Central Administrative Tribunal - Delhi
R.K. Sharma S/O Shri B.R. Sharma And Ms. ... vs Union Of India (Uoi) Through Secretary ... on 14 November, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. Whether an official promoted based on DPC recommendations against "purely temporary post sanctioned for Census of India - 2001" is entitled to be "adjusted" against regular vacancies arising subsequently, overlooking the mandate of statutory Recruitment Rules (RRs), is the issue raised in present application?
2. Admitted factual position is as under.
(a) Two applicants and respondents 3 & 4 were permanent Senior Geographers in the Office of the Registrar General, India, Ministry of Home Affairs. Applicants were senior to said respondents, as they were appointed based on direct recruitment on 03.02.1983, while respondents 3 & 4 were promoted on 23.2.1984 and 28.1.1988 respectively. Registrar General, India has a legal obligation for conducting census once in every 10 years for which temporary posts are created in different cadres for certain duration. Vide Notification dated 29.03.2001 applicants as well as respondents 3 & 4, based on DPC recommendations dated 30.10.2000, were appointed by promotion, in a temporary capacity, to the next post of Research Officer (Map). Applicants were appointed w.e.f. 27.12.2000, while respondents 3 & 4 were appointed w.e.f. 08.12.2001 and 10.01.2001 respectively. However, applicants' names figure at serial Nos. 3 & 4 while respondents 3 & 4 figure at serial Nos. 1 & 2 of said notification dated 29.03.2001. Said notification further recited in specific the following:
The above promotion of the officers have been made against the purely temporary posts sanctioned for census of India-2001 and will continue upto the period these posts are sanctioned. The officers shall stand reverted to the post of Sr. Geographers on abolition of these census posts even if no separate order for reversion is issued.
(b) Shri Jogesh Das, Research Officer (Map), retired on attaining the age of superannuation and, therefore, caused a regular vacancy in said cadre on 30.11.2001. Similarly, another regular vacancy arose due to untimely demise of one Shri Shyam Deo on 21.04.2004. No DPC was convened to fill up aforesaid two vacancies in terms of statutory Recruitment Rules notified on 23.02.2001 and published in Gazette of India dated March 10, 2001. According to said Recruitment Rules, Research Officer (Map) is a General Central Service Group "A" Gazetted Non-Ministerial, selection-cum-seniority post, to be filled by promotion failing which by deputation failing both by direct recruitment. Senior Geographer with five years regular service in the grade is eligible for promotion and as per column 14, consultation with UPSC is necessary on each occasion. Respondent 4 was "adjusted against the core post" vide order dated 19.08.2004. Similarly, respondent 3 was also adjusted without holding DPC as per rules. Applicants made identical representation dated 09.11.2004 against aforesaid action of respondents 1 & 2, which according to them, was a back-door entry by way of subterfuge, which was absolutely illegal, unjust and arbitrary besides violative of Articles 14 & 16 of the Constitution. Their objections were rejected by separate but similarly worded Office Memorandum dated 18.02.2005, stating that their earlier promotion vide order dated 26.12.2000 was in accordance with RRs for said posts. Though it was admitted that respondents 3 & 4 were juniors to them in the seniority list of Senior Geographers, but it was emphasized that said respondents had superseded applicants herein. Promotions made earlier were "regular in nature and cannot be equated with ad-hoc promotions. The adjustment of senior-most Research Officer (Map) holding the census posts against long-term core posts in the cadre of Research Officers (Map) is very zmuch in accordance with the existing rules and regulations", was the specific stand of respondents No. 1 - 2.
3. The grievance is that respondents' action in "adjusting" respondents Nos. 3 & 4 against core vacancies in the cadre is illegal, arbitrary, untenable and de hors of RRs, besides violative of Articles 14 & 16 of the Constitution of India. The said impugned OM dated 18.02.2005 is liable to be set aside and respondents be directed to hold DPCs to fill up said two vacancies as per provisions of relevant Recruitment Rules & instructions after considering their claim with consequential benefits.
4. Respondents 1 - 2 resisted the claim laid, stating that 8 promotions made based on DPC dated 30.10.2000 were in accordance with RRs, from amongst eligible Senior Geographers. A person, who has been recommended by a regular DPC is not subjected to the scrutiny by another DPC. Such procedure had been upheld in various judgments and one of such judgment is in Civil Appeal No. 3819 of 1989, Shri Krishna Singh and Ors. v. Union of India, decided on 06.09.1989. A person initially appointed against a temporary Senses post in a cadre can be adjusted against future regular vacancy. Applicants' representations were considered and rejected assigning appropriate reasons & justification. Respondents No. 3 & 4 superseded the applicants and, therefore, they became senior to them in the cadre of Research Officer (Map). Such adjustment of senior-most Research Officer (Map) holding the census post against long term core post in the cadre of Research Officer (Map) is very much in accordance with existing rules and regulations. Temporary posts sanctioned for census of India - 2001 are still continuing. It is endeavour of the department not to revert officers promoted based on recommendations of DPC, convened as per Recruitment Rules. Reversion is resorted to as a last measure. There was no need to conduct a fresh DPC on availability of regular vacancy in the concerned cadre. Promotions were not temporary, though were against temporary posts created.
5. Applicants by filing detailed rejoinder rebutted the plea raised by respondents and in Civil Appeal Nos. 7430-31 of 1996 Mhd. Safdar Ali and Ors. v. Union of India and Ors. decided on 02.04.1998, Hon'ble Supreme Court had observed that earlier judgment in Shri Krishna Singh and Ors. (supra) "proceeded on an incorrect premises as to the recommendations of the Departmental Promotion Committee".
6. We heard learned Counsel for the parties and perused the pleadings and material placed on record carefully. At the outset, we may note that despite service, respondents No. 3 & 4 neither appeared nor filed their reply.
7. Shri L.R. Khatana, learned Counsel appearing for applicants vehemently contended that Respondents 3 & 4 promoted vide Notification dated 29.03.2001 based on DPC recommendations dated 30.10.2000 was against purely "temporary post sanctioned for Census of India-2001". Moreover, 7 officials were promoted. The zone of consideration and other features could not be at par & comparable with a situation when a regular vacancy comes into existence. There were only two regular vacancies and that too in different recruitment years. The first regular vacancy came into existence on 30.11.2001 on retirement of Shri Jogesh Das, while second vacancy arose on 21.04.2004 due to sudden demise of Shri Shyam Deo. As such, these vacancies arose in different recruitment years. The zone of consideration for such vacancies would have been totally different than the one which had been followed by the DPC held on 30.10.2000. As such, promotion made on such basis vide Notification dated 29.03.2001 is not comparable with regular promotions, as similar yardstick cannot be applied to it. The post in question is "selection-cum-seniority". It is an admitted fact that applicants were senior to said Respondents 3 & 4 in feeder cadre. Furthermore, for filling regular vacancy, the law requires department to convene DPC based on year-wise vacancy. Moreover, Respondents' stand that a person promoted, though against temporary and time bound post by holding DPC "in accordance with rules" could be adjusted later, as held in Shri Krishna Singh's judgment (supra) is not the law. The said judgment holds no field, after the latter judgment dated 02.04.1998 in Civil Appeal No. 7430-31 of 1996, Mhd. Safdaqr Ali and Ors.
8. The Ld. Counsel further maintained that right to consider for promotion by DPC is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is within the zone of consideration. Reliance was placed on Delhi Jal Board v. Mohinder Singh, particularly para-5, wherein such observations were made. Reliance was also placed on DOP & T OM dated 08.02.2002, which does not provide supersession in selection/promotion in the given circumstances. Said OM came into force from the date of its issue. Para-3 of said OM reads as follows:
3. Revised Guidelines The aforementioned guidelines which permit supersession in 'selection' promotion ('selection by merit') have been reviewed by the Government and after comprehensive/extensive examination of relevant issues, it has been decided that there should be no supersession in matter of 'selection' (merit) promotion at any level x x x x x x x x x x x Accordingly, various clauses of the main OM had been amended. Learned Counsel contented that as the first regular vacancy in cadre arose on 30.11.2001, 2 more ACRs than the one considered by earlier DPC dated 30.10.2000 were required to be considered while considering officials for promotion against said vacancy by a fresh DPC. This mandatory procedure has been violated, emphasized learned Counsel.
9. Reliance was also placed on Para 6.4.2 of DOP & T OM dated 10.04.1989, as amended from time to time, dealing with "procedure for filling up further vacancies in the same year", as well as Para 6.4.3 dealing with "service record to be scrutinized while preparing year-wise panel". The learned Counsel further contended that aforesaid OM did not contain a provision for "adjustment" of temporary promotion, as suggested and projected by Respondents 1 & 2. Therefore, respondents' stand is unjust, arbitrary and untenable in law. The statutory rules promulgated vide Notification dated 23.02.2001, as notified in the Gazette of India dated 10th March, 2001 are binding upon the Respondents and it cannot be breached. Such being distinguished features, recommendations of DPC dated 30.10.2000 would not hold the filed, and the regular DPC, for one vacancy which arose on 30.11.2001, ought to have been convened and the officials eligible as per aforesaid statutory Recruitment Rules within the zone of consideration alone are liable to be considered. Similarly, vacancy which arose on 21.04.2004 ought to have been filled by holding appropriate DPC. It is an admitted fact that no regular DPCs were held for the said vacancies. Reliance was placed on A.K. Bhatnagar and Ors. v. Union of India and Ors. wherein Hon'ble Supreme Court emphasized that rules framed in exercise of power conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect and once the rules are framed, Government's action in respect of matters covered by rules should be regulated by such rules. Para 13 of said judgment reads as follows:
(13) On more than one occasion this Court has indicated to the Union and the State governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to
10. Reliance was also placed on Bhavnagar University v. Palitana Sugar Mill (P) Ltd and Ors. particularly paras 40 & 59, to emphasize that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the Statute are only creature of statute and must act within the four corners thereof. The learned Counsel also maintained that para 59 of said judgment deals with how a decision should be read & followed. The said para reads as under:
59. A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the presidential value of a decision. See. Ram Rakhi v. Union of India, Delhi Administration NCT of Delhi v. Manoharlal, Haryana Financial Corporation. v. Jagdamba Oil Mills and Nalini Mahajan Dr. v. Director of Income Tax (Investigation).
11. Strong emphasis was also laid on Union of India and Anr. v. Major Bahadur Singh, wherein it was observed that:
The Courts should not place reliance on decisions without discussing as to how the factual situation fits in the fact situation of the decision on which reliance is placed. Observations of the court are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statues. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
12. An additional or different fact may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper, was the emphasis laid therein. Lord Denning's words that: "each case depends on its own facts and a close similarity between one case and another is not enough", was also noticed therein and emphasized.
13. Lastly, reliance was placed on State of A.P. and Ors. v. Goverdhanlal Pitti, to contend that respondents 1 & 2's action in the facts and circumstances of present case amounts to malice in law. The said term was defined with the help of Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989, which reads as under:
The legal meaning of malice is "ill-will or spite towards a party and any direct or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.
14. Lastly, the learned Counsel contended that Shri Krishna's judgment (supra), as relied by respondents, is no longer a good law as observed & clarified by Hon'ble Supreme Court in a subsequent judgment of Mhd. Safdar Ali (supra), arising from same Department in respect of same & similar issue. The contention raised therein and the manner in which it had been dealt with, needs to be noticed. Relevant excerpts read thus:
Mr. Ranjit Kumar, learned Counsel appearing for the appellants strenuously contended that injustice has been caused to these appellants by virtue of the earlier judgment of this Court in Civil Appeal No. 3819 of 1989 and that this Court has passed the earlier judgment on certain incorrect premises, it would be open for this Court to correct that error and to rectify that error by recalling the earlier Judgment and re-considering the matter afresh. Mr. Ranjit Kumar also contended that even under the statutory rules, respondents 5 to 8 should not have been promoted to the higher cadre by getting any accelerated promotion, and therefore, both on facts as well as on law the earlier Judgment cannot be sustained and this would be a fit case for invoking the power under Section 142 for rectifying the error committed by this Court.
There is no dispute to the fact that the earlier Judgment proceeded on an incorrect premises as to the recommendation of the Departmental Promotion Committee before giving ad hoc promotion to respondents 7 and 8, who were the appellants before this Court. But solely on that ground, the order of reversion of those appellants, who are respondents 7 and 8 in this proceeding was annulled by this Court as early as in the year 1989, cannot be set aside and it will not be proper to re-open the matter afresh. In the earlier proceedings which was merely in connection with the legality of an order of reversion, the present appellants cannot be held to be necessary parties. The Court was concerned with the question whether the order of reversion was in accordance with law and justified or not. No doubt, the effect of that Judgment has ultimately affected adversely so far as the seniority of the present appellants in the rank of Statistical Assistants is concerned, but that itself would not be a sufficient ground to re-call a concluded Judgment of this Court which was passed 9 years before, at this length of time. Even on examining the question as to whether by giving the ad hoc period in the post of Statistical Assistants, whether the present appellants can claim seniority over respondents, we find that is not possible since even on ad hoc basis, the appellants were promoted to the post of Statistical Assistant later than the respondents 7 and 8. Therefore, even if we extend our equitable relief in favour of the appellants, this will not help them until and unless the earlier order is reversed. We do not think the case warrants for such direction and in these premises, we have no other alternative but to dismiss these appeals.
These appeals are accordingly dismissed, but with no order as to costs.
15. Lastly, reliance was placed on Division Bench order dated 18.02.2005 in OA 505/2004 R.P. Mishra and Ors. v. Union of India and Ors. wherein the officials were reverted from the post of Research Officer (Map) to their substantive post of Senior Geographer. The said issue had been referred to a Full Bench of this Tribunal. Full Bench vide judgment dated 03.05.2005, in aforesaid case, considered whether earlier judgment rendered on 23.08.1999 in OA No. 1168/1995 Shri R.N. Chhipa v. Union of India and Ors. was correct in law and on the facts of the case. The Division Bench judgment in R.N. Chhipa had been quoted which, inter alia, observed that "Tribunal clearly missed out the rights of other persons, who were also due for promotion and were within the zone of consideration" With reference to above observation, the learned Counsel maintained that said concept of zone of consideration has been totally overlooked and grossly violated, as admittedly no DPC was convened for considering officials for promotion on arising of regular vacancy on 30.11.2001 & 21.4.2004. As we are not concerned about the other aspects dealt with in aforementioned case of R.N. Chhipa as well as R.P. Mishra, we have refrained ourselves from noticing other aspects of the matter.
16. Shri Rakesh Chahar, learned Counsel for Respondents 1 & 2 reiterated the stand projected in reply affidavit.
17. Having heard learned Counsel for parties and on bestowing our careful & thoughtful consideration to rival contentions raised, following aspects emerge:
i) DPC dated 30.10.2000, which recommended promotion of 8 officials to the grade of Research Officer (Map) was in relation to temporary vacancies created for Census of India - 2001 & that there had been some supersession;
ii) Promotion order dated 29.03.2001 specifically prescribed that promotions were against "purely temporary posts", & to continue "upto the period these posts are sanctioned";
iii) Regular vacancies in the cadre became available on 30.11.2001 and 21.04.2004;
iv) Respondents 3 & 4 were "adjusted" against the core post in the cadre vide order dated 19.08.2004 without convening regular DPCs, though amended RRs were published in Gazette of India dated 10.03.2001;
v) On availability of regular vacancies in the years 2001 & 2004 not only the zone of consideration had undergone major changes, even DOP&T OM dated 08.02.2002 also provided "no supersession in selection/promotion";
vi) As per OM issued on the said subject and as per law laid down by Hon'ble Supreme Court in UOI v. N.R. Banerjee and Ors. , DPCs should have been held on yearly basis;
vii) The judgment of Hon'ble Supreme Court in Shri Krishna Singh (dated 6.9.1989) is no longer holding the filed as observed on 2.4.1998 in Mhd. Safdar Ali and Ors Civil Appeal No. 7430-31 of 1996.
18. In the backdrop of above, the only issue which remains for consideration is whether respondents' action in "adjusting" Respondents 3 & 4 against core post without convening regular DPC is tenable in law.
19. In our considered view, the question raised has to be answered in negative for more than one reason. There has been drastic change in the consideration zone, Rules in vogue, namely supersession in promotional posts of seniority-cum-merit nature having been dispensed with, and there being no rule or law authorizing Respondents 1 - 2 to "adjust" the officials promoted against temporary vacancies, Respondents' action in not holding DPCs for filling regular vacancies cannot be justified. Reliance placed on Shri Krishna Singh's judgment, in our considered view, is misplaced and the said judgment is not the law, as clarified subsequently in Mhd. Safdar Ali and Ors. For one vacancy where promotion is to be made by selection-cum-seniority & selection by merit, the zone of consideration has been 5 Officers and, therefore, it became more imperative upon the Respondents to convene the DPC. Merely because a DPC was held on 30.10.2000 would not hold the field particularly when not only the nature of vacancy has undergone a change, but the number of vacancies also varied substantially. We find justification in the contention raised by applicants that as per mandate of law declared in A.K. Bhatnagar (supra), Respondents No. 1 & 2 were bound to regulate promotions in accordance with rules framed in exercise of powers conferred under proviso to Article 309 of the Constitution. It is certainly a case where Respondents 1 & 2's action in "adjusting" Respondents 3 & 4 against regular vacancies, is contrary to mandate of statutory RRs and law in vogue. By doing so, the Respondents have landed itself into problem. Such adjustment of officials, who were initially promoted against "temporary posts" is not permissible against "regular vacancies" in terms of statutory rules framed by Respondents, cannot be approved. The issue raised in present OA, in our considered view, is distinct from the one raised in Shri Krishna Singh as well as Mhd. Safdar Ali (supra). It is no doubt true that the relief was not granted in Mhd. Safdar Ali, but that would not change the basic aspect and observation made therein that judgment in Shri Krishna Singh proceeded on an incorrect premises. As per law declared by Hon'ble Supreme Court, an official has a fundamental right of consideration for promotion to next higher post and such consideration has to be fair and not a mere formality.
20. Taking a cumulative view of the matter and in view of the discussion made hereinabove, we find substance and justification in applicants' contentions. Accordingly, OA is allowed. Adjustment of Respondents 3 & 4 against regular vacancies is held to be illegal, arbitrary, unjust and untenable in law. Respondents' action "adjusting" Respondents 3 & 4 against regular vacancies is quashed and set aside. Respondents are directed to convene fresh DPCs for filling regular vacancies, which came into existence on 30.11.2001 and 21.04.2004 in accordance with rules and law on the subject. There shall be no order as to costs.