Central Administrative Tribunal - Ernakulam
K.M. Mukthamani W/O Pks Raja vs Union Of India Represented By Director ... on 28 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A. NO. 777/07 Friday this the 28th day of November, 2008 COR A M : HON'BLE DR. K.B.S.RAJAN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER K.M. Mukthamani W/o PKS Raja Sub Postmaster (LSG) Chalapuram post office, Calicut-673 002 residing at 33/2518 F, Krishna Kripa Marykunnu, Calicut-673 012 ..Applicant By Advocate M/s Shafik M.Abdulkhadir, K.M. Anthru, Shemeena Salahudheen, Safiya Shafik, PC Kunjappan and Simla Prabhakaran Vs. 1. Union of India represented by Director General Department of Posts, Dak Bhavan Sansad Marg, New Delhi. 2. The Chief Postmaster General Kerala Circle, Trivandrum-33 3. The Director of Postal Services (HQ) Office of the Chief Postmaster General Kerala Circle, Trivandrum-695 033 ..Respondents By Advocate Mr. Varghese P. Thomas, ACGSC The Application having been heard on 11.11.2008 the Tribunal delivered the following :- O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant is aggrieved by the incorrect application of the rules and instructions relating to reckoning of seniority of the officials promoted to LSG cadre.
2 According to the applicant the brief facts are as follows. The applicant entered the services of the Department as a Postal Assistant on 23.1.1971 in the Calicut Postal Division under Kerala Postal Circle. While so, she was promoted to the cadre of the Lower Selection Grade (LSG) as per order dated 3.5.07 (Annexure A2). According to the instructions contained in Director General Posts Letter dated 4.11.1992 seniority of a person regularly appointed to a post would be determined by the order of merit indicated at the time of appointment and not according to the date of his "Confirmation". The applicant submits that the main criterion for promotion to the cadre of LSG is the seniority of the officials in the basic cadre of Postal Assistants on Divisional level when promotion to LSG cadre was done on Divisional basis, and on the basis of Circle seniority when it is done on a Circle level. Applicant's seniority is not comparable with that of officials belonging to Accounts cadre, officials belonging to reservation category and also to those who have been promoted against the 2/3 quota of the Fast Track Promotion Scheme after qualifying the aptitude merit test. The applicant was surprised to realise that officials junior to her in the basic cadre of Postal Assistants and belonging to other Postal Divisions like Tirur, Manjeri were already promoted to LSG cadre on a divisional basis when the LSG cadre was a divisional cadre and were placed in the Circle Gradation list of LSG officials in Post office as on 1.7.05 issued by the 2nd respondent. Aggrieved by this, the applicant preferred a representation on 27.6.07 to the 2nd respondent highlighting the anomalies as explained above. The respondents in reply to the representation had informed her that seniority in the LSG cadre is the criterion for promotion to HSG-II. It is submitted that promotion to the cadre was ordered by the 1st respondent based on the Circle seniority-cum-eligibility of Postal Assistants of all Postal divisions under its control. With effect from 30.11.1983 LSG cadre was divisionalised as per DG Posts letter dated 13.123.85 (A-6). Para 2 of A-6 states that Postal /Sorting Assistants are promoted to the cadre of LSG on completion of 16 years of service and the LSG supervisory posts were to be filled on Circle seniority basis. Para 5 clearly states that for the purpose of promotion to the HSG seniority of officials in the basic Time Scale will be the basis for such promotion at the Circle level even after promotion to the LSG under TBOP at Divisional level. Meanwhile, the 1st respondent issued further directions as to how the Circle Seniority of LSG officials promoted on Divisional level is to be prepared (A-7). Para 6 of the Annexure A-8 order stipulates that seniormost LSG officials in a division are to be posted against LSG supervisory posts without even conducting any DPC. Contrary to orders/instructions/clarifications regarding divisionalisation and promotion of the Time Scale officials to the cadre of LSG in TBOP/BCR after completion of 16/26 years of service, the first respondent declared that TBOP/BCR schemes are only financial upgradation and no separate seniority list need be maintained for the said cadre (Annexure A-6). Annexure A-9 also stipulates that seniority list is to be maintained for LSG norm based posts whereas para 6 of Annexure A-8 order directed to fill up the vacancies with seniormost LSG officials. According to notification dated 4.2.2002 (A-10) 33.34% of the LSG posts are to be filled on the basis of Selection cum Seniority and 66.66% by means of promotion through a departmental merit examination. The first respondent issued clarification (A-11) in which it was reiterated that for promotion to HSG-II Circle seniority of the LSG is to be fixed w.r.t. Annexure A-7 and A-8 But as per fast track promotion scheme (Annexure A-12) all the posts of LSG/HSG are to be filled by promotion only. The applicants submitted that despite clear instructions issued by the 1st respondent from time to time on the subject, 2nd respondent prepared and released the Circle seniority list of LSG officials as on 1.7.05 w.r.t. their date of posting to LSG Norm based posts in each Postal Division which is highly irregular and illegal. In fact promotions to the HSG posts are also being made now based on the seniority reflected in the said seniority list which shows a number of officials who have joined the department much later than the applicant as seniors by reckoning their seniority w.e.f. the date they were appointed in LSG cadre by the divisions. Detailed lists showing the particulars of the officials who have joined service 5 years later and more is produced as Annexure A-13(a), A-14(a) and A-15(a). The applicant has not completed three years service as LSG and has to wait for her turn for further promotion to HSG-II. She is due to retire from service on superannuation on 31.1.2009. Hence she filed this application praying for declaration that the seniority of officials promoted to LSG cadre is to be reckoned w.e.f. the date of entry in the basic cadre, that the applicant is entitled to be promoted to the HSG-II cadre w.e.f. 19.10.06 from which her junior was promoted to HSG-II, that the applicant is entitled to be further promoted to HSG-I on ad hoc basis since his junior was promoted as per A-15 on ad hoc basis.
3. The respondents contested the O.A. and filed a reply statement. They have stated that the applicant joined service on 23.10.1971 and not on 23.1.1971 as stated by her. The date of appointment had become the criteria for determining seniority. LSG being a divisional cadre during the period from 30.11.83 to 18.5.2006, the officials of other divisions might have been promoted to LSG according to vacancy position existed in those divisions. These officials would have found a place in the Circle Gradation List of LSGs as on 1.7.2005. The criterion for promotion to HSG-II is based on the seniority in the LSG cadre. As per the amended Recruitment Rules, promotion to the cadre of LSG is done at Circle level according to seniority of the Postal Assistants in the Circle. Sufficient vacancies of LSG posts might not have been available in Calicut Postal Division to promote the applicant to LSG prior to 18.5.2006. The alleged junior officials mentioned in the O.A. had already been promoted to LSG well before issue of Annexure A-12 Recruitment Rules according to the vacancy position of LSG posts existed in their respective Postal Divisions. The applicant could have been promoted only according to her turn in the seniority list of Postal Assistants of that Division. The new Recruitment Rules came into force w.e.f. 18.5.2006 and the applicant was promoted to LSG according to her seniority in the Circle Gradation List of Postal Assistants. The Circle gradation list of LSG officials was prepared strictly according to the rules and instructions existed then. Annexure A-7 instruction stipulates how the seniority in LSG is to be fixed. The applicant stands benefited by Annexure A-2 order and therefore cannot have any grievance on that score.
4 We have heard learned counsel Shri Shafik for the applicant and Shri Varghese P. Thomas, ACGSC appearing for the respondents and perused the records carefully.
5 The learned counsel for the applicant argued that as per instructions in A-6, A-7 , A-8 and A-11 the seniority of LSG cadre is to be reckoned from the date of appointment in the basic cadre post. LSG was a Circle cadre upto 30.11.1983 thereafter, the same was made a divisional cadre. While so in some small divisions officials much junior to the applicant was granted promotions to LSG. With effect from 30.5.2006 the LSG cadre was again made a Circle cadre. The 2nd respondent has not followed the instructions and has drawn up a seniority list based on which the juniors have been granted further promotion to HSG-II. This is incorrect and illegal. The learned counsel brought to our notice decisions of this Tribunal in O.A 314/07 & 408/07 and O.A. 629/07 in support of his argument.
6. The learned counsel for the respondents on the other hand argued that prima facie this is not a fit case to grant reliefs as prayed for in the O.A. The applicant belonged to Calicut Division and as per the then existing rules, promotion to LSG cadre was based on the divisional seniority. The applicant could not be promoted to the LSG cadre as sufficient vacancies were not available in the Calicut Postal Division and she could have been promoted to LSG only according to her turn in the seniority list of Postal Assistants in the Division. The new Recruitment Rules came in to force w.e.f. 18.5.2006 and the applicant was promoted to LSG according to the vacancy position and in her turn. The applicant could be included in the Circle Gradation list of LSG when she was appointed to that cadre only in accordance with the date of entry in the cadre of LSG. Thus according to the learned counsel the respondents acted in accordance with the rules and instructions prevalent at the relevant time.
7 The issue for consideration in this O.A. is whether the seniority of the officials promoted to LSG cadre is to be reckoned w.e.f. the date of entry in the basic cadre as per instructions contained in A-6, A-7, A-8 and A11. It is true that prior to 30.11.1983 promotion to LSG cadre was based on the Circle seniority cum eligibility. With effect from 30.11.1983 to 18.5.2006 LSG was a divisional cadre and promotion to the cadre was made from among officials of the respective Postal division on the basis of seniority in those Divisions. As per the amended Recruitment Rules notification on 18.5.2006 (A-12) the promotion to the cadre of LSG is again done at Circle level according to seniority in the Circle. Promotion of Postal Assistants including the applicant to the LSG cadre in 2006 was based on the Circle Gradation List of Postal Assistants published in 1982. Then only the applicant came to know that a few Postal Assistants in other Divisions who joined service later than her were already granted promotion to LSG cadre and further promotions to HSG also. Therefore the introduction of divisionalised seniority of Postal Assistants w.e.f. 30.11.1983 has adversely affected the promotion of the applicant. Reintroduction of Circle-wise seniority in the cadre of LSG w.e.f. 18.5.2006 rectified this anomaly to certain extent. Similar issue was considered by the Tribunal in OA Nos. 314/07 and 408/2007 relied on by the learned counsel of the applicant. The Tribunal in those OAs held as follows:
"The O.A. Nos. 314/07 and 408/07 are thus allowed. Respondents are directed to conduct a review of promotion to the post of LSG on the basis of Circle seniority prepared on the basis of the merit position in the initial grade of appointment and pass suitable order of promotion. It is left to the respondents that those who are at present holding the post but who on review may not figure in the list of promotees may be retained on super numerary post. If the department would like to revert them the same too shall not be made immediately but after putting such affected persons to due notice, giving sufficient time to respond to the notice. Till then they shall not be reverted. ..........."
8. In this view of the matter, we follow the judgment of this Tribunal cited above and declare that the promotion to the LSG cadre is to be made on the basis of merit position in the initial grade of appointment. The respondents are therefore directed to conduct review promotion of the applicant to the post of LSG on the above lines and pass suitable orders of promotion. We further declare that the applicant is entitled to be considered for consequential promotions to the cadre of HSG-II and HSG-I according to her seniority and turn. This exercise shall be done within a period of three months from the date of receipt of this order. The O.A. is allowed as above. No costs.
Dated 28th November, 2008 MRS. K. NOORJEHAN DR. K.B.S. RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER kmn