Navodaya Vidyalaya Samiti v. S. Murali Jawahar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938 WP(C).No. 36884 of 2008 (Z) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 702/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 31-07-2008 PETITIONER(S): ------------- 1. THE NAVODAYA VIDYALAYA SAMITI A 39, KAILASH COLONY, NEW DELHI,, REP. BY ITS JOINT COMMISSIONER, IN CHARGE,, OF THE COMMISSIONER. 2. THE ASST. COMMISSIONER, NAVODAYA VIDYALAYA SAMITI,, HYDERABAD REGION, SECUNDERABAD,, ANDHRA PRADESH. BY ADVS. SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.P.S.PRADEEP RESPONDENT(S): -------------- S.MURALI JAWAHAR NAVODAYA VIDYALAYA,, CHENNITHALA, ALAPPUZHA DIST. R,R1 BY ADV. SRI.P.V.MOHANAN R, BY ADV. SRI.P.V.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 36884/2008 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORIGINAL APPLICATION NO:702/2006 WITH ITS ANNEXURES EXT.P2: -DO- REPLY STATEMENT FILED ON BEHALF OF THE NAVODAYA VIDYALAYA SAMITHI DT.5.1.2007 EXT.P3: -DO- OF THE ORDER DT.31.7.2008 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN O.A.NO:702/2006 ## RESPONDENTS' EXTS: EXT.R1A: -DO- OF THE FINAL SENIORITY LIST OF UPPER DIVISION CLERK AT HYDERABAD REGION DT.17.3.997 JJ /TRUE COPY/ P.S.TO JUDGE K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------W.P(C) NO.36884 OF 2008 ---------------------------------Dated this the 5[th] April, 2016. ## JUDGMENT Asha, J. Respondent in the O.A 702/006 has filed the writ petition. The facts leading to the case are as follows. 2. The applicant in the O.A/respondent herein commenced service as a Clerk in Navodaya Vidyalaya Samithi (hereinafter referred to as the 'Samithi') on 24.10.1989 in Shillong Region. He became a U.D.Clerk on 1.5.1991. On the basis of his request he was granted inter-regional transfer to Hyderabad region as per Annexure A1 order and he has been continuing in the Hyderabad region from 5.1.1996 onwards. The applicant's transfer on the basis of Annexure A1 was on condition that he will be ranked juniormost in the region to which he was transferred. Subsequent to the transfer WPC36884/2008 2 Annexure A3 seniority list of U.D.Clerks as on 30.6.2001 was published in which the applicant was ranked 56 whereas the third respondent in the O.A -Shri. N.Vasudevan and two others who joined as U.D.Clerks on 1.5.1991 were ranked 1 to 3. 2. The promotion post of U.D.Clerk is that of Office Superintendent. As per recruitment rules for the post of Office Superintendents which was in force till 29.12.1999, 50% of the posts were to be filled up from among U.D Clerks of the Samithi who have put in 8 years of regular service in the grade in the Samithi. On completion of 8 years of service, petitioner submitted a representation Annexure A4 requesting for promotion. Though departmental promotion committee met in the year 2002 and 2003, the case of the applicant was not considered. On submitting further representations the petitioner received Annnexure A7 letter dated 25.11.2003 , by which he was informed that since he had joined the region only on 5.1.1996, his services from 1.5.1991 cannot be WPC36884/2008 3 considered for promotion, on account of his inter-regional transfer on request. Further by Annexure A8 dated 8.12.2003 the Principal of the Navodaya Vidyalaya was informed that the petitioner's case for promotion as Office Superintendent can be considered only with reference to his service from January 1996 i.e the date on which he joined the Hyderabad region on the basis of his request for transfer from Shillong region. On a further representation he was informed that there was no vacancy for considering him for promotion. It was under these circumstances that the applicant approached the Tribunal. 3. The petitioners herein filed a reply statement raising the contention that the services rendered by the respondent in Shillong region cannot be reckoned for the purpose of promotion. It was stated that the petitioner can be considered for promotion, reckoning his service with effect from the date on which he joined Hyderabad region only and WPC36884/2008 4 on the basis of the seniority in the region. 4. The Tribunal, after considering the rival contentions on either side, found that the recruitment rules only provide for 8 years of regular service as UD Clerk as eligibility for promotion as Office Superintendent under the 50% quota available for U.D.Clerks. The Tribunal found that there was no prohibition in reckoning of the services rendered in Shillong region and that applicant's case for promotiion should have been considered on the basis of his total service, reckoning the same from 1.5.1991 onwards. The Tribunal also noticed that there was an amendment effected to the recruitment rules in the year 1999, by which qualifying service for the purpose of promotion was enhanced from 8 years to 10 years service as U.D.Clerk. Therefore in case a vacancy of Office Superintendent was available for promotion for respondent, before the amendement in 1999, 8 years' service was sufficient. The Tribunal also noticed the judgments of WPC36884/2008 5 the Apex Court in Union of India v. C.N.Ponnappan[AIR 1996 SC 764] , Scientific Adviser and another V V.M. Joseph (AIR 1998 SC 2318) and the Full Bench decision of this court in Pushparaj v.Manoharan [2006(2)KLT 951(FB)] . Wherein it has been categorically held that the services rendered by an employee in a region does not wipe out on account of a transfer to another region, on the basis of own request, on compassionate grounds, only because his senirity is lowered down and the entire service is liable to be reckoned towards qualifying service for the purpose of promotion. Following the above dictum the Tribunal held that applicant was entitled to be considered for promotion as Office Superintendent on completion of 8/10 years of service including the services rendered in Shillong region. There was a further direction to the respondents/petitioners herein to promote the applicant on the basis of eligibility in accordance with the findings therein. WPC36884/2008 6 5. It is as against the above order passed by the CAT that the petitioners have filed this writ petition. 6. We have heard Adv.P.K.Vijayamohanan, learned Counsel appearing for the petitioners and Adv.P.V.Mohanan, learned Counsel appearing for the respondent. 7. It is settled law, in the light of the decisions rendered in the judgments of the apex court in Ponnappan's case (supra) and reiterated in a series of susequent judgments, that service rendered prior to an inter-divsional/inter-regional transfer based on request do not wipe out from the total qualifying service. It is only the seniority that is lowered down on account of request transfer. The condition in the order of transfer is only to the effect that he will join the new division/region as the juniomost as on the date on which he joins the new region. There cannot be any disqualification over the service rendered before transfer. The respondent will be entitled to be considered for promotion from the list of those WPC36884/2008 7 having 8/10 years of service as and when his turn arose within the list of the qualified hands. The contention of the petitioners in the reply statement and in this writ petition that the respondent's service prior to his transfer to Hyderabad region cannot be reckoned for the purpose of promotion as Office Superintendent, is baseless. 8. However during the course of arguments the learned Counsel for the petitioners fairly conceded that there cannot be any dispute over reckoning the service rendered by respondent in Shillong Region along with his service in Hyderabad region for the purposes of promotion. But his case can be considered only when his turn among those UD Clerks having 8 years/10 years service reaches, reckoning his seniority i.e seniority among eligible UD Clerks. That means applicant's case was liable to be considered with reference to the services rendered by him as U.D.Clerk for the period from 1.5.1991 onwards subject to seniority among eligible UD WPC36884/2008 8 Clerks. 9. It is pointed out that serial Nos:1 to 3 have already been promoted to the vacancies which arose at the time when the recruitment rules of 1995 was in force. Whatever it may be, going by the seniority list Ann A3, it is seen that the applicant is fourth among those who were having 8 years service, in the year 1999. Therefore applicant was entitled to be considered for promotion as against the vacancy which was available immediately after promotion was granted to serial nos:1 to 3. 10. In this view of the matter we do not find any reason for interfering with the order passed by the CAT, except by clarifying that respondent's turn for promotion would be on the basis of seniority among the eligible hands with 8/10 years of service, as the case may be depending on the date of occurrence of vacancy. It is seen that this Court has passed an interim order directing that the claim of the respondent need WPC36884/2008 9 be considered only if his turn arose as per the seniority list. In view of the directions and declarations of the Tribunal, which we are affirming, applicant is entitled to be considered and granted promotion immediately after the promotion of the 3 senior hands with eight years service in Annexure A3 seniority list and for the benefits as directed in the order passed by the CAT. Accordingly we dismiss this Writ Petition with the above observations. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ WPC36884/2008 10