Central Administrative Tribunal - Delhi
S. Viswanathan vs Unknown on 10 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO. 2828/2010 New Delhi, this the 10th day of August, 2011 Coram: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) S. Viswanathan, S/o Shri T.S. Swaminatharao, R/o A-3/172H, Mayur Vihar, Phase-III, Delhi 110096 Working as : Section officer Judicial Branch, National Consumer Disputes Redressal Commission, .Applicant (By Advocate: Shri K. Venkatraman) - VERSUS 1. National Consumer Disputes Redressal Commission, Through Registrar, Ministry of Consumer Affairs, Food & Public Distribution, Government of India, Department of Consumer Affairs, 5th Floor, A-Wing, Janpath Bhawan, New Delhi 2. Mr. Iqbal Ahmed, Working as Assistant Registrar, National Consumer Disputes Redressal Commission, 5th Floor, A-Wing, Janpath Bhawan, New Delhi 3. Union of India Through its Secretary, Ministry of Public Grievance & Pensions, Department of Personnel & Training, North Block, New Delhi 4. Union of India, Through Secretary, Govt. of India, Ministry of Consumer Affairs Food & Public Distribution, Department of Consumer Affairs, Krishi Bhawan, New Delhi. Respondents (By Advocate: Shri R.L. Dhawan) O R D E R
By Dr. Veena Chhotray:
The applicant, working as a Section Officer under the respondent National Consumer Disputes Redressal Commission, is aggrieved at his non-promotion to the post of Assistant Registrar. Further, it has been alleged that the promotion of the respondent No.2 to the said post is illegal, being in violation of the relevant RRs and executive instructions. The applicants representation for a review of this decision has been rejected by the respondents order dated 30.07.2010. Through this OA filed under Section 19 of The Administrative Tribunals Act, 1985, the following reliefs have been sought:-
8.(a) call for the complete record of DPC proceedings for appointment to the post of Assistant Registrar held on 08.07.2010; and
(b) setting aside the impugned order dt. 30.07.2010, and DPC proceedings held on 08.07.2010 for promoting respondent no.2 to the post of Assistant Registrar being illegal and violative of rules and mandatory provisions. In response to the prayer for interim order, a direction was issued by the Tribunal that any promotion made shall remain subject to the final outcome of this OA.
2. The learned counsels, Shri K. Venkatraman and Shri S.K. Gangwani would argue the case respectively for the applicant and the respondents. The private respondent would appear in person.
3.1 The brief facts of the case are that the applicant who had initially joined the NCDRC as an Assistant on 16.10.1992 was subsequently promoted as a Section Officer on 3.2.2000. Further, Shri Iqbal Ahmed (respondent no.2, qua whom the claims are being agitated) had also joined initially as an Assistant Librarian in January, 1992 and had changed his cadre to Assistant in the year 1999. He was promoted as a Section Officer on 20.9.2001. The admitted seniority of the applicant over the respondent no.2 in the grade of Section Officer the feeder grade for promotion as Assistant Registrar is not disputed.
3.2 On accrual of a vacancy on 1.7.2008, the respondents had held a DPC on 12.9.2008 and on that basis after considering the names of 5 personnel given proforma promotion to one Ms Veena Sethi and actual promotion to the respondent no.2. This was on ad hoc basis, and the applicant had not been considered. Even though certain irregularities in this process are alleged in the OA; the same would not be pressed by the learned counsel for the applicant.
3.3 The promotion process under challenge in the present OA is the one on the basis of the DPC held on 8.7.2010. In this case even though the name of the applicant was considered along with that of the respondent no.2, however, finally as per the recommendations of the DPC the respondent no.2 was promoted. A representation dated 16.7.2010 by the applicant requesting for review of this DPC was rejected vide the order dated 30.7.2010. These have been impugned in the present O.A. The applicant had also submitted an application dated 4.8.2010 seeking certain information with regard to the promotion. This remained un-responded.
In support of the claims in the OA, the main contentions raised are : (i) Admittedly, the respondents have been following the draft Recruitment Rules for appointments in the Commission. The present promotion is in violation of these Rules since the constitution of the DPC was not in accordance with the draft Rules; besides the UPSC had not been consulted nor an exemption taken as per the prescribed procedure. (ii) As per the draft RRs, the post of Assistant Registrar is to be filled up by promotion failing which by deputation. Further, this has been prescribed as a selection on merit post. However, while processing the matter, the respondents have failed to consider the DOP&T OM dated 8.2.2002, further reiterated by the OM dated 16.2.2005 on the subject. As per this OM, instructions were issued revising the earlier guidelines and obviating the distinction in the nomenclatures selection by merit and selection-cum-seniority and rechristening the same as selection only; it was prescribed that there was to be no supersession in promotion among those graded fit, in terms of the prescribed bench mark by the DPC. (iii) The applicant who was admittedly senior to the respondent no.2 and possessed the essential eligibility qualifications as per the draft RRs, was entitled to be promoted in the light of the aforesaid DOP&T OMs. Besides, it is also stated that the applicant had the prescribed benchmark in the ACRs and since no adverse remark had been communicated to him, even if there was any default in this regard, the same had to be ignored.
The learned counsel, Shri Venkatraman would make the submission that he was in no way questioning the competence of the DPC to make its own assessment of the comparative merits of the candidates under consideration. His basic grievance was that the recommendations of the DPC in this case came to be given without even a consideration of the aforesaid DOP&T OM dated 8.2.2002, of critical significance in the matter; besides there being violation of the draft RRs.
5. In their Counter Affidavit the respondents have not disputed the fact of the draft Recruitment Rules having been followed by the NCDRC for filling up various posts, including the post of Assistant Registrar, in the Establishment of the NCDRC. Even the seniority of the applicant in the feeder grade of Section Officer has not been disputed. Responding to the specific contentions raised on behalf of the applicant challenging the impugned promotion process, the stand of the respondents point-wise is: (i) The DPC in this case was a high powered Committee comprising three Honble Members of the Commission and constituted with the approval of the President of the Commission. Further, it is stated that since the President is the final approving authority of the appointment in question, it was not considered appropriate for him to be himself present in the DPC. These contentions are revealed from the records produced by the respondents learned counsel. To extract:
In the absence of the rules the Honble President for considering appointment on the post of Assistant Registrar, was pleased to constitute a High Powered Committee of three Honble Members of the Commission comprising Honble Shri Justice R.C. Jain, Honble Shri Justice R.K. Butta and Honble Shri Anupam Dasgupta to deliberate on the subject. The Honble President since was to approve the appointment on the said post naturally could not have been in the said Committee. As per the draft rules the Committee for considering the appointment on the post of Assistant Registrar in the National Consumer Disputes Redressal Commission is to be headed by the Honble President, but that would be permissible or effective from the date the rules are notified.
(ii) On the point of consultation with the UPSC, it is clarified that even as per the draft Rules this was not required in the present case. This is borne out by the copy of the draft Rules enclosed as Annex R/1 with the Counter Reply (Though we note a discrepancy in this regard in the Annex. A/2 enclosed with the OA; however, for purposes to be clarified in the subsequent paragraphs in this order, we do not consider it necessary to pursue this point further). (iii) As regards the claims for promotion of the applicant and the respondent no.2, it is stated that the DPC had considered two candidates including the applicant. However, he had not been promoted considering the fact of his not possessing the desirable qualification of a Law Degree. Since the respondent no.2 possessed the same he had been given preference and therefore, selected. The averment of the applicant having been previously superseded on similar account has also been made.
Shri H.K. Gangwani, the learned counsel for the respondents would rely on a number of case laws in support of the contention that those with desirable qualification were to be given preference. Besides, it would be contended that the DPC enjoyed discretion in assessment of performance and the same was not a matter of judicial review unless there was some malafide. These are briefly indicated below:
The Original Application decided by the Tribunal (Principal Bench) in B.L. Sinha vs Union of India Through Secretary, Ministry of Company Affairs & Ors vide order dated 1.2.2007. It is settled law that the Courts are discouraged from intervening in the recommendations of the Specialized Committees, such as the DPCs, unless malafide or illegality is established. (para 14).
b) The case of Sam G. John vs Shri R. Rajendran & Ors decided by the High Court of Kerala at Ernakulam vide its judgment dated 23.2.2010. .when essential and desirable qualifications are separately prescribed in the Notification, the purpose is evident that anybody who possesses essential qualifications could apply, and if anyone possesses desirable qualification, he may have edge over others. (Para-2).
c) OA 2594/2010 Vinnet Dodhal & Anr vs Union of India & Ors decided by the Tribunal (PB) vide its order dated 1.9.2010. Further evidently among the candidates who had essential qualification, those with desirable qualification would get a preference. (Para 8.3)
6. We have carefully considered the respective submissions made both the learned counsels and also the material on record. The following aspects are found relevant to the issues at hand:-
6.1.1 As per the draft RRs, the composition of the DPC for the post of Assistant Registrar has been prescribed as follows:-
(13) President, National Consumer Disputes Redressal Commission - Chairman Member, National Consumer Disputes Redressal Commission (to be nominated by President, National Commission) - Member Joint Secretary /Director, Department Consumer Affairs - Member However, as per the records produced before us, the DPC had comprised of three Members of the Commission. Neither the President of the Commission, who is supposed to be the Chairman, nor the Joint Secretary / Director of the Department of Consumer Affairs were Members of this Committee. Thus, the DPC held on 8.7.2010 was not constituted in accordance with the provisions of the draft RRs.
6.1.2 From the records produced before us by the learned counsel Shri Gangwani it is found that the Central Government is having a rethinking on notifying the draft Rules in question. In fact, recently instructions have been issued to the Commission to formulate revised draft Rules in terms of the Consumer Protection Act, 1986. The relevant portions are being extracted as here under:
In this connection we may bring home to the Honble Tribunal that ever since the establishment of the National Consumer Disputes Redressal Commission in the year 1989, rules for various posts existing in the Commission were drafted on several occasions and put across to the Central Government for notification but on some pretext or the other rules have not been notified despite several requests made in this behalf. On several occasions the Honble President of this Commission has been pleased to impress upon the Central Government the need and urgency for availability of the duly notified rules but all our efforts done in this behalf yielded no results. The Administrative Ministry in consultation with the Law Ministry have now advised us vide their letter issued as late as on 20.07.2011 to draft the rules in terms of section30A of the Consumer Protection Act 1986 and send to them for approval and when approved it would be notified. .. 6.1.3 The settled proposition of law with regard to the operability of the draft Rules as the basis for certain administrative decisions in service jurisprudence was laid down by the Honble Apex Court in its Judgment in the case of Vimal Kumari vs State of Haryana & Ors {1998 (4) SCC 114}:
It is open to the Government to regulate the service conditions of the employees for whom the rules are made by those rules even in their draft stage provided there is clear intention on the part of the Government to enforce those rules in the near future. Recourse to such draft rules is permissible only for the interregnum to meet any emergent situation. If however, the intention is not to enforce or notify the rules at all, as is evident in the instant case, recourse to drat rules cannot be taken. Such draft rules cannot be treated as to be rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subject covered by the drat rules nor can such draft rules exclude the jurisdiction of the Government or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them. 6.1.4 Thus, in the given facts of the case and as per the aforesaid law laid down by the Honble Apex Court, the composition of the DPC at variance with the draft RRs is not found to be a valid ground for challenging the promotion process. On the other hand, the justification furnished by the respondents for change in its composition merits consideration.
6.1.5 The same would also apply to the contention regarding non-consultation / exemption from consultation with the UPSC. In any case, as stated above, the fact of such a requirement as per the draft RRs itself is a disputed point.
6.2 The other aspect pertains to the non-consideration of the DOP&T OM No.35034/7/97-Estt (D) dated 8.2.2002. A copy of this OM has been enclosed as Annex A/8 with the OA. This contained revised guidelines on the subject of procedure to be observed by Departmental Promotion Committees holding that there was no supersession in selection. The brief content of these guidelines has been stated in the aforesaid paragraphs (Para 3.1 of this OM Mode of Promotion). However, para 3.2 dealing with the subject of Bench Mark for promotion ran as follows:-
3.2 Bench-mark for promotion The DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as fit or unfit only. Only those who are graded fit (i.e. who meet the prescribed bench-mark) by the DPC shall be included and arranged in the select panel in order to their inter-se seniority in the feeder grade. Those officers who are graded unfit (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded fit (in terms of the prescribed bench-mark) by the DPC.
3.2.1 Although among those who meet the prescribed bench-mark, inter-se seniority of the feeder grade shall remain intact. Eligibility for promotion will no doubt be subject to fulfilment of all the conditions laid down in the relevant Recruitment/Service Rules, including the conditions that one should be the holder of the relevant feeder post on regular basis and that he should have rendered the prescribed eligibility service in the feeder post. (emphasis supplied) The stipulation in sub-para 3.2.1 regarding the eligibility being subject to fulfillment of the prescribed conditions in the relevant RRs is important. If the applicants argument was to be accepted, this would amount to a truncated interpretation of the relevant prescribed conditions. To make it further clear, this would mean that while considering the fitness of a candidate only the essential eligibility conditions are to be considered, while turning a blind eye to the desirable qualifications prescribed as per the Rules. This would neither be convincing as a logical proposition, nor be in consonance with the judicial pronouncements cited by the counsel for the respondents.
Thus, even the ground of non-consideration of the DOP&T OM dated 8.2.2002 cannot be pressed to provide any relief to the applicant since even as per the provisions of this OM, the eligibility for promotion was to be subject to the fulfillment of all the conditions laid down in the relevant Service Rules. In the given facts the settled law regarding the competence of the DPC to take its decisions and the same not being subject to judicial scrutiny unless there is a malafide would come into play.
In view of the above, referring the matter to the respondents once again for reconsideration by the DPC as per the composition as provided under the draft RRs in question and considering the provisions of DOP&T OM dated 8.2.2002 would be a futile exercise.
7. To conclude, after a careful consideration, we have not found the claims in the OA as tenable. The alleged inconsistencies with the draft RRs cannot be a ground for challenging the impugned promotion in view of the law laid by the Apex Court in Vimal Kumari vs State of Haryana & Ors (supra) holding that the draft RRs can only be a basis when there is an intention to enforce those Rules in near future. Even the plea of non-consideration of the DOP&T OM of 8.2.2002, is not found to be relevant in view of the provisions under its Para 3.2.1 prescribing the eligibility for promotion being subject to fulfillment of all the conditions laid down in the relevant Service Rules. In the circumstances, referring the matter to the respondents once again for reconsideration by the DPC as per the composition as provided under the draft RRs in question and considering the provisions of DOP&T OM dated 8.2.2002 would be a futile exercise.
Resultantly, the OA is found to be bereft of merit and is dismissed with no orders as to costs.
(DR. VEENA CHHOTRAY) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
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