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2008 DIGILAW 521 (ORI)

D. C. Mishra v. Union of India

2008-07-11

B.P.DAS, R.N.BISWAL

body2008
JUDGMENT B. P. DAS, J. — In this writ petition, the petitioners challenge the order dated 03.01.2005 as well as the subsequent order dated 11.01.2005 passed by the Central Administrative Tribunal, Cuttack, Bench, Cuttack, in O.A. No.329 of 2000. 2. The brief fact as narrated in this writ petition is that :- The petitioners are the employees of the Postal Department in the office of the Chief Post-Master General, Orissa Circle, Bhubaneswar. The postal Department had two separate clerical cadres, viz., one in the post office and the other in the Circle Office. The post offices had Cadre of Postal Assistants and Sorting Assistants. The Circle offices had two separate Cadres, viz., Lower Division Clerk and Upper Division Clerk. The post of Upper Division Clerk was a promotional post prior to 1993 and was being filled up on promotion from among the Lower Division Clerk, Postal Assistants and Sorting Assistants. On 26.6.1993 the Cadres of Lower Division Clerk and Upper Division Clerk were merged into one Cadre of Postal Assistants, Circle Office. The Opposite party No.3 introduced a “Time Bound one Promotion Scheme (in short TBOP)” for officials working in the operative offices like post/R.M.S. Division. On 30.11.1983, as per the said scheme, the Sorting Assistants were to be given promotion to the next higher scale of pay of Rs.1400/- to Rs.2300/- after completion of 16 years of satisfactory service. In 1991 another promotion Scheme called “Biennial Cadre Review (in short ‘BCR’)” was introduced for the said staff. Under the said Scheme, Postal/Sorting Assist¬ants were to be given a higher scale from Rs.1400/- -Rs.2300/- to Rs. 1600/- - Rs. 2600 after completion of 26 years of satisfactory service. On 22.7.1993 Ministry of Communication vide Annexure-1 decided to extend the benefits of TBOP and BCR to the Clerks of Administra¬tive offices excluding isolated posts like Hindi Translator, Librarian etc., which was effective from 26.6.1993. Though the TBOP/BCR Schemes were introduced in the post offices in the year 1983, but the said Schemes were introduced in the Circle Office 10 years after on the condition that inter se seniority prior to the implementation of the Schemes shall not be disturbed in any manner. 3. According to the petitioners, opp.party No.4 while working as a Sorting Assistant in the RMS (N) Division, opted for his transfer to the Circle Office Cadre under Rule-38, Vol-IV. 3. According to the petitioners, opp.party No.4 while working as a Sorting Assistant in the RMS (N) Division, opted for his transfer to the Circle Office Cadre under Rule-38, Vol-IV. His prayer was allowed and he was promoted to Lower Division Clerks. At this point, the petitioners were working as Upper Division Clerk in the scale of Rs.1200/- to Rs.2040/- and the benefit of BCR scheme was extended to opp.party No.4 by order dated 26.6.1993 by virtue of his completing 26 years of service. By that way, opp.party No.4, who was initially junior to the petitioners, was placed in higher scale of pay than that of the petitioners. In order to iron out this anomaly, the modification was brought by the opp.parties in the said scheme on 8.2.1996 (Annexure-2) which reads as follows :- “The case has been examined in consultation with the Minis¬try of Finance, Deptt. of Expenditure. It has now been decided that all the officials such as UDCs in Circle Office and SBCO, LSG (both 1/3rd and 2/3rd) PO and RMS Accountants whose seniority was adversely affected by implementation of BCR scheme placing their juniors in the next higher scale of pay will now be consid¬ered for the next higher scale of pay from the date their immedi¬ate juniors became eligible for the next higher scale of pay. This will, however, not be applicable to the officials who are senior to those officials brought on transfer under Rule 38 P&T Manual Volume-IV and placed in the next higher scale of pay by virtue of length of service.” The aforesaid circular was again modified on 5.8.1997 to the following extent : “Officials would be entitled to allow promotion to TBOP/BCR on the analogy of Next Below Rule (in short ‘NBR’) with reference to their juniors, if the junior was brought to that Unit under Rule-38 P&T Manual, Volume-IV in a lower Grade and on the crucial date he was still working in the lower Grade”. 4. The aforesaid modification was further changed by fresh Circulars dated 1.1.1998 and 5.8.1997, under Annexures-3 and 4 respectively. As indicated in Annexure-4 a decision was taken that all the officials such as Upper Division Clerks in the Circle Office and SBCO, LSG (both 1/3rd) PO and RMS Accounts be considered for next higher scale of pay from the date their immediate juniors became eligible for the next higher scale. As indicated in Annexure-4 a decision was taken that all the officials such as Upper Division Clerks in the Circle Office and SBCO, LSG (both 1/3rd) PO and RMS Accounts be considered for next higher scale of pay from the date their immediate juniors became eligible for the next higher scale. It was further decided that the Upper Division Clerks who were working in Circle Offices and Regional Offices on or before 26.6.1993 would be entitled for fitment in the TBOP/BCR scale with reference to the date of promotion of Lower Division Clerk in the respective Grade, if the Lower Division Clerk had been brought on transfer under Rule-38 of Post & Telegraph Manual Vol-IV on or before 26.6.1993 and was still working as such on that date. The aforesaid Circular, as mentioned earlier, was imple¬mented through out the country and the benefits of the fitments in the scale of pay under the BCR Scheme dated 1.1.1998 were given. Employees of the Postal Department in the States of Oris¬sa, West Bengal, Delhi, Gujarat working as Upper Division Clerks were given the benefits of TBOP/BCR, i.e., advance scale of pay basing on the Circulars dated 8.2.1996 and 1.1.1998, in spite of the fact that they had not completed 16/26 years of service. Since the present petitioners were deprived of the said benefits, they filed an application before the Tribunal challenging the circular dated 17.5.2000 whereby all other earlier Circulars of 8.2.1996, 5.8.1997 and 1.1.1998 were superseded and a decision was taken that extension of benefits under TBOP/BCR schemes is not promo¬tion which depends only on length of service and it was further stated that cases already decided would not be re-opened and cases which had not been decided would be settled as per the instructions contained therein. The opp.parties before the Tribu¬nal took the stand that the petitioners were not entitled to the benefits of one time higher scale of pay under BCR scheme on the basis of Circular dated 17.5.2000 and their further stand was that the BCR Scheme is not a promotion, but simply placement at next higher scale of pay. Furthermore, the opp.parties took the stand that transfer of opp.party No.4 was irregular so also the benefit given to him. The matter was referred to the Full Bench of the Tribunal. Furthermore, the opp.parties took the stand that transfer of opp.party No.4 was irregular so also the benefit given to him. The matter was referred to the Full Bench of the Tribunal. It is worthwhile to mention here that during pendency of the application before the Tribunal, the decisions of the Central Administrative Tribunal, Bangalore Bench and Madras Bench were carried to the Apex Court. The Apex Court rendered the judgment, by the time the matter was taken up by the Full Bench of the C.A.T., in Union of India & others v. Leelamma Jacob & others in Civil Appeal No.10692 of 1995 on 10.9.2002. By the date the matter was pending before Full Bench of the Tribunal, the apex Court had already decided the case of Leelamma Jacob’s (Supra). The same was referred to by the Division Bench before the Full Bench of the Tribunal but the Full Bench relying on the decision of State of U.P. and other v. Synthetics and Chemicals Ltd., and another (1991) 4 SCC 139 held that the ratio decided in Leelamma Jacob’s case (supra) was not applicable to that case. 5. As noted above, relying upon the judgment dated 7.6.1994 passed by the Principal Bench of the C.A.T. in O.A. No.1713 of 1993 in Shri Rajendra Singh and others v. Union of India and others, and the decision in the case of Synthetics and Chemicals (supra) necessary points raised where answered in the following manner :- (a) The TBOP and BCR Schemes introduced by the Department of Posts are not promotion Schemes to the next higher posts. (b) The said Schemes are not in conflict with the norms based promotion to LSG and HSG-II as provided in the Recruitment Rules. They are supplementary to the Rules. (c) The principle of NBR will not be applicable in such Schemes. (d) The decisions in the case of Rajender Singh (supra) of the Principal Bench and in the case of P. Rana Singh (supra) and Niranjan Mahali (supra) do not lay down the correct law.” 6. Thereafter, the matter was placed before the Division Bench. The Division Bench arrived at the following conclusion : “Having heard the counsel for the parties at length and upon perusing the divergent views taken by some other Benches of this Tribunal, we by our order dated 20.9.2004 referred the following questions to the larger Bench. Thereafter, the matter was placed before the Division Bench. The Division Bench arrived at the following conclusion : “Having heard the counsel for the parties at length and upon perusing the divergent views taken by some other Benches of this Tribunal, we by our order dated 20.9.2004 referred the following questions to the larger Bench. (a) Whether TBOP and BCR Schemes introduced by the Department of Posts are promotion schemes; (b) Whether TBOP and BCR Schemes are in conflict with the Schemes of norms based promotion to LSG and HSG-II as provided under the Recruitment Rules for selection grade posts notified in the Gazettee of India on 30.9.1976 and are in effect supplemen¬tary to the schemes for promotion to norms based posts. (c) Whether the principle of NBR is applicable in the case of senior official, while placing the eligible junior official in the higher pay scale under TBOP and BCR Scheme; and (d) Whether the decision in Sh. Rajender Singh’s case (supra) of the Principal Bench and the decisions in P. Ranasingh’s case (supra), and in Niranjan Mahali’s case (supra) of Cuttack Bench in the matter of operation of the TBOP and BCR Schemes in the Department of Posts have set the law.” “Hon’ble Full Bench consisting Hon’ble Chairman Mr. Justice V.S. Agarwal, Hon’ble Vice-Chairman Mr. B.N. Som and Hon’ble Member Judicial Mr. M.R. Mohanty answered the questions as under : (a) The TBOP and BCR Schemes introduced by the Department of Posts are not promotion Schemes to the next higher posts. (b) The said Schemes are not in conflict with the norm based promotion to LSG and HSG-II as provided in the Recruitment Rules. They are supplementary to the Rules. (c) The Principle o NBR will not be applicable in such Schemes. (d) The decisions in the case of Rajender Singh (supra) of the Principal Bench and in the case of P. Ranasingh (supra) and Niranjan Mahali (supra) do not lay down the correct law.” In view of the above deliberation of the Hon’ble Full Bench, the Division Bench held that there is little left for consideration by the said Bench and ultimately dismissed the O.A. being devoid of merit. 7. 7. Crux of the matter is that whether the Tribunal, the larger bench or the division bench dealing with matter subsequently is correct in holding that the ratio decided in Leelamma Jacob’s case (supra) is not applicable to the facts and circumstances of the case. We feel that the Tribunal has entered into the arena, which they should not have. The Hon’ble Apex Court in Leelamma Jacob’s case (supra) held as follows : “The dispute was with regard to the respective inter se seniority of the beneficiaries under the scheme. We are on the other hand concerned with a challenge to the scheme and its effect on persons claiming seniority under the Rules. The deci¬sion in Santosh Kapoor of the Tribunal or of this Court upholding the decision of the Tribunal is therefore not material. Incidentally clarifications have been issued from time to time by the appellants in 1992 and in 1994 by which it appears to us that the appellants have compounded and confusion. The clari¬fications purport to state that the seniority of those who were in Grade-II by reason of their merit would be maintained in Grade-II although they would not be entitled to the scales of pay which their juniors were getting in Grade-III. It has also been ‘clarified’ that the promotion of such officials namely merit based Grade-II employees to Grade-IV that is in the pay scale of Rs.3200/- would be governed by their seniority quite over looking the fact that if the contesting respondents remained in Grade-II they would not be in a position to be considered for promotion to Grade IV at all.” “For the aforesaid reasons, we uphold the decision of the Central Administrative Tribunal (Bangalore Bench) as well as the decision of the Central Administrative Tribunal, Chennai impugned before us in these appeals and dismiss the appeals without any order as to costs. Needless to say with this decision all interim orders stand vacated. It is stated by learned counsel appearing on behalf of the appellants that in fact that decision of the Tribunal has already been implemented pending disposal of the appeals but subject to the outcome of the appeals. While recording this, we make it clear that the contesting respondents must be given the relief as granted by the Tribunal if not already granted within a period of eight weeks from today.” 8. While recording this, we make it clear that the contesting respondents must be given the relief as granted by the Tribunal if not already granted within a period of eight weeks from today.” 8. In view of the decision of the Apex Court in the afore¬said case, we have no hesitation to hold that the full Bench as well as the Division Bench proceeded in a wrong premise that the case was not covered by the decision of Leelamma Jacob & others (supra). The fact and circumstances and law as settled in the case of Leelamma Jacob & others (supra), is squarely applicable to the present case for which the writ application is allowed and the benefits under the aforesaid scheme be extended to the petitioners within a period of three months from the date of communication of this order. The writ petition is allowed. R.N. BISWAL, J. I agree. Petition allowed.