C.W.P. No. 12080-CAT of 2006 [ Page numbers ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 12080-CAT of 2006 Date of Decision: Feb. 18, 2009 Faqir Chand ........................................................... Petitioner Versus Union of India and others ................................... Respondents Coram: Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Aman Bahri, Advocate for the petitioner. Mr. Namit Kumar, Central Govt. Counsel for respondent Nos. 1 to 3. .... ASHUTOSH MOHUNTA, J. The challenge in this writ petition is to the order of the Central Administrative Tribunal (hereinafter referred to as the Tribunal) dated 19.9.2005 vide which the Original Application of the petitioner herein was dismissed. Through the said OA the petitioner had sought the quashing of the order dated 11.7.2003 whereby the respondents declined the application of the petitioner for grant of benefit of higher pay scale under the Time Bound One Promotion Scheme (hereinafter referred to as TBOP Scheme) to him with effect from 1.8.1991. Briefly the facts of the case are that the petitioner joined the C.W.P. No. 12080-CAT of 2006 [ Page numbers ] Postal Department in SBCO, NW Circle at Ambala on 28.4.1980. Subsequently, he was transferred to SBCO Jalandhar Head Office where he continued upto 1988. In June 1987, NW Circle of the Postal Department was split into three Circles namely Punjab, Haryana and Himachal Pradesh. The employees were given the liberty to opt and serve in any one of the three Circles. The petitioner opted for Haryana Circle. However, on account of some alleged delays he was not relieved from Punjab, so he continued to serve there upto 23.5.1988 i.e. the date when he was so relieved. While he was in Punjab, awaiting relieving orders to join Haryana Circle the Punjab Circle invited applications from Lower Division Clerks (LDCs) for promotion to the post of Upper Division Clerk (UDC). Petitioner also applied for the same and consequently qualified under 30% quota meant for LDC's along with one Mit Singh who admittedly was junior to the petitioner. Mit Singh was appointed UDC where as the petitioner was denied the promotion on account of the fact that he has opted for Haryana Circle and that the said promotional opportunity was only for those who were in Punjab Circle. Resultantly, petitioner filed a representation before the higher authorities which was rejected on 16.4.1990 with an observation that the employee can seek his transfer to Punjab Circle under Rule 38 of the P&T Manual. Petitioner applied for transfer to Punjab. He was transferred to Punjab with effect from 25.10.1990 but only as LDC. So his motive of being promoted as UDC on transfer was still unachieved. Accordingly, a fresh round of representations began and finally on 26.9.1991 the respondents decided to promote the petitioner as UDC. But the same was kept in abeyance. Meanwhile, the cadres of LDC's and UDC's were abolished C.W.P. No. 12080-CAT of 2006 [ Page numbers ] with the introduction of TBOP Scheme for SBCO staff with effect from 1.8.1991 and with the creation of a post of Postal Assistant vide order dated 23.12.1992. The case of the petitioner was back to square one as the authorities did not promote him as UDC on the ground that UDC cadre stands abolished with effect from 1.8.1991 and that even if it has been decided to promote him by order dated 26.9.1991 he cannot be promoted as the post to which he was to be promoted itself stands abolished. The petitioner, thus, challenged this decision of the respondents by OA No. 254/CH of 1993 before the Tribunal. The Tribunal allowed the said OA vide order dated 7.2.2001 (Annexure A-1). The operative part of the order is as follows:- “In view of what has been stated above, we direct the respondent-department to notionally promote the applicant to the cadre of UDC w.e.f. the date Shri Mit Singh the junior of the applicant in the select list, A-3 was so promoted. The applicant would not notionally treated as UDC till 1.8.1991, he being re-designated as Postal Assistant later on after introduction of OTBP. However, the applicant would be entitled to arrears of pay w.e.f. 1.8.1991 on account of the revision of his pay in the manner stated above. These directions be complied with within a period of 4 months from the date of receipt of a copy of this order. No costs. Applicant's seniority as LDC would, however, be as per Rule 38 of P&T Manual.” Again Mit Singh, who was admittedly junior to the petitioner, C.W.P. No. 12080-CAT of 2006 [ Page numbers ] was given the benefit of TBOP Scheme with effect from 1.8.1991 i.e. he was placed in the pay scale of Rs.1400-2300. Mit Singh was granted the said benefit on the directions of the Tribunal dated 2.11.2001 in OA No. 1120/HR of 1997 in which the Tribunal held that even though Mit Singh stood transferred to Haryana Circle on 28.2.1994 i.e. the date when Punjab Circle in the year 1996 was considering to give benefit of TBOP Scheme to its employees, the said benefit is to be given to all those who were on its rolls on 1.8.1991 i.e. the day on which the Scheme came into being and not the day on which it was so implemented. Accordingly, Mit Singh was held to be entitled to TBOP Scheme although on the material date in the year 1996 he was posted in Haryana Circle, but on 1.8.1991 when the Scheme came into being he was in Punjab. The petitioner again filed representations to the respondents, that though he has been accorded promotion with effect from the date his junior Mit Singh was promoted, the benefit of TBOP Scheme has not been granted to him with effect from 1.8.1991 i.e. the date when Mit Singh was so granted the benefit of the said Scheme and was placed in the pay scale of Rs. 1400-2300. The said representations were rejected by order dated 11.7.2003. Aggrieved by the said order, the petitioner preferred an OA No. 125/HR of 2004 before the Tribunal. The Tribunal dismissed the said OA by the impugned order on the ground that as per the latest instructions contained in Directorate's letter dated 17.5.2000, TBOP/BCR are not promotions against norm based posts in LSG/HSG II cadre and that these are merely financial upgradations on completion of 16 and 26 years in service. Therefore, the applicant could not be granted the benefit of TBOP C.W.P. No. 12080-CAT of 2006 [ Page numbers ] Scheme on 1.8.1991 when he had served only for 10 years and 4 months on that date. Accordingly, the said benefit was extended to him with effect from 24.4.1996 vide letter dated 14.11.1996 on his completing of 16 years in service. Aggrieved by the said order, the petitioner has filed the present petition seeking quashing of the same and a direction that he be given the benefit of TBOP Scheme w.e.f. 1.8.1991 i.e. the date when his junior Mit Singh has been given the said benefit. On notice of this petition, the respondents appeared through their counsel and filed a detailed reply to the facts alleged in the petition. It was pleaded that the order of the Tribunal does not suffer from any infirmity as the same is rightly based on the fact that TBOP Scheme can be granted to the petitioner only on completion of 16 years in service. We have heard the learned counsel for the parties and have perused the record. The learned counsel for the petitioner and the respondents reiterated the stand taken by them in the petition and the reply thereto respectively. The entire controversy revolves around the interpretation and consequent application of the departmental instructions contained in Annexure A2 dated 8.2.1996 and Annexure A6 dated 17.5.2000. In view of the instructions contained in Annexure A2 the petitioner is supposed to be given the benefit of TBOP Scheme with effect from 1.8.1991 as those instructions clarify that all the officials such as UDCs in the Circle Office and SBCO, LSG (both 1/3rd and 2/3rd) P.O. and R.M.S. Accountants, whose seniority was adversely affected by implementation of BCR Scheme C.W.P. No. 12080-CAT of 2006 [ Page numbers ] placing their juniors in the next higher scale of pay will now be considered for the next higher scale of pay from the date their immediate juniors became eligible for the next higher scale. Thus, we are of the considered opinion that the Tribunal erred in placing reliance on the instructions Annexure A6 dated 17.5.2000. Firstly, the said instructions are prospective in nature. So far as the case of the petitioner is concerned, it was to be governed by the instructions which existed on the day the case of the employees for providing the benefit of TBOP Scheme was considered i.e. 19.2.1996. As on 19.2.1996, the instructions dated 8.2.1996 were relevant which have been discussed above. Secondly, by order dated 2.11.2001 the Tribunal in OA No. 1120/HR of 1997 has allowed the claim of Mit Singh. The said order was passed when instructions dated 17.5.2000 were already in force. Moreover, a perusal of order dated 17.3.2002 vide which the order of the Tribunal dated 2.11.2001 has been given effect and Mit Singh has been allowed the benefit of TBOP Scheme with effect from 1.8.1991, shows that the benefit of TBOP Scheme was granted to Mit Singh not on his completing 16 or 26 years in service but it was granted in pursuance of the orders of the Tribunal and the fact that implementation of the said Scheme has affected seniority of some officials by placing their juniors in the next higher pay scales (which is in tune with the instructions dated 8.2.1996). Therefore, the respondents cannot have two different yard sticks in extending the benefit of TBOP Scheme. It has already been observed that instructions dated 17.5.2000, which forms the basis of Tribunal's orders, are prospective in nature. As regards the case of the petitioner, the relevant instructions would be that of 8.2.1996. When Mit C.W.P. No. 12080-CAT of 2006 [ Page numbers ] Singh, similarly placed junior of the petitioner, has been given the benefit of TBOP Scheme with effect from 1.8.1991, we find no reason why the petitioner should not be allowed the benefit of the said Scheme from the said date and accordingly be placed in the pay scale of Rs.1400-2300 therefrom. In view of the above discussion, we allow the writ petition and set aside the impugned orders dated 11.7.2003 passed by Assistant Post Master General (Staff) and order dated 19.9.2005 passed by the Tribunal. The respondents are directed to place the petitioner in the pay scale of Rs.1400-2300 by extending the benefit of TBOP Scheme to him with effect from 1.8.1991 i.e. the date from which his juniors were granted the same. The petitioner shall also be entitled to all the consequential benefits. ( ASHUTOSH MOHUNTA ) JUDGE ( NIRMALJIT KAUR ) JUDGE 18.2.2009 rupi