M.M. Thomas vs Union Of India .

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5300-5301 OF 2017 (ARISING OUT OF SLP(C) NOS.30141-30142 OF 2011

M.M. THOMAS & ORS. ....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. ....RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

Leave granted.

2. The appellants have preferred these appeals against the

impugned common judgment and order dated 10.8.2011 passed by

the High Court of Kerala in O.P.(CAT) Nos.2518 and 2525 of 2011,

whereby the High Court affirmed the order dated 19.7.2011 passed by

the Central Administrative Tribunal Ernakulam (for short, the

‘Tribunal), dismissing O.A. Nos.723 and 970 of 2010, filed by the

private party respondents. The Tribunal held that the appellants do

not have the requisite experience in the Kerala region as on the date

on which the vacancies were notified, and set aside the inclusion of

their names in the rank list for promotion to the post of Enforcement

Officer/ Accounts Officer (for short, the ‘EO/AO’). The Tribunal further Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2017.05.06 11:43:46 IST held that if the private party respondents are otherwise eligible, the Reason:

official respondents are directed to take steps to consider their rank

1 obtained in the examination and include their names in the appropriate

place in the rank list for promotion to the post of EO/AO. The Tribunal

also directed that the next available candidate in the rank list should

be included in the rank list, according to the rank obtained by them.

3. The facts of the case in nutshell are as follows :

The appellants were working as Social Security Assistants (SSAs)

in the Karnataka/Tamil Nadu regions of the Employees Provident Fund

Organisation (for short, the ‘EPFO’). They were transferred to Kerala

region and kept at the bottom in the seniority list. The notification was

issued to fill up the post of EO/AO in the Kerala region. Both the

appellants and the private party respondents participated in the

aforesaid examination. Subsequently, the rank list was published. The

appellants are at Serial No.1,2,4 and 5 respectively in the rank list and

the promotion list. It was contended by the private party respondents

that the inclusion of the names of the appellants in these lists is

arbitrary and illegal, because they were not eligible.

4. The rule that governs the eligibility of the appellants reads as

follows :

In case of recruitment by (i) PROMOTION (OTHER THAN promotion/deputation/ EXAMINATION QUOTA): ……………… absorption, grade from which promotion/ (ii) BY PROMOTION ON THE BASIS deputation /absorption OF DEPARTMENTAL COMPETITIVE to be made. EXAMINATION

# [Section Supervisor AND Junior Hindi Translator with 3 years regular service in the scale of Rs.5000-8000/- and DEO (Grade-C) with three years' regular service in the scale of

2 Rs.5000-8000/- including those DEO (Grade-C) who have already put in 5 years' regular service in DEO (Grade-A) and Social Security Assistants/ Assistants/ Stenographers/ and DEO (grade-A and B) with 5 years regular service in the scale of Rs.4000-6000/- in the respective regions]

5. The appellants as also the private party respondents passed the

departmental competitive examination for the post of EO/AO.

Apprehending that the appellants will be promoted earlier, the

private party respondents approached the Tribunal by way of filing

original applications. The Tribunal allowed the said applications and

held that the appellants herein were not treated as qualified for

promotion i.e. eligible on the ground that they had not put in five

years’ service in the Kerala region of EPFO, having relied on the words

in the above quoted Rule which requires five years’ regular service “in

the respective regions”.

6. Being aggrieved, the appellants filed original petitions before the

High Court which were also dismissed. Hence these appeals by special

leave.

7. Thus, the only issue before us is whether under the aforesaid

Rule, the candidates who seek promotion through departmental

competitive examination for the post of EO/AO, should have served,

both in their earlier place of posting and their present place of posting

for a period of five years, or whether the candidates should have

3 served for five years in the region where they seek promotion, which

in this case is Kerala region.

8. Having heard learned counsel appearing for the parties and upon

perusal of the record, we are of the view that the words of the

aforesaid Rule require five years’ regular service “in the respective

regions”. Thus, these words must be understood to mean that the

candidates should have served in the respective regions, that is, the

regions where they were posted earlier and the region where they

seek promotion all together for five years. Thus if a candidate has

served in one region and then transferred to another, and seeks

promotion in that region, the rule does not require that the candidate

must have acquired experience of five years in the region where he

seeks promotion, for being considered eligible. What is necessary is a

total experience of five years. This must necessarily be so because

the service to which the rival parties belong, is an All India Services, in

which the country is demarcated into several regions. In All India

Service, the officers are posted from one region to the other in a

routine manner. The purpose of the rule is that such officers are not

deprived of their experience in the feeder cadre merely because they

have been transferred from one place to another.

9. It might be noticed that in the transfer order of the appellants

bearing No.HRM-III/14/1/07/IRT/Genl. Dated 19.06.2008, issued by

Regional PF Commissioner (HRM), EPFO, Ministry of Labour,

Government of India, and addressed to the Regional PF Commissioners

4 in-charge of the Region Tamil Nadu, the following is stated as a

condition of transfer :

“His/her past service rendered in cadre of SSA will be counted for the purpose of appearing in the departmental examination.……….”

The above condition of transfer fortifies our view regarding the

intent and purpose of the promotion rule.

10. In a similar context, this court in Union of India & others vs.

C.N. Ponnappan1 held that an employee who is transferred from one

unit to another on compassionate ground, though placed at the bottom

of seniority list is entitled to have the service rendered at an earlier

unit, counted for the purpose of eligibility for promotion in the unit in

which he is transferred. It was observed in Para 4 as follows:

“The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said services, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred …………”

When confronted once again with the similar question in Scientific

Advisor to Raksha Mantri and Anr. vs. V.M.Joseph2, this court relying

on earlier decision in Union of India (supra) held that the length of

1 (1996) 1 SCC 524 2 (1998) 5 SCC 305

5 service rendered on an equivalent post in another organization before

the transfer counts, for determining the eligibility for promotion though

such service may not count for seniority.

11. Hence, we allow these appeals, set aside the impugned judgment

and order passed by the High court as also the aforesaid order/s of the

Tribunal insofar as these appellants are concerned, and hold that the

appellants are entitled to be treated as eligible and qualified for

promotion in the Kerala region for the post of EO/AO in the Employees

Provident Fund Organisation.

12. The interlocutory application for impleadment is rejected.

..................................J [S. A. BOBDE]

..................................J [L. NAGESWARA RAO] NEW DELHI APRIL 17, 2017

6 ITEM NO.40 COURT NO.9 SECTION XIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) Nos.30141-30142/2011

(Arising out of impugned final judgment and order dated 10/08/2011 in OP No. 2518/2011 10/08/2011 in OP No. 2525/2011 passed by the High Court Of Kerala At Ernakulam)

M.M. THOMAS & ORS. Petitioner(s) VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With appln. (s) for impleadment and interim relief and office report)

Date : 17/04/2017 These petitions were called on for hearing today. CORAM :

HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE L. NAGESWARA RAO

For Petitioner(s) Mr. V. Giri, Sr. Adv.

Mr. Siddhartha Dave, Adv.

Ms. Usha Nandini. V,Adv.

Mr. Biju P. Raman, Adv.

For Respondent(s) Mr. C.S. Rajan, Sr. Adv.

Mr. A. Raghunath,Adv.

Mr. Prasanth P.,Adv.

Mr. Samdarshi Sanjay, Adv.

Mr. Rajan K. Chourasia,Adv.

Ms. Aparna Bhat,Adv.

Ms. Joshita Pai, Adv.

Mr. Mayank Sapra, Adv.

Mr. Sachin Sharma, Adv.

Mr. Ranjit Kr. Jha, Adv.

Mr. A. Deb Kumar, Adv.

Mr. Praneet Pranav, Adv.

Mr. S.N. Terdal, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

These appeals are allowed in terms of the signed reportable

7 judgment.

The interlocutory application for impleadment is rejected.

Pending interlocutory applications, if any, stand disposed of.

(Sanjay Kumar-II) (Indu Pokhriyal) Court Master Court Master

(Signed Reportable Judgment is placed on the file)

8