Central Administrative Tribunal - Delhi
Sachin Johari vs M/O Finance on 31 May, 2024
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Item No. 49/ C-3 OA No.1124/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1124/2015
Reserved on : 16.05.2024
Pronounced on : 31.05.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Sachin Johari, Inspector,
Aged about 36 years,
S./o Satendra Kumar Saxena,
R/o A-161, F/F, Dayanand Colony,
Lajpat Nagar-IV,
New Delhi-110024.
2. ManeeshKalra, Inspector,
Aged about 36 years,
S/o Baldev Chandra,
R/o B-2T, Delhi Police Apartments,
Mayur Vihar, Phase-I,
New Delhi-110091.
3. Harbhajan Singh, Inspector,
Aged about 38 years,
S/o Sh. Bagga Mal,
R/o I-150, Ist Floor,
Opposite Gali No.2 B lock,
Upkar Colony, Burari, Delhi-110 084.
...Applicants
(By Advocate : Shri M.K. Bhardwaj and Shri Harpreet
Singh )
Versus
UOI & Ors. through
1. The Secretary,
Ministry of Finance,
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Item No. 49/ C-3 OA No.1124/2015
North Block, New Delhi.
2. The Chairman,
CBEC, North Block,
New Delhi.
3. The Chief Commissioner of Central Excise,
Delhi zone, CR Building,
IP Estate, New Delhi.
...Respondents
(By Advocate : Shri S.K. Tripathi for Shri Gyanendra
Singh)
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The factual matrix of the case is that the applicants, three in number, participated in the CGLE Examination for the year 2004 and the result was declared in the year 2006 & 2007. Having been declared successful, all the three applicants were allocated three different zones i.e. Coimbatore, Vadodara & Chennai respectively. Thereafter, in order to improve their ranks, the applicants participated in the same examination for the year 2006- 07, result of which was declared in the year 2010. This time the zone allocated to all the three was Delhi. The 3 Item No. 49/ C-3 OA No.1124/2015 applicants had participated in the examination, after applying through proper channel and while joining at Delhi Zone, they were exempted from training. The applicants' technical resignations were also accepted by the respective parent zones when they joined at Delhi. In fact they were given pay protection as well i.e. the applicants' pay was also fixed on account of the last pay drawn from the previous parent zone. The Learned Counsel clarifies that the employer of the applicants initially was Central Board of Excise & Customs (CBEC) which was renamed to Central Board of Indirect Taxes and Customs (CBIC). He states that this change in nomenclature took place after the implementation of GST.
2. In the year 2015, the applicants' seniority was also fixed at an appropriate place in the list of Inspectors for the Delhi Zone. Thereafter, the applicants were to be considered for the post of Superintendent on completion of eight years. However, the applicants were not considered eligible for the same, as on 01.04.2015 the service rendered by them prior to 2010 was not taken into account by the respondents. Learned counsel for the 4 Item No. 49/ C-3 OA No.1124/2015 applicants stated that the respondents have ignored the past services of the applicants in spite of the fact that the employer of the applicants had been the same. Aggrieved by the same, the applicants preferred several representations followed by reminders, which are pending consideration. Accordingly, the applicants have approached this Tribunal by way of the instant OA, seeking the following relief(s) :-
i) To direct the respondents to consider the applicants for promotion to the post of Superintendent, Central Excise with all consequential benefits.
ii) To declare the action of respondents in not including the name of applicants in the eligibility list prepared for promotion to the post of Superintendent Central Excise, as illegal and unjustified and issue appropriate directions to the respondents for treating the applicants eligible for the said post of Superintendent, Central Excise and grant promotion to the applicants with all consequential benefits including arrears of pay.
iii) To direct the respondents to determine the eligibility of the applicants for promotion as Superintendent, Central Excise by taking into account their service rendered as Inspector of Central Excise in parent zone i.e. Coimbatore zone, Cochin zone & Vadodara zone respectively and consider them for promotion for the 5 Item No. 49/ C-3 OA No.1124/2015 aforesaid post of Superintendent, Central Excise as per rules.
iv) To allow the OA with costs.
v) Any other relief's as this Hon'ble Tribunal may deem fit and proper in the facts, and circumstances of the case to meet the ends of justice."
3. While notice was issued by this Court on 25.03.2015, as an interim measure, the Tribunal passed the following directions:
"4. As an interim measure, we direct that DPC should consider the cases of the applicants for promotion to the post in question provisionally on its meeting scheduled to be held on 26.03.2015 or any subsequent date subject to the outcome of this OA."
4. In support of his claim, learned counsel for the applicants drew strength from the judgment of the Hon'ble High in Writ Petition No. 3876/2012 dated 11.12.2017 confirmed by the Hon'ble Apex Court and judgment of the Hon'ble High Court in Writ Petition No. 4447/2013 decided on 03.01.2024. The relevant paragraphs of these judgments are quoted herein below:
6Item No. 49/ C-3 OA No.1124/2015 Writ Petition No. 3876/2012 "1. The petitioner/AIIMS is aggrieved by the judgment dated 31.01.2012 passed by the Central Administrative Tribunal, allowing an Original Application, registered as O.A. No.2009/2011, filed by the respondent in the year 2011. The respondent while working on the post of Assistant Professor (Clinical Psychology) in the petitioner/AIIMS, had filed the aforesaid O.A., being aggrieved by the decision taken by the Institute to the effect that the period of service rendered by her on the same post in the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as 'PGIMER') would not be counted for the purpose of her promotion to the next higher post of Associate Professor in the petitioner/AIIMS.
xxx xxx xxx
13. The Tribunal had allowed the OA of the respondent by relying on its earlier decision in the case of D.K. Mohapatra (supra) as also by referring to OM dated 01.09.1998 issued by the DoP&T, that provides for counting of past service at the time of lateral entry on direct recruitment basis, for promotion to higher grades. It would be appropriate to reproduce O.M. dated 01.09.1998, which reads as follows:
"Subject: Counting of past service at the time of lateral entry on direct recruitment basis for promotion to the higher grades-
The undersigned is directed to say that the 7 Item No. 49/ C-3 OA No.1124/2015 question of counting of previous Group 'A' service to meet the condition of minimum eligibility service prescribed in the Recruitment/Service Rules at the time of lateral entry on the higher grades has been considered by the Government and it has been decided that since all appointments by the method of direct recruitment are in the public interest, the benefit of counting of previous Group 'A' service to meet the condition of minimum eligibility prescribed in the Recruitment / Service Rules at the time of lateral entry on direct recruitment as qualifying service for promotion to the higher grades will be admissible to an employee provided he/she has completed the prescribed eligibility service in the immediate feeder grade. However, the past service will not count for seniority in the new organization, as upheld in the Supreme Court's judgment dated November 19, 1993 in the case of Renu Mullick vs. Union of India (JT 1993 (6) SC 527]."
14. Though Mr. Gupta, learned counsel for the petitioner/AIIMS has vehemently argued that the services rendered by the respondent in the PGIMER cannot be counted for purposes of promotion in the petitioner/AIIMS, but on pointed queries raised by us, he has neither denied the applicability of the O.M. dated 01.09.1998 to the petitioner/AIIMS, nor has he been able to give any satisfactory reply to our query as to how was the respondent given the benefit of the Old Pension Scheme by the Institute. Her appointment having been accepted by AIIMS to be from a date prior to 01.01.2004, we are of the opinion that the respondent cannot be denied the benefit of her service for purposes of promotion. Once it is admitted that employees of both, PGIMER and the petitioner/AIIMS are governed by conditions of service applicable to the Central Government employees, in our view, the respondent would 8 Item No. 49/ C-3 OA No.1124/2015 automatically be entitled to the benefits flowing from the O.M. dated 01.09.1998 and as a sequel thereto, entitled to counting of her period of service in the PGIMER, for purpose of promotion to the post of Associate Professor in the petitioner/AIIMS.
xxx xxx xxx
16. The petitioner/AIIMS is directed to count the period of the respondent's past service from 26.07.2001 to 13.07.2005, in the PGIMER as an Associate Professor, for her promotion to the post of Associate Professor in AIIMS and grant her all consequential benefits including further time bound promotions, if any.
Writ Petition No. 4447/201327. The aforesaid being the position, when we look at the sequence of events, the respondent was already an employee with the CISF working since 1.10.1993 i.e. almost for 6 years and 8 months, the petitioner no. I was in need of a qualified Wrestling Coach and approached CISF for absorption of the respondent on May 7, 1999; the petitioner no. 1 offered the appointment first to the respondent, whereupon the respondent tendered the "Technical" resignation, it is observed that it was not a case of fresh appointment. The petitioners consciously offered the appointment by using the words "absorption basis" and so was the response of Director General CISF, on "absorption basis". Secondly, the resignation which was submitted by the respondent to CISF, and was accepted by CISF, was a "Technical resignation". Under a technical resignation, for all instances and purposes, the 9 Item No. 49/ C-3 OA No.1124/2015 period of service of the respondent with CISF was not wiped out. Thus, the Technical resignation in the present case cannot be equated with the resignation in common parlance. The past service obviously had to be counted for the purposes of seniority, fixation of pay, promotion etc. Further the appointment which was offered to the respondent was on "Pay Protection" basis. In case of absorption on transfer, promotion earned in previous or present organization together with past regular service shall also be counted for all purpose. Counting past service, would be an incentive for the persons like respondent who have shown enterprise and agreed to join the petitioners who were in need of a Wrestling Coach.
xxx xxx xxx 29 When it is a case of transfer of service, the benefit of past service l could not be denied to such person whose services stand transferred. The petitioners could not have treated the respondent as a new case of appointment, as his case was not a case of fresh appointment but the services of respondent were transferred from CISF to the petitioners. When such transfer takes place, benefit of past service of 6 years and 8 months cannot be done away and denied to him. To deprive the respondent of the benefit of past service rendered by him would definitely work against his interest and to his disadvantage. The very word "absorption" "pay protection" and the sequence of events as detailed above prove that it was not a case of new appointment particularly when the pay was also protected. The said non- counting of past service rendered by the respondent in CISF 10 Item No. 49/ C-3 OA No.1124/2015 prior to transfer to the petitioners is contrary and contradictory to rule of "pay protection".
5. At the outset, upon instructions, Shri S.K. Tripathi, learned counsel for the respondents, confirms that the facts of the instant OA are covered by the judgment of the Hon'ble High Court of Delhi in Writ Petition No. 3876/2012 decided on 11.12.2017 and thereafter confirmed by the Hon'ble Supreme Court in SLP No. 29824/2018 as recorded in an earlier order dated 02.05.2024. However, he places reliance on paras 5,6,7 of the counter reply which read as under:
"5. The applicants are contending that the Recruitment Rules of Superintendent (Central Excise), 1986 prescribes 08 years of service in the grade of Inspector for promotion to the grade of Superintendent. Before counting of the service of 08 years for promotion to the grade of Superintendent, it is necessary for the department to rely on authority for counting of the past service of a person joining on technical resignation for seniority and promotion. As the applicants could not produce any authority, wherein it is prescribed the past service of a Govt. Servant joining afresh after rendering technical resignation in his parent department should be taken into consideration for promotion to the higher grade.11
Item No. 49/ C-3 OA No.1124/2015
6. Since the applicants joined as fresh along with the direct recruits their inter-se seniority was interspaced according to their rank in inter-se Combined Graduate Level Examination of the particular year among the direct recruits of the same batch. Reckoning their service from the date of joining i.e. 09.11.09/07.12.10/05.03.12 Delhi zone, their service for promotion to the grade of superintendent is not completed. Accordingly their contention for considering them for promotion to the grade of Superintendent is not having any substance.
7. The applicants have alleged that similarly placed persons who were appointed as Inspector of Central Excise even in other zones on basis of CGLE 2004 (same as applicants) have also been included. The Inspectors of CGLE 2004, who joined Central Excise Delhi Zone on ICT in terms of the instructions promulgated vide CBEC letter F.No.A- 22015/23/2011-Ad.III A dated 27.10.11. Wherein it is provided under para 2(ii) that The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of Pant 3.5 of DOP&T's O.M. dated
03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc. Thus the Inspectors, who joined on ICT in terms of aforesaid CBEC instructions, the 12 Item No. 49/ C-3 OA No.1124/2015 service rendered by them in their parent Commissionerate will be counted for their promotion to the next higher grade. Moreover, the Inspectors joined on ICT were not given fresh appointment but transferred from Commissionerate to Central Excise Delhi Zone."
6. We have heard the learned counsel for the parties and gone through the pleadings available on record.
7. The applicants participated in the CGLE 2004 and having been selected, they were assigned different regions.
In order to improve their rank, they participated in the CGLE 2006 once again and on being successful, they were assigned Delhi region in the year 2010. The seniority, pay fixation, pensionary benefits, last drawn pay etc. have been protected by the respondents. The service rendered by them between the years 2006 to 2010 is not taken into account to reckon their eligibility for the post of Superintendent. This precise issue has come up before the Hon'ble High Court in Writ Petition No.3876/2012 which has been confirmed by the Hon'ble Apex Court in SLP No.29824/2018, the relevant portion of which has been reproduced hereinabove.
13Item No. 49/ C-3 OA No.1124/2015
8. The contention of the learned counsel for the respondents that past service would be counted in the matter of pension, leave, LTC and cannot be counted for seniority and promotion is misplaced and against the law laid down by the Hon'ble High Court as confirmed by the Hon'ble Apex Court.
9. To summarize, the post of the applicants remained same prior and post 2006. It is stressed that in order to improve their rank, the applicants have taken CGLE 2006 and their appointment in the year 2010, according to us, has been treated as a fresh appointment incorrectly, in the light of the fact that they have applied through proper channel, after submitting technical resignation which has been duly approved by the competent authority.
10. While issuing notice on 25.03.2015, this Tribunal had extended the following interim relief in favour of the applicants :-
"4. As an interim measure, we direct that DPC should consider the cases of the applicants for promotion to the post in question provisionally on its meeting scheduled to be held on 26.03.2015 or any subsequent date subject to the outcome of this OA."14
Item No. 49/ C-3 OA No.1124/2015
11. In view of what has been detailed hereinabove and the fact that the respondents confirm that the issue at stake has been settled by the Hon'ble High Court in the Writ Petition No. 3876/2012 dated 11.12.2017, we are guided by the same. Accordingly, OA is allowed. The recommendations of the DPC for the post of Superintendent shall be opened and, if found fit, the applicants shall be extended promotions to the post of Superintendent. The applicants shall be entitled to all consequential benefits that may arise pursuance to the promotion.
There shall be no order as to costs.
(Dr.Chhabilendra Roul) (Pratima K. Gupta )
Member (A) Member (J)
/rk/