Full Judgment
Dr. K.B.S. Rajan, Judicial Member, J.
The following facts would suffice to have a hang of the entire case.
(a) The applicant initially joined the Postal Department in 1968 as a Postal Clerk (later on rechristened as Postal Assistant). The next level is LSG which initially was a Circle Cadre and the seniority was maintained on Circle level. For the period from 13-12-1985 to 17-05-2006 LSG was divisionalized and on and from 18-05-2006, LSG had become a circle cadre and promotion was ordered on the basis of Circle Seniority. The applicant was afforded his LSG w.e.f. 01-07-2002. Again, he was promoted to the grade of HSG II w.e.f. 08-12-2007 and by 30-06-2008 he superannuated from Government service.
(b) Just prior to the promotion of the applicant as HS Grade II in December, 2007, on 02-03-2007 as many as 133 officials were promoted to the said HS Grade II of whom 93 were again promoted as HS Grade I on ad hoc basis vide memo dated 11-05-2007.
(c) According to the applicant, of the 133 officials promoted as HS Grade II in March 2007 prior to the promotion of the applicant, as many as 46 were junior to the applicant and out of the 93 promoted as HS Grade 123 were his juniors.
(d) Again, within the same Namakkal division two individuals Shri A. Deivasigamani and Shri V. Kaliannan, who were junior to the applicant were also promoted as HS Gr.I.
(e) The Grievance of the applicant is that when he was senior under the circle-wise seniority and others were promoted in the intermediate grade of LSG on the basis of Division-wise seniority earlier to the applicant, the applicant ought to have been considered on the basis of the circle seniority when it came to the question of promotion to the HSG Grade II as well as Grade I.
(f) When the applicant preferred representations in April 07 and September, 2007, he was given a reply vide impugned order dated 02-07-2009 (Annexure A-17). Their reply included that in so far as the two individuals within the same Namakkal Division, they having qualified in the Accountant’s examination and their promotion to the LSG Grade was against the Accounts line and thus there cannot be any comparison of the applicant with those two i.e. A. Deivasigamani and V. Kaliannan. As regards promotion of other juniors, the response of the respondents is that the 46 officials stated to be junior in clerical cadre as per DCCS were promoted to LSG earlier than the applicant based on the vacancies in their respective divisions when LSG was a divisional cadre. Accordingly they were promoted to HS Grade II cadre based on their seniority in LSG Cadre. The applicant cannot compare with those officials already promoted to LSG cadre earlier than him.
2. The applicant has, therefore, prayed for the following relief(s):-
(a) Quash and set aside impugned order dated 02-07-2009 (Annexure A-17)
(b) Direct the respondents to promote the Applicant on par with Shri A. Deivasigamani and Sri V. Kaliannan to the post of LSG subsequently, to the post of HSG II and HSG I;
(c) re-fix the retirement service benefits of the applicant including and to pay arrears of pay and allowances and retirement service benefits;
(d) to pass such other orders as the Tribunal may deem fit and proper.
3. Respondents have contested the O.A. The fact that there was earlier the circle seniority for LSG and later on the same was made Divisional Seniority for a spell from 1985 to 2006 and later on it was reverted back to Circle seniority has been admitted by the respondents. That those who had been granted LSG on the basis of Divisional Seniority had been considered for promotion to the next post of HS Grade II and thereafter Grade I has also been admitted by the respondents. The respondents have contended that in so far as the case of Deivasigamani and Kaliannan, they being from the Accounts line, there is no comparison.
4. In his rejoinder the applicant has referred to a circular dated 13-12-1985 with regard to promotion to the post of HS G II and HSG I which reads as under:-
“The cases regarding promotion, confirmation and transfer of officials in the LSG will be dealt with at the level of Head of the Division/Unit. Further promotions of officials to the higher grades, viz., HSG II and HSG I will continue to be dealt with at the circle level. For purpose of promotion to the higher selection grades, the seniority of officials in the time scale will be the basis for such promotion at circle level, even after promotions to the Lower Selection Grade under the Time Bound One Promotion scheme. However, such of the officials who were passed over at the time of promotion to the LSG under Time Bound One Promotion scheme will lose their seniority.”
5. The applicant has also annexed a copy of the aforesaid circular dated 13-12-1985.
In their additional reply the respondents have clearly stated that the 46 officials appointed in different divisions but not in the applicant’s division i.e. Namakkal Division, whose initial date of appointment varies from 1969 to 1977 were first promoted to LSG Cadre with reference to their seniority in their respective Division against the vacancies occurred from 1985 to 17-05-2006 and later promoted to HSG II cadre based on their date of promotion to LSG Cadre, and seniority in LSG Cadre even though they were appointed in PA Cadre later than the applicant in different postal divisions. Date of appointment in the PA Cadre is not the criteria for promotion to HSG II Cadre. As regards TBOP, these do not depend upon the availability of vacancies and are time bound, while promotion to LSG/HSG II/HSG I Cadres are against the vacancies in the norm based posts, on completion of the requisite number of years of service in the feeder Cadre as on 1st January of the crucial year, as prescribed in the relevant Recruitment Rules, subject to the findings of a duly constituted Departmental Promotion Committee (DPC) and availability of vacancies. Upgradation under TBOP/BCR Schemes and promotion to LSG/HSG as per provisions of Recruitment Rules are two distinct matters. In support of their contention the respondents have annexed a copy of an order dated 10-11-2010 in OA No.803/2009 and connected matters.
7. Counsel for the parties have placed their points of arguments, primarily and principally based on the above mentioned points/contentions.
8. Arguments were heard and documents perused. First as to the decision relied upon by the respondents, the same relates to LSG promotions and the points involved are not identical. That case talks of Fast Track promotion by holding the examination and also TBOP/BCR while the case of the applicant here is promotion on the basis of normal seniority and subject to availability of vacancies. Thus, the said case is distinguishable from the facts of the present case.
9. As regards the merits of the matter, admittedly, initially, promotion from LSG onwards was effected circle wise. It was later on from 1985 changed inasmuch as so far as LSG Cadre is concerned, the same had been divisionalized, which for higher promotion the earlier system of Circlewise seniority held the fort. But this system was once again changed and the original system of Circle seniority etc., for promotion to the post of LSG onwards restored. The grievance of the applicant is that those juniors to the applicant who were granted LSG on the basis of divisional seniority cannot steal a march over the applicant when the original system of circle seniority for LSG onwards had been restored. Though promotion as LSG would have counted for further promotion as HSG Grade II and from there to Grade, I, in view of restoration of the original system of circle seniority, according to the applicant, seniority of PA at circle level does have its own impact on further promotion.
10. In the case of Om Prakash Sharma vs Union of India (1985 Supp SCC 218), an almost identical situation arose and the Apex Court has addressed the issue as hereunder:-
The appellants have an iron-clad case. The facts, not disputed, to summarise briefly are that under the Divisional Electrical Engineer there were three separate departments under his administrative control. Members of the staff of the three departments were borne on a common seniority list. In other words they were deemed to belong to one office in the matter of seniority and promotion. This is not only not disputed but the averment to that effect in para 6 of the petition has been admitted in the counter-affidavit filed on behalf of the Railway Administration. It is again admitted that the three appellants since their entry into service were senior to Respondents 3 to 6. For the administrative convenience the Railway Administration trifurcated the cadres. In other words, three units were separated from each other which resulted in each unit having its own seniority list and the common seniority list became irrelevant from the date of the trifurcation. The Unit No.2 called the workshop was amalgamated with the office of the Chief Electrical Engineer, Bombay. That is not controverted. Respondents 3 to 6 belonged to the administrative staff in the department styled as the workshop. The result of the trifurcation and amalgamation of the workshop with the Bombay office was that the workshop staff including Respondents 3 to 6 were taken over on the seniority list maintained by the Bombay office. It is admitted that on account of availability of vacancies in the Bombay office Respondents 3 to 6 got some accelerated promotions in the cadre of head clerks. Surprisingly after a span of 23 years, Railway Administration reconsidered its earlier decision and detached the workshop staff from the office of the Chief Electrical Engineer, Bombay and brought it back to Jhansi and three former departments under Divisional Electrical Engineer were amalgamated. In other words situation ante as on August 31, 1956 was restored, and members of the staff were brought on common seniority list cadre-wise. This factual averment is unambiguously admitted. Consequent upon amalgamation in 1979 a fresh common seniority list was drawn up in which cadre-wise Respondent 3 was shown senior to Appellants 1 and 2 and Respondents 5, 6 and 9 were shown senior to Appellant 3. Obviously when the amalgamation took place, Respondents 3 to 6 could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Article 16 of the Constitution. It may be that they might have enjoyed some accelerated promotion when workshop staff was amalgamated with the Bombay office. But when they were repatriated and re-amalgamated with original two offices and brought back on the common seniority list, they must find their original place qua the appellants. This is not a case where appellants were passed over at the time of selection or denied promotion on the ground of unsuitability. In such a situation status quo ante has to be restored. Obviously Respondents 3 to 6 will be below the appellants and any other view to the contrary would be violative of Article 16 as it would constitute denial of equality in the matter of promotion. Therefore, the seniority list drawn up on a principle contrary to what is discussed herein would be bad in law and deserves to be quashed.
11. A comparison of the above case with the case in hand would go to show that there, it was trifurcation of one department while here it divisionalization in various divisions of one Circle cadre. There, earlier prior to trifurcation of the Department, there was a common seniority as here too there was a common seniority at circle level before divisionalization. There, a few got accelerated promotion, while here too as many as 46 got accelerated promotion. There, subsequently after 23 years, there was amalgamation and original system restored and here again, after 21 years, there was amalgamation into Circle Cadre and original system restored. There, the juniors as per the common seniority list were the beneficiaries of trifurcation, as here, it is juniors to the applicant who were the beneficiaries. and, there, the Apex Court allowed the original common seniority to prevail i.e. Status-quo prevailed.
12. The above decision of the Apex Court was followed in the case of Kerala State Electricity Board v. N. Sukesan (1996 (9) SCC 397). The facts of the said case and the decision of the Apex Court in that case are, as stated in the decision of the Apex Court, as under:-
Kerala State Electricity Board, hereinafter “the Board”, had one common establishment prior to 1964. A need having been felt to have a separate and distinct establishment, named as Secretariat Establishment, the same came to be formed with effect from 1-4-1964, vide order of the Board dated 31-3-1964. With a view to ensure smooth functioning of the Secretariat Service so formed, the Board, in exercise of power conferred by Section 79(c)(k) of the Electricity (Supply) Act, made certain regulations which, inter alia, laid down the principle of inter se seniority in its clause VII reading as below:
“VII. The inter se seniority of all categories of persons so appointed initially to the Secretariat will be determined and finalized with reference to the relative general seniority they held in the parent department and their services in the parent department will count for all purposes in the Secretariat Service also.”
2. It was, however, felt that the separate service was not conducive to the smooth and efficient discharge of the administrative functions of the Board; and so, by order dated 14-1-1981 the separate and independent status of the Secretariat Service was brought to an end by making regulations called the Kerala State Electricity Board (Integration of Board Secretariat Establishment and General Establishment) Regulations, 1981. In these regulations the principle of seniority was laid down as below in clause 5(c):
“5. (c) Subject to clause (f), relative seniority of persons drawn from the Secretariat Establishment and General Establishment including Accounts Wing and holding equated posts shall be determined on the basis of their length of service in the cadre/category concerned at the time of integration.”
3. This principle was amended to read as below by order of 7-11-1995:
“(a) * * *
(b) the relative seniority of persons drawn from the Secretariat Establishment and the General Establishment including the Accounts Wing shall be determined based on their ranking in the advice list of the Kerala Public Service Commission or the Board, as the case may be, at the time of initial recruitment by the Kerala Public Service Commission or the Board to the respective establishments under the Board subject to the application of rules regarding obligatory departmental tests.”
This virtually required length of service to be taken note of for determining inter se seniority.
4. The High Court of Kerala was approached mainly by officers of the erstwhile Secretariat Service challenging the revised principle of seniority as laid down in 1985. The High Court, by the impugned judgment, held that the principle was hit by Article 14 as unequals were treated as equals and has, therefore, quashed the same. These appeals are by the Board and by some persons of the General Establishment.
5. Shri Poti, the learned Senior Counsel appearing for the Board, has urged that the High Court was not justified in setting aside the principle of 1985, as such a principle had indeed been found valid by this Court in Om Prakash Sharma v. Union of India, which was wrongly distinguished by the High Court. Shri Iyer, the learned Senior Counsel appearing for the private respondents has, however, urged that Om Prakash case was different on facts and the High Court was right in not following the same to sustain the principle of inter se seniority as spelt out in 1985.
6. In our opinion, the decision in Om Prakash case has to be applied in the instant appeals as well, because there the accelerated promotion which some of the respondents got in the cadre of Head Clerks because of the trifurcation was not required to be given weight after the different services/departments were amalgamated again. Here too, the principle of inter se seniority in the order of 1985 has basically sought to do the same by requiring the inter se seniority to be determined on the basis of the length of service in the cadre/category at the time of integration, and not by taking note of promotions earned in the Secretariat Service.
13. Thus, when a common seniority was maintained and during intermediate period, there had been division in the common seniority list, which once again was got amalgamated, the seniority as existed prior to such divisonalization would hold the fort.
14. The admittedly was senior to those 46 individuals. (We are not talking of the case of Deivasigamani and Kalilannan, who belong to a different category of Accounts Wing). Since promotion to the post of HSG II and I took place after restoring the circle seniority in 2006, the respondents were under an obligation to carry out the drill of rescheduling the seniority as of circle seniority right from the beginning in which event, the applicant becomes eligible for promotion.
15. In view of the above, the OA succeeds. It is declared that the applicant is entitled to be considered for LSG on the basis of common seniority and further promotion too on the basis of his promotion under the common seniority to the post of LSG.
16. We are aware that the above would involve review of the DPC for various years and is also time consuming. Instead, it would be advisable to afford the applicant the promotion on notional basis in the grade of HSG II and Grade I from the earliest date any of his juniors had been promoted to the said grades. The notional promotion would entail notional fixation of pay (on the ground of no work no pay at the higher post) and the applicant’s pay fixed in the higher grade of HS Grade I on the date of his superannuation and his terminal benefits worked out accordingly. Such terminal benefits, i.e. difference in gratuity, leave encashment, commutation of pension and difference in pension shall be worked out and revised PPO shall be prepared and the applicant shall be paid the arrears arising out of such refixation of pay within a period of two months from the date of communication of this order.
17. No cost.