants in some of the OAs were in service. Hence, the factual circumstances in all these OAs are similar and all the applicants in these OAs rely on the order dated 23.7.2008 of this Tribunal in OA No. 1196/2004 which was upheld in higher forum. The applicants have also relied on the order dated 4.2.2015 of the respondents by which the order dated 23.7.2008 of the Tribunal has been complied with in respect of the applicants of the OA No. 1196/2004.
14. The respondents have opposed the claim of the applicant in these OAs on the ground that the Director General of Posts has decided to implement the order dated 23.7.2008 only for those employees who were applicants in that OA since as per the rules while the financial upgradation under TBOP/BCR are given after completion of 16/26 years of service, but promotion to LSG/HSG-II is considered subject to availability of vacancy in the norm based posts after recommendation of their case by the DPC. Hence, getting the benefit of upgradation under TBOP/BCR is different from getting promotion under LSG and HSG-II and the applicants cannot be treated to be promoted to LSG from the date of availing TBOP upgradation, which is not a promotion.
15. We have heard learned counsel for the applicants in these OAs, who have also submitted the written notes in all the OAs except for the OA No. 557/2018. Since the issues raised in the OA No. 557/2018 are similar to the issues raised in other OAs, this OA was also heard together with other OAs with consent of the learned counsel for both the parties at the time of admission, before issue of notice to the respondents.
16. The submissions of the applicants' counsels in these OAs were three fold. First line of argument on the issue of delay, the submission was that since in effect the applicants would be getting higher pension if the reliefs are allowed, it should be treated as a continuing cause of action for which, no limitation will apply. Learned counsel for the applicant in OA no. 27/2016 has enclosed the following judgments of Hon'ble Apex Court in support of his argument in this line:-
i) Union of India & Others -vs- Tarsem singh [(2008) 2 SCC (L&S) 765]
ii) Collector, Land Acquisition, Anantnag and another -vs- Mst. Katiji & Others [AIR 1987 SC 1353] 9
iii) Hemlata Verma -vs- M/s ICICI Prudential Life Insurance Co. Ltd.
& Anr. [Civil Appeal No. 5131/2019 disposed of on 1.7.2019] Learned counsel for the applicant in OA No. 27/2016 also argued that there was no delay in this case as one of the grounds taken in the OA was that the applicant's junior was allowed the benefit of retrospective promotion on notional basis from the date of their eligibility by the order dated 4.2.2015, which is the cause of action for the applicant and hence, there was no delay in filing this OA.
17. The second line of argument by the learned counsels for the applicants was that the order dated 23.7.2008 of this Tribunal in 1196/2004 was a judgment in rem and as per the ratio of the judgment of Hon'ble Apex Court in the case of State of Uttar Pradesh and others Vrs. Arvind Kumar Srivastava and others reported in (2015) 1 SCC (L&S) 191, it was held that for claim to get the benefit of a judgment in rem, delay will not apply. It is stated that the order dated 23.7.2008 was upheld by Hon'ble High Court and the SLP filed by the respondents against the order of Hon'ble High Court was dismissed by Hon'ble Apex Court and the ratio decided in OA No. 1196/2004 was that the employees were entitled for the benefit of promotion to HSG-II/HSG-I cadre by treating TBOP and BCR benefits allowed to the employees as LSG and HSG-II promotions. It was argued that this ratio will be applicable to the case of the applicants who are similarly placed as the employees who were allowed the benefit in pursuance to the order dated 23.7.2008 of this Tribunal.
18. The third line of argument by the applicants' counsel was that in the writ petition W.P.(C) No. 7015 of 2017 in the case of Union of India vs. Niranjan Nayak before Hon'ble High Court of Orissa (the judgment relied by the respondents' counsels in their arguments), the issue whether the order dated 23.7.2008 was a judgment in rem or in personam was not considered, for which, the judgment in the aforesaid writ petition will not be applicable to the present OA.
19. Learned counsels for the respondents in all the OAs broadly reiterated the stand taken in the Counter that the Directorate has treated the order dated 23.7.2008 to be applicable for the applicants of the OA No. 1196/2004 only, which implies that the authorities have treated the said order to be the judgment in personam. The respondents' counsel also cited the judgment of Hon'ble High Court of Orissa in the W.P.(C) No. 7015 of 2017 in the case of Union of India vs. Niranjan Nayak, in which Hon'ble High Court has disallowed identical claims for the employees who were allowed the relief by the Tribunal following the order dated 23.7.2008 passed in the OA No. 1196/2004. It was submitted on behalf of the respondenst that the applicants did not raise their grievances in time for which the OA is barred by limitation. It was also submitted that following the judgment in the case of Niranjan Nayak (supra), 10 this Tribunal has dismissed the OAs filed by the employees under similar circumstances vide order dated 27.3.2019 of this Tribunal passed in the OA No. 505/2018 with a batch of other OAs. Written note of submissions were also furnished by the respondents' counsels in these OAs summarising the points made at the tile of hearing as well as in the pleadings.
20. We have carefully considered the submissions of learned counsels for both the sides and also gone through the pleadings on record. From the pleadings and submissions the following issued are required to be decided in these OAs:-
(i) Whether the judgment dated 24.07.2018 of Hon'ble High Court in W.P.(C) No. 7015 of 2017 in the case of Union of India vs. Niranjan Nayak will be applicable to these OAs.
(ii) Whether the order dated 23.7.2008 of the Tribunal in OA No. 1196/2004 is a judgment in rem, as claimed by the applicants' counsels.
(iii) Whether the order dated 4.2.2015 of the respondents granting the benefits to similarly situated employees and juniors to some of the applicants will be treated as a fresh cause of action for the purpose of limitation for these OAs in which the applicants claim same benefits as allowed to other similarly placed employees or juniors vide order dated 4.2.2015.
21. We will consider the issue no. (i) and (ii) together as one of the arguments advanced by the applicants' counsel was that since the issue no. (ii) was not considered by Hon'ble High Court while passing the judgment dated 24.07.2018 in W.P.(C) No. 7015 of 2017, the said judgment will not be applicable to the present OAs. W.P.(C) No. 7015 of 2017 was filed by the respondents challenging the order dated 18.8.2016 of this Bench of the Tribunal in OA No. 318/2016 (Sri Niranjan Nayak vs. Union of India and others) alongwith other OAs with similar facts and issues. In OA No. 318/2016, the applicant had joined the respondent-department on 23.9.1976 in Group D and was promoted to Group C on 31.7.1981. He was allowed the benefit of TBOP promotion on 31.7.1997 and BCR benefit on 31.7.2008. He claimed that the TBOP/BCR benefits are promotions to LSG/HSG-II for which he should have been promoted to HSG-II on 31.7.2005 and to HSG-I on 31.7.2008. He was aggrieved since he was not allowed such benefit where as the respondents allowed same benefit to some other employees who were similarly situated after the order dated 23.7.2008 of this Tribunal in OA No. 1196/2004. Thereafter, the applicant made representation on which no decision was taken. The applicant retired from service and filed earlier OA which was disposed of directing the respondents to dispose of the representation. Then the respondent no. 2 passed the order dated 1.5.2015 rejecting the representation. The Tribunal, following the order dated 23.7.2008 in OA No. 1196/2004 had 11 allowed the OA vide order dated 18.8.2016, which was challenged in W.P.(C) No. 7015 of 2017.
22. Hon'ble High Court of Orissa vide order dated 24.07.2018 allowed the W.P.(C) No. 7015 of 2017 and set aside the order of the Tribunal dated 18.8.2016 in the case of Niranjan Nayak (supra) in OA No. 318/2016 with the following observations:-
"Considering the rival submission of the parties and after going through the impugned order it reveals that the Tribunal has discussed about the relief claimed by the applicants in the aforesaid original applications separately in all the original applications. For convenience, we have taken the fact stated in O.A. No. 318 of 2017 which is given hereunder:-
The applicant joined the Department of Posts as a Postman on 23.9.1976 and later joined as Postal Assistant on 31.7.1981 by passing the Departmental Examination. He was promoted under TBOP Scheme on 31.7.1997 on completion of 16 years of service, as Postal Assistant.
Subsequently, he was promoted to BCR on 31.7.2008. The applicant claims that according to the DepartmentalCircular, TBOP/BCR are promotions corresponding to LSG/HSG-II cadres. Applicant is entitled to promotion to HSG-II on completing 8 years service in LSG cadre and promotion to HSG-I on completing 3 years service in HSG-II. He should have been promoted to HSG-II on 31.7.2005 and to the HSG-I on 31.7.2008.
The Tribunal has formulated the issue that whether the orders of promotion be treated as regular promotion or to consider promotion to HSG-II after 8 years of service in LSG and to HSG-I after 3 years experience in HGS-II. The Tribunal referring to the decision rendered by the Madras Bench Tribunal in O.A. No. 679 of 2003 dated 19.3.2004 which was confirmed by the Madras High Court and the said decision is binding effect on the Tribunal, has disposed of the O.A. No. 1196 of 2004 by order dated 23.7.2008. The said order was challenged in W.P.(C) No. 16269 of 2008. This Court while dismissing the said writ petition on 17.1.2012 does not find any infirmity in the order of the Tribunal which was challenged before the Apex Court in SLP. The Apex Court also dismissed the SLP.
The applicants-opposite parties contended before the Tribunal that they joined the Department of Posts as Postman then joined as Postal Assistant by passing the Departmental Examination. Under the TBOP Scheme on completion of 16 years of service they joined as Postal Assistant. Thereafter promoted to BCR. They further contended that as per the Departmental Circular TBOP/BCR are promotions corresponding to LSG/HSG-II cadres. They are entitled to promotion HSG-II on completion of 8 years of service as LSG cadre and promotion to HSG-I on completion of 3 years of service in HSG-II. As such they should have been promoted to HSG-II in the year 2005 and on completion of 3 years HSG-I in the year 2008.
The Apex Court in the case of State of Uttar Pradesh and others Vrs. Arvind Kumar Srivastava and others reported in (2015) 1 SCC (L&S) 191 at paragraphs 22.1, 22.2 and 22.3 held that:-
"22.1 The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly persons did not approach the Court earlier, they are not to be treated differently.12
22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benfit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma V. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer fromeither laches and delays or acquiescence."
So also the Apex Court in the case of Union of India and others Vrs. M.K.Sarkar held that:-
"When a belated representation in regard to a "stale" or "dead"
issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
Further the Apex Court in Civil Appeal Nos. 7328-7329 of 2013 held that:-
"There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reasonwhich is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective."
The applicants have already retired from service. Thereafter they have filed their representations to give them such benefit which was extended to the applicants pursuant to the order of the Tribunal in O.A. No. 1196 of 2004 dated 23.7.2008. Their representations were made in the year 2015. The authorities have rejected the same. Thereafter they have approached the Tribunal when the other set of employees who have approached the Tribunal to get those benefits. The applicants-opposite parties have never claimed such benefit nor they have approached the Court of Law when cause of action arose in the year 2005 or in 2008 rather they approached the Tribunal in 2015 after their retirement even when the decision was rendered and other employees get that benefit in the year 2008. They have also not approached the authority to extend such benefit to them. No doubt they have slept over the matters for years together and they can be treated as fence-sitters. Considering the aforesaid facts and the settled principles, we set aside the impugned order dated 18.8.2016 passed by the 13 Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 318 of 2017 along with O.A. Nos. 384, 385, 386 & 387 of 2015 in exercising the jurisdiction under Article 227 of the Constitution of India.
Accordingly the writ petitions are allowed."
23. It is clear from the order dated 24.7.2018 of Hon'ble High Court that the claims of the applicants in the OAs in question were barred by limitation as they were treated as fence-sitters in the light of the principles laid down in para 22.2 of the judgment of Hon'ble Apex Court in the case of Arvind Kumar Srivastava (supra). The para 22.3 of the said judgment holds that when a judgment is the judgment in rem, then it will be exception to the principles in para 22.2. Since Hon'ble High Court in judgment dated 24.7.2018 has decided the matter in accordance with the para 22.2 of Arvind Kumar Srivastava judgment, it implies that para 22.3 is not applicable to the facts of the case. In the judgment dated 24.7.2018 although there was no specific finding that the order dated 23.7.2008 was a judgment in rem or personam, but since para 22.2 of Arvind Kumar Srivastava judgment was applied, it implied that the order dated 23.7.2008 was not considered by Hon'ble High Court as a judgment in rem, otherwise para 22.3 of Arvind Kumar Srivastava judgment would have been followed.
24. Regarding the issue as to whether the order dated 23.7.2008 (Annexure- A/2 in the OA No. 27/2016) can be considered as a judgment in rem, it is noticed that the said order dated follows the order dated 19.3.2004 passed in OA No. 679 of 2003 of Madras Bench of the Tribunal in which it was held as under (as extracted in the order dated 23.7.2008) :-
"7. On going through the facts, we do not subscribe to this reply of the respondents. As mentioned earlier, in all correspondences 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 up-gradations. What we can infer now is that the respondents have invented the term financial up-gradations now and want to apply this term in retrospectively in respect of the promotions given to the applicants way back in 1991........."
25. In the OA No. 679 of 2003, the OTBP/BCR benefits allowed to the applicants were treated as promotions and the OA was allowed granting consequent promotional benefits mainly relying on the fact that the letters issued by the respondents in 1991 to 1993 stated these to be promotions and subsequently the stand was changed that it was up-gradation, and it was held that this stand cannot be applied retrospectively. Further, the order dated 23.7.2008 in OA No. 1196/2004 noted that a Full Bench of the Tribunal vide order dated 3.1.2005 in OA No. 329 of 2005 had held that the TBOP and BCR Schemes of the Department of Posts are not promotion to the next higher posts and that decision of the Tribunal to the contrary in some of the cases do not 14 lay down correct law. It is also noted in the order dated 23.7.2008 that the order dated 19.3.2004 of Madras Bench has been upheld by Hon'ble Madras High Court and the SLP filed was pending before Hon'ble Apex Court. Finally, following the order of Madras Bench which has been upheld by Hon'ble Madras High Court. Hence, the order dated 19.3.2004 was followed in order dated 23.7.2008 to hold that the TBOP/BCR schemes are promotions and directed the respondents to allow consequential benefits. Since the Full Bench judgment of the Tribunal has held that TBOP/BCR scheme are not promotion and decisions contrary do not lay down the correct law, the order dated 23.7.2008 cannot be treated as a judgment in rem.
26. It is further seen that the respondents in their Counter in the OA No. 27/2016 have stated that vide the letter dated 23.1.2015 (Annexure-R/3) the respondent no. 1 has implemented the order dated 23.7.2008 only for the applicants in that OA, which effectively means that it was implemented by the respondents as the judgment in personem. No reason has been advanced in the pleadings of the applicant as to why the order dated 23.7.2008 can be considered as the judgment in rem.
27. In view of the foregoing discussions, there is nothing on record to justify the contentions of the applicants that the order dated 23.7.2008 is to be treated as a judgment on rem. Hence the issue No. (ii) is answered in negative. Further, the facts in the case before Hon'ble High Court in W.P.(C) No. 7015 of 2017 are similar to the facts of the present OA, for which, the order dated 24.07.2018 of Hon'ble High Court in W.P.(C) No. 7015 of 2017 will squarely cover the case of the applicants in these OAs particularly in view of our finding on issue no. (ii) that the order dated 23.7.2008 is not a judgment in rem. For these reasons, the issue no. (i) is to be decided accordingly.
28. Regarding the issue No. (iii), i.e. whether issue of order dated 4.2.2015 extending the benefits to similarly placed employees some of whom are juniors to the applicant in OA No. 27/2016 can be treated as a fresh cause of action, as held in the judgment dated 24.07.2018 of Hon'ble High Court that the employees had waited after the order dated 23.7.2008 till it was implemented vide order dated 4.2.2015 after the SLP filed by the respondents was dismissed. It is noted that in the case of Union of India and Ors. Vs. Tarsem Singh, (2008) 8 SCC 648 the issue of delay in raising the service related grievance was considered and it was held by Hon'ble Apex Court as under:-
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a 15 continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
29. The grievance of the applicants for allowing retrospective promotion cannot be treated as a claim for different pay scales or increments and hence, it is not a continuing cause of action since increase in pay of the application in the event of the reliefs being allowed is consequent to the applicants being allowed retrospective promotion. Hence, we are of the view that the reliefs prayed for in these OAs are related to promotion, which cannot be treated as a continuing cause of action as argued by learned counsels for the applicants.
30. In these OAs, the applicants' claim is for the benefit of promotion allowed to juniors or similarly placed employees who had filed the OA No. 1196/2004 which was allowed vide order dated 23.7.2008. It is not a continuing cause of action. As the claim for promotion involves right of other employees, delay in approaching the Tribunal needs to be considered. Following the judgment dated 24.7.2018 of Hon'ble High Court in WP(C) 7015 of 2017, the claim of the applicants is belated since they did not approach the Tribunal within the time stipulated under the law. In OA No. 557/2018, the applicant remained silent after no action was taken by the respondents on his representation filed on 11.4.2015 till the respondents passed the order dated 23.2.2018 (Annexure- A/5 to the OA No. 557/2018) which is same as the order dated 4.2.2015 with addition of the stipulation that this order will apply only to the applicants to the OAs which were allowed by the Tribunal. If the claim of the applicants is allowed at this belated stage, then it will affect other similarly placed employees and seniors of the applicants who have not been allowed the similar benefit. Since it affects the right of other employees, such claim will not be admissible at belated stage as discussed earlier. Hence, we are of the view that the issue of order dated 4.2.2015 or dated 23.2.2018 by the respondents to comply with the order dated 23.7.2008 of the Tribunal will not give rise to a fresh cause of action for the applicants. Accordingly, the issue no. (iii) of para 20 is answered in negative against the applicants.
1631. The written notes filed by learned counsels for the applicants have not raised any other issue except the issues discussed above. The written note submitted by the respondents' counsel in OA No. 846 of 2015 enclosed the order dated 27.3.2019 in OA No. 505/2018 with other OAs with similar facts and circumstances in which those OAs were dismissed following the judgment dated 24.7.2018 of Hon'ble High Court in WP(C) No. 2015 of 2017.
32. Learned counsel for the applicant has cited the judgment of Hon'ble Apex Court in the case of Collector Land Acquisition, Anantnag and Another -vs- Mst. Katiji and Others in which the question of condonation of delay by applying sufficient cause was considered and it was held that there was sufficient cause to condone the delay in the case in which the application for delay condonation was rejected. Learned counsel has cited another judgment of Hon'ble Apex Court in the case of Hemlata Verma -vs- M/S ICICI Prudential Life Insurance Co. Ltd. & Another. In the cited case review petition was dismissed as being barred by limitation but Hon'ble Apex Court in the above cited judgments considered the ground mentioned in the application for condonation of delay to be sufficient cause for condoning the delay. It is clear from above that both the cited cases are factually distinguishable from the present OA in which there is no satisfactory explanation for delay in the pleadings except that the matter came to the knowledge of the applicant after the order dated 4.2.2015 was issued by the respondents extending the benefit of the order dated 23.7.2008 of the Tribunal and no separate application for condonation of delay was filed in any of the OAs for consideration.
33. In the circumstances as discussed above and following the judgment dated 24.07.2018 of Hon'ble High Court of Orissa in W.P.(C) No. 7015 of 2017 in the case of Union of India vs. Niranjan Nayak, we hold that these OAs being barred by limitation are liable to be dismissed. Accordingly, these OAs are dismissed. There will be no order as to cost.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) I.Nath