Friday, November 2, 2012

OA 205 / 2009 on ????????? 2011



TODAY, THIS THE           DAY OF ................. , 2011


H. Rudraswamy,
Aged 54 years,
S/o A. Hanumanthappa,
Sub Postmaster, District Office, PO,
Chitradurga – 577 501.                               ...                                 Applicant
(By Advocate Shri B. Venkateshan)

1. Union of India,
    Represented by the Secretary,
    Dept. of Posts, Dak Bhavan,
    New Delhi – 110 001.

2. Chief Postmaster General,
    Karnataka Circle, Bangalore-560 001.

3. Postmaster General,
    South Karnataka Region, Bangalore-560 001.

4. Superintendent of Post Offices,
    Chitradurga Division, Chitradurga-577 501.

5. G. Rangaswamy,
    Retd. SPM, Hiriyur PO,
    Hiriyur, Chitradurga Dist.                                    ...                     Respondents

(By Advocate Shri S. Prakash Shetty,
Addl Central Govt. Standing Counsel for R-1 to 4)

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            This Original Application is filed by the applicant on 6.4.2009 under Section 19 of the Administrative Tribunals Act, 1985, concerning the issue of notional promotion which is claimed to have been wrongly denied to him.
2.         The impugned order is at Annexure-A/7.  It is prayed at paragraph 8 of the O.A. as below:

“8(i) That this Hon’ble Tribunal be pleased to set aside the Memo No.B2/27-A, dated 12-3-2008, at annexure A-7, issued by the Supdt. Post offices, Chitradurga and to direct the respondents to consider the case of the applicant for the promotion to LSG cadre notionally WEF 1-4-2000 from the date of promotion of one Shri G.Rangaswamy, with all consequential benefits in the interest of justice.
8(ii) To pass such orders as this Hon’be Tribunal deems fit and expedient in the facts and circumstances of the case including the cost of this application.”

3.         Brief facts of the case are that the applicant joined as Postal Assistant (P.A.) at Chitradurga Postal Division in 1974 and was granted promotions under the TBOP and BCR Schemes in the years 1990 and 2000 respectively.
4.         As seen from the Divisional Gradation List of BCR/LSG and Time Scale Postal Assistants (PAs in short) of Chitradurga Division as on 1.7.2000, corrected up to 31.3.2001, published vide Memo No.B5/11 dated 17.5.2001( Annexure A-1), the names of M.N.Lalitha, A.F.K.Gowder, G.Rangaswamy, A.T. Thippeswamy and applicant appear at Sl.Nos.21, 23, 25,27 and 28 respectively in the list of PAs.   Lalitha and  Gowder were promoted as LSG in 2005.  The third senior person namely Shri G.Rangaswamy, who is private respondent was also offered promotion to LSG Cadre twice on 21.10.2005 which he declined by letter dated
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14.2.2006 and again offered promotion on 5.2.2007, which he again declined on 22.2.2007. 

5.         The applicant contends that had the Respondent-Department taken into account his refusal for promotion, the applicant would have got an opportunity for promotion.  However, the said Shri Rangaswamy was once again offered notional promotion with effect from 1.4.2000 to the LSG Cadre, vide Memo No.B2/27-A dated 9.8.2007, Annexure-A/4, which he accepted.  It is claimed that the notional retrospective promotion should have come to the applicant rather than being given to the private respondent who had twice declined it. 

6.         From the record, we see that the case is somewhat different than how the applicant has put it up.  We see that before Rangaswamy was offered 2nd  promotion, the applicant was offered promotion under 1/3rd quota vide order No.B2/28 dated 10.1.2007, Annexure-A/5, and he joined the post of LSG on 8.2.2007 whereafter he is continuously working as LSG.  Thus, he has received his promotion with effect from 8.2.2007, before the private respondent was offered it for 3rd time on 9.8.2007.

7.         It is argued by the learned counsel for the applicant that the said Shri Rangaswamy having declined his promotion twice in the years 2006 and 2007, could not have been considered for promotion at least for a period of one year from the date of declination, i.e., till 4.2.2008. Hence the vacancy which was offered to him on 9.8.2007 but which was effective from 1.4.2000, should not have been filled up by giving notional promotion to the said Shri Rangaswamy. 
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In any case, if the said notional promotion was granted to him, the same should also be available to the applicant also.

8.         The learned counsel for applicant argued that the following executive instructions in this regard have not been adhered to:
Para:17-12. “When a Government employee does not want to accept a promotion which is offered to him he  may make a written request that he may not be promoted and the request will be considered by the appointing authority, taking relevant aspects into consideration. If the reasons adduced for refusal of promotion are acceptable to the appointing authority, the next person in the select list may be promoted. However, since it may not be administratively possible or desirable to offer appointment to the person who initially refused promotion, on every occasion on which a vacancy arises, during the period of validity of the panel, no fresh offer of appointment or promotion shall be made in such cases for a period of one year from the date of refusal of first promotion or till a next vacancy arises whichever is later.  On the eventual promotion to the higher grade such Government servant will lose seniority vis-à-vis his juniors promoted to the higher grade earlier irrespective of the fact whether the posts in question are filled by selection or otherwise, the above mentioned policy will not apply where ad hoc or short term vacancies are refused.”
9.         It is also claimed at para 4.8
"the S.P.Os., Chitradurga vide letter No.B2/27-4 dated 12.3.2008 has informed that the applicant’s case has been rejected by the Circle Office vide letter No.STA/4-4/SG/NTL, dated 7.2.2008 on the ground that four P.As. in unreserved category to which they belong, have been notionally promoted to LSG cadre w.e.f. 1.4.2000 and the applicant could not be considered as he ranked 5th in the seniority list. But the applicant’s complaint that some officials who had declined promotion have been promoted before completion of the period of one year has not been considered and replied highlighting as to how such cases were considered. Therefore, it is clear that the respondent-departmental authorities are trying to cover up their mistake in promoting some officials who have once declined promotion before completion of one year period".

10.       Thus, the application also alleges "cover-up Act" and we find the allegation to be baseless and un-necessary.  The applicant makes it amply clear
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that he does not oppose nor prays for quashing the promotion given to the said Shri Rangaswamy vide Annexure-A/4, but only claims notional seniority w.e.f. from the said date.   It is further claimed that because of denial of promotion of the applicant along with his seniors as claimed above,  and his subsequent promotion came only from 8.2.2007, he has lost his seniority to a great extent.  The seniority position between Shri G. Rangaswamy and the applicant in the Circle gradation list of LSG officials are now at 78 and 205. This happened because  the cadre of LSG was earlier a Divisional Cadre. Had it remained a divisional cadre throughout, then the seniority of the applicant vis-à-vis other LSG in other Divisions would not affect him. However, the cadre of LSG becme a Circle cadre with effect from 1.1.2006.  Hence, the question of fixing his seniority in the LSG cadre notionally w.e.f.1.4.2000 is important because only then he can claim seniority over LSGs of other Divisions.  Denial of notional seniority w.e.f. 1.4.2000, while making it available to his seniors in Chitradurga Division has put him in a disadvantageous position.

12.       The Respondents have not denied any of the above facts averred by the applicant.  However, the learned counsel for the Respondents has pointed out (para 5 of counter) that there were 5 vacancies (4 UR + 1 SC) in LSG in the Division as on 1.4.2000 and since Shri Rangaswamy was promoted to the LSG Cadre retrospectively with effect from 1.4.2000, it was not possible to promote the applicant, there being no vacancy. Though Shri Rangaswamy was promoted to the cadre of LSG on 9.8.2007,  but his date of promotion was preponed retrospectively to 1.4.2000. Had he been originally promoted w.e.f. 1.4.2000 the

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applicant would have no case. The DoP&T instructions quoted by the applicant do not apply to the cases where the date of promotion is revised to take effect from retrospective date.  Such situation occurs occassionally when a retrospective vacancy is discovered subsequently. 
13.       We have gone through all the documents on record and also carefully considered the arguments of both the counsel.

14.       The main issue as it appears to us is not about when the applicant and the  private respondent actually got their promotion to the LSG cadre.  To our mind, the main issue is about the vacancy obtaining as on 1.4.2000, which it seems, has not been acted upon by the respondent department in the normal course, but only in the year 2007.  This is evident from the fact that Smt. Lalitha who was seniormost among the four and Shri Gowder, who was 2nd were promoted in 2005 apparently against a vacancy of 2005.  In the same year, on 21.10.2005, Shri G. Rangaswamy (private respondent) who was 3rd in the seniority was offered a promotion which he declined and which was then again offered on 5.2.2007 which he again declined on 22.2.2007.  In the meantime, the present applicant who is 5th in the seniority was offered promotion apparently, to a new found vacancy under the 1/3rd quota.  This was offered to him on 10.1.2007 which, it is pertinent to note, is before 5.2.2007 on which date Shri G. Rangaswamy, the private respondent was offered promotion for the 2nd time. 

15,       The applicant objects to the 3rd time offer to Rangaswamy on 9.8.2007.  In the relevant order at Annexure-A/4, Col.No. 4 and 5 make it clear that this order

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is meant to fill up with retrospective effect and on notional basis, the promotional posts of LSG which should have been actually filled on 1.4.2000 itself.  It is apparent from Col. No.4 and 5 that the department seems to have missed the promotions that were available on 1.4.2000 and became aware of it only on 9.8.2007.  It is seen that altogether 5 promotional posts have become available with effect from 1.4.2000 (1 among them being for SC candidate) and it is only fair that the same should be offered to such employees who would have been eligible on that date as per their seniority on that date.  Accordingly, the order at Annexure-A/4 states that the date of promotion earlier granted to Smt. Lalitha on 23.2.2005 and to Shri Gowder on 1.9.2005 are both modified notionally with effect from 1.4.2000. Shri G. Rangaswamy (private respondent) is also offered the notional promotion with effect from 1.4.2000.  Further, Shri Thippeswamy, who is the 4th senior member and was given promotion on 5.2.2007 also gets the notional promotion from 1.4.2000.  That being so, there is no question of the present applicant who stands next to Shri Thippeswamy, being given the notional promotion with effect from 1.4.2000.  The claim of seniority can go only to the private respondent as was rightly done by the department, who, by virtue of his seniority over the applicant as on 1.4.2000 is entitled for the benefit of notional promotion for the vacancy as on that date. 

16.       All other points raised by the learned counsel for the applicant are not relevant when the department is considering the question of filling with
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retrospective effect the vacancies available in the Chitradurga Division on 1.4.2000.

17.       In view of this, the OA is dismissed.  No order as to costs.

                        (V. AJAY KUMAR)                                        (LEENA MEHENDALE)
                          MEMBER (J)                                                      MEMBER (A)


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