CASE NO.: Appeal (civil) 9169 of 1996 PETITIONER: Om Prakash Sood RESPONDENT: Vs. Union of India & Anr. DATE OF JUDGMENT: 26/08/2003 BENCH: M. B. Shah & Dr. AR. Lakshmanan. JUDGMENT:
J U D G M E N T
Dr. AR. LAKSHMANAN, J.
The short but core point for consideration by this Court in this appeal
is–
(a) when admittedly the appellant had been paid the salary of
Technical Assistant till the last day;
(b) when he had been signing the attendance register only as
Technical Assistant which was authenticated by two gazzetted
officers including the Deputy Manager of the respondent
organization;
(c) When the appellant had never worked as Key Board Operator
on regular basis;
(d) When at the time of exercising his option to function as Key
Board Operator, the appellant clearly spelt out that he reserves
his right to revert back as Technical Assistant in accordance
with the practice in vogue in respect of other supervisory posts;
How far is the Central Administrative Tribunal right in holding that the
respondents are right in their contention that the appellant was promoted as
Key Board Operator and his pay as Key Board Operator would be drawn and
paid to him in due course and he should superannuate on attaining his age of
58 years instead of 60 which is for Technical Assistant.
In other words, when an individual has not served in a particular post
but had been serving in a lower post can the respondent superannuate the
appellant on the basis of the post not held.
The short facts of the case are as follows:-
The appellant had been working as Technical Assistant since 1971
and the age of superannuation of Technical Assistant is 60 years. In late
eighties, Department introduced Phototype setting Key Board Operator posts.
The age of superannuation of Key Board Operator is 60 years, later on
reduced to 58 years. In 1989 the appellant was promoted on ad hoc basis as
Key Board Operator but was reverted as he did not qualify in the trade test in
Hindi. Again, in 1993 after he qualified in the trade test, he was offered the
post of Key Board Operator and the appellant had stated that he reserved his
right to revert as Technical Assistant as such a reversion from supervisory
grade to workmen grade was permissible in other trades.
All along the appellant had been working as Technical Assistant and
had been drawing the salary as Technical Assistant only, and his signing the
attendance register as Technical Assistant was authenticated by the
Technical Officer and the Deputy Manager till December, 1994. As in August,
1994, the respondents issued an order indicating the superannuation of the
appellant as 31.12.1994, on his attaining the age of 58 years, and the
appellant vide his letter dated 08.09.1994 invited their attention to his
representation dated 28.12.1993 whereby he had stated that he would be
accepting the post of Key Board Operator subject to the condition that he is
permitted to revert back to the post of Technical Assistant on his attaining the
age of 58 years. The respondents, were, therefore, requested to reconsider
their decision. However, since there was no reply, the appellant again on
07.11.1994 and 15.11.1994 requested them to consider his request. But
there was once again no information, which compelled the appellant to move
the matter before the Assistant Labour Commissioner praying for a direction
to the respondent to give a reply to the appellant to his request. Before the
Assistant Labour Commissioner, the respondents submitted that the appellant
had not given any unequivocal refusal to take up the post of Key Board
Operator. Hence, the appellant gave his unequivocal refusal to hold the post
of Key Board Operator vide his letter dated 16.12.1994 and the Assistant
Labour Commissioner too gave a direction to the respondents to give a reply
to the appellant’s representation.
As even till 28.12.1994, there was no reply which prompted the
appellant to move the matter to the Central Administrative Tribunal
contending that he never accepted the post of Key Board Operator and his
original representation contained only conditional acceptance on knowing the
mind of the respondents which they spelt out before the Assistant Labour
Commissioner, the appellant had clearly given his refusal to accept the post
of Key Board Operator.
The Tribunal, however, rejected all the contentions of the appellant
and accepted those of the respondents that just because the appellant had
been signing the attendance register it does not mean that he had worked as
Technical Assistant; that if his pay as Key Board Operator has not been
claimed, the same would be claimed and given to him; that there is no
question of conditional acceptance and hence his request for reverting back
cannot be acceded to.
Thus, the order of the Central Administrative Tribunal has been
challenged as erroneous.
The respondents filed counter affidavit through its Manager,
Government of India, Press denying the allegations contained in the special
leave petition/appeal. According to the respondent, the appellant along with
others as per his request was trade tested on 10.08.1993 which he duly
qualified and appointed to the post of P.T.S. Key Board Operator w.e.f.
27.12.1993, wherein it was specified in clear-cut terms that he shall not be
allowed to revert back to his erstwhile post, once he is appointed as P.T.S.
Key Board Operator. It is further submitted that the appointment of the
appellant as P.T.S. Key Board Operator is very clear and does not leave any
room for accepting his appointment conditionally. However, the appellant
accepted the post vide his application dated 28.12.1993 instead of submitting
an out-right refusal to accept the same, due to unfavourable conditions as
stated by him, attached to the post and he also exercised his option for
fixation of his pay in the new scale, vide application dated 25.01.1994 which
is available to the persons who are appointed on regular basis. Thus, it is
submitted that the contention of the appellant that he accepted to the post of
P.T.S. Key Board Operator conditionally is, therefore, nullified. It is further
submitted by the respondents that with the abolition of the IBM Section where
the appellant along with his colleagues was working as Technical Assistant
and that of the post of Technical Assistant itself the position held by the
appellant also stands abolished as soon as he vacated the post. However, at
the fag end of his career, the appellant submitted his intention to revert back
to his erstwhile post of Technical Assistant, vide his application dated
15.11.1994 which was duly considered but his request could not be acceded
to and that the appellant was accordingly communicated of the decision vide
office memorandum dated 02.01.1995.
The appellant filed a detailed rejoinder to the counter affidavit filed by
the respondents. We heard Mr. K.B. Sounder Rajan, learned counsel for the
appellant and Mr. P.P. Malhotra, learned senior counsel for the respondents.
Our attention was drawn to the averments contained in the special leave
petition, counter affidavit and rejoinder affidavit and also the various
Annexures filed by the appellant herein. We have also perused the order
passed by the Central Administrative Tribunal. The Tribunal in its order dated
12.05.1995 held as under:-
“(a) The memorandum of promotion clearly stipulated that
applicant would not be allowed to seek reversion.
(b) The stand of the respondents is that the post of Technical
Assistant stands abolished as and when the incumbent gets
promoted as KBO.
(c) The two posts of Technical Assistants maintained were of
provisional basis occupied by two incumbents who could not
qualify in the Trade Test, whereas the petitioner qualified in
the Trade Test and, therefore, there was no post of Technical
Assistant available to him.
(d) The signing in the Attendance Register as Technical Assistant
does not mean that the petitioner was holding the post of
Technical Assistant.
(e) As regards pay granted as of Technical Assistant only, the
respondents were preparing bills to pay the arrears of pay and
allowances being the difference but in the pay as Key Board
Operator and that as Technical Assistant.”
On the above, the Tribunal dismissed the appeal. The appellant also
filed a review application before the same Bench which was also dismissed
by order dated nil, copy of which is annexed and marked as Annexure XIV to
this appeal. Both the learned counsel reiterated their respective contentions
which had been taken by them in their special leave petition and the counter
affidavit.
The appellant was appointed and subsequently confirmed as
Technical Assistant on which post he was working since 09.08.1971. He is
entitled to retire with the rights and liabilities governing that post which at the
moment permits an incumbent to the post of Technical Assistant to
superannuate on reaching the age of 60 years and not on reaching the age of
58 years. The appellant had taken to the trade test of Key Board Operator in
Hindi and English only to prove his proficiency that even though without
practice he is an efficient operator on the Key Board Off-set Photo Type
Setting Training and there was no acceptance, implicit or otherwise that he
accepted the post of Key Board Operator on the terms and conditions offered
by the respondents. On the contrary, the appellant had clearly kept the
counter condition that he will accept the offer of appointment to the post of
Key Board Operator only if he was allowed to revert to his original post of
Technical Assistant and retire after reaching the age of 60 years and not at
the age of 58 years. However, the respondents are taking advantage of their
own wrong because on the one hand they have neither replied to this
condition put forward by the appellant, on the other hand, they have neither
fixed his pay as Key Board Operator nor took work from him as Key Board
Operator. On the contrary, the appellant was allowed to sign the attendance
register as Technical Assistant drawing salary and allowances as Technical
Assistant and was even allowed an increment of Rs.40/- on 01.03.1994
raising his pay from Rs. 1920/- to Rs. 1960/- in the pay-scale of Rs. 1320-
2040. Since the appellant continued to work as Technical Assistant and has
refused to accept the post of Key Board Operator and continued to serve till
the last day of reaching his superannuation i.e. 58 years as available to the
post of Technical Assistant and no effort to cut-short his career and make him
retire even by a day earlier than 60 years would amount to negation of legally
protected rights. The notice dated 26.08.1994 which falls in this category also
and, therefore, we are of the opinion that the notice of retirement dated
26.08.1994 is liable to be quashed and set aside. In the instant case, the
respondent had retired the appellant treating him as Key Board Operator
whereas the documentary evidence annexed to the special leave petition
would all prove that he was holding the post of Technical Assistant and as
such the date of retirement only on his attaining the age of 60 years and not
the age of 58 years.
We have perused the Annexures filed by the appellant along with the
special leave petition. A perusal of the Annexures show that the appellant
was originally treated ad hoc Key Board Operator (in short “KBO”) on
26.09.1989 when the age of superannuation of KBO was 60 years. As there
was a move to revert the appellant on account of not qualifying in the Hindi
test, he did agitate before the Tribunal in O.A. No. 1239 of 1990 which was
decided on 24.07.1992 with a direction to the respondent to afford two
opportunities to the appellant to qualify in the relevant test. When the
appellant gave the test and qualified in the same, by the time the age of
superannuation of KBO was brought down to 58 years. Obviously, the
appellant who has been holding a substantive post of Technical Assistant the
age of superannuation of which is 60, would not want to opt for KBO for a
marginal short time increase in his pay and allowances which ultimately would
result in his superannuation at 58 years. Instead, if he continued as
Technical Assistant as the same would enable him to serve up to 60 years,
when his pay was to touch the same level, if not more. It is on account of this
reason that when an offer of appointment as KBO was issued vide Annexure-
II, the appellant had clearly indicated that he never applied for appointment as
KBO and he gave the test only to prove his efficiency in the Hindi test. Again,
citing the Rule position as to the date of superannuation of 60 years in the
post of Technical Assistant, the appellant accepted the offer of appointment
as KBO clearly stating that he shall be reserving his right to revert back to the
substantive post of Technical Assistant on his completing 58 years of age
rather than retire at 58 as KBO. It is also seen from the Annexures that till
December, 1994, the appellant had been signing the Attendance Register
only as Technical Assistant duly authenticated by the higher authorities
including the Deputy Manager (Annexure-IV).
When a Certificate of pay was requested for, the same was given by
the respondents for the month of October,1994 on 08.11.1994 clearly spelling
out the designation of the appellant as Technical Assistant (vide Annexure-V)
Thus, though the respondents claimed that on account of new technology
posts of KBO were created, the appellant was retained only as Technical
Assistant and it is pertinent to notice here that in addition to the appellant
herein two more persons were functioning as Technical Assistant as could be
found from a reply in the Industrial Disputes Application No. nil of 1994,
wherein the respondents have clearly stated, that there are two Technical
Assistants still holding the post of Technical Assistant because they are not
interested to be absorbed as PTS KBOs.
Mr. P.P. Malhotra, learned senior counsel, submitted that since the
condition was put when the appellant was appointed to the post of KBO, he
shall not be allowed to revert back. True, the offer of appointment contained,
inter alia, a condition to the said effect. However, the appellant gave a
conditional acceptance in view of practice prevailing reserving his right to be
reverted to the post of Technical Assistant. The documents filed in this case
show that the appellant was signing the attendance register as Technical
Assistant and he was paid his allowance till the date of his retirement, only
the pay as was admissible for a Technical Assistant. This, in our opinion,
would show that the Department had not accepted the conditional acceptance
given by the appellant and kept him as a Technical Assistant. When the offer
of appointment was stated to be very clear and does not leave any room for
accepting the appointment conditionally, the condition reserving the right for
reversion would mean a conditional acceptance which was either to be
outrightly rejected by the Department by a specific order or was to be
accepted with the said condition in view of prevailing practice. In either way,
it is beneficial to the appellant. The records will show that whereas the
appellant was allowed to continue as Technical Assistant during the entire
period and was paid his pay and allowances as was paid to Technical
Assistant. He was, however, retired on completing the age of 58, treating him
as KBO which is totally illegal.
The learned senior counsel for the respondent submitted that the
appellant had not made any case for interference by this Court in the exercise
of its extraordinary jurisdiction under Article 136. This Court has held in a
number of cases that the powers of this Court under Article 136 are
unfettered and are invoked invariably when this Court reaches the conclusion
that a person has been dealt with arbitrarily. The case on hand is one such
wherein the Department treated the appellant as a Technical Assistant all
through but superannuated him at 58 while the age of superannuation for
Technical Assistant is 60.
It is further submitted by the learned senior counsel for the respondent
that the reversion was not admissible in the case of the appellant. This
submission has no force. Neither the appointment letter indicates anywhere
that the promotion offered was temporary or on ad hoc or on regular basis nor
have the posts of Technical Assistant being abolished. Hence it is futile to
contend that reversion was not admissible in the case of the appellant. The
appellant has been singled out as could be evident from the fact that some
Compositors Grade-I who were promoted as Section Holder in November,
1993 were permitted to be reverted to the post of Compositors Grade I w.e.f.
October, 1994. Along with the rejoinder, the appellant has annexed the office
orders dated 22.11.1993, 24.06.1994 and 21.10.1994 as Annexure-II.
When the appellant had made his intention clearly to accept the
promotion as KBO only on a specific condition of his exercising his right to
revert, only two options are left to the respondent, namely, either to accept
the conditional acceptance or to permit the appellant to continue as Technical
Assistant. In the case of the appellant, the latter only prevailed throughout as
could be seen from Annexures IV and V. The appellant was treated only as a
Technical Assistant by the respondents.
It was argued by the learned counsel for the respondent that the entire
post of Technical Assistant stand abolished since 1988. This was denied by
the appellant. The appellant pointed out that two Technical Assistants who
could not qualify test were not promoted as KBO and were still holding on the
post of Technical Assistant and that they are functioning as Technical
Assistants despite crossing 58 years of age.
As regards the contention of the respondent that a mere signing as
Technical Assistant does not given the appellant the right to serve in that
post, we are of the opinion that the same cannot be accepted in view of the
fact that if the appellant was working as KBO, the Higher Authorities cannot
permit the attendance register being signed as Technical Assistant through
out the disputed period. Permitting signing of the attendance register as
Technical Assistant paying the salary as Technical Assistant, declaring the
designation as Technical Assistant even after 12 months of the so-called offer
of appointment as KBO and indicating in the PPO the salary and designation
of the appellant as Technical Assistant – all this cannot be an inadvertent
mistake by the respondents. In reality, the appellant was never treated as
KBO at all and all along he had been treated only as Technical Assistant.
As noticed earlier, the appellant after submitting the conditional
acceptance continued to work only as a Technical Assistant. He was taken
by surprise when in August, 1994 the appellant was issued with a letter
wherein his date of superannuation was indicated as 31.12.1994. This letter
would mean that on the basis of the acceptance given by the appellant, the
appellant was promoted as the KBO in which event his right to revert back as
Technical Assistant is fully secured.
For the foregoing reasons, we are of the opinion that the impugned
action of the respondent should be declared as devoid of merit and the
appeal is liable to be allowed. The appellant shall be deemed to have
continued in service and his pension and retiral benefits should be fixed
accordingly. However, he shall not be entitled to get any salary after his
retirement on 31.12.1994. The difference of retiral benefits should be given
within eight weeks from today with 6 per cent interest.
In the result, the judgment and order dated 12.05.1995 in O.A. No.
2571 of 1994 passed by the Central Administrative Tribunal, Principal Bench,
New Delhi is set aside and this appeal stands allowed as indicated above with
cost of Rs.5,000/- to be paid to the appellant by the respondents.