Central Administrative Tribunal - Delhi
Smt. Varsha Ahuja Wife Of Shri Ramesh ... vs The Union Of India on 24 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 977/2008 New Delhi this the 24th day of November, 2008 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Smt. Varsha Ahuja wife of Shri Ramesh Kumar Ahuja Working as Hindi Typist LSG/TBOP in the O/o Sr. Supdt. of Post Offices Rohtak Division Rohtak, R/o 115 Street No.2, Guru Charanpura, Rohtak, Applicant (By Advocate: Shri Sant Lal)
- V e r s u s -
1. The Union of India, M.O. Communications & I.T., Department of Posts, Dak Bhawan, through its Secretary New Delhi-110001
2. The Chief Postmaster General Haryana Circle, Ambala-133001.
3. The Sr. Supdt. of Post Offices, Rohtak Division, Rohtak-124001
4. The Sr. Postmaster, Rohtak H.O., Rohtak-124001 .Respondents (By Advocate: Shri K.R. Sachdeva) O R D E R By Honble Dr. Veena Chhotray, Member (A);
The applicant is working as a Hindi Typist under Respondent No.3 in the Postal Department. However, under the Time Bound One Promotion (TBOP) Scheme, on completion of 16 years of service, she had been granted promotion to the Lower Selection Grade (LSG for short) w.e.f. 15.12.1997. Subsequently, however, the date of promotion under the TBOP Scheme has been changed as 1.6.2003. Applicant is aggrieved at the consequent reduction of pay and recoveries made without giving her any opportunity of presenting her case. This is said to be virtually a major penalty and running contrary to the earlier judgments of the Tribunal in several OAs.
2. The OA seeks the following reliefs:-
1. To quash and set-aside the impugned order dated 26.5.2003 to the extent the same relates to grant of promotion to the higher pay scale under TBOP/BCR Scheme w.e.f. 1-6-2003 instead of from the due dates on completion of 16 years/26 years as applicable to the Postal Assistants and also impugned orders dated 5.4.2007 and 17.12.2007 (Annexure A-3, A-1 & A-2).
2. To direct the respondents to restore the applicant to her promotion to the LSG Pay Scale under Time Bound One Promotion Scheme w.e.f. 15.12.1997 to which she stood already promoted vide order dated 6.4.98 and her pay which she had already been drawing based on her promotion granted w.e.f. 15.12.1997;
3. To direct the respondents for refund of the amount recovered under the impugned orders with interest;
4. To grant all other consequential benefits as if the impugned order had not been issued.
5. To grant other reliefs as this Honble Tribunal deem fit in the facts and circumstances of this case in the interest of justice; and
6. To award costs of this application.
3. Briefly speaking, the facts of the case are that the applicant had been initially appointed as Hindi Typist in a Divisional Office w.e.f. 15.12.1981 in the pay scale of Rs.260-480/-. She was granted replacement scale as per the recommendations of the 4th and 5th CPCs and placed in the scale of Rs.4000-6000/ w.e.f. 1.1.1996, fixing her pay at the stage of Rs.4400/- by treating her at par with the Postal Assistant/Sorting Assistant (para 4 of the counter). On completion of 16 years of service, she had been granted the benefit of TBOP and placed in the LSG scale of Rs.4500-7000/- w.e.f. 15.12.1997 vide order dated 6.4.1998 (Annexure A/4).
3.1 Subsequently, however, the Department took the view that grant of the scale of Rs.4000-6000/- had been done erroneously since, as per the recommendations of the 5th CPC, this was applicable only to the Postal Assistants and not to the Hindi Typists in the Divisional Offices. The pay scale was reduced to Rs.3200-4900/- vide order dated 5.1.1999 (para 10 of the counter).
3.2 The matter was agitated before the Tribunal in a number of Applications by similarly situated employees and the reduction in the pay scale was struck down. In OA No.350/2001, the Jodhpur Bench Tribunal vide order dated 9.7.2002 decided that the applicant as Hindi Typist would be entitled to the scale of Rs.4000-6000 at par with Postal Assistant. The applicant would further be entitled for promotion to LSG as per One Time Bound Promotion Scheme, if found suitable. (Annexure A/14). This decision of the Tribunal attained finality vide the order dated 4.1.2001 of the Rajasthan High Court in DBCW. Pet. No. 4830/2000 (Annexure A/16). The present applicant also got the relief through her OA No.44/HR/2002 filed before the Chandigarh Bench.
3.3 The matter was reconsidered by the Department. Vide their order dated 26.3.2003 a decision was taken to merge the posts of Hindi Typist in the pay scale of Rs.3200-4900 in the Divisional Offices with those of Postal Assistants/Sorting Assistants in the pay scale of Rs.4000-6000/- w.e.f. 1.1.1996 (Annexure A/10). Para-2 (e) stipulated that the inter-se-seniority of the incumbents of Hindi Typists in the cadre of PA/SA should be fixed at the bottom of the PAs/SAs with reference to the years of recruitments. Further, vide Circular dated 26.5.2003, in the light of the judgment of the Jodhpur Bench of the Tribunal, it was also decided that the cadre of the Hindi Typists would be covered under the TBOP Scheme and the ACP Scheme would not be applicable to them. This was to be made effective from 1.6.2003 (Annexure A/3).
3.4 In pursuance to the general decision, vide OM dated 5.4.2007 the applicant has been communicated that the date of her promotion under TBOP Scheme would now be treated as 1.6.2003 instead of 15.12.1997 (Annexure A/1). Additionally, as a part of settlement of staff grievances on spot as notified for staff Adalat, a letter dated 17.12.2007 (Annexure A/2) has been issued stating that the earlier grant of TBOP w.e.f. 15.12.1997 as a result of the DPC held on 30.3.1998 was not covered under any rule or instruction and the said order can be over-ruled by holding a review DPC. The Respondent No.3 has been asked to convene a Review DPC accordingly.
3.5 The general decision at Annexure A/3 and the specific orders relating to the applicant at Annexures A/1 and Annexure A/2 have been impugned in this OA.
4. The learned counsel, Shri Sant Lal, would contend that the applicant had been duly promoted to the LSG on completion of 16 years of regular qualifying service under TBOP Scheme on the recommendations of the DPC (Annexure A/4). He would further aver that the Respondents own merger order had stipulated the fixation of the inter-se-seniority of the Hindi Typists in the cadre of PA/SA with reference to the years of recruitments (Annexure A/10). He would also refer to the decisions of the Tribunal in several OAs (Jodhpur Bench, Chandigarh Bench etc.), a referred above, which had conclusively decided that the Hindi Typists were to be given the higher pay scale of Rs.4000-6000/- w.e.f. 1.1.1996 and they were also to be covered under the TBOP Scheme as per the provisions thereof.
4.1 Para 5.5 of the OA would refer to the Principal Benchs decision in Surender Kumar Sharma v. Union of India & Ors (OA No.1061/2006 decided on 3.10.2006) wherein it as been observed as under:
5. On careful consideration of the rival contentions of the parties and perusing the material on record, it is precluded to the Government to approbate and reprobate simultaneously and having decided to merger the category of Hindi Typists with PA/SA by order dated 26.3.2003 and accord seniority to them in PA cadre from the date of their initial recruitment, respondents are now estopped from treating this service as a non-qualifying service.
6. An erstwhile service for computing seniority in Postal cadre will hold good not only for the purpose of promotion but for the purpose of TBOP/BCR. Accordingly, the decision of the respondents, vide their impugned order dated 265.2003, which appears oblivious of the decision dated 26.3.2003, lacks application of mind, and cannot be sustained in law.
7. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders of Annexure A-1 & Annexure A-2 are set-aside. In so far as applicability to TBOP/BCR prospectively is concerned matter is sent back to the respondents for re-examination for grant of TBOP/BCR to the applicant in accordance with order dated 26.3.2003 by passing a detailed and reasoned order within a period of four months from the date of receipt of a copy of this order. Till then, no recovery shall be effected from the applicant. (emphasis supplied) 4.2 Para 5.1 would also raise the plea of violation of Articles 14 and 16 of the Constitution and principles of natural justice since through the applicant is visited with civil consequences yet she had not been given any opportunity to show cause or hear. In support, the decision of the Honble Supreme Court in the case of Bhagwan Shukla v. Union of India & Ors, 1994 SCSLJ 74 & 1994 (5) JT 253) would be cited ..The applicant has obviously been visited with Civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put to notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus been flagrant violation of the principles of natural justice and the applicant has been made to suffer huge financial loss without being heard..
5. On behalf of the Respondents, the learned counsel Shri K.R. Sachdeva would oppose the OA and submit that the applicant had no legally indefeasible right. Besides, the reliefs claimed were said to be vague and lacking any real cause of action. He would further aver that the impugned order dated 26.5.2003 contains a policy decision which is well within the exclusive and sovereign powers of the executive. The learned counsel would submit that this is a comprehensive and reasoned order passed by the Respondents after duly considering all the relevant aspects in the wake of the CAT judgment (Jodhpur Bench), in due consultation with the Ministry of Finance. Further all the benefits of TBOP due after 26.5.2003 are stated to have been paid and prior to that the applicant is not entitled to the same.
6. In view of the aforesaid decisions of the Tribunal, the issue regarding entitlement of the pay scale of Rs.4000-6000/- to the erstwhile Hindi Typists in the merged cadre with PA/SA w.e.f. 1.1.1996 is no more res integra. Similarly is their coverage under the TBOP Scheme. The view taken by the Tribunal in all these judgments repeatedly is that the erstwhile Hindi Typists should be extended the benefits of TBOP as per the provisions of the Scheme.
6.1 As would be clear from a perusal of the Departmental Circular dated 22.7.1993, the Time Bound One Promotion and Biennial Cadre Review (BCR) were extended to the Group C staff in the Department of Posts w.e.f. 26.6.1993 (Annexure R/2). Under this Scheme a two layer promotion was stipulated, the first after completion of 16 years and the second on completion of 26 years of regular service. The scheme was made applicable to the clerical staff of Administrative Offices excluding isolated posts like Hindi Translators, Librarians etc. A copy of the Scheme is available at Annexure R/2. Clause 3.12 of the Scheme reads thus -
3.12. Under this scheme, only such officials as have completed 16 and 26 years service in the Postal Assistants/UDC/LDC Grade will be eligible for promotion to the next higher grades of Rs.1400-2300 and Rs.1600-2660 respectively, if they are otherwise eligible. 6.2 So the basic issue to be decided is what should be the reference point for calculating the 16 years qualifying service. As per the impugned order, the benefit of TBOP/BCR Schemes to the Hindi Typists has been made applicable w.e.f. 1.6.2003 after completion of 16 years and 26 years of service in the basic grade. This, however, is contrary to the view taken in Surender Kumar Sharmas case where it was held that the date of their initial recruitment will hold good for the purpose of computing the qualifying service for TBOP/BCR.
6.3 We also find merit in the contention of the applicant that though she has been visited with civil consequences, while reducing her pay scale she has not been given any opportunity to show cause or personal hearing.
7. For the foregoing reasons, the OA is allowed and the impugned order dated 26.5.2003 is set aside. The Respondents are directed to reconsider the matter and pass an appropriate order regarding her TBOP in the light of our observations in the body of the order. Needless to say, this would also entail grant of all consequential benefits like pay fixation, arrears including refund of recoveries, if any. This should be done within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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