Central Administrative Tribunal - Madras
R Bibina Mary vs Council Of Scientific & Industrial ... on 29 February, 2024
OA No.310/00364/2020°-~ "CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH 0A/310/00364/2020 Dated this -24 tou" February, Two Thousand Twenty Four: ~~ ~--~ ~~ CORAM : HON'BLE MR. VARUN SINDHU KUL KAUMUDILMEMBER(A) AND HON'BLE MR M. SWAMINATHAN, MEMBER() R. Bibiana Mary, W/o J. Rajarathinam, No.40, Type I, MLS. Block, CLRI Staff Quarters, Adyar, Chennai. .. Applicant By Advocate M/s Rohini Ravikumar Vs. 1. Joint Secretary(Admin), Council of Scientific and Industrial Research, Anusandhan Bhawan, 2, Rafi Marg, New Delhi. 2.CSIR-Central Leather Research Institute, rep by Administrative Officer, Adyar, Chennai. .. Respondents By Advocate Mr. M. Kishore Kumar, SPC Mad 2 OANo.310/00364/2020, ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) To quash the impugned order issued by the 2™ respondent bearing Office Memorandum No. 8(97)/2018-E.I dated 24.04.2020,
b) Consequently direct the 24 respondent to promote the applicant from the post of Junior Secretariat Assistants (Stores & Purchase) to the post of Senior Secretariat Assistants (Stores & Purchase) (Pay Level 4) with effect from 01.01.2020 along with other pay benefits,
c) Consequently pass such further or other orders as deemed fit in the facts and circumstances of the case,"
2. The facts of the case, as stated by the applicant, are as follows:
The applicant joined the 2™4 respondent on 15.06.1995, in the post of Peon. He was promoted to the post of Junior Secretariat Assistant (S&P) Gr, on 11.08.2016, with the Pay Scale of Rs.9850 + Rs,2000 Grade Pay. She became eligible for promotion to the post of Senior Secretariat Assistant (S&) on completion of 3 years of service, on 31.07.2019, The Applicant was due to be appointed from 01.01.2020, but to her disappointment, the 2™4 respondent did not take any steps to promote her.
Aggrieved, she made detailed representation, dated 06.03.2020, inviting 3 OA No.310/00364/2020 the' attention of the 2™ respondent to the issue of promotion. On 24.04.2020, the applicant was shocked to receive the OM bearing No.8 (97)/2018-EI, dated 24.04.2020, rejecting the representation of the applicant, citing the implementation of the new Administrative.Services.... ...
(Recruitment & Promotion) Rules, 2020 (ASRP Rules), approved by the 1* respondent Governing Body, The 2" respondent, who ought to have followed procedures to be observed by the DPC, failed to do so and did not follow the model calendar. As on 01.01.2020, when the applicant was due for appointment, the new ASRP Rules had not been enacted by the 1* respondent. In fact, the 1* respondent on 28.04.2020 only approved the new ASRP Rules, with effect from 01.01.2020, in the place of old ASRP Rules, 1982, and notified the Department on 22.06.2020. The 2™ respondent is committed an error in not considering the promotion of the applicant, based on the Rules which came subsequently. Even the new ASRP Rules did not make any Significant change for promotion to the post of Senior Secretariat Assistant (S&P) pay level 4. Hence, the applicant has filed the present Original Application to set aside the impugned order of the 2™ respondent.
3. The learned counsel for the applicant contended that the impugned order, dated 24.04.2020, passed by the 2" respondent was only based on a communication, dated 21.,02.2020, of the 1* respondent, notifying the fact 4 OA No.310/00364/2020 that the i* respondent has accorded in principle' approval tothe introduction of the new set of Recruitment Rules, from 01.01.2020. According to the learned counsel, for any practical purpose, the above communication cannot be considered as implementation of the ARRP Rules, 2020, which, in fact, came to be notified only on 22.06.2020. The learned counsel further contended that the 2! respondent has erred in rejecting the promotion of the applicant based on the ASRP Rules, 2020, Which were notified as on the date of the impugnéd order." Even the new ASRP Rules did not make any significant change for promotion to the post of Senior Secretariat Assistant (S&P) Pay level 4,
4. The learned counsel for the applicant further contended that the 2! respondent failed to commence the process of promotion following the procedures laid down, If at all the procedures was followed by the 2™ respondent, the applicant would have been promoted on 01.01.2020. The action of the 2™ respondent clearly deprived the applicant of the fundamental right, i.e., Right for promotion of the applicant. The Hon'ble Apex Court has said that 'an eligible candidate has a fundamental right to be considered for promotion as against the available vacancy'.
>. He further submitted that the conduct of the 2%! respondent in not promoting the applicant will have serious consequences, making her 3 OA No.3 10/00364/2020 ineligible for future promotions. The applicant is 51 years old and will be _ retiring in a few years. If this promotion is not accorded from 01.01.2020, the same will have severe impact on the remaining service and opportunity for promotion available to the applicant. Therefore, the learned counsel prayed that the relief sought by the applicant may be granted by the Tribunal.
6. Per contra, the learned counsel for the respondents vehemently opposed the submissions of the applicant. He further submits that, as per the ASRP Rules, 1982, as amended from time to time, promotion to the grade of Senior Secretariat Assistant (Gen/F&A/S&)) shali be made as follows:
"100% by promotion on local basis from amongst the Assistants Grade If, now re-designated as Junior Secretariat Assistants (Gen/F&A/S&P), who have completed not less than 3 years approved service as Junior Secretariat Assistants or Assistants Grade -III, on the basis of seniority, subject to rejection of unfit and on the recommendations of the Departmental Promotion Committee. Crucial date for determining eligible is 1* of January every year as per the Rules."
Learned counsel for the respondents submitted that' the applicant has completed her residency period to be considered in her case and is due for promotion only on 31.12.2019. He further submitted that, before taking up cases due for promotion, for the vacancy year 2020, the CSIR, vide 6 OA No.310/00364/2020 Letter No.5-1(211)/2014-PD, dated 21.02.2020, has notified that the 193"
Governing Body of CSIR has accorded in principle approval for' introduction of the new set of Recruitment Rules applicable to all the four cadres (i) General Cadre (Administration) (ii) Finance & Accounts (F&A) (ili) Stores & Purchases (S&P) and (iv) Stenographic Cadre, from 01.01.2020, and, further, it is stated that all recruitment and promotion to the post covered under all the four cadres from the vacancy year 2020 onwards will be governed by the new ASRP Rules, 2020, which shall be notified, subsequently. In view of this, the applicant's case including other cases due for promotion, could not be taken up for want of Revised Recruitment Rules to be issued by the competent authority, i.e., the CSIR.
7. 'He further submitted that the contention of the applicant that she has not been promoted under the ASRP Rules, 1982, with effect from 01.01.2020, is not tenable, as those Rules ceased to operate with effect from 31.12.2019, whereas the applicant became eligible to be considered for promotion for the vacancy year 2020 only under SRP Rules, 2020, which was notified by the CSIR on 21.02.2020. The learned counsel also contended that it is well known fact that mere completion of approved residency period will not guarantee promotion in administrative cadres, it is to be ensured that post to be promoted should be vacant, incumbent should be fulfilling the education and/or experience criterion and the roster 7 OA No.310/00364/2020 point of the vacancy should match with the category of the incumbent in the feeder cadre. Without allocation of the revised sanctioned strength of -. the cadre, promotion in the cadre could not be taken up. Hence, the allegations of the applicant are not sustainable.
8. He further submitted that the DPC for the vacancy year 2020, in respect of Administrative cadres, could only be scheduled upon notification of the ADRP Rules 2020, allocation of the sanctioned strength by the CSIR to the CLRI, and calculation of the actual vacancies; 'after adjusting the roster, as per the revised sanction of post for each cadre and grade. Thus, the applicant's contentions is not tenable. The learned counsel for the respondents also pointed out that the Hon'ble Apex Court in a catena of judgements, has stated that the right to promotion cannot be treated as a fundamental right and prayed for dismissal of the OA.
9. The learned counsel for the respondents referred to the judgment dated 08.03.2022, of the Hon'ble Apex Court, in Civil Appeal Nos. 517- 518 OF 2017 in the case of UNION OF INDIA & ANR. Vs
- MANPREET SINGH POONAM ETC., (2022 Live Law (SC) 254), in support of his contention that mere existence of vacancy, per se, will not create a right in favour of an employee for retrospective promotion. The relevant portions of the said judgment are extracted below:
8 OA No.310/00364/202018. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case a benefit is granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect ftom the date on which actual vacancies arose is based on objective considerations and a valid classification.
19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that:
"3....We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant-for any reason whatsoever, 2 promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal."9 OA No.310/00364/2020
20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that: 45. A consistent line of precedent of this Court follows the principle that retrospective 'seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the | date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class Il Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v, Dinesh Kumar Sharma, (2007) 1 SCC 683. In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) "45. ... (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made, It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may ahi 10 OA No.310/00364/2020 adversely affect the employees who have been appointed validly in the meantime."
This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693."
21. For the aforesaid reasoning, we are unable to give our imprimatur to the reasoning of the High Court.
Accordingly, the appeals stand allowed and consequently, the order passed by the High Court stand set aside. No costs,"
10, Heard the learned counsel for the applicant, M/s. Rohini Ravi Kumar, and the learned counsel for the respondents, Mr. Kishore Kumar SPC, at length and perused the pleadings and the materials placed on record,
11. It is clear from the records that the Governing Body of the CSIR has accorded in principle approval for introduction of the new Recruitment Rules applicable to all the four cadres, viz., General Cadre (Administration), Finance & Accounts, Stores & Purchase and Stenographic cadre, before taking up cases due for promotion for the vacancy year 2020. It is further stated that all recruitment and promotion to the posts covered under all the said four cadres ftom the vacancy year 2020 onwards will be governed by the new ASRP Rules, 2020, which shall be notified, subsequently. In view of this, the applicant's case, besides other cases due for promotion, could not be taken up for want of the Il OA'No.310/00364/2020 Revised Recruitment Rules to be issued by the competent authority, that is, the CSIR, which was subsequently notified on 22.06.2020.. It has been pointed out by the respondents that promotions in the Administrative cadre are vacancy based and without allocation of the revised sanctioned. strength of the cadre, as per the revised Recruitment Rules, promotion of the applicant to the cadre of Secretariat Assistant ( S&P), could not be taken up. After the notification of the new ASRP Rules, on 22.06.2020, the case of the applicant was duly considered by the DPC and, 'on its recommendations, she was promoted with effect from 23.07.2021. She has also joined the post on 23.07.2021. It is also not the case of the applicant that the applicant has been discriminated against in the matter of promotion, that is to say, no one was promoted to 'the post of Senior Secretariat Assistant, leaving the applicant alone.
12. Itis also well settled that there is no fundamental right to promotion, but an employee has only a right to be considered for promotion, when the situation arises, in accordance with the relevant rules. Likewise, no employee has a right to get promoted as soon as the vacancy arises, but only a right to be considered. In other words, promotion is a privilege to every employee, but not a right. Further, as per the Hon'ble Apex Court judgment cited supra, mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion. The i2 OA No.310/00364/2020 respondents have rightly considered her case for promotion as per the new Recruitment Rules (ASRP Rules, 2020) and promoted her with effect from 23.07.2021. We find that the respondents have acted in accordance with the rules and there is no infirmity in the impugned order passed by them.
13. In the above circumstance, we are of the considered opinion that the applicant has not made out a case for the relief sought by her. The OA miserably fails and it is, accordingly, dismissed. No order as to costs.