Central Administrative Tribunal - Cuttack
Sri Debendra Kumar Mohanty vs Union Of India (Uoi) And Ors. on 30 April, 2004
Equivalent citations: 98(2004)CLT33
ORDER
B.N. Som, Vice-Chairman
1. Shri Debendra Kumar Mohanty has filed this Original Application, being aggrieved by the order passed by Respondent No. 18 rejecting his representation for granting him promotion to Grade III to Grade IV of the cadre of TOA(G), He is also aggrieved that he has been harassed by the Respondent-Department by invoking the provisions of Rule 38 of the P & T Manual, Volume IV and compelling him to work in a non-supervisory post whereas his junior Respondent No. 10, Shri Jogendra Das has been ordered to hold a supervisory post. He has, therefore, sought a direction to be issued by this Tribunal to Respondent Nos. 1 to 3 to fix his seniority below Shri Bhubaneswar Mohanty and above Shri N.K. Nandi (Respondent No. 4) and to consider his case for promotion to TOA(G) Grade IV from the date Respondent No. 4 got promotion to that grade.
2. The applicant has been agitating for a long time his seniority position as determined and his eligibility for promotion to Grade IV. He had challenged his seniority position earlier in Original Application No, 367 of 2001 before this Tribunal. The Tribunal had disposed of that Original Application by directing Respondent No. 1 to dispose of his representation by March 2002. He has come in this round of litigation on the ground that his representation has been rejected by Respondent No. 18.
3. The case of the applicant is that he was appointed as temporary Time Scale Clerk in Cuttack Telecom Engineering Division with effect from 1.5.1963 and ordered to be transferred to Sambalpur Telecom Engineering Division with effect from 16.12.1963. This transfer entailed taking seniority afresh at the bottom of the seniority list of Time Scale Clerks who were permanent or quasi permanent at Sambalpur Telecom Engineering Division. Thereafter he sought transfer back under Rule 38 of the P & T Manual, Vol. IV, to Cuttack Telecom Engineering Division, which was approved with effect from 20.1.1966 (Annexure 2). He was granted financial upgradation under OTBP Scheme and BCR Scheme with effect from November 1983 and November 1990 respectively. Later on, by order dated 2.4.1993 (Annexure 4), consequent upon re-fixation of his seniority in the cadre of TOA, the applicant was given promotion to the grade of Section Supervisor (O), i.e., TOA(G) Grade II, in the pay scale of Rs. 1400-2300/-with effect from 1.6.1974 against 20% promotion quota. But he has not been granted further promotion to Grade IV on the ground that he had lost his seniority under Rule 38 of the P & T Manual, Vol. IV.
4. The departmental Respondents have filed detailed counter and have contested the Original Application on several grounds, namely, (i) the Original Application is not maintainable on the principle of res judicata; (ii) the applicant's grievance is being ventilated after 36 years of the cause of action arising and therefore, is hopelessly barred by time; (iii) his grievance merits no consideration because he had subjected himself to the rigor of Rule 38 before he could be given transfer from Sambalpur to Cuttack and he cannot now resile from that; and (iv) Respondent No. 10 being senior to the applicant in the seniority list is holding a supervisory post which cannot be challenged by the applicant.
5. The applicant has submitted a rejoinder to the counter and has also drawn our notice to the decision of the Apex Court in the case of Scientific Advisor to Raksha Mantri and Anr. v. V.M. Joseph, 1998 SCC (L & S) 1362, the decisions of this Tribunal in Original Application No. 54 of 1996, decided on 5.2.2004 (Prakash Chandra Sahoo v. Chief General Manager, Telecom, Orissa and Ors.), and in Original Application No. 112 of 2000, decided on 19,11.2003, Sri Ramjit Murmu v. Union of India and Ors.
6. We have heard the learned counsel for both the sides and have also perused the records placed before us.
7. The point raised in this Original Application for our consideration is, whether a transferee under Rule 38 of the P & T Manual, Vol. IV, forfeits his claim for promotion because of his relatively junior position in the gradation list in spite of the fact that he fulfils all the eligibility conditions for promotion to the next grade. The departmental Respondents have stoutly taken the position that under Rule 38 an undertaking has to be submitted by an official for transfer at own request from one Division to another that on transfer to the new unit he will rank junior to all the permanent and temporary employees borne in the gradation list. For any promotion from one grade to another an official has to be within the zone of consideration for number of posts which have to be filled up on promotion. Seniority list being the only method of determining the zone of consideration, a junior will necessarily be left behind. The departmental Respondents have thus sought to explain that as the applicant had been granted junior most position in the gradation list below Respondent No. 10 and others, when Respondent No. 10 was considered for promotion, the applicant was left out as he did not come within the zone of consideration. This being the accepted position for granting promotion, the applicant could not have any grievance to ventilate.
8. The learned counsel for the applicant has urged before us that the departmental Respondents have miserably failed to take note of the law of the land as laid down in this regard by the Apex Court in the case of Union of India v. C. N, Ponnappan, 1996 SCC (L & S) 331 and in V.M. Joseph's case (supra) where their Lordships have held that service rendered on equivalent post in another organisation before unilateral transfer at own request should count for determining eligibility for promotion though it may not count for seniority. It has been further held that even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place.
9. The learned Senior Standing Counsel vehemently opposed the position taken by the applicant and stated that Rule 38 having not been found bad in law so far, the action of the departmental Respondents cannot be assailed as illegal.
10. We have carefully considered the provisions of Rule 38 of the P & T Manual, Vol. IV, in terms of which transfer is allowed from one Division to another, or from one Circle to another in relaxation of the normal recruitment rules. We have found that in Departments under the Union Government where the cadres are Division-based or Unit-based for the purpose of initial recruitment and in-service promotion, transfer from one Unit to another or from one Division to another is not normally allowed, and when allowed, a condition is invariably put that the transferee shall have to accept bottom most seniority in the seniority list in the new Unit. That is why it has been prescribed that such transfer would be permissible in the initial grade or in such of the grades where direct recruitment is allowed. The effect of this condition of transfer is that the transferee's prospect of promotion gets obstructed because of his new position in the seniority list at the transferred place. While this was a situation, this condition was challenged first in C.N. Ponnappan's case (supra). The question that was raised before the Hon'ble Apex Court was, whether an employee, who is transferred from one unit to another on compassionate grounds and as a result, is placed at the bottom of the seniority list, can have his services under the earlier unit from where he has been transferred, counted as experience and eligibility for the purpose of promotion in unit where he is transferred. There was a difference of opinion amongst the coordinating Benches of this Tribunal on this question. In the case of C.N. Ponnappan v. Union of India and Ors., TA No. 770 of 1986, decided on 20.6.1986, which gave rise to Civil Appeal No. 1221 of 1987, the Madras Bench had taken the view that though on transfer on compassionate grounds the employee loses his seniority and is placed at the bottom of the seniority list at the transferred place, but for the purpose of promotion his earlier service in the unit from where he was transferred is not wiped out and the said service has to be treated as experience for the purpose of his eligibility for such promotion, The Hon'ble Apex Court, after considering the relevant rules, came to the conclusion that the service rendered by an employee at the place from where he was transferred on compassionate ground is regular service. It is no different from the service rendered at the place where he is transferred. Otherwise also both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. Their Lordships, therefore, upheld the decision of the Madras Bench of the Tribunal that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred, This Bench of the Tribunal had earlier decided in Original Application No. 112 of 2000, Sri Ramjit Murmu v. Union of India and Ors., holding that Sri Murmu (the applicant) was entitled to be considered for promotion from Grade III to Grade IV and he should not be denied the benefit of promotion on the ground that he had come to the present unit from another unit under Rule 38 transfer. The provision of Rule 38 of the P &T Manual, Vol. IV in the matter of promotion has so long been applied by the Respondent-Department on the notion that seniority is the sole basis of promotion. But this position has now undergone a dynamic change with the pronouncement of the law by the Apex Court that seniority and eligibility for promotion are two different sides of the coin and that eligibility for promotion is a superior condition to seniority. In other words, if a senior in the gradation list is not eligible for promotion according to the recruitment rules, he will lose right for consideration for promotion. This principle which was first enunciated in C.N. Ponnappan's case (supra) has been further pronounced in V.M. Joseph's case (supra) and further elaborated in the case of R. Prabha Devi v. Government of India, AIR 1988 SC 902. In R. Prabha Devi's case (supra) the Apex Court has elaborated the principle of promotion in the following words :
"Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the recruitment rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible."
11. It is also important for the Respondent Department to take note that in their decision prescribing the policy for promotion to Grade IV against 10% posts under the BCR Scheme, circulated by their letter dated 13.12.1995 (Annexure R/4) it has been laid down that the promotion to 10% posts in Grade IV in the pay scale of Rs. 2000-3200/- would have to be based on seniority in the basic cadre subject to fulfilment of other conditions of the BCR, viz, those who are regular employees as on 1.1.1990 and had completed 26 years of service in the basic grade. This policy decision was taken by the Respondent Department in pursuance of the judgment of the Principal Bench of the Tribunal, which was upheld by the Hon'ble Apex Court. It is also to be taken note of by the Respondent-Department that after initial entry in the basic grade, the next twg grades are Grade II and Grade III to which an employee could be given career progression by way of financial upgradation on rendering certain years of service and for no other reasons at all and not by adopting promotion method. It is because of this that no seniority list for Grade II and Grade III levels exists and the only seniority list available for considering the eligible employees for promotion to Grade IV is the gradation list at the basic grade. It was on account of the said reason that the judgment of the Principal Bench found acceptance with the Hon'ble Apex Court and it was therefore instructed that promotion to Grade IV is to be given from amongst officials in Grade III on the basis of their seniority in the basic grade. In the circumstances, the plea of the applicant that he being a BCR official in Grade III, his case for promotion to Grade IV of the cadre should be considered by the Respondent Department on the basis of his seniority in the basic grade cannot be brushed aside unceremoniously.
12. For the reasons adduced above, we allow this OA and direct the Respondent- Department to consider the case of the applicant for promotion to TOA(G) Grade IV with effect from the date Respondent No. 4 got promotion to the said grade and grant him all financial and service benefits in the event of his promotion to the said grade. This exercise should be completed within a period of three months from the date of receipt of copy of this order. No costs.
M.R. Mohanty, Member (Judl.)
13. I agree.