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2015 DIGILAW 816 (RAJ)

UNION OF INDIA v. PRAKASH CHAND TIWARI

2015-04-10

MOHAMMAD RAFIQ, PRAKASH GUPTA

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ORDER : MOHAMMAD RAFIQ, J. 1. All these writ petitions have been filed by the petitioners, Union of India through its Secretary to the Government of India, Department of Posts, Ministry of Communication and Information Technology, New Delhi, Chief Post Master General, Rajasthan Circle, Jaipur; Superintendent of Post Offices, Bharatpur Postal Division, Bharatpur and Assistant Superintendent of Post Offices, Bharatpur Sub Division, Bharatpur challenging the order dated 18.04.2011 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as ‘the Tribunal’) whereby Original Applications filed by the respondents-applicants have been disposed of in their favour. The respondents-applicants approached the Tribunal by filing Original Applications inter alia with the prayer that the petitioners-non-applicants be directed not to reduce their allowances and they be allowed to draw allowance with yearly increment as being drawn by them. 2. Since the question of law involved in all these writ petitions and the facts of the case are identical and the petitioners have challenged common order passed by the Tribunal, therefore, all these writ petitions are being decided by this common order and for convenience, facts of D.B. Civil Writ Petition No. 2525/2012(Union of India & Others Vs. Prakash Chand Tiwari) are being taken as leading case. 3. Facts of the case are that the respondent-applicant was appointed on the post of Extra Departmental Mail Carrier and thereafter posted as Extra Departmental Stamp Vender vide memo dated 03.01.1986. That post was later on re-designated as Gramin Dak Sevak, Bharatpur City Post Office. In the year 1998, the petitioners-department re-fixed the allowances in the name of Time Related Continuity Allowance(for short ‘TRCA’) for different categories and the respondent-applicant was allowed scale of Rs. 1740-30-2640 and continued to draw the same up to September, 2004 at the stage of Rs. 1890/- with yearly increase of Rs. 30/-. It was at that stage that the post of Gramin Dak Sevak Vender, Bharatpur City Post Office, Bharatpur, where the respondent-applicant was posted was declared surplus vide memo dated 28.09.2014 issued by Petitioner No. 3, Superintendent of Post Offices, Bharatpur Postal Division, Bharatpur. Petitioner No. 4, Assistant Superintendent of Post Offices, Bharatpur Sub Division, Bharatpur issued the consequential order for posting of the respondent-applicant as Gramin Dak Sevak Mail Carrier Sewar Sub Post Office vide memo dated 27.09.2004. At that time the respondent-applicant was drawing pay of Rs. Petitioner No. 4, Assistant Superintendent of Post Offices, Bharatpur Sub Division, Bharatpur issued the consequential order for posting of the respondent-applicant as Gramin Dak Sevak Mail Carrier Sewar Sub Post Office vide memo dated 27.09.2004. At that time the respondent-applicant was drawing pay of Rs. 1890/- plus D.A. The respondent-applicant, on being declared surplus, joined at new place of posting on 27.09.2004, but from the earlier post being surplus he was relieved on 25.09.2004 and the petitioners-non-applicants not allowed pay and allowances for 26.09.2004 being Sunday. When it came to the knowledge of the respondent-applicant that his post is going to be declared surplus, he immediately made request on 31.08.2014 to adjust him against vacant post of Gramin Dak Sevak Mail Carrier Sewar Post Office. Petitioner No. 2, Chief Post Master General, Rajasthan Circle, Jaipur conveyed approval for absorption of the respondent vide memo dated 17.09.2004. The respondent-applicant continuously worked at Bharatpur City Post Office since 1986 to 25.09.2004, but he was not allowed to join further post immediately. However, he joined the new post on 27.09.2004 and remained out of job for one day, i.e. 26.09.2004 being Sunday. On joining, the respondent-applicant was allowed Rs. 1545/- plus admissible D.A. in the scale of Rs. 1525-25-2020 by reducing annual increase for six years at the rate of Rs. 30/- since 1998 to 2004. 4. The respondent-applicant submitted written application through proper channel pointing out that presently post of EDMC was vacant in Sewar Post Office and, therefore, in the event of his being declared surplus, he should be adjusted against that post and that he will not in future demand his posting on the post carrying same pay scale(as that of the post held by him prior to his being declared surplus). The petitioners ordered his posting vide memo dated 27.09.2004 at Sewar Post Office, in which there was no mention that the posting was being made on respondent’s request. Petitioner No. 2, Chief Post Master General, Rajasthan Circle, Jaipur, however, mentioned in memo dated 17.09.2004, while conveying approval for absorption of the respondent-applicant that the same was on his request. Allowance paid to the respondent-applicant, while he was posted at Bharatpur City Post Office up to 25.09.2004, was discontinued by the petitioner-department. Petitioner No. 2, Chief Post Master General, Rajasthan Circle, Jaipur, however, mentioned in memo dated 17.09.2004, while conveying approval for absorption of the respondent-applicant that the same was on his request. Allowance paid to the respondent-applicant, while he was posted at Bharatpur City Post Office up to 25.09.2004, was discontinued by the petitioner-department. The department considered the matter regarding fixing the allowance of the respondent-applicant on redeployment and Petitioner No. 1 issued letter dated 11.10.2004 for protection of allowance in such like cases. When the allowance protection was not allowed along with pay and allowance of one day, i.e. 26.09.2004(Sunday) by treating the respondent-applicant as fresh appointee, he approached the Tribunal by filing Original Application No. 113/2005. The Tribunal disposed of the Original Application filed by the respondent-applicant vide order dated 18.02.2008 with direction to the petitioners to treat the O.A. as representation and decide the claim of the respondent-applicant in the light of instructions dated 11.10.2004. Petitioner No. 3, being competent authority, examined the matter as per directions of the Tribunal and rejected the claim of the respondent-applicant on the ground that the respondent made request, therefore, protection cannot be granted in the light of instructions dated 11.10.2004 and also denied one day pay and allowance. In these circumstances, the respondent-applicant again approached the Tribunal by filing present Original Application. 5. The petitioners filed reply to Original Application before the Tribunal contending that in compliance of order dated 18.02.2008 passed by the Tribunal in earlier Original Application of the respondent-applicant, the petitioners treated the same as representation and decided it in accordance with instructions contained in order dated 11.10.2004. The respondent-applicant himself made request to post him against the vacant post of GDSMC Sewar which is near to his native place and declared that he will not claim the pay and allowances of the equal post of GDS Stamp Vender on redeployment on the post of GDSMC Sewar. The request of the respondent-applicant was considered by the competent authority and accordingly, the respondent-applicant was redeployed against the vacant post of GDSMC Sewar on his own specific request. As per para 3(iii) of letter dated 11.10.2004, protection of TRCA is not extended to those surplus GDS, who are redeployed on their own request. 6. The request of the respondent-applicant was considered by the competent authority and accordingly, the respondent-applicant was redeployed against the vacant post of GDSMC Sewar on his own specific request. As per para 3(iii) of letter dated 11.10.2004, protection of TRCA is not extended to those surplus GDS, who are redeployed on their own request. 6. The Tribunal after hearing learned counsel for the parties disposed of Original Application relying upon decision rendered by Full Bench of the Tribunal at Ernakulam in the case of R.P. Hrishikeshan Nair & Ors. Vs. Union of India & Ors., 2009(2) SLJ (CAT) 281 wherein it was held that provisions of F.R. 22(I)(a)(i) or (ii) are not applicable, therefore, prayer of the applicants therein to fix their pay thereunder was not accepted. However, it was declared that the TRCA drawn shall be protected and the same fixed in the TRCA applicable to the transferred post and if there is no such stage, the TRCA shall be fixed at the stage below the TRCA drawn, the balance being treated as personal allowance to be adjusted in future annual increase. The Tribunal disposed the Original Application vide order dated 18.04.2011 reiterating the same directions in the case of the respondent-applicant. 7. Mr. B.S. Chhaba, learned Assistant Solicitor General appearing on behalf of the petitioners assailing the decision of the Tribunal has argued that the Tribunal failed to appreciate that it was not the case of transfer, but it was case of redeployment of the incumbent on account of the post being rendered surplus due to abolition of the post. Reference has been made to Para 3(iii) of the letter dated 11.10.2004 to argue that it is clearly mentioned therein that in the case of redeployment of staff, the stage should be protected as indicated in para 3(ii) of said letter. However, protection of TRCA is not extended to those surplus GDS, who were redeployed on their own specific request. TRCA of such GDS may be fixed at the minimum of first or second TRCA corresponding to the actual workload. Since the respondent-applicant was drawing Rs. 1890/- + admissible DA on the post of GDS Stamp Vender in the scale of Rs. TRCA of such GDS may be fixed at the minimum of first or second TRCA corresponding to the actual workload. Since the respondent-applicant was drawing Rs. 1890/- + admissible DA on the post of GDS Stamp Vender in the scale of Rs. 1740-30-2640 and the post of GDS Stamp Vender Bharatpur City rendered surplus w.e.f. 27.07.2004, he was placed in the waiting list of surplus candidates as per GD Post New Delhi letter No. 295-4/53 dated 08.08.1953 and 43-24/64 Pen dated 12.04.1965 because there was no such post equal to GDS Stamp Vender. But in the meantime, the respondent-applicant himself requested to post him as GDSMC Sewar lying vacant at the place nearby his native place, which was considered and his allowance was protected as per Directorate letter dated 11.10.2004 at the minimum of second TRCA of GDSMC w.e.f. 27.09.2007 on the post of GDSMC Sewar according to actual work load. This was done because the respondent-applicant was posted against the vacant post of GDSMC Sewar on his own specific request and, therefore, he was not entitled to protection of his allowance paid to him up to 25.09.2001. 8. Learned counsel for the respondents has opposed the writ petitions and supported the order passed by the Tribunal. He has contended that request of the respondent-applicant cannot be taken as request for posting him elsewhere. The respondent-applicant merely pointed out vacant post at Sewar, where he could be accommodated whenever he was declared surplus. This request was made in advance even prior to his being declared surplus. Learned counsel for the respondents-applicants has contended that decision rendered by Full Bench of the Tribunal at Ernakulam squarely applies to the fact situation. Similar question was involved in the case of the respondents, which has rightly been decided by the Tribunal and, therefore, writ petitions deserve to be dismissed. 9. Perusal of decision of the Full Bench of the Tribunal at Ernakulam in R.P. Hrishikeshan Nair & Ors.(supra) indicates that following two questions were referred for determination: “(i) When a Gramin Dak Sevak drawing pay in a higher TRCA is transferred from one Post Office to another within the same recruiting unit or outside the recruiting unit with or without his request to a post with lower TRCA, whether he is entitled to protection of last pay drawn by him in the higher TRCA or not? (ii) When a Gramin Dak Sevak is working against a post with higher TRCA is transferred on his request or otherwise to a post carrying lower TRCA within the same recruiting unit or outside, is entitled to fixation of his TRCA in terms of FR 22 (1)(a)(i) or FR 22(1)(a)2 or not?” The Full Bench of the Tribunal considered all the rules and instructions, especially letter of DG, Posts dated 12.09.1988; letter of Department of Posts dated 17.07.2006 and letter of Department of Posts dated 11.10.2004. The Full Bench of the Tribunal also referred to decisions of different Benches of the Tribunal rendered in the past and finally held in Para 49 and 51 of the decision as under: “49. Now, the entire situation would be summarised and references duly answered as under: (a) As per the rules themselves, in so far as transfer within recruitment unit and in the same post with identical TRCA, there shall be no depletion in the quantum of TRCA drawn by the transferred individual. (b) In so far as transfer from one post to the same Post with Diff. TRCA and within the Same Recruitment Unit, administrative instructions provide for protection of the same vide order dated 11th October, 2004, subject only to the maximum of the TRCA in the transferred unit(i.e. maximum in the lower TRCA). (c) In so far as transfer from one post to a Different Post but within same TRCA and within the same Recruitment Unit, as in the case of (a) above, protection of TRCA is admissible. (d) In respect of transfer from one post to another within the same recruitment unit but with different TRCA (i.e. From higher to lower), pay protection on the same lines as in respect of (b) above would be available. (e) In so far as transfer from a post carrying lower TRCA to the same category or another category, but carrying higher TRCA, the very transfer itself is not permissible as held by the High Court in the case of Senior Superintendent of Post Offices v. Raji Mol, 2004 (1) KLT 183 . Such induction should be as a fresh recruitment. Such induction should be as a fresh recruitment. For, in so far as appointment to the post of GDS is concerned, the practice is that it is a sort of local recruitment with certain conditions of being in a position to arrange for some accommodation to run the office and with certain income from other sources and if an individual from one recruitment unit to another is shifted his move would result in a vacancy in his parent Recruitment Unit and the beneficiary of that vacancy would be only a local person of that area and not any one who is in the other recruitment unit. Thus, when one individual seeks transfer from one post to another (in the same category or other category) from one Recruitment Unit to another, he has to compete with others who apply for the same and in case of selection, he shall have to be treated as a fresh hand and the price he pays for the same would be to lose protection of his TRCA. 51. The reliefs sought by the applicants in various O.As. are to be considered and the same are as under: (a) O.A. No. 270/2006 (i) To declare that the applicant is entitled to have his pay fixed as per FR 22(I)(a)(1) on appointment as EDBPM and to direct the respondents to fix the pay of the applicant at Rs. 1880/- in the TRCA of Rs. 1600-40-2400 with effect from 16.3.2000 and to pay him the difference of pay and allowances drawn by him with interest at the rate of 18% per annum, or in the alternative. (ii) To declare that the applicant is entitled to his pay fixed as per FR 22 (I)(a)((2) on appointment as EDBPM and to direct the respondents to fix the pay at Rs. 1800/- in the scale Rs. 1600-40-2400 with effect from 16.3.2000 and to pay him the difference of pay and allowances drawn by him with interest at the rate of 18% per annum. (b) O.A. No. 349/2007 (i) to declare that the applicant is entitled to have his pay fixed as per FR 22(I)(a)(1) on appointment as EDBPM and to direct the respondents to fix the pay of the applicant at Rs. 1880/- in the TRCA of Rs. (b) O.A. No. 349/2007 (i) to declare that the applicant is entitled to have his pay fixed as per FR 22(I)(a)(1) on appointment as EDBPM and to direct the respondents to fix the pay of the applicant at Rs. 1880/- in the TRCA of Rs. 1600-40-2400 with effect from 5.8.1999 and to pay him the difference of pay and allowances drawn by him with interest at the rate of 18% per annum; (ii) Alternatively to declare that the applicant is entitled to his pay fixed as per FR 22 (I)(a)((2) on appointment as ADBPM and to direct the respondents to fix the pay at Rs. 1760/- in the scale Rs. 1600-40-2400 with effect from 5.8.1999 and to pay him the difference of pay and allowances drawn by him with interest at the rate of 18% per annum. (iii) To call for the records leading to the fixation of the pay of the applicant at Rs. 1600 in the TRCA 1600-40-2400 with effect from 5.8.1999 and quash the same to the extent it refuses protection of pay and fixation in accordance with the statutory rules. (c) O.A. No. 493/2007 (i) to quash Annexure A1 to the extent if refuses the pay of Rs. 2080 on the TRCA of 1640-20-2400 to the applicant. (ii) to direct the respondents to protect the pay and TRCA of the applicant on transfer to the post of GDSBPM Attachackal, and to fix his basic pay at Rs. 2080/- in the TRCA 1600-2400 with all consequential benefits including arrears of pay with interest @ 18% from the date on which the amount fell due till date of payment. (d) O.A. No. 594/2006 (i) to declare that on transfer of the applicant as GDS MD, Olat BO, he is entitled to get TRCA in the scale of Rs. 1740-30-2640 at the stage he was drawing as GDS MD, Kanakapally immediately before his transfer and that the action of the 1st respondent in reducing the TRCA of the applicant to initial start of the scale on his transfer as GDS MD, Olat, is illegal, arbitrary, unauthorized and violative of Articles 14, 16, 23 and 300-A of the Constitution of India; (ii) to call the records leading to Annexure A-11 and to set aside the same; (iii) to direct the 1st respondent to restore the TRCA of the applicant in the scale of pay Rs. 1740-30-2640 with effect from 21.8.2003 with annual progression by granting annual increments; (iv) to direct the 1st respondent to pay the applicant the arrears of TRCA becoming payable on restoration of the TRCA with annual progression for the period from 22.8.2003 till the date of restoration with annual increments with interest. 51. As provisions of F.R. 22(I)(a)(i) or (ii) are not applicable, prayer for declaration to the effect that the applicant is entitled to have his pay fixed as per F.R. 22(I)(a)(i) or (ii) is rejected. However, it is declared that the TRCA drawn shall be protected and the same fixed in the TRCA applicable to the transferred post and if there is no such stage, the TRCA shall be fixed at the stage below the TRCA drawn, the balance being treated as personal allowance, to be adjusted in future annual increase.” 10. Order passed by the Tribunal cannot be faulted with because subsequent to Department of Posts letter dated 11.10.2004, another letter was issued by the Department of Post on 17.07.2006, in Clause 2 whereof it was stated that in terms of amendment to Rule 3 of GDS(Conduct and Employment) Rules, 2001, a GDS is not eligible for transfer in any case from one post/unit to another post/unit except in public interest. What constituted “Public interest” were interpreted differently by different Circles. In order to have a uniform criteria, five guidelines were laid down to say that GDS transferred from a post/unit to another under the existing provision of amended Rule 3 of GDS(Conduct and Employment) Rules, 2001 can be allowed limited transfer facility and first of which is that a GDS, who is posted at a distant place on redeployment in the event of abolition of the post. Merely because the respondent-applicant indicated/pointed out to the department-petitioner vacant seat nearby his native place, it would not be taken as transfer on his request because he had to be, in any case, given a posting as per own policy of the department, which has happened on account of respondent-applicant being declared surplus. 11. Merely because the respondent-applicant indicated/pointed out to the department-petitioner vacant seat nearby his native place, it would not be taken as transfer on his request because he had to be, in any case, given a posting as per own policy of the department, which has happened on account of respondent-applicant being declared surplus. 11. In view of above discussion, the Tribunal cannot be held to have committed any error of law inasmuch as its order does not suffer from any error apparent on the face of the record, so as to justify interference by this Court in the scope of its writ jurisdiction under Article 226/227 of the Constitution of India. There is no merit in these writ petitions and the same are accordingly dismissed. 12. Stay applications also stand dismissed. 13. Office is directed to place a copy of this order on record of each writ petition.