Central Administrative Tribunal - Delhi
Mohan Lal Sharma And Ors. vs Union Of India (Uoi) And Ors. on 4 April, 2000
JUDGMENT
Ashok Agarwal, Chairman
1. By the present OA the applicants seek to impugn an order dated 13.11.1996 passed by and on bahalf of the Divisional Railway Manager, Western Railway, Kota, respondent No. 2 herein whereby a panel for promotion to the posts of Chief Booking Clerks/Chief Parcel Clerks in grade of Rs. 1600-2660 has been prepared. Whereas respondents 3 to 18 have been empanelled the applicants who were aspirant for the said promotional posts have not been included in the panel.
2. The applicants were initially appointed as Commercial Clerks Grade Rs. 260-400. They were granted promotions at different levels and were ultimately promoted as Head Booking Clerks/Head Parcel Clerks in the grade of Rs. 1400-2300. Respondents 3 to 18 were also similarly promoted as Head Booking Clerks/Head Parcel Clerks in the aforesaid grade of Rs. 1400-2300. Aforesaid posts of Head Booking Clerk/Head Parcel Clerk is a feeder post for the promotional post of Chief Booking Clerk/Chief Parcel Clerk in the grade of Rs. 1600-2660. Aforesaid post of Chief Booking Clerk/Chief Parcel Clerk is a selection post.
3. Selections to fill up the vacancies which had arisen during the period 1993, 1994 and 1995 had not been held. Applicants 1 and 2 in the circumstances based on their seniority had been promoted as Chief Booking Clerks in the grade of Rs. 1600-2660 on adhoc basis with effect from 20th August, 1995.
4 Respondent No. 2 initiated the selection process for the aforesaid posts of Chief Booking Clerk/Chief Parcel Clerk in the grade of Rs. 1600/2660 in order to fill up 17 posts. Respondent no. 2 prepared a list of 51 candidates in order of their seniority for considering their claim to fill up the aforesaid vacancies.
5. A written examination was held on 17th August, 1996 and 26th August, 1996 and the result of the successful candidates was declared on 16th October, 1996. Respondents declared 18 candidates successful in the written examination. The applicants did not find a place in the aforesaid list of 18 successful candidates. A viva voce test was thereafter held and a final panel has been declared empanelling 16 candidates, who have been arrayed as respondents 3 to 18 in the present OA, on 13th November, 1996 wherein again the applicants did not find a place. Aforesaid panel declared on 13th November, 1996 as already stated is impugned in the present OA.
6. The short ground on which the aforesaid panel is impugned in the present OA is that the aforesaid selection has been held to fill up vacancies which have arisen in the years 1993, 1994 and 1995. Whereas 5 vacancies had arisen in 1993, 7 vacancies in 1994 and 6 had arisen in 1995, to fill up the aforesaid vacancies arisen in the aforesaid three years one single selection has been conducted and the impugned panel has been prepared. According to the applicants the respondents are required to hold selections every year and for filling up the vacancies arisen in each year a separate selection process has to be undertaken. The respondents instead of conducting separate selections for the years 1993, 1994 and 1995 have bunched all the vacancies of the aforesaid periods and have formed a single panel which has damaged the prospects of the applicant for being considered at the three selections which ought to have been held for the years 1993, 1994 and 1995.
7. The aforesaid contention is based on instructions contained in Office Memorandum being OM No. 22011/3/76-Estt. dated 24th April, 1980 issued by the Department of Personnel and Administrative Reforms which has laid down principles of promotions to selection posts. The aforesaid memorandum, inter alia lays down the following guidelines for promotion to selection posts :
"3. Zone of consideration for promotion to posts filled by Selection.
(a) The Departmental Promotion Committee (DPC) shall for the purpose of determining the number of officers who should be considered from out of these eligible officers in the feeder grade(s) restrict the field of choice as under, with reference to the number of clear regular vacancies proposed to be filled in the year.
No. of Vacancies No. of officers to be considered (1) (2) 1 5 2 8 3 10 4 or more Three times the number of vacancies.
(b) Where, however, the number of eligible officers in the feeder grade (s) is less than the number in Col. (2) above, all the officers so eligible should be considered.
(c) Where adequate number of SC/ST candidates are not available within the normal field of choice as above, the field of choice may be extended to 5 times the number.
4. Preparation of year-wise panels by DPC where they have not met for a number of years :
Instructions already exist that DPCs should meet at regular annual intervals for the preparation of select list and where no such meeting is held in any year, the Appointing Authority should record a certificate that there were no vacancies to be filled during the year. Administrative Ministries should obtain periodical information/certificates on the regular holding of DPCs.
(b) Where, however, for reasons beyond control, DPC could not be held in any year (s) even though the vacancies arise during that year (or years) the first DPC that meets thereafter should follow the following procedure:
(i) Determine the actual number of regular vacancies that arose in each of the previous year/years immediately and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a 'Selection List' for each of the years starting with the earliest year onwards.
(iv) Prepare a consolidated 'Select List' by placing the select list of the earlier year above the one for the next and so on".
Based on the aforesaid instructions it is contended by the applicants that for the 5 vacancies arisen in 1993, 15 candidates should have been considered for promotion and a panel of 5 candidates ought to have been prepared for filling the vacancies arisen in 1993. It is further contended that if the DPC could not be held every year, the vacancies arisen each year could not have been clubbed together and a panel could not have been prepared at one go for filling up all the vacancies arisen in the year 1993, 1994 and 1995. If DPC could not be held every year, the number of regular vacancies that arose in each year should have been determined and the candidates should have been called three times the number of vacancies available for that particular year. This would have given the applicants three occasions to compete for being granted the promotions to the aforesaid selection posts.
8. As far as the respondents are concerned, it is not their claim that the aforesaid directions contained in the aforesaid memorandum are not applicable or are not binding on the respondents. It is apparent that aforesaid instructions have not been followed while preparing the impugned panel at Annexure-A-1.
9. Aforesaid memorandum had come up for consideration of Supreme Court in the case of Vinod Kumar Sangal v. Union of India and Ors., (1995)4SCC246=1995(3)SLJ 143 (SC). The Supreme Court in the afore-stated case after reproducing the aforesaid office memorandum has proceeded to observe as under:-
"7. But when the DPC met in 1985 was it not required to make the selections on yearly basis for the vacancies of each particular year? The office memorandum dated 24-12-1980 clearly postulates that where the DPC is unable to meet at regular intervals for reasons beyond control, the first DPC that meets thereafter shall determine the actual number of regular vacancies that arose in each of the previous year/years and the actual number of regular vacancies proposed to be filled in the current year separately and consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards and prepare a selection list for each of the years starting with the earlist year onwards and on that basis prepare a consolidated select list......
9. The said DPC shall consider the appellant for such selection for the vacancies for each of these years separately as per the office memorandum dated 24- 3 2-1980.....".
The aforesaid decision of the Supreme Court has been followed in a later decision of the Supreme Court in the case of Union of India and Anr. v. R.N. Gautam and Ors. Civil Appeal Nos. 1426-1427/1995 decided on 18th March, 1999 by observing as under :
"We have given anxious consideration to this aspect and we are of the view that the direction of the Tribunal that year-wise vacancies will have to be computed and year-wise selections have to be made is unexceptionable and supported by the decision of this Court adverted to earlier. We hardly find that there could be any difficulty to make adjustment if that exercise has to be undertaken and that the direction issued by the Tribunal appears to be reasonable...."
In the case of Brajmohan Patnaik and Ors. v. Union of India and Ors., ATR 1987 (2) CAT 221, a question similar to the one which is under consideration, arose before the Cuttack Bench and this is what has been held by the Cuttack Bench :
There is no doubt that there were some vacancies in the year 1979 which have been clubbed with the vacancies occurring in the year 1980. It is not the case of the respondents that there was a separate D.P.C. meeting either in 1979 or 1980 to consider cases of promotion for the vacancies of 1979. If there was any such meeting it has not been brought to our notice and we cannot but agree with the learned Counsel for the petitioner that the D.P.C. has not followed the instructions of the Department of Personnel and Administrative Reforms, referred to above. This is a serious lacuna in the procedure adopted by the D.P.C. inasmuch as larger number of vacancies entails larger consideration zone which in turn involved more cases of supersession as the suitability of candidates for promotion depend on the grading of their performance. Violation of the prescribed procedure has, therefore, vitiated the deliberation of the D.P.C. of February 1981 and has rendered its recommendation ab initio void. The order bearing No. 17/2/81-Estt. dtd. 7.12.1981 based on the recommendation of D.P.C. is therefore quashed.
Similarly, in the case of Basava Sindivele v. Union of India and Ors., ATR 1987 (2) CAT 275=1988(1) SLJ 335 (Madras) (SN) (CAT)., a similar view has been expressed by the Madras Bench wherein, inter alia, it has been observed:
"When this matter was heard, the learned Counsel for the applicant stated that when the D.P.C. met on 10.10.1984, there were 5 vacancies one of which was a regular vacancy which arose in 1983 and the remaining four vacancies were officiating vacancies which arose as follows:
1 vacancy in 1977 1 vacancy in 1980 2 offg. vacancies in 1982 According to the learned Counsel of the applicant, all the vacancies were bunched together and considered by the D.P.C. in 1984. Such a consideration was in violation of the O.M. dated 24.12.1980 issued by the Ministry of Home Affairs which is binding on the first five respondents in this case. According to that, the Departmental Promotion Committee should meet at regular intervals for the preparation of a select list and where no such meeting is held in any year, the Appointing Authority should record a certificate that there were no vacancies to be filled during the year. When the Departmental Promotion Committee, for reasons beyond control, is not able to meet over a long period, the first D.P.C. that meets thereafter should follow a procedure as prescribed in the O.M. dated 24.12.1980. The procedure stipulates that there should be no bunching of vacancies of different years for consideration by the D.P.C. separately. Each year's vacancies should be considered separately. The zone of consideration should be with reference to the vacancies of that year."
In the case of Smt. Asha Rani Kalra and Ors. v. Union of India and Ors., O.A. No. 622/ 1996 decided on 21st January, 2000 to which one of us (Ashok Agarwal, J.) was a party, by relying on the aforesaid O.M. dt. 24.12.1980 & the aforesaid decisions of the Tribunal, directions have been issued to hold separate review departmental promotion committees for vacancies in different years.
10. In our judgment if one has regard to the aforesaid office memorandum as also the decisions of the Supreme Court and this Tribunal an inference is irresistible that the procedure adopted by respondent no. 2 for preparing the impugned panel filling up the vacancies which have arisen in the years 1993, 1994 and 1995 is defective. The same is, liable to be quashed and set aside or in any event is required to be modified.
11. As far as the impugned selection is concerned, we find the same can well be treated as a valid selection for the vacancies arisen in 1993. The only defect that can possibly be pointed out is the consideration of more than three times the number of vacancies. Whereas 15 candidates should have been considered in the zone of consideration, as many 51 candidates have been considered. That in our view should not invalidate the selection. All that will now be required to be done in respect of panel already prepared is to reduce the number of candidates in that panel according to their inter se merit from 17 to 5 and proceed to issue orders of promotion.
12. As far as the applicants are concerned, they had been promoted on adhoc basis. They have now been considered ineligible in the aforesaid selections made way back in 1996. They have managed to obtain an order of interim stay on 26th December, 1996 in the present OA. In the circumstances they have managed to continue to function as Chief Booking Clerks on adhoc basis. If a fresh selection is directed to be held for the year 1993 the same would enable the applicants to continue on the promotional post on adhoc basis, though they have been found ineligible in the selections held in 1996. The same would deprive the candidates who have been duly selected for being promoted to the vacancies arisen in 1993. In the circumstance, we do not find if proper to direct a fresh selection to be once again held for the purpose of filling up the vacancies which have arisen in the year 1993. We, however, direct respondent no. 2 to hold a selection/review DPC for the purpose of filling up the vacancies arisen in 1994 and 1995 and also for filling up the vacancies which may have arisen thereafter, after following the instructions contained in the aforesaid OM No. 22011/3/76-Estt dated 24th April, 1980 issued by the DP&AR.
13. The present OA succeeds in the afore-stated terms though to no advantage to the applicants. No order as to costs.