Dwijen
Chandra Sarkar & Ord. Vs. Union of India
& Anr [1998] INSC 611 (15 December 1998)
S. Saghir
Ahmed, & M. Jagannadha Rao., M. Jagannadha Rao.
ACT:
HEAD NOTE:
Two
appellants who are working in the posts and Telegraph Department filed this
appeal against the judgment of the Central Administrative Tribunal, Calcutta
Bench in O.A. No.355 of 1987 dated 16.02.1988. By that Judgment the Tribunal
dismissed the application filed by the appellants.
The
point in issue is whether for the purpose of computing 16 years service for
getting a "time-bound promotion". as per the relevant circular of the
Government dated 17.12.1983, the appellants are entitled to count the service
rendered by them in the Rehabilitation Department of the Government of India prior
to their transfer to the Department of Posts and Telegraph. The Tribunal has
held that the said service with former department cannot be counted and,
therefore, the appellants are not entitled to the time bound promotion unless
they complete 16 years in the transferee department, namely P & T
Department.
The
following are the facts:
The
appellants 1 and 2 were appointed as Lower Division Clerks in the Department of
Rehabilitation, Government of India on 18.11.1970 and 5.2.1965 respectively.
Subsequently,
on 7.12.76 the first appellant was transferred to the P & T Department in
public interest as Postal Assistant and the second appellant was also so
transferred on 13.12.1976 to the same department in public interest.
The
particular scheme which deals with time bound promotion is dated 17.12.1983 and
reads as follows:
"The
scheme will come into effect from 30.11.1983.
All
officials belonging to basic grades in Group 'C' and Group 'D' to which there
is direct recruitment either from outside and/or by means of limited competitive
examination from lower cadres, and who have completed 16 years of service in
that grade will be placed in the next higher grade. Officials belonging to
operative cadres listed in the Annexure 'A-1" to the agreement will be
covered under the scheme." From the aforesaid circular, it is clear that
the Scheme has come into force w.e.f 30.11.1983 and all officials belonging to
the basic grades in Group 'C' and 'D' to which there is direct recruitment
whether from out side and/or by means of limited completive examination from
lower cadres, will get time-bound promotion if they have completed 16 years
service in the grade. It is also clear from the same circular that Postal
Assistants in pay scale of Rs.260-480 will, w.e.f. 30.11.1983 be placed in the
scale of Rs. 625-640 if they have completed 16 years service in the grade of Rs.
260-480. The question, however, is whether the appellants can be considered to
be having 16 years of service in the grade? The respondent Union of India,
however, relies upon the conditions mentioned in the orders of transfer of the
appellants to the P & T Department made in 1976. The said order reads as
follows to the extent relevant for the present purpose; that the employees will
be:
"treated
as transferred in the public interest and their past service is counted for all
purposes (i.e.
fixation
of pay, pension and gratuity etc.) except their past service is counted for all
purposes (i.e.
fixation
of pay, pension and gratuity etc.) except seniority." The respondents have
also relied upon a copy of letter No.20/34/76-SPB dated 31.3.1977 from the D.G.
P & T Calcutta in relation to the subject of appointment of surplus staff
of Mana Camp. The material portion of the said letter reads as follows:
"Surplus
personnel on their redeployment in your circular are treated as transferred in
the public interest and their past service is counted for all purposes (i.e.
fixation of pay, pension and gratuity) except seniority." The Tribunal by
rejecting the case of the appellants held that the 16 years of service of the
first appellant and 12 years of service of the second appellant in the
Department of Rehabilitation could not be computed for the purpose of reckoning
16 years service as prescribed under the time bound promotion scheme. According
to the Tribunal, the service should be rendered in the particular grade while
working in the Postal Department. For coming to the conclusion the Tribunal
relied upon the word "16 years of service in that grade" mentioned in
the circular dated 17.12.1983. It held as follows" "From the reading
of this circular particularly the DG P & T No. 31-26/83-PGI dated 17.12.83
and clarificatory orders, it is clear that the scheme is applicable only to the
regular P & T employees and some of the basic operative cadres enumerated
in the original order. It is a scheme which is not for universal application to
all the Central Government Employees but is applicable only to a limited group
of employees within the P & T Department" The Tribunal also relied
upon a letter No. 31-26/62 PEI dated 1.3.84 DG P & T which clarified that
the order detailing the scheme would be applicable only to the regular
appointees and not to those employees who were serving on an ad-hoc basis.
Reference was also made to another letter 6-19/84 SPB-II dated 19.7.84
DGP&T to the effect that ex-servicemen who had surrendered their entire
benefits of defence service would not be entitled to avail their past service
in the defence forces for the purpose of computation of the 16 years. These
were referred to by way of analogy.
According
to the appellants, the view taken by the Tribunal is wrong. Several rulings of
this Court are relied upon by the learned counsel for the appellants. On the
other hand, the learned senior counsel for the respondent, Shri P.N. Mishra
points out that from the language of the circular as set out above, it is clear
that the service of 16 years must be in the relevant P & T Department and,
therefore, any service rendered by the appellants in the Rehabilitation
Department of the Government cannot help them. The scheme is scheme of the P
& T Department and it specifically required the service in a grade in the
Department. The learned senior counsel submits that, the view taken by the
Central Administrative Tribunal, Calcutta Bench is the correct one.
The
point for consideration is whether the appellants are entitled to the time
bound promotion by combining their service in the Rehabilitation Department of
Government rendered by the appellants before being administratively transferred
to the P & T Department? It is to be noted that the transfer of the
appellants from the Rehabilitation Department to the P & T Department was
not on their request but was expressly stated to be in the public interest. But
while doing so, it was clarified that their past service in the Rehabilitation
Department would not count for'seniority'. The purpose of this restriction was
that their transfer should not disturb the chances of promotion of those who
were already working in the P & T Department. There is no doupt, that for
the purpose of their regular promotions to higher posts in the P & T
Department their seniority is to count only from the dated of their transfer to
the P & T department. The transfer order imposed this restriction. We are
not concerned with the validity of this restriction. All that it means is that
these two transfers will not alter the existing seniority of those in the P
& T Department.
However,
the position in regard to 'time-bound' promotions in different. Where there are
a large number of employees in any department and where the employees are not
likely to get their comparatively low-position in the seniority list,
Government has found it necessary that, in order to remove frustration, the
employees are to be given a higher grade in terms of employments - while
retaining them in the same category. This is what is generally known as the
time bound promotion. Such a time-bound promotion does not affect the normal
seniority of those higher up.
If
that be the true purpose of a time-bound promotion which is meant relieve
frustration on account of stagnation, it cannot be said that the government
wanted to deprive the appellants who were brought into the P & T Department
in public interest - of the benefit of a higher grade. The frustration on
account of stagnation is a common factor not only of those already in the P
& T Department but also of those who are administratively transferred by
Government from the Rehabilitation Department to the P & T Department. The
Government, while imposing an eligibility condition of 16 years service in the
grade for being entitled to time-bound promotion, is not intending to benefit
only one section of employees in the category and deny it to another section of
employees in the same category. The common factor for all these employees is
that they have remained in the same grade for 16 years without promotions. The
said period is a term of eligibility for obtaining a financial benefit of
higher grade.
It the
appellants are entitled to the time-bound promotion by counting service prior
to joining the P & T Department, the next question is whether treating them
as eligible for time-bound promotion will conflict with the condition imposed
in their transfer order, namely that these will not count their service for seniority
purposes in the P & T Department.
The
words " except seniority" in the 1983 circular, in our view means
that such a benefit of a higher grade given to the transferees will in no way
effect the seniority of employees in the P & T Department when the turn of
the P & T employees comes up for promotion to a higher category or post.
The said words 'except seniority' are intended to see that the said persons who
have come from another department on transfer do not upset the seniority in the
transferee department. Granting them higher grade under the scheme for
time-bound promotion does not therefore offend the condition imposed in the
transfer order. We are, therefore, of the view that the appellants are entitled
to the higher grade from the date on which they have completed 16 years and the
said period is to be computed on the basis of their total service both in the
Rehabilitation Department and the P & T Department.
There
are atleast three precedents of this Court to support the principle enunciated
above. The first one is Renu Mallick vs. Union of India (1994 (1) SCC 373). In
that case the appellant, a Lower Division Clerk, was transferred from the
Central Services and Customs Department, on her own request, to the Central
Excise Collectrate. She gave an undertaking in terms of Central Departmental
instructions which said:
"the
transferee will not be entitled to count the service rendered by her in the
former Collectorate for the purpose of seniority in the new charge." Now
for purpose of promotion as Inspector, she had to put in a service of 5 years
as UDC or a total service of 13 years both as UDC and LDC, subject to minimum
of 2 years as UDC. When the appellants turn for promotion as Inspector came up
she was denied promotion on the ground she was ineligible because she did not
have the required number of years of service in the transferred department.
This view was not accepted. It was held that seniority and eligibility are
different concepts. It was directed that the appellant be given promotion as Inspector
only when she would fall within the zone of consideration as per her seniority
reckoned in the transferee department. When her turn based on the service
seniority in the transferee department arrived, if any question as to her
eligibility for promotion should arise i.e. whether she had 5 years as UDC or a
total of 13 years as UDC and LDC, for computing the said period of qualifying
service, the past service in the Central Services and Customs Department should
also be counted. Kuldip Singh, J. observed:
"We
are of the view that the Tribunal fell into patent error in dismissing the
application of the appellant. A bare reading of para 2(ii) of the executive
instructions dated May 20, 1980 shows that the transferee is not entitled to
count service rendered by him/her in the former collectorate for the purpose of
seniority in the new charge......
But
when she is so considered, her past service in the previous collectorate cannot
be ignored for the purposes of determining her eligibility as per Rule aforesaid.
Her seniority in the previous Collectorate is taken away for the purpose of
counting her seniority in the new charge but that has no reliance for judging
her eligibility......" .................................................
.................................................
"The
rule no where says that the period of 5 years and 13 years is not applicable
for an officer who has been transferred from one Collectorate to another on his
own request." In Scientific Advisor for Raksha Manthri vs. V.M. Joseph
(1998 (5) SCC 305) to which one of us (Saghir Ahmed, J.) was a party, it was
held that service rendered in another department helps for determining
eligibility for promotion though it may not count for seniority. In that case,
the employee was transferred from the Ministry of Defence to the Central
Ordinance Depot. Then he made a request for transfer to the Naval Physical
Oceanographic Laboratory, Cochin. He was
transferred to be placed at the bottom of seniority list. It was held that he
could still count his past service for purpose of eligibility for promotion. It
was observed:
"Even
if an employee is transferred at his own request, from one place to another on
the same post, the period of services rendered by him at the earlier place
where he held a permanent post and had acquired permanent status, cannot be
excluded from consideration for determining his eligibility for promotion,
though he may have been placed at the bottom of the seniority list at the
transferred place." PARTHASARATHI 1998(9) SCC 425, a government servant
was transferred and absorbed in the Electricity Board and it was held that the
past service in government would count towards the requisite experience of 10
years for eligibility for promotion.
On the
facts of the present case and especially in view of the aforesaid decisions, we
are of the view, that when the transfer is in public interest, and not on
request, the two employees transferred, cannot be in a worse position than
those in the above rulings who have been transferred on request and who, in
those case accepted that their names could appear at the bottom of seniority
list. Even in case relating to request transfers, this Court has held, as seen
above, that the past service will count for eligibility for certain purposes
though it may not count for seniority.
Hence
the transfer order and concerned circular of 1983 which required that the past
service should not count for seniority, cannot have any bearing on eligibility
for time bound promotion. Seniority and time bound promotions are different
concepts. as stated above.
For
the above reasons, we hold that the past service of the appellants is to be
counted for the limited purpose of eligibility - for computing the number of
years of qualifying service, to enable them to claim the higher grade under the
scheme of time-bound promotions.
In our
view, the Tribunal was in error and its order is set aside. The appellants will
be entitled to the higher grade from the date they completed 16 years of
service computing the same by taking into account their past service in the
Rehabilitation Department also along with the service in the P & T
Department. They will be so entitled as long as they remained in the post of
Assistant and till their normal promotion to a higher post according to Rules.
The difference between the emoluments in the order as due to them and amount
which was actually paid to them, shall be computed and be paid within a month
from the date of this order. There will be no order as to cost.
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