Central Administrative Tribunal - Delhi
Ms. Shobhna Sharma vs Union Of India Through on 5 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-347/2014
Order Reserved on 18.05.2015
Order Pronounced on: 05.08.2015
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
1. Ms. Shobhna Sharma,
Aged about 42 years
W/o Sh. Satish Sharma,
R/o 4/174, F-1, Vaishali
Ghaziabad, UP -201010
2. Sh. Ravi Dutt Sharad,
Aged about 44 years,
S/o Sh. M.L. Sharad,
R/o House No. 860,
Sector-7, Block-C,
Faridabad, Haryana -121006
3. Sh. Bhuwan Chandra Joshi
Aged about 41 years,
S/o Sh. L.D. Joshi,
R/o N -272, Sector-9,
R.K. Puram, New Delhi-110022
4. Sh. Rajan Sharma,
Aged about 46 years,
S/o Sh. R.S. Sharma
R/o C-5A/166, Janak Puri,
New Delhi-110058
5. Sh. Charanjit Singh,
Aged about 43 years
S/o Sh. Hari Singh
R/o 19-H, Sikka Colony,
Sonepat, Haryana-131001
6. Sh. Rajkumar Singh,
Aged about 46 years,
S/o Sh. Mahavir Singh
R/o Plot No. 1/41, Vaishali,
Ghaziabad, UP-201012
7. Sh. Ashit Sanyal
Aged about 50 years
S/o Late Anirudh Sanyal
R/o H-228, Alpha-II
Greater Noida, UP
8. Sh. Parvinder Kumar,
Aged about 48 years,
S/o Sh. Prem Lal Jawa,
R/o Plot No. 584, Sector-15,
Sonepat, Haryana
9. Sh. Satish Kumar Minocha
Aged about 46 years,
S/o Sh. Jagdish Chander,
R/o 1899, Sector-7,
U.E., Karnal, Haryana -132001
10. Sh. Pramod Kumar,
Aged about 49 years,
S/o Sh. SriKishan Vats,
R/o Chand Colony,
Samalkha (Panipat),
Haryana -132101
11. Sh. Darshan Singh,
Aged about 44 years,
S/o Sh. Balvir Singh
R/o Type-II, G-17, FF Colony,
Old Jail Road, Amritsar, Punjab
12. Ms. Geeta Bhutani,
Aged about 51 years
W/o Sh. M.K. Bhutani
R/o Block No. C-5-B,
Flat No. 6-B, Janakpuri,
Delhi-110058
13. Sh. H.M. Naushad,
Aged about 43 years,
S/o Sh. Ali Mohd.,
R/o 128/4, Sector-I,
MB Road, Delhi -110017
14. Sh. Prashant Pandit
Aged about 44 years,
S/o Sh. M S Sharma,
R/o L-72, Jalvayu Vihar,
Sector -29, Faridabad-121008
15. Sh. Ramesh Bhatt,
Aged about 43 years,
S/o Late Ravi Dutt Bhatt
R/o B-2868, Netaji Nagar,
New Delhi-110023.
....Applicants
(By Advocate: Shri S.K. Gupta)
Versus
Union of India through
1. Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi
2. Director General,
Central Public Works Department,
Nirman Bhawan, New Delhi
3. Special Director General (NR),
Central Public Works Department,
Sewa Bhawan, R.K. Puram,
New Delhi-110066
4. Executive Engineer Coordination (Civil) NR
Central Public Works Department,
East Block-I, Level-VI,
R.K. Puram, New Delhi -110066
......Respondents
(By Advocate: Shri Piyush Gaur and
Shri M.K. Bhardwaj)
O R D E R
Per Sudhir Kumar, Member (A):
This OA was filed by the 15 applicants, with MA No.298/2014 praying for permission for joining together for filing the OA. MA No.298/2014 is allowed. MA No.299/2014 had been filed for exemption from filing certified copies of Annexures, which MA is also allowed. All other MAs filed in between for allowing certain documents to be placed on record had been allowed, but the MA No.138/2015, praying for vacation of stay was not allowed, but MA No.139/2015 praying for impleadment of intervenors as private respondents stood allowed on 16.02.2015. The applicants in MA No.139/2015, who were intervenors, were directed to file reply to the OA, and the original applicants had been directed to file amended Memo of Parties, including the names of the intervenors. MA No.3798/2014 had been filed by the respondents seeking advancement of the hearing of the case.
2. The short point in dispute had already been determined by the Bench on 03.03.2014, as has been explained by the applicants also in Para 4.3 and Para 4.4 of their OA. The whole issue concerns the Limited Departmental Competitive Examination (LDCE, in short). As per the CPWD Establishment Manual, up to the year 2013 there were separate posts of Head Clerks in the erstwhile pay scale of Rs.5000-8000, Office Superintendents Grade-II in the erstwhile pay scale of Rs.5500-9000, and Office Superintendents Grade-I in the erstwhile pay scale of Rs.6500-10500. These translated to posts of Head Clerks and the promotional posts of Office Superintendents Grade-II being placed at par in Pay Band-2 with Grade Pay of Rs.4200/-, after the implementation of the VI Central Pay Commission (VI CPC, in short) recommendations, which had across the Board, in all Departments of the Union of India, ordered a merger of the erstwhile pay scales of Rs.5000-8000 and Rs. 5500-9000, which was also implemented in different cadres of CPWD. It was only the higher post of Office Superintendent Grade-I, which was placed in Pay Band-2 with Grade Pay of Rs.4600/-, as is evident from Annexure A-4 and Annexure A-5 of the OA. This merger was brought about through OM dated 10.01.2012 (Annexure A-6). A portion of the grievance of the applicants arises from the fact that actually the Head Clerks in the erstwhile pay scale of Rs.5000-8000, had constituted the then prescribed channel and avenues of promotion to the erstwhile pay scale of Office Superintendents Grade-II, with pay scale of Rs.5500-9000, before issuance of the orders at Annexure A-6 dated 10.01.2012, Annexure A-5 dated 08.08.2012 and Annexure A-4 dated 08.08.2012. This merger of the cadres of Head Clerks and their promotional posts of Office Superintendents Grade-II also disturbed the position regarding Service Rules as prevalent prior to such merger. As per the extracts of CPWD Establishment Manual produced by the Intervenors as Annexures to their MA No.138/2015, the Recruitment Regulations for these posts prescribed as follows:-
(IV) Ministerial Staff
1.
Office Superintendent Grade-I* PB-2, Rs. 9300-34800 with GP of Rs. 4600 Not required being promotional post.
Superintendent Grade II with three years regular service in the grade.
By promotion DG, CPWD No Probation.
Group B DPC Composition: Chief Engg. Chairman, Director (Admn.) (CPWD)
-Member Director/Dy. Secy. M/o Urban Development
-Member
2. Office Superintendent Grade-II* PB-2, Rs. 9300-34800 with GP of Rs. 4200 Not required being promotional post.
80% from Head Clerk, 20% from Steno Grade I with 5 Years regular service in the grade.
By promotion DG,CPWD Two years.
DPC Composition:
Director Admn. CPWD
-Chairman Dy Director Office of the Directorate of Printing or Dte. of Estates Member Dy. Director of Admn. III, CPWD
-Member
3. Head Clerk PB-2 Rs. 9300-34800 with GP of Rs. 4200 50% Prom.
50% LDCE SE (Coord.) Two years. Confirmation to be done on satisfactory completion of probation period.
Group C DPC Composition:
SE (Coord. )
-Chairman SE of the same region
-Member SE from CBDT failing which SE from P&T
-Member After Cadre structuring (sic. Re-structuring) the cadres of Head Clerks and Superintendent II have been merged and re-designated as Office Superintendent vide O.M. No. 58/04/07/S&D/24 dated 10.01.2012. However, revised RRs for the merged/re-designated posts have not yet been issued so far.
3. The amendment Notification which consolidated the Recruitment Rules was issued only on 21.07.2014, through GSR 164, after the present O.A. had been filed, through which the Central Public Works Department (Subordinate Offices) Office Superintendent (Group B) Recruitment Rules, 2014, were issued. These Rules for the first time prescribed the Recruitment Rules for the combined cadre of Office Superintendents in Pay Band-2 Rs.9300-34800 with Grade Pay of Rs.4200, which was much after both the LDCE of 2012 and the LDCE of 2014, the latter of which is the bone of contention before us, had been conducted. In Column 1 to 4, 10 & 11 of these newly notified Rules, which came into being after the filing of the present O.A., as filed by the applicants from pages 43 to 48 of their OA, the method of recruitment for the now merged cadre of Office Superintendents was prescribed as follows:-
Name of the post Number of posts Classification Pay Band and Grade Pay or Pay Scale (1) (2) (3) (4) Office Superintendent 601*(2014) *(Subject to vacation dependent on workload). General Central Service, Group B Non-Gazetted, Ministerial Pay band-2,Rs.9300-34800 with Grade Pay of Rs.4200 (5 to 9)..(Not reproduced here) Method of recruitment: Whether by direct recruitment or by promotion or by deputation or absorption and percentage of the vacancies to be filled by various methods In case of recruitment by promotion or deputation/absorption, grades from which promotion or deputation/absorption to be made (10) (11) By Promotion Promotion:
Upper Division Clerks in the pay band 1, Rs.5200-20200 with grade pay of Rs.2400 in the subordinate offices of Central Public Works Department having ten years regular service in the grade and have successfully completed training course on establishment or administration e-governance modules, computerization of records and in matters relating to right to information course cases, budget and parliamentary procedure. Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of which qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying /eligibility service. Note 2: For the purpose of computing minimum qualifying service for Promotion, the service rendered on a regular basis by an officer prior to 1st January, 2006 or the date from which the revised pay structure based on the recommendations of the Sixth Central Pay Commission has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the said Pay Commission.
4. Therefore, as on today, after the present O.A. had been filed, the 50:50 quota for promotions on the basis of Seniority-cum-Merit 50% vs. through LDCE 50% as was prevalent for the promotion of UDCs to Head Clerks has now been replaced w.e.f. 21.07.2014, only for accelerated promotion of UDCs through LDCE directly to the merged cadre of Office Superintendents.
5. It may further be noted here itself that these 601 posts of Office Superintendents for which these new Rules have been notified on 21.07.2014, after the present O.A. had been filed, are the same 601 posts as contained in the Annexure A-4 dated 04.08.2012, as follows:-
S.No. Existing Structure Proposed Structure Existing Post Pay Band & Grade Pay Existing No. of Posts Proposed name of posts Approved No. of posts
1.
Office Superintendent-I PB-2+GP-4600 43 Office Superintendent-I 162 (+119)
2. Head Clerk PB-2+GP-4200 442+82 (524) Merged after 6th CPC Office Superintendent 601 (+77)
3. Office Superintendent-II PB-2+GP-4200 4&5 Not reproduced here.
6. Revised cadre strength of Ministerial Cadre of CPWD, as issued after Cadre Review on 08.08.2012, was as under:-
Subject: Cadre Review of Subordinate Ministerial Cadre of CPWD.
Consequent to approve of the Cadre Review of Subordinate Ministerial Cadre of CPWD by the Government vide No. 981/US/F/FD/12 dated 6.8.2012 of the IFD of Ministry of Urban Development and ID No. 2(20)/E.III Desk/2012 dated 4.8.2012 of Department of Expenditure Ministry of Finance, the revised strength of Subordinate Ministerial Cadre CPWD is as under:-
S. No. Post Strength prior to Cadre Review Revised Strength
1.
Office Superintendent-I 43 26 162 97
2. Office Superintendent 524 314 601 360 3&4 Not reproduced here
7. The applicants before us are mainly concerned with the 60% of the vacancies out of the 601 which are there in the Northern Region, amounting to 350, the rest being in the Eastern Region having 105 vacancies, Southern Region having 73 vacancies & Western Region having 73 vacancies, as given in Annexure A-5 dated 08.08.2012. The applicants have approached this Tribunal with a grievance that the respondents ought to have followed the erstwhile 50:50 quota prescribed for promotions of UDCs to Head Clerks, and computed the 50% quota for the LDCE as well as 50% quota for Seniority-cum-Merit appointments correctly, which was not done by them before the 2012 LDCE was conducted on 08.12.2012 and 09.12.2012, as already mentioned above. They are aggrieved because the respondents have rather taken recourse to the issuance of promotion orders in installments through Annexure A-10 (Colly) vide promotion orders dated 26.11.2012, 17.01.2013, 31.01.2013, 05.09.2012 and 25.09.2013 as per Para 4.11 of the OA. The applicants had sought information through an RTI application for calendar year-wise vacancies, and through Annexure A-11 it was disclosed to them that the respondents had accorded Seniority-cum-Merit and the LDCE quota promotions to the UDCs to the posts of Office Superintendents as follows:-
Year 2010 2011 2012 2013 Sen. Quota 15 21 45 54 Exam Quota 6 13 12 22 Total 21 34 57 76
8. Another applicant similarly applied under the RTI Act for details regarding filling up of vacancies not on calendar year basis, on the basis of which normally the vacancies are reckoned and filled up, but on the financial year basis. He was, therefore, provided with a separate set of information regarding financial year-wise details of vacancies through Annexure A-12 dated 18.12.2013, as follows:-
Para-3: Detail of vacancies is as under:-
Year Vacancies 2010-11 24 2011-12 18 2012-13 65
9. Obviously these two sets of information can never tally, because they relate to different periods of time, and the financial year-wise information can have no relevance for determination of year-wise vacancies for promotions. However, the applicants have assailed this in the OA as having been a violation of the CPWD Establishment Manual 2013, stating that the vacancies were not correctly determined by the Respondents year after year, and alleging that there is a mismatch between the total number of incumbents promoted in the years 2010, 2011, 2012 and 2013, from the actual number of vacancies as disclosed in the RTI information supplied to the applicants.
10. The applicants had, therefore, assailed the actions of the respondents, and have justified their action in having approached this Tribunal, on a number of grounds, which may be summarized as follows:-
A) There is an internal communication in which the Executive Engineer Coordinate (Civil) has recommended for promoting 25 more candidates for UDCs to the post of Office Superintendents including the 15 applicants before us.
B) Because after the Cadre Review was completed in the year 2012, the extra posts created resulted in extra vacancies being available pertaining to the year 2012-2013, and those vacancies required to be filled up from amongst the persons who had qualified in the LDCE of 2012, rather than conducting a fresh LDCE 2014.
C) That as per the DOP&T clarification produced by them at Annexure A-16, it has been laid down that while including the vacancies for each calendar year, and while distributing those vacancies among Direct Recruit and Seniority Quota, the roster for Direct Recruit and Seniority Quota will get attracted. In support of this ground, they had cited the Point of Clarification No.3. the applicants have mistaken that the LDCE to be direct recruitment. The LDCE is an accelerated promotion of people who are already in queue otherwise also for merit-cum-seniority based Time Bound Promotions, and that this Clarification is not applicable since LDCE promotees are not direct recruits whatsoever.
D) That 66 incumbents in Office Superintendents Grade-II were awaiting regular promotion as Office Superintendents Grade-I, as per the Seniority List issued on 01.01.2014, and by following the old Recruitment Rules, these 66 incumbents ought to have been promoted to the posts of Office Superintendents Grade-I, making room for the applicants in the lower grade of Office Superintendents Grade-II, in which the cadre of Head Clerks had been merged. They had, therefore, prayed for the following reliefs and the Interim Reliefs:-
i) quash and set aside the impugned communication dated 24.01.2014 (Annexure A-1) and also declared the action of respondents in not dividing the vacancies of the cadre of Office Supdt. in accordance with the quota prescribed as illegal and arbitrary;
ii) direct the respondents to recalculate the vacancies for the year 2012-2013 for the quota meant for LDCE and consider the case of the applicants for promotion based upon the examination conducted on 08.12.2012 and 09.12.2012 in accordance with the merit position and grant consequential benefits;
iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice;
Interim Order Pending final disposal of the OA, since, the vacancy position for the year 2012-2013 has not been settled for the cadre of Office Supdt., no useful purpose will be served if the respondents are permitted to conduct the next Limited Departmental Competitive Examination and as such, the respondents be directed to maintain status quo and not to conduct any further examination till the pendency of the OA.
11. On the other hand, the respondents explained that after the Cadre Review of Ministerial Staff of CPWD was finalized, and 360 posts of Office Superintendents (Grade-II) were sanctioned, 180 of those posts were meant for Seniority-cum-Merit Quota, and 180 for the LDCE quota, and mentioned that Rosters for both these posts were, therefore, amended. Thereafter they had given a break up of these vacancies of 180 each as follows:-
D. The roster position of Seniority Quota and Examination Quota as on 31/12/2012 is as under:-
Seniority Quota as on 31/12/2012 Details U.R. S.C. S.T. Total Sanctioned Strength 140 27 13 180 In Position 92 24 11 127 Vacancy 48 03 02 53 Examination Quota as on 31/12/2012 Details U.R. S.C. S.T. Total Sanctioned Strength 140 27 13 180 In Position 130 21 02 153 Vacancy 10 06 11 27
12. It was pointed out in Para-H of the respondents reply that while the vacancies in LDCE Quota are being filled up regularly through LDCE conducted on yearly basis, as the qualified candidates thereafter join immediately on being granted promotion, but the same is not the case in the case of promotions through Seniority-cum-Merit Quota. In their cases, while promotion orders are being issued regularly, but employees often forgo their promotion, resulting in an accumulation of vacancies in the Seniority Quota, because of which only it appears that a large number of UDCs are being promoted through the Seniority-cum-merit quota, though many of these promotions are due to their seniors, promoted earlier, having forgone their promotions. It was pointed out that the large number of promotion orders referred to by the applicants were issued in connection with this discrepancy only.
13. It was further submitted that ad hoc promotion orders of 80 Office Superintendents Grade-II to the posts of Office Superintendents Grade-I were issued on 05.06.2013 in the Northern Region, but the resultant vacancies thereby had occurred only during 2013-14, and not during 2012-13, as has been wrongly claimed by the applicants, who were all qualified only in the merit list of 2012-LDCE. They had pointed out the LDCE Examination Notification for the vacancies which had occurred during 2013-14, and submitted that out of 15 applicants of the present OA, 12 applicants have again applied to appear in this later LDCE examination also, and they have also been issued Roll Numbers. It was, therefore, submitted that the LDCE 2014 examination, which was earlier scheduled to be held on 14th & 15th December, 2013, but was postponed due to administrative reasons, and was to be conducted on 8th & 9th March, 2014, and in case the examination was not allowed to be conducted, the LDCE vacancies of the year 2013-14 will remain vacant, and that will not be in public interest, and which will also hamper the working of the department. As we have already mentioned above, this portion of the prayers of the respondents was granted by the Bench on 03.03.2014, when they were allowed to conduct the LDCE 2014, as scheduled, on 8th & 9th March 2014.
14. In the rejoinder filed by the applicants on 22.02.2014, their contentions as per OA were repeated, and it was assailed that when a decision had been taken by the respondents on 10.01.2012 through an OM issued on the basis of the recommendations made by the VI CPC for merging the posts of Head Clerks and the Office Superintendents Grade-II, and the Recruitment Rules for the merged posts had yet to be framed afresh, the respondents had wrongly decided to make the recruitment to the merged cadre of the posts of Office Superintendents Grade-II by invoking the Recruitment Rules applicable for the posts of Head Clerks, before such merger, which could not have been done. It was submitted that before any recruitment is carried out, either by way of direct recruitment, or by promotion, or by LDCE, it is incumbent upon the authority concerned to calculate the exact number of vacancies, both actual and anticipated, which was not done by the respondents, even though the respondents were fully aware about the exact number of vacancies for the period 01.04.2012 upto 31.03.2013, as the date of retirement of each and every employee was available with the respondents, and also the exact number of posts created newly in the cadre of Office Superintendents Grade II as a result of cadre restructuring was also available. They had alleged that even after the applicants had participated in the LDCE-2012, and had been declared to be qualified, they could not be promoted only because the respondents had not correctly and properly declared the exact number of vacancies which were meant for promotions through the LDCE route. They had pointed out the mismatch in terms of the information as supplied on 28.12.2013, as well as the vacancies position as supplied under RTI Act vide communication dated 07.11.2013, as already discussed above. The applicants had further mentioned that even though the exact figure of vacancies to be filled up through LDCE-2012 was not known, but according to their computation it should have been 41, and the cases of the applicants should have been covered earlier itself.
15. It was further pointed out that the cadre restructuring had been carried out in the year 2012, and the LDCE had also been conducted in the year 2012, but there had been a delay of 3 months in issuing of promotion orders, because of which the promotion order came to be issued on 05.06.2013. But they submitted that the vacancies cannot be treated of the year in which the promotion order was issued, because if this plea of the respondents is accepted, the entire objective and purpose of the Cadre Review would be defeated. They had, therefore, submitted that the rights of the applicants against the vacancies of the year 2012-13 cannot be taken away, merely because there had been a delay in issuance of the promotion order on the basis of 2012 LDCE, beyond 31.03.2013.
17. The respondents thereafter filed a detailed counter reply also on 16.04.2014. It was submitted that though the posts of Head Clerks and Office Superintendents Grade-II had been merged as per the recommendations of the VI CPC through OM dated 10.01.2012, administrative instructions had been issued that till the new Recruitment Rules for the merged Cadre posts of Office Superintendents are prepared, further promotions be done following the Recruitment Rules to the posts of Head Clerks, in which 50%-50% quota had been specified for promotion through Seniority-cum-Merit and through LDCE, respectively.
18. Most of the submissions already made by the respondents in their short reply earlier were then repeated. It was submitted that though the number of vacancies under the LDCE quota can be anticipated on the basis of the available records, but the instructions of the Director General of Works, CPWD OM dated 18.01.1981 prescribe that the result has to be declared for qualified candidates only as per the vacancies which had occurred up to 31st March of that year. They had pointed out that though there had been delay in issuance of the appointment orders, but the result of the examination of LDCE-2012 held on 8th & 9th December, 2012, was declared in time on 25.02.2013. However, they submitted that since thereafter the ad hoc promotion orders of majority of the incumbents could be issued only on 05.06.2013, hence the vacancies are being treated to be for the year 2013-14, and not for the year 2012-13, and the applicants, who had obtained qualifying marks in the LDCE-2012, held for the vacancy period 2012-13, cannot claim promotions against the vacancy year 2013-14. It was, however, submitted that the merit list cannot include more number of persons than the vacancies available to be filled, and hence the result of only those UDCs was declared on 25.02.2013, who were covered against the vacancies available for the year 2012-13, i.e., up to 31.03.2013, according to merit. The respondents had then explained the issuance of appointment orders based upon the previous LDCE-2012, on the basis of merit, and had submitted that there is no question of matching of the number of vacancies, as vacancies cannot be inter-changed, and the respective LDCE and the Seniority-cum-Merit quota vacancies were filled accordingly.
19. It was further submitted that the Examination Notification dated 14.08.2013 had been issued in order to fill up the vacancies during the year 2013-14, and more than 160 UDCs had applied for the examination and out of 15 applicants in the OA, 12 applicants had also applied, and had been issued Roll Numbers for the examination, which has since been held on 8th and 9th March, 2014, in view of the interim orders of the Tribunal dated 03.03.2014, and out of those 12, 5 applicants in the OA had also appeared in the examination.
20. Justifying the reply given by them to the Legal Notice issued by the applicants, it was submitted by the respondents that it was correct, as the incumbents shown after Sl. No.25 in the Seniority List as on 01.01.2014 were promoted on an ad hoc basis, because of which the vacancies have arisen in 2013-14, along with other vacancies, and are not proposed to be filled up by way of the later LDCE, for which the Notification had been issued on 14.08.2013. The respondents had, therefore, submitted that the OA is devoid of any merit, and deserves to be dismissed.
21. Annexure R-1 to this reply contained the OM regarding the conduct of LDCE. They had also filed other miscellaneous documents regarding the Cadre Review, an extract of which has already been reproduced above, and had annexed a number of orders of promotion that had been issued under both categories from time to time, as Annexure R-3 to R-6.
22. The applicants then chose to file another rejoinder to this detailed reply, reiterating most of their contentions in the earlier rejoinder. Disputing the stand of the respondents that only 63 vacancies were available to be filled up amongst unreserved category, it was submitted that six more vacancies had arisen on account of retirements, and three more vacancies had arisen on account of the untimely deaths of the individuals concerned, and, as such, the total number of actual vacancies of the year 2013 were 72, out of which 36 were required to be filled up through the LDCE, while the respondents had promoted only 12 incumbents belonging to unreserved category, and, therefore, 24 more vacancies were required to be filled up from amongst the qualified candidates available as a result of LDCE, 2012, which was meant for promotions to be effected in the year 2012-13. It was submitted that the respondents are deliberately trying to confuse the issue regarding the vacancy position.
23. In response to the contention of the respondents that more persons had to be promoted under Seniority-cum-Merit quota because the incumbents first promoted had refused to join, it was submitted that such a vacancy has to be carried forward for the next year, and cannot be filled in the same year by issuing further promotion orders, which exceeds the number of vacancies meant for quota, as when once the quota is defined, no promotion should be made exceeding the quota and the respondents are unjustly trying to justify the mismatch.
24. It was further submitted that the respondents are further trying to wrongly justify that since the promotion order was issued only on 05.06.2013, i.e., after 31.03.2013, the resultant vacancies would be treated as vacancies of the year 2013-14 rather than of the year 2012-13. It was also pointed out that this same information can be elicited even from the reply to the unstarred question given in the Rajya Sabha in this regard by the respondents. They had thereafter annexed a copy of the OM dated 08.08.2013 in which the vacancy calculation for the years 2006-07 to 2010-11 had been given, along with break up for seniority quota and LDCE quota. It was, therefore, prayed that the OA may be allowed.
25. Heard. The counsel for both the sides argued their case along with lines of their averments in writing as already discussed above. The following four issues fall for our determination in this case, namely:-
i) What is the nature of promotions made through LDCE and their inter play with the promotions on the basis of Seniority-cum-Merit?
ii) What is the effect of merger of cadres of Head Clerks with Office Superintendents Grade-II upon the provisions for conduct of LDCE?
iii) Whether the vacancies of 2012-13, for which LDCE had been held in the year 2012-13, but the issuance of orders of promotion pursuant to the LDCE got delayed beyond 31.03.2013, would amount to consuming the vacancies of 2012-13 or of 2013-14?
iv) What is the effect of the issuance of the fresh Recruitment Rules for the post of Office Superintendents on 21.07.2014, in which there is now no provision for conduct of LDCE whatsoever, as per the extracts already reproduced above?
26. Regarding the first issue, it is obvious that LDCE is only an alternative method of granting promotions, for grant of examination based accelerated promotions, so that younger blood among the eligible people can also be covered, along with those who are even otherwise making the cut for the purpose of promotions on the basis of their Seniority-cum-Merit. Those who passed through LDCE get their promotions early, which they would have even otherwise got a few years later through Seniority-cum-Merit, 1,2,3 or 4 years in advance of their respective cut-off dates for Seniority-cum-Merit promotions. The Honble Apex Court had very succinctly dealt with the law relating to this aspect in the case of Central Provident Fund Commissioner vs. N. Ravindran (1995) Supp4 SCC 654= 1995(8) SLR 826=(1996) SCC (L&S) 220, in which a three Judges Bench of the Honble Apex Court had laid to rest the confusion regarding the nature of LDCE promotions in the following words, which we may take the liberty to reproduce in full:-
1. These appeals arise out of the order of the central Administrative Tribunal, Ernakulam bench dated 11/2/1992 whereby the tribunal gave certain directions in regard to the Fixation of seniority of those promoted to the next higher post by virtue of seniority-cum-fitness and those promoted out of turn by virtue of their having passed a prescribed examination. A quota of 75 : 25 was prescribed; 75% for the former and 25% for the latter. The tribunal came to the conclusion that both those categories must be treated as belonging to one single class of promotees and, therefore, they must be promoted to the next higher post by first satisfying the 75% quota of those entitled to promotion by virtue of the seniority-cum-fitness rule and the 25% quota of those who become entitled to promotion by virtue of having passed the prescrilbed examination must take their position below the said 75%. Mr Mahajan, the learned counsel for the appellants, however, drew our attention to the observations of this court in Regional Provident Fund Commissioner v. Ashok Mehta arising out of the judgment of the central Administrative tribunal, New Delhi, wherein this court while dismissing the special leave petition to the following effect stated:
"We see no reason to entertain this special leave petition. One ground in support of this petition was that there is a contrary decision by one of the Benches of the Administrative tribunal. That difficulty will not continue by refusing to grant leave. We are of the view that the appropriate rule for determining the seniority of the officers is the total length of service in the promotional posts which would depend upon the actual date when they were promoted."
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Mr Mahajan submitted that in the instant case the tribunal has departed from this rule which was approved by this court and has, therefore, fallen into an error. We do not think so. What the tribunal has said is virtually the same thing in different words. It is stated that both the category of employees shall belong to the single class of promotees and will be promoted to the next higher post in the order of their inter se seniority in the lower cadre. That would naturally take care of the length of service of those incumbents. The tribunal has also pointed out that the recruitment rules or the promotion policy do not provide that the examinees will be given seniority over normal promotees. Ordinarily, the examinees would rank below those who would be entitled to promotion on seniority-cum-fitness principle because of their placement in the seniority list in the lower cadre. In order to get accelerated promotion they may appear at the prescribed examination and pass it. The basic idea of providing this incentive is to strengthen the upper cadre by induction of young meritorious persons. Mr Mahajan, however, submitted that there could be a case wherein an incumbent has passed the examination but by the time the promotion opens for him he becomes eligible for promotion on the basis of seniority-cum-fitness test but the Tribunal's order would slide him down below the 75%. We do not think that the apprehension of Mr Mahajan is well-founded. If he becomes entitled to promotion by virtue of mere seniority-cum-fitness test, he will become entitled to be promoted in normal course in the 75% of quota and merely because he has the additional qualification of having passed the examination, he will not be slided down in seniority. We are, therefore, not impressed by the apprehension of Mr Mahajan assuming such freak cases do present themselves. On the whole, therefore, we think that the view taken by the tribunal is just and fair and does not call for interference at our hands. The appeals are dismissed with no order as to costs. (Emphasis supplied).
27. Therefore, the distribution of vacancies among the quota for LDCE based promotions, as well as the Seniority-cum-Merit based promotions, though normally it has to be respected, cannot be considered to be as a water-tight distinct compartments, as in the case of Direct Recruitments vs. Promotees, and in the case law relating to Direct Recruits vs. Promotees. None of the judgments relating to the principles related to Direct Recruits vs. Promotees can ever be applied to the cases of LDCE promotions vis-`-vis Seniority-cum-Merit promotions. This answers the first issue as framed above at para 25(i), in the words of the Honble Apex Court itself.
28. The second issue as framed at Para 25 (ii) above to be considered is as to what is the effect of merger of cadres of the promotional higher Cadre of Office Superintendents Grade-II with that of the feeder lower Cadre of Head Clerks, and as to how such a merger would affect the conduct of the LDCE, which was prescribed for promotions from UDCs to Head Clerks. It is clear that the merger of the Cadres of Office Superintendent Grade-II and Head Clerk had taken place on 10.01.2012. Before such merger, the Recruitment Rules for Head Clerks had provided for promotions from UDCs to Head Clerks on the basis of 50% through Seniority-cum-Merit, and 50% through LDCE. No such quota was prescribed in respect of promotions from Head Clerks Cadre to the Cadre of Office Superintendents. And, in that promotional post, prior to the merger of the two Cadres, there was no provision for any LDCE, and 100% of those promotional posts were to be filled up by way of promotions of Head Clerks.
29. Such being the situation, the prescription in the OM dated 10.01.2012 (Annexure A-6) was not a very happy situation, as by this prescription, the quota of 50:50 prescribed for promotions of UDCs to the posts of Head Clerks through Seniority-cum-Merit vis-`-vis LDCE, was also made ipso-facto applicable automatically for the promotions of UDCs to the posts of Office Superintendents Grade-II, which were till then the promotional higher posts, into which the lower cadre of Head Clerks had got merged.
30. In fact, the approval granted for Cadre Review by the Department of Expenditure, E-III Desk, Ministry of Finance on 04.08.2012 (Annexure A-4) had prescribed the nomenclature of Office Superintendents for the merged Cadres of Head Clerks and Officer Superintendents Grade-II. Also, the corollary order dated 08.08.2012, issued by the CPWD regarding that Cadre Review, also did not prescribe for any such Recruitment Rules, as applicable to the erstwhile lower Cadre posts of Head Clerks, to be made applicable for filling up the posts of Office Superintendents in the merged cadres.
31. It is also seen that when finally the respondents have now issued the new Recruitment Rules dated 21.07.2014 for the merged Cadre posts of Office Superintendents, there is no provision whatsoever for conduct of LDCE, and all the posts of Office Superintendents in the merged cadre have to be filled only by way of promotion of UDCs through Seniority-cum-Merit.
32. Therefore, in the window of the time period between 10.01.2012 and 21.07.2014 also, when there were no Recruitment Rules for the merged Cadre posts of Office Superintendents (Group B), there could not have been any LDCE based promotions of UDCs, and the respondents were at fault in conducting the two LDCEs, which were permitted prior to the merger of the Cadres only for being conducted for the lower Cadre posts of Head Clerks in the pay scale of Rs.5000-8000, which did not exist any longer, and had since got merged into the higher posts of the Cadre of Office Superintendents Grade-II, in the pay scale of Rs.5500-9000. Thus, imposition of the method of LDCE for promotions of UDCs to the newly merged posts, which was neither in existence before 10.01.2012, nor has been found to be appropriate while issuing the fresh Recruitment Rules dated 21.07.2014, was incorrect.
33. It is, therefore, held that both the LDCEs conducted by the respondents in 2012 and in 2014 were without jurisdiction, as they could not have filled up the posts of Office Superintendents Grade-II, into which the lower cadre of Head Clerks had got merged, by applying a Rule, which was applicable in the past only to that lower Head Clerks Cadre, which was no longer in existence. With the abolition of the Cadre of Head Clerks, the Recruitment Rules prescribed for that Cadre also stood abolished, and could not have been resorted to or made applicable in any manner for promotions to a higher Cadre of posts, for which there was no provision for such an LDCE earlier, or in the interregnum period, or now. Therefore, in response to the prayer at Para-8 (iii), it is held that the above cited Para-3 of the OM dated 10.01.2012 was illegal, and neither the LDCE 2012 could have been conducted, nor the LDCE 2014 could have been conducted by the respondents.
34. Since the lower cadre of Head Clerks had got merged with the higher Cadre of Office Superintendents Grade-II through orders dated 10.01.2012, the Ministry of Finance concurrence dated 04.08.2012, and the consequential Cadre Review order dated 08.08.2012, the respondents could have filled up the Office Superintendents Grade-II merged Cadre posts in the interregnum period only by applying the relevant old Recruitment Rules for those posts, which prescribed those posts to be filled up 100% through promotions, 80% by promotions from the Cadre of Head Clerks, and 20% from the Cadre of Stenographers Grade-I with 5 years regular service in the grade and 2 years probation. There being no cadre of Head Clerks in between, the vacant posts in the merged Cadre of Office Superintendents Group B could, therefore, have been filled up in the period of interregnum only by way of conducting Departmental Promotion Committee meetings, and picking up from among the senior most of the UDCs, equivalent to what has now been prescribed in Columns 10& 11 of the new Recruitment Rules dated 21.07.2014 already reproduced above. Therefore, it is obvious that the conduct of both the LDCE 2012 and the LDCE 2014 was against the spirit of the law. The result of LDCE 2012 is not under challenge per se before us. But, as had been clarified by the Honble Apex Court in its judgment and order dated 16.02.2006 in Civil Appeal No. 8568 of 2002 Union of India vs. I.P. Awasthi & Ors, the powers to make judgments & orders to be only prospectively applicable, called as the Doctrine of Prospective Application, as laid down by the Honble Apex Court in Union of India & Ors. vs. Mohd. Ramzan Khan, 1991 (1) SCC 588, and in Managing Director, ECIL, Hyderabad vs.B. Karunakar, 1993 (4) SCC 727, are available only with the Honble Apex Court, and not even with the High Courts, and certainly not with this Tribunal. Therefore, this Tribunal does not have power to determine the law, and then also hold that its judgment or ratio will only have prospective application, and not a retrospective application, as no such power of Doctrine of Prospective Application is available to this Tribunal. The judgments of this Tribunal, laying down the law, or determining a ratio, are applicable from the date the cause of action arose, in respect of which the ratio has been determined.
35. There has been a lot of confusion in the CPWD in regard to the computation of vacancies, both in this case, and in earlier cases also. This confusion arises because of the basic problem that while the DOP&T instructions prescribe for the vacancy positions to be calculated in any Cadre calendar year-wise, the CPWD had been calculating the vacancy positions sometimes on the calendar year basis, and sometimes on financial year basis, in violation of DoP&Ts instructions. Firstly, the LDCE 2012 held by the respondent itself was illegal, as has been held by us above, and could not have been held after the merger of the lower cadre of Head Clerks into the higher cadre of Office Superintendents Grade-II, but even if, for arguments sake, it could have been held, mere delay in issuance of the orders thereafter beyond the end of the financial year, after declaration of the result of the same, could not have consumed those vacancies which had not yet been even notified.
36. Therefore, if at all the LDCE 2012 could have been held for the financial year 2012-13 vacancies, the result of that could have consumed vacancies only for the financial year 2012-13, and not of the subsequent financial year, in which the final promotion orders somehow came to be issued, due to delay on the part of the respondents, as has been wrongly contended by the respondents before us. Rules of any process of examination cannot be changed after the process of examination has been set in motion, and the LDCE ostensibly held for filling up the vacancies of financial year 2012-13, cannot be used to give up the declared task of filling up the vacant posts of financial year 2012-13, in which the examination had been notified, but rather it being treated as the basis for filling up the vacant posts of 2013-14, for which the LDCE examination had not been notified or conducted at all. Actually, the respondent themselves have later notified another LDCE, for filling up the vacant post of financial year 2013-14, for which the examination was supposed to be held first in December 2013, and somehow got to be postponed, and was held in April 2014, which examination also had been conducted erroneously, as per the applicable law. But, whenever the examination is conducted, and the result of the same is declared, and whenever the appointments thereafter are going to be issued, they will always relate back only to the vacancy Notification pursuant to which the LDCE examination was held, and the stand of the official respondents in this regard is incorrect. However, since we have held above that in this case both LDCE 2012 and 2014 had been held illegally and wrongly, we refrain from determining as to how many vacancies should have been filled up on the basis of the two LDCE examinations, which is, as it is, an administrative task, and cannot be performed by this Tribunal in the present process of judicial review.
37. The next issue is to be considered by us is as to what is the impact of the fresh Recruitment Rules for the merged posts of Office Superintendent Group B notified by the respondents on 21.07.2014. Even though these notified Rules have not been applicable with retrospective effect, but since these have continued the legacy of the posts of Office Superintendents Grade-II being filled up only by way of promotions, and now the window has been opened for promotions of UDCs in the Pay Band of Rs.5200-20200 with Grade Pay of Rs.2400, having 10 years regular service in the grade, and having successfully completed training course on establishment, or administration, e-governance modules, computerization of records, and in matters relating to Right to Information court cases, budget and parliamentary procedure, these newly notified Rules can also be safely applied by the respondents to fill up the posts which had been available for being filled up after the merger of the two cadres was ordered through OM dated 10.01.2012, by holding calendar year-wise DPCs for such promotions, in respect of all the incumbent UDCs, including those who had appeared at the LDCE 2012 and LDCE 2014, as well as to those who had not so appeared in the LDCE 2012 and LDCE 2014, but fulfil the requirements for recruitment to the higher post by promotion through seniority-cum-merit, as given in Column-11 of the Recruitment Rules Gazette Notification dated 21.07.2014.
38. Needless to add that the official respondents would do well to first clarify the confusion prevalent in their department regarding computation of vacancies on calendar year basis vis-`-vis financial year basis, before such an exercise of holding Calendar Year wise DPCs is conducted, which would remove the dichotomy between the DOP&T instructions, and the instructions issued by the Director General, CPWD.
39. We are conscious that the LDCE 2012 had been conducted after the merger of cadres had taken place, though on a wrong premise, and the result of the LDCE had already been given effect to, and that the selected persons therein had been promoted long back, and they are also not party-respondents before us, and no relief has been claimed by the applicants also in respect of the LDCE 2012, and that it is trite law that settled position of seniority should not be unsettled without sufficient reason, and in this case the seniority position of the LDCE promotees of 2012 LDCE has already been settled now for more than two years, but our hands are tied, and our jurisdiction to protect their wrong promotions is curtailed by the law as laid down by the Honble Apex Court in Union of India vs. I.P. Awasthi & Ors. (supra), and after having determined the law, we cannot make our determination only prospective in its application.
40. Therefore, the respondents would be at liberty to draw the list of vacancies available during the calendar year 2013, as on 01.01.2013, in respect of calendar year 2014, as on 01.01.2014, and the list of vacancies available in respect of the calendar year 2015, as on 01.01.2015, and undertake the process of holding DPCs for giving promotions to UDCs to the merged Cadre of Office Superintendents Grade-II by way of Seniority-cum-Merit.
41. With these directions, the OA is disposed of. But there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar)
Member (J) Member (A)
cc.