Central Administrative Tribunal - Chandigarh
Amit Lather vs Comptroller And Auditor-General Of ... on 18 December, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No. 60/241/2019
Reserved on: 10.10.2024
Pronounced on: 18.12.2024
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
Amit Lather S/o Sh. Jasbir Singh Lather Aged 34 Working as, Senior
Auditor in Olo Principal Accountant General (Audit), Haryana,
Chandigarh R/O #1232/B, Sector-41/B, Chandigarh. 160036. (Group
'C').
...Applicant
(BY ADVOCATE: Mr. Rohit Seth)
VERSUS
1. Comptroller and Auditor General of India, 10, Bahadur Shah Zafar
Marg, New Delhi - 110002.
2. The Director General (Exam), O/O CAG, 10, Bahadur Shah Zafar
Marg, New Delhi - 110002.
3. The Principal Accountant General (Audit), Haryana, Audit Bhawan,
Plot No. 4&5, Sector 33-B, Chandigarh 160020.
4. The Deputy Accountant General (Admn.) O/O The Principal
Accountant General (Audit), Haryana, Audit Bhawan, Plot No. 4&5,
Sector 33-B, Chandigarh 160020.
5. The Senior Audit Officer, (Entt III & Exam), O/O The Principal
Accountant General (Audit), Haryana, Audit Bhawan, Plot No. 4&5,
Sector 33-B, Chandigarh 160020.
...Respondents
(BY ADVOCATE: Mr. I. S. Sidhu)
O R D E R(Oral)
Per: RAMESH SINGH THAKUR, MEMBER (J):
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 against Order dated 05.12.2018 (Annexure A-1) vide which the respondent No.5 cancelled the application submitted by applicant for registration to take the last left over paper of Subordinate Audit/Account Service (SAS) Examination to attain eligibility for promotion as Assistant Audit Officer (AAO) which was to be held in December 2018, against order 2 dated 11.02.2019 (Annexure A-2) cancelling the SAS papers passed by applicant being PC-3, PC-8, PC-22, PC-2 and PC-16 in March 2017, September 2017 and May 2018, against communication dated 22/28.01.2019 (Annexure A-3) from CAG reiterating that as per circulars earlier issued individual had to complete 2 years service in a particular field office and it is wrong to say by Pr.AG (Audit), Haryana that no specific instructions were available earlier for candidates on mutual transfer. It was further directed to treat the result of examination in which the individuals appeared prior to completion of two years as null and void by impliedly giving retrospective effect to Circular dated 19.11.2018 and intimate to the Office of Sr. Administrative Officer (Exam) and for issuance of direction to the respondents to restore the result of the examinations of paper PC-3, PC-8, PC- 22, PC-2 and PC-16 passed by the applicant in March 2017, September 2017 and March 2018 itself and not to apply the new condition incorporated in Circular dated 19.11.2018 and communication dated 22/28.01.2019 retrospectively and allow applicant to appear in paper PC-14 which is the only paper in the Audit/ Audit Service which is left to be cleared by him. He is seeking the following relief:
(i) Quash Order dated 05.12.2018 (Annexure A-1) vide which the respondent No.5 cancelled the application submitted by applicant for registration to take the last left over paper of Subordinate Audit / Account Service Examination to attain eligibility for promotion as AAO which was to be held in December 2018 on the ground that he has not completed two years of service in the present office as on 01.09.2018 which cut off date has no sanctity, by relying upon Clause 4 of Circular No.16 dated 19.11.2018 (Annexure A-20) issued by the Olo CAG for initiating the examination in question though applicant had completed two years in new office as on 3 03.10.2018 and as such the impugned order is without jurisdiction, arbitrary, whimsical, harsh, oppressive, result of abuse of power and falls within the teeth of Article 14 & 16 of Constitution of India apart from the fact that the impugned order itself is by incompetent authority, illogical and non speaking.
(ii) Quash Order dated 11.02.2019 (Annexure A-2) to the extent it relates to cancellation of the result SAS papers passed by the applicant being PC-3, PC-8, PC- 22, PC-2 and PC-16 in March 2017, September 2017 and May 2018 without any authority, without any notice or opportunity while relying upon order dated 05.12.2018 and reiterating the condition of having of two years off service in the present office before appearing in the examination whereas there was no such condition at the time of appearing in the exam for which the respondents permitted applicant from time to time by processing his case.
(iii) Quash communication dated 22/28.01.2019 (Annexure A-3) from CAG reiterating that as per circulars earlier issued individual had to complete 2 years service in a particular field office and it is wrong to say by Pr.AG (Audit), Haryana that no specific instructions were available earlier for candidates on mutual transfer. It was further directed to treat the result of examination in which the individuals appeared prior to completion of two years as null and void by impliedly giving retrospective effect to Circular dated 19.11.2018 and intimate to the Office of Sr. Administrative Officer (Exam).
(iv) Direct the respondents to restore the result of the examinations of paper PC-3, PC-8, PC-22, PC-2 and PC- 16 passed by the applicant in March 2017, September 2017 and March 2018 itself and not to apply the new condition incorporated in Circular dated 19.11.2018 and communication dated 22/28.01.2019 retrospectively and allow applicant to appear in paper PC-14 which is the only paper in the Audit Service whichis left to be cleared by him out of total 9 Papers for being eligible for consideration and promotion as AAO and promote him as such as per his date of clearance of examination along with others with all consequential benefits."
2. The brief background of the case are that the applicant joined service on 01.01.2013 (FN) pursuant to his appointment vide order 4 dated 01.01.2013 (Annexure A-4) as an Auditor under Principal Director of Audit, Economic and Service Ministries. The applicant completed his probation as on 31.12.2014. It is pleaded by the applicant that he cleared Preliminary Test for SAS ( Sub-ordinate Audit Service). The result of which was published on 31.03.2015. He submits that for further promotion as Assistant Audit Officer there are 9 papers in mains exam for entering the Audit Service having two groups (Group-1 & Group-II) (Six attempts). If an officer clears 50% Papers i.e 5 Papers in any of Group-I & II in six chances then he get four more chances in continuation to clear the rest of the left out papers or else he can never appear in the exam for entering Audit / Accounts Service. Applicant has already availed five chances to clear 8 papers. He submits that as per Para 9.2.6 of C&AG's MSO (Admn) Vol-l-reg which governs the eligibility for promotion to Accounts and Audit Service, three years of service is required but due to shortage in cadre of AAO's the aforesaid period has been relaxed to two years since 2011.
3. He submits that he was relieved from office on 30.09.2016 (AN) consequent upon his mutual transfer with one Sh. Rajnish Kumar, Senior Auditor and joined in Olo Principal Accountant General (Audit), Haryana, Chandigarh on 03.10.2016 FN. He pleaded that according to point No. vi of Mutual transfer Guidelines dated 06.06.2013 (Annexure A-8), the mutual transfer may also be considered during probation. However, in such cases where the mutual transfer has been permitted during probation period, the concerned officials will have to pass the requisite departmental examinations in the new office. The number of chances already 5 availed to pass the said examination in the previous office, along with the exemptions, if any, would be carried forwarded in the new office and point No. vii the requisite length of service for promotion to the next higher grade would be required in the new office i.e. two years of service as Senior Auditor. However, for the purpose of MACP, the service rendered in the old office may be taken into consideration. He submits that the circular dated 25.01.2017 (Annexure A-9) was issued by office of CAG with regard to relaxation in provisions contained in Para 9.2.6 of CAG's MSO (Admn) Vol-l-reg wherein service period was relaxed from three years to two years for appearing in Audit Service Exam for post of AAO in view of shortage in cadre of AAO's, Circular No. 3 dated 17.02.2017 (Annexure A-10) and Circular No. 13 dated 17.08.2017 (Annexure A-11) and Circular No. 05 of 2018 dated 16.04.2018 (Annexure A-12), there was no condition of having completed two years of service after joining the new office and as such the applicant applied to appear for the examination for entering into Audit Service. As per point No. 9.2.3 of the CAG's Manual Standing Order (Admn) Vol-l-reg which governs field of further promotion in Subordinate Audit and Accounts Service Examination (relevant extract annexed herewith as Annexure A- 13), the Principal Accountants General of Audit may permit the candidates in their offices to appear in the appropriate branch of the Subordinate Audit Services (SAS) Examination provided they are otherwise eligible to take the examination. Hence there is a system of checks and balances and under no circumstances can an officer fill a form, appear in exam by being issued a roll number with wrong particulars 6 or being ineligible. He submits that in March 2017 the applicant cleared PC-3, PC-8 & PC-22 papers. Further in September (Main) 2017, the applicant cleared PC-2 paper and in March 2018 he cleared PC-16 paper. As per the earlier provision for relaxation being followed by the Olo CAG from the years 2011 to 2017, an office order dated 18.01.2018 (Annexure A-19) was issued but the O/o CAG reiterating the earlier provision of relaxation of requisite service for promotion as AAO as two years instead of three years due to shortage in the cadre of AAO's. The respondents issued Circular No. 16 dated 19.11.2018 (Annexure A-20) for conducting further examination Subordinate Audit / Account Service Examination 2018. He submitted that he being eligible filled the form to clear paper PC- 14 which is the only paper in the Audit Service which is left to be cleared by him out of total 9 Papers, for becoming eligible for further promotion as AAO.
4. He alleged that the respondents issued order dated 05.12.2018 (Annexure A-1) vide which they cancelled the application for registration of applicant to take the examination to be held in December 2018 on the ground that he has not completed two years of service in the present office as on 01.09.2018 as required under the Circular of 2018 issued by the O/o CAG for initiating the examination in question. The respondents passed another order dated 11.02.2019 (Annexure A-2) cancelling the SAS March 2017, September 2017 and May 2018 papers being PC-3, PC-8, PC-22, PC- 2 and PC-16, reiterating the condition of having of two years of service in the present office before appearing in the examination. The aforesaid order has been passed in the light of communication 7 dated 22/28.01.2019 (Annexure A-3) from CAG reiterating that as per circulars earlier issued individual had to complete 2 years service in a particular field office and it is wrong to say by Pr.AG (Audit), Haryana that no specific instructions were available for candidates on mutual transfer. It was further directed to treat the result of examination in which the individuals appeared prior to completion of two years as null and void and intimate to the Office of Sr. Administrative Officer (Exam).
5. In reply to the averments made by the applicant in the O.A the respondents submits that the applicant joined the office of respondent no.3 on mutual transfer with effect from 03.10.2016 from the office of Director General Service of Audit Economic and Ministries, New Delhi. In the pervious office the applicant had completed Probation period of 2 years on 31.12.2014. He also passed SAS (Prel.) examination held during February 2015 and appeared twice in SAS (Main) examination in that office. Vide circular dated 19/11/2018 guidelines for on-line registration of candidates for Main SAS examination September 2018 were circulated, which contained specific mention in para 4 that "special care may be taken in case of candidates join on mutual transfer who are only eligible after completion of two years of service in the new office subject to clearing Probation if not already completed." He submits that as per eligibility criteria to appear in SAS examination stipulated in para 9.2.6 of the CAG's MSO (admin) Vol:1 only persons who have put in minimum of three years of continuous service in one or more of the following capacities in a particular field office of IA&AD and who had successfully completed their period of 8 Probation are eligible to appear for the examination. Considering the deficit in the field offices, the condition of three years service was relaxed to 2 years and it was mentioned that competent authority to allow the confirmed officials with 2 years continuous service in one or more post(s) in a particular field office to appear in SAS examination from 2011 to 2016. The applicant who joined the office of respondent no.3 on mutual transfer with effect from 03.10.2016, completed 2 years of service in that office with effect from 2/10/2018. As such, chances availed appear in to SAS examination (March 2017 Supplementary Exam, September 2017 Main Exam and May 2018 Supplementary exam) and 5 papers cleared (PC-2, PC-3, PC-8, PC-16 and PC-22) in those examinations before becoming eligible to appear in SAS examination in the office of respondent no.3 were treated null and void vide order dated Annexure A-3 and the applicant has not challenged the condition of completion of two years of service on mutual transfer, in the new office as mentioned in Annexure A-9 and A-20. It is further submitted that there is no retrospective effect given to the circular dated 19/11/2018 Annexure A-20, in view of the submissions made. It is submitted that relaxation of one year to appear in SAS (Main) examination is issued every year and the candidate completing continuous service in a 2 years of particular office and have successfully completed probation period are eligible to appear. The claim of the applicant regarding non-mention of cut-off date in Circular Annexure A-20 is of no consequence since he did not complete 2 years of service in the office of respondent no.3 on mutual transfer.
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6. The applicant filed rejoinder submitting that the circular dated 19.11.2018 referred in the reply is applicable since its publication/approval. This circular does not contain any instructions for implementation with retrospective effect. Moreover, the applicant had joined the office at Chandigarh on 03-10- 2016 and accordingly completed the tenure of two years on 02-10-2018 i.e, well before the issuance of this circular and it is not applicable to the applicant. He submits that he was already appearing in SAS exams since March 2017 and the new instructions were issued only on 19-11-2018 so these instructions are not applicable in the case of applicant. As per original Para 9.2.6 of CAG's MSO (admin) Vol-l, "only persons who have put in minimum of three years of continuous service in one or more of the following capacities of IA & AD and who had successfully completed their period of probation are eligible to appear for the examination". The sentence "in a particular field office" is nowhere written in the original MSO. He submits that candidates who have completed 02 years of continuous service in any office under IA&AD were allowed to sit in the examination as per this policy. HQs have neither amended original MSO nor circulated any new policy about the change in the criteria of calculation of minimum service to sit in the SAS examination. The applicant submits that he had just submitted his willingness to appear in the examination and registration of the same has been done by the Administration itself after due scrutiny as per eligibility and if Administration was unable to interpret any circular or HQs was unable to change the ongoing policy correctly, then giving punishment to the candidate is not justified. In this context the applicant has already submitted that he 10 had completed continuous service of 3 years and 9 months on 30.09.2016 in his previous office as well as probation on 31.12.2014. Further the applicant had already qualified five papers (i.e. PC-3, PC-8, and PC-22 in March 2017 Supplementary Exam, PC-2 in September 2017 Main Exam and PC-16 in May 2018 Supplementary exam). He submits that the instructions vide which the appearance of applicant in examinations and the result thereof have been declared as null and void on the basis of circular dated 19-11-2018 which is not applicable in the case of applicant being prospective. He submits that the applicant does not have to challenge the condition as the aforesaid has come for the first time in circular dated 19.11.2018 and the same is prospective.
7. The arguments on behalf of the counsel for the parties have been heard and the documents annexed with the O.A has been perused.
8. From the pleadings itself, it is clear that the applicant joined service on 01.01.2013 as Auditor under the Principal Director of Audit, Economic and Service Ministries. The applicant has completed probation on 31.12.2014. The applicant cleared the preliminary test for SAS (Sub-ordinate Audit Service) which were passed on 31.03.2015. The main examination for entering the Assistant Audit Officer to Group-1 & Group-II which are to be cleared in 6 chances and if 50% papers are cleared in six chances then the employee will get four more chances in continuation to clear the rest of the papers. The applicant had already availed five chances to clear 8 papers. The contention of the applicant is that as per Para 9.2.6 of C&AG's MSO (Admn) Vol-I three years of service is required for eligibility for promotion to accounts and audit service. 11
9. The applicant was relieved on 30.09.2016 consequent upon his mutual transfer and joined in the new place of posting in the O/o. Principal Accountant General (Audit) Haryana, Chandigarh on 03.10.2016. The specific contention of the applicant is that as per guidelines of mutual transfer dated 06.06.2013 (Annexure A-8), the mutual transfer may also be considered during probation and the concerned officials will have to pass the requisite departmental examination in the new office. The contention of the applicant is that as per Circular dated 25.01.2017 (Annexure A-9) was issued by the office of CAG with regard to relaxation to provision contained in Para 9.2.6 of CAG's MSO (Admn) Vol.-I wherein service period was relaxed from three years to two years for appearing in Audit Service Exam for the post of AAO in view of the shortage in cadre of AAO. There was no condition of having completed two years of service after joining the new office.
10. As per this Order dated 18.01.2013 (Annexure A-19), the same was issued from the office of CAG reiterating earlier position of relaxation of requisite service for promotion as AAO as two years instead of 3 years.
11. Now vide Annexure A-20 dated 19.11.2018, the applicant applied for the same. The respondents has issued circular for conducting the further examination Subordinate Audit/Account Service Examination 2018. The applicant being eligible, filled up the form to clear paper PC-14 which is the only paper in the Audit Service which is left to be cleared by him out of total 9 papers, for becoming eligible for further promotion as AAO.
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12. Now respondents has issued impugned order dated 05.12.2018 (Annexure A-1) whereby they have cancelled the application for registration of applicant to taken the examination to be held in December 2018 on the ground that he has not completed two years of service in the present office as on 01.09.2018 as required under the Circular of 2018. As per Annexure A-2 dated 11.02.2019 the respondents have cancelled the SAS March 2017, September 2017 and May 2018 pepers being PC-3, PC-8, PC-22 and PC-16, reiterating the condition of having of two years of service in the present office before appearing in the examination.
13. The contention of the respondents on the other hand is that the applicant joined the office of respondent No.3 on mutual transfer with effect from 03.10.2016 from the office of Director General Service of Audit Economic and Ministries and as per para 4 of the circular dated 19.11.2018 (Annexure A-1) "special care may be taken in case of candidates join on mutual transfer who are only eligible after completion of two years of service in the new office subject to clearing probation if not already completed".
14. It has been specifically contended by the respondents that as per para 9.2.6 of CAG's MSO (Admin) Vol-1, only persons who have put in minimum of three years of continuous service in one or more of the following capacities in a particular field office of IA&AD and who had completed their period of probation are eligible to appear for the examination. On mutual transfer, the chances availed to appear in SAS Examination (March 2017 supplementary exam, September 2017 main exam and May 2018 supplementary exam) and 5 papers cleared (PC-2, PC-3, PC-8, PC-16 and PC-22) in those examinations 13 before becoming eligible to appear in SAS Examination in the office of respondent No.3 were treated null and void. The applicant has however contended that circular dated 19.11.2018 (Annexure A-20) does not contain any instructions for implementation with retrospective effect. Moreover, the applicant has completed two years of probation period on 02.10.2018, i.e., well before the issuance of the circular. So the circular is not applicable to the applicant.
15. Further the contention of the applicant is that the applicant had completed continuous service of 3 years and 9 months as on 30.09.2016 in his previous office as well as probation on 31.12.2014. The applicant has relied upon the order passed by this Tribunal in O.A No.812/2018 along with O.A No.809/2018 by CAT Allahabad Bench on 27.10.2020 titled as Pradeep Agrawal Vs. Union of India and others wherein the Tribunal has interpreted the Rule 9.2.6 of CAG's MSO (Admin) Vol.I wherein the Tribunal has relied upon the judgment of Hon'ble Apex Court in the matter of Union of India & others Vs. C.N. Ponnappan (1996) 1 SCC 524 and M.M. Thomas & Ors. Vs. Union of India & ors. (2017) 13 SCC 722 wherein it has been concluded by the Hon'ble Apex Court that acquired experience in the previous unit cannot be ignored.
16. The CAT Allahabad in Pradeep Agrawal (supra) held as under:
"10. Rule 9.2.6 of M.S.O. (Annexure CR-1) reads as under:-
"CAG's Manual of Standing Orders (Administrative) Vol.I (Third Edition) Only persons who have put in minimum of 3 years continuous service in one or more of the following capacities in a particular field office of IA&AD and who have successfully 14 completed their probation period are eligible to appear for the examination."
11. It is also brought out that the requirement of three years mentioned in Rule 9.2.6 has been relaxed to two years in the relevant period under consideration of the present original application.
12. It is undisputed that the applicants are otherwise eligible to appear in the SAS examination except for two years period of working in the new office i.e. North Eastern Railway.
13. The SAS examination is being conducted by C&AG and not by individual department/unit. This examination is conducted to test the competency of its employees. For this purpose C&AG has specified eligibility conditions as per rule 9.2.6 of MSO. The respondent department have placed reliance on the words "particular field office" to mean that the applicant should have completed two years in North Eastern Railway Gorakhpur.
14. There is no dispute regarding assignment of bottom seniority at the new unit when a person goes on transfer from one unit to another at his own request. The dispute is only regarding the eligibility criterion of completing three years (relaxed to two years in the present case) in the new unit.
15. The issue of considering the service rendered in the previous unit is no more res-integra. Hon'ble Supreme Court in catena of judgments has held that the service in the previous unit cannot be ignored for the purpose of eligibility [see Renu Mullick Versus Union of India and Others, (1994) 1 SCC 373 and Pratibha Rani & others Vs. Union of India & others in Civil Appeal No. 3792/2019 arising out of SLP No. 31728/2018].
16. In Union of India & others Vs. C.N. Ponnappan (1996) 1 SCC 524, Hon'ble Apex Court has decided as Under:-
"The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into 15 account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred."
17. Hon'ble Supreme Court in the matter of M.M. Thomas & Ors. Vs. Union of India & ors. (2017) 13 SCC 722 has held as under:-
"Having heard the learned counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years' regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years."
18. Conclusions of Hon'ble Supreme Court in M.M. Thomas (Supra) is very clear that acquired experience in the previous unit cannot be ignored. We find parity in the words "in the respective regions" in the above cited case and "particular field office" in the present case.
17. In the instant case, the applicant had joined his service on 01.01.2013 and completed his probation on 31.12.2014. The applicant has cleared the preliminary test for SAS and thereafter had appeared in exams for entering the Audit Service having two groups (Group -1 & Group-II) examinations and has cleared papers except one paper PC-14 and ultimately on the basis of mutual transfer, the applicant has joined in the office of Principal Accountant General 16 (Audit), Haryana on 03.10.2016. Moreover, Annexure A-1 has been issued on 05.12.2018, wherein it has been stated that at least two years of service is required at the new place of posting.
18. Hence, this Tribunal is of the view that this case is covered by the CAT Allahabad Bench in the matter of Pradeep Agrawal (supra).
19. Resultantly, in view of the law settled by CAT Allahabad Bench in the matter of Pradeep Agrawal (supra) and also the law settled by Hon'ble Apex Court, the Annexures A-1, A-2 and A-3 are quashed and set aside. Respondents are directed to restore the result of the examination of the paper PC-3, PC-8, PC-22, PC-2 and PC-16 passed by the applicant in March 2017, September 2017 and March 2018 itself and the applicant shall be allowed to appear in PC-14 which is only paper in the Audit Service which is left to be cleared by the applicant out of total 9 papers. If the applicant clears PC-14, the respondents are directed to consider the applicant being eligible, as per Rules, to be considered for promotion to the post of AAO and all the consequential benefits shall follow.
20. With these observations, this O.A is finally disposed of.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
bp