Madras High Court
Union Of India vs N. Periasamy on 28 March, 2011
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28 - 3 - 2011 CORAM THE HON'BLE Mr. JUSTICE ELIPE DHARMA RAO and THE HON'BLE Mr. JUSTICE M.VENUGOPAL W.P. No. 7749 of 2011 and M. P. No. 1 of 2011 1. Union of India Rep. by the Chief Postmaster General, Tamil Nadu Circle Anna Salai Chennai 2. C. Muppidathi ... Petitioners Vs. 1. N. Periasamy 2. Central Administrative Tribunal, Chennai Bench, Madras 104. ... Respondents Writ petition filed under Article 226 of The Constitution of India to issue a Writ of Certiorari to call for the records in O. A. No. 563 of 2008 and order dated 07.01.2010 on the file of the second respondent and quash the same. For petitioners : Ms. R. Maheswari, SCGSC ORDER
(made by ELIPE DHARMA RAO, J.) The petitioners have filed this writ petition seeking to quash the order dated 07.01.2010 passed by the Central Administrative Tribunal in O. A. No. 563 of 2008.
2. The first respondent / applicant, who was working as LSG Assistant Postmaster, has filed the Original Application before the Tribunal seeking promotion to the next higher post, viz., Lower Selection Grade (LSG) on the basis of seniority in Circle Gradation List.
3. The case of the first respondent is that he has entered the Department of Posts as Clerk in the Pudukottai Division on 01.02.1971. Later, he joined in the Karaikudi Division on 18.9.1975 under Rule 38 of P&T Manual Vol. IV. Hence, according to him, his seniority and promotion to the post of LSG is protected under Sub-Clause 3 of P & T Manual Vol.IV. It is stated that though the scale of pay of TBOP and LSG supervisory was identical, the TBOP officials were allowed to continue to work as LSG though several vacancies were available to the cadre of LSG. It is further stated that he has been granted TBOP as well as BCR benefits long back. It is the further case of the first respondent that for promotion to the LSG cadre, circle seniority was maintained till 12.12.1985 and thereafter, till 29.5.2006, Divisional seniority was maintained. The cadre of LSG was divisionalised as per Letter No. 6-19/82-SPB II (Pt) dated 06.6.1990 clarifying that the officials transferred from one circle to another alone would be affected but not the ones who had been transferred under the Rule from one Division to another Division within the circle.
4. It is the further case of the first respondent that the second petitioner, who is junior to him, was promoted to the post of LSG notionally in the year 2004 and hence, he made a representation dated 26.6.2007 to the authorities to consider his case also for promotion on par with the second petitioner, but, there was no reply. On the other hand, he was promoted to the post of LSG with effect from 20.8.2007 only. Hence, he approached the Tribunal with O.A. No. 563 of 2008.
5. The substance of the claim of the first respondent is that the decision of the first petitioner to promote him on a later date and allowing promotion to the officials who are juniors to him much earlier by ignoring his circle seniority is arbitrary, unilateral and is in violation of Recruitment Rules of LSG and sub rule 3 of Rule 38 of P & T Manual and subsequent clarification issued by the Director General of Posts and therefore, the first respondent has sought for the relief of direction to the petitioners to promote him to LSG, taking his circle seniority into consideration from the date on which his junior C. Muppidathi had been promoted to LSG with all consequential benefits to enable him to get his due promotions to HSG II and HSG I as he was due to retire on 31.12.2010.
6. The Tribunal, after hearing the learned counsel for the parties and on consideration of the materials placed on record, allowed the Original Application following the earlier decision of this Court in W.P. No. 6877 of 2009 wherein the order of the Tribunal in similar matter in O.A. No. 528 of 2007 that promotion to LSG grade has to be based on the circle seniority only, was confirmed. Aggrieved by the same, the present writ petition has been filed.
7. Learned Standing Counsel representing the authorities submitted that the first respondent, as per Rule 38, having agreed to abide by the condition that he would rank junior to all the officials of the new division, could be considered for promotion only on the basis of divisional seniority and further since LSG cadre was divisionalised in the year 1985, promotion could be made only on the basis of divisional gradation list and C. Muppidathi, who was senior to the first respondent in the divisional gradation list, was given notional promotion to LSG cadre and the first respondent was promoted to LSG on his turn as per the divisional seniority list and therefore, the promotions given were as per the LSG Rules prevailing at the time of promotion and the LSG cadre was made as a circle cadre again after 30.05.2006. She further submitted that as against the order of this Court passed in W.P. No. 6877 of 2009, which was relied on by the Tribunal, appeal has been filed before the Hon'ble Supreme Court in S.L.P. No. 7176 of 2010 and sought for interference of this Court.
8. The core question to be decided in this writ petition is whether the promotion of the first respondent to LSG cadre will be on the basis of divisional seniority or circle seniority.
9. In this connection, under sub rule 3 of Rule 38 of P & T Manual, it is mentioned that if the old and new unit form parts of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit. For example, a Post Office Clerk transferred from Mehsana Division to Kaira Division in the same circle will not lose his seniority in the circle gradation list for promotion to the Lower Selection Grade. Suffice it for us to point out whatever circular that has been issued, cannot, in the eye of law, override a Rule in the considered opinion of this Court.
10. Even in the affidavit filed in support of the writ petition, nowhere it is mentioned that whether the first respondent is entitled to get promotion prior to 13.12.1985 as per the circle seniority list cadre and, in turn, they have considered the circle seniority basis with effect from 18.05.1986 viz., from which date, LSG was declared as circle cadre.
11. By adverting to the letter of the Director General of Posts in No.6-19/82-SPB dated 13.12.1985 introducing the divisionalisation of the LSG cadre, it is to be pointed out that the said letter in the first paragraph goes to the effect that "the Lower Selection Grade in the Department of Posts is a circle cadre at present and in this cadre, posts are filled by promotion of officials in the cadre of Postal/Sorting Assistant". It is not out of place to point out that the first respondent was transferred from Pudukottai to Karaikudi in the year 1975 prior to the divisionalisation which took place in the year 1985. Even a perusal of the clarification letter dated 06.06.1990 especially clause III, issued by the Director General of Posts in regard to preparation of gradation lists after divisionalisation of LSG cadre, enjoins that since for the purpose of promotion and the TBOP Scheme what is to be counted for total length of service whether in one division or in different divisions, the condition that the transferees under Rule 38 will rank juniormost in the new division will have effect only to the extent that seniority of such an official in the divisional LSG will be below the officials of that division promoted during the year in question and continuing further, the letter also points out that since prior to divisionalisation of LSG cadre, transfer of PAs from one division to another division did not adversely affect the seniority of the transferred officials for the purpose of promotion to the LSG. It is also clarified that clause (iii) will be applicable only in the case of transferees from one circle to another and as such it is crystal clear that the seniority of transferees from one circle to another will be affected and not those who are transferred within the circle and resultantly, the seniority of the first respondent, who is senior to Muppidathi in the circle seniority will not be affected. Interestingly, the petitioners/respondents have not adverted to anything about the specific point in their reply statement and this is not a favourable circumstance in their favour, in our considered opinion.
12. Secondly, though it is submitted by the learned Standing Counsel that the appeal preferred as against the order of this Court in similar matter in W.P. No. 6877 of 2009 is pending before the Supreme Court, no stay has been granted.
13. On an overall assessment of the facts and circumstances in an integral manner and in view of the detailed, quantitative and qualitative discussion mentioned supra and looking at from any angle, we do not find any illegality or patent irregularity in the order of the second respondent/Tribunal passed in O.A.No.563 of 2008 dated 07.01.2010 and resultantly the writ petition fails.
In fine, for the foregoing reasons, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.
gri To The Central Administrative Tribunal, Chennai Bench, High Court Campus, Madras 104