Central Administrative Tribunal - Ernakulam
Comptroller And Auditor General Of ... vs Prabha L on 10 June, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
M.A.180/406/2024 in O.A.180/204/2024,
M.A.180/428/2024 in O.A.180/259/2024
&
M.A.180/429/2024 in O.A.180/248/2024
Monday, this the 10th day of June, 2024
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
M.A.406/2024 in O.A.204/2024
1. The Comptroller and Auditor General of India, Pocket No.9
Deen Dayal Upadhyaya Marg, New Delhi-110124.
2. The Principal Director (Personnel), Office of the
Comptroller and Auditor General of India, Pocket No.9
Deen Dayal Upadhyaya Marg, New Delhi-110124.
3. The Accountant General (A&E), Kerala
Thiruvananthapuramam-695001.
- Miscellaneous Applicants/
Respondent Nos.1 to 3 in the O.A.
[By Advocate : Smt.Sreekala T.K., SC]
Versus
1. Prabha.L, Aged 54 years, W/o. V. Suresh, Assistant
Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram - 695 001, Residing at
CGRA-21, "Asheervad", Continental Garden, Vattiyoorkavu
Thiruvananthapuram - 695013.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
2
2. Preetha V.S, aged 56 years, W/o. K. Mohanan Nair
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram - 695 001. Residing at SEKT 16
TC-9/2208, Saranath Kurup's Lane, Sasthamangalam
Thiruvananthapuram - 695 010.
3. Ashif Iqbal S, aged 57 years, S/o. Shahul Hameed M.K
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at T.C. 49/669
MRWA-213, Manacaud P.O, Thiruvananthapuram - 695 009.
4. Mini V, aged 55 years, W/o. G.P. Jayachandra Kumar
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at T.С. 19/2194
(5),"ASHWINI" GDRA-16, Mudavanmughal,
Thiruvananthapuram - 695 012.
5. Ajantha Harikesh, aged 58 years, W/o. Harikesh P.K
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at: R.C. 15/592
Udharashiromani Road, Vellayambalam
Thiruvananthapuram - 695 010.
6. Nalini Menon, aged 57 years, W/o. Rajendran K
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram - 695 001. Residing at "SWASTHI"
CGRA-43, Continental Gardens, Vazhottukonam, Vattiyoorkavu
Thiruvananthapuram - 695 013.
7. Hema T.M, aged 53 years, W/o. Dr. C.H. S. Mani
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at: T.C. 37/1777
-1, WSRA- 6, Adikesava Kripa, Fort
Thiruvananthapuram - 695023,
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
3
8. Sobha Kumar. B, aged 56 years, W/o. Kumar H.V.
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram - 695 001. Residing at SRA-130
Venkita Nivas, Sastha Nagar, Karamana
Thiruvananthapuram - 695 002.
9. Jaya Prasad, aged 57 years, W/o. E.Krishna Prasad
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695.001. Residing at Mani
Mandiram, PNRA D-29, Sreekrishna Lane, Kowdiar P.O.
Thiruvananthapuram-695 003.
10. Rajalekshmi T.N, aged 57 years, W/o. Sreekumar P
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at KRA-20
Sreejaya, Corporation Zonal Office Lane, Peroorkada P.Ο.
Thiruvananthapuram-695 005.
11. Geetha Mary Thomas, aged 55 years, W/o. Abi K. Abel
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at TC XI/1740-
1, Charachira, Kowdiar P.O, Thiruvananthapuram - 695 033.
12. Prasannakumari.S, aged 57 years, W/o. Sreekumaran Nair M
Assistant Accounts Officer. O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at: "SREEHARI"
KNRA-51 A, Kadappathala Nagar, Kowdiar P.O,
Thiruvananthapuram-695 033.
13. Kala. S, aged 57 years, W/o. Anil T.K, Assistant Accounts Officer
O/o. the Accountant General (A & E) Kerala
Thiruvananthapuram-695 001. Residing at Anugraha
VARA-351, Arappura, Vattiyoorkavu, Thiruvananthapuram-695 013
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
4
14. Annapoorani K.P, aged 59 years, W/o. Late Narayana lyer
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001, Residing at T.C. No.
40/733, Thoppu Lane, Sreevaraham, Manacaud P.O,
Thiruvananthapuram 695 009.
15. Deepthi Dev V, aged 51 years, W/o. Sreeny P, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at "Indeevaram", SRA 203,
Illipode, Thirumala P.O, Thiruvananthapuram 695 006.
16. Rajee Rajan, aged 59 years, W/o. Rajan. L, Assistant Accounts Officer,
O/o. the Accountant General (A & E) Kerala, Thiruvananthapuram -
695 001. Residing at "Surabhi", BLRA-55, Marakkamuttom,
Neyyattinkara, Thiruvananthapuram - 695 121.
17. Lakshmi R, aged 57 years, W/o. Vasan S.S, Assistant Accounts Officer,
O/o. the Accountant General (A & E) Kerala, Thiruvananthapuram-
695 001. Residing at 13D, Artech Deepam, Thoppil Lane, Anayara,
Thiruvananthapuram - 695 029.
18. Suma A.S, aged 56 years, W/o. D. Ramarajan, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at RASUVI, SKRA E-31, Near
CSI Church, Powdikonam, Thiruvananthapuram 695 587.
19. Anitha S.V, aged 57 years, W/o. Sunil Kumar A.K, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at T.C. 18/1106 (3), TRA 52,
Aramada P.O, Thrikkannampuram, Thiruvananthapuram 695 032.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
5
20. Santhi K, 55 years old, W/o. R. Nagaraj, Assistant Accounts Officer,
O/o. the Accountant General (A&E) Kerala, Thiruvananthapuram -
695 001. Residing at Flt. No.111, "C" Block, Nandini Garden, West
Fort, Thiruvananthapuram 695 023.
21. Sophy Thomas, aged 57 years, W/o. Binoy Thomas, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at T.C. No. X/509,
Athinilkunnathil House, Aiswarya Avenue, Mannanthala,
Thiruvananthapuram - 695015.
22. Union Public Service Commission, Represented by its Secretary,
Dholpur House, Shajahan Road, New Delhi-110069.
- Miscellaneous Respondents/
Applicants in the O.A./
4th respondent in the O.A.
[By Advocates : Sri.T.C.Govindaswamy, Smt.Kala T Gopi,
Sri.Kailesh T Gopi & Smt.Nishitha Balachandran for R1 to R21,
Sri.Thomas Mathew Nellimoottil, Nodal Counsel for UPSC for R22]
M.A.180/428/2024 in O.A.180/259/2024
1. The Comptroller and Auditor General of India, Pocket No.9, Deen
Dayal Upadhyaya Marg, New Delhi-110124.
2. The Principal Director (Personnel), Office of the Comptroller and
Auditor General of India, Pocket No.9, Deen Dayal Upadhyaya Marg,
New Delhi-110124.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
6
3. The Principal Accountant General (A&E), Kerala,
Thiruvananthapuramam-695001.
- Miscellaneous Applicants/
Respondent Nos.1 to 3 in the O.A.
[By Advocate : Smt.Sreekala T.K., SC]
Versus
1. Manu.V.S., aged 53 years, S/o. K.R. Sugathan, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at Saravana, KPRA B-15,
Paloor Lane, Murinjapalam, Medical College P.O,
Thiruvananthapuram 695011
2. Union Public Service Commission, Represented by its Secretary,
Dholpur House, Shajahan Road, New Delhi-110069.
- Miscellaneous Respondent/
Applicant in the O.A./
4th respondent in the O.A
[By Advocates : Sri.T.C.Govindaswamy, Smt.Kala T Gopi,
Sri.Kailesh T Gopi & Smt.Nishitha Balachandran for R1
Sri.Thomas Mathew Nellimoottil,
Nodal Counsel for UPSC for R2
M.A.180/429/2024 in O.A.180/248/2024
1. The Comptroller and Auditor General of India, Pocket No.9
Deen Dayal Upadhyaya Marg, New Delhi-110124.
2. The Principal Director (Personnel), Office of the Comptroller and
Auditor General of India, Pocket No.9, Deen Dayal Upadhyaya Marg,
New Delhi-110124.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
7
3. The Principal Accountant General (A&E), Kerala,
Thiruvananthapuramam-695001.
- Miscellaneous Applicants/
Respondent Nos.1 to 3 in the O.A.
[By Advocate : Smt.Sreekala T.K., SC]
Versus
1. Sreelatha G., aged 58 years, W/o. Sanalkumar, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at T.C. 36/773 (4),
Perunthanni, Vallakkadavu P.O, Thiruvananthapuram - 695008.
2. Beena P.R, aged 56 years, W/o. Madhu A.N, Assistant Accounts
Officer, O/o. the Accountant General (A&E) Kerala,
Thiruvananthapuram - 695 001. Residing at T.C-8/1174/20, E-30(B),
Varnam, Mythri Nagar, Valiyavila, Thiruvananthapuram - 695 006.
3. Vijayalakshmi S.K, aged 57 years, W/o. Sreekumar A.V, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at T.C. No. 10/212,
Sreelakshmi, Swathi Nagar, Peroorkada P.O.
Thiruvananthapuram - 695005.
4. Maya P.I, aged 54 years, W/o. Raveendran N.M, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram-695 001. Residing at Anagha, House No. 305-D,
Darsan Nagar, Peroorkada, Thiruvananthapuram - 695 005.
5. Venugopal V.K, aged 56 years, S/o. Vasudevan Pillai, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at MGRA-37, Vaishnavi,
Maharajas Lane, Anayara, Thiruvananthapuram - 695 029.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
8
6. Saji T., aged 53 years, S/o. Thulasidas, Assistant Accounts Officer,
O/o. the Accountant General (A & E) Kerala, Thiruvananthapuram-
695 001. Residing at T.C. -3/630/A, Muttada P.O,
Thiruvananthapuram - 695 025.
7. Manju R, aged 47 years, W/o. Ravikrishnan R.S, Assistant Accounts
Officer, Q/o.(the Accountant General (A & E) Kerala
Thiruvananthapuram - 695 001. Residing at T.C. 50/360 (4),
Krishendu, Maruthorkadavu, Karamana P.O.
Thiruvananthapuram - 695 002.
8. C. Ajithkumar, aged 56 years, S/o. Chandrasekharan Nair, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at T.C. 49/1075,
Chandralayam, Attukal, Manarcaud, Thiruvananthapuram - 695 009.
9. Sheeba Varghese, aged 56 years, W/o. Benny Varghese, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at Pothirickal, A2-A, LMS
Nagar, Muttada P.O, Thiruvananthapuram - 695 025.
10. Bindu P.R, aged 56 years, W/o. Late G. Sureshkumar, Assistant
Accounts Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram - 695 001. Residing at House No. 101,
Balarema, Chirakkulam Road, Thiruvananthapuram 695 001.
11. Rekha Sreekumar, aged 52 years, W/o. Sreekumaran Nair K.R,
Assistant Accounts Officer, O/o. the Accountant General (A & E)
Kerala, Thiruvananthapuram-695 001. Residing at NRA-83,
Krishnasree, Nemam, Thiruvananthapuram - 695 020.
MA 406/24 in OA 204/24,MA 429/24 in OA 248/24
and MA 428/24 in OA 259/24
9
12. Beena R, aged 54 years, W/o. Pradeepkumar, Assistant Accounts
Officer, O/o. the Accountant General (A & E) Kerala,
Thiruvananthapuram 695 001. Residing at SRL-C15/1, Sankar Lane,
Sasthamangalam, Thiruvananthapuram - 695 010.
13. Union Public Service Commission, Represented by its Secretary,
Dholpur House, Shajahan Road, New Delhi-110069.
- Miscellaneous Respondents/
Applicants in the O.A./
4th respondent in the O.A
[By Advocates : Sri.T.C.Govindaswamy, Smt.Kala T Gopi
Sri.Kailesh T Gopi & Smt.Nishitha Balachandran for R1
to R12, Sri.Thomas Mathew Nellimoottil, Nodal Counsel
for UPSC for R13
The application having been heard on 31.05.2024 the Tribunal on
10.06.2024 passed the following:
COMMON ORDER
All these Original Applications have been filed by officers working in the cadre of Assistant Accounts Officer in the office of the Accountant General (A&E) Kerala, the 3rd respondent. They are aggrieved by the denial of lawful consideration of promotion to the post of Senior Accounts Officer, a Group-A post, in accordance with the Recruitment Rules. They say that there are good number of vacancies in the cadre of Senior MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 10 Accounts Officer, but their legitimate claims are not being considered by the 3rd respondent. Not only that, the 3 rd respondent is trying to re-engage retired hands by making appointments on deputation basis or contract basis.
2. Applicants are Assistant Accounts Officers working for more than 11/12 years in the category. They claim that they have regular service over 25 years. Therefore, in tune with the Recruitment Rules dated 18.11.2019 there is no reason why their legitimate claim for consideration to the post of Senior Accounts Officer shall be denied. So, they moved this Tribunal seeking a declaration that they are eligible to be considered for promotion as Senior Accounts Officer in level-10 of the Pay Matrix as contemplated in the Recruitment Rules and to direct the respondents to consider and promote them in the existing vacancies; similarly a direction is sought for convening the DPC forthwith and to consider them for promotion as Senior Accounts Officers for the vacancies of 2023-2025 with consequent benefit of promotion and to declare that any attempt on the part of the respondents to fill the vacancies by deputation or by engaging MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 11 retired hands on contract basis is arbitrary, discriminatory, contrary to the statutory rules, unreasonable and illegal. They also sought interim relief to restrain the respondents from filling up the posts by engaging retired hands or persons on deputation or on contract basis, contrary to the statutory rules.
3. When Original Application No.204/2024 was admitted on 05.04.2024 this Tribunal made an observation that promotions or appointments made against the post of Senior Accounts Officer affecting the interests of the applicants shall be subject to the final outcome of the O.A. Thereafter the applicants in O.A.204/2024 moved Miscellaneous Application No.336/2024 apprehending that the existing vacancies are going to be filled up by engaging retired hands, which was sought to be restrained. Thus by interim order dated 12.04.2024 this Tribunal directed that engagement of retired hands to the post of Senior Accounts Officer shall be kept in abeyance till further orders. Similar orders were passed in the other two O.A.s also, restraining the respondents from engaging retired hands to the post of Senior Accounts Officer. Aggrieved by the MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 12 same, respondents 1 to 3 have moved these M.A.s seeking to vacate the interim orders and allow them to fill up the existing vacancies as per the extant standing instructions.
4. According to the petitioners in the Miscellaneous Applications, who are respondents 1 to 3 in the O.A.s, the claim of the original applicants that they are appointed on regular basis against adhoc or temporary post in the cadre of Assistant Accounts Officer was considered by the Tribunal in O.A.No.753/2019 and rejected by Annexure-MA3 order. Going by the Recruitment Rules, for filling up the post of Senior Accounts Officer which is a Group-A post, there must be seven years of regular service including service rendered in non-functional grade of level-9 and must have successfully completed mandatory training of 2-4 weeks in the fields prescribed by the department. The promotion panels to the Group- A post of Senior Accounts Officer in respect of the 3 rd respondent's office for the panel year 2024 have already been drawn up in consultation with the Union Public Service Commission by convening the DPC and fully operated. All the Assistant Accounts Officers empanelled for promotion in MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 13 the said panel year have been promoted to the post of Senior Accounts Officer. None of the applicants in the O.A. satisfy the eligibility criteria to be empanelled for the panel year 2024 and 2025 for promotion to the post of Senior Accounts Officer.
5. According to them, cadre of Senior Accounts Officer consists of Group-A officers who have more than 30 years of experience and knowledge in the functions of the office. They supervise the works done in multiple sections, each section consisting of an average five dealing hands is headed by Assistant Accounts Officer. They are expected to do important works in respect of maintenance of service records of gazetted officers, high profile Civil Servants, All India Service Officers of Kerala Cadre, Ministers and Personal Staff, Judicial officers, PSC Members, gazetted officers under the UGC/AICTE, Judges of the High Court, Chairman and Members of the Public Service Commission, Lok Ayuktha, State Election Commission, State Information Commission and other high profile statutory and constitutional functionaries. They also have to deal with pensionary claims, Provident Fund matters, fixation of pay of MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 14 Government employees etc. Therefore, very many responsible works are being dealt with by them for which there are 63 posts, but at the time of filing the application there were only 51 persons, thus there were 12 vacancies. 9 vacancies would arise on 31.05.2024. Thus as on today, according to the respondents, there are 21 vacancies and Assistant Accounts Officers obtaining qualification for promotion to the post of Senior Accounts Officer are not available and in the circumstances, by following the circular dated 26.09.2023 they are entitled to fill up 25% of vacancies subject to the condition that regular officers plus retired officers hired on short term contract basis shall not exceed 90% of the sanctioned strength. Subject to other condition, the respondents are entitled to fill up the vacancies. Unless the interim order is vacated and permission is granted for filling up such vacancies, that would affect public interest and they will fail to provide timely service to the stakeholders namely the Government of Kerala and other officers. Therefore, the interim orders of 12.04.2024 and 24.04.2024 are sought to be vacated by permitting the applicants to fill up the vacancies by engaging retired hands. MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 15
6. The original applicants in O.A.204/2024 filed a reply to these Miscellaneous Applications opposing the applications. This reply is considered as a common reply to all the M.A.s filed in the other O.A.s. This reply is consistent with the contentions raised by the original applicants in the O.A.s
7. According to them, they were regularly promoted as Assistant Accounts Officers against adhoc posts. They have completed regular service as Assistant Accounts Officer for over a period between 11 to 14 years. They have long years of regular service and there is no mandate that such regular service should be in the cadre of Assistant Accounts Officer itself. Seven years regular service stated in the Recruitment Rules include service rendered in non-functional grade of level-9 and then they should successfully complete mandatory training of 2-4 weeks in the field as prescribed by the department. According to them, they have more than seven years of regular service, they have worked as Assistant Accounts Officers on regular basis after obtaining regular appointment as is evident from the documents produced by them, Annexures-A2, A3 and A6 in MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 16 O.A.204/2024. It is also submitted that there never was an order of regular promotion. The only order subsequent to the issuance of Annexure-A2 is the one of regularisation of services of the applicants as Assistant Accounts Officers against permanent vacancy. The Miscellaneous Applications are filed in terrorem and the contentions are not factually correct. Even though there were number of vacancies in the post of Senior Accounts Officer, there was a stage when there were only 26 persons working in the post, and even then it could be managed. They have also produced the copy of the circular dated 26.09.2023 marked as Annexure- A10 in O.A.204/2024 which enables the department for hiring retired officers to the post of Senior Accounts Officers.
8. A seen in the guidelines dated 26.09.2023 - Annexure-A10 in O.A.204/2024 - there are limitations in obtaining the services of such retired hands. They cannot sign any PPO, GPF statement, monthly accounts and correspondence made outside IA & AD etc. Those documents shall be signed by a regular officer only. Moreover, only 25% of vacancies in the post of Senior Accounts Officer and Assistant Accounts MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 17 Officer cadre can be hired for the present purpose. Since there are 21 vacancies of Senior Accounts Officers, at the most only 5 persons can be appointed against the vacancies, which, according to the original applicants, will not serve any purpose. On the other hand, using the long experience of regular hands or by relaxing the Rule 5 of the Recruitment Rules, the applicants can be appointed atleast on temporary basis.
9. I heard Sri.V.V.Ashokan, learned Senior Counsel for the petitioners/respondents 1 to 3 in the O.A. assisted by Sri.Vineeth Komalachandran and Sri.T.C.Govindaswamy learned counsel for the counter petitioners/original applicants.
10. According to the learned Senior Counsel, by hiring the retired hands and utilising their services the original applicants are not going to suffer any loss. Referring to Annexure-MA3 order of this Tribunal in O.A.753/2019 the counsel pointed out that the claims made by the original applicants stand rejected by this Tribunal. May be that they have filed a review application, that has not yet been numbered. Now, in order to meet the emergency situation, the respondents should be allowed to MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 18 hire retired hands subject to the conditions laid down in Annexure-A10.
11. On the other hand, reiterating the contentions in the O.A., the learned counsel Sri.Govindaswamy submitted that the applicants have been posted on regular basis despite the fact that the posts are adhoc. From Annexure-A3 order it is very clear that they are entitled to exercise option for fixation under FR 20(I)(a)(i) which gives sufficient indication about the nature of promotion. He pointed out that against Annexure- MA3 order dated 12.04.2024 the applicants have already moved a Review Application, which is pending. The said order was rendered on the day when the impugned orders were passed. He pointed out that the promotion of the original applicants are regular, they have been given option for fixation, they have been given MACP etc. Even earlier, when there were large number of vacancies, such a contingency was not projected by the department and now they have submitted exaggerated version for denying the legitimate rights of the original applicants.
12. In Annexure-MA3 order dated 12.04.2024 passed by a Division Bench of this Tribunal, these original applicants had raised grievance MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 19 against non-granting of non-functional upgradation by counting their service from the date of their promotion as Assistant Accounts Officer (adhoc/regular/temporary). After elaborate consideration this Tribunal rejected the plea on the following terms:
"30..................We examined the issues carefully. We must note that the above detailed contentions made by the respondents both in their reply statements and in the oral submissions were not effectively countered by the applicants. It is specifically the issue raised by the respondents that Adhoc/RT services of the applicants cannot be counted as regular service, both by way of established judicial precedents or even as is generally understood, however much the applicants contend that they were doing similar work as regular AAOs and, in some cases, even work of a supervisory nature. Just performing additional or even supervisory duties does not prove that the applicants were in regular service. What is required by the NFU Scheme is to be in regular service and that is the main criteria before the grant of upgradation to Rs.5400/- Grade Pay/Pay Level - 9 in the Pay Matrix on completion of 4 years in the Lower Grade Pay of Rs.4800/-. This is clearly a settled matter for the DoP&T, which is in charge of the establishment issues of the Government of India. It appears settled in the C&AG as well, as evidenced by the record note of discussion with the employees association as MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 20 above. In any case, the respondents have provided more than enough material in their reply statement in relation to the powers of C&AG to establish that the 1st respondent (C&AG) has full powers in relation to creation of temporary posts or the effective management of the cadre under him. Thus, we agree that a temporary measure which was effected in order to provide some opportunities to the staff who had passed the required qualifying examination, but had been waiting for years together without promotion cannot be held to establish grant of further benefits.
31. We have also noted that a process has been undertaken by the respondents to provide a channel of movement from the lower level first by upgrading the posts to the position of AAO (Adhoc) and then further to the position of AAO (RT) and to final regularization as AAO. Such a process cannot be held to be identical or even similar to the process of regular promotion/appointment to the post of AAO. These are completely two different processes which cannot be confused with each other............ "
13. That means, this Tribunal has held in unambiguous terms that granting of non-functional upgradation to the post of Assistant Accounts Officer (adhoc/RT) by counting their services on the date of promotion is not permissible and thus ultimately the O.A. was dismissed. MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 21
14. The learned counsel for the original applicants submitted that they have already moved Review Application, which is pending before this Tribunal. That Review Application is not yet considered. Now the Annexure-MA3 order holds the field. Almost all the applicants are parties to O.A.
15. Learned Senior Counsel submitted on behalf of the applicants in the M.A. that such an order was passed after considering all the relevant aspects including the binding judicial precedents in the field.
16. In my view, at this stage, it is not expedient to go into the details of grounds urged in support of the original applicants like they were granted liberty for fixation under FR 22(A)(1)(a) etc. The submission that the vacancy position in the office of the 3rd respondent is very grim alone is sufficient to consider the present situation. It may be true that the original applicants were posted against adhoc vacancies. Atleast at this stage, in the light of Annexure-MA3, their adhoc service cannot be considered. The other contentious questions have to be addressed in detail. In the back ground of Annexure-MA3 order the matter has been MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 22 verified. The Review Application also is pending. Even taking for granted that the applicants are entitled to get relaxation of Rules, consideration of which will take some more time. Rival contentions require a detailed consideration. Now the respondents want leave of the Court for engaging experienced, retired officers for running the show purely as stop-gap arrangement. It is made sufficiently clear that, it is a temporary arrangement, to be undertaken strictly in terms of the extant guidelines.
17. Secondly, such a course is not going to hamper the interests of the applicants. For the present, the applicants are not in the zone of consideration even for appointment on stopgap arrangement. They have not been even shortlisted for deploying for training as required in the Recruitment Rules. But engagements of persons from outside, who had retired from the cadre of Senior Accounts Officer do not require any such training.
18. Moreover, considering the balance of convenience factor also it seems to be that engaging such retired Senior Accounts Officer would be more expedient, however subject to the various conditions stipulated with MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 23 regard to the number of engagees, nature of assignments given to them etc. In the circumstances, I find that the orders passed on 12.04.2024 and 24.04.2024 restraining engagement of retired hands would not advance public interests and would not have any particular advantage to the original applicants. If the posts remain vacant, it may hamper public interest. On the other hand, engaging temporary retired hands as a stopgap measure will not hamper the interests of the applicants. Therefore, the said order is vacated and the petitioners /respondents 1 to 3 in the O.A. are permitted to engage retired hands subject to the conditions in Annexure-A10 order.
All the Miscellaneous Applications are disposed of as above.
(Dated this the 10th June, 2024) JUSTICE K. HARIPAL JUDICIAL MEMBER ds MA 406/24 in OA 204/24,MA 429/24 in OA 248/24 and MA 428/24 in OA 259/24 24 List of Annexures M.A.406/2024 in O.A.204/2024 Annexure-MA1: A true copy of the Interim Order dated 05.04.2024 in O.A.No.204 of 2024.
Annexure-MA2: A true copy of the Interim Order dated 12.04.2024 in M.A.No.336 of 2024 in Ο.Α.No.204 of 2024.
Annexure-MA3: A true copy of the Order dated 12.04.2024 of this Hon'ble Tribunal in O.A.No. 753 of 2019.
M.A.180/428/2024 in O.A.180/259/2024 Annexure-MA1: A true copy of the Interim Order dated 24.04.2024 in O.A.No.259 of 2024.
Annexure-MA2: A true copy of the Order dated 12.04.2024 of this Hon'ble Tribunal in O.A.No.753 of 2019.
M.A.180/429/2024 in O.A.180/248/2024 Annexure-MA1: A true copy of the Interim Order dated 12.04.2024 in O.A.No.248 of 2024.
Annexure-MA2: A true copy of the Order dated 12.04.2024 of this Hon'ble Tribunal in O.A.No.753 of 2019 *******