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Rajasthan High Court · body

2005 DIGILAW 3169 (RAJ)

Union of India v. Bhooramal Sharma

2005-11-30

K.C.SHARMA, Y.R.MEENA

body2005
Judgment 1. Since, common issue involved in all the three writ petitions, we heard the same together and the same are being decided by this common order. 2. The limited controversy before us in these writ petitions is that when the junior person promoted earlier to Gr.II by virtue of passing the Limited Departmental Examination etc. and thus, became senior to the persons who were promoted later to Gr.II through 2/3rd seniority quota or on the basis of length of service. The short controversy before us is that though the respondents have not completed 26 years of service for the purpose of promotion under Biennial Cadre Review Scheme, but the employees who were promoted to Gr.II later and they have completed 26 years of service in total, therefore, they are eligible for promotion under the Biennial Cadre Review Scheme to Gr.III. The question is that when they are junior to the respondents in Gr. II whether the applicant-respondents should also be considered for promotion to Gr. III when they are senior to the persons who though completed 26 years of service but in Gr. II, they are junior to applicant-respondents. 3. Considering these facts, the Central Administrative Tribunal (for short `the Tribunal) has directed that the applicants before the Tribunal and respondents herein in the writ petitions should be considered for promotion to Gr.III w.e.f. the date from which their juniors have been granted promotion to Gr.III under the BCR Scheme though they have not completed 26 years of total service. While directing the appellants to consider the cases of respondents, following facts were considered by the Tribunal in Paras 8, 9 and 10 of the order and finally concluded that the employees who were promoted earlier to Gr. II from Gr. I cannot be ignored while considering for promotion from Gr. II to Gr. III under the BCR Scheme though not completed 26 years of total service. For ready reference, Para Nos. 8, 9 and 10 of the order of the Tribunal reads as under: - "8. We have heard the learned Counsel for the parties and have perused the material on record including the Judgment s cited by the learned Counsel for the applicant. 9. Although the BCR Scheme applicable to the Telecommunications Department has not been filed either by the applicant or by the respondents, its basic outlines, discussed during the arguments, were not disputed. We have heard the learned Counsel for the parties and have perused the material on record including the Judgment s cited by the learned Counsel for the applicant. 9. Although the BCR Scheme applicable to the Telecommunications Department has not been filed either by the applicant or by the respondents, its basic outlines, discussed during the arguments, were not disputed. There were that persons employed in the basis grade were to be granted promotion to the higher grade (Grade-II) scale Rs. 1400-2300 on completion of 16 years of service on the basis of seniority-cum-fitness. They were further entitled to promotion to Grade-III Rs. 1600-2600 on completion of 26 years of service, again on the basis of seniority-cum-fitness. It was in pursuance of this scheme that Shri Mohd. Rafiq Ahmed, a person undisputably junior to the applicant in Gr.II scale Rs. 1400-2300 was granted promotion w.e.f. 01.07.1992 and S/Shri Hazari Lal Sharma and Ram Avatar Sharma also undisputably junior to the applicant, were granted promotion to Grade-III scale Rs. 1600-2600 w.e.f. 15.02.1993 under the BCR Scheme on the ground that they had completed 26 years of service. The applicant was denied promotion because he had not yet completed 26 years of service as on 01.07.1992, the date on which Mr. Mohd. Rafiq Ahmed was granted promotion under the said scheme w.e.f. 01.07.1992. This situation had arisen because the applicant had been granted promotion to Grade-II scale Rs. 1400-2300 not under the BCR scheme on completion of 16 years of service, but on account of his passing the departmental examination under the one-third quota reserved for promotions on passing such examination. He was, therefore, treated as senior to those who had been promoted under the BCR scheme, to the said grade. However, when it came to the matter of promotion to grade-III, scale Rs. 1600-2600 the applicant was found not to have completed 26 years of service while certain persons junior to him in Grade-II had completed 26 years of service and were granted promotion. This certainly was an anomolous situation in which a senior has been denied promotion although, in a way, he is more meritorious than his juniors who have been granted promotions to Grade-III under the BCR scheme. This is because the applicant was granted his first promotion to Grade-II scale Rs. This certainly was an anomolous situation in which a senior has been denied promotion although, in a way, he is more meritorious than his juniors who have been granted promotions to Grade-III under the BCR scheme. This is because the applicant was granted his first promotion to Grade-II scale Rs. 1400-2300 on his passing, the departmental examination, whereas his juniors were granted this promotion under the BCR scheme. 10. The order of this Bench of the Tribunal dated 19.08.1994 in OA No. 113/93 in Ram Naresh Sharmas case relates to grant of promotions to the Postal Assistants in the Postal Department under the BCR Scheme but the principle applicable to promotions in both the Departments under the BCR scheme would be the same because the instructions are admittedly more or less common. In this order the Tribunal relied upon an order of Bangalore Bench of the Tribunal in Smt. Leelamma Jacob and Ors. vs. Union of India & Ors., 1993 (3) SLJ (CAT) 514. In the order of the Bangalore Bench, the Tribunal had directed that while implementing the BCR scheme, if juniors are granted promotion on completion of 26 years of service, the seniors should also be considered for promotion irrespective of whether they have completed 26 years of service or not. The Hyderabad Bench of the Tribunal in OA No. 28/94 in the case of S.N.C.R.N. Acharya and Ors. vs. Chairman Telecom Commission and Ors. Held by its order dated 25.03.1994 that while implementing the BCR scheme, seniors in Grade-II should be considered for promotion to Grade-III scale Rs. 1600-2660 in their turn as per their seniority whenever their erstwhile juniors in Grade-II are considered for promotion to Grade-III by virtue of their having completed 26 years of service in the basic grade, without insisting on their completing the minimum prescribed years of service in their basic grade. The Hyderabad Bench of the Tribunal in this order relied upon an order dated 02.09.1993 passed by the Bangalore Bench of the Tribunal in OA No. 403/92 in the case of Shri M.A. Govindaraju. In Govindarajus case the Bangalore Bench of the Tribunal held that recruitment rules have not been amended and these do not provide for the eligibility condition of 26 years of service in the basic grade for promotion from Grade-II to Grade-III. In Govindarajus case the Bangalore Bench of the Tribunal held that recruitment rules have not been amended and these do not provide for the eligibility condition of 26 years of service in the basic grade for promotion from Grade-II to Grade-III. We are of the view that although the scheme provides for grant of second time bound promotion under the BCR scheme on completion of 26 years of service, the general rule of grant of promotion on the basis of seniority remains undisturbed. Therefore, the applicant would be entitled to promotion to Grade-III scale Rs. 1600-2660 on the basis of his seniority with reference to the date from which his junior has been promoted to grade-III, although he may not have completed 26 years of service. The reliance by the learned Counsel for the respondents on Annexure R.3 dated 112.1995 is not of any help to the respondent, because in any case this communication covers promotions from Grade-III to Grade-IV whereas the dispute raised by the applicant is about promotion from Grade-II scale Rs. 1400-2300 to Grade-III scale Rs. 1600-2660. We, therefore, direct that the applicant should be considered for promotion to Grade-III w.e.f. the date from which his junior Shri Mohd. Rafiq Ahmed has been granted promotion to Grade-III under the BCR Scheme subject to fulfillment of other necessary conditions and if he is found eligible for promotion, he shall be entitled to promotion to Grade-III w.e.f. 01.07.1992". 4. At the out set Counsel for the respondents submit that identical issue has been considered by their Lordships of the Supreme Court in the case of Union of India & Ors. vs. Leelamma Jacob & Ors., 2005 SCC (L&S) 132. Thereafter, a circular has also been issued by Bharat Sanchar Nigam Limited to give effect to this Judgement. 5. The facts are not in dispute that the respondents were promoted earlier under the OTBP through departmental test from Gr.I to Gr.II and thereafter the persons though senior to them in Gr.I but promoted later to Gr.II. In promotion to Gr.III the respondents were ignored, though they were senior in Gr.II, on the ground that they cannot get the benefit of BCR Scheme as they have not completed 26 years of service. 6. An application has been moved and the Tribunal has given the aforesaid direction to the appellants to consider the cases of the persons who were senior in Gr.II. 6. An application has been moved and the Tribunal has given the aforesaid direction to the appellants to consider the cases of the persons who were senior in Gr.II. Now to give effect to the Judgment rendered by their Lordships of the Supreme Court in the case of Leelamma Jacob (Supra) the appellant Bharat Sanchar Nigam Ltd. has also issued the circular dated 24.02.2004. The relevant part of this circular reads as under : - "(i) While implementing the BCR Scheme, all the officials who were promoted earlier to Gr.II by virtue of passing the Limited Departmental Examination etc. and thus became senior to the officials who were promoted later to Gr.II through 2/3rd seniority quota or on the basis of length of serve i.e., OTBP, even though they have not completed total 26 years of service, may be considered for promotion to BCR Gr.III whenever their juniors in Gr.II were promoted to Gr.III on completion of 26 years of service". 7. Counsel for the petitioners submits that the persons who are promoted earlier in Gr.II, have not completed 26 years of service in total, they are not eligible for the benefit of BCR Scheme for promotion in Gr.III. 8. We see no substance in this argument in view of the law laid down by their Lordships of the Supreme Court in the case of Leelamma Jacob (Supra) and also in view of the Circular dated 210.2004, which left no doubt that while implementing the BCR Scheme, all the officials who were promoted earlier to Gr.II by virtue of passing the Limited Departmental Examination etc., they should be considered for promotion, when their junior persons in Gr.II are promoted to Gr.III under the BCR Scheme. 9. The result of the discussions above is that, we find no substance in the writ petitions. The same deserve to be dismissed and the writ petitions are dismissed accordingly.