{"id":36534,"date":"1998-12-15T00:00:00","date_gmt":"1998-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dwijen-chandra-sarkar-ord-vs-union-of-india-and-anr-on-15-december-1998"},"modified":"2016-10-12T04:42:57","modified_gmt":"2016-10-11T23:12:57","slug":"dwijen-chandra-sarkar-ord-vs-union-of-india-and-anr-on-15-december-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dwijen-chandra-sarkar-ord-vs-union-of-india-and-anr-on-15-december-1998","title":{"rendered":"Dwijen Chandra Sarkar & Ord vs Union Of India And Anr on 15 December, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dwijen Chandra Sarkar & Ord vs Union Of India And Anr on 15 December, 1998<\/div>\n
Bench: S. Saghir Ahmed, M. Jagannadha Rao.<\/div>\n
           PETITIONER:\nDWIJEN CHANDRA SARKAR & ORD.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ANR.\n\nDATE OF JUDGMENT:\t15\/12\/1998\n\nBENCH:\nS. SAGHIR AHMED, & M. JAGANNADHA RAO.,\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT\n<\/p>\n
——–\n<\/p>\n
M. JAGANNADHA RAO.\n<\/p>\n
—————–\n<\/p>\n
Two appellants who are\tworking\t in  the  posts\t and
\nTelegraph  Department filed this appeal against the judgment
\nof the Central Administrative Tribunal,\t Calcutta  Bench  in
\nO.A.  No.355  of 1987 dated 16.02.1988. By that Judgment the
\nTribunal dismissed the application filed by the\t appellants.
\nThe  point  in issue is whether for the purpose of computing
\n16 years service for getting a\t“time-bound  promotion”.  as
\nper   the   relevant   circular\t  of  the  Government  dated
\n17.12.1983, the appellants are entitled to count the service
\nrendered by them in the\t Rehabilitation\t Department  of\t the
\nGovernment   of\t  India\t prior\tto  their  transfer  to\t the
\nDepartment of Posts and Telegraph.  The\t Tribunal  has\theld
\nthat  the  said\t service  with\tformer\tdepartment cannot be
\ncounted and, therefore, the appellants are not\tentitled  to
\nthe  time  bound  promotion unless they complete 16 years in
\nthe transferee department, namely P & T Department.
\nThe following are the facts:\n<\/p>\n
The appellants 1  and  2  were\tappointed  as  Lower
\nDivision   Clerks   in\tthe  Department\t of  Rehabilitation,
\nGovernment of India on 18.11.1970 and 5.2.1965 respectively.
\nSubsequently, on 7.12.76 the first appellant was transferred
\nto the P  &  T\tDepartment  in\tpublic\tinterest  as  Postal
\nAssistant  and\tthe second appellant was also so transferred
\non 13.12.1976 to the same department in public interest.
\nThe particular scheme which deals  with\t time  bound
\npromotion is dated 17.12.1983 and reads as follows:
\n\t“The scheme will come into effect  from\t 30.11.1983.
\n\tAll officials belonging to basic grades in Group ‘C’
\n\tand  Group  ‘D’ to which there is direct recruitment
\n\teither from  outside  and\/or  by  means\t of  limited
\n\tcompetitive  examination  from lower cadres, and who
\n\thave completed 16 years of  service  in\t that  grade
\n\twill be\t placed in the next higher grade.  Officials
\n\tbelonging to operative cadres listed in the Annexure
\n\t‘A-1″ to the agreement will  be\t covered  under\t the
\n\tscheme.”\n<\/p>\n
From  the  aforesaid  circular, it is clear that the
\nScheme\thas  come  into\t force\tw.e.f  30.11.1983  and\t all
\nofficials belonging to the basic grades in Group ‘C’ and ‘D’
\nto  which  there is direct recruitment whether from out side
\nand\/or by means of limited completive examination from lower
\ncadres, will get time-bound promotion if they have completed
\n16 years service in the grade.\tIt is also  clear  from\t the
\nsame  circular\tthat  Postal  Assistants in pay scale of Rs.
\n260-480 will, w.e.f.  30.11.1983 be placed in the  scale  of
\nRs.   625-640 if they have completed 16 years service in the
\ngrade of Rs.  260-480.\tThe question,  however,\t is  whether
\nthe  appellants\t can  be considered to be having 16 years of
\nservice in the\tgrade?\t  The  respondent  Union  of  India,
\nhowever,  relies upon the conditions mentioned in the orders
\nof transfer of the appellants to the P & T  Department\tmade
\nin 1976.    The\t said  order  reads as follows to the extent
\nrelevant for the present purpose; that\tthe  employees\twill
\nbe:\n<\/p>\n
\t“treated  as  transferred in the public interest and
\n\ttheir past service is counted for all purposes (i.e.
\n\tfixation of pay, pension and gratuity  etc.)  except
\n\ttheir past service is counted for all purposes (i.e.
\n\tfixation  of  pay, pension and gratuity etc.) except
\n\tseniority.”\n<\/p>\n
The respondents have also  relied  upon\t a  copy  of
\nletter No.20\/34\/76-SPB\tdated  31.3.1977 from the D.G.\tP & T
\nCalcutta in relation to the subject of appointment of surplus
\nstaff of Mana Camp.  The material portion of the said  letter
\nreads as follows:\n<\/p>\n
\t“Surplus personnel on  their  redeployment  in\tyour
\n\tcircular  are  treated\tas transferred in the public
\n\tinterest and their past service is counted  for\t all
\n\tpurposes (i.e.\t    fixation  of  pay,\tpension\t and
\n\tgratuity) except seniority.”\n<\/p>\n
The Tribunal by rejecting the case of the appellants
\nheld that the 16 years of service of the first appellant and
\n12   years  of\tservice\t of  the  second  appellant  in\t the
\nDepartment of Rehabilitation could not be computed  for\t the
\npurpose\t of  reckoning\t16 years service as prescribed under
\nthe time bound promotion scheme. According to the  Tribunal,
\nthe service should be rendered in the particular grade while
\nworking\t  in  the  Postal  Department.\tFor  coming  to\t the
\nconclusion the Tribunal relied upon the word  “16  years  of
\nservice\t in  that  grade”  mentioned  in  the circular dated
\n17.12.1983. It held as follows”\n<\/p>\n
\t“From the reading of this circular particularly\t the
\n\tDG  P  &  T  No.  31-26\/83-PGI\tdated  17.12.83\t and
\n\tclarificatory orders, it is clear that the scheme is
\n\tapplicable only to the regular P & T  employees\t and
\n\tsome of the basic operative cadres enumerated in the
\n\toriginal  order.  It  is  a  scheme which is not for
\n\tuniversal application to all the Central  Government
\n\tEmployees  but is applicable only to a limited group
\n\tof employees within the P & T Department”\n<\/p>\n
The Tribunal also relied upon a letter No.  31-26\/62
\nPEI dated 1.3.84 DG P & T which\t clarified  that  the  order
\ndetailing the scheme would be applicable only to the regular
\nappointees and not to those employees who were serving on an
\nad-hoc basis.\t Reference  was\t also made to another letter
\n6-19\/84 SPB-II\tdated  19.7.84\tDGP&T  to  the\teffect\tthat
\nex-servicemen  who  had surrendered their entire benefits of
\ndefence service would not be entitled to  avail\t their\tpast
\nservice in the defence forces for the purpose of computation
\nof the 16 years.  These were referred to by way of analogy.
\nAccording  to  the appellants, the view taken by the
\nTribunal is wrong.  Several rulings of this Court are relied
\nupon by the learned counsel for\t the  appellants.    On\t the
\nother  hand,  the learned senior counsel for the respondent,
\nShri P.N.  Mishra points out that from the language  of\t the
\ncircular  as  set out above, it is clear that the service of
\n16 years must be in the\t relevant  P  &\t T  Department\tand,
\ntherefore,  any\t service  rendered  by the appellants in the
\nRehabilitation Department  of  the  Government\tcannot\thelp
\nthem.\tThe  scheme is scheme of the P & T Department and it
\nspecifically  required\tthe  service  in  a  grade  in\t the
\nDepartment.   The  learned  senior counsel submits that, the
\nview taken by the Central Administrative Tribunal,  Calcutta
\nBench is the correct one.\n<\/p>\n
The   point   for   consideration   is\twhether\t the
\nappellants are entitled\t to  the  time\tbound  promotion  by
\ncombining  their service in the Rehabilitation Department of
\nGovernment  rendered  by   the\t appellants   before   being
\nadministratively transferred to the P & T Department?
\nIt  is\tto  be\tnoted  that  the  transfer  of\t the
\nappellants  from  the Rehabilitation Department to the P & T
\nDepartment was not on their request but was expressly stated
\nto be in the public interest.  But while doing\tso,  it\t was
\nclarified  that\t their\tpast  service  in the Rehabilitation
\nDepartment would not count for’seniority’.  The\t purpose  of
\nthis  restriction was that their transfer should not disturb
\nthe chances of promotion of those who were  already  working
\nin the\tP  &  T Department.  There is no doupt, that for the
\npurpose of their regular promotions to higher posts in the P
\n& T Department their seniority is to  count  only  from\t the
\ndated of  their\t transfer  to  the  P  &  T department.\t The
\ntransfer order\timposed\t this  restriction.    We  are\t not
\nconcerned with\tthe  validity of this restriction.  All that
\nit means is that these two  transfers  will  not  alter\t the
\nexisting seniority of those in the P & T Department.
\nHowever, the  position\tin  regard  to\t‘time-bound’
\npromotions in  different.  Where there are a large number of
\nemployees in any department and where the employees are\t not
\nlikely\tto  get\t their\tcomparatively  low-position  in\t the
\nseniority list, Government has found it necessary  that,  in
\norder to remove frustration, the employees are to be given a
\nhigher\tgrade in terms of employments – while retaining them
\nin the same category.  This is what is\tgenerally  known  as
\nthe time  bound promotion.  Such a time-bound promotion does
\nnot affect the normal seniority of those higher up.
\nIf  that  be  the  true\t purpose  of  a\t  time-bound
\npromotion  which  is meant relieve frustration on account of
\nstagnation, it cannot be said that the government wanted  to
\ndeprive\t the  appellants  who  were  brought  into the P & T
\nDepartment in public interest – of the benefit of  a  higher
\ngrade.\tThe frustration on account of stagnation is a common
\nfactor not only of those already in the P & T Department but
\nalso  of  those\t who  are  administratively  transferred  by
\nGovernment from the Rehabilitation Department to the P\t&  T
\nDepartment.   The  Government, while imposing an eligibility
\ncondition of  16  years\t service  in  the  grade  for  being
\nentitled  to  time-bound  promotion,  is  not  intending  to
\nbenefit only one section of employees in  the  category\t and
\ndeny  it  to  another  section\tof  employees  in  the\tsame
\ncategory.  The common factor for all these employees is that
\nthey have remained in the same grade for  16  years  without
\npromotions.   The  said\t period is a term of eligibility for
\nobtaining a financial benefit of higher grade.
\nIt the appellants are  entitled\t to  the  time-bound
\npromotion  by  counting\t service  prior to joining the P & T
\nDepartment, the next question is whether  treating  them  as
\neligible  for  time-bound  promotion  will conflict with the
\ncondition imposed in their transfer order, namely that these
\nwill not count their service for seniority purposes in the P
\n& T Department.\n<\/p>\n
The  words ” except seniority” in the 1983 circular,
\nin our view means that such a  benefit\tof  a  higher  grade
\ngiven to the transferees will in no way effect the seniority
\nof  employees in the P & T Department when the turn of the P
\n& T employees comes up for promotion to a higher category or
\npost.  The said words ‘except seniority’ are intended to see
\nthat the said persons who have come from another  department
\non  transfer  do  not  upset the seniority in the transferee
\ndepartment.  Granting them higher grade under the scheme for
\ntime-bound promotion does not therefore offend the condition
\nimposed in the transfer order.\tWe are,\t therefore,  of\t the
\nview  that  the\t appellants are entitled to the higher grade
\nfrom the date on which they have completed 16 years and\t the
\nsaid  period  is  to be computed on the basis of their total
\nservice both in the Rehabilitation Department and the P &  T
\nDepartment.\n<\/p>\n
There  are atleast three precedents of this Court to
\nsupport the principle enunciated above.\t The  first  one  is
\nRenu Mallick vs.    Union  of  India (1994 (1) SCC 373).  In
\nthat  case  the\t appellant,  a\tLower  Division\t Clerk,\t was
\ntransferred   from   the   Central   Services\tand  Customs
\nDepartment, on\ther  own  request,  to\tthe  Central  Excise
\nCollectrate.  She  gave\t an  undertaking in terms of Central
\nDepartmental instructions which said:\n<\/p>\n
\t“the transferee will not be entitled  to  count\t the
\n\tservice\t rendered  by her in the former Collectorate
\n\tfor the purpose of seniority in the new charge.”
\nNow  for  purpose of promotion as Inspector, she had
\nto put in a service of 5 years as UDC or a total service  of
\n13  years both as UDC and LDC, subject to minimum of 2 years
\nas UDC.\t When the appellants turn for promotion as Inspector
\ncame up she was denied\tpromotion  on  the  ground  she\t was
\nineligible  because  she did not have the required number of
\nyears of service in the transferred department.\t  This\tview
\nwas not\t  accepted.\t It  was  held\tthat  seniority\t and
\neligibility are different concepts.  It\t was  directed\tthat
\nthe  appellant be given promotion as Inspector only when she
\nwould fall within the  zone  of\t consideration\tas  per\t her
\nseniority reckoned  in\tthe transferee department.  When her
\nturn based  on\tthe  service  seniority\t in  the  transferee
\ndepartment  arrived,  if  any question as to her eligibility
\nfor promotion should arise i.e.\t whether she had 5 years  as
\nUDC or a total of 13 years as UDC and LDC, for computing the
\nsaid  period  of qualifying service, the past service in the
\nCentral Services  and  Customs\tDepartment  should  also  be
\ncounted.  Kuldip Singh, J.  observed:\n<\/p>\n
\t“We  are  of  the  view\t that the Tribunal fell into
\n\tpatent error in dismissing the\tapplication  of\t the
\n\tappellant.   A\tbare  reading  of  para 2(ii) of the
\n\texecutive instructions dated May 20, 1980 shows that
\n\tthe transferee is  not\tentitled  to  count  service
\n\trendered  by  him\/her in the former collectorate for
\n\tthe purpose of seniority  in  the  new\tcharge……
\n\tBut  when  she is so considered, her past service in
\n\tthe previous collectorate cannot be ignored for\t the
\n\tpurposes  of determining her eligibility as per Rule
\n\taforesaid.    Her   seniority\tin   the    previous
\n\tCollectorate  is  taken\t away  for  the\t purpose  of
\n\tcounting her seniority in the new  charge  but\tthat
\n\thas no reliance for judging her eligibility……”
\n\t………………………………………….
\n\t………………………………………….
\n\t“The rule no where says that the period of  5  years
\n\tand  13\t years\tis not applicable for an officer who
\n\thas  been  transferred\tfrom  one  Collectorate\t  to
\n\tanother on his own request.”\n<\/p>\n
In Scientific Advisor for Raksha Manthri vs.\tV.M.
\nJoseph<\/a>\t(1998 (5) SCC 305) to which one of us (Saghir Ahmed,
\nJ.) was a party,  it  was  held\t that  service\trendered  in
\nanother\t department  helps  for\t determining eligibility for
\npromotion though it may not count for seniority.    In\tthat
\ncase,  the  employee  was  transferred\tfrom the Ministry of
\nDefence to the Central Ordinance Depot.\t   Then\t he  made  a
\nrequest\t for  transfer\tto  the Naval Physical Oceanographic
\nLaboratory, Cochin. He was transferred to be placed  at\t the
\nbottom\tof  seniority  list. It was held that he could still
\ncount his  past\t service  for  purpose\tof  eligibility\t for
\npromotion. It was observed:\n<\/p>\n
\t“Even  if  an  employee\t is  transferred  at his own
\n\trequest, from one place to another on the same post,
\n\tthe period  of\tservices  rendered  by\thim  at\t the
\n\tearlier place where he held a permanent post and had
\n\tacquired  permanent  status, cannot be excluded from
\n\tconsideration for determining  his  eligibility\t for
\n\tpromotion,  though  he\tmay  have been placed at the
\n\tbottom of the  seniority  list\tat  the\t transferred
\n\tplace.”\n<\/p>\n
Again\tin  A.P.  STATE\t ELECTRICITY  BOARD  Vs.  R.
\nPARTHASARATHI 1998(9) SCC  425,\t a  government\tservant\t was
\ntransferred and absorbed in the Electricity Board and it was
\nheld that the past service in government would count towards
\nthe  requisite\texperience  of\t10 years for eligibility for
\npromotion.\n<\/p>\n
On the facts of the present case and  especially  in
\nview  of  the  aforesaid decisions, we are of the view, that
\nwhen the transfer is in public interest, and not on request,
\nthe two employees transferred, cannot be in a worse position
\nthan those in the above rulings who have been transferred on
\nrequest and who, in those case\taccepted  that\ttheir  names
\ncould  appear  at the bottom of seniority list. Even in case
\nrelating to request transfers, this Court has held, as\tseen
\nabove,\tthat the past service will count for eligibility for
\ncertain purposes though it may not count for seniority.
\nHence the transfer order and concerned\tcircular  of
\n1983  which  required that the past service should not count
\nfor seniority, cannot have any bearing\ton  eligibility\t for
\ntime  bound  promotion.\t Seniority and time bound promotions
\nare different concepts. as stated above.
\nFor the above reasons, we hold that the past service
\nof  the\t appellants is to be counted for the limited purpose
\nof eligibility –  for  computing  the  number  of  years  of
\nqualifying service, to enable them to claim the higher grade
\nunder the scheme of time-bound promotions.
\nIn our view, the Tribunal was in error and its order
\nis set aside.  The appellants will be entitled to the higher
\ngrade  from  the  date\tthey  completed\t 16 years of service
\ncomputing the same by taking into account their past service
\nin the Rehabilitation Department also along with the service
\nin the P & T Department.  They will be so entitled  as\tlong
\nas  they  remained  in\tthe post of Assistant and till their
\nnormal promotion to a higher post according to Rules.\t The
\ndifference  between  the  emoluments  in the order as due to
\nthem and amount which was actually paid to  them,  shall  be
\ncomputed  and  be  paid within a month from the date of this
\norder.\tThere will be no order as to cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dwijen Chandra Sarkar & Ord vs Union Of India And Anr on 15 December, 1998 Bench: S. Saghir Ahmed, M. Jagannadha Rao. PETITIONER: DWIJEN CHANDRA SARKAR & ORD. Vs. RESPONDENT: UNION OF INDIA AND ANR. DATE OF JUDGMENT: 15\/12\/1998 BENCH: S. SAGHIR AHMED, & M. JAGANNADHA RAO., ACT: HEADNOTE: JUDGMENT: JUDGMENT […]<\/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-36534","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDwijen Chandra Sarkar & Ord vs Union Of India And Anr on 15 December, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dwijen-chandra-sarkar-ord-vs-union-of-india-and-anr-on-15-december-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dwijen Chandra Sarkar & Ord vs Union Of India And Anr on 15 December, 1998 - 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