Central Administrative Tribunal - Hyderabad
T. Venkateswarlu And Anr. vs Union Of India (Uoi) And Ors. on 4 May, 2005
Equivalent citations: 2005(3)SLJ201(CAT)
ORDER Chhattra Sal Singh, Member (A)
1. Since the facts of the case and the issues involved in both the O. As. are same, the same are being disposed of through a common order making the facts in O.A. No. 128 of 2002, which are similar to that of the facts in O.A. No. 1633 of 2001, as the basis.
2. The relief sought by the applicant in O.A. No. 128/2002 is as follows:
(i) To issue direction/directions to the respondents to antedate the substantive appointment of the applicant to Junior Scale Group 'A' from 15.7.1999 to the year of vacancies against which the applicant was considered i.e. 1996 with all consequential benefits.
As to the facts of the case in O.A. No. 128/2002, as given by the applicant which are similar to those in O.A. No. 1633/2001, the applicant was appointed as Asst. Commercial Officer in Group-B in 1988. In terms of Para 209(B)(1) of the Indian Railway Establishment Code (IREC), Volume 1, Group-B Officers shall be appointed to Group-A Junior Scale on completion of 3 years regular service in Group-B. Though the applicant had completed 3 years regular Group-B service in 1991 and vacancies against the promotees quota of 40% (now 50%), were available, the applicant was appointed to Group-A Junior Scale only with effect from 15.7.1999, vide Board's letter dated 12.8.1999, against the vacancies of 1996. The applicant has submitted representations on 25.10.2000 and also on 4.4.2001 to antedate his substantive appointment to the vacancies of 1996 against which they were considered and selected.
The applicant has further submitted that he was appointed as Commercial Apprentices against Graduate quota in the year 1973. On being selected through a duly constituted selection board of four Heads of Departments of South Central Railway, the applicant was appointed as Assistant Commercial Officer in the scale of Rs. 2000-3500/-, vide GM/S.C Railway's Office order dated 10.11.1988, a copy of which is annexed as Annexure-A1 to the O.A. The applicant after being empaneled by DPC of S.C. Railway, was promoted as Divisional Commercial Manager in the scale of Rs. 3000-4500/- (Senior time scale posts in Group-A) on ad hoc basis, vide CPO/SCR's O.Os dated 20.10.1994, a copy of which is annexed as Annexure-A2 to the O.A. In terms of Para 209 (B)(1) of the IREC, appointments to the posts in the Junior Scale shall be made by selection on merit from amongst Group-B officers of the departments concerned with no less than 3 years of non-fortuitous service in the grade, a copy of which is annexed as Annexure-A3 to the O.A. In terms of Rule 4 (b) of the Recruitment Rules of IRTS, recruitment was to be done to the Junior Scale and the vacancies were to be filled at 60:40 (now 50 : 50) ratio between direct recruits and promotees. An extract of Para 4 of Recruitment Rules was reproduced below for proper appreciation, which is as follows:
"4. Methods of Recruitment: Subject to the provisions of Rule 5, recruitment to the service shall be made by the following methods namely:
(a) by examination in accordance with the provisions of Part-III of these rules;
(b) by appointment of Assistant Traffic Officers recruited through the Commission, initially as temporary officers, to such extent as may be decided in consultation with the Commission from time to time;
(c) by promotion in accordance with the provisions of Part-IV of these rules;
(d) by transfer of an officer in the service of Government in accordance with the provisions of Part V of these rules;
(e) by occasion recruitment from other sources in consultation with the commission.
5. Government to determine method or methods of recruitment for filling vacancies:
(1) Subject to the provisions of this rule and Rule 6, the Government shall determine the method or methods of recruitment to be employed for the purpose of filling particular vacancies or such vacancies as may be required to be filled during any particular period, and the number of candidates to be recruited by each method;
Provided that all recruitments to the service by examination shall be to Class 1 (Junior Scale) only.
(2) The percentage of vacancies to be filled by the methods referred to in Clauses (a) and (c) of Rule 4 shall be 66-2/3 percent, and 33-1/3 per cent respectively.
Provided that all the Government may, with the previous approval of the Commission recruit candidates to the service by the methods referred to in Clauses (b), (d) and (e) of the said rule and when recruitment was made under any of the clauses or all the number of persons recruited shall count against the percentage of vacancies to be filled under the method referred to in Clause (a) of the said rule."
The percentages referred to at Rule 5(2) above have later been changed to 60:40 and then to 50:50. Though the applicant had completed 3 years regular group-B service in 1991, he was not appointed to Group 'A' Junior Scale inspite of the fact that vacancies against the Group-B quota were existing being physically managed by the Group-B officers including the applicant.
The applicant has further contended that he was considered against the vacancies of 1996 being within the zone of consideration of that year. But as the DPC for 1996 was held in 1999, after a delay of about 3 years, he was appointed to Junior Scale Group 'A' in scale Rs. 2200-4000/- (Now reversed to Rs. 8000-13000/- with effect from 15.7.1999, vide Railway Board's ordered dated 12.8.1999 against the vacancies of 1996; a copy of the order dated 12.8.1999 is annexed as Annexure-A4 to the O.A. The applicant has submitted that the direct recruits were being recruited every year without fail and in that process 22 direct recruits for 1996 have already been appointed. Abnormal delay in holding the DPC for 1996 had caused irreparable loss and injury to the applicants. The applicant had submitted representations on 25.10.2000 and reminder on 4.4.2001, copies of which are annexed as Annexure-A5 to the O.A., but the grievance of the applicant had not been redressed and hence the applicant had approached this Tribunal seeking for the above relief on the following grounds:
(i) The applicant having been considered against the vacancies of 1996, being within the zone of consideration by virtue of completing 8 years of Group-B regular service as against 3 years provided in the Code, appointing the applicant with effect from 15.7.1999 instead of 1996, vide the impugned order dated 12.8.1999, was highly arbitrary and illegal.
(ii) When direct recruits have been appointed against 60% direct recruitment quota vacancies of 1996, delaying by 3 years the appointment of the applicant against the 40% promotees quota of vacancies of 1996 was highly arbitrary, discriminatory and against all principles of natural justice. The delay in conducting the DPC was entirely on the part of the respondents and for the lapse of respondents, the applicant could not be put at loss.
(iii) When the applicants were considered against the 40% quota vacancies of 1996, they were entitled for antedating their appointment from 15.7.1999 to 1996 as laid down by the Hon'ble Supreme Court in the case of UOI v. Vipinchandra Hiralal Shah, 1997 (1) SLJ 69 (SC), in the case of UOI v. N.R. Banerjee and Anr., 1997 SCC (L&S) 1194, and in the case of H.S. Grewal v. UOI, 1998 (1) SLJ 259 (SC). In a similar case of R.K. Gupta, the Bombay Bench of this Tribunal when holding of the DPC was delayed, held that he be promoted from the year of vacancy and the SLP filed by the respondent-Railway was dismissed by the Hon'ble Supreme Court. The applicant along with another applicant Sri T. Venkteshwarlu, who was similarly situated filed O.A. No. 1633/2001, but this Tribunal directed to file a separate O.A. Hence the present O.A. has been filed.
3. In reply the above contentions of the applicant, the respondents have contended that 50% of the vacancies in Junior Scale of IRTS were to be filled by direct recruitment through competitive examination (Civil Services Examination) and 50% by promotion. The percentage was 60:40 until the amendment issued vide Gazette notification dated 31.7.1997. Since Group-B seniority was maintained Railway-wise, the total promotion quota vacancies were to be, necessarily divided amongst the various units. Eligible Officers, who were to be considered by a Departmental Promotion Committee were working in various offices spread all over the country. Therefore, collection and compilation of their Annual Confidential Reports including previous Annual Confidential Reports, where required, was not available for some specific reason) and other necessary information/documents required some time. Thus, despite best possible efforts, it was not always possible to conduct departmental promotion committee at fixed points of lime. As per provision in the relevant recruitment rules, 50% of the vacancies in Junior Scale of Indian Railway Transport Service were to be filled by direct recruitment through competitive examination (Civil Services Examination) and 50% by promotion. The Railways have to take up large number of construction works through the country, as part of the national transport infrastructure building activity. Manpower for supervision of these works was obtained by creation of work charged posts for the duration of the work. The Railways, therefore, have a significant component of work charged posts (including Senior Scale posts) in all the Departments. The prescribed yardstick for sanction of these posts takes into account the financial outlay, the nature and geographical spread of the work etc. Therefore, exigency of manning these posts arises for which ad hoc promotions in Senior Scale were made. The lowest rung of Group-A was Junior Scale. As such, vacancies in Senior Scale could not be taken into account for the purpose of induction/promotion of Group-B officers to Junior scales. Rule 209(b) (1) and Rule 209(C)(1) of the Indian Railway Establishment Code, Volume 1, 1985 Edition had been reproduced by the respondents, which is as follows:
Rule 209(B)(1)--Promotion from Group-B to Group-A (Junior Scale):
"Appointments to the posts in the junior scale shall be made by selection on merit from amongst Group-B officers of the departments concerned with not less than 3 years of non-fortuitous service in the grade."
Rule 209(C)(1)--Promotion from Junior Scale to Senior Scale:
"Appointments to the posts in the Senior Scale shall be made by promotion in the order of seniority, subject to rejection of the unfit officers with ordinarily not less than 4 years service in the junior scale."
In case of promotion from Group-B to Group-A/Junior Scale, appointments to the posts in the junior scale shall be made by selection on merit, whereas in case of promotion from junior scale to senior scale, appointment to the posts in the senior scale shall be made by promotion in the order of seniority, subject to rejection of the unfit. For promotion to Group-A/Junior Scale, at the relevant point of time, the Departmental Promotion Committee used to assign the officers with gradations 'Outstanding,' 'Very Good', 'Good', 'Average' and 'Unfit' on the basis of ACRs of 5 preceding years. The officers graded as 'Outstanding' ranked en-block senior to those graded as 'Very Good' and they in turn ranked en-block senior to those who were graded as 'Good' and placed in the select panel accordingly upto the number of vacancies; officers with same grading maintaining their inter-se seniority in the feeder grade. Thus, the selection being based on merit, supercession was not an uncommon feature. So, both the selections could not be treated as par. For promotion to senior scale, the requirement was 4 years in junior scale. While ordering promotion to senior scale on regular measure, whether the junior scale officer was a directly recruited officer or a promotee, was not at all a factor that was take into consideration. In the case of promotion from Group-B to Group-A/Junior scale, the departmental promotion committee was convened by the UPSC, whereas in case of promotion to senior scale, UPSC was not consulted. So, both the departmental promotion committees could not in any manner be treated at par.
Under Rule 209(C)(1), only a junior scale officer with not less than 4 years service could be promoted to senior scale. However, in exigencies of work, ad hoc promotion of a Group-B officer to senior scale was made. Such ad hoc appointment does not constitute regular appointment to Group-A, which could only be made by the President in consultation with the UPSC. Thus, appointment of a Group-A officer to junior scale by the President, based on the recommendations of departmental promotion committee, held by UPSC was no doubt a 'promotion.' Further, the pay scales of Group-B post and junior scale post were different. The issue involved in WP No. 4766/2000 before the Hon'ble High Court, Hyderabad, was not the same.
The respondents have also admitted that the applicant for the first time came to be eligible for consideration for junior scale of IRTS by DPC held on 9th, 19th and 11th June, 1997, with reference to the promotion quota vacancies of South Central Railway corresponding to examination year 1995. However, he was not included in the panel by the DPC as seniors to him in the zone of consideration with same gradation were selected. So, the name of the applicant was considered in the DPC held in May/July, 1999, and included in the panel. So, he was substantively appointed to junior scale of IRTS with effect from 15.7.1999, vide Ministry's notification No. E(GP)97/1/58 of 12.8.1998. However, the applicant was given weightage of five years and the date of increment in time scale was fixed as 15.7.1994. So, if the applicant was given the antedate promotion of 1996, instead of 1999, as sought in the present application he should be given 5 years weightage of service from 1996 i.e., 1991, which was not permissible under rules. The applicant came to be eligible for consideration for promotion for the first time in the year 1997. So seeking antedated promotion to the year 1996, when he was not even in the zone of consideration for junior scale was not tenable. Simply completing minimum length of service would not given any right to any employee to claim promotion as a matter of right. The DOP&T vide O.M. No. 22014/5/86-Estt(D), dated 10.4.1989, had issued consolidated instructions in the form of 'Guidelines' on departmental promotion committees. Paras 6.4.1 to 6.4.4 deals with preparation of year-wise panels by departmental promotion committee, where they have not met for a number of years. If says how to decide the vacancies, consideration of officers' falls within the zone of consideration. Para 6.4.4 reads as under:
"While promotions will be made in the order of consolidated select list, such promotions will have only prospective effect even in case where the vacancies relates to the earlier year(s)".
In case where the recommendations for promotion were made by the departmental promotion committee presided over by a member of UPSC and such recommendations do not require to be approved by the commission, the date of commissions' letter forwarding fair copies of minutes duly signed by the Chairman of departmental promotion committee or the date of the actual promotion of the officers, whichever was later, should be reckoned as the date of regular promotion of the officers. In the cases where the commissions approval was also required, the date of UPSCs letter of communication, its approval or the date of actual promotion of the officer, whichever was later, would be the relevant date. In other cases, the date on which promotion would be effective, would be the date on which the officer was actually promoted or the date of the meeting of the departmental promotion committee, whichever was later. Where the meeting of departmental promotion committee extends over more than one day the last date on which departmental promotion committee met shall be recorded as the date of meeting of the departmental promotion committee. As per the above rules, a notification bearing No. E(GP)97/1/58, dated 12.8.1999, was issued by conveying the Presidential approval for appointment of 18 Group 'B' officers of Traffic Department of Indian Railways with effect from 15.7.1999, in which the name of the applicant figures under the heading South Central Railways. So the relief claimed by the applicant was not tenable.
The respondents have, therefore, contended that the applicant was not entitled for any relief as sought for in the O.A. and the same was liable to be dismissed in limini.
4. In support of the case, the respondents have quoted the judgment of the Hon'ble Supreme Court in Civil Appeal No. 879 of 1998, decided on 7.1.2002, in the case of Md. Israils and Ors. v. State of West Bengal and Ors., 2002(2) SLR 299=2002(3) CLJ 80 (SC), wherein it was held "the inter se seniority of the direct recruits and promotees has to be worked out treating the services of the direct recruits from the date of their initial appointment and the services of promotees from the date of their service being approved by the Public Service Commission and notified by the State Government".
5. The learned Counsel for the applicant has relied on the judgment of the Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors., , wherein it was held that "if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the Rules, the period of officiating service will be counted."
6. The learned Counsel for the applicant also relied on the judgment of the Hon'ble Supreme Court in Civil Appeal Nos. 3607-11/1988, decided on 2.4.1993 in the case of State of W.B. and Ors. v. Aghorenath Dey and Ors., wherein it has been decided that "Ad hoc service followed by regular service would give the benefit of ad hoc service not admissible, if appointment was in violation of rules--Scope of applicability of corollary to conclusion (A) and conclusion (B) in Direct Recruit Class II Engineer Officers' Association case explained--the corollary disallows benefit of ad hoc appointment made as a stop gap arrangement, whereas conclusion (B) allows benefit of service in cases where there was 'procedural' irregularity in making appointments according to rules and this irregularity was subsequently rectified."
7. Heard the learned Counsel Mr. K. Siva Reddy for the applicants and the learned standing Counsel Mr. V. Rajeshwar Rao for the respondents.
8. The learned Counsel for the applicants and the respondents have reiterated their respective positions as put forth in the O.As. and the reply statements.
9. From a perusal of the Headquarters' Office, Personnel Branch, Secunderabad Proceedings No. P. 675/GAZ/TC/XIV, dated 10.11.1988, it is found that the applicant (O.A. No. 128/02) Shri K.J. Reddy, CCI/HQ (Group 'C'), who is borne on the provisional Group 'B' panel of Commercial Department and who has been found medically fit for category 'A' Group-B post (ACS/ACO) is promoted to Group 'B' post and posted as Officiating PA to CCS (Group 'B') vice Shri P.P. Vithal. Shri K.J. Reddy is eligible to exercise option within a period of one month for fixation of pay in the promotional grade in terms of Board's letter No. E (P&A) II 81/P1-4, dated 13.11.1981.
The applicant after being empaneled by DPC of South Central Railway was promoted as Divisional Commercial Manager in the scale of Rs. 3000-4500/- (Sr. time scale posts in Group 'A') on ad hoc basis, vide CPO/SCR's O.Os. dated 20.10.1994. The applicant has annexed a copy of the office order dated 20.10.1994 as Annexure A2 to the O.A. In the office order No. P. GAZ/675/TC/94, dated 20.10.1994, through the approval of the Competent Authority, Shri K.J. Reddy, ACM/HYB was transferred to Headquarters and posted as ACM/Law/HQ/SC against the residual post of Sr. Law Officer mentioned in item (i) above of the said order.
10. The applicant in his rejoinder has also pointed out that Shri P. Seethapathi Rao and others, whose substantive appointment to Junior Scale of IRTS was from 1992, have been selected against the vacancies of 1989/90, vide seniority list of IRTS Junior Scale Officers published on 28.9.2000. After seeing this notification only the applicant got the information that he was selected against the vacancy of 1996.
11. Having perused the records in the matter, it is obvious that the applicant was placed in JA grade to perform the duties of Sr. Law Officer in the General Manager's office order No. P/GAZ/675/TC/94, dated 20.10.1994. Of course, the order docs not mention that the applicant in question will draw his senior scale pay Plus a charge allowance as per the Railway Board's letter No. E(O)III-87/PL/1, dated 12.8.1987, while looking after the full duties of the JA grade post until further orders.
12. The applicant has contended that when he was regularly promoted on 15.7.1999, which was as against the vacancies for 1996, he was not given his substantive promotion from that date nor was allowed any monetary benefits. Whereas, in the case of Shri P. Seethapathi Rao and others, whose substantive appointment to junior scale of IRTS was from 1992, have been selected against the vacancies of 1989/90, vide seniority list of IRTS Junior Scale Officers was published on 28.9.2000.
13. The applicant has relied on the judgment of the Hon'ble Supreme Court in the case of R.K. Gupta, wherein the Bombay Bench of this Tribunal while holding that the DPC was delayed, held that the applicant be promoted from the year of vacancy and the SLP filed by the respondent Railway was dismissed by the Hon'ble Supreme Court.
14. The learned Counsel for the applicant also relied on the judgment of the Hon'ble Supreme Court in Civil Appeals Nos. 2180-2215/1998, decided on 5.4.2000 in the case of T. Vijayan and Ors. v. Divisional Railway Manager and Ors., 2000 SCC (L&S) 444= 2000 (3) SLJ 325 (SC), wherein it was laid down that in case ad hoc promotion is in accordance with rules, followed by regularisation, such ad hoc service would count towards seniority as per the Railway Establishment Manual, Paras 216 and 302. Para 216 of the Railway Establishment Manual indicates that ad hoc promotion is permissible pending regular selection. Once ad hoc promotion is found to be permissible under the Rules and respondents 4 to 143 were promoted on ad hoc basis in the exigencies of service, pending regular selection, which, incidentally, took sufficient time as respondents 4 to 143 who were on official duty "on lien," were not available at one point or at one time to facilitate the selection, the entire period of their ad hoc service will have to be counted towards their seniority, particularly as all the respondents (4 to 143) were duly selected and their services were also regularised with effect from 16.12.1991 by order dated 18.1.1992.
15. In Civil Appeal Nos. 3607-11/1988, decided on 2.4.1993 in the case of State of W.B. and Ors. v. Aghorenath Dey and Ors. (Civil) Appeal No. 3608/1988), State of W.B. and Ors. v. Biswanath Ghose and Ors. (Civil Appeal No. 3609/1988). State of W.B. and Ors. v. Majharul Islam Khan and Ors. (Civil Appeal No. 3610/1988), Ashoke Kumar Roy Choudhary and Ors. v. Aghorenath Dey and Ors. (Civil Appeal No. 3611/1988), and Deb Nath Das and Ors. v. Biswanath Ghosh and Ors., , the Hon'ble Supreme Court ruled as follows:
"Conclusion (B) was added to cover a different kind of situation, where appointments are otherwise regular except for the deficiency of procedural requirements laid down by the rules. This is clear from opening words, namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the latter expression 'till regularisation of his service in accordance with the rules.' In order to reconcile (B) with (A), (B) is to be read to cover cases where initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and there is deficiency in procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of appointment, for determining whether it falls in this category, has to be made on the basis of the terms of initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any fault of the employee, and the appointee must continue in the post uninterruptedly till regularisation of his service, in accordance with the rules. The appointee, in such cases, is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules."
16. In case of the present applicant also since the applicant was appointed in 1999 against the vacancy in 1996 and he had been discharging his duties against junior scale Group 'A' post as Assistant Commercial Manager as contended by him, the applicant would be entitled for seniority from 1996 and the consequent monetary benefits, in case his appointment was against the vacancy for 1996, even though no explicit orders to that effect were passed, but only Gazetted arrangements--TT&C Department were made as per office order No. 425/94, dated 20.10.1994, a post in which he continued till his regular promotion in 1999, as per Presidential notification dated 12.8.1999 No. E(GP) 97/1/58, issued by the Ministry of Railways; since the applicant was officiating in the promoted scale from 1994, but only against a vacancy of 1996, the applicant would be entitled for seniority from the date from which the regular vacancy arose and would have to be paid the monetary and other consequent benefits from the earlier date of regular vacancy.
17. The respondents are, therefore, directed to carry out correction in the seniority of promotion of the applicants to the Group 'A' post to which they have been officiating from the date when regular vacancy arose and from the date of promotion of the applicants against such regular vacancy, which as per the claim of the applicants arose in 1996.
18. The O.A. Nos. 1633/2001 and 128/2002 are disposed of accordingly. There shall be no order as to costs.