Central Administrative Tribunal - Ernakulam
P.S. Narayanan Chettiar vs Sub Record Officer, Rly. Mail Service ... on 24 December, 1999
JUDGMENT G. Ramakrishnan, Member (A)
1. The applicant a Head Sorting Assistant working in the Sub Record Office, Railway Mail Service, Changanachery has filed this Original Application aggrieved by A2 order dated 5.8.99 issued by the second respondent directing the first respondent to make arrangements to man the Head Sorting Assistant, Changanacherry Stg/B according to length of service as the said post was not an identified norm based supervisory post. According to the applicant, Stg/B was identified norm-based supervisory post and he was senior to the 4th respondent.
2. Applicant entered service as Sorting Assistant (SA for short), Railway Mail Service on 15.12.65. Subsequently he was promoted to the cadre of LSG (TBOP) w.e.f. 30.11.83 and to the next higher grade of HSG (BCR) w.e.f. 1.1.93. While he was working as HSG-II Sorting Assistant, Changanacherry, he was posted to the post of Head Sorting Assistant (Supervisory) w.e.f. 1.9.94 in the vacancy caused by the voluntary retirement of Sri G. Chandrasekharan Nair, HSG II Sorting Assistant (Supervisory) by virtue of his seniority. Applicant claimed that he was the seniormost HSG II Sorting Assistant, Sub Record Officer, Changanacherry and was holding supervisory post since 1.9.94 and that his seniority position as per A1 Divisional Gradation list I as on 1.7.96 was at Sl. No. 47 whereas the 4th respondent was at Sl. No. 98. By A2 letter dated 5,8.99 second respondent directed the first respondent that the post of Head Sorting Assistant (HSA for short), Changanacherry was not an identified norm based supervisory post and therefore, arrangement of Head Sorting Assistant to the said post had to be made according to the length of service. Relying on A3 extract of the Divisional Gradation list an on 1.7.96, the applicant submitted that the Head Sorting Assistant, Changanacherry Stg/ B in the said Gradation List was included as supervisory post (norm based) and that the statement made by the second respondent that the said post was not a norm-based Supervisory post was patently wrong. The Head Sorting Assistant, Changanacherry Stg/B was a supervisory post which functioned from 1720 hours in the evening to 0600 hours in the morning and 18 staff such as Operative Sorting Assistants, Mailguard, Mail Man and ED Mail Man were working under the Head Sorting Assistant, Changanacherry Stg/B Applicant claimed that as per rules he was entitled to continue as Head Sorting Assistant, Changanacaherry Stg/ B and the move adopted by the 2nd respondent to replace him with 4th respondent who was junior to the applicant stating that the post was not a supervisory one was injurious to him. Applicant stated that he was pretty senior to the 4th respondent and it was settled principle that a junior official could not supervise over a senior and hence the steps to implement A2 order by replacing applicant with 4th respondent who was junior to him was arbitrary, illegal and violative of Articles 14 and 16 of the Constitution. Applicant pleaded that A2 order passed by the second respondent was only to accommodate the 4th respondent with ulterior motive and extraneous consideration and was therefore liable to be quashed. Applicant submitted that the 4th respondent came under Rule 38 (2) of P & T Manual Vol IV from Bombay Sorting Division in 1972. The applicant's seniority position was at Rank No. 278 whereas that of the 4th respondent is at Rank No. 448 as per the Circle Gradation List of Railway Mail Service officials of Kerala Circle as on 1.7.77 in support of which he produced an extract of Circle Seniority list as A5. According to the applicant promotion under TBOP/BCR did not affect the seniority of the officials in any manner as the same was based on the length of service of the officials concerned and not on seniority. Applicant further submitted that second respondent passed A6 letter dated 8.9.99 when the matter was pending before the Tribunal and the same was unfair and arbitrary. A6 had no legal legs to stand on and was liable to be rejected. He further submitted that the respondents had published A-15 Circle Gradation List of Railway Mail Service officials on 19.4.99 as on 1.7.93 showing applicant's seniority at Rank No. 239 while that of the 4th respondent at Rank No. 172 erroneously. Applicant claimed that the said seniority was illegal, arbitrary and in contravention of the rules in as much as time bound promotion (BCR) could not be a basis for fixation of seniority and alter the subsisting seniority in vogue which was settled already. He sought the following reliefs:
(a) Call for the records leading to the issue of Annexures A2, A4 and A6 and quash the same;
(b) Declare that the applicant is entitled to continue as Head Sorting Assistant, Changanacherry Stg/B and direct the respondents not to replace him from the said post.
(c) To declare that the gradation list published on 19.4.99 by the respondents as per Annexure A-15 is illegal arbitrary and invalid and quash the same to the extent it ranks the 4th respondent above the applicant;
(d) Pass such other orders or direction as deemed just, fit and necessary in the facts and circumstances of the case.
(e) Award costs of and incidental to this application.
3. Respondents 1 to 3 resisted the claim of the applicant by filing a reply statement. They submitted that there were other HSG-II Sorting assistants senior to the applicant working at Sub Record Office, RMS 'TV' Division, Changanacherry. The applicant was permitted to work as Head Sorting Assistant, Changanacherry Stg/B which was a non-supervisory post since there was no other request from amongst the senior officials of the Sub Record Office, Changanacherry. They submitted that applicant was not posted against a supervisory post as a regular measure. The 4th respondent entered service as Sorting Assistant in 1.7.64 in Maharashtra Circle earlier than the applicant and he was transferred to Kerala Circle on request under Rule 38 of P & T Manual Vol. IV. He was promoted to the cadre of HSG II (BCR) w.e.f. 1.10.91 much before the applicant. The 4th respondent who was senior to the applicant made a claim for the post of HSA Changanacherry Stg/B and that not being an identified norm based supervisory post, the list respondent was directed by the second respondent's office to make necessary arrangement in that post according to length of service by A2 dated 5,8.99 and based on A2 letter an order was passed on 7.8.99 placing 4th respondent as HSA Changanacherry Stg/ B. Respondents claimed that HSA Changanacherry Stg/B was only an operative post and HSA Changanacherry Stg/ A alone was a norm based supervisory post. As per the present establishment of RMS 'TV Division which had 32 norm based supervisory posts deployed in various units. They submitted that the post held by Sri Chandrasekharan Nair who took voluntary retirement and in whose place the applicant was engaged to work, was not a supervisory post and the applicant was not posted against a supervisory post and applicant's contention that he was working against supervisory post was false. They also denied that the applicant was the seniormost HSG II official at Chanaganacherry. They averred that the seniority position of the applicant as well as the 4th respondent as shown in the Divisional Gradation list published by the second respondent as on 1.7.96 was factually correct. They admitted that the 4th respondent was junior to the applicant in the Time Scale Cadre and that the posting of officials in norm based posts would be done on the basis of seniority in the BCR cadre. For all other arrangements length of service is the criterion. Since HSA Changanacherry Stg/B was not an identified norm based supervisory post, arrangement to the post could be made on the basis of length of service. Referring to the Director General (Post)'s R-1 letter dated 25.2.82 respondents submitted that posting in different positions in all branches of RMS except norm based supervisory posts was to be made according to the length of service. It was submitted that although Rule 38 transferees became junior in the Division they had longer service, experience etc. and their seniority for the purpose of promotion on Circle basis was retained. For manning day to day positions, the length of service of Rule 38 transferees would also be taken into account and therefore orders were issued to make arrangements in the post of HSA Changanacherry Stg/B which was not a norm based supervisory post, according to length of service of the officials. It was submitted that showing the post of HSA Changanacherry Stg/B as norm based supervisory post under 'List of Posts' in the Divisional Gradation List as on 1.7.96 was a typing error which occurred due to an oversight and the same had nothing to do with the seniority of the officials. The error was not detected then and the same was rectified and corrigendum issued by the 2nd respondent on 8.9.99. It was also submitted that as per records maintained in the office of the 2nd respondent as well as in the office of the Chief P.M.G., HSA Changanacherry Stg/B was not a supervisory post. It was submitted that the applicant had shown the number of operative Sorting Assistants working in Changanacherry incorrectly as 9 whereas the same should be 10 including the HSA which was also an operative post and that even though the strength of Changanacherry Stg/A and Changanacherry Stg/B were the same, the Head Sorting Assistant of the Stg/A was identified as norm based supervisory post whereas the Head Sorting Assistant in Stg/B continued as a operative post. It was also submitted that such difference existed in some other units also due to various reasons. They quoted the example of Trivandrum RMS/3A and B units where the Head Sorting Assistant post in the Trivandrum RMS 3 B was in the higher Selection Grade II cadre. They submitted that the ban imposed by the Government on creation/upgradation of posts still existed and post of HSA Changanacherry Stg/B could not be upgraded nor a norm based supervisory post could be created. It was also submitted that in the list of officials promoted to the norm based supervisory posts published in the Divisional Gradation List as on 1.7.96 under the category of LSG general line, the name of Sri M. Josekutty HSA Changanacherry Stg./A norm based post was included at Sl. No. 16 and as the applicant had not been promoted to the cadre of supervisor, his name was not included in the above list. Only a temporary arrangement was made locally as HSA Changanacherry Stg/B which was only a stop gap arrangement as no other official put in a claim for that post and subsequently when the 4th respondent made a claim for the said post and since the said post was a non-supervisory post the issue was reviewed on the basis of Rl letter and A2 orders were issued by the second respondent. It was stated that the contention of the applicant that he was senior to the 4th respondent was not factually correct. Respondents submitted that since the 4th respondent was a Rule 38 transferee to the Kerala Circle, his name was shown below the applicant in the Divisional Gradation List. In the Circle Gradation List, the name of the 4th respondent appeared at Sl. No. 172 whereas the applicant's name was at Sl. No. 239. As per Rule 38 (c) of P & T Manual Vol. IV, the general principle is that the transferee became junior in the new unit in the cadre in which he was transferred. With the introduction of TBOP scheme officials who have been transferred under Rule 38 of P & T Manual, Vol IV in the same cadre were eligible to count their entire period of service for promotion under TBOP. In terms with para 22 of Director General, Posts, New Delhi letter dated 17.12.83, the 4th respondent was promoted to the cadre of HSG-II w.e.f. 1.10.91 whereas the applicant was promoted to the same cadre only on 1.1.93. It was submitted that the averment of the applicant that he was on leave from 7.8.99 is contrary to truth as per records maintained in the respondent's office. The contention of the applicant that the implementation of A2 orders had not taken place was also denied. It was submitted that the order of the second respondent was already given effect to w.e.f. 7.8.99 As per R1 posting of officials to different branches and work position was with due regard to their length of service so as to utilise their long experience for the efficient functioning of the department. Director General (Post)'s letter dated 30.3.92 envisaged that the officials who were allowed higher scale of pay as a result of the BCR would be utilised as far as possible for providing better supervision and for dealing with work involving comparatively higher responsibilities and better skills. Therefore, those who had been promoted to HSG-II were either posted in supervisory posts or posts involving comparatively higher responsibility and better skills. Accordingly, 4th respondent who was pretty senior in service than the applicant was ordered to be engaged in the post of HSA, Changanacherry Stg/B. According to respondents the applicant was not entitled to any reliefs as prayed for in the O.A. and the O.A. was devoid of any merit and was liable to be dismissed.
4. The 4th respondent filed a reply statement.
5. The applicant filed rejoinder to both the reply statements reiterating the points brought out in the O.A. and contesting the arguments put forth in the reply statement. He gave comparative strength of Changanacherry Stg/A and B and submitted that each set-Changanacherry Stg/A and Stg/B works on alternative nights from 1720 hrs to 0600 hrs. and no set functions in day hours. He also submitted copies of the inspection reports of Changanacherry Stg/B on 28.11.95 and 29.11.97 as A8 and A9 to show that the applicant had been holding the supervisory post w.e.f. 1,9.94. He submitted that as per A-10 order dated 26.12.95 yearly rotation of staff, the 4th respondent was arranged under the applicant for a year and the 4th respondent had been working as Mail Sorting Assistant under the applicant. He further submitted that A-11 memo distribution of works for Changanacherry Sorting Units passed by the 2nd respondent stated that the Head Sorting Assistant would be in charge of the Office and would be responsible for the maintenance of strict discipline and general upkeep of office which clearly showed that HSA Changanacherry Stg/B in which the applicant was working was a supervisory one. As the 4th respondent came on request transfer from Maharashtra to Kerala Circle under Rule 38(2) after giving declaration that he would be junior to all officials in the new Division/Circle and as such he became junior to the applicant in the Divisional Gradation list as well as in the Circle Gradation list as evidenced by A1 and A7 lists. Relying on A-12 letter of Department of Posts dated 1.1.98 the applicant submitted that TBOP/BCR promotion did not change the seniority as the said promotion were only based on the length of service and not based on seniority. Seniority claim of the respondents as per BCR promotion could not be sustained as per A-12. According to applicant A2 dated 5.8.99 issued by the second respondent reached the office of the first respondent on 7.8.99 on which date applicant was on leave and the applicant's next junior was put to perform duties of the absentee. When the applicant resumed duty as HSA on expiry of leave, the 4th respondent had also resumed duty as Sorting Assistant. From A5 and A7 Circle Gradation lists as on 1.7.77 and 1.7.87, the applicant was senior to the 4th respondent. The applicant claimed that he had made A-14 representation dated 20.5.99 against the incorrect seniority shown in the circle gradation list as on 1.7.93 circulated by the second respondent under A-13 dated 19.4.99. He also contradicted the various averments made by 4th respondent in the reply statement.
6. An additional reply statement was filed by Respondents 1 to 3. Respondents stated that consequent on the introduction of TBOP, officials who were transferred under Rule 38 of P&T Manual Vol. IV in the same cadre were eligible to count their entire period of service for promotion. They referred to para 22 of Director General (Posts)'s letter dated 17.12.83 which stated that for the purpose of TBOP scheme, officials who had been transferred under Rule 38 in the same scale including officials who had been transferred from one Circle to another in the same cadre were eligible to count their entire period of service for promotion. They further relied on Director General (Posts)'s letter dated 25.2.82 and submitted that postings in different positions in all branches of RMS was to be made according to length of service and although Rule 38 transferees became junior in the Division, they having longer service and experience, their seniority for the purpose of promotion on Circle basis was retained and for manning day to day positions, the length of service of Rule 38 transferees would also be taken into account. It was further submitted that as per Rule 32(E) of P&T Manual, Vol. IV the general principle in fixing the seniority of an official in the cadre to which he belonged was according to the date of his appointment to the cadre and since the 4th respondent was promoted and posted to HSG-II cadre w.e.f. 1.10.91 the applicant subsequently promoted to the post w.e.f. 1.1.93 has no legal right to claim seniority over the 4th respondent. It was submitted that A-10 was a copy of rotation chart showing the working arrangement of all the officials of SRO Changanacherry for a period of one year. Since this chart was subjected to change due to various administrative reasons, A 10 rotation chart could not be treated as an authoritative record. It was submitted that the applicant was not promoted against norm based supervisory post. In support of this the Divisional Gradation list as on 1.7.96 of the list of officials promoted to norm based supervisory posts and units under which they were deployed was produced as R4. Respondents submitted that copies of the inspection reports produced as A8 and A9 did not have any legal validity. It was only a report prepared by a subordinate officer of the second respondent regarding the functioning of the unit. Respondents relying on para 1 of Director General (Posts)'s R5 letter dated 28.7.99 stated that seniority in the BCR cadre was the basic criterion for posting against norm based HSG-II supervisory posts. The 4th respondents had been promoted to the BCR cadre by virtue of his seniority w.e.f. 1.10.91 and the applicant had been promoted to the BCR cadre only on 1.1.93. and accordingly, the 4th respondent was senior to the applicant in all respects. They also submitted that the applicant had not made any complaint against A-13 seniority list and that A-14 dated 20.5.99 addressed to the 2nd respondent was a fabricated one and the same was never received by respondents either direct or through proper channel. A-14 was produced with ulterior motive of misleading the Tribunal.
7. In the additional rejoinder submitted by the applicant, he reiterated the points made by him in the O.A. and in the rejoinder. Applicant submitted that the averment of the respondents that although the Rule 38 transferee became junior in the division, the seniority for the purpose of promotion in the service rendered in the Circle basis is retained is misleading. In the case of the 4th respondent who came from Maharashtra Circle under Rule 38 transfer to RMS 'TV' Division on his own request, became juniormost in RMS TV Division and also in Kerala Circle. He further submitted that 4th respondent had not been promoted to HSG cadre but was only given HSG II (BCR) which was a time bound one based on 26 years of service rendered as Sorting Assistant in Maharashtra and Kerala Circles which had no effect on his seniority. The applicant submitted that against R3 gradation list issued as per letter dated 19.4.99 the applicant made A14 representation and that without passing any order on A 14 it was wrong on the part of the respondent to act on R2 gradation list. R1 relied on by respondents was applied to Rule 38 transfer within one Circle from one division to another and not applicable to transfer between one postal circle and another postal circle.
8. Heard learned Counsel for the parties. The learned Counsel for the applicant and the ACGSC took us through various pleadings.
9. The learned Counsel for the applicant relying on the ratio of the judgment of the Supreme Court reported in Dwijen Chandra Sarkar and Anr v. Union of India and Anr., JT 1998(8) SC 575, submitted that even though the 4th respondent was promoted to HSG II under BCR scheme prior to the applicant that would not confer any seniority to him over the applicant. The Hon'ble Supreme Court held :
"18. Hence the transfer order and concerned circular of 1983 which required that the past service should not count for seniority, cannot have any bearing on eligibility for time bound promotion. Seniority and time bound promotions are different concepts, as stated above.
19. For the above reasons, we hold that the past service of the appellants is to be counted for the limited purpose of eligibility for computing the number of years of qualifying service, tolenable them to claim the higher grade under the scheme of time-bound promotions."
10. He submitted that the 4th respondent who had come under Rule 38 on transfer from Maharashtra Circle could count seniority in Kerala Circle only from the date he had joined Kerala Circle even though for the purpose of TBOP and BCR his length of service in Maharashtra circle would be counted.
11. Learned Counsel for the 4th respondent argued that the O.A. was not maintainable either in law or on facts. He submitted that A2 impugned order did not cause any legal injury to the applicant nor did it involve any adverse civil consequence and the applicant did not disclose violation of any of his legal rights. A2 was only an administrative instruction regarding arrangement of HSA of Changanacherry Stg/B which did not involve infringement of any legal right of the applicant and therefore was not open for judicial review. Power to judicial review could not be made in respect of arrangement of the said post which was within the administrative discretion and hence outside the purview of judicial review. He relied on the following judgments of the Hon'ble Supreme Court in support of his submission:
(i) Union of India and Anr. v. G. Ganayutham, 1997(7) SCC 463.
(ii) Mr. X v. Hospital 'Z', 1998(8) SCC 296.
(iii) A.K. Kaul and Anr., 1995(4) SCC 73.
(iv) Tata Cellular v. Union of India, 1994(6) SCC? 651.
(v) Province of Bombay v. Khushaldas, AIR 1950 SC 222.
12. The learned Counsel submitted that the HSA Changanacherry Stg/B was a norm based supervisory post as was mentioned in A2 and the applicant had not produced any material to substantiate his contention that it was an identified norm based supervisory post. Relying on the judgment of the Hon'ble Supreme Court reported in Bharat Singh and Ors. v. State of Haryana and Ors., AIR 1988 SC 2181 he submitted that the plea of the applicant should be ignored. He submitted that R4 (a) the Divisional Gradation list of Group 'C' officials of RMS 'TV Division as on 1.7.96 and R-(C) Circle Gradation list as on 1.7.93 would indicate that 4th respondent was senior to the applicant and the said seniority list was alone relevant for posting as HSA. Further relying on Director General (Posts)'s letter dated 28.2.82 he submitted that the arrangement in a set in all Branches of RMS except norm based supervisory post was to be made in the following order:
Supervisors B.C.R. Officials TBOP Officials Time Scale Officials
13. He also referred to R4 (d) memorandum dated 21.8.97 of the second respondent according to which even it a BCR/TBOP officials and officials who had been transferred from other divisions/ circles under Rule 38 should be arranged in different branches/ working position according to their length of service and not according to their position in the gradation list. He submitted that A2 was issued strictly in accordance with second respondent's letter dated 21.8.97. R4(d) was not under challenge. Learned Counsel for respondent submitted that seniority in the Circle was not relevant for posting as HSA Changanacherry Stg/B. Relying on A4(e) yearly rotation of Changanacherry SRO for the year 1999 it was submitted that there was only one supervisory post and that was Head Sorting Assistant, Changanacherry Stg/A and that was held by Sri M. Jose Kutty. He submitted that applicant could not put forward a claim against a post in which he was posted to work as Head Sorting Assistant on adhoc basis as a temporary measure. A2 was issued in accordance with Director General Posts's letter and so long as the above orders were not challenged A2 could not be interfered with. Further A2 had been implemented before filing of the O. A and the applicant had no legal right to continue as HSA, Changanacherry Stg/B.
14. We have given careful consideration to the submissions made by the learned Counsel for the parties and the pleadings. We have also perused the documents brought on record.
15. As both the applicant as well as the 4th respondent are relying on the Director General, Posts's letter dated 25.2.82 (A4) and the official respondents are also relying on the same letter for the issue of the impugned A2 order, we are of the view that A2 is not a simple case of an administrative order of replacing one employee by another employee to man a particular post. Both the applicant as well as fourth respondent perceives that certain rights have accrued to them and the applicant is feeling that the same is being taken away by A2 order and fourth respondent is resisting the same. Therefore, we reject the plea put forth by the Counsel of 4th respondent that judicial review is not called for/permissible in this case.
16. The first question in our view which is to be decided is whether the applicant could be treated as junior to the 4th respondent as claimed by both official respondents as well as 4th respondent. There is no dispute that the 4th respondent was transferred on request under Rule 38 from Maharashtra Circle to Kerala Circle. Rule 38(2) of P & T Manual Vol. IV of the Year 1972 reads as follows:
38(2): When an official is transferred at his own request but without arranging for mutual exchange, he will rank junior in the gradation list of the new unit to all officials of that unit on the date on which the transfer order issued, including also all persons who have been approved for appointment to that grade as on that date."
17. It is evident from the above Rule that an employee who had sought transfer under Rule 38(2) from one unit to another will rank junior in the gradation list of the new unit to all officials of that unit on the date of which the transfer order was issued including also to all persons who had been approved for appointment to that grade on that date. This would mean that if a transfer had taken place from one division to another division of an employee on request under Rule 38 such an employee will rank juniormost in the gradation list of the division to which he was transferred to all officials of that division on the date on which the transfer order was issued. Similarly if an employee seeks transfer on request from one Circle to another Circle as in the case of the 4th respondent of this O.A, he will rank junior most in the gradation list to all Officials of Kerala Circle on the date on which the transfer order was issued, apart from being junior to all the officials in the Gradation list of the division in Kerala Circle to which he was posted on the date on which the transfer order was issued. As had been held by Hon'ble Supreme Court in Dwijanchandra Sarcar's case, a Rule 38 transferee may count for the purpose of BCR/TBOP promotion his service in the Maharashtra Circle but that will not give him seniority over the officials who-were in the gradation list of the Kerala Circle on the day on which his transfer order was issued. Viewed in this light we have to reject all the arguments of the official respondents and the 4th respondent that the applicant is junior to the 4th respondent. Applicant is held as senior to the 4th respondent.
18. Director General, Post's letter dated 25.2.82 given in A4 reads as under:
"I am directed to say that the staff side of the P & T Departmental Council (JCM) has represented that at present there are no formal rules or procedures governing posting of officials in RMS in various positions and that as a convention, posting in different positions in all branches of RMS is made according to length of service, the juniormost starting from paper mail sorting. It has further been represented that although Rule 38 transferees become junior in the Division, they have longer service, experience etc. and their seniority for the purpose of promotion on Circle basis is retained. As such the staff side have urged that for manning day to day positions, the length of service of Rule 38 transferee may be taken in to account.
2. The matter has been examined. Having regard to all relevant factors it has been decided that subject to discretion in posting on administrative grounds, the posting of officials to different branches or work positions in RMS may be made generally with the regard to length of service/seniority. Similarly, Rule 38 transferees may also be postead to different branches or work positions with the regard to length of their service.
3. This may be brought to the notice of all concerned for compliance."
19. From the above letter it is evident that the demand of the staff side in the P & T Departmental Council (JCM) was that Rule 38 transferees though became junior in the division their seniority for the purpose of promotion on circle basis was retained. In our view the staff side had visualised only inter-divisional transfers within a Circle. From para 2 of the above letter it is obvious that for posting of officials to different branches or work positions is RMS the seniority had not been given a go-by. In fact, length of service and seniority has been used in the same context in the first sentence as alternative criteria as normally a person with longer length of service will be senior. Regarding Rule 38 transferees it had been stated that they may be posted to different branches or work positions with regard to length of service. There is no stipulation that in preference to a senior, a Rule 38 transferee with longer length of service should be preferred. We are of the view that this letter is to be understood that in an office where a Rule 38 transferee because of his longer length of service has got higher grade under TBOP or BCR scheme and in that office there is no other employee in that grade, in such a situation Rule 38 transferee may be given positions of higher responsibility instead of giving operative posts along with Time Scale incumbents. This is evident from the demand of the staff side which states that a Rule 38 transferee does not lose seniority at the Circle level. Obviously the Rule 38 transfer referred to is an inter-division request transfer within the same circle and not inter-circle transfer.
20. Letter dated 25.2.82 of the Director General, Posts had been circulated by the Deputy Superintendent of the office of the Superintendent, RMS TV Division, Trivandrum by his letter dated 14.3.86 as in A4. This letter reads as follows:
"A copy of DC P&T letter No. 69/17/81-SPB-II dated 25.2.82 circulated vide PMG, Trivandrum letter No. ST/18/Rlg/81 dated 5.3.82 is forwarded herewith for information, guidance and necessary action. Please note that these orders are applicable to intercircle Rule 38 transferees also."
It is noticed from the above letter that the last sentence of the second paragraph of DG(P)'s letter dated 25.2.82 had been made applicable to the intercircle Rule 38 transferees also. In the absence of any specific instruction in the DG(P)'s letter and in view of what we have stated above, the interpretation given by the Deputy Superintendent of RMS TV Division as above cannot be sustained.
21. The question that comes up is whether the HSA, Ch'anganacherry Stg/B is a norm based supervisory post or not. The applicant has produced A3 in support of his claim that the said post is a norm based supervisory post. The departmental respondents have averred that it was a typographical error and the said post is not a norm based supervisory post. They have issued a corrigendum R2 (A6) dated 8.9.99 correcting the letters 2'B' against item 23 of A3 as 'A'. They have also produced R-4(i) the Divisional Gradation list of Group 'C' officials which consisted of 32 names which did not contain the HSA Changanacherry Stg/ B, It had been averred that the applicant's name was not finding a place in the list and he had not been regularly promoted as supervisor. Having gone through all the documents brought on record and the various averments there may be a case for the respondents that Changanacherry Stg/B is not a norm based supervisory post. But once the O.A. had been filed and the matter was pending before the Tribunal for adjudication and an interim order who issued, the respondents' action in issuing R2 (A-6) before filing the reply statement was clearly not tenable. Hence, we set aside and quash the same.
22. Now therefore, let us examine whether the applicant has a right to continue in the said post on the basis of Director General (posts)'s letter dated 25.2.82.
23. We had already reproduced letter dated 25.2.82 herein above. We have also explained as to how the above letter is to be understood and implemented. Further, there is also substance in the pleading of the applicant that not treating the Changanacherry Stg/ B as a supervisory post is discriminatory when both HSA Sorting A and Sorting B of Changanacherry functions on every alternative day from 1720 hours to 0600 hours on the next day and the staff strength of each set is also identical. Further, from the list of duties of the HSA, he has to perform certain supervisory functions. We have already held that the applicant is senior to fourth respondent. Therefore, the applicant is entitled to continue as HSA, Changanacherry Stg/B.
24. Director General Posts's letter dated 28.7.99 is produced as R5 by the respondents. It states that norm based HSG II/LSG posts should be filled on the basis of seniority. This will ensure that the seniormost official in the office holding the post. What we have held is on the same principle. Even in the case of HSH-II/LSG posts which may not be norm-based supervisory ones but whose incumbent has to exercise supervisory functions in day to day work should be posted as any other principle of posting will be against normal hierarchical functioning. From the list of duties A 11 it is evident that the USA Changanacherry Stg/B has to perform certain supervisory duties. Therefore, the seniormost HSA has to hold the post as per DG's letter dated 25.2.82.
25. In the light of detailed analysis given in the foregoing paras A2 is liable to be set aside and accordingly we set aside and quash the same. We also hold the last sentence of Deputy Superintendent's A4 letter dated 14.3.86 "Please note that these orders are applicable to inter-circle Rule 38 transferees also" as null and void. We declare that A-15 gradation that published on 19.4.99 by the respondents is illegal to the extent it ranks the 4th respondent above the applicant.
26. The application stands allowed as above with no order as to costs.