IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.7.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM Writ Petition No.43086 of 2006 and M.P.No.1 of 2006 1. Union of India, rep.by Secretary (O.L.), Government of India, Department of Official Language, Ministry of Home Affairs, 1st Floor Lok Nayak Bhavan Khan Market, New Delhi-110003. 2. The Director, Central Hindi Training Institute, Department of Official Language, Ministry of Home Affairs, 7th Floor Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi-3. ..Petitioners Vs. 1. P.Rajagopalachary 2. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600 104. ..Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the records relating to the order of the Central Administrative Tribunal, Chennai Bench passed in O.A.No.620 of 2005, dated 5.6.2006 and quash the same. For petitioners : Mr.B.Santha Kumar, Sr.C.G.S.C. For R.1 : Mr.V.Vijayashankar https://hcservices.ecourts.gov.in/hcservices/ O R D E R ELIPE DHARMA RAO, J. The first respondent herein had filed O.A.No.620 of 2005 before the Central Administrative Tribunal, Madras Bench, praying to call for the proceedings of the second appellant herein in its letter No.A20011/1/99-CHTI/1436, dated 7.3.2005 and quash the same and consequently direct the respondents to refix the applicant's pay with effect from 31.8.1999 under the ACP Scheme, if necessary by giving him notional promotion on par with his juniors as per the seniority list dated 6.1.2003 with all consequential and attendant benefits. 2. The applicant joined the services of the appellants as Stenographer Grade-III on 10.1.1969. According to the applicant/first respondent, he was stagnated in the same post for more than 30 years and it was pursuant to an OM, dated 6.8.1999, fixing the ratio of 40:40:20 between the Stenographer Grade III, II and I respectively, that the applicant got his promotion as Grade-II Stenographer and immediately thereafter as Grade-I in May, 2004. He has further submitted that he is the senior most Stenographer in the Hindi Teaching Scheme, Central Hindi Training Institute in all the zones in India, but no seniority list was published periodically and therefore, he was not in a position to know what his actual position was in the seniority list; that for the first time in the year 2003, a seniority list of stenographers was published in which the applicant's name was found at Sl.No.1 and from seeing the said list, the applicant was surprised to find that one Mr.Vijay Pal Singh, who is at Sl.No.6 of the said list had been promoted as Stenographer Grade-II, some time in May 1994; that the said Mr.Vijay Pal Singh is junior to the applicant by over 18 years, having joined service only in the year 1987 as Steno Grade-III, whereas the applicant had joined in the service way back in the year 1969. 3. It has further been submitted on the part of the applicant that when he made enquiries as to how Mr.Vijay Pal Singh had secured promotion overlooking him, he learnt that the appellants are adopting an arbitrary policy of posting persons of their liking and by not circulating seniority lists periodically, ensuring that those in the seniority list did not know their correct position; that in this manner, the appellants appear to have promoted one Mr.Mulraj Patial in the year 1989 itself, who joined as Steno Grade-III with effect from 9.5.1983 and since the applicant was working in the South zone, he had no knowledge or information about these out-of-turn promotions given to his juniors and it was only after seeing the consolidated seniority list published in the year 2003, he realised that he was the senior most and that the appellants, by making illegal and out- of-turn promotions had prejudicially affected his rights, depriving him of promotions. https://hcservices.ecourts.gov.in/hcservices/ 4. It has further been submitted that pursuant to the OM of the Government of India, introducing the Assured Career Progression Scheme (ACP) w.e.f. August 1999, the applicant who had not secured any promotion for more than 33 years, got two financial upgradations, by proceedings dated 24.1.2002 and the applicant had been illegally deprived of his rightful promotion of which he became aware only in the year 2003 and therefore, he made representations on 3.6.2004, 3.8.2004 and 1.10.2004, requesting that he may be given notional promotion as Stenographer Grade-II on par with his juniors and that his pay at the time of grant of ACP with effect from August 1999 be re-fixed accordingly; that had the applicant got his promotion as Stenographer Grade-II in the year 1989 or at least with effect from 1994 on par with Mr.Vijay Pal Singh, he would have got higher pay fixation at the time of such promotion and got increments every year which would have been taken into account at time of fixation of his pay under the ACP Scheme with effect from August, 1999; that when he was under the bonafide belief that the 2nd appellant would consider his representations and issue suitable orders refixing his pay, he was surprised to receive a letter dated 4.11.2004 by which it was informed by the second appellant that regional-wise seniority list was followed and hence the applicant, who belongs to South Zone, could not be considered earlier. Since the applicant's further representation was also rejected by the second appellant by reply dated 7.3.2005, he filed the Original Application before the Tribunal. 5. A detailed counter affidavit has been filed on the part of the respondents before the Tribunal, who are the appellants herein. In the counter, it has been submitted, inter alia, that the seniority list of Group 'C' and Group 'D' posts of Hindi Teaching Scheme Northern Region (Headquarters, New Delhi) and Examination Wing (New Delhi) were amalgamated, but the seniority list of Group 'C' and Group 'D' posts of other regions were on the original basis only as before and that promotion to Group 'C' and Group 'D' posts sanctioned in the Sub Institutes of Central Hindi Training Institute at Chennai, Hyderabad, Calcutta, Bangalore etc. were being made on the basis of the seniority lists of Group 'C' and Group 'D' posts in the concerned region and the same position is applicable to the posts of Stenographers; that after the establishment of Central Hindi Training Institute of New Delhi in the year 1985, along with other posts, one post of Stenographer Grade-C was also sanctioned, which were to be filled by Stenographers of the Northern Region and accordingly, as per the existing rules, Stenographer Grade-III of Northern Region Mr.Mool Raj Patiyal was given promotion against this post w.e.f. 30.8.1989 and thereafter, Mr.Patiyal was given promotion as Research Assistant (Hindi Typing and Stenography) w.e.f.17.5.1994 on adhoc basis and later Mr.Vijayapal Singh, Stenographer Grade-D was given promotion as Stenographer Grade-C w.e.f. 18.5.1994 on adhoc basis. https://hcservices.ecourts.gov.in/hcservices/ 6. It has been submitted on the part of the Administration that the applicant has prayed for notional promotion from the date his junior Shri Mool Raj Patiyal was given promotion w.e.f. 31.8.1989 and thus he is challenging the promotion of Mr.Patiyal after 16 years; that seniority list was maintained on regional basis and circulated from time to time, but the applicant did not challenge the promotion of Mr.Patiyal and adhoc promotion of Mr.Vijayapal in 1994. 7. The Tribunal, considering all the facts and circumstances of the case, has allowed the Original Application filed by the applicant/first respondent, directing the Administration to refix the applicant's pay with effect from 1994 on par with Mr.Vijaypal Singh and grant further consequential pay benefits. Aggrieved, the Administration has come forward to file this writ petition. 8. On a perusal of the entire materials placed on record, we are able to see that the contention of the applicant/first respondent that his juniors were promoted earlier has not been rebutted by the appellants. The only argument advanced on the part of the appellants is that earlier they have maintained region-wise seniority and therefore, the question of promoting the applicant earlier has not arisen. It is to be pointed out that the appellants have miserably failed to bring to our notice any Rule or Regulation or anything of that sort permitting or requiring them to maintain the seniority region-wise. 9. The other ground of the appellants that the application filed by the applicant before the Tribunal is bad for non-joinder of necessary parties also cannot be upheld for the reason that the applicant himself has explained that he is not challenging the promotion given to his juniors, but is seeking the re-fixation of his pay scale. Therefore, it cannot be said that the juniors of the applicant who were promoted earlier by the Department are the proper and necessary parties to the lis. 10. The learned counsel appearing for the appellants has repeatedly argued that the claim of a retired person for promotion cannot be considered and has relied on the judgment of the Honourable Apex Court in STATE OF UTTAR PRADESH AND OTHERS vs. ROSHAN SINGH AND OTHERS [(2006) 13 SCC 661]. In the said case, the respondents and three others were working as Cooperative Supervisors under the Cooperative Department, a non-Government post. After their retirement from service, they filed writ petition before the High Court seeking promotion to the post of Cooperative Inspector, Group II (a Government post) with effect from a date on which date the persons who were junior to them had been promoted and the learned single Judge of the Allahabad High Court had allowed the said writ petition following the earlier judgment of the same High Court in W.P.No.13240 (SS) of 1990, dated 3.5.1995 (Bengali Prasad Sharma case). The said judgment of the learned single Judge was also confirmed by the https://hcservices.ecourts.gov.in/hcservices/ Division Bench. On appeal, the Honourable Supreme Court has distinguished the case before it from the earlier judgment of the Allahabad High Court in Bengali Prasad Sharma case and held that 'unequals cannot be treated equally' and further held that the earlier decision of the Allahabad High Court in Bengali Prasad Sharma is inapplicable since unlike the case before it, in the earlier case, Bengali Prasad was holding the Government post of Cooperative Inspector, Group-II and while in service he had filed the writ petition. On such observations, the Honourable Apex Court has reversed the findings rendered by the High Court of Allahabad. 11. Even though the learned counsel for the appellants has tried to put it that the claim of a retired person for promotion cannot be considered and has relied on the above judgment of the Honourable Apex Court, the answer lies in the very same judgment that the first respondent herein was in service, holding a Government post, when he submitted his representation for promotion from the date when his juniors were promoted and therefore, his claim is very well maintainable. 12. Further, one thing that must be made clear is that the applicant/first respondent has stated in the petition filed by him before the Tribunal that he was given to understand about the seniority list only during the year 2003 and immediately thereafter, at the fag-end of his service, he has represented to the authorities concerned for redressal of his grievance and since the same has not evinced any fruitful result, he has approached the Tribunal below even during his service period. Now, during the pendency of these proceedings, the applicant has retired on 31.12.2006, but at the relevant point of time i.e. when his juniors were promoted, surpassing him, he was very well in service and he has ventilated his grievances even during his service period to the appellants and on their rejection, he approached the Tribunal in the year 2005 itself. Therefore, it cannot be said that his claim is not maintainable, since he initiated the proceedings before the Tribunal while he was very well in service. Therefore, the claim of the appellants on this ground needs to be rejected and is rejected accordingly. 13. The same reasoning would apply to the other judgment relied on by the learned counsel for the appellants, delivered by a Division Bench of this Court in UNION OF INDIA vs. K.VARGHESE AND OTHERS [2006 (5) CTC 668], to which one of us (Elipe Dharma Rao, J.) is a party wherein also it has been held that 'retired officers have no right for actual promotion.' 14. Throughout, a vague stand has been maintained on the part of the appellants that earlier the seniority was maintained on region basis. But, they have utterly failed to show any Rule or Regulation which permits/prescribes such a type of fixation of seniority. When there is no Rule or Regulation permitting the authorities to maintain https://hcservices.ecourts.gov.in/hcservices/ the seniority list region wise, that too without disclosing to anybody, we are not in a position to appreciate the action taken on the part of the appellants. 15. Though on the part of the Administration, it has been contended that they are regularly publishing the seniority lists and circulating among the staff members, no scrap of paper has been produced before us to show that the copies of the so called region- wise seniority lists were furnished to all the employees, including the applicant. Had there been such circulation of the seniority lists among the staff members, they would have been circulated to the staff members only after getting proper acknowledgments, which is absent in the case on hand. In the absence of any material to substantiate the plea of the Administration that they are publishing the seniority lists regularly and are circulating them to the staff members, we are not in a position to accept the ipse dixit of the appellants. 16. Further more, the Recruitment Rules for the post of Stenographer Grade-III do not seem to provide for maintaining the region-wise seniority. The appellants organization being a very small organization with very few officers in the country, they should have considered all eligible Grade-III Stenographers, when the vacancy in the cadre of Grade-II Stenographer arose in New Delhi and thus the appellants should not have confined their selection to those in the North Zone only, especially when there are no Rules or Regulations permitting them to do so and apparently when more senior persons like the applicant are stagnated in the same cadre, without promotion. Since there is only one Central Institute at New Delhi, when a vacancy in the higher grade arose, the Administration should have taken into consideration the combined seniority list, but not the so- called region-wise seniority, particularly when it is their case that only at Delhi such Grade 'C' Stenographer post was created. Therefore, the contention of the appellants that since the vacancy arose at Delhi, they have considered only the Northern Zone candidates cannot be accepted, since it has worked hard against the senior most persons in the other Zones, like the applicant. It is not even the case of the appellants that they have called for willingness from the other zone candidates so as to be considered for the Grade C Stenographer post. When the applicant is admittedly the senior most person in the combined seniority list having entered the Department way back in the year 1969, surpassing him, a junior candidate, who entered the service much after him like Mr.Vijaypal Singh, who joined the Department only on 20.5.1987 i.e. nearly 18 years after the applicant was promoted by the appellants. This action of the appellants is very unfair, depriving the rights of the seniormost persons like the applicant in other zones. When, thus, the entire mistake lies only with the appellants in not preparing and publishing the seniority list, as is required under the service jurisprudence, they cannot be allowed to turn around and raise their little finger https://hcservices.ecourts.gov.in/hcservices/ against the applicant/first respondent as if his claim is barred by delay and laches. 17. On behalf of the first respondent/applicant, the judgment of the Honourable Apex Court in BAIJ NATH SHARMA vs. HON'BLE RAJASTHAN HIGH COURT AT JODHPUR AND ANOTHER [(1998) 7 SCC 14] has been relied on wherein it has been held that 'a retired employee, could have a valid grievance if any of his juniors had been given promotion from a date prior to his superannuation but he can not complain when promotions were made prospectively after his retirement.' 18. The applicant has also relied on another judgment of the Honourable Apex Court in UPSC vs. A.K.SALIM AND OTHERS [(2008) 11 SCC 495]. In this case, the Central Administrative Tribunal has directed consideration of respondent's case for induction to Indian Forest Service against single vacancy of 2006, well before respondent's retirement on 31.5.2007. The Government, however insisted on consideration of cases of all candidates for all the three vacancies for the year 2006 and in the meanwhile the respondent retired on 31.5.2007. In such circumstances, the Government was allowed to convene Selection Committee for all the vacancies as agreed to by all the parties but in order to protect respondent's interest, it was held that in the event of respondent's selection, intervening period to be regularised notionally w.e.f. 1.6.2007 and respondent to be accorded all benefits including monetary benefits. 19. From the analysis of the entire materials placed on record, we are able to see that the appellants are trying to justify their mistakes, rather misdeeds, some how or other and inventing reasons in that process. The subsequent action of the appellants in restructuring the cadre of non-secretariat stenographers, by re- fixing the grades III, II and I in the ratio of 40:40:20, by the OM No.22034/2/92-Estt(D), dated 6.8.1999 also does not in any manner augment their case, since it cannot rectify the damage caused to the applicant. When the combined seniority list has been prepared as per the recommendations of the V Pay Commission and when the anomalies have been pointed out, like the one of the applicant/first respondent, the appellants have not taken any action to rectify the anomalies. It is but natural for a senior most person like the applicant/first respondent to take the objection since his junior most persons were already promoted long back. When such an anamoly has been pointed out by the applicant/first respondent, the appellants, in all fairness, should have taken steps to grant atleast the monetary benefit to the applicant. Probably, such pathetic instances also would have been brought to the notice of the V Pay Commission resulting in the recommendation to maintain a common seniority list, wherever this type region wise lists are being maintained, without any authority and much detrimental to the interest of the working class. https://hcservices.ecourts.gov.in/hcservices/ 20. For no rhyme or reason, the applicant has been denied his due, which must be conferred on him. Only on thorough scrutiny of the entire materials placed on record the Tribunal has arrived at unerring conclusion of upholding the claim of the applicant, wherein we find no illegality or irregularity to cause our interference. Therefore, necessarily, this writ petition filed by the Administration must fail. Accordingly, this writ petition is dismissed. No costs. The appellants are directed to implement the order of the Tribunal within twelve weeks from the date of receipt of a copy of this order. Consequently, M.P.No.1 of 2006 is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Rao To The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600104. + 1 c.c. to Mr. V. Vijay Shankar, Advocate. S.R.No.33366. + 1 c.c. to Mr. R. Shanthakumar, Advocate. S.R.No.32963. Order in W.P.No.43086 of 2006 AKR (CO) GSK 07.08.2009. https://hcservices.ecourts.gov.in/hcservices/