Partly allowed

The Director v. Sri T K Pratap Kumar

Karnataka HC4 Mar 2021WP/54772/2016

Case brief

AI extract

What is this about?

High Court of Karnataka held that a respondent appointed to an isolated post is entitled to financial upgradation based on an official memorandum dated 2.11.2012 which assured consideration of past CISF service for pay upgradation upon completion of 30 years of service.

What did the court decide?

Impugned order of CAT modified to hold respondent entitled to Financial Upgradation of pay on completion of 30 years of service including CISF service.

The Director Vs Sri T K Pratap Kumar — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2021

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PRESENT

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THE HON'BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON'BLE MR. JUSTICE P.N.DESAI

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WRIT PETITION NO.54772/2016 (S-CAT)

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BETWEEN:

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The Director, National Aerospace Laboratories, Vimanapura P.O., Post Box No.1779, H.A.L. Airport Road, Bengaluru-560 017.

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The Senior Controller of Administration, National Aerospace Laboratories, Vimanapura P.O. Post Box No.1779, HAL, Airport Road, Bengaluru-560 017.

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… Petitioners

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(By Sri.Anand K, Advocate)

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AND:

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Sri. T.K. Pratap Kumar, S/o. A.S. Mannadi Nair, Aged about 56 years, Presently working as Security Officer, National Aerospace Laboratories, Vimanapura P.O., Post Box No.1779,

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HAL Airport Road, Bengaluru-560 017. ... Respondent

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(By Sri. M. Narayana Bhat, Advocate)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records, hear the parties and set aside the order dated 31.05.2016 passed in O.A.No.442/2014 by the Hon’ble Central Administrative Tribunal, Bengaluru Bench, Bengaluru as at Annexure-F and dismissed the O.A.No.442/2014 filed by the respondent by allowing this W.P.

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This Writ Petition coming on for Further Arguments , this day , S.SUJATHA.J., made the following:

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ORDER

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This is the second round of litigation before this

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Court.

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The facts relevant for the purpose of the present case are that, pursuant to the applications published by petitioner No.1 from the eligible candidates to fill up the post of Security Officer in Pay Scale of Rs.6,500-2000-10,500/- with a revised pay of Rs.9,300-34,800 with Grade Pay of Rs.4,600/- to an Isolated post, the respondent herein filed an application and the Selection Committee selected the

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respondent to the said post and thereafter an appointment order was issued to the respondent herein.

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The respondent filed a representation before the petitioners requesting to consider his past services rendered in CISF for the purpose of Pension, Gratuity and other terminal benefits, to which, it was informed that the request could be considered only after declaration of the satisfactory completion of his Probationary Period. On completion of Probationary Period, pursuant to the request made by the respondent herein, the petitioners considered his case for counting of his past service in CISF and informed the respondent that the same will be considered for the purpose of combined Pensionary benefits and thereafter, O.M. dated 02.11.2012 was issued.

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Aggrieved by the same, the respondent filed O.A.No.999/2012 before the Central

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Administrative Tribunal (CAT), which came to be disposed of with a direction to the petitioners herein to

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consider the case of the respondent for Financial Upgradation in terms of DOPT & OM dated 01.09.1998 and pass a reasoned and speaking order within three months. In compliance of directions of the CAT by order dated 12.09.2013, petitioners passed the order rejecting the claim of respondent stating that the past service of the respondent could not be counted for the purpose of Seniority and Promotion as the said post is an Isolated post in the petitioners organization and also respondent was appointed to the said post through an open advertisement.

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Being aggrieved by the said order, respondent filed O.A.No.442/2014 before the CAT, Bengaluru and the same came to be allowed by granting the relief as sought for.

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Aggrieved by the said order, petitioners preferred Writ Petition No.16267/2015 before this Court.. After hearing the matter on merits, this Court disposed of the matter, remitting the matter back to

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the CAT for passing a fresh order in accordance with law.

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Pursuant to the directions issued by this

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Court, the CAT has passed the order impugned herein declaring that the respondent is entitled for service benefits from 15.07.1985 to 02.08.2009 including financial benefits and eligibility for counting of seniority for career progression and for the ACP to be dated from 02.08.2010 as claimed. Being aggrieved, the petitioners have preferred the present writ petition.

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Learned counsel for the petitioners vehemently contended that the respondent was appointed to an Isolated post pursuant to the advertisement issued inviting the application from eligible candidates for the post of Security Officer. In terms of the open recruitment by open advertisement, his service as Inspector in CISF cannot be considered either for promotion, Seniority or Financial Upgradation. Learned counsel submitted that the Financial Upgradation is nothing but the promotion,

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which cannot be extended to an Isolated post. It is further submitted that Financial Upgradation from respondent joining the NAL has been considered and already extended as per the O.M. dated 23.03.2020 and as such the respondent is not entitled for any further benefits. Learned counsel argued that the Tribunal on remittance has extended the Seniority, Promotion and other service benefits to the respondent, who was appointed in an Isolated post, which runs counter to the well settled principles of service jurisprudence. Thus, the learned counsel sought for setting aside the impugned order of the CAT.

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The learned counsel for the respondent submitted that the respondent though was appointed against the Isolated post pursuant to the open advertisement, is entitled for Financial Upgradation. Learned counsel fairly admitted that the respondent is not entitled for Promotion or Seniority in an Isolated post and the order passed by CAT to the said effect would be contrary to the well settled legal provisions of

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law. However, confining his relief to the Financial Upgradation, learned counsel submitted that the Official Memorandum dated 02.11.2012 issued by the petitioners to his request made on 26.09.2012 itself makes manifestly clear that the assurance was given that his case would be considered for Financial Upgradation of his pay on completion of 30 years of service including the service rendered by him as Inspector at CISF in July, 2015 as per the CAT and Government Of India as adopted by CSIR. Even this assurance made by the petitioners has not been complied with. The Upgradation said to have been made on 23.03.2020 is not consolidated, the Financial Upgradation to which the respondent is entitled. In this regard, both the learned counsel have placed reliance on the Judgment of the Hon’ble Apex Court in the case of Renu Mullick Vs. Union of India in addition to this, the learned counsel for the respondent has placed reliance on the judgment of Hon’ble Apex Court in COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER Vs. K.G.S.

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BHATT AND ANOTHER reported in (1989) 4 SCC 635.

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Adverting to the arguments advanced by

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the learned counsel for the parties as aforesaid and perusing the material on record, the only question that arises for our consideration is:

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Whether the respondent is entitled for Financial Upgradation of his pay including the service rendered by him as Inspector at CISF since July 2015 ?”

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As could be seen from the material

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available on record, the respondent has made a request immediately after joining the duty as a Security Officer to the petitioner – Organisation to consider his service and to extend service benefits considering his service rendered by him as an Inspector in CISF since July 2015.

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The petitioner has issued an Office

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memorandum dated 02.11.2012 in response to the representation/request made by the respondent

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relevant portion of which is extracted herein, for ready

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reference.

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1. Shri Prathap Kumar joined NAL as Security Officer (under Isolated Category) against an open advertisement and his case for promotion to the next higher grade will be considered only on completion of ten years of service in the present grade held by him at the laboratory in terms of CSIR letters No.17/92/8/2000-EII dated 30.01.2003 and 5-1(12)/2008-PD dated 17.05.2012 for career Progression of Isolated category Staff.

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2. Shri. Prathap Kumar will however be considered for financial upgradation of his pay on completion of 30 years of service including the service rendered by him as Inspector at CISF in July 2015, as per the MACP Scheme of Government of India, as adopted by CSIR.

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Being aggrieved by the O.M. dated

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02.11.2012 the respondent has approached the CAT to extend the Seniority, Promotion and Service benefits considering his past service rendered by him as Inspector at CISF. Even in the third round of litigation before CAT, the request of respondent was to extend the Seniority, Promotion and other service benefits for the past service rendered at CISF. The Tribunal in the first round in paragraph 15 has made it very clear that

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the pay in respect of counting the past service rendered in different organizations under the Government of India as decided by Hon’ble Apex Court in the case of RENU MALLICK VS. UNION OF INDIA supra and K. MADHAVAN VS.UNION OF INDIA AND

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OTHERS reported in 1987(4) SCC 566 that the applicant/respondent herein is entitled to count his past service under the CISF for the purpose of Financial Upgradation in view of DOPT & O.M. dated 01.09.1998 observing that the applicant had restricted his relief only for Financial Upgradation, and directed the respondent to consider his case for Financial Upgradation in terms of DOPT & O.M. dated 01.09.1998 and pass a reasoned order in this regard. The petitioners having considered the DOPT & O.M. has passed an order holding that the respondent is not covered under DOPT & O.M dated 01.09.1998. Thus, his past service rendered at CISF cannot be counted for the purpose of Seniority and Promotion. As argued

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by the learned counsel for the petitioner that the Financial Upgradation sought by the respondent is

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nothing but the promotion in an Isolated Post to which he is not entitled to. We are not agreeable for the same, since the petitioners vide Official Memorandum dated 02.11.2012 had made it clear that the case would be considered for Financial Upgradation of his pay on completion of 30 years of service including the service rendered by him as Inspector at CISF as per the MACP Scheme of Government Of India, as adopted by CSIR. As such, the petitioners cannot deny the said benefits which indeed was already offered to the respondent in November, 2012.

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As could be seen from the impugned order passed by the Tribunal, the Tribunal proceeded to consider the scope and ambit of the technical resignation to extend the benefits namely, Seniority and Promotion and other service benefits rendered by the respondent at CISF. This view of the Tribunal is palpably erroneous. Such benefits ought not to have been extended to Isolated post where the recruitment was made through open advertisement. The judgment of the Hon’ble Apex Court in Renu Mallick supra was

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rendered in the context of transfer and both the learned counsel appearing for the parties have relied upon the very same judgment. In the said judgment the Hon’ble Apex has held that the benefits of transfer from the post of Inspector to the post of Tax Assistant shall be deemed to be continuing, to hold the post of Inspector from the date when he originally joined as Inspector as a result of the promotion order dated November 11, 1991. We are of the considered view that the said judgment would be of little assistance in the present case, where the respondent was appointed in an Isolated post as an Inspector where there was no scope for further seniority and promotion as candidly admitted by the learned counsel appearing for the respondent.

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In the facts and circumstances as aforesaid, we are of the considered view that the justice would be subserved in directing the petitioners to comply the O.M. dated 2.11.2012 wherein it was assured that the respondent will be entitled for Financial Upgradation on

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completion of 30 years of service including the service rendered by him as Inspector at CISF in July, 2015.

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In view of the aforesaid reasons, we cannot

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approve the impugned order in its entirety. In view of the reliefs sought by the respondent herein now being confined to the Financial Upgradation, we hold that the respondent shall be entitled to the Financial Upgradation of his pay on completion of 30 years of service including the service rendered by him as Inspector in CSIF in July, 2015 as per the O.M. dated 02.11.2012 read with Annexure-A1 dated 10.05.2008. Impugned order is modified accordingly.

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Writ Petition stands disposed of as indicated

above.

Sd/- JUDGE

Sd/- JUDGE

The Director v. Sri T K Pratap Kumar

Case brief

What is this about?

What did the court decide?

The Director v. Sri T K Pratap Kumar

Case brief

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