Central Administrative Tribunal - Delhi
Shiv Chand Shah vs Union Of India Through The on 19 March, 2012
Central Administrative Tribunal Principal Bench, New Delhi OA No.843/2011 Judgment reserved on: 16.03.2012. Judgment pronounced on:19.03.2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Shiv Chand Shah, Working as Safaiwala, Govt. of India Press, Ring Road Mayapuri, New Delhi. -Applicant (By Advocate Shri H.K. Gangwani) Versus 1. Union of India through the Secretary, M/o Urban Development, Nirman Bhawan, New Delhi. 2. The Manager, Govt. of India Press, Ring Road Mayapuri, New Delhi. 3. Shri Brahm Pal, Daftry/Asstt. Binder, Govt. of India Press, Ring Road Mayapuri, New Delhi. ..Respondents (By Advocate Mr. Subhash Gosain (R-1&2, none for R-3) O R D E R Honble Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier, the applicant had filed OA-65/2010 before this Tribunal against his reversion from the post of Assistant Binder vide order dated 01.09.2009. This Tribunal disposed of the same, vide order dated 19.04.2010, with a direction to the respondents to treat the OA as representation of applicant and pass appropriate order within a period of two months from the date of receipt of a certified copy of that order, when it was brought to the notice of this Tribunal that the impugned order had been passed without issuing a show cause notice. This Tribunal further observed that in case it is found that a review DPC needs to be convened, the same be also done within the aforesaid period. Pursuant to the order passed by this Tribunal respondents have passed a speaking order dated 11.08.2010 (Annexure A-1), thereby rejecting the claim of the applicant. At this stage, it will be useful to quote paras 3-7 of the impugned order, which thus read:
3. AND WHEREAS in compliance of the aforesaid order of the Honble CAT Principal Bench, New Delhi the respondent has referred to the original records available in the office which reveal the following facts:-
I) Government of India Presses (Group-C and GroupD Industrial posts), Recruitment Rules, 2003 provide for the following method of recruitment to the post of Assistant Binder:-
100% absorption from the Presses failing which 50% by promotion 5% by absorption from Group D Non-Industrial .
iv) 45% by direct recruitment failing which by promotion.
For appointment under the provision at (iii) above the eligibility requirement is eight years regular service in the respective grades subject to qualifying the trade test.
II) On assessing the vacancy position in various grades including the post of Assistant Binder a DPC meeting was held on 26.6.2009. The committee after perusing the service records including performance report and the trade test result of the persons in the eligibility list, recommended empanelment of Shri Shiv Charan Shah, Safaiwala.
(III) Govt. of India Press, Maya Puri, New Delhi vide memorandum No.A-12011/27/RRP/07-08-Estt.I/48 dated 21.7.2009 appointed Shri Shiv Chand Shah to the post of Assistant Binder against 5% absorption quota and accordingly Shri Shiv Chand Shah joined duty of the post of Asstt. Binder w.e.f. 30.7.2009.
IV) After the issuance of the said order dated 21.7.2009 appointing Shri Shiv Chand Shah as Assistant Binder against 5% absorption quota from Group D Non-Industrial employees, certain Group D Non-Industrial employees senior to Shri Shah and who had qualified the trade test represented for appointment to the post of Assistant Binder. The matter was considered, on merit, with reference to Rule position and the representations.
V) On examination of records it was found that the Shri Braham Pal, Daftry was the senior most Group D Non-Industrial employee having joined service on 4.3.1971 and had qualified the prescribed trade test.
VI) The office record shows that date of joining of Shri Shiv Chand Shah as Safaiwala was 25.2.1991 and not 25.2.1989.
VII) List of Group D Non-Industrial employees who qualified prescribed trade test for appointment to the post of Assistant Binder in order of their seniority with reference to date of appointment as under:-
Sl.
No. Name Designation Date of Appointment
1. Sh. Braham Pal Daftry 4.3.1971
2. Sh. Budh Singh Daftry 12.4.1971
3. Sh. Dalip Head Jamadar 3.5.1971
4. Sh. Ramji Lal-I Daftry 3.6.1971
5. Sh. Jai Narain Orderly 1.10.1971
6. Sh. H.K. Shah Daftry 1.3.1972
7. Sh. Ramji Lal-II Daftry 1.3.1972
8. Sh.Om Prakash Bhatt Daftry 24.3.1972
9. Sh. D.N. Prasad Chowkidar 20.11.1978
10. Sh. Krishan Bahadur Chowkidar 24.11.1978
11. Sh. Sukhbir Singh Daftry 4.12.1981
12. Sh. Manvir Singh Chowkidar 13.8.1982
13. Sh. Karan Singh Bansal Peon 14.9.1984
14. Sh. Ratan Singh Chowkidar 3.12.1984
15. Smt. Popri Kaur Peon 14.9.1987
16. Sh. Shiv Chand Shah Safaiwala 25.2.1971
4. AND WHEREAS guidelines and instructions issued by the Department of Personnel and Training vide OM No.22013/1/97-Estt (D) dated 13th April, 1998 enumerate certain situations which necessitate convening of review DPCs and these situations are reproduced below:-
Where eligible persons were omitted to be considered; or Where eligible persons were considered by mistake; or Where the seniority of a person was revised with retrospective effect resulting in a variance of seniority list placed before the DPC; or Where some procedural irregularity was committed by a DPC; or Where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer.
5. AND WHEREAS, a Review DPC was necessitated to rectify the mistake and a meeting of the Review DPC was held on 27.8.2009. The Review DPC took all material facts into consideration and recommended Shri Braham Pal, Daftry the senior most Group D Non-Industrial employee for appointment to the post of Assistant Binder against 5% absorption quota from Group D Non-Industrial employees/ Accordingly Shri Braham Pal was appointed as Assistant Binder vide Government of India Press, Ring Road, Mayapuri Office Memorandum No.A-12011/27/RRP/07-08/Estt-I/632 dated 1.9.2009 and consequently Sh. Shiv Chand Shah, had to be reverted to the post of Safaiwala w.ef. 2.9.2009 (FN).
6. Thus the appointment of Shri Shah as Assistant Binder was erroneous, since he was not the senior-most Group D employee. In view of this, review DPC was held and the correct seniority list was considered. As a result, Shri Braham Pal, the senior most Group D employee who had passed the trade test was recommended for appointment. Since, appointment of petitioner was erroneous and this error was subsequently rectified by holding review DPC, the representation of Shri Shah is fit to be rejected.
7. Now, therefore, the representation of Shri Shiv Chand Shah by way of his OA No. 65/2010 for his appointment as Assistant Binder has been carefully and thoroughly examined and is not found tenable on account of facts narrated above. His request for quashing OM NO. A-12011/27/RRP/07-08/Estt-I/632 dated 1.9.2009 and for giving effect OM NO. A-12011/27/RRP/07-08/Estt-I/438 dated 21.7.2009 is hereby rejected.
2. It is the validity of this order, which is under challenge before this Tribunal. The challenge has been made on the ground that no show cause notice was issued to the applicant before reverting him and also that respondent No.3 was declared surplus and redeployed subsequently, as such his seniority has to be reckoned from July 2007.
3. We have heard learned counsel of the parties and gone through the material placed on record. We are of the view that the applicant is not entitled to any relief. Insofar as the contention of the applicant that the order of reversion was passed without issuing the show cause notice is concerned, we are of the view that the applicant has not made out any case on this ground for more than one reason. Firstly, the same ground was taken by the applicant in the earlier OA and this Tribunal had directed the respondents to reconsider the case of the applicant and if need arises, hold a review DPC on the basis of the contentions raised by the applicant in his OA. Now the respondents have passed the impugned order after hearing the applicant and taking into consideration the relevant rules and found that the applicant was erroneously promoted to the post of Assistant Binder, ignoring the claim of the private respondent, who was admittedly senior to him in Group D post. Thus, according to us, the grievance so raised by the applicant for non-compliance of principles of natural justice does not survive. That apart, from the material placed on record it is evident that respondent No.3 Shri Brahm Pal was appointed as Daftry on 04.03.1971, whereas applicant was appointed as Safaiwala on 25.02.1991, i.e., after 20 years of the appointment of respondent No.3 in Group D category. Admittedly, promotion to the post of Assistant Binder has to be made in accordance with the provisions contained in Govt. of India Presses (Group C and D Industrial Posts) Recruitment Rules, 2003, which inter alia stipulate that 5% of recruitment to the post of Assistant Binder shall be made by absorption from Group D non-Industrial category of workers with 8 years regular service in the respective grade, subject to qualifying the trade test. As already stated above, both the applicant as well as respondent No.3 belong to Group D category and admittedly respondent No.3 had entered into Group D category (Daftry) almost 20 years prior to the appointment of the applicant in Group D category in the cadre of Safaiwala. Even if the show cause notice would have been issued to the applicant that would not have improved his case, inasmuch as the same result would have been achieved and issuance of the show cause notice would have been a useless formality. Be that as it may, we have already observed in the earlier part of the judgment that the respondents have again passed the impugned order in the light of the judgment rendered by this Tribunal in earlier OA; as such there is compliance of principles of natural justice.
4. Now, let us advert to the main issue raised by the applicant in this OA, viz. that no doubt respondent No.3 was inducted in the cadre of Daftry on 04.03.1971 but while holding the post of Record Keeper he was declared surplus and was thus absorbed as Daftry in the year 2007. Thus, according to the learned counsel of applicant the seniority of the respondent No.3 for the purpose of promotion to the post of Assistant Binder should be computed from the year 2007 when he was declared surplus against the post of Record Keeper and not from 1971 when he was absorbed in the cadre of Daftry. Though the submission made by the learned counsel of applicant is attractive, but according to us the same deserves outright rejection. Admittedly, respondent No.3 was appointed as Daftry on 04.03.1971, whereas applicant was appointed as Safaiwala w.e.f. 25.02.1991. It is not disputed that the post of Daftry as well as Safaiwala belong to different cadres and different seniority lists are being maintained in respect of the aforesaid category. This is evident from the documents annexed by the applicant along with his OA, whereby the applicant has annexed copies of the seniority lists in the cadres of Head Jamadar, Safaiwala, Chowkidar, Farash, Daftry and Peon (pages 46-50 of the paper-book). It is also not in dispute that for the purpose of promotion to the post of Assistant Binder persons belonging to Group D category of different seniority units were eligible for consideration for promotion, subject to the condition that they have put in 8 years of regular service in the respective grade, subject to qualifying the trade test. Admittedly, respondent No.3 had passed the trade test and had also put in more than 8 years of regular service in the grade of Daftry, thus eligible for consideration for promotion to the post of Assistant Binder. It is also not disputed that his name was not considered by the DPC at the first instance, which led to erroneous promotion of applicant to the post of Assistant Binder, who was admittedly inducted into Group D cadre almost 20 years later than respondent No.3. When this mistake was brought to the notice of respondents review DPC was held, which led to reversion of the applicant. According to us, there is no infirmity in the action of the respondents and in fact they have rectified the illegal promotion granted to the applicant, which promotion was granted without considering respondent No.3, who, admittedly, was eligible for promotion. The contention raised by the applicant that seniority of respondent No.3 has to be reckoned from 2007, cannot be accepted, inasmuch as the applicant was substantive holder of the post of Daftry. As can be seen from Annexure RA-1 the services of respondent No.3 were utilized on the post of Record Keeper since October 2006 and subsequently he was declared surplus on that post. The natural consequence of abolition of post was that either respondent No.3 had to be redeployed on equivalent post or he had to be reverted to his substantive post in case he was holder of such substantive post. In the instant case on account of abolition of post of Record Keeper respondent No.3 being declared surplus the natural consequence was that he had to be repatriated or reverted back to his original cadre of Daftry, which post he was holding since 04.03.1971. Thus, it cannot be said that seniority of the respondent No.3 in the cadre of Daftry has to be fixed w.e.f. 2007. In any case, if some one has any grievance regarding assignment of the seniority in the cadre of Daftry it is those persons who belong to the said seniority unit. Admittedly, applicant belongs to the cadre of Safaiwala, which is a different seniority unit and he cannot have any grievance regarding assignment of seniority to respondent No.3 in the cadre of Daftry. According to us, respondents have wrongly treated respondent No.3 as having been re-deployed as Daftry after declaring him as surplus. In fact, on account of abolition of the post of Record Keeper respondent No.3 had been repatriated to his original post, which he was substantively holding w.e.f. 04.03.1971. Thus, according to us, seniority of respondent No.3 w.e.f. 04.03.1971 when he was appointed as Daftry, cannot be wiped out and he cannot be treated to be belonging to the cadre of Daftry sicne 2007 when he was repatriated to his original post of Daftry.
5. In the result, for the foregoing reasons, OA is found bereft of merit, which is accordingly dismissed, with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.