Union of India vs Rashtriya Karmachari Union (I) and Others

V.A. Naik, J.

Since the issue involved in these petitions is similar and they arise from similar orders passed by the Central Administrative Tribunal, they are heard together and are decided by this common judgment.

By these petitions, the Union of India challenges the orders passed by the Central Administrative Tribunal directing the petitioner to consider promoting the respondents to H.S. Grade-II to start with and, thereafter, to H.S. Grade-I based inter alia on their upgradation on notional basis to the skilled category with effect from 1981, provided they satisfy the other eligibility criteria already laid down for such promotions.

The respondents had filed Original Application before the Central Administrative Tribunal seeking a direction to the petitioner to promote the respondents to H.S. Grade-II with effect from 15.10.1984 and to grant further promotions from H.S. Grade-II to H.S. Grade-I. A direction was sought by the respondents to the petitioner to amend the seniority list dated 1.3.1994 by incorporating the names of the respondents at appropriate places in the seniority list.

The respondents were brought from semi skilled to skilled category in the year 1981. According to the respondents, some similarly situated employees were notionally promoted by the order dated 1.7.1985 to H.S. Grade-II with effect from 15.10.1984, whereas the respondents were denied the said benefit. The petitioner resisted the claim of the respondents. According to the petitioner, it was necessary for the skilled employee to put in three years of service in H.S. Grade-II to seek promotion on H.S. Grade-I. The petitioner pleaded before the Tribunal that the promotions could be effected only with the availability of the vacancies. The petitioner had, however, not placed any material before the Tribunal to show that certain conditions were required to be satisfied for promotion to H.S. Grade-II and, thereafter, to H.S. Grade-I. The petitioner had also not pointed out the vacancies in the H.S. Grade-I. Since the Tribunal found that similarly situated persons were granted the benefit of promotion to H.S. Grade-II with effect from 1984, whereas the respondents were granted the benefit in the year 1993 with effect from a subsequent date in 1984, the Tribunal directed the petitioner to consider the respondents for promotions to H.S. Grade-II to start with then to H.S. Grade-I.

Shri Rohit Deo, the learned A.S.G.I. appearing on behalf of the petitioner, submitted that the respondents are already promoted to H.S. Grade-II and their promotions to H.S. Grade-I would depend on the available vacancies and subject to fulfillment of the eligibility criteria by the respondents. It is stated that merely because the petitioner did not point out the number of vacancies in H.S. Grade-II to H.S. Grade-I at the relevant time, a direction could not have been issued to the petitioner to consider promoting the respondents to H.S. Grade-II and, thereafter, to H.S. Grade-I, specially when it was not the case of the respondents that vacancies were available in H.S. Grade-I and the respondents had not joined the skilled employees promoted to H.S. Grade-II before the respondents, as party respondents to the original application. It is stated on the basis of the Circular filed by the respondents that it is most likely that a Departmental Promotion Committee would be required to consider, whether the respondents or any other skilled employees in H.S. Grade-II are entitled to be promoted to H.S. Grade-I.

Shri V.D. Raut, the learned counsel appearing on behalf of the respondent No. 1, submitted that the Tribunal had rightly allowed the Original Application filed by the respondents, as the petitioner had treated the respondents differently and had declined to grant the benefits granted to the other similarly situated employees by the orders passed in 1985. It is stated that the seniority list prepared by the petitioner in March, 1994 was liable to be modified and it was necessary for the petitioner to place the respondents in the seniority list as per their seniority. It is stated that though the respondents had not pointed out the vacancies in H.S. Grade-I, as the respondents are eligible for their upgradation, the petitioner should consider upgrading them to H.S. Grade-I. It is stated that the relief sought by the respondents cannot be denied merely because the respondents had not joined the persons, who are placed above the respondents in the seniority list, published in the year 1994.

On hearing the learned counsel for the parties, it appears that the Tribunal was justified in directing the petitioner to consider upgrading the respondents from H.S. Grade-II to start with and then to H.S. Grade-I, provided they satisfy all the eligibility conditions laid down for such upgradation. Since the Tribunal had observed in para 4 of the impugned order that it was not necessary for the respondents to pass the trade test for seeking upgradation to H.S. Grade-II, the Tribunal was justified in observing that the petitioner could not have insisted on passing the trade test for promotion to H.S. Grade-II. However, there is nothing in the impugned order to show that passing of trade test was not necessary while seeking upgradation to H.S. Grade-I. Hence, the observation made in para 8 of the judgment that the petitioner should not insist that the respondents should pass the trade test would not apply while considering their upgradation to H.S. Grade-I. We also find much force in the submission made on behalf of the petitioner that the seniority list prepared in the year 1994 cannot be disturbed after a period of more than 20 years, specially when the persons who were placed above the respondents in the seniority list were not joined by the respondents as parties to the original application. It would be, therefore, necessary in the circumstance of the case to modify the orders passed by the tribunal and direct the petitioner to consider promoting the respondents from H.S. Grade-II to H.S. Grade-I if they are not promoted in H.S. Grade-I as yet, by considering the available vacancies in the said grade and if the respondents comply with the eligibility criteria for promotion to H.S. Grade-I. It is informed to this court that, except 3-4 respondents, all other respondents have retired and if departmental promotion committee has to consider the performance of the respondents, the same cannot be assessed, after their retirement. We are of the view that the seniority list should not be disturbed at this stage, specially when the respondents had not joined the persons placed above the respondents in the seniority list as parties to the original application. Also, we find that the Tribunal has decided the matter only on the ground of parity without considering what was the criteria for upgradation to H.S. Grade-II and H.S. Grade-I.

In view of the aforesaid, the writ petitions are partly allowed. The orders of the Tribunal are modified. The petitioner should consider the respondents for promotions to H.S. Grade-I, if they are not promoted as such till date, provided they satisfy the eligibility criteria and provided there were vacancies for their upgradation/promotion at the relevant time. The said upgradation/promotion could be made only if there is no hurdle of the departmental promotion committee assessing the performance of the respondents as most of them stand retired. Rule is made absolute in the aforesaid terms, with no order as to costs.