Central Administrative Tribunal - Delhi
Ex-Sub Major Dalbir Singh Je (E&M) vs Union Of India & Ors Through on 29 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2266/2014 M.A. No.1903/2014 Order Reserved on 06.05.2015 Order Pronounced on: 29.05.2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) 1. Ex-Sub Major Dalbir Singh JE (E&M) JC-174758P, R/o Flat No. E-802, Sispal Vihar, Sec-49, Gurgaon, Haryana. 2. Ex Nk Onkar Singh, JE (E&M), Dipti Sahab Ka Hata Bishungarh Road, Chhibramau, Distt. Kannauj, UP-209721. 3. Ex-Sub Maj Subhash Chand JE (E&M), JC-191535N, R/o Village Habibpur, PO Lushana, Distt. Muzaffar Nagar-251309. 4. Ex-Sub Maj Nadarge Chandrashekhar Pandurangrao JE (E&M), 5. Ex-Sub Major Harish Singh Dangi JE (E&M), R/o H. No. 147, Ward No. 1, Near FCI Godown, Haldwani Road, Kichha, Post Kichha, Distt. U.S. Nagar, Uttrakhand-26314. -Applicants (By Advocate: Shri M.K. Bhardwaj) Versus Union of India & Ors through: 1. The Secretary, Ministry of Defence, South Block, New Delhi. 2. Engineer-in-Chief, Rajaji Marg, Kashmir House, New Delhi. 3. The Record Officer, BEG & Centre, CCA-III Section, Roorkee, Uttrakhand-908779, C/o 56 APO. 4. The DG (Pers) E-IN-C Branch Rajaji Marg, Kashmir House, New Delhi. 5. The Secretary, UPSC, Shahjahan Road, New Delhi. -Respondents (By Advocate: Shri B.K. Berera and Shri Ravinder Aggarwal) O R D E R Per Sudhir Kumar, Member (A):
MA No. 1903/2014 filed under Rule 4 (5) (a) of C.A.T. (Procedure) Rules, 1987 for joining together, is allowed.
2. The 5 applicants of this OA are aggrieved that the respondents have not appointed them as Junior Engineers against the 20% vacancies in terms of the Military Engineer Services (MES, in short) Junior Engineers (Civil) and Junior Engineer (Electrical& Mechanical) Recruitment Rules 2008, and the amended Recruitment Rules as notified in the year 2011.
3. The applicants are further aggrieved by the discriminatory act of the respondents in not filling up the 20% vacancies meant for Ex-Servicemen in the MES by calculating the vacancies on an year-wise basis, but rather filling them up from other sources.
4. The MES has two parallel sets of ranks, one a Militarized Cadre and another a Civilian Cadre. The applicants had joined the MES Militarized Cadre in different capacities like, Naik etc. and, after fulfilling all the eligibility conditions as per the Rules, and on completion of Diploma from the College of Military Engineering, Pune, as per the essential qualification required, some of them were promoted as Subedar Majors also. At that point of time they were assigned the same work as assigned to a Civil side JEs (E/M), (Civil), (B&R) & (QS&C) etc. They have submitted that as per the SRO 78 of the MES, the Militarized Personnel Below Officer Rank (PBOR, in short) are considered for appointments equivalent to the civilian JEs.
5. It is submitted that after considering the fact that the PBORs have a retirement age much less than their civilian counterparts holding the same posts, and realizing that by retiring them at an early age, the MES was letting go of experienced hands without their being fully utilized, Rules were framed to provide for that 10% of the Civilian side vacancies in MES shall be filled up by deputation/re-employment for Ex-Serviceman in accordance with Ex-Serviceman (Re-employment in Central Civil Services and Posts/Rules), 1979, if they fulfill the required educational qualification of three years Diploma in Civil Engineering from the recognized Institute/University /Board or equivalent. The stipulation of those instructions is that in the last year of their Militarized service, the PBORs in MES are required to submit applications for their deputation-cum-re-employment in MES, which are then sent for consideration, and preparation of panel. The applicants have submitted that their applications were also forwarded in the year 2009-10 itself for consideration for appointments against the 10% vacancies of JEs (Civil) in MES as per the un-amended Recruitment Rules. It has been submitted that consideration of their cases had to be done after calculating the year-wise vacancies of JE (MES), but such vacancies were never openly disclosed by the respondents, and since, as per the normal practice, all the PBORs used to get such re-appointments in the past, the applicants had no occasion to seek details of availabilities of vacancies at that time. When they approached the respondents, they were told that their cases were considered by the Board of Officers, and after making a comparative assessment, a panel was prepared and sent for approval to Respondent No.3.
6. Since normally such intimations regarding deputation-cum-re-employment (DCRE, in short) and the actual re-employment afterwards used to be done in the past within 6 months to 1 year prior to the date of retirement, the applicants represented and were told that their names had not been recommended for want of vacancies. The applicant No.1 then approached the Chandigarh Bench of this Tribunal in OA No.439/HR/2008. However, the said OA was closed since the quota meant for the DCRE was only 10%. The other similarly placed persons also filed other OAs before the Tribunal. When the respondents realized that grave injustice was being caused to the PBOR, as they were being made to retire at an early age, in spite of having 20-25 years experience and better qualifications, a process was initiated vide letter dated 18.11.2008 for increasing the percentage of Ex-Servicemen (PBOR) for appointment as Civilian JEs from 10% to 20% against the DCRE quota. The proposal was approved, and the amended Recruitment Rules were notified accordingly on 27.04.2011, providing that 20% of the civilian posts of JEs will be filled up from amongst the PBOR Armed Forces Personnel/Combatants personnel, retired or due to retire from an appropriate rank. Since the applicants felt that they met all the eligibility conditions, they thereafter expected that their cases will be considered, even if there had been a delay, like in the past, when the retirees of the year 2001-02 had got re-employment on 25.11.2003, after upto 18 months of their actual retirement from the Militarized Wing.
7. The applicants have submitted that although the respondents were conscious that all the expertise was going waste due to early retirement of PBORs, and had enhanced the DCRE quota from 10% to 20% for the welfare of such Ex-Servicemen, still they did not take timely action to fill up the more than 800 such available posts in MES, and did not finalize the process of appointment, by merely delaying it deliberately. When the identically placed persons filed OAs No.2214/2010 & 1015/2010, those OAs came to be disposed of on 19.07.2011 with directions to the applicants to consider the cases of the applicants therein. When even after this the respondents did not comply with the orders in the OAs, CPs No.799/2011 & 804/2011 in OA No.1015/2010 with CP No.890/211 in OA No.3267/2011 came to be filed, which also stood disposed of on 10.05.2013, on the basis of the statements made by the respondents that they are considering the cases of the applicants of the OAs as per the amended SRO-32/2011.
8. The respondents then asked the eligible officials to submit their applications for such DCRE through their letter dated 23.04.2012, in which it was clearly mentioned that all persons who retired in between the dates 27.04.2011 and 30.06.2012 will be considered for appointment under DCRE quota. Since the present applicants before us in this OA had retired as Combatants during this very period, they laid their claim for such re-appointments. However, while the cases of the present applicants have not yet been considered, and they have remained waiting, the respondents have initiated action to appoint only those persons, who were parties in CP Nos.799/2011 & 418/2013 (supra). It was submitted that such discrimination is illegal, as the respondents were bound to consider the cases of all persons equally placed, and not merely of those persons who were party in a Court case, which is contrary to the law as laid down by the Honble Apex Court in Purnendu Mukhopadhyay and Others vs. V.K. Kapoor and Another JT 2007 (12) 438 as well as in the case of Inderpal Singh Yadav & Ors.. Therefore, in filing the present OA, the applicants had taken the following grounds:-
i) The respondents have acted contrary to their own letter dated 23.04.2012, whereby applications have been called for for appointments under DCRE quota, and yet the respondents have not taken any final decision in the matter;
ii) The respondents have not extended the benefits as made available by them to the applicants in OA No.2214/2010 & in OA No.1051/2010 (supra), as well as the petitioners who were in the Contempt Petitions cited (supra);
iii) That the respondents have failed to consider that since the applicants are identically placed, they are also entitled for consideration of their appointment on equal footing;
iv) That the respondents have violated the fundamental rights of the applicants under Articles 14 & 16 of the Constitution of India;
v) That the respondents have acted in violation of the Recruitment Rules, since they have failed to fill up 20% of the sanctioned strength by the re-employed combatants;
vi) That the respondents have not followed the Rules as amended by themselves, and have acted with complete disregard of the statutory Recruitment Rules;
vii) That the respondents have failed to fill up the posts from among all the eligible candidates, violating the rights of the applicants among others under Articles 14 & 16 of the Constitution of India;
viii) That the applicants have already rendered meritorious and outstanding services, and, therefore, their claims cannot be ignored by the respondents;
ix) A grave injustice has been caused to the applicants on account of failure of the respondents to fill up the JE vacancies in the proper proportions;
x) That the respondents could have initiated for filling up the JE vacancies even in DCRE quota even without filling up the quota meant for Direct Recruits;
xi) That the respondents could have simultaneously appointed both the Direct Recruits as well as DCRE quota persons, as per the respective cadre strength prescribed;
xii) That the respondents have failed to appreciate that as against more than 800 vacancies available for DCRE quota, there are not more than 150 qualified Ex-Servicemen who are available;
xiii) That the competent authority had used the word retired also in the Service Rules applicable for DCRE quota, but the Rules are being tried to be further changed to eliminate the retired officials, failing to recognize that they had retired only due to delay caused by the respondents alone;
xiv) That the respondents have not made any appointments since 2008 under the DCRE quota, leaving all the eligible persons in the lurch, and allowing them to become retired persons because of which only word retired had been added in the Service Rules for DCRE recruitment;
xv) That when the respondents had on their own issued the letter dated 23.04.2012 for considering the case of Ex-Servicemen retired between 27.04.2011 to 30.06.2012, and the applicants have retired in that period, because of which their applications were also accepted in June 2012, thereafter the respondents were not justified in not finalizing their claim for appointments as JE (Civil) under DCRE quota.
9. In the result, the applicants have prayed for the following reliefs:-
i) to direct the respondents to consider and appoint the applicants to the post of JE (Civil) and JE (E/M) by way of deputation-cum-re-employment against the available vacancies i.e. more than 800 with all consequential benefits including arrears of pay.
ii) to declare the action of the respondents in not calculating the vacancies meant for re-employment-cum-deputation quota correctly and diverting the same to DR quota as illegal.
iii) to direct the respondents to prepare the merit list/select list of MES Militarized cadre for deputation/Re-employment for the relevant years and fill up the vacancies meant for the Deputation/Re-employment quota as per the relevant RRs.
iv) to direct the respondents to consider the applicants for appointment under DCRE Quota as per conditions mentioned in letter dated 23.04.2012 and at par with similarly placed persons i.e. applicants in CP No.418/2013, 799/2011 & OA No. 1015/2010 & 1114/2012.
v) to pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
10. The respondents filed their counter replies separately, with reply of Respondents No.1 to 4 being filed later on 13.04.2015, and the reply of Respondent No.5 UPSC being filed earlier on 10.09.2014.
11. In the short reply filed on behalf of Respondent No.5-UPSC, it was submitted that a proposal for filling up of 92 civilian posts of JE (Civil) and 54 posts of JE (Electrical & Mechanical) in the MES in Pay Band-2 of Rs.9300-34800+Grade Pay of Rs.4200/- for the vacancy year 2009-10, 2010-11 and 2011-12 on DCRE basis was received by the UPSC under Single Window System on 04.02.2013, along with 171 applications for filling up those posts (90 posts for JE (Civil) & 81 posts for JE, E&M). The UPSC had pointed out that the SRO-78 of the year 2001 prescribing for such DCRE accommodation of MES Militarized Cadre who were due to retire was amended through SRO 32 dated 27.04.2011, which had on the one hand increased the quota from 10% to 20%, and, on the other hand, made both retired as well as due to retire Militarized persons eligible for such re-employment, up to the age of superannuation in respect of civilian posts.
12. However, since the DoP&T OM dated 01.05.1986 in this regard did not provide for retired persons to be considered for appointment on deputation in various posts, therefore, in order to bring the amendments brought about through SRO-32 dated 27.04.2011 in consonance with the extant DoP&T instructions, an amendment was initiated for deletion of the word retired from the Recruitment Rules, and through SRO- 24 dated 17.04.2012, the aforesaid earlier Recruitment Rules dated 27.04.2011 were amended with retrospective effect. However, due to the inclusion of the word retired in SRO-32 dated 27.04.2011, a number of retired Ex-Servicemen personnel had also put in their applications for the posts, and when the department expressed its inability to consider their cases, they had approached this Tribunal in the aforesaid OAs No.2214/2010 & 1015/2010, which came to be disposed of with directions to the respondents to consider the grievances of the applicants therein.
13. It was submitted that in order to comply with the order of this Tribunal, a speaking order was passed on 30.09.2011, rejecting the candidature of those who had already retired before 27.04.2011, but the department sent a proposal to the UPSC on 01.02.2013, i.e., even after issuance of the SRO 24 dated 17.4.2012 deleting the word retired, by including the names and candidature of those candidates, who had retired from service during the interregnum period from 27.04.2011 to 30.06.2012. Even at the time of disposal of the above mentioned C.P. on 15.03.2012, an undertaking/assurance had been given before this Tribunal that the cases of the petitioners therein, who were applicants in the respective OAs, will be considered in terms of the SRO 32 dated 27.04.2011, which had included the word retired also. Respondent No.5-UPSC mentioned that it is relevant that even when this undertaking was given, the proposal for amendment of the said SRO-32 dated 27.04.2011 with retrospective effect had already been moved, and was under process, but that had not been brought to the notice of the Tribunal.
14. Respondent No.5 UPSC had then submitted that as per Rule-5 of Recruitment Rules for the post, the powers to relax the provisions of Recruitment Rules is with the Central Government, and when the Ministry of Defence was advised by the UPSC to obtain necessary relaxation from DoP&T for consideration of the applicants, as well as all other similarly placed persons, who had retired from service in the period from 27.04.2011 to 30.06.2012 for being considered for DCRE, it was understood that when Ministry of Defence had consulted DoP&T, the latter Department DoP&T had not agreed to the proposed relaxation in Recruitment Rules for considering the candidature of the retired Militarized personnel. It was after this that when during the hearing of the Contempt Petition No.799/2011 in OA No.1015/2010 on 21.05.2014, this Tribunal had passed its detailed order in the C.P., which was reproduced in the affidavit of the UPSC, through which another opportunity had been granted to the alleged contemnors to comply with the orders in the OAs, their cases had been taken up for a fresh consideration.
15. The Ministry of Defence, in consultation with Department of Legal Affairs, once again decided to seek a one time waiver from DoP&T to comply with the Tribunals order, but the DoP&T opined that since the Recruitment Rules 2011, as had been amended later in 2012 with retrospective effect from 27.04.2011, did not allow for consideration of retired Combatant Personnel, it was suggested by DoP&T to Ministry of Defence to consult for filing an appeal in the case. The Respondent No.5-UPSC then said that they were left with no option thereafter, since the DoP&T is the nodal Department in service matters, and it had opined on 31.07.2014 to file an appeal in the Honble Delhi High Court, and the Ministry of Defence had been advised to act accordingly.
16. It was submitted by the UPSC that the Ministry of Defence, in consultation with DoP&T and Department of Legal Affairs, was now in the process of filing an appeal against the order passed in the above said contempt case. We fail to understand as to how, after giving a solemn assurance by way of an affidavit in order to extricate themselves from a Contempt case, the respondents can in this manner approbate and reprobate.
17. Seven months later, when the respondents No. 1 to 4 filed their counter reply on 13.04.2015, they still took the stand that the SRO 24 dated 17.04.2012 has come into effect with retrospective effect dated 27.04.2011, and the word retired earlier appearing in column 11 relating to eligible persons for DCRE quota stood deleted. It was also submitted that the OA is time barred as the applicants had applied for DCRE vide applications dated May 2012 and June 2012, and had filed this OA only on 30.6.2014. It was further submitted that the applications for DCRE were required to reach the relevant office of Respondent No.3 on or before 1st March and 1st September in respect of those whose date of discharge from Combatant Forces is between 1st January to 30th June and 1st July to 31st December respectively.
18. It was submitted that the DCRE Scheme is applicable to those Armed Forces Personnel are first continued on deputation terms up to the date on which they are due for release from the Armed Forces, and thereafter they are continued on re-employment basis. It was further submitted that since all the applicants of the present OA have already retired, therefore, their cases have not been finalized. Interestingly, in reply to the Ground A of the O.A., the Respondents No. 1 to 4 also stated that they were duty bound to take a final decision in respect of SRO 32 dated 27.04.2011, and had, thereafter, cited the same as it stood amended subsequently, with retrospective effect through SRO 24 dated 17.04.2011, without correctly citing SRO 32 dated 27.04.2011 as it had been issued initially.
19. It was further submitted that the commitment given to consider the case of the applicants in the above cited OAs No.2214/2010 and 1015/2010 had been conceded by the respondents in the relevant Contempt Petitions as a one time measure, and was supposed to be confined only to the petitioners of those OAs. They had submitted that there has been no violation of the rights of the applicants of this O.A. under Articles 14 & 16 of the Constitution of India, and as all the applicants of the present O.A. have already retired, their cases cannot be finalized, and, therefore, have not been finalized, and the respondents had then prayed for the OA to be dismissed with costs.
20. In their rejoinder as filed on 21.04.2015, the applicants had more or less reiterated their contentions as have already been noted by us in detail above. It was submitted that when the promotion and direct recruitment quota vacancies of JEs were being filled up, the DCRE quota vacancies could not have been kept unfilled, and that, in fact, there was no dearth or shortage of vacancies to be filled up against the DCRE quota also. It was further submitted that respondents have failed to acknowledge that when the applicants of the present OA had filed their applications for DCRE, they were also due to retire and had not retired. It was then the responsibility of the respondents to finalize the selection process early, so that the applicants could have got their appointments way back in 2012 itself. It was also submitted that in their affidavit filed in the Contempt proceedings in OAs No.1015/2010 and 2214/2010, the respondents have already clearly stated that other similarly placed persons would also be considered for such appointment, but the same had been denied to the applicants in the instant case, and, therefore, they are entitled for the same orders, inasmuch as they are placed in even better position than that of the applicants of the aforesaid earlier OAs.
21. It was further submitted that the very fact that the respondents have already appointed two persons after retirement, through their letter dated 10.02.2015 (Annexure RJ-4), goes to show that the respondents have considered the eligibility for appointment on the basis of date of submission of the application, and not on the basis of the date of claiming re-appointment, by filing OA or otherwise. It was submitted that irrespective of the with retrospective effect amendment of the said SRO-32, since the applicants had applied for appointment within the prescribed time, in response to the Circular issued by the respondents in this regard, and their applications were also duly forwarded for re-appointments, and were under consideration before the retrospective amendment was notified, the respondents could have finalized the claim of the applicants without any delay, so that the retrospective amendment later brought about could not have affected their claim. Therefore, the applicants had reiterated that since on the date of their applications, they were still Armed Force Personnel due to retire at the stage when their applications were forwarded for appointment, it is strange that the respondents are not considering the cases of the applicants now. It was submitted that the DCRE quota has not been filled up for the last 9 years, while the remaining 80% quota meant for promotion and direct recruitment vacancies is being filled up regularly. Certain other documents had also been filed by the applicants through an affidavit dated 30.04.2015.
22. Even after the judgment had been reserved for orders on 06.05.2015, on 07.05.2015 the learned counsel for the applicants filed further written submissions. In this he had submitted that apart from the case in the present OA being covered by the order dated 29.04.2015 in OA No.808/2014 Ex-Sub Maj Rajiv Naharia & Ors. vs. Union of India & Ors., the case of the applicants was also covered by another judgment dated 13.04.2015 in OA No.1239/2014 Ex. Sub/Maj Vidyadhar Swami & Ors. vs. Union of India & Ors.. He had pointed out that in the case of Ex. Sub/Maj Vidyadhar Swami & Ors. (supra) also the case of the applicants was that his application had been submitted in between the two relevant dates, and the delay had been caused only by the respondents, for no fault of the applicants, because of which the OA had been disposed of with directions to the competent authority to take appropriate decision in the matter, under intimation to the applicants, within two months. In the case of Ex-Sub Maj Rajiv Naharia & Ors. (supra) also, on 29.04.2015, the Bench in which one of us was a Member, had held as follows:-
2From 27.04.2011 to 16.04.2012, the prescribed recruitment rules said that even retired persons shall also be considered. Thereafter, w.e.f. 17.04.2012, the Column 11 of the Schedule to RRs was amended for Note 2 to provide that the retired persons would no longer be eligible for DCRE, but only persons who are about to retire, or to be transferred to reserve within a year would be eligible. Therefore, by an amendment in the RRs, the retired persons, who were eligible under rules in between 27.04.2011 to 16.04.2012 were excluded, and it was provided that the amendment dated 17.04.2012 would have retrospective effect. This aspect is covered by the decisions of this Bench in OA No. 2214/2014 & Ors. Decided on 21.05.2014. After serving the country for so many years, if ex-servicemen are made to run from pillar to post to earn further livelihood, it would reflect badly on the governance.
3. It appears that the issue also arose because of nobodys fault. But at that point of time, there was no vacancy, so MES could not have taken any action. Therefore, the word about to retire became irrelevant at that point of time. However, the Bench in the earlier OA had decided the matter proactively and dynamically by holding that by one time relaxation, the concerned applicants would be deemed eligible for DCRE under the recruitment rule whether it is deemed amended or pre-amended. It is also noticed that the word retired shall be deemed to be present; even otherwise also, these measures are made and incorporated in a system as an encouragement for ex-servicemen. Therefore, the way to look at it will be in general public interest and in the welfare of the ex-servicemen. This is a case in which morality cannot be taken away or substracted from legality. Legality must be understood in terms of morality which would be to grant appointment to the ex-servicemen. Therefore, we hold that the applicants are entitled to same benefits as have been extended to other similarly situated applicants in OA No. 2214/2010. The OA is allowed
23. It is, therefore, amply clear that the applicants of this OA are also entitled to the same benefits as have already been granted by the Coordinate Benches in the above cited cases. The result of all these judgments would be that anybody who had retired in the interregnum period in between 27.04.2011 to 16.04.2012, before the retrospective amendment dated 17.04.2012 came into effect, shall not be hit by the prescription in the amendment, that that amendment was retrospective in nature, and operative from 27.04.2011 itself.
24. Therefore, the OA is allowed to that extent, with further directions upon the respondents to calculate the 20% vacancies of PBOR w.e.f. 27.04.2011, and 10% vacancies of PBORs before that date, and maintain a proper register regarding the filling up of such year-wise PBOR vacancies separately, which cannot accrue to any of the two other categories of the modes of the recruitment, to the detriment of the persons who are retiring or have retired in the interregnum period from 27.04.2011 to 16.04.2012. This is the ratio of all the above cited judgments also, strictly as per the Rules.
25. No costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.