Delhi High Court

Union Of India vs Bhagwan Dass on 14 May, 2010

Author: A.K.Sikri

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

             REVIEW PETITION NO. 366 OF 2009 & CM NO.11702/2009
                                      IN
                           WP (C) No. 1403 OF 2004

%                                                       Date of Decision: 14th May, 2010.

        UNION OF INDIA                                                          . . . Petitioner

                                through :               Mr.  H.K.   Gangwani         with     Ms.
                                                        Manpreet, Advocates

                                        VERSUS

        BHAGWAN DASS                                                           . . .Respondent

                                through:                Mr. V.S.R. Krishna, Advocate

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE SURESH KAIT

        1.      Whether Reporters of Local newspapers may be allowed
                to see the Judgment?
        2.      To be referred to the Reporter or not?
        3.      Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)

1. CM No. 11702 of 2009

There is a delay of 16 days in filing the review petition, which is not

opposed. Delay is condoned.

CM stands disposed of.

2. REVIEW PETITION No. 366 of 2009

By means of this review petition, the petitioner/Union of India seeks

review of orders dated 08.05.2009 vide which the writ petition of the

Union of India was dismissed confirming the order of the Central

Administrative Tribunal (hereinafter referred to as „the Tribunal‟). Since

neither the petitioner nor the respondent appeared on the date fixed for

hearing, the petition was decided after perusing the records and the

impugned orders. The grievance of the petitioner was that the

petitioner was not heard and therefore, some aspects which the

petitioner wanted to highlight had not been taken into consideration.

Though in the application, no reason is given as to why the petitioner

did not appear on 08.05.2009, however, having regard to the fact that

none appeared on that day and we did not have the assistance of the

lawyers, we decided to hear the matter on merits again.

3. The respondent herein was aggrieved by his pay fixation on his local

officiating promotion to Junior Administrative Grade (JAG) to which

grade, he was appointed on 01.10.2000. While fixing his pay, the

petitioner herein had taken into consideration pay in the grade of Junior

Time Scale (JTS). Claim of the respondent was that his pay being

drawn by him in a higher grade in the Senior Time Scale should not

have been taken into consideration. This contention of the respondent

has been accepted by the Tribunal thereby allowing his AO.

4. For appreciating the controversy, we shall taken note of certain facts.

The petitioner was appointed as Group-B Officer in the Department of

Telecommunication, Ministry of Communication in the year 1983.

Further promotions are to the post of JTS grade and STS grade, which

are governed by Rule 17 of Indian Posts and Telegraphs Accounts and

Finance Service (Group-A) Recruitment Rules, 1972. Rule 17 thereof is

relevant for us, which deals with appointment by promotion and reads

as under:

"17. Appointment by promotion to the various grades

After the initial constitution of the Service, appointment to various grades shall be made as follows:-

(i) Junior Time Scale:- Appointment by promotion to the Junior Time Scale in the Service shall be made by selection on merit from amongst officers of the Posts and Telegraphs Accounts and Finance Service, Postal Wing, Group „B‟ and Posts and Telegraphs Accounts and Finance Service, Telecom Wing, Group „B‟ with not less than three years of approved service in the grade on the recommendations of a duly constituted Departmental Promotion Committee, in consultation with the Commission. The vacancies for appointment to the Junior time Scale shall be shared between the officers of the Posts and Telegraphs Accounts and Finance Service, Postal Wing, Group „B‟ and the Posts and Telegraphs Accounts and Finance Service, Telecom Wing, Group „B‟ in the ratio arrived at on the basis of the sanctioned strength of the respective Group „B‟ Services as on the 1 st day of January of the year to which the vacancies relate.

(ii) Senior Time Scale: Appointment to the Senior Time Scale in the Service shall be made by promotion of officers in the Junior Time Scale, with not less than 4 years service in the grade, in the order of seniority subject to the rejection of the unfit.

Provided that officers of the Posts and Telegraphs Accounts and Finance Service, Postal Wing, Group B and Posts and

Telegraphs Accounts and Finance Service, Telecom. Wing, Group B who are on the approved list for promotion to the Junior Time Scale under Clause (i) may be allowed to officiate in the Senior Time Scale in an officiating capacity as a purely temporary measure if they have rendered 8 years total regular service in that grade and above till such time as officers of the Junior Time Scale are available for regular promotion to Senior Time Scale."

5. It is clear from the reading of the aforesaid Rule that an officer in Grade

„B‟ Service with not less than 3 years of approved service as Grade B

Officer is eligible for promotion to the post of Junior Time Scale (JTS).

Likewise, for promotion to the post of Senior Time Scale (STS), officer

should have rendered four years service in the JTS. However, proviso

to sub-rule (ii) of Rule 17 opens another channel of promotion for Grade

„B‟ officers is without even first becoming JTS. It stipulates that if

Group „B‟ officer has rendered 8 years approved service and is in the list

for promotion to the JTS under Clause (i) of Rule 17, he can be allowed

to officiate in the STS in an officiating capacity as a purely temporary

measure.

6. The respondent herein was promoted as STS under the aforesaid

proviso to Clause (ii) of Rule 17 on 22.09.1994. By that time he had

rendered 11 years of service in Grade „B‟ and admittedly, he was on the

approved list for promotion to JTS. His turn for substantive promotion

to JTS came in the year 1998 and he was appointed to JTS on

02.01.1998. However, fact remains that he continued to officiate as

STS, that is in the higher post to which he was appointed in the year

1994 under the aforesaid proviso. Thus, even when he was given

promotion to the post of JTS with effect from 02.01.1998, he continued

to work as STS right from 1994. Keeping in view the aforesaid fact that

he was working as STS, the respondent was give further promotion to

the post of Junior Administrative Grade (JAG) on local officiating basis

with effect from 03.04.1998 for a period of 90 days. This period was,

however, extended from time to time with artificial breaks till

01.10.2000 when the respondent was transferred to BSNL on deemed

deputation basis.

7. While fixing the pay of the respondent in JAG, the petitioner took into

consideration the salary of the pay scale attached to the post of JTS.

This action of the petitioner was challenged by the respondent by filing

OA before the Tribunal claiming that pay which was actually drawn by

him as STS should have been taken into consideration, more so when

the respondent was working as STS right from 1994 till his promotion

on local officiating basis in the grade of JAG. The Division Bench of the

Tribunal before which the matter came up for hearing referred the same

to the Full Bench. The Full Bench passed the orders dated 21.07.2003

while interpreting proviso to Clause (ii) of Rule 17, it opined that since

promotion of the respondent to the post of STS was in accordance with

the aforesaid Recruitment Rules, statutory in nature, it was „regular

appointment‟ as the same was in terms of those Rules. The Full Bench

in Para 11 defined the nature of appointment, when it is regular, and

observed as under:

"11. The workd (sic. word) "regular/regularly" is pregnant with meaning. It would be other than which is irregular. Holding of a regular post is not necessarily one which is substantive holding of the post. If the post has been held in accordance with the rules on the subject as in the present case in that event, it will not be irregular or de hors the rules. The meaning necessarily has to be given as used in FR 22 (I) (a) (i), if the framers of the Rules would have any other intendment, they would have used the word "Substantive" which occurs in the earlier part of FR 22 (I)

(a) (i). the word "regular" obviously has been used not in the same sense as substantive and as already referred to above, if the promotion was in accordance with the Rules, then it would be a regular promotion and the post would be held by the applicant regularly for the purpose of fixation of the pay. We hasten to add that this will not be a correct interpretation if the matter was concerning seniority or for any other purpose. Substantive appointment can always be deferred till availability of permanent posts or at times posts which are not permanent or substantive in nature. This will not be true in the case of a post held by a person regularly. Therefore, the view expressed by the Ernakulam Bench of this Tribunal in the case of P.R. Unnikrishnan Nair (supra) cannot be taken to be correct."

8. Having held that appointment of the respondent to the post of STS was

regular, it applied FR 22 (I) (a) (i), which relates to the fixation of pay

of a Government servant on his promotion and came to the conclusion

that in such circumstances when the respondent was promoted to the

grade of STS on regular basis, on his further promotion to the post of

JAG, it is the salary being drawn by him in STS grade which should have

been taken into consideration and not the pay scale of JTS. On the

basis of this order of the Full Bench of the Tribunal, the Division Bench

allowed the OA of the respondent.

9. We find ourselves in agreement with the aforesaid approach and

reasoning adopted by the Tribunal, which according to us, has rightly

interpreted Rule 17 and Fundamental Rule 22. We, thus, find no merit