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– 635 OF 2003 Shri Justice P. Shanmugam, Shri S.K. Hajra M. Manjappa S/o Murigappa Aged about 41 years Working as Sub Postmaster Holakere Road, SO Chitradurge Town, Resident of D-3, Postal Staff Quarters, Chitradurga ….. Vice-Chairman ….. Member (A)

…….. Applicant

(By Advocate Shri B. Veerabhadra) V 1. The Postmaster General South Karnataka Region, Palace Road, Bangalore – 560001 2. The Union of India Ministry of Communications & It, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi – 110001 represented by its Secretary. 3. The Superintendent of Post Offices, Chitradurga Division, Chitradurga – 577501 …… Respondents (By Standing Counsel Shri M.V. Rao) Order Shri Justice P. Shanmugam, Vice-Chairman: The applicant was appointed as Postal Assistant with effect from 31-10-1980. He belongs to Adi Dravida community which is classified as Scheduled Caste. He was promoted from Postal Assistant cadre to LSG in the scale of Rs. 1400-2300 under TBOP scheme with effect from 31-3-1995. The promotion order dated 31-3-1995 states that the officer on promotion may exercise option to have his pay fixed under FR-22 or to have the pay fixed initially at the stage of the time scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis. The next promotional avenue is to the cadre of Postal Service Group –B for which applications were called for by notification dated 7-5-2003. The notification calls upon all the eligible officials to submit applications. The applicant was one of the candidates for the post to write the examination held for that purpose. He was issued with a hall ticket dated 11-92003. However, the hall ticket was cancelled by letter dated 17-9-2003 and at this stage the above O.A. was filed seeking to quash to the cancellation of the hall ticket and to pass any other order or direction as deemed fit by the Tribunal. The applicant was

permitted to write the examination by an interim order and he now seeks amendment of the prayer to hold him eligible to write the PS Group ‘B’ examination, consider him for promotion to the post of Group –B post inasmuch as the said relief is consequential on his eligibility to write the examination and the consideration would follow if the amendment sought is ordered. 2. We have heard the learned counsel for the applicant and the respondents. The only point that arises for consideration is whether a person promoted to Lower Selection Grade under TBOP scheme is eligible to be considered for promotion to Postal Superintendent / Postmaster Group –B. 3. The applicant had put in 15 years of service before he was promoted as per Annexure – A7 dated 31-3-1995 to the post of LSG. The order of promotion says as follows: “6% of the total posts shall be filled on the basis of the same departmental examination from amongst clerical line officials working in Post Offices / Divisional Offices with 5 years regular service in the Lower Selection Grade and above.” The rules prescribe that promotees from among clerical line officials working with 5 years regular service in the Lower Selection Grade and above are eligible. A question arose whether persons working in the Lower Selection Grade under TBOP scheme are eligible to be considered for appearing in the Departmental ‘B’ group examination. A communication from the Ministry of Communication dated 28-7-2003 (Annexure – R5) which is relevant for our purpose is extracted below: “References from Heads of some Postal Circles have been received in this Directorate seeking clarifications whether the officials (PAs) promoted under TBOP/BCR having 5 years notional / regular service or more are also eligible for appearing in the P.S. Grade ‘B’ Examination.” The matter has been examined in the Directorate. I am directed to clarify that officials promoted under TBOP / BCR scheme are eligible to take the examination on completion of five years. Five years of service in LSG are reckoned from the date the official is notionally promoted to LSG or higher grade so as to be eligible for appearing in the Departmental Competitive Examination for Promotion to P.S. Group ‘B’ Grade. The question was sought to be clarified and was answered stating that the officials promoted under TBOP/BCR scheme are also eligible from the date of their notional promotion to LSG or higher grade. The Department of Posts, Bangalore Division relying on this communication instructed all the other subordinate officers and clarified that the officials promoted under TBOP/BCR scheme are eligible to take the examination on completion of 5 years. There is yet another communication from the Government of India, Ministry of Communications & IT dated 5th September 2003 which is also relevant to this case and it reads:“….is pleased to promote the following officials from PAs cadre to LSG in the scale of pay of Rs. 1400-2300 under TBOP scheme w.e.f. from the dates noted against their names:The Time Bound One Promotion (TBOP) scheme introduced in the year 1983 provides for time bound promotion with effect from 1.4.1983 for those officials who would be completing 16 years of service. The scheme also says that as soon as the Departmental Promotion Committee finalises the lists of officials who are to be promoted to the next higher grade, the Head of the Circle will ensure that the basic posts are upgraded to the higher scale of pay by issue of formal sanction, distributing the higher posts to different units so that such officials can be placed on the higher grade. Clause 7 of the scheme says that the pay of the officials on their being placed in the next higher

scale of pay under the Scheme will be fixed under FR 22-C. The relevant Recruitment Rules viz. the Department of Posts, Postal Superintendent/ Postmaster Group –B Recruitment Rules, 1987 provides for promotion to the post of Superintendent / Postmaster Group –B. The relevant clause is extracted for convenience: “6% from amongst General Line of officials by means of a Departmental Competitive Examination amongst officers belonging to Higher Selection Grade – I (Scale of pay Rs. 2000-3200). Higher Selection Grade-II (Scale of pay Rs. 1600-2660) and Lower Selection Grade (Scale of pay Rs. 1400-2300) with 5 years of regular service in either or all the three cadres together.” The said rule has been amended by Notification dated 29-6-1994 and the relevant clauses is as follows:- he is placed in the higher scale of pay as promotee. It is not the case of the respondent that the applicant did not assume duties involving higher responsibilities and that his pay was not fixed as LSG and the functional promotion was given at a later date. The instruction of the Government regarding this is found in G.I., M.F. No. 10 (1)/E.III/88 dated 13-3-1991 para 2 and it reads as follows:F.R. 22 (1) (2) (1) is applicable in situ promotion also –Even though promotion under the scheme (career advancements of Groups ‘C’ and ‘D’ employees) whereby Groups ‘C’ and ‘D’ employees get at least one promotion in their service career, which is in situ, may not involve assumption of higher duties and responsibilities, the benefit of FR 22 (i) (a) (i) (Old FR 22-C) will be allowed while fixing pay on promotion as a special dispensation. However, such benefit will not be allowed again at the time of functional promotional to the same scale. The Hon’ble Supreme Court had occasion to deal with a case of claim of FR 22 (i) (a) (i) in Union of India and others v. Ashoke Kumar Banerjee [1998 (2) AJT 661 (SC)]. Their Lordships observed as follows:“…That situation was already over when the OM was applied to him on his completion of 15 years. For the applicability of FR 22(i) (a) (i) it is not merely sufficient that the officer gets a promotion from one post to another involving higher duties and responsibilities but another condition must also be satisfied, namely, that he must be moving from a lower scale attached to the lower post to a higher scale attached to a higher post. If, as in this case, the benefit of the higher scale has already been given to him by virtue of the OM there is no Possibility of applying this part of the FR which says: “his initial pay in the time scale of higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty– five only, whichever is more.” “In continuation of this office letter of even number dated 28-7-2003 on the above subject it is to further clarify that officials who are promoted to LSG or HSG and are having five years service in the LSG either on notional or regular basis or in combination of both would be eligible for appearing in the Departmental Competitive Examination for promotion to PS Group ‘B’.” Therefore, it would be seen that the reference to LSG under the 1987 Rules has been clarified by the Ministry in categorical terms. So long as the clarifications issued by the Ministry are not contrary to the Rules, it will not be possible to hold that these clarifications run counter to the statutory Rules. The impugned communication withdrawing the hall ticket refers to the letter of Government of India dated 5-9-2003 to cancel the hall ticket issued. The communication dated 5-9-2003 does not say that LSG’s promoted on regular basis alone are eligible for writing the examination. Even that communication says that LSGs promoted having 5 years of service in the grade

either on notional or regular basis or in combination of both would be eligible. Even assuming that promotions given to the applicants are treated as notional and not regular still they are in for consideration for promotion to ‘B’ Group officers. 4. The applicant who has been ordered to be promoted to LSG and given scale of pay in the promoted cadre and functioned in that cadre cannot denied the benefits of the said promotion. We do not find any condition either under the scheme or in the order of promotion to hold that the applicant would be ineligible to be treated as promotee for all purposes. The fact that he is placed under FR-22-C shows that [present Rules FR 22 (i) (a) (i)] he was promoted and Following the said judgment the Full Bench of Andhra Pradesh High Court held in Union of India and others v. K. Radhakrishan Murthy and other [2004 (3) ATJ 118] that for applying FR 22 (i) (a) (i) the following two conditions must be satisfied – (i) that the employee must be promoted to a post which involve duties and responsibilities of greater importance than those attached to his former post and (2) that the employee concerned must be moving from a lower scale attached to the a higher scale attached to the higher post. We are concerned with the applicability of FR 22 (i) (a) (i) to the case of LSG (TBOP) as per the Scheme. It cannot be stated it was a mere financial upgradation. 5. Reliance is placed by the respondents on the order of the Madras Bench of this Tribunal in O.A. No. 845/2003 holding that the Public Relations Inspector is ineligible to be considered would not apply to the facts of the present case. The said judgment is distinguishable for the reason that it was found that the applicant who had not been promoted to LSG is not eligible for appearing in the PSS Grade ‘B’ examination. Further, the Bench also relied on clarification dated 12-11-2002 to the effect that TBOP/BCR placements are only financial upgradation and they have no co-relation with regular promotion in LSG & HSG.II. The Bench did not have opportunity of going through the clarifications dated 28-7-2003 and 5-9-2003 issued by the Ministry. The Madras Bench also did not go into the Scheme for TBOP and that there was no actual order of promotion to the said applicant. Whereas in the case before us there were orders or promotion from PA cadre to LSG. 6. For all the above reasons we hold that the applicant is entitled for declaration of results and consequently entitled to be considered for Group –B post. We make it clear that this eligibility would not mean that the applicant is fit for promotion. It would depend upon his performance in the examination or any other test that needed for consideration. 7. O.A. is accordingly allowed. No costs. Sd/(S.K. HAJRA) MEMBER (A) ********* Sd/(P. SHANMUGAM) VICE-CHAIRMAN