THE HONOURABLE MR v. P.Rajagopalachary2. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.7.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMWrit Petition No.43086 of 2006and M.P.No.1 of 20061. Union of India, rep.by Secretary (O.L.), Government of India, Department of Official Language, Ministry of Home Affairs, 1st Floor Lok Nayak Bhavan Khan Market, New Delhi-110003.2. The Director, Central Hindi Training Institute, Department of Official Language, Ministry of Home Affairs, 7th Floor Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi-3. ..PetitionersVs.1. P.Rajagopalachary2. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600 104. ..RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorari to call for the recordsrelating to the order of the Central Administrative Tribunal, ChennaiBench passed in O.A.No.620 of 2005, dated 5.6.2006 and quash the same.For petitioners : Mr.B.Santha Kumar, Sr.C.G.S.C.For R.1 : Mr.V.Vijayashankar https://hcservices.ecourts.gov.in/hcservices/ O R D E RELIPE DHARMA RAO, J.The first respondent herein had filed O.A.No.620 of 2005 beforethe Central Administrative Tribunal, Madras Bench, praying to callfor the proceedings of the second appellant herein in its letterNo.A20011/1/99-CHTI/1436, dated 7.3.2005 and quash the same andconsequently direct the respondents to refix the applicant's paywith effect from 31.8.1999 under the ACP Scheme, if necessary bygiving him notional promotion on par with his juniors as per theseniority list dated 6.1.2003 with all consequential and attendantbenefits.2. The applicant joined the services of the appellants asStenographer Grade-III on 10.1.1969. According to theapplicant/first respondent, he was stagnated in the same post formore than 30 years and it was pursuant to an OM, dated 6.8.1999,fixing the ratio of 40:40:20 between the Stenographer Grade III, IIand I respectively, that the applicant got his promotion as Grade-IIStenographer and immediately thereafter as Grade-I in May, 2004. Hehas further submitted that he is the senior most Stenographer in theHindi Teaching Scheme, Central Hindi Training Institute in all thezones in India, but no seniority list was published periodically andtherefore, he was not in a position to know what his actual positionwas in the seniority list; that for the first time in the year 2003,a seniority list of stenographers was published in which theapplicant's name was found at Sl.No.1 and from seeing the said list,the applicant was surprised to find that one Mr.Vijay Pal Singh, whois at Sl.No.6 of the said list had been promoted as StenographerGrade-II, some time in May 1994; that the said Mr.Vijay Pal Singh isjunior to the applicant by over 18 years, having joined service onlyin the year 1987 as Steno Grade-III, whereas the applicant had joinedin the service way back in the year 1969. 3. It has further been submitted on the part of the applicantthat when he made enquiries as to how Mr.Vijay Pal Singh had securedpromotion overlooking him, he learnt that the appellants are adoptingan arbitrary policy of posting persons of their liking and by notcirculating seniority lists periodically, ensuring that those in theseniority list did not know their correct position; that in thismanner, the appellants appear to have promoted one Mr.Mulraj Patialin the year 1989 itself, who joined as Steno Grade-III with effectfrom 9.5.1983 and since the applicant was working in the South zone,he had no knowledge or information about these out-of-turn promotionsgiven to his juniors and it was only after seeing the consolidatedseniority list published in the year 2003, he realised that he wasthe senior most and that the appellants, by making illegal and out-of-turn promotions had prejudicially affected his rights, deprivinghim of promotions. https://hcservices.ecourts.gov.in/hcservices/

4. It has further been submitted that pursuant to the OM of theGovernment of India, introducing the Assured Career ProgressionScheme (ACP) w.e.f. August 1999, the applicant who had not securedany promotion for more than 33 years, got two financial upgradations,by proceedings dated 24.1.2002 and the applicant had been illegallydeprived of his rightful promotion of which he became aware only inthe year 2003 and therefore, he made representations on 3.6.2004,3.8.2004 and 1.10.2004, requesting that he may be given notionalpromotion as Stenographer Grade-II on par with his juniors and thathis pay at the time of grant of ACP with effect from August 1999 bere-fixed accordingly; that had the applicant got his promotion asStenographer Grade-II in the year 1989 or at least with effect from1994 on par with Mr.Vijay Pal Singh, he would have got higher payfixation at the time of such promotion and got increments every yearwhich would have been taken into account at time of fixation of hispay under the ACP Scheme with effect from August, 1999; that when hewas under the bonafide belief that the 2nd appellant would considerhis representations and issue suitable orders refixing his pay, hewas surprised to receive a letter dated 4.11.2004 by which it wasinformed by the second appellant that regional-wise seniority listwas followed and hence the applicant, who belongs to South Zone,could not be considered earlier. Since the applicant's furtherrepresentation was also rejected by the second appellant by replydated 7.3.2005, he filed the Original Application before the Tribunal.5. A detailed counter affidavit has been filed on the part ofthe respondents before the Tribunal, who are the appellants herein.In the counter, it has been submitted, inter alia, that the senioritylist of Group 'C' and Group 'D' posts of Hindi Teaching SchemeNorthern Region (Headquarters, New Delhi) and Examination Wing (NewDelhi) were amalgamated, but the seniority list of Group 'C' andGroup 'D' posts of other regions were on the original basis only asbefore and that promotion to Group 'C' and Group 'D' posts sanctionedin the Sub Institutes of Central Hindi Training Institute at Chennai,Hyderabad, Calcutta, Bangalore etc. were being made on the basis ofthe seniority lists of Group 'C' and Group 'D' posts in the concernedregion and the same position is applicable to the posts ofStenographers; that after the establishment of Central HindiTraining Institute of New Delhi in the year 1985, along with otherposts, one post of Stenographer Grade-C was also sanctioned, whichwere to be filled by Stenographers of the Northern Region andaccordingly, as per the existing rules, Stenographer Grade-III ofNorthern Region Mr.Mool Raj Patiyal was given promotion against thispost w.e.f. 30.8.1989 and thereafter, Mr.Patiyal was given promotionas Research Assistant (Hindi Typing and Stenography) w.e.f.17.5.1994on adhoc basis and later Mr.Vijayapal Singh, Stenographer Grade-D wasgiven promotion as Stenographer Grade-C w.e.f. 18.5.1994 on adhocbasis. https://hcservices.ecourts.gov.in/hcservices/

6. It has been submitted on the part of the Administration thatthe applicant has prayed for notional promotion from the date hisjunior Shri Mool Raj Patiyal was given promotion w.e.f. 31.8.1989 andthus he is challenging the promotion of Mr.Patiyal after 16 years;that seniority list was maintained on regional basis and circulatedfrom time to time, but the applicant did not challenge the promotionof Mr.Patiyal and adhoc promotion of Mr.Vijayapal in 1994.7. The Tribunal, considering all the facts and circumstances ofthe case, has allowed the Original Application filed by theapplicant/first respondent, directing the Administration to refix theapplicant's pay with effect from 1994 on par with Mr.Vijaypal Singhand grant further consequential pay benefits. Aggrieved, theAdministration has come forward to file this writ petition.8. On a perusal of the entire materials placed on record, we areable to see that the contention of the applicant/first respondentthat his juniors were promoted earlier has not been rebutted by theappellants. The only argument advanced on the part of the appellantsis that earlier they have maintained region-wise seniority andtherefore, the question of promoting the applicant earlier has notarisen. It is to be pointed out that the appellants have miserablyfailed to bring to our notice any Rule or Regulation or anything ofthat sort permitting or requiring them to maintain the seniorityregion-wise. 9. The other ground of the appellants that the application filedby the applicant before the Tribunal is bad for non-joinder ofnecessary parties also cannot be upheld for the reason that theapplicant himself has explained that he is not challenging thepromotion given to his juniors, but is seeking the re-fixation of hispay scale. Therefore, it cannot be said that the juniors of theapplicant who were promoted earlier by the Department are the properand necessary parties to the lis. 10. The learned counsel appearing for the appellants hasrepeatedly argued that the claim of a retired person for promotioncannot be considered and has relied on the judgment of the HonourableApex Court in STATE OF UTTAR PRADESH AND OTHERS vs. ROSHAN SINGH ANDOTHERS [(2006) 13 SCC 661]. In the said case, the respondents andthree others were working as Cooperative Supervisors under theCooperative Department, a non-Government post. After their retirementfrom service, they filed writ petition before the High Court seekingpromotion to the post of Cooperative Inspector, Group II (aGovernment post) with effect from a date on which date the personswho were junior to them had been promoted and the learned singleJudge of the Allahabad High Court had allowed the said writ petitionfollowing the earlier judgment of the same High Court in W.P.No.13240(SS) of 1990, dated 3.5.1995 (Bengali Prasad Sharma case). The saidjudgment of the learned single Judge was also confirmed by the https://hcservices.ecourts.gov.in/hcservices/ Division Bench. On appeal, the Honourable Supreme Court hasdistinguished the case before it from the earlier judgment of theAllahabad High Court in Bengali Prasad Sharma case and held that'unequals cannot be treated equally' and further held that theearlier decision of the Allahabad High Court in Bengali Prasad Sharmais inapplicable since unlike the case before it, in the earlier case,Bengali Prasad was holding the Government post of CooperativeInspector, Group-II and while in service he had filed the writpetition. On such observations, the Honourable Apex Court hasreversed the findings rendered by the High Court of Allahabad.11. Even though the learned counsel for the appellants has triedto put it that the claim of a retired person for promotion cannot beconsidered and has relied on the above judgment of the HonourableApex Court, the answer lies in the very same judgment that the firstrespondent herein was in service, holding a Government post, when hesubmitted his representation for promotion from the date when hisjuniors were promoted and therefore, his claim is very wellmaintainable.12. Further, one thing that must be made clear is that theapplicant/first respondent has stated in the petition filed by himbefore the Tribunal that he was given to understand about theseniority list only during the year 2003 and immediately thereafter,at the fag-end of his service, he has represented to the authoritiesconcerned for redressal of his grievance and since the same has notevinced any fruitful result, he has approached the Tribunal beloweven during his service period. Now, during the pendency of theseproceedings, the applicant has retired on 31.12.2006, but at therelevant point of time i.e. when his juniors were promoted,surpassing him, he was very well in service and he has ventilated hisgrievances even during his service period to the appellants and ontheir rejection, he approached the Tribunal in the year 2005 itself.Therefore, it cannot be said that his claim is not maintainable,since he initiated the proceedings before the Tribunal while he wasvery well in service. Therefore, the claim of the appellants on thisground needs to be rejected and is rejected accordingly.13. The same reasoning would apply to the other judgment reliedon by the learned counsel for the appellants, delivered by a DivisionBench of this Court in UNION OF INDIA vs. K.VARGHESE AND OTHERS [2006(5) CTC 668], to which one of us (Elipe Dharma Rao, J.) is a partywherein also it has been held that 'retired officers have no rightfor actual promotion.' 14. Throughout, a vague stand has been maintained on the part ofthe appellants that earlier the seniority was maintained on regionbasis. But, they have utterly failed to show any Rule or Regulationwhich permits/prescribes such a type of fixation of seniority. Whenthere is no Rule or Regulation permitting the authorities to maintain https://hcservices.ecourts.gov.in/hcservices/ the seniority list region wise, that too without disclosing toanybody, we are not in a position to appreciate the action taken onthe part of the appellants.15. Though on the part of the Administration, it has beencontended that they are regularly publishing the seniority lists andcirculating among the staff members, no scrap of paper has beenproduced before us to show that the copies of the so called region-wise seniority lists were furnished to all the employees, includingthe applicant. Had there been such circulation of the senioritylists among the staff members, they would have been circulated tothe staff members only after getting proper acknowledgments, which isabsent in the case on hand. In the absence of any material tosubstantiate the plea of the Administration that they are publishingthe seniority lists regularly and are circulating them to the staffmembers, we are not in a position to accept the ipse dixit of theappellants. 16. Further more, the Recruitment Rules for the post ofStenographer Grade-III do not seem to provide for maintaining theregion-wise seniority. The appellants organization being a very smallorganization with very few officers in the country, they should haveconsidered all eligible Grade-III Stenographers, when the vacancy inthe cadre of Grade-II Stenographer arose in New Delhi and thus theappellants should not have confined their selection to those in theNorth Zone only, especially when there are no Rules or Regulationspermitting them to do so and apparently when more senior persons likethe applicant are stagnated in the same cadre, without promotion.Since there is only one Central Institute at New Delhi, when avacancy in the higher grade arose, the Administration should havetaken into consideration the combined seniority list, but not the so-called region-wise seniority, particularly when it is their case thatonly at Delhi such Grade 'C' Stenographer post was created.Therefore, the contention of the appellants that since the vacancyarose at Delhi, they have considered only the Northern Zonecandidates cannot be accepted, since it has worked hard against thesenior most persons in the other Zones, like the applicant. It is noteven the case of the appellants that they have called for willingnessfrom the other zone candidates so as to be considered for the Grade CStenographer post. When the applicant is admittedly the senior mostperson in the combined seniority list having entered the Departmentway back in the year 1969, surpassing him, a junior candidate, whoentered the service much after him like Mr.Vijaypal Singh, who joinedthe Department only on 20.5.1987 i.e. nearly 18 years after theapplicant was promoted by the appellants. This action of theappellants is very unfair, depriving the rights of the seniormostpersons like the applicant in other zones. When, thus, the entiremistake lies only with the appellants in not preparing and publishingthe seniority list, as is required under the service jurisprudence,they cannot be allowed to turn around and raise their little finger https://hcservices.ecourts.gov.in/hcservices/ against the applicant/first respondent as if his claim is barred bydelay and laches. 17. On behalf of the first respondent/applicant, the judgment ofthe Honourable Apex Court in BAIJ NATH SHARMA vs. HON'BLE RAJASTHANHIGH COURT AT JODHPUR AND ANOTHER [(1998) 7 SCC 14] has been reliedon wherein it has been held that 'a retired employee, could have avalid grievance if any of his juniors had been given promotion from adate prior to his superannuation but he can not complain whenpromotions were made prospectively after his retirement.'18. The applicant has also relied on another judgment of theHonourable Apex Court in UPSC vs. A.K.SALIM AND OTHERS [(2008) 11 SCC495]. In this case, the Central Administrative Tribunal has directedconsideration of respondent's case for induction to Indian ForestService against single vacancy of 2006, well before respondent'sretirement on 31.5.2007. The Government, however insisted onconsideration of cases of all candidates for all the three vacanciesfor the year 2006 and in the meanwhile the respondent retired on31.5.2007. In such circumstances, the Government was allowed toconvene Selection Committee for all the vacancies as agreed to by allthe parties but in order to protect respondent's interest, it washeld that in the event of respondent's selection, intervening periodto be regularised notionally w.e.f. 1.6.2007 and respondent to beaccorded all benefits including monetary benefits.19. From the analysis of the entire materials placed on record,we are able to see that the appellants are trying to justify theirmistakes, rather misdeeds, some how or other and inventing reasons inthat process. The subsequent action of the appellants inrestructuring the cadre of non-secretariat stenographers, by re-fixing the grades III, II and I in the ratio of 40:40:20, by the OMNo.22034/2/92-Estt(D), dated 6.8.1999 also does not in any manneraugment their case, since it cannot rectify the damage caused to theapplicant. When the combined seniority list has been prepared as perthe recommendations of the V Pay Commission and when the anomalieshave been pointed out, like the one of the applicant/firstrespondent, the appellants have not taken any action to rectify theanomalies. It is but natural for a senior most person like theapplicant/first respondent to take the objection since his juniormost persons were already promoted long back. When such an anamolyhas been pointed out by the applicant/first respondent, theappellants, in all fairness, should have taken steps to grant atleastthe monetary benefit to the applicant. Probably, such patheticinstances also would have been brought to the notice of the V PayCommission resulting in the recommendation to maintain a commonseniority list, wherever this type region wise lists are beingmaintained, without any authority and much detrimental to theinterest of the working class. https://hcservices.ecourts.gov.in/hcservices/

20. For no rhyme or reason, the applicant has been denied hisdue, which must be conferred on him. Only on thorough scrutiny ofthe entire materials placed on record the Tribunal has arrived atunerring conclusion of upholding the claim of the applicant, whereinwe find no illegality or irregularity to cause our interference.Therefore, necessarily, this writ petition filed by theAdministration must fail. Accordingly, this writ petition isdismissed. No costs. The appellants are directed to implement theorder of the Tribunal within twelve weeks from the date of receipt ofa copy of this order. Consequently, M.P.No.1 of 2006 is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarRaoTo The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600104.+ 1 c.c. to Mr. V. Vijay Shankar, Advocate. S.R.No.33366.+ 1 c.c. to Mr. R. Shanthakumar, Advocate. S.R.No.32963. Order in W.P.No.43086 of 2006AKR (CO)GSK 07.08.2009.