Central Administrative Tribunal - Chandigarh
Ms. Jaswinder Kaur vs Union Of India Through Secretary To ... on 14 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA. 379/CH/2012
(orders reserved on 04.02.2013)
Chandigarh, this the 14th day of February, 2013
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR.RANBIR SINGH , MEMBER(A)
Ms. Jaswinder Kaur, aged 54 years d/o Sh. Sewa Singh, presently working as Child Development Project Officer, Integrated Child Development Services (ICDS) Scheme, Department of Social Welfare, Chandigarh.
APPLICANT
BY ADVOCATE: SH. R.K. SHARMA
VERSUS
1.Union of India through Secretary to Government of India, Ministry of Women and Child Development, New Delhi.
2.Union Territory, Chandigarh Administration through its Secretary, Department of Social Welfare, Chandigarh Administration, U.T. Civil Secretariat, Sector 9, Chandigarh.
3.Director, Department of Social Welfare, Chandigarh Administration, Chandigarh.
RESPONDENTS
BY ADVOCATE: MR. DEEPAK AGNIHOTRI FOR RESPDT.NO.1
MR. ARVIND MOUDGIL FOR RESPDTS.2&3.
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
1. The facts to be indicated hereinafter are apparent from the pleadings raised by the parties. The applicant is presently occupying the post of Child Development Project Officer, a post to which she was promoted from the post of Supervisor. There are presently three officials posted as CDPOs, the other two being Mrs. Suman Lata and Mrs. Sanyogita Nayyar. The other two have not been impleaded as party respondents herein. The applicant is holding that post w.e.f. 3.8.1995; while the two others came to be promoted to that post w.e.f. 27.1.1998 and 23.4.1998 respectively.
2. A DPC for purposes of regularization of the promotion aforementioned was held on 12.7.2012, but the matter was deferred in view of the fact that the draft recruitment rules of CDPO (Group B) duly approved by the Department of Personnel has been sent to the UPSC for their concurrence. On account thereof, the DPC felt that it would not be appropriate to regularize their promotion unless the recruitment rules are approved by the UPSC.
3. The essential grievance raised by the applicant herein is that the delay on the part of the respondents in regularizing the promotion already granted, cannot be validated just on account of the pendency of the matter qua the formation of rules of its own because, in the absence thereof, the matters pertaining to the employees of this category have to be governed by the corresponding Punjab Rules (Punjab Social Security and Development of Women and Children (Group B) Service Rules, 2001).
4. The fact that the Chandigarh Administration has no rules of its own in the context and that the post is governed by Punjab rules, was averred in the course of para 5(I) of the OA. The averment was not controverted in the corresponding para of the counter, reliance wherein was placed upon the preliminary submissions. A perusal of the preliminary submissions would indicate that the OA was averred to be pre-mature for want of availability of the post of Programme Officer as also a Deputy Director. The plea, raised in the context, was that the applicant would get the locus to raise a plea for consideration only when the post of a Programme Officer falls vacant. It was further averred that the draft rules (Integrated Child Development Services Projects, Social Welfare Department (Group A & B) Recruitment Rules, 2011) had been approved by the Personnel Department, Chandigarh Administration, but that those have not yet been finally approved by the Government of India. (That the recruitment rules for the post of Deputy Director has been approved by the Joint Secretary Personnel, Chandigarh Administration and was sent to the Govt. of India, Ministry of Women & Child Development, New Delhi vide letter No. SW3/ICDS- Rules/2012/1039 dated 17.2.2012. In response to this office letter dated 17.2.2012, the Under Secretary, Govt. of India, Ministry of Women & Child Development, New Delhi in which it has informed that Integrated Child Development Services (ICDS) Scheme is a Centrally Sponsored Programme being implemented through the State Governments, UT Administrations. All the ICDS regular functionaries are borne on State/UT Cadre and their appointment, promotion, pay scales and other service conditions are governed by the concerned State/UT Administration rules. It has further informed that hence, State Governments/UT Administration are the Competent Authority for framing of Recruitment Rules for ICDS functionaries at all levels in their respective State/UT subject to the condition guidelines/instructions already issued. It has further informed that Ministry of Women & Child Development does not vet such proposals. Accordingly this Department had sought clarification from the Personnel Department vide letter dated 19.6.2012. In response, the Personnel Department, Chandigarh Administration informed that the Government of India is competent to notify the rules regarding Group A and the department has again taken up the matter with the Government of India. Presently, there is no vacant post of Programme Officer.)
5. That the draft rules of the Chandigarh Administration have not yet been finalized or notified is beyond the pale of controversy. Plea raised by the official respondents to that fact notwithstanding, it cannot be wished away by the respondents that the rules governing the corresponding dispensation in the State of Punjab would be applicable to the matter pertaining to appointments and promotions in the Union Territory of Chandigarh. We say so in respectful accord with the view obtained by the Honble Apex Court in Rajesh Kumar Basandhi reported as 2004(1) SCT 680. Our attention was not invited during the course of hearing to any variation of the view in the context at the hands of the Honble Apex Court.
6. The averment by the applicant that there is one post of Deputy Director (in the UT Cadre), was not controverted in the course of the corresponding para of the counter. In fact, there is a precise averment in the course of para 4(vi)of the counter that there is indeed a vacancy of the post of Deputy Director(It is however submitted that it is only after the finalization of rules by the Government of India and UPSC the Programme Officer will be promoted as Deputy Director. The Finance Department has given approval for creation of the post of Deputy Director on 31.8.2010).
7. The present is, thus, a case wherein the UT Administration presently has no rule formulation of its own which could govern promotions in the relevant Department. The appointment, by promotion, to the one existing post of Deputy Director is averred to be impeded for want of notification of the draft rules (Annexure R-2).
8. We would dispose of this OA with the grant of an announcement that the non-approval of Integrated Child Development Services Projects, Social Welfare Department (Group A & B) Recruitment Rules, 2011, is not an impediment in making the appointment, by promotion, to the post of Deputy Director because the Punjab Government rule formulation for the relevant dispensation, would rule the roost till such time the UT Administration has a rule formulation of its own. Whether a particular post is to be filled up or not, is a matter to be decided by the Competent Authority. Nonetheless, a conscious decision in the context shall have to be taken. While it would be open to the Competent Authority to proceed, in its own discretion, to make an appointment by promotion to the post of Deputy Director, there will be no direction of compulsive character in the relevant behalf. However, if the Competent Authority does not want to fill up the post of Deputy Director, it shall have to take a conscious decision to that effect at the competent level. In the latter eventuality, the conscious decision must come about within one month from today.
9. We cannot, in the facts and circumstances of the case, validate the deferment of the deliberation for the grant of regular promotion to the applicant (and others similarly circumstanced). As already noticed, the Punjab Rule formulation would be applicable to the UT employees till such time the UT has a rule formulation of its own. This we announce in respectful accord with the view obtained by Honble Apex judicial dispensation in R.K. Basandhis case (supra). In that view of things, it shall be incumbent upon the Competent Authority to grant consideration to the applicant (and the similarly circumstanced) for purposes of regular promotion. The want of a rule-formulation of its own does not entitle the UT Administration to defer the relevant consideration. That consideration, too, must come about within one month from today.
10. The parties shall bear their own costs of the cause in the facts and circumstances of the case.
11. Disposed of accordingly.
(JUSTICE S.D.ANAND) MEMBER (J) (RANBIR SINGH) MEMBER (A) Dated: February 14th, 2013 ND*