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PETITIONER: SCIENTIFIC ADVISOR TO RAKSHA MANTRI & ANR.

       Vs.

RESPONDENT: V. M. JOSEPH

DATE OF JUDGMENT:       14/01/1998

BENCH: S. SAGHIR AHMAD, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD, J.      The respondent  was appointed as a Lower Division Clerk on  November   15,  1969   in  the   Ministry  of   Defence. Subsequently, in  the same Department, he was appointed as a Store Keeper  on 27th  April, 1971  in the  Central Ordnance Depot, Pune.  He got  the status  of quasi permanent on 27th April, 1974  and became  permanent with effect from 1st May, 1974. The  respondent made  a request for his  transfer as a Store   Keeper   in   the   Naval   Physical   Oceanographic Laboratory(NPOL),   Cochin,    which   was    accepted    on compassionate  ground   an  on   6th  June,   1977,  he  was transferred to  that post,  but was  placed at the bottom of the seniority  list of  store Keepers there. on 22nd August, 1980, the  respondent was  promoted to  the post  of  Senior Store Keeper.      On 15th  July, 1980, a new post of Senior Store Keeper, Grade-I was  created as  an intermediate  grade between  the posts of  Senior Store  Keeper and Store Superintendent. One A.K. Anujan,  who was the immediate senior of the respondent in the  Grade of  Senior Store  Keeper was  promoted to this intermediate post  of Senior  Store keeper, Grade- I on 31st August, 1982.  The respondent  raised a claim that he should have been  promoted as  Senior Store Keeper on 31st January, 1978 instead  of 22nd  February, 1980  and should  have been further promoted  to the post of Senior Store Keeper, Grade- I, on  31st August,  1982 along  with his  next senior  A.K. Anujan. When  this claim was not entertained, the respondent approached the  Kerala High  Court by  a Writ  Petition (No. O.P. 10013  of 1982-J)  which was  allowed on  30.7.85 and a direction was  issued to  the present appellants to consider the claim of the respondent for ante-dating his promotion on ad hoc  basis by  applying the  same rules and principles on which, his  immediate senior,  A.K. Anujan,  was promoted to the post of Senior Store Keeper, Grade-I.      In pursurance  of the  above judgment,  the case of the respondent  was   considered  by   the  Review  Departmental Promotion Committee  on 15th  October, 1985,  which was  the opinion that,  since the respondent had completed 3 years of regular service  as Store  keeper commencing  from 6th June,

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14977, only  on 7th  June, 1980, he could not be promoted as Store Keeper earlier than 1980. With regard to his promotion to  the   post  of   Senior  Store   Keeper,  Grade-I,   the Departmental Promotion  Committee was of the view that since under the  Recruitment Rules, the respondent had completed 3 years of regular service as Senior Store Keeper only on 23rd August, 1983,  the respondent  could not  be considered  for that post  as that post had, in the meantime, been taken out of the  purview of  the Departmental Promotion Committee and the Recruitment and Promotion Rules with regard to that post had ceased to exist with effect from 7th November, 1981.      On the  basis  of  the  decision  of  the  Departmental Promotion Committee,  the order dated 30th October, 1985 was passed by  the  appellants,  which  was  challenged  by  the respondent  before   the  Central  Administrative  Tribunal, madras Bench,  which by  its judgment  dated 23rd  February, 1988,  has   allowed  the  claim  petition  and  issued  the following directions:-      " (a)  The applicant’s  service  as      Store Keeper  at Pune at least from      1.5.1974  when   he  was   made   a      permanent Store  Keeper  should  be      reckoned as  qualifying service for      the  purpose   of  eligibility  for      promotion as Senior Store Keeper at      NPOL, Cochin.      (b) The  Review DPC should consider      the applicant for ad-hoc of regular      promotion  as   the  case   may  be      against  ad-hoc/regular   vacancies      between 31.1.78 and 22.8.80.      (c)   On    the   basis    of   the      recommendations of  the Review  DPC      III, if  any, the  applicant should      be promoted  as SSK   either on ad-      hoc or  on regular  basis by  ante-      dating his promotion from 22.8.80.      (d) The respondents should identify      the un-filled  posts of SSK-I  from      1982  to   date  and  consider  the      applicant for  promotion  as  SSK-I      with effect from the date he can be      deemed to  have put  in three years      of regular  service as  SSK  either      from 22.8.80  or  on  earlier  date      with effect  from which  the Review      DPC recommends his name for regular      promotion as  per promotion  as per      (b) above."      From the  facts set  out above,  it will  be seen  that promotion was denied to the respondent on the post of Senior Store keeper  on the ground that he had completed 3 years of regular service  as Store  keeper on  7th June,  1980 and  , therefore, he  could not  be promoted  earlier than 1980. In coming to  this  conclusion,  the  appellants  excluded  the period of  service rendered by the respondent in the Central Ordnance Depot,  Pune, as a Store Keeper for the period from 27th  April,  1971  to  6th    June,  1977.  The  appellants contended that, since the respondent had been transferred on compassionate ground,  on his  own request  to the  post  of Store Keeper  at Cochin  and was placed at the bottom of the Seniority list, the period of 3 years of regular service can be treated  to commence  only from  the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the  respondent had  already acquired  the  status  of  a

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permanent employee at Pune where he had rendered more than 3 years of  service as  a Store Keeper. Even if an employee is transferred at  his own  request, from one place to another, on the  same post,  the period of service rendered by him at the earlier  place where  he held  a permanent  post and had acquired  permanent   status,  cannot   be   excluded   from consideration for determining his eligibility for promotion, though he  may  have  been  placed  at  the  bottom  of  the seniority list  at the  transferred place.  Eligibility  for promotion cannot  be confused with seniority as they are two different and distinct factors.      This Court in Union of India & Ors. vs. C.N. Ponnappan, AIR 1996  SC 764=  1996(1) SCC  524, has held that, where an employee  is   transferred  from  one  unit  to  another  on compassionate ground  and is  placed at  the bottom  of  the seniority list,  the service  rendered by him at the earlier place from  where he  has been  transferred,  being  regular service has to be counted towards experience and eligibility for promotion.      In view  of this  decision, with  which we respectfully agree, the direction of the Tribunal that the respondent may be promoted  to the  post of  Senior Store  Keeper  from  an earlier  date   and   the   further   direction   concerning respondent’s promotion  to the  post of Senior Store Keeper, Grade-I, do  not suffer  from any  infirmity. That being so, the appeal  has  no  merits  and  is  accordingly  dismissed without, however, any order as to costs.