Central Administrative Tribunal - Bangalore
V.K. Mohan vs The Secretary To Govt. Of India And Ors. on 28 March, 2003
Equivalent citations: 2003(3)SLJ144(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The applicant, in the present O.A., filed under Section 19 of the A.T. Act, 1985, has prayed for the following reliefs :
"(a) To direct the respondents to fix the seniority of the applicant and place him above Jagadeesh Kumar in the seniority list published as on 1.6.93 of U.D.C.'s and to quash letter No. A-20017/3/95-Admn.--IV(LA) dated 27.6.2001 (Annexure A-16).
(b) To call for relevant records including select list leading to promotion of Jagadeesh Kumar, to peruse and to direct the Respondents to place the applicant in the select list 91 of Assistants above Jagadeesh Kumar.
(b)(1) To declare that the applicant is deemed to have been confirmed for all purposes.
(c) To consider the applicant for promotion to the post of Assistant from the date of the junior Jagadeesh Kumar was promoted as Assistant on long term basis and then on regular basis w.e.f. 12.4.94 the date on which junior Jagadeesh Kumar has been promoted, and to pay all consequential benefits :
(d) To issue order or orders, direction or directions as the Hon'ble Court might deem fit, in the circumstances and in the interest of justice."
2. The admitted facts are:
2.1 That based on qualifying Clerks Grade Examination, 1973, the applicant joined the office of Respondent No. 2, w.e.f. 3rd July 1974, which was then known as Ministry of Works Housing and posted in the Office of Director of Estates, Nirman Bhavan, New Delhi. Based of DPC held on 27th June, 1983, the applicant promoted to the post of UDC, in the same Ministry, w.e.f. 12th August, 1983, which was treated as ad hoc, which promotion was later on regularised w.e.f 16.7.86. The applicant was governed by Central Secretariat Clerical Service Rules, 1962. The applicant was sent on deputation to Ministry of Law and Justice, Branch Secretariat, Bangalore, w.e.f. 19.10.1987 and later on vide Order dated 18.12.1989 (Annexure A-2) he was transferred to Ministry of Law and Justice based on Inter-cadre transfer w.e.f 19.10.1989. According to Para 2 of the said order his seniority was liable to be fixed in the said cadre of UDC in accordance with the provisions of Central Secretariat Clerical Service (Seniority of Transferred Officers) Regulations, 1963. Vide order dated 22.12.1995 (Annexure A-4) the applicant was taken on the strength of the Regional Office, Staff Selection Commission, Bangalore w.e.f. 21.12.95, as Assistant on deputation basis, for a period of one year.
2.2 Vide office order dated 3.12.1996 (Annexure A-5) the applicant along with four other officials, was promoted as Assistant, based on inclusion of applicant's name in the Select List of Assistants for the year 1993. The said order dated 3.12.1996 also stated that the said promotion as Assistant would take effect from the date on which the applicant assumes charge of the said post on reversion from deputation i.e., Staff Selection Commission.
2.3. Respondent No. 1 issued provisional seniority list of UDC as on 1.6.93 (Annexure A-6) which didn't include applicant's name. Similarly the provisional seniority list of Assistant as on 1.12.1995 (Annexure A-8) didn't include applicant's name. Vide order dated 21.3.1997 (Annexure A-7) the Respondent No. 1 granted officiating pro forma promotion to the applicant as Assistant w.e.f 27.11.96. Vide Office order dated 24.7.98 (Annexure A-9) the applicant was transferred to the cadre of Ministry of Urban Affairs and Employment, and was posted to the office of Respondent No. 4. Consequently the applicant was relieved by the Staff Selection Commission, Bangalore, vide office order dated 20.10.1998 (Annexure A-10) with immediate effect, with a direction to join the office of Respondent No. 4.
2.4. The applicant vide representation dated 2.2.1999 (Annexure A-12) requested the authorities to step up his pay, remove anomaly as well as grant him retrospective promotion in the cadre of Assistant as all the UDC of 1983 select list were promoted to the said cadre of Assistant way back in October, 1988 while he was granted the promotion only in November, 1996. Since no reply was forthcoming, the office of Respondent No. 4 impressed the concerned authorities, for taking early action vide communication dated 21.6.1999. Subsequent representations dated 17.6.1999, 26.6.2000 and 9.1.2001 were made followed by legal notice dated 23.4.2001. The said legal notice was replied vide Communication dated 27.6.2001 (Annexure A-16), whereby it was informed that the applicant's seniority in the grade of UDC has been fixed correctly and in accordance with the relevant rules prescribed for fixation of seniority in the grade of UDC Hence the present O.A.
3. Only the respondent No. 1 filed its reply and contended that the application is highly belated and barred by laches and limitation. On merits it has been stated that since the applicant was neither confirmed in the cadre of LDC, and in view of his inter cadre transfer, his seniority is to be regulated under Regulation 3(2)(ii)(b) of CSCS (STO) Regulations, 1963 (Annexure R-3) and relevant portion of which reads as under:
"(b) if he is a temporary officer, he shall rank just above the seniormost temporary officer included on the basis of seniority in the Lower Division Grade in the Select List of the new cadre in the same year, whose length of approved continuous service in the Grade is less than that of the transferred officer."
The respondents have also contended that applicant's seniority as UDC of the select list 1984 was fixed as under:
"5. The seniority of the applicant as UDC of SL 1984 was fixed as under:
It is the further contention of the respondents that applicant's seniority in the grade of UDC was fixed in terms of the aforesaid Regulations and was placed below all the UDCs of the select list of the year 1984 as all the UDCs were confirmed government employees whereas the applicant was a temporary Government servant at the time of his inter cadre transfer. It is further urged that fifth respondent and Madhu Malhotra were UDCs of select list 1983 while the applicant was UDC of the select list 1984. In Para 15 of reply it has been averred that the fifth respondent was a UDC with effect from 17.10.1984 and he belonged to the select list of 1983 whereas the applicant was appointed as a regular UDC with effect from 16.7.1986 and he belongs to select list of the year 1984 and, therefore, the applicant has to be treated to be junior to the fifth respondent. The applicant was not confirmed in any cadre at the time of inter cadre transfer and as such he remained to be a temporary Government servant and consequently his seniority has been rightly fixed.
4. The applicant has filed his rejoinder and controverted the submissions made by the respondent No. 1. With regard to the contention that the application is belated and barred by limitation it has been stated that final reply had been received by the applicant vide communication dated 27.6,2001, which is impugned in present O.A. and as such the application is within limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985. It is noted that the present application was filed on 3.7.2001. The applicant has also stated that the respondents have not furnished any justification for non-confirmation of the applicant for such a long time and it being fault on the part of the respondents, the applicant cannot be made to suffer. It was also pointed out that the applicant was promoted as UDC with effect from 12.8.1983 and he belongs to the select list of the year 1983 and not of the year 1984 as contended by the respondents while fifth respondent Shri Jagadish Kumar was promoted as UDC only on 13.12.1985. It is further urged that when the applicant has not been confirmed for no fault of him, the respondents cannot be permitted to deny the applicant's legitimate claim/expectation. Our attention has been drawn to seniority list of UDC of the CSCS cadre in the Ministry of Law which was provisionally issued vide office memorandum dated 30.9.1986 wherein the applicant figures at No. 2 and has been shown against the select list of the year 1983. In the said seniority list, date of confirmation in the grade has been left as blank, while in respect of other officials whose names have been mentioned therein the date of confirmation have been duly indicated.
5. The respondents have filed additional reply dated 22.4.2002 whereby they have relied upon the judgment passed by the Hon'ble Supreme Court in S.S. Rathore v. State of M.P. 1989(4) SCC 582=1990(1) SLJ 98 (SC) as well as A.J. Fernandes v. Divisional Manager, SC Railway, 2001 SCC (L&S) 217. It is also the contention of the respondents that as far as the benefit of confirmation prior to 1.4.1988 is concerned, the confirmation in the service of the post depended on the following facts:
(i) Availability of permanent posts;
(ii) Eligibility of persons concerned for confirmation
(iii) Seniority
(iv) Suitability of person within the zone of consideration for confirmation."
On direction issued by this Tribunal, the respondents have filed one more affidavit dated 14.2.2003 wherein it has been stated that they could not locate a copy of the order of the regular appointment of the applicant as UDC. However, minutes of the DPC held on 27.6.1983 for ad hoc promotion as UDC has been produced as Annexure R-5. The respondents have also produced a communication issued by the Ministry of Urban Affairs and Employment as Annexure R-4 whereby it has been confirmed that the applicant had not been confirmed in any grade by the said Ministry and it was, therefore, desired he may be confirmed by Ministry of Law, Justice and Company Affairs in the light of the advice given by the Department of Personnel and Training in a similar case vide their U.O. No. 2626/88 Est. RR dated 7.10.1988. Despite this communication of the Ministry of Urban Affairs and Employment, the applicant's case for confirmation had not been taken up by the respondents till date.
6. The question which arises for determination in the present case is as to whether a person who was appointed in the year 1974, could remain unconfirmed and thereby denied his due seniority, which caused serious prejudice to the applicant? In other words can the applicant be made to suffer for the inaction on the part of the respondents in not taking up his case for conformation?
7. Since the respondents have raised the question of limitation it needs to be dealt with first before we proceed to consider the merits of the case. Learned Counsel for the applicant has relied upon A. Sagayanathan and Ors. v. Divisional Personnel Officer, SBC Division, Southern Railway, Bangalore, 1992 Supp. SCC 172. In the said case the Tribunal had refused to entertain and adjudicate the dispute on merits solely on the ground of delay, which was not approved by the Hon'ble Supreme Court and accordingly the Tribunal was directed to rehear the parties after giving opportunity to implead, file fresh affidavits and adduce any other evidence which the parties wish to adduce. Learned Counsel has also relied upon Beer Singh v. Union of India, 1990(14) ATC 279 (Principal Bench)=1990(3) SLJ 53 (CAT); Ram Lal Thakur v. Union Territory of Chandigarh, 1990(2) SLJ(CAT) 132; Satyananda Sinha v. Union of India, 1989(4) SLJ (CAT) 272 (Patna); Balwant Singh v. Union of India, 1990(14) ATC 258 (Delhi) and Prahlad Kumar Johar v. Union of India, (1991) 18 ATC 707 (Jabalpur). We have perused the said judgments. The view taken in the aforementioned cases is that there is no limitation for challenging the order which is absolutely illegal and limitation period starts from the date the applicant's representation is rejected.
8. The respondents have strenuously relied upon the judgment of the Hon'ble Supreme Court in Rathore's case (supra) whereby it has been held that repeated unsuccessful representations do not extend the period of limitation. It is admitted case of the parties that the applicant's request was rejected for the first time vide communication dated 27.6.2001 (Annexure A-16) while the present O.A. was filed on 3.7.2001. As such the present O.A. has been filed within a period of one year as prescribed under Section 21 of the Administrative Tribunals Act, 1985. Therefore, the contention raised by the respondents that the application is barred by limitation and laches is misplaced and overruled. The judgment of Hon'ble Supreme Court in Rathore's case (supra) is not applicable in the facts and circumstances of the present case. In 1979(1) SLR 757 : (1970) 4 SCC 176, Madras Port Trust v. Himansu International, the Hon'ble Supreme Court has held that Government and Public Authorities should adopt the practice of not relying upon the technical pleas for the purpose of defeating the legitimate claims of the citizens and do what is fair and just to the citizens. It would be appropriate to extract the relevant portion of the said judgment which reads as under:
"....The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that Government and Public Authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a Public Authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we fee! is that such a plea should not ordinarily be taken up by a Government or a Public Authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable."
(Emphasis supplied) In 1993(1) SCC 572 Binod Behari Singh v. Union of India, the aforementioned judgment of the Madras Port Trust has been referred to.
9. We have perused these judgments carefully and find that the applicant's claim about deemed confirmation as well as fixation of his seniority over and above R-5 is just and proper and he has been made to suffer for no fault of him but for the inaction on the part of the respondents 1 to 4 in not taking up his case for confirmation despite the fact that he passed the required test the results of which had been declared by the Staff Selection Commission on 8.10.1980 and he was granted the increments with effect from 1.7.1975 onwards vide the Director of Estates order dated 13.11.1980 which is reflected at Page 6 of the applicant's service book.
10. As we have earlier noticed that the respondents have placed on record a note/ communication from Ministry of Urban Affairs and Employment, whereby the Ministry of Law, Justice and Company Affairs were advised to consider applicant's case for confirmation and yet no steps had been taken till date to consider the applicant for confirmation which ought to have been done much earlier. It would be relevant at this stage to extract the said communication of Ministry of Urban Affairs and Employment which reads as under:
The information desired by the Ministry of Law, Justice and Company Affairs is furnished below-
(i) Shri V.K. Mohan has not been confirmed in any grade by the Ministry. He may therefore be confirmed by the Ministry of Law, Justice and Company Affairs in the light of the advice given by the DP&T in a similar case vide their UO No. 2626/88 Estt (RR) dated 7.10.88 (copy enclosed).
(ii) Shri V.K. Mohan UDC is a S.Q. appointee in the UD grade against the UDC/ SL 1984. He has regularly been placed in the UDC grade w.e.f. 16.7.86.
(iii) Date of his ad hoc/long term appointment to UD grade may be seen from his S/B. (Emphasis supplied)
11. The question which arises for consideration in the present case is whether the applicant who had been appointed in the year 1974 and continues to discharge his duties, functions and responsibilities without any demur and in the meantime has been promoted twice could be considered to he deemed confirmed or not. As we have already noted that the applicant was appointed as LDC in the year 1974 and as per the terms and conditions of appointment which is so mentioned in the service book, he was required to pass one of the periodical typewriting test in English or Hindi at a minimum speed of 30 words per minute in English or 25 words per minute in Hindi within a period of one year from the date of his appointment failing which no annual increment were to be allowed to him unless he passed the said test. At the same time it was stated that if he does not pass the said test within a period of two years he will be liable to be discharged from service.
12. The question of deemed confirmation had been the subject-matter before the Hon'ble Supreme Court from time to time in a large number of cases. There are three lines of cases decided by the Hon'ble Supreme Court on the question of deemed confirmation. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period or probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such a case there is no bar against the termination at any point of time before expiry of the period of probation.
13. The second line of cases is where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon the expiry of maximum period of probation, before its expiry, the order of termination has not been passed.
14. The last line of cases is where, through under the rules a maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purpose of confirmation. In such cases, even if the maximum period of probation has expired and neither any order or confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
15. In the facts of the present case, as we have already noted the applicant had passed the said prescribed test in the year 1980 and on passing the said typewriting test held on 28.8.1980 conducted by the Staff Selection Commission, the result of which was declared vide letter dated 8.10.1980, the annual increments in respect of the applicant were released which was due on 1.7.1975 till 1980 vide Director of Estates order dated 30.11.1980. As such it is clear that the applicant was eligible for confirmation in the year 1980 on passing the said test. Despite Ministry of Urban Affairs communication, which we have extracted hereinabove, the applicant's case for confirmation had not been taken up by the respondents No. 1 -4 till date. No plausible reasons and explanation for this inaction has been made by Respondents 1 -4 despite ample opportunity granted to them on this aspect. It is not the case of the respondents that the applicant had to pass some other test for the purpose of confirmation and that is why he was not confirmed in the said post of either LDC or UDC or even Assistant. It is also not the case of the respondents that the applicant's service was not found suitable for confirmation by the appointing authority or his service was terminated at any point of time. Learned Counsel for the applicant has vehemently relied upon the judgment of the Constitution Bench in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 and contended that in the present case, the applicant is liable to be declared as deemed confirmed for all purposes. Unfortunately Respondent 1-4 have not addressed this Tribunal on this aspect at all.
16. As held by the Hon'ble Supreme Court in S.B. Patwardhan v. State of Maharashtra (1977) 3 SCC 399=1979 SLJ 421 (SC), that the seniority cannot be determined on the sole test of confirmation as confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The said judgment in Patwardan's case (supra) had been considered by the Constitution Bench in Direct Recruits Class II Engineering Association v. State of Maharashtra, (1990) 2 SCC 715=1990(2) SLJ 40 (SC) and followed. Similarly the Hon'ble Supreme Court have analysed and considered all aspects on the question of deemed, confirmation in High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161, including the case of State of Punjab v. Dharam Singh (supra) cited by the learned Counsel for the applicant.
17. As per the Department of Personnel and Training O.M. No. 18011/1/96-Estt.(3) dated 28.3.1988 revised procedure for confirmation has been notified. As per the new procedure confirmation will be made only once in the service of an official which will be in the entry Grade. Confirmation is delinked from the availability of Government vacancy in the Grade. According to the respondents the benefit of confirmation prior to 1.4.1988 depended on the facts i.e. (i) availability of permanent post; (ii) eligibility of person concerned; (iii) seniority and (iv) suitability of persons within the zone of consideration for confirmation. It is not the case of the respondents either in the reply or in the additional affidavit filed by them that either of the factors mentioned hereinabove had not been fulfilled by the applicant and his services were terminated or discharged or not found to be satisfactory for non-passing the said test and as such he could not be confirmed in the post of LDC. It is also not the case of the respondents that the applicant's junior in LDC cadre have not been confirmed. On the other hand it has been strenuously urged that the applicant's seniority as UDC has been fixed under Regulation 3(2)(ii)(b) of CSCS (STO) Regulations, 1963. No attempt at all has been made by the respondents to justify their inaction in not considering applicant's case for confirmation in the post of LDC. Unless a person is considered for confirmation in the post of LDC the fixation of seniority in the next higher grade and cadre like UDC and onwards does not arise. The applicant's case for confirmation which remained unconsidered till date cannot be held against the applicant for the purpose of determination of proper seniority in the cadres concerned. Seniority is a valuable right and affects not only promotion but various other benefits to which a Government servant becomes entitled to in his service career. It is unfortunate that despite the applicant's representation, no head had been paid by the respondents for his case for confirmation without any fault of the applicant. In State of Maharashtra v. Jagannath Achut Karandekar, (1989) Suppl. 1 SCC 393=1990(1) SLJ 146 (SC), the Hon'ble Supreme Court has been pleased to hold that "it would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year". In the said case of State of Maharashtra, the Government was obliged and required to hold an examination every year which it had not held and as such the respondent therein had to suffer in terms of his seniority and promotion.
18. Since we have already held that the applicant had passed the necessary test required under the terms and conditions of his appointment in 1980 itself and accordingly there had not been any justification for not considering his case for confirmation either in the said year or thereafter, the applicant cannot be made to suffer in terms of seniority merely because he had not been considered for confirmation by the respondents for no fault of him. Unfortunately the respondents have not stated any reason as to why his case for confirmation could not be taken up by either of the Ministries. Accordingly we are of the considered view that the applicant is deemed confirmed from the day when his juniors in the grade of LDC in the Ministry of Works and Housing, which is now known as Ministry of Urban Development and Poverty Alleviation was so declared confirmed and accordingly his seniority in the grade of UDC (Ad hoc) and Assistant would be regulated accordingly with all its consequential benefits. Since the applicant has already been promoted as UDC with effect from 12.8.1983 and regularised in the said grade from 16.7.1986 and further promoted to the post of Assistant, he will not be entitled to the arrears of pay and allowances if the said date of promotion is to be amended for any reason in terms of the deemed confirmation of the applicant. However, he will be entitled to his due placement in the seniority in the said grades and consequently promotion from the due date and his pay in promoted post will have to be refixed on notional basis.
19. In view of the above discussion, the O.A. is allowed in the following terms :--
(i) We declare the applicant is deemed confirmed for all purposes; (ii) We quash and set aside the communication dated 27.6.2001 (Annexure A-16); (iii) We direct the respondents to fix the applicant's seniority in the grade of LDC, UDC and Assistant in terms of the above deemed confirmation and consequently promote the applicant from the date his junior stands promoted in the cadre of UDC and Assistant with all consequential benefits but on notional basis. (iv) These directions should be carried out by the respondents within a period of four months from the date of receipt of a copy of this order.
However, in the facts and circumstances of the present case there will be no order as to costs.