I.K. Bindra vs Union of India

Instant petition is directed against order of the Central Administrative Tribunal ("Tribunal") Dt. 14.09.2011.

For our consideration the relevant facts can be noticed from order of the Tribunal and not in dispute for disposal of the present writ petition are that the petitioner was appointed on the rolls of BARC as Junior Stenographer Grade-III w.e.f. 18.04.1975 and was posted to Nuclear Research Laboratory at Srinagar. However, the headquarter of Nuclear Research Lab at Srinagar was shifted to Jammu w.e.f. 01.09.1990 on account of the prevailing law & order situation at Srinagar. The petitioner while working at Jammu made a request for his transfer on 27.04.1992 to Atomic Minerals Division for Exploration & Research (erstwhile Atomic Minerals Division) (AMD), North Western Region (now called as Western Region), Jaipur on account of his wife being posted at Accountant General''s office, Jaipur which was favourably considered upon furnishing an undertaking by him for foregoing his seniority and he was transferred to AMD, Jaipur where he joined on 01.12.1992 by furnishing an undertaking Dt. 17.11.92 for foregoing his seniority in accordance with Department of Personnel & Training O.M. Dt. 03.07.1986.

It will be relevant to notice that he was empanelled for the post of Stenographer Grade-II in BARC in the year 1992 on qualifying inter departmental examination but he did not get his promotion during his tenure in BARC. However, on qualifying the departmental examination he was granted two advanced increments and which he continued to get even after being transferred to AMD, Jaipur. On qualifying the said examination he was also granted ACP in the pay-scale of 5500-9000 vide order Dt. 17.04.2000. After his transfer to Jaipur on his own request the petitioner approached to the learned Tribunal for determining his seniority from the date of his initial appointment and for grant of promotion to Stenographer Grade-II on the pretext that he had already been empanelled for Stenographer Grade-II prior to his transfer to Jaipur and his Original Application No. 254/1997 was disposed of by the Tribunal vide order Dt. 17.05.2000 and that came to be assailed by filing D.B. Civil Writ Petition No. 5207/2000 that too was disposed on 08.12.2000. In the seniority list of Stenographer Grade-III the petitioner was shown at the bottom of the list. However, his initial appointment in the Nuclear Research Laboratory was on 18.04.1975 but on being transferred on his own request and as he had foregone his seniority he was placed at the bottom of the list of Stenographer Grade-III.

Under the scheme of Rules the post of Stenographer Grade-II is to be filled by three modes of recruitment; 50% by direct recruitment, 25% by departmental qualifying examination; & 25% by promotion on the basis of seniority-cum-fitness. The controversy in the instant case is confined to 25% quota which is to be filled by departmental qualifying examination.

The grievance of the petitioner is that being empanelled on qualifying departmental speed (test examination for the post of Stenographer Grade-II in BARC and after being transferred may be on his own request to AMD, Jaipur he may loose his seniority but still was eligible to be considered for promotion against 25% quota reserved for departmental qualifying examination keeping in view his empanelment for the post of Stenographer Grade-II in BARC while being posted at Srinagar.

In earlier Original Application No. 337/2002 he made the following prayers:--

"a) It is, therefore, prayed that the application filed by the applicant may kindly be allowed and respondents be directed to considering applicant for promotion for the post of Stenographer Grade II, keeping in mind that he had already been empanelled prior to his transfer to Jaipur, from the date it is due and be awarded all consequential benefits arising out of it.

b) Any other benefit which the Hon''ble Tribunal deems proper be ordered to be allowed.

c) That the impugned order dated 17.05.2002 may kindly be quashed and set aside.

d) That the entire record of Asha Raina matter may be called."

The Original Application-337/2002 came to be dismissed by the Tribunal vide order Dt. 05.12.2003 taking into consideration the relevant salient facts that both are separate constituent units namely BARC & AMD having their separate promotional channels & having no inter-relationship & it was specifically observed by the Tribunal that he was claiming promotion to the post of Stenographer Grade-II on the basis that he was empanelled in BARC in the year 1992. The relevant para-13 of the order of the Tribunal Dt. 05.12.2003 reads as under:--

"In view of this legal position, the applicant cannot be permitted to rack up this matter once again when no finding has been given in favour of the applicant in respect of his promotion for the post of Stenographer Grade II. It is not permissible for us to entertain this plea once again thereby nullifying the earlier order passed by this Tribunal in OA No. 254/1997, which was subsequently affirmed by the Division Bench of the Hon''ble High Court in D.B. Civil W.P. No. 5207/2000. That apart, we have already held that the applicant cannot be promoted to the post of Stenographer Grade II simply on the basis that he was empanelled in BARC in the year 1992 especially when after an empanelment and before the applicant could be considered for promotion to the post of Stenographer Grade II in BARC he sought transfer to another unit i.e. AMD, Jaipur, which is a separate unit and the promotion has to be made on unit basis. Further this being stale claim of 1992, cannot be entertained at this stage more particularly when the applicant has not filed any application for condonation of delay in terms of Section 21 of the Administrative Tribunal''s Act, 1985 and in view of the law laid down by the Apex Court in the case of Ramesh Chand Sharma v. Udham Singh & Others with State of H.P. v. Udham Singh & Others, 2000 SCC (L&S) 53. Apart from the fact that claim for promotion as Stenographer Grade II is hit by the principles of res-judicata."

The order of the Tribunal Dt. 05.12.2003 indisputably has attained finality.

The respondents (AMD, Jaipur) conducted departmental qualifying examination for the post of Stenographer Grade-II on 15.03.2002 where the petitioner is now posted on being transferred to be filled from the candidates as per eligibility and one Sh. T. Anjaneya Menon was promoted to the post of Stenographer Grade-II w.e.f. 01.02.2007 on qualifying departmental examination, the petitioner made a representation for consideration of his candidature for promotion from merit panel on being already empanelled while he was working at BARC at Srinagar and on rejection of his representation by the authorities vide communication Dt. 01.05.2007 he again preferred Original Application No. 103/2008 before the Tribunal with the self same grievance that after he being empanelled on qualifying departmental speed test while being posted in BARC at Srinagar and Sh. T. Anjaneya Menon being junior to him in the cadre of Stenographer Grade-III at AMD, Jaipur he has got a preferential right to be considered for promotion against 25% of the vacancies reserved for departmental qualifying examination.

The learned Tribunal after taking notice of the submissions made and the material which came on record observed that empanelment of the petitioner for the post of Stenographer Grade-II in BARC cannot be considered for promotion in AMD, Jaipur as these two are separate constituents of DAE having separate channels for promotion in their respective units and opportunity was available with the petitioner to appear in the departmental qualifying examination held in 2002 but that he didn''t avail and Sh. T. Anjaneya Menon with whom he had a grievance being junior to him in the cadre of Stenographer Grade-III promoted as Stenographer Grade-II, a specific finding has been recorded that he appeared in the examination and on qualifying departmental examination and after empanelment was considered for promotion against 25% quota reserved for departmental qualifying examination and didn''t find any infirmity in the communication made to the petitioner Dt. 01.05.2007.

The main thrust of submissions of counsel for petitioner is the same as reiterated before the Tribunal that once he was empanelled after qualifying departmental qualifying examination held for the post of Stenographer Grade-II while being posted in BARC Srinagar his eligibility could not have been sacrificed. However, after being transferred on his own request to AMD, Jaipur he might be placed in the bottom of seniority list but being empanelled candidate in BARC Srinagar there was no need for him to appear in the departmental qualifying examination which was conducted by AMD, Jaipur on 15.03.2002 and being eligible against 25% quota reserved for departmental examination he has a preferential claim to be considered for promotion being senior to Sh. T. Anjaneya Menon who was promoted as Stenographer Grade-II vide order Dt. 01.02.2007 that has been rejected by the Tribunal.

Apart from what has been considered by the Tribunal we find no substance in the submission made for the reason that his contention as regards his claim for promotion against 25% quota reserved for departmental qualifying examination for the post of Stenographer Grade-II on the basis of his empanelment in BARC at Srinagar, was repelled by the Tribunal and earlier Original Application No. 337/2002 came to be dismissed on 05.12.2003 and the learned Tribunal has specifically observed in para-13 and noticed by us as well that the petitioner cannot be promoted to the post of Stenographer Grade-II simply on the basis of being empanelled in BARC Srinagar in the year 1992 and that order of the Tribunal Dt. 05.12.2003 attained finality and was never the subject matter of challenge and after the departmental examination was held by AMD, Jaipur on 15.03.2002 certainly the petitioner also had an opportunity to appear in the written examination but if he has not chosen to appear, he forgo his claim and the promotion which was offered to Sh. T. Anjaneya Menon vide order Dt. 01.02.2007 certainly cannot be considered to be a fresh cause of action and that apart we also do not find any substance in the submission made for the reason that once these are two separate constituents of DAE, after being transferred from one constituent unit to the other on his own request where he lost his seniority but the departmental qualifying examination being separately conducted/held by both the two separate constituent units and after being transferred to AMD, Jaipur certainly the employees of AMD, Jaipur constitute homogeneous class of employees to be considered for promotion against 25% quota reserved for departmental qualifying examination and despite opportunity being available to the petitioner to appear in the departmental examination held by AMD, Jaipur at least he cannot have any locus to say that without qualifying the departmental qualifying examination conducted by AMD, Jaipur he is eligible to be considered for promotion against 25% quota to be filled by departmental qualifying examination on the basis of his one time empanelment for the post of Stenographer Grade-II while being posted in BARC at Srinagar and this what the Ld. Tribunal also considered while repelling his contention vide order Dt. 05.12.2003.

Consequently, in our considered view the writ petition is wholly devoid of merit and accordingly dismissed.