AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
68 paragraphs · 1,480 wordsP.K. Misra, J.—The Regional Provident Fund Commissioner has filed this writ petition against the order of the Central Administrative
Tribunal, whereunder the Tribunal, while allowing O.A. No. 308 of 2003 filed by the present Respondent No. 2, observed that Respondent No. 2
is entitled to be considered for the purpose of promotion under Time-Bound Promotion Scheme, dated 17.3.1992.
The brief facts are as follows:-
The present Respondent No. 2 was appointed as Lower Division Clerk in the Army Head Quarters, New Delhi, in the year 1982. Subsequently,
he was promoted as Upper Division Clerk in the said organisation on 18.1.1989. However, thereafter, on his own request he was appointed on
transfer as Lower Division Clerk under the present petitioners'' organisation by order dated 8.4.1991 and at that stage he was treated as a fresh
recruit in the Department. Subsequently, he was promoted to the post of Upper Division Clerk on 8.9.1995. Thereafter, the present respondent
No. 2 filed an application for being considered for the benefit of One Time Bound Promotion Scheme, dated 17.3.1992, which had been given
effect from 1.1.1992. The provision contained in the scheme is to the following effect:-
...All Upper Division Clerks who have completed 17 years of Clerical Service in each region as on 31.12.1991 will be placed in the next higher
grade i.e. Rs. 1400-2300 on non-functional basis. The number of Upper Division Clerks to be placed on higher grade in each region is furnished in
Column-3 of Annexure ''A'' on the basis of the information supplied by each region.
The Respondent No. 2 made representation to the appropriate authority for giving benefit of such scheme on completion of 17 years of clerical
service by taking into account his earlier service rendered in Army. However, such representation was turned down by order dated 8.4.2002.
Thereafter, the present Respondent No. 2 filed O.A. No. 308 of 2003 before the first respondent Tribunal. The Tribunal by referring to several
decisions of the Supreme Court has observed that the past services rendered by Respondent No. 2 in clerical capacity should also be considered
for the purpose of conferring the benefit under the Scheme dated 17.3.1992 and accordingly the Tribunal had given a direction to the present
petitioners to consider the question of grant of such benefit to the present Respondent No. 2. Such direction is being challenged in the present writ
petition.
The main contention raised by the petitioners is to the effect that as per the initial order of appointment of the present Respondent No. 2, such
appointment was considered as fresh appointment for all purposes and it was specifically indicated that such person will not be entitled to service
benefits such as seniority, leave, pension, etc., which had been earned in his previous service. It is further indicated that such employee shall be
considered as a fresh recruit and the seniority in the cadre of Lower Division Clerk may be reckoned from the date of his appointment under the
petitioners organisation. Learned counsel for the petitioners has vehemently submitted that Respondent No. 2 having not completed 17 years of
clerical service under the Regional Provident Fund Commissioner, he is not entitled to the benefits contemplated under the Scheme.
Learned counsel appearing for Respondent No. 2, on the other hand, has supported the reasonings given by the tribunal and supplemented his
contentions by placing reliance upon the decision of the Supreme Court reported in Union of India (UOI) and Another Vs. V.N. Bhat, .
Having heard the learned counsels appearing for the parties and having gone through the relevant materials on record, we are of the considered
opinion that the order of the Tribunal does not call for any interference. The Tribunal has referred to the main intention of introduction of such a
Scheme, which was introduced with a view to avoid any stagnation and avoid any frustration. As a matter of fact, while considering a similar
matter, the Supreme Court in Union of India (UOI) and Another Vs. V.N. Bhat, has observed as follows:-
The submission of the learned counsel for the appellants in short is that having regard to the admitted fact that the respondent herein has not
completed 16/26 years in the postal service, the One Time-Bound Promotion Scheme or BCR Scheme is not applicable in his case. The fact that
the respondent herein 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 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, namely, A.P. State Electricity Board and Others Vs. R. Parthasarathi and Others, , Scientific Advisor
to Raksha Mantri and Another Vs. V.M. Joseph, and Smt. Renu Mullick Vs. Union of India and another, .
The aforementioned decisions have been followed by this Court in Dwijen Chandra Sarkar and Another Vs. Union of India and Another, in the
following paras: SCC opp.124-125, paras 14 & 17
The words ''except seniority'' in the 1983 circular, in our view, mean that such a benefit of a higher grade given to the transferees will in no way
affect the seniority of employees in the P&T Department when the turn of the P&T employees comes up for promotion to a higher category or
post. The said words ''except seniority'' are intended to see that the said persons who have come from another Department on transfer do not
upset the seniority in the transferee Department. Granting them higher grade under the Scheme for time-bound promotion does not, therefore,
offend the condition imposed in the transfer order. We are, therefore, of the view that the appellants are entitled to the higher grade from the date
on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Rehabilitation
Department and the P&T Department.
...
On the facts of the present case and especially in view of the aforesaid decisions, we are of the view that when the transfer is in public interest
and not on request, the two employees transferred cannot be in a worse position than those in the above rulings who have been transferred on
request and who in those cases accepted that their names could appear at the bottom of the seniority list. Even in cases relating to request
transfers, this Court has held, as seen above, that the past service will count for eligibility for certain purposes though it may not count for seniority.
In our opinion, the ratio of the aforesaid decision, which has referred to several earlier decisions of the Supreme Court, is squarely applicable to
the present case.
Having regard to all these aspects, we do not find any illegality in the order passed by the Tribunal. Moreover, the order of the Tribunal appears
to be in the aid of substantial justice. Even assuming that there is some flaw in the order passed by the Tribunal, since substantial justice had been
rendered, we do not think this is a fit case where the order of the Tribunal should be interfered with in exercise of jurisdiction under Article 226 of
the Constitution. The present petitioners are directed to implement the order of the Tribunal. Learned counsel appearing for the petitioners has
requested some time for complying with the order. We direct that the order should be complied with within a period of three months from the date
of receipt of copy of this order. The writ petition is accordingly dismissed. No costs.