Smt. M.R. Tshering And Others vs Union Of India And Others
2009 Latest Caselaw 3646 Del

*         HIGH COURT OF DELHI : NEW DELHI

+         Writ Petition (Civil) No.5924 of 1999

                      Judgment reserved on: August 25, 2009

%                     Judgment delivered on: September 9, 2009


1.   Smt. M.R. Tshering
     W/o Shri P.D. Tshering
     R/o B-78, Nanakpura, New Delhi.

2.   Shri P.D. Tshering
     S/o Shri L. Tshering
     R/o B-78, Nanakpura, New Delhi.

3.   Shri V.K. Tiwary
     S/o Shri G.P. Tiwary
     R/o Residence of DPS (Aizwal)
     Aizwal HO Complex
     Aizwal, Mizoram.                                ...Petitioners

                      Through Mr. Manu Mridul with
                              Mr. Anant K. Vatsya, Advs.

                      Versus

1.   Union of India
     Represented by Secretary to the Government of India
     Department of Posts
     Dak Bhawan
     Sansad Marg, New Delhi.

2.   Chairman
     Union Public Service Commission
     Dholpur House
     Shahjahan Road, New Delhi.


WP (C) No.5924/1999                                           Page 1 of 9
 3.   Secretary to Government of India
     Ministry of Personnel & Public Grievances & Pension
     North Block, New Delhi.

4.   Smt. Anju Nigam
     W/o Shri V. Tiwari
     Joint Director, Postal Staff College
     Ghaziabad.

5.   Smt. Sharda Sampath
     W/o Shri M. Sampath
     Director Postal Services
     Vijaywada, A.P.

6.   Shri M. Sampath
     S/o Shri Murugan
     Director Finance
     Department of Telecommunications
     Iluru, A.P.                                    ...Respondents

                      Through Mr. R.V. Sinha, Adv. for
                              Respondent No.1.
                              Ms. Amita Kalkal Chaudhary, Adv.
                              for Mr. Naresh Kaushik, Adv. for
                              Respondent No.2.

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Yes

2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported                   Yes
   in the Digest?


WP (C) No.5924/1999                                        Page 2 of 9
 MADAN B. LOKUR, J.

The Petitioners are aggrieved by an order dated 7 th April,

1999 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in O.A. No.2225/1997.

2. At the outset, it needs to be stated that before the Tribunal

there were six applicants but only three of them have preferred this writ

petition.

3. The Petitioners participated in the Civil Services

Examination (CSE) in 1987. They were selected and allotted the Indian

Defence Estates Service (IDES) and/or the Indian Defence Accounts

Service (IDAS). We have been told, and this is not in dispute, that

neither the IDES nor the IDAS is a participating service for the

foundation course held in the Lal Bahadur Shastri National Academy of

Administration in Mussoorie. Consequently, none of the Petitioners

were called to participate in the foundation course which commenced on

26th August, 1988.

4. Subsequently, it appears that candidates from other services

who were better placed in merit than the Petitioners did not join the

service allotted to them with the result that the Petitioners moved up the

ladder and were offered the Indian Postal Service (IPS). This offer was

given to the Petitioners sometime in September, 1988/December, 1988

which was in any case after the commencement of the foundation course

in the Academy.

5. The Petitioners were required to accept the offer (which they

did) and then they joined the Postal Staff College on 12th January, 1989

for probationary training.

6. On joining the IPS, the Petitioners were given their date of

entry into service as 12th January, 1989. The Petitioners were appointed

in the Junior Time Scale and after putting in four years of service in this

scale, they were promoted, on the basis of their seniority, to the Senior

Time Scale. Upto this point, there is no controversy or any dispute.

However, it is only when the case of the Petitioners came up for

consideration for promotion to the Junior Administrative Grade (JAG)

that a controversy regarding their date of entry in the service surfaced.

According to the Indian Postal Service (Group A) Rules, 1987

appointment to the JAG was to be made by selection on merit from

amongst officers of the Senior Time Scale having five years regular

service in that grade ( + four years service in the Junior Time Scale).

The Departmental Promotions Committee had a cut-off date of 1st

October of the concerned year for considering the promotion of the

Petitioners in view of an Office Memorandum dated 19 th July, 1989.

Since the Petitioners fell short of the eligibility period by a few months,

they could not be considered for promotion to the JAG as on 1 st October,

1997.

7. According to the Petitioners, since some other persons of the

same batch were given their date of entry in the service with effect from

26th August, 1988 they were considered for promotion and were placed

in the JAG. Resultantly, the Petitioners lost out by one year vis-à-vis

their batchmates and were required to compete for the JAG along with

those persons who had passed the CSE one year after the Petitioners,

that is, with the batch of 1989.

8. Feeling aggrieved, the Petitioners preferred an Original

Application before the Tribunal in which it was prayed that the

Petitioners be deemed to have been appointed in the Junior Time Scale

on and from 26th August, 1988 and to direct the Respondents to make

suitable amendments/corrections with regard to their date of entry into

the service. The other prayers regarding promotion to the Senior Time

Scale and the JAG are merely consequential to the principal prayer made

by the Petitioners.

9. By the impugned order, the Tribunal rejected the case of the

Petitioners and that is how they are now before us.

10. The Tribunal noted that the Petitioners were not initially

allotted the IPS. In fact, they were allotted either the IDES or the IDAS,

neither of which services participated in the foundation course which

commenced in the Academy on 26th August, 1988. In other words,

those candidates who had participated and were declared successful in

the CSE held in 1987 but were allotted IDES and IDAS could not

undertake the foundation course in the Academy in Mussoorie which

commenced on 26th August, 1988. There is no dispute on this fact.

11. It is only fortuitous that some persons who were better placed

in merit than the Petitioners dropped out from joining the civil services

with the result that the Petitioners were given an offer of appointment to

the IPS in September/December, 1988 which is after the commencement

of the foundation course. The Petitioners could not join the foundation

course midway and so they did not participate in it. Consequently, they

were not entitled to claim their date of entry in the service as on the date

of commencement of the foundation course but they were entitled to

claim their date of entry into the service with effect from 12 th January,

1989 when they actually started undergoing the probationary training.

12. In order to have their date of entry into the service antedated,

the Petitioners relied upon an Office Memorandum dated 7 th January,

1993 which deals with the seniority of Group A service probationers

who abstain from joining training to appear in the next CSE. A perusal

of the Office Memorandum makes it clear that it was issued to take care

of a depression in seniority of probationers who joined the service late

for the reason that these persons were desirous of appearing in the next

CSE. The relevant extract of the Office Memorandum in this regard

reads as follows:

"In the light of CAT Judgment this Deptt. has reviewed the instructions issued earlier referred to above for amending rules applicable to services recruitment to which it made through the C.S.E. for depression of seniority of probationers joining service late. It has been decided that a candidate who obtained permission to abstain from joining training to appear at the next CSE will retain his original seniority. This decision will be applicable to probationers appointed to different services on the basis of the C.S.E. held in 1987 onwards. If the relevant Services Rules has already been amended to depress the seniority of such probationers in light of instructions issued by this Deptt. earlier, necessary step may kindly be taken immediately for restoring the seniority by carrying out suitable further amendment with retrospective effect wherever necessary." (emphasis supplied)

13. It is quite clear from the above that the Office Memorandum

is not at all applicable to the case of the Petitioners because they did not

seek exemption from participating in the foundation course for sitting in

the next CSE - they were not even invited to participate in the

foundation course since they were allotted a service which was not

participating in the foundation course.

14. In view of the above, whichever way the problem is looked

at, the Petitioners have made out no case for interference with the

impugned order passed by the Tribunal. The date of entry of the

Petitioners in the service must remain 12 th January, 1989 and cannot be

antedated to 28th August, 1988.

15. There is no merit in the writ petition. Dismissed.

                                            MADAN B. LOKUR, J




September 9, 2009                           A.K. PATHAK, J
ncg

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