Central Administrative Tribunal - Delhi
S.N. Singh S/O Late Sh. R.N. Singh vs Union Of India & Others Through on 24 December, 2014
Central Administrative Tribunal Principal Bench RA No.67/2013 In OA No.3712/2011 Reserved on: 17.07.2014 Pronounced on: 24.12.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) S.N. Singh s/o Late Sh. R.N. Singh R/o C-11, 1st Floor, Sector -52, NOIDA. Review Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India & Others through 1. The Secretary, Ministry of Defence, South Block, New Delhi. 2. UPSC through Secretary, Shahjahan Road, New Delhi. 3. Joint Secretary (Training) & Chief Administrative Officer, Ministry of Defence, E-Block, New Delhi. Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
The instant Review Application has been filed against the Tribunals order dated 09.10.2012 passed in OA No. 3712/2011.
2. In the OA, the review applicant, a retired Principal Director of AFHQ Civil Service, had claimed promotion to the post of Director from the year 2006-07 and to the post of Principal Director from the year 2009-10 along with consequential benefits. The said OA was dismissed by this Tribunal vide its order dated 09.10.2012 holding that the applicant had failed to make out a case for giving any direction to the respondents to consider his case in review DPC for granting notional promotion to the posts of Director and Principal Director.
3. The applicant submits that it has been incorrectly recorded in the impugned order that the vacancy released by DGAQA was manned by a Director level officer and, therefore, there could not have been any occasion to fill up the said vacancy from the feeder category. To the contrary, the correct position was that all posts available including that of DGAQA were being manned by Director level officers in the absence of regular panel. Therefore, manning a post by ad hoc arrangement did not preclude the post being filled on regular basis. It is further submitted that it was also incorrectly recorded that the applicants case for pay fixation based on examples of CSS was dissimilar as admitted by the respondents in paragraphs 4.26 and 4.27 in their counter reply filed in the OA, and that once these facts were admitted by the respondents, the Tribunal was required to examine the same, however, the Tribunal has incorrectly held that the applicant was seeking notional promotion to the posts of Director and Principal Director. On the other hand, the applicant had sought for review of DPC for the year 2006-07 for his regular promotion to the post of Director, as one vacancy had been left unmanned and the same was required to be filled up by holding review DPC, as considered by the Honble High Court of Delhi in the case of Dr. Sehdev Singh versus Union of India [WP(C) No.5549/2007]. It is further submitted that the Tribunal fell in error by not considering the fact that the post of Director was released by DGAQA to be manned by Director level officer of AFHQCS for a period of 3 years w.e.f. December, 2006, and, therefore, the applicant was entitled to the relief prayed for in the OA. It was also ignored that the vacancy of DGAQA was in existence on the date of holding of DPC i.e. 08.05.2007 and erroneously not taking the vacancy released by DGAQA for a period of 3 years and 2 months was an arbitrary act. The review applicant has also relied upon the decision in the case of Union of India & Others versus K.K. Vadera & Others [1989 (supp.2) SCC 625] and Baij Nath Sharma versus Honble Rajasthan High Court at Jodhpur [1988 SCC (L&S) 1754].
4. It appears that against our order dated 09.10.2012, the applicant filed WP(C) No.492/2013 before the Honble High Court of Delhi, which was allowed to be withdrawn vide order dated 29.01.2013, which led to filing of the instant review application before this Tribunal.
5. Separate counter affidavits have been filed on behalf of respondent nos. 1 & 3 and respondent no.2. The respondent nos. 1 & 3 in their counter affidavit submit that the review applicant has attempted to re-agitate and re-argue the issues afresh which has already been considered by the Tribunal vide its order dated 09.10.2012. The power of the Tribunal in exercise of its review jurisdiction is confined to such cases only where an error is plain and apparent on the face of the order and the Tribunal cannot re-examine the issue, as held in Subhash versus State of Maharashtra & Another [2002 (4) SCT 608 (SC)]. The case of the respondent nos. 1 & 3 is that the applicant joined the AFHQCS as a direct recruit Assistant Civilian Staff Officer (ACSO) Group B gazetted post on 01.07.1976 and retired on superannuation as Principal Director w.e.f. 31.01.2012 on attaining the age of 60 years. As per Schedule-III of the AFHQ Civil Service Rules, 1968, 75% of the substantive vacancies in the grade of ACSO (now SO) are to be filled in the order of seniority of temporary officers of the grade who have completed the period of probation satisfactorily subject to rejection of unfit. The remaining 25% of the substantive vacancies are to be filled by direct recruits. There were two modes of appointment in the grade i.e. departmental promotion (DP) and direct recruits (DR). There was a spate of court cases on the issue of inter se seniority amongst promotes and direct recruits. The Honble Supreme Court passed an interim order for maintenance of the status quo in SLP Nos.4545 & 5853 of 2007. The Law Ministry on this account advised not to undertake any promotions in any grade viz. SO and above upto PD. This status quo ceased to be in operation with the issue of final orders in the afore SLPs by the Honble Supreme Court on 19.02.2008. The respondent nos. 1 & 3 have further submitted that regular DPCs for promotion from the grade of Joint Director to that of Director was held in the UPSC for 4 years i.e. 2004-05, 2005-06, 2006-07 and 2007-08 on 08.05.2007. In this DPC only 2 vacancies were reported for being considered in the year 2006-07. The applicant was not assessed in the DPC as sufficient number of officers with prescribed benchmark had been assessed fit for empanelment. However, the applicant was assessed fit for empanelment in the DPC for the year 2007-08 and was accordingly promoted to the grade of Director on regular basis. The respondent nos. 1 & 3 have further submitted that under the DOP&T instructions, the number of vacancies in respect of which a panel to be drawn by the DPC should be estimated as accurately as possible. However, AFHQCS may man the post released by the department on temporary basis. When DPC proposals had been considered by the UPSC, proper sanction of the government was there. In the instant case, the services of an AFHQ Director were sought purely on temporary basis against the post of Director (Admn.) authorized in the PE of DGAQA subject to availability of a deputationist. The post of Director temporarily released by the DGAQA was manned by Dr. Sudhir Naib. Subsequently, said Sudhir Naib was empanelled in the year 2007-08 for promotion to the post of Director by the regular DPC held on 08.05.2007. Dr. Sudhir Naib was not empanelled against the DGAQA vacancy in question. The details of all duty posts in grade of Director being filled up on promotion from Joint Director have been in Schedule-III of AFHQ Civil Service Rules, 2001. Any claim outside this provision has to be backed by specific Government approval. The respondent nos. 1 & 3 have further submitted that there was no delay in empanelling the applicant in the grade of Director as the DPC was held on 08.05.2007 whereby the applicant was empanelled in the year 2007-08 for promotion to the grade of Director. The respondent nos. 1 & 3 have further submitted that respondent no.3 had submitted a review DPC proposal for the yerars 2006-07, 2007-08, 2008-09 and 2009-10 to the UPSC taking into account one disputed vacancy of DGAQA on 10.02.2009. However, the respondent no.2 had sought certain clarifications which the department could not provide. The respondent no.3 had not included the vacancy temporarily released by DGAQA at the time of projecting regular DPC proposal to UPSC on 04.01.2007 due to non-availability of formal order/confirmation from the DGAQA. Formal order relating to the release of one post had been received from the DRDO, Ministry of Defence to adjust the review applicant for his continuance till the project under which he had been engaged for the past one year. The respondent nos. 1 & 3 further submitted that prior to release of the said post, the review applicant was on deputation with the DRDO. However, the confirmation letter was issued on 15.04.2009 conditionally stating that the post would not be available in AFHQCS beyond 28.02.2010 till the retirement of the incumbent namely Dr. Sudhir Naib. This was not accepted by the UPSC as Dr. Sudhir Naib had already been recommended for regular promotion in the grade of Director against the vacancy year 2007-08, as stated earlier.
6. The respondent no.2 has also filed a counter affidavit reiterating that a DPC was held on 08.05.2007 against vacancies numbering 01, 02, 02 and 03 for the years 2004-05, 2005-06, 2006-07 & 2007-08 respectively. The name of the applicant was recommended for promotion at serial no. 1 in the panel for the year 2007-08. Subsequently, a proposal for review DPC was submitted by the Department on the ground that one post of Director, DGAQA was released to AFHQCS in December, 2006. However, as no intimation was available with regard to availability of that post to AFHQCS on long term basis, it was not reported to the UPSC by the Department at the time of drawing original panel for 2006-07. A certain additional information had been called for which could not be provided by the Department. A review-cum-regular DPC was held on 10.01.2011 for promotion to the grade of Principal Director (SAG) in the AFHQCS under the Ministry of Defence for the vacancy years 1993-94, 2002-03, 2007-08 and 2008-09. The applicant was considered and assessed as fit for promotion and recommended for promotion to the grade of Principal Director (SAG) for the panel year 2010-11. In this DPC, the Ministry vide their letter dated 09.09.2010 had proposed for relaxation of eligibility criteria of qualifying service of three years by one year as on 01.01.2009 for the vacancy year 2009-10 in respect of the applicant, one Smt. Anjula Naib (Retd.) and Sh. Sudhir Naib (Retd.). Since the guiding principle for relaxation was for a class or category of persons and not for individual officer, relaxation could not be granted. This proposal was based on pre-revised seniority list of Director and not on the revised seniority list which had been drawn strictly on the basis of the directives of the Honble Supreme Court contained in its judgment dated 19.02.2008. The DPC further found that since two of the persons namely Anjula Naib and Dr. Sudhir Naib had already retired, the relaxation was in favour of one individual (applicant) ignoring the claim of other similarly placed persons. The respondent no.2 submits that there is no merit in the review application and the same should be dismissed.
7. The applicant has submitted a rejoinder application wherein the earlier position has been reiterated. The applicant, however, contends that the RTI replies reveal that a decision was taken not to take three vacancies and to ignore the vacancy released by DGAQA. The respondent no.2 had replied that no notes on file regarding such a decision were available in the file (Annexure A-14 page 44 of the OA). This important revelation has been completely ignored which has led to a factual error.
8. The only issue to be considered in this RA is that whether the Tribunals order dated 09.10.2012 passed in OA No.3712/2011 is hit by factual error as alleged by the applicant in the review application and discussed while dealing with the case of the applicant and is, therefore, liable to be put for re-hearing?
9. We must, at the very beginning, emphasize that the scope of review is very limited. It is not to be re-hearing in disguise of a review. In this regard, the issue has been comprehensively dealt with by the Honble Supreme Court in the case of State of West Bengal and Others versus Kamal Sengupta and Another [2008 (8) SCC 612], operative part whereof is extracted as under:-
35. The principles which can be culled out from the above noted judgments are :
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.
10. Having stated so, we take up the case of the review applicant. It is seen that the applicant had argued his case in person before the Tribunal in OA No.3712/2011. The basic issue was that there were three vacancies in the grade of Director during the year 2006-07. One vacancy of Director had been released by the DRDO for a period of one year, another by DGAQA for a period of three years w.e.f. 2006-07 and the third vacancy became available due to retirement of a Director level officer. The crux of the matter had been that while preparing the panel for the post of Director for the year 2006, two vacancies arisen from retirement of an officer and the other one released by DRDO Headquarters had been taken into account but the vacancy released by DGAQA had been ignored consequent to which a panel of only two officers was prepared against three vacancies. The applicant was claimant for that vacancy.
11. Admittedly, the applicant belongs to the AFHQCS which is governed by Armed Force Civil Service Rules, 2001. According to Rule 3 of these Rules, AFHQCS comprises the following hierarchy:-
(a) Senior Administrative Grade.
(b) Director (c) Senior Civilian Staff Officer/Joint Director (d) Civilian Staff Officer. (e) Assistant Civilian Staff Officer. (f) Assistant.
Rule 8 of the Rules provides for filling up of duty post on deputation. For the sake of greater clarity, the same is extracted hereunder:-
Filling of Duty posts by deputation:
Notwithstanding anything contained in rule 7, where the Government is of the opinion that it is necessary or expedient so to do, it may for reasons to be recorded in writing and in consultation with the Commission, fill a duty post in any grade by deputation for a period of three years, which can be extended in special circumstances up to file years. The qualification, experience and the eligibility service for appointment to any grade of the service under these rule shall be decided by the Government in consultation with the Commission on each occasion. Rule 4 of the Rules deals with the authorized strength of the service and its review, sub-rule (2) of which reads as under:-
(2) Notwithstanding anything contained in sub-rule (1), the Government may:
(a) From time to time make temporary additions or alterations to the duty posts in various grades of the Service.
(b) In consultation with the Commission include in the Service such posts of the Armed Forces Headquarters and Inter Service Organizations as can be deemed to be equivalent to the posts included in the service in status, grade, pay scale and professional content or exclude from the Service a duty post already included in the Service; and
(c) In consultation with the Commission, appoint an officer to a duty post included in the Service under clause (b) to the appropriate grade in a temporary capacity or in a substantive capacity and fix his seniority in the grade after taking into account continuous regular service in the analogous grade. Authorized strength of the various Grades of the Armed Forces Headquarters Civil Service has been provided in Schedule-I of the Rules, which reads as under:-
Grade with Pay Scale Authorized Strength
(i) Senior Administrative Grade 2 (Rs.18400-500-22400)
(ii) Director 9 (Rs.14300-400-18300)
(iii) Senior Civilian Staff Officer/ 72 Joint Director (Rs.12000-375-16500)
(iv) Civilian Staff Officer 253 (Rs.1000-325-15200)
(v) Assistant Civilian Staff Officer 683 (Rs.6500-200-10500)
(vi) Assistant 1709 (including (Rs.5500-175-9000) leave Reserve) Rule 1(3) of the Rules provides as under:-
3. Application: These rules shall apply to the persons holding the posts in any of the grades specified in Schedule-I in Armed Forces Headquarters or Inter Service Organizations as shown in Schedule-II. Directorate of Technical Development and Production (Air) [DGAQA] has been excluded as per entry 10 of Schedule-II in respect of Inter Service Organization of the Ministry of Defence.
12. We find from the order that the issues raised by the review applicant as well as in the counter replies of the respondents have been encompassed within the order. However, it is important to note that a large number of points are raised by the contending parties. While writing the order, it is not possible to deal with each of those points individually as the same would add unnecessarily to the bulk of the order without contributing anything to its pith and thereby making the order voluminous, verbose and confusing. We find that order dated 09.10.2012 in OA No.3712/2011 has covered series of judgments which include Union of India versus Rajendra Roy [WP(C) No.20812/2005 decided on 12.01.2007], Union of India and Others versus K.K. Vadera and Others [1989 Supp (2) SCC 625], Baij Nath Sharma versus Honble Rajasthan High Court at Jodhpur and Anr.[1988 SCC (L&S) 1754], State of Uttranchal versus Dinesh Kumar Sharma [2007 (1) SCC 683], Nirmal Chandra Sinha versus Union of India [2008 (14) SCC 29] and AFHQ/ISOs SOs (DP) Association and Others versus Union of India and Others [CA No.1384/2008 and CA No.1385/2008]. The order culls out the key principles from these judgments, which read as follows:-
18. From the above cited judgments, the following key principles emerge:-
(i) There is no rule that promotion should be given from the date of creation of the promotional post or from the date of vacancy.
(ii) If promotion is effected prospectively from the date of issue of the order of promotion, retired employees prior to such date would not be eligible for promotion retrospectively. Even if retired employees are in the Select List or Panel for promotion, they cannot be given retrospective promotion when the promotion is prospective.
(iii) If promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired employee has been found fit by the DPC and is available in the Panel or Select List, such retired employee would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted. Applying these basic principles to the touchstone, the order under review notes in paragraphs 19 & 21, which read as under:-
19. We have tested the facts of the present Original Application on the touchstone of the above principles laid by the Honble Supreme Court and High Court. Admittedly, the applicants juniors were not promoted to the level of Director and Principal Director before the applicant was promoted. The post of Director which was transferred from DGAQA was in the fag end of 2006 and was held by an officer in the rank of Director of AFHQ Civil Service with effect from January, 2007. The selection process for drawing up the Panel for the year 2006-07 for the post of Director had already commenced prior to December, 2006. Thus, the stand taken by UPSC is fairly reasonable and rational.
xxx xxx xxx
21. It is noted that pursuant to the directions of Honble Supreme Court in AHQ Officers Association and Others case (supra), the review DPC has been held for both Director and Principal Director post as the revision of seniority was undertaken in the feeder category due to the directions of Honble Supreme Court. Even in the Review DPC, it is noticed that the applicant could be considered for promotion to the post of Director for the Panel year 2007-08 and for the post of Principal Director for the year 2010-11. The reasons indicated by the UPSC for not taking the DGAQA post of Director released to AFHQ Civil Service are tenable since AFHQ Civil Service Officer in the rank of Director was holding the post right from January, 2007 when the Director post was released by DGAQA in December, 2006. It must be noted that even within few days of the transfer of the post, a Director level person was manning the said post. Thus, there could not have been any opportunity to fill up the said vacancy for promotion from the feeder category. Thus, the applicants contention that he should have been considered for the post of Director in the year 2006-07 is not sustainable.
13. The claim of the applicant for promotion to the post of Principal Director for the year 2009-10 has been dealt with in paragraph 22 of the order of the Tribunal under review, relevant portion of which is reproduced below:-
22The UPSC noted that Shri S.N. Singh, the applicant was the only person available for consideration as the other two officers had retired by the time the Review DPC met. Therefore, it was noted by the UPSC that relaxation should not be granted for an individual but should be granted for a class or a category of persons. It is also seen that 13 more officers in the grade of Director were short of qualifying service of one year as on 1.1.2009 but their names were not proposed by the Ministry for relaxation and all these officers were included in the same select list for the year 2007-08 for Director post along with the applicant and subsequently these officers were eligible for consideration for promotion to the grade of Principal Director for the year 2010-11. Hence, the stand taken by the UPSC for not granting relaxation of period of qualifying service for an individual namely the applicant is procedurally correct and legally sustainable. There is no legal or procedural infirmity in the process of promotion.
14. Drawing from the principles of review, earlier stated, we are of the opinion that the purpose of the review application is not to have a re-hearing by proxy or to improve upon the quality of the order. From the points discussed above, we find that though the issues might not have been dealt with in a manner or a format which the applicant would have liked but the basic issues have been brought out and discussed cogently on the basis of the past decisions of the Honble Courts. Hence, we find that the order under review suffers with no basic infirmity. The Review application, therefore, fails to sustain and stands dismissed.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/