Veer Bahadur Singh Baghel vs Union Of India & Ors.

By Hon’ble Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to set aside the impugned order dated 12.01.2011 and to direct the respondents to pay the arrears of BCR promotional benefits as well as promotional salary and retiral benefits from the date 01.01.1994, and to direct the respondents to fix the pensionary benefits and other retiral benefits as per rules in favour of the applicant, and any other suitable order deemed fit and to award cost.

The case of the applicant is that he was appointed as Postal Assistant on 24.11.1967 and as per Biennial Cadre Review (BCR) rules after 25 years of service on 23.11.1993 he was entitled for promotion effective from 01.01.1994, but as there was a Criminal Case against the applicant No. 563/1997 under sections 467, 468, 419 and 420 of IPC pending against the applicant, hence he was not given the benefit of BCR promotion. Finally, the Criminal Case was decided by the Judicial Court on 25.05.1999 and the applicant was acquitted.

The applicant informed the respondent authorities about his acquittal and requested for promotion, but instead of giving him promotion from his date of eligibility from 01.01.1994, he was given promotion w.e.f. 01.01.2000. The applicant gave his representation against the said order vide his letter dated 10.09.2000 by registered post and in the absence of any action, he sent reminder on 10.09.2001. Further, reminders were sent on 20.09.2001, 03.10.2002, 30.12.2002, 19.02.2003 and 10.01.2004 and after that his application was rejected by a cryptic order dated 31.08.2005 by the Post Master General, Gorakhpur Region, Gorakhpur.

Against the said order the applicant filed OA No. 1487/2005 and obtained an order dated 07.12.2010, wherein the said OA was allowed and the order dated 31.08.2005 was quashed and respondents were asked to give him notional promotion from 01.01.1994 and other benefits within three months time.

Pursuant to which an order was passed by the respondents on 12.01.2011 and he was promoted w.e.f. 06.11.1994, but no orders were passed on promotional salary and consequential retiral benefits etc. Aggrieved by the same the applicant has come before this Tribunal.

The case of the applicant is that as he was completely acquitted, he was entitled not only for promotion from 1994 but also all consequential benefits. Hence, the order of the authority under challenged dated 12.01.2011 is erroneous and against the law and rules, hence, the same should be set aside and all the reliefs granted to the applicant.

On notice the respondents have filed counter affidavit wherein most of the facts of the applicant is agreed except the respondents say that after acquittal on 25.05.1999, when the authorities got the said order, the applicant was promoted w.e.f. 01.01.2000 vide order dated 21.08.2001. And the applicant had filed an appeal against the said order and in the meanwhile the applicant superannuated on 30.06.2004. And in the meanwhile the applicant filed OA No. 443/2005 claiming relief for promotion w.e.f 01.01.1994 and arrears from 01.01.1994 to 31.12.1999.

And as the said OA was pending, hence his appeal was not decided, as it was subject to the said OA. But subsequently the applicant dropped the OA on 26.09.2005, and based on the DPC decision his appeal was rejected on 31.08.2005. Against which the ^PIYUSH applicant went ahead and filed OA No. 1487/2005, and pursuant to the order in the said OA on 07.12.2010, the respondent authorities passed an order dated 12.01.2011 promoting the applicant w.e.f. 1994. But as the order of the Tribunal was very clear, authority was given discretion to decide the emoluments and only proforma promotion was ordered. Hence, as per the rules and various rulings of the Court proforma promotion was given to the applicant and there was no arrear which were payable to the applicant, hence the said claim was rejected by a speaking order, which clearly mentions that as the Committee has decided to give him proforma promotion, his salary, emoluments and other benefits will only be notional from 1994 to 1999 and he is not eligible for any arrear. And their order dated 12.01.2011 is a speaking order and no ground has been made by the applicant to challenge the same. Hence, they request to dismiss the OA of the applicant.

. The applicant has cited the case of Hon’ble Supreme Court in the case of Abhijit Ghose Dastidar vs. Union of India and others – (2009) 16 SCC 146 in which the Hon’ble Apex Court has passed the following orders:-

The applicant has filed rejoinder affidavit wherein he vehemently reiterate the facts as in the OA. No new documents are filed.

Supplementary counter affidavit has been filed where also the respondents reiterate their facts in the counter affidavit and no new evidence has been filed.

Supplementary rejoinder affidavit has been filed by the applicant where he reiterates the same facts and no new documents have been filed.

The case came up for final hearing on 30.04.2024. Shri Anil Kumar Baghel, learned counsel for the applicants and Shri Bablu Singh, learned counsel for the respondents were present and heard. We have gone through the records carefully and considered the rival contentions.

From the record it is evident that the applicant has challenged order dated 12.01.2011 vide which his promotion was retrospectively given from 1994, he was not given any consequent arrears as he had not worked on higher post during the said period. If we see the order in OA 1487/2005 dated 07.12.2010, pursuant to which the order of the respondents dated 12.01.2011 was passed, the operating part of the said order reads the following:-

Simple reading of this shows that the said order of the Tribunal dated 07.12.2010 allowed the OA No. 1487/2005 and ^PIYUSH impugned appellate order dated 31.08.2005 was quashed and direction was given to the respondents to give notional promotion to the applicant w.e.f. 01.01.1994 and to decide the matter of whether he deserves to be paid higher salary for the intervening period in full or partial or not at all, and the Tribunal also directed that the reasons for taking the decision in this regard are to be recorded by the respondents. Clearly, the Tribunal had also directed for only giving notional promotion retrospectively form 01.01.1994, and had left the question of arrear to the respondents' department. And vide their order dated 12.01.2011, the respondents have decided the case of the applicant in following manner:-

Hence, it is clear that the authorities have promoted notionally the applicant w.e.f. 01.01.1994, but as the official had not worked on higher post, hence based on the principles of no higher responsibility no additional pay, his arrears of salary and emoluments were not given between 01.01.1994 to 31.12.1999. On examination of this document, we do not find any discrepancy in the said order and it is as per the direction given by the Tribunal in OA No. 1487/2005 dated 07.12.2010, and it is a speaking order as it gives reasons. So the applicant has no case as far as his first and major part of the second relief is considered.

But it is not clear from the averments of the respondents, if his annual increments from 01.01.1999 onwards and other benefits which are dependent on the length of service were recalculated, and further emoluments from 31.12.1999 were revised taking his promotion notionally from 01.01.1994 and from 1999 onwards giving him all the consequential benefits including increase in his salary when he was in service, giving him other admissible benefits like annual increment and other upgrades like ACP/MACP etc. if admissible to him and pension and other charges in the applicant's pensionary benefits due to his preponement of the said BCR promotion.

Hence, we have no doubt that the applicant has made out a case that he is entitled for higher emoluments based on preponment of his said promotion at least prospectively from 31.12.1999 which needs to be properly calculated. If it is already re-calculated and already given to the applicant, then a speaking order with calculation sheet shall be given to the applicant immediately. Otherwise it should be immediately calculated and paid to him, and his pension and other admissible pensionary benefits shall be accordingly re-calculated and given. Hence, we pass the following orders:-

All associated MAs, if any, also stand disposed of accordingly. No costs.