Kerala High Court
Pradeep A vs Union Of India on 6 August, 2024
2024:KER:59685
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED
MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 6TH DAY OF AUGUST 2024 / 15TH SRAVANA, 1946
OP (CAT) NO. 20 OF 2021
OA NO.736 OF 2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
PETITIONER/APPLICANT:
PRADEEP A, AGED 26 YEARS
DEPUTY SECRETARY, MINISTRY OF YOUTH AFFAIRS AND
SPORTS, NEW DELHI, RESIDING AT T.C 41/2512, ANDU
VILAKATHU VEEDU, MANACAUD P.O.THIRUVANANTHAPURAM
BY ADV S.MOHAMMED AL RAFI
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND
PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING,NEW
DELHI-110 001.
2 THE UNDER SECRETARY,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, LOK
NAYAK BHAVAN, NEW DELHI-110 001.
BY ADV SRI.K.R.RAJKUMAR, C.G.C.
THIS OP (CAT) HAVING COME UP FOR HEARING ON 21.05.2024, THE
COURT ON 06.08.2024 DELIVERED THE FOLLOWING:
-:1:-
2024:KER:59685
JUDGMENT
SHOBA ANNAMMA EAPEN, J.
The above original petition has been filed by the applicant before the Central Administrative Tribunal, Ernakulam Bench, challenging Ext.P5 order dated 12.02.2021 in OA No.736 of 2016.
2. Brief facts of the case are as follows:
2.1. The petitioner, who was ranked 391 in the Civil Services Examination, 2000, joined the Central Secretariat service as Section Officer on 23.04.2007 pursuant to a judgment of this Court in WP(C) No.22585 of 2003. On joining service, the respondents provided consequential benefits such as, pay fixation, placing him in the old pension scheme, accommodating him in an appropriate place in the seniority list of section officers, giving an adhoc promotion in time to the level of Under Secretary etc. While the select list of Under Secretaries was prepared, the proposal of the petitioner was sent to the Union Public Service Commission (UPSC) with a remark that the non availability of Annual Confidential -:2:- 2024:KER:59685 Reports (ACRs) of the petitioner was due to his late joining on account of the litigations before the tribunal and this Court. In the meantime, the seniority list was published and the petitioner was placed at 5758-A, but he was not given promotion on the basis of his seniority, on the ground of non-
availability of Annual Confidential Report (ACR). While the proposal of the petitioner was pending before the UPSC, the second respondent issued Annex.A1 promotion order, excluding the petitioner from promotion to the post of Selection Grade (Deputy Secretary)and promoting his juniors by superseding him. Aggrieved by Annex.A1 order, the petitioner approached the tribunal with the original application.
2.2. In the original application, the respondents filed a reply statement, controverting the averments in the original application. It was stated that eight years of approved service in the grade of Section Officer is required for promotion to Under Secretary Grade. According to them, as the petitioner qualified the Civil Services Examination, 2000, his approved service in the grade of Section Officer is counted from 01.07.2001, i.e., 1st July of the year following the year in -:3:- 2024:KER:59685 which the examination for direct recruitment was held and hence, he was eligible to be included in the Under Secretary Select list (USSL)-2009 on completion of eight years of approved service. However, it is stated that due to non availability of Annual Personal Assessment Reports (APARs), he was not included in USSL-2009 and USSL-2010, but included in USSL-2011 as a regular Under Secretary as per order dated 23.09.2013. It is further stated that all the Under Secretaries, who were promoted on adhoc basis, belong to USSL-2007 and belong to the Section Officer Selection List (SOSL 1993), whereas the petitioner belongs to Section Officer Select List (SOSL 2000)(Direct Recruit). The petitioner was interpolated with them for the purpose of issue of Combined Select List (CSL) of Section Officers in the Seniority List dated 31.12.2008. It was further stated that the Under Secretaries of USSL-2011 are yet to be promoted to the post of Selection Grade (Deputy Secretary) on an ad hoc basis or on a regular basis. Relying on Rule 15(1)of the Central Secretariat Service Rules, 1962 (for short, "Rules"), it is stated that the petitioner had completed his probation only on 23.04.2009 as he had joined service on 23.04.2007 and hence, -:4:- 2024:KER:59685 he was eligible for promotion to Under Secretary Grade only from USSL-2009; and due to want of APARs, he can only be included in USSL-2011.
2.3. To the reply statement filed by the respondents, the petitioner filed a rejoinder contending that the denial of promotion citing non availability of ACRs for the period in which he was not in service, is not due to his fault, but due to the delay in giving him appointment in service. It was also contended that as per the order in OA No.216 of 2004 passed by the Principal Bench of the Central Administrative Tribunal, New Delhi, the respondents granted the entire reliefs including promotion to a similarly situated person like the petitioner. The petitioner also cited the case of one Smt.Garima Singh, another Direct Recruit Section Officer (DRSO) of Civil Services Examination, 1996, to substantiate the contention that the respondents ought to have included him in the select list for promotion to the post of Under Secretary by including him in USSL-2007. According to the petitioner, merely for the reason that the officers junior to him in the common seniority list are promotees belong to SOSL- 1993, they cannot claim any right over the petitioner. Relying -:5:- 2024:KER:59685 on the original memorandum dated 25.03.1996, the petitioner contended that he is entitled to be promoted by relaxation of two years. According to him, once a common seniority list is published, promotion can be effected only in accordance with the inter se seniority position maintained in the common seniority list. The juniors got promotion because they fulfilled the eligibility criteria of eight years in the year 2007, whereas the petitioner completed eight years of approved service in 2009 only. Out of the 12 Under Secretaries, who were promoted to the post of Deputy Secretary as per the impugned order dated 08.03.2016, seven were juniors in combined select list of Section Officers.
2.4. An additional reply statement was filed by the respondents, relying on Rules 15 and 16 of the Rules, it is stated that the petitioner joined service as Section Officer on 23.04.2007 and was on probation till 23.04.2009. Till the completion of the two years probation, the petitioner was neither in the status of "Permanent Officer" nor "Regular Officer", but was in the status of "Probationer". It was also stated that in the case of Smt.Garima Singh, she was a direct recruit Section Officer through the Civil Services -:6:- 2024:KER:59685 Examination, 1996, and she joined service on 06.07.1998. She was placed in USSL-2008 on completion of eight years of service and she was placed in USSL-2003 on the basis of the order of the Central Administrative Tribunal, Principal Bench dated 09.05.2011 by giving the benefit of relaxation of two years eligibility. It was also contended that the petitioner cannot place reliance on the original memorandum dated 25.03.1996, because the said original memorandum is executive in nature whereas the rules are statutory in nature, which would prevail over the executive orders. Along with the additional reply statement, the respondents produced file notings of the first respondent, which would show that Rules 25(a) and 23 of the Rules, 1962 and 2009, respectively, provide the power of the Central Government to relax any of the provisions of the Rules with respect to any class or category of persons or posts. It is thus the Department of Legal Affairs, Ministry of Law & Justice, approved the proposal of retrospective promotion with reference to the date of promotion of their juniors.
2.5. The tribunal, after elaborate consideration of the issue, as per Ext.P5 order, directed to consider the petitioner -:7:- 2024:KER:59685 for USSL-2009 in place of USSL-2011 in which he is placed, however, denying consequential benefits. It was also directed to consider his promotion to the post of Selection Grade (Deputy Secretary) on the basis of his seniority as granted under USSL-2009 as and when he becomes eligible. It is challenging this, the petitioner has approached this Court.
3. Heard the learned counsel for the petitioner as well as the learned Central Government Counsel appearing for the respondents.
4. The learned counsel for the petitioner submitted that in Annex.A2, the applicant was placed at CSL No.5758-A, but the respondents refused to give promotion on the basis of seniority on the ground of non-availability of ACRs. According to the learned counsel for the petitioner, the petitioner cannot be found at fault for the non-availability of the ACRs and once his seniority is rectified and found place in the combined seniority list, he should have been promoted in accordance with seniority in the combined seniority list. It was further submitted that the tribunal committed gross illegality in placing the petitioner in USSL-2009 by citing non-completion of probation by 2007. It is further submitted that the -:8:- 2024:KER:59685 petitioner was permitted to join service only on 23.04.2007, after a gap of almost five years from the normal joining date of 10.01.2002. It was also the case of the petitioner that after his initial appointment in 2007 on intervention of this Court and after determining seniority of the petitioner in 2008, the petitioner should have been placed in USSL-2007, whereas his juniors were placed and promoted as Under Secretary. The learned counsel for the petitioner also relied on Rules 25(a) and 23 of the Rules, 1962 and 2009, respectively, to relax any of the provisions of these rules with respect to any class or category of persons or posts. He further relied on the judgments of the apex court in Union of India v. Sadhana Khanna [2008 (1) SCC 720] and Pilla Sitaram Patrudu & Others v. Union of India & Others [1996 (8) SCC 637]. It is submitted that similarly placed persons, who had belatedly joined service, were given promotion by the respondents on the date on which their juniors were promoted. The learned counsel also produced Ext.P6 along with IA No. 1 of 2023, which is an office memorandum dated 27.04.2023 in which one Sri.Pradeep Kumar Singh, a DR SO of 1996 batch, was included in the Select List of Grade-I (Under Secretary) of -:9:- 2024:KER:59685 CSS for the year 2023 on notional basis, referring the case of the petitioner herein. The learned counsel thus submitted that the petitioner was also entitled to get promotion by including him in the USSL-2007 batch and was entitled to get promotion as Under Secretary by including him in USSL-2007, from which his juniors were promoted.
5. Per contra, the learned Central Government Counsel submitted that the petitioner joined service in 2007 and completed probation only in 2009 and that the petitioner was not included in USSL-2007 and USSL-2009 since there were no ACRs available as the petitioner joined service only in 2007. It was further submitted that even then, he was notionally placed in Non Functional Scale after completion of four years' deemed approved service in Section Officer Grade and was appointed as Under Secretary on ad hoc basis and also included in USSL-2011. The learned Standing Counsel further submitted that it was not possible to include the petitioner in USSL-2009 for want of APARs and that the contention of the petitioner that he was excluded from promotion to the post of Selection Grade (Deputy Secretary) and all the Under Secretaries who were promoted on ad hoc -:10:- 2024:KER:59685 basis, belong to USSL 2007 and the claim of the petitioner that he was superseded by his juniors is not correct. The said promotees belong to the Section Officer Select List SOSL) 1993, whereas the petitioner belongs to SOSL 2000 (Direct Recruit). It was also submitted that the further contention of the petitioner that as per Ext.P6, one Sri.Pradeep Kumar Singh was included in the Select List of Grade-I (Under Secretary) of CSS for the year 2023 on notional basis cannot be equated with the case of the petitioner since the said Sri.Pradeep Kumar Singh was a DR SO of 1996 batch and that was an order issued by the Government of India, whereas in the case of the petitioner, no such favourable orders were passed by the Government of India.
6. We have considered the rival submissions raised on both sides. It is an admitted fact that the petitioner qualified the Civil Services Examination, 2000, however, he was permitted to join service only on 23.04.2007. On joining service, he was notionally placed in Non Functional Scale after completion of four years' deemed approved service in Section Officer Grade and he was appointed as Under Secretary on ad hoc basis. However, he was included in USSL- -:11:-
2024:KER:59685 2011, for which the reason stated by the respondents is that APARs were not available since the petitioner joined service only in 2007. As per Rule 15(1) of the Rules, every direct recruit to the Section Officers' Grade or the Assistants' Grade shall initially be appointed on probation, the period of probation being two years from the date of appointment. The probation of the petitioner was declared only on 23.04.2009. The petitioner was eligible for promotion to Under Secretary Grade from USSL-2009 only as per the eligibility condition and probation point of view. Rule 16 of the Rules stipulates confirmation of probationers and it requires all probationers to successfully complete their probation to the satisfaction of the appointing authority so as to be eligible for confirmation. So, accordingly, the appointment of the petitioner was confirmed in the year 2009. It may not be possible to deviate from the above procedure since it would amount to violation of rules. However, notional promotions were given irrespective of the fact that his probation was declared subsequently. Though the petitioner was placed at 5758-A in Annex.A2 list, the officers below the petitioner were given promotion. It is a fact that all the officers, who were -:12:- 2024:KER:59685 promoted, were not direct recruits, but were permitted to join service in the year 1993. Since completion of probation of the petitioner was on 23.04.2009, he cannot be placed in USSL- 2007. It is also seen from the records that the officers falling below the petitioner, whom it was stated as juniors, are Section Officers of 1993 seniority, whereas the petitioner who was recruited after CSE 2000 can have approved service counted only from 01.07.2001. Hence, it cannot be said that the juniors of the petitioner were promoted merely because his name is shown above their names in Annex.A2. The petitioner relied on the cases of similarly placed persons, however, in those cases, such officers had completed probation periods and thus they were considered for promotion. It is true that it is only after filing cases before the tribunal as well as before this Court that the petitioner was appointed in the year 2007, but the respondents have stated that since the petitioner was in the OBC category, due to the vacancy position, he could not be accommodated immediately after he appeared for the Civil Services Examination, 2000. Normally, a minimum of five APARs are generally required in the lower grade for assessment. The petitioner was not -:13:- 2024:KER:59685 counted for USSL-2009 since only one APAR was available for assessment by that time, however, he was then included in USSL-2011 overlooking the fact that five APARs were not available. Admittedly, the petitioner completed his probation only on 23.04.2009. If the respondents could waive off the condition of having five APARs for including the petitioner in USSL-2011, they could have also considered him for being included in USSL-2009. However, without completing probation, the petitioner cannot be asked to be included in USSL-2007. After joining service, probation and confirmation are crucial and it is for the government to take a final decision whether the officials have to be included in the public service. Hence, the finding of the tribunal that the petitioner cannot be included in USSL-2007, but can be included in USSL-2009 appears to be correct. We do not find any reason to interfere with the impugned order passed by the tribunal. As regards Ext.P6, it is the contention of the petitioner that one Sri.Pradeep Kumar Singh was included in the Select List of Grade-I (Under Secretary) of the CSS for the year 2023 on notional basis by referring to O.A.No.180 of 2016, which is the case of the petitioner herein. On a perusal of Ext.P6 it is seen -:14:- 2024:KER:59685 that in Paragraph 3 of Ext.P6, it is stated as follows:-
"3. Consequent upon acceptance by the Competent Authority to the recommendations of Review DPC conducted by UPSC, Shri.Pradeep Kumar Singh was subsequently included in the Select List of Grade-I(Under Secretary) of CSS for the year 2009 (vide OM No.5/14/2022-CS.I(U) dated 24.06.2022) based on the order of the Hon'ble CAT, Ernakulam Bench dated 12.02.2021 in OA No.180/00736/2016 in the Pradeep.A. case (DR SO appointed based on the CSE 2000) upheld by the Hon'ble High Court of Kerlala vide its order dated 15th March,2021"
However, it is for the first respondent to take a lenient view in this matter taking into consideration Ext.P6. We are of the view that the petitioner can be given an opportunity to file a representation before the first respondent.
Accordingly, the original petition is disposed of, as follows:
a) The petitioner is at liberty to file a representation ventilating his grievance before the first respondent within a period of one month from the date of receipt of a certified copy of this judgment, if so desires.
b) The first respondent shall consider and pass orders on the representation, if any, filed by the petitioner as above, in accordance with law, adverting to Ext.P6 order -:15:- 2024:KER:59685 dated 27.04.2023, within a period of two months thereafter.
Sd/-
A. MUHAMED MUSTAQUE ACTING CHIEF JUSTICE Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
-:16:-
2024:KER:59685 APPENDIX OF OP (CAT) 20/2021 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE ORDER NO 4/11/2015- CS-19D) DATED 8.3.2016 ISSUED BY THE 2ND RESPONDENT ANNEXURE A2 TRUE COPY OF THE OFFICE MEMORANDUM NO 4/10/2000-CS.1 DATED 31.12.20008 ISSUED BY THE 1ST RESPONDENT ANNEXURE A3 TRUE COPY OF THE LETTER NO 5/1/2010- CS.I(U) DATED 8.4.2013 ISSUED BY THE 1ST RESPONDENT ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 31.5.2016 BEFORE THE 1ST RESPONDENT ANNEXURE R1 TRUE COPY OF OM NO 5/13/2012/CS 1(U) DATED 23.9.2013 OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING GOVERNMENT OF INDIA ANNEXURE R2 TRUE COPY OF CENTRAL SECRETARIAT SERVICE RULES 1962 (CCS RULES 1962) ANNEXURE R3 TRUE COPY OF COPTS OM NO AB 14017/12/97-ESTT(RR) DATED 24.9.1997 OF THE MINISTRY OF PERSONNEL PUBLIC GRIEVANCES & PENSIONS DEPARTMENT OF PERSONNEL AND TRAINING GOVERNMENT OF INDIA ANNEXURE A5 TRUE COPY OF THE ORDER DATED 2.3.2007 IN OA NO 216 /2004 OF THE CENTAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH -:17:- 2024:KER:59685 ANNEXURE A6 TRUE COPY OF THE ORDER NO E(0) 1/2004/SR-6/17 DATED 7.9.2017 ISSUED BY THE UNDER SECRETARY, MINISTRY OF RAILWAYS ANNEXURE R4 TRUE COPY OF MINUTES OF MEETING OF THE SCREENING COMMITTEE HELD ON 24.7.2012 UNDER F.NO 4/14/2011-CS.19D) ANNEXURE R5 TRUE COPY OF DOPTS OM NO AB.14017/12/88 ESTT9RR) DATED 25.3.1996 ANNEXURE R6 TRUE COPY OF MINUTES OF MEETING OF THE SCREENING COMMITTEE HELD ON 27TH NOVEMBER 2014 UNDER FILE NO 4/3/2014- CSI(D) ANNEXURE R7 TRUE COPY OF FILE NOTING FROM PP 21- 29/N OF F.NO 5/1/2010-CS.1(U)(PT.1) EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION FILED BY THE PETITIONER AS OA NO 180/736/2016 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO 180/736/2016 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNKAULAM BENCH EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA NO 180/736/2016 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH -:18:- 2024:KER:59685 EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY RESPONDENTS IN OA NO 180/736/2016 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P5 TRUE COPY OF THE ORDER DATED 12.2.2021 IN OA NO 180/736/2016 ON THE FILE OF HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Exhibit P6 TRUE COPY OF THE OFFICE MEMORANDUM NO.5/5/2023-CS.I(U) DATED 27/04/2023 ISSUED BY UNDER SECRETARY, DEPARTMENT OF PERSONNEL & TRAINING -:19:-