A.B. Chaudhari, J.
1. By the present appeal, the appellant M.S.R.T.C. has challenged the judgment dated 7-12-1995 in W.P. No. 2479/1992, passed by the learned Single Judge of this Court, whereby writ petition was allowed and the order of the Industrial Court dated 30-9-1992 in Complaint (ULPN) No. 1070/1990 was set aside with further direction to the appellant M.S.R.T.C. to grant promotion to the respondent sole as traffic controller w.e.f. 12-5-1982 along with all promotional benefits including monetary benefits.
Facts:
2. The respondent had filed complaint before the Industrial Court at Nagpur, which was registered as Complaint U.L.P. No. 210/1983. He stated that he joined the appellant Corporation in service as conductor in the year 1972 in Nagpur Division of which Chandrapur was Sub-Division. In 1974, Sub-Division, Chandrapur was declared as division and as such the respondent continued to work in Chandrapur Division. In the year 1979, he made a request for transferring him from Chandrapur Division to Nagpur Division, and as such upon acceptance of his request, he came to be transferred to Nagpur Division, where he started working since 1979. The respondent happened to appear for the departmental examination, which was held in Nagpur Division by the M.S.R.T.C. for promotion to the post of traffic controller in the year 1978 and he was successful in that examination. But since his result was withheld, he approached the Industrial Court, who made an order directing the appellant M.S.R.T.C. to declare his result, which came to be declared on 12-5-1982. Despite the fact that he succeeded in the departmental examination for promotion, he was not promoted and therefore, he filed Complaint (ULPN) No. 1070/1990 before the Industrial Court. The Industrial Court, however, dismissed the complaint, against which he filed the writ petition in this Court, which was decided by the learned Single Judge of this Court.
Submissions on behalf of appellant:
3. Shri V. G. Wankhede, learned Counsel for the appellant urged before us that admittedly the respondent had sought transfer on request from Chandrapur to Nagpur, and therefore, in accordance with Clause 86 (II) of General Standing Order 503, if the transfer is effected on request, the services in the unit from which he is transferred shall not be counted as service for the purpose of seniority. We reproduce Clause 86 (II) of General Standing Order 503 as under;
(ii) If a transfer is effected at the request of the employee, or as a punishment, outside his unit or zone, as the case may be, the service in the unit or zone from which he is transferred shall not be counted as service for the purpose of seniority and the date of his reporting for duty in the new unit or zone shall be taken as the basis of his seniority. In respect of transfer of an employee ordered as a matter of administrative convenience, the service in the unit or zone which he is transferred shall be counted for the purpose of seniority in the new unit or zone.
4. He, therefore, argued that the Industrial Court was right in dismissing the complaint filed by the respondent taking recourse to Clause 86 (II) and learned Single Judge committed an error in interfering with the order of the Industrial Court. He relied upon the judgment of the Hon'ble Apex Court in the case of K.P. Sudhakaran and Anr. v. State of Kerala and Ors., reported in : AIR2006SC2138 .
5. Shri Wankhede, learned Counsel in the alternative argued that at any rate the learned Single Judge committed an error in granting the deemed date of promotion to the respondent effective from 12-5-1982, since there were no regular promotion made until 31-3-1987 to the post of traffic controller in Nagpur Division, on which date about 74 persons were promoted to the post of traffic controller on regular basis. He, therefore, submitted that the judgment of the learned Single Judge needs to be modified accordingly.
Submissions on behalf of respondent:
6. Shri B. M. Khan, learned Counsel for the respondent argued that Clauses 39, 49, 50, 52, 53, 54, 56, and 57 of General Standing Order 503 govern the aspect of seniority and harmonious reading thereof would suggest that it would make no difference even if he was transferred on request to Nagpur Division at the relevant time particularly because the respondent was the only candidate in the year 1982 in Nagpur Division, who had passed the departmental examination for promotional post of traffic controller. He then submitted that at any rate at least 34 posts of traffic controllers were vacant in the Nagpur Division, which can be seen from the Order No. 1831 dated 28th November, 1979 issued by Divisional Controller, Nagpur Division , Nagpur, promoting 34 persons on officiating basis as traffic controllers and none of whom had passed the departmental examination. He however did not dispute that none was promoted on regular basis as traffic controller in Nagpur Division till 31-3-1987, when promotion orders were issued to the eligible candidates.
7. Shri Khan, learned Counsel for the respondent then cited the following judgments in support of his submissions that the eligibility and seniority are two distinct and different factors and transfer on request would not deprive an employee of his seniority at the place of transfer.
1996 (1) L.I.C. 763, Union of India and Ors v. C.N. Ponnapan.
(2) 1998 L.I.C. 2517, Scientific Advisory to Raksha Mantri and Anr. v. V.M. Joseph (3) 2001 L.I.C. 1003, The Managing Director, Vice-Chairman APSRTC, Hyderabad and Anr. v. M. Venkat Rao.
8. In answer to the alternative submissions made by Shri Wankhede, learned Counsel for the appellant, Shri Khan, learned Counsel for the respondent replied by saying that he being the only candidate eligible for claiming promotion to the post of traffic controller having passed the departmental examination and admittedly there being vacant post of traffic controller he was entitled to the benefits from 12-5-1982 as awarded by the learned Single Judge of this Court. Consideration:
9. Having heard learned Counsel for the parties, we find that the respondent was the only candidate eligible for promotion in the year 1982, having passed departmental examination for the promotional post of traffic controller. It is also an admitted position that upon the request made by the respondent, he was transferred from Chandrapur Division to Nagpur Division. It is also an admitted position that in Nagpur Division though there were vacant posts of traffic controllers and though on 28th November, 1979 the orders of promotions were passed by the Divisional Controller, Nagpur Division; however, none of these orders were for substantive promotions to the post of traffic controllers. All these orders were specifically as officiating traffic controllers. During the course of hearing we came across Clause 56-A in General Standing Order 503 which reads thus;
56-A. In the gradation list, the names of the employees passing the Departmental Examination earlier will rank higher than those passing it later. Those who pass the Departmental Examination earlier will be promoted earlier than those passing it at a later date.
10. Reading the above Clause, we are of the view that the said Clause would govern the instant case. Though the respondent was to be placed at the bottom of the seniority list of Nagpur Division, even then so far as his eligibility to the promotional post is concerned, he was entitled to rank higher than those candidates who passed departmental examination later. The view; which we are taking herein; is as per law laid down by the Apex Court in the case of Scientific Advisory to Raksha Mantri and Anr. v. V.M. Joseph reported in 1998 L.I.C. 2517, (Paragraph 6) reading as under:
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 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.
11. In the above premises, we hold that the respondent was entitled to be promoted to the post of traffic controller w.e.f 31-3-1987 instead of 12-5-1982, as ordered by the learned Single Judge.
12. In the result, the present L.P.A. is partly allowed with change in deemed date of promotion as indicated herein.
13. The L.P.A. is accordingly partly allowed with no order as to costs.