Central Administrative Tribunal - Mumbai
Suresh Narayan Gurav vs M/O Communications on 18 December, 2019
al Ap; | No. Gai =.
Se i inal Application No.171/2017 1 Application No.i84/2017 1 Application No.185/2017. "Application No, 263/2017.-
1 Application No.265/2017_inal Application No.266/2017 i al Ap lication No, 296/2017 Application No. 2997/2017.
"application No.450/2017 tal Application No. 495/2017 1 Application No. 375/2015 . nal Application No. 5158/2015 L Application No.676/2015 application No.671/2014 :sation No. 672/2014
application No. 673/2014 | 18) Original Ea eaten eet Ha, 74/2014 this. al day of Becala20ie ae ~ R. < VIJAYRUMAR, MEMBER a) | ee "RAVINDER FAUR, MEMBER, (3) Pee "Ky " Ghaggnave, 8/6.
hes "Kashinat! shenghate yo - "Aged about 63.years, 0 ". Réo Khadgaon Read, -- .
Gp, Sushila Devi: College,
-< Sambhajyi- Nagar,
- Gatur-413 531.
"(Office Address:
. . a 2 . . 40 " OA Nos.573/2014, 190/208, 171/2017, 1894/2017, 1895/2017, 263/2017, 265/2017, ' 266/2017, 296/2017, 297/201 7, 4530/2017, 495/201 7, 3758/2015, 515/2015, 676/2015, i 671/2014, 672/2014, 673/201 4, 674/2014 Division}. ». Applicant Versus.
i. .The Unien of india, tne. Secretary, Government of India, inistry: of Commanicatton, Department Of Bosts, Dax Bhavan, New Delhi-110001.
2.. the Secretary, Government of India;.
Ministry of Parsonnei, Public Grievances and Pansions, Department of Personnel & Training, New Delhi-1llo acl. : .
3. The Chief Post Master General, Maharasntire Circle, Mumoai 400 OG1.
4, The Assistant Director of Postal Services, Aurangabad Recion, Anrancgabad~-431002, 02) OB No. 266/2017 BM. B, Netawanre, Sfo Babu Rao Natawaenes, Aged about 63, R/o-Priti Sugandh Housing Society No.4 Dindoeri Road, Merl, Nashnik-422 004 {Office Address: Worked Postmaster at Nasnik HO}. .. Applicant Versus as OA Nos.$73/2014, 1990/2018, 171/20 184/2017, 4185/2017, 263/2017, 26572017, ~*266/2017, 296/201 7, 297/2017, 450/2017,495/2017, 375/2015, $15/2015, 1676/2015,
- 67/2014, 672/2014, 6 O14, 67472014 de 'the Union. of India >.
"oo. "through: the: 'Secretary, Government 'of India, fie .
| Ministry of Communication, -- "Department of Pests, ~Dak= 'Bhavan, New Delhi- ~130001.
ge png Chiles. Post Master: Gener al, "Maharashtra. Circle, ~~ . GPO Premises,. ae a Mumbai 400. ool.
3. The Post. Master General,
-.. Burangabad Region, -- .
~ Rurangabad-431002.-
= Ase THe senior Supezintenden we Of a Nashik Division, oe Pe Se "oNashik-422.011. ©. 0 va .Respondents.
03): OA-No. 672/ 2014 | Shri Anent™ 's/o. Ambadasxao- Hiswank Age: 59 years, Occ. Sex rgibe ee O/o. Postal Assistant, .
. Head Post Office,
-. Jaina (Maharashtra), 431201,
-R/o. 'Abhyuday; Plot No. On Choudhary. Nagar, mo. a, a a Mantha 'Reads |: Jains 431 203. coe A Applicant:
) owersus "UNION CF INDIA The Department' of. Posts, Through:
1,. The Secretary, Government of Indla,.
. Ministry of Communication, Department of Posts, ae 2 Bak-Bhavan, 'New Delhici10002, 0 "2. The | Chivet Post. Master: Gen rel;
". Maharashtra Circle oa GPO Premises, Mumbai 400 G01.
-OA Nos.573/2014, 190/2018,:171/2017, 184/201 7, 185/2017, 263/201 7, 265/2017, 266/2017, 296/2017, 297/2017, 450/2017, 4953/2017, 37512015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, 674/2014 ia} Hw] ry i A*) oO in ci eH m rr 143]
a) en) en i ct) nn fi | ae The. Senior Superintendent On:
Post Of fices, Aurangabad Division,. es, Aurangabad-431001. . ° .. ..,Respendents:
es, 04). OA No.673/2014 Sari 'Shridhar 3/o Mural idhar Deshmukh: Age: years, Occ. Sarvice, O/o Sub-Post Master, Sub-Post Office Jalna-Mor dha, rT.
Tq. Jalna, Dist. Jalna (Maharasntray ina-431203. ). Appliéant UNION OF In DIA Sovernment of "india, Ministry of Communication, Hepariment of Fos?
gis, Dek-Bhavan, New Delhi-1ioae1,
3. The Post Maste:
- Burvangabad Reg:
Aurangabad~4 31 4, The Senior Superintendent of Post Offices, 'Aurangabad Division, Rurangapad-431061. .. Respondents 05) OA No. 5155/2015 "EBA Nes T3014, 4, soos 728 84/2017, 185/2017, 263/2017, 265/2017, 5/2017, 375/2015, 515/2015, 676/2015,, "671/20 672/201 + 613/2014, 67472014.
nage. 61: Yeers,. . oe as Retired as Sub. Post Master. Navelim . Residing at 43/3, "Bhri. Kung, .- > Runidamol | Davorlim, PLO. Navelim. | (Goa) 403707. a 8 ANANT POKA SHETKAR costes Age 61° "years 80. | retired. as. O08 DG Mepusa, "Residing at 1/236, DW-1,.0 0 oo (Bhuriikay, Near Datta Pasad toga Cglony, Cunchelim, Mapysa 9 0"
| Boa 403. 507. ns ANANDA. JATRAM NAIK, TUYENKAR Age 63. years; a _ Retired-as Sub Pest Master, o "Mandre S0,;.R.at HiNo, 20, 00000. | Gaonkar Wada, .At Post. aEey eR Parnes Soa 7408512. . oa
2. GLA. PADTE: Se ey Age. 65. years; ee eee Retired 4s AQPM Margao HO, 9 97 React BF i, Chrisville Co- OD,
- Housing Society Ltd., aopeie:
| Aguem,. Margaon 403601 Goa,
5. YUSUF: RAZAK. WAIK! Age 64 years, Retired. as. Sub Post: Master, Ss
---Kadal so, Rat RS. No. 162/2, ee "Treemurti Colony, = Shanti Wagar, Pachgaon, OR. Ke Nagar, on Kolhapur 416013.
: 6... WASUD EY PANDURANG NAIX Age 64 years,
- Retired as SPM, ao Ryat. 321 Madhalé Wada, PO Savai Verem Via Ponda;
Goa~403401.
Ta SHARAD JANARDHAN WAGLE . Aged 64 years, rs one ee 7 OA Nos,573/2014, 190/2018, 17 1/2017, 184/2017, 185/2017, 263/2017, 2658/2017, * 266/2017, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, 3515/2015, 676/2015, 67 1/2014, 72/2014, 6673/2014, 674/2014 a ® cr i @ Oo.
re Ba ~b fe Oo mg ie ia tr 2 fu ih in ct + ib ~.
LT i 3 AK a i?
CQ.
a oe 2
- PRAKASH KKRISHNA. HALDANKAR:
3 62 years, oo red as Postal As H No. 198/i Be .
&@ Marcele,.
PUNDALIK ARUN 'SRTOS KAR @ 62 years eA fue on '.. Bpplicants Versus India CArou .
ny oh.
po ea + m3 oO $ oo, a ;
tment of Posts Ministry 02 unication and Information 5 .
a @ i i ath ny) w ne re Powe OO ee ou a Q nf O Wm oO oY.
yoo t New Delhi Pin 120 OC1.
Ze The Chiezi Pasim Maharashtra Cir GPO, Mumbai 405 3, Tne Postmaster General, Goa Region, Panaji, Goa 403 O92 © Shaikh Makemud Shaikh, Age. 60: years,
- Oee. Retired Sorting As sistant (RMS), O70, Retiiway Mail Service,. spe Da ivison,. Aurangabad, (Maharash ya).
"oft = Gents Mumbe Sree Wane: SS Division; 'Kandivali (EB), 000-0 ee ean, Numbai-400, 202. +. Respondents
06) OA No. 2378/2015, f a Leman, : oo '432001. _ R/o. H.Ne.6/13/499,. "Silk: Mili: Colony, ETN Behind Marathwada. Hardware, 0 Near. Dhanagarwada, Aurangabad (Maharashtra). 431010. PR So appears, versus *UNtON OF INDIA.
the Department: of posts, Throwgh: cole.
41. The. Secretary, Government: of. India, Ministry. of Communication, Department of Posts, :
Dak-Bhavan, New | Delhi- LLOCOL
2. The Chief Post "Master General. ro "Maharashtra Circl e, me GPO Premises, oe
- Mumbai 400. 901.
Bo The 'Post. Master. General, Aurangabad. Region, --
Aurangabad" 4319002... -
oe "The Superi intendent, ". Radlway Mail Service "ns 'Division, _Bhusawel ~
07) No. 6741/2014.
Shri Namdeo S/o. Bhagwantrao Kad oo Ages Years, Retired as Sub- Postmaster --
. g ; .
OA Nos.573/2014, 190/2018, 17972017, 184/2017, 185/2017, 2693/2017, 2635/2017, 266/2017, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, 674/2014 Bhokardan, C/o. Sub-Postmaster, Sub Post Office, Bhosardan, Tq. Shokardan, Dist. Jalna (Maharashtra) 4327214, a R/o. Ab Post. Sipora Bazar, Near Fost Office, Tq, Bhokardan, Dist. Jalna, (Maharashtra) 431114.
.+-Applicnat 'wersus "
UNION OF INDIA -
The Department of Posts, Through: .
Ly The Secretary, =.
' Government of in en Ministry of Comm untcation, Department of Posts, _ :
Dak-Bhavan, New Delhi-Ligcar.
2.. The Chief Post Master General, Manarashtra Circle, GPO Premises, Mumbai .40C O01.
3. The Post Master General, .
Aurangabad Region, Adrangabad-437002,
4. . Tne Senior Superintendent of Post Officas, Aurangabad Division, Aurangabad-4231901. -. Responcdents , t 08) OA Ne. 674/2014 Shri Rangnatn S/o, Dhendiba Wakodkar Age: 33 years, Occ. Service, Gfo. Postal Assistant, Sub-Foest Office Siilod, Ta.Silicd, Dist. Aurangabad (Maharashtra) 431112.
R/o Plot NO.165, Bhagyoday (Kasliwal}) Society, Shivaii Nagar, Aurangabad 431903, .. Applicant a em ee, -
mee 495/2017, 375/2015, 5.152018. $15200%, eee The: Secretary, 9 Government. of indie; on ° Ministry" cf Communication, a _.0o. Department of Posts, 0. 0). oo Bake Bhavan, New. Dethi-110001.
2, The: Chief Bost. 'Master. General, _ 0 Maharashtra. Circle, eee BE GPO. Pr remises, oe Pace . Wei ae "oh Mumba 400. 001.
3, The Post Master. Pee
--Rurangabad REG 2 BRE mangabeds 431 082 ~ i 'othe § Senter: 'Superintendent of Post Offices, oe :
Aurangabad: Division, ne a Aurangabad: 431001. (50... Respondents |
09) OA No. o7g/2015 Smt .. sunita sudhakar 'peshpande, ie EE eee Age 62 years, W/o. (LAte) "Sudhakar. Le SR | Madhuker Deshpande, (Assistant. :
"post Master Accounts (Retd.y) po lp/at. Seema Sagar Society, Opp. Sukhsagar Nagar. Telephone. Exchange ee Ee une-41 1 046). SS .. Applicant .
versus.
"dy Union of tndi. 2 through © fhe Secret ary, [ Department of Posts 'Ministry. of. --
Communication and. IT, cee oo os "New Delhi Pin 110 OOLS wr Cole pa Dy Los 9g. The Chief Postmaster General "Maharashtra Circle, 9 0.
GPO, 'qumbad Obe Offices, Pune City,.. 2 0% (West Division}, The Sénior. superintendent -- of. f Post --
. i :
: de | a OA Nos.573/2014, 190/2018, 171/201 7, 184/201; 185/2017, 263/2017, 265/2017. 266/2017, 296/2017, 297/2017, 40/2017, 495/2017, 375/2015, 515/2015, 676/2015, | --671/2014, 672/2014, 673/2014 67412014 |
-puneséil 030. 0 Respondents (10) OA No. 296/2027 OP. OK. Sanger, .
S/o Shri Kachu Hari Banger, Aged about 57 years, R/o.3, Shivshakti Nagar NR Sidheshwar Nagar, Opp Durgadevi Mandir; -
Sailani Baba Stop, Nashil. Ra-42?7 191;
District Nashil . Maharashtra: (Office Address Worki ng as. Postal Assistant Meri Colony; Post Office. ; a Under 5SPO0 Nasnik Dn; Nashik}. °°... :Appideant. Versus
1. Union of India' The SECESTAEY, Government of India, --
Ministry oft omaunication, De mo 3 Z. The Chief Post Master General, Mebarashtsa Circle, .
Mumoail 400 GOl1,
3. ine Director of Postal Services, Nashik Region, Nashik-422 C061.
4, The Senior Superintendent cf Post Offices, Nashik Division, an 7 Nashik 422011. oa... , Respondents 11). OA _No.297/2017 ¥.oG. Pendherkaer, S/o Gopinath Balati Pendharkar Aged -aDour 65 years, R/o E.No.11, Samrudhi Apartment, Chi trongan Housing Seciery, Shankar N , Gaganpuc Road san017, (85/2017, 63/2017, 1265/2017; 15/2017, 375/2015, SISZ015, 67672015, rae (e <fice Address "worked :
ceo le psedetant:, (Supervisor) at Circle. Stamp.
bay Nashik. a Ses Applicant Versus ap unten: of: India| ooo The 'sS eerBE ary). be "Gove rement cnaia, "Ministry of. "Communication, Joo Department _ of Posts, 00s so Dake "Bhavan, New. Delhi- "110001.
22. the chet: 'Post: 'Master: Gener 0 Mahazeshtra | Circle, ooo Mumbat- 400. 001.
3. the 3 Post. Master General, 4 -BRurangébad - Region, Aurangabad: 431002.
a ee a The 'Senior Seperincendeat of aie eg ES COs! Post Offices. ee : i hye Su SE ache Sone tee es | Nashik Di vision, ."- Epos rs Oo Sage ghia PT Sh Nashike422011..00000 oo Respondents, 9 900 22 OR No.265/2017. Suresh. Nerayan Gurav. . Ses, S/o Shri. Natayan. 'Babu - Gurav, es Aged. about Soy ee b/c OBC, R/o.. H.Ne. B-16, _. Kohinoor Plaza, behind Shivaji Stadi um _. Naruti Mandir Ratnagiri, "'DPistrict Rathnagiri- ~415639. (Oltice Address: Working - as Postal. Assistant at Ratnagiri HO, = es _ Bostal Department) . oe Applicant. 00 Versus:
i. Union of India The Secretary, Government. of india, Ministry of Commun nication, Department of Posts, © on ; 12 . , : x OA Nos. 5373/2014, 190/208, 17/2017, 184/2017, 185/2017, 263/2017, 2652017, 266/201 7, 296/2017, 297/2017, 450/2017, 495/2017, 3753/2015, $15/2018, 676/2015, a 671/2014,672/2014, 673 /2014, 674/2014.
Dak-Bhavan,- New Delhi-iioca:, 2, The Chief Post Mester: General, . Maharashtra Circle, 9 -
Mumps 400 601.
2... The Director of Pas OMG Office, Goa Reci Panji-402201.
Uw.
4, The Senior Superintendent of . Post. Offices, Ratnagiri Division, Ratnagiri-4i56i2. ... Respondents dhav; S/O. Shri Nadati Jadhav t 39 years, b/c~ Adarsh Nagar, Naw Link Road, Mumbai 400 102 dress: Working as AS=M (Postel Deparcment;. .. Applicant Versus L. ndia ary, | Gi : of India, Ministry of Communication, Deoartiment of Posts, Dak Tar-Bhavan, New Delhi-1icocl. 2, the Cnhiel Post Master General, Maharashtra Circle, Mumbai 400 001, Mumbai-4i8612. -_ ...Respondents Bhakti Magar, Co-
Seciety, bering Mu TS as _OANos. 3732014, 190/2018, 3. 71/017, 18472017, 18572017, 7263/2017, 68/2017, +. ee 2266/2017, 296/2017, 297/201 7; 450/2017, 4953/2017, 3735/2015, 5315/2015, 6676/2015, 8 6712014, 67272014, 673/2014, 6742014 Nash Lik: Roady. 'District 'Nashik: 422" 402
-.» tO#Eice Address: Retired from postal s service on 31.03.2013). 00 .. Applicant versus af cabs "union of India.
"ls The Secretary;
» Government of 'India, * Manistry of. 'Communicati Lon, Department .of Posts, .
"2 Dake 'Bhavan, New, Del hi-110001, 2g, Tae Chief. Pose. Master General, vo Maharashtre Cix cle, mt "(Mumbai 400° 001.
By The Post Master General,
- Aurangabad Region, ~Rurangabad- 431002.
aye The Senior Superintendent. cf ~~. Post. Offices, ores ee Nashik Division, -.. 00 oe ae oo - 'Nashik-422011, eS . -,,,Respondents --15), OA | No. 184/2017
6. 'a, Maute:, - ca . 7 S/o Shir Dagedu primbak Maule, Agéd about 63 year 8% _ .
R/o Shri Rammagr, 10* Mile Ojhar, PO-Jaulke, » wie OQjnar Township, ~District- "Nashik 422207.
(Office Address: Worked as Sub Post. ~ <" Master at. Ojhar Tewns hip Post Office i emder SSPo Nashik Dn, Nashi Kha .. Applicant ..
o., Versus -
- 40°" Uaion of India oo) The Secretary, Government of India, .
; "Ministry of Communication, - Department of Posts, --
Dak-Bhavan, New Delhi- 110001.
2. The Chie= Post Master Genexal, | 4 | oe OA Nos.573/2014, 190/2018, 171/2017, 184/201 7, 185/2017, 263/2017, 265/2017, 266/201 7, 296/2017, 297/2017, 450/2017,.495/2017, 375/2015, 515/2015, 676/2015, 3 671/2014, 672/201 4, 673/2014, 6742014 Maharesntira Circle, Mumbai 409 O01,
3. The Post. Master Aurangabad Region, Aurangabad~4. 31002.
4, The Senior Superintendent of Post Orfices, | = Nashik Division, A rs Nashik-422011. 0 | _. ...Respondents --
16) OA No.185/2017M.A. Bhole,.
S/o. Abdul: Kadar, Aged about: €0 years, anda ».
R/o Nijampura Gali, Per Ten-PAranda, District-Osmanabad, Maharashtra-415502.
(Office Address: Worked as Sub Postmaster, uncer SPO, Osmansabad Division) Applicant Versus L, Union of India bee Secretary, Government of Inria, Ministry of Communication, Depariment of Posts, Dak-Bnaven, New Delhi-Licool.,
2. 'The Chie® Post Master General, Maharashtra Circle, Mumbai~ 400 001, 3; The Post Master Ceneral, Aurangabas Regisn, Aurangabad<431062 4, The Senior Superintendent of Post Offices, Osmanabac Division, Osmanabad-422011. .Respondents.
17) OA No. 263/2017/N, v. Chavan, : "45 Pe, _OANos. 3573/2018, 19072018, 1719017, 34/2017, 185/2017, 263/2017, 265/207, a ee 2562017, 296/2017, 297/201 7, 450/2017, -495/2017, 375/2015, 515/2015, 676/2015, --_ ae sae, ee 671/2014, 6722014, 673/2014, 674/2014 © | S/o. Shri Vi shnu. Ratn .
_, Aged about. 6h, p/e "ind Maratha, RYO HNO. Sid, 'Vir Sayarkar Nagar,
- Kuwarbav, Po-MIDC,. Ratnagiri, 7 District- Ratnagiri 415639:
(Office Address: Retired from postal department)..9 09 00. ,, Applicant. _ i Versus"
. "Union of 'India The Secretary, baa es Government of. Indi ay Ministry" of Communication, Deparcnent. Of. Posts) ped 9, The Chief. Post Master 'General,
- Maharashtra.Circle, oe Mumbai 400 ,001.0.:
3. Director. of Postal Service, PMG Office,- Goa. Reg gio my Pe any i. 402201. = :
4, The. Senior: Superint endent of"
Post Offices, vO 'Ratnagiri Division; es .
Ratnagiri~-415672.5 =~ es Respondents N.H. Majgaonker, 'S/o Shr i farish Chan dra Yashwant.
-- 'Nangaorikars 553,.. Yash - Laxmi, -- ~... Post Karla, Tal. Dist. Ratnagiri- £15612.
- Aged about 58, . b/c OBC,, R/o #.. No.8523 Nash Laxmi, Bo Karla, District Ratn agiri, vt (Office Address: Working as Sab. Postmaster : Khalgaon Post Office} 415620. «Applicant . yersus i. Union of India The Secretary, Government of India, _ Ministry of Communication, Department of Posts, o, 16 : vel OA Nos.573/2014, 190/2018, 171/2017, 184/2017, 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/2017, 4560/2017, 495/2017, 3735/2015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, 674/2014 Dak-Bhaven, 'New DEL i-110001.
2. The Chief frost Master General, Maharashtra Circle, Mumbal 400 001...) 3 Director of Postal Service, PMG Office, Goa Resion, The Senior Superintendent of Post: Offices, .
Ratnagiri Divisicr, . _ oo oe 2 "Ratnagiri-4i36i2z. 09) ..., Respondents aa 40 oO o 2% © Be.
re in rm NS o pues sll Shri. Shamrao Tateba' Desai . Postel Assistant {SCR} Vasco-Da-Gama (Goa) Post Gifice, (MIG) (Viej) MAPUCA (Goa} Pin 4935802, con Divn, MAPUCA PiA 403 507 Age 61 years, residing at Block No. E203, 1s Floor, Umiya Quotros Apartments, At PO ATTO P.O. Dabolim, :
(Goa) Pin €03 861 .. Applicant.
. Unienm of In The Secretary, o Director General Pe Department of t Deak Bhawan, S a At.P.G, New D pet Bo Chief Postmaster General, Maharashtra Circle, Old GPO Building, 2™ Floor, WH. Marg, Fern, At P.O, Mumbaie-400 O01, 3, The Postmaster General Goa Region, Panaji E.o.
Building, Main Road, P.O, Panaji (Goa), Pin-403 0dL.
- GA Nos. §73/2014, 99/2018, 17120 ; "184/201, 4185/2017, 263/2017, 26572019, :
- 26/2017, 2262017, 297/2017, 450/201 "67/2014, 4 672/200 O14, 674 2014 jogs Seariitthdenn oF Postmaster _ Offices, Goa. Division, P.O, MAPUCA. BO aan ee AGea) Pin. 493507, oe ee . . Respondents _ (By. Advocate Shri s. P. singh in Sl. Nos. L to ai, Shri "NLA. Nagrani: for. $1. Nos. 12: and. '14, Ms. Sujata. Krishnan .
in. S1,Ne.15, 'Shri- CLs. "Temburnikar in S1.Nos:13; 16 to 19 for 'applicants, " By 'Counsels © Shri RR. Shetty "an SI. Nos. i to 4, Ms.. ial Kumai. and shri R.R. Shetty in 'S1.Nos.- "5, 6p Bp 10, Shri: i¥.S. Masurkar. in $1.Nos.11, 13 and. 'la, -Ms.Naveena Kumai in sl. No.12, Shri RR. Shetty "an S1.Nos.15 to. 19, | Shri NLR: Rajpurohit. in sl. No, 8: for the _ xespondents).
Reserved on - :Qo-Ne2018
- Pronounced on | E18 1a- Rol' 2 R D ER 7 R.Vijeyiumer, Member (A) This patch of. "ORS have. been "filed by:
applicants who. were: initial ly appointed as. 'Postman, ang 4935/2017, 375/2015, 15/2015, 676/2015, oe aiter pa xticipating ain a "Limited. Departmental a competitive # Exam (LCE) were selected and acled in the higher grade. and post ef Postal Assistant {PA}, atter which they 'received. stagnation financial benefits -
under. the Time. Bound. One. Promotion (TBOP) Scheme on completion of 16 years, Biennial Cadre Review (BCR) completing ser vice. in the same grade of. PA. in Eespert of Of 0266/2047, the applicant Was appointed as a Group "D'or Mu lt rasking Staff (MTS) 'as it was re-
designated efter the VIth Pay Commission and then on completion of further 10 years by virtue of their | es 2 WB | OA Nos.573/2014, 190/2018, 171/2017, 184/2017, 185/201 7, 263/2017, 265/2017, 266/2017, 296/2017, 297/201 7, 430'2017,495/2017, 3753/2015, 515/2015, 676/2015,, 671/2014, 672/2014, 673/2014, 8674/2014 participated in an LDCE and got selected' as PA, after which he received TBOP and SCR. None of the applicants were thereafter granted the 3*°MACP on the basis that "-eounted against, the financial. benefits available under above raise identical issues of by common consent of the " applicant elucidating facts, the leading case- is taken as OA "a, The impugned order vide meme No, AR/St-1/Reptn/MACP/NKG/OSD/2013) ated 2£.09,2013 forwarded by ressondent no.4 may kindly be declared illegal, unjust, © al, improper and deserves to be quashed and set aside.
ion The respordent may kindly be directed to senfer the grace nay Rs.4600/- 4&4 MACP- Ilzj on completion of 30 years of service cacre with ail co. The respondents may kindly be directed to -grant all consequential benefits, arisine out du c 4 OA Nos. 57372014, 190/20:
2866/2017, 296/2017, 297/20 ae be: passed Lin favour of the. applicant, "which may be deemed. just an nd proper unde the facts. and: circumstances: of 'this case | inthe interest, of justice.
Te Kat the: "costs of this. application (may: be" awarded to. the eppl icant.
Qo te sgptscantn' doje. chat the elevation from. "Group 'D'or MTS to PA. is a fresh recruitment ang is an apecintment to a "higher cadre outside 'the line. of 'promotion "and! hierazchy 3 in "the particule: cadre. Fu ee second eel 'TBOP (on: completion of 16, years of ser ice. under the scheme thet began. in 1983 and while granting. 'BCR upgradation | an the sohere which began. in 1992 after. 29 years of sezvice, the computation, of service period was caken from the. date 9.007 of entry as' PA and therefore, the same basis should» have been adopted for -granti rig MACP-III. However, the respondents have wrongly 'treated the elevation to .PA as 8 _ promotion, 'They also . urge -- that | tnis ae interpretation is not in conformance with the rules of "the MACP Scheme since the applicant has completed 39 "years of sevice aa the same grade of PA. The "applicant relies on the orders of E the coordinate bench - of this. Tri ibunal at Jodhpur in OA Nos. 382, 353 and 354/2011 dt,22.5.2012 ~ in the lead case. Bhanwar Lal QA Nos.573/2014, 190/2018, 171/201 7, 1B4/2007, 185/2017, 263/2017, 2635/2017, 2606/2017, 296/2017, 297/201 7, 4530/2017, 4935/2017, 3753/2015, 3515/2015, 676/2015, 671/2014, 672/2014, 673/2014,-674/2014. Regar v.. Union of India and "Ors. ; OA No.354/2011 - Hardewa Ram Dhaka v. Union of India and ors. and the =. submissions: on compliance filed by réspondents im OA No.58/2011 to the Jodhpur Coordinate Bench of this Tribunal in Rameshwar Lal v. UOL @ Ors. , OA No.55/2011 decided on 16.8.2011.
have referred te the interim orders of the Hon'ble High Court of Ratasthan at Ocdhpur staying the orders of the Tribunal in Bhanwar Lal Regar etc. {supra} as above a. Reyoinder has beén filed.citing developments im. the case before the Fon'ble High Court of Jodhpur
5. the learned counseis for the applicant re on the decision in Bhanway Lal Regar and Ors. (supra) im the batch of cases led by CA No.282/2011 decided 5 bet 22.5.2012 for an Extra Departmental Agent (EDA) who = co te ey ae = a -- Fal 2 ee ay 4 .
LDCE, became a Postman and then a PA in which he received TBOP and then second MACP, which was i017, 18 ?
(0/2017, 495/2017; "37570015. "$15/2015, 67672015, 'i O20, 74/2014 _OANos. $73/2014; 1907201
- 26672017, 296/2017, 297/201 appointment and this was "not. disputed. by respondents. | 'Te held that the. movement st thereafter, to Postman and | BR were. by. a process of selection and cannot be oa da © promotion. For this Pe irposey it _ referred £0 then defini ition . of. the 'tem. promotion #a held by. the» 'Hon'ble. Apex Court in Director General, Rice. Research "Institute, Cuttack &: Anz. -Rhetra Mohan, 'Das, "998 (5) SLR 728). The Bench held that, "the. grant of 'TBOP, BCR anc MACE had to. be. counted 4 trom the dave of entry as PA and all 'owed 'the OAs. The Hon'ble HE gh. Gourt of aajasthan at Jodhpur considered "these. arguments an a a after noting that Learned: counsel appear ang on "be ehalf of the 'appellant on asking again. and again, failed to peint out any. prov sion. for "promotion "tO ° the post "of. -
Postman 1/ SORE ng "ASS istent. on 'the other hand, from perusal of the: orders. of 'appointment £0. 'the. post ct Postal Assistant /Sorting Assistan it as apparent that the respondent -original applicants faced at @xamination, may -- that be a> Limi ted competi tive a ae wt . examination, i.e. mot thin ng but dizect recruitnent, upheld the oxders of the bench. The matter was taken zo che Hon' ble. "Bpex court. which condoned the delay and 7 and = 6 2 . Co RD. Tos OA Nos.573/2014, 190/2018, 171/2017,.184/2017, 185/201 7, 2635/2017, 265/2017, 266/201 7, 296/2017, 297/201 7, 450/2017, 495/2017, 375/2015, 515/2015, 676/2015, 71/2014, 672/2014, 673/2014, 6742014 dismi issed the SEP. in shore order at. 16.8.2018. The 5 icant also'relies on the orders of the' coordinat # penchr of this Tribunal'in a batch cases ied by. Jagdish --
Prasad Sharma vy. UOT and Ors. in On No. 31/2011 etc. dt. 4.7.2014; where the decision "in Bhanwar Lal Regar (supra) was relied on. by the aépolicants. Per contre, - : ¥ i the respondents referred to the Judgment dt. 6,9.2011 he o the Hon'ble. Apex C crt. in Bharat Sanchar 'Nigam Ltd. v. R.Santhakumar Velusamy § Ors. in 2011 (3) sug 353 has beén granted a financial reservation fer an OBC category employee. The Hon'ple Apex Court had held as follows:
"21 On a careful analysis of the princivles relating to wromotion and upgradation in the light of the aforesaid decisions, the following princivles emerds:
s to advancement to 2 nigher poss, "tn its wider sense, promotion may include an advancement te a higher pay scale without moving to a different pest. But the mere Tacit that poth that is advancement tO a Righer position and advancement to a4 nigher pay scale - are described by the on term 'promotien', dees not mean thet two types of promotion wohl and have different comnotaticons 'promotion and the elimination may still be part of 'the process (OL apogradati 23 ogradation. "merely confers. 4. financial | efit by rais ing 'the scale of pay fo the. tt without there. being: "povenent | from a ition to a higher position, In an wogradation,. the. 'candidate continues to hoid
-.the.. same post. wit chout. any. change in tne daties. and. respons higher: pay. scale .
sbi Lit iss 'but Merel ¥: ogee a when there is an advancement (dit) Therefore, toa higher pay scale 'without change..of post, ji may be "neferret 'tO 'a#s upgradation 'or
-promotion toa: higher -~ pay scale. But, there is srill difference bi tween the two. "Where the advancement to. a hi gher' 'pay-scale without change of post is @ available to everyone who satisfies the sligib {ity conditions, without undergoing any: proce of selection, it will be upgradation. But the | advanceme nt to a higher 'pay- scale: without chenge of post is 4s "a result of some.process which 'has elements --
Of selection, then it will. be @ pro motion t9..-
a higher *~ pay... 'gcale.' Cin' other words, :
upgradation by. 'appl lication ef a process of selection, as- contrasted "from an: upgradation simpliciter, can be: said to be -&. romotion in its wider -sanse: that. is advancement to a "higher pay scale.
Civ} Ge nerally, upgradation relate ' fe applies to all. 'positions inva category, whe i 4 have 'completed. aominimum period Upgradation, 'can also be restr ted te @
- percentage of posts in-a cadre with , reference wae to seniority (instead of being. made available to, all employees in the category) and it will still be an upgradation simplici tor.. But if there is a process of selection or.
consideration of comparative merit or _ suntabi lity for granting the. upgradation. or benefit of advancement to a higher pay scale;
it will be a promotion. A mere screening te ee '@liminate such employees whose . service 2 records may centaéin adverse entries or who might have suffered punishment, may not amount to a process of selection leading to at j 24 OA Nos.573/2014, 90/2018, 1741/2017, 184/2017; 85/2017, 263/2017, 2635/2017, 266/2017, 296/2017,; 297/2017, 450/201 7, 495/2017, 375/2015, 515/2015, 676/2015,- 671/2014, 672/2014, 6793/2014, 674/2014 simplicitor: Where the upgradation involves a
-process of selection criteria similar to those applicable to promotion, then it will, in effect, be. a "promotion, trough termed as upgradation, A. ee .
(v). Where' the- process is an updorad "simplicitoz,- thé is ne ef reservation, But where the up involves selection process and is th _ promotion, rules cf reservation will r ivi). Where there is a vestructuri cadres - resulting in creation of posts and filling of these vacancies who, satisfy the conditions. -of --eli which includes. @ min 1imum period of service, will. attract the rules of reservation. On the other hand, where the restructuring of posts "does not involve creation of additional posts but merely results in seme of the existing esis being placed'in a higher grade tc rovidie veliet against stagnation; the said a Om appeai, the Hon'ble High Ceurt of Rajasthan at aipur Bench in W.2. No.ii538/2014 held in dt. 10.12.2015 referred to the previous decision of tne same Courl in aris Petition No.11709/2023 Union of India and Ors. v. Har Govind Sharma and the Judgment of che Hon'ble Eigh Court oF Gujarat in SCA No.829/2014 Unien of India v. Chimanbhai Ramabhai Parekh and after neting that tne Division Bench. of the High court of Rajasthan at Jodhpur had upheld the orders of the Jodhpur Sench in Bhanwar Lal Regar . EES : : 5.
_OANos 5 573/204, 19072018 12017, 4184/2017, 185/2017, 63/2017, 265/2017,. #2017; 4 95/2017, 375/2015, 515/2015, 676/2015, | 32014, 6742014 :
exp! oyees. This. matter. was, also. taken to the Hon'ble :
Apex court in. § LE ICiviL)No(s) 22650/2018 Union of India and Ors. 9 | The learned. counsel for 'the applicant also" relied on:
ordered as below: -
"Delay gondoned.
We "find. "Tio: merit. ne 'these - petitions: "Ph 4 special leave. opst itions are, | accordingly, © oo, dismi ssed.
eM, ing applicatis Eons stand disposed of _ Pendi "the Fudgment of 'the: Bon' ple High court of Rajasthan at Jodhpur in Union. of India. and ors. ove s. N. Singh Bhati, Writ Petition Ne. -173/2026 decided | on 3. 4, 2018 from the decision of the Jodhpur. 'Bench of tais Tribunal where che iss ue: identiz Fied.. wa Ss as below:
Nay "Issue 'soreerned was whether Mailman/ 'Extra' Departmental » Agents/Gram Dak Sewaks "appointed - aS. a. Sorting Assistant/Postal + Assistant were liable to be treated as having 90
- been promoted or it was 4@ case of direct 'recruitment. This in turn impacted the Benefit of placement in the higher grade under the Modified Assured Career Progression 'Scheme. The view taken by the Centrai ~ > Administrative Tribounal is that it, is a case of 'direct recruitment and not 4 "ease of promotion".
The Hon'ble High Court noted the following decisions
- 10, 8. 2015, irected the 9 © mn "game benefit cae! the = Jagdish Prasad Sharma, where we wes, OA Nos.573/2014, 190/2018, 17 2017, 84/2017, 85/2017, 263/2017, -265/2017, 266/2017, 296/2017, 297/2017, 4507/2017, 495/2017, 375/2015, 315/2015, 676/2015, 6711/2014, 672/2014, 4673/2014, 674/2014 of the Hon'ble. Eign Court of Madras in Civil writ Petition N6.30629/2014 Union of India & Ors v.
er
--_ 7 D. Sivakumar and Anz, against ; which decis on | siE (Cc No.4848/2016 Union of India & Ors. Vv. - Be byenanes was dismissed by' the "sipinena' aude ; on, "yeth August, 2016.
2ttex condoning che delay. 3 eview 'sogae. of the " osder ode. 16" August, 2016 vide Review Petitien (c) "Ne.i1939/2017 was dismissed by the Supreme Court as in Writ Petition No.200807/2016, The Union of India « that since the Review Petitioners did non dispute 0 ny ry iy H + rt ty re vi D o their 'seniority varticipéted in selection and appointed to the higher post were never treated as @ case of promotion. The examination. was pa
a)
3) ie a o J oe i ce) oe ry j-1 se fai]
1) ° ie aH fot ia "a.
a).
i i OQ, bu ct he GQ rg in
7) rt ib rd o ty iJ G c v3 0 eH ia] | he. said "Schenes _OANes. 5373/2014, 190/2018,. 1/2017, 472017, 185/2017, 7263/2017, 265/2017, esol, 375/2015, 515/2015, 6762015, was: granted treating. the --
"pecruttment: and not by.
the judgment ret fexr ed. by the Hon' ble High Court ac Jodh spur of 'D. Sivakumar (supra) decided by the: Hon'ble.
High court of Madras" wes based en the. decision of the Madras Bench of this 'Tribunal which relied entirely on _.. the decision of in Bhanwar. Lal Regar. (supra) 7 but. nade -
_ of Hardeva. Ram, Dhaka, one. of the three applicants whose. cases. were decided by 'the CAT, Jodhpur under the lead case" of. Bhanwar Tal. 'Regar (supra) and was pending | 7 ab. that time . before the Hon'ble Apex. Court. Before the "coordinate 'bench, " respondents nad vurged reference to °°) the Recruitment. Rules, but this. was. overcome by virtue oo of the reliance on the precedent - Judgment in Bhanwar Lal Regar (supra). The Hon'ble e High Court upheld these orders and when the matter was taken to the Hon'ble Apex Court, the SLP. was dismissed with the sollowing 2 of) orders) "Heard learned counsel for the petitioners.
Delay condoned. . oo 'We see no reason to entertain this petition under Article 136 of the Constitution of India. The. special ieave etition Ls, accordingly, dismissed.
28OANos.573/2014, 190/2018; 47172017, 184/2017, 1835/2017, 263/2017, 265/2017, @96/2017, 296/201 7, 297/201 7, 4530/2017, 495/2017, 375/2015, 515 /2015, 676/2015, : 671/201 4, 672 /2014, 673/2014, 6742014 .
Fowever, the guestion of law is kept open"
The 'Review Pet ition filed was also dismissed by the 'Ron'ble Apex Court and the orders were implemented in tne case of the applicant...
on the decision of <he coordinate bench at Jaipur in Dev Karen' Mahala 'and Ors. v. UOI in OA. Ne. 3123/2011 and Surendra Peepliwal v. "Union | of India & Ors. in OA We.805/2012 which followed. the decision' of! the jp lowin wy sripunal in OA Ne.137/2012 and recorded the fo the LEpuUgread order of Tae respondents {Amnexure-A/l is bad in law from both the POLNUS Steted above thar (1} Seing treating the passage from Mailman to Sorting Assistant aS promocion, and {ii) not appreciating MAC? as inferred from the own circulars of the Sovaernment Tk was neid that the MAC? is 4 lideral scheme allowing financial upgradation to those who have net pest able to earned promotion in the regul promotion and that it, hence, need to be liberally understo Tne Hon'ble High Court of Ra thé analogous decision in OR No.469/2011 that had been a + cones 5 pad "7 we ne Tred a 7 upheld by the Hon'ble Eigh Court at vodhoury on | was taken in. case of . "SLE was. Gisnissed by the gon'ble } Apex Court» which. -
"eo. take a. differ nt ~ OANGS. 5173/2014, "19072018 71/2017; isan? 185/2017, 263/2017, 265/2017,, * 266/2017, 296/2017, 297/2017, 450/201 495/2017, 3758/2015, $15/2015, 676/2015, : "6712014, 2/2014, | 67312014, 'G74/2014 OA teference -- thave- "not | 'been: - oited and. Surendra. ae " Peepliwal whose! "OA. No. 905/202, Rad been allowed.
Review Petition was. also dismissed on.7.3. 2016 and the "ordezed as, follows:
Delay condoned.
'We are. not 'inclined to interfere in the matter. The "special: leave petitions rare, | accordingly, . dismissed.
_ Pending appli cations: stand disposed of.
However, the. questi On. of law is kept open"
Learned counsel "also. relied on the orders of respondents. dt. | 'Superintendent of Post. Offices, Sikar {Annexure-
that 'this may riot be treated as a precedent in other AP/13), whi Ob oR. pevusal, notes that the Hon'ble High Court had not appreciated. _$/Shzi- Mood Chand Kalawat, BE. APM 'Neen Ka 'Thana wg. & Anand | Prakash: Bhatnagar, "Sovme? SPM Mandru, and was made subject to thé condition "ogases. He also referred to a clerificatson gssued bys 0.
">. 'respondents on 25.4.2011 which reads as below:
Sl.No. Doubts -- 'Clarification lt Whether to con- In accordance with "sider the Para-9 of Annexure~-t ew. of. the matter. This decision respondents Kulwant Singh whose 2.2019 of the 'office of the 0 OA Nos,573/2014, 190/2018, 171/2017, 184/2017, 185/2017, 263/2017, 26572017, 266/2017, 296/2017, 297/2017, 40/2017, 495/2017, 375/2015, 5158/2015, 676/2015, 67 1/2014, 672/201 4, 6732014, 67472014 Bo
-
appointi-rent to of MACPS dated 18 Seo' Srv D cadre as 2009, regular. service! entry ozade and fot othe of! : ¢ MACPS commences from! ance iehdrmenenien eiintiit ¢ Bc sts chem aS.one provction the date joining of 2 post in' direct entry) oo Grade on a regular) eee eo basis. In the present). : Whether th® case before us, the. eppcinement...tO official was selected:
i a the . cadre - of based on seni rity. int » - - Postman post as Gas. an: joined the | C2 group "Db" post &! lo. -Dilater, he was declared) Cf successful in Postman! h@ exam, in which he had! aS appeared - fulfilling.
icial the . (@ligibility, Eman condition - Gramin:
from Dak Sevaks and! are thereafter he was! 30, allowed to join in.
c may (5® Postman cadre asi.
i eS Lf j r aSis.:
'The issue is clarified accordingly. ot i
8. Learned counsel for applicant also referred to the decision of the Hon'ble High Court of Karnataka in Writ Petition No.200807/2016(s-
CAT) on The Union of India and Ors. v. Shri 1/2017, 18472017, -185/2017, 26372017, 265/2017,:
50: (2017, 3759/2015, §15/2015, 676/2015, ean 67472014 "reviewed 'the. orders. of 'Bangalore. Bench. of this | Tribunal and. in which, di eect, reeruit: AS. croup ch pl was. promoted as "Postman and then as PA. cand "lagter x receiving 'TBOR. was. geented MACP- -Ir which. wes "then" withdrawn by. respondents. The. "Hon'ble, High Sts :
Court relied, on the: decision of the. 'Hon'ble nigh
- coure of: "Rajasthan at "Jodhpur ain Bhanwar tal 'Regar (supra) and: also ref ferred to the decisi on 'oF. the o> pont ble: igh, Court. of Delhi in the case cf. "Union of india and" ors. a 'shakeel Ahmed Burney in Writ | Petition ich "No. 4331/2014 which had 'been, renanded to. = tne Principal 'Bench 'and had again come. bet fore the "Hon'ble High: coust_as states by, respondents an the ~ present case. and is: pending for orders. The orders ere passed PY. 'reference to 'and by reading the contents of the appointment orders. and by in ferring that these"
orders suggest at the ese elevations 28 Postman. and PA 7 were: direct recruitments cand not promotion. The Learned | counsel. also urged that chese precedents "would - pind this Tribunal py virtue of the 2 principles of judicial propriety.
9. In a batch of OAs ied by OA No.93/2019 of Natvarbhai ®.Makwana v. UOI and Ors., the issue oe 33° :
OA Nos.$73/2014, 190/2018, 17/2017, 18472017, 185/2017, 263/2017, 65/2017, 266/2017, 296/201 7, 297/2017, 450/2017, 4935/2017, 375/2015, 5315/2015, 676/2015,, 671/2014, 672 2014, 673/2014, 674/2014 consideréd there was for Postmen who had apseared in LDCE and become 2A which they had conten rded was noz a.
'promotion; | but a direct > gppointitent»° They have referred to the decisions in Bhanwar Lal Regar _ (supra), D. Sivakumar. (supra) . ?.G.Mathad ve Department of Posts in OA "No.952/2016, -- Shakeel Ahmed "Burney (supra), which is now igain Sending before the Hon'ble OA No.967/2017 Ernakulam Bench of the Treibenal 'neted the lack of reference to. the BRS in the 'previous for respondents 'that Since inoeption pa rose practice consistently is of treating Postal Assistant _=rom ene post of postman in. natures ettled law that while inters pre practices con dep part ement.
i 8 rd ca tog @ Wy} ocr is w & 'fia th
a) et 6 mt a aad th ce! gi ja rs gj jo ® = ir het on pee pe a from the pest o Promotion could pe the &=i the judgment, reference of id, accicental and pe uriam. She has 'referred the Rul
-
_ ¥ be fy rot tr ® cr iat ie)
a) fe cot ry i 2 O 7a) rt ty te a 3 G ag.
tb bee ur o a Vg (F ete urther,. in A.M.Jayarajan v. UOT § Ors.,.
"ow Fou aur # "Postal Assistant, oe aseribes. criteria for educati onel quai ticerion as well as ages, 'yecruitment to the post $orcing Resistant but as far as 50% quote ot said gosts, which. is f4 nH 84/2017, 185/207, 263/2017, 265/2017, | 5207, 3 375/2015, 515/2015, 676/2015, of Post "al Assistant 7.
€ "$S far as: 80% quota of ~ . said posts iiee:o) vwhich is: Filled: up by LDCE promot? Lon: "relates, there is no ed cational © gqualit ieation. or age criteria. also has contended that fer direct recruits th re is a separate system of selection however some €or direct "fecruits ase well. as" tor the.
'persons appointed, from the cadre of the "Postman 'but factually - the situation is not. as has been cbserved anc added: that, though | there is. 'different. procedure: Ls. "provided by Rules for candidates 1 who fails .to pass. 'confirmation ~ SCXaMination, © after appointment, < "but. ne note of ix was taken: in. those "jus dgments.
Wwe did: find- some: subs tance: in, che. submission of learned - "counsel. » Though various High Courts "have held chat. that. Postal | Assistant.
from the post of postman.is" jp aptare: Of.
promotion. but. the. Order dat 16.08.2016"
passed by Hon'ble Supreme. coe in. SLPL.. 2p. Now: 4848/2026, -
: preferred 'against 'the order e- Hon'b High . Court 'of Madras passed by th wherein Hon'ble high "Court of Madras has held tnat it isa nota "promotional post, shows that:, Hon' ble. Supreme. Court having seen no reason to entertein that petition. under Article 136 of the Constitution of India though dismissed: the SLP in limine however, che . question of law Was kept open by Hon'ble "Supreme Cou Ba 7 :
'It' car. thus. be- 'said chat. the issue that Postal. Assistant from the post of postman Ls:
in nature of .promoti Lon or not, cannot yet | be said to have attained £ €inelity nor it .can be said - 'as mot res. integra, it is the contention of 'respondent that the decisions, reierence ef whom hes Come ibid, are accidental ang per incuriam.. . -
17, The Rules, re garding. _mecruitment 2.
Fh"4
T i a 3 Ww a condition precedent for direct fr. of Postal Assistan 2 =
-
L Los = * illed up by oremey ion.
e judgments are based.
upen "premises. that one. common test i sg. held...
OA Nos,573/2014, 190/2018, 171/2017, 184/201 7, 185/2017, 263/2017, 265/2017, 266/201 7, 296/2017, 297/2017,.450/2017, 495/201 7, 375/2015, 515/2015, 676/2015, é 671/2014, 672/2014, 673/2014, 674/2014 ° on the basis of LOCKE. relates, ¢ educational qualification. or age crite prescribed, There is no common test for out-.
-Sider. fresh recruLcs and -.the persons appointed from the cadre. of the Postman and. rather fer direct fresh recruits there is provision for written. test and the persons appointed form .the cadre of the Postman nave to qualify. the LOCH written test.
. Consequence, relating to for outsider fresh "veeruits and the persons appointed from the cadre of the Postman who failed. to pass the enfirmation tést is also Gittezent. Rules for Recruitment. for Rec of.Time Scale Clerks Fosts and Telegraph were in force at the time of appointment. iets) eapolicants to the post of Postal Assistant, ad orovides that the period of Probation would be of feur years or of passing of the contirmation examination which-ever is earlier. The note attacned shows that :- In che case of direct recruits, failure to pass the conflixzmation examination. in six chances within four years result in their discharee. =rom . service while Ln che CAaSe Of. departmental candidates t and sorters in Indian S Department 2002 provices that the period of Propaticn would be of two year of the confirmation examination specified in tne. DAF eGkor Ganeral Posts ang Teleqragh Letter No. §3-56/67- SPB-1 dated 215° June 73, whichever is: @arlier, The mote attached _.
crereto shows recruits fails to pass the confirmation examination in chances within =iwo years, the probation period will be extended to a maximum period of Foux years, within which he shall. be allowed two additional chances of normal confirmation examination and/or 'two special chances and failure to doe so entail stoppege of increments or confizmation or both and in case of x,ecruitment by promotion or deputation of abserption, grade from which promotion or depataticon or absorption te be my Ft © ra 4 2667011, 96/2017, "297/20" ia soi, 185/2017, 263/2017, 265/2017, 7, 495/2017, 3735/2015, §15/2015, 676/2015, 6712014, 6 3/2014, 674/2014 c the. contention of respondent that che! decis sions, 'reference' of.whom has. come ee: aceidental | and per- incuriam.
ars It. is. true th & il these aspects in pith and" substance. were not pressed for in' said
- eases; t he reference of whose judgment has _ COME, ibid: and - therefore. 4t isthe. contention of respondent -- that. the. decisions ibid are.
accident al. and. per per incuriam. The. matter. thus if. Ls. analysised in its entirety, there may be possibility of 8 different view, that joining as Postal. Assistant from the. post 'of postman » is. ° in mature of rometion.. A-
decision, which is 'express 'and is found on reasons and. .Which- proceeds oh consideration.
of issue, can only be: deemed to be law declared and it will have a-binding effect. The issue evolved in all said. decisions =. obviously. was whether Postal- 'Assistant from the post. of) postman as invnature of promotion.
and therefore. 'the. decision 1s cant t be said to be. accidental. ne Loy "Consistency cin intezpretation of. laws) alone, can Tead to public confidence in our:
judicial system. Hon' ble Supreme Court time nd again has laid down that" deviation from the Same should be oniy on 4 procedure known too 9 law... AIncuria' . literally means 'carelessness'. in practice per. incuriam | appears TO Mean, per ignoratium, in igneratium foe ostatut 2. 'or other binding authority.
Principle of per incuriamis in relaxation of the. rule » of, stare decisis. Rule of sub- ~gilento is. alsq oan exception to the rule of.
-predents. B- decision passed sub-silento, in _ .the. technical sense that has to be attached phat phrase, when the particular point of law "involved in the decision is not perceived by othe court or present to its mind.
20. Tt is' crue that all these aspects in entirety were not pressed for in relied upon "Cases, the reterence of whose judgment. has
-..€ome ibid. This is illustrated by. judgment ef "Hon'ble High Court of Rajasthan passed in CWP 11336/2012, which, was cited as precedent aimost in every succeeding Gecision. Needless to say, their Lordship in CWP 11336/2012 'categorically have observed in the idudgment
36. be . . ot # OA. Nos.573/2014, 190/2018' P712017 4184/2017, 15/2017. 263/017: 2654/2017, 266/2017, 296/2017, 297/2017, 4590/2017, 4953/2017, 375/2015, S15/2015, 676/2015; 2 67 1/2014, 672/2014, 673/201 4, 674/2014 chaz, * Learned counsel. appearing 'ORY- behalf of the appellant. en asking again and. again failed. te. point out any provision for promotion. to the post of Postman/ Sorting Assistant." Does principle of per. incuriam "@xtend and apply to a conclusion of law, Which was neither raised nor preceded by any consideration, --- :
2i.: Ld. Counsel for respondents' has: urged to. analysise the true import of Rule. wWhiche according to her, it wold yield to conclusion that .toi ining as Pestal "Assistant from the post sof postmen is in. nature of promotion but the GueStion,. at threshold is whether the tudgments, reference of whom nas come ibid, are not. an authority. for -the- proposition canvassed by the applicants and Whether this Tridunal. needs 'to analyse. the Rules in their entirety to exhaust and to sea' the possibility of a different view, Once enti import of Rule be considered, Possibility of contrary view may Or May not be there, but the question before this Tribunal 2s. whether after aforesaid pronouncement by Hon'ble High Court and the coordinate Benches, 's it still. within. the ambit of this Tribunal to reopen the question m this proceedings and to take <he view, LMCCNSlSstent with the law laid down by don'ble Hich Court and of larger Bench of becauss of the. only reasons Oey un Forward tion a "hose jue law made by the n Superior court. hon' ble High Courts undoubtedly are superier courts. of the Tribunal. It is hardly netess ary to empnesis that considerations cf tyudicial vroprieéty 3 ie) i.
Ry fh 0 ecorum- require that healthy vrinciples o judicial decerum and ocropriety warrants this EriLbunal to fGllow the ratia. decendi Propeundec by the Hi ne 2 Court, im proper an ne a ign traditional way asd that deviation from the same should be onl ¥ Of & Procedure known to law, Sai princ ple illustrates from following decisions Of 'son' ble Susren COULt as well 'coordinate bench. of the Tribunal.
"OA Nos. $73/2014, 190/2018, XL 1/2017 1842017, 185/2017,. 263/2017, 265/2017; 26/2017, 296/2017, 297/2017, 450/20 495/2017, 375/2015, 15/2015, 676/2015, a (671/2014, 6r220i4, 673/2014, 74/2014
93. Hon'ble- Si prem ourt in the case "of Lala. » Shri. Bhagwan cand Shri. Ram Chand: and. Ang 1965) SC. 1767. laid: "Gown: "It is hardly» "necessary. to- emphasis 'that considerations: of. judicial. propriety and: decorum 'require that 'SF a learned sifigle Judge hearing a@ matter is inclined to teke the view - that the earlier decisions. of 'the 'High 'Court, whether of 2 Division Bench or of 2 single Judge, need to be re- "éonsidered, lie should not embark upon | that. enquiry sitting. as a single Judge, but: . should. refer. the. matter. to a Division 'Bench, or, .imn-@ . proper case, place. the relevant papers: "before. the Chief Justice to enable Rim 00 'to. constitute. @ larger: Bench. to. examine the oy quest tion: That 'isthe proper and traditional ae Way to deal with such matters and it. fs... 'founded cn healthy pr inciples. of judicial: a decorum and propriety." ° | in. another ease, namely Tribhuvandas
-. Purshottamdas.*. Taker o> Ratilal Motila bo "o"Batel,. 11968) "SCR £55 Hon'ble Supreme Court while dealing with: @ case in which a Judge of the High Court had failed to foliow the -- earlier judgment - of 2 Larger Bench of tae same. court observed Whe judgment of the Pull _Bench of . the Gujarat High Court was binding Epon Raju, J. if the learned Judge "was of the: view that the decision of Bhagwati, J., %$ in Pinjare
- Karimbhai's case -and of Macleod, Cyt. , in Haridas *s case did not "lay down the correct Lew or rule of practice, it. was open to him to recommend to the Chief Justice that the question be -considered by 4 Jarger Benca. Judicial decorum, "propriety and discipline required that he. should not ignore it Our system, of administration of justice. gims at certainty in the law and that can be achieved only if Judges. * do not ignore decisions by Courts of coordinate authority or of superior authority."
38: @ OA Nos.373/2014, 190/2018, 17172017, 1864/2017, 1835/2017, 2635/2017, 265/2017, 266/2017, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, $15/2015, 676; (2015, 2 671/2014, §72/2014, 673/2014,, 6742014.
24. in S.2, Rooplal. and ants Ve. It. Govarnor AIR 2000 SC 894 Hon'ble Supreme. Court held nat a. ccordinate Sench of a Court. cannot:
ec aration of t pronounce judgment contrary to d law made by. another Bench and_ refer it te a larger Bench, if it cisagrees with the earlier pronouncement. Expressing dissatisfaction. in regard to the manner in which a coordinate bench of thé Tribunal has- overruled, in effect, an earlier judgment of ancther coordinate bench, Hon'ble upreme Court: observed 'in pare 12:.
we must express our fed a sericus. dissatisfaction in regard to che menner ino whicna a Coordinate Bench cf the tribunal has. overruled, in effect, 4m eariier judgment of another the game tribunel.
i incipies of judicial discipiine. Ff at ail, the sussequent Bench. of the tribunal was £ the opinion thet the earlier view 'taken ZY, che coordina te Bench of the Same bunal 2s incorrect, it ougat to have referred the matter to «4 i Bench so that the difference of between the kwo Coordinate voided, Tr is not as if he Bence vas Unaware of the & of ('the esrizger Hench. but iy it proceeded to disegres fe said judgment egainst ail ruies af LE ot ke eo ele @ oh ew ee oe oe et me While expr es Being dissatisfaction in abovesaid words Hon'ble the Supreme Court in para. i3 held as under:
e ty i
ii) bs, indeed Sorry ot a £3
-o rr ® th attitude of the tribunei in this case wOoLCH; after noticing the eeriier judgment oF a coordinate Genoh and afcrer noticing the judgment of this Court, has Stiil thought it fit to proceed to take @ View totaliy contrary to tne view taken in the earlier judgment thereby Creating a judicial uncertainty in _OANos, 73/2014, 19072018 74017, "18472017, 185/2017, 263/2017, 265/2017, pe -495/2017, A750, 518201 676/2015, buna Bn: this case; a lot of valuable tine of the Court is wasted and parties -- ane "ote o this. case "have! been put to:
" considezable hardship."
"g@eclaration of law as 'Because of this. es atter Bench of the
25 Bs: "noted? above, Hon? ble. Supreme. 'Court eee SLPL. {CO}. Now (4848/2016 hes kept the. question 00 of) "law open; So_ the control to. analyse the Rules" Pn. their entirety, <0 see possi ibility . of a: different: 'view qua the issue whether joining. as Postal "Assistant from the post. of | postman, Jigs cin. nature. of pronet ion Or otherwi se; "thus. only © vested. -either in Hon'ble 'Supreme Court.or in lavger bench of 'she. Higa. Court. Therefore, » when: it is not in the domain. of. "this Bench. to. take the contrary. view, at would only be a futile exercise" to-go. into the. aimport of the Rules and we. therefore, by accepting. 'the law laid.
'down by Hon'ble High Courts and 'Coordi nate Benches | of this. Tribunal on the issue, end hold..that, past. of Postal. Assistant is not 8 promotional ¢ pest. of the. "Postman". x0. "the: | 'earned counsel for. respondents Shri ¥.3S. wesurkar invited the attention of the ben ich to the fact 'that in' the case of | D, Sivakumar (supra) , the yon' ble Apex, Court pad nade ¢_sinplicitor dismissal cand had. spec ifically lef tthe matter open on the issue _.. £ law. Following judicial propriety, che orders of the Tribunal that were upheld by the Hon'ble High "court in t the case of Surendra Peepliwal (supra), were implement ed. although in 'the process. of review, the Judgment has subsequently pean withdrawn by the Eon'ble High 'Court. This is. in consonance with the 2 40...
OA Nos.$73/2014, 190/2018, 171/2017, 1834/2017; 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/2017, 450/2017, 493 572017, 375/2015, 515/ (2015, 676/2013, 671/2014, 672) 2014, 6713/2014, 674/2014 decision: of the: Hon! bleé. Apex' Court: in L. Chandra Kumar we "Unien of 'India, AIR 1997 sc 4125, "wher eby decisi ons of che: Bagh Courts of respective | je drisdi ction. will bind this Tribunal, white. the 'vest of the High Courts Lye * may be referted for the purpose of asst Sting: in: th decision. In the present case, there is no jadghent' of 'the © Hon'ble. 'Sigh | Court: 'cf Bombay... In these circumstances, he argued that while considering precedents, weightage had co. be. given. to. those prec edent decisions where teasoning was given and not continued by learned Senicr Counsel, Shri R.R. Shetty who hed filed written arguments. He refetred to the Gecision of the Hon'ble High Court of Delhi in. Uttam Singh and Ores. vv. Municipal Cerperation of Delhi, Lon. conducted by the Municipal io) Oo 4 TF ip ia) fa rt jus He ib ~ uy ta fo i tT) ci i ee Corperation of Delhi for selection against 10% posts Lo be Filled by promotion on this basis and for whieh the RRs set an essential requirement 2m qualifications Si typing ability. The learned High Court observed that it was the settled Legal pesition that appointment on promotion through an LOCE is not wate found, that there ow sa past practice 08 "such |.
o
-OANOS. 73/2014, 190/2018, 9017, 18472017, 185/2017, 263/2017, 265/2017,.
Es 296/2017, 97/2017, 450/201 7, 495/2017, 375/2015, $15/2015, 676/2015,, TURD ODE: 73/2014, 6742014 ' "thet the - "Draftsman ©. RRS had. made. several errors, | z poi intees. to 'clear: the typing test with 2 period of.
two) years: subsequent te: appointment | asa conditi on thereoZ. The. 'court. was. - compelled, by the facts. and ~ circumst bances, to "interpret, 'the: "Rules cin a 'self- ae consisten it and "intelli igible mannet and th nen also held in kee pi. ng with the | deci Sion. of the. Hon'ble Apex Court in N.Suresh 'Nathan and. "Anr. me Union of. "India: and :
* past practice consistently Followed, by 'the deperteent needs to be. kept in view. Although in. "the. present a Case, . the 'spplicants | have, not. pointed, out. to ee Kistence. of any such, past practice) one argued that. Lz the applicants wish "to claim the GDS. service ine S. or addition,» the. facts. would lie. ageinst the applicen He also noted thet in the cases. relied upon, 4 the © oe applicants, the RRS had not. been "seen in -sharp ~ "distinct ion. with. Uttam 'Singh (supra) . He argued that "Shis aspect lyag also observed by the Hon'ble High =p Reus "OE Reigeten at Jaipur in Writ Review to the reasons. mentioned inthe. RP, the orders at.
31.21.2017 were recalled. Although the orders in review 42:
OA Nos.573/2014, 190/2018, ynAoi7,; 184/2017, 185/2017, 2 3/2017, 265/207, 266/2017, 296/2017, 297/2017, 450/201 7, 495/2017, 3975/2015, 3132015 676/2015, , 671/2014, $72/2014, 673/2014, 674/2014 | "were against Kulwant: 'Singh privacé. respondént, the Ss if eH rt 19
-
rt je
-hioa.dcéelt was ordered with the lead case as: soi dulvane SnsoesUbile the other respondent in the linked writ 'Petition wag that of Surendra "Peepliwal which was one of the OAs decided by the
- Jaipur Bench in erders' dt. 24.21.2015 and: involved eh three. apolicants in the lead case therein. The Eon'bie- Cour noted: that in codbsadistinéedoa" tor cases: of.
- girect appointment, in the case of candida tes eligible.
for LOCE-based slevation, there was a difference by way of @liminaticon . of age ° limit; different quelification,; quota, @kamination system and a separate merit list, The petitioners im GA Ne. 313/201i which was the lead case along with. OA of Surandra Writ Petiticn o sy iD ty ct] FA oe a.
6. rT + te ta (ir xe fu af cay] fi 07 Peepliwal w No.18488/3016 a.eng with otner Writ . Petition Nos.3560/2017, 3858/2017 arid 3859/2027 by the Hon'bis High Court of Rajasthan. at. Jaipur and orders were.
"passed. on 10.5.2018 in which; the decisions of the.
No.3968/2008 Ram Karan Kumhar yv. Union of India and Ors. dt. 31.5.2016 had ccorsidered promotions from PA ze) Inspector and noted that in the case of Rar Govind Sharma (supra) decided at Jodhpur, the decision had os OA Nos. 5373/2014, 4190/2018, a 1/2017, "tg4n017, 185/2017, 2263/2017, "9365/2017, 26612017, 2 29612017; 2972017, ante 495/2017, 3735/2015, 5145/2015, 6 67672018, m4, 67412014 The court also...
'potiged 'the ection a" D. Sivakumar, 'Shakeel Ahmed Burney, Har Govind sharna, shri. Basanna Nayak, Jagdish "Erased Sharma (supra) | and held chat Mace. ben efits. Can. ;
be 'conferred only a fter regular service rendered of "40, "20 and 30° years and 3 if not promoted. Ie upheld, the ~ Aater. view of. the. Jodhpur, Bench in > Rem Karan. -Kumhar (supra). - The. Hon'ble'. "Court aio "observed. 'the.
followin ane tn our "opinion, the. - 'Tripunal has:
seriously -- comuitted | an error -in '@llewing 00 original - application © relying. upon the --
"judgment of Bas. Bevin' (supra). which is: now.
diluted" py... . gubsequent 'decision of Division 'Bench *Syacement.. In view (of the -.. Rules, .we..are Very 'elear that. in. view 'of. promotion, first benefi t it to be granted from ~ 10 years from..the promotional , post or from the . mew . recruitm went teken as confirmed. In. : . that view of matt ez, the petitions deserve TO | be allowed. on Say Ue In Ram. sa tats Writ Petition No. (3968/2008 "decided ; on 3 3. 2016. e he Hon' ple. " wigh court. aE "applicant who aca service as PA. and then eppe eared in the LDCE and was appointed as Inspector of Sy Boets. after watch: he represented for. gran © of First oe ACP 'benefits and 'second ACP' benefits | on completion of i2 and 24 years in the. same post of Inspector. The F ealhicereetetineneincitaling ai 44 OA Nos.573/2014, 190/2018; £71/2017, 84/2017, 185/2017, 263/201 7, 265/2017, 266/201 7, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, 5145/2015, 676/2015, 71/2014, 672/2014, 673/2014, 674/2014 it Jodhpur Bench had held in. orders dt. 11.5.27007 that the applicant was not. entitled to first ACP on completion. of bh fot tw her wo mw:
JN
13) an fo wd g @ promotion from PA to Inspector and he would get the second ACP as per rules after completion of 24 years of service from the date of initial entry. It was only one channel of promotion to the posts of LSG and then to HSG-II. The applicants also relied on the decision of the Hon'ble High Court. in Unien ef India and Ors. Har Govind Sharma W.P. No.i708/2013 and 22 departmental examination are to be . treated as
-oremetion for the purpose of finencial upgradation under ACP Scheme. The Respondents furtner submitted.
that although the regular line of promotion cf PA is to the Recruitment Rules issued in 2001 for tne post of Inspector and the ACP Scheme and its <larifications and observed:
he had recéived one.
rm eo
- 266/2017, 296/2017; 97/2017 :
- "Gabi, 20s, 672018 6742014 "Examination | from _ amo ongst - the 'promotion . £0" | che post' cannot: "be" "treaced ag.
direct. entry. A: bare perusal of othe ACP. "Scheme and» 'the clarification issued "py. the 'Government \ 'of India, makes. it abundantly . clear: that. "for. grant "Of 'two. inane tal p- gradation. under the ACP. 'Scheme, 'the. entire goveinment _ service of an: 'employee shall be = counted: against "regular promotion. including - the promotion . through: limited ~ Departmental Competitive Examination. availed from ee grade in. which. an employes. Wes. appointed a : direct. "recruit. We are of..the nonsiceved opinion tna © where the xyules. specifically provides for: promotion quota, may be to' be filled. ine by way of 'limited | Departnenté" 'Competitive. 'Examination, » the. promotions mad by. the method: specified . as aforesaid, has 'to be counted as. promotion 'for the purpose of ACP. Scheme. Th us, the . petitioner herein, who has» already availed. one regular. promotion sshall- be entitled for. 'consideration of his 'case for the purpose: of second. financial up-
- QGradation only on completion of 24 years of "veguiar 'service under the ACP Scheme. In this view of the matter, the order impugnéd passed ~ by. "the Tribunal does mot. suffer from any error $0 as to warrant. interference by this eteurt - in vexercise of its extra ordinary -- yu durisdiction™. ee oe with regard, to. 'the case: eee Har Govind Sharma. (supra) where "the employees nad entered service as MG/EDA/GDS and were selected, as PA, the Hon'ble Court observed that in tne absence of any provisions under the Rules to show that the appointment was made by way of promotion, stich appointment had to he treated as direct recruitment. However, in the present case, the ery "ouher- words, - merely because , theo oe BOST of _ ERApSELOE | of 'Posts by 'promotion: AS oes BY way. alan ii 'mited - 'Departmental AE OA Nos.573/2014, 190/2018, 4171/2017, 184/2017, 185/2017. 263/2017, 265/2017, 266/201 7, 296/2017, 297/2017, 450/201 7, 4953/2017, 375/2015, 515/2015, 6768/2015, 671/2014, 672/2014, 673/2014, 674/2014 and therefore. the. decision in Har. Govind Sharma Service and not with teference to an post.
12. Learned counsel for respondents also referred decision of the Hon'ble High Court of Madras in Writ Petition No,6505/2014 along with Writ Petition 'Ne.4753/2015 of M.V/Akkiniveeranan and Ore. vi. Union of India and Ors., wherein the applicentS had joined as PAs and hac received TBOP or beth TBOP and BCR Officer (AAO). They . claimed finanéial. MPT dation under the MACP and challenged the actien cf respondents in treating the apoointment of AAO as a agifferent hiesrarcny for the PA. Ths Court moted that hy
-QANos. 5373/2014; 19072018, 171/2017, 184/2017, 15/2017, 263/2017, 265/2017, 26/2017, 296/2017, 9977/2017, 450/2017, 495/2017, 375/2015, §15/2015, 676/2015, 67 1/2014, 672/2014, 67. 3/2014, 6742014 .
ee of working - Bs PA, 'the applicants were ane ee ce to become BAO" cand te ie ms les em eneble then go to a diffe rent cadre by way. of PLOMOEL OR: The |
- = upheld » the view of | the 'Tribunal. that this was So | indeed ¢ a promot ion and --s che | Writ. Petition, "while holding chat che rel iance: Of: the, petitioners on "the decisions in chis case viz. a) Director 'General of 'Posts and. 'others Ve s. Ravindran and others" (1997) :
- sce. (L&S) 455, () Bhanwar Lal Reger, and others in st | De 3B. roared Writ Petition No. 11336 | of 2012. (High: Court | of Rajasthan), ; fe) Union of "India. and others ve oe Shakeel Ahmed Burney, - in. WP. (c). No. 4132 OF. 2014.
(High Court of Dethi, @ "gnion. af India and others v.
D. Sivakumar cand aAnr. Tn W.P. No. 30629. of 2015 {High Court of Madras) and we) 'Union of india and: ethers | vv, Shakes? Ahmed. Burney in. SLP (c) No.4848 of 2016 _ (Supreme. court) , were pot. relevant to the instant 9.) i i case. On the. part of the Bench, we note that these orders. do not make direct. mention of the RRs relevant | to. the matter and which were considered. by the Hon' ple | High Court of Rajasthan an. Ram Karan Kumhar (supra) Dut since the Court studied the issue of eligibility, reference was presumably made to the Recruitment Rule.
OA Nos.573/2014, 190/2018, 171/2017, 184/2017, 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/201 7, 450/201 7, 495/2017, 3735/2015, 3145/2015, 6706/2015, 6711/2014, 672/2014, 6773/2014, 674/2014
13. Learned counsel. for the respondents referred to the decision of the Hon'ble wigh Courc of Karnataka at sharwad in W.P. Ne.102322/2018 (S-cAT) in The Union of India and Ors. v. "gntsR.K Kulkarni dt. 37.44 '2018, where the employee. was- acopointed as -a Postman, received "promotion ag PA, was. granted TROP and BCR financial upgradation and chen sought MACP MACP-III.
The Hon'ble Court referred te the RRs for the post of A Sorting Assistant or PA threugh LDCE was a4 departmental promotion. The Hon'ble Court: noted that the previous Judonent in M.G,S8hivalingarpa had observed, irom a reaaing of gecruitment and the remaining test. The Hon'ble Court.took notice of the two orders of the Hon'ble Apex Court in Bhanwar Lal Regar and D.Sivakumar (supra) and relied om the rulings of the Hon'ble Apex Court in Kunhayammad & Ors. v. State of Kerala and Oxrs., AIR 2000 SC 2587, on interpretation My of the doctrine of me
- OANos. 573/204, 19072018, 71/2011 84/2017, 185/2017, 26372017, 265/2017, » 266/2017, 29672017, 297/20 2 495/2017, 375/2015, 515/2015, 676/2015, "67112014, 672/2014 67: 2014, 674/2014.
oe. Before. going. into' the orders passed 'opy the said. Courts, | at. would 'be useful oo toourefer. SO a. _jucgment:, "of. the Eon'ble 2 Supreme Court in the case of Kunhayammed and. others. v. State. "of Kerala and | "another , "reported | 'in' AIR. 2000. sc 2587
-{Kunhayammed) . In' the. said judgment, the :
| Hon'ble. Supreme. | Court - "was considering 9 _Ehe doctrine of merger in the context ° under: Arti cle 136 tead with Article 1420. Qf che, Constitution: of India: and also in the - 'context. Of Order XEVII Rule 1 of the Code. of. Civil: "Authority -- in vany proceedings | subsequent. thereto. by way of "judicial 'discipline, the Supreme Court. _ oo being the = 'Apex Court © -of the. Country.
"But, this: does. not. amount to. saying that Oo cghe "order~ of the: Court; . "Tribunal or ". Ruthority 'below: has stood merged in the order . of. "the _ Supreme. Court .rejecting..-- . special' leave. petiticn. or that. the. order . of the. Supreme | Court 3° the only order 0 Binding "as - res judicata van subsequent -- proceedings © between the .parties. The "Pon'ble Supreme Court. went on. to hold that -once: leave to. appeal has been "granted. and» appellate 3 jurisdiction of: . Supreme . Court has 'been: invoked, the ". OLGer passed in appeal. would attract the doctrine of merger, 'the said order. may vibe sof reversal, modification | or mere affix rmation. by _ a
9. In the circumstances, . it is -held | that the dismissal of the Special Leave -- coaesaseeanees from the Jodhpur Bench oo of Rajasthan High Court) and the Division Bench" of Madras Court would not imply "that it becomes the law of the land in CE a a Be os "othe contest of Article 141 of the Ba ors Constitution particularly. when the. one m8 --" "apestion of law has' been left open by ithe Hon' bie Supreme, Court. vis-a-vis the controversy in: this. case. In the
- circumstances, there ig no 'substance in "the contention of iearned counsel 'for 'the respondent that. in view of the
- a | .
OA Nos.573/2014, 190/201 & 1712017, 184/2017, 185/2017, 263/2017, 2635/2017, 266/201 7, 296/2017, 297/201 7, 450/2017, 495/2017, 375/2015, 15/2015, 676/2015, 67 1/2014, 672/2014, 673) 2014, 674/2014 dismissal of the: Special Leave Petition | by the Hon'ble Supreme Court vis-a-vis the order cf. the. JochSur Bench of "Rafasthan: High Court and the Division Sench of. Madras igh Court, the same ought to be epplied in the present case, rather than. the order: of Division Bench fpr Bich S rincipai Bench of Karnataka Hi Court dated 02.08.2018". :
14. On this basis; the Hen'bl 'the law of the land -in. 'the context of Article 141 of the said benches and further, the Hon'b! Mgh Cours 7 Do ee ~ s bey oy 4 ae oka Rajasthan at JOanpur na made a Bpeci fic ebservation that. despite requesting the 'official promotion, to PAs, this was not done by the official respondents. In was in those circumstances that these Ceurts had held thet the appointment based on LDCE was -
only a direct recruitment. In the event that the RRs had now been presented, the Hon'ble Court held that as <i D
0. oa qi t Ha O O ui ci 57 a r promotion, The Court alse observed ae a Ce 5). --
"QA Nos. 573/2014, 190/2018. 712017, "19472017, 185/2017, 263/2017, 265/2017;, -- ~ 26602017, 29612017, 297/201 (201 7;-495/2017, 375/2015, 515/2015, 676/2015,. 6712014, 72/2014, 73/2014, 674/2014 , ~ hobs "another: reason as to "why the : ne Jodkp ar Bench: of the Rajasthan | "order of Bagh Court. and: che order of: Division Bench of | the, Madras. "High. Court cannot. be applied. ipso. facte..to- the. facts of the present case. In "those orders reference has not. been > made to the Schedule to the Rules as in the instant case, which. "is extracted above. 'The | mode of -- fil ling. "up. of: post. of. Postal Assi. Lstant Or _-Serting.. 'Assistant: under: 'the Rules was not : brought to the notice 'of th 12 said Benches. In facty. in othe. oudez. of. the: Jodhpur . 'Bench. of the Rajasthan High Ceurt, there is a specific cbservation. regarding. .. "counsel .for. the . appellant therein i.¢., Union of India and the. Postal Depart cent, being: 'repeated y asked to place. on zecord" the provision .for --.. promotion toe the post of Postal Assistant.or -- Sorting Assistant. It has been. observed thaty Ono. such provisi on was piaced:. for perusal of "the =. Court. com those. circumstances, Lh wes.
"sant erred. th appointment pursuant to a. "departmental "pest Ls@a ps 'bimited Competiti ve. Examination' is nothing © -- but, "direct. _ recruitment'. That the -appeintiment made was in the nature of-a direct: regruitment and not. ; @ -prometion "which - inference is contrary to 'the. Rules... In. the circumstances, by construing the said 'appointment. te be. one of. direet recruitment. and not promot ion,. a direction. wes: issued to the Union of India as well as to the Postal" Department to extend | "the benefits under MACP-IIi to the respondent - . therein, -- Sinilarly, inthe .judgment.. of che Division Bench ° of the Madras ©High | Court; there is. no. woference to the Rules as: well as oto the Schedule under the Rules. In the > ~-qireumstances, in paragraph 9 of the said
-o judgment, it has. been' ¢ onstrued that the appointment of the vesporidetit therein as 4 ~ Postal Assistant was "Rot oy way of promotion and hence, similar directions were issued in favour of the employees. But in the instant case; our attention has peen drawn to the Schedule to the Rules under which the nayure of appointment has been clearly prescribed. Ramittediy, in the instant case, the respondent was. appointed tO tne fost of OA Noz.$73/2014, 190/2018, 171/2017, 184/2017, 4185/2017, 263/2017, 265/201 7, 7 266/201 7, 296/2017, 297/2017, 450/2017, 495/2017, 3.75/20L5, 5315/2015, 676/201 5, ad 671/2014, 672 (2014, 6753/2014, 674/2014 , Postal Assistant. joys! Being "gualified in < Cepartmental test .while she was alread eT Oe Lo het > ow working as a Post Woman. in the department Hence, at is Clearly a4. case of promotion. i9.. Cur attention has also 'been drawn to an earlier order. of. the A. GTribunali in' oO t 1259/2014, wherein, it has been held that when @. certain. percentage of. posts. is earmerked. excl ist vely fer . departmental candidates, it implies that it is a 'case of.
Promotion as pposed to receuitment Prom open market. 1 afar "as the percentage earmarked for direct recruitment, said Original Application filed b rishnaiah after considering 4s ne 'therein was entit t penefits un MACD-ITI, the "Tribunal on considering 'the judgment of the Jodhpur Bench of Rajasther Hign Court in the case of Bhanawar el Regar t 5 che notice of the Jodhpur f Was not. breug TO Bench of High Court of Rajasthan had it been dene so, (tg decision would have been otherwise. 7
20. In the circumstances, in the instant C&asS®, We are bersuaded tc Yollow the order of the: Co-ordimate Gench of tnis Court ain the ease of Sri. M.S, Shivalingeepa and to hold that respondent herein is not entitled to the meneiits under MACP-TIE Scheme.
2il, For the aforesaid zeasons,. we &re alse not. inclined to follow the order passed by the Co-ordinate Bench of Kaleburgi Bench of this Court in the case of Basanna Nalk as the said order has also been passed following the order of the Jodhpur Bench, Rajasthan High Court as well as the crder passed by Delhi High Court in W.P. No.(Ci} 4131/2024 in the case of Union of India and others V/s. Shakeel Anmagd Burney, disposed ofl oon
03.08.2014 (23.05.2027) In fact, wreterence nas been made to the order passec py the Delhi High Court in W.P.-> No. fC) 4i31/2014 dated 05.08.2014 in the case of Krishnaiah as well as to the orader passead in R.P, No.4€61/2014 by the Deini Eigh Court in respect of whith reference has been made in the case of Krishnaiah and held that the said " Bhanwar Lal 'Regar {supra) in orders dt. 3.
OA Nos.73/2014, 190/2018, 171/2017, 18472017, 185/2017, 263/2017, ASSN
- 7266/2017, 96/2017, 297/2017, 450/2017, 495/2017, 375/2015, $15/2015, 676/2015,. | 671/2014 S12, 673/20: i, 70 | "orders "Aav ane | womegeruit the Rajasthan High Cou art in O.B. Civil Writ. | Petition: No.11366/201 2. We: have also. assigned the -reascns as to. WAY | "despite (the) "Special eave Petition. arising out of the orders
- passed by the dedhpur Bench of. Rajasthan High.
Court and. the 'Division. Bench of Madras High -
--€ourt. having been: 'dismissed: can nevertheless.
nov. be made applicable. to. the present case.
"The. question of law was..kept open by the Hon'ble Sup reme . "Court | while dismissing. the Special Leave: pe tition: arising. out of the |.
ca 'order' .of the -Division Bench - of the Madras
-Bigh Courie _
15. Learned, coun nsel for t the respondents also referred © to th the case of Shakeel, 'Ahmed BUEney As upral, in w which the 'Principal: "Bench had allowed OB: 'No. 3786/2011 on 21, i2. 295 2 based on Bhanwar hal Reger. {Supta) ; The Writ Petition filed. before the Hon'ble High court af Beint. dn writ 'Petition 'No. ,. 4131/2024 was dismi isged by 7 the Hon'ble! High court on 3. 8. 2024, but on the Revi Petition file ad, che Hon'ble sigh cours passed oraers "on 5.8.2014 rem anding the = matter to. the Pri ncipal --
'Priscipal Bench veiterated its "reliance on = ui jt b--* ns i.
wn against" which. Writ Petition Ne. 2006/2016 "was filed by "the department. At che First. hearin ig on. 1. 4.2016, these orders were stayed andi that Position' sontinues + 'as recorded.by the Hon'ble High Court of Rajasthan at . _recorde : g : ajastt Jaipur in its orders on -as Review Petition filed in...
| | ent? pales | send by vplaci-ng, "reliance. on the order of, the Jodhpur Bench of -- _ SA | | OA Nos.573/2014, 190/2018, 171/2017, 184/2017; 185/2017, 263/2017,.265/2017, 266/2017, 296/2017, 2997/2017, 450/2017, 495/2017, 3735/2015, 515/2015, 676/2015, 671/2014, 672/2014, 73/2014, 674/201 4 Ah cd WP. "No.14457/2016 withdlawing "the "earlie:" eters pasged in' the matter < on 31.12.2017. In this regard, learned counsel "al so emphasised chat el) the 'citdtiohe of the applicants relied on the decision taken by the Tribunal and the High Court of Rajasthan in' Bhanwar _ Lal Regar (supra). | "46. Leeened counhs @l also referred co the Judgtent of the Hon'ble High Court of Puntab & Haryana in Writ Petition No.4829/2015 and four others of Senior 'Superintendent of Post Officas, " Rarnal- Division, Karnal and Ors. v. Wand Kishere and Anr. in the lead Be of _€ase, where the. applicants were initially appointed as.
that the elevation from Postmen to PA was a promotion. TAs Chandigarh Bench ef this Tribunal had relie J on ar 'earlier order vassed by the principal Benen in OA ©. 607-PB-2012 - Kharaiti Lal and Ors. v. Union of "India and Others, decided on 14.12.2003 which held that appointment as PA after passing LDCE should be treated as a direct recruitment. The Hon'ble High # be ae = "$5 1/2017, 1894/2017, 185/2017, 263/2017, 265/2017, /2017;-495/2017, 3753/2015, 5152015, 76/2015, 14, f 673/2014, 74/2014"
3:
_ OANos. 573/2014, 490/201 ~ 266/2017, 296/2017, 2979/2017 67112014, 6 Court 3 noted: the - decisions in the Shakeel . Ahmed Burney, --
oy. sivakunar and Ane, war 6 Govind sharma, Basanna 'Nayak, -_ Ram Karen 'Bumhar, 'Dev "Raran Mahala and Ors. (supa) and the: fact. 'that, the. _ gudgment in Har Govind sharma and s. N. singh 'Bhati espead, had 'been. diluted by" "the "subsequent decision 4 in Ram. Karan Kumhar (supra) . 'These 7 various Judgments were 'extensively, analyzed including 7 two decisions | of the: Hont 'ple 'High Court» of Delhi an filling. 'up the 'promotional: pos e trom i the. feeder cadre.
finding allowing | the weit Petitions by setting aside the orders -- of. the "Tribunal, "thereby treating the selection as PA as a promotion and not as 4 direct cecruiement =...
Soumya s. D. and Ors. (2026) 9 sce 352, decided on 42.8.2016, wherein it was held that. recruitment of GDS to the. cadre. Of Postman through . departmental examination was.a direct appointment because promotion . 4 to a post can only happen when the promotional post zora(as) 8. .c. 7 "ge, wnete at chad. "been: held. that WE PB. (cy No. 2887/2012 > Man 1 Singh v. 'Uadon of India. and.
Ors. decided con 24.12. 2012 and Ajay Panday. ve ; vor by LDCE ise -case of. 'promotion 2nd recorded dts oo.
oo AT, The learn ed counsel" also referred to 'the Judgment et the » Fen'bie Apex Court | in YW. -Majithanol and Ane. We . . 5G oe OA Nos.573/2014, 190/2018; '17/2017, 184/2017, 1895/2017, 63/2017, 2635/2017,
266) 2017, 296/2017, 297/2017, 450/2017, 4985/2017, 3753/2015, 5153/2015, 676/2015, 6711/2014, 672/2014, 673/2014, 674/2014 and the post being promoted from of a part of the same.
Apex Court in C.C.Padmanabhan v: Director o£ Public Instruction: --
"...This -definition fully. conforms: té the meaning of 'promotion as understood in Lo.
ordinary variance 1d. also as .4@ te ad. 4 frequently us laws. According «to it a person already poiding @ post would nave a profidtion if. he is appointed to another post which satisties einer of the following two conditions, namely-
. {i} that the new post.is in higher category of the same service or Glass of service;
(ii) tha néw post carries a higher grade in the same service or class"
The crucial determination fer this: analysis were the RRS on Che sSubvect. Learned counsel argues that the definition cf promotion as reiterated by the Hon'ble.
Apex Court in the case also prov rides the underlying reasons why the appointments through LDCE within the departmental employees cf the Postai Department to which GOS do net beiong, are ingeec in the nature of prometion and are not tc be considered as direct & r ceses invelving service tm aed already kept the question ee ee -- | a OANos. $73/2014, 19072018 i 1/2017, 184/2017, 185/2017, 2063/2017; 265/2017; 50/2017; 495/201 7, 375/201 5, 515/2015, 676/205, "26/2017, 296/2017, 297/2017, _ 6712014, 67212014 2014, 674/2014 > Othe views" pipressed. by: the High 'Court of Karnataka at sharwad (supra) in his support. rirther; he 'urged that
- the decision of the Ahmedabad Bench of this Tribunal "in OR No. 93/2019 etc. "entirely followed Bhanwar Lal "Regar (supra) directly or thro ough the medium of the other Suagnenes cited in the matter and hed adopted those: decision 1s. purely as a matter of judicial : propriety | However, in tems or. the. decisions taken by the Full Bench of this 'eipunal, at, the: 'principal 'Bench | 7 OA. No. $55/2002 along. with six other OAs "in mantener of India and Ors. (98 16.4.2004,.
it was held that various benches. Of. this Tribunals:
Pod need £6 Follow, certal LT; princi ipl es for. deciding cases in the face: of "sodgnent's passed by High courts and laid down the following in para. 27 of its order:
wa BAT Consequently, we _hoid: -
1, tha st if there isa "Judgment of the High Court on the point .. Raving =. | territorial --
jurisdicrion over this ~--
Tribunal, it would be bi dings | ae decision of jurisdiction on the point. -
-tnvelved but there is a4 decision of the High Court anywhere in. India, this) Tribunal would be bound by the Of dew open and referred TO. Se 7 the High Court 00 having ae territorial: ooo.38
OA Nos.573/2014, 190/3018! 1714/2017, 184/2017, 185/2017, (263/201 7, 265/2017, 266/2017, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, $15/2015, 676/2015, 671/2014, 672/201 4, 673/2014, 674/2014 .
decision of that High Court;
pn 3.0 that if. there re confiicting decisions. of the mich Courts including the High- Court having. the territorial urisdiction, the decision of the. Larger . Bench would bi nding; and mon a0)
4. that. if there are conflicting -decisions -of the:
High Courts including the ons Raving 9... - territorial jurisdiction them . following the Ystio- of the. dudement in the "Case "GF 0. Indian.
"Petrochemical Corporation Limited 'tsucra}, this Tribunal would be free to take its own View (¢ atcept tne ruling of either of the Eigqh Courts rather that expressing third point of view".
Learted counsel referrsd. to the orders passed by the Bombay Sench of this Tribunal ih GA Ne.509/2012 dt.
one "upgradation was denied on treating the elevation feeth Group "D*' to Postman as prometion. This Bench of the Tribunal then preceeded to examine the decision in Bhanwar Lal Regar (supra) and noted the failure of respondents to present the RRs in support of their contentions. The Bench aiso noted that in contrast to vleadings of official respondents in Shakeel Ahmed adh oo
- the department... -
Vicky, Nagran VL: argued thet the Ahmedabad Bench of 'this .
~ OANos. S73/2014, 4190/2018, '4712017, "134/2017, 4185/2017, 263/2017, 65/2017, 26/2017, 29612017, 297/2017 moi20t 5/2017, 3753/2015, 5153/2015, 676/2015, pany BORAT 3 before the erincioel noch: in the case "being heard, the respondencs hed. extensively relied on the RRs of 1969 which supported their. position. After (discuss? ng and, 'highlight! ng the _Jadgment ef.. the "50 dont pie. Bigh, Court of 'Delhi in. Uttam. singh and Ors.
= (supra), the OA was dismissed, upholding the orders. of --
48, In "rebuttal, learned counsel for applicant Shri _tetbunal he sa adequately. a considered, all aspects neiuding. 'the RRs and the. 'difference "between direct recruit applicants and» departmental applicants.
Further,. various, High. Gourts hed also, passed, Judgments bh thet supported the: Sdase:co 'the applicants. On the aspect of judicial propriety he, relied én the ruling of the: Hon! ple Apex court in $. I. Rooplal | and. Anz.
. ub. Governor, AIR: 2000. st "594, 'that. in case. of oF. gutterence.: of 'opinion. sabwaen two. coordinate Benches, "oS ehe: matter: should be referred to 8. larger. Bench. Perther, he referred 'te the interpretation by the "Ahmedabad Bench orders, orders.of the Hon'ble Apex.
Court in SLE No.48/20T6 in D,Sivakumar (supra), keeping the question of law open, wherein the Ben rch recorded as follows:
60OA Nos.573/2014, 190/2018, 17472017, 184/2017, 4185/2017, 263 2017, 2635/2017, 266/2017, 296/201 7, 297/2017, 450/2017, 495/201 7, 375/2015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, §74/2014 425 As noted a (C} No. 4846/2070 las gpen, so the control to analyse he. Rules in their entixvety, to see possibiiity cf a issue whether jeining as Postal Ass a mature of promotion or otherwise, thus only vested either in Hon'ble Supreme | rod .darger bench. of the Righ Court. Thereiore, when at is not in the domain of this.Bench to take the. contrary view, it would cniy. be a futile exercise, te ge 'inte the import of the Rules and we therefore, py" accepting - the law laid down by-
Hon' ble. High Courts and Coordinate Benches of this Tribunal on the issue, and hold that post of Postal Assistant is not a promotional post of che Postman". -
Im tegard to the various judgments cited by the Annexure AF~1il which ars clarifications issued by the:
hat he. states is related to GDS and was ivyrelevant to the present issued, Further, he argues 7 ND ce) i> OG oO ae i rs Qa 4 S Cc.8
et oO to a o i 3 ae o fied hh Fe ad, Oo I ae] Ea ei oF Q mt) ee) while pointing cut that the decisions of the Eon'ble High Court of Rajasthan in the case of Kulwant Singh and Surendra Peepliwal which followed Bhanwar Lal Regar ({(supré) have been implemented. He also drew kect the que stion of cate : ie distant from the post of postman, is in.
"aly wr for PA. He also reiterated. 'the need for 'this Bench no.
observe canons of judicial propriety .
18. Wie have heard the learned. counsel for the --_ applicants 'and the learned "counsel for "the -
"respondents at length and have carefully --
considered thé: facts,. circumstances, law points:
and rival contentions in the case.
a 20. In. order to deal with the arguments © ei) "respective parties, w we. will first look at certain fundamental issues raised by "them "that have relevance "to. the. 'present case, 'Many. of the "applicants /petitioners ain these. cases: wave: sought ve to apply the principles" Annered_ ia. 'the 'scheme of TBOP and 'BCR as also applicable to) "the ACP cy "MACE schemes. The 'Hon! 'ple Apex Court has held An Union Of. redta & ors vs. M.Mathivanen, (2006)6 SCC 57, that the services "referred to under the ACP > _ and MACP differ from the description of service in | "the TROP and BCR schemes. The eligible conditions i oe of 16 years of service in -TBOP and 10 years of service. in BCR included non-regular, 4s well. as, OA Nos.573/2014,.190/2018, (71/2017, 184/2017, 1853/2017, 263/2017, 2653/2017, 266/2017, 296/2017, 297/201 7, 450/2017, 495/2017, 375/2015, 5315/2015, 676/2015, 671/2014, 672/2014, 673/2014, 674/2014 regular service, but the essential- condition was chat the service had to be rendered in the same~ grade. However, in the ACP and MACP Schemes, the term used is regular service wherein. the date of 'entry into regular service of the Government is © the critical parameter and not che grade in which "the employee was stagnating. 'The Hon'ble Apex.
Court's view are as under: |
13. Reading of the above two paragraphs makes it abundantly clear that so far as "placing of an officer in-the "next higher grade" is concerned, what is relevant and material is that such official belonging to basic grades in Groups. °C' and. °D* must have. completed "si service in that. rade". The said paragraph nowhere uses the. connotation "regular" service. Para 2 which provides for the Departmental Promotion Committee and consideration of cases of officials for "promotion", provides for sixteen years of "regular" service, The Tribunal, therefore, rightly considered para 1 as rélevant and held that basic eligibility condition for being placed in the next higher grade is that the officer must have completed sixtéen years of service cin the basic grade in Group °C' and Group "D', Theugh in other paragraphs, the | service was qualified py the adjective "regular", the said qualification was not necessary for the purpose of para Il.
"Since the employee wanted the benefit of placement in "next higher grade", what Was required to be established by him was that he had completed sixteen years of
-OANes. $73/2014, 19072018, | 701 ~ 266/2017, 296/2017, 297/2017, 450/20 17; 495/2017, 3758/2015, $15/2015,,676/2015, | 6712014, 67212014," 673 --
73/2014 674/2014- Service' 30.9.1983: he. "was: appointed . as Warrant | OE ficer. "He" wes, therefore, ventitied tooo the. 'benefit of "next higher grade" ander para: i from 1999, The. authorities. 'were, . therefore, "not. justified | jn rejecting the =< 5. claim and. accordingly 'the petition. Was allowed. The High Court: rightly: upheld...
: the: al recti on. of CAT". --
On the svove basis, it is. clear 'that. ACP and MACE become applicable 'from the date 'of entry cand. > PrOmOE TONS or. "financial: upgradations | have to be seen" over. the period of such. service with one "promotion. prior to 1999 excluding 'one. ) financial 'upgradation under 'the "(RCE and sinilariy, ceach | promotion = or. more financial "upgradation under
--TBOP/BCR/ACE "excluded similar number of upgradations, under the MACP 'Schemes. with e oe On © the: aspect of the 'distinction between promotion 2 and direct appointment which had come up -
- - 'before ¢ the 'Hon'ble Apex Court in. Y¥. Najithanol and cb ge! teapea), 'that person's elevation - "would be eee considered as a groméotion if it fulfilis either of the eel conditions that the new post was in a "higher category o*€ the same service or classes of service or the new ~ post carries higher grade in the .same service or 4/2017; 185/207, 263/2017, 265/2017, "grade and the. said.
- Fequlrenent had "pean | complied with cin view of the: fact. 'that. with. effect from i , 64 OANos, 57312014, 190/2018, 1711/2017, 184/2017, 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/201 7, 450/201 7, 495/2017, 375/2015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, 67472014 | class, In that case; after extensive discussion of the RRs. for Postman, the Hon'ble Apex Court ruled that EDA/GDS were civil posts, but they were not part of --
the regular. service. of the Postal. Department.
Therefore, an EDA/GDS becoming a Postman or other post in the Postal' Department was & direc ct appointment.
Apart from. this principle that may be drawn from the aDOVE appointment, decision, of: the" Hon'ble Apex court, ~ lies the interpretation of the RRs it "self and. which the Hon'ble. Apex Court itsel= described. as at the heart of the controversy. This description of 'pfomotion was. also. an elaborated in. R.Santhakumar Me the elaboration was made in order. to arrive Bt aoe distinction between promotion and upgradation.
22. On the aspect of precedents which has been urged by the learned counsel for applicants and argued. in a respon ise BY Che learned counsel of relevance to recall the observation of Justice H.R.Khanna in the Landmark Judgment Kesavananda Bharata v. State of Kerala, AIR 1973.8C 1461, where he noted "The Judges in fact, shine with reflected alory, for their judgments verily reflect the industry of the counsels appearing before them". In Peter v. Sara, for respondents; it is.' ay Sno 1184/2007; 4185/2017, 2632017, 265/2017, 9017,495/2017,.375/2015, $15/2015, 676/2015, 3/2014, 674/2014
- 766/2017, 2962017, 29772017 (et "BN2014, G72 Oy Court of, Kerala hed observed:
-wwhere "a precedent -- ise "not followed and.
'anothex. aeci sion ig xvendered, in view of th a : conflicting. position;.. the legal ant inomy must.) So 'be. resolved. by a Division: 'Bench, Full! Bench, 202° i as the case. may be, 'where one'.
Larger "Bench, view. would» ve. te 'be "formally overruied. a Further, 'the "Hon'ble "pe : 'Courts, had held re 2008 (1) BLT tore 'Sc:
"lz. 'any 'gmalter or... coordinate. . bench must. 3 "mast choose. -to. follow. the. earlier . binding "precedents. notwithstanding 'the ater per...
coors inate. bench."
"court Ane 'Mamaleshwar 'prasad. v. " Kanbaiya Lal. gonads 28 "AIR "1975, sc 907:
"Certainty of the law, consistency of rulings ~ and comity of Courts all flowering from the 'the rule that, in exceptional instances where pull Bench of the Hon'ble 'High | Bttappadan Nhannedkatty ve Ez. E. -Rbdul Lakoys and, Anz, - aa _enfortunately overlocks. or omits 'to refer to "an earlier. binding. precedent. Of va larger. or. "coordinate -- 'perch. - and. ao conflict. -+ exists oe such later decision has ne binding sway and s be. reckoned | as rendered per incurilam.
. Such "decisions : 'per inctiriam .. cannot. be = _ followed. _ Superdinate . Courts... "with orespect ° incuriam decision. of... the. smaller of"
This Judgment xref ferred, to the: observations of the Apex ey same principle converge to the conclusion . that a decision once rendered must later bind 007. oLike cases. We do not intend to detract from...
'by obvious inadvertence oF oversight a judgment fails to notice a plain sta utery o provision. of obligatory authority running _ counter to the reasoning and result reached, '6G.
QA Nos. 57372014, 190/2018, 172017, 14/2017, 185/2017, 263/2017, 2365/2017, 2366/2017, 2596/2017, 297/201 7, 450/2017, 4935/2017, 37: 5/2015, 5315/2015, 676/2015, 67 1/2014, 672/2014, 673/2014, 674/2014 it (may not have the: sway of" binding _ precedents. It should be a glaring case, an 'obtrusive. omission. No. such situation "presents itself nere and we do not embark on the principle of judgment per incuriam'. a On the aspect of whic f Judgment to adopt. in terms of theis chronology, the Ho n'ble Apex court held in' Delhi.
| Transport Corporation yl DTG: "MazdSor 'Goagrées (1991) Supp. sce 660:
"
considerat: én of issue cannet be. deemed t a law declared to nave a binding effect combemplated by Art. 14. of th Constitution." | i oP oO ree By a Pod Further, in State of U.B..v. Syntheties & Chemicals "Any declaration or. conclusion ar we DORE apolication of mind or re itnout eny e Seclaration o nature binain without reference to relevan law is weaker than even casual. observation".
_ Further, on the inteil igent choice to be exercised py.
'@ Court when faced with conflicting decisions cf the Apex Court or of a superior Court, the Hon'ble Chief Justice in Municipal Corperatien of the City of Ahmedabad v. Chandulal Shamaldas Patel, (1970) 1 scwR 183, relied om a Tew English Au ithorities including:
'Hampton v. Holman, (1977) 5 Ch D 183 (Jessel :+.8 decision which is. not expressed and is not, found on. reasons . mor. proceeds on # Rehecenminminy ypivcata oy "OANos. 57312014, 190/2018, 171 017, 184/0017, 185/2017; 2063/2017, 265/2017,.
--266/2017, 296/2017, 297/2017, 450/2017, 495/2017, 375/2015, $15/2015, 676/2015, : 67/2014, 672/2014, 673/2014, 6742014 | _ M. R) "Miles" We "Jarvis, (1883) 24 ch. D 633, (Kay, 7d and: "Young Vv. Bristol Aeroplane "Co. bed. (1940) EB 718".
approval the > view - of. the great... constitutional | "Even 'though' at is' - perhaps unconventional | to "quote .a "living. authority, at deserves:
recalling that. ..Mr.Seervai in" his. latest edition of -his- "authoritative work in. the Constitutional baw of India 'has opined €85. .° . follows:- "¥**But' sudgments of the Supreme -
-. Court, which cannot stand: together, present @ serious problem to the yhigh Courts and to. ' . subordinate. Courts. It is submitted that. an such 'circumstances the' correct thing. is to follow 'the judgment» "which appears to the Cotirt to state the law 'accurately or more accurately: than) the ~ -other . conflicting This position was) summari zed in: 'Amar 'singh Yadav. we Shanti Devi AIR, 1987 'Patna 19h . B. dy where 'the cae uon'bie High Court of Patna: held that:
"enat where there is @ direct conflict "between two decisions: of "the "Apex Court:
.. rendered Dy'. Benches of. equal - strength, the High Court must follow that judgment which appears to at to. state the law. more 'elaborately _ and accurately. . The | said observations are to be found in para 24 Of the judgment at page 201. ne Since the judgment of a Court deals with. and arises at =) 2 tudgment. based on its racio deciden rG4i, what is apparent from the ebove analysis of respective precedents 'is that when two ratios of respective Further the Chief, Sustice quoted, with high regard and | OB OA Nos. $73/2014, 1960/2018, 171/201 7, 184/2017, 18572017, 263/2017, 2635/2017, 2066/2017, 296/2017, 297/2017, 450/201 7, 495/201 7, 375/2015, 15/2015, 676/2015, 671/2014, 672/2014, 673/2014, 674/2014.
two wtatios are available se
0. 5 ct if } a ui ct ey fu c i + ) including those of ectial streng sth of superior Courts, che merits of the ratio Uh for opting for one or the cther and not in terms of tt heir. chrorology. At the same time, this Tribunal is of the Full: Bench in Dr. A.R.Dawar (supra) .
23, "Having covered fundament al issues that guide. this bench of the Tribunal, neither parties Wave brought to High Court" of Bombay that may have binding effect on the decision of. this Tribunal in this case, The only ft Wi 'fil
a) if or due.
mn ce fy availiable to us is the orde of this Matienal Unien of Postel Employees v. Union. of India "theré is no recerd in this bench of any appeal filed éfore the Fon'ble. High Court, Therefore, this order coordinate Bencnes inciuding tne coordinate bench at pot Anmedabac which has been relied on considerably by the applicant. Having said that and keeping aside these alone should be the. criterion.
iso guided by the directions centained in the orders ra "OA Nos. 5973/2014, '902018, 1712017 18472017, "495/2017, 263/2017, 2965/2017, 266/2017, 296/2017, 2977/2017, 450/2017, : 95/2017, 375/201, 515/2015, 676/2015,.
- 671/2014, 6722014, 6793/2014, '67412014 -
orders 'for later 'consideration, in the present: order, Lo ae now proceed. 'to. 'examine the dec isions of various: io igh Court, "thet aze apparently conflicts ing in terms of cheiz 'gecision in regard £0" nearly "iden ntically placed pez rons: Oe ae. east, in terms of eget principles smvoived: We also note chat in: both the decisions on ~ SEP Fiied in 'D. Sivakumar. and Anr (eupza) decided by' the. "Hon'ble: a Loh. court, of Madras: and in Surendra oie 'Peophinal (supra) decided by the Hon'ble High Court rob Rajasthan "at. "dodh BEE, "the Hon'ble" Apex Court) had dismissed the SEP, but kept the 'question of law open.
on" 'this "aspect of. whether the rejection of the SLE.
would gnount to rejection of the merits of the case, the coordinate 'bench of. thi 'S. Tribunal at 'Ahmedabad i consider ed that despite the fact. "the © the Hon'ble Apex Court. had. held that 'the question 2 law was kept open -- and despite, che surther fact that the RRs had r net been ple lac ced before. the. Hon'ble High courts of Rajasthan at Jodhpur and vabpasy they. were "compelled baer Eoliow the ratio' dee idendi set by the High Court in conformity with che rules of jue hicial propriety. As extracted earl iex in these orders, they hel id th 2 view that it was not within "the domain of t the Bench to 'take a contrary view and it would be a futile exercise to go _ ag OA Nos.573/2014, 190/2018, 171/2017, 184/2017; 185/2017, 263/2017, 265/2017, 266/201 7, 296/2017, 297/201 7, 4350/2017. 495/2017, 375/2015, $15/2015, 676/2015, 671/2014, 672/2014. 673/2014, 6742014 into the imoort of the rules and therefore, they ware.
fea accepting the law as laid down by some of the. Hon'ble
- High Courts and coordinate benches of the Tribunal. To reiterate however, this bencn in its orders dt.
17.9.2019. did not take. account of the preceding decision of the Bombay Beneh in O.A. No.509/2012 ct. S, 11.2016 which tock a different view and disallowed the OAs treating the elevations as promotions and. not as direct. recruitment. On the other hand to this Ors. Ys Smt. R.&.Kulkarni ~ (supra), discussed the mergers as ¢licited in Kunhayammad & Ors.
reproduced in previcus paragrapns cf these orders. If also took mote of the fact that The Bangalore Bench in OK No.1259/2014 of Sri.Krishnaiah, had considered the judgment of Hon'ble High Court of Rajasthan at Jodhpur. in Bhanwar Lal Regar (supra) and where the cdordinate Bench had noted that the relevant rules had not been 'brought to the notice ef the Hon'ble High Court of 4 Rajasthan and hac that been done, the deciBisn would haye peen otherwise. The Court also noted that the ihe a idelacani en jo oto "OA Nos. 5373/2014, 4, 190018, 2 472017, 1895/2017, 263/2017, 265/2017;
2662017, 2986/2017, 297/2017. 50/201 6712014, 67212014, ie 20K siar20i4 court of "Karnataka Kalaburegt 'Bench: sin the « case "of The 'Union of India and ors. re , Shri Basanna Nayak (supra) had relied en: 'Bhanwar tal Regaz (supra) and. allowed. the "oR. However, the Hon'ple court in is dec ision now. ~ relied On. the previous Secision of ite coordinate.
"bench in, M. s. shivalingappa. (supra) and neld against ple employes (gespondent) Th 3B relevant 'aspect -to be. "noted! in the present content 4 is. chat the Hoa' n'ble High. court ef Karnataka acopted che better ratic between _ che previous jeegments of. the sane, High. Court in Shri . Basanna~ Naysk- (supra) and M. Ss. -Shivalingappa (supra) i and found. the. latter téchave get out 'a better ratio.
(24, in considering the. various: judgments: relied upon By. the. learned counsel for applicants, what stands out 8 are. "that the: judgments in 'Bhanwar_ 'Lal Regaz, Har a Govind | Sharma and. Jagdish Prasad 'Sharma. (supra) have been recalled, No decisions of .the 'Hon'ble High Court | are now available for reference. 0°25, With regard to the decision of the Hon'ple High "Court ef Rajasthan at Jodhpur in Bhanwar al Regar (supra) we have already reproduced the observation of the Hon'ble Apex Court when it analysed the case of ¥Y.Najithamol and Anr. (supra) and went into the 95/2017, 375/2015, 5315/2015, 676/2015,. oe a IR Oo OA Nas. 57372014, 1902018, U7i2017, 184/2017, 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/2017, 450/2017, 495/201 7, 3752015, 515/2015, 676/2015, -
671/2014, 672/2014, 673/2014, 674/2014 .
"details of RRs which it sta sed was-at- the heart oF the controversy. Even in this controversy, the RRS are at by @ es : to Hon'ble High Court did not take into consideration the RRs and instead stated that they were not produced ~ before them for their consideration, the ratio itsels becomes: unavailable ts be: adopted. THis was also observed by thé. Hon'ble High Court of. Karnataka in Smt.R.K.Kulkarni (supra), had been obsérved by tke Hon'ble High Court of Rajasthan at Jaipur with regard to Har Govind Sharma {supra}. Cne way «ts decide between ratios adopted in different judgments was the g f 3 ; . t © Je a q é ad espon dents Mad proanucen ine RAs for consideration cf
-
CF eH the. bench and ch:
of the case consider Bhanwar Lal Regar (supra). However, 48 we have discussed, above, the supericr approach would be to note that the Hon'ble High Court of Rajasthan and the Ky a KH @ (ir oO ct ge
a) jf fy G ci 'on ee rs c a 1 "coordinate bench at Jodnou peculiar Situation cE net having access to the RRs and therefore, their ratios here no relevance te the case peforme us.
Aeart of the matter and when we consider that the
-
Bszdactuecgebtevaytaebinw Peace ett nn nat ciegeue hd ond evnmninracond Eakis oes. : a uo
26. As: wegards the "case coordinate "bench. Jodhpur (supra) and further, aft er noting that the RRs "be aL ppropriate to: fol low the previous sudgment of th coe oR 1711/2017 24/2017, 185/2017, 263/2017, 7265/2017, "96612017. 296/2017, 3917/2017: 450/20 sera, +375/2015, §1$/2015, 676/2015, | 6711/2014, 672/2014 673/2014, fast rules and in. the face of. the pendency of Bhanwar tel 'of the service z rules. and py. -relyt ngcoe the aacision ae. = the " faggnent of the Fon'ble Apex court "an eR, Santhakumar | Velusany § ore. (espe) such . advancement: 'Gan. only 3 be. considered" as a promotion. hes che matter cane tp up. for "final hearing + bet Fore the Fon? thle igh - 'Court of Rajasthan at abpoe, che case of | _ Bhanwar Lal Reger (supra), had 'been. decided by the nd (by! 'relying 'On. the decision in. ger Govind 'Sharma, Bhanwar Lal. Regar us had not been produced bet ore the Hoa'bie Hi gn. Court of Jodhour -
an: Bhanwar tal Regar (eupea), it decid ded. that. it. would he coordinate bench of the Hon'ble High Court. Wwe nave discussed both those cases relied on in previous 'saregraphs. Further, we aise note that the coordinate ' bench of this Tribunal referred te the service rules, but this was not done boy the Hon'bie Eigh Coure of
- (gupra), the: OA ha a. peor distlssed by the come bencn at Jaipur. after. perusal of. che relevant 'service ms "Reger. "Geupeay, before the Fontble High: "court, of 'Rajasthan. at 'Jodhpur, but" aft er. analysing the: "gatare "= _ 9h oo OA Nos.573/2014, 190/2018, 171/2017, 184/2017, 185/2017, 263/2017, 265/2017, 266/2017, 296/2017, 297/2017, 450/201 7, 495/2017, 375/2015, 515/201 5,.676/2015, 671/2014, 672/ 2014, 673/2014, 674/2014 Rajasthan at Jaipur. Therefore, it would. not be available as a ratio for consideration cf this Bench.
27. Learnéd counsel for the réspondents has referred | 'tao the decision of the judgment of the Hon'ble High Court" of Delhi. in Uttam Singh (supra) + which Was 'interofeting an RR by reference. tol a past: pEdétice.-
"consistently followed by the concerned respondents.
The Hon'ble Court followed the dudement of the: Hon'ble "Apex Court in N. Suresh Nathan and Anr. | (supra). and held that cthis dictun of law where the RR hes been carelessly framed would where there is an. ambiguity in the RR. However, what is clear from this judgment is that it is thea RR whict ey re i adjudicating Court or Tribunal fer the purpese of oem ke ae ee practice consistently followed. Phi judgment also reflects the concern of the Zon'ble Apex Couzt when it declared in ¥.Najithamol and Anz. {supra) that the RR is at the heart of the matter. We also note from the orders at para 2 which atfirm:
"|, Notwithstanding it being settled legal positicn 'that appointment en promotion through a 'Limited Departmental Competitive Examination is not appointment by direct recruitment,....
d aoply with even greater vicour to be carefully examined and considered by the 7 However, the Judgment does not make any: ref specific eitat fons" in support. of chis aspect which :
84/2017, 4395/2017, 263/2017, 265/2017, » 95/2017, 37572015, 15/2015, 676/2015,.
whia sspece. : o "stated in para 13. as aa 8 ee Tt. is settled 'law that appointment ftom ae Se a, lewer: post, on the. basis of @ Limited 990... ~ Departmental Competitive. _ Examination; is 000-00 / appointment by: promotion. and not appointment. Ooo o By. direct. recruitment", fe cy 'a -
\ w ie TO that. there have, 'been. a nur witber of. cases decided by> this
- ben ach and, other benches of the, Tribunal, as well aS, "several 'courts. where "Lpce. examination. 'conducted. by. --
a diffe rent. "sepertments "4s consi dered 'as. regular oo...
ry promotion (right from: 'the introduction . of suck 8a scheme. In fact, pronbtion in a department ig normally ees through the assigned: channels: for each: posts Promotion: 00 'made wine about' by way of nerit-cun-se eniority 'based en Be "ipma screening oe through selection process Or else, | or the ° case. of one or 'several 'channels "provided to ao ae ia an mas ty tanieacet owes _ through the LDCR. Whefe the RR explicitiy provides for direct. recruitment and a share 'thereof, such direct "recruitment is also a mode of induction. However, that | does not make ea long held 'princi iple and.a method of elevation by way of promotion through LDCE and other sere 3 'law _ in. 'the matter, is ren erence, (too ee cache hay tonne Hares tee ta , OA Nos.573/2014, 190/2018, 171/2017; 184/2017, 7185/2017, 263/201 7, 2635/2017, 266/2017, 2906/2017, 297/2017, 450/2017, 4952017, 3753/2015, 5153/2015, 676/2015, 671/201 4, 672/2014, 673/2014, 74/2014 "means into a direct: recruitment and 'these dre quite "applicants that there isa confusion in the RRs and.
aa which. provides an avenue for introduc tion of a "past "practice nor have che applicants clained that there is.
any past. practice of nis kind in the matter, Further, -
when we observe from thése judgments and the origin of o the practice of the LDCE that ch in this matter as observed by the Hon'ble High Court 2OOK into the RRs even at the cutset. But, this hes.
done explicitiy by 'the bench which considered the batch of cases in Ram Karan Kumhar, Surendra 'Peepliwal, Jagdish Prasad Sharma and Dev Karan Mahala and Ors. (supra), ded by OA No.321/2011 .
28. The respondents have also referred toa the decision on of the Hon'ple High Court in M.V.Akkiniveeranan and Ors. (Suore) whicn was also based on the RRs. We are uy alsc bolsterecé by the emphasis placed on the RRs by the Hon'*ble High Court of Punjab & Haryana Hich Ceurt re is @ settled law a.
| Oe oT "OA Nos.573/2014, 190/2018; 1712017, "94/2017, 1185/2017, 263/2017, 265/2017, 26/2017, 296/2017, 297/2017, 450/2017, 495/2027, 375/2015, 515/2015, 676/2015, 671/2014, 672/2014, 673/2014, 6742014 which has discussed at. Length ee: various cases. relied on by this applicant and has: referred to. the: jedgrents of: the Delhi: Hegh court in ™ Man Singh and May, Pandey (supra) with regarg | to. che: prior decisi ons of benches.
of this: Tribunal, we' note, from..the' orders of. the Ahmedabad Bench in "Netvarbhat 5.Makwana (supe ra) _ decided" on a. 3. 2019. 'that it relied. entirely on oD. Sivakumar. and. Ane. "{supga) abd in consequence, on
- Bhanwar Lal Regar (supra). The first case relies on 'che second case and ne have discussed their arguments, "and their: lack, of reference te TE xe RRs as required by the Hon! ble: "Apex court. whi le deciding that 'there is no Sige EE ratio avaiable. £ for conpartecn with the vadguente mee / ether 'High' Court S in this regard, which we are now competed | to: eva luate: by virtue of the fact. that the 'Hon'ble Apex Court nas Kept the. Leste Open in law. The.
"orders of the Ahmedabad Bench alse did 1 not take note "of the: previous orders of, this 'Bench in On No. 09/2012 a decided on 18. il. 2016 of. the National Union. cof Postal Em Loyees (supra) « Therefore, we would ordinarily nave iP Db simply adopted the previous Gecision of Ehis. bench of "48.11.2016 as. a binding precedent. "However, cin the face of contending arguments. etore: 'various "High Courts and because such an evaluation of. these » ~ OANos.573/014, 190/20 18, 171/2017, 184/2017, 185/20] 7, 263/2017, 265/201 7,
-- 266/2017, 296/2017, 297/2017, 450/201 7, 495/2017, 3 73/2015,.515/2015, 6767/2015, 6741/2014, 672/2014, 673/201 4, 6742014 different tudoments were either not b "AStice: of this Bench at that point. fs tim "Felative evaluation tas not made to 'decide én the gments to follow, < Precedent judg his. exercise has. been "29> Th Conclusion, we hold that the LCE held by wi hich (RAVINDER KAUR) (R. VIA ) (O43 MEMBER (7) AUB ) S58