Central Administrative Tribunal - Bangalore
N Srinivas vs M/O Defence on 9 February, 2023
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OA.No.170/00342/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00342/2020
DATED THIS THE 09TH DAY OF FEBRUARY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
N. Srinivas,
S/o Late N. Nagarajan,
Aged 58 years,
Working as Stores Officer,
L.R.D.E., DRDO,
C.V. Raman Nagar,
Bengaluru 560 093
Residing at No. C-30/2, Phase I,
DRDO Township,
C.V. Raman Nagar,
Bengaluru 560 093 .... Applicant
(By Shri A.R. Holla, Advocate)
Vs.
1. Union of India,
By Secretary,
Ministry of Defence,
Room No. 234,
South Block,
New Delhi 110 011
2. The Secretary,
Department of Defence R&D & Chairman,
Defence Research & Development Organisation,
Room No. 531, 'B' Block,
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OA.No.170/00342/2020/CAT/BANGALORE
DRDO Bhavan, Rajaji Marg,
New Delhi 110 105
3. The Director, Personnel,
Defence Research & Development Organisation,
Room No. 266, 'C' Block,
DRDO Bhavan, Rajaji Marg,
New Delhi 110 105
4. The Secretary,
Union Public Service Commission,
Dholpur House, Shahajan Road,
New Delhi 110 069
5. The Director,
Electronics and Radar Development Establishment,
C V Raman Nagar Post,
DRDO Complex,
Bengaluru 560 093
6. Sri Dipesh Chandra,
Senior Stores Officer Grade-II,
Terminal Ballistics Research Laboratory,
Sector-30, Chandigarh 160 030
7. Sri Deepak H.M.
Senior Stores Officer Grade-II,
Gas Turbine Research Laboratory,
C.V. Raman Nagar,
Bengaluru 560 093
8. Sri Ashish Nijhawan,
Senior Stores Officer Grade-II,
Instrument Research &
Development Establishment,
Vigyan Vihar, Raipur Road,
Dehradun 248 008
9. Sri Satish Kumar Birwa,
Senior Stores Officer Grade-II,
CCE (R&D) North,
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OA.No.170/00342/2020/CAT/BANGALORE
Lucknow Road, Timarpur,
Delhi 110 054
10. Sri Brijesh Kumar Mishra,
Senior Stores Officer Grade-II,
Research & Development Establishment (Engrs),
50, Alandi Road, Pioneers Lines Dighi,
Kalas, Pune 411 015
11. Sri Brijmohan Singh Chauhan,
Senior Stores Officer-II,
DYST(QT), DRDO,
C/o IIT Campus, POWAI,
Mumbai 400 076
12. Sri Sanjeev Kumar Seth,
Senior Store Officer-II,
Defence Research Laboratory (T),
Tezpur Airpur Area,
Deka Chuburi Kudar Bari Goan,
Assam 784 001
13. Sri K. Prashant,
Senior Stores Officer-II,
O/o DG MED & CoS,
1st Floor, B Wing, DRDO Bhavan,
New Delhi 110 011
14. Sri Somprovo Ghosh,
Senior Stores Officer-II,
CEMILAC, DRDO,
Marathalli Colony (Post),
Bengaluru 560 037
15. Sri Chakrapani Narasepali,
Senior Stores Officer-II,
CVRDE, DRDO,
Avadi, Chennai 600 054
16. Sri Kundan Shah,
Senior Stores Officer-II,
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OA.No.170/00342/2020/CAT/BANGALORE
ITM, DRDO,
Landour Cantt, Mussoorie,
Uttarakand 248 179
17. Sri Subrata Kumar Dash,
Senior Store Officer-II
SPIC, DRDO,
'A' Block, DRDO Bhavan,
New Delhi 110 011
18. Sri Manish Kumar Gupta,
Senior Stores Officer-II,
DRDE, DRDO,
Jhansi Road, Gwalior,
Madhya Pradesh 474 002
19. Sri Avinash Kumar Mishra,
Senior Store Officer-II,
NSTL, DRDO,
New Road, Nad Junction,
Visakhapatnam 532 007
20. Sri Sandeep Sharma,
Senior Stores Officer-II,
DFRL, DRDO,
Siddartha Nagar,
Mysuru 570 011 ....Respondents
(By Shri S. Sugumaran, Senior Panel Counsel for
Respondents No. 1 to 3 & 5,
Shri M. Rajakumar for Respondent No. 4,
Shri Atanu Banerji for Respondents No. 6, 7, 9, 11 to 20 -
Absent,
None for Respondents No. 8 & 10)
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OA.No.170/00342/2020/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) To quash the Orders No. DOP/AA1/62466/SSO-II/19 dated 05.03.2020, Annexure-A6, No. DOP/AA1/62466/SSO-
II/19 dated 09.12.2019, issued by the respondent No. 2, Annexure-A5 and No. DOP/AA1/62494/SSO-II/20 dated 23.06.2020, Annexure-A7, so far as the promotion of the respondents No. 6 to 20 is concerned,
(b) Direct the respondents No. 1 to 5 to consider the applicant for promotion to the post of Senior Stores Officer Grade-II keeping in view the law laid down by the Hon'ble Supreme Court in Civil Appeal No. 8833-8835 of 2019 [K. Meghachandra Singh & others Vs Ningam Siro & others]."
2. The facts in brief as stated by the applicant are that he was working as Senior Stores Assistant in Electronics & Radar Development Establishment (LRDE), Defence Research Development Organisation, Bengaluru and was promoted to the post of Stores Officer in pay band Rs. 9300-34800 + Grade Pay of Rs. 4600/- with effect from 01.01.2015. The draft seniority list of Stores Officers in Defence Research Development Organisation as 6 OA.No.170/00342/2020/CAT/BANGALORE on 01.06.2015 has been published vide notification dated 01.09.2015 which was prepared as per the OM dated 04.03.2014 issued by the Department of Personnel & Training assigning seniority between direct recruits and promotees as per their quota based on the year of their recruitment. Thereafter, the final seniority list as on 01.01.2019 has been published vide notification dated 21.10.2019. In the said seniority list, the name of the applicant figures at Sl. No. 96. The names of respondents No. 6 to 20 are shown above the applicant, though they were directly recruited candidates subsequent to the promotion of the applicant as Stores Officer. Pursuant to the judgment pronounced by the Hon'ble Apex Court in the case of K. Meghachandra Singh & Ors. vs Ningam Siro & Ors1, the applicant submitted a representation on 20.12.2019 with a request to review the seniority list of the Stores Officers. The request of the applicant was declined by an order dated 05.03.2020 on the ground that the seniority of direct recruits vis-à-vis promotees shall be determined as per the existing Department of Personnel & Training instructions. Accordingly, Respondents No. 6 to 20 were placed in 1 (2020) 5 SCC 689 7 OA.No.170/00342/2020/CAT/BANGALORE the panel for promotion to the post of Senior Stores Officer Grade II. Being aggrieved, the applicant is before this Tribunal.
3. The challenge to the order dated 05.03.2020 (Annexure- A6) and to the proposed promotion of Respondents No. 6 to 20 (Annexures-A5 and A7) is primarily based on the judgment of the Hon'ble Apex Court dated 19.11.2019 in K. Meghachandra Singh1. The department has prepared the seniority list based on Union of India & Ors. vs. N.R. Parmar & Ors.2. The order dated 05.03.2020 (Annexure-A6) issued by the Respondent No. 5 evinces that the claim of anomaly in respect of seniority claimed by the applicant was rejected observing that "the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between available direct recruits and promotees which shall be based on the quota of vacancies, reserved for direct recruitment and promotion respectively in the Recruitment Rules."
4. Similar issue relating to the dispute between promotees and direct appointees over inter-se seniority fell for consideration before the Hon'ble Apex Court in Hariharan & Others vs. Harsh 2 (2012) 13 SCC 340 8 OA.No.170/00342/2020/CAT/BANGALORE Vardhan Singh Rao & Ors.3 The direct recruits had challenged the seniority List dated 13.02.2018 in Writ Petition before the Hon'ble High Court of Gujarat inter alia seeking for setting aside the clarification dated 17.01.2018 with the consequential prayer of restoring the seniority list dated 07.09.2016. The Hon'ble High Court of Gujarat was pleased to quash the seniority list dated 13.02.2018 and restore the seniority list of 07.09.2016 with a clarification that only those direct recruits who were eligible and qualified in the recruitment year 2009-10 shall be interspaced with 53 promotees who were promoted vide DPC dated 29.06.2009. By way of an interim order, the status quo as of that date was ordered to be maintained by the Hon'ble Apex Court in Special Leave Petition No. 16161/2018, which was the subject matter of the said Civil Appeal, Hariharan3 considered by the Hon'ble Apex Court. After considering the submissions made by both the parties, the Hon'ble Apex Court in Hariharan3 has formulated the issues. The first issue is whether the decision of the Hon'ble Apex Court in K. Meghachandra Singh's case1 is per incuriam or in the alternative, whether it requires re-consideration being in conflict with the decision of the Constitution Bench in the case of Mervyn 3 Civil Appeal arising out of SLP (C) No. 16161/2018 with Diary No. 12422/2022 dated 14.12.2022 9 OA.No.170/00342/2020/CAT/BANGALORE Coutindo & Ors. vs. Collector of Customs, Bombay & Ors.4 and the decision of a Bench of three Hon'ble Judges in the case of M. Subba Reddy & Anr. vs. A.P. State Road Transport Corporation & Ors.5 The second issue is, assuming that the decision of the Hon'ble Apex Court in N.R. Parmar's case2 stands overruled, in view of its prospective overruling, whether the inter- se seniority of the direct recruits and the promotees in the facts of the case could be determined as per the decision in N.R. Parmar's case2. The third issue is whether the recruitment year is a financial year or a calendar year. Lastly, in the facts of that case, whether the process of recruitment of direct recruits commenced in the very recruitment year in which the vacancies arose.
5. Having answered the factual issues, the legal issues are considered. Considering the findings rendered by the Hon'ble High Court of Gujarat in the judgment impugned therein, observed that the Hon'ble High Court has expressly relied upon the decision of the Hon'ble Apex Court in the case of N.R. Parmar2, by applying the said decision to the facts of the case, the Hon'ble High Court held that:
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(1966) 3 SCR 600 5 (2004) 6 SCC 729 10 OA.No.170/00342/2020/CAT/BANGALORE "i. Requisition for 35+11 vacancies for direct recruits was sent to CBDT in the recruitment year 2009-10 itself;
ii. The recruitment for the said vacancies could not be held during the recruitment year 2009-10 for the reasons for which the candidates were not responsible;
iii. It is not the case that the eligible candidates for filling in the posts of direct recruits were not available in the year 2009-10; iv. The seniority list dated 7th September 2016 which was prepared in terms of the decision of this Court in the case of N.R. Parmar2 was required to be restored with a clarification that those direct recruits who were eligible in the recruitment year 2009-10 should be interspaced with 53 promotees appointed during the year 2009-10; and v. The seniority list dated 7th September 2016, which was the final seniority list, could not be modified without giving an opportunity of being heard to the affected candidates. Therefore, the amended seniority list dated 13th February 2018 was illegal."
Regarding the decision of K. Meghachandra Singh1, the Hon'ble Apex Court has held in paragraph 28 as under:
"28. With the greatest respect to the Hon'ble Bench which dealt with K. Meghachandra's case1, we find that the attention of the Bench was not invited to the binding decision of the Coordinate Bench in the case of M. Subba Reddy5. This decision was rendered by a Bench of three Hon'ble Judges. This Court in the case of M. Subba Reddy5 dealt with the issue of the fitment of the promotees to the posts of Assistant Traffic 11 OA.No.170/00342/2020/CAT/BANGALORE Manager and Assistant Mechanical Engineer in the integrated seniority list. The majority judgment refers to the relevant Service Regulations which provide that seniority is reckonable from the date of appointment to service or grade. Paragraphs 6 and 7 of the said decision read thus: ..............."
Thereafter, considering the judgments in the case of Union of India and Ors. vs. S.D. Gupta & Ors.6 and Mervyn Coutindo4, has summarized the conclusion in para 33 and 34 as under:
"33. Thus, our conclusion can be summarised as under:
i. The decision in the case of K. Meghachandra1 requires reconsideration by a larger Bench in view of the fact that the binding decision of a Constitution Bench in the case of Mervyn Coutindo4 and another binding decision of a Coordinate Bench in the case of M. Subba Reddy5 were not placed for consideration before the Bench which decided the case of K.Meghachandra1;
ii. Even assuming that the case of K. Meghachandra1 was correctly decided, paragraph 39 of the decision shows that the decision in the case of N.R. Parmar2 has been prospectively overruled by observing that the decision will not affect the inter-se-seniority already fixed on the basis of the case of N.R. Parmar2 and the same was protected. It is also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy / the date of advertisement. In this case, as on the date when the case of N.R. Parmar2 was decided, there was no rule which required that the inter-se-6
(1996) 8 SCC 14 12 OA.No.170/00342/2020/CAT/BANGALORE seniority of direct recruits and promotees to the post of Income Tax Inspectors should be fixed from the date on which a person is born in the cadre. In the facts of the case, the seniority list was correctly published on 7th September 2016 in terms of the decision in the case of N.R. Parmar2 by interspacing those direct recruits who were eligible in the recruitment year 2009-10 and were appointed against the vacancies of the said year with 53 promotees who were promoted vide DPC dated 29th June 2009. The seniority list was later on modified on 13th February 2018 without giving an opportunity of being heard to the affected direct recruits.
34. At this stage, we may note here the factual aspects stated in the affidavit dated 12th October 2022 filed by Shri Anurag Chandra, Deputy Commissioner of Income Tax in the Office of the Principal Chief Commissioner of Income Tax, Gujarat. The affidavit refers to the interim order dated 13th July 2018 in the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which status quo as of that date with respect to the posts held, was ordered to be maintained. The affidavit notes that as a result of the interim order, the promotion to the cadre of Income Tax Officers from the cadre of Income Tax Inspectors could not take place. As a result, 33.33% of posts in the cadre of Income Tax Officers are vacant as the same cannot be filled in. As noted earlier, the decision in the case of K.Meghachandra1 applies prospectively i.e. from 19th November 2019. Prima facie, the seniority fixed based on the decision in the case of N.R. Parmar2 has to be given effect. Therefore, while we are recommending a reference to a larger Bench, interim relief will have to be vacated and seniority will have to be fixed on the basis of the impugned judgment, subject to the final outcome of the appeal or the decision of the larger Bench, as the case may be."
In para 35, the Hon'ble Apex Court has passed the order as under: 13
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"35. Hence, we pass the following order:
i. We are of the considered view that the following questions need to be decided by a larger Bench of five Hon'ble Judges:
a. Whether the decision in the case of K. Meghachandra1 can be said to be a binding precedent in the light of the law laid down by the Constitution Bench in the case of Mervyn Coutindo4 and the law laid down by a Coordinate Bench in the case of M. Subba Reddy5?
b. In absence of specific statutory rules to the contrary, when the 'rotation of quota' rule is applicable, whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following 'rotation of quota' by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year?
ii. We direct the Registry to place this petition before Hon'ble the Chief Justice of India for appropriate orders.
iii. The interim relief granted on 13th July 2018 stands vacated. Effect shall be given to the impugned judgment subject to the final outcome of this appeal or reference, as the case may be. We also clarify that the seniority of promotees and direct recruits who may be appointed hereafter will be subject to the final outcome of the decision of this appeal or the decision in reference, as the case may be. Accordingly, concerned persons shall be informed in writing by the Income Tax Department."
6. Similar issue was considered by this Tribunal in OA No. 184/2022 and connected matter and the same has been disposed of 14 OA.No.170/00342/2020/CAT/BANGALORE in terms of the order passed by the Hon'ble Apex Court in Hariharan3.
7. Thus, the matter is now seized of by the Hon'ble Apex Court. In the circumstances, it can be held that the seniority list based on N.R. Parmar2 cannot be disturbed subject to the final outcome of the appeal or reference in Hariharan3. Hence, we pass the following :ORDER:
1) OA stands disposed of confirming the impugned orders at Annexures-A5, A6 and A7 dated 09.12.2019, 05.03.2020 and 23.06.2020 respectively, so far as the promotion of the Respondents No. 6 to 20 is concerned, subject to the final outcome of the appeal or reference in Hariharan3, supra.
2) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/