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CASE NO.: Appeal (civil)  9169 of 1996

PETITIONER: Om Prakash Sood                                          

RESPONDENT: Vs. Union of India & Anr.                                    

DATE OF JUDGMENT: 26/08/2003

BENCH: M. B. Shah & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T  

Dr. AR. LAKSHMANAN, J.

The short but core point for consideration by this Court in this appeal  isâ\200\223 (a)     when admittedly the appellant had been paid the salary of  Technical Assistant till the last day; (b)     when he had been signing the attendance register only as  Technical Assistant which was authenticated by two gazzetted  officers including the Deputy Manager of the respondent  organization; (c)     When the appellant had never worked as Key Board Operator  on regular basis; (d)     When at the time of exercising his option to function as Key  Board Operator, the appellant clearly spelt out that he reserves  his right to revert back as Technical Assistant in accordance  with the practice in vogue in respect of other supervisory posts;

How far is the Central Administrative Tribunal right in holding that the  respondents are right in their contention that the appellant was promoted as  Key Board Operator and his pay as Key Board Operator would be drawn and  paid to him in due course and he should superannuate on attaining his age of  58 years instead of 60 which is for Technical Assistant.

In other words, when an individual has not served in a particular post  but had been serving in a lower post can the respondent superannuate the  appellant on the basis of the post not held.  

The short facts of the case are as follows:-

The appellant had been working as Technical Assistant since 1971  and the age of superannuation of Technical Assistant is 60 years.  In late  eighties, Department introduced Phototype setting Key Board Operator posts.   The age of superannuation of Key Board Operator is 60 years, later on  reduced to 58 years.  In 1989 the appellant was promoted on ad hoc basis as  Key Board Operator but was reverted as he did not qualify in the trade test in  Hindi.  Again, in 1993 after he qualified in the trade test, he was offered the  post of Key Board Operator and the appellant had stated that he reserved his  right to revert as Technical Assistant as such a reversion from supervisory  grade to workmen grade was permissible in other trades.

All along the appellant had been working as Technical Assistant and  had been drawing the salary as Technical Assistant only, and his signing the  attendance register as Technical Assistant was authenticated by the  Technical Officer and the Deputy Manager till December, 1994.  As in August,  1994, the respondents issued an order indicating the superannuation of the  appellant as 31.12.1994, on his attaining the age of 58 years, and the

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appellant vide his letter dated 08.09.1994 invited their attention to his  representation dated 28.12.1993 whereby he had stated that he would be  accepting the post of Key Board Operator subject to the condition that he is  permitted to revert back to the post of Technical Assistant on his attaining the  age of 58 years.  The respondents, were, therefore, requested to reconsider  their decision.  However, since there was no reply, the appellant again on  07.11.1994 and 15.11.1994 requested them to consider his request.  But  there was once again no information, which compelled the appellant to move  the matter before the Assistant Labour Commissioner praying for a direction  to the respondent to give a reply to the appellant to his request.  Before the  Assistant Labour Commissioner, the respondents submitted that the appellant  had not given any unequivocal refusal to take up the post of Key Board  Operator.  Hence, the appellant gave his unequivocal refusal to hold the post  of Key Board Operator vide his letter dated 16.12.1994 and the Assistant  Labour Commissioner too gave a direction to the respondents to give a reply  to the appellant’s representation.   

As even till 28.12.1994, there was no reply which prompted the  appellant to move the matter to the Central Administrative Tribunal  contending that he never accepted the post of Key Board Operator and his  original representation contained only conditional acceptance on knowing the  mind of the respondents which they spelt out before the Assistant Labour  Commissioner, the appellant had clearly given his refusal to accept the post  of Key Board Operator.

The Tribunal, however, rejected all the contentions of the appellant  and accepted those of the respondents that just because the appellant had  been signing the attendance register it does not mean that he had worked as  Technical Assistant; that if his pay as Key Board Operator has not been  claimed, the same would be claimed and given to him; that there is no  question of conditional acceptance and hence his request for reverting back  cannot be acceded to.

Thus, the order of the Central Administrative Tribunal has been  challenged as erroneous.    

The respondents filed counter affidavit through its Manager,  Government of India, Press denying the allegations contained in the special  leave petition/appeal.  According to the respondent, the appellant along with  others as per his request was trade tested on 10.08.1993 which he duly  qualified and appointed to the post of P.T.S. Key Board Operator w.e.f.  27.12.1993, wherein it was specified in clear-cut terms that he shall not be  allowed to revert back to his erstwhile post, once he is appointed as P.T.S.  Key Board Operator.  It is further submitted that the appointment of the  appellant as P.T.S. Key Board Operator is very clear and does not leave any  room for accepting his appointment conditionally.  However, the appellant  accepted the post vide his application dated 28.12.1993 instead of submitting  an out-right refusal to accept the same, due to unfavourable conditions as  stated by him, attached to the post and he also exercised his option for  fixation of his pay in the new scale, vide application dated 25.01.1994 which  is available to the persons who are appointed on regular basis.  Thus, it is  submitted that the contention of the appellant that he accepted to the post of  P.T.S. Key Board Operator conditionally is, therefore, nullified.  It is further  submitted by the respondents that with the abolition of the IBM Section where  the appellant along with his colleagues was working as Technical Assistant  and that of the post of Technical Assistant itself the position held by the  appellant also stands abolished as soon as he vacated the post.  However, at  the fag end of his career, the appellant submitted his intention to revert back  to his erstwhile post of Technical Assistant, vide his application dated  15.11.1994 which was duly considered but his request could not be acceded  to and that the appellant was accordingly communicated of the decision vide  office memorandum dated 02.01.1995.

The appellant filed a detailed rejoinder to the counter affidavit filed by  the respondents.  We heard Mr. K.B. Sounder Rajan, learned counsel for the

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appellant and Mr. P.P. Malhotra, learned senior counsel for the respondents.   Our attention was drawn to the averments contained in the special leave  petition, counter affidavit and rejoinder affidavit and also the various  Annexures filed by the appellant herein.  We have also perused the order  passed by the Central Administrative Tribunal.  The Tribunal in its order dated  12.05.1995 held as under:-

"(a)    The memorandum of promotion clearly stipulated that  applicant would not be allowed to seek reversion.

(b)     The stand of the respondents is that the post of Technical  Assistant stands abolished as and when the incumbent gets  promoted as KBO.

(c)     The two posts of Technical Assistants maintained were of  provisional basis occupied by two incumbents who could not  qualify in the Trade Test, whereas the petitioner qualified in  the Trade Test and, therefore, there was no post of Technical  Assistant available to him.

(d)     The signing in the Attendance Register as Technical Assistant  does not mean that the petitioner was holding the post of  Technical Assistant.

(e)     As regards pay granted as of Technical Assistant only, the  respondents were preparing bills to pay the arrears of pay and  allowances being the difference but in the pay as Key Board  Operator and that as Technical Assistant."  

On the above, the Tribunal dismissed the appeal.  The appellant also  filed a review application before the same Bench which was also dismissed  by order dated nil, copy of which is annexed and marked as Annexure XIV to  this appeal.  Both the learned counsel reiterated their respective contentions  which had been taken by them in their special leave petition and the counter  affidavit.

The appellant was appointed and subsequently confirmed as  Technical Assistant on which post he was working since 09.08.1971.  He is  entitled to retire with the rights and liabilities governing that post which at the  moment permits an incumbent to the post of Technical Assistant to  superannuate on reaching the age of 60 years and not on reaching the age of  58 years.  The appellant had taken to the trade test of Key Board Operator in  Hindi and English only to prove his proficiency that even though without  practice he is an efficient operator on the Key Board Off-set Photo Type  Setting Training and there was no acceptance, implicit or otherwise that he  accepted the post of Key Board Operator on the terms and conditions offered  by the respondents.  On the contrary, the appellant had clearly kept the  counter condition that he will accept the offer of appointment to the post of  Key Board Operator only if he was allowed to revert to his original post of  Technical Assistant and retire after reaching the age of 60 years and not at  the age of 58 years.  However, the respondents are taking advantage of their  own wrong because on the one hand they have neither replied to this  condition put forward by the appellant, on the other hand, they have neither  fixed his pay as Key Board Operator nor took work from him as Key Board  Operator.  On the contrary, the appellant was allowed to sign the attendance  register as Technical Assistant drawing salary and allowances as Technical  Assistant and was even allowed an increment of Rs.40/- on 01.03.1994  raising his pay from Rs. 1920/- to Rs. 1960/- in the pay-scale of Rs. 1320- 2040.  Since the appellant continued to work as Technical Assistant and has  refused to accept the post of Key Board Operator and continued to serve till  the last day of reaching his superannuation i.e. 58 years as available to the  post of Technical Assistant and no effort to cut-short his career and make him  retire even by a day earlier than 60 years would amount to negation of legally  protected rights.  The notice dated 26.08.1994 which falls in this category also  and, therefore, we are of the opinion that the notice of retirement dated

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26.08.1994 is liable to be quashed and set aside.  In the instant case, the  respondent had retired the appellant treating him as Key Board Operator  whereas the documentary evidence annexed to the special leave petition  would all prove that he was holding the post of Technical Assistant and as  such the date of retirement only on his attaining the age of 60 years and not  the age of 58 years.

We have perused the Annexures filed by the appellant along with the  special leave petition.  A perusal of the Annexures show that the appellant  was originally treated ad hoc Key Board Operator (in short "KBO") on  26.09.1989 when the age of superannuation of KBO was 60 years.  As there  was a move to revert the appellant on account of not qualifying in the Hindi  test, he did agitate before the Tribunal in O.A. No. 1239 of 1990 which was  decided on 24.07.1992 with a direction to the respondent to afford two  opportunities to the appellant to qualify in the relevant test.  When the  appellant gave the test and qualified in the same, by the time the age of  superannuation of KBO was brought down to 58 years.  Obviously, the  appellant who has been holding a substantive post of Technical Assistant the  age of superannuation of which is 60, would not want to opt for KBO for a  marginal short time increase in his pay and allowances which ultimately would  result in his superannuation at 58 years.  Instead, if he continued as  Technical Assistant as the same would enable him to serve up to 60 years,  when his pay was to touch the same level, if not more.  It is on account of this  reason that when an offer of appointment as KBO was issued vide Annexure- II, the appellant had clearly indicated that he never applied for appointment as  KBO and he gave the test only to prove his efficiency in the Hindi test.  Again,  citing the Rule position as to the date of superannuation of 60 years in the  post of Technical Assistant, the appellant accepted the offer of appointment  as KBO clearly stating that he shall be reserving his right to revert back to the  substantive post of Technical Assistant on his completing 58 years of age  rather than retire at 58 as KBO.  It is also seen from the Annexures that till  December, 1994,  the appellant had been signing the Attendance Register  only as Technical Assistant duly authenticated by the higher authorities  including the Deputy Manager (Annexure-IV).

When a Certificate of pay was requested for, the same was given by  the respondents for the month of October,1994 on 08.11.1994 clearly spelling  out the designation of the appellant as Technical Assistant (vide Annexure-V)  Thus, though the respondents claimed that on account of new technology  posts of KBO were created, the appellant was retained only as Technical  Assistant and it is pertinent to notice here that in addition to the appellant  herein two more persons were functioning as Technical Assistant as could be  found from a reply in the Industrial Disputes Application No. nil of 1994,  wherein the respondents have clearly stated, that there are two Technical  Assistants still holding the post of Technical Assistant because they are not  interested to be absorbed as PTS KBOs.

Mr. P.P. Malhotra, learned senior counsel, submitted that since the  condition was put when the appellant was appointed to the post of KBO, he  shall not be allowed to revert back.  True, the offer of appointment contained,  inter alia, a condition to the said effect.  However, the appellant gave a  conditional acceptance in view of practice prevailing reserving his right to be  reverted to the post of Technical Assistant.  The documents filed in this case  show that the appellant was signing the attendance register as Technical  Assistant and he was paid his allowance till the date of his retirement, only  the pay as was admissible for a Technical Assistant.  This, in our opinion,  would show that the Department had not accepted the conditional acceptance  given by the appellant and kept him as a Technical Assistant.  When the offer  of appointment was stated to be very clear and does not leave any room for  accepting the appointment conditionally, the condition reserving the right for  reversion would mean a conditional acceptance which was either to be  outrightly rejected by the Department by a specific order or was to be  accepted with the said condition in view of prevailing practice.  In either way,  it is beneficial to the appellant.  The records will show that whereas the  appellant was allowed to continue as Technical Assistant during the entire

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period and was paid his pay and allowances as was paid to Technical  Assistant.  He was, however, retired on completing the age of 58, treating him  as KBO which is totally illegal.

The learned senior counsel for the respondent submitted that the  appellant had not made any case for interference by this Court in the exercise  of its extraordinary jurisdiction under Article 136.  This Court has held in a  number of cases that the powers of this Court under Article 136 are  unfettered and are invoked invariably when this Court reaches the conclusion  that a person has been dealt with arbitrarily.  The case on hand is one such  wherein the Department treated the appellant as a Technical Assistant all  through but superannuated him at 58 while the age of superannuation for  Technical Assistant is 60.

It is further submitted by the learned senior counsel for the respondent  that the reversion was not admissible in the case of the appellant.  This  submission has no force.  Neither the appointment letter indicates anywhere  that the promotion offered was temporary or on ad hoc or on regular basis nor  have the posts of Technical Assistant being abolished.  Hence it is futile to  contend that reversion was not admissible in the case of the appellant.  The  appellant has been singled out as could be evident from the fact that some  Compositors Grade-I who were promoted as Section Holder in November,  1993 were permitted to be reverted to the post of Compositors Grade I w.e.f.  October, 1994.  Along with the rejoinder, the appellant has annexed the office  orders dated 22.11.1993, 24.06.1994 and 21.10.1994 as Annexure-II.

When the appellant had made his intention clearly to accept the  promotion as KBO only on a specific condition of his exercising his right to  revert, only two options are left to the respondent, namely, either to accept  the conditional acceptance or to permit the appellant to continue as Technical  Assistant.  In the case of the appellant, the latter only prevailed throughout as  could be seen from Annexures IV and V.  The appellant was treated only as a  Technical Assistant by the respondents.

It was argued by the learned counsel for the respondent that the entire  post of Technical Assistant stand abolished since 1988.  This was denied by  the appellant.  The appellant pointed out that two Technical Assistants who  could not qualify test were not promoted as KBO and were still holding on the  post of Technical Assistant and that they are functioning as Technical  Assistants despite crossing 58 years of age.

As regards the contention of the respondent that a mere signing as  Technical Assistant does not given the appellant the right to serve in that  post, we are of the opinion that the same cannot be accepted in view of the  fact that if the appellant was working as KBO, the Higher Authorities cannot  permit the attendance register being signed as Technical Assistant through  out the disputed period.  Permitting signing of the attendance register as  Technical Assistant paying the salary as Technical Assistant, declaring the  designation as Technical Assistant even after 12 months of the so-called offer  of appointment as KBO and indicating in the PPO the salary and designation  of the appellant as Technical Assistant â\200\223 all this cannot be an inadvertent  mistake by the respondents.  In reality, the appellant was never treated as   KBO at all and all along he had been treated only as Technical Assistant. As noticed earlier, the appellant after submitting the conditional  acceptance continued to work only as a Technical Assistant.  He was taken  by surprise when in August, 1994 the appellant was issued with a letter  wherein his date of superannuation was indicated as 31.12.1994.  This letter  would mean that on the basis of the acceptance given by the appellant, the  appellant was promoted as the KBO in which event his right to revert back as  Technical Assistant is fully secured.

For the foregoing reasons, we are of the opinion that the impugned  action of the respondent should be declared as devoid of merit and the  appeal is liable to be allowed.  The appellant shall be deemed to have  continued in service and his pension and retiral benefits should be fixed

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accordingly.  However, he shall not be entitled to get any salary after his  retirement on 31.12.1994.  The difference of retiral benefits should be given  within eight weeks from today with 6 per cent interest.

In the result, the judgment and order dated 12.05.1995 in O.A. No.  2571 of 1994 passed by the Central Administrative Tribunal, Principal Bench,  New Delhi is set aside and this appeal stands allowed as indicated above with  cost of Rs.5,000/- to be paid to the appellant by the respondents.