SCIENTIFIC ADVISOR TO RAKSHA MANTRI v. V.M. JOSEPH

The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. The respondent was appointed as a Lower H Division Clerk on November 15, 1969 in the Ministry of Defence. Subsequently,

SCIENTIFIC ADVISOR TO RAKSHA MANTRI ''- V.M. JOSEPH [S. SAGHIR AHMAD, J.] 179 in the same Department, he was appointed as a Store Keeper on 27th April, A · 1971 in the Central Ordnance Depot, Pune. He got the status of quasi permanent on 27th April, 1974 and became permanent with effect from !st May, 1974. The respondent made a request for his transfer as a Store Keeper in the Naval Physical Oceanographic Laboratory (NPOL), Cochin, which was accepted on compassionate gro\lnd and on 6th June, 1977, he was transferred to that post, B but was placed at the bottom of the seniority list of Store Keepers there. On f. 22nd August, I 980, the respondent was promoted to the post of Senior Store Keeper.

On 15th July, 1980, a new post of Senior Store Keeper, Grade-I was created as an intermediate grade between the posts of Senior Store Keeper C and Store Superintendent. One A.K. Anujan, who was the immediate senior of the respondent in the Grade of Senior Store Keeper was promoted to this intermediate post of Senior Store Keeper, Grade- I on 3 I st August, 1982. The respondent raised a claim that he should have been promoted as Senior Store Keeper on 3 Ist January, 1978 instead of 22nd February, 1980 and should have been further promoted to the post of Senior Store Keeper, Grade-I, on 31st D August, 1982 along with his next senior A.K. Anujan. When this claim was not entertained, the respondent approached the Kerala High Court by a Writ Petition (No. O.P. 10013 of 1982-J) which was allowed on 30.7.85 and a direction was issued to the present appellants to consider the claim of the respondent for ante-dating his promotion on ad hoc basis by applying the E same rules and principles on which, his immediate senior, A.K. Anujan, was promoted to the post of Senior Store Keeper, Grade-I.

In pursurance of the above judgment, the case of the respondent was considered by the Review Departmental Promotion Committee on 15th October, 1985, which was of the opinion that, since the respondent had completed 3 F years ofregular service as Store keeper commencing from 6th June, 1977, only on 7th June, 1980, he could not be promoted as Store Keeper earlier than 1980. With regard to his promotion to the post of Senior Store Keeper, Grade-I, the Departmental Promotion Committee was of the view that since under the Recruitment Rules, the respondent had completed 3 years of regular service as Senior Store Keeper only on 23rd August, 1983, the respondent could not G be considered for that post as that post had, in the meantime, been taken out of the purview of the Departmental Promotion Committee and the Recruitment and Promotion Rules with regard to that post had ceased to exist with effect from 7th November, 1981. On the basis oftlie decision of the Departmental Promotion Committee, H.

180 SUPREME COURT REPORTS [ 1998] I S.C.R:

A the order dated 30th October, 1985 was passed by the appellants, which was challenged' by the respondent before the Central Administrative Tribunal, Madras Bench, which by its judgment dated 23rd February, 1988, has allowed the claim petition and issued the following directions:-

"(a) The applicant's service as Store Keeper at Pune at least from B 1.5.1974 when he was made a permanent Store Keeper should be reckoned as qualifying service for the purpose of eligibility for promotion as Senior Store Keeper at NPOL, Cochin.

(b) The Review DPC should consider the applicant for ad-hoc or regular promotion as the case may be against ad-hoc/regular vacancies C between 31.1. 78 and 22.8.80.

(c) On the basis of the recommendations of the Review DPC III, if any, the applicant should be promoted as SSK either on ad-hoc or on regular basis by ante-dating his promotion from 22.8.80.

(d) The respondents should identify the un-filled posts of SSK-1 from D 1982 to date and consider the applicant for promotion as SSK-1 with effect from the date he can be deemed to have put in three years of regular service as SSK either from 22.8.80 or on earlier date with effect from which the Review DPC recommends his name for regular promotion as per promotion as per (b) above." E From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Store Keeper on the ground that he had completed 3 years of regular service as Store keeper on 7th June, I 980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Store Keeper for the period from 27th April, 1971to6th June, 1977. The appellants contended that, .i.,._ since the respondent had been transferred on compassionate ground, on his own request to the post of Store Keeper at Cochin and was placed at the bottom of the Seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. this is obviously fallacious inasµmch as the respondent had already acquired Jhe status of a permanent empi~yee at Pune where he had rendered more than 3 years of service as a Store Keeper. Even if an employee is r transferred at his own request, from one place to another, on the same post, the period of service rendered by him at the earlier place where he held a H permanent post and had acquired permanent status, cannot be excluded from

SCIENTIFIC ADVISOR TO RAKSHA MANTRI 1•. V.M. JOSEPH [S. SAGHIR AHMAD, J.] 181

consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place, Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors . -.... This Court in Union ofIndia & Ors. v. C.N. Ponnappan, AIR ( 1996) SC 764= [1996] 1 sec 524, has held that, where an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being r.!gular service, has to be counted towards experience ancl eligibility for promotion.

In view of this decision, with which we respectfully agree, the direction of the Tribunal that the respondent may be promoted to the post of Senior Store Keeper from an earlier date and the further direction concerning respondent's promotion to the post of Senior Store Keeper, Grade-I, do not suffer from any infirmity. That being so, the appeal has no merits and is accordingly dismissed without, however, any order as to costs. D /, B.K.S. Appeal dismissed.

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