{"id":223933,"date":"2006-06-09T00:00:00","date_gmt":"2006-06-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-m-mathivanan-on-9-june-2006"},"modified":"2018-03-07T15:40:50","modified_gmt":"2018-03-07T10:10:50","slug":"union-of-india-ors-vs-m-mathivanan-on-9-june-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-m-mathivanan-on-9-june-2006","title":{"rendered":"Union Of India & Ors vs M. Mathivanan on 9 June, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs M. Mathivanan on 9 June, 2006<\/div>\n
Author: C Thakker<\/div>\n
Bench: Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (civil)  5739 of 2005\n\nPETITIONER:\nUNION OF INDIA & ORS.\t\t\t\n\nRESPONDENT:\nM. MATHIVANAN\t\t\t\t\n\nDATE OF JUDGMENT: 09\/06\/2006\n\nBENCH:\nARIJIT PASAYAT & C.K. THAKKER\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
C.K. THAKKER, J.\n<\/p>\n
This appeal is directed against an order dated April
\n3, 2002 passed by the Central Administrative Tribunal
\n(CAT), Madras Bench in O.A. No. 1094 of 2001 and
\nconfirmed by the High Court of Judicature at Madras on
\nApril 16, 2003 in Writ Petition No. 25452 of 2002.
\nThe relevant facts leading to the present appeal are
\nthat the respondent herein, Mr. M. Mathivanan was
\nselected for recruitment to the cadre of Postal Assistant
\non December 28, 1981 and was appointed as Postal
\nAssistant on daily wages basis. He underwent necessary
\ntraining and was placed in Reserve Training Pool (RTP),
\nPostal Assistant to be absorbed as regular Postal
\nAssistant and was posted to work in the post offices in
\nCuddalore Postal Division. In August 1983, the
\nrespondent, volunteered for enrolment in Army Postal
\nServices (APS). By an order dated August 19, 1983 his
\nrequest was accepted and he was appointed as Postal
\nAssistant, Cuddalore with effect from August 27, 1983.
\nThe appointment was made subject to the following
\nconditions.\n<\/p>\n
i)\tThe appointment is on purely adhoc and
\ntemporary basis and candidate will have
\nno claim for regular absorption in
\npreference to his seniors in the RTP list
\nof this Division.\n<\/p>\n
ii)\tThe inter-se-seniority between the
\ncandidates who volunteered for APS and
\ncandidates who were appointed in the
\ncivil will not be disturbed merely by
\nvirtue of the above appointment of
\nvolunteers in the civil for deputation to
\nAPS.\n<\/p>\n
iii)\tIf the candidate is declared medically
\nunfit for enrollment to the APS, he will
\nrevert back to the RTP list and take his
\nchance for absorption as regular PA in
\nthe normal course as and when it is
\ndue.\n<\/p>\n
In September, 1983, while he was working in
\nReserve Training Pool as Postal Assistant, he was asked
\nby the Superintendent of Post Offices, Cuddalore
\nDivision to appear before the authorities for selection in
\nArmy Postal Services. Accordingly, he appeared and was
\nselected as Warrant Officer with effect from September
\n30, 1983. By an order dated October 20, 1983 the
\nrespondent was appointed as Postal Assistant in
\nCuddalore Division with effect from September 30, 1983
\non the conditions mentioned in the said order. After his
\nenrolment in the Army Postal Services, an order was
\npassed by Hon’ble the President of India appointing him
\non the establishment of Regular Army with effect from
\nSeptember 30, 1983.\n<\/p>\n
It was the case of the respondent that Time Bound
\nPromotion Scheme was formulated by the authorities
\nvide a Memorandum dated December 17, 1983. The
\ninstructions were sent to all the Heads of Circles (Postal).
\nThe scheme, inter alia, provided placing of officers in the
\n‘next higher grade’ who had completed sixteen years of
\nservice in Group ‘C’ and ‘D’.  The scheme came into effect
\nfrom November 30, 1983. According to the respondent,
\nhe had shown his willingness vide letter dated January
\n29, 1988 for being governed by the said scheme. It is not
\nin dispute that the respondent was appointed as Postal
\nAssistant on ‘regular’ basis from July 18, 1989.  He was
\ntransferred to Cuddalore Division and joined there on
\nAugust 6, 1991.  In 1999, the respondent made an
\napplication to the Superintendent of Post Office,
\nCuddalore Division for granting benefit of Time Bound
\nPromotion Scheme as he had completed sixteen years
\nconsidering the starting point of September 30, 1983. He
\nalso stated that he was in continuous service from 1983
\nand as such he was entitled to get the benefit from
\nSeptember 30, 1999. Unfortunately, however, his name
\nwas not included in the Time Bound Promotion Scheme.
\nFinally, he was informed by a communication dated
\nMarch 24, 2000 that his case for Time Bound Promotion
\nwould be considered only from 2007. His appeal against
\nthe said order also came to be dismissed by the
\nSuperintendent of Post Offices on October 18, 2000.
\nBeing aggrieved by the said orders, the respondent
\napproached the Central Administrative Tribunal, Madras
\nby filing Original Application.  The Central Administrative
\nTribunal allowed his application holding that his services
\nought to have been considered from September 30, 1983
\nand since he had completed sixteen years in 1999, he was
\nentitled to the benefit of Time Bound Promotion Scheme.
\nAccordingly, the application was allowed. The Writ Petition
\nfiled by the appellant herein was dismissed by the High
\nCourt of Madras which order has been challenged by the
\nappellants in the present appeal.\n<\/p>\n
On January 23, 2004, notice was issued on Special
\nLeave Petition by this Court since there was delay of 155
\ndays in approaching this Court.  Meanwhile, however,
\ninterim stay was granted against the operation of the
\norders passed by the CAT and confirmed by the High
\nCourt. On September 12, 2005, after hearing the parties,
\ndelay was condoned, leave was granted, appeal was
\nadmitted, while interim relief was ordered to be
\ncontinued and the appeal was ordered to be expedited
\nfor final hearing.\n<\/p>\n
We have heard the learned counsel for the parties.
\nMr. Parasaran, learned Additional Solicitor
\nGeneral, appearing for the appellants, contended that
\nthe Tribunal as well as the High Court committed an
\nerror of law in not considering in its proper perspective,
\nthe Time Bound Promotion Scheme and by granting
\nbenefit of the said scheme to the respondent. According
\nto him, the provision in the scheme is clear and an
\nemployee would be entitled to the benefit of Time Bound
\nPromotion, only if he has completed sixteen years of
\n‘regular’ service. Admittedly, the respondent was
\nregularly appointed in September 1989 and joined
\nCuddalore Division in 1991.  The Department was,
\ntherefore, perfectly justified in rejecting the prayer of
\ngranting Time Bound Promotion as according to the
\nDepartment, he was not entitled to such promotion. He
\nalso submitted that the respondent was initially
\nappointed in 1981, but the scheme required completion
\nof sixteen years of service on ‘regular’ basis. The counsel,
\ntherefore, submitted that the order passed by the
\nTribunal and confirmed by the High Court deserves to be
\nset aside by upholding the action of the Department and
\nby rejecting the prayer of the respondent.
\nThe learned counsel for the respondent-employee,
\non the other hand, supported the order passed by the
\nTribunal and confirmed by the High Court. He urged
\nthat the scheme had been property interpreted by the
\nTribunal and benefit was extended to him which was
\nconfirmed by the High Court. He also relied upon
\ndecisions of this Court in which similar action had been
\nset aside by this Court by granting benefits to the
\nemployees. He, therefore, submitted that the appeal
\ndeserves to be dismissed.\n<\/p>\n
Having heard the learned counsel for the parties, in
\nour opinion, the order passed by CAT and confirmed by
\nthe High Court deserves no interference. It is not in
\ndispute by and between the parties that the respondent
\nwas enrolled as Reserve Training Pool Postal Assistant
\nand was appointed initially as Postal Assistant in the
\nyear 1981. It is also not in dispute that in 1983, he
\nvolunteered for enrollment in Army Postal Services and
\nwas absorbed in August, 1983 by an order dated August
\n19, 1983. In the conditions referred to earlier, it was
\nstated that the appointment was purely on ad hoc and
\ntemporary basis and the respondent would have no right
\nto claim regular absorption in preference to his seniors
\nin RTP list of the Division. It was also stated that the
\ninter-se-seniority between the candidates who
\nvolunteered for such services and candidates who were
\nappointed in Civil Wing would not be disturbed.  It is
\nalso undisputed that pursuant to the willingness shown
\nby the respondent, he was regularized in 1989.  But it
\ncannot be disputed and is not disputed before us that he
\nwas appointed as Warrant Officer in September, 1983.
\nThe order passed by Hon’ble the President of India
\nappointing the respondent as Warrant Officer on the
\nestablishment of Regular Army reads thus:
\n“To<\/p>\n
M. Mathivanan greeting:\n<\/p>\n
You are hereby appointed to be a
\nWarrant Officer on the establishment of the
\nRegular Army, from the 30th day of September
\nOne thousand nine hundred and eighty three.\n<\/p>\n
You are therefore carefully and diligently
\nto discharge your duty as such; and you are
\nto obey such orders and observe such
\ndirections as from time to time you shall
\nreceive from me or any of your superior
\nofficers according to the rules, regulations
\nand order for the governance of the Regular
\nArmy.\n<\/p>\n
Given at New Delhi the sixth day of
\nMagha of the Saka year One thousand nine
\nhundred and eight correspondent to the
\nTuesday sixth day of the month of January of
\nthe year One thousand nine hundred and
\neighty seven A.D.<\/p>\n
\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t   Zail Singh
\n\t\t\t    President of India”\n<\/p>\n
The learned counsel for the respondent, in our
\nopinion, is right in relying on paragraph 1 of the Time
\nBound Promotion Scheme. Paragraph 1 which relates to
\nplacing of an employee in ‘next higher grade’ reads thus:
\n“1)\tThe Scheme will come into effect from
\n30.11.1983. All officials belonging to basic
\ngrades in Group ‘C’ and Group ‘D’ to
\nwhich there is direct recruitment either
\nform outside and\/or by means of limited
\ncompetitive examination from lower
\ncadres, and who have completed 16 years
\nof service in that grade, will be placed in
\nthe next higher grade. Officials belonging
\nto operative cadres listed in the Annexure
\nA-1 to the agreement will be covered
\nunder the scheme.”\n<\/p>\n
Paragraph 2 speaks of ‘promotion’ and reads as
\nunder:\n<\/p>\n
“The heads of circles\/Divisional
\nSuperintendents\/Heads of other
\nfunctional units will take immediate
\naction to identify the officials who have
\ncompleted sixteen years of regular service
\nin the cadres covered under the scheme
\nas on 30.11.1983 as well as the officials
\nwho will complete 16 years of service form
\n1.12.1983 to 30.3.1984. Thereafter,
\naction will be initiated by the Heads of
\nCircles to convene departmental
\npromotion committee meetings to
\nconsider promotion of the officials in the
\noperative cadres to the next higher scale
\nof pay. The Departmental Promotion
\nCommittee which will be constituted in
\naccordance with the existing instructions
\napplicable to the different cadres will
\nassess the fitness of the identified officials
\nfor promotion to the higher scale of pay.
\nThe formalities in this regard should be
\ncomplete within a period of three months.
\nThe promotion to the next higher scale of
\npay will be granted from the date
\nfollowing the date on which the identified
\nofficials complete sixteen years of regular
\nservice. In case of officials who have
\ncompleted sixteen years of service before
\n30.11.1983, the promotions to the next
\nhigher scale of pay will take effect from
\n30.11.1983.”\n<\/p>\n
Reading of the above two paragraphs makes it
\nabundantly clear that so far as placing of an officer in
\nthe ‘next higher grade’ is concerned, what is relevant and
\nmaterial is that such official belonging to basic grades in
\nGroup ‘C’ and ‘D’  must have completed “sixteen years of
\nservice in that Grade”. The said paragraph, no where
\nuses the connotation ‘regular’ service. Paragraph 2
\nwhich provides for Departmental Promotion Committee
\nand consideration of cases of officials for ‘promotion’,
\nprovides for sixteen years of ‘regular’ service. The
\nTribunal, therefore, rightly considered paragraph 1 as
\nrelevant and held that basic eligibility condition for being
\nplaced in the next higher grade is that the officer must
\nhave completed sixteen years of service in the basic
\ngrade in Group ‘C’ and Group ‘D’.  Though in other
\nparagraphs, the service was qualified by the adjective
\n‘regular’, the said qualification was not necessary for the
\npurpose of paragraph 1. Since the employee wanted the
\nbenefit of placement in ‘next higher grade’, what was
\nrequired to be established by him was that he had
\ncompleted sixteen years of service in the grade and the
\nsaid requirement had been complied with in view of the
\nfact that with effect from September 30, 1983 he was
\nappointed as Warrant Officer. He was, therefore, entitled
\nto the benefit of ‘next higher grade’ under paragraph 1
\nfrom 1999. The authorities were, therefore, not justified
\nin rejecting the claim and accordingly the petition was
\nallowed. The High Court rightly upheld the direction of
\nCAT.\n<\/p>\n
 The learned counsel for the respondent is also
\nright in placing reliance on the decision of this Court in
\nDwijen Chandra Sarkar & Another v. Union of India &
\nOthers<\/a> (1999) 2 SCC 119. Almost in similar
\ncircumstances, the Court considered the extent and
\napplicability of Time Bound Promotion Scheme and held
\nthat the benefit of the said scheme would be available to
\na person who had completed ‘sixteen years of service’ in
\nthe grade. In that case, two appellants were working in
\nthe Posts & Telegraphs Department and they had
\nclaimed the benefit of the scheme. Initially, they were
\nserving in the Rehabilitation Department of the
\nGovernment of India, but were transferred in the
\nDepartment of Posts & Telegraphs afterwards. The
\nquestion before the Court was whether the appellants
\nwere entitled to count the services rendered by them
\nearlier in the Rehabilitation Department of the
\nGovernment of India and whether they would be entitled
\nto the benefit of the scheme by taking into account past
\nservices. The Court considered the scheme of December,
\n1983 and held that what was required under the scheme
\nwas completion of sixteen years of service in that grade.
\nIf the said requirement is complied with, an employee
\nwould be entitled to be placed in the next higher grade. It
\nwas observed that two concepts, namely, (i) ‘time bound
\npromotion’, and (ii) ‘regular promotion’ were different. So
\nfar as the ‘time bound promotion’ was concerned, the
\nCourt observed that since there were large number of
\nemployees who were not likely to get promotion in near
\nfuture because of their comparatively low position in the
\nseniority, the Government thought it necessary that in
\norder to remove frustration, the employees should be
\nplaced in the ‘next higher grade’ in terms of emoluments
\nwhile retaining them in the same cadre. This is what is
\ngenerally known as the ‘time-bound promotion’. Such
\n‘time bound promotion’ does not affect seniority of those
\nhigher up.\n<\/p>\n
The Court then stated:\n<\/p>\n
“12. If that be the true purpose of a time-
\nbound promotion which is meant (to) relieve
\nfrustration on account of stagnation, it cannot
\nbe said that the Government wanted to
\ndeprive the appellants who were brought into
\nthe P & T Department in public interest — of
\nthe benefit of a higher grade. The frustration
\non account of stagnation is a common factor
\nnot only of those already in the P & T
\nDepartment but also of those who are
\nadministratively transferred by Government
\nfrom the Rehabilitation Department to the P &
\nT Department. The Government, while
\nimposing an eligibility condition of 16
\nyears’ service in the grade for being
\nentitled to time-bound promotion, is not
\nintending to benefit only one section of
\nemployees in the category and deny it to
\nanother section of employees in the same
\ncategory. The common factor for all these
\nemployees is that they have remained in the
\nsame grade for 16 years without promotions.
\nThe said period is a term of eligibility for
\nobtaining a financial benefit of a higher
\ngrade”.\t\t(emphasis supplied)<\/p>\n
\tThe Court added that for the purpose of ‘regular
\npromotions’ to the higher cadre in the department, their
\nseniority should be counted only from the date of their
\ntransfer in the Posts and Telegraphs Department.
\n\tThe Court, therefore, concluded;\n<\/p>\n
\t“The words “except seniority” in the 1983
\ncircular, in our view, mean that such a
\nbenefit of a higher grade given to the
\ntransferees will in no way affect the seniority
\nof employees in the P&T Department when
\nthe turn of the P&T employees comes up for
\npromotion to a higher category or post.  The
\nsaid words “except seniority” are intended to
\nsee that the said persons who have come from
\nanother Department on transfer do not upset
\nthe seniority in the transferee Department.
\nGranting them higher grade under the
\nScheme for Time-bound Promotion does not,
\ntherefore, of the view that the appellants are
\nentitled to the higher grade from the date on
\nwhich they have completed 16 years and the
\nsaid period is to be computed on the basis of
\ntheir total service both in the Rehabilitation
\nDepartment and the P&T Department.”
\nIt is no doubt true as observed by the High Court
\nthat Dwijen Chandra Sarkar was not an identical case,
\ninasmuch as in that case, the appellants were
\ntransferred “in public interest”, whereas in the instant
\ncase, the transfer was volunteered by the respondent-
\nemployee for enrolment in Army. That, however, in our
\nopinion, does not make difference since to us, the
\nlanguage of paragraph 1 of the scheme is clear,
\nunambiguous and leaves no room for doubt. That aspect
\nwas also considered in Dwijen Chandra Sarkar.  But, in
\nany case, even that point is also finally concluded by
\nanother decision of this court in Union of India & Another
\nv. V.N. Bhat,<\/a> (2003) 8 SCC 714 in which the employee
\nwas initially appointed in the Ministry of Defence and
\nvoluntarily transferred himself to the office of the Post
\nMaster General. The question which came up for
\nconsideration was as to whether he would be entitled to
\nget benefit of the scheme.  Relying on Dwijen Chandra
\nSarkar, this Court held that the employee would be
\nentitled to the benefit of the scheme on completion of
\nsixteen years of service.\n<\/p>\n
Relying on Dwijen Chandra Sarkar, this Court
\nobserved;\n<\/p>\n
“The well-settled principle of law that
\neven in the case where the transfer has been
\nallowed on request, the employee concerned
\nmerely loses his seniority, but the same by
\nitself would not lead to a conclusion that he
\nshould be deprived of the other benefits
\nincluding his experience and eligibility for
\npromotion.  In terms of the Schemes
\naforementioned, promotion is to be granted
\nfor avoiding stagnation only within the said
\nparties.  The said Schemes have been framed
\nbecause they are beneficial ones and are thus
\nrequired to be implemented.  The Scheme
\nmerely perused that any person having
\nrendered 16\/26 years of service without
\nobtaining any promotion could be entitled to
\nthe benefit therefore.  It is, therefore, not a
\ncase where promotion to the higher post is to
\nbe made only on the basis of seniority.”
\nSince the respondent had completed sixteen years
\nof service in 1999, he would be entitled to the benefit of
\nparagraph 1 of Time Bound Promotion Scheme and the
\naction of the authorities in not granting the said benefit
\nwas illegal and contrary to law. The Central
\nAdministrative Tribunal as well as the High Court were,
\ntherefore, right in setting aside the said action and by
\ndirecting the authorities to extend the benefit of the
\nScheme to the respondent. We see no infirmity in the
\nreasoning adopted and conclusion recorded by the CAT
\nor by the High Court and find no substance in the
\nappeal of the appellants.\n<\/p>\n
For the foregoing reasons, the appeal deserves to be
\ndismissed and is accordingly dismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Ors vs M. Mathivanan on 9 June, 2006 Author: C Thakker Bench: Arijit Pasayat, C.K. Thakker CASE NO.: Appeal (civil) 5739 of 2005 PETITIONER: UNION OF INDIA & ORS. RESPONDENT: M. MATHIVANAN DATE OF JUDGMENT: 09\/06\/2006 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT: JUDGMENT C.K. THAKKER, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-223933","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Ors vs M. 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