Prem Kumar Gupta v. Union Of India

(By: Honble Mrs. Promilla Issar, Member (A) The applicant has filed this OA praying for the following reliefs:- i) That impugned order dated 28.4.2009 (A-1) be quashed being illegal and arbitrary. ii)That respondents be directed to grant the applicant, benefit of OTBP pay-scale from 2.7.1984, when he completed 16 years of service with all consequential benefits of pay fixation w.e.f. 1.1.1986, w.e.f. 1.1.1996, and revised pensionary benefits with arrears thereof along with interest @ 18%.

2. The facts as projected by the applicant are that he joined the Respondent Department as Postal Assistant on 5.10.1968 and was compulsorily retired from service from 6/14.11.2000. The applicant has stated that he had completed 16 years of service for the purpose of grant of One Time Bound Promotion (OTBP) on 2.7.1984 as per P & T Department letter dated 11.12.1983 and the said Scheme was applicable w.e.f. 1.12.1983. The grievance of the applicant is that instead of considering his claim for grant of benefit under OTBP Scheme from 2.7.1984 when he completed 16 years of service, his claim was considered in the year 1987 and was rejected vide order dated 16.4.87. However, he was granted the benefit of OTBP Scheme w.e.f. 1.5.1988 vide letter dated 2.2.1989. He has stated that on 2.7.1984, he was neither facing any charge-sheet or inquiry nor was there any adverse ACR against him and if his case had been considered on the due date, he was fully eligible for grant of OTBP pay-scale. In response to his representation submitted in August, 1996, he was informed that his representation has been considered by Respondent no. 3 and rejected. He has further stated that when his appeal dated 9.2.1999 was not decided by the appellate authority, he submitted his review petition on 1.9.2008 which has been rejected vide impugned order dated 28.4.2009 (A-1) on the ground that his service record was not satisfactory. He has stated that no reason has been given as to how his service record has not been satisfactory when no adverse remarks had been conveyed to him. Hence the present OA.

2. The applicant has also filed a Misc. Application for condonation of delay in filing the present O.A.

3. The respondents have filed a written statement stating therein that the O.A. is hopelessly barred by limitation. They have further stated that the case of the applicant was considered by the DPC in the years 1985 and 1987, but he was not found fit for financial up-gradation under the TBOP Scheme due to his unsatisfactory record of service. The DPC again reviewed the case of the applicant on 2.2.1989 and he was granted the financial up gradation w.e.f. 1.5.1988 vide order dated 2.2.1989 (Annexure A-7). They have further stated that the rule regarding counting of training period before appointment as duty vide Order No.17 below FR-9 dated 8.3.1983 ( Annexure A/2) is applicable for eligibility to sit for departmental examinations only. They have thus prayed for dismissal of the O.A.

4. The applicant has not filed any rejoinder.

5. We have heard the learned counsel for the parties and perused the material placed on record.

6. It is seen that the OA is barred by limitation as the cause of action to the applicant arose in February, 1989 when he was granted benefit of TBOP from 1.5.1988. He filed this OA in August, 2010 i.e. about 22 years after the cause of action arose to him in February, 1989. Thus, the OA deserves to be dismissed on the ground of being barred by limitation. However, even if we were to condone this delay, the applicant would still not have a case even on merit.

7. From a perusal of the pleadings, it is evident that the applicant was appointed as Postal Assistant in the Respondent Department on 5.10.1968 and after he completed 16 years of service, his case was considered by the DPC held in the year 1985, but he was not found fit for financial up-gradation under TBOP as his record of service was not satisfactory. At that time the punishment of stoppage of his next increments for 2 years, awarded by Respondent no. 4 vide Memo. dated 27.5.1982, was in force. Therefore, he was not found fit for grant of benefit under TBOP Scheme. His case was again considered by the DPC in 1987 but he was not found fit for financial up-gradation. Ultimately, he was granted the financial up-gradation under the said Scheme w.e.f. 1.5.1988 vide order dated 2.2.1989. The applicant has also claimed seniority by counting the whole training period by quoting the Govt. of India instructions issued vide OM dated 8.3.1983 (A-2). Here, it would be pertinent to quote the exact provision which is as follows:- 17.Period of training before appointment to be treated as duty for eligibility to sit for departmental examinations.-The Staff Side of the National Council (JCM) had suggested inter alia that the service rendered by an employee during the training period before his regular appointment to the grade be treated as duty for eligibility to sit for the departmental examination. 2.The request made by the Staff Side of the National Council (JCM) has been examined and it has been decided that in all cases where pre-service training is considered necessary before actual appointment to the post, the period spent by an officer on training immediately before such appointment would count as qualifying service for the purpose of eligibility for appearing in Departmental Examinations, even if the officer is not given the scale of pay of the post but only a nominal allowance. From this, it is clear that the training period occurs before the regular appointment and therefore it cannot be considered to be a part of the regular service in the grade. Therefore, the applicant cannot get the benefit of counting of the period of training towards seniority and other financial benefits, as the training period can be counted only for the purpose of eligibility for appearing in Departmental Examination as mentioned in the aforesaid OM (A/2). Thus, we find no infirmity in the impugned order as the same has been passed while keeping in view the provisions of the TBOP Scheme and as per rules. In the case of Piran Ditta & 25 Others Vs. Union of India and Others, 2005(1) ATJ 430, the reference was answered by the Full Bench to the effect that benefit of TBOP Scheme is to be given on completion of 26 years of satisfactory service. As the applicant was not found fit by the DPC and was not having a satisfactory record of service, he was rightly not given the benefit of the said Scheme in 1984.

8. Therefore, in the totality of the facts and circumstances of this case, this OA has been found to be devoid of merit and is accordingly dismissed with no order as to costs. (PROMILLA ISSAR) (SHYAMA DOGRA) MEMBER (A) MEMBER (J) Dated: 19.7.2011.