IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 6335 of 2009(S) ------------------------- OA.629/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY DIRECTOR GENERAL OF POSTS MINISTRY OF COMMUNICATIONS, NEW DELHI-1. 2. THE CHIEF POSTMASTER GENERAL CENTRAL REGION, KOCHI-682018. 3. THE SENIOR SUPERINTENDENT OF POST OFFICES,ALUVA DIVISION, ALUVA. BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL RESPONDENT(S): --------------- N.M.HAMEED,AGED 60 YRS,S/O N.A.MOHAMMED ACCOUNTANT (RETIRED),HEAD POST OFFICE,ALUVA, RESIDING AT "NEDUNGADAN HOUSE,POOKKATTUPADY.P.O, EDATHALA, VIA ALUVA. BY // THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.9.2009, THE COURT ON 03/11/2009, DELIVERED THE FOLLOWING: W.P.(C) NO. 6335/2009 APPENDIX PETITIONERS' EXHIBITS: Ext.P1: True copy of the OA No.629/07 filed before the Hon'ble Central Administrative Tribunal, Ernakulam. Ext.P2: True copy of the reply statement filed by the petitioners herein in OA 629/07 . Exts.P3 &P4: Acopy of the rejoinder filed by the respondent herein and the Additional reply statement filed by the petitioner herein. Ext.P5: A true copy of the order dated 29.08.2008 in OA No. 629/07. RESPONDENT'S EXHIBITS: NIL KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P. (C) NO. 6335 OF 2009 --------------------------------------------- Dated this the 3rd day of November, 2009 JUDGMENT Ravikumar, J. The petitioners herein were the respondents and the respondent herein was the applicant in O.A. No.629 of 2007 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent herein was working as Lower Selection Grade under the Department of Posts. The issue involved in the case is whether the applicant was entitled for promotion as Lower Selection Grade with effect from 30.11.1983, the date on which one Smt. C. Sreedevi, allegedly junior to the respondent/applicant, was promoted. 2. The respondent joined the service under the Department of Posts as a Time Scale Clerk on 16.4.1969 and was later posted as Accountant on 25.9.1979. The next promotion post of Accountants viz. the post of Lower Selection Grade was being filled up by promotion as against one-third merit quota, after conducting a qualifying examination. The respondent had passed the said examination and accordingly, he was W.P.(C) NO. 6335/2009 2 included in the gradation lists published showing the position as on 1.7.1982 and as on 1.7.1987, Annexures A2 and A3 in Ext.P1. According to the respondent, his name was not included in the gradation list published in the year 2006 and at the same time, his juniors were included in the list. Though he represented his grievance before the authorities, no action was taken thereon and in the meanwhile, based on the gradation list of 2006, some of his juniors were given regular promotion to the post of Lower Selection Grade. Subsequently, on noticing the non-inclusion of the name of the respondent in the gradation list, by oversight, appropriate action was taken by the petitioners and after convening a review DPC, the respondent was given promotion to the post of Lower Selection Grade notionally with effect from 16.5.2007. The respondent, thereupon, filed the above Original Application mainly seeking a declaration that he is entitled for promotion to the post of Lower Selection Grade with effect from 30.11.1983 with all consequential benefits, including further promotions and placements. 3. The petitioners herein have filed a reply affidavit in the O.A., refuting the claims and contentions of the respondent. In response to the same, the respondent herein has filed a rejoinder and the petitioners filed an additional reply affidavit to that rejoinder. W.P.(C) NO. 6335/2009 3 4. Essentially, the claim of the respondent for promotion to the post of Lower Selection Grade with effect from 30.11.1983 is based on his position in the gradation list of 1982 viz., Annexure A2 in Ext.P1. In the said gradation list, he was serial No.2482 and one Smt. C. Sreedevi was Serial No. 2633. In the subsequent gradation list of 1987 i.e., Annexure A3 in Ext.P1, they were serial Nos.1041 and 1130 respectively. As noticed earlier, in the gradation list of 2006, the respondent was not included whereas the said Sreedevi was shown as serial No.35 and the date of her promotion to the post of Lower Selection Grade is shown therein, as 30.11.1983. Though the respondent was subsequently granted promotion as Lower Selection Grade,it was contended, based on the aforesaid factual position, that he is entitled to get the said promotion with effect from 30.11.1983 with all consequential benefits, including further promotions and placements. After considering the rival contentions, the Tribunal upheld the contentions of the first respondent and directed the petitioners herein to give him notional promotion as Lower Selection Grade with effect from 30.11.1983 and also to place him as serial No.46 in the list of officials promoted as per order dated 3.5.2007 and also to grant him consequential benefits arising therefrom, including further promotions in accordance with the said seniority and in accordance with the rules. W.P.(C) NO. 6335/2009 4 Feeling aggrieved by the said order of the Tribunal in O.A. No.629 of 2007, this Writ Petition is filed by the respondents therein. 5. The petitioners contended that the scheme of promotion under one-third Lower Selection Grade quota is not now in force in the Department. For a proper understanding and appreciation of the claims and contentions of both sides, certain facts also need narration. Promotion to the post of Lower Selection Grade was being effected from two separate cadres, namely, Accounts line and General line. The respondent was posted as Accountant on 25.7.1979 on his passing the Post Office and R.M.S. examination and as such he belonged to the cadre of Accounts line. By virtue of the said fact, he was entitled to be promoted to the next higher grade of Lower Selection Grade in Accounts line. Later, he qualified for the Lower Selection Grade post against one-third merit quota in the year 1981. While he was awaiting promotion in that line, a new scheme for promotion called Time Bound One Promotion (TBOP), was introduced with effect from 30.11.1983. As it was incumbent to opt between General line and Accounts line under the said scheme, the respondent opted for General line on 11.9.1985. Needless to say, until then, the respondent was included in the Accounts line. W.P.(C) NO. 6335/2009 5 6. The fact that the respondent had opted for General line on 11.9.1985 at the time of getting TBOP on completion of 16 years of service was not in dispute. The factum of promotion of the aforesaid Sreedevi after 11.9.1985 with retrospective effect from 30.11.1983 was also not in dispute. Other undisputed facts are that in the gradation lists that were published in 1982 and 1987, the respondent was shown senior to the said Sreedevi and that the names of staff in the Accounts line as well as in the General line were borne on the same gradation list till the introduction of TBOP. Subsequently, promotions were governed by the respective options exercised by the officials. 7. The grievance of the writ petitioners is that the Tribunal lost sight of certain crucial aspects. By virtue of passing P.O. and R.M.C. examination and consequential promotion as Accountant on 25.7.1979, the respondent fell into a separate cadre called Accounts line and thenceforth, his promotion to the next higher grade of Lower Selection Grade was to be effected in the Accounts line. He became qualified for that promotion in the Accounts line by passing the examination in 1981. The new scheme was introduced with effect from 30.11.1983 and to obtain the placement under TBOP, it was incumbent on all concerned to exercise option. It was only at that point of time that the respondent had opted for General W.P.(C) NO. 6335/2009 6 line with effect from 11.9.1985. As per the revised recruitment rules of 2006, the post of Lower Selection Grade became a circle cadre and thereafter 236 officials were promoted , as a whole, on 3.5.2007. When the omission to include the name of the respondent, by oversight, was noticed, a review DPC was held on 29.11.2007 and the respondent was promoted as Lower Selection Grade on 29.11.2007 with effect from the date on which his immediate junior one Smt. P.K. Sarasa was promoted. The fact that the respondent could not have claimed his promotion based on the promotion granted to Smt. Sreedevi on account of the aforementioned factual position regarding their status, was not considered by the Tribunal in its true perspective. Above all, it was contended that the fact that the application itself was time barred, considering the fact that the respondent was claiming promotion with effect from 1983, was also not taken into consideration by the Tribunal. In the said circumstances, according to the petitioners, the Tribunal ought not to have issued a positive direction to antedate the regular promotion granted to the respondent in the post of Lower Selection Grade with all consequential benefits. 8. Though notice was served on the respondent, there was no appearance for him. However, we think that it is only appropriate to W.P.(C) NO. 6335/2009 7 advert to the contentions raised by the respondent in the Original Application and in the rejoinder. Though the Department had introduced TBOP scheme and stopped promotions to the Lower selection Grade in the year 1983, they had reverted back to the erstwhile system of making promotions to Lower Selection Grade pursuant to the Apex Court's decision in R. Prabhadevi v. Union of India. Further, when once they reverted back to the said erstwhile system, they should have started from where they had stopped. There was no reason for denying or delaying Lower Selection Grade promotion to him ignoring his seniority in Annexures A2 and A3 in Ext.P1 and to promote his juniors. Since the divisionalisation of the cadre had taken place only in the year 1985, he should have been granted promotion with effect from 30.11.1983, the date on which his juniors were so promoted. Certain other contentions were also raised by him and we will advert to such contentions at the appropriate place. 9. After going through the order of the Tribunal, we are of the opinion that though the fundamental differences in status of the respondent and the said Sreedevi viz. one belonging to the Accounts line and the other to the General line till 11.9.1985, was taken note of by the Tribunal, no consideration as to the entitlement or otherwise, in view of the said W.P.(C) NO. 6335/2009 8 fundamental difference, was made by the Tribunal. Precisely, that is the grievance of the petitioners herein. No doubt, the first respondent had opted to go over to the General line on 11.9.1985 and prior to that, admittedly his lien was in the Accounts line. But, his definite case is that the mistake committed by the Writ Petitioners has marred his carrier prospects to his detriment. Yet another contention was also raised by the respondent. According to him, even prior to 1986 the post of Lower Selection Grade was a circle cadre and that it was the confusion on the part of the authorities to decide whether he belonged to the General line or the Accounts line that has resulted in denial of his promotion against the one- third quota. At any rate, it is evident from the order of the Tribunal that the relevant facts that the respondent and the aforesaid Sreedevi belonged to different cadres and that the respondent had opted to go over to the General line only with effect from 9.11.1985 and in view of the said circumstances whether the first respondent would have obtained promotion as against the one-third Lower Selection Grade with effect from 30.11.1983 either in the General line or in the Accounts line, were not pointedly considered by the Tribunal. In view of non-availability of vacancy position and other relevant circumstances, the Tribunal ought to have directed the writ petitioners for such consideration in the light of relevant materials and datas concerning the same. The specific case of the W.P.(C) NO. 6335/2009 9 writ petitioners is that the Tribunal was not justified in issuing a positive direction to grant notional promotion to the respondent to the post of Lower Selection Grade with effect from 30.11.1983 and to place him at serial No.46 in the list of officials promoted by order dated 3.5.2007 and to grant him consequential benefits arising therefrom, including further promotions. We find considerable force in the said contention. 10. In regard to the contention of the writ petitioners that the Original Application was liable to fail on the ground of limitation, we are of the opinion that it cannot be appreciated. It is an admitted fact that pursuant to the passing of Lower Selection Grade examination, the name of the respondent figured in the gradation list published in the year 1982 and in 1987. It appears that the circle gradation list was not published during the years 1988 to 2005 and, therefore, the contention of the respondent that he never had a chance to find out whether any of his juniors were promoted in the meanwhile cannot be brushed aside. According to him, it is from the gradation list of 2005 that was circulated in September, 2006 that he came to know that his junior Smt. Sreedevi was promoted to the post of Lower Selection Grade with effect from 30.11.1983. That apart, the writ petitioners themselves admit the omission in the matter of inclusion of the name of the respondent in the gradation W.P.(C) NO. 6335/2009 10 list and it was that omission that led to the subsequent convening of the review DPC and consequential passing of an order of promotion in favour of the respondent/applicant. In such circumstances, nobody can find fault with the apprehension on the part of the respondent that his promotion fell due much earlier and at any rate, in view of the subsequent developments it requires proper consideration in the light of the relevant materials. 11. In the circumstances, we are of the opinion that the question regarding entitlement of the respondent for promotion to the post of Lower Selection Grade with effect from 30.11.1983, the date on which Smt. Sreedevi, who was rank No.2633 in 1982 gradation list and 1130 in 1987gradation list, requires reconsideration by the writ petitioners. To consider the said question in the light of the vacancy position and other relevant datas and materials, the order of the Tribunal is liable to be set aside to the extent required. We do so. There will be a direction to the writ petitioners to consider the entitlement of the respondent for promotion to the post of Lower Selection Grade with effect from 30.11.1983 in view of the factum of promotion given to his junior Smt. Sreedevi and such other relevant aspects and to pass appropriate orders. Needless to say that in case of a decision in his favour, the respondent shall be given the consequential benefits arising therefrom. It will only be desirable that W.P.(C) NO. 6335/2009 11 prior to such consideration, the respondent is called upon to offer his contentions to substantiate his claim. The entire exercise in terms of the above directions shall be done within a period of three moths from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C) NO. 6335/2009 12 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.P.(C)NO.6335/2009 JUDGMENT 3rd November, 2009