Badri Nath Tripathi vs The Union of India and others

Hon''ble Shri N.K. Sahu, Member (Administrative)

This is an application u/s 19 of the A.T. Act, 1985 seeking a direction to count the period from 1.4.71 to 15.11.78 as duty period in Postal Assistant Cadre for the purpose of drawing pay, pension and for reckoning promotion. If this period is to be reckoned and added, then the qualifying service would add upto more than sixteen years, thereby entitling him to be considered for at least one promotion. The brief facts are that the applicant was appointed as Assistant Compiler in the office of the Director of Census, Bihar, Patna wherein he worked from 4.1.71 to 29.6.74. He was retrenched on 30.6.74 and remained out of employment upto 15.11.78. He was appointed as Postal Assistant in Ranchi Postal Division on 16.11.78. It was stipulated in the Order that his appointment was purely temporary and that his services were liable to be terminated after giving a month''s notice, without assigning any reason. It was also stipulated that his seniority would be fixed as per instruction contained in the DGP&T''s letter No. 20/12/70-SPB. I dated 10.12.71. The applicant has been continuing as a Postal Assistant since then. His grievance is that one promotion in the time scale of Postal Assistant having 16 years of service was due to him from 1.4.87. He was deprived of this on the ground that he was out of employment during the period from 30.6.74 to 15.11.78, though he was registered with the Surplus Cell.

In a petition for condonation of delay u/s 5 of the Limitation Act read with Section 21 of the AT. Act, it was stated that after the order of DGP&T dated 13.3.86 entitling the applicant to get one time-bound promotion, he moved the said authority by his representation dated 3.7.89 and thereafter from 28.8.89 to 28.5.90 he was bed-ridden. He cited the authority- P.L. Shah Vs. Union of India (UOI) and Another, -to save his case from limitation. That was a case of subsistence allowance following suspension-wherein the Supreme Court directed that factors to be considered in determining subsistence allowance must be periodically reviewed by the Government. That was a case where the application was dismissed on ground of being time-barred u/s 21 (2) of the A. T. Act. It was held by the Supreme Court that despite lapse of time Tribunal could examine the propriety of continuation of subsequent order of reduction and cause of action arises every month in which reduced subsistence allowance is paid. Drawing an analogy, the applicant impliedly urged that denial of promotion would give rise to a continuous cause of action. The cause of action could arise only after expiry of 16 years from his appointment which was from 1.4.71. If we take the representation on 22.6.89 and subsequent illness, there is still a period of 4 years to be explained. On a careful consideration, we find that there is no material to justify condonation of such a long gap and accordingly the petition would stand dismissed in limine. We find on merits also, having heard the applicant at length, his case has no legs to stand.

The learned Advocate for the respondents drew our attention to rule 4.3.1. of seniority under Chapter 24 of Swamy''s Complete Manual which is as under:-

The surplus employees are not entitled for benefits of the past service rendered in the previous organisation for the purpose of their seniority in the new organisation. Such employees are to be treated as fresh entrants in the matter of their seniority, promotion, etc.

This rule completely puts the applicant out of Court. We are convinced that there is no substance in his claim. The moment his services were terminated, he remained out of employment from 30.6.74 to 15.11.78. He was in a different Organization earlier. There was no continuity of service, nor was there any undertaking or assurance to give weightage to the period of unemployment. Mere registration of his name in the Surplus Cell did not and would not confer any right on him for treating him as an employee in regular service. This claim, to our mind is farfetched and unsustainable. In the result, the application has no merit and is accordingly dismissed. There is no order as to costs.