R K KAPOOR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 5.4.2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal) whereby OA No. 994/2010 filed by the petitioner was dismissed. The facts giving rise to the filing of this writ petition can be summarized as under: The petitioner joined as Appraiser of Customs, in the Customs and Excise Service, in the year 1964. In the year 1976, he was promoted as Assistant Collector on ad- hoc basis and his services as Assistant Collector were regularized in August, 1978. On 23.5.1991, he was promoted as Deputy Collector on ad-hoc basis. The petitioner superannuated from service of the Government on 31.3.1995. The issue of seniority of promotees vis-?-vis direct recruits had been a matter of litigation and was finally resolved by the Supreme Court vide judgment dated 8.5.1996, inter alia, directing that a fresh All India Combined List of Appraisers be prepared on the basis of continuous officiation of the incumbent in the post of Appraiser appointed on and from the date of Customs Appraisers Service, Class II Recruitment Rules 1961. By another judgment delivered in November, 1996, the Supreme Court directed review of the ad-hoc appointments made in the grade of Assistant Collector and also directed preparation of a joint seniority list of promotees and direct-recruits to the post of Assistant Commissioner. Consequently, 16 Deputy Collectors were promoted to the Non-Functional Selection Grade (NFSG) vide order dated 1.4.1997. 52 more Deputy Collectors were promoted vide order dated 27.8.1997 w.e.f. 1.7.1995 onwards. The revised seniority lists of Appraisers and Assistant Collectors were issued on 12.11.1997 and 30.11.2000 respectively. Consequently, vide order dated 3.5.2002, the petitioner was promoted to the post of Deputy Collector on a regular basis w.e.f. 1.1.1990. The Customs and Excise Service Rules inter alia provided that on stagnating at the maximum scale of pay of Grade IV for two years the officer was entitled to grant of Grade-III i.e. Non Functional Selection Grade (NFSG). Vide GSR 794(E) dated 17.9.1987, it was prescribed that appointment to Grade-III shall be by promotion on the basis of seniority, subject to rejection on unfitness. The petitioner made a representation seeking promotion to the Non-Functional Selection Grade (NFSG) on the ground that he, having been regularly promoted w.e.f. 1.1.1990, was entitled to grant of the said scale on his stagnating at the maximum of pay scale of Grade-IV. He also claimed that the notification whereby he was regularized w.e.f. 1.1.1990 was never communicated to him and therefore he was not aware of the same. He claimed that this fact came to his knowledge only on receipt of a letter dated 1.1.2009 received from his junior colleague Mr. R.S.Rajan. The respondent vide letter dated 5.1.2010 rejected the representations of the petitioner on the ground that NFSG to his juniors was granted w.e.f. 1.1.1998 and after his retirement from service. Being aggrieved by the rejection of his representations the petitioner filed OA No. 994/2010 which came to be dismissed by the impugned order dated 5.4.2010. The OA was dismissed for two reasons. The first reason given by the Tribunal for dismissing the OA was that the juniors of the petitioner got NFSG w.e.f. 1.1.1998 and the OA having been filed in the year 2010 was barred by limitation. The second reason given by the Tribunal for dismissing the OA was that the petitioner had retired from service on 31.3.1995 whereas his juniors were given NFSG w.e.f. 1.1.1998 more than after two years after his retirement and therefore, he was not entitled to NFSG.

(2.) IT is an admitted position before us that the petitioner had stagnated for more than two years at the maximum of the pay-scale of Grade-IV, before he superannuated on 31.3.1995. IT is also an admitted case that the petitioner was promoted on regular basis w.e.f. 1.1.1990. IT is also not in dispute that those who were junior to the petitioner in the cadre, in which he was working at the time of his retirement, were granted NFSG, though after he had retired from service. The very fact that the respondents granted regular promotion to the petitioner w.e.f. 1.1.1990 clearly shows that the respondents were in the wrong in not promoting him before his superannuation on 31.3.1995. Had the petitioner been promoted w.e.f. 1.1.1990, before he retired from service on 31.3.1995, indisputably, he would have been entitled to be considered for grant of NFSG, on stagnating for two years at the maximum of the pay scale applicable to Grade-IV, in which he was working at the time of his superannuation. The respondents cannot be allowed to take advantage of their own mistake, by denying NFSG to the petitioner solely on the ground that he had superannuated from service before this benefit was extended to his juniors. No rule providing that a person granted retrospective promotion would not be considered for grant of NFSG, merely on account of his superannuation, in the meanwhile, has been brought to our notice. Therefore, we cannot accept the contention that the respondents cannot consider the petitioner for grant of NFSG despite his otherwise being entitled to such consideration, merely because he has since retired from service.

(3.) IN the case before us, it is nowhere the case of the respondents in the counter affidavit filed by them, that if NFSG is granted to the petitioner it would result in withdrawal of such a benefit from some other person to whom it has already been granted. Therefore, it cannot be said that the relief sought by the petitioner, if granted, would affect any third party interest created in the meanwhile.