Om Prakash Sood Vs. Union of India & Anr [2003] Insc 409 (26 August 2003)
M.
B. Shah & Dr. Ar. Lakshmanan. Dr. Ar. Lakshmanan, J.
The
short but core point for consideration by this Court in this appeal is–
(a) when
admittedly the appellant had been paid the salary of Technical Assistant till
the last day;
(b) when
he had been signing the attendance register only as Technical Assistant which
was authenticated by two gazzetted officers including the Deputy Manager of the
respondent organization;
(c)
When the appellant had never worked as Key Board Operator on regular basis;
(d)
When at the time of exercising his option to function as Key Board Operator,
the appellant clearly spelt out that he reserves his right to revert back as
Technical Assistant in accordance with the practice in vogue in respect of
other supervisory posts;
How
far is the Central Administrative Tribunal right in holding that the
respondents are right in their contention that the appellant was promoted as
Key Board Operator and his pay as Key Board Operator would be drawn and paid to
him in due course and he should superannuate on attaining his age of 58 years
instead of 60 which is for Technical Assistant.
In
other words, when an individual has not served in a particular post but had been
serving in a lower post can the respondent superannuate the appellant on the
basis of the post not held.
The
short facts of the case are as follows:- The appellant had been working as
Technical Assistant since 1971 and the age of superannuation of Technical
Assistant is 60 years. In late eighties, Department introduced Phototype
setting Key Board Operator posts.
The
age of superannuation of Key Board Operator is 60 years, later on reduced to 58
years. In 1989 the appellant was promoted on ad hoc basis as Key Board Operator
but was reverted as he did not qualify in the trade test in Hindi. Again, in
1993 after he qualified in the trade test, he was offered the post of Key Board
Operator and the appellant had stated that he reserved his right to revert as
Technical Assistant as such a reversion from supervisory grade to workmen grade
was permissible in other trades.
All
along the appellant had been working as Technical Assistant and had been
drawing the salary as Technical Assistant only, and his signing the attendance
register as Technical Assistant was authenticated by the Technical Officer and
the Deputy Manager till December, 1994. As in August, 1994, the respondents
issued an order indicating the superannuation of the appellant as 31.12.1994,
on his attaining the age of 58 years, and the appellant vide his letter dated
08.09.1994 invited their attention to his representation dated 28.12.1993
whereby he had stated that he would be accepting the post of Key Board Operator
subject to the condition that he is permitted to revert back to the post of
Technical Assistant on his attaining the age of 58 years. The respondents,
were, therefore, requested to reconsider their decision. However, since there
was no reply, the appellant again on 07.11.1994 and 15.11.1994 requested them
to consider his request. But there was once again no information, which
compelled the appellant to move the matter before the Assistant Labour
Commissioner praying for a direction to the respondent to give a reply to the
appellant to his request. Before the Assistant Labour Commissioner, the
respondents submitted that the appellant had not given any unequivocal refusal
to take up the post of Key Board Operator. Hence, the appellant gave his
unequivocal refusal to hold the post of Key Board Operator vide his letter
dated 16.12.1994 and the Assistant Labour Commissioner too gave a direction to
the respondents to give a reply to the appellant's representation.
As
even till 28.12.1994, there was no reply which prompted the appellant to move
the matter to the Central Administrative Tribunal contending that he never
accepted the post of Key Board Operator and his original representation
contained only conditional acceptance on knowing the mind of the respondents
which they spelt out before the Assistant Labour Commissioner, the appellant
had clearly given his refusal to accept the post of Key Board Operator.
The
Tribunal, however, rejected all the contentions of the appellant and accepted
those of the respondents that just because the appellant had been signing the
attendance register it does not mean that he had worked as Technical Assistant;
that if his pay as Key Board Operator has not been claimed, the same would be
claimed and given to him; that there is no question of conditional acceptance
and hence his request for reverting back cannot be acceded to.
Thus,
the order of the Central Administrative Tribunal has been challenged as
erroneous.
The
respondents filed counter affidavit through its Manager, Government of India,
Press denying the allegations contained in the special leave petition/appeal.
According to the respondent, the appellant along with others as per his request
was trade tested on 10.08.1993 which he duly qualified and appointed to the
post of P.T.S. Key Board Operator w.e.f. 27.12.1993, wherein it was specified
in clear-cut terms that he shall not be allowed to revert back to his erstwhile
post, once he is appointed as P.T.S. Key Board Operator. It is further
submitted that the appointment of the appellant as P.T.S. Key Board Operator is
very clear and does not leave any room for accepting his appointment
conditionally. However, the appellant accepted the post vide his application
dated 28.12.1993 instead of submitting an out-right refusal to accept the same,
due to unfavourable conditions as stated by him, attached to the post and he
also exercised his option for fixation of his pay in the new scale, vide
application dated 25.01.1994 which is available to the persons who are
appointed on regular basis. Thus, it is submitted that the contention of the
appellant that he accepted to the post of P.T.S. Key Board Operator
conditionally is, therefore, nullified. It is further submitted by the
respondents that with the abolition of the IBM Section where the appellant
along with his colleagues was working as Technical Assistant and that of the
post of Technical Assistant itself the position held by the appellant also
stands abolished as soon as he vacated the post. However, at the fag end of his
career, the appellant submitted his intention to revert back to his erstwhile
post of Technical Assistant, vide his application dated 15.11.1994 which was
duly considered but his request could not be acceded to and that the appellant
was accordingly communicated of the decision vide office memorandum dated
02.01.1995.
The
appellant filed a detailed rejoinder to the counter affidavit filed by the
respondents. We heard Mr. K.B. Sounder Rajan, learned counsel for the appellant
and Mr. P.P. Malhotra, learned senior counsel for the respondents.
Our attention
was drawn to the averments contained in the special leave petition, counter
affidavit and rejoinder affidavit and also the various Annexures filed by the
appellant herein. We have also perused the order passed by the Central
Administrative Tribunal. The Tribunal in its order dated 12.05.1995 held as
under:-
"(a)
The memorandum of promotion clearly stipulated that applicant would not be
allowed to seek reversion.
(b)
The stand of the respondents is that the post of Technical Assistant stands
abolished as and when the incumbent gets promoted as KBO.
(c)
The two posts of Technical Assistants maintained were of provisional basis
occupied by two incumbents who could not qualify in the Trade Test, whereas the
petitioner qualified in the Trade Test and, therefore, there was no post of
Technical Assistant available to him.
(d)
The signing in the Attendance Register as Technical Assistant does not mean
that the petitioner was holding the post of Technical Assistant.
(e) As
regards pay granted as of Technical Assistant only, the respondents were
preparing bills to pay the arrears of pay and allowances being the difference
but in the pay as Key Board Operator and that as Technical Assistant."
On the
above, the Tribunal dismissed the appeal. The appellant also filed a review
application before the same Bench which was also dismissed by order dated nil,
copy of which is annexed and marked as Annexure XIV to this appeal. Both the
learned counsel reiterated their respective contentions which had been taken by
them in their special leave petition and the counter affidavit.
The
appellant was appointed and subsequently confirmed as Technical Assistant on
which post he was working since 09.08.1971. He is entitled to retire with the
rights and liabilities governing that post which at the moment permits an
incumbent to the post of Technical Assistant to superannuate on reaching the
age of 60 years and not on reaching the age of 58 years. The appellant had
taken to the trade test of Key Board Operator in Hindi and English only to
prove his proficiency that even though without practice he is an efficient
operator on the Key Board Off-set Photo Type Setting Training and there was no
acceptance, implicit or otherwise that he accepted the post of Key Board
Operator on the terms and conditions offered by the respondents. On the
contrary, the appellant had clearly kept the counter condition that he will
accept the offer of appointment to the post of Key Board Operator only if he
was allowed to revert to his original post of Technical Assistant and retire
after reaching the age of 60 years and not at the age of 58 years. However, the
respondents are taking advantage of their own wrong because on the one hand
they have neither replied to this condition put forward by the appellant, on
the other hand, they have neither fixed his pay as Key Board Operator nor took
work from him as Key Board Operator. On the contrary, the appellant was allowed
to sign the attendance register as Technical Assistant drawing salary and
allowances as Technical Assistant and was even allowed an increment of Rs.40/-
on 01.03.1994 raising his pay from Rs. 1920/- to Rs. 1960/- in the pay-scale of
Rs. 1320- 2040. Since the appellant continued to work as Technical Assistant
and has refused to accept the post of Key Board Operator and continued to serve
till the last day of reaching his superannuation i.e. 58 years as available to
the post of Technical Assistant and no effort to cut-short his career and make
him retire even by a day earlier than 60 years would amount to negation of
legally protected rights. The notice dated 26.08.1994 which falls in this
category also and, therefore, we are of the opinion that the notice of
retirement dated 26.08.1994 is liable to be quashed and set aside. In the
instant case, the respondent had retired the appellant treating him as Key
Board Operator whereas the documentary evidence annexed to the special leave
petition would all prove that he was holding the post of Technical Assistant
and as such the date of retirement only on his attaining the age of 60 years
and not the age of 58 years.
We
have perused the Annexures filed by the appellant along with the special leave
petition. A perusal of the Annexures show that the appellant was originally
treated ad hoc Key Board Operator (in short "KBO") on 26.09.1989 when
the age of superannuation of KBO was 60 years. As there was a move to revert
the appellant on account of not qualifying in the Hindi test, he did agitate
before the Tribunal in O.A. No. 1239 of 1990 which was decided on 24.07.1992
with a direction to the respondent to afford two opportunities to the appellant
to qualify in the relevant test. When the appellant gave the test and qualified
in the same, by the time the age of superannuation of KBO was brought down to
58 years. Obviously, the appellant who has been holding a substantive post of
Technical Assistant the age of superannuation of which is 60, would not want to
opt for KBO for a marginal short time increase in his pay and allowances which
ultimately would result in his superannuation at 58 years. Instead, if he
continued as Technical Assistant as the same would enable him to serve up to 60
years, when his pay was to touch the same level, if not more. It is on account
of this reason that when an offer of appointment as KBO was issued vide
Annexure- II, the appellant had clearly indicated that he never applied for
appointment as KBO and he gave the test only to prove his efficiency in the
Hindi test. Again, citing the Rule position as to the date of superannuation of
60 years in the post of Technical Assistant, the appellant accepted the offer
of appointment as KBO clearly stating that he shall be reserving his right to
revert back to the substantive post of Technical Assistant on his completing 58
years of age rather than retire at 58 as KBO. It is also seen from the Annexures
that till December, 1994, the appellant had been signing the Attendance
Register only as Technical Assistant duly authenticated by the higher
authorities including the Deputy Manager (Annexure-IV).
When a
Certificate of pay was requested for, the same was given by the respondents for
the month of October,1994 on 08.11.1994 clearly spelling out the designation of
the appellant as Technical Assistant (vide Annexure-V) Thus, though the
respondents claimed that on account of new technology posts of KBO were
created, the appellant was retained only as Technical Assistant and it is
pertinent to notice here that in addition to the appellant herein two more
persons were functioning as Technical Assistant as could be found from a reply
in the Industrial Disputes Application No. nil of 1994, wherein the respondents
have clearly stated, that there are two Technical Assistants still holding the
post of Technical Assistant because they are not interested to be absorbed as
PTS KBOs.
Mr.
P.P. Malhotra, learned senior counsel, submitted that since the condition was
put when the appellant was appointed to the post of KBO, he shall not be
allowed to revert back. True, the offer of appointment contained, inter alia, a
condition to the said effect. However, the appellant gave a conditional
acceptance in view of practice prevailing reserving his right to be reverted to
the post of Technical Assistant. The documents filed in this case show that the
appellant was signing the attendance register as Technical Assistant and he was
paid his allowance till the date of his retirement, only the pay as was
admissible for a Technical Assistant. This, in our opinion, would show that the
Department had not accepted the conditional acceptance given by the appellant
and kept him as a Technical Assistant. When the offer of appointment was stated
to be very clear and does not leave any room for accepting the appointment
conditionally, the condition reserving the right for reversion would mean a
conditional acceptance which was either to be outrightly rejected by the
Department by a specific order or was to be accepted with the said condition in
view of prevailing practice. In either way, it is beneficial to the appellant.
The records will show that whereas the appellant was allowed to continue as
Technical Assistant during the entire period and was paid his pay and
allowances as was paid to Technical Assistant. He was, however, retired on
completing the age of 58, treating him as KBO which is totally illegal.
The
learned senior counsel for the respondent submitted that the appellant had not
made any case for interference by this Court in the exercise of its
extraordinary jurisdiction under Article 136. This Court has held in a number
of cases that the powers of this Court under Article 136 are unfettered and are
invoked invariably when this Court reaches the conclusion that a person has
been dealt with arbitrarily. The case on hand is one such wherein the
Department treated the appellant as a Technical Assistant all through but
superannuated him at 58 while the age of superannuation for Technical Assistant
is 60.
It is
further submitted by the learned senior counsel for the respondent that the
reversion was not admissible in the case of the appellant. This submission has
no force. Neither the appointment letter indicates anywhere that the promotion
offered was temporary or on ad hoc or on regular basis nor have the posts of
Technical Assistant being abolished. Hence it is futile to contend that
reversion was not admissible in the case of the appellant. The appellant has
been singled out as could be evident from the fact that some Compositors
Grade-I who were promoted as Section Holder in November, 1993 were permitted to
be reverted to the post of Compositors Grade I w.e.f. October, 1994. Along with
the rejoinder, the appellant has annexed the office orders dated 22.11.1993,
24.06.1994 and 21.10.1994 as Annexure-II.
When
the appellant had made his intention clearly to accept the promotion as KBO
only on a specific condition of his exercising his right to revert, only two
options are left to the respondent, namely, either to accept the conditional
acceptance or to permit the appellant to continue as Technical Assistant. In
the case of the appellant, the latter only prevailed throughout as could be
seen from Annexures IV and V. The appellant was treated only as a Technical
Assistant by the respondents.
It was
argued by the learned counsel for the respondent that the entire post of
Technical Assistant stand abolished since 1988. This was denied by the
appellant. The appellant pointed out that two Technical Assistants who could
not qualify test were not promoted as KBO and were still holding on the post of
Technical Assistant and that they are functioning as Technical Assistants
despite crossing 58 years of age.
As
regards the contention of the respondent that a mere signing as Technical
Assistant does not given the appellant the right to serve in that post, we are
of the opinion that the same cannot be accepted in view of the fact that if the
appellant was working as KBO, the Higher Authorities cannot permit the
attendance register being signed as Technical Assistant through out the
disputed period. Permitting signing of the attendance register as Technical
Assistant paying the salary as Technical Assistant, declaring the designation
as Technical Assistant even after 12 months of the so-called offer of
appointment as KBO and indicating in the PPO the salary and designation of the
appellant as Technical Assistant – all this cannot be an inadvertent mistake by
the respondents. In reality, the appellant was never treated as KBO at all and
all along he had been treated only as Technical Assistant.
As
noticed earlier, the appellant after submitting the conditional acceptance
continued to work only as a Technical Assistant. He was taken by surprise when
in August, 1994 the appellant was issued with a letter wherein his date of
superannuation was indicated as 31.12.1994. This letter would mean that on the
basis of the acceptance given by the appellant, the appellant was promoted as
the KBO in which event his right to revert back as Technical Assistant is fully
secured.
For
the foregoing reasons, we are of the opinion that the impugned action of the
respondent should be declared as devoid of merit and the appeal is liable to be
allowed. The appellant shall be deemed to have continued in service and his
pension and retiral benefits should be fixed accordingly. However, he shall not
be entitled to get any salary after his retirement on 31.12.1994. The
difference of retiral benefits should be given within eight weeks from today
with 6 per cent interest.
In the
result, the judgment and order dated 12.05.1995 in O.A. No. 2571 of 1994 passed
by the Central Administrative Tribunal, Principal Bench, New Delhi is set aside
and this appeal stands allowed as indicated above with cost of Rs.5,000/- to be
paid to the appellant by the respondents.
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