Central Administrative Tribunal - Delhi
Shri V. Shankaranarayanan vs The Govt. Of National Capital Territory ... on 8 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3175/2009 New Delhi, this the 8th day of April, 2011 CORAM: HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri V. Shankaranarayanan, S/o Late Shri M. venkatesan, Aged about 47 years, Wordking as SSA (Biology), Forensic Science Laboratory, Madhuban Chowk, Rohini, Sector-14, DELHI 110 085 APPLICANT (By Advocate: Ms Rajni Singh) Versus 1. The Govt. of National Capital Territory of Delhi, Through Principal Secretary (Home), Delhi Secretariat, 5th Level, C Wing, I.P. Estate, New Delhi 2. Deputy Secretary (Home), Govt. of N.C.T. of Delhi, Delhi Secretariat, 5th Level, C Wing, I.P. Estate, New Delhi 3. Director, Forensic Science Laboratory, Govt. of N.C.T. of Delhi, Madhuban Chowk, Sector-14, Ronini, Delhi 110 085 4. Ms Shashi Bala, Senior Scientific Assistant (Biology), Forensic Science Laboratory, Govt. of N.C.T. of Delhi Madhuban Chowk, Sector-14, Rohini, Delhi 110 085 .RESPONDENTS (By Advocate: Shri Vijay Pandita for Res 1 to 3 and Shri Ajesh Luthra for Pvt. Res.) O R D E R Dr. Veena Chhotray, Member (A):
The applicant, working as a Senior Scientific Assistant (Biology) in the Forensic Science Laboratory under the GNCTD is agitating claims of higher seniority qua his colleague Ms Shashi Bala (Pvt. Res.4). He had joined the Forensic Science Laboratory initially on deputation in 1998 and was absorbed permanently as a Senior Scientific Assistant (SSA) in 2002. Whereas in the tentative Seniority List of 2003 he had been shown at serial no.1, and the Pvt. Res. 4 at no.2; now vide the impugned Seniority Lists i.e. 31.7.2009 (tentative) and 15.9.2009 (final) (Annex. A/B) this has been reversed.
By way of relief, the OA seeks the following directions:-
8. (i) The seniority of the applicant may again be placed at the Serial No.1 in the List of Seniority for the post of Senior Scientific Assistant (Biology) with immediate effect and the seniority of the applicant may kindly be dated back to 21-07-1998 (i.e. the date of joining on deputation the post SSA (Biology) and accordingly the applicant may be promoted to the post of SSO (Bio) (the functions of which he is already performing from 2004) w.e.f. 2005 Submitting it to be a case of departmental harassment, and the present litigation being fought on compassionate grounds by a Trust, award of costs in his favour has also been prayed.
2. Separate Counter Affidavits have been filed by the official respondents as well as the private respondent. On behalf of the applicant, Ms Rajini Singh, for the official respondents Shri Vijay Pandita and on behalf of the private respondent Shri Ajesh Luthra would appear before us. We have heard the learned counsels and perused the written pleadings carefully.
3. Claims and counter claims by the contesting parties apart the broad factual background is : The FSL had initially been functioning under the control of the Delhi Police. In the year 1995 its administrative control was transferred from Delhi Police to the GNCTD. To begin with various personnel working in the FSL continued to work in diverted capacity. This included the Res. 4 too. The posts of Senior Scientific Assistants (Biology) were created in 1997 and the relevant rules for filling them up notified vide Notification dated 19.12.1997. As per these Recruitment Rules (RRS), the prescribed methodology of appointment was by promotion/transfer/transfer on deputation failing which by direct recruitment.
Consequent to a Circular dated 7.4.1998 inviting applications for filling up 4 posts of Sr. S.A. (Biology) on transfer/transfer on deputation basis, both the applicant as also the Pvt. Res..4 had been appointed vide the order dated 13.7.1998. Though initially for a period of 1 year, the deputation continued and both were permanently absorbed vide the order dated 30.10.2002.
In the year 2003 two tentative Seniority Lists were issued, first dated 7.4.2003 followed by a revised one dated 14.11.2003, which placed the applicant at SL. no.1 and the Pvt. Res. at SL. no.2. However, subsequently in the year 2009 the position was reversed vide the tentative Seniority List dated 31.7.2009 and the final Seniority List dated 15.9.2009. These are the impugned Seniority Lists in the present OA.
The Pvt. Res.4 has been promoted to the post of Senior Scientific Officer (Biology) vide the order dated 16.8.2010, though this order does not form a subject of challenge in the present OA.
4.1 Prior to his absorption in the FSL, the applicant was substantive holder of the post of a Stenographer and had subsequently been promoted on ad hoc basis as a PA in the Ministry of Finance. As a PA the applicant had been getting the pay scale of Rs.5500-9000, which is the same as that of the sr. Scientific Assistant (Biology) under the F.S.L. Further it is also not disputed that the applicant had applied for the post of Scientific Assistant (Biology) (pay scale Rs.4000-6000); however he was taken on deputation as a Senior Scientific Assistant.
4.2 It is the case of the applicant that he had been brought on deputation after due consideration by the Selection Committee, considering the fact of his satisfying the eligibility conditions for the higher post. The deputation was initially for a period of 1 year though extendable. The applicant had joined FSL on 21.7.1998. The OA avers that after completing a year on deputation he had represented for his permanent absorption which, however, got rejected vide the letter dated 19.7.2000. Finally the absorption came through the Ministrys letter dated 30.10.2002. The applicants request for antedating his seniority from the initial date was not responded to. An averment of arbitrariness on the part of the respondents on both the counts i.e. non-absorption earlier and non-accord of seniority from the initial date of joining have been raised.
4.3 In 2003, however, the respondent-Ministry issued the tentative Seniority List dated 7.4.2003, followed by a revised tentative List dated 14.11.2003 (Annex A/12 and A/13 Colly.). In both these Lists the applicant was placed at SL. no.1 and the Pvt. Res. no.4 at SL. no.2 taking their respective dates of deputation i.e. 21.7.1998 and 13.10.1998 as the dates of appointment in the grade of Sr. SA.
The aforesaid Seniority Lists got revised in the year 2009 by the tentative Seniority List vide the letter dated 31.7.2009 followed by the final Seniority List dated 15.9.2009. In these Seniority List the Pvt. Res. 4 was assigned seniority at SL. no.1 taking the date of 28.6.1994 as SI Delhi Police as the date of appointment in the Sr.SAs grade.
These impugned Seniority Lists have occasioned the instant OA.
4.4 As per the applicant, the reversal of his seniority position in the 2009 S.L. is unwarranted and arbitrary. Challenging the according of higher seniority to the Pvt. Res. 4 a series of objections have been raised. The salient ones are : (a) She did not possess requisite educational qualification at the relevant point of time. Before entering FSL she had a mere Bachelors Degree and had no technical experience (Para 5.2. of the OA). (b) As per the relevant order, her appointment had been made subject to the submission of the M.Sc Final year provisional Certificate/Mark Sheet which had been done only on 13.10.1998. The applicant had come on deputation prior to the Pvt. Res. 4 and thus was senior to her. Their correct inter-se seniority had been reflected in the 2003 Seniority List. In support, the Rejoinder also encloses certain extracted office notings. (c) The counting of seniority of Pvt. Res. from her parent department w.e.f. 1994 would contend to be not in consonance with law for more than one reasons. She had not come to FSL in 1994 through any appropriate selection procedure (Para 5.8 of the OA). Further, she could not be given antedated seniority from 1994 when the post of SSA itself was created in 1997. Even the claim of her holding an analogues post in the parent department would be strongly questioned on the ground of the duties and responsibilities not being the same. The private respondent being a mere Sub Inspector in Crime & Railways could not be construed to be performing the same duties as of a Sr. SA (Biology) in the FSL.
5.1 On the other hand the service antecedents regarding the Pvt. Res. 4 as revealed from the Counter Reply submitted on her behalf would be that, she had initially been appointed as an Assistant Sub Inspector (Executive) in Delhi Police in 1991. Subsequently in 1994 she had been appointed as a Sub Inspector (Executive), again as a direct recruitee. The post of S.I. was in the scale of Rs.1640-2900, which subsequent to the V CPC got revised as Rs.5500-9000. Vide an order dated 11.10.1994 she was transferred to Crime & Railways for utilization of her services in the Forensic Science Laboratory (Annex R/1 with the CA by Res-4). After the transfer of the administrative control of the FSL to the GNCTD, she continued to work there only, along with several other personnel, in diverted capacity. The CA also makes a mention of the official having subsequently been allowed to draw salary in FSL against the post of SSA (Biology). [An averment, which the learned counsel for the applicant would endeavour to rebut].
5.2 The official was appointed as a Sr.SSA on transfer/transfer on deputation basis vide the order dated 13.7.1998 (Annex R/6). As per this order, her appointment was to be effected from the date of submission of M.Sc (Botany) Final Year Provisional Certificate/Mark Sheet. The Certificate in question was issued on 19.8.1998 (Annex. A/17 (Colly) and submitted on 13.10.1998. Like the applicant, the Pvt. Res. 4 was absorbed on permanent basis vide the order dated 30.10.2002. As per this order the inter-se seniority was to be fixed later on in accordance with the rules.
5.3 Rebutting the rival contentions the initial appointment itself of the applicant would be stated to be not in accordance with the prescribed RRs and therefore, illegal (Annex R/5 with the Res.4s CA). It would be highlighted that in 1998 while applying for deputation, the applicant was working as a PA on ad hoc basis; besides he was not an employee of FSL or CFSL. The averment of the applicant not possessing requisite experience would also be made and in support certain judicial rulings cited.
It would also be argued that the applicant, being well aware of these aspects had applied only for the lower post of Scientific Assistant. Our attention would be drawn to a letter dated 17.11.1999 issued from the Govt. level {Annex A-6 colly). While dealing with the applicants representation for permanent absorption, it had been observed that while selecting him against the post, the condition of requisite experience appeared to have been over-looked. [The learned counsel for the applicant, on her part, would express serious reservations regarding these objections].
As per the learned counsel, Shri Ajesh Luthra, since the initial appointment of the applicant itself was invalid, he could not agitate any claims for seniority on that basis.
5.4 Justifying the impugned Seniority List, it would be averred that the Seniority List of 2003 was a tentative one and could not per-se provide any basis for agitating any claims of seniority. Further contrasting service antecedents of the two, it would be highlighted that whereas the equivalent grade of Rs.5500-9000 had been held by the applicant in an ad hoc capacity as a PA at the time of the deputation in 1998; the Pvt. Res. had been a regular appointee in the same grade since 1994. The fact of her having been performing the same duties in the FSL since 1994 and continuing it after its transfer to GNCTD would also be emphasized.
As regards the appended note to the order dated 13.7.1998, it would be submitted by the learned counsel that the same had a relevance only in the context of the initial deputation. Further the Certificate had been submitted by the Pvt. Res. as per the stipulation. While both of them had been absorbed on the same date; assigning of higher seniority taking into account her past service in the same grade with same nature of duties would be contended to be absolutely justified.
In support, the learned counsel would advert to the DOPT instructions on the subject vide the OM No.20011/1/2000-Estt.(D) dated 27.3.2001 read with the OM No.20020/7/80-Estt.(D) dated 29.5.1986 prescribing assigning of seniority in the case of absorbees from an earlier date by taking into account their regular service in the equivalent grade in the parent department. The decisions of the Honble Apex Court in K. Madhavan & Anr vs Union of India & Ors [JT 1987 (4) SC 43]as also in S.I. Roop Lal & Ors vs Governor through Chief Secretary, Delhi would also be cited by the learned counsel.
6.1 The claims in the OA have been opposed by the official respondents as well. The relevant extracts from Para 4.13 of their counter reply are reproduced as hereunder:
..the applicant was working as Personal Assistant on ad hoc basis and not on regular basis in the pay scale of Rs.5500-9000. However, Ms. Shashi Bala was working as Sub Inspector on regular basis in the pay scale of Rs.5500-9000 in Delhi Police. Therefore, on the basis of Rules, the seniority list was issued by the Home Department of Govt. of NCT of Delhi. Further, in the preceding para 4.9, it is averred that as per Rules, the applicant is entitled for the seniority from the date of absorption i.e. 30.10.2002 and not from the date of deputation since he had been working on ad hoc basis in his parent department. It is also the stand of the official respondents that as per the RRs 3 years research/analytical experience in FSL/CFSL is essentially required and, therefore, candidates working in FSL/CFSL for at least 3 years can apply for the said post.
Responding to the contention in the OA regarding the issue of the applicant not having the M.Sc qualification on the relevant date, this is sought to be factually explained in their reply to Para 5.9. The official respondents have submitted that in the case of the applicant the Selection Committee had selected him for the post of Sr. Scientific Assistant (Biology), without his even having applied for the same post. Similarly, in the case of Ms. Shashi Bala (Pvt. Res.4) who had been working in the FSL Delhi on diverted capacity and had been awaiting the results of M.Sc degree, the Selection Committee had considered her application and selected her for the said post subject to furnishing of Masters Degree.
6.2 The learned counsel Shri Vijay Pandita would seek to emphasize the fact of the applicant not being entitled for grant of seniority from the date of deputation considering his corresponding post in the parent department at that time being held only on ad hoc basis. Further it would be averred by the learned counsel that the matter of absorption had already got settled by the Honble High Court of Delhi in the WP(C) No.18154/2005 (Naresh Kumar vs GNCTD & Ors) (Annex A/21). It would also be argued by the learned counsel that the fixation of seniority in this case has been done in accordance with the judgment of the Apex Court in S.I. Roop Lal & Ors(supra) As per this judgment, it had been held by the Apex Court that in case of determination of seniority of the absorbees, the guidelines issued by the DOP&T OM dated May, 29, 1986 providing for such determination with effect from whichever is later was violative of the Constitution and hence had to be substituted by whichever is earlier. The learned counsel Shri Pandita would submit that Ms Shashi Bala had been accorded the seniority from the relevant date in her parent cadre in accordance with the DOP&T instructions on the subject.
7. In Jaswant Singh Lamba vs Haryana Agricultural University & Ors {(2008) 2 SCC (L&S) 161}, the Honble Apex Court while rejecting the claim of the appellant on the ground of having no locus standi, had observed as under:
Seniority is not a Fundamental Right; and is merely a civil right. To agitate a claim for legal enforcement, a Claimant must have a locus standi.
Hence, whether or not the initial deputation of the applicant was in consonance with the RRs would be the basic issue for our consideration to determine his locus standi to agitate the claims in the OA.
The other related issue would be if the impugned seniority is in accordance with the rules and the instructions, as on that would hinge the justification, if any, warranting judicial intervention in what as per the settled law is in the ordinary course within the legitimate domain of the executive.
8.1 Though rival contentions have been raised questioning the validity of each others initial deputation, the totality of the facts seems to be in favour of the Res.4 rather than the applicant.
8.2 As per the RRs for appointment to the post of Sr. Scientific Assistant (Biology) by transfer/transfer on deputation, the following was prescribed:-
Transfer/Transfer on Deputation:-
Officials under the CFSLs/FSLs Holding analogous post on regular basis.
With 3 years regular service in the pay scale of Rs.1400-2300 or possessing Educational Qualification and experience prescribed for direct recruitment under Col. No.8. In this case, the applicant before coming on deputation to the FSL was admittedly not working either under a CFSL or a FSL. He was also not at that time holding an analogous post on regular basis; as the post of PA in Finance Ministry (Which had the same grade Rs.5500-9000 as that of the Sr. SSA) the applicant had been working only on ad hoc basis. These facts are not disputed.
Even though the learned counsel Ms. Rajni Singh would raise the plea of the applicants substantively holding the post of a Stenographer under the Finance Ministry, no averment of the same being in the alternative scale as prescribed under the RRs for the post of SSA would be made. Even presuming the same being true, the accompanying rider of fulfillment of prescribed experience remains a contentious one.
8.3 As an essential condition on the point of experience, the following had been prescribed in Col. 8 of the RRs:-
(2) 3 years research /analytical experience/ experience in FSLs/ CFSLs As per the applicant, he did have five years experience in research/analytical methods relating to Forensic Science from National Institute of Criminology & Forensic Science (NICFS) (Annex. A/7 colly). This, however, does not find any documentary support, even though vide Annex. A/16 (Colly) copies of educational certificates and experience of the applicant are purported to have been enclosed. It is also noted that while considering the applicants request for permanent absorption in the year 1999 itself certain reservations had been expressed by the Ministry with regard to the applicant fulfilling the condition of experience (Annex. A/3 colly.).
The averments in the OA of the National Institute of Criminology and Forensic Science being a premier Institute, as also several others from the same NICFS holding posts in various Divisions of the Laboratory have been rebutted by the respondents. In any case, these would essentially depend upon the factual circumstances of the particular case as is borne out by the decision of the Tribunal in theOA No.2090/2006 (Dr. Virendra Singh vs UPSC & Ors) decided on 19.2.2007 and the subsequent Writ Petition (C) No.6769/2007 decided by the High Court of Delhi vide a common order dated 11.1.2008.
8.4 On the other hand, with regard to the Pvt. Res. 4 it is clear that even before the transfer of the administrative control of the FSL from Delhi Police to the GNCTD, she had been allocated to work in the Forensic Science Laboratory (Annex R/I). In view of the clear wording used in the relevant order dated 11.10.1994, the contention on behalf of the applicant that she had only been allocated to Crime & Railways which would not tantamount to working in the FSL would not cut ice.
Again the post of S.I. which the Pvt. Res. 4 had been holding on regular basis from 1994 onwards was in the same grade as the Sr. SA. Her continuance in the FSL even after its transfer to the GNCTD like many other staff, which was in administrative exigencies could not be questioned as not being by way of a proper selection procedure, as is sought to be done on behalf of the applicant.
The insistence on the part of the learned counsel for the applicant about the Pvt. Res. not possessing the requisite M.Sc condition on the closing date of the application has been rebutted both by the official as also the Pvt. Res. As per the former, whereas in the case of the applicant he had been appointed on deputation without even applying for that post; in the Pvt. Res.s case considering the fact of her continuously working in the FSL and her M.Sc results awaited, the Selection Committee had recommended her case subject to her submitting of the Certificate from which date only the deputation was given effect.
Hence even this objection is not found to be a hurdle in the case of the Pvt. Res.
8.5 We would, therefore, be inclined to hold the view that considering the totality of the circumstances, the initial deputation itself of the applicant was not strictly in accordance with the provisions of the rules, raising many contentious points and the locus standi of the applicant in the present OA is open to question.
9.1 There is no averment before us regarding there being any provision in the RRs regarding determination of seniority. On the other hand, it has been submitted that the counting of service of the Res.4 from 1994 on the basis of her working in the same grade in the parent department is in accordance with the executive instructions on the subject.
9.2 While determining seniority in case of absorbees in Para-7 of GOI OM dated 22.12.1959 para iv got added vide the DoPT OM No.20020/7/80-Estt.(D) dated 29.5.1986:
(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e., where the relevant Recruitment Rules provide for Deputation/Absorption), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from-
-the date he has been holding the post on deputation, or
-the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, [whichever is later.] (emphasis supplied) Subsequently, however, following the Honble Apex Courts judgment in S.I. Roop Lal & Ors (supra) holding the provision whichever is later as violative of Articles 14 & 16 of the Constitution, the same was substituted by the term which is earlier vide the DOPT OM No.20011/1/2000-Estt(D) dated 27.3.2001.
9.3 The reliance placed by the learned counsel, Shri Luthra on the decision of the Apex Court in K. Madhavan & Anr vs Union of India & Ors [JT 1987 (4) SC 43] is found relevant too. The Honble Apex Court had observed the following dicta:-
21. . It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre. 9.4 In this context, the issue of the posts in question being analogous is relevant too. The GOI, MHA OM No.14017/27/75-Estt. (D) (Pt.), dated 7.3.1984 prescribed the criteria for determining analogous posts in cases where the Rules prescribed transfer on deputation/transfer as a method of filling up the post. These got subsequently reiterated in the consolidated instructions issued vide the DOPT OM No.AB-14017/71/89-Estt. (RR) dated 3.10.1989 (Annex. A/6 Rejoinder by the applicant). Considering the undisputed fact that the pvt. respondent had been holding the same grade on regular basis in her parent cadre as S.I. her services had been utilized in the Forensic Laboratory, since 1994 the overall facts weigh in her favour. The learned counsel Ms Rajni Singhs contention about the duties and responsibilities of the post in the parent cadre as an S.I. not being the same and hence the post not being analogous is not found to be convincing in the factual gamut of the case. Similarly, as the seniority in this case had been assigned counting the service in the equivalent grade in the parent departments the date of creation of the post as such would not be a material factor. We have not separately dealt with the decision of the Delhi High Court in Naresh Kumar vs GNCTD (supra) as the issues for adjudication were different.
10. In view of the foregoing, we find the locus standi of the applicant as open to question. Further, no justification is found for our interfering with the impugned seniority list. The OA being found as bereft of merit is hereby dismissed. No orders as to costs.
(VEENA CHHOTRAY) MEMBER (A) (S.D. ANAND) MEMBER (J) /pkr/