Central Administrative Tribunal - Allahabad
Dr Santosh Kumar Tiwari vs M/O Defence on 7 March, 2019
(Reserved on 07.02.19)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 969 of 2018
Allahabad this the 07th day of March, 2019
Hon'ble Ms. Ajanta Dayalan, Member- A
Hon'ble Mr. Rakesh Sagar Jain, Member- J
Dr. Santosh Kumar Tiwari, Son of Late Bhagwan Tiwari, Principal Scientific
Officer JAG (NFSG) Office of Controllerate of Quality Assurance (Material)
DGQA, Kanpur-208004. Under the Department of Defence Production,
Ministry of Defence, Government of India, New Delhi-110011.
Applicant
By Advocates: Shri Ashish Kumar Ojha
Shri Anil Kumar Singh
VERSUS
1. The Union of India through the Secretary (Department of Defence
Production) Ministry of Defence, Government of India, New Delhi-
110011.
2. The Director General of Quality Assurance (DGQA), Department of
Defence Production, Ministry of Defence, Government of India, New
Delhi-110011.
3. The Addl. Director General of Quality Assurance (DGQA),
Department of Defence Production, Ministry of Defence,
Government of India, New Delhi-110011.
4. The Controller, Controllerate of Quality Assurance (Material) DGQA,
Kanpur-208004. Under the Department of Defence Production,
Ministry of Defence, Government of India, New Delhi-110011.
5. The Secretary (Revenue) Department of Revenue, Ministry of
Finance, Government of India, New Delhi-110011.
Respondents
By Advocate: Shri Shivaji Singh
ORDER
Delivered by Hon'ble Ms. Ajanta Dayalan, A.M. This O.A. has been filed by the applicant Dr. Santosh Kumar Tiwari seeking direction to the respondents to grant the applicant 2 post of Junior Administrative Grade (Non Functional Selection Grade)/Joint Controller w.e.f. 1.01.2016 alongwith all consequential benefits. The applicant has also sought direction to the respondents to give him NOC on an application moved by him for going on deputation as Director (Revenue Laboratories) in Central Revenues Control Laboratory (CRCL), Department of Revenue, Ministry of Finance, Government of India which is still vacant.
2. The applicant is M.Sc. in Chemistry and also has Ph.D. degree in Chemistry. He was initially appointed as Junior Chemist and Metallurgical Assistant in Railway Ministry on 03.07.1989. Thereafter he was appointed as Scientific Assistant (Chemical) Group-B (Non-Gazetted) in National Test House, Calcutta. Further he became Scientist-B (Chemist) in Central Ground Water Board, Bhubhaneswar and joined as such on 14.01.2002. Further he was selected as Senior Scientific Officer Grade-I in his present department namely Director General Quality Assurance (DGQA) under Ministry of Defence and joined as such on 24.04.2006. He was promoted as Principal Scientific Officer in pay band-3 on 04.04.2014. He was given the pay scale in NFSG in pay band-4 since 01.07.2016.
3. In the O.A., the applicant has stated that though he was entitled to be placed as Joint Controller/ SQAO/Director Grade in Junior Administrative Grade (NFSG) and his pay was also fixed in pay band-4, but he has not been appointed as such. Accordingly, he moved an application dated 02.02.2017 (annexure A-1). Alongwith this application, he also annexed O.M. dated 11.03.2011 of Department of Personnel and Training (annexure A-2). According to the applicant, this OM provides that after grant of pay band-4, 3 an officer will be given the post within a year from the posting itself. The applicant further moved representations to the respondents' department. Vide letter dated 07.06.2017 (annexure A-4) the department intimated his establishment that his request for placement as Joint Controller/SQAO/Director Post has been forwarded to the DDG/Adm on 22.03.2017 and final decision will be intimated to his establishment.
4. The applicant has stated that the post is lying vacant since July 2016. Further as per Defence Quality Assurance Service Rules, 2014 (annexure A-5), for Principal Scientific Officer (Junior Administrative Grade, Non-Functional Selection Grade), method of recruitment is by promotion by non-selection and the condition prescribed is that "Officers of the Junior Administrative Grade who have entered the 14th year of service as on the 1st January of the year calculated from the year of selection on the basis of which the member was appointed or recruited to Group 'A' posts."
5. The case of applicant is that having entered service as Group 'A' on 14.01.2002 and in view of Rule position as given above, the applicant is entitled for this promotion from 01.01.2016. He has already been placed in pay band-4 but he is yet to be appointed as Joint Controller/SQAO/Director level. This is despite the fact that his career is up to the mark and he has been selected by the Union Public Service Commission against various posts several times as is apparent from his service record.
6. Further, the applicant has stated that as he was not adjusted in higher post in his parent department, he applied for the post of Director (Revenue Laboratories) under the Department of Revenue 4 on deputation basis. His application was forwarded to Department of Revenue (annexure A-6). The NOC alongwith relevant documents like Annual Performance Appraisal Report, vigilance clearance, integrity certificate were required to be given. However, vide letter dated 29.11.2017 (Annexure A-7), the Department of Revenue made a communication to the respondents' department that they were verbally informed by the respondents' department that the applicant is not clear from vigilance angle. The applicant has pleaded that this action of the respondents is arbitrary and unjust as the post is available and no inquiry is pending against the applicant. No show cause notice or charge sheet has been issued to him and as such, NOC needs to be granted to him.
7. The respondents have contested the claim of applicant. They have stated that it is true that the applicant was given NFSG in pay band-4 w.e.f. 01.07.2016. However, this was not a promotion and was mere increase in pay. Placement/promotion is subject to availability of vacancy and fulfilment of other eligibility criteria. The respondents have also stated that the placement to Director and DDG level posts has been kept in abeyance with the directions of Hon'ble Raksha Rajya Mantri who is the competent authority, conveyed vide order dated 15.11.2018 (Annexure CA-1).
8. The respondents have further stated that the applicant could not be issued NOC as he was not clear from vigilance angle. This was in view of various guidelines of DOPT including consolidated instructions dated 23.12.2013 on forwarding of applications. The respondents have further stated that consequent on receipt of series of complaints alleging irregularities in recruitment process of 5 six posts of L.D.C. at CQA (M) Kanpur in respect of recruitment carried out with the applicant as Presiding Officer of Recruitment Board (Annexure CA-4), Fact Finding Inquiry was conducted and based on this report, the whole recruitment process was cancelled and services of appointed candidates were terminated. It is further stated by the respondents that the matter has been referred to C.B.I. for investigation (annexure CA-6).
9. Further, the respondents have stated that the post for which the applicant is seeking appointment has been re-advertised and as such, NOC for the application against earlier advertisement which is sought in the present OA, has become obsolete.
10. The respondents have concluded that in view of the position explained above, there is no harassment to the applicant and he is not entitled for any relief.
11. We have heard the counsel for both the parties and have also gone through the pleadings in the case. We have also given our thoughtful consideration to the entire matter.
12. With regard to appointing the applicant in the post of Junior Administrative Grade (NFSG)/Joint Controller w.e.f. 01.01.2016, it is not disputed and even the applicant has stated that the applicant is already in Junior Administrative Grade (NFSG) w.e.f. 01.07.2016. What the applicant is in fact seeking is his placement in Junior Administrative Grade (NFSG) on promotion and not merely as financial up-gradation. The respondents have stated categorically that placement/promotion to Director and DDG level post has been kept in abeyance with the direction of Hon'ble Raksha Rajya Mantri 6 who is the competent authority. They have also produced order dated 15.11.2018 (annexure CA-1) in support of this contention. We thus observe that placement in higher scale is itself held in abeyance in general under orders of Raksha Rajya Mantri who is the competent authority. Hence, it is not that the applicant's individual case is held up but there is a general order for placement in DDG/Director level post to be kept in abeyance.
13. We further observe that the respondents have also stated that the applicant is not clear from vigilance angle. They have given specific instance of irregularities in recruitment process for six posts of L.D.C. in Kanpur. The matter has already been referred to C.B.I. for investigation into the criminal nature of allegations. Reference to Director, C.B.I. dated 10.08.2018 is at annexure A-6. The respondents have also stated that whole recruitment process, of which the applicant was in-charge as Presiding Officer, had to be cancelled.
14. The applicant has argued in his Rejoinder Affidavit that the candidates selected as LDC in the examination conducted by the applicant as Presiding Officer are continuing to work in their respective posts till date under interim orders of this Tribunal. We are of the view that these orders are only interim orders and not final orders. Also, continuance of selected candidates in their present job under the garb of interim orders does not clear the applicant as Fact Finding Inquiry has found serious irregularities in the selection process and as the applicant was the Presiding Officer, his case has already been referred to the Director, C.B.I. for investigation into criminal nature of allegations. Hence, we are of 7 the view that the interim order passed by this Tribunal in favour of the candidates ordering status quo to be maintained for protecting their interest cannot be used by the applicant in his favour.
15. We also observe that the applicant is claiming to have completed eligibility condition of 14 years of service for placement in JAG (NFSG) with effect from 01.01.2016 counting his service from 14.01.2002. However, on this date of 14.01.2002, he was selected as Scientist B in Central Ground Water Board, Bhubneshwar and not in DGQA. He was appointed in DGQA only on 24.04.2006. As per DGQA Service Rules 2014 (Annexure A-5), 'service' is defined as Defence Quality Assurance Service. Even otherwise, service in other organizations would ordinarily not count for seniority or promotion in DGQA unless clear provisions to this effect exist. No such provisions have been brought out by the applicant for counting of his service in Central Ground Water Board. As such, the eligibility period of service for promotion to JAG (NFSG) in DGQA has to be counted with reference to the date of appointment of the applicant in DGQA in 2006 and hence, he will not complete the same on 01.01.2016 as claimed by him. We also find that the instructions dated 11.03.2011 of DOPT relied upon by the applicant are in fact only model calendar for all DPCs and merely lay down time schedule for holding of DPCs so as to ensure that the process is completed in time. These nowhere lay down that an officer be given a post on actual promotion within one year of his placement in a scale.
16. Further, the applicant cannot claim his proceeding on deputation as a matter of right. In any case, the respondents 8 department has stated that the said post has already been re- advertised and accordingly, earlier advertisement and the application of present applicant in response to earlier advertisement for the post of Director (RL) is not relevant any more. The applicant in his Rejoinder Affidavit has stated that he has applied against the fresh advertisement again and as such the question of NOC still remains. Under these circumstances, a fresh cause of action could be said to arise and the same cannot be challenged in the present O.A. which refers only to the original advertisement. In any case, we note that the fresh advertisement by Department of Revenue dated May 2017 itself contains a clause that 'While forwarding the application, it may please be certified that the particulars furnished by the applicant are correct and that no disciplinary case is pending or contemplated against the officer concerned.'. In such circumstances, the respondents may take a view on issue of NOC to the applicant.
17. In view of the above discussions, O.A. is dismissed being devoid of merits. No costs.
(Mr. Rakesh Sagar Jain) (Ms. Ajanta Dayalan)
Member-J Member-A
Anand...