Central Administrative Tribunal - Delhi
Smt.Gurdeep Kaur vs Union Of India on 1 August, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 542/2007 OA No.1378/2007 New Delhi, this the 01st August, 2008 Honble Shri Justice M.Ramachandran, Vice-Chairman (J) Honble Dr. Mrs. Veena Chhotray, Member (A) OA No.542/2007 1. Smt.Gurdeep Kaur, W/o S.Avtar Singh, R/o WZ-180, Shiv Nagar, Gali No.II, New Delhi. Working as Junior Hindi Translator, Division-N, Region-A, C.P.W.D., Indraprastha Bhawan, I.P.Estate, New Delhi. 2. Mohd, Ismail Khan, S/o Late R.U.Khan, R/o 9/14-B, Azad Nagar, Karamat Chowki, Kareli, Allahabad. Working as Junior Hindi Translator, Allahabad Central Circle, C.P.W.D., Allahabad (U.P). 3. Shri Ved Prakash, S/o Shri Gauri Shanker, R/o 1/6258, Street No.4, East Rohtash Nagar, Shahdara, Delhi. Working as Junior Hindi Translator, Office of Engineer in-Chief, P.W.D., GNCTD, M.S.O. Building, I.P.Estate, New Delhi. 4. Smt.Madhu Bala, W/o Shri J.K.Khanna, R/o 360, Pkt-B, 5 Sec.8 Rohini, Delhi-110 085. Working as Junior Hindi Translator, Parliament Works Division-I, C.P.W.D., I.P. Bhawan, New Delhi. 5. Smt. Surinder Kumari, W/o Shri Bimal Kumar, R/o R-74/C, Dilshad Garden, Delhi. Working as Junior Hindi Translator, Delhi Central Circle-IX, C.P.W.D., Indraprastha Bhawan, New Delhi. Applicants (By Advocate: Shri S.K.Gupta) Versus 1. Union of India, Through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 2. Director General (Works), C.P.W.D.,Nirman Bhawan, New Delhi. 3. Shri M.C.Avasthi, Assistant Director (Official Language) C/o Director General (Works), C.P.W.D., Nirman Bhawan, New Delhi. Respondents. (By Advocate: Shri T.C.Gupta) OA 1378/2007 1. Shri Pradeep Raj Sharma S/o Late Shri N.C.Sharma R/o 1717, Laxmi Bai Nagar, New Delhi. 2. Shri Pankaj Deewan S/o Shri R.K.Deewan R/o 3/10, West Patel Nagar, New Delhi-110008. 3. Shri Kamal Kumar Sharma S/o Shri R.L.Sharma R/o C-180, Albert Square, Gole Market, New Delhi. 4. Shri Anil Varshaney, S/o Shri Raghubar Sahai, R/o 1918, Laxmi Bai Nagar, New Delhi-110023. 5. Shri Rajender Prasad Yadav, S/o Shri Dalip Singh R/o House No.3124, Sector-23, Gurgaon, Haryana. 6. Shri Ved Prakash S/o Shri Gauri Shankar R/o 6058, East Rohtash Nagar, Shahdara Delhi. 7. Smt. Surinder Kumari, W/o Shri Bimal Kumar, R/o R-74/C, Dilshad Garden, Delhi. 8. Smt.Madhu Bala, W/o Shri J.K.Khanna, R/o 1613, Gulabi Bagh, Delhi-110 007. 9. Shri Bhagwan Dass S/o Shri Devi Dayal, R/o A/4/249, Sec.IV,Rohini, Delhi-85. 10. Shri Kailash Chand S/o Shri Jugal Kishore R/o House No.7, Village Muzessar, Sector 22, Faridabad, Haryana. Applicants (By Advocate: Shri S.K.Gupta) Versus 1. Union of India, Through Secretary, Department of Official Language, Ministry of Home Affairs, Lok Nayak Bhawan, Khan Market, New Delhi. 2. Secretary, Department of Personnel & Training Ministry of Personnel, Pension and Public Grievances, Nirman Bhawan, New Delhi. 3. Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 4. Director General (Works), Central Public Works Department, Nirman Bhawan, New Delhi. Respondents. (By Advocate: Shri H.K.Gangwani) ORDER
Dr. Veena Chhotray, Member (A) The OA Nos. 1378/2008 and 542/2007 filed under Section 19 of the Administrative Tribunals Act, 1985 have been heard jointly and are being dealt with by a common order as they have nearly identical facts and closely related prayers for relief. The applicants in both the OAs are Hindi Translators of Region A' in the Official Language Wing of the CPWD under the Ministry of Urban Development. Their prayers pertain to promotional avenues to higher posts of Assistant Director (Group B posts).
2. The factual background of the OAs is that Official Language (Use for official purposes of the Union) Rules, 1976 (as amended, 1987) stipulates creation of different zones for purposes of implementation of the Act. A similar zonal pattern has been followed by the respondents in the Official Language (OL) Wing under them. As per the prevalent hierarchy, there are three tier posts i.e. Junior Hindi Translator (JHT) (Rs. 5000-8000), Senior Hindi Translator (SHT) (Rs.5500-9000) and Assistant Director (AD) (Rs.6500-10500) Each zone had its own separate cadre of different rung of personnel.
2.2 The Recruitment Rules for JHT were Central Public Works Department, Subordinate Offices (Junior Hindi Translators) Recruitment Rules, 1984 regulating the method of recruitments to these posts (Annexure A-4) (The applicants contention of there being exclusive rules of JHT for A region is not found to be correct. For the post of SHT, no specific rules were framed by the respondents and the general norms prescribed by the Department of Official Language were followed by the respondents. For AD, the relevant rules were notified on 16.06.1999. As per these rules, 16 posts of AD were created and all were to be filled up by promotion from JHTs of Region A with six years regular service in the grade (Annexure A-5).
2.3 The constitutional validity of the Recruitment Rules for the post of AD (OL) confining the promotion from only the JHTs by Region A was challenged by Shri M.C.Avasthi from Region B before the Mumbai Bench of CAT (OA 954/2002). Shri Avasthi is a private respondent in both the OAs. The Tribunal vide its order dated 31.08.2004 declared these rules invalid as they were ultravires Articles 14 & 16 of the Constitution (Annexure R-I). Further, the order mentioned that the Government may frame a new set of rules providing for an equal opportunity of promotion to Group B posts, for the persons holding posts in the feeder cadre in all the regions.
2.4 After due inter-ministerial consultations and with advice of the UPSC, the aforesaid rules have been amended and notified vide G.S.R. 102 dated 04.06.2007 (A-1). The scope for consideration for promotion to the posts of AD (OL) has now been widened to include JHT and SHT of all regions. The relevant rules are extracted as hereunder:
Central Public Works Department Notification New Delhi, the 4th June, 2007 G.S.R. 102-In exercise of the powers conferred by the proviso to article 309 of the Constitution, the President hereby makes the following rules to amend the Ministry of Urban Development, Central Public Works Department, subordinate office, Assistant Director (Official Language) Group B posts Recruitment Rules, 1999, namely :
1. 2 (i).
(ii)
(iii) in column 12, for the existing entries, the following shall be substituted, namely:-
From combined seniority list of Junior Hindi Translators/Senior Hindi Translators of all the regions with 6 years regular service in the Grade of Junior Hindi Translators/Senior Hindi Translators in the Subordinate Cadre of Central Public Works Department.
Note: Whereas juniors who have completed their qualifying/eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year and have successfully completed their probation period if prescribed. 2.5 Further, the respondents have given ad hoc promotion to Shri M.C.Avasthi as AD (OL) and for this purpose have diverted a post of AD (OL) from Bhopal to Mumbai vide office orders 206 and 207 dated 21.01.2006 (A-1 and A-2 in OA 542/2007). Subsequently, a provisional combined seniority list of JHTs of all the regions has also been circulated on 02.04.2007 (A-7).
3. Thus the impugned amendments are alleged to be arbitrary, illegal and discriminatory and, therefore, deserving to be quashed. The grievance of the applicants is that the respondents are giving effect to the new rules and even old vacancies in the posts of AD (OL) are being filled there under. Further, ad hoc promotion to Shri Avasthi has been challenged. Specifically, the following prayers have been made:
OA 1378/2007.
(i) to quash and set aside column No.12 of Recruitment Rules dated 4.6.2007 being illegal, arbitrary and unworkable and violative of Article 14 of Constitution of India.
(ii) to direct the respondents to frame a new set of Rules if so advised.
(iii) to pass such other and further order which this Honble Tribunal may deem fit and proper. OA 542/2007 (i) to quash and set aside the impugned order dated 21.9.2006 (Annexure A-1) and 21.9.2006 (Annexure A1/A);
(ii) to direct the respondents to consider the case of the applicants for regular promotion on the post of Assistant Director (Official Language) in Region-A and convene a DPC, and if the applicants are found fit, they may be promoted.
(iii) till the aforesaid exercise is done as contained in para (ii) above, the case of the applicants may be considered for promotion on the post of Assistant Director (Official Language) in Region-A on ad hoc basis;
(iv) to pass such other and further order which this Honble Tribunal may deem fit and proper.
4. The learned counsel would contend that the present applicants were not parties in the OA 954/2002 and, therefore, were not in a position to challenge that order. However, relying on K.Ajitbabus case, a need for serious reconsideration of the Mumbai Benchs order is submitted. This is said to be on several grounds. First, since the ADs posts were based on functional requirement of zone A and had been created out of upgradation of equal number of JHT posts in that Zone, there possibly could not be a justification for sharing these posts with other regions. Instead, if felt necessary, creation of additional posts for other regions is suggested. It is also pleaded that in the light of the Mumbai Bench judgement the respondents were required to provide an equal platform to all the employees. However, this was not the case under the impugned amendments. Placing JHTs and SHTs, who got different pay scales, on the same footing would amount to treating unequals as equals. By prescribing the same qualifying service of 6 years for promotion from both feeder cadres, this inequality is said to have been further heightened. It is further contended that under the present dispensation, the JHTs of other regions would be getting double benefit since they also get promotions as SHTs. Taking the plea of prospective application for the amended rules, a plea of filling up earlier vacancies (prior to 04.06.2007) as per the old rules is also made.
4.2. In OA 542/2007, the applicants are senior-most JHTs in A zone. It is stated that out of the total 16 posts of AD, presently there are 6 vacancies including one arising out of the recently superannuated incumbent Shri K.R.Arya (A-5). Blaming the respondents for inaction in not convening timely DPC, diversion of an AD post from Bhopal to Mumbai and promotion of Shri M.K.Avasthi (private respondent no.3) is said to be illegal since as per the 1999 rules he is not from the feeder cadre. It is submitted that since there was no such direction in the order of Tribunal in the aforesaid OA, the present order has been passed by the respondents in the garb of the Tribunals order but without any real justification. Issue of impugned promotion orders (21.09.2006) before the amendment Notification (04.06.2007) and the circulation of provisional combined seniority list (02.04.2007) have also been questioned.
5. The OAs are fiercely contested. The amended rules are said to be fully in consonance with the Mumbai Bench judgement, which had declared the 1999 Recruitment Rules as invalid on the ground of contravening Articles 14 & 16 of the Constitution of India. The Tribunal had also mentioned in its order regarding the Government framing new Recruitment Rules, envisaging equal opportunity to the candidates of all regions. The amended rules are said to have been formulated after due inter-ministerial consultation with all concerned, i.e. DOP&T, Department of Official Language, Ministry of Law and the UPSC.
5.2 The rival contention of treating unequal as equal is vehemently rebutted by the learned counsel for the respondents. He would explain that as per the Tribunals order, JHT and SHT of all regions have been made eligible for promotion as AD. Further, while drawing a combined seniority list, the reference point would be regular appointment as JHT and the condition of six years regular service would be determined only with reference to this point. Hence, there would not be any discrimination. As per the provision of the explanatory note, it would be possible to ensure that no senior in the service is superseded by a junior.
5.3 As regards, the argument of the applicants that the vacancies prior to 02.04.2007 should be filled up under the old rules, the learned counsel would submit that the earlier rules stand invalidated and can no more be acted upon. The promotion process for filling up the vacant posts is said to be initiated in terms of the amended recruitment rules under which the candidatures of the applicants are assured to be given due consideration (paras 407 & 4.8 in OA 542/2007). In consonance with the order of the Mumbai Bench of the Tribunal, a restructuring of the AD(OL) cadre is also said to be under consideration of the Government under which 16 posts may have to be re-distributed among all the regions.
5.4 The ad hoc promotion of Respondent No.3 as AD(OL) is defended as being in consonance with the spirit of the Tribunals order. Shri Avasthi is said to be the senior-most among all the JHTs and the relief has been granted considering the time taken in amendment of the rules.
5.5 Learned counsel would submit that the present OA is immature and the grievance of the applicants is imaginary as they did not have any cause to show supersession by a junior.
6. We have heard both the counsels and also perused the material on record carefully. In the OA 954/2008 the issue for adjudication before the Mumbai Bench of this Tribunal was constitutional validity of the 1999 Rules for promotion to the posts of Assistant Director (Official Language) under the CPWD. After a detailed consideration the following order was passed:
10In view of such facts of the case, the exclusion of JHT/SHT working in other regions from consideration for promotion to the post of Assistant Director is certainly inconsistent with the principles enshrined in Articles 14 and 16 of the Constitution.
11. In view of the facts indicated above, we hold that Ministry of Urban Development, CPWD Assistant Director (Group B) Posts Recruitment Rules 1999 are ultravires Article 14 and 16 of the Constitution as far as they limit the consideration for promotion to Junior Hindi Translators of Region A and therefore we declare these rules as invalid. The Government may frame a new set of rules providing for an equal opportunity of promotion to Group B posts, for the persons holding posts in the feeder cadre in all the regions. The impugned amendment in the R.R. seeks to correct this very lacunae and extend the scope of consideration for promotion as AD to the feeder categories of all the regions. Against this background, the contentions in the present OA seem to perpetuate the old system which has already been struck down as iniquitous and ultra vires Articles 14 and 16 of the Constitution.
6.1 It is axiomatic that creation of posts is primarily as per work requirement. The appellants contention that originally the ADs posts (16 in number) were created by upgrading an equal number of JHT posts in A region would not justify accrual of any perpetual exclusive right on that ground. We see nothing objectionable in the proposed restructuring of the posts of AD (OL) covering all the regions as per work requirement; nor can it be said to be beyond the legitimate purview of the jurisdiction of the government. The apprehensions of unequals being treated as equals by a common seniority list of JHT/SHT are adequately met with clear and unambiguous provisions in the amended rules that the base for this purpose would be a JHT and the six years qualifying service both for JHT and SHT would be from the date of JHT only.
6.2 However, during consideration of the issue at length we find merit in the applicants contention that while JHTS of other regions continue to enjoy promotion as SHT, applicants in region A are deprived of the same. As the issue in the earlier OA before the Mumbai Bench was limited to promotion from JHT to AD, this aspect could not be considered. In course of oral submissions the learned counsel for respondents would submit that since these promotions had already been affected, they could not now be reversed. We, however, feel that in the same spirit of equality and non-discrimination as in the aforesaid order of Mumbai Bench the government would like to consider this aspect too for future. We would also like to respectfully refer to the dicta of the Honble apex Court in Man Singh vs. State of Haryana & Ors [2008 (7) SCALE 750], reaffirming that the touch stone of the administrative action is fair play and reasonableness by observing as under:
We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
6.3 As the 1999 Rules stand invalidated, we do not find it tenable to give a direction to the respondents to convene a DPC to consider exclusively applicants from the A region. In view of the respondents stand that the process to fill up the vacancies in ADs posts as per the amended rules is being initiated and the applicants cases will be duly considered, there seems no cause for interference by us in that regard.
6.4 On the point of quashing the ad-hoc promotion to Shri M.P. Avasthi, the fact of his being senior most among all the JHTS of all the regions has not been disputed. Besides, as mentioned in the order of the OA 954/2002 also there have been instances of diverting the ADs post to other regions. In consideration of the facts before us we are inclined to accept the respondents plea that as Mr. Avasthi was the senior-most JHT, in tune with the Tribunals order, this decision has been taken to provide him same relief.
7. To conclude, the OA No.1378/07 is partly allowed with a direction to the respondents to duly reconsider the existing dual system of promotion as SHT in different regions. The remaining prayers in this OA as well as in the OA 542/07 are not found to be entertainable and therefore are disallowed. No order as to costs.
(Veena Chhotray) (M.Ramachandran)
Member (A) Vice-Chairman(J)
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