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2005 DIGILAW 709 (PNJ)

Tarlok Singh v. Union Of India

2005-07-07

NIRMAL YADAV, S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner seeks the issuance of a writ in the nature of Certio rari quashing the order dated 6.2.2001 (Annexure P-4) passed by the Central Adminis trative Tribunal (hereinafter referred to as "the Tribunal") in O.A. 727/CH/1992 in as much as and to the extent that it holds the petitioner to be ineligible for the grant of sen ior scale. The petitioner also seeks the issuance of a writ in the nature of Mandamus di recting the respondents to fix his pay in the Senior Scale equal to his junior S.S. Kapoor w.e.f. March, 1983 with all consequential benefits, such as fixation of pay, payment of arrears, re-fixation of pension and gratuity along with interest at the rate of 18% per an num. 2. Brief facts as pleaded are that the petitioner joined as Cleaner in the Indian Rail ways on 4.10.1947. He earned promotion in due course on various posts. His last pro motion was as Senior Loco Inspector w.e.f. 2.5.1962. In April, 1979 whilst working as such, he was sent on deputation to Nigeria for establishment and running a railways for a period of three years. On his return in April, 1982, he was posted as Senior Loco In spector at Diesel Loco Shed, Ludhiana. He joined on 13.5.1982. Whilst the petitioner was on deputation, about 31 persons junior to him had been promoted as Assistant Me chanical Engineer in the Class II service, on regular basis with effect from March, 1980. Some other persons junior to the petitioner were also promoted as Assistant Mechanical Engineer on adhoc basis. The claim of the petitioner for promotion was not considered at the time when persons junior to him were promoted. The petitioner thereafter submit ted a number of representations for the necessary relief. He was granted promotion on adhoc basis pending selection by order dated 13.7.1984 (Annexure R-2 to the written statement). The petitioner took the charge of AME Diesel (the promotional post) on 15.8.1984. Subsequently, he cleared the selection of AME in group (B) services and was placed on the penal on 12.10.1984. His name was also included in the panel of 1980 with effect from the date his juniors were empanelled by order dated 16.6.1993. The petitioner took the charge of AME Diesel (the promotional post) on 15.8.1984. Subsequently, he cleared the selection of AME in group (B) services and was placed on the penal on 12.10.1984. His name was also included in the panel of 1980 with effect from the date his juniors were empanelled by order dated 16.6.1993. Before the petitioner could render non-fortuitous service of three years in Group (B), he retired on attaining the age of superannuation on 31.12.1985. At that time, he had rendered service as AME in Group (B) only w.e.f. 15.8.1984 to 31.12.1985. According to the re spondents, for the condition of eligibility for grant of senior scale in Group (B), the minimum of 3 years on non-fortuitous service is required. The minimum years of non fortuitous service was not fulfilled by the petitioner. Therefore, by order dated 13.3.1992, the Railway Board declined to grant the senior scale to the petitioner. The re spondents have also stated that at the time when his juniors were considered for promo tion, he was also invited to appear for the interview. He could not appear as he was on deputation to Nigeria. Thus, 31 candidates who were empanelled for promotion on 31.12.1980, included persons junior to the petitioner. Para 206.1 of the Indian Rail ways s Establishment Manual deals with consideration for promotion of the cases of employees on deputation. We may reproduce the provisions at this stage for ready refer ence:- "206.1. Consideration of employees on deputation. In cases where employees are eligible to take the selection are abroad on deputation/secondment are not likely to return, they should be called for the first selection with thereafter and on the basis of their performance in the selection they should be considered for proforma inclusion in the penal framed during their absence abroad. If any employee is thus included in the panel no arrears would be payable to him and entitlement to pay in Group B would be commenced only from the date of his actual officiating promotion for the panel thus enlarged Boards approval should be obtained. In respect of eligible employees who are on deputation to offices/establishments within the country. If any employee is thus included in the panel no arrears would be payable to him and entitlement to pay in Group B would be commenced only from the date of his actual officiating promotion for the panel thus enlarged Boards approval should be obtained. In respect of eligible employees who are on deputation to offices/establishments within the country. It should be ensured that adequate advance notice is given to such employees and they are considered at the selection without fail." In the written statement, the respondents have also reproduced the relevant extract from the instructions contained in Letter No. E(GP)75/l/58 dated 27.2.1978 lying down the con ditions of three years non-fortuitous Service for the grant of selection grade which we may also reproduce as under: - "(i) As suitability of Class II Officer for officiating promotion to Senior Scale is to be adjudged on the basis of his seniority subject to fitness, the field of consideration will be restricted to as many Class-II Officers as the number to be empanelled. In case the required number is not found from among those so considered, the number to be considered may be increased corresponding to the short fall. (ii) Only Glass II Officer with not less than 3 years non-fortuitous service in Class II are to be considered for ad hoc panel." The petitioner, however, relies on Fundamental Rule 30 which is as under:- "Rule: When an officer in a post (whether within the cadre of his service or not) is for any reason prevented from officiating in his turn in a post on higher grade or scale, borne on the cadre of the service to which he belongs he may be authorised by special order of the appropriate authority. Proforma officiating promotion into such scale or grade and thereupon be granted the pay of that scale or grade if that be more advantageous to him on such occasion on which officer immediately junior to him in the cadre of his service draws officiating pay in that scale or grade." 3. It was pleaded that S.S. Kapoor was promoted and appointed as Assistant Me chanical Engineer Class II in March, 1980. He being junior to the petitioner would enti tle the petitioner to proforma promotion from the same date. The petitioner filed OA in the Tribunal claiming proforma promotion and the grant of selection grade. It was pleaded that S.S. Kapoor was promoted and appointed as Assistant Me chanical Engineer Class II in March, 1980. He being junior to the petitioner would enti tle the petitioner to proforma promotion from the same date. The petitioner filed OA in the Tribunal claiming proforma promotion and the grant of selection grade. During the pendency of the proceedings before the Tribunal, it was stated that the claim of the ap plicant for promotion fixation of pay in Group (B) with respect to his junior is under consideration. The Tribunal, therefore, issued a direction to the respondents to decide the matter as early as possible and preferably within a period of two months from the receipt of a copy of the order. The claim of the applicant for grant of Senior Scale has been rejected, on the basis of the instructions dated 27.2.1978. It has been held that since the petitioner had been on deputation and was placed in the Panel in 1984, he did not have the occasion of rendering three years non-fortuitous service in Class II. Even though his name had been "interpolated in the panel of 1980 selection, but that will not make him eligible for the selection grade". It is this part of the order of the Tribunal that the petitioner has challenged in the present writ petition. 4. We have heard the learned counsel for the parties and carefully gone through the paper-book. 5. Mr. Rajive Atma Ram, learned Sr. Advocate submits that the petitioner being on deputation was entitled to be considered for promotion along with his juniors. The re spondents have accepted the entire claim of the petitioner having included his name in the panel of 1980. Now the consequential relief cannot be granted on the ground that he did not have three years actual service under Class II Post. The non-fortuitous service clause would not be applicable in the case of the petitioner who had been sent on depu tation by the respondents. In support of his submission, Learned Senior Counsel has re lied on a judgment of the Supreme Court in the case of Union of India and Ors. V/s. K.B. Rajoria, J.T. 2000(4) S.C. 213 and a judgment of the Division Bench of this Court in the case of Ram Lal Aggarwal V/s. The State of Punjab and ors., 1968 S.L.R. 800. V/s. K.B. Rajoria, J.T. 2000(4) S.C. 213 and a judgment of the Division Bench of this Court in the case of Ram Lal Aggarwal V/s. The State of Punjab and ors., 1968 S.L.R. 800. Learned Senior Counsel further submits that the respondents having sent the peti tioner on deputation, cannot now be permitted to deny the benefit of proforma/deemed promotion from the date person junior to him was promoted. The respondents having empanelled the petitioner w.e.f. 1980 cannot deny the benefit of aforesaid period to be counted as actual service for the purposes of all consequential benefits. In support of the aforesaid submission, learned Sr. Counsel has relied on a judgment of this Court in the case of Asha Rani Lamba vs. State of Haryana, 1983(1) S.L.R. 400. Even otherwise to return from deputation, the petitioner resumed duties on 13.5.1982. He retired from service on 31.12.1985. Had the actual promotion been released to the petitioner on his return, he would have completed actual service of three years on 12.5.1985. Therefore, under no circumstances, the respondents can deny the relief of proforma promotion and the selection grade to the petitioner. 6. Mr. Puneet Jindal, learned counsel appearing for the respondents vehemently ar gues that in view of the provisions contained in the instructions, the petitioner cannot be granted the proforma promotion or the selection grade. In support of his submission, learned counsel relies on a judgment of the Supreme Court in the case of Rudra Kumar Sain and Ors. V/s. Union of India and Ors., and S.N. Dhingra and Ors. V/s. Union of India and Ors., 7. Having considered the submissions of the counsel for the parties, we are of the opinion that gross injustice has been done to the petitioner by the respondents. A perusal of the facts narrated above would show that the respondents seem to have given benefits to the petitioner with the right hand, which have been denied or taken away by the left hand. Very correctly, the respondents have empanelled the name of the petitioner w.e.f. 1980 when persons junior to him were promoted. Having granted the aforesaid empanel ment, it would be wholly in just and inequitable to deny the consequential benefits to the petitioner. In our opinion, the Tribunal committed an error of law in basing its decision on the Railway Boards letter dated 27.2.1978. Having granted the aforesaid empanel ment, it would be wholly in just and inequitable to deny the consequential benefits to the petitioner. In our opinion, the Tribunal committed an error of law in basing its decision on the Railway Boards letter dated 27.2.1978. Clause (i) of the aforesaid instructions lays down that the promotion to Class II would be made on the basis of seniority, sub ject to fitness. Clause (ii) provides that only those Class II officers with not less than 3 years non-fortuitous service in Class II are to be considered for the ad hoc panel. Even the subject matter of the instructions deals with officiating promotion of Class II Offi cers to Senior sale on the Railways. These instructions clearly deal with the situation where certain promotions are required to be made as a stop-gap arrangement for emer gency situations. The claim of the petitioner has to be considered under para 206.1 of the Indian Railways Establishment Manual. The respondents have actually considered the claim of the petitioner and empanelled his name w.e.f. 1980. Under para 206.1, the petitioner was entitled for the proforma promotion. In the aforesaid para, it is clearly laid down that suitable candidates shall be considered for proforma inclusion in the panel. The respondents having decided to empanel the petitioner w.e.f. 1980, cannot deny the consequential relief to the petitioner from the date his name was included in the Panel. Any other interpretation of the instructions and para 206.1 would subject the employees who are sent on deputation, to a break in service. It is a well settled principle of law that a person who is on deputation, continues to maintain the lien in his parent department till it is cancelled or revoked. We are of the considered opinion that the ob servations made by the Division Bench in R.L. Aggarwals case (supra) are squarely ap plicable to the case of the petitioner. Considering the interpretation of Rule 4.13 of the Punjab Civil Services Rules known as "next below Rule", the Division Bench held as follows:- "11. Note 4 quoted above elaborates what is well known in official parlance as the "next below Rule". Though the import of this Rule is well understood in service rules all over the country, yet no definition thereof appears in the Punjab Civil Services Rules. No precise definition of this rule need be laid down. Note 4 quoted above elaborates what is well known in official parlance as the "next below Rule". Though the import of this Rule is well understood in service rules all over the country, yet no definition thereof appears in the Punjab Civil Services Rules. No precise definition of this rule need be laid down. However, what is intrinsically indicated by the "next below rule" is that an officer out of his regular line (including deputation etc.) is entitled to be promoted to be shown as holding a higher post in the parent department if the Government servant next below his has been so promoted. This rule ensures to the officer within his regular line or serving on deputation in an other department that he shall be resorted to the position he would have occupied in his parent department had he not been so deputed. Though the language in which the provisions of Note 4 are couched is rather ambiguous, yet it clearly emerges therefrom that it is directed to protect the interests of an officer who though entitled to officiating promotion cannot in fact avail of the opportunity due to his being, what the rule states as out of the "regular line" or outside the ordinary line of service. The provisions of Note 4 further provide that the proper course should be to make arrangements to enable those officers, who are out of the regular line or on deputation to other departments, to be released from such special posts in order not to deprive them of the chances of officiating promotions which may accrue to them for a substantial period. Thus a requirement is cast on the Government to arrange to recall an officer to whom a chance of officiating promotion is likely to accrue. However, it is provided that where in public interest or other exigencies of service an officer cannot be recalled then in such a case he would be entitled to be compensated by the parent department with the pay of the Higher paid post. In substance, therefore, the provisions of Note 4 imply that either the Government recalls an officer eligible for officiating promotion back to the regular line or failing that, provision is made for compensating such an officer if he is not, or cannot be so recalled." 8. In substance, therefore, the provisions of Note 4 imply that either the Government recalls an officer eligible for officiating promotion back to the regular line or failing that, provision is made for compensating such an officer if he is not, or cannot be so recalled." 8. In the case of K.B. Rajoria (supra), the Supreme Court considered and interpreted the term "notional promotion". One Krishnamoorti had been given notional promotion w.e.f. 22.2.1995 by order dated 10.6.1998. For promotion to the post of Director Gen eral (Works), the requirement under the Rules was by promotion from amongst, inter alia, Additional Director General (Works) with two years regular service in the grade. Krishnamoorti was considered for promotion. K.B. Rajoria filed an application before the CAT claiming that he was also eligible to be considered for the post. He claimed that if the DPC had been held in 1995-96, he could have been appointed to the post of Addi tional Director General which had fallen vacant on 1.5.1995. Therefore, he should have been given notional promotion w.e.f. 1.5.1995. He would then have been eligible for promotion to the post of Director General. The Tribunal dismissed Rajorias application which he challenged in the High Court. The High Court held that neither Rajoria nor Krishnamoorti were eligible on the cut off date i.e. 1.7.1997 for promotion on the post of Director General. According to the High Court, the word "regular service" in the Rules means actual service and that fiction of notional promotion would not amount to two years experience necessary under the Rules. The High Court was of the view that notional seniority granted to Krishnamoorti by order dated 10.6.1998 was no substitute for the requirement of two years regular service as Additional Director General (Works). The Supreme Court observed that the High Court had overlooked the conces sion made by Rajoria before the Tribunal that he was not challenging the eligibility of Krishnamoorti. Consequently, it was held that the High Court erred in not dismissing the writ petition on the ground of lack of locus standi in Rajoria. It was further held that the High court erred in construing the words "regular service in the grade" as "actual physical service". If that was so, then ad hoc appointee who actually served on the post would also claim to be qualified to be considered for the post of Director General (Works). It was further held that the High court erred in construing the words "regular service in the grade" as "actual physical service". If that was so, then ad hoc appointee who actually served on the post would also claim to be qualified to be considered for the post of Director General (Works). The High Court itself held that adhoc service rendered by any of the parties would not count towards eligibility. The observations made by the Supreme Court in paragraphs 10 to 14 which are relevant to the present case, may be reproduced as un der . 10. Third, the High Court erred in construing the words "regular service in the grade" as actual physical service. If that were so, then ad hoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General. The High Court itself held that "ad hoc service rendered by any of the parties would not count towards eligibility." 11. Finally, while considering the definition of the word "regular" in the Conscise Oxford Dictionary, Ninth Edition, the High Court noted that it meant: "(1) conforming to a rule or principle,systematic; (2) harmonious, symmetrical; (3) acting or done or recurring uniformly or calculably in time or manner, habitual, constant, orderly; (4) conforming to a standard of etiquette or procedure, correct, according to convention; (5) properly constituted or qualified, not defective or amateur, pursuing an occupation as ones main pursuit." 12. The word "regular" therefore does not mean "actual" and the first question the High Court should have considered was whether the appointee of Krishnamoorti was regular and in accordance with the Rules or was it irregular in the sense that it was contrary to any principle of law? 13. The decision which in somewhat apposite is the case of K. Madhavan V/s. Union of India, where the eligibility requirement was eight years in the grade "on a regular basis". In that Case it was held: "In our view, therefore, the expression on a regular basis would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis." 14. It is nobodys case that the notional promotion granted to Krishnamoorti was "irregular". In that Case it was held: "In our view, therefore, the expression on a regular basis would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis." 14. It is nobodys case that the notional promotion granted to Krishnamoorti was "irregular". By giving him notional promotion as Additional Director General with effect from 22.2.1995, Krishnamoorti was in fact regularly appointed to the post on that date." 9. The observations reproduced above of the Division Bench in the cases of R.L. Ag garwal (supra) and of the Supreme Court in the case of Rajoria (supra) would show that the proforma service of the petitioner from March, 1980 has to be counted for all serv ice benefits, including promotion, selection grade and retiral benefits. 10. We are further of the opinion that having given the benefit of empanelment to the petitioner w.e.f. 1980, the same cannot be taken away by holding that the same pe riod would not be counted as service for the purposes of promotion and selection grade. Since the petitioner has been given deemed promotion and it within the ambit of the rules, it cannot be termed to be fortuitous service. In other words, it would even fall un der the instructions contained in Letter No. E(GP)75/l/58 dated 27.2.78 as being non-for tuitous service. The petitioner was entitled to relief in equity. Therefore, the benefit of deeming clause cannot be permitted to be defeated by technicality of any rule or instructions. Had the petitioner been promoted immediately on his return, he would have even completed three years actual service on Class II post and would have been entitled to the selection grade. We are of the considered opinion that the judgments relied upon by Mr. Jindal do not support the submissions made by the learned counsel. In the. case of Rudra Kumar Sain (supra), the Supreme Court was interpreting Delhi Higher Judicial Service Rules, 1970 as amended from time to time. The judgment notices that the terms "ad hoc", "stopgap" and "fortuitous" are in frequent use in service jurisprudence. The meaning to be assigned to these terms while interpreting provisions of Service Rule will depend on the provisions of that rule and the extent in and the purpose for which the ex pressions are used. It is not possible to lay down any straight jacket formula. The meaning to be assigned to these terms while interpreting provisions of Service Rule will depend on the provisions of that rule and the extent in and the purpose for which the ex pressions are used. It is not possible to lay down any straight jacket formula. In the case of S.N. Dhingra (supra), again it has been held that whether any appointment fortuitous or stopgap had to be decided in the facts and circumstances of the case and no universal principal can be laid down. In the present case, the respondents themselves have held the petitioner entitled to empanelment from 19.3.1980. Therefore, there can be no justi fication in denying the consequential relief to him. 11. For the reasons stated above, we allow this writ petition, quash the observations made in the order dated 6.2.2001 (Annexure P-4) passed by the Central Administrative Tribunal with regard to the non-grant of proforma promotion in the selection grade to the petitioner. A direction is issued to the respondents to release the proforma promo tion, if not already released, together with all consequential benefits and the selection grade from the dates the same were given to persons junior to the petitioner. Since the petitioner has already retired, the respondents are directed to re-compute the retiral benefits. The consequential relief be granted to the petitioner within a period of three months of the receipt of a certified copy of this copy.