Andhra Pradesh High Court - Amravati

The Union Of India vs Shri Nnr Reddy S/O Late Ramulu on 4 October, 2024

APHC010538312013
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                 [3470]
                           (Special Original Jurisdiction)

                   FRIDAY ,THE FOURTH DAY OF OCTOBER
                     TWO THOUSAND AND TWENTY FOUR

                                 PRESENT

        THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

          THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

                       WRIT PETITION NO: 4087/2013

Between:

The Union Of India and Others                        ...PETITIONER(S)

                                  AND

Shri Nnr Reddy S/o Late Ramulu                       ...RESPONDENT

Counsel for the Petitioner(S):

   1. G.ARUN SHOWRI(CENTRAL GOVT. COUSEL)

Counsel for the Respondent:

   1. N (P) ANJANA DEVI SATYANARAYANA

The Court made the following:



                                               RAVI NATH TILHARI,J


                                                 NYAPATHY VIJAY,J
                                      2



           * THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
             THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

                           + W.P.No.4087 of 2013

                                % 04.10.2024



Between:

The Union of India
Rep., by its Secretary, Ministry of Defence,
New Delhi and 4 Others
                                                          ...Petitioner

And

Shri NNR Reddy S/o Late Ramulu

                                                   ...RESPONDENT(S)




Counsel for the Appellant: Sri Arun Showri, S.C. for Central Govt.



Counsel for the Respondent(S): None appeared



< Gist :

> Head Note:

? Cases Referred:
1
  (2006) 6 SCC 57
1
  1999 (2) SCC 119
1
  2003 (8) SCC 413
                                      3



          HONOURABLE SRI JUSTICE RAVI NATH TILHARI

                                   AND

           HONOURABLE SRI JUSTICE NYAPATHY VIJAY



                    WRIT PETITION No.4087 of 2013



ORDER:

(per Hon'ble Sri Justice Nyapathy Vijay)

The present Writ Petition is filed questioning the order dated

18.07.2012 in O.A.No.1254 of 2010 passed by the Central Administrative

Tribunal, Hyderabad.

2. The facts leading to the present writ petition are as follows:

The applicant/respondent herein was initially appointed as Lower

Division Clerk (L.D.C.) in Head Quarter, Eastern Naval Command,

Visakhapatnam on 20.05.1972 on causal basis. Subsequently, the

services of the applicant were regularized with effect from 01.09.1979 in

the grade of L.D.C. against a sanctioned post.

3. As the career prospects in the cadre of L.D.C. is very slow, the

applicant applied for the post of Telephone Operator Grade-II and got

selected and appointed to the said post with effect from 25.08.1983 on

temporary basis. The applicant was also granted lien in the post of

L.D.C. for a period of two years. Subsequently, the services of the

applicant in the cadre of Telephone Operator Grade-II were regularized

with effect from 13.06.1984 against a sanctioned post. The applicant was

placed on probation and the lien period in the grade of L.D.C. was further

extended for a period with effect from 25.08.1985.

4. While so, as per the orders of this Court in W.A.No.239 of 1980

dated 20.12.1985, the services of the applicant were regularized in the

cadre of L.D.C. from the date of his initial appointment i.e. 20.05.1972.

The applicant was given in-situ promotion as the basic pay of the

applicant was stagnated as per Time Bound Promotion Scheme (TBOP).

In consequence of in-situ promotion, the pay scale of the applicant was

fixed in the scale of 4,000-100-6000 on 01.05.1997. The applicant was

also granted second financial up-gradation under Assured Career

Progression (ACP) scheme with effect from 09.08.1999.

5. However, the benefit granted to the applicant under TBOP Scheme

as well as ACP scheme were withdrawn by the Department on

05.12.2006 and the applicant was given first time bound promotion under

TBOP scheme on 25.08.1999 by counting his service from the date of

regularization as Telephone Operator Grade-II dated 13.06.1984 and

ignoring his service in the cadre of L.D.C. for a period of 11 years and 3

months i.e. from 20.05.1972.

6. The applicant gave representation on 13.11.2006 bringing all the

facts and contending that he had worked in the Department for 34 years

and was granted only one promotion under TBOP scheme, though he

was entitled for two promotions under that scheme in the time span of 16

and 26 years of service. It is the case of the applicant that his service

should be counted from 20.05.1972.

7. The respondents/writ petitioners filed their counter contending that

the applicant is not entitled for the relief claimed. However, in the

counter affidavit filed before Central Administrative Tribunal, it was

admitted that the pay scales of L.D.C. and Telephone Operator Grade-II

are identical. Further, it was contended that benefits under TBOP

scheme and ACP scheme cannot run concurrently and the promotion

granted to the applicant were withdrawn as per the instructions of the

Union of India. It was however stated that the applicant was given first

time bound promotion under TBOP scheme on 25.08.1999 and second

time bound promotion under the said scheme was also granted to the

applicant on 25.08.2009 on completion of 26 years of service.

8. The Tribunal, taking into consideration the nature and purport of

TBOP scheme and judgments of the Hon'ble Supreme Court in Union of

India v. Mathivanan1 (Civil Appeal No.5739 of 2005) and Dwijen

Chandra Sarkar & another v. Union of India2, allowed the O.A.,

directing the respondents/writ petitioners to revise and grant two financial

(2006) 6 SCC 57

1999 (2) SCC 119

up-gradations under TBOP scheme on completion of 16-26 years of

service taking into his service as L.D.C. from 20.05.1972.

9. Heard Sri Arun Showri, learned counsel for Central Government.

There was no representation for the respondent.

10. The issue that arises for consideration in this writ petition is,

"Whether the order of the Tribunal in directing the writ

petitioners/respondents to count the service of the applicant/respondent

from the date of his initial appointment as L.D.C. i.e. 20.05.1972 under

TBOP scheme is sustainable?"

11. The TBOP scheme which was introduced with effect from

30.11.1983 to grant next higher grade to Group C and D employees who

were stagnated without promotion in the same grade for more than 16

years. The purpose of the scheme is to ensure that on completion of 16

years of continuous service, an employee would be entitled for

promotional scale. The scale of pay for L.D.C. as well as Telephone

Operator Grade-II were admitted to be identical by the department in the

counter affidavit filed before the Tribunal. The switch of applicant from

the cadre of L.D.C. to the cadre of Telephone Operator Grade-II was for

better career prospects and this should not make any difference for

consideration of benefit under TBOP scheme since the scale of pay

remained same.

12. As the services of the applicant in the cadre of L.D.C. was

regularized with effect from 20.05.1972 as per the orders of this Court in

W.A.No.239 of 1980, the applicant's consideration under TBOP scheme

should be with effect from that date only. It would be a totally different

scenario, if the scale of pay was different to the cadre of Telephone

Operator Grade-II and L.D.C.

13. The issue that fell for consideration in Dwijen Chandra Sarkar's

case (2 supra) which was relied upon by the Tribunal was "The point in

issue is whether for the purpose of computing 16 years' service for

getting a "time-bound promotion", as per the relevant circular of the

Government dated 17-12-1983, the appellants are entitled to count

the service rendered by them in the Rehabilitation Department of the

Government of India prior to their transfer to the Department of

Posts and Telegraphs."

14. The Hon'ble Supreme Court after considering the purpose of the

scheme held that a distinction should be made regarding seniority in the

new cadre and benefits of the past service in the previous department for

the purpose of counting the benefit under the TBOP scheme. The Hon'ble

Supreme Court held that past service of the appellants is to be counted

for the limited purpose of eligibility under the TBOP scheme. The

paragraphs 18 and 19 are extracted below for ready reference;

"18. Hence the transfer order and circular concerned of 1983 which required that the past service should not count for seniority, cannot have any bearing on eligibility for time-bound promotion. Seniority and time-bound promotions are different concepts, as stated above.

19. For the above reasons, we hold that the past service of the appellants is to be counted for the limited purpose of eligibility -- for computing the number of years of qualifying service, to enable them to claim the higher grade under the Scheme of Time-bound Promotions."

15. A similar issue was again considered by Hon'ble Supreme Court in

the case of Union of India v. V.N.Bhat3 that the employee therein sought

transfer from service in Army to Postal department and the same was

acceded. The Hon'ble Supreme Court held that even if the transfer was

voluntary, the benefit of TBOP scheme could not be denied. The

principle in the Dwijen Chandra Sarkar's case (2 supra) was followed.

The relevant portion of the Judgment at paragraph 4 is extracted below

for ready reference;

"The well-settled principle of law that even in the case where the transfer has been allowed on request, the employee concerned merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion. In terms of the Schemes aforementioned, promotion is to be granted for avoiding stagnation only within the said parties. The said Schemes have been framed because they are beneficial ones and are thus required to be implemented. The Scheme merely perused that any person having rendered 16/26 years of service without obtaining any promotion

2003 (8) SCC 413

could be entitled to the benefit therefor. It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on selection basis, the employee concerned, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefor."

16. The Hon'ble Supreme Court again considered the similar

arguments of the department in Union of India v. M. Mathivanan, and it

was argued that the Judgment in Dwijen Chandra Sarkar's case (2

supra) was distinguishable on the ground that the inter departmental

transfer was in public interest by the department in that case and as such,

it would not be applicable to cases where the transfer is voluntary and at

the instance of an employee.

17. The Hon'ble Supreme Court after considering the scope of the

TBOP scheme held that whether transfer is voluntary or involuntary would

not make any difference for the benefit under the scheme. The relevant

observation at paragraph 17 thereof is extracted below;

"17. It is no doubt true as observed by the High Court that Dwijen Chandra Sarkar1 was not an identical case, inasmuch as in that case, the appellants were transferred "in public interest", whereas in the instant case, the transfer was volunteered by the respondent employee for enrolment in army. That, however, in our opinion, does not make a difference since to us, the language of para 1 of

the Scheme is clear, unambiguous and leaves no room for doubt. That aspect was also considered in Dwijen Chandra Sarkar1. But, in any case, even that point is also finally concluded by another decision of this Court in Union of India v. V.N. Bhat2 in which the employee was initially appointed in the Ministry of Defence and voluntarily transferred himself to the office of the Post Master General.

18. In the facts of this case, the applicant continued in the same

department though in a different post with the same scale. If the

contention of the department is to be accepted, the applicant would be

continued in the same grade from 1972 onwards till 1999 i.e for a period

of 27 years and in the opinion of this Court, the same would defeat the

purport of the TBOP scheme.

19. Considering the purport of the TBOP scheme and In the light of the

above judgments of the Hon'ble Supreme Court, this Court does not find

any merit in the writ petition and the same is dismissed and the order of

the Tribunal shall be implemented within a period of three months from

today. No order as to costs.