Jose Dominic, Geethakumari R. vs Union Of India, The Director General, Posts, Chief Post Master General, Superintendent Of Post Offices, Superintendent Of Post Offices

^{Per: Mr. Braj Mohan Agrawal, Administrative Member}Central Administrative Tribunal The applicants were Postal Assistants entitled to be promoted as Lower Selection Grade(LSG) Accountant/APM (Accounts) on the introduction of time-bound one promotion/biennial cadre review schemes (TBOP/BCR) in the department. The first applicant approached the Tribunal with O.A. No.468 of 2007 praying for a grant of promotion, which was allowed by the Tribunal by Annexure A-3 order dated 01.02.2008, finding him eligible to be considered for promotion to norm based vacancies based on Recruitment Rules of 1976. In compliance prospective promotions to the cadre of APM(Accounts) in LSG were granted vide order dated 27.08.2008 (Annexure A-4).

Some of their seniors claiming promotion filed O.A.No. 723 of 2008, which was also allowed. Subsequently, the seniority list of the officials who had passed PO and RMS Accountants Examination was published, in which the 1^st applicant was in serial No.37. Thereafter, he was issued with a notice of reversion dated 31.05.2010 (Annexure A-8), and reverted from the post of LSG Accounts/APM Accounts to PO &RMS Account vide order dated 06.08.2010 (Annexure A-10). Aggrieved by the said demotion, applicants again approached the Tribunal with O.A.No.323 of 2009 and OA No.481 of 2009.

^3.Central Administrative Tribunal ^{While the said O.A s were pending, the postal service group notified the} examinations. They were refused permission to appear in the examination and based on the interim order passed in O.A.No.323 of 2009, the applicants appeared for the examination (Annexure A-5). O.A.No.323 of 2009 and connected cases were disposed of by order dated 01.11.2011 as follows:

"In our considered opinion, it would be in the interest of all concerned if seniority lists in respect of LSG and HSG-II posts in the Accounts Line are updated weeding out the names of those who are no longer in service and then all vacancies are filled up as per seniority and eligibility of the employees first in the HSG-II cadre and then in the LSG cadre in the light of the clarification dated:

12.11.2002 (Annexure A-4 in OA 774 of 2010). The applicants should not be made to suffer for the failure of the respondents to carry out norm based promotion to LSG/HSG-II posts in terms of the relevant Recruitment Rules every year. Therefore, it is only fair and just that the applicants are granted norm based LSG Accountant/APM Accounts promotion with effect from the date of occurrence of vacancies yearwise according to their turn, for considering their eligibility to appear for the examination for promotion to the cadre of Postal Service Group-B 2009. Those applicants, who appeared for the above examination provisionally, who are found eligible to participate in the examination, and passed the same should be given promotion as per rules ordered so. The entire exercise should be carried out within a period of four months from the date of receipt of a copy of this order".

The department thereafter drew a seniority list in the Entry Grade of Postal Assistants who have passed PO and RMS Accountants Examinations (Annexure A-12, dated 03.1.2012). The applicants are placed as serial No.36 and 44 respectively. The applicants approached this Tribunal again by filing this OA Central Administrative Tribunal No.421/2012, pointing out that as on 2002 there are 15 HSG to APM Accountant post vacant and if the seniors in the list are promoted to those posts notionally from that date, the consequential vacancies will enable the applicants to get promotion to LSG Accountant post. The applicants sought the following reliefs:-

The case of the applicants before the Tribunal primarily was to implement the final order of the Tribunal in OA No.323 of 2009 and connected cases by promoting LSG Accounts/APM Accounts from 2002 onwards and granting all consequential benefits. The Original Application was dismissed on 04.09.2016 by Central Administrative Tribunal the Tribunal, against which the 1^st applicant moved the Hon'ble High Court of Kerala in OP(CAT) No.273/2016, which has been allowed holding as under:-

Central Administrative Tribunal^{passing the impugned order.”}

The order of the Tribunal dated 04.09.2016 was set aside by Hon'ble High Court vide order dated 24.01.2023 and the matter is remitted to the Tribunal for fresh consideration taking into account the earlier direction in OA No.323/2009,

It is the case of the applicants that pursuant to the order of the Tribunal in O.A.No.323 of 2009, the respondents had not prepared any seniority list as directed by the Tribunal, but a submission was made that the list was published and therefore by order dated 02.07.2013 the Tribunal directed to make available the obtained seniority list which is stated to have been prepared and a copy of the 1976 Recruitment Rules, but the list was not produced despite a direction by the Tribunal.

The applicants contend that if all the vacant posts are properly filled at least by giving notional promotion, the applicants would have got a date of promotion as LSG Accountant much prior to the one granted in Annexure A4 and his seniors would have got even earlier dates of promotion. Promotions were directed to be given to the applicants from date of occurrence of vacancies yearwise in accordance with their turn, for considering them for eligibility to ^{appear for the examination for promotion to the Postal Services Group B, 2009.}Central Administrative Tribunal The exercise was directed to be completed in four months, as per direction of this Tribunal in its order dated 1.11.2011 in OA 323/2009 and connected cases (Annexure A-11).

The applicants further submit that there is no person presently holding post of HSG APM Accounts in Kerala Circle. These are vacant from 2002 onwards. There are fifteen posts of HSG II APM Accounts in Kerala Circle in the postal line. The first fifteen in Annexure A12 are now entitled to be posted as HSG II APM Accounts from the date of occurrence of vacancy as per the final order of this Tribunal. Then there are 25 vacancies of LSG Accountant/ APM Accounts in the circle. Filling these up by those in Annexure A12, personnel up to 40 will be promoted. The 1^st applicant is thus entitled to be promoted as LSG Accountant/ APM Accounts from the date of occurrence of vacancy.

The applicants have further submitted that three individuals in Annexure A-12 are at seniority number 14,25 and 31 have declined promotion to LSG Accountant/APM Accounts (Annexure A-5), therefore they are not entitled to be considered for further promotion for a period of one year as per the Rules. Taking ^{into account these refusal, the 2}Central Administrative Tribunal^{nd applicant will also be entitled to get promotion} from the date of vacancy.

In view of the above, the applicants contend that respondents have not implemented Annexure A-11 order of the Tribunal till date. Had this been done, the applicants would have been given promotion from retrospective dates to the cadre of LSG Accountant/APM Accounts and thereby by virtue of their promotion they would have been entitled to be considered for promotion to Postal Service Group 'B' and the examination they had provisionally undertaken ought to have been considered. The results of the applicants in the Postal Service Group B examination of 2010 and 2011 are not published.

The respondents brought on record through their affidavit dated 29.09.2015 that in 1992, all 40 LSG posts were occupied by eligible LSG Accountants. Before 15.12.2001, there was no HSG-II Accounts line posts in the establishment of the circle. In compliance of Directorate letters dated 31.07.2001 and 10.02.2003, out of 40 LSG Accounts Line posts, 15 posts were upgraded to HSG-II Accounts Line with effect from 15.12.2001 (Annexure R-2). 15 officials were promoted to HSG-II on notional basis to the cadre of HSG II APM Accounts with effect from 15.12.2001.

Central Administrative Tribunal

Respondents contend that in compliance with order of this Tribunal (Annexure A-11), the revision of the seniority lists of PO and RMS Accountants was carried out by the respondents on 27.07.2012 to ensure that promotion to the cadre of HSG-II was made strictly according to the seniority of the officials in the feeder cadre. All the 15 posts in HSG II cadre were lying vacant in 2012. Promotion to the cadre of HSG II could be granted only from among the LSG officials. However, promotion already granted to the LSG cadre had already become an issue of contention in various CAT cases and based on the revised seniority position, officials had to be notionally posted to LSG cadre for further promotion to HSG II cadre. Accordingly, notional promotion was granted to eligible officials for vacancies up to 31.12.2012 vide memo dated 14.09.2012. After elimination of the officials who were unwilling to accept the promotion to LSG cadre, based on the revised seniority position of the officials in the feeder cadre, 15 senior most officials were granted HSG II promotion vide DPC convened on 19.02.2013. While revising the seniority of the PO and RMS Accountants and mapping the officials who were in service against the LSG posts with effect from the date of occurrence of vacancies, it was found that the first applicant who was in Sl. No. 37 could not be accommodated in the LSG Accountants list according to ^{his turn. As the applicants could not be accommodated in the LSG Accountants}Central Administrative Tribunal list even in 2012, the applicants were found ineligible to appear in the PS Group B Examination held in 2009 and 2010.

Rebutting the submission of the respondents that all 40 LSG posts were occupied by eligible LSC accountant in 1992, the applicant filed a counter affidavit dated 07.10.2015 contending that there were 15 vacancies of LSG accountants as on 1987. In response to it the Respondents filed another affidavit dated 02.11.2015 and clarified that the respondents had produced the Circle Gradation List dated 01.07.1987 wherein there were 22 LSG accountants in the permanent list and 25 LSG Accountants in the officiating list. Thus all the 40 LSG Accounts posts were filled up as on 01.07.1987 (Annexure R-4).

Applicants filed a detailed rejoinder dated 19.11.2015 agreeing with the contention of the respondents that there were only 22 permanent LSG candidates indicated in the Seniority List 1 to 22 in Annexure R-5, occupying them as on 01.07.1987 against 40 sanctioned post of LSG accounts. Therefore, there were 18 vacancies in the cadre of LSG Accountants. The applicants further submit that out of these 22 permanent LSG, 15 were officiating against higher ^posts.Central Administrative Tribunal ^{Therefore there were a total of 33 vacancies { 18+15= 33} as on} 01.01.1987 in LSG Accountants cadre. In order to commence the exercise on proper implementation of direction of this Tribunal all vacancies available as on 01.07.1987 should be filled on notional basis.

The applicants submitted a detailed exercise carried out by them along in this rejoinder. Based on their detailed analysis, the applicants have substantiated their claim that had all the personnel senior to them figuring in Annexures R-5/ R-6 (Seniority list of Accountant from 01.07.1987, produced by the Respondents), who were already promoted or who declined promotion or promoted to HSG in general line accounted for by the respondents and promotions granted on occurrence of vacancy year wise, the first applicant should have been promoted as early as 2001.

The respondents filed additional reply statement on 01.01.2016 admitting the fact that there were total 40 posts in LSG accountants as on 01.07.1987. According to the respondents as per the circle gradation list as on 01.07.1987, 22 officials were borne in the LSG cadre in permanent capacity leaving 18 posts vacant. Further, out of the 22 permanent accountants, 9 persons were officiating ^{in higher posts. If the 9 posts so occupied by persons officiating may be}Central Administrative Tribunal considered as being vacant this brings the total number of vacancies in the LSG cadre to 27 (189) as on 01.07.1987. While so, 25. officials were working in officiating/leave capacity in the LSG Accounts cadre and all the vacancies were subsequently filled regularly by promoting the officials who were officiating on that date.

Respondents also submit that that vacancies caused by officiating arrangements are not regular vacancies in view of the fact that those officials who were officiating in HSG II cadre were still holding their lien in the LSG cadre, citing judgement of the Hon'ble Apex Court in Balakrishna Pandey Vs State of Bihar {(1996) 2 SCC 282}, in which it was held that "It is settled law that an employee holds the lien on his substantive post until it is duly terminated." and as has been held by the Hon'ble Apex Court in State of Haryana Vs Rajendra Sareen {(1972) 1 SCC 267 }, "Where an Incumbent holds a lien, no substantive appointment can be made to the post on which he holds a lien." Thus, leaving aside the 9 vacancies over which its original incumbents sustained their lien, there were only 18 vacancies as on 01.07.1987 and senior eligible officials who were officiating in those posts were subsequently given regular promotions in ^{those posts.}Central Administrative Tribunal

The service particulars of the applicants as produced by respondents are as below:-S. Name of the applicant Date of entry in the Year of passing PO No. PA cadre and RMS Accountants exam 1 Jose Dominic 23/02/83 1990 2 Geethakumari R 23/11/83 1992 As per the Posts and Telegraphs (Selection Grade Posts) Recruitment Rules 1976, the eligibility condition for an official for being considered for promotion to the cadre of LSG Accountant is “Clerks in Post Offices with 10 years regular service in the grade who have passed the Post Offices and Railway Mail Service Accountants Examination”(Annexure R-8). The Respondents contend that the applicants had not fulfilled the eligibility condition for promotion as LSG Accountants as on 01.07.1987 as they had not completed 10 years of service on that date and had not qualified in the relevant examination.

Respondents have presented in tabular form posts occupied and vacancy position as under:-

Central Administrative Tribunal Posts Occupied Occupied Cadre strength of LSG Accountants(A) 40 Number of officials in permanent capacity in the cadre of LSG 22 Accountants (B) Number of officials in B officiating in higher post but retaining their 9 lien in the LSG cadre(C) Thus, number of LSG Accountants in permanent capacity less the 13 persons officiating in higher post (B-C) Number of officials in officiating capacity in the cadre of LSG 25 Accountants (D) Number of officials in position (E)= (B - C) + D 38 Number of vacancies as on 01.07.1987 (A)-(E) 2 Vacancy Position Vacancy Cadre strength of LSG Accountants(A) 40 Number of officials in permanent capacity in the cadre of LSG 22 Accountants (B) Vacancies in the cadre (A - B) 18 Notional vacancies of accountants in B officiating in higher post but 9 retaining their lien in the LSG cadre(C) Thus, actual number of vacancies in LSG Accountant cadre 27 D= (A - B) + C Number of officials in officiating capacity in the cadre of LSG 25 Accountants (E) Number of vacancies as on 01.07.1987 (D) – (E) 2 Central Administrative Tribunal^{Accordingly, only two vacancies were filled in 1988 (Annexure R-5)by} respondents. Four vacancies including 2 vacancy that subsequently arose have been filled up in 1988 { Sl.48 to 51 of Annexure R-5) and there was no more vacancy available to be filled up.

Reiterating that the applicant were not eligible to be considered for promotion earlier as claimed, respondents further submitted that promotion to the cadre of LSG Accountants was granted upto Smt. S. Sreedevi (at Sl.No.61 of Annexure R-5) on 07.08.1992. Subsequent vacancies were duly filled up by granting notional promotion to the next eligible officials vide the departmental promotion committee held on 03.02.2005 (Annexure R-15). The eligibility to appear in the PS Group B examination is 5 years of service in the LSG cadre (Annexure R-16). As per the said notification, the eligibility for clerical line officials is 5 years regular service in the LSG and above as on 01.01.2008. Therefore, the applicants would have become eligible to appear in the PS Group B examination for the vacancies of 2009 only if they were promoted as LSG Accountants on or before 31.12.2002. Both the applicants have not yet been promoted to the cadre of LSG, and therefore were not eligible for appearing in PS Group B Examination 2009. If the seniority list is revised as per Annexure R-5 ^{in compliance with the directions of this Tribunal, Shri. Jose Dominic, the first}Central Administrative Tribunal applicant, is eligible to be considered for promotion to the cadre of LSG Accountant against a vacancy of 31.01.2011 notionally and the second applicant is still not eligible to be promoted to the cadre of LSG Accountant. Thus both the applicants were not eligible to appear in the PS Group B examinations held In 2010, 2011 and 2012. When the very eligibility of the applicants has not been fulfilled, the issue of granting promotion to the applicants to the PS Group B cadre does not arise at all.

Mr.M.R. Hariraj, SR , learned counsel for the applicants and Ms. Thanuja Roshan George, representing Mr. N. Anilkumar, SPC, learned Standing Counsel, were heard at length and perused the records.

It is admitted by the respondents also that there were only 22 LSG accountants in the permanent list against 40 LSG posts as on 01.07.1987 and there were 25 LSG accountants in the officiating capacity. Therefore, there were 18 vacancies in the cadre of LSG accountants. Out of these 22 permanent candidates, 9 persons were officiating in higher posts. We agree with the contention of the respondents that notional vacancies arising on account of ^{officiating arrangements are not regular vacancies in view of the fact that those}Central Administrative Tribunal officials who were officiating in higher posts were still holding their lien in LSG cadre. In support of this argument, judgements of the Hon'ble Apex Court in Balakrishna Pandey Vs State of Bihar {(1996) 2 SCC 282} and State of Haryana Vs Rajendra Sareen {(1972) 1 SCC 267 } have been cited , in which the Hon'ble Apex Court had held that where an incumbent holds a lien, no substantive appointment can be made to the post on which he holds a lien. Thus, there were 18 vacancies in the cadre of LSG posts as on 01.07.1987.

On contrary to above submission supported by Hon'ble Apex Court decision cited supra, the respondents have taken a convoluted stand in respect of 25 number of officials who were working in officiating capacity in the cadre of LSG candidates, by counting them against regular substantive posts of LSG Accountants (A), which is not sustainable in the eyes of law.

Respondents ought to have carried out promotion against 18 vacancies instead of two and the DPC held on 27.07.2012 (Annexure R-1) should have considered vacancy position accordingly.

^22.Central Administrative Tribunal ^{Subsequent to the upgradation of 15 posts to HSG-II Accounts, out of 40} LSG posts (Annexure R-2), all posts of HSG-II- 15 and balance 25 LSG posts are required to be filled in terms of extant rules and in compliance of this Tribunal's order in OA No.323/2009 (Annexure A-II).

The contention of the respondents that they were not able to fill all the 15 HSG-Ii posts in view of refusal etc, then in that case the appropriate course would have been to take into account the resultant vacancies in HSG-II and add them to LSG posts and filling up all the vacancies i.e. vacancy in LSG cadre plus resultant vacancies from HSG-II cadre, which would have served the intent of this Tribunal's order (Annexure A-11).

Therefore, now the respondents are directed to hold a Review DPC and finalise its recommendations within a period of 3 months taking into account 18 vacancies as on 01.07.1987 in the cadre of LSG against sanction of 40. Fill up these posts notionally from the eligible Postal Assistants in terms of Annexure A-1 & A-2, from the date of occurrence of vacancies year-wise according to their turn.

Central Administrative Tribunal^{Similar exercise is to be conducted post upgradation of 15 posts to HSG-II} grade with effect from 15.12.2001 for filling up of all 15 posts in HSG-II and 25 posts in LSG cadre notionally, duly accounting for resultant vacancies, year-wise according to their turn.

The Review DPC so constituted is further directed to verify and take into account the list of individuals who either declined promotion to LSG or already included in LSG General line/HSG-II in general line and promoted to higher grade HSG-II etc. as per rejoinder statement filed by the applicant dated 19.11.2015 and record its finding explicitly.

If as a result of this Review DPC, the applicants are found eligible to appear for PS Group B Examination, taking into consideration of Hon'ble High Court of Kerala order dated 13.06.2019 in OP(CAT) No.161 of 2016, which was affirmed by Hon'ble Supreme Court in its order dated 29.11.2019 (SLP No.36164/2019), in which they appeared, in compliance of the interim order of this Tribunal, results be declared and consequential benefits to be granted within 3 months thereafter. Beyond this period interest @ 8% p.a. shall be payable.

OA is disposed off as above. No costs.

Central Administrative Tribunal^{(Dated the 12th August, 2026)}

(BRAJ MOHAN AGRAWAL) (JUSTICE SUNIL THOMAS)

va Annexures OA./180/421/2012

Annexure A-1: A true copy of the OM No.137-18/2001-SPB-II dated 23.4.2001 issued by the Office of the 2^nd respondent Annexure A-2- A true copy of the letter No.4-16/2002-SPB-II dated 12.11.2002 issued for the 2^nd respondent Annexure A-3- A true copy of the order dated 1.2.2008 in O.A.No.468/2007 on the file of this Tribunal Annexure A-4- A true copy of the memo no.ST/5-2/2008/A/Cs/2008 dated 27.08.2008 issued for the 3^rd respondent Annexure A-5- Memo No.B1/66/10/2009 dated 29^th April, 2010 Annexure A-6- A true copy of the final order in OA 723 of 2008 and connected cases on the file of this Tribunal dated 16.10.2009 Central Administrative Tribunal Annexure A-7- A true copy of the letter No.ST/5-2/ACCTS/2009(KW) dated 2.2.2010 issued for the 3^rd respondent along with the relevant pages of the seniority list Annexure A-8- A true copy of Memo No.ST/5-2/ACCTS/2009 dated 31.5.2010 issued by the 3^rd respondent Annexure A-9- A true copy of the representation dated 15.06.2010 Annexure A-10- A true copy Order No.ST/5-2/ACCTS/2009 dated 6.8.2010 issued by the 3^rd respondent Annexure A-11- A true copy order dated 1.11.2011 in OA 323/2009 and connected cases Annexure A-12- A true copy order No.ST/5/2/AccUNTS/2011(KW) dated 3.1.2012 Annexure A-13- A true copy order No.ST/MISC/2010/DA-2 dated 14.6.2011 Annexure A-14- A true copy order no.RTI/6-357/08 dated 16.12.2008 Annexure A-15- A true copy order no.ST/5-2/ACCTS/2009 dated 30.5.2011 Annexure A-16- A true copy notification no.RECTT/10/6/2/2012 dated 16.4.2012 Annexure A-17- A true copy order no.BB/45 EXAM dated 8.5.2012 issued by the 5^th respondent Annexure A-18- A true copy of the relevant portion of the circle gradation list of Post Office officials as on 1.7.1987 Annexure A-19- A true copy of request made under RTI Act dated 21.8.2012 Shri M.J. Jhonson, Secretary BPEA Idukki Division Annexure A-20- A true copy of reply No.ST/MISC/2010/DA-2 dated Central Administrative Tribunal^{26.9.2012 to the RTI request} Annexure A-21- A true copy of memo No.ST/3-4/2004 dated 8.12.2004 Annexure A-22- A true copy of Memo No.ST/5/2005 dated 7.3.2005 Annexure A-23- A true copy of the seniority list issued by the 3^rd respondent's office Annexure A-24- A true copy of Memo No.ST/3-4/ACCOUNTS/2012 dated 28.2.2013 in which promotions are granted to HSG II APM (Accountants) Annexure A-25- A true copy of the additional affidavit filed by the respondents in CPC 124/12 in OA 481/2009 Annexure A-26- The true copy list of candidates included in Annexure A-18 who have retired upto June 2004 Annexure A-27- A true copy order No.ST/3-3/2004 dated 13.12.2004 Annexure R1- A true copy of minutes of the DPC held on 27.07.2012 issued by the 3^rd respondent Annexure R2- A true copy Memo No.ST/5-2/ACCOUNTANTS/2012 dated 1.9.2012 issued by the 3^rd respondent Annexure R3- A true copy of letter No.A34022/08/2011-DE dated 17.09.2012 issued by the 2^nd respondent *** Annexure R1- True copy of minutes of review DPC held on 27.07.2012 at CPMG office, Kerala Circle Annexure R2- True copy notional promotion order of LSG accountants Annexure R3- True copy of letter No.A34022/08/2011-DE dated 17.09.2012 issued by the second respondent **** Central Administrative Tribunal^{Annexure R1- True copy of worksheet showing calculation of vacancies in} 1992 Annexure R2- Memo No.Est/1/4/2001 dated 21.04.2003 Annexure R3- True copy of order dated 1.10.2013 of the Tribunal in CP(C) No.122/12 in OA No.357/2020 Annexure R4- List of LSG Accountants in position as on 01.07.1987 Annexure R5- Seniority list of Accountants from 01.07.1987 Annexure R6- Revised Seniority list of Accountants from 01.07.1987 Annexure R7- True copy of the Relevant pages of the Circle Gradation List Annexure R8- True copy of the relevant pages of the P&T (Selection Grade Posts), Recruitment Rules, 1976 Annexure R9- True copy of the letter dated 14.11.2006 of Shri Manikantan Nair S Annexure R10- True copy of the letter dated 04.12.2006 of Smt. Thara Annexure R11- True copy of the memo No.ST/3-4/2007 dated 04.04.2008 Annexure R12- True copy of the memo No.ST/3-4/2002 dated 18.09.2003 Annexure R13- True copy of the memo No.ST/3-4/2004 dated 08.12.2004 Annexure R14- True copy of the arisal and the consequent filling up of each vacancy from 1992 Annexure R15- True copy of the minutes of the DPC dated 03.02.2005 Annexure R16- True copy of the notification issued vide Rectt/10-6/2/2010 Central Administrative Tribunal^{dated 16.02.2010} Annexure R17- True copy of the promotion to the cadre of LSG upto 07.08.1992 Annexure R18- True copy of P&T (Selection Grade Posts) Recruitment Rules, 1976 *** Annexure MA-1- True copy of Post and Telegraph(Selection Grade) Recruitment Rules, 1976 Annexure MA-2- True copies of available minutes and consequential orders in respect of Departmental Promotion Committees during the period from 1987 to 1992 *****