Central Administrative Tribunal - Delhi
Shri Alok Kumar vs Director on 12 October, 2011
Central Administrative Tribunal Principal Bench OA No.648/2011 New Delhi, this the 12th day of October, 2011 Honble Mr. G. George Paracken, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) 1. Shri Alok Kumar, S/o Shri Harish Chandra, C-605, Rajhans Apartments, Ahinsa Khand, Indirapuram, Ghaziabad. 2. Shri Sanjay Dhall, S/o Shri K.L. Dhall, R/o D-32, Laxmi Nagar, Delhi-110092. 3. Shri Pawan Kumar Srivastava, S/oShri S.B.L. Srivastava, R/o E-313, Pragati Vihar, New Delhi. 4. Shri Rabi Narayan Tripathi, S/o Shri Pursottam Tripathi, R/o Type-III/39, CBI Colony, Sector-12, Gandi Nagar, Ahmedabad. 5. A.Z.A. Sheikh, S/o Shri Z.A. Sheikh, A-17, Elicon Tower, Sarkhej, Ahmedabad. 6. Shri Ranbir Singh Shekhawat, S/o Lacchman Singh Shekhawat, R/o Type-3/7, CBI colony, Lal Sagar, Jodhpur, Rajasthan. Applicants (By advocate : Mr. Nilansh Gaur) Versus 1. Director, Central Bureau of Investigation, Block No.3, Kendriya Karyalaya Parisar, Lodi Road, New Delhi-110 003. 2. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi through its Secretary. 3. Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi. Respondents . (By Advocate : B.L. Wanchoo) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Six applicants have joined together in the present OA. They are Inspectors in the Central Bureau of Investigation (CBI in short). The applicant joined CBI as direct recruit Sub-Inspector in the year 1993 and were promoted as Inspector in 1997. Their seniority as on 16.8.2010 is at 104, 108, 103, 102, 105 and 106 respectively. It is the case of the applicants that in the year 2010, 10 posts of Deputy Superintendent of Police (DSP) were kept vacant in the unreserved category under the promotion quota. It is noticed that the total sanctioned strength of DSP in CBI is 241 and as per the ratio of 40% by promotion, 50% by deputation/absorption and 10% by direct recruitment the respective number of posts are 96, 121 and 24. In the year 2010, 21 vacancies were identified to be filled up by promotion. It is stated that 77 posts were diverted from deputation quota to promotion quota with the approval of DOP&T vide letter dated 19.1.2010. Thus, there were 103 vacancies (2 for 2009 and 101 for 2010) in DSP posts to be filled by promotion, out of which 84 were un-reserved, 12 SC and 7 ST. The Union Public Service Commission (UPSC) conducted the Departmental Promotion Committee (DPC) on 14.12.2010 where under unreserved category Inspector from the seniority number 001 to 101 (except number 33) and in the reserved SC and ST categories Inspectors at seniority number 110 to 115, 135, 147, 186 and 197 were considered. The DPC recommended two Inspectors in the unreserved category for the year 2009, and 92 Inspectors (82 unreserved + 10 reserved category in SC and ST) were recommended for the year 2010 to be promoted to the rank of DSP. It is the case of the applicant that on 10.3.2010 the CBI forwarded 195 eligible Inspectors name for promotion to the post of DSP against 103 vacancies and it is stated that DOP&T created 24 posts of DSP in September 2010 out of which 10 posts were meant for promotion quota in the unreserved category. These new posts were not included for DPC to consider as a result, the applicants due for consideration were denied the same. The applicants were not promoted for which feeling aggrieved by the action of the competent authority, they submitted representation requesting to hold the review DPC for consideration of their cases on the ground of additional vacancies which arose due to fresh creation of posts. The respondents in their reply dated 21.1.2010 (page 32) informed the grounds under which 10 posts earmarked for the promotion quota could not be included in the proposal as the same would have delayed the holding of DPC. Feeling aggrieved by the said response, applicants have come before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers :-
8.1 Direct respondent No.1 to get a review DPC held through respondent No.2 for the post of Deputy S.P. in CBI.
8.2 As a consequence, the claim of the applicants for promotion as Deputy S.P. be considered and they be promoted as Deputy S.P. w.e.f. 24.12.2010 with all consequences, including seniority and difference of emoluments.
8.3 Any other relief as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted.
2. Highlighting the above background of the case, Shri Nilansh Gaur, learned counsel for the applicants would submit that there was no dispute about the creation of 10 posts of DSP under promotion quota and DOP&T guidelines envisaged holding of review DPC to consider those who were in the zone of consideration but were not recommended for promotion due to want of vacancies. It is stated that the DOP&T OM dated 17.10.1994 provides the method of calculation of vacancies for the DPC to carry out the selection for promotion to higher post, which inter alia envisages that when ACRs are written calendar year wise the number of vacancies are to be arrived at in the calendar year wise. Shri Gaur contends that even if 10 promotion quota vacancies of DSP, though created in August, 2010, were not reported to the UPSC when the proposal to convene DPC was sent, as the DPC was held on 14.12.2010 the newly created 10 posts of promotion quota of DSP could have been taken into account. He further submits that an extended panel is always prepared to meet the future eventualities as stipulated in the DOP&T OM dated 9.4.1996. He further urges that normally review DPC is held when posts arise due to unanticipated vacancies created during the year.
3. The respondents, on receipt of notice from the Tribunal have entered appearance through Shri B.L. Wanchoo, learned Additional Central Government Standing Counsel and filed the reply affidavit on 21.4.2011. Shri Wanchoo submits that there has been no intentional error/mistake for not reporting additional 10 DSP vacancies in promotion quota to UPSC, as the proposal for DPC was sent on 31.3.2010 and 10 vacancies were released on 30.8.2010. He contends that it is not incumbent upon the respondents to hold a review DPC and cites the DOP&T OM dated 10.4.1989 to state that a review DPC is not required to be held on account of change of the zone of consideration and increase in the number of vacancies. Shri Wanchoos submission is that no juniors of the applicants have been considered by the DPC or promoted and as such no legal right has been created for them. He admits that the crucial date is 1st January of the year on which the vacancies of the year is determined and 10 vacancies additionally released in August, 2010 which has not been anticipated when the proposal has been sent to UPSC on 31.3.2010. As the reporting of 10 vacancies would have delayed the DPC for fulfilling associated formalities, those vacancies in the DSP grade was not brought to the notice of the DPC.
4. Having heard the contentions of the rival parties, with the assistance of the counsels we perused the pleadings as well. The controversy for our consideration and determination is in narrow compass whether the claim of the applicants to conduct review DPC for the year 2010 to fill up 10 additional vacancies of DSP under promotion quota released by DOP&T in August, 2010 is legally admissible?
5. There is no dispute on the following facts : (i) Crucial date for the calculation of vacancies in the DSP grade is 01.01.2010 for the Calender year 2010. (ii) A proposal to fill up 101 DSP vacancies including 82 unreserved, 19 reserved SC/ST for 2010 including 2 vacancies for the year 2009 under promotion quota was sent on 31.3.2010. (iii) on 30.8.2010, 10 DSP posts under unreserved category and promotion quota were created and released which had not been taken into account by the DPC convened by UPSC. (iv) on 14.12.2010, DPC met for drawing up panel for promotion to DSP and recommended 82 in the unreserved category for the year 2010.
6. At this stage, we may refer to the extant guidelines of the DOP&T on the issue flagged above. Para 6.4.2 of the DOP&T OM dated 10.4.1989 is relevant on the subject which reads as follows :-
6.4.2. Where a DPC has already been held in a year further vacancies arise during the same year due to death, resignation, voluntary retirement etc. or because the vacancies were not intimated to the DPC due to error or omission on the part of the Department concerned, the following procedure should be followed :-
(i) Vacancies due to death, voluntary retirement, new creation, etc. clearly belonging to the category which could not be foreseen at the time of placing facts and material of the DPC should be held for drawing up a penal for these vacancies as these vacancies could not be anticipated at the time of holding the earlier DPC. If, for any reason, the DPC cannot meet for the second time, the procedure of drawing up of year-wise panels may be followed when it meets next for preparing panels in respect of vacancies that arisen in subsequent year(s).
(ii) In the second type of cases of non- reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding of DPC meeting they were not reported to it) results in injustice to the officers concerned by artificially restricting the zone of consideration. The wrong done cannot be rectified by holding a second DPC or preparing an year-wise panel. In all such cases, a review DPC should be held keeping in mind the total vacancies of the year.
7. In view of the above provision, it is seen that when the DPC meet on 14.12.2010, 10 vacancies arising due to creation of posts of DSPs in the promotion quota in August, 2010 was already known to CBI and DOP&T who participated in the DPC. This is an omission on the part of the respondents. The vacancies were not reported to the DPC though those were existing at the time of holding of DPC. The guidelines in para 6.4.2 (ii) covers the field. The wrong so done due to omission cannot be corrected in reporting such vacancies for the subsequent year DPC. The best course as per the said DOP&T OM is that a review DPC should be held keeping in mind the total vacancies for the year 2010 in which, surely 10 posts created in August, 2010 will get included.
8. Further, it is noted that as on 16.8.2010 the applicants are within the seniority of 102 to 108 whereas, the panel prepared by the DPC, the Inspectors in the unreserved category from 001 to 101 except seniority number 33 have been considered. Had these 10 vacancies been included for consideration by the DPC, all the applicants would have come within the zone of consideration and if found fit in the selection process by DPC, they would have been promoted along with others. Thus, in our considered opinion, non inclusion of these 10 vacancies has certainly prejudiced the applicants.
9. For the reasons stated above, the applicants succeed. Resultantly, respondents are directed to convene review DPC for the year 2010 to consider the Inspectors in the unreserved category in zone of consideration for 92 vacancies of DSP in the said category for promotion quota. The DPC on its turn will draw up panel fit for promotion for the said vacancies. In case the applicants are found fit for promotion, the respondents are directed to offer them the post of DSP on promotion notionally with effect from 09.2.2011, the date on which they have approached this Tribunal and actually when they join the higher post of DSP. For the period of notional promotion they will be entitled to their seniority and increment to be calculated from that date but will not be entitled to receive the salary for the post of DSP from that date, as no junior to them has been promoted. Respondents are also directed to complete the above exercise within a period of three months from the date of receipt of a certified copy of this order.
10. In terms of the above directions, the OA is allowed leaving the parties to meet their respective costs.
(Dr. Ramesh Chandra Panda) (G. George Paracken) Member (A) Member (J) /rk