TAPAN KUMAR DUTTA ROY Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this review application, we are called upon to re-consider our judgment and order dated 7/4/2005 rendered in connection with WP(C) No. 51(SH) of 2003. The material facts giving rise to this application may be noticed at the very outset. The petitioner had filed an application under Section 19 of the Administrative Tribunals Act before the Central Administrative Tribunal, Guwahati Bench being Original Application No. 152 of 2002 seeking for a direction for antedating the date of his promotion as Office Superintendent Higher Selection Grade-I ("OS HSG-I" for short) and consequential improvement in his seniority. His case is that he joined as Postal Clerk on 13/7/1965 in the Shillong Postal Division, was promoted to the post of Upper Division Clerk in the Office of the Post Master General, N.E. Circle, Shillong on 23.1.1973 and was further promoted to Lower Selection Grade Clerk with effect from 1.1.1988. Subsequently, he was given the benefit of Biennial Cadre Review promotion to Higher Selection Grade-II ("HSG-II") with effect from 26.6.1993. Following the retirement of the incumbent holding the post of Office Superintendent, Circle Office, Shillong on 31.8.1995, he was promoted as Office Superintendent, Shillong Circle in the scale of pay of Rs. 1,600-2,660/-, which was the pay scale of HSG-II and which was drawn by him in the earlier post, with effect from 1.9.1995. Thereafter, he was promoted to the post of OS HSG-I in the pay scale of Rs. 6,500-10,500/- from the post of OS HSG-II vide Memo dated 22.5.2001: it was also conveyed therein that the post of OS HSG-II, Circle Office, Shillong was to be treated as upgraded to HSG-I from the date of his joining the post, which was in pursuance of the communications dated 30.3.2001 and dated 19.4.2001. It is also the case of the petitioner that he had already officiated in the higher post on three different occasions in 1994-95 prior to his regular promotion.

(2.) ACCORDING to the petitioner, as per the policy of the Government of India, the President of India accorded sanction for creation of 208 posts of HSG-I by upgrading the posts of HSG-II, and as per the Staff Inspection Unit norms, there was justification for one post of Office Superintendent in N.E. Circle in the rank of HSG-I, but the respondent authorities in a most illegal fashion did not act as per the policy decision and delayed his up-gradation without any justifiable ground. The petitioner also assailed the provisional seniority list communicated vide Memo dated 25.9.2001 wherein his name was shown at the bottom of the list at serial No. 18 by showing him as Deputy Office Superintendent. By this communication addressed to the Chief Post Master General, NE Circle, Shillong, the Assistant Director General (SGP) intimated about the DPC meeting to be held for promotion to the grade of Assistant Director (Recct.), GCS Group 'B" in the Department of Posts reserved for Office Superintendent working in the Circle Office. A list of officials who were likely to find place in the eligibility zone as enclosed in that communication is as per their seniority. The concerned officer was advised to forward the up-to-date CR dossiers along with vigilance clearance of the officials belonging to the Circle by a specified date. The application was filed by the petitioner seeking a direction to antedate his promotion to the post of HSG-I with effect from 1.9.1995 and to give consequential benefits including his seniority. The application was contested by the respondent authorities.

(3.) WE have minutely gone through the judgment and order passed by the Tribunal and the pleadings of the petitioner before the Tribunal in juxtaposition, and are of the view that the Tribunal undoubtedly allowed the application of the petitioner and held that he was entitled for antedating his promotion/up-gradation to the post of Office Superintendent HSG-I on and from at least 1.12.1995, the date on which the respondents were ordered to complete the exercise of up-gradation in terms of the communication dated 6.11.1995. In the application filed before the Tribunal, the petitioner specifically prayed for payment of the pre-revised pay scale of Rs. 2,000-3,200/- with effect from 1.12.1995 to 31.12.1995 and in the revised pay scale of Rs. 6,500-10,500/- with effect from 1.1.1996 to 21.5.2001. However, the order dated 7.4.2005 dismissing the writ petition of the respondent authorities passed by us with the observation that following his retirement on 31.3.2005, the petitioner (the respondent therein) might be given only up-gradation for getting the retiral benefit, apparently created confusion and afforded an opportunity to the respondent authorities to deny the salary arrears to the petitioner with effect from 1.12.1995. In our reconsideration of the entire facts and circumstances of the case, it appears that our observation that the petitioner might be given only up-gradation for the purpose of retiral benefits on the ground he had retired from service on 31.3.2005, is unwarranted and wholly erroneous. Having dismissed the writ petition, the retirement of the petitioner from service cannot deprive him of his salary arrears, which are legitimately due to him, and which logically flows from the dismissal of the writ petition filed by the respondent authorities. Once the writ petition was dismissed and the relief granted by the Tribunal was, therefore, not interferred with by us, there is no earthly reason to deny the petitioner the benefit of his salary arrears, which he was held entitled to, on his promotion/up-gradation to the post of Office Superintendent HSG-I with effect from 1.12.1995. It is, however, the contention of Mr. S.C. Shyam, the learned CGC, appearing for the respondent authorities, that once this Court has held that the petitioner might be given only up-gradation for getting the retiral benefit, which has now attained finality, the issue cannot be re-opened by the petitioner by filing this review application: if he is so aggieved, he ought to have preferred an appeal before the Apex Court in terms of the direction of this Court contained in the judgment and order dated 7.4.2005, the respondent authorities issued the compliance order which is at Annexure-II, for which the petitioner cannot have any legitimate grievance. Furthermore, contends the learned CGC, this is not a case of discovery of new evidence, which could not be produced by the petitioner at the time of passing the order sought to be reviewed despite exercise of due diligence nor is it a case of error apparent on the face of the record and, therefore, the review application is not maintainable.