Union of India & Ors v. Sabeeena Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **O.P(CAT).No.186 OF 2019** **AGAINST THE ORDER IN OA.NO.180/00396/2015 DATED 18-12-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/ RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI.** - **2 FLAG OFFICER COMMANDING-IN-CHIEF FOR SSO (CP), HEAD QUARTERS SOUTHERN NAVAL COMMAND, COCHIN - 682 004.** - **3 CHIEF RECORD OFFICER, DSC RECORDS, MILL ROAD, KANNUR, KERALA - 670 013.** - **4 THE CHIEF CONTROLLER (FOR CQA (ADMINISTRATION), NAVAL AERONAUTICAL QUALITY ASSURANCE SERVICE, KOCHI.** **BY ADV.SHRI.P.VIJAYAKUMAR, ASG OF INDIA.** ## **RESPONDENT/ APPLICANT:** **SABEENA VARGHESE, AGED 43 YEARS,W/O. VARGHESE DANIEL, LOWER DIVISION CLERK, 870 A DSC PLATOON, THIRUVANANTHAPURAM,** **RESIDING AT MUKALUVITIAKIZHAKKETHIL, MANAKKALA RO, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691 551.** **R1 BY ADV. SRI.B.HARISH KUMAR R1 BY ADV. SMT.SMRUTHI SASIDHARAN.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-10-2019, THE COURT ON 18-10-2019 DELIVERED THE FOLLOWING:** **OP(CAT).186 of 2019** **- 2 -** **K.Vinod Chandran & V.G.Arun, JJ. -------------------------------O.P (CAT) No.186 of 2019-Z -------------------------------Dated, this the 18[th] day of October, 2019** ## **JUDGMENT** ## **Vinod Chandran, J.** **Union of India is before us, challenging the order of the Tribunal which directed the respondent-applicant to be granted her promotion as Upper Division Clerk [“UDC” for short] and the further consideration of the promotion as Assistant, reckoning her past service in the organization.** **2. The respondent-applicant was appointed as a Lower Division Clerk [“LDC” for short] in the Defense Security Corps [“DSC” for short] on 20.08.1997 at Thambaram, Chennai. She was promoted as UDC on 21.02.2006. In the year 2007, she sought for a compassionate transfer to Kochi, which is a different unit with respect to the seniority of employees. In accordance with the willingness, for forfeiture of past service submitted by her as also the existing rules,** **- 3 -** **OP(CAT).186 of 2019** **she was placed junior-most at Kochi in the post of LDC, she being obliged to give up her promoted status, on being granted the compassionate transfer. In Kochi though she was reduced in rank, her pay was protected minus her Grade Pay. Later on 01.10.2011, she along with another sought for a mutual transfer. The same was also granted by the DSC, again on the very same terms as applied to her transfer from Thambaram to Kochi; Kochi and Trivandrum again being separate units for the purpose of seniority.** **3. The learned Assistant Solicitor General of** **India submits that as per the extant Rules, on the basis of which compassionate transfer was granted, a person so moving out of a unit would not only forsake seniority and be adjusted as the junior-most in the grade in the transferred unit; but also forfeit their past service for the purpose of consideration of promotion. As far as Modified Assured Career Progression [“MACP” for short] Scheme, she has already been granted the same. Annexure R1(e), produced along with the reply statement filed by the respondents makes** **- 4 -** **OP(CAT).186 of 2019** **it abundantly clear that having forfeited her service in the earlier units, she cannot turn around and claim promotion based on the long service. It is also contended that her claim for promotion reckoning her past service could have been claimed immediately after joining the post at Kochi, which she never did. It was only by a Original Application of 2015 that the present claim was raised, by which time she would have been normally eligible for consideration for promotion to the post of UDC in Kochi; but for her mutual transfer to Trivandrum, again on her own option. The delay stands against her claim being allowed and it is also submitted that there are almost 84 seniors in the unit at Trivandrum, who would be affected by the directions in the order of the Tribunal who have not been impleaded in the O.A.** **4. The learned Counsel appearing for the respondent projects the hardship of the respondent-applicant in having no benefit of the long service she has in the DSC. Merely for reason of her transfer, she cannot be debarred from seeking for a** **- 5 -** **OP(CAT).186 of 2019** **promotion, an incidence of her service, which period has to be determined counting her past service. It is submitted that her promotion to the post of UDC was hard-earned, especially since she passed a written test to achieve that. Reliance is also placed on** _**Union of India & Ors**_ **.** _**v**_ **.** _**C.N.Ponnappan**_ **[** _**(1996) 1 SCC 524**_ **] to further buttress her contention. The grant of MACP as asserted by the petitioner is said to be a mirage insofar as the real benefit having not been given to her. It is submitted that only on such MACP being declined, the respondent-applicant was constrained to approach the Tribunal seeking her due promotions, reckoning her past service.** **5. At the outset we have to notice that the claim in the O.A. is only with respect to her consideration to the post of UDC on completion of 8 years and then to the post of Assistant/Office Superintendent, which is stated to be on completion of 18 years in the cadre of UDC. Such promotions are claimed reckoning her past service in the DSC, both at Thambaram and Kochi. There is no grievance agitated on** **- 6 -** **OP(CAT).186 of 2019** **the grant of MACP.** **6. In this context, we have to notice the Regulation as is evident from the Civilian Personnel Routine Orders (CPRO) 73/73, as amended vide 11/75:** **“No benefit of past service is given to the staff adjusted in other Corps/Service/Units for purpose of fixation of seniority in the grade in which they are adjusted. Their seniority on their adjustment in new appointments will be determined in accordance with their date of joining the new unit on their adjustment”.** **There is no ambiguity insofar as seniority of anyone transferred, on compassionate grounds after 01.07.1973, as is seen even from Annexure R1(a) produced in the reply statement. It is to be determined without reckoning their previous service on their reporting to the new units. The promotion also has to be considered on the basis of the completed years in the unit in which an employee has joined on such compassionate transfer.** **7. Here we notice the decision of the Hon'ble Supreme Court relied on by the learned Counsel for the respondent-applicant and also by the Tribunal. Therein,** **- 7 -** **OP(CAT).186 of 2019** **almost a similar situation was considered and it was held that for considering a transferred employee for promotion, the relevant rule required “eight years regular service in the grade”, which also reckons the regular service rendered in a place from which a person has been transferred on compassionate grounds. It was held by the Hon'ble Supreme Court that though the prescription is that as a result of transfer an employee would be placed at the bottom of the seniority list at the place of transfer, it does not wipe out his regular service rendered at the earlier place and for consideration of promotion, this would have to be reckoned. Here we have to pertinently notice that the Hon'ble Supreme Court took note of an amendment to the rule of promotion applicable from 30.06.1986, which read as under:** **“with eight years regular service in the grade in the unit/ office/ establishment/ laboratory/ Center/ unit, etc. in which they are considered for promotion”.** **The operative portion of the judgment is also extracted here under:** **- 8 -** **OP(CAT).186 of 2019** **“6. Since we are in agreement with the law of the Tribunal on the interpretation of the rules as they stood at the relevant time, the appeals fail and are accordingly dismissed. No costs”.** **8. Hence, the Hon'ble Supreme Court considered the issue on the basis of the rule which existed prior to the amendment and the amended rule. The specific reservation as to the dictum being applicable to the pre-amended rule cautions us from adopting the principle in this case for reason of the rule being totally different. We have extracted the order regulating the conditions of service of a person who is transferred on compassionate grounds. The transferred employee forfeits his past service and it cannot be reckoned for any benefits in any other units of the DSC, which also has a distinct seniority list.** **9. We also have to notice the amendment to the rule as noticed in** _**C.N.Ponnappan**_ **, which applies to all the Central services. The rule position commends us to take a different view in this case. The respondent-applicant having chosen for a transfer on compassionate grounds and then for a mutual transfer,** **- 9 -** **OP(CAT).186 of 2019** **again on personal grounds, would be regulated by the orders governing such transfers. The seniority position being distinct in the separate units, the applicant cannot claim for reckoning her past service for the purpose of promotion. We also notice that the respondent never had a case for promotion before any authorities and made a claim before the MACP. She was granted MACP, as is evident from the document referred to above and also from Annexure A7 produced by the applicant herself.** **10. The learned Counsel for the respondent has serious objection in the grant of MACP, which we will not deal with since it is not a question raised in the O.A. We desist from making any observation on the claim for MACP, which the respondent-applicant would be entitled to agitate before the authorities if she is so desirous, subject, however, to the laws of limitation. However, we cannot but observe that the contention that, having not been granted the proper MACP she turned around and sought for promotion cannot at all be countenanced to condone the delay. We also notice that** **OP(CAT).186 of 2019 - 10 -** **the respondent-applicant has not impleaded the necessary parties who would be affected by any orders passed in her favour.** **For all the above reasons, we are of the opinion that the order of the Tribunal has to be set aside. We do so, allowing the Original Petition (CAT). Parties are left to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **vku/-** **- 11 -** **OP(CAT).186 of 2019** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE OA NO.180/00396/2015 FILED BY THE PETITIONER DATED 12.04.2015, BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.** - **EXHIBIT P1(A1) TRUE COPY OF THE APPOINTMENT ORDER DATED 20/08/1987 ISSUED BY THE AIR OFFICER COMMANDING.** - **EXHIBIT P1(A2) TRUE COPY OF THE TRANSFER/POSTING DATED 08/01/07 ALONG WITH THE MOVEMENT ORDER DATED 05.01.2007 ISSUED BY THE RESPONDENTS.** - **EXHIBIT P1(A3) TRUE COPY OF THE REPRESENTATION DATED 11.09.2013 SUBMITTED BEFORE THE OFFICE OF THE 3RD RESPONDENT.** - **EXHIBIT P1(A4) TRUE COPY OF THE REJECTION ORDER DATED 24.10.2011 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1(A5) TRUE COPY OF THE PROCEEDING DATED NIL9.2013 ISSUED BY THE OFFICE OF THE 3RD RESPONDENT.** - **EXHIBIT P1(A6) TRUE COPY OF THE PROCEEDINGS DATED 27.05.2014 ISSUED TO THE RESPONDENT.** - **EXHIBIT P1(A7) TRUE COPY OF THE PAY FIXATION PROFORMA DATED 31.10.2014 ISSUED TO THE APPLICANT.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN 180/00396/2015 FILED BY THE PETITIONER DATED NIL.10.2015.** - **EXHIBIT P2(A1) TRUE COPY OF THE CIVILIAN PERSONNEL ROUTINE ORDERS (CPRO) 73/73 AS AMENDED VIDE 11/75.** - **EXHIBIT P2(A2) TRUE COPY OF THE WILLINGNESS CERTIFICATE OF THE APPLICANT DATED 28.12.2006.** - **EXHIBIT P2(A3) TRUE COPY OF THE JOINT APPLICATION FOR MUTUAL TRANSFER DATED 22.06.2010.** **EXHIBIT P2(A4) TRUE COPY OF THE LETTER PAY/TECH/CORR/PF DATED 24.10.2011.** **OP(CAT).186 of 2019 - 12 -** **EXHIBIT P2(A5) TRUE COPY OF THE LETTER NO.CA-6/P1-870'A/48 DATED 27.09.2013. EXHIBIT P2(A6) TRUE COPY OF THE LETTER NO.277 DATED 16.03.2015. EXHIBIT P3 TRUE COPY OF THE REJOINDER IN OA NO. 396/2015 FILED BY THE RESPONDENT DATED 08.11.2015 FILED BEFORE THE HON'BLE CAT, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS DATED 15.03.2016 FILED BEFORE THE HON'BLE CAT, ERNAKULAM. EXHIBIT P4(A1) TRUE COPY OF THE APPENDIX OF CPRO 82/80. EXHIBIT P4(A2) TRUE COPY OF THE SENIORITY LIST OF LDC IN DEFENCE SECURITY CORPS. EXHIBIT P5 TRUE COPY OF THE ORDER IN OA NO.180/00396/2015, DATED 18.12.2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BRANCH. [TRUE COPY]**