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Judgment
V. KAMESWAR RAO, J. (ORAL)
CM APPL. 49744/2024
This is an application seeking condonation of delay of 462 days in filing the review petition.
For the reasons stated in the application, the same is allowed.
The application stands disposed of.
REVIEW PET. 317/2024, CM APPL. 49743/2024
This petition has been filed by the original petitioners in the writ petition seeking review of the order dated 09.02.2023 whereby this Court dismissed the writ petition by stating in paragraphs 10 onwards as under:-
“10.Having heard the learned counsel for the parties and perused the record, there is no dispute that the respondent was initially appointed as LDC w.e.f. June 30, 1970. She was further appointed as IBM Typist on April 9, 1975 under the recruitment rules which stipulated the mode of appointment as direct appointment, failing which deputation. respondent was appointed as IBM Typist by way of departmental test.
11.No doubt, the DoP&T had opined that the appointment of the respondent under the recruitment rules was ab initio irregular, but the fact remains that the respondent continued to hold the post even thereafter. She was further promoted to higher post. For all purposes, her appointment as IBM Typist being on April 9, 1975 under the recruitment rules as a direct recruit and the fact that persons appointed subsequent to her as IBM Typist. have been granted the benefit of ACP on completion of 24 years of service as IBM Typist, the respondent has been rightly granted the benefit by the Tribunal.
12.In this regard, our attention has been drawn by the learned counsel for the respondent to page 140 of the paper book wherein the respondent has given the career record of two juniors namely Vinod Kumar Sharma and Pawan Kumar Bansal in the following manner:
Asha Sharma (respondent) Vinod Kumar Pawan Kumar Bansal Appointed on temporary capacity as LDC in the pay scale of 110-180. 30.06.1970 Nil Nil Direct appointments as IBM Typist in pay - scale 330-560 as per draft RR's 09.04.1975 11.03.1976 25.03.1976 Promotion as layout artist in the pay scale of RS 4500-7000 27.05.1994 Nil Nil 1st ACP as per 5th Pay Commissionw.e.f 09.08.1999 in the scale of rs 4500- 125-7000 Not granted Granted on 09.08.1999 Granted on 09.08.1999 2nd ACP as per 5th pay commission in pay scale 5000-150-8000 Not granted Granted on 01.04.2000 Granted on 01.04.2000 Upgraded Scale 6500-200-10500 Not granted w.e.f. 01.04.2000 vide order dated 08.06.2010 w.e.f. 01.04.2000 vide order dated 08.06.2010 As per 6th CPC scale of 6500-200-10500 fixed as 9300-34800+GP 4600 5200-20200+Gp 2800 Rs. 9300-34800+GP 4600 9300-34800+GP 4600 3rd MACP as per 6th CPC w.e.f. 01.09.2008 in the pay scale of rs 9300-34800+GP 4800 Granted On 01.09.2008 in the pay scale 9300-34800+GP 4200 Granted on 01.09.2008 in the scale rs 9300-34800+GP 4800 Granted on 01.09.2008 in the scale rs 9300-34800+GP 4800. 13.Even the reliance placed by Mr. Digpaul on the office order dated April 9, 1975 and subsequent undertaking given by the respondent, stating that her appointment as IBM Typist is temporary and her services are liable to be terminated without any notice, would not help the case of the petitioners, as concedingly the respondent has not been reverted rather, she continued to hold that post till such time she was promoted to higher post. It is quiet late in the day for the petitioners to deny the benefit of ACP as her appointment as direct recruit was in the year 1975.
14.In the facts of this case, we are of the view that the impugned judgment needs no interference. The petition is dismissed.”
The submission of Mr. Amit Tiwary, learned Central Government Standing Counsel appearing for the petitioners is primarily that this Court has erred in not considering the fact that the respondent has already availed the benefits of two promotions through her entire service along with 3rd MACP to which she was entitled to, and as such she is not entitled to any further financial upgradation.
According to him, whether the appointment of the respondent from LDC/KPO Group-D to IBM Typist Group-C in 1975 was a promotion, or direct appointment would be a relevant factor for determining the grant of financial upgradation, as sought by her, which was granted by the Tribunal by holding that the same was direct appointment.
He submits, the omission of the word ‘promotion’ in the appointment letter issued to the respondent has led to the confusion but otherwise in terms of the draft Recruitment Rules, the appointment to the post of IBM Typist is a promotion inasmuch as the zone of consideration was confined to departmental candidates, who possess requisite educational qualifications and has undergone training. Hence, the conclusion drawn by this Court in the order dated 09.02.2023 is clearly erroneous and need to be reviewed.
We are not in agreement with the submissions made by Mr. Tiwary. The interpretation sought to be given by Mr. Tiwary on the draft Recruitment Rules is clearly erroneous. This we say so because the zone of consideration is not confined to LDC but all departmental candidates who possess educational qualifications and has undergone training. In that sense, the appointment is not confined to the feeder cadre of LDC but also to other cadres in the department/organisation. So, the appointment takes the colour of a direct recruitment.
That apart, a perusal of paragraph 11 of the judgment also justifies the conclusion drawn by this Court in the judgment of which the review is sought. There is no error apparent on the face of the record. We do not find any merit in the review petition. The same is dismissed. The application seeking stay of the order dated 09.02.2023 is also dismissed.