Central Administrative Tribunal - Delhi
Shyam Sunder Sharma vs M/O Home Affairs on 27 November, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-860/2014
MA-2938/2014
MA-759/2014
MA-760/2014
Reserved on : 16.11.2015.
Pronounced on :27.11.2015.
Hon'ble Mr. Shekhar Agarwal, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
1. Shyam Sunder Sharma,
S/o Sh. Umrao Lal Sharma,
R/o Flat No. 73,
Green View Apartment, Pocket-2,
Sector-19, Dwarka,
New Delhi-110075.
2. Ranveer,
S/o late Sh. Diwan Singh,
R/o H.No. 1359, Type-IV, SEC-XII,
R.K. Puram, New Delhi-22.
3. Ashutosh Kumar Sharma,
S/o Sh. Digamber Prasad,
R/o G-163, Nanakpura,
Moti Bagh South,
New Delhi-110021.
4. Gautam Ray,
S/o late Sh. G.C. Ray,
R/o E-114, Nanakpura,
Moti Bagh South,
New Delhi-110021.
5. Arun Kumar Kothari,
S/o late Sh. B.B. Kothari,
R/o E-142, Nanakpura,
Moti Bagh South,
New Delhi-110021.
6. Yog Raj,
S/o Sh. Om Prakash,
H.No. 536A, Sector-3,
R.K. Puram, New Delhi-22. ..... Applicants
(through Ms. Madhumita Kothari, Advocate)
Versus
2 OA-860/2014
1. Union of India -through
The Secretary,
Ministry of Home Affairs,
North Block, New Delhi-1.
2. The Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances
and Pension, North Block,
New Delhi-1.
3. The Chairman,
The Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi-3.
4. The Director,
Intelligence Bureau,
Ministry of Home Affairs,
North Block, New Delhi.
5. The Joint Director (Establishment),
Intelligence Bureau Headquarters,
35, S.P. Marg,
New Delhi-21.
6. S. Anantharaman,
The Assistant Director,
Intelligence Bureau Headquarters,
35, S.P. Marg,
New Delhi-21.
7. Shyam Jindal,
Deputy Secretary,
Ministry of Home Affairs,
North Block,
New Delhi-1.
8. S.C. Sivaji Rao,
Deputy Secretary,
Ministry of Home Affairs,
North Block,
New Delhi-1.
9. Assistant Director/G,
Intelligence Bureau Headquarters,
35, S.P. Marg,
New Delhi-21.
10. Harish Chander,
Deputy Secretary,
Ministry of Home Affairs,
3 OA-860/2014
North Block,
New Delhi-1.
11. C.k. Sudhakaran,
Assistant Director/CC,
Intelligence Bureau Headquarters,
35, S.P. Marg,
New Delhi-21.
12. D. Ramaswamy, PIS No. 103722
13. Satish Kumar Saini, PIS No. 102965
14. Ajay Kumar, PIS No. 106734
15. N.R. Prakash, PIS No. 106687
16. Ms. K.P. Sudha, PIS No. 106756
17. V. Muthukumar, PIS No. 106844
18. Dwarika Prasad, PIS No. 107102
19. T.R. Suryanarayan, PIS No. 110050
20. Rajender Kumar, PIS No. 119774
21. G.P. Sekhar, PIS No. 111389
22. Krishna Pal Singh, PIS No. 117457
23. Sahadur Ram, PIS No. 118400
24. Ms. B. Srividyalakshmi, PIS No. 107504
25. Arpan Khare, PIS No. 107469
26. Kirpal Singh, PIS No. 102039
27. Ashok Kumar Sharma, PIS No. 102351
28. Rahul Sharma, PIS No. 107533
29. Pandya Ajay Kumar, PIS No. 107495
30. Mohd. Akhtar, PIS No. 000909
31. Vipin Thomas, PIS No. 000904
32. Ms. Kavita, PIS No. 000902
33. Sachin Kumar Goel, PIS No. 000903
4 OA-860/2014
34. Tribhuvan Gupta, PIS No. 000911
35. Mahakaleshwar Nath, PIS No.000898
36. Dinesh Kumar Chopra, PIS No. 000928
37. Tushar Namdeo Kharbikar
38. Tejas Ananta Munje
39. Narsimha Murthi Panyam
40. Debapriyo Ghosh
41. Ms. Monika Gupta
42. Anupam Singh Gautam
43. Akhilesh Kumar Soni
44. Ratnesh Mishra
45. Adarsh Pandey
46. Krishan Kant Rora
47. Naveen Reddy
48. Sminesh N.V.
49. Ashutosh Anand
50. Ajesh Nurichan ..... Respondents
(through Sh. A.K. Verma, Advocate for official respondents, Sh. Amit Yadav for
Sh. Ravinder Aggarwal, Advocate for respondent No.3, Sh. G.
Sivabalamuruyagan, Advocate for respondents No. 13, 15 to 19, 24, 25,28 & 29,
Sh. Sandeep Jha, Advocate for Respondents No. 30,32 to 36. Sh. Amit Anand,
Advocate for respondents No. 37,38,40,41,43,44,45,47 to 50)
ORDER
Mr. Shekhar Agarwal, Member (A) The applicants joined Intelligence Bureau as ACIO-II/WT during 1987-89. According to them, they were eligible for promotion to the next grade of ACIO- I/WT after rendering 05 years of service as per prevalent Recruitment Rules. However, the same was granted to them after a delay of 13 years w.e.f.
5 OA-860/2014 17.06.2005. Thereafter, their next promotion to the rank of DCIO/Tech-WT was granted to them w.e.f. 01.07.2011. According to the applicants the respondents erred in granting this promotion inasmuch as they had clubbed DPCs for the vacancy years 2004-2005 and 2005-2006. The respondents had also ignored the fact that the promotion of the applicants was delayed due to their own inaction whereas persons coming from other streams, who were otherwise junior to the applicants going by the date of joining as ACIO-II, were promoted much earlier. Nevertheless, the applicants joined their post in the rank of DCIO/Tech-WT on 01.07.2011. The applicants have further claimed that their next promotion to the rank of AD/Tech as per the Recruitment Rules of 2010 was due from 01.07.2013. This is because the Recruitment Rules provided that residency period at the level of DCIO/Tech-WT for all streams for promotion to AD/Tech was 05 years regular service in the grade of DCIO-Tech failing which officers having combined regular service of 08 years in the grades of DCIO-Tech and ACIO-I with atleast 02 years regular service as DCIO-Tech were also to be considered. The contention of the applicants is that under "failing which" clause they would have become eligible for consideration on completion of 02 years service as DCIO/Tech-WT on 01.07.2013. However, the respondents amended the Recruitment Rules again w.e.f. 09.12.2013 and deleted the "failing which" clause thereby rendering them ineligible for promotion till they complete 05 years service as DCIO/Tech-WT. The applicants made several representations to the respondents for ante dating their delayed promotion as well as considering them for next promotion to the level of AD/Tech under the Recruitment Rules of 2010. Since no satisfactory response was received, they have approached this Tribunal seeking the following relief:-
"(a) That the applicants be considered for promotion immediately As a Fundamental Right. Vacancies which have arisen till 9.12.2013 be filled as per RR 2010 under Failing Which Clause as per DOPT calendar for 6 OA-860/2014 Financial Year, ratio of Y.V. Rangaiah judgment of Hon'ble Supreme Court, ratio of Dr. Sahadeva of Delhi High Coiurt and H.M. Singh of SC which is applicable in the case of the present Applicants.
(b) That the date of promotion for Assistant Director/Technical for the applicants be reckoned from 1st April 2012 correcting all errors, administrative mismanagement, infirm policies, lapses and laxities of the Department in the garb of Confidentially as well as to bring in parity with junior officers of Technical cadre who stood promoted as AD/Tech w.e.f.
1st April 2012 taking advantage of faster interim promotions to ACIO-I/Tech and DCIO-Tech/Tech. As merging is taking place at AD/Tech no further disparity, infirmity and injustice should be meted out to the applicants.
(c) That the applicants be given arrears of wages atleast from 1st April 2012 as AD/Tech if not earlier, to summarily compensate them atleast monetarily in lieu of the gross injustice done to them over the last 25 years of their service career with very good/excellent ACR's.
(d) That various vacancies existing and arising subsequently at the level of Assistant Director/Technical be filled only from WT cadre of DCIO- Tech/WT till the proportionality in terms of feeder cadre is created and sustained.
(e) That the notification dated 10.12.2013 making the DCIO/Tech direct recruits en-block senior to the applicants be declared null and void as the status of the Direct Recruits is ambiguous under RR 2010 and the Applicants deserve their promotion as per RR 2010/2004 having completed their residency period before the coming into effect of RR 2013 and in coherence with judgments stated supra.
(f) A committee be appointed to study the various infirmities in the Recruitment, promotion and service condition rules of the Intelligence Bureau which is grossly violative of basic Fundamental Rights and Service conditions and considerations for promotions. Based on the recommendations of such committee, the tribunal may pass further directions on long terms career progression matters of the different cadres of the Intelligence Bureau."
2. During the course of the arguments, learned counsel for the applicants stated that she was only pressing her prayer for promotion as AD/Tech under Recruitment Rules of 2010, which contained the "failing which" clause.
3. The official respondents in their reply have stated that as per Recruitment Rules in existence prior to 20.07.2004 90% of the posts of ACIO-I(WT) were to be filled by promotion and remaining 5% each by deputation and direct recruitment failing which by promotion. However, as per new Recruitment Rules, 7 OA-860/2014 which came into force w.e.f. 20.07.2004 direct recruitment quota was increased to 35% and promotion quota was reduced to 65%. Thus, the excess incumbency under promotion quota needed to be neutralized. The applicants were considered for promotion during DPC year 2004-2005 against the anticipated vacancies. To avoid delay, DPC for the year 2005-2006 was also convened along with DPC for the year 2004-2005 on 04.03.2005 and even though the vacancies under promotion quota became available in December, 2005, the applicants were promoted in June, 2005 itself against available vacancies of other quotas as a welfare measure. As regards the allegation of applicants that DPC was delayed for 10 years during the period 1996-2006, they have stated that DPC was last held in the year 1998-1999. Subsequently, for 04 years, this DPC could not be convened as the post of ATO was abolished and a new hierarchy comprising of DCIO/Tech, AD/Tech, JDD/Tech etc. above the existing post of ACIO-I/WT was created. Thereafter, new Recruitment Rules for all these posts were notified only on 06.02.2004. The DPCs could be convened only after notification of the new rules after protracted correspondence with MHA/DoPT & UPSC. Meanwhile ad hoc promotions were extended to the stagnating officers to compensate them monetarily. Further, in terms of Recruitment Rules for the rank of DCIO/Tech, 05 years of regular service in the grade of ACIO-I/Tech was required to be considered for promotion as DCIO/Tech. However, these Recruitment Rules were amended on 14.12.2010 whereby the residency period was reduced from 05 years to 03 years which made the applicants immediately eligible for promotion. Accordingly, a DPC was convened on 08.06.2011 and the applicants were granted promotion in July, 2011. Thus, there was no delay in granting them promotion as DCIO/Tech. The official respondents have admitted that the Recruitment Rules were again amended in 2013 to delete "failing which" clause provided in the old Recruitment Rules for promotion to the 8 OA-860/2014 post of Ad/Tech. This they have, however, submitted was done to provide a level playing field between direct recruit officers and promotees. The official respondents have further submitted that as per the new Recruitment Rules, the applicants will become eligible for next promotion only after completing 05 years service in July, 2016 in the vacancy year 2017-2018.
4. The private respondents No. 30, 32 to 36, who are direct recruits to the post of DCIO/Tech have also filed their reply in which they have stated that at the time of initiation of their recruitment process, the Recruitment Rules, 2003 were in vogue, which provided for 25% of the posts of DC IO/Tech to be filled by direct recruitment whereas the remaining 75% were to be filled by promotion from the cadre of ACIO-I/Tech. According to them, the initiation of their recruitment was commenced in 2007 and the process was completed in 2010 with the appointment of the present respondents. They have submitted that the applicants herein do not belong to the same cadre and there cannot be any comparison of seniority between them. Moreover, it is also an admitted position that the applicants are holding the post of DCIO/Tech-WT whereas they are holding the post of DCIO/Tech. The two cadres are different and the question of inter-se seniority is unsustainable as the Rules do not provide for any such determination. The merger of all cadres now takes place only at the level of AD/Tech. Further, they have stated that notwithstanding the claims of the applicants, they would be eligible for promotion to the post of AD/Tech as their juniors have already been promoted. They have also claimed that the present application is hopelessly barred by limitation as the relief claimed by the applicants was stale and in grant of the same, various 3rd party rights would be adversely affected. The respondents have further stated that the settled proposition of law was that what cannot be done directly cannot also be done 9 OA-860/2014 indirectly. Thus, the applicants without challenging the Recruitment Rules of 2013 were indirectly seeking that relief by asking for promotion under the Recruitment Rules of 2010.
5. We have heard the parties and have perused the material on record.
6. As stated above, learned counsel for the applicants has stated that she was only pressing her prayer for promotion of the applicants under Recruitment Rules, 2010. Accordingly, we have proceeded to deal only with this prayer and the consequential benefits arising out of the same, if any. Other prayers of the applicants regarding ante dating of their promotions as ACIO-I and DCIO/Tech- WT are not being considered. In any case, consideration of such prayers at this belated stage would amount to unsettling long standing position and would also involve 3rd party rights. Further, as laid down by Hon'ble Supreme Court in a catena of judgments cited by the private respondents herein promotion has to be granted from the date of actual promotion and not from the date of eligibility or occurrence of vacancy as service jurisprudence does not recognise retrospective promotions until and unless there is a residuary rule or power under which such retrospective promotion can be granted. In this regard, the judgments of Hon'ble Supreme Court in the case of Nirmal Chandra Singh Vs. Union of India, 2008(14) SCC 29, UOI Vs. K.K. Vadera & Ors., 1989 Supp.(2) SCC 625, State of Uttaranchal and Anr. Vs. Dinesh Kumar Sharma, 2007(1) SCC 683, K.V. Subba Rao Vs. Government of Andhra Pradesh, 1988(2)SCC 201, Sanjay K. Sinha & Ors. Vs. State of Bihar and Ors., 2004(10)SCC 734 can be seen. Hon'ble High Court of Delhi has also reiterated this view in this case of UOI & Ors. Vs. Vijender Singh & Ors. with connected cases (W.P.(C) 1188-90/2005) on 29.11.2010.
10 OA-860/2014
7. As far as the prayer of the applicants for next promotion to the grade of AD/Tech is concerned, they have pleaded that the respondents have amended the Recruitment Rules on 09.12.2013 just a few days before 01.01.2014 on which date the applicants would have become eligible for such promotion under the "failing which" clause. This amendment was carried out by the respondents in complete disregard of the DoPT Circular No. AB-14017/12/88- Estt.(RR) dated 25.03.1996, in Clause 3.1.3 of which it is stated that wherever eligibility service for promotion prescribed under the existing rules was being enhanced and the change was likely to affect adversely, some persons holding the feeder grade posts on regular basis, a note to the effect that eligibility service shall remain the same for such persons be included in the revised rules. This proposition has been upheld by the Hon'ble High Court of Delhi in their judgment dated 02.02.2015 in Writ Petition No. 4959/2014 in the case of Rajesh Kumar Giri Vs. UOI. The applicants have further stated that it was only for the post of AD/Tech that such amendment has been carried out whereas for other posts, the failing which clause still remains applicable. Had this 2013 amendment not being carried out, the applicants would have become eligible for promotion as AD/Tech n 01.01.2014 after having completed 02 years service as DCIO/Tech and more than 06 years service as ACIO/Tech, thus, having combined service of 08 years in these two grades, which was the requirement for promotion under the unamended Rules.
8. Learned counsel for the applicants has relied on the judgment of Hon'ble Supreme Court in the case of Y.V. Rangaiah Vs. J. Srinivasa Rao, (1983) 3 SC 284 wherein it has been held that vacancies which occurred prior to the amendment of Rules would be governed by the old Rules and not by the amended Rules. This view was further reiterated in the case of State of 11 OA-860/2014 Rajasthan Vs. R. Dayal, 1997(10)SCC 419. Learned counsel argued that vacancies that arose prior to amendment of Rules on 09.12.2013 be filled according to the old Rules as per the law laid down by Hon'ble Supreme Court in the aforesaid cases.
9. We have considered the above mentioned submission of the applicants. Since the prayer for ante dating of promotions of the applicants has been given up by the applicants, it is now an admitted position that the applicant got promoted as DCIO/Tech-WT only on 01.07.2011. Further, since atleast 02 years of service at this level is required, they would complete the same only on 01.07.2013. Moreover, since eligibility for promotion is reckoned from Ist January of the year in which promotions are to be made, the applicants would be eligible for promotion only on 01.01.2014 even under the old Rules. Thus, even if the vacancies arising prior to amendment of Rules on 09.12.2013 are filled by old Rules, i.e. Recruitment Rules, 2010, the applicants would not be eligible for the same as they acquire eligibility only on 01.01.2014. This is because eligibility for such vacancies will have to be reckoned from the Ist January of vacancy year in which such vacancies arose.
10. We, however, find considerable merit in their argument that the amendment in the Rules on 09.12.2013 has been carried out by the respondents in utter disregard of DoPT Instructions of 25.03.1996 wherein it has been provided that whenever eligibility service for promotion prescribed in the existing Rules was being enhanced, a note should invariably be inserted in the Recruitment Rules to the effect that eligibility service shall continue to be the same for persons holding feeder post on regular basis on the date of Notification of the revised Rules. In the instant case, when the Rules were revised on 09.12.2013, it cannot be disputed that the respondents were holding the post of DCIO/Tech-
12 OA-860/2014 WT which is a feeder post of AD/Tech. As such, when the "failing which" clause was deleted by the respondents they should have inserted a note to the effect that the amendment carried out on 09.12.2013 shall not apply to the applicants. In our opinion, a lapse committed by the respondents cannot be allowed to act to the detriment to the applicants.
11. We find that in the case of Garima Singh Vs. UOI & Ors. (OA-3278/2010) with connected cases the Full Bench of Tribunal on 09.05.2011 has held that Instructions issued by DoPT may be regarded as those issued by the Executive under Article 73 of the Constitution and should be read along with the Rules. To make amends for the wrong caused to the applicants we direct that respondents should read the 2013 Rules along with DoPT Instructions providing for insertion of such a note.
12. Accordingly, the O.A. succeeds to this extent. We direct the respondents to consider promoting the applicants to the post of AD/Tech for the vacancy year 2014-2015 and afterwards after taking into account the DoPT Instructions mentioned above along with the Recruitment Rules of 2013. We, however, make it clear that we have neither gone into the availability of vacancies nor the seniority of the applicants for consideration of promotion. Thus, consideration of promotion shall remain subject not only to availability of vacancies but also to applicants being senior enough to be included in the zone of consideration for promotion. Such consideration will be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Raj Vir Sharma) (Shekhar Agarwal)
Member (J) Member (A)
/Vinita/