Kerala High Court
The Director vs Smt.Jayasree K.R on 13 November, 2019
Author: V.G.Arun
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941
OP (CAT).No.176 OF 2016(Z)
AGAINST THE ORDER/JUDGMENT IN OA 999/2012 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 THE DIRECTOR, CENTRE FOR MARINE LIVING RESOURCES AND
ECOLOGY,
MINISTRY OF EARTH SCIENCES, KENDRIYA BHAWAN, VITH
FLOOR, KAKKANAD, ERNAKULAM-682037.
2 THE DIRECTOR
MINISTRY OF EARTH SCIENCES, KENDRIYA BHAWAN, VITH
FLOOR, KAKKANAD, ERNAKULAM-682037
3 THE SECRETARY
MINISTRY OF EARTH SCIENCES, MAHASAGAR BHAWAN, CGO
COMPLEX, LODI RAOD, NEW DELHI-110003.
4 THE SECRETARY
MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-
110001.
5 THE SECRETARY
DEPARTMENT OF PERSONNEL AND TRAINING. NORTH BLOCH,
NEW DELHI-110001.
BY ADVS.
SRI.T.V.VINU, CGC
RESPONDENT/S:
1 SMT.JAYASREE K.R.
W/O. RAJEEV N.P, LOWER DIVISION CLERK, CENTRE FOR
MARINE LIVING RESOURCES & ECOLOGY, MINISTRY OF EARTH
SCIENCE, KENDRIYA BHAWAN, VITH FLOOR, KAKKANAD,
ERNAKULAM. (PRESENTLY ON DEPUTATION TO THE PAY &
ACCOUNTS OFFICE, INDIA METROLOGICAL DEPARTMENT(IMD),
50 COLLEGE AND, CHENNAI-600 006.)
OP(CAT).176/16 2
2 SABAR SINGH RAWAT
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCES,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
3 STATE SINGH
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
4 LAXMAN SINGH
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
5 PARSURAM PASWAN
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
6 RAMESH CHAND SHARMA
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
7 SUBHASH SINGH SAJWAN
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
8 AHSOK RANGA
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
9 SURESH DEVI
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
10 JAS RAM
ADHOC U.D.C. , C/O. MINISTRY OF EARTH SCIENCE,
PRITHVI BHAWAN, LODI ROAD, I.M.D. COMPLEX, NEW
DELHI-110003.
R1 BY ADV. SRI.T.C.GOVINDA SWAMY
R1 BY ADV. SMT.T.N.SREEKALA
OP(CAT).176/16 3
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 06-11-2019, THE
COURT ON 06-11-2019 DELIVERED THE FOLLOWING:
OP(CAT).176/16 4
K.VINOD CHANDRAN
&
V.G.ARUN, JJ.
-----------------------------------------------
O.P (CAT).No.176 of 2016
-----------------------------------------------
Dated this the 13th day of November, 2019
JUDGMENT
Vinod Chandran, J.
Petitioner is the Director of Centre for Marine Living Resources and Ecology (hereinafter 'CMLRE') and the 1 st respondent is the applicant in the original application. The applicant had filed the original application seeking to call for the records leading to Annexures A15 and A16 and set aside Annexure A15 to the extent it refuses to place the applicant at the appropriate place in the seniority and a consequential direction to the Ministry of Earth Sciences to absorb the applicant to the Central Secretariat Clerical Services Cadre with retrospective effect and grant her consequential seniority and promotions which automatically flow from such absorption.
2. The facts to be noticed are that the applicant was appointed to the Central Secretariat Clerical Services Cadre ('Central Cadre', for short) on a temporary basis as per Annexure R1, which indicates the date of appointment to be 5.7.1990. She OP(CAT).176/16 5 was immediately allotted to the strength of the Staff Selection Commission as per Annexure R2, where she joined. While continuing there, she requested for a transfer to Cochin, her native place. The applications and interdepartmental communications are produced as Annexures R3 to R5. Eventually, her application at Annexure R5 for transfer was considered and she was allowed to join the Sagar Sampada Cell in Cochin which was a subordinate office of the Department of Ocean Development. By Annexure R6, her resignation from the Central Cadre was accepted and on the next day, i.e., on 29.10.1993, as per Annexure R7, she joined the Sagar Sampada Cell at Cochin as a Lower Division Clerk. Later, on 22.6.2001 her appointment was confirmed from 5.7.1992, i.e., two years after the initial appointment on 5.7.1990.
3. In the meanwhile, by Annexure R9, the subordinate office of the Department of Ocean Development, Sagar Sampada Cell was declared as an attached office. It is at that point of time that there was introduction of posts in the Central Cadre to that office. However, the applicant continued in the subordinate service in that office. On 8.3.2000 by Annexure R10, there was a request made by the Department for inclusion of three posts of Lower Division Clerks, including that of the applicant, in the Central OP(CAT).176/16 6 Cadre. This was specifically declined as per Annexure R10. Later, the Sagar Sampada Cell was renamed as CMLRE on 12.1.2001 and this continued as an attached office under the Ministry of Earth Sciences. Annexure R13 is the order by which 40 posts in the Central Cadre were allotted to the attached office, having carved out the same from the Ministry of Home Affairs under which the cadre is constituted. It was later to the constitution of the CMLRE that Annexure A8 was passed confirming all the three who continued in the subordinate service with reference to the initial date of their appointment. The applicant is also entitled to pension as is seen from Annexure R6 itself and granted two up- gradations as per Annexures R14 and R15; under the Assured Career Progression Scheme.
4. Subsequently, a seniority list was published as per Annexure A15 dated 2.2.2011, wherein the seniority of LDCs of CSCS cadre posted to Ministry of Earth Sciences was published. Therein, though the name of two of the persons in the subordinate service figured, under the remarks column it was noticed that they are yet to be encadred, since they remained in the subordinate services.
5. We understand that it is an unfortunate circumstance of persons appointed in 1990 and 1992 being placed below the OP(CAT).176/16 7 persons appointed even in the year 2010. The senior most is also junior to the applicant having been appointed only in the year 1997. However, we see that the Department had in fact at the earlier point itself in the year 2000 sought for inclusion of the three posts of LDCs in the Central Cadre which was rejected as per Annexure R10. Obviously, the petitioner also did not take up any challenge at that point of time. As was rightly pointed out by the learned Central Government Counsel, if on the publication of a seniority list entire seniority is revisited, then it would create mayhem, especially when the Central Cadre is included of members all over the country. The applicant as we noted was retained in the subordinate services and continued as such all these years. Without inclusion of those posts of the cadre of the CSCS there cannot be any assignment of seniority to persons who continued in the subordinate services in a different cadre altogether.
6. We also notice Annexure A13 which indicates the Department of Ocean Development having rejected the applicant's claim for reversion to the Central Cadre in the year 2005 and the inability of the Department to enable the induction of the applicant in the Central Cadre merely for the reason of change of office from subordinate office to an attached office. We OP(CAT).176/16 8 also notice that for the attached office, separate posts were created carving it out from the posts available in the Ministry of Home Affairs thus reducing the cadre in the Ministry by 40 and adding it on to the CMLRE.
In the above circumstances, we do not think the order of the Tribunal, assigning seniority to the petitioner in a different cadre than in which she is borne can be sustained. We set aside the impugned order and allow the original petition. No order on costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vgsx OP(CAT).176/16 9 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF OFFICE MEMORANDUM NO-
A.12301/4/90-AD.I(B)DATED 16.11.1990 OF THE HOMO MINISTRY.
ANNEXURE A2 TRUE COPY OF OFFICE ORDER NO-
DOD/44/ESTT/66/93 DATED 29.10.1993 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A3 TRUE COPY OF ORDER NO-DOD/44-ESTT/72/88 DATED 3.1.1996 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A4 TRUE COPY OF LETTER OF THE APPLICANT DATED 28-7-1999 SEEKING REPATRIATION TO MINISTRY OF HOME AFFAIRS.
ANNEXURE A5 TRUE COPY OFFICE MEMORANDUM NO-7 3/98/SCC/58 DATED 2.8.1999 ANNEXURE A6 TRUE COPY OF OFFICE MEMORANDUM NO-7- 398SCC/1318 DATED 25.01.2000 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A7 TRUE COPY OF ORDER NO-DOD 2/FORV/6/2000 DATED 12.1.2001, ISSUED BY THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A8 TRUE COPY OF OFFICE ORDER NO-DOD 44/ESTT/8795 DATED 22-06-2001 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A9 TRUE COPY OF ORDER NO-DPD/21/2/2002 ESTT DATED 09.09.2002 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A10 TRUE COPY OF THE RELEVANT PAGES OF SWAMY'S HAND BOOK REGARDING WITHDRAWN OF RESIGNATION ANNEXURE A11 TRUE COPY OF OFFICE MEMORANDUM NO-
4801/19/2005 ADV.VI DATED 23.6.2005 OF THE MINISTRY OF HOME AFFAIRS.OP(CAT).176/16 10
ANNEXURE A12 TRUE COPY OF OFFICE MEMORANDUM NO-
DOD/44-ESTT/86/93 DATED 07-07-2005 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXUREA-13 TRUE COPY OF OFFICE MEMORANDUM NO-
DOD/44-EST/86/93 DATED 12.08.2005 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE A14 TRUE COPY OF LETTER OF CMLRE TO MINISTRY OF EARTH SCIENCE NO-8-26/93/SCC DATED 7- 5-2010 ANNEXURE A15 TRUE COPY OF OFFICE MEMORANDUM MOES/2/02/2011 ESTT DATED 02.02.2011 ISSUED BY MINISTRY OF EARTH SCIENCE ANNEXURE A-16 TRUE COPY OF OFFICE MEMORANDUM NO-
DOD/44/ESTT/86/93-PL DATED 07.04.2011 ANNEXURE A17 TRUE COPY OF LETTER OF CMLRE NO-8- 16/92/SCC DATED 9-5-2011 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE R1 TRUE COPY OF ORDER NO-A.12025/7/89 AD.L(S)DATED 26-7-1990 OF THE MINISTRY OF HOME AFFAIRS,NEW DELHI ANNEXURE R2 TRUE COPY OF ORDER NO-A.20017/8/90-ESTT DATED 6-7-1990 OF THE STAFF SELECTION COMMISSION,DEPARTMENT OF PERSONNEL&TRAINING NEW DELHI ANNEXURE R3 TRUE COPY OF THE OM DATED 16-11-1990 OF THE MINISTRY OF HOME AFFAIRS,NEW DELHI ANNEXURE R4 TRUE COPY OF ORDER NO-A.12025/7/89 AD.L(S)DATED 26-7-1990 OF THE MINISTRY OF HOME AFFAIRS,NEW DELHI ANNEXURE R5 TRUE COPY OF THE APPLICATION DATED 5-7- 1993 SUBMITTED BY THE APPLICANT.
ANNEXURE R6 TRUE COPY OF ORDER NO-A.39015/3/93ADL(B) VOL II DATED 28-10-1993 ANNEXURE R7 TRUE COPY OF ORDER DATED 29-10-1993 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE R8 TRUE COPY OF ORDER DATED 22-5-2001 OF OP(CAT).176/16 11 THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE R9 TRUE COPY OF ORDER DATED 03-01-1996 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE R10 TRUE COPY OF PROPOSAL DATED 8.3.2000 ANNEXURE R11 TRUE COPY OF THE DOPT ID NO-20/27/2000 CSII(PART) DATED 20.1.2000 ANNEXURE R12 TRUE COPY OF OM NO-1-48011/1/2013-AD.VI DATED 4-1-2013 ANNEXURE R13 TRUE COPY OF ORDER DATED 1-11-2010 OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS,DEPARTMENT OF PERSONNEL &TRAINING ANNEXURE R14 TRUE COPY OF ORDER DATED 6-9-2002 OF THE DEPARTMENT OF OCEAN DEVELOPMENT ANNEXURE R15 TRUE COPY OF ORDER DATED 4-5-2012 OF THE MINISTRY OF EARTH SCIENCES ANNEXURE R16 TRUE EXTRACT OF THE NOTE DATED 3-2-2011 ANNEXURE R17 TRUE COPY OF DOPT REFUSAL ANNEXURE R18 TRUE COPY OF OM NO-9-2-2013 CSL(P) DATED 18-4-2013 ANNEXURE R19 TRUE COPY OF OM NO-21/7/2007 CS-
1(DESK)DATED 2.2.2010 ANNEXURE R 20 TRUE COPY OF OM NO-13/5/2012-CS,II(B) DATED 31.12.2012 OF THE DEPARTMENT OF PERSONNEL AND TRAINING P1 TRUE COPY OF O.A NO. 999 OF 2012 DATED 31.10.2012 FILED BY THE 1ST RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
P2 TRUE COPY OF ORDER DATED 18.10.2013 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
P3 TRUE COPY OF THE REPLY STATEMENT IN O.A. NO. 999 OF 2012 DATED 08.05.2013 FILED OP(CAT).176/16 12 BY THE PETITIONERS.
P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A. NO. 999 OF 2012 DATED 13.03.2014 BEFORE THE HON'BLE CENTRAL ADMINSTRATIVE TRIBUNAL , ERNAKULAM BENCH.
P5 TRUE COPY OF ORDER DATED 22.99.2015 IN O.A NO.99/2012 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.