Central Administrative Tribunal - Madras
P Kalaivanan vs M/O Communication & It on 8 January, 2024
lof 12 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA 310/00690 of 2016 DATED MONDAY, THE 8" OF JANUARY, TWO THOUSAND AND TWENTY FOUR CORAM: HON'BLE SMT. LATA BASWARAJ PATNE, MEMBER (J) HON'BLE SHRI. VARUN SINDHU KUL KAUMUDI, MEMBER (A) P. Kalaivanan, S/o. Periasami, _ ~ No. 50/1, M.G.R.Nagar, Gayathri Ilam, Ground Floor, Chinnathirupathy. Salem-636008. Applicant (By Advocate: M/s. R. Malaichamy) Vs Union of India, Rep. by the Secretary, Ministry of Communications & LT. Department of posts, Dak Bhavan, Sansad Marg, New Delhi-i10001; The Chief Postmaster General, Tamil Nadu Circle, Anna Road, Chennai-600 002; The Postmaster General, Western Region (TN Circle), Coimbatore-641 002; The Senior Superintendent of Post Offices, Salem East Division, Salem-636 001. ..Respondents (By Advocate: M/s. G. Dhamodaran) 2 of 12 ORAL ORDER
(Hon'ble Smt. Lata Baswaraj Pane, Member(J} By this Original Application, the applicant is seeking the following reliefi-
"1. To call for the records of the 4" Respondent pertaining to _ his order made in No.B1/BCR/PK dated 28.07.2015 and set aside the same; consequent to
2. direct the Respondents to grant BCR benefits to the Applicant with effect from 07.05.1992 instead of 01.07.1992 as per the Full Bench Judgment made in Piran Ditta & 25 others
-Vs- Union of India which is reported 2005(1) ATJ 430, and further,
3. direct the Respondents to grant notional promotion to the Applicant to the cadre of HSG-1 by treating BCR service as _ equivalent to HSG- If and to revise and re-fix the retirement service benefits of the Applicant accordingly with monetary benefits., and 4, To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case, as stated by the applicant, are as follows:
The applicant joined the Respondent Department as a Postal Clerk on 04.05.1966, now re-designated as Postal Assistant (PA)/Sorting Assistant (SA). He was granted Time Bound One Promotion (TBOP), after completion of 16 years of service, on 30.11.1983, and BCR, on completion of another 10 years of service, on 01.07.1992, i.e., on completion of total service of 26 years. He retired from service
3 of 12 while working as Biennial Cadre Review Asst. Postmaster (BCR APM) on attaining the age of superannuation on 31.07.2006. He had put in more than 10 years of service in the BCR cadre. The BCR benefits should be granted from the date of completion of 26 years of service, but, it was granted to him on 01.07.1992, instead of 07.05.1992. It is stated that the ACP scheme was not applicable to the Postal Department as it had framed its own scheme of Time Bound One Promotion (TBOP) and introduced the same with effect from 30.11.1983, vide letter, dated 17.12.1983. Like-wise, it had introduced the Biennial Cadre Review (BCR) wef, 01.01.1991, vide Directorate Memo, dated 01.10.1991. The said schemes were withdrawn with effect from 01.09.2008, since the Modified Assured Carrier Progression Scheme (MACP) was introduced as recommended by the 6" CPC. Since, the introduction of TBOP and BCR, the Postal Department kept in abeyance promotion to the eligible officials to the cadre of LSG, as the pay to the cadre of TBOP and LSG is one and the same. The pay for BCR and HSG II is also one and the same. The promotion to the cadre of LSG was kept in abeyance by the Department for a very long time. Hence, the BCR officials, having 3 years of experience, were eligible for promotion to the cadre of HSG-I, as per the instructions issued by the Department from time to time. The contention of the applicant is that similarly placed persons, like the applicant, had filed O.A. No.679 of 2003 before this Hon'ble Tribunal claiming promotion to the cadre of HSG - I by treating the service rendered in the capacity of BCR as equivalent to HSG -II cadre and it was allowed by an order, dated 19.03.2004. W.P. No.27062 of 2004, filed by the Department against that order, was 4 of 12 dismissed by the Hon'ble High Court, Madras, on 24.09.2004. SLP was also dismissed by an order, dated 09.03.2011. The grievance of the applicant is that though he had completed more than 10 years in the BCR cadre (equivalent to HSG - It) and was eligible to be promoted notionally to the cadre of HSG - I and, thereby, entitled to revision and re-fixation of the retirement benefits, including pension, the respondent department had not considered his case for grant of the relief. Further, the Cuttack Bench of this Hon'ble Tribunal, in O.A. No.1196 of 2004 and O.A. Nos. 1213-1221 of 2004, has granted similar relief to similarly situated persons like the applicant and allowed the OAs and, thereafter, the Department also complied with the said order, vide memo No.ST/26-15/2013, dated 04.02.2015. The applicant's representations, in this regard, were turned down by the respondent department and hence, the present OA.
3. Respondents have filed a detailed reply. The thrust of the reply is that the judgments, cited by the applicant, for extension of similar relief, as he is similarly situated, and his case is covered by the said orders passed by this Hon'ble Tribunal as well as the order of the co-ordinate bench at Cuttack which attained finality as the respondents have implemented the said orders, are applicable only to those applicants therein since the orders are in personam. The respondents also averred that the benefit of the said judgments cannot be extended/made applicable to the applicant in the present OA, unless an order is issued by the Postal Directorate to the effect that the judgement is open to all similarly placed officials.
5 of 12 4, When the matter is taken up, the learned counsel for the applicant submits that the issue involved in the present OA is squarely covered by the decision of this Tribunal, vide order, dated 03.02.2023, in OA. No. 747/2016. The relevant portion of the order is extracted as under:-
4. Heard the learned counsel for both sides in extenso and perused the records.
5. The main ground on which the applicant has put forward
- his arguments is that the department has been stating that the TBOP & BCR promotions are equivalent to LSG & HSG-II respectively. In support of this contention, the applicant has | enclosed a number of communications issued by the department copies of which have been placed for our perusal. In all these communications during the years, i.e., 14.02.1984 to 11.10.1991, the department had indicated that employee should get atleast two promotions during the course of their career and it is for fulfilment of this minimum requirement that these schemes have
- been introduced. In all consequences, the respondents have been indicating that the TBOP/BCR is a promotion. Therefore, it is the _Stand of the applicant that now they cannot modify their stand to state that these two promotions are only financial upgradation and not promotion in the sense of the term(sic). The applicant retired while working as Deputy Postmaster Higher Selection Grade I (officiating) HSG-I. He was granted TBOP & BCR accordingly. The Postal Assistant is the feeder cadre to the next higher grade of LSG, HSG-II & HSG-I. After introduction of the ' TBOP & BCR scheme, the Postal Department kept in abeyance 6 of 12 in giving promotion to the eligible officials to the cadre of LSG because the pay of the cadre of TROP & LSG is one and the same. The pay for the BCR & HSG-II is one and the same and these facts have not been denied by the respondents in their counter affidavit. It is to be noted that the promotion to the cadre of LSG was kept in abeyance by the department for a very long time. Therefore, the BCR officials having three years experience _were posted to work as HSG-I in the promotional cadre vide letter dated 05.07.2004 arid 20.11.2006 respectively and thereafter the minimum requirement of three years service is reduced. It is very clear from the letter dated 20.11.2006 that the BCR/LSG officials were posted in the promotional cadre of HSG-I on adhoc basis till recruitment rules were notified to the cadre of HSG-I. Therefore, the services rendered in the capacity of BCR is equivalent to HSG-II. Hence the applicant is also entitled to advance the BCR benefits on completion of 26 years _of service in the light of the judgment rendered by this Hon. Tribunal in the matter of K.Perumal & another Vs. UOI in OA 67/2003 decided on 19.03.2004. The order passed by this Tribunal in the said case has been upheld by the Hon'ble High court of Madras in WP 27062/2004 and the same has attained finality. The applicant also relied upon the order passed by the Cuttack Bench of CAT in OA 1194/2004 & 1213 to 1221/2004.
' It is to be noted that while considering the issue in respect of the claim of the applicants therein, the Cuttack Bench of this . Tribunal considered the judgment passed by this Tribunal as well as the judgments passed by the Principal bench and categorically stated as under:
"4, We have given our thoughtful consideration to the 7 of 12 arguments advanced by the parties and have also gone through the materials placed on record. The.Madras Bench of the Tribunal in its order dated 19.03.2004 passed in OA No.679 of 2003 held as under:
7.0On going through the facts, we do not subscribe to this reply of the respondents. As mentioned earlier, in all correspondences and letters issued by the respondents from 1991 to 1993 it has been specifically mentioned that OTBP/BCR are promotions and they correspond to LSG and HSG-II. There was not even a whisper as to the fact that the so called promotions were only financial upgradations. What we can infer now is that the respondents have invented the term 'financial upgradations' now and want to apply this term in retrospectively in respect of the promotions given to the applicants way back in 1991. In our opinion, such actions on the part of the respondents is totally illegal and is incorrect. They cannot change the nomenclature, viz. ''promotions' made already to that of 'financial up-gradations' and deny the consequential benefits after a lapse of 11 years and that too without putting the applicants on notice. It is by now well settled that in matters relating to seniority settled issues should not be disturbed/distorted after a long lapse of time. When the respondents gave the date of promotions to the HSG I in the year 1992, the applicants have a legitimate expectation which they have been nurturing since 1992. Now that the settled position cannot be unsettled in the year 2002 and without assigning any reasons and the contention of the respondents that the promotions given earlier are to be construed only as financial upgradations in' our considered view cannot be accepted as the same unreasonable and such an argument goes against the letter and spirit of the communications issued by the respondents themselves from 1991 to 1993. Therefore, this argument put forward by the respondents has to fail."
_ 5. It is seen that this judgement of the Madras bench was not placed before the Full Bench though convened and rendered the 8 of 12 decision on 3" January 2005. The text of the Full bench decision reads as under:
(a) The TBOP and BCR Schemes introduced by the Department of posts are not promotion schemes to the next higher posts
(b) The said schemes are not in conflict with the norms based promotion to LSG & HSG TI as provided in the Recruitment Rules. They are supplementary to the Rules. The Principle of NBR will not be applicable in such scheme.
(c) The decisions in the case of Rajender Singh (supra) of the Principal bench and in the case of P.Rana Singh (supra) and Niranjan Mahali (supra) do not lay down the correct law."
6, At the time of deciding similar grievance of similarly situated employees of the Postal Department in OA No.1223/03, the decision of the Full Bench was never brought to the notice of the Tribunal. However, on the basis of the decision of the Madras Bench of the Tribunal, this Tribunal in its order dated 24" June 2008 directed the respondents to consider/reconsider the case of the applicant, therein, in the light of the decision of the Madras Bench of the Tribunal."
and allowed the said OAs. The said order has been implemented by the respondents, vide order dated 04.02.2015. Hence the . same attained finality. The applicant has also relied upon the verdict given by the Hon'ble Apex court of India in the matter of "Inder Pal Yadav & Ors dated 18.04.1985 [1985 SCC(2) 648], S.LRooplal Vs. Lt.Governor in CA No.5363-64/1997 dated 14.12.1999 and the judgment of the Kerala High court dated 11.01.2021 in W.A.No.1663/2020 in the case Narayani Krishnan Vs. UOI" on the issue that similarly placed employees those who 9 of 12 could not come to the court need not be at a comparative disadvantage to those who rushed to the court, if they are . otherwise similarly situated, they are entitled to similar relief.
6. On the other hand, the respondents have relied upon the subsequent orders passed by the co-ordinate Bench of CAT Cuttack in OA No.505/2018, MA No.872/2015 in & OA 596/2015, OA 942/2015 & OA No.666/2015 wherein by orders dated 27.03.2019, 17.03.2020, 16.03.2021 & 02.01.2020, the Cuttack Bench of CAT has rejected the said OAs on the ground
- of delay and latches. It is also to be noted that the order dated 02.01.2020 in OA 666/2015 has been challenged before the . Hon'ble High court of Orissa in W.P.(C).No.17143/2020. After going through the facts and the order passed by the CAT, Cuttack Bench, the Hon'ble High Court observed thus:
"07. The impugned order reveals that the Tribunal without considering the claim of the applicants on its own merit, rejected the Original Application only on the ground of limitation. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy. Since the Tribunal has not gone into the merits of the case, we set aside the impugned order and remit the matter back to the Tribunal for fresh disposal both on the question of limitation as well as merit. The Tribunal shall consider the claim of the petitioners sympathetically keeping in view the fact that the matter was pending since 2015 and they have retired in the meanwhile. The Writ Petition is accordingly disposed of. 73 and remitted the matter back to the Tribunal to give a thoughtful consideration. To the said orders passed by the CAT, Cuttack . Bench relied upon by the respondents in support of their contention, we may refer here the order passed by the Hon'ble Apex Court of India in the matter of Inder Pal Yadav & Ors dated 10 of 12 18.04.1985 [1985 SCC(2) 648], S.I.Rooplal Vs. Lt.Governor in CA No.5363-64/1997 dated 14.12.1999 and the judgment of the Kerala High court dated 11.01.2021 in W.A.No.1663/2020 in the case Narayani Krishnan Vs. UOI relied upon by the applicants.
' While considering the issue, the Hon'ble Courts have observed that the similar benefit has to be extended to the similarly Situated persons. It has also been observed that an earlier judgment of another co-ordinate Bench of the same Tribunal is binding on the subsequent Bench. However, if the subsequent co-ordinate Bench is of the opinion that the earlier view taken by the same Bench is not correct it would refer the matter to a larger bench to avoid difference of opinion between two co-ordinate Benches but will not overrule the judgement of the co-ordinate ' Bench as it will be against all principles of judicial discipline.
After going through the judgements and orders relied upon by the .Tespondents, we have seen that in the said order the Cuttack Bench of this Tribunal has rejected the OA on the sole ground of delay and latches and one of the matter has been remitted back by the Hon'ble High Court of Orissa for reconsidering the issue on its own merit. It is clear from the said fact that while passing the said orders, the Cuttack Bench of CAT has not looked into the aspect of merit. Therefore, in our considered opinion, the said ' judgements are not applicable to the applicant's case in this OA.
It is to be noted that the respondents have not uttered a single . word in their reply regarding delay and limitation and it is not their case even while rejecting the representations of the applicant and not while filing the counter affidavit to oppose the claim of the applicant. Therefore the respondents' reliance upon the orders of the Cuttack Bench of CAT dismissing the OAs on Ma 11 of 12 the sole ground of delay and latches cannot be acceptable as the . same is unreasonable and such an arguments goes against the letter and spirit of the communication issued by the respondents themselves from the year 1984 and 1991. Therefore, this arguments put forward by the respondents has to fail.
7. In the light of the above discussions, we hold that the applicant has made out a case and in the result has succeeded and the ends of justice would be met if the following orders are passed:
The impugned order dated 28.12.2015 is hereby quashed and set . aside.
The respondents are directed to grant BCR benefits to the applicant with effect from 21.02.1992 instead of 01.07.1992 as "per the Full Bench Judgment. made in Piran Ditta & 25 others
-Vs- Union of India which is reported 2005(1) ATJ 430, and to grant notional promotion to the applicant to the cadre of HSG-I by treating BCR service as equivalent to HSG- II and to revise and re-fix the retirement service benefits of the applicant accordingly with monetary benefits
- The above said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
8. Accordingly, the OA is allowed. No order as to costs."
5. In view of the above, since the issue in the instant OA is squarely covered by the decision, dated 03.02.2023, of the Tribunal in OA. 747 of 2016, this OA is disposed of on similar lines with the following direction:-
"In the light of the cited judgments, we hold that the 12 of 12 applicant has made out a case and in the result has succeeded and the ends of justice would be met if the following orders are passed:
_ The impugned order, dated 28.07.2015, is hereby quashed and set aside.
The respondents are directed to grant BCR benefits 'to the applicant with effect from 07.05.1992 instead of © 01.07.1992 as per the Full Bench Judgment made in Piran Ditta & 25 others -Vs- Union of India which is reported 2005(1} ATJ 430, and to grant notional promotion to the applicant to the cadre of HSG-I by treating BCR service as equivalent to HSG- I and to revise and re-fix the retirement service benefits of the _ applicant, accordingly, with monetary benefits The above said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order."
6. With the above direction/observation, the OA is, accordingly, allowed.
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