Central Administrative Tribunal - Delhi
Jatinder Kumar (Mes No. 315467) vs Union Of India Through The Secretary on 29 November, 2011
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.2589/2010
With
OA No.3020/2009 with
MAs 2079/09, 2554/09 &
668/2011
New Delhi this the 29th day of November, 2011
Honble Mr.George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
OA No.2589/2010
1. Jatinder Kumar (MES No. 315467),
S/o Sh. Satish Kumar,
O/o GE (I), NW, North,
Kataribagh, Kochi,
Kerala.
2. G.S. Tomar (MES No.315615),
S/o Sh. J.S. Tomar,
O/o GE(P) No.1, Naval Academy
Project, Ezhimala, Kerala. . Applicants
(By Advocate: Shri A.K.Behera)
Versus
1. Union of India through The Secretary,
Govt. of India, Ministry of Defence,
South Block, New Delhi-1.
2. The Engineer-in-Chief, (MES)
Army Head Quarters,
Kashmir House, New Delhi.
3. Shri V.G.Gole,
Deputy Director General (pers.),
Engineer-in-Chiefs Branch,
Army Head Quarters,
Kashmir House, New Delhi.
4. Shri S.K. Tripathi,
Director, (E-I DPC-I),
Engineer-in-Chiefs Branch,
Army Head Quarters,
Kashmir House, New Delhi.
5. Sh. V.G. Muralieedharan
S/o Sh. T.K. Govindhar Kutty Nair,
Junior Engineer (Civil)
O/o Chief Engineer (Naval Works), Kochi.
6. Sh. M.M. Joeseph
S/o Late Sh. M.P. Mathai,
Asstt. Garison Engineer (B/R), Mundamveli,
O/o Garrison Engineer (1) NW(S) Kochi.
7. Ashok Kumar,
S/o late Lakhiram,
Junior Engineer (Civil),
Office of the GE (North)
Meerut Cantt. . Respondents
(By Advocates: Shri R.N.Singh, official respondents &
Shri V.K.Garg & Shri Fazal Ahmed pvt.respondnets.)
OA No.3020/2009 with MAs 2079/09, 2554/09 & 668/2011
1. Sukhvinder Singh (MES No.314778)
S/o Shri Pritam Sing,
Aged about 45 years,
O/o Chief Engineer (Air Force)
Ahmedbad.
2. B.P.Sharma (MES No.315065).
S/o Sh. R.L. Sharma
Aged about 44 years,
O/o GE (U) Ambala.
3. R.D. Bansal (MES No.316127).
S/o Sh. Ashok Kumar Bansal
Aged about 44 years,
O/o GE (P) Bikaner (Rejasthan). . Applicants
(By Advocate: Shri A.K.Behera)
Versus
Union of India through:
1. The Secretary,
Government of India,
Ministry of Defence,
South Block, New Delhi-110001.
2. The Engineer-in-Chief, (MES),
Army Head Quarter,
Kasmir House,
New Delhi.
3. Shri V.G. Gole,
Deputy Director General (Pers.),
Engineer-in-Chiefs Branch,
Army Head Quarters,
Kashmir House,
New Delhi.
4. Shri S.K. Tripathi,
Director, (E-I DPC-I),
Engineer-in-Chiefs Branch,
Army Head Quarters,
Kashmir House,
New Delhi. .. Respondents.
(By Advocates: Shri R.N.Singh, official respondents &
Shri V.K.Garg & Shri Fazal Ahmed pvt.respondnets.)
ORDER
By Dr.A.K.Mishra, Member (A):
Since the issues raised in OA 2589/2010 and OA 3020/2009 are the same, both the OAs were heard together and this order passed in OA 2589/2010 will apply mutatis mutandis to OA 3020/2009.
2. The five applicants, two in OA 2589/2010 and three in other OA have challenged the order dated 13.10.2009 of the respondent authority by which the promotion to the rank of Assistant Engineer (AE) granted to them earlier by order issued on 24.11.2006 was withdrawn. Their prayer is to set aside the order dated 13.10.2009 and declare that they have been lawfully promoted to the post of AE(Civil) and they could not be disturbed anymore; further they should be given all consequential benefits.
3. The facts, as they emerge from the submission of the parties concerned, are briefly stated as follows:
The applicants are Engineering Degree Holders and had joined the service of the respondent authority as Superintendent Grade-II. They claimed that the posts of Superintendent Grade-II and Grade-I were merged with effect from 09.07.1999 and they were all to be treated as Superintendent Grade-I from this date of merger. As per the extant Recruitment Rules, Engineering Degree Holders with three years of experience were eligible for promotion to the post of AE (Civil). They filed OA No.1124/2005 (Braham Prakash Sharma & Others vs. UOI & Others). The OA was allowed in their favour and the respondent authorities were directed to hold review DPC to consider their cases for promotion. Contempt Petition 330/2006 was filed as the direction was not implemented. In that background the respondent issued order dated 24.11.2006 promoting the five applicants against the vacancies for the year 2004 and 2005. It also mentioned that the promotions were made provisionally and subject to the results of the review DPC to be conducted later in connection with the directions passed by this Tribunal in some other OAs.
3.1 Many OAs filed by the other category of Superintendent Grade-II, namely Diploma Holders filed OAs before various Benches of this Tribunal were transferred to the Principal Bench and the matter was heard in OA 2105/2007 (S.P.Thuse and Ors. Vs.UOI and Ors.) where the five applicants were made the respondents. The OA was dismissed and there was no interference with the promotion of the applicants. This judgment dated 26.05.2008 was challenged in Writ Petition No.4462/2008 in Delhi High Court, which was finally dismissed on 03.07.2009. SLP (c) No.10254/2011 was filed before the Honble Supreme Court against the order of the High Court of Delhi in which the Apex Court has passed order on 08.04.2011 to issue notice. Taking note of these developments the review applications no. 138/2007, 185/2007 and 186/2007 were disposed of with the observations that if the Honble Supreme Court upsets the order of Honble High Court it would be open to the parties to take appropriate action at that stage.
3.2 Meanwhile Chandigarh Bench of this Tribunal in its order dated 06.07.2006 in OA 472-CH-2005 and two other OAs directed the respondent authority to consider all the Superintendent Grade-II for promotion to the rank of Grade-I retrospectively from 1995 to 2001. This order was upheld by the Honble High Court of Punjab & Haryana with the modification that proforma DPC should be held for all eligible erstwhile Superintendents Grade-II prior to the merger. SLP (c ) No. 299192/2009 was filed and has been admitted by the Apex Court against this order but no stay had been granted against operation of the aforesaid order dated 05.09.2009 of Punjab & Haryana High Court.
4. There was yet another development. Erstwhile Superintendent Grade-II (Degree Holder) filed an OA before Bombay Bench of this Tribunal seeking stay of the order dated 05.0-9.2005 of the High Court Punjab & Haryana. This was allowed but overturned in the Writ Petition (c )No.891/2011 filed before the Bombay High Court. Again, this order dated 20.04.2011 was challenged in SLP filed before the Apex Court. However, Honble Supreme Court in its order dated 12.05.2011 permitted the respondents to carry out promotion on the basis of revised seniority list subject to final outcome of the case.
4.1 The respondents carried out a review DPC for giving proforma promotion for the years 1995 to 1999 till the date of merger (09.07.1999). The applicants herein figure at a much lower position in the revised seniority list prepared by the respondents.
5. At the time of hearing, learned counsel for the applicants submits that since the issue of validity of promotion granted to the five applicants on 24.11.2006 is before the Honble Supreme Court of India, it would be appropriate to set aside the impugned order of the respondent withdrawing the promotion till the matter is finally adjudicated. He further submits that promotions of the applicant having been upheld by the Honble High Court of Delhi could not have been withdrawn by an order of the administrative authority.
6. Learned counsel for the respondents, on the other hand, submits that the seniority list of Superintendent Grade-I has been revised keeping in view the direction of Honble of High Courts of Punjab & Haryana as well as Bombay and the specific permission granted by Honble Supreme Court in its order dated 12.05.2011 in SLP No. 12972/2011. The revised seniority list of Junior Engineers (JEs) has not been challenged by the applicants, who figure at Sl Nos 1587, 1617, 1625, 1664 and 1689 in that seniority list. They do not even come within the zone of consideration for regular promotion to the vacancies on the post of AE for year 2004-05.
6.1 It is further submitted that there are 100 erstwhile degree holders Superintendent Grade-II, who are senior to the applicants, but have not been given either regular or provisional promotion to the post of AE (Civil). If the relief claimed by the applicants will be allowed, there would be similar claims coming from many of such degree holder JEs.
6.2 Counsel for the respondents opposed the plea of the applicants to adjourn the present case sine die and await the final decision of the Honble Supreme Court in the SLP pending before them. According to the respondents, this is a ploy by the applicants to continue with their unmerited advantage gained due to grant of provisional promotion. This position cannot be countenanced any more in view of the developments which have taken place since then. The whole situation has changed in view of holding of DPC for proforma promotions and preparation of the revised seniority list of JEs (Civil) in compliance with the direction of Honble High Courts followed by the permission granted by the Honble Supreme Court on 12.05.2011.
6.3 It is contended that the SLP No.10254/2011 is about challenging the order dated 03.07.2009 of Delhi High Court upholding the provisional promotion granted to the applicants for the vacancy year 2004-05 on supernumerary posts as all the vacancies for the year 2004-05 had been filling by the panel drawn up by the respondent authority on 20.01.2005. Existence of this SLP does not operate as a bar in dealing with the present OAs on merit. Since it has been established by the respondents that the applicants are far too junior in the seniority list now prepared for cadre of JEs and even in the cadre of Superintendent Grade-I as it existed prior to the date of merger and they could not have been considered superseding the claims of not only other diploma holder Grade-I Superintendents senior to them in that cadre, even many of their senior degree holder JEs.
7. We have carefully considered the submissions of both the parties. It has been clearly brought out that a revised seniority list of JEs has been published pursuant to the direction received from the Honble High Court of Punjab & Haryana. An attempt was made at Mumbai to keep this direction on hold but the Honble Supreme Court in its order dated 12.05.2011 admitted the SLP filed in that connection with the following direction:
Any promotion on the basis of the revised seniority list will be subject to the final result in this appeal. The respondents have issued all India Seniority List of Junior Engineers (Civil) - new designation for the amalgamated cadre of Superintendent Grade-II/I vide their letter dated 04.07.2011. The respondents have stated that the review DPCs have been conducted for promotion from the year 2001-02 to 2010-11 and erstwhile Superintendent Grade-I, JEs coming till Sl No.1311 have been promoted. The promotion orders have since been issued and the candidates have already joined against the vacancies available till the year 2010-11. The respondents have taken a categorical position that the applicants do not even come within the zone of consideration for promotion to these vacancies. They cannot possibly steal a march over many other officers belonging to their group, i.e. degree holder Junior Engineers.
7.1 It is seen that both in O.A. No.1124/2005 and the W.P.(c) No.4462/2008 the issue involved was the eligibility of applicants (degree holders) for promotion to the post of AE (Civil): whether the appropriate date for computing experience was 09.07.1999 when the cadre of Superintendent Grades-II and I were merged by a Presidential Order, or from 30.04.2001 when the revised rules were notified and it was held that the former date would be appropriate. Although the claim for holding review DPC and proforma promotion for 1996-99 was noticed in OA 2108/2007 and rejected as far fetched, this issue was not discussed in the order dated 03.07.2009 of the Honble High Court of Delhi in the aforesaid WP(c) No.4462/2008. On the other hand, both the Honble High Courts of Punjab & Haryana and Bombay directed the Respondent to carry out that exercise and re-fix the seniority, which was ultimately done, as said earlier, with permission from the Honble Supreme Court and a revised all India Seniority List of JEs (Civil) was brought out.
8. On merit, we do not find that there is any serious infirmity with the impugned order of the respondent authority. The issue, which is pending before the Honble Supreme Court, is about their provisional promotion against supernumerary posts and the eligibility of applicants for consideration to be promoted. Now that the position has changed through issue of revised seniority list of Junior Engineers, which has not been challenged by the applicants, the respondents have taken action correctly to give regular promotion in respect of vacancies arising in different years on the basis of the revised seniority list. To interfere with the impugned order would give rise to a piquant situation where admittedly junior officers will be allowed to continue in higher position where they could even supervise the work of their seniors and will be permitted to draw higher salary denied to a large number of their seniors. Therefore, we do not see any balance of convenience to continue the present state of affairs which will permit continuance of an invidiously discriminatory position in favour of the applicants.
9. In the circumstances, the OAs are dismissed. In any case, as has been observed by the Honble Supreme Court in SLP No. 12972/2011, all the promotions granted by the respondents would be subject to the final outcome of the SLP. No costs.
(Dr. A.K. Mishra) (George Paracken) Member (A) Member (J) /kdr/