Central Administrative Tribunal - Madras
S Arokiam vs D/O Post on 3 February, 2023
1 OA 949/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.949/2016
Dated Friday, the 3rd day of February, Two Thousand Twenty Three
CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER
&
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
1. S.Arokiam @ Selvaraj,
S/o.S.Samidurai Pillai,`
'Selvi' 8, Subbiah Street,
Sangiliyandapuram,
Tiruchirappalli-620 001.
2. M.Devamani,
S/o.P.Muthiah,
No.14, II Main Road,
Thiruvalluvar Nagar,
Palanganatham,
Madurai-625 003.
3. R.Anandakrishnan,
S/o.K.Rathnavelu,
No.7, Muthuramalinga Thevar Street,
Ponmeni Main Road,
Madurai-625 016.
4. V.Srinivasathatham,
S/o.S.Veeragava Thathachari,
No.67/1, Sannadhi Street,
Srivaikuntam-628 601,
Tuticorin District.
2 OA 949/2016
5. S.Palavesam,
S/o.Sudalimuthu,
No.43, Saipuram,
V.M.Chatram,
Maharajanagar,
Tirunelveli-627 011.
6. S.Jebaratnam,
S/o.P.Shanmugham,
No.130, Keelakottaivasal Street,
Srivaikuntam-628 601,
Tuticorin District. ...Applicants
By Advocate M/s R.Malaichamy
Vs.
1. Union of India,
Rep. by the Secretary,
Ministry of Communications & I.T.,
Department of posts,
Dak Bhavan,
Sansad Marg,
New Delhi - 110 001.
2. The Chief Postmaster General,
Tamil Nadu Circle,
Anna Road,
Chennai-600 002.
3. The Postmaster General,
Southern Region (TN Circle),
Madurai - 625 002.
4. The Postmaster General,
Central Region (TN),
Tiruchirapalli 620 001 ...Respondents
By Advocate Mr.K.Kannan
3 OA 949/2016
ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"1. To call for the records of the 2nd Respondent pertaining to his orders made in Annexures-2, 5, 6 & 8 to 10 dated 09.09.2015, 07.12.2015, 13.01.2016, 12.02.2016, 22/23.02.2016 and 26.02.2012 respectively and set aside the same; consequent to,
2. direct the Respondents to extend the benefit of judgments of this Hon'ble Tribunal made in O.A.No.679 of 2003 dated 19.03.2004 and the Judgment of the Cuttack Bench of this Hon'ble Tribunal made in O.A.No.1196 of 2004 and O.A.Nos.1213 - 1221 of 2004 dated 23.07.2008 and further direct to revise and re-fix the retirement service benefits of the Applicant accordingly with all benefits ."
2. The brief facts of the case as stated by the applicants are as follows:
All the applicants joined the Respondents Department as a Postal Assistant (PA)/Sorting Assistant (SA). They were granted Time Bound One Promotion (TBOP) after completion of 16 years of service and BCR on completion of 26 years of service. The 1st Applicant retired from service while working as Biennial Cadre Review Head Sorting Assistant (BCR HAS). The 2nd and 3rd Applicants retired from service while working as BCR SA in the RMS MA Division. The 4th Applicant retired from service while working as Higher Selection Grade II (HSG-II) Supervisor (SBCO). The Applicants 5 and 6 retired from service while working as BCR PA. Since, the introduction of TBOP and BCR, the Postal Department, kept in abeyance of giving promotion to the eligible official to the cadre LSG because 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 4 OA 949/2016 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 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 applicants is that similarly placed persons like the applicants 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. The W.P.No.27062 of 2004 filed by the Department against that order was dismissed by the Hon'ble High Court, Madras on 24.09.2004. The SLP was also dismissed by an order dated 09.03.2011. The grievance of the applicants is that though they had completed more than 3 years in BCR cadre (equivalent to HSG - II) and eligible to be promoted notionally to the cadre of HSG - I and thereby entitled for revision and re-
fixation of the retirement service benefits including pension, the respondent department has not considered their cases for grant of similar 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 applicants 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 applicants' representations in this regard were turned down by the respondent department and hence the present OA.
3. The respondents have filed a detailed reply. The thrust of the reply is that the judgments, cited by the applicants for extension of similar relief as they are similarly situated and their case is covered by the said orders passed by this Hon'ble Tribunal as well as the co-ordinate bench at Cuttack 5 OA 949/2016 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 applicants in the present OA unless order is issued by the Postal Directorate to the effect that judgement is open to all similarly placed officials.
4. Heard the learned counsel for both sides in extenso and perused the records.
5. The main ground on which the applicants have put forward their 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 applicants have 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 1st Applicant retired from service while working as Biennial Cadre Review Head Sorting Assistant (BCR HAS). The 2nd and 3rd Applicants retired from service while working as BCR SA in the RMS MA Division. The 4th Applicant retired from service while working as Higher Selection Grade II (HSG-II) Supervisor (SBCO). The Applicants 5 and 6 retired from service while working as BCR PA. They were 6 OA 949/2016 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 in giving promotion to the eligible officials to the cadre of LSG because the pay of the cadre of TBOP & 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 and 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 t he 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 applicants are 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 applicants 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: 7 OA 949/2016
"4. We have given our thoughtful consideration to the 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.On 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 II 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 decision on 3rd 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 8 OA 949/2016
(b) The said schemes are not in conflict with the norms based promotion to LSG & HSG II 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 24th 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 applicants have 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.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" on the issue that similarly placed employees those who 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 9 OA 949/2016 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. "
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 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 10 OA 949/2016 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 respondents, 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 applicants' 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 applicants and not while filing the counter affidavit to oppose the claim of the applicants. Therefore the respondents' reliance upon the orders of the Cuttack Bench of CAT dismissing the OAs on 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 applicants have made out a case and in the result have succeeded and the ends of justice would be met if the following orders are passed:
The impugned orders 09.09.2015, 07.12.2015, 13.01.2016, 12.02.2016, 22/23.02.2016 and 26.02.2016 respectively are hereby quashed and set aside. The respondents are directed to consider the case of the applicants for extension 11 OA 949/2016 of the benefit of judgments of this Hon'ble Tribunal made in O.A.No.679 of 2003 dated 19.03.2004 and the Judgment of the Cuttack Bench of this Hon'ble Tribunal made in O.A.No.1196 of 2004, O.A.Nos.1213 - 1221 of 2004 dated 23.07.2008 and further direct to revise and re-fix the retirement service benefits of the applicants accordingly with all 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.
(Lata Baswaraj Patne) (T. Jacob) Member (J) 03.02.2023 Member (A) MT