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2008 DIGILAW 1536 (PNJ)

Union Of India v. Milap Chand

2008-09-08

JORA SINGH, M.M.KUMAR

body2008
Judgment M.M.Kumar, J. 1. The Union of India has challenged order dated 11.12.2007 (P- 3), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, the Tribunal), setting aside order dated 15.9.2005 (A-1) to the extent that the name of the applicant-respondent No. 1 has not been included for grant of benefit of special grade, which has been given to persons junior to him. The Tribunal has also issued directions to consider the case of the applicant-respondent No. 1 for grant of special grade of Rs. 5000-8000 with effect from the date persons junior have been granted and pay to the applicant-respondent No. 1 all consequential benefits. 2. Brief facts of the case are that the applicant-respondent No. 1 was appointed as driver in the office of the petitioners. On the basis of his seniority, he was placed in the pay scale of Rs. 1320-2040 with effect from 1.8.1993 when three grade structure was introduced by the Department of Personnel and Training in the ratio of 55:25:20. On 25.9.1995, orders were passed after working out the cadre strength of drivers in the office of the Registrar General of India, where the applicant-respondent No. 1 was working (A-6). A new Assured Career Progression Scheme (for brevity, ACP) came into force on 9.8.1999 on the recommendation of the 5th Central Pay Commission to remove stagnation in respect of those employees who could not get regular promotion (A-8). The applicant-respondent No. 1 was already granted one promotion by giving him the pay scale of Driver Grade-I under the three grade structure on 1.8.1993. He was granted benefit of second ACP on completion of 24 years of service as on 9.8.1999, vide order dated 13.12.1999 (A-9). 3. Another policy was introduced on 9.12.2003 and a category of Special Grade A Car Driver was carved out in the pay scale of Rs. 5000-8000 with effect from 8.11.1996 (A-12). It is undisputed that 5% of the posts were placed in the said grade, which was to be released on the basis of non-selection and seniority-cum- fitness. The applicant-respondent No. 1 was denied the benefit whereas the same benefit was given to his juniors. The applicant-respondent No. 1 accordingly brought this fact to the knowledge of the petitioners. 4. The petitioners passed an order on 2.6.2004 withdrawing the benefit of ACP given to the applicant-respondent No. 1 and also sought to recover a sum of Rs. The applicant-respondent No. 1 was denied the benefit whereas the same benefit was given to his juniors. The applicant-respondent No. 1 accordingly brought this fact to the knowledge of the petitioners. 4. The petitioners passed an order on 2.6.2004 withdrawing the benefit of ACP given to the applicant-respondent No. 1 and also sought to recover a sum of Rs. 22,725/- from him. The basic reason for passing the aforementioned order was that drivers are governed by separate promotion scheme where a special category of Grade A driver has been carved out in the pay scale of Rs. 5000-8000. On the representation made by the applicant-respondent No. 1, he was informed that he would be considered for promotion in the category Special Grade A Car Driver as per his seniority. Order dated 15.9.2005 (A-l) has ignored the applicant-respondent No. 1 for placing him in the category of Special Grade A Car Driver although persons junior to him have been granted the benefit. The applicant-respondent No. 1 challenged order dated 15.9.2005 in so far as it ignores him for promotion in the category of Special Grade A Car Driver. He also claimed the refund of Rs. 22,725/- along with interest which has been recovered from him on withdrawal of ACP. It is appropriate to mention that the applicant-respondent No. 1 has retired during the pendency of the Original Application before the Tribunal. The principal plank of his challenge before the Tribunal was that according to rules applicable, seniority-cum-fitness was the sole criterion and since he was at Sr. No. 2 in the seniority list, he could not have been denied. With regard to withdrawal of benefit concerning ACP, the applicant- respondent No. 1 has based his claim alleging that the principles of natural justice were violated, inasmuch as, no prior notice was issued to him when the order of recovery was passed. On the basis of total number of posts, only two persons could have been granted the benefit of Special Grade A Car Driver. 5. The petitioners had taken the stand before the Tribunal that the applicant- respondent No. 1 was granted Grade-I with effect from 1.8.1993 in the pay scale of Rs. 4500-7000. They claimed that the applicant-respondent No. 1 had already availed two promotions and, therefore, it was found that he was wrongly upgraded in the pay scale of Rs. 5. The petitioners had taken the stand before the Tribunal that the applicant- respondent No. 1 was granted Grade-I with effect from 1.8.1993 in the pay scale of Rs. 4500-7000. They claimed that the applicant-respondent No. 1 had already availed two promotions and, therefore, it was found that he was wrongly upgraded in the pay scale of Rs. 5000-8000 under the ACP Scheme on the basis of clarification (R-3). It was further asserted that where Staff Car Driver Scheme with four tier is applicable then ACP Scheme was not to apply. They set up the plea that any erroneous order could be withdrawn even without assigning any reason. The reason for not granting him higher grade in the category of Special Grade A Car Driver is that Departmental Promotion Committee did not adjudge the applicant-respondent No. 1 fit for promotion because his service/record was not up to the mark and his ACRs were of average grading. It is in these circumstances, person junior to him, namely, Shri Subhag Ram, who was at Sr. No. 7 in the seniority list, was given the benefit. 6. The Tribunal upheld the order granting second ACP to the applicant- respondent No. 1 because such an order was legal. However, on the other issue that he was entitled to be placed in the category of Special Grade A Car Driver in the pay scale of Rs. 5000-8000, the claim made by the petitioner was accepted for the reason that he was senior to Shri Subhag Ram. The plea of the petitioner that he was not found fit because of his average ACRs was not accepted because grant of special grade was on non-selection basis and the seniority-cum-fitness with three years regular service in Grade-I of Staff Car Drivers was the criterion. 7. We have heard learned counsel for the parties and has closely examined order dated 11.12.2007 (P-3) passed by the Tribunal. It remains undisputed that vide order dated 16.2.2004 the cadre of the Staff Car Drivers in the office of petitioner No. 2 as well as the Director of Census Operations- respondent No. 3 has been restructured with effect from 8.11.1996, which has been explained by the following table: SI. No. Grade Pay Scale No. of Posts 1. Ordinary Grade Rs. 3,050 - 4,590 12 2. Grade-ll Rs. 4,000 - 6,000 12 3. Grade-I- Rs. 4,500 - 7,000 1 4. Special Grade Rs. No. Grade Pay Scale No. of Posts 1. Ordinary Grade Rs. 3,050 - 4,590 12 2. Grade-ll Rs. 4,000 - 6,000 12 3. Grade-I- Rs. 4,500 - 7,000 1 4. Special Grade Rs. 5,000 - 8,000 2 " Apart from the aforementioned restructuring the circular also envisaged promotion to special grade, which is stipulated as follows : Promotion to the Special Grade shall be on non-selection basis (seniority- cum-fitness) from Grade-I with three years regular service in the Grade-I of Staff Car Drivers. The promotions to the different grades as above would be made with effect from 08.11.1996 to the extent of shortfall in the relevant grade(s). Arrears of pay and allowances would also be allowed with effect from 08.11.1996. If there is excess regular promotion already made in any grade as compared tc the above, such promotion shall be allowed to the excess incumbents on personal basis from the date of their initial promotion to that grade till they are covered within the revised ratio prescribed above but the period of such promotion on personal basis shall not count towards the eligibility service for further promotion. This issues with the concurrence of IFD (Home) vide their Dy. No. 3420/ FA(ll)/2004 dated 6.02.2004." (Italics for emphasis) A perusal of the aforementioned provision in the circular would show that the category of Special Grade Driver in the pay scale of Rs. 5000-8000 has been carved out by giving promotion on non-selection basis and on the principle of seniority-cum- fitness from Grade-I with three years regular service as Staff Card Driver. It is well settled that when the principle of seniority-cum-merit is the criterion on non-selection basis then the applicant-respondent No. 1 could not be denied the benefit of grant of higher pay scale on the ground that he was unfit to discharge duties of the promotional post. Honble the Supreme Court in the case of State of Mysore vs. Syed Mahmood, aIR 1968 SC 1113, has considered the principle of seniority-cum-merit and observed that such a criterion lays greater emphasis on seniority. It was observed that Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957, required promotion to be given by selection on the basis of seniority subject to fitness of a candidate to discharge duties on the post from amongst persons eligible for promotion. It was observed that Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957, required promotion to be given by selection on the basis of seniority subject to fitness of a candidate to discharge duties on the post from amongst persons eligible for promotion. Honble the Supreme Court also held that when such a criterion is to apply then an officer cannot claim promotion as a matter of right by virtue of his seniority alone and in case he is found unfit for discharging duties of the higher post, he may be passed over and person junior to him may be promoted. In other words, the senior although is less meritorious shall have priority provided he fulfilled the minimum necessary merit requisite of the efficiency of the administration. The aforementioned view has again been reiterated in the case of Bhagwandas Tiwari vs. Dewas Shajapur Kshetriya Gramin Bank, 2006(12) SCC 574. In para 18, the following observations have been made: "18. The principles of seniority-cum-merit and merit-cum-seniority are conceptually difference. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. In State of Mysore vs. Syed Mohmood, AIR 1968 SC 1113, it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, that the rule required promotion to be made by selection on the basis of "seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion" (AIR p. 1114, para 2). It was pointed out that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. But these are not the only modes for deciding whether promotion is to be granted or not." When the principles laid down in the aforementioned judgments of Honble the Supreme Court are applied to the facts of the present case, a further distinguishing feature come to the surface. But these are not the only modes for deciding whether promotion is to be granted or not." When the principles laid down in the aforementioned judgments of Honble the Supreme Court are applied to the facts of the present case, a further distinguishing feature come to the surface. Firstly, the language of the circular, which has already been extracted in the preceding para, would show that promotion to the special selection grade is to be on non-selection basis apart from the principle of seniority-cum-fitness. Secondly, the nature of the duties performed by the applicant-respondent No. 1 are not to undergo any qualitative change. Thirdly, the applicant-respondent No. 1 was given ACP grade in the scale of Rs. 5000-8000, which was withdrawn so as to consider his case under the restructured grades of Staff Car Drivers. There is then no qualitative change in the performance of duty of the applicant- respondent No. 1. Therefore, the principles laid down either in Syed Mohmoods case (supra) or in Bhagwandas Tiwaris case (supra) would apply with further relaxation to the facts of the present case. It is not disputed that the applicant-respondent No. 1 has not earned any adverse entry nor it has been found that his performance of duty was of bad quality. He might have earned few average reports, which would not lead to a conclusion that he is a bad driver and unfit to perform his duties. For the DPC to say that his service record was not up to the mark does not lead us anywhere. Moreover, the petitioners have not produced his service record to highlight any defect in his ACRs. Therefore, we find that the view taken by the Tribunal does not suffer from any legal infirmity warranting interference of this Court. The writ petition does not merit admission and the same is accordingly dismissed.