Central Administrative Tribunal - Delhi
Sh. Saurabh Kumar vs Director General on 21 November, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1427/2012
Reserved on : 07.11.2013.
Pronounced on : 21.11.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Saurabh Kumar,
S/o Sh. Anand Prakash Sinha,
R/o C-5, Type-III, ESI Colony,
Sector-15, Rohini,
New Delhi. . Applicant
(through Sh. L.R. Khatana, Advocate)
Versus
1. Director General,
Employees State Insurance Corporation,
Panchdeep Bhawan,
Comrade Inderjeet Gupta (CIG) Marg,
New Delhi-2.
2. Sh. Shashi Bhushan Kumar,
Assistant,
Northern Region Office,
Employees State Insurance Corporation,
Rohini, New Delhi. .. Respondents
(through Ms. Rekha Palli, Advocate for R-1)
O R D E R
Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this O.A.:-
That this Honble Tribunal may be pleased to declare the impugned inaction of the respondent No.1 to prepare a seniority list of the cadre of LDC (which is a unified cadre) as illegal, arbitrary, unreasonable, discriminatory, mala fide in law and contrary to the relevant rules and instructions and the law and direct the respondent No.1 to prepare a seniority list of the cadre of the LDC in the ESIC and on the basis of the seniority list so prepared to give the consequential benefit of further promotion(s), pay and allowances etc. with reference to the applicants juniors.
2. Facts of the case are that the applicant who is an employee of Employees State Insurance Corporation (ESIC) and is presently working as UDC in one of the offices of ESIC is aggrieved by the fact that person who was junior to him at the time of recruitment through an All India examination has been promoted to the post of Assistant whereas the applicant is still working as UDC. According to the applicant this promotion has been granted to his junior (respondent No.2) based on local seniority and this action of the official respondents has been questioned by the applicant who has sought directions to the official respondents to prepare an All India seniority list of LDCs and make promotions on the basis of that list.
2.1 The applicant has stated that ESIC is a Statutory Body established under the Employees State Insurance Act,1948 and Director General is its Chief Executive Officer. Its Headquarter is in Delhi and it has offices in various other cities apart from Delhi. The conditions of service of employees are governed by ESIC (Staff and Conditions of Service) Regulations, 1959 which are statutory in nature as having been framed in exercise of powers conferred by Employees State Insurance Act, 1948. The applicant has extracted the relevant Sections of the Act in his O.A. For our purpose, the following Sections are relevant, which are extracted below:-
2(d) Director General means the Director General of the Corporation.
2(g) Post means a post under the Corporation and a post shall be deemed to be post in Class I, Class II, Class III or Class IV, according as such post is specified in /Class I, Class II, Class II or Class IV in the First Schedule.
4. Appointing Authority All appointments to posts shall be made by the Director General:
Provided that the Standing Committee or the Director General may, by general or special order, delegate to any other authority or office to the Corporation, powers to make appointments to any post or class of posts other than posts in Class I and Class II. 2.2 `Further, the applicant has stated that respondent No.1 has framed Employees State Insurance Corporation (ESIC) (Recruitment) Regulations, 1965 and the ESIC (Lower Division Clerk/Adrema Operataor/Telephone Operator/Computor) Recruitment Regulations, 2006. He has stated that from these Regulations, it is clear that there is a combined cadre of a particular category of posts and there are no separate region-wise or office-wise cadres or sub-cadres provided for in the Statutory Rules or Regulations. In this regard, he has drawn our attention to Gazette of India Notification No. 1-1/1/60-Estt.I dated 03.04.1965 by which Regulations have been framed. Relevant Sections of these Regulations for our purpose are as follows:-
5. Eligibility of Appointment:
A candidate for appointment must be
(a) a citizen of India, or
(b) a subject of Sikkim, or
(c) a subject of Nepal, or
(d) a subject of Bhutan, or
(e) a Tibetan refugee who came over to India before the Ist January, 1962 with the intention of permanently settling in India or
(f) a person of Indian origin who has migrated from Pakistan with the intention of permanently settling in India.
Provided that a candidate belonging to categories (c), (d), (e) and (f) shall be a person in whose favour a certificate of eligibility has been given by the Central Government and if he belongs to category (f) the certificate of eligibility will be issued for a period of one year, after which such a candidate will be retained in service subject to his having acquired Indian citizenship.
NOTE: A candidate in whose case a certificate of eligibility is necessary may be admitted to the selection and he may also be provisionally appointed subject to necessary certificate being granted in his favour by the Government.
(2) A candidate for direct recruitment to that post should be within the age-limits specified as Schedule I and II to these Regulations in respect of this post.
Provided that no age-limits shall apply in the case of a departmental candidate.
NOTE : (1) The upper age limit may in exceptional circumstances and in the case of candidates belonging to Scheduled Castes and Scheduled Tribes and for bonafide displaced persons or any other class of persons, be relaxed to the extent and in the manner as may, from time to time, be specified by the Director General on the basis of directions issued by the Central Government from time to time.
(2) A departmental candidate admitted to a selection for direct recruitment under the age concession admissible under the above proviso or under any other concession granted for departmental candidates will not be eligible for appointment after submitting the application, he resigns from service either before or after his selection for appointment.
3. A candidate for direct recruitment to a post must possess the educational qualifications and experience etc. as specified in Schedules I and II to these Regulations in respect of that post.
4. A candidate must satisfy the appointing authority that his character and antecedents are such as to make him suitable for appointment to the service of the Corporation.
8. Conditions of Service:
The condition of service of an employee appointed to the service of the Corporation shall be laid down in the Employees State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 and such other orders as may be passed by the Corporation or the Standing Committee of the Corporation, from time to time.
21. Direct Recruitment:
(1) Recruitment shall be made by either the following methods:-
(a) by open competitive examination.
(b) by selection by a Departmental ___ (2) Recruitment to the following categories shall be made by open competitive examination:
(a) Managers Grade II and Insurance (all candidates shall initially be appointed Inspectors).
(b) Personal Assistants.
(c) Stenographers.
(d) Lower Division Clerk/Adrema Operator/Computor/Telephone Operator.
Provided that an interview by a Departmental Committee may be held in respect of recruitment categories of the posts as the Director General from time to time, specify. Only candidates in the written test shall be called for interview.
(2)Recruitment to Class IV posts shall selection only. Another Notification was issued on 01.03.1997 whereby superseding the earlier Regulations the following were notified:-
Name of the post No. of Post Classification Scale of pay (Rs.) Whether selection or Non-Selection Post Age limit for direct recruits Whether benefit of added years of Service Admissible Educational & other qualification Reqd. for Direct Recruits Whether Education qualification prescribed for Direct Recruitment will apply in the case of Promotee Head Clerk Assistant 2513* (1997) *Subject to variation Dependent on Work Load. Group C Ministerial 1400-40-1800-EB-50-2300 Non-Selection N.A. N.A. N.A. N.A. Period of promot-ion if any Method of Rectt. Whether by Direct Rectt. Or by Promotion or by Deputation/Transfer & % of the Vacancy to be filled by Various Methods In case of Rectt. By Promotion/Deputation/Transfer, Grades from which Promotion/Deputation/Transfer to be Made. If a DPC Exists in its Composition Circumstances in which UPSC to be consulted in ___Rejection.
N.A. (1) 75% by Promotion on the basis of Seniority Subject to Rejection of Unfit.
(2) 25% by Promotion on Merit on the basis of Departmental Competitive Examination Confined to UDCs with 3 years of Regular Service. PROMOTION From UDC/UDC-Cashier with Three Years of Regular Service in the Grade.
THROUGH COMPETITIVE DEPARTMENTAL EXAMINATION By Limited Competitive Departmental Examination Confined to UDC/UDC Cashier with three years Regular Service to the Grade. GROUPC DPC FOR PROMOTION
1. Regional Director Gr.A/B/Director Gr.A Director(Medical)Chairman
2. Joint Director(Admn./Ins./Fin./VIG/D.E)/Dy. Director(Admn./Ins/Fin./trg.)
3. One Representative from the Employees Provident Fund Organization of Equivalent status Member. N.A. Further, he has drawn our attention to Gazette of India No. 12(11)-I/2002-Estt.I dated 13.03.2006, relevant portion of which reads as follows:-
Name of the post Numbe of post Classification Scale of pay (Rs.) Whether selection or non-selection post Age limit for direct recruits Whether benefit of added years of service admissible under Rule 30 of the Central Civil Service (Pension) Rules, 1972 Educational & Other qualifications required for direct recruits.
1 2 3 4 5 6 7 8 Lower Division Clerk/Adrema Operator/Telephone Operator/Computor *2321(2006) *Subject to variation dependent upon work load Group C Non Ministerial 3050-75-3950-80-4590 Non selection 18-27 years (Relaxaable for Government servants and employees of Employees State Insruance Corporation in accordance with the instructions and orders issued from time to time) NOTE: The crucial date for determining the age limit shall be the closing date for receipt of application from candidates of other states in India (and not the closing date prescribed for those in Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim, Ladakh Division of Jammu and Kashmir State, Lahaul and Spilt District and Pang Sub Division of Chamba District of Himachal Pradesh, Andaman and Nicobar Islands or Lakshweep). No Essential
1. Higher Secondary pass (Pass in 12th standard) or equivalent from a recognized Board.
2. Knowledge of typewriting with a speed of 30/25 words per minute in English/Hindi respectively.
3. Working knowledge of computers including use of Office Suites and databases.
2.3 On the basis of the above the applicant argued that from the Regulations it is clear that there is only one cadre of LDC which has a strength of 2321 and no sub-cadres or regional cadres have been notified. Therefore, inaction of the respondents in not preparing a Combined All India Seniority list of LDCs and resorting to giving promotions on the basis of local seniority is contrary to the Statutory Rules and Regulations.
2.4 The applicant has further stated that he was selected through an All India Competitive Examination of LDCs in which he had obtained rank No. 342 and the respondent No.2 was junior to him in the merit list as his rank was No. 690. On the basis of this, he joined as LDC in the office of Director (Medical) Delhi on 04.11.2003 whereas respondent No.2 was assigned to some other office of ESIC. However, now respondent No.2 on the basis of his position in his office has been promoted as Assistant whereas the applicant is still working as UDC.
3. In their reply, the respondent No.1 have denied that cadre of LDCs in ESIC is a unified cadre. According to them it is a decentralized cadre having regional seniority. Further, the employees of one region are not transferred to another region and each region has a separate sanctioned strength. As per the Vth Schedule of ESIC (Staff and Conditions of the Service) Regulations, 1959 the appointing authority in the case of LDC is the respective Regional Directors/Director(Medical)Delhi/MS/D(M) Noida/JD-V Headquarters. Further, they have stated that the applicant joined as LDC on 04.11.2003 and his appointing authority was Director (Medical) Delhi who prepared/finalized his seniority in the cadre of LDCs on 26.04.2004. This seniority was finalized by circulating the provisional seniority list and inviting objections thereon. The applicant never raised any objections at that stage and thus accepted the seniority list drawn by the Director (Medical) Delhi. On the basis of same seniority list the applicant was also promoted to the post of UDC. Thus, having accepted the seniority list prepared by the Director (Medical) Delhi and having accepted the promotion as UDC based thereon, it is now not open to the applicant to question the same and that also after a delay of about 8/9 years. Therefore, the O.A. deserves to be dismissed.
4. We have heard the submissions of both sides and have perused the material on record.
5. The main contention of the applicant is that the Statutory Rules and Regulations provide only for a combined All India cadre of LDCs and therefore the inaction of respondents in not preparing an all India Seniority List is contrary to the Rules and Regulations. He has also questioned the promotions made on the basis of local seniority. In this regard, he has cited the judgment of the Hoble Supreme Court in the case of (i) Dr. Rajinder Singh Vs. State of Punjab and Others, (2001) 5 SCC 482 and (ii) M.P. Ramgarhia and Another Vs. State of Punjab and Ors., (2005)12 SCC 426. In both these cases it has been held the Statutory Rules and Regulations are having primacy over any Executive Instructions issued by the authorities. The applicant argued that since Statutory Rules and Regulations do not provide for any creation of sub cadre, the action of the respondents is not tenable being contrary to these Rules and Regulations. He has also relied on the judgment of the Apex Court in the case of Ajit Singh II Vs. State of Punjab, (1999) 7 SCC 209 to state that the right to be considered for promotion and the seniority attached to such promotion is an important facet of Fundamental Right guaranteed under Article 16(1). On the same issue he has relied on another judgment of the Apex Court in the case of H.S. Venkani Vs. State of Gujarat, (2010) 2 SCC 301 to say that seniority is a civil right which has an important and vital role to play in ones service career. He has cited yet another judgment of the Apex Court in the case of S.B. Bhattacharjee Vs. S.B. Majumdar & Ors., (2007) 10 SCC 513 to state that he has fundamental right to be considered for promotion.
5.1 The respondents, on the other hand, have relied on the judgment of Honble High Court of Delhi in the case of B.L. Bishnoi & Ors. Vs. UOI & Ors., (WP(C) No. 4476/2007) decided on 22.10.2008 which dealt with the case of Sub-Inspectors of Railway Protection Force who were recruited on all India basis but were assigned two different zones and also promoted zone-wise to the rank of Inspectors. In that case it was held that for the post of an Inspector there could not have been inter-zone transfers and the transfer affected on alleged compassionate grounds are contrary to the Standing Order No. 70 and are thus, null and void and have to be quashed. If the transfer has to be affected the person would have to be at the bottom of the list. The respondents on the basis of his cited case tried to explain that even when recruitment took place on All India basis zonal cadres are permissible and promotions based on zonal seniority are acceptable.
6. In our opinion, the contention of the applicant that Statutory Rules and Regulations hold supremacy over any Executive Instructions cannot be disputed. Such Rules and Regulations will have over riding effect over any Executive Instructions. It also cannot be disputed that in the Regulations only one combined cadre of LDCs has been provided for. The argument of the respondents that Regional Directors etc. are the appointing authority of LDCs does not come to their rescue as these authorities are only exercising the delegated powers of Director General. Thus, it appears that while the Statutory Rules and Regulations provide only for a Combined cadre of LDCs the Respondents Organization is having practice of having regional cadre of LDCs with different appointing authorities. They have also been maintaining the Regional Seniority List and also making promotions on the basis of local seniority list. This appears to be a long standing practice in the respondents organization but this is not in accordance with their Rules & Regulations. The Honble Delhi High Court judgment cited by the respondents cannot be of any help to them since in that case the Recruitment Rules permitted zonal cadres.
6.1 However, as far as the applicant is concerned although he was appointed on the basis of All India Exam, he was assigned to the office Director (Medical) Delhi which he readily accepted. He also did not raise any objection to the provisional seniority list of LDCs that was circulated by Director (Medical) Delhi in the year 2004. He also did not challenge the final seniority list that was subsequently issued in the same year. Further, he also accepted promotion to the post of UDC based on this seniority. Therefore, even though the action of the respondents in giving promotion on the basis of a local seniority is not in accordance with the Statutory Rules and Regulations, in our opinion, the applicant has no right to question the same. He has accepted this position since 2004 and has also accepted benefits flowing out of the same. Therefore, we cannot now permit him to question the same.
7. On the basis of above, we come to the conclusion that the relief asked for by the applicant cannot be granted to him. The O.A. is dismissed. No costs.
8. However, before we part with this case, we would like to advise the respondents to consider suitable amendment in their Rules and Regulations to bring them in accordance with the practice followed by them.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/