Bombay High Court
Union Of India Through Secretary ... vs Shivnath S/O Ramlal Kangali on 2 August, 2017
Bench: V.A. Naik
1 J-WP-2756-13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2756 OF 2013
1. Union of India,
through Secretary,
Department of Posts,
Dak Bhavan, Sansad Marg,
New Delhi.
2. Director of Accounts (Postal),
Civil Lines, Near Aakashwani
Square, Nagpur.
3. Chief Postmaster General,
Maharashtra Circle,
Mumbai 1. ..... PETITIONERS
...V E R S U S...
Shivnath s/o Ramlal Kangali,
Aged about : 55 years,
R/o Near New Futala
Near Shiv Mandir,
Amravati Road, Nagpur. ... RESPONDENT
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Shri R. S. Sundaram, Advocate for the petitioners.
Shri S. K. Verma, Advocate for the respondent.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
02/08/2017.
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)
By this writ petition, the petitioners challenge the order
of the Central Administrative Tribunal, Nagpur dated 18 th December,
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2012 allowing the original application filed by the respondent and
directing the petitioners to promote the respondent on the post of
Junior Accountant on notional basis w.e.f. 08/04/2005.
Few facts giving rise to the petition are stated thus :-
The respondent belongs to the Scheduled Tribes and he
was inducted in the services of the petitioners on a Group - D post on
23/12/1982. The respondent was promoted as a lower division clerk in
the year 1993 and he passed the departmental examination for
promotion to the post of junior accountant in the year 2001. The
respondent also secured a caste validity certificate that he belongs to
the Scheduled Tribes in the year 2004. Since the respondent was
promoted to the post of junior accountant on 25/06/2008, when
according to the respondent he was entitled to to be promoted after he
secured the caste validity certificate in the year 2004, the respondent
filed the original application before the Central Administrative Tribunal.
The Central Administrative Tribunal allowed the original application
filed by the respondent and directed the petitioners to grant deemed
date of promotion to the respondent w.e.f. 08/04/2005 and grant
actual monetary benefits to the respondent w.e.f. 25/06/2008. Being
aggrieved by the said order, the petitioners have filed the instant
petition.
Shri Sundaram, the learned counsel for the petitioners
submitted that the Tribunal was not justified in directing the petitioners
3 J-WP-2756-13.odt
to grant deemed date of promotion to the respondent w.e.f.
08/04/2005, when there was no vacancy in the post of junior
accountant from the Scheduled Tribes category, as on that date. It is
submitted that no employee of the petitioners that had passed the
departmental examination for promotion to the post of junior
accountant after the respondent, was promoted to the post of junior
accountant before the respondent was promoted on 25/06/2008. It is
submitted that since no lower division clerk or any other employee
holding an equivalent post was promoted to the post of junior
accountant before 25/06/2008 from the scheduled tribes category by
superseding the respondent, the respondent could not have sought the
deemed date of promotion from the year 2004.
Shri Verma, the learned counsel for the respondent has
supported the order of the Tribunal. It is submitted that the Tribunal
rightly considered that in the year 2004, the respondent had fulfilled
both the criteria, of passing the departmental examination and of
securing the caste validity certificate and hence as per the Government
of India order dated 16/06/1989, the respondent was entitled to be
promoted to the post of junior accountant even before the other
employees that had passed the departmental examination before the
respondent had passed the same, as those employees did not possess
the caste validity certificate and the respondent possessed the same as
per the Government of India order dated 16/06/1989. It is submitted
4 J-WP-2756-13.odt
that since the petitioners had promoted Smt. Sadapal on 08/04/2005
though she did not possess a caste validity certificate at that time, the
Tribunal had rightly directed the petitioners to promote the respondent
on the post of junior accountant w.e.f. 08/04/2005. The learned
counsel sought for the dismissal of the writ petition.
On hearing the learned counsel for the parties and on a
perusal of the impugned order and the other documents tendered by
the petitioners as well as the respondent, it appears that the Tribunal
was not justified in directing the petitioners to grant deemed date of
promotion to the respondent on the post of junior accountant w.e.f.
08/04/2005. On the said date, there was no vacancy in the post of
junior assistant in the Scheduled Tribes category. Smt. Sadapal, who
was promoted to the post of junior accountant on 08/04/2005 had
passed the departmental examination in the year 1999 whereas the
respondent had passed the departmental examination in the year 2001.
Admittedly, Smt. Sadapal who belongs to the scheduled tribes, had
passed the departmental examination for promotion to the post of
junior accountant earlier in point of time. The vacancies in the
Scheduled Tribes category were filled by appointing the lower division
clerks and the employees working on the other equivalent posts, on the
basis of the dates on which they passed departmental examination. The
Government of India order on which the respondent had relied on for
seeking his promotion at an earlier point of time would not help the
5 J-WP-2756-13.odt
respondent. The Government of India order dated 16/06/1989 reads
thus :-
"The appointing authorities should verify the caste
status of Scheduled Caste / Scheduled Tribe candidates at the time of
initial appointment and again at the time of promotion against a
reserved vacancy for Scheduled Caste / Scheduled Tribe. For this
purpose, the caste and community to which a Scheduled Caste /
Schedule Tribe person belongs, his place of residence and the name of
the same, should be pasted on the top of the service book, personal or
any other relevant document covering the employee to facilitate such
information. They may be mentioned that Scheduled Caste person
whose caste has been de-scheduled after his initial appointment as a
Scheduled Caste, is no longer entitled to enjoy the benefit of reservation
in promotion."
There is nothing in the Government of India, order
dated 16/06/1989 that provides that only the employees possessing
caste validity certificates should be promoted earlier in point of time
though they may have passed the departmental examination after the
other eligible employees had passed the examination. Admittedly, the
respondent had not passed the departmental examination before G.P.
Hedaoo, P. E. Kale and Smt. Sadapal who were promoted in the year
2001, 2003 and 2005 from the Scheduled Tribes category. When the
vacancy arose in the year 2008, it appears that the respondent was
6 J-WP-2756-13.odt
promoted to the post of junior accountant on 25/06/2008. In the
circumstances of the case, the respondent could not have sought his
promotion in the year 2004 merely because he secured a caste validity
certificate in the year 2004 though the employees that were promoted
before the respondent to the post of junior accountant had passed the
departmental examination before he passed the same. The Tribunal did
not consider the matter in the right perspective while holding that the
respondent was entitled to be promoted to the post of junior
accountant, notionally from the day Smt. Sadapal was promoted to the
said post.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order of the Tribunal is quashed and set aside.
The original application filed by the respondent stands dismissed. Rule
is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Choulwar
