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CASE NO.: Appeal (civil)  5739 of 2005

PETITIONER: UNION OF INDIA & ORS.                    

RESPONDENT: M. MATHIVANAN                            

DATE OF JUDGMENT: 09/06/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: JUDGMENT

C.K. THAKKER, J.

This appeal is directed against an order dated April  3, 2002 passed by the Central Administrative Tribunal  (CAT), Madras Bench in O.A. No. 1094 of 2001 and  confirmed by the High Court of Judicature at Madras on  April 16, 2003 in Writ Petition No. 25452 of 2002. The relevant facts leading to the present appeal are  that the respondent herein, Mr. M. Mathivanan was  selected for recruitment to the cadre of Postal Assistant  on December 28, 1981 and was appointed as Postal  Assistant on daily wages basis. He underwent necessary  training and was placed in Reserve Training Pool (RTP),  Postal Assistant to be absorbed as regular Postal  Assistant and was posted to work in the post offices in  Cuddalore Postal Division. In August 1983, the  respondent, volunteered for enrolment in Army Postal  Services (APS). By an order dated August 19, 1983 his  request was accepted and he was appointed as Postal  Assistant, Cuddalore with effect from August 27, 1983.  The appointment was made subject to the following  conditions. i)      The appointment is on purely adhoc and  temporary basis and candidate will have  no claim for regular absorption in  preference to his seniors in the RTP list  of this Division.

ii)     The inter-se-seniority between the  candidates who volunteered for APS and  candidates who were appointed in the  civil will not be disturbed merely by  virtue of the above appointment of  volunteers in the civil for deputation to  APS.

iii)    If the candidate is declared medically  unfit for enrollment to the APS, he will  revert back to the RTP list and take his  chance for absorption as regular PA in  the normal course as and when it is  due.

In September, 1983, while he was working in  Reserve Training Pool as Postal Assistant, he was asked

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by the Superintendent of Post Offices, Cuddalore  Division to appear before the authorities for selection in  Army Postal Services. Accordingly, he appeared and was  selected as Warrant Officer with effect from September  30, 1983. By an order dated October 20, 1983 the  respondent was appointed as Postal Assistant in  Cuddalore Division with effect from September 30, 1983  on the conditions mentioned in the said order. After his  enrolment in the Army Postal Services, an order was  passed by Hon’ble the President of India appointing him  on the establishment of Regular Army with effect from  September 30, 1983. It was the case of the respondent that Time Bound  Promotion Scheme was formulated by the authorities  vide a Memorandum dated December 17, 1983. The  instructions were sent to all the Heads of Circles (Postal).  The scheme, inter alia, provided placing of officers in the  ’next higher grade’ who had completed sixteen years of  service in Group ’C’ and ’D’.  The scheme came into effect  from November 30, 1983. According to the respondent,  he had shown his willingness vide letter dated January  29, 1988 for being governed by the said scheme. It is not  in dispute that the respondent was appointed as Postal  Assistant on ’regular’ basis from July 18, 1989.  He was  transferred to Cuddalore Division and joined there on  August 6, 1991.  In 1999, the respondent made an  application to the Superintendent of Post Office,  Cuddalore Division for granting benefit of Time Bound  Promotion Scheme as he had completed sixteen years  considering the starting point of September 30, 1983. He  also stated that he was in continuous service from 1983  and as such he was entitled to get the benefit from  September 30, 1999. Unfortunately, however, his name  was not included in the Time Bound Promotion Scheme.  Finally, he was informed by a communication dated  March 24, 2000 that his case for Time Bound Promotion  would be considered only from 2007. His appeal against  the said order also came to be dismissed by the  Superintendent of Post Offices on October 18, 2000.  Being aggrieved by the said orders, the respondent  approached the Central Administrative Tribunal, Madras  by filing Original Application.  The Central Administrative  Tribunal allowed his application holding that his services  ought to have been considered from September 30, 1983  and since he had completed sixteen years in 1999, he was  entitled to the benefit of Time Bound Promotion Scheme.  Accordingly, the application was allowed. The Writ Petition  filed by the appellant herein was dismissed by the High  Court of Madras which order has been challenged by the  appellants in the present appeal. On January 23, 2004, notice was issued on Special  Leave Petition by this Court since there was delay of 155  days in approaching this Court.  Meanwhile, however,  interim stay was granted against the operation of the  orders passed by the CAT and confirmed by the High  Court. On September 12, 2005, after hearing the parties,  delay was condoned, leave was granted, appeal was  admitted, while interim relief was ordered to be  continued and the appeal was ordered to be expedited  for final hearing.  We have heard the learned counsel for the parties. Mr. Parasaran, learned Additional Solicitor  General, appearing for the appellants, contended that  the Tribunal as well as the High Court committed an  error of law in not considering in its proper perspective,

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the Time Bound Promotion Scheme and by granting  benefit of the said scheme to the respondent. According  to him, the provision in the scheme is clear and an  employee would be entitled to the benefit of Time Bound  Promotion, only if he has completed sixteen years of  ’regular’ service. Admittedly, the respondent was  regularly appointed in September 1989 and joined  Cuddalore Division in 1991.  The Department was,  therefore, perfectly justified in rejecting the prayer of  granting Time Bound Promotion as according to the  Department, he was not entitled to such promotion. He  also submitted that the respondent was initially  appointed in 1981, but the scheme required completion  of sixteen years of service on ’regular’ basis. The counsel,  therefore, submitted that the order passed by the  Tribunal and confirmed by the High Court deserves to be  set aside by upholding the action of the Department and  by rejecting the prayer of the respondent. The learned counsel for the respondent-employee,  on the other hand, supported the order passed by the  Tribunal and confirmed by the High Court. He urged  that the scheme had been property interpreted by the  Tribunal and benefit was extended to him which was  confirmed by the High Court. He also relied upon  decisions of this Court in which similar action had been  set aside by this Court by granting benefits to the  employees. He, therefore, submitted that the appeal  deserves to be dismissed. Having heard the learned counsel for the parties, in  our opinion, the order passed by CAT and confirmed by  the High Court deserves no interference. It is not in  dispute by and between the parties that the respondent  was enrolled as Reserve Training Pool Postal Assistant  and was appointed initially as Postal Assistant in the  year 1981. It is also not in dispute that in 1983, he  volunteered for enrollment in Army Postal Services and  was absorbed in August, 1983 by an order dated August  19, 1983. In the conditions referred to earlier, it was  stated that the appointment was purely on ad hoc and  temporary basis and the respondent would have no right  to claim regular absorption in preference to his seniors  in RTP list of the Division. It was also stated that the  inter-se-seniority between the candidates who  volunteered for such services and candidates who were  appointed in Civil Wing would not be disturbed.  It is  also undisputed that pursuant to the willingness shown  by the respondent, he was regularized in 1989.  But it  cannot be disputed and is not disputed before us that he  was appointed as Warrant Officer in September, 1983.  The order passed by Hon’ble the President of India  appointing the respondent as Warrant Officer on the  establishment of Regular Army reads thus: "To

M. Mathivanan greeting:

You are hereby appointed to be a  Warrant Officer on the establishment of the  Regular Army, from the 30th day of September  One thousand nine hundred and eighty three.

You are therefore carefully and diligently  to discharge your duty as such; and you are  to obey such orders and observe such  directions as from time to time you shall

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receive from me or any of your superior  officers according to the rules, regulations  and order for the governance of the Regular  Army.

Given at New Delhi the sixth day of  Magha of the Saka year One thousand nine  hundred and eight correspondent to the  Tuesday sixth day of the month of January of  the year One thousand nine hundred and  eighty seven A.D.

                                       Sd/-                                    Zail Singh                             President of India"

The learned counsel for the respondent, in our  opinion, is right in relying on paragraph 1 of the Time  Bound Promotion Scheme. Paragraph 1 which relates to  placing of an employee in ’next higher grade’ reads thus: "1)     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  form 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."

Paragraph 2 speaks of ’promotion’ and reads as  under: "The heads of circles/Divisional  Superintendents/Heads of other  functional units will take immediate  action to identify the officials who have  completed sixteen years of regular service  in the cadres covered under the scheme  as on 30.11.1983 as well as the officials  who will complete 16 years of service form  1.12.1983 to 30.3.1984. Thereafter,  action will be initiated by the Heads of  Circles to convene departmental  promotion committee meetings to  consider promotion of the officials in the  operative cadres to the next higher scale  of pay. The Departmental Promotion  Committee which will be constituted in  accordance with the existing instructions  applicable to the different cadres will  assess the fitness of the identified officials  for promotion to the higher scale of pay.  The formalities in this regard should be  complete within a period of three months.  The promotion to the next higher scale of  pay will be granted from the date  following the date on which the identified  officials complete sixteen years of regular  service. In case of officials who have  completed sixteen years of service before  30.11.1983, the promotions to the next  higher scale of pay will take effect from

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30.11.1983."

Reading of the above two paragraphs makes it  abundantly clear that so far as placing of an officer in  the ’next higher grade’ is concerned, what is relevant and  material is that such official belonging to basic grades in  Group ’C’ and ’D’  must have completed "sixteen years of  service in that Grade". The said paragraph, no where  uses the connotation ’regular’ service. Paragraph 2  which provides for Departmental Promotion Committee  and consideration of cases of officials for ’promotion’,  provides for sixteen years of ’regular’ service. The  Tribunal, therefore, rightly considered paragraph 1 as  relevant and held that basic eligibility condition for being  placed in the next higher grade is that the officer must  have completed sixteen years of service in the basic  grade in Group ’C’ and Group ’D’.  Though in other  paragraphs, the service was qualified by the adjective  ’regular’, the said qualification was not necessary for the  purpose of paragraph 1. Since the employee wanted the  benefit of placement in ’next higher grade’, what was  required to be established by him was that he had  completed sixteen years of service in the grade and the  said requirement had been complied with in view of the  fact that with effect from September 30, 1983 he was  appointed as Warrant Officer. He was, therefore, entitled  to the benefit of ’next higher grade’ under paragraph 1  from 1999. The authorities were, therefore, not justified  in rejecting the claim and accordingly the petition was  allowed. The High Court rightly upheld the direction of  CAT.  The learned counsel for the respondent is also  right in placing reliance on the decision of this Court in  Dwijen Chandra Sarkar & Another v. Union of India &  Others (1999) 2 SCC 119. Almost in similar  circumstances, the Court considered the extent and  applicability of Time Bound Promotion Scheme and held  that the benefit of the said scheme would be available to  a person who had completed ’sixteen years of service’ in  the grade. In that case, two appellants were working in  the Posts & Telegraphs Department and they had  claimed the benefit of the scheme. Initially, they were  serving in the Rehabilitation Department of the  Government of India, but were transferred in the  Department of Posts & Telegraphs afterwards. The  question before the Court was whether the appellants  were entitled to count the services rendered by them  earlier in the Rehabilitation Department of the  Government of India and whether they would be entitled  to the benefit of the scheme by taking into account past  services. The Court considered the scheme of December,  1983 and held that what was required under the scheme  was completion of sixteen years of service in that grade.  If the said requirement is complied with, an employee  would be entitled to be placed in the next higher grade. It  was observed that two concepts, namely, (i) ’time bound  promotion’, and (ii) ’regular promotion’ were different. So  far as the ’time bound promotion’ was concerned, the  Court observed that since there were large number of  employees who were not likely to get promotion in near  future because of their comparatively low position in the  seniority, the Government thought it necessary that in  order to remove frustration, the employees should be  placed in the ’next higher grade’ in terms of emoluments  while retaining them in the same cadre. This is what is

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generally known as the ’time-bound promotion’. Such  ’time bound promotion’ does not affect seniority of those  higher up.  The Court then stated: "12. If that be the true purpose of a time- bound promotion which is meant (to) 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 a higher  grade".         (emphasis supplied)

       The Court added that for the purpose of ’regular  promotions’ to the higher cadre in the department, their  seniority should be counted only from the date of their  transfer in the Posts and Telegraphs Department.         The Court, therefore, concluded;         "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, 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." It is no doubt true as observed by the High Court  that Dwijen Chandra Sarkar was not an identical case,  inasmuch as in that case, the appellants were  transferred "in public interest", whereas in the instant  case, the transfer was volunteered by the respondent- employee for enrolment in Army. That, however, in our  opinion, does not make difference since to us, the  language of paragraph 1 of the scheme is clear,  unambiguous and leaves no room for doubt. That aspect  was also considered in Dwijen Chandra Sarkar.  But, in  any case, even that point is also finally concluded by

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another decision of this court in Union of India & Another  v. V.N. Bhat, (2003) 8 SCC 714 in which the employee  was initially appointed in the Ministry of Defence and  voluntarily transferred himself to the office of the Post  Master General. The question which came up for  consideration was as to whether he would be entitled to  get benefit of the scheme.  Relying on Dwijen Chandra  Sarkar, this Court held that the employee would be  entitled to the benefit of the scheme on completion of  sixteen years of service. Relying on Dwijen Chandra Sarkar, this Court  observed; "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 therefore.  It is, therefore, not a  case where promotion to the higher post is to  be made only on the basis of seniority." Since the respondent had completed sixteen years  of service in 1999, he would be entitled to the benefit of  paragraph 1 of Time Bound Promotion Scheme and the  action of the authorities in not granting the said benefit  was illegal and contrary to law. The Central  Administrative Tribunal as well as the High Court were,  therefore, right in setting aside the said action and by  directing the authorities to extend the benefit of the  Scheme to the respondent. We see no infirmity in the  reasoning adopted and conclusion recorded by the CAT  or by the High Court and find no substance in the  appeal of the appellants. For the foregoing reasons, the appeal deserves to be  dismissed and is accordingly dismissed with costs.