IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF OCTOBER 2019 PRESENT THE HON'BLE MR. JUSTICE S N SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.47984/2018 (S-CAT) BETWEEN:
1. UNION OF INDIA BY SECRETARY, DEPARTMENT OF POSTS DAK BHAVAN, NEW DELHI - 110 011.
2. THE CHIEF POST MASTER GENERAL KARNATAKA CIRCLE, NO.1, PALACE ROAD, BENGALURU - 560 001 ...PETITIONERS (BY SRI.JAYAKARA SHETTY H, ADVOCATE) AND:
SRI. MOHAMED NOORULA S/O TOUKAL SAHIB AGED ABOUT 61 YEARS, PRESENTLY RETIRED POSTAL ASSISTANT, OFFICE OF CHIEF POSTMASTER GENERAL KARNATAKA CIRCLE, BENGALURU - 560 001 RESIDING AT NO.1112/36 4TH MAIN, M.C.LAYOUT, VIJAYANAGAR, BENGALURU - 560 040.
…RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE HON’BLE CAT, BANGALORE WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED ORDER DTD 4.4.2017 VIDE ANNX-A MADE IN O.A.NO.170/00598/2016 AND ORDER DTD 26.4.2018 MADE IN REVIEW APPLICATION NO.170/00004/2018 VIDE ANNX-B PASSED BY THE HON’BLE CAT AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
ORDER The petitioners are assailing the correctness and legality of the order dated 4.4.2017 passed by the Central Administrative Tribunal (for short “CAT”) in O.A.No.170/00598/2016.
2. The petitioners were respondents 1 and 2 respectively before the CAT.
3. The facts leading to this writ petition are that the respondent who was the applicant before the CAT joined the Postal department on 22.1.1980 as Time Scale Clerk and was brought into clerical cadre on 21.05.1984.
The postal department introduced Time Bound One Promotion Scheme (TBOP) and Biennial Cadre Review Scheme(BCR) on completion of 16 and 26 years of service respectively. The respondent-applicant also averred in the application that orders were passed by the Department granting TBOP/BCR to the eligible officials on par with their juniors and this scheme was implemented through out the country. The petitioner No.1 issued an order dated 17.5.2000 stating that the placements under TBOP and BCR schemes are based on length of service of officials and the same is not based on seniority and as such the seniors cannot claim higher scale of pay on par with their juniors who are eligible for higher scale of pay by virtue of completion of prescribed period of service. The validity of the said order/circular dated 17.5.2000 was the subject matter of litigation in various Benches of the CAT and High Courts including the CAT in O.A.No. 459/2009. The CAT, Bengaluru, by order dated 14.10.2011 had quashed the Circular by holding that the benefit deserves to be extended to the said applicant in O.A.No.459/2009, which came to be confirmed by this Court vide order dated 25.7.2012 in W.P.No.63430- 31/2012(S-CAT).
Based on the above facts, the respondent-applicant submitted a representation to the second petitioner on 20.4.2015. The representation of the respondent- applicant was rejected by order dated 24.4.2015 on the ground that placement under TBOP is based on the length of service and not based on seniority. Being aggrieved by the said order, the applicant was constrained to approach the CAT by filing Original Appeal.170/00598/2016.
The present petitioners who are arrayed as respondents on receipt of notice filed reply statement and vehemently contended that the respondent-applicant had not completed required number of years of service and as such he is not entitled for the benefit under the TBOP Scheme. They also took a specific contention that the application is filed after 22 years and as such the same deserves to be dismissed on the ground of delay.
The Tribunal having examined the pleadings and the records and having taken note of the judgments rendered by the Tribunal in similar set of facts relating to TBOP scheme allowed the application holding that the respondent-applicant is eligible for the benefit of the scheme on par with his junior Smt. Shylaja. But however, the Tribunal came to the conclusion that applicant is entitled to only notional benefits from the date on which the O.A. was instituted. The present petitioners had also sought review of the order of the CAT as per Annexure-A to the writ petition. The CAT dismissed the review application by recording a finding that the order under review does not warrant any interference.
Being aggrieved by this judgment and order of the CAT, the petitioners are before this Court.
4. The learned counsel for the petitioners would argue that the respondent-applicant is not entitled for the benefit of the scheme only on the count that he was senior to Smt. V. Shylaja as the respondent-applicant has not completed required number of years of service fixed under the financial upgradition[TBOP/BCR] scheme. He would further contend that his case also cannot be considered on account of inordinate delay in approaching the Tribunal. The counsel for the petitioners would also argue that the scheme of financial up-gradation under TROP/BCR has been withdrawn by the department and the scheme has already been replaced with MACP scheme as per the recommendation of the 6th Pay commission.
5. Having heard the learned counsel for the petitioners and on perusal of the records it is seen that applications of similarly placed applicants have been allowed holding that they would be entitled for the benefit under the TBOP scheme and the same is confirmed by this Court and the Apex Court , which is evident from Para 8 of the order of the CAT and the same is culled out as under:
8. In O.A. Nos.246 to 248/2013, a case exactly similar to the case on hand, the applicants therein have claimed parity on par with their juniors and this Tribunal vide order dated 29.04.2016 granted the benefit of TBOP/BCR Schemes. The relevant portion of the said order reads as follows:
“6. We have carefully examined the pleadings of both parties and studied the judgments produced before us. There is no question in case after case where similar issues were agitated various benches of this Tribunal have held that the applicants therein are entitled for the relief they prayed for. The fact that this matter has gone right up to the Hon’ble Supreme Court which upheld the decisions taken by first the Tribunal and thereafter the High Court concerned in favour of the applicants therein in significant. In fact in Union of India Vs. Leelamma Jacob (2005 SCC (L&S) 132), the Hon’ble Apex Court even felt that the BCR scheme violated existing rules and was liable to be set aside; however, the Hon’ble Apex Court refrained from quashing the BCR scheme in order not to disturb the benefits already granted under BCR scheme to numerous officials.
7. This matter is also covered by our orders in OA No.249 to 255/2013 decided on 21.3.2014 and more recently in OA No.279 to 282/2013 dated 27.5.2014. We therefore set aside the impugned order in Annexure A23 as far as the applicants in the present OA alone are concerned. We allow the applicants the same benefits made available by this Tribunal in the cases. However we make it clear that while notional benefits can flow from the date on which the applicants junior DV Nagaraj got the benefit of the BCR scheme, the actual benefit shall be computed only from the date on which the OA was actually instituted.
8. The OA is allowed only to the extent indicated above. There is no order as to costs.”
6. On perusal of the records it is also evident that the respondent-applicant joined the postal department on 22.1.1980. The Time Bound One Promotion Scheme was introduced on 8.2.1996. If these facts are taken into consideration, the contention of the petitioners that the respondent-applicant has to complete 16 years of service to be eligible for the benefit of the above said scheme is not sustainable. The petitioners have failed to elaborate as to on what ground the respondent is not entitled for the benefit under the above said scheme.
7. The respondent-applicant has been denied of the benefit though he was eligible for the same and has been unnecessarily dragged by the petitioners to the Court by denying the benefit. The promotion is one of the service condition and it is incumbent on the part of the Department to extend the benefits to all the eligible employees without waiting for an application seeking for the same. It is settled law that every employee has the right to be considered for promotion and the right for being considered for promotion is one of the “matter relating to employment” within the meaning of Article 16(1) of the Constitution of India and it was incumbent on the part of the petitioners to consider the applicant’s case in consonance with the norms and Rules since his case falls within the prescribed zone of consideration. The petitioners arbitrariness in not considering the applicant for promotion in this case is a clear infraction of fundamental right under Article 16(1) of the Constitution of India. In view of these observations, the contention of the petitioners that there is delay by the applicant in approaching the authorities to seek promotion is unsustainable.
8. In the light of the above said observations, we are of the view that the applicant is entitled for the benefit of the TBOP scheme and we do not find any error or infirmity in the order passed by the CAT.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE *alb/-
Sd/- JUDGE