Central Administrative Tribunal - Hyderabad
M.N.Rajendran vs Union Of India Held That The Fixation Of ... on 4 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH: HYDERABAD
O.A.No.4 of 2006
Date of Order:04.12.2008
Between:
1. M.N.Rajendran, s/o Shri M.S.Narasimhan,
Occ:UDC, Survey of India, Andhra Pradesh
Geo-Spatial Data Centre, CST & MP Campus,
Uppal, Hyderabad-500 039.
2. P.K.Prathibha, w/o R.Santhosh Kumar,
UDC, Survey of India, Andhra Pradesh
Geo-Spatial Data Centre, CST & MP Campus,
Uppal, Hyderabad-500 039. ..Applicants
a n d
1. Union of India, rep., by its Secretary,
Dept. of Science & Technology,
M/o Science & Technology, New
Mehrauli Road, New Delhi.
2. The Surveyor General of India,
Survey of India, Hathibarkala Estate,
Dehra Dun-248 001.
3. The Additional Surveyor General,
Survey of India, Andhra Pradesh Geo-
Spatial Data Centre CST & MP, Campus
Uppal, Hyderabad-500 039. ..Respondents
Counsel for the Applicants : Mr.A.Raghu Kumar
Counsel for the Respondents : Ms.N.Shakti, Addl. CGSC
CORAM:
THE HON'BLE MR.JUSTICE P.LAKSHMANA REDDY , VICE CHAIRMAN
THE HON'BLE MR.R.SANTHANAM, MEMBER (ADMN.)
: ORAL ORDER :
(As per Hon'ble Mr.Justice.P.Lakshmana Reddy, Vice Chairman) Heard the learned Counsel Mr.A.Raghu Kumar for the Applicants and the learned Standing Counsel Ms.N.Shakti for the Respondents.
2. This application is filed challenging the revised gradation list in the cadre of UDCs working in Survey of India.
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3. The relevant facts in brief are as follows:
The applicants herein were originally appointed as Lower Division Clerks during the years 1987 and 1988 respectively after due selection by the Staff Selection Commission. The next promotion for LDC in the department is UDC. The method of promotion to UDC is only by way of promotion to an extent of 75% on the basis of seniority-cum-fitness viz., by way of DPC and the remaining 25% is by way of conducting Limited Departmental Competitive Examination (LDCE) for the LDCs, who have completed three years of continuous service. In the year 1996, there arose 154 vacancies out of which 115 posts were earmarked for DPC promotees and 39 were earmarked for LDCE promotees. Process of selection was initiated for filling up those posts in the said ratio of 3:1 in the year 1996 itself. DPC was conducted for 115 posts and LDCE examination was also conducted in the same year i.e.,1996 in pursuance of notification dated 16.8.1996. But the results of LDCE examination were declared on 14.3.1997, whereas the results of DPC were declared in September 1996 itself. DPC promotees were appointed against their quota of 115 vacancies in 1996 itself, whereas the LDCE promotees were given postings on 7.4.1997 against their quota of 39 UDC posts. Later in the year 1999, the gradation list was prepared as on 1.1.1999 for all the 154 promotees fixing inter-se seniority among DPC promotees and LDCE promotees at the ratio of 3:1 on rotation basis and the same was circulated to all the promotees. Same gradation list was continued as on 1.1.2000 and as on 1.1.2001. But, vide orders dated 16.7.2002, the respondents found that the gradation list of UDCs as on 1.1.1999, 1.1.2000 and 1.1.2001 were erroneously prepared and revised those gradation list with effect from 1.1.2002 putting all the DPC promotees en block above the LDCE promotees. On account of such revision of the gradation list, the seniority of the .........3 3 applicants was very much effected as they were brought down below all the DPC promotees, though they were earlier shown at Serial Nos.8 and 36 among promotees promoted in pursuance of the notification dated 16.8.1996. The applicants submitted representations seeking for revision of their seniority stating that their seniority was originally fixed rightly and that without notice, their seniority was altered. The respondents rejected their representations on 28.3.2005 by way of impugned order. They stated that the seniority of UDCs in Survey of India cannot be determined as per 3:1 ratio and seniority list of UDCs shall be determined by guidelines of the Ministry's letter dated 19.6.1992. Aggrieved by the same, the applicants filed the present OA challenging the rejection order on the following grounds:
(i) The seniority of the applicants as originally fixed in the years 1999, 2000 and 2001 by rotation of vacancies as per the quota reserved for filling the 25% quota of the vacancies in the grade of UDC through Limited Departmental Competitive Examination (LDCE) is very much correct and as per rules. The Rule 6 of C.O. 437 (Adm.) provides for 25% of the vacancies in the grade of UDCs to be filled by Limited Competitive Examination to Lower Division Clerks of the Survey of India. Wherever quotas are reserved for filling up of vacancies between two or more channels (in this case DPC promotion and LDCE promotion) the relative seniority is fixed by rotation of vacancies in the ratios prescribed. rotation of vacancies is inherent in quota rule.
(ii) The fixation of relative seniority of DPC and LDCE promotees in the respective ratios by rotation of vacancies is followed in almost all Central Government Departments wherever quotas are reserved for promotion through LDCE. This rule is followed in respect of UDCS working in Central Secretariat Clerical Service (Including the office of 1st respondent) (Annexure-XVI); Railway .........4 4 Board Secretariat Clerical Service, Department of Tourism, Armed Forced Headquarters Clerical Service, Central Vigilance Commission Clerical Service, Election Commission of India Clerical Service, who are promoted through LDCE in the ratio of 3:1. Even in Survey of India (2nd respondent's office), this rule is being followed for fixation of inter se seniority int he grade of officer surveyors in the ratio of 3:1 between DPC and LDCE promotees fro the grade of Surveyor on the directions of the Cuttack Bench of this Tribunal in OA.No.221 of 1996 and OA.No.438 of 1998.
(iii) UDCs of Survey of India promoted through LDCE; UDCs of other Central Government Departments, as mentioned above, including the Department of Science & Technology (1st respondent's office) promoted through LDCE and Officer Surveyors of Survey of India (2nd respondent's office) promoted through LDCE are all promotees promoted on passing the LDCE as per quota reserved for promotion through LDCE. While the relative seniority in the grade of UDCs between DPC and LDCE promotees in other Central Government departments as well as Officers Surveyors in Survey of India is fixed by rotation of vacancies in the ratio of 3:1 denying the same to the applicants in discriminatory. The UDCs promoted through LDCE in Survey of India, LDCE promotee - UDCs of other Central Government offices and Officer Surveyors promoted through LDCE are all LDCE promotees only and fall within the doctrine of reasonable classification under Article 14 and 16 of the Constitution of India. All the similarly placed should be treated equally. Giving the benefit of relative seniority to other LDCE promotees and denying the same to the applicants, that too when it was upheld by this Tribunal is discriminatory and violates the fundamental rights of the applicants enshrined under Articles 14 and 16 of the Constitution of India.
(iv) The case of VT Rajendran based on which the respondents say, they altered the seniority of the applicant is not at all relevant and applicable to the .........5 5 case of the present applicants. There were no directions in that case to scrap the quota rule of filling up of 25% of vacancies through LDCE and there were no directions to the effect that the ratio of 3:1 while fixing the seniority between these two channels to be waived. It was not the subject of that case. It was held in that case that quota rule should not be applied at the time of confirmations and confirmation should be made based on the length of service. The LDCE promotees were treated as direct recruits and were confirmed against the permanent vacancies of the years for which the LDCE was not held thereby giving them undue advantage over the DPC promotees who were already holding the post since long. The action of the respondents was against the Government rules and orders at that time. This anomaly was corrected in that case. Moreover the rules of confirmation and seniority have been changed and seniority has been de-linked from the date of confirmation. The relative seniority of the DPC and LDCE promotees is now fixed based on the consolidated select list of these two channels by rotation of vacancies in the ratio of 3:1 as per the quota. This principle is followed in almost all the Central Government departments in all grades/cadres wherever quotas are reserved for promotion through LDCE. This was the principle followed by the respondents when the applicant's seniority was originally fixed and as published in the gradation lists for the years 1999, 2000, 2001, which was upheld by this Tribunal in OA.Nof.1651/2001. This Tribunal directed to fix the seniority of the officer surveyors passed through LDCE in the ratio of 3:1 in their judgments in OA.No.221 of 1996 and OA.No.438 of 1998. The alteration of the seniority of the applicants in the gradation list that was challenged when it was subjudice before this Tribunal is void ab initio as it is violative of Section 19(4) of the Administrative Tribunals Act, 1985 and against the spirit of the Act.
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(v) This Tribunal while dismissing OA.No.1651/2001 in the case of Venugopal Nair vs. Union of India held that the fixation of seniority between DPC and LDCE promotees in the ratio of 3:1 is as per well accepted rules of promotions being fixed for candidates selected through DPC/LDCE respectively. Those who qualify in the LDCE will overtake others and this is being followed by almost all Departments in the Central Government. Hence, the seniority of the applicants originally fixed is very much correct as observed by this Tribunal and therefore any subsequent alterations to the gradation list are illegal, arbitrary, unjustified and void.
(vi) The rules governing the ministerial staff of Survey of India in C..No.437 (Adm.) give powers to the 2nd respondent to adopt other rules applicable to Central Government servants as issued by the Government from time to time. This is evident from the fact that the 2nd respondent adopted the rule of residency period of 8 years of service for consideration of the names of LDCs for promotion to the grade of UDCs on regualr/ad-hoc basis as prescribed in the Central Secretariat Clerical Service rules, 1962 read with recommendations of the 5th Central Pay Commission though the rules under C.O.No.437 (Adm.) do not prescribe any residency period for promotion from LDC to UDC. The respondents should have implemented the fixation of relative seniority of the DPC promotees vis-a-vs LDCE promotees as done in 1st respondent's office and other Central Government offices.
(vii) The Vth Central Pay Commission in Para 126.5 of the report made the following recommendation - "126.5 we have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before Tribunal/Court. This generates a lot of needless litigation. It also runs .........7 7 contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore Bench, in the case of C.S.Elias Ahmed and others vs. UOI and others (O.A.Nos.451 and 541 of 1991) wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C.Ghosh vs. UOI (1992) 19 ATC 94 (SC), dated 20.7.1988; K.I.Shepherd vs. UOI (JT 1987 (1) SC 147). Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the Court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a ground or category of Government employees is concerned and not to the matters relating to a specific grievance or anomaly of an individual employee." The recommendation was accepted by the Government. But the same has not been implemented in the applicant's case for fixation of relative seniority in the ratio of 3:1 as per quota reserved for LDCE promotion though the same benefit is given to other UDCs and identical grades promoted through LDCE other departments and in Survey of India inspite of this Tribunal's judgments in OA.No.221/1996, OA.No.438/1998 and OA.No.1651/2001 holding the fixation of inter se seniority between DPC and LDCE promotees as valid.
4. The respondents contested the application and filed reply statement stating that the Department in consultation with the DOP & T and Ministry of Law and Justice, Department of Legal Affairs had issued guidelines regarding fixation of seniority of UDCs in Survey of India, vide letter No.SM/04/016/88, dated .........8 8 19.6.1992. As per the said guidelines, the fixation of seniority in the ratio of 3:1 was replaced by fixation of seniority by the length of the service with due regard to the rank of LDCE and position assigned to them by the DPC and it has become well settled law as endorsed by the Karnataka High Court and endorsed by the Hon'ble Supreme Court of India on the basis of Recruitment Rules existing in Survey of India. The seniority list of UDCs as on 1.1.1999, was prepared erroneously in the ratio of 3:1, and therefore, it was revised as per the guidelines issued on 19.6.1992, which were issued in compliance with the Orders of the Hon'be High Court of Karnataka. The respondents have denied the averments made in the application. They reiterated that the revised seniority list is in accordance with the law laid down by the Apex Court, and therefore, there is no need for interference by this Tribunal.
5. The applicant filed rejoinder reiterating the averments made in the application.
6. The respondents filed additional reply reiterating that they have followed the Judgment of the Karnataka High Court in the case of Sri V.T.Rajendran & Others, which was confirmed by the Hon'ble Supreme Court.
7. During the course of hearing, the learned Counsel for the Applicants reiterated the contentions raised in the application. He submitted that it is a covered case as this Tribunal considered at length the same issue in respect of the same batch of UDCs in Survey of India in OA.No.668/2007 and declared the letter No.SM/04/016/88, dated 19.6.1992, on which the respondents are placing reliance as illegal in view of the Hon'ble Apex Court Judgment in the case of A.K.Subbaraman's case and directed the respondents to restore the seniority of the applicant therein in the gradation list as originally fixed in the ratio of 3:1 by rotation of vacancies as per 25% quota reserved for LDCE promotees and also .........9 9 directing the respondents 1, 3 and 4 to conduct review DPC for the years 2004, 2005 and 2006 for considering the case of the applicant therein for promotion to the grade of Assistant/Head Clerk after recasting the gradation list and to extend all consequential and attendant benefits. The learned Counsel for the Applicants submits that the present applicants also stand on the same footing as that of the applicant in OA.No.668/2007, as the present applicants also appeared for LDCE examination along with the applicant in OA.No.668/2007 and got selected for the post of UDC by way of promotion, and therefore, the applicants herein are also entitled for the same relief.
8. The learned Counsel for the Respondents reiterated the contentions raised in the reply and additional reply. But, the learned Counsel for the Respondents, could not deny that this Tribunal has already considered the very same issue in OA.No.668/2007 and disposed of the same on 7.11.2008 by quashing the letter No.SM/04/016/88, dated 19.6.1992 and also directing restoration of the seniority of the applicant therein in the gradation list as originally fixed in the ratio of 3:1 by rotation of vacancies as per 25% quota reserved for LDCE promotees and also directing the respondents 1,3 and 4 to conduct review DPC for the years 2004, 2005 and 2006 for further promotions and directed to recast the gradation list accordingly and to extend all consequential and attendant benefits.
9. The points that arise for consideration in this application are -
(i) Whether the objection regarding non-joinder of the employees, who are going to be affected in case the seniority list is revised, is sustainable?
(ii) Whether the applicants herein stand on the same footing as that of the applicants in OA.No.668/2007?
(iii) If so, the applicants are entitled for the reliefs prayed for?
(iv) To what result?
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10. Point No.(i):
The learned Counsel for the Respondents submitted that if the relief prayed for by the applicants is granted, several people will be affected and therefore those persons, who are going to the affected are necessary parties and that as they are not made parties, this application is not maintainable. On the otherhand, the learned Counsel for the Applicants submitted that the respondents themselves have prepared the seniority list as long back as in the year 1999 after due circulation among all the employees and the applicants are now seeking implementation of the said gradation list, as the respondents suo motu without giving notice to the applicants revised the said list, and therefore, there is no need to implead any private parties in this case as the applicants are mainly seeking the restoration of the original gradation list prepared after due circulation among all the UDCs, who were promoted to the vacancies notified in the year 1996.
11. We find considerable force in the contention of the learned Counsel for the Applicants. As they are seeking only restoration of the gradation list, which was prepared by the respondents in the year 1999, after due circulation among all the UDCS, who were promoted to the vacancies notified in the notification dated 16.8.1996. Hence, we find no force in the objection taken by the learned Counsel for the Respondents. Thus, this point is found in favour of the applicants.
12. Point No.(ii):
It is not disputed that the applicant in OA.No.668/2007 viz., Sri PVSD Gopala Krishna Murthy, was appointed as LDC in the year 1989, whereas the applicants herein were recruited as LDCs in the years 1987 and 1988 respectively and that all of them appeared for LDCE examination in pursuance of the notification dated 16.8.1996 and all of them became successful. It is also not .......11 11 disputed that the applicant in OA.No.668/2007 was ranked no.1 among LDCE promotees under the same merit list and the first applicant was ranked no.2 and the second applicant ranked no.9. The seniority of all of them was originally fixed applying the quota of 3:1 by rotation and later revised. The said revised seniority list was challenged in OA.No.668/2007. Here, in the instant case also, the very same revised seniority list has been challenged on the very same grounds on which it was challenged in OA.No.668/2007. We have perused the Judgment of this Tribunal passed in OA.No.668/2007 by a division bench to which one of us is a member and found that the facts of the case and the issue involved in OA.No.668/2007 and the present OA are one and same. Therefore, this case is to be treated as a case covered by the Judgment in OA.No.668/2007 dated 7.11.2008. Thus, this point is also found in favour of the applicants.
13. In view of the finding that this is a covered case, the applicants are entitled for the relief prayed for in this OA.
14. In the result, the OA is allowed, setting aside the impugned orders dated 28.3.2005 passed rejecting the restoration of the seniority of the applicants, and directing the respondents to restore the seniority of the applicants as mentioned in the gradation list prepared as on 1.1.1999 and to extend all consequential benefits including conducting of review DPC, if necessary, for the years 2004, 2005 and 2006 for considering the case of the applicants for promotion to the next higher grade in accordance with the original gradation list prepared as on 1.1.1999. In the circumstances, there shall be no Order as to costs.
( R.SANTHANAM ) ( P.LAKSHMANA REDDY ) Member (A) Vice-Chairman Dated:this the 4th day of December, 2008 Dictated in the Open Court ******