Sivaprasad, Deputy Postmaster, Kollam Head Post Office, Residing at Manichezhikam, Pattathanan, Kollam and Others Vs. Union of India Represented by the Secretary to the Government, Department of Post, Government of India New Delhi and Others - Court Judgment

HON'BLE Dr. K.B.S. RAJAN, JUDICIAL MEMBER

The applicants in this OA are all Time Bound One-time Promotion (TBOP) beneficiaries during the years 1985/1988. They have been officiating against the norm based vacancies (of LSG) for a substantial period by now. Earlier, in 1982, Annexure A-2 scheme of TBOP/Biennial Cadre Review (BCR) was designed, whereby it was decided that all the vacancies in LSG etc., were to be filled up in accordance with the Scheme. Then came the Biennial Cadre Review with a view to providing promotional opportunities and on functional justification. Thus, on completion of 26 years of service, the applicants were placed in the pay equivalent to placement in Higher Selection Grade-II. In fact on the introduction of TBOP and BCR schemes, the recruitment rules of 1976 for the post of LSG, HSG II, HSG I were all kept in abeyance and thus not operated. However, later on in 2002, certain amendment to the 1976 Rules was introduced, vide Annexure A-5. As per the said amendment, one third of the vacancies would be filled based on selection cum seniority and the rest on aptitude test relating to the functional needs and the requisite years of service at the feeder grade had also been stipulated. Of course, since no promotions were effected after November, 1983 against norm based LSG, the annexure A-5 amendment became unworkable as far as HSG promotions are concerned, since the years of service required was in LSG cadre which none got. Thus it became necessary to work out a proper mode and it was clarified that norm based LSG/HSG II post may be filled up in terms of the relevant recruitment rules from the year when such promotions were not carried out and for promotion to HSG, the same would be based on notional seniority so obtained. Annexure A6 refers. While the above method is for promotion that were to be carried out from 1983, in so far as fast track promotion brought into force from 2002 onwards, the same was only from that year. Annexure A-7 refers. In Kerala Circle, both Annexure A-6 and A-7 instructions were implemented, vide Annexure A-8 letter dated 22-052003.

2. The respondents had then decided to do away with the Annexure A-5 amendment and bring in promotion based on seniority, vide DG letter dated 30th May 2006, at Annexure A-10. Seniority list of all in the individuals was prepared, vide Annexure A-11. This list was however, challenged by Applicants No. 2 and 3 in OA 314/2007 and the Tribunal allowed the said OA and quashed Annexure A-11 seniority list and directed the respondents to review the promotion to the post of LSG on the basis of Circle seniority prepared on the basis of merit position in the initial grade of appointment and pass suitable orders of promotion. Annexure A-12 order dated 20-06-2008 refers. The grievance of the applicants in this OA is that despite a direction to the respondents in order in OA 314/2007 to revise the seniority list and then effect promotion, respondents are attempting to conduct DPC without revising the seniority list. Annexure A-13 refers. Hence, this order at Annexure A-13 is under challenge. In that process, the earlier Annexure A-16 circular issued by the first respondents directing the postal circles to effect notional promotions from year to year with effect from the year the promotions had not been carried out. Hence the prayer in this OA is for quashing the Annexure A-13 proposal to hold DPC without revising the seniority list and for a direction to the respondents to act on the basis of Annexure A-16 circular to consider notional promotion from 1983 onwards.

3. Another OA No. 369/2008 was also filed on identical set of facts. The same, at the time of filing of this OA was pending consideration of the Tribunal.

4. Both the Official and party respondents have contested the O.A. raising various contentions. According to official respondents, in so far as order in OA No. 314/2007, the respondents have moved the High Court and the order of the Tribunal has since been stayed vide OP No. 37673/2008. Private respondents contended that the applicants have not ventilated their challenge at the appropriate time i.e. when the cause of action arose. Hence, limitation is staring at their face. Again, their claim for promotion being from 1982 and prior to 2002, while the promotions of the party respondents being from 2002, there is no clash of interest. The party respondents have relied upon the decision of the Apex Court reported in 2003(12) SCC 280.

5. Counsel for the applicant has submitted that the other OA on identical facts and circumstances vide OA No. 369/2008 has been allowed, vide order dated 11th March, 2009. As such, on the same line, order in this OA may be passed.

6. Counsel for the private respondents submitted that in the earlier OA, though the contentions as above have been raised by the private respondents, they have not been adverted to. As such, the same be recorded in the order and decision given.

7. Counsel for the official respondents relied upon the contents of the counter.

8. Arguments were heard and documents perused. The Tribunal in OA No. 369/3007 has held as under:

11. The learned counsel for the applicants argued that the applicants are entitled to be considered for notional promotion against the norm based LSG and HSG-II posts based on their seniority in the basic cadre of Postal Assistant w.e.f. the date of occurrence of vacancies from 30.11.1983 to 7.2.2002 and that the placement of party respondents above applicants vide Annexure A-1 gradation list are highly illegal and arbitrary and that they are entitled to be accommodated in the LSG vacancies which arose from 7.2.2002 to 18.5.2006.

12. The learned counsel for the respondents submitted that the applicants were promoted to the LSG cadre only w.e.f. 3.5.2007 whereas the party respondents qualified in the Fast Track Promotion Examination for the year 2004. The applicants did not appear in the Fast Track Promotion Examination. Therefore, in Annexure A1 gradation list the respondents were given their due position based on their appointment to LSG grade which is prepared as per instructions contained in DG Posts Letter dated 13.3.1986.

13. What emerges from the rival contention is the solid fact that ACP scheme introduced in Department of Posts in 1983, i.e. much ahead of the same in other Central Government departments in 1999, has created a lot of confusion leading to the present scenario. The 1st and 2nd ACP schemes introduced in 1983 and 1991 in the Department of Posts are termed as TBOP and BCR, to be given on completion of 16 and 24 years in the basic cadre of Postal Assistant. The TBOP and BCR schemes were implemented purely as a measure of relief against stagnation in the basic cadre and to give financial up-gradation to the next higher post, in the ordinary channel of promotion to higher grades. Therefore, those who got TBOP/BCR can be given supervisory posts if available. Otherwise, they continue to do operative duties.

14. The posts in higher grades in Department of Posts are in LSG, HSGII and HSG-I, which are treated as norm based and these posts are created at the supervisory level. With the introduction of TBOP the limited Departmental competitive examination for 1/3rd vacancies in LSG cadre was kept in abeyance. It was inevitable to hold DPC to grant financial up-gradation envisaged in TBOP and BCR schemes. The individuals so promoted could work in supervisory posts too.

15. To progress to HSG-II and HSG-I, Postal Assistants have to be placed in LSG. It is necessary to hold DPC for elevating them to LSG/HSG-II cadres. This requirement appears to have been given a goby on introduction of TBOP/BCR, as supervisory posts could be manned by TBOP and BCR officials. Therefore no DPC for LSG appears to have been conducted at the office of the first respondent to place officials in the LSG to fill up vacancies, which arose from 1983 to 1986, as LSG was a Circle cadre till 18.5.2006.

16. This is clearly seen in the Circle seniority list of LSG as on 1.7.2005 produced as Annexure A-4 in O.A. 1/09. The list starts with 2/3rd quota of 1982 and shows those who are qualified in 1/3rd quota of LSG examination for 1983. After 1983, but for one solitary promotion to LSG in 1986, no placement in LSG is done till 1990. By 1986, LSG has become a divisional cadre. A few Postal Divisions might have conducted DPC, as very few officials are shown to be promoted from 1991 onwards till 2006. As per the seniority list as on 1.7.2007 (A-1) in the LSG cadre with a sanctioned strength of 228, 178 officials got placement in a single year from 3.5.2007 to 1.6.2007. The list does not indicate those under the 2/3 quota who got qualified between 2002 and 2005 under the fast track promotion scheme. It is crystal clear that on receipt of A-10, i.e. DG's letter No. 137-4/2006SPB-II dated 30.5.2006, discontinuing fast track promotion and throwing open 100% vacancies in LSG cadre to promotion quota, promotion to LSG was effected at one go taking into account all the left over vacancies and placing officials who could have been considered earlier, also from the year 2007. In the process a few of their juniors who were successful in the limited departmental competitive examination could rank senior to them.

17. Such obvious errors could have been eliminated, had instruction contained in A-6 been followed scrupulously.

18. Postal Directorate's letter dated 12.11.2002 (A-6) was issued to give necessary guidelines/clarifications to tide over the problems of inadequate number of eligible officials in the feeder cadre of LSG and HSG-II when 1622 HSGII posts were upgraded to HSG-II and DOPT refused to relax recruitment rules to permit consideration of BCR officials with 3 years service for promotion to HSG-I. The relevant portion of aforesaid letter is reproduced below:

DG Posts No. 4-16/2002-SPB.II. dated 12.11.2002.I am directed to invite a reference to this department's letter No. 22-1/89-PE.I (Vol. II) dated 18.4.2002 by which certain clarifications in connection with the upgradation of 1622 HSG-II posts to HSG-I were issued. References were received from various Circles stating that they were facing difficulties in filling up these HSG-I posts due to non availability of eligible officials who had completed 3 years of service in HSG-II cadre as prescribed in the relevant Recruitment Rules. The question of relaxing the Recruitment Rules to allow the Circles to fill up these posts from among officials who had completed 3 years of service in BCR was taken up with Department of Personnel and Training. That Department advised that norm based LSG/HSG-II posts must be filled up notionally in terms of the relevant recruitment Rules from the year when the norm based promotions have not been carried out and promotions to the upgraded posts in HSG-I could be made in accordance with the Recruitment Rules from amongst those formally appointed in HSG-II with the requisite 3 years actual/notional service in the grade, as the case may be.

2. It has been decided to implement the advice of the Department of Personnel and Training. You are requested to immediately carry out the exercise as above and fill up the upgraded posts of HSG-I accordingly, by convening Departmental Promotion Committee (DPCs) as required.

19. Further clarification in fixing notional promotion and placement in LSG and HSG-II were issued vide A-7. Point 8-In the Recruitment Rules, 2002 it is laid down that PA/SA having not less than 16 years of service are eligible for consideration for promotion against 1/3 LSG norm based posts. There is no maximum service limit prescribed in the Recruitment Rules. BCR officials can also claim against these posts. Otherwise, they will have to work as Postal Assistant under the supervision of LSG supervisor drawing less pay scale. Clarification.-BCR is only a financial upgradation given whereas LSG is a sanctioned cadre. In future, only service rendered in LSG including notional service in LSG will be reckoned for promotion to HSG-II. In view of this, an official who has been given BCR scale and who has not been formally appointed to LSG may be given the option for being considered for promotion to LSG. If he declines appointment in LSG, he will not be considered for promotion to HSG-II and HSG-I when vacancies arise in these grades. Point 9-Most of the PA/SA having 16 years of service are promoted to LSG grade under TBOP scheme. Whether selection of such officials against supervisory LSG posts will involve transfer / placement only or involve higher responsibilities warranting fixation of pay and benefit under FFR 22(1)(a)(i). Clarification-Selection of TBOP/BCR officials for LSG norm based posts is to be treated as placement. Benefit of fixation of pay under FR 22 will not be admissible. Financial benefit allowed under the TBOP/BCR scheme shall be final and no pay fixation benefit shall accrue at the time of regular promotion i.e. posting against a functional post in LSG.

20. In such circumstances, there is no alternative but to recast the seniority list of LSG officials in the Circle. Major chunk of work has to be done in the divisions as till recently i.e. 2006, it was a divisional cadre. That the failure to afford timely promotions from 1983 to 2002 has impacted the seniority of applicants and many similarly placed is highlighted in the O.A. Assigning the proper seniority in LSG till 2002 is crucial, as the recruitment rules are amended and only 1/3rd quota is available for promotion as opposed to 2/3 quota till 2002, and the influx of those who qualified in the examination from 2002 to 2005. With the help of registers maintained for superannuation as well as establishment registers the vacancies in LSG for the promotional quota, right from 1983 can be correctly assessed so that placement of eligible officials in LSG cadre, to grant them notional seniority can be done. This has to be indicated year wise. The seniority list of PAs, TBOP and BCR officials will be of definite help for placement in LSG since seniority in the basic cadre of Postal Assistant is the criterion. The remarks column should note details like Rule 38 transfer and 2/3 quota of those who came out successful in the fast track aptitude test during 2002-2005. Instructions of the DG on inter-se seniority for such officials is to be followed. Officials borne in Accounts line have to be shown separately, unless they have opted to go to the general line or assigned seniority in general line as per DG's extant rules on the subject. Similar is the case of SBCO staff also.

21. From such lists prepared in the Division, the DPC has to be held at Circle level for the years from 1983 to 1986 and from 2006 onwards. It will be at the divisions during the intervening period. The Divisional seniority list will show placement of LSG, year-wise from 1983. Sanctioned strength also will be indicated. Since the number of posts in LSG ranges from 15 to 30 or less depending on the size of the Division and attempts to do this exercise must have commenced from 2002, onwards, in view of Annexure A-6 the quantum of work may not pose much problem.

22. The Circle seniority list of LSG may be suitably modified based on the updated seniority list received from divisions. The provisional seniority list so drawn up may be circulated and representation received dealt with on priority. Also notional fixation of seniority, for vacancies of HSG-II, needs to be done, based on the revised seniority list.

23. In our considered opinion, a Cell has to be set up -at the level of the second respondent and the Regional PMG to ensure expeditious completion of this important item of work. Any delay will tell upon the promotional prospects of a large number of employees besides affecting the smooth functioning of post offices.

24. In view of what is stated above, the O.A is allowed to the extent Annexure A-1 gradation list of LSG officials is quashed. The respondents are directed to prepare revised seniority list granting promotion to LSG cadre year-wise, subject to availability of vacancies at the divisional level and Circle-wise seniority list is to be drawn up based on the revised divisional seniority. The entire drill of preparing seniority list as directed above and conducting of DPC be completed within a period of four months from the date of communication of this order. The consequential promotion to HSG-II/HSG-I will be governed by the instructions of the DG Posts letter dated 12.11.2002 (Annexure A-7). As the officials would have already availed two financial up-gradations, there may not be any monetary benefits flowing out of the placement in LSG/HSG-II cadres. There shall be no order as to costs.

9. The Apex Court in the case of Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 held as under:-

12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same

Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus: The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai case and of Macleod, C.J., in Haridas case did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Bhagwan v. Ram Chand:

'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that inquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.'

10. As the main issue in the other OA and this OA is one and the same, which has not been disputed by any party, notwithstanding the fact that the contentions raised in the reply of the private respondents has not, as per the counsel for private respondents, been adverted to in the order dated 11th March 2009, we are in respectful agreement with the main order therein and as such, this OA is also to be allowed on the same ratio as contained in the earlier order dated 11th March, 2009. Accordingly, the OA is allowed. Annexure A-13 order is quashed and set aside. Seniority list at Annexure A-1 is also quashed (if the same has not been stayed by the High Court in any Writ Petition). Respondents are directed to prepare revised seniority list granting promotion to LSG cadre year-wise, subject to availability of vacancies at the divisional level and Circle-wise seniority list is to be drawn up based on the revised divisional seniority. The entire drill of preparing seniority list as directed above and conducting of the DPC be completed within a period of six months from the date f communication of this order. The consequential promotion to HSG-II/HSG I will be governed by the instructions of the DG posts letter dated 12th November, 2002 (Annexure A-6). No cost.