Central Administrative Tribunal - Delhi
N J Singh vs National Technical Research ... on 15 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-345/2015
Order Reserved on: 10.09.2015
Order Pronounced on: 15.03.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Col. N.J. Singh (Retd)
E-419, C.G. Centrum
Plot No. 7, Ahinsa Khand-II
Indirapuram-201010 (U.P.) -Applicant
(By Advocate: Shri Venkatesh with Shri Anuj
P. Agarwala)
Versus
1. Union of India
Through its Secretary,
Ministry of Personnel, Public Grievances &
Pensions, Department of Personnel & Training,
North Block, New Delhi.
2. National Technical Research Organization
Through its Chairman
NTRO, Block-III
Old JNU Campus,
New Delhi-110067. -Respondents
(By Advocate: Shri V.S.R. Krishna)
ORDER
Per Sudhir Kumar, Member (A):
This OA has been filed by the applicant seeking the following reliefs:-
"i) Applicant humbly prays that this Hon'ble Tribunal may be pleased to issue appropriate order or direction directing the Respondent No.2 to frame and bring into effect necessary Recruitment Rules for the Analyst Stream of the Officers working in the Respondent No.2, i.e., National Technical Research Organization (NTRO), so 2 OA No-345/2015 that the applicant along with other officers in the Analyst Cadre are not denied promotion and are brought at parity with their counterparts in the Administrative and other Cadres of Respondent No.2, keeping in view that Analyst Cadre/CIRA was a part and parcel of the administrative cadre of Respondent No.2 prior to April, 2008.
ii) Direct the respondents to allow Anti-Date seniority to the applicant from the date of his appointment, i.e., 4th March, 2008 and allow twofold promotion to the pay scale of Rs.10,000/-.
iii) Make the said order absolute.
iv) Pass such other order/orders, which may deem fit and proper in the facts and circumstances of the case and in the interest of justice".
2. The applicant is primarily aggrieved by the alleged discrimination and the refusal on the part of official respondents to hold a Departmental Promotion Committee (DPC, in short) meeting to provide promotion to the applicant, which he claims to be due to him. He has alleged that the DPC has not been conducted due to non-existence of the Recruitment Rules (RRs, in short) for the officers of Analyst Stream in Respondent No.2 National Technical Research Organization (NTRO, in short). As has been stated in the opening paragraph itself, he has filed the present OA to agitate the aforesaid issue, which would not only be on behalf of himself, but also in representative capacity, as the reliefs sought by him in the OA, as reproduced by us above, would also be available to other officers of Analyst Cadre in the NTRO.
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3. The applicant has claimed that a cause of action has arisen in his favour, and that when he had approached the Hon'ble Delhi High Court through its order dated 14.01.2014, the High Court had granted liberty to him to withdraw the Writ Petition for the purpose of an OA being filed before this Tribunal. In regard to limitation, he had said that the cause of action is continuous in nature, as he is challenging the inaction of the respondents in non-framing of the RRs in the Respondent No.2 organization-NTRO since its inception.
4. The case of the applicant lies in a narrow compass. The applicant had applied for regular appointment in the Respondent No.2 organization-NTRO in January, 2005, in the pay scale of Rs.14300- 18300/-, and was interviewed along with others on 09.02.2005. Pending finalization of his case for regular appointment, he was offered an appointment on contract basis as Officer on Special Duty (OSD, in short). Consequently, he resigned from the Army service in the rank of Colonel, and joined NTRO as OSD in July, 2005, without any break in service. He has submitted that his the then post of OSD (Liaison and Analysis) was in the Administrative Cadre of NTRO.
5. Thereafter, NTRO issued a Circular for recruitment against the posts of Director, for which also the applicant applied on 20.06.2007, was called for interview on 23.11.2007, and he appears to have been provisionally selected, and he joined at the post of Director vide letter dated 03.03.2008 (Annexure A-2).
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6. According to the applicant, another stream of posts of Analyst Cadre was created in NTRO, different from the Administrative Cadre in which he held his post. The applicant has further submitted that through letter dated 11.04.2008, a decision was communicated that the Analyst Cadre would be different from the Administrative Cadre, containing the posts then designated as similar to Administration/Establishment Divisions. After the applicant had completed two years in the post of Director, in the year 2008, he himself put up and forwarded draft RRs for the now differentiated Analyst Cadre, and requested NTRO to conduct a DPC for his promotion against an Analyst Cadre post. His Group Director also recommended that he is due for promotion on 05.03.2010, after completion of two years as Director w.e.f. 04.03.2008. However, the Establishment Branch of NTRO declined to conduct a DPC for considering the applicant's promotion, stating that the same cannot be done unless the RRs for the Analyst Cadre are finalized, and come into force.
7. The applicant then requested, in the alternative, for his being considered for the post of Additional Controller w.e.f. 05.03.2010, within the available existing vacancies, and the prevailing RRs for those posts, through Annexure A-6 dated 14.06.2010. However, on 12.11.2010, through Annexure A-9, he again received a reply that due to non-framing of Analyst Cadre RRs, his case for promotion cannot be considered. 5
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8. The applicant represented again on 07.07.2011 and 22.03.2012. In the meanwhile, his Group Director suggested that since the applicant had rendered 4 years' service in the Grade Pay of Rs.8700/-, and was due for promotion to the Grade Pay of Rs.8900/- earlier, he has now become due for promotion to the Grade Pay of Rs.10,000/- also. However, through Annexure A-13 dated 09.04.2010, he was informed that similar representations had already been considered and rejected, and that since he had been appointed in the Analyst Cadre, and not in Administrative Cadre, his case for promotion can be considered only when RRs are approved for the Analyst Cadre, which cadre was not covered by the Flexible Complementing Scheme (FCS, in short), and that completion of a particular residency period alone cannot be a ground for grant of promotion.
9. The applicant's official superior Centre Director then wrote on 18.04.2012 through Annexure A-14, recommending that after the applicant having completed 4 years in the rank of Director, his request for conduct of DPC, and grant of the next promotion, is perfectly normal and genuine aspiration. The applicant, thereafter, felt aggrieved when he came to know that DPC was being conducted for two officers in the Scientific Cadre, who were otherwise junior to him in NTRO as per inter- cadre seniority. He represented through Annexure A-15 dated 11.12.2014, and submitted that this would adversely affect his inter- cadre seniority and status, and requested for consideration of his case also for promotion.
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10. The applicant has submitted that on the one hand the respondents have re-designated him under the Analyst Cadre, which has been ordered to be different from the Administrative Cadre, but, on the other hand, since RRs for Analyst Stream Officers had not been finalised, his case is not being considered for promotion. He has tried to seek shelter behind Govt. of India DoP&T OM dated 18.03.1988, concerning the guidelines for framing RRs, and has taken the grounds for filing his OA as follows:-
"i) That no RRs have been framed for the Analyst Cadre since inception of the Organization;
ii) That this has caused arbitrary discrimination in his having been denied promotion;
iii) That the basic requirement of management in any organization requires the existence of a system by which its officers and employees can be promoted, as held by the Apex Court in CSIR v. K.G.S. Bhat (1989) 4 SCC 635;
iv) That a disparity has been created between the Officers of NTRO in the Analyst Cadre, and other Cadres, leading to loss of status, seniority and financial benefits;
v) That the applicant had himself drafted such a set of draft RRs, but no action has been taken by the respondents;
vi) That any continuation of such discrimination would adversely affect the proper functioning of the respondent-organization 7 OA No-345/2015 vested with intelligence and security services for the Union of India;
vii) That the role of Analyst Cadre is of paramount importance in view of their indispensable role in the organization, and it is imperative that they should be put at par with their counter parts, and RRs should be framed for that stream;
viii) That the respondents have dealt with his representation mechanically, and without application of mind, denying him an opportunity to advance in his career; and
ix) That the applicant is eligible for antedated seniority."
11. The respondents filed their counter reply on 28.05.2015. It was explained that the NTRO was constituted with a special mandate involving national security, and had started functioning from 2005. In the formative years, in the absence of RRs for various cadres/posts of the organization, and also a streamlined procedure, ad-hoc recruitments were resorted to, primarily keeping in mind the operational requirements, as matched with the domain knowledge and experience of the selected candidates. It was submitted that since, at that time, there was absence of cadre-wise allocation of posts and approved RRs, it was decided that some posts in the Liaison and Analysis Wing should be filled up, against which the applicant was inducted, on contract basis, without even specifying any proper designation. It was submitted that he was 8 OA No-345/2015 subsequently re-employed as Director in the restructured Analysis & Liaison Wing with effect from 04.03.2008, in the Grade Pay of Rs.8700/-.
12. It was further submitted that the RRs for the Analyst Cadre, the appropriate and relevant Cadre for considering the applicant's case, in view of the specific task for which he had been inducted in NTRO, have since been finalized, and when these Rules were finalized, it was found that he does not meet the qualifications required for the equivalent post of Analyst-E. It was further submitted that in the next higher post of Analyst-F, as per the approved RRs, 75% of the posts are required to be filled by promotion from amongst those at Analyst-E level, having 5 years of regular service in the grade.
13. It was further submitted that even the number of posts mentioned in the approved RRs are subject to variation, in view of the special requirement of NTRO's mandate. It was explained that even though applicant does not meet the prescribed Educational Qualifications as per the approved RRs, it has since been decided, in consultation with Department of Legal Affairs, to hold the DPC for considering his case for promotion, having regard to the Saving Clause of the RRs concerned, and that that DPC constitution has been received, and it was likely to meet shortly to consider the applicant's case for his promotion as Analyst-F. It was further submitted that even in doing so, the clearance of Department of Expenditure would be required, since posts that have remained vacant for more than a year cannot be revived, except under very rare and 9 OA No-345/2015 unavoidable circumstances, and after seeking approval from Department of Expenditure, Ministry of Finance.
14. The same submissions had been repeated in the para-wise reply, reiterating that DPC was likely to be held shortly to consider the applicant's case for his promotion to Analyst-F Grade, as per the RRs. It was submitted that applicant has himself admitted that he was never in the Administrative Cadre per se, and his appropriate and relevant Cadre was Analyst Cadre, and that, therefore, the promotions being granted in any other Cadre are neither relevant for the purpose of the applicant's submissions, nor can he have any grievance against them, since RRs have been finalized in respect of all the respective cadres, providing for career progression of the employees in the respective cadres.
15. It was further submitted that the applicant's case is covered by the Bangalore Bench judgment in Shri Govardhana vs. Chairman and Managing Director of BSNL and Others, OA No.190/2013. It was submitted that the posts in NTRO at various levels are filled up having scrupulous regard to the special needs, keeping in view the sensitive nature of the organization, based on operational necessity, but in spite of that, even though the applicant does not meet the essential qualifications as approved under the RRs, his case is going to be considered under the Saving Clause of the RRs. It was submitted that as per DoP&T OM dated 09.04.1996, such promotion can only be prospective, and even in OA No.833/2013 N.C. Bhuyan vs. Union of India & Others, in the order 10 OA No-345/2015 dated 16.01.2015 (Annexure R-2), grant of retrospective promotion had been denied by this Tribunal. The respondents had thereafter relied upon Paragraph- 42 of the Delhi High Court judgment in Union of India vs. Vijender Singh and Others, WP (C) No.1188-90/2005 dated 29.11.2010, in which the aspect that promotion can only be prospective was reiterated, citing the Apex Court judgment in the case of Nirmal Chandra Sinha vs. Union of India & Ors. 2008 (14) SCC 29. It was, therefore, submitted that the OA is devoid of any merit, and is liable to be dismissed.
16. The applicant filed his rejoinder on 29.06.2015, more or less reiterating his contentions as made out in the OA, as discussed above. He had pointed out that he has filed an MA No.258/2015 seeking production of certain confidential documents in a sealed envelope, through which M.A. the applicant had claimed that a DPC in respect of his promotion was conducted on 07.07.2011, though its result was not declared, which averment had not been made by him in the OA earlier. It was further submitted that the respondents have wrongly stated that RRs have, in fact, been framed, as they have failed to provide copies of those RRs even before this Tribunal, raising the question as to whether they have been framed in accordance with the law, and or have been concealed with ulterior motives, with the intent and purposes of not promoting the applicant. It was further submitted that RRs once framed have to be referred to UPSC, which does not appear to have been done by NTRO.
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17. Through this rejoinder, he had brought on record as Annexure R-5 a fresh document dated 23.05.1990, in which his appointment had been directed by Respondent No.1 to be treated as an isolated post, which could be encadred in any of the existing organized services, at the time of review of such cadres, with a warning that such a process of direct recruitment should not be adopted for higher level posts, without providing promotional avenue to such candidates. It was further submitted that RRs framed have not only to be approved, but have also to be notified in the official Gazette, which does not seem to have happened in the present case.
18. It was further submitted that scrapping the previous DPC held for his promotion was in contravention of the DoP&T OM dated 17.12.2012, whereby it has been clearly directed that a panel set up by the DPC shall be valid for one year. It was further submitted that RRs not being placed in public domain itself is a violation of the Standing Instructions in this regard. It was submitted that the arguments put-forth by the NTRO are self-defeating, as, if the applicant was not qualified, he ought not to have been shifted from the Administrative Cadre to the Analyst Cadre. It was further submitted that the NTRO has wrongly placed reliance on Department of Expenditure OM dated 18.09.2013, which is applicable only in those cases where the post has remained vacant due to non- availability of suitable candidates, and when the post has been kept vacant, in spite of the applicant not being promoted, the respondents 12 OA No-345/2015 cannot be allowed to take advantage of their own wrong doings. It was submitted that the judgments and orders cited by the respondents are distinguishable, and are not applicable to the instant case, and it was prayed that the OA be allowed, and respondents be directed to conduct the DPC of the applicant, and grant him two fold promotions.
19. Heard. The case was argued by both the learned counsel in detail, and in his submissions the learned counsel for applicant relied upon Para-7 of the Supreme Court judgment in P.N. Premachandran vs. State of Kerala and Others (2004) 1 SCC 245, which states as follows:-
"7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect."
20. On their part, the respondents produced, in a sealed cover, the RRs framed by them for the Analyst Cadre, which we have perused. They carry the categorization of being "Restricted", and had been issued on 14.11.2011. On perusal, we find that in the Schedule to the said RRs, the Notification concerned provided for the posts of (1) Chief Analyst, (2) Senior Analyst, (3) Analyst-F, (4) Analyst-E, (5) Analyst-D, (6) Analyst-C, (7) Analyst-C, (8) Analyst- 13
OA No-345/2015 Grade-1, (9) Analyst Grade-II. We are satisfied that these are proper RRs, which came into force on the date of issuance of the Notification dated 14.11.2011, as stated in Para-1 (2) of that Notification. There is no indication that this RRs Notification was ever a Gazette notified, neither does the Notification show anywhere in regard to it having been finalized in consultation with UPSC/DoP&T/Ministry of Finance etc, or not. However, we are left with an inescapable conclusion that these RRs were duly notified, in so far as for the purpose of deciding the present OA.
21. Therefore, as a result, the prayer at Para-8 (i) of the O.A., which as it is, was in the nature of a public interest litigation, and not amenable to judicial determination by this Tribunal, stands satisfied. Even though in this prayer portion, the applicant had stated that neither he nor other officers in the Analyst Cadre should be denied promotion, but this was not a cause of action, which could accrue to the applicant alone, and, therefore, we need not comment any further in respect of the relief as sought for in Para-8 (i) of the OA.
22. In regard to Para-8 (ii) of the prayer of the O.A., reproduced above, it is clear that there is no concept of ante-dated seniority, and in that we agree and concur with the observations of the Bangalore Bench of this Tribunal in OA No.190/2013 Shri Govardhana vs. Chairman and Managing Director of BSNL and Others (supra), as cited by the respondents in reply to Para 4.21 of the OA, and also the order of another Coordinate Bench dated 16.01.2015 in N.C. Bhuyan vs. Union of India & Others (supra), and we are also bound to follow the law, as laid down by the Hon'ble High Court through its judgment dated 29.11.2010 in Union of India vs. 14 OA No-345/2015 Vijender Singh and Others (supra), and related Writ Petitions, Paragraphs 42 & 43 of which have been relied upon by the respondents in the counter reply.
23. It is, therefore, clear that the prayer as made by the applicant at Para-8 (ii) of the OA also cannot be granted to him by way of issuing any directions to the respondents to allow any antedated seniority to the applicant.
24. The applicant had joined the NTRO at a time when it was in initial formation/constitution stage, and even the number of posts, and the RRs for the posts concerned, had not been decided and formulated. Due to his Army experience, he was found senior enough to occupy a particular level of post, but when that isolated post was adjusted in a newly created cadre, he was found not to possess the required qualifications for his upward mobility and promotion in that cadre, in which his isolated post had been merged. This has led to heartburn for the applicant, and delay in consideration of his case for promotion. However, the respondents have clearly and fairly stated that they intend to hold a DPC, by making use of the Saving Clause in the concerned RRs, in order to accord promotion to the applicant. It cannot be said that in doing so, the respondents have acted in any mala fide manner, since they have gone about obtaining even special approvals for doing so. 15
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25. However, as was held by a Coordinate Bench at Hyderabad Bench of this Tribunal, in the case of A. Venkatmuni vs. Union of India (OA No.1917/2000 decided on 06.09.2001), fortuitous circumstances are common in service, and that fortuitous circumstances are a part of one's service career. It was a fortuitous circumstance in the case of the applicant before us that he was inducted into a newly created organization, but did not possess the requisite technical expertise to move ahead in the stream of the technical posts of Analysts in which his isolated post was ultimately merged and assigned at a particular level. It is only because of that fortuitous circumstance that the applicant has had to face a delay in getting his promotion, leading him to first file a Writ Petition before the High Court, and then the present O.A. before this Tribunal.
26. However, since we find no merit in the prayers made by the applicant in his OA, and after having perused the RRs of NTRO produced before us in sealed cover, being satisfied that the respondents have properly framed RRs for providing career advancement to all technical personnel of their organization, we refuse to interfere with the process now being adopted by the respondents, to somehow accommodate the case of the applicant, under the Saving Clause of the RRs, in order to accord him some promotion, even though he does not qualify under the requisite technical qualifications.
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27. In the result, the OA is disposed of with the above observations, but there shall be no order as to costs.
28. Recruitment Rules produced in the sealed cover are ordered to be returned by the Registry in the same manner, in a sealed cover, to the learned counsel for the respondents, under due receipt.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.