A.V. Antony and others v. Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM **==> picture [58 x 8] intentionally omitted <==** THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934 OP (CAT).No. 2010 of 2012 (Z) ----------------------------O.A.NO.769/2009 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER(S): ------------- 1. A.V.ANTONY, AGED 66 YEARS, S/O.LATE VARKEY, AMBATTU HOUSE, (PO) THIRUMARADY, ERNAKULAM DISTRICT PIN 686687. 2. K.U.PAILY, AGED 70 YEARS, S/O.ULAHANNAN, KIZHAKKUMTHOTTATHIL HOUSE, - (PO) OORAMANA, (VIA) RAMAMANGALAM, PIN 686663, ERNAKULAM DISTRICT. 3. P.P.KUMARAN, AGED 70 YEARS, S/O.KUTTAPPAN, PUTHENPURACKAL HOUSE, - (PO) PANDAPPALLY, PIN 686672,(VIA) ARAKUZHA, MUVATTUPUZHA, ERNAKULAM DISTRICT. 4. M.S. BHASKARAN NAIR, AGED 69 YEARS, S/O.M.K. SANKARAN NAIR, MUNDEKUDIYIL HOUSE, KARIMATTOM, (PO) AYAVANA, PIN 686 676, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADVS.SRI.P.K.MADHUSOODHANAN SRI.P.M.BINOY KRISHNA RESPONDENT(S): -------------- 1. THE DIRECTOR OF POSTAL SERVICES(HEAD QUARTERS), KERALA CIRCLE, TRIVANDRUM-695 003. 2. CHIEF POST MASTER GENERAL, KERALA CIRCLE, TRIVANDRUM-695003 OP (CAT).No. 2010 of 2012 (Z) 3. DIRECTOR GENERAL(POSTS), DEPARTMENT OF POSTS INDIA, NEW DELHI 110001. 4. UNION OF INDIA, - REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS, NEW DELHI 110 001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- OP (CAT).No. 2010 of 2012 (Z) APPENDIX PETITIONERS' EXHIBITS : EXT.P1 COPY OF THE O.A NO.769/2009 WITH ANNEXURES FILED BY THE PETITIONERS BEFORE THE C.A.T., ERNAKULAM BENCH ANNEXURE A13 COPY OF THE MEMO NO ST/8-3/REVIEW/2005 DATED AT TRIVANDRUM DATED 6-08-2009 OF THE 2ND RESPONDENT. ANNEXURE A1 COPY OF THE FINAL ORDER DATED 11-08-1998 IN OA NO 1148/96 OF THIS HON'BLE TRIBUNAL ANNEXURE A2 COPY OF THE FINAL ORDER IN OA NO.113/93 DATED 19/8/1994 OF C.A.T., JAIPUR BENCH ANNEXURE A3 COPY OF THE JUDGMENT DATED 6-11-2001 IN O.P 20711/98 ANNEXURE A4 COPY OF THE REPRESENTATION DATED 12-1-2009 OF APPLICANTS 2 TO 4 TO DIRECTOR OF POSTAL SERVICES. ANNEXURE A5 COPY OF THE MEMO DATED 22/12/1999 ANNEXURE A6 COPY OF THE MEMO DATED 25-06-1996 OF THE ASSISTANT DIRECTOR, OFFICE OF THE 2ND RESPONDENT. ANNEXURE A7 COPY OF THE CIRCLE GRADATION LIST OF POST OFFICE OFFICIALS AS ON 1-07-1982 ANNEXURE A8 COPY OF THE ORDER DATED 4-6-1996 OF THE ASSISTANT DIRECTOR(STAFF) OFFICE OF THE 2ND RESPONDENT. ANNEXURE A9 COPY OPF THE LETTER DATED 8-11-2006 ISSUED BY 4TH RESPONDENT. ANNEXURE A10 COPY OF THE ORDER DATED 4-08-1995 ISSUED BY 4TH RESPONDENT. ANNEXURE 11 COPY OF THE LETTER NO ST/8/3/REVIEW/2005 DATED 17-04-2009 ANNEXURE A12 COPY OF THE JUDGMENT DATED 6-07-2009 IN CONT.CASE (C) NO 581/09 EXT.P2 COPY OF THE REPLY STATEMENT DATED 16-07-2010 FILED BY THE RESPONDENTS IN O.A NO.769/2009 ANNEXURE R1 COPY OF APEX COURT DECISION IN THE CASE OF UOI & ORS VS.LEELAMMA JACOB & OTHER (2003) 12 SCC 280 ANNEXURE R2 COPY OF POSTAL DIRECTORATE MEMORANDUM NO.22-1/89 PE DATED 11/10/1991 OP (CAT).No. 2010 of 2012 (Z) ANNEXURE R3 COPY OF POSTAL DIRECTORATE LETTER NO.22-1/95-PE 1 DATED 8/2/1996 ANNEXURE R4 COPY OF POSTAL DIRECTORATE LETTER NO 22-8/2000-PE 1 DATED 17/5/2000 ANNEXURE R5 COPY OF JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 24/1/2000 IN WPC NO 20022/1997-S ANNEXURE R6 COPY OF JUDGMENT OF THE HON'BLE HIGH COURT OF CHENNAI DATED 24/11/2004 IN UOI VS.CAT AND M.P KESAVAN NAMBISAN ANNEXURE R7 COPY OF GOI MINISTRY OF FINANCE NO F2(78)-E.III(A)/66 DATED 4-2-1966 ANNEXURE R8 COPY OF GRADATION LIST OF SAVINGS BANK CONTROL ORGANISATION (SBCO) SUPERVISORS EXT.P3 COPY OF THE REJOINDER FILED BY THE PETITIONERS IN O.A NO.769/2009 ANNEXURE A14 COPY OF THE LETTER NO.BB 79 DATED 14-08-2002 OF THE SENIOR SUPERINTENDENT OF POST OFFICERS, ALUVA DIVISION, ALUVA. ANNEXURE A15 COPY OF THE DIVISIONAL GRADATION LIST OF LSG/TBOP OFFICIALS AS ON 1-7-1992 OF ALUVA POSTAL DIVISION ANNEXURE A16 COPY OF THE RELEVANT EXTRACT OF THE PARTICULARS OF POSTAL ASSISTANT'S CADRE SENIORITY POSITION PREPARED FROM THE KERALA CIRCLE GRADATION LIST AS ON 1/7/1982 EXT.P4 COPY OF THE FINAL ORDER DATED 9-11-2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN O.A NO.769/2009 RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. -------------------------------------------------------O.P.(C.A.T.) No. 2010 of 2012 -------------------------------------------------------Dated this the 28[th] the day of June, 2012 **J U D G M E N T** ## **MANJULA CHELLUR (Ag.CJ)** Heard learned counsel for the petitioners as well learned Assistant Solicitor General of India. 2. As a matter of fact, the questions involved in the present petition are similar to the issues involved in O.P.1538/12, 1539/12 and 1540/12 which came to be disposed of on 7.6.2012. However, learned counsel for the petitioners contends that by virtue of Annexure A3 judgment in O.P.No. 20711/1998 dated 06.11.2001, the facts in the present case have to be considered on a different footing than the matters disposed of on 7.6.2012. On a perusal of Annexure -A3, following orders are made; “Heard counsel on either side. Standing Counsel for the Department has placed before us judgment of a bench of this court in O.P.No. 20022 of 1997 in similar circumstances with regard to Telecom O.P.(C.A.T.) No. 2010 of 2012 2 Department. Same question is raised in the Postal Department. The principles laid down in the judgment would govern this case also. In such circumstances we set aside the order of the Tribunal. Counsel also submitted that the issue raised herein is also pending before the Supreme Court. We make it clear if the Supreme Court renders judgment favourable to claim of the applicants, they would also get the benefit of the judgment. The original petition is disposed of as above”. A reading of the directions of this Court in Annexure A-3, it would clearly indicate that, if the matter pending before the Supreme Court results in a judgment favourable to the claim of the applicants, then such benefit would be extended to the petitioners as well. When this was brought to the notice of the Tribunal, at Para-10 of the orders of the Tribunal, the Tribunal in detail discussed how the decision in **Union of India** v. **Leelamma Jacob and others** [(2003) 12 SCC 280] does not come to the aid of the present petitioners. It would be relevant and proper to extract Paragraph 10 which reads as hereunder : O.P.(C.A.T.) No. 2010 of 2012 3 “In respect of the case of Union of India v. Leelamma Jacob & Others relied upon by the applicants, the facts are entirely different. There are 4 grades and there is a Limited Departmental Competitive Examination for promotion from Grade I and II. When the BCR Scheme was introduced there were instances when the officials in Grade-1 got the benefit of financial upgradation under BCR Scheme and got the higher pay scales of Grade III and even Grade IV. This resulted in juniors bypassing seniors like Leelamma Jacob and Others who have passed the competitive examination from Grade I to Grade II and became their seniors in the higher grade. It was to set this injustice right that the Apex Court dismissed the Civil Appeal filed by the Department of Telecom. Therefore, Leelamma Jacob and others became beneficiaries of the judgment of the Apex Court because the DOT's orders on implementation of BCR specified that those who have completed 26 years in the basic grade will be eligible for financial upgradation to BCR. As per the Department's order dated 07.07.1992 the criterion fixed was the years of service in the O.P.(C.A.T.) No. 2010 of 2012 4 basic grade. It was not linked to the seniority of the officials in the higher grade. It created an anomalous situation of juniors in the lower grade getting higher pay than their seniors. The applicants, in this O.A. have no such claim that they have passed the 1/3[rd] quota LSG examination and became senior to their admitted juniors in PA seniority list. Therefore, Apex Court's decision in Leelamma Jacob's case does not come to their aid. In fact, a situation similar to Leelamma Jacob's case, whereby seniors in the higher grade were bypassed by juniors in the lower grade was set right as a result of judicial decisions, by the 3[rd] respondent by issuing Annexure R-3. Para 2 of Annexure R-3 is extracted supra clearly shows that such placement in BCR will not be applicable to “the officials who are senior to those officials, brought on transfer under Rule38 of P&T Vol. IV and are placed in the next higher scale of pay by virtue of length of service”. The Department was, therefore, given the liberty to modify such a situation. The DOT rectified the same in its circular dated 13.12.1995, whereby promotion to Grade IV can be given only to the senior most officials in Grade III. This was done in O.P.(C.A.T.) No. 2010 of 2012 5 supersession of the order dated 07.07.1992. This position has been made amply clear by the Apex Court in Civil Appeal No. 4369/2006 filed by Bharat Sanchar Nigam Limited v. Chiddu (2011) 4 SCC 384. Paras 31 and 32 are furnished below:- 31. The language of the Circular dated 13.12.1995makes it crystal clear that the Government took a fresh decision in supersession of earlier instructions that promotion to Grade IV may be given from amongst officials in Grade III on the basis of their seniority in the basic grade. Hence, the decision of the Government to make promotions to Grade IV on the basis of their seniority in the basic grade could take effect only from 13.12.1995 and not from a prior date and the respondents, who had filed O.A.No. 2484 of 1997 and O.A. No.2099 of 1997 in the Central Administrative Tribunal could not claim any promotion to Grade IV on the basis of their seniority in the basic cadre with effect from any date prior to 13.12.1995. 32. The Central Administrative Tribunal was, therefore, not right in allowing O.A.Nos. 2484 and 2099 of 1997 by the order dated 11.08.2000, directing the Government to consider promoting the applicants to Grade IV with effect from the dates their immediate juniors in the basic grade seniority were so O.P.(C.A.T.) No. 2010 of 2012 6 promoted subject to their being found fit with consequential benefits of seniority as well as arrears of pay and allowance and of retiral benefits in the case of those of the applicants in the O.As who had retired on superannuation. In our considered opinion, the High Court ought to have interfered with the decision of the Tribunal”. 3. Having regard to the appreciation of the facts before the Tribunal in proper perspective and also our opinion with regard to Rule 38 pertaining to the law laid down by Single Judge in the judgment dated 7.6.2012 the findings in the above case would squarely apply to the facts of the present case. Accordingly the petition is disposed of in terms of O.P.1538/12 and O.P.NO. 1539/12. ## **MANJULA CHELLUR (ACTING CHIEF JUSTICE)** ## **A.M.SHAFFIQUE** ## **( JUDGE)** rka