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PETITIONER: DWIJEN CHANDRA SARKAR & ORD.

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT:       15/12/1998

BENCH: S. SAGHIR AHMED, & M. JAGANNADHA RAO.,

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT -------- M. JAGANNADHA RAO. ----------------- Two appellants who are  working  in  the  posts  and Telegraph  Department filed this appeal against the judgment of the Central Administrative Tribunal,  Calcutta  Bench  in O.A.  No.355  of 1987 dated 16.02.1988. By that Judgment the Tribunal dismissed the application filed by the  appellants. The  point  in issue is whether for the purpose of computing 16 years service for getting a  "time-bound  promotion".  as per   the   relevant   circular   of  the  Government  dated 17.12.1983, the appellants are entitled to count the service rendered by them in the  Rehabilitation  Department  of  the Government   of   India  prior  to  their  transfer  to  the Department of Posts and Telegraph.  The  Tribunal  has  held that  the  said  service  with  former  department cannot be counted and, therefore, the appellants are not  entitled  to the  time  bound  promotion unless they complete 16 years in the transferee department, namely P & T Department. The following are the facts: The appellants 1  and  2  were  appointed  as  Lower Division   Clerks   in  the  Department  of  Rehabilitation, Government of India on 18.11.1970 and 5.2.1965 respectively. Subsequently, on 7.12.76 the first appellant was transferred to the P  &  T  Department  in  public  interest  as  Postal Assistant  and  the second appellant was also so transferred on 13.12.1976 to the same department in public interest. The particular scheme which deals  with  time  bound promotion is dated 17.12.1983 and reads as follows:         "The scheme will come into effect  from  30.11.1983.         All officials belonging to basic grades in Group ’C’         and  Group  ’D’ to which there is direct recruitment         either from  outside  and/or  by  means  of  limited         competitive  examination  from lower cadres, and who         have completed 16 years of  service  in  that  grade         will be  placed in the next higher grade.  Officials         belonging to operative cadres listed in the Annexure         ’A-1" to the agreement will  be  covered  under  the         scheme."

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From  the  aforesaid  circular, it is clear that the Scheme  has  come  into  force  w.e.f  30.11.1983  and   all officials belonging to the basic grades in Group ’C’ and ’D’ to  which  there is direct recruitment whether from out side and/or by means of limited completive examination from lower cadres, will get time-bound promotion if they have completed 16 years service in the grade.  It is also  clear  from  the same  circular  that  Postal  Assistants in pay scale of Rs. 260-480 will, w.e.f.  30.11.1983 be placed in the  scale  of Rs.   625-640 if they have completed 16 years service in the grade of Rs.  260-480.  The question,  however,  is  whether the  appellants  can  be considered to be having 16 years of service in the  grade?    The  respondent  Union  of  India, however,  relies upon the conditions mentioned in the orders of transfer of the appellants to the P & T  Department  made in 1976.    The  said  order  reads as follows to the extent relevant for the present purpose; that  the  employees  will be:         "treated  as  transferred in the public interest and         their past service is counted for all purposes (i.e.         fixation of pay, pension and gratuity  etc.)  except         their past service is counted for all purposes (i.e.         fixation  of  pay, pension and gratuity etc.) except         seniority." The respondents have also  relied  upon  a  copy  of letter No.20/34/76-SPB  dated  31.3.1977 from the D.G.  P & T Calcutta in relation to the subject of appointment of surplus staff of Mana Camp.  The material portion of the said  letter reads as follows:         "Surplus personnel on  their  redeployment  in  your         circular  are  treated  as transferred in the public         interest and their past service is counted  for  all         purposes (i.e.      fixation  of  pay,  pension  and         gratuity) except seniority." The Tribunal by rejecting the case of the appellants held that the 16 years of service of the first appellant and 12   years  of  service  of  the  second  appellant  in  the Department of Rehabilitation could not be computed  for  the purpose  of  reckoning  16 years service as prescribed under the time bound promotion scheme. According to the  Tribunal, the service should be rendered in the particular grade while working   in  the  Postal  Department.  For  coming  to  the conclusion the Tribunal relied upon the word  "16  years  of service  in  that  grade"  mentioned  in  the circular dated 17.12.1983. It held as follows"         "From the reading of this circular particularly  the         DG  P  &  T  No.  31-26/83-PGI  dated  17.12.83  and         clarificatory orders, it is clear that the scheme is         applicable only to the regular P & T  employees  and         some of the basic operative cadres enumerated in the         original  order.  It  is  a  scheme which is not for         universal application to all the Central  Government         Employees  but is applicable only to a limited group         of employees within the P & T Department" The Tribunal also relied upon a letter No.  31-26/62 PEI dated 1.3.84 DG P & T which  clarified  that  the  order detailing the scheme would be applicable only to the regular appointees and not to those employees who were serving on an ad-hoc basis.    Reference  was  also made to another letter 6-19/84 SPB-II  dated  19.7.84  DGP&T  to  the  effect  that ex-servicemen  who  had surrendered their entire benefits of defence service would not be entitled to  avail  their  past service in the defence forces for the purpose of computation of the 16 years.  These were referred to by way of analogy. According  to  the appellants, the view taken by the

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Tribunal is wrong.  Several rulings of this Court are relied upon by the learned counsel for  the  appellants.    On  the other  hand,  the learned senior counsel for the respondent, Shri P.N.  Mishra points out that from the language  of  the circular  as  set out above, it is clear that the service of 16 years must be in the  relevant  P  &  T  Department  and, therefore,  any  service  rendered  by the appellants in the Rehabilitation Department  of  the  Government  cannot  help them.   The  scheme is scheme of the P & T Department and it specifically  required  the  service  in  a  grade  in   the Department.   The  learned  senior counsel submits that, the view taken by the Central Administrative Tribunal,  Calcutta Bench is the correct one. The   point   for   consideration   is  whether  the appellants are entitled  to  the  time  bound  promotion  by combining  their service in the Rehabilitation Department of Government  rendered  by   the   appellants   before   being administratively transferred to the P & T Department? It  is  to  be  noted  that  the  transfer  of   the appellants  from  the Rehabilitation Department to the P & T Department was not on their request but was expressly stated to be in the public interest.  But while doing  so,  it  was clarified  that  their  past  service  in the Rehabilitation Department would not count for’seniority’.  The  purpose  of this  restriction was that their transfer should not disturb the chances of promotion of those who were  already  working in the  P  &  T Department.  There is no doupt, that for the purpose of their regular promotions to higher posts in the P & T Department their seniority is to  count  only  from  the dated of  their  transfer  to  the  P  &  T department.  The transfer order  imposed  this  restriction.    We  are   not concerned with  the  validity of this restriction.  All that it means is that these two  transfers  will  not  alter  the existing seniority of those in the P & T Department. However, the  position  in  regard  to  ’time-bound’ promotions in  different.  Where there are a large number of employees in any department and where the employees are  not likely  to  get  their  comparatively  low-position  in  the seniority list, Government has found it necessary  that,  in order to remove frustration, the employees are to be given a higher  grade in terms of employments - while retaining them in the same category.  This is what is  generally  known  as the time  bound promotion.  Such a time-bound promotion does not affect the normal seniority of those higher up. If  that  be  the  true  purpose  of  a   time-bound promotion  which  is meant relieve frustration on account of stagnation, it cannot be said that the government wanted  to deprive  the  appellants  who  were  brought  into the P & T Department in public interest - of the benefit of  a  higher grade.  The frustration on account of stagnation is a common factor not only of those already in the P & T Department but also  of  those  who  are  administratively  transferred  by Government from the Rehabilitation Department to the P  &  T Department.   The  Government, while imposing an eligibility condition of  16  years  service  in  the  grade  for  being entitled  to  time-bound  promotion,  is  not  intending  to benefit only one section of employees in  the  category  and deny  it  to  another  section  of  employees  in  the  same category.  The common factor for all these employees is that they have remained in the same grade for  16  years  without promotions.   The  said  period is a term of eligibility for obtaining a financial benefit of higher grade. It the appellants are  entitled  to  the  time-bound promotion  by  counting  service  prior to joining the P & T Department, the next question is whether  treating  them  as

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eligible  for  time-bound  promotion  will conflict with the condition imposed in their transfer order, namely that these will not count their service for seniority purposes in the P & T Department. The  words " except seniority" in the 1983 circular, in our view means that such a  benefit  of  a  higher  grade given to the transferees will in no way effect 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. There  are atleast three precedents of this Court to support the principle enunciated above.  The  first  one  is Renu Mallick vs.    Union  of  India (1994 (1) SCC 373).  In that  case  the  appellant,  a  Lower  Division  Clerk,  was transferred   from   the   Central   Services   and  Customs Department, on  her  own  request,  to  the  Central  Excise Collectrate.  She  gave  an  undertaking in terms of Central Departmental instructions which said:         "the transferee will not be entitled  to  count  the         service  rendered  by her in the former Collectorate         for the purpose of seniority in the new charge." Now  for  purpose of promotion as Inspector, she had to put in a service of 5 years as UDC or a total service  of 13  years both as UDC and LDC, subject to minimum of 2 years as UDC.  When the appellants turn for promotion as Inspector came up she was denied  promotion  on  the  ground  she  was ineligible  because  she did not have the required number of years of service in the transferred department.   This  view was not   accepted.      It  was  held  that  seniority  and eligibility are different concepts.  It  was  directed  that the  appellant be given promotion as Inspector only when she would fall within the  zone  of  consideration  as  per  her seniority reckoned  in  the transferee department.  When her turn based  on  the  service  seniority  in  the  transferee department  arrived,  if  any question as to her eligibility for promotion should arise i.e.  whether she had 5 years  as UDC or a total of 13 years as UDC and LDC, for computing the said  period  of qualifying service, the past service in the Central Services  and  Customs  Department  should  also  be counted.  Kuldip Singh, J.  observed:         "We  are  of  the  view  that the Tribunal fell into         patent error in dismissing the  application  of  the         appellant.   A  bare  reading  of  para 2(ii) of the         executive instructions dated May 20, 1980 shows that         the transferee is  not  entitled  to  count  service         rendered  by  him/her in the former collectorate for         the purpose of seniority  in  the  new  charge......         But  when  she is so considered, her past service in         the previous collectorate cannot be ignored for  the         purposes  of determining her eligibility as per Rule         aforesaid.    Her   seniority   in   the    previous         Collectorate  is  taken  away  for  the  purpose  of         counting her seniority in the new  charge  but  that         has no reliance for judging her eligibility......"         .................................................

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       .................................................         "The rule no where says that the period of  5  years         and  13  years  is not applicable for an officer who         has  been  transferred  from  one  Collectorate   to         another on his own request." In Scientific Advisor for Raksha Manthri vs.    V.M. Joseph  (1998 (5) SCC 305) to which one of us (Saghir Ahmed, J.) was a party,  it  was  held  that  service  rendered  in another  department  helps  for  determining eligibility for promotion though it may not count for seniority.    In  that case,  the  employee  was  transferred  from the Ministry of Defence to the Central Ordinance Depot.    Then  he  made  a request  for  transfer  to  the Naval Physical Oceanographic Laboratory, Cochin. He was transferred to be placed  at  the bottom  of  seniority  list. It was held that he could still count his  past  service  for  purpose  of  eligibility  for promotion. It was observed:         "Even  if  an  employee  is  transferred  at his own         request, from one place to another on the same post,         the period  of  services  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." Again   in  A.P.  STATE  ELECTRICITY  BOARD  Vs.  R. PARTHASARATHI 1998(9) SCC  425,  a  government  servant  was transferred and absorbed in the Electricity Board and it was held that the past service in government would count towards the  requisite  experience  of  10 years for eligibility for promotion. 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 case  accepted  that  their  names could  appear  at the bottom of seniority list. Even in case 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. Hence the transfer order and concerned  circular  of 1983  which  required that the past service should not count for seniority, cannot have any bearing  on  eligibility  for time  bound  promotion.  Seniority and time bound promotions are different concepts. as stated above. For the above reasons, we hold that the past service of  the  appellants is to be counted for the limited purpose of eligibility -  for  computing  the  number  of  years  of qualifying service, to enable them to claim the higher grade under the scheme of time-bound promotions. In our view, the Tribunal was in error and its order is set aside.  The appellants will be entitled to the higher grade  from  the  date  they  completed  16 years of service computing the same by taking into account their past service in the Rehabilitation Department also along with the service in the P & T Department.  They will be so entitled  as  long as  they  remained  in  the post of Assistant and till their normal promotion to a higher post according to Rules.    The difference  between  the  emoluments  in the order as due to them and amount which was actually paid to  them,  shall  be computed  and  be  paid within a month from the date of this order.  There will be no order as to cost.

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