w w w . L a w y e r S e r v i c e s . i n



Anju Tuli v/s Union of India, through Ministry of Communication & Information Technology (Department of Posts) Government of India, New Delhi & Others


Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NEW COMMUNICATION TECHNOLOGY PVT LTD [Active] CIN = U31909GJ1989PTC012512

Company & Directors' Information:- C H C INFORMATION TECHNOLOGY LIMITED [Strike Off] CIN = U72200WB2001PLC093126

Company & Directors' Information:- V R INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900MH2000PTC128632

Company & Directors' Information:- K. K. INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72200OR2009PTC011100

Company & Directors' Information:- S A I S INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72100TN2010PTC075284

Company & Directors' Information:- S H INFORMATION TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135610

    T.A. No.061/00001 of 2015 (SWP NO.1178 of 2007)

    Decided On, 30 September 2016

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MR. JUSTICE L.N. MITTAL
    By, MEMBER (J) & THE HONOURABLE MRS. RAJWANT SANDHU
    By, MEMBER (A)

    For the Applicant: C.M. Koul, Advocate. For the Respondents: R1 to R3, Harshwardhan Gupta,R4, Anju Dewan Raina, Advocates.



Judgment Text

L.N. Mittal, Member (J).

1. This case has been received by transfer from Hon’ble High Court. Applicant Anju Tuli filed SWP No. 1178/2007 in Hon’ble High Court. The case was transferred to this Tribunal vide order dated 28.11.2014 of Hon’ble High Court.

2. Case of the applicant is that vide order dated 29.03.2001(Annexure R-2), separate Postal Accounts Office (PAO) at Jammu for J & K Circle was formed by bifurcating the existing PAO Kapurthala. Accordingly, vide letter dated 01.05.2001 (Annexure R-1), options were invited from amongst Postal Assistants working in J & K Circle with minimum qualification as Graduate. Pursuant to option given by the applicant and private respondent No. 5 Sarla Dhar, they were transferred as Postal Assistants (PAs) in Jammu Division vide order dated 15.06.2001 (Annexure ‘A’) w.e.f. 19.06.2001, the date of creation/opening of separate PAO for J & K Circle at Jammu. The applicant accordingly joined PAO Jammu on 19.06.2001 and is deemed to have been adjusted/brought on the cadre of Director of Accounts (Postal) Jammu- Respondent No. 3, as Junior Accountant w.e.f. 19.06.2001. Respondent No. 5 joined the office at Jammu on 20.06.2001 i.e. after the applicant. Respondent No. 4 -Sonia Sharma was transferred from H.P. Circle to J & K Circle on deputation vide order dated 17.09.2001 (Annexure ‘B’). Respondent No. 4 was never transferred to J & K Circle on permanent basis or by absorption and was on deputation only. Even otherwise, as per letter dated 01.05.2001 (Annexure R-1), options were invited from J & K Circle only. Consequently, Respondent No. 4 could not be permanently transferred/ absorbed in J & K Circle. She also joined the J & K Circle on 20.09.2001 i.e. after the applicant. Absorption of Respondent No. 4 in the office of Respondent No. 3 is void ab initio. Therefore, her seniority could not be fixed in the State of J & K.

3. Grievance of the applicant is that the applicant was senior to Respondent No. 5 as reflected in gradation list (Annexure ‘E’), applicant being at Sr. No. 180 and Respondent No. 5 being at Sr. No. 230. Even in the office of Respondent No. 3, the applicant joined prior to Respondents No. 4 and 5 and is, therefore, senior to them. However, vide Memo dated 18.01.2007 (Annexure ‘F’), the applicant has been shown to be junior to private respondents No. 4 and 5. The applicant has been shown at Sr. No. 4 with date of absorption as 18.11.2002, Respondent No. 4 at Sr. No. 2 with date of absorption as 20.09.2001 and Respondent No. 5 at Sr. No. 3 with date of absorption as 08.03.2002. The applicant accordingly sought quashing of Memo dated 18.01.2007 (Annexure ‘F’) to the extent of reflecting inter-se seniority of the applicant and Respondents No. 4 and 5. The applicant has also claimed Writ in the nature of prohibition restraining the respondents from effecting promotion to the higher post of Senior Accountant on the basis of impugned Memo (Annexure ‘F’). Mandamus directing the respondents to promote the applicant to the post of Senior Accountant prior to promotion of Respondents No. 4 and 5 has already been claimed.

4. Official respondents No. 1 to 3 in their objections (Reply) to Writ Petition pleaded that the applicant was absorbed in PAO Jammu on 18.11.2002 and her seniority has been fixed accordingly in impugned Memo (Annexure ‘F’). Seniority is fixed from the date of joining the Postal Accounts Wing and after passing confirmatory examination, as per letter dated 20.09.1990. Separate PAO, Jammu was created vide letter dated 29.03.2001. Options were invited from the employees of J & K Circle for PAO Jammu vide Memo dated 01.05.2001 (Annexure R-1). Respondent No. 4 joined PAO, Jammu on 20.09.2001 and Respondent No. 5 on 08.03.2002. The applicant was permanently absorbed in PAO, Jammu thereafter on 18.11.2002 and, therefore, she has been rightly reflected to be junior to Respondents No. 4 and 5. Vide order dated 15.06.2001, the applicant and Respondent No. 5 were simply ordered to be attached as Postal Assistant in the newly created DDA (P) Jammu to manage the work as Postal Assistant. By the said order, the applicant was not ordered to be transferred on permanent basis to PAO, Jammu. The applicant was transferred to PAO, Jammu on permanent basis as Junior Accountant w.e.f. 18.11.2002 and not w.e.f. 19.06.2001. Respondent No. 4 has been transferred on permanent basis to PAO, Jammu and she joined there on 20.09.2001. Order dated 17.09.2001 (Annexure ‘B’) wherein transfer of Respondent No. 4 from H.P. Circle to J & K Circle was mentioned to be on deputation basis has been corrected as transfer on permanent basis. It was incorrectly mentioned to be transfer on deputation in order dated 17.09.2001. Respondent No. 4 had been transferred to PAO, Jammu on permanent basis vide order dated 31.08.2001.

5. Respondent No. 4 in her reply/objections also broadly took the same stand as that of official Respondents No. 1 to 3. It was pleaded that the applicant was attached as Lower Division Clerk (LDC) in PAO Jammu vide order dated 15.06.2001 to manage the work of Postal Assistant. The applicant was absorbed in PAO, Jammu much after the absorption of Respondent No. 4 in the said office. Respondent No. 4 also passed the confirmatory examination vide notification dated 21.03.2003 whereas applicant passed the confirmatory test much later on vide notification dated 05.03.2004. The applicant, thus, cannot claim seniority over Respondent No. 4. The applicant was transferred/absorbed in PAO, Jammu on permanent basis as Junior Accountant w.e.f. 18.11.2002 and not from 19.06.2001. It was also pleaded that transfer of Respondent No. 4 to PAO, Jammu made in 2001 has been challenged in the Writ Petition filed in the year 2007 and, therefore, the Writ Petition is barred by delay and laches. It is also pleaded that pursuant to impugned Memo dated 18.01.2007 (Annexure ‘F’), Respondent No. 4 has since been promoted as Senior Accountant vide promotion order dated 19.07.2007 (during the pendency of the Writ Petition). By the same order, applicant and Respondent No. 5 have also been promoted as Senior Accountants.

6. Respondent No. 5 was proceeded against ex parte.

7. The applicant filed rejoinder wherein she rebutted the stand of respondents and reiterated her own version.

8. Respondent No. 4 also filed sur- rejoinder reiterating her version and controverting the stand of the applicant.

9. We have heard learned counsel for the parties and perused the case file.

10. Learned counsel for the applicant emphatically contended that vide order dated 17.09.2001 (Annexure ‘B’), Respondent No. 4 was transferred to PAO, Jammu on deputation basis only and, therefore, she could not figure in the seniority list at all. The contention is completely untenable. Vide order dated 31.08.2001 (Annexure R-3), Respondent No. 4 was transferred and posted as Junior Accountant in PAO, Jammu against vacant post on permanent absorption, pursuant to which respondent No. 4 also submitted her option form dated 03.09.2001. However, in order dated 17.09.2001 (Annexure ‘B’), it was wrongly mentioned that transfer of applicant to PAO, Jammu was on deputation basis. It was so pointed out vide letter dated 26/27.09.2001 (Annexure R-4) sent by PAO, Jammu to HP Circle. Thereupon, vide Memo dated 29.01.2002 (Annexure R-5), H.P. Circle rectified the said error in order dated 17.09.2001 (Annexure ‘B’) and ordered transfer of Respondent No. 4 to PAO, Jammu as Junior Accountant on regular basis. Thus, the whole emphasis of the applicant that Respondent No. 4 was transferred to PAO, Jammu on deputation basis only is completely misconceived and untenable. Respondent No. 4 was transferred to PAO, Jammu on permanent basis. She joined there on 20.09.2001.

11. Applicant and Respondent No. 5 were attached as Postal Assistants in PAO, Jammu against the post of LDC to work as Postal Assistant vide order dated 15.06.2001 (Annexure ‘A’). By this order dated 15.06.2001, they were not permanently transferred/absorbed in PAO, Jammu. On the other hand, vide order dated 15.11.2002 (Annexure S-1), the applicant was permanently absorbed as Junior Accountant in PAO, Jammu and pursuant thereto she joined on 18.11.2002. Thus, the date of absorption of applicant in PAO, Jammu has been rightly reflected as 18.11.2002 in impugned Memo dated 18.01.2007 (Annexure ‘F’). Similarly, date of absorption of Respondent No. 4 in PAO, Jammu has been correctly reflected as 20.09.2001 in impugned Memo (Annexure ‘F’) because Respondent No. 4 was permanently transferred/absorbed in PAO, Jammu vide order dated 31.08.2001 (Annexure R-3) and order dated 29.01.2002 (Annexure R-5) read with order dated 17.09.2001 (Annexure ‘B’). Consequently, the applicant cannot claim seniority over Respondent No. 4.

12. As regards Respondent No. 5, her date of absorption in PAO, Jammu has been reflected as 08.03.2002 in impugned Memo (Annexure ‘F’). No order regarding permanent absorption of Respondent No. 5 in PAO, Jammu has been produced but from the pleading of official respondents, it is clear that Respondent No. 5 was permanently absorbed in PAO, Jammu on 08.03.2002 i.e. prior to the applicant.

13. Gradation list (Annexure ‘E’) as placed on file is un-dated. However, perusal thereof reveals that the applicant joined service on 02.04.1988 whereas Respondent No. 4 joined service on 25.02.1987 i.e. prior to the applicant. Both of them were attached with PAO, Jammu by a common order dated 15.06.2001. Consequently, the applicant cannot claim seniority over Respondent No. 5 merely on the ground that the applicant joined PAO, Jammu on 19.06.2001 whereas Respondent No. 5 joined PAO, Jammu a day after on 20.06.2001 pursuant to common order dated 15.06.2001 (Annexure ‘A’). Moreover, plea of respondents that Respondent No. 5 was permanently absorbed in PAO, Jammu on 08.03.2002 and the applicant on 18.11.2002 pursuant to order dated 15.11.2002 (Annexure S-1) has not been rebutted by the applicant in any manner. Thus, the applicant has been rightly shown to be junior to Respondents No. 4 and 5 in the impugned Memo dated 18.01.2007 (Annexure ‘F’).

14. Learned counsel for the applicant contended that options were not invited from employees of HP Circle for absorption in PAO Jammu and, therefore, transfer of Respondent No. 4 to PAO Jammu is void. The contention is untenable. Vide order dated 31.08.2001 (Annexure R-3), Respondent No. 4 was transferred as Junior Accountant to PAO, Jammu by permanent absorption subject to furnishing option by her. Accordingly, she furnished option dated 03.09.2001. Moreover, according to order dated 29.03.2001, separate PAO at Jammu was formed. Then options were invited from employees of J & K Circle vide letter dated 01.05.2001. According to order dated 29.03.2001, options could be invited from other circles also, if necessary. However, options were not invited from employees of other circles but irrespective of aforesaid provision in order dated 29.03.2001 (Annexure R-2), the Competent authority could transfer any employee from one circle to another. Transfer of Respondent No. 4 from HP Circle to J & K Circle was ordered under direction of Minister as per documents placed on record by both the parties. Consequently, the said transfer even if not strictly covered by order dated 29.03.2001 cannot be said to be void.

15. In addition to the aforesaid, Respondent No. 4 on her transfer from HP Circle to PAO, Jammu joined at Jammu on 20.09.2001. However, the instant Writ Petition to challenge the same was filed in June, 2007 i.e. after delay of almost six years. Consequently, Writ Petition is also barred by delay and laches for assailing the transfer of Respondent No. 4 from HP Circle to PAO, Jammu.

16. Learned counsel for Respondent No. 4 along with written arguments has also submitted gradation list as on 31.03.2003 which was communicated to all the concerned officials including applicant and Respondents No. 4 and 5 bearing their initials/signatures. In the said Gradation list, the applicant has been shown at Sr. No. 10 whereas Respondents No. 4 and 5 have been shown at Sr. No. 7 and 9 respectively. i.e. senior to the applicant. Consequently for challenging seniority of private respondents No. 4 & 5 also, the instant Writ Petition having been filed in the year 2007 is barred by delay and laches.

17. It may be highlighted that vide order dated 15.06.2001 (Annexure ‘A’), the applicant was simply attached with PAO, Jammu to work as Postal Assistant against the post of LDC whereas the applicant was permanently absorbed as Junior Accountant in PAO, Jammu vide order dated 15.11.2002 only and she joined as such on 18.11.2002 as correctly reflected in Memo dated 18.01.2007 (Annexure ‘F’). Respondent No. 4 stood permanently absorbed as Junior Accountant in PAO, Jammu on her joining there on 20.09.2001 and is, therefore, senior to the applicant. Confirmatory test was also passed by Respondent No. 4 vide notification dated 21.03.2003 much prior to the applicant who passed the same vide notification dated 05.03.2004.

18. Vide order dated 15.06.2001 (Annexure ‘A’), one Purnima Raina was transferred to PAO, Jammu as Junior Accountant. However, later on she expressed her unwillingness to join PAO, Jammu. Consequently, Respondent No. 4 was transferred on permanent basis to PAO, Jammu as Junior Accountant against the post against which Purnima Raina had been transferred. Thus, transfer of Respondent No. 4 was against existing vacancy caused due to unwillingness of Purnima Raina to join PAO, Jammu.

19. Learned counsel for the applicant submitted that Respondent No. 4 did not figure in order dated 15.06.2001 (Annexure ‘A’) in which applicant and Respondent No. 5 figured. However, Respondent No. 4 was transferred to Jammu vide separate order as noticed hereinbefore.

20. Learned counsel for the applicant contended that vide order dated 23.03.2004 (Annexure ‘C’) passed by the Tribunal in O.A. No. 362/JK/2003 titled Ramesh Chander Vs. Union of India & others, the respondents were directed to decide criteria or norms for selection for permanent absorption in PAO, Jammu. Thereupon, selection criteria were laid vide Memo dated 05.11.2004 (Annexure ‘D’) wherein applicant and Respondent No. 5 figure in para 6 but Respondent No. 4 does not figure. However, this contentio

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n does not help the applicant because Respondent No. 4 was transferred by separate order from HP Circle whereas Memo dated 05.11.2004 (Annexure ‘D’) relates to J & K Circle only. Contention of learned counsel for the applicant that Respondent No. 4 does not figure in Gradation List (Annexure ‘E’) is also irrelevant because this Gradation list appears to be of J & K Circle and Respondent No. 4 was initially in HP Circle. Contention of learned counsel for the applicant that no vacancy existed in PAO, Jammu in Phase I for Respondent No. 4 as required staff already stood transferred as per noting annexed with rejoinder (obtained as information under the RTI Act), has no merit because Respondent No. 4 was transferred against vacancy caused due to non-joining of Purnima Raina who had been transferred to PAO, Jammu vide order dated 15.06.2001 (Annexure ‘A’).21. For the reasons aforesaid, we find that the applicant has been rightly shown as junior to private Respondents No. 4 and 5 in the impugned Memo dated 18.01.2007 (Annexure ‘F’). It appears that the applicant filed the Writ Petition for seeking further promotion to the post of Senior Accountant prior to promotion of Respondents No. 4 and 5. However, vide order dated 19.07.2007, the applicant and Respondents No. 4 and 5 have been promoted simultaneously along with others to the post of Senior Accountant and, therefore, the applicant has not suffered in any manner by being junior to Respondents No. 4 and 5. 22. As an inevitable result of the discussion aforesaid, the instant T.A. is dismissed with no order as to costs.
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