Central Administrative Tribunal - Ernakulam
Annu Cheriyachan vs Union Of India on 7 June, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.765/2013,
Original Application No.883/2013
& Original Application No.180/00307/2015
Wednesday, this the 7th day of June, 2017
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
Original Application No.765/2013
1. Annu Cheriyachan,
W/o.late P.V.Cheriyachan,
Upper Division Clerk,
Office of the Chief Engineer (NW) Kochi,
Kataribagh, Naval Base P.O., Kochi - 4.
Residing at Plachery House,
Mookkannur P.O., Ernakulam 683 577.
2. M.S.Thankamani,
W/o.V.K.Suresh,
Upper Division Clerk,
Office of the Chief Engineer (NW) Kochi,
Kataribagh, Naval Base P.O., Kochi - 4.
Residing at Varambath House,
Parry Junction, Thoppumpady, Kochi - 5.
3. Annamma Punnoose,
W/o.Punnoose Kurien,
Upper Division Clerk,
Office of the Command Works Engineers (NW) Kochi,
Kataribagh, Naval Base P.O., Kochi - 4.
Residing at Pattasseril House,
Chingavanam P.O., Kottayam - 686 531.
4. Susan Ninan,
W/o.Ninan Tharakan,
Upper Division Clerk,
Office of the Garrison Engineer, Kochi.
Residing at Tharakan Villa,
Jyothi Nagar, Kochi - 13. . . . Applicants
(By Advocate Mr.R.Sreeraj)
Versus
1. Union of India
represented by its Secretary to the Government of India,
Ministry of Defence, New Delhi - 110 001.
2. Engineer in Chief,
Military Engineer Services,
New Delhi - 110 010.
3. Chief Engineer,
Southern Command,
Military Engineer Services, Pune - 411 001.
4. Chief Engineer (Naval Works),
Military Engineer Services, Kochi - 4.
5. Commander Works Engineers (Naval Works),
Military Engineer Services, Kochi - 4.
6. Garrison Engineer (NS),
Military Engineer Services, Kochi - 4. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.883/2013
1. K.B.Suresh, S/o.late K.M.Bhargavan,
Upper Division Clerk,
Office of the Chief Engineer (Naval Works) Kochi.
Residing at Kooriyanvilakam, Vakkom P.O.,
Kadakkavoor P.O., Trivandrum District.
2. Tana Sathees, W/o.K.N.Satheesan,
Upper Division Clerk,
Office of the Chief Engineer (Naval Works) Kochi.
Residing at Kammankattil House, Kumbalam Ferry, Kochi - 6.
3. Sunitha Haridas, W/o.P.K.Haridasan,
Upper Division Clerk,
Office of the Garrison Engineer (Naval Works) Kochi.
Residing at Kottayil House,
Ayyappankavu West, Kochi - 18.
4. Indira Suresh, W/o.Sureshkumar,
Upper Division Clerk,
Office of the Garrison Engineer (Naval Works) Kochi.
Residing at Kunnakalamadam, West Kadungallur, Aluva.
5. Suseelamma Sam,
W/o.Sam Varghese,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works) Kochi.
Residing at Kuzhiyathu House,
Perumanoor P.O., Thevara, Kochi - 15.
6. Leelamma Thomas,
W/o.late V.J.Thomas,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works)
Kochi, Kataribagh, Naval Base, Kochi - 4.
Residing at Thejus, 1668/A, ISED Road,
Vennala P.O., Palarivattom, Kochi - 28.
7. Lali Pappy,
W/o.late M.John Thomas,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works),
Kochi, Kataribagh, Naval Base, Kochi - 4.
Residing at Menathu Bezaleel House,
Thoppumpady, Kochi - 5.
8. Resmi.V.A.,
W/o.P.S.Sammod,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works)
Kochi, Kataribagh, Naval Base, Kochi - 4.
Residing at Puthenpurayil House,
Palluruthy P.O., Kochi - 6.
9. M.Komalavally,
W/o.M.Manoharan,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works),
Kochi, Kataribagh, Naval Base, Kochi - 4.
Residing at Gandhi Nagar,
Kadavanthra, Kochi - 20.
10. R.Money,
W/o.K.Viswanathan,
Upper Division Clerk,
Office of the Garrison Engineer (P) (Naval Works) Kochi.
Residing at Chaithram,
Palluruthy, Kochi - 6. . . . Applicants
(By Advocate Mr.R.Sreeraj)
Versus
1. Union of India
represented by its Secretary to the Government of India,
Ministry of Defence, New Delhi - 110 001.
2. Engineer-in-Chief,
Military Engineer Services, New Delhi - 110 010.
3. Chief Engineer, Southern Command,
Military Engineer Services, Pune - 411 001.
4. Chief Engineer (Naval Works),
Military Engineer Services, Kochi - 4.
5. Commander Works Engineers (Naval Works),
Military Engineer Services, Kochi - 4.
6. Garrison Engineer (Naval Works),
Military Engineer Services, Kochi - 4.
7. Garrison Engineer (P) (Naval Works),
Military Engineer Services, Kochi - 4. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
Original Application No.180/00307/2015
1. M.Komalavally, W/o.M.Manoharan,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works),
Kochi, Kataribagh, Naval Base, Kochi - 4.
Residing at Gandhi Nagar,
Kadavanthra, Kochi - 20.
2. Tana Sathees, W/o.K.N.Satheesan,
Upper Division Clerk,
Office of the Chief Engineer (Naval Works) Kochi.
Residing at Kammankattil House,
Kumbalam Ferry, Kochi - 6.
3. Suseelamma Sam, W/o.Sam Varghese,
Upper Division Clerk,
Office of the Commander Works Engineers (Naval Works) Kochi.
Residing at Kuzhiyathu House,
Perumanoor P.O., Thevara, Kochi - 15. . . . Applicants
(By Advocate Mr.R.Sreeraj)
Versus
1. Union of India
represented by its Secretary to the Government of India,
Ministry of Defence, New Delhi - 110 001.
2. Engineer-in-Chief,
Military Engineer Services,
New Delhi - 110 001.
3. Chief Engineer,
Head Quarters Southern Command,
Military Engineer Services, Pune - 411 001.
4. Chief Engineer (Naval Works),
Military Engineer Services, Kochi - 4. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
These applications having been heard on 29 th May 2017, the Tribunal
on 7th June 2017 delivered the following :
ORDER
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER Since common question has arisen in all these three cases, all these Original Applications are heard together and we are pronouncing this common order in the aforesaid three cases.
2. There are four applicants in O.A.No.765/2013 and ten applicants in O.A.No.883/2013 and three applicants in O.A.No.180/307/2015. Applicants in O.A.No.765/2013 seek quashment of Annexure A-14 and Annexure A-15 therein and for a direction to be issued to the respondents to hold Review DPC at the Southern Command level, review the promotion from LDC to UDC and regularize/antedate the promotions in accordance with law and also to hold consequential Review DPC for further promotion as Assistant/Office Superintendent based on the outcome of the Review DPC for promotion from LDC to UDC and for other consequential benefits. The reliefs sought for in O.A.No.883/2013 and O.A.No.307/2015 are also almost the same.
3. Applicants in O.A.No.765/2013 contend as follows : The applicants entered service as LDC in 1995. For 25% vacancies of the UDC arising in a year, the applicants appeared for the LDCE conducted in 2002. They were declared successful in the examination. Since the examination was conducted against the 25% of the vacancies of UDC arising in a year, going by statutory obligation as well as mandatory Apex Court decisions, the respondents ought to have considered the applicants for promotions as UDC in the next DPC. But the applicants were not considered for promotion against 25% quota. From the seniority list of UDC it is seen that LDCs appointed in 1997 became UDC during the year 2003-2004 on account of their promotion immediately on their passing Limited Departmental Competitive Examination. The delay in timely promotion has inflicted perpetual injury to the applicants since it resulted in loss of further promotion as well. The requirement of convening annual meetings of DPC should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled up by promotion. In cases where there has been delay in holding DPC for a year or more vacancy should be indicated year wise separately vide Annexure A-1 and Annexure A-2. Despite availability of sufficient number of vacancies the respondents failed to make promotion to the category of UDC in the Southern Command of Military Engineering Service alone which has delayed the promotion of the applicant as UDCs. It has adversely affected their future promotions as well.
4. Even though Government of India issued from time to time orders insisting on timely holding of DPC the respondents did not take prompt action and thereby affected their promotion even when vacancies were available. DPCs were not held for promotion of LDC to UDC during 1984 to 1992 and thereafter in 1996 which affected the chain of promotions causing a perpetual injury to the applicants and as such they could not get further promotion to the post of Assistant. In other Departments promotions were granted promptly and thereby it caused serious prejudice to the LDC of Southern Command because it affected the further promotions to the post of Assistant/Office Superintendent etc. because it is done on the basis of All India seniority list. There was similar lethargy and delay in the Southern Command in making further promotion to the category of Assistant also. Against the authorization of 1262 Assistants the held strength as on 1.1.2005 was only 1100. The delay in holding DPC contributed considerably to the delay in the promotion of the applicants as UDCs. As per order dated 22.2.2002 against the vacancy of 2001-2002, 780 UDCs/Stenos were promoted, out of which 85 were already retired in 2001. 280 UDCs belong to Southern Command. Subsequently in August 2002 a panel of 297 was issued, out of which 170 belong to Southern Command. Had the promotions been effected in time and adjustments were made against the 165 vacancies the position would have been different. The applicants came to know the same only when the revised all India seniority list of UDC promoted up to 2006 was circulated as per Annexure A-8. The applicants collected materials through Right to Information Act. The information received reveals inexplicable administrative lapses and lethargy on the part of the respondents in holding DPC and granting promotions. Justice can be done by the respondents if a Review DPC was held from the year 1983 onwards in terms of the DPC guidelines of the Government of India and promotions are regularized and further promotions regulated in accordance with law. As per Annexure A-9 dated 29.9.2011 a revised panel has been issued antedating the promotions of Steno Grade 3 to the grade of Assistant for the vacancy year 1998-1999, 2000-2001 etc. It was done consequent to the directions of the Chandigarh Bench of this Tribunal. 117 promotions ordered earlier were thus antedated. As per the DPC guidelines the panel should be ready for the ensuing year well in advance, that is, by the end of March and hence respondents were not right in granting seniority from the date of DPC since the panel is being published for the vacancy year. The seniority must be based on the date of occurrence of vacancy. Pointing out the grievance, applicants submitted various representations (vide Annexure A-10 to Annexure A-15). But those representations were not properly considered by the respondents.
5. The respondents filed reply statement contending as follows : The 1st applicant became eligible to appear for LDCE in 2000, 2 nd applicant in 1996, 3rd applicant in 1991 and 4th applicant in 1993 on completion of five years of regular service as LDC in accordance with the stipulations of Recruitment Rules. The applicants passed the said examination only on 22.11.2002. Passing of LDCE is a mandatory requirement for promotion to UDC from LDC under 25% quota by selection-cum-merit. Therefore, the applicants can be considered for promotion in a DPC for the next ensuing year under the selection-cum-merit quota. Accordingly, the applicants were considered for promotion in the DPC for the year 2003-2004. The action of the respondents is in consonance with the Recruitment Rules. Promotion to the next post ie. UDC is subject to availability of vacancy and seniority of eligible candidate. Eligibility alone is not the criteria for promotion to the next post. Nobody can be promoted without meeting the eligibility criteria stipulated in the Recruitment Rules - Annexure A-3 and Annexure A-5. DPCs were regularly held but due to low position in seniority and limited vacancies the applicants could get promotions only later in their turn in the Southern Command. DPCs were regularly held to fill the available vacancies. Though the applicants were eligible, as they were lower in rank in the seniority and the vacancies were limited they could not be promoted prior to 2004. Promotion is not an automatic process. It depends on number of vacancies arising in a year in the next higher grades of the cadre. The authorization and held strength of UDCs of the Southern Command for the DPC year 1998-1999 to 2005-2006 is explained in Annexure R-2. The authorization/sanctioned strength of each command depends on the work load handled by it in a year and it may change from year to year. The policy of the Government of India decides the authorization of any cadre in a Government department. The authorization of UDCs of MES was revised to 4177 as per Government of India, Ministry of Defence letter dated 12.10.1994. It was revised to 3759 as per similar letter dated 8.11.1997. By restructuring, the authorization of UDCs was again revised to 3286 with effect from June, 2001. The applicants got promotions in their turn as per the seniority of LDCs. They cannot compare themselves with a set of employees of a different command wherein the number of eligible employees waiting for promotion to the next higher post/grade will be lesser than those in Southern Command. All India seniority was circulated with a view to keep every employees informed of his relative position with respect to other employees of the same rank and to give them an opportunity to get their grievances redressed due to any apparent manual mistake if any occurred for whatever reason. Once the correctness is ascertained, remedial measures as available as per law are taken in all cases immediately. The grievances of the applicants were redressed on receipt of observations on all India seniority list. There is no need to held a Review DPC to unsettle the settled issue. All India seniority list of UDCs is being regulated and outlined as per letter dated 3.8.2009 (Annexure R-3). Regular DPCs were conducted keeping in view the solemn requirement of Annexure A-1 and Annexure A-2 and taking note of the vacancies arising over the years due to promotion to the next grade, retirement etc. Therefore, the applicants are not entitled to any relief as claimed. Hence the Original Applications are liable to be dismissed.
6. A clarification statement was subsequently filed by the respondents. It is stated that the entire documents except original DPC proceedings prior to the year 2005 had already been destroyed as per the policy vide Annexure R-6. Therefore, the clarification sought by the applicants, that is against which year the 137 LDCs promoted in 1987 as UDCs were accommodated, is not available in the file. But senior most applicant/MES Smt.Sunitha Haridas, Office Superintendent was appointed on 18.3.1981 and as per SRO 233 of 4.10.1991 she became eligible for promotion after the prescribed eight years of service in the year 1989. Hence asking information for the year 1983 is not relevant. In 1987 only, vacancies were allotted/issued by Headquarters and so information about authorization and held strength for the year 1987 is not available with the 3 rd respondent. That information during the said period was not recorded in DPC board proceedings also and therefore figures sought for by the applicants could not be made available since old vintage records had already been destroyed as per Annexure R-6. The figure (+) 172 is the difference between authorization and held strength. That was taken from the Headquarters CE SC, Pune letter dated 3.11.1988 available within the DPC folder of the year as indicated in the remarks column of Annexure R-9(1). Also figures (+) 142 was taken from DPC folder of the year - Annexure R-5. The authorization and ceiling figure/vacancy changes every year as per the work load and are received by Headquarters CE SC, Pune from E-in-C Branch. Accordingly, DPC is being conducted by the Headquarters CE SC, Pune. The applicants are seeking clarification now in 2016 with respect to the years 1983 to 1986 after the lapse of 30 to 33 years. Those particulars are not available in the office since those records are destroyed as per the policy.
7. The applicants were informed that the original records of the establishment sanctioned for the year 1992-1993 is not traceable, being more than 23 years old. They also informed that the documents might have been destroyed by then. The records for the year 1992 are not available with the Headquarters, CE SC, Pune as informed by letter dated 22.8.2016 vide Annexure R-6 and Annexure R-7. Copies of Annexure R-7 were placed in b� 1993 DPC folderb� and other files maintained by the Southern Zone for ready reference and easy clarification of points. It was not part of the original DPC folder. 3rd respondent has carried out DPC/promotion as and when vacancies were released by the 2 nd respondent. The fact that no vacancy was released, implies that, during that particular year no vacancy was released by E-in-C's Branch and therefore no DPC was conducted. Since all the correspondent files and documents prior to 2005 had already been destroyed, the documents sought for by the applicants could not be made available.
8. Similar contentions are raised by the applicants in O.A.No.883/2013 and O.A.No.307/2015 and so pleadings in those cases are not reiterated.
9. The point for consideration in all these cases is whether this Tribunal should direct holding of a Review DPC at the Southern Command level to review the promotion from LDC to UDC and to antedate the promotions as sought for by the applicants.
10. Annexure A-14 and Annexure A-15 dated 19.1.2013 produced in O.A.No.765/2013 and Annexure A-11 and Annexure A-11 (a) produced in O.A.No.883/2013 based on which these O.As were filed would show that representations given by the applicants were disposed of by the orders mentioned above, the gist of which would show that promotion against 25% quota was done as per the seniority and passing of examination. It is also stated therein that DPCs were regularly held as per the vacancies available during the year 2001 to 2009 etc. The answer given would show that persons who made representations, though were eligible, could not be given promotions because of low seniority and limited vacancies and as such the applicants could not figure in the DPCs prior to 2007. Learned counsel for the applicants would refer to the relevant portion of the Government of India, (Department of Personnel and Training) dated 13.5.1991 and also the relevant portion of similar O.M dated 17.10.1994 in support of the contention that department should ensure that regular meetings of DPC are to be held every year for each category of post so that an approved select panel is available in advance for making promotion against vacancies arising over a year. It is also stated that it is essential that the number of vacancy in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible and for that purpose the vacancy to be taken into account should be clear vacancy arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional post on a long term. It is also stated that in cases, there has been delay in holding DPC for a year or more vacancies should be indicated year wise separately. Annexure A-3 is the notification dated 4.10.1991 issued by the Government of India which is actually the Recruitment Rules which came to be in supersession of the earlier rule of 1971. It is stated therein that the number of posts, classification and scale of pay shall be specific as in Columns 2 to 4 of the schedule. Learned counsel for the applicant would submit that column 2 therein would show that the total number is 7434 but it is subject to variation depending on work load, it is specifically noted. In the bracket as against 7434 it is shown as 1936, it appears. The last two figures are not so clear. Learned counsel for the applicants would submit that the figure shown in the bracket appears to be the authorized strength. Annexure A-4 is the cadre review dated 12.10.1994 which says that cadre review of MES Clerical Cadre had been revised, as a consequence of which, the revised strength of LDCs is shown as 4178 and that of UDCs is shown as 4177. That is with respect to the whole of the MES and not pertaining to the Southern Command alone.
11. Annexure A-5 is the Recruitment Rules/Notification dated 13.7.1999 issued by the Government of India, Ministry of Defence where the sanctioned strength of UDC is shown as 3759. It is shown as subject to variation dependent on work load and in the bracket, the figure shown is 1998, which appears to be the authorized strength. Annexure A-6 is the sanction order for restructuring the civilian component of the clerical cadre of MES where the existing strength as on that day was shown as 4178 and it was revised to 3314. Learned counsel for the respondents would submit that in all such notifications it was specifically mentioned that it would be dependent on the work load of each unit and zone and as such it cannot be said that in the Southern Command that much vacancy was available. It also depends on allocation of such post/strength to each of those zones. It is not given to a particular zone (Southern Command) alone. Annexure A-8 is the revised seniority list dated 25.7.2011. Clause 3 therein says that the seniority list is to be circulated down to all formalities for their meticulous scrutiny and authenticity of correctness. Clause 6 says that in case where the UDCs have refused/foregone their promotion, a copy of authority of acceptance of their refusal must be forwarded along with appropriate indication in the verified seniority list. Similarly it was also directed that the individual who have voluntarily retired/expired from service should also be intimated. Therefore, according to the respondents these documents would show which are the procedural formalities to be followed and since there is nothing on record to show that procedural formalities are not duly followed the applicants cannot now lament over the denial of promotion or delayed promotion after several decades. Annexure A-8 is another revised all India seniority list of UDC promoted up to 2006. That was issued on 18.8.2011. Annexure A-9 is the panel of Steno Grade 3 (clerical optees for promotion to the grad3e of Assistant in the MES) of the Ministry of Defence for the vacancy years 1998-1999, 2000-2001, 2001-2002, 2002- 2003.
12. Annexure A8 in OA 765/2013 is the revised All India Seniority List of UDCs promoted upto 2006. That order was issued on 25.7.2011. In paragraph 2 of Annexure A8 (3) it is stated that all India seniority list is to be disseminated to all Units under the jurisdiction of the Chief Engineer (NW) Kochi and other zones mentioned in those letters. The consolidated verification report and certificate as per para 5 of the HQ letter was to be sent to the HQ on or before 20.9.2011. Clause 3 therein says that the names and details of any other UDCs whose names were left out should be submitted with details as per proforma on which seniority list is prepared along with verification report. These documents are produced to show that the publication of seniority list took place only in 2011 whereas DPC for promotion to UDC was not conducted for several years ie., during 1984 to 1988, 1990, 1991, 1992 and 1996. The thrust of the contention raised by the applicants is that since DPC was not held promptly and properly it caused a perpetual injury to the applicant affecting the chain of promotion. They further contend that in other Commands, the DPCs were held promptly which enabled the LDCs to get promotion to UDCs and to the next promotion post and as such it did not affect the chain of promotion so far as other Zones/Commands are concerned. Their further grievance is that promotion from UDC to the post of Assistant and to the post of Office Superintendents is done based on the basis of All India seniority list. Since DPC was not convened in the Southern Command promptly during the relevant years and since there was delay of several years in conducting the DPC and granting promotion the counter parts in other commands who were granted promotion promptly and regularly could gain seniority over their colleagues in the Southern Command. In short the contention raised by the applicants is that so many LDCs who were in the same position as that of the applicants and similarly placed persons in the other Commands could get promotion to UDCs and thereafter to the post of Assistant etc. whereas the applicants and similarity placed persons do remain at the post of LDCs and as such they were pushed down to a considerable depth, that their chance of promotion to the next posts stood doomed. It is further argued by the learned counsel for the applicants that had the right thing been done at the right time promptly and properly the applicants could have got promotion as UDCs much earlier. But the delay in convening the DPC and effecting promotion at the right time has caused denial of chain of promotion to the UDCs and then to Assistant and then to Office Superintendent etc.
13. The learned counsel for the respondents would submit that had the original applications been filed at the proper time when the applicants satisfied the residency period enabling them to become UDC and if there was a denial of convening of DPC at the relevant time, then the department could have considered or they could have been directed to consider the grievance in the correct perspective at the relevant time. There would have been records in the HQ or in the Southern Command Office pertaining to the strength of the LDCs, UDCs and the higher posts and the vacancies which were then available so as to grant promotion to the applicants and other persons who were then LDCs to the post of UDCs and further promotion to Assistant, Office Superintendents etc. The learned counsel for the respondents would submit that since these applications were filed nearly 20 years after 1993, it is clearly a futile attempt on the part of the applicants to get directions as sought for in the applications since it would unsettle the settled position which stood there for nearly two decades.
14. The main argument that is advanced by the learned counsel for the applicants is that the respondents could find out a reason to deny the grievance of the applicant that the records pertaining to the same are not available. According to the applicants the records were available but respondents either caused destruction of the same or put forward a plea of unavailability of records taking into their folly in not convening the DPC for several years. But the respondents contend that the DPCs were held promptly but those DPCs were held for granting promotion as UDCs, but only to fill up the vacancies thus available during 2001, 2002 etc. According to them the DPCs were regularly held every year during 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 and 2009 etc.
15. The respondents would also contend that the applicants cannot compare with a set of employees of different command where the number of eligible employees waiting for promotion to next higher post/grade could be lesser than the number available in the Southern Command. The fact that LDCs or other employees similarly placed in other Commands were granted promotion earlier and so the applicants should have been granted promotion during those years is found to be only an evasive statement. The promotions granted in the other Zone or Commands are unassailable so far as the applicants are concerned. The respondents would maintain that the seniority list circulated to very Zone/Commands with a view to keep them alerted and to make them aware of their position in the list which would have certainly informed them as to their relative position with respect to other employees of the same rank. The applicants slept over the matter for decades together and now complain that the DPCs were not held promptly and regularly. If the DPCs were not convened regularly during 1984 to 1993 as averred by the applicants there was no reason why the applicants did not approach the authority/forum for redressal of the grievance at the appropriate time. By filing applications after more than 15 years the applicants cannot contend that the entire process has to be restarted or that a review DPC has to be convened which also would unsettle the settled position. First of all, as stated by the respondents no records pertaining to the DPCs held or with regard to the sanctioned strength and authorized strength etc. are available as all those records were destroyed as per rules long prior to the filing of these OAs. There can be no doubt that the records are destroyed as per the provisions relating to the destructions of records and, therefore, the applicants cannot now contend that the respondents should bear the consequence for destruction of the records. It is a case where the original applications were filed only in 2013. The respondents maintain that the records were destroyed several years prior to the filing of this OA. In the absence of any other documents it cannot be contended that the records were available on the date of filing of the OA. If it was a case where the records were available as on the date of filing, it could have been said that the respondents should be responsible to keep those records so as to enable the Bench to peruse the same to find whether there was any illegality, delay or laches on the part of the respondents in the convening of DPC. If those records were available it could have been found as to whether the vacancies were available during the particular year or years so as to enable the applicants to sustain their claim for ante dating their promotion. In the absence of any such documents it is nearly impossible to hold that vacancies were actually available during earlier years so as to ante date the promotion as claimed by the applicants.
16. The applicants contend that all the LDCs promoted in 1989 were senior to the applicants. It is stated that in the DPC of 1989 Smt.Devara Konda Sharadha under general category was the last LDC promoted whose serial number was 902. Smt.Sunitha Haridas, the 3 rd applicant in O.A.No.883/2013, was at serial number 1687 (as LDC). Therefore that itself will make the position clear that there were more than 700 members in between. The aforesaid statement was made with reference to Annexure R-4. In that letter itself it is stated that the seniority of the applicants are far below than the seniority of the last promotee and so the applicants could not be promoted due to very low seniority. It is pointed out that, among the applicants in O.A.No.883/2013 the seniority position of the 3 rd applicant was at 1687. Another applicant was at 1732. It goes on like that and the seniority of the last applicant in that case is 3152. Similarly Annamma Punnoose, UDC one of the applicants was at serial number 2811 whereas that of Susan Ninan who is also UDC was at 3047. Far below is the rank position of other applicants like Thankamani and Annu Cheriyachan. Therefore, here also it is stated that the rank position was far below than the last candidate who was granted promotion. According to the respondents 142 UDCs were in excess as it stood in 1989. The last LDC promoted in 1989 was at serial number 902 in the seniority list. The senior most among the applicants was at serial number 1687. That means the difference between them is 785. Much complaint has been made by the applicants stating that the required details were not furnished by the respondents. But it is important to note that those details were sought by the applicants only after 20 years. By that time so many records were destroyed as per rules. Therefore, there is no point in now lamenting over the matter. Some instances/cases were pointed out by the applicants to contend that the action of the respondents in not conducting DPC regularly and not giving promotion to the eligible candidates were found to be illegal by the Tribunal etc. but all those were instances, where the affected parties had approached the Tribunal within a reasonable time and as such it was possible for the Tribunal/Court to go through the records and then issue appropriate orders unlike in these cases where the applications have been filed after more than two decades.
17. The applicants wanted to contend that had the DPC been conducted regularly and promotions were effected to fill up the sanctioned strength than UDCs would have been promoted to Assistant or Office Superintendent and thereby vacancies would have been available in UDC. Even otherwise there were vacancies in UDC, the applicants contend. As stated earlier the Government is not bound to fill up all those posts. Government can take a conscious decision as to how many posts should be retained and how many posts are to be filled up by promotion. It is not a case where somebody else who was not eligible was granted promotion. Not only that going by the seniority position the difference between the last promoted employee and one of the applicants before the Tribunal is more than 750. If so, how could it be said that the applicants herein would have got promotions had the DPC been convened. First of all, the figures as it stood at the relevant period is not available. There are only assumptions and suppositions. Based on such assumptions Tribunal cannot direct that review DPC should be convened, after about 20 years, when actual figures and datas are not available. The Tribunal will not be justified in granting such directions after about 20 years.
18. Learned counsel for the applicants has made strenuous efforts to point out the difference in the number of posts filled up and the number of posts which are lying vacant and such other discrepancies so as to justify the contention that had the DPC been convened regularly and promotions been granted to the eligible candidates there would have been no difficulty at all. Though that submissions made may be acceptable no relief can be granted in these cases because of the fact that the parties have approached the Tribunal after several years when actually the records pertaining to the same were either destroyed or not available to be traced out. The contention that the respondents should be directed to explain how the alleged surplus UDCs were accommodated by or in the year 1993 also is not a relief that can be granted now. The applicants wanted the respondents to produce so many files of 1993 etc. Such a request has been made by the applicants knowing fully well that all those filed have already been destroyed which is the definite stand taken by the respondents. Therefore, according to the respondents, the applicants are actually searching for a black cat in a dark room when it is actually not there. The whole argument proceeded on the premise that all those vacancies of UDCs should have been filled up by granting promotion. That submission is strongly resisted by the respondents contending that all the posts are not filled up even earlier and that only the actual required posts were filled up. Had there been any grievance the applicants should have moved the authorities or this Tribunal at the appropriate time and not after 20 or 25 years.
19. From the statement and records produced by the respondents it is clear that the held strength in each command in each category whether LDCs, UDCs, Assistants etc. was far less than the authorized strength. It is done based on the Government of India instructions. Simply because at one point of time the authorized strength was a particular number, that is no reason to say that Government of India should make available all those posts for promotion. It depends upon the workload and actual requirement of such number of posts, it is the prerogative of the Government not to fill up all the posts. It would certainly depend upon the actual requirement depending on the work load in a particular unit, zone or command. When a conscious decision is seen taken by the Government the employees cannot contend that all the sanctioned posts of UDCs should be filled up by promotion in a particular year. So far the case on hand is concerned it is not certain as to what was the number of vacancies which remained unfilled out of the authorized strength. The definite stand taken by the respondents is that the department can fill up only the held strength in view of the directions issued by the Government of India. Such directions are issued by the Government of India depending on the requirement of the establishment as to the number of posts to be manned by the UDCs, Assistants etc. Therefore, it is not a case where the applicants can contend that their fundamental right or constitutional right has been infringed upon. If on the other hand some ineligible persons were granted promotion overlooking the applicants, then certainly the applicants could have a cause to challenge the promotion granted to other ineligible persons overlooking the seniority position. But that is not the case here. The case rests mainly on the ground that the DPCs were not held promptly. The so called delay or inaction of non-convening of DPC is of the years 1984-85 to 2000. The respondents still maintain that the DPCs were regularly held as per the vacancies available in the years 2001 to 2009 etc. In the absence of any other documents it cannot be found with certainty that any definite number of UDCs, out of the sanctioned strength remained unfilled. The two applications are filed only in the year 2013 and third one in 2015. As all the records pertaining to the issue were destroyed as per the rules, it is nearly impossible to find whether there were vacancies, out of the authorized strength, which remained unfilled. It is also pointed out by the respondents that ever so many LDCs and UDCs had retired during this long span of 20 years. It is impracticable to assign the position to all those persons if as a matter of fact the seniority position was not correct or that the promotion to any particular individual was not given at the proper time. In other words, it would actually unsettle the settled position which remained there for nearly two decades.
20. The learned counsel for the respondents would further submit that the claim for ante dating the promotion is based on certain assumptions and suppositions. Unless there are documents worth convincing to hold that because of non-convening of DPCs, a particular LDC was denied promotion, it is impossible to hold that a particular applicant is entitled to be granted promotion and if so the contention that a review DPC should be directed to be convened must also fall to the ground. The fact that these applications are seen filed several years after the cause of action did actually arise, is an important factor to be borne in mind. Since it is stated by the respondents that the records are not available it would be practically impossible to convene any review DPC or to carry out or to effect promotion or to revisit the seniority list published several years back. Therefore, we find no reason or justification to allow the claim made by the applicants.
21. In the result all the three applications being devoid of any merit are dismissed. No order as to costs.
(Dated this the 7th day of June 2017)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp