Central Administrative Tribunal - Delhi
J.R. Chobdar vs Union Of India on 6 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1198/2010 New Delhi this the 6th day of January, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) J.R. Chobdar, S/o Late Shri Mohan Lal Chobdar, R/o Rawata Wali Dhani, Ward No.2, Post Office Newal Garh, Distt. Jhunjunu, Rajasthan. Applicant (By Advocate Mr.S.K.Gupta ) VERSUS 1. Union of India, Through its Chief Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. 2. The Director General, Border Security Force, CGO Complex, Block No. 10, New Delhi. 3. Director (Account), Pay & Account Division, BSF, Pushpa Bhawan, New Delhi. 4. Shri P.B.Mishra, C-501, Chitrakoot Apartment, Plot No. 9, Sector-22, Dwarka, New Delhi. Respondents (By Advocates Mr. A.K.Bhardwaj for Respondents 1 to 3 and Shri Yogesh Sharma for respondent No. 4 ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
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The Applicant is aggrieved by orders dated 08.07.2009 and 17.08.2009 passed by the second Respondent, Directorate General Border Security Force. By order dated 08.07.2009 the second Respondent has decided, in compliance of the direction of this Tribunal in OA number 560/2007, to fix the seniority of the fourth Respondent herein, Shri P B Misra, in the cadre of PAD in the grade of JAO from the date he was holding the post of Assistant Superintendent. By order dated 17.08.2009 the seniority of the fourth Respondent was fixed in the rank of JAO in the PAD of the BSF as on 01.08.1979, below one Shri Chitramani and above Shri J N Chobdar, the Applicant herein. Since the above action was taken by the Respondents in compliance of the directions contained in the judgement dated 18.07.2008 in OA number 560/2007, in which the Applicant herein was not a party, prayer has been made to reconsider the judgement in OA number 560/2007 and set aside the impugned orders dated 08.07.2009 and 17.08.2009. It is further prayed that the Applicant may be promoted to the post of Assistant Director (Account) from the same date from which the fourth Respondent was promoted in compliance with the directions of this Tribunal.
2. The Applicant retired on superannuation on 31.03.2007 from the post of Assistant Director (Accounts), a civil post in the BSF. He had earlier been appointed as an Auditor in the BSF by direct recruitment and joined in that post on 26.07.1972. He was promoted as Junior Accounts Officer by an order dated 30.08.1980. By an order dated 27.03.1980, placed at Annex A-7, the post of Superintendent was redesignated as Junior Accounts Officer.
3. The thrust of the argument on behalf of the Applicant is that the Directorate General Border Security Force Recruitment Rules, 1974 (Annex A-5) have completely been overlooked by this Tribunal, while considering the plea of the fourth Respondent in OA number 560/2007. The learned counsel submitted that in the 11th column of the schedule to the aforesaid Recruitment Rules, it has been provided that promotion to the post of the Superintendent would be from the cadre of Assistant Superintendent with five years service in the grade. He would contend that since the post of Superintendent had been made equivalent to the post of Junior Accounts Officer (JAO), the fourth Respondent could not have been promoted to the above said post from the date he was appointed to the grade of Assistant Superintendent.
4. Before we may consider the above arguments of the learned counsel, it would be useful to make an advertence to the judgement dated 18.07.2008 in OA number 560/2007. The OA had been filed by Shri PB Mishra, the fourth Respondent in the instant OA, challenging the order dated 09.01.2007 by which his representation for fixing inter-se seniority in the Pay and Accounts Division (PAD) had been rejected. It was noted in the order dated 18.07.2008 that the fourth respondent joined the BSF as LDC in 1966. He was promoted as UDC in 1972 and posted to the cash section in the headquarters of the BSF for accounts work. In June 1970, post of Assistant Superintendent and one post of Auditor was created in the PAD of BSF for work pertaining to the Electronic Data Processing (EDP) Cell. The fourth Respondent was appointed to the post of Auditor on 28.02.1974 and to the post of Assistant Superintendent on 01.08.1979. When the Government of India revised the scales of pay and designations of the EDP staff by an order dated 11.09.1989, the fourth Respondent along with other staff approached this Tribunal in OA number 2158/1993 for seeking the benefit of the above order. Directions were given by the Tribunal in its judgement dated 16.07.1999 to review the designations, pay scales and qualifications for recruitment for the posts held by the applicants in OA number 2158/1993 in EDP Centre at the headquarters of BSF. A Contempt Petition number 179/2000 came to be filed, when the directions were not implemented. The Contempt Petition was closed following the directions of the Ministry of Home Affairs to the BSF for transferring the posts of Auditor and Assistant Superintendent to the PAD of BSF. The fourth Respondent was accordingly transferred to the Pay and Accounts Division (PAD) of the BSF by order dated 10.09.2001. Directions were also given by the same order that the inter-se seniority of the fourth Respondent should be fixed in the PAD and consequential benefits should be given. When the fourth Respondent was not given the consequential benefits he filed a Miscellaneous Application number 2860/2004 for the implementation of the directions in OA number 2158/1993. Meanwhile, an order dated 10.09.2001 (Annex A-11) was issued by the Director General, BSF, which has been reproduced in full below:
DIRECTORATE GENERAL BORDER SECURITY FORCE (STAFF SECTION) Subject:- RE-DESIGNATION OF EDP POSTS Comdt (EDP) may refer to Staff Section Order No: 20023/166/77-STAFF/BSF/959-80 DATED 22.1.2001, 20023/166/77-STAFF/BSF/2436-40 dated 28.2.2001 and UO No.:20023/166/77/STAFF/BSF/8538-39 dated 26.6.2001.
2. In this context, I am directed to say that the concerned EDP staff have again filed a Misc. Application in the Honble CAT, Principal Bench, New Delhi which is sub judice. The matter came up for hearing on 5.9.2001 and after hearing argument of both the side, the Honble Court has taken a serious view for non-implementation of the Court orders by the department. The Honble CAT has further directed the deptt. to implement the Court orders immediately. The next date of final hearing of the case has been fixed on 18.9.2001. The Honble CAT has asked a final report in this issue during the next hearing.
3. In view of the above, I am further directed to request you to relieve the following personnel who were treated to have opted for going out side the cadre of EDP and stand posted to PAD BSF vide this office orders quoted above and a compliance report may be sent to this office by 12.9.2001 repeat 12.9.2001 for information of the Honble CAT and to avoid any adverse remarks from the Court:-
Shri Kirori Mal, Asstt. Supdt.
Smt. Kamlesh Malhotra, Auditor
) Smt. Meena Mittal, Auditor
(d) Shri Inder Singh, Auditor
(e) Smt. Sudha Singh, Auditor
4. This may be given Top Priority
Sd/-
(DK Pandey)
10/9/01
COMMANDANT (STAFF)
COMDT (EDP)
DG BSF No. 20023/166/77-STAFF/BSF/VOL-II/139984-97
Copy to:-
Director (Accounts) - He is requested to fix the
PAD BSF inter-se-seniority of above
personnel in PAD viz-a-viz in
their respective grades as
under and consequential
benefits may be given to
them immediately:-
Asstt Supdt- Jr. Accounts
Officer
Auditor - Sr Accountant
- The inter-se-seniority in respect of following personnel who have since retired and presently on deputation to NSG may also be fixed in PAD BSF viz-a-viz in their respective grades and consequential benefits may also be given to them immediately.
(a) Smt. Neelam Bhatnagar - Retired w.e.f.
Auditor 1.12.2000
(b) Shri K.K.Sharma - On deputation to
Auditor NSG.
On the basis of the above quoted order, the Miscellaneous Applications in OA number 2158/93 were disposed of thus:MA 1128/2000 MA 2860/2000
MA-1481/2001 OA 2158/93 Present: Shri Yogesh Sharma, counsel for applicant.
Shri Madhav Panikar, counsel for Respondent Heard both sides In the light of the Respondents order dated 10.9.2001 (copy of which is taken on record), the MA No. 1128/2009 is disposed of with a direction to respondents to ensure that the consequential benefits flowing from their order dt. 10.9.2001 are made available to applicants within six weeks from the date of receipt of a copy of this order, with particular reference to re-fixation of seniority in respective grades.
MA is disposed of accordingly. After noting the above facts and considering the arguments of the respondents therein, OA number 560/2007 was decided in the following terms:
11. The Applicant has been working in the Accounts before moving to EDP Cell. The posts of Auditor and Assistant Superintendent in the EDP Cell were also created by the PAD. He was working as Assistant Superintendent in the EDP Cell. It was only the Government in the Ministry of Finance and the MHA, which decided that the posts of Auditor and Assistant Superintendent did not fall in the category of EDP posts. It was entirely the decision of Government conveyed to the DG, BSF by letter dated 23.06.2000 that the posts of Auditor and Assistant Superintendent should be treated as part of the PAD, BSF headquarters. Clear instructions had been given by the DG, BSF (Staff Section) to the Director (Accounts) to fix the inter-se-seniority of the Applicant in the PAD, BSF. Further clear instructions were given by order of the same date that Assistant Superintendent was to be treated as JAO. A commitment was given to this Tribunal by the compliance affidavit dated 27.06.2000, adverted to above, that all consequential benefits as a result of the order dated 23.06.2000 are being worked out. It is, therefore, difficult to understand how the Respondents can renege on their commitment made to the Applicant and to this Tribunal. The argument that the Applicant has not passed various examinations for coming to the post of JAO is not acceptable because he came as JAO before such provision was made in the recruitment rules. The Respondents have produced a copy of the recruitment rules notified on 3.12.2001, which has been taken on record. Since the Applicant was directed to be equated with JAO by order dated 10.09.2001, whereas the recruitment rules are dated 3.12.2001, the argument of the Respondents falls. The reasoning given in the impugned order that the PAD and EDP Cell are two different Directorates under DG, BSF and governed by the different recruitment rules for the posts in both the Directorates for rejecting the representations of the Applicant also cannot be accepted. This has been reiterated in paragraph 2 of the counter affidavit also. At the cost of repetition, it is reiterated that it was not the Applicant who by some sleight of hand moved into PAD from the EDP Cell of DG, BSF. This is a result of decision taken by the Ministry of Finance, MHA and NIC. This decision has been accepted by the BSF. There cannot be any going back on a decision already taken and a commitment already made to the Applicant and to the Tribunal. (emphasis supplied)
5. The question put to the learned counsel for the Applicant was that while the post of Superintendent was redesignated as Junior Accounts Officer (JAO) by order dated 27.03.1980 (Annex A-7), which was an executive order, the post of the Assistant Superintendent was also equated to the post of JAO, by another later executive order dated 10.09.2001 (Annex A-11). The learned counsel for the Applicant would contend that the later order dated 10.09.2001 was issued by an incompetent authority. However, there are no averments in this regard in the OA.
6. The learned counsel for the official Respondents would contend that the judgement in the OA number 560/2007 was founded on the note dated 10.09.2001. He would contend that the Respondents had decided to treat the fourth Respondent and others like him to belong to PAD of the BSF but separately from the regular incumbents. In this context advertence has been made to the order dated 10.09.2001, which has been reproduced below:
NO : 20023/166/77-STAFF/BSF/VOL-II/137175-95 Government of India Ministry of Home Affairs Directorate General Border Security Force (STAFF SECTION) Block No: 10, CGO Complex Lodhi Road, New Delhi-03 Dated, the 10 Sept 2001.
O R D E R In continuation to this Office Order No: 20023/166/77-STAFF/BSF/959-80 dated 22.1.2001 and 20023/166/77-STAFF/BSF/2436-40 dated 28.2.2001, as per MHA letter NO: 20023/166/77-STAFF/BSF/PF-1 dated 23.6.2001 the posts of Auditor and Asstt Supdt do not fall under the category of EDP posts and these posts are to be treated as part of the Pay and Accounts Division of BSF HQrs, MHA letter ibid further contains that the Officers of EDP Cell who have been promoted to these posts may be treated to have opted for going outside cadre of EDP to avail of better promotional avenues.
2. Shri P.B.Mishra, Programme Asstt (Now on deputation to Cabinet Sectt) was holding the post of Asstt Supdt and Shri D.P.Sharma presently holding the post of Programme Asstt was holding the post of Auditor respectively on 11.9.89. As per MHA letter quoted above, these posts are treated as non-EDP posts. Therefore, Shri P B Mishra, Programme Asstt (Presently on deputation to Cabinet Sectt) and Shri D P Sharma, Programme Asstt are also treated to have opted for going outside the cadre of EDP w.e.f. 11.9.89 and posted to PAD BSF.
3. Shri D.P.Sharma, Programme Asstt be relieved to report to PAD BSF immediately and compliance report be sent to this office by 12.9.2001 positively. Shri P B Mishra will also report to PAD BSF after his repatriation from deputation. He would contend that the present anomaly pointed out by the learned counsel for the Applicant has arisen because of the directions given in the OA number 560/2007. He pleaded that in the light of this the judgement in the OA number 560/2007 could be reconsidered and two lists for the same post could continue. However, no such arguments had been advanced during the submission by the counsel for the respondents in OA number 560/2007. The only argument opposing the cause of the fourth Respondent (who was applicant in OA number 560/2007) was that he had not passed various examinations required for the post of JAO. This was rejected in the above judgement on the ground that there was no requirement of passing various examinations, as pointed out by the respondents, at the time the fourth Respondent came to be designated as JAO. No other argument was pressed by the respondents in the aforesaid OA. It may further be mentioned that the Respondents have already complied with the directions given in the OA number 560/2007.
7. The learned counsel for the fourth Respondent pointed out that there was no mention of the post of Assistant Superintendent in the order dated 27.03.1980 whereby non-gazetted posts in PAD were redesignated. The posts of Superintendent, Auditor, UDC and LDC only were mentioned. The post of Assistant Superintendent was redesignated as JAO by order dated 10.09.2001. The learned counsel would contend that the Applicant was posted in PAD at that time and was dealing with the matters concerning the litigation by the fourth Respondent and other persons. He has placed on record several contemporaneous records demonstrating that the Applicant was working as Assistant Director (Accounts) in the years 2002 and 2003. Memorandum dated 09.01.2002 has been placed as Annex R-I, which is addressed by the Commandant (Staff) addressed to the Applicant about implementation of the directions of the Tribunal in OA number 2158 of 1993. The letter dated 18.12.2001, Annex R-II, from the Applicant to Commandant, on the same subject has also been placed on record. There is a letter dated 08.04.2003 from the Applicant addressed to the fourth Respondent on the same subject, which is placed at Annex R-III. Other correspondence on the same subject from the Applicant has been placed at Annexes R-IV and R-V. The argument of the learned counsel for the fourth Respondent is that the Applicant was aware of the directions, equating the post of Assistant Superintendent to JAO, issued by communication dated 10.09.2001, yet he did not challenge the same before the proper forum at that time, although he would have known of its consequences also. It was argued that in view of this the Applicant could not now mount a challenge to the seniority of the fourth Respondent.
8. We have given our utmost consideration to the arguments of the learned counsel for the parties.
9. The judgement in the OA number 560/2007 is, as has been conceded by the Applicant and the Respondents, founded on the communication dated 10.09.2001, whereby the post of Assistant Superintendent has been redesignated as JAO. There was no challenge to this communication. Even in the instant OA, the same has not been challenged. The Applicant himself has annexed the same with the OA. Although the learned counsel for the Applicant challenged the validity of the order during the course of arguments on the ground that it was issued by an incompetent authority, yet there is no pleading to this effect in the OA. In fact the benefit of the above communication had been given to the fourth Respondent by another order of the same date, placed at Annex A-10, which has already been quoted above. We cannot accept the argument of the learned counsel for the official Respondents that the fourth Respondent and others similarly situated like him had been given the benefit of the judgement in OA number 2158 of 1993, but they were placed in a parallel list without disturbing the seniority list. Such an arrangement does not have the sanction of rules. There cannot be such a parallel seniority list in existence in the same cadre for the same post. That is why the fourth Respondent had approached this Tribunal in OA number 560 of 2007 for giving him his due seniority. The prayer of the fourth Respondent in the aforesaid OA had been accepted and the direction of the Tribunal was implemented by the official Respondents. The Applicant has not challenged the order dated 10.09.2001 and thereby has forfeited his right to challenge the seniority of the fourth Respondent at this stage.
10. In the light of the above discussion the OA is dismissed as being bereft of any merit. There will be no orders as to costs.
( L.K.Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/