IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE R.SUBBIAH Writ Petition No.26428 of 2009 Mrs.Shanthi Pughazenthi ... Petitioner vs 1.Union of India rep. by the Comptroller and Auditor General of India, No.10, Baghazeer Shah Zakar Marg, IF Estate, New Delhi-2. 2.The Accountant General (A&E), Tamil Nadu, 631, Anna Salai, Teynampet, Chennai-600 018 3.The Senior Accounts Officer (Admn), Office of the Accountant General (A&E), Tamil Nadu, No.631, Anna Salai, Teynampet, Chennai-600018. 4.The Registrar, Central Administrative Tribunal. Chennai Bench, Chennai-600 104. ... Respondents. Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent in its dated 29.04.2009 passed in O.A.No.905 of 2007, quash the same, and consequently direct the Respondents to grant the petitioner, the first financial upgradation under the Assured Career Progression Scheme w.e.f. the date she completed 12 years of service after including her past service rendered in the University Grants Commission with all consequential benefits. For Petitioners : Mr.Karthik Rajan for M/s.Karthik Mukundan For Respondents : Mr.T.Ravi Kumar for R1-R3. R-4 - Tribunal. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by ELIPE DHARMA RAO,J.) This writ petition is directed against the order, dated 29.04.2009, passed by the Central Administrative Tribunal, Madras Bench, in O.A.No.905 of 2007, wherein the claim made by the petitioner/applicant for grant of first financial upgradation under the Assured Career Progression Scheme from the date of completion of 12 years of service after including her past service rendered in the University Grants Commission with all consequential benefits, was rejected and the original application was dismissed. 2.It is the case of the petitioner that she was appointed to the post of Lower Division Clerk in University Grants Commission through Staff Selection Commission in the year 1986 and she joined service on 08.02.1988 and on personal request, she was transferred to the Office of Accountant General (A& E), Chennai, the second respondent herein, on 25.06.1991 on unilateral transfer basis. It is the further case of the petitioner that the second respondent refused to take into account her past service for the purpose of fixing pay and for calculating pensionary benefits and hence, she has approached the Central Administrative Tribunal by filing O.A. No.380 of 2001 and the Tribunal, as per order dated 12.02.2002, allowed the application and directed the second respondent to take into account the past service rendered by the petitioner in University Grants Commission for the purpose of fixing pay and for computing pensionary benefits, against which, the respondents have filed a writ petition and the same was dismissed by confirming the order passed by the Tribunal and pursuant to the said order, the petitioner's pay was fixed by the second respondent. 3. It is the grievance of the petitioner that while fixing the first financial upgradation of pay under the Assured Career Progression Scheme after completion of 12 years of service, the second respondent has taken into consideration only the service rendered by her as clerk in the office of the second respondent from 25.06.1991 and her past service rendered in the University Grants Commission was not taken into consideration by the second respondent. According to the petitioner, she should have been given financial upgradation under the Assured Career Progression Scheme with effect from 08.02.2000 taking into account the past service rendered by her in the University Grants Commission, i.e., from 08.02.1988 to 25.06.1991 and when she made a representation to the second respondent seeking the aforesaid relief, it was rejected, as per memo dated 29.11.2007, issued by the third respondent and challenging the same, she has filed O.A.No.905 of 2007 before the Central Administrative Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 4. The Tribunal, on consideration of the facts and circumstances of the case and after following the judgment of the Madras High Court in W.P.Nos.40424 to 40426 of 2002, dated 30.06.2006, dismissed the original application, by holding that the petitioner cannot claim any seniority over any incumbent and her seniority has to be counted from the date of joining in the Office of the Accountant General and no benefit, other than pay protection and period of service for pension, can be extended to her for the past services rendered by her in the University Grants Commission and the claim made by the applicant/petitioner for grant of first financial upgradation under the Assured Career Progression Scheme from the date of completion of 12 years of service after including the past service rendered by her in University Grants Commission, was rejected. Aggrieved by the said order, the present writ petition has been filed. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 6. It is seen from the perusal of the records that the applicant/petitioner, who was selected through Staff Selection Commission in the year 1986 to the post of Lower Division Clerk and who joined service as Lower Division Clerk in University Grants Commission on 08.02.1988, was thereafter, on personal request, transferred to the Office of the Accountant General, Chennai, on 25.06.1991 and when she was working in the said office, she was granted the first financial upgradation under the Assured Career Progression Scheme after completion of 12 years of service as clerk rendered in the said Office with effect from 25.06.1991. It is also seen from the perusal of the records that the petitioner has made a representation to the respondents to extend the benefit of grant of first financial upgradation under the Assured Career Progression Scheme, with effect from 08.02.2000, taking into account the past services rendered by her in University Grants Commission, i.e., from 08.02.1988 to 25.06.1991, but the same was rejected, as per memo, dated 29.11.2007, issued by the third respondent. 7. It is also seen from the perusal of the records that the petitioner has approached the Central Administrative Tribunal to set aside the aforesaid memo dated 29.11.2007 issued by the third respondent, with a consequential prayer to direct the respondents to grant her the first financial upgradation under the Assured Career Progression Scheme from the date of completion of 12 years of service after including her past service rendered in University Grants Commission with other consequential benefits, by relying on the judgment of the Hon'ble Supreme Court reported in AIR 2004 SUPREME COURT 3200 in the case of Union of India -vs- V.N.Bhat and a judgment of the Madras High Court in the case of Rangarajan -vs- Chief General Manager, Chennai Telephones & another and two other https://hcservices.ecourts.gov.in/hcservices/ connected cases in W.P.Nos.12607 to 12609 of 2004. 8. It is further seen from the perusal of the records that the Tribunal, after hearing the counsel for both the parties, and also considering the fact that the Scheme of Assured Career Progression was introduced based on the recommendations of the V Pay Commission, which was adopted by the Government on 09.08.1999 and is applicable only to the Central Government Civilian Employees in all Ministries/ Departments, who are governed by the V Pay Commission's recommendation, came to the conclusion that the University Grants Commission, in which the petitioner has rendered her past service, is an autonomous body, which does not come within the meaning of Government Department and on the same understanding, proceeded to hear the matter, considered the same and dismissed the original application, against which, the present writ petition is filed. 9. It is contended by the learned counsel for the petitioner that as per the judgments rendered by the Hon'ble Supreme Court reported in (2003) 8 Supreme Court Cases 714 : AIR 2004 Supreme Court Cased 3200 in the case of Union of India -vs- V.N.Bhat and (2008) 2 Supreme Court Cases 646 in the case of State of Maharashtra -vs- Uttam Vishnu Pawar, when employees were transferred from one Department to another Department either by way of public interest or on his/her own request, in either situation, though they would take the seniority at the bottom of the transferred Department, but they would not lose the services rendered by them in the earlier department. 10. The learned counsel for the petitioner also invited the attention of this Court to the case of Union of India -vs- V.N. Bhat, cited supra, in which, the respondent therein, who was worked as a Lower Division Clerk in the Department of Ministry of Defence for 18 years, was transferred to the Postal Department as Lower Division Clerk, and though he was given the benefit of "One Time Bound Promotion Scheme" and "BCR Scheme" after completion of 16/26 years of service, after converting his post from Lower Division Clerk to that of Postal Assistant, later the benefit given under the BCR Scheme to the respondent was withdrawn, against which, he has approached the Central Administrative Tribunal, and the Tribunal allowed the application and in the Special Leave Petition filed by the Union of India against the said order, the Hon'ble Supreme Court has held as follows:- "The fact that the respondent had completed 18 years of service in the Ministry of Defence is not disputed. The question, which, therefore, arises for consideration, is as to whether the period of service rendered by the respondent in the Ministry of Defence should be wiped off for all purposes. The well settled principle of law that even in the case https://hcservices.ecourts.gov.in/hcservices/ where the transfer has been allowed on request, the employee concerned merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion. In terms of the Schemes aforementioned, promotion is to be granted for avoiding stagnation only within the said parties. The said Schemes have been framed because they are beneficial ones and are thus required to be implemented. The Scheme merely perused that any person having rendered 16/26 years of service without obtaining any promotion could be entitled to the benefit therefor. It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case, where the promotion is to be made on selection basis, the employee concerned, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefor. This aspect of the matter is clearly covered by the three decisions of this Court, viz., 1998(9) Supreme Court Cases 425 (A.P.Seb -vs- R.Parthasarathy), 1998(5) Supreme Court Cases 305 (Scientific Advisor to Raksha Mantri -vs- V.M.Joseph), and another judgment viz., 1994(1) Supreme Court Cases 373 (Dwijen Chanda Sarkar -vs- Union of India)." The Hon'ble Supreme Court has finally held that the past service would count for eligibility for certain purposes though it may not count for seniority. 11. The learned counsel for the petitioner, by referring to the aforesaid judgments of the Hon'ble Supreme Court, submitted that if the past services rendered by the petitioner in University Grants Commission is taken into account, she is eligible for claiming the benefits of the scheme with effect from 08.02.2000. 12. We have gone through the entire materials placed on record. Following the judgments of the Hon'ble Supreme Court cited supra, we consider it appropriate that after transfer from the University Grants Commission to the Government Department of Accountant General, the service rendered by the petitioner in University Grants Commission can be counted for the purpose of promotion. Accordingly, the petitioner is eligible for the grant of first financial upgradation under the Assured Career Progression Scheme, with effect from 08.02.2000, after taking into consideration the past services rendered by her in the University Grants Commission, as this Scheme was applied to the University Grants Commission from 08.08.2000, i.e., one year after the https://hcservices.ecourts.gov.in/hcservices/ introduction of the Scheme. Therefore, we are of the considered opinion that the view arrived at by the Tribunal that University Grants Commission is not a Government Department and the services rendered by the petitioner in University Grants Commission, which is not a Government Department, cannot be taken into account for the grant of Assured Career Progression Scheme is not correct and the Tribunal has wrongly proceeded that the University Grants Commission has not adopted the Assured Career Progression Scheme and therefore, the services rendered by the petitioner in the University Grants Commission cannot be taken into account in calculating 12 years of service for the grant of the first financial upgradation under the Assured Career Progression Scheme. 13. For the foregoing reasons, the order passed by the Tribunal, dated 29.04.2009, in O.A.No.905 of 2007, is set aside. The writ petition is allowed. The respondents are directed to grant the first financial upgradation under the Assured Career Progression Scheme to the petitioner, taking into consideration the 12 years of service rendered by her in both the University Grants Commission and the Department of Accountant General and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. bs. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.Union of India rep. by the Comptroller and Auditor General of India, No.10, Baghazeer Shah Zakar Marg, IF Estate, New Delhi-2. 2. The Accountant General (A&E), Tamil Nadu, 631, Anna Salai, Teynampet, Chennai-600 018 3.The Senior Accounts Officer (Admn), Office of the Accountant General (A&E), Tamil Nadu, No.631, Anna Salai, Teynampet, Chennai-600018. https://hcservices.ecourts.gov.in/hcservices/ 4.The Registrar, Central Administrative Tribunal. Chennai Bench, Chennai-600 104. + 2 ccs to M/s. Karthik Mukundan, Advocate SR No.70398, 69937 + 1 cc to M/s. T. Ravikumar, Advocate SR No.70094 RV(CO) SR/16.12.2011 W.P.No.26428 of 2009 https://hcservices.ecourts.gov.in/hcservices/