Central Administrative Tribunal - Delhi
Suresh Chand Sharma vs Union Of India on 5 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2636/2010 M.A. NO.2077/2010 with O.A. NO.2621/2010 M.A. NO.2161/2010 New Delhi, this the 5th day of January, 2011 Coram: HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE DR. VEENA CHHOTRAY, MEMBER (A) OA 2636/2010: 1. Suresh Chand Sharma, Aged about47 years, S/o Shri Laxmi Narayan Sharma, R/o House No.25, Rajender Nagar, Near Ekta Vihar, Ambala Cantt Haryana 2. Ram Mehar Singh, Aged about 48 years, S/o Shri Sultan Singh, R/o Quarter No1.10, KE Line, Ambala Cantt Haryana 3. Dharambir Singh, Aged about 48 years, S/o Shri Hukam Chand, R/o 950/31, Malik Colony, Gohana Road, Sonipat, Haryana 4. Sunil Kumar Goel, Aged about 48 years, S/o Shri Jagdish Chander Goel, R/o House No.4, Phase-I, Mansa Devi complex, Panchkula, Haryana .Applicants (By Advocate: Shri S.K. Gupta) Versus 1. Union of India, Through Secretary, Ministry of Defence, New Delhi 2. Engineer in chief, Army Headquarter, Kashmir House, Rajaji Marg, New Delhi 3. Director General (Pers) Military Engineer Service, Engineer in Chief Branch Integrated HQs of MOD(Army) Kashmir House New Delhi-11 MES No.263335 Shri Pratha Pratim Deb MES No.205296 Shri Pabitra Kumar Sen MES No.263336 Shri Bidyut Mani MES No.238885 Shri Tarun Kumar Maitra MES No.214818 Shri Bhaskar Chandra Narayan Chowdhary (Service of Private respondents be effected through respondent No.2 i.e Engineer in Chief, Army Headquarter, Kashmir House, Rajaji Marg, New Delhi.) ..Respondents (By Advocate: Shri Satish Kumar for official respondents Shri V.K. Garg with Ms Narmata Singh and Shri Arvind Vast for Pvt. Respondents) OA 2621/2010: Ram Niwas, S/o Shri Mehar Singh, R/o Flat No.417, Atulya Apartment, Sector 18 B, Dwarka, New Delh9 110078 Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India & Ors 1. The Secretary, Ministry of Defence, South Block, New Delhi The Engineer-in Chief MES, Army Headquarters, Kashmir House, Rajaji Marg, DHQ PO New Delhi-110011 3. The DG (Pers), MES, Army Headquarters, Kashmir House, Rajaji Marg, DHQ PO New Delhi-110011 4. Chief Engineer, Western Command, Chandi Mandir, Distt. Panchkula, Haryana Respondents (By Advocate: Shri Satish Kumar for official respondents Shri V.K. Garg with Ms Narmata Singh and Shri Arvind Vast for Pvt. Respondents) O R D E R
By Honble Dr. Veena Chhotray:
Both the OAs 2621/2010 and the OA 2636/2010 are being disposed by this common order as they agitate identical issues of disputed seniority and consequent challenge to initiation of further promotional process. The sole applicant in the OA 2621/2010 and the four applicants in the OA 2636/2010 are Junior Engineers (QS&C) in the M.E.S. under the Ministry of Defence and are working in the Western Command. They are aggrieved at non-fixation of seniority as per merit position in the select panel and through these OAs are challenging the Respondents Order dated 31.8.2009, circulating the All India Seniority List of JEs (QS&C) as on April 1, 2002.
In course of the hearing, vide the Tribunals interim order dated 23.11.2010 the All India Seniority List of JEs(QS&C) given a final shape vide the Respondents Order dated 16.9.2010 was taken on record and inducted by way of deemed amendment, as a cause of action arisen to the applicants, subsequent to the filing of these OAs.
The applicants are further aggrieved at the process of promotion to the posts of A.E. initiated by the Respondents vide the impugned order dated 12.7.2010. In response to the prayer for interim relief, directions were issued to the respondents to reserve five vacancies in the promotional cadre for the applicants. Further as an abundant caution it had also been directed that any promotion made shall remain subject to the outcome of these OAs.
Besides, vide the MAs [2183/2010 in OA 2636/2010 and MA 2181/2010 in OA 2621/2010] certain parties likely to be affected by the orders in the OAs were allowed to be impleaded in the interest of natural justice.
The lead case taken in this Order is OA 2621/2010 and the references contained are there from, unless otherwise specified.
2. Shorn of details, the bare facts are that the applicants in both these OAs had been included in the select panel prepared in 1983, for the vacancies arising in 1982, for the Western Command. They had, however, been appointed in the years 1987 1988. As per the applicants, this intervening gap was owing to a ban on appointments and consequently their delayed appointments were due to no fault of theirs. In the meanwhile, however, on the basis of select panels of subsequent years appointments had been made. As per the impugned seniority list appointees falling in the latter category have been assigned inter-se seniority higher than the applicants.
3. To highlight only the main contentions raised by the applicants, the impugned Seniority List has been challenged as violative of the basic principle of determining inter-se seniority in the case of direct recruitees. Reliance has bee placed on the DOP&T OM dated 3.7.1986, para 2.1 of which ran as under:
2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.
It is the case of the applicants that candidates selected much after them could not have been assigned higher seniority.
Besides it has been contended that the present action of the respondents is at variance with their own earlier directions vide the Order dated 1.5.2000 for fixing the seniority of applicants and similarly placed persons as per the aforesaid DOP&T OM (para 4.6 read with Annexure A/6). The same is also averred to be in violation of the directions of the Tribunal in the OA No.2673/2006 (with Shri Ram Niwas as one of the two applicants) by the Tribunals Order dated 27.8.2007 (para 4.14 read with Annexure A/13).
A plea of the respondents adopting a discriminatory approach has also been raised by adverting to the case of Shri Suresh Chand Sharma [the applicant no.1 in the OA 2636/2010] in whose case following the directions of the Tribunal in the OA No.662/2004, his seniority had accordingly been re-fixed.
4. Opposing the aforesaid contentions, the Respondents have maintained about the DOP&T OM dated 3.7.1986 not being applicable in the present cases, as the selections in question had been made by different authorities i.e. Chief Engineers of five different Commands, independent of each other. Further reliance has been placed on the decision of a Coordinate Bench of the Tribunal in the OA No.164/2007. In their counter affidavit the official respondents have submitted:
Similar dispute regarding panel seniority of Supdt B/R selected in 1983 were referred to this Honble Tribunal in OA No.164/2007. The Honble CAT (PB), New Delhi in their judgment dated 26.5.2008 had decided that principal of the date of selection cannot be applied when selection is carried out by different authorities independent of one another. When a combined seniority list is prepared, therefore they are necessarily to get their seniority reckoned from the original date of entry of services when he is compared with a person who belonged to yet another command. It would be illogical to suggest that individuals be pushed down below a person who were later appointed. As per the Respondents, while finalizing the impugned Seniority List, they have been guided in this matter by the final direction of the Tribunal in the aforesaid OA. The letter dated 16.9.2010 incorporates the following as a broad concept in finalization of the All India Sonority List:-
3. d. Few SA-II [Now JE (QS&C) were selected in 1983 and appointed in 1987/1988 by one Command Chief Engineer. In the meantime during 1983 to 1987 appointment to the post of SA-II were made by other Commands Chief Engineers independently. Selections to the post of SA-II were made by their appointing authorities i.e. Command Chief Engineers independently. Since seniority based on the principle of date of selection panel can be applied only for intra command and not for inter command as in present case, hence seniority of these JEs is fixed based on their date of joining. Rebutting the plea of discrimination, it has been submitted that the seniority of Shri S.C. Sharma had been amended based on his selection panel but after judgment of the Tribunal in the OA 164/2007 his seniority has been correctly amended from the date of joining.
5.1 After considering the respective submissions, we find that the issues raised in the present OAs are squarely covered by the decision of this Tribunal in the OA 164/2007 (Shri Ashok Kumar & Ors vs. UOI & Ors) decided on 26.5.2008. Hence it would be apt to elaborate it further. A copy of this order finds place as Annexure R-5/13 with the counter reply filed by the impleaded private respondents.
5.2 The claims agitated there involved issues identical to those in the present OAs, in the context of seniority of JEs under the MES belonging to the Civil Wing. The two applicants herein had been challenging the All India Seniority List of Junior Engineers (Civil) as on 1.4.2004 circulated on 21.12.2006. Further, prayers had been made for re-drawing the seniority list assigning higher seniority to the applicants on the basis of initial date of appointment/continuous officiation qua the private respondents 4 to 9 who had been given the benefit of panel seniority. The applicants were also making prayers for setting aside the promotion of the private respondents basing on their claims for redrawing of the seniority.
5.3 The Tribunal had gone to the very roots of the issue, tracing the relevant background and the trajectory of milestones in pursuance of the decisions of various Benches of the Tribunal. It is stated that the practice admittedly was of different Commands carrying out separate selections (Para 21). It had been conceded that till the year 2003, the Department had been maintaining seniority of officers on the basis of continuous officiation (para 17). The existing practice, however, had been upset in view of the orders passed by the Jodhpur Bench in OA 166/1998 as also the Chandigarh Bench in the OA 734/2002 where directions had been given to the Respondents to examine the contentions whether an officer was entitled to a date of reckoning on the date of joining or on the basis of merit in the panel. The Chandigarh Bench had also required to examine the issue with reference to the DOP&T OM dated 3.7.1986 (para 20). Accordingly, the 2004 Seniority List had been brought out because of specific observations of the Jodhpur and Chandigarh Benches of the Tribunal (para 8).
The 2004 Seniority List had been prepared as per panel merit. The selectees of the earlier selection had been considered as senior to the persons who came to be appointed by later selections (para 6). The same being challenged before the Ernakulam Bench in OA 680/2004; though not set aside as such, was treated as provisional. The Ld. Ernakulam Bench had taken note that in the existing list, the date of appointment had lost significance, besides the need to keep in mind various OMs issued by DOP&T from time to time. Further, directions had been issued to be respondents to consider various representations, taking note of various aspects and modify the same appropriately as required under the situations. Accordingly, got prepared the Seniority List of JEs (Civil) as on 1.4.2004 circulated on 21.12.2006, which was the subject of challenge in the OA 164/2007.
5.4 For the purposes of adjudication, the learned Coordinate Bench in the OA 164/2007 had framed the basic question as to whether the panel prepared now was within the true scope of the directions issued by the Ernakulam Bench and whether it had suffered from any substantial draw back in its sustainability as a valid and legal document. It had also been the concern of the learned Bench as to whether the loss of seniority suffered by the applicants because of the revised exercise was justifiable from the perspective of general principles and the guidelines that were required to be followed (Paras 9 and 10).
5.5 The respective contentions by both the parties in the OA 164/2007 are found to be echoed in the present OAs; only the roles are reversed. The applicants there were raising pleas similar to those articulated by the respondents before us. They had pleaded that the principle of date of selection panel list could have had no application in the case of multiple selection panels. Further, it had been argued that the applicants had been appointed after a due selection and had been discharging duties attached to the post for several years before the entry of some other persons under different Commands. The reliance on the DOP&T OMs by the respondents had also been questioned on the ground of the same being inconclusive, if not irrelevant.
On the other hand, the private respondents in the OA 164/2007 were arguing on the lines of the applicants in the instant OAs before us. The directions of the Chandigarh Bench with particular reference to the norms prescribed in the DOP&T OM dated 3.7.1986 had been justified as the basis for fixation of their seniority. They had adverted to the DOP&T OM dated 22.12.1959 regarding the principle of panel seniority in case of direct recruits further reiterated in the OM dated 3.7.1986. The directions of the Chandigarh bench and several other OMs of the DOP&T had also been relied upon to justify according of higher seniority in their favour.
5.6 After a thorough consideration of the rival contentions and the entire factual as well as litigation background, the learned Coordinate Bench had arrived at the following judicial findings. These being directly relevant to the issues under adjudication in the present OAs , as brought out in paras 20 and 21 of the Order, are being summed up as here under:
The DOP&T OM dated 3.7.1986, which had consolidated the existing instructions on the subject of seniority had broadly dealt with: (i) Seniority of direct recruits as well as promotees (ii) seniority of transferees (iii) seniority in special type of cases as adverted to. The present case had not fallen in any of the above categories.
OM dated 8.2.1982, which indicated about there being no restriction about validity of the period of list of selected candidates, deal with a position where the list prepared was to cater to the declared vacancies (Para 20).
The OM dated 22.12.1959 on the subject of panel seniority for DR and the OM dated 6.6.1978 dealing with assigning of seniority in cases of belated offers of appointment; though pressed into service, were not found to render any support to the case of respondents or persons similarly situated to be given a special treatment.
It had also been clearly opined that the normal principle of a selectee in a panel not surrendering his seniority vis-`-vis one who came to be selected by a later selection, cannot be held to be applicable over-looking the factual situation as in the present case.
The normal principle for adjudging seniority on the basis of date of entering service would only be applicable between persons within one Command, and not when selection is carried out by different authorities, totally independent of one another.
5.7 In the final directions, without unsettling the whole list, the operation part of the order ran as under:
.We direct that in the matter of adjudging seniority, the principle of initial date of appointment/continuous officiation should be borne in mind and the principle of panel seniority was inapplicable and not possible to be followed as far as claims of applicants and similarly situated are concerned vis-`-vis respondents 4 to 9. Consequently, we direct that appropriate modification to the seniority list appended to Annexure O is to be brought, and circulated. .. (Para 24, page 270 in OA 2621/2010)
6. Even at the cost of repetition, we reiterate that the issues raised in the present two OAs are identical to those already decided by the Coordinate Bench of this Tribunal in the OA 164/2007. Shri M.K. Bhardwaj, the learned counsel for the applicant in the OA 2621/2010, would adduce a two-fold counter argument. First, in the OA 164/2007 the aforesaid view had been taken for want of the official respondents not submitting all the relevant aspects before the Tribunal. The facts were distinguishable as the present OAs were where the initial selection panel had been prepared in the year 1983 against the declared vacancies which was not the case in the OA 164/2007. Secondly, the order of the Tribunal dated 24.5.2008 had been challenged before the Delhi High Court.
However, neither of these arguments is found to be strong enough to alter the applicability of Tribunals order in OA 164/2007. In Para 20 of the Order the issue of the OM dated 8.2.1982 and the preparation of a panel to cater to the declared vacancies, inter alia, had been dealt with, but not found to be of critical significance. The following observations would make it clear:-
In fact, we find from the order of the Ernakulam Bench that attention was required to be focused on the aspect whether a person who entered into service was to surrender the seniority, in favour of a person who had for the first time entered service years thereafter, but whose name appeared in a panel prepared, sometime back. Such a contingency had not been adverted to in any of the cited proceedings. Normally a person who is selected and included in a panel is not to surrender his seniority vis-`-vis person who came to be selected by a later selection. However, as argued by the applicants, the factual situation cannot at all be overlooked, as this cannot be a position to be followed when selections are made by independent authorities, and when there is no mutual consultation. [ Page 268 OA 2621/2010] As regards the second point, while making the above argument, the learned counsel would not make any averment; least of all producing a documentary proof in support, about there having been any reversal or modification of the Tribunals order dated 24.5.2008 or even a stay by a higher judicial fora. Under the circumstances, we see no reason not to be guided on the binding doctrine of precedent, by the view taken by the Coordinate Bench in similar issues.
7. As regards the OA 2636/2010, the learned counsel for the applicant, Shri S.K. Gupta would have an additional submission to make. This would be to the effect that in the case of the applicant No.1, S.C. Sharma, the respondents having re-fixed his seniority in pursuance to the directions of the Tribunal had changed the same without even issuing a show cause notice. It would also be submitted that the order of the Co-ordinate Bench dated 24.5.2008 being relied upon would not be applicable as the OA 164/2007 had not considered the relevant OA 734/HR/2002 decided by the Chandigarh Bench vide its decision dated 7.8.2002.
The learned counsel for the private respondents, Shri Garg would seek to rebut this contention by drawing out attention to Para 20 of the Order which does contain a specific mention of the direction of the Chandigarh Bench in OA 734/2002. Considering the number of the OA being the same as in S.C. Sharmas case and the tenor of the directions stated to have been issued for examining the issue with reference to the principles in DOP&T OM dated 3.7.1986; we would not like to brush aside this contention by the learned counsel for the respondents casually. If this is accepted, in such a case treating the mention of the year as 2004 instead of 2002 could be treated as mere inadvertent typographical error, and the objection sought to be raised bythe applicants learned counsel would fall through at the very outset. Even if a different view was taken; still this objection would not really make a material difference to the issue at hand for the reasons stated below.
A copy of the order of the learned Coordinate Chandigarh Bench in the OA 734/HR/2002 has been attached as Annexure A/16 to the OA. Its perusal reveals that Shri Suresh Chand was one of the total eight applicants in this OA before the Tribunal. Considering the prayers in the OA, the Tribunal had issued directions to the respondents to pass appropriate orders with regard to fixation of seniority of the direct appointees in the light of the Army HQ letter dated 1.5.2000. A copy of this letter, as at Annex. A/6, reveals issuance of directions for fixing the seniority of the direct recruitees as per DOP&T OM dated 3.7.1986.
Since this issue had been considered at length by the learned Coordinate Bench (PB) in the OA 164/2007; this strand of the argument of the learned counsel, Shri S.K. Gupta is not found to be tenable. As regards the issuance of Show Cause Notice before a change, a perusal of the order dated 16.5.2010 shows that the Seniority List has been finalized after considering the comments and representations received on merit. In the given context, particularly after consideration of the entire issue before this Tribunal, a re-issue of the SCN once again may be a sheer formality. Under the circumstances, this additional plea of the learned counsel in respect of applicants in OA 2636/2010 is also not found to be acceptable.
8. As indicated above, so as not to lose focus on the basic issues, we have confined ourselves only to the crux of the matter and refrained from being entangled in the host of side issues and contradictory contentions raised by both the sides. In view of the foregoing, we find the issues in these two OAs squarely covered by the decision of a Coordinate Bench of the Tribunal in OA 164/2007. Agreeing with the above decision, the claims raised are found to be devoid of merit and hence dismissed. The interim orders are vacated too. No order as to costs.
(Veena Chhotray) (V.K. Bali) Member (A) Chairman /pkr/