Central Administrative Tribunal - Delhi
Pramod Kumar vs Health And Family Welfare on 27 February, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.1095/2023
MA No.3851/2023
Order reserved on 15.02.2024
Order pronounced on 27.02.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Anand Mathur, Member (A)
Pramod Kumar s/o Sh. Ram Palat,
Aged about 52 years,
Sr. Accounts Officer,
Indian Council of Medical Research (ICMR),
R/o H.No.7/16, Moulsiri Road,
Shipra Suncity, Phase-II,
Indirapuram, Ghaziabad, UP-201014.
...Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Union of India through
Secretary (H&FW),
Ministry of Health & Family Welfare (H&FW),
Room No.156-A, 'A' Wing,
Nirman Bhavan,
New Delhi - 110 011.
2. Director General,
Indian Council of Medical Research (ICMR),
V. Ramalingaswami Bhavan,
Ansari Nagar,
New Delhi - 110 029.
3. Sr. Financial Advisor & Chairperson,
DPC (Fin. & Account)
Indian Council of Medical Research (ICMR),
V. Ramalingaswami Bhavan,
Ansari Nagar,
New Delhi - 110 029.
2
4. Sr. Deputy Director General (A) &
Chief Vigilance Officer,
Indian Council of Medical Research (ICMR),
V. Ramalingaswami Bhavan,
Ansari Nagar,
New Delhi - 110 029.
5. Director,
Rajendra Memorial Research Institute of Medical
Sciences,
Indian Council of Medical Research (ICMR),
Agamkuan, Patna, Bihar-800 007.
6. Uday Kumar,
Sr. Accounts Officer,
ICMR - Rajendra Memorial Research Institute of
Medical Sciences,
Indian Council of Medical Research (ICMR),
Agamkuan, Patna, Bihar-800 007.
...Respondents
(By Advocates: Mr. S.K Tripathi for R-1, Mr. Shashwat
Sharma and Mr. Arun Sanwal for R-2 to
R-5, Mr. A.K. Behera assisted by Ms.
Neha Bhatnagar, Mr. Vaibhav Kalra and
Mr. Amarendra Pratap Singh for R-6).
ORDER
Hon'ble Mr. Anand Mathur, Member (A) Brief facts of the case, as per contents of the Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, are that the applicant joined the post of Accounts Officer at ICMR- Regional Medical Research Centre for Tribals (RMRCT) [now renamed as National Institute for Research in Tribal Health (NIRTH], Jabalpur, Madhya Pradesh, vide 3 appointment letter dated 28.03.2012. The respondents transferred the applicant to ICMR (HQ) vide order dated 14.06.2019. Subsequently, he was promoted as Senior Accounts Officer, ICMR (HQ) vide order dated 31.01.2022. On 03.08.2022, he was transferred to ICMR- NICPR, Noida.
1.1 Respondent no.2, vide order dated 31.01.2002, appointed private respondent no.6 as Administrative Officer (Finance & Audit) at ICMR-Rajendra Memorial Research Institute of Medical Sciences (RMRIMS), Patna through direct recruitment process. Senior Financial Advisor of ICMR changed the nomenclature of respondent no.6 from Administrative Officer (Finance & Audit) Cadre to Accounts Office Cadre and issued common draft Seniority List of Accounts Officer vide OM dated 27.11.2019 and accordingly respondent no.6 joined the post of Accounts Officer in ICMR on 27.11.2019 at ICMR- RMRIMS, Patna.
1.2 The applicant made an objection to respondent no.2 vide representation dated 06.12.2019 against common draft Seniority List of Accounts Officer dated 27.11.2019 to revise the seniority list of Accounts Officer on the ground that private respondent no.6 was not holding the 4 post of Accounts Officer, rather, the nomenclature of his post was Administrative Officer (Finance & Audit). He further submitted to respondent no.2 that as per ICMR Recruitment Rules, relevant to that period i.e. 2002, no post of Accounts Officer existed at ICMR-RMRIMS, Patna, which is a subordinate office under ICMR, and at that time private respondent no.6 was appointed as Administrative Officer (Finance & Audit) on direct recruitment basis.
1.3 Senior Administrative Officer, ICMR (HQ), vide OM dated 25.01.2020 issued the final Seniority List of Accounts Officers without considering the rightful claim of the applicant raised vide representation dated 06.12.2019 and changed the cadre of the private respondent from Administrative Officer Cadre to Accounts Officer Cadre without approval of the competent authority and had shown him senior to the applicant in an illegal manner. The illegality did not stop here as private respondent no.6 was further promoted to the post of Senior Accounts Officer in ICMR (HQ) vide Office order dated 31.01.2020.
1.4 DG, ICMR is the Controlling/Competent Authority but while changing the cadre of private respondent no.6 5 from Administrative Officer Cadre to Accounts Officer Cadre, approval of the competent authority was not sought and he was made senior to the applicant against the rules.
1.5 The applicant obtained certain documents through RTI which clearly establish how private respondent no.6 had been granted undue favour/benefit without obtaining approval of the competent authority, i.e., DG, ICMR, based on which learned counsel states:-
a. That the Respondent no.4 is responsible for all administrative issues like this and the Respondent no.4 could not decide and sought advice of the Respondent no.3. The Respondent no.3 with the help of Sh. Vinod Sharma, Ex. Sr. Accounts Officer (on deputation) based on irrational logic somehow attempted to establish on 30.12.2019 that the respondent no.6 may be considered as Accounts Officer and not Administrative Officer. Needless to mention that Shri Vinod Sharma, Sr. Accounts Officer (on deputation) promoted as ADG (F) in quid pro quo violating all guidelines.6
b. That under what authority Shri Vinod Sharma, Ex-Sr. Accounts Officer (on deputation) can decide this issue that too on irrational logic especially when Sr. DDG(A), a senior IAS Officer didn't want to decide on his own. Moreover, it was not bothered to obtain approval of the DG, ICMR, the appointing authority of Administrative Officer and Accounts Officer. Moreover, if the respondent no.6 is considered in new Accounts Officer cadre at all, his seniority in Accounts Officer Cadre may be counted w.e.f. 30.12.2019 (from the date of assuming the charge of new post, i.e. day from which the Sr. DDG (A) and Sr. Finance Advisor decided on note sheet.
1.6 New Recruitment Rules came into force vide OM dated 31.01.2017 which also reveal that "the post will be filled up through 100% by promotion, failing which by deputation, failing both by direct recruitment." Recruitment Rules have been amended from time to time but no provision has been made for appointment by transferring of post as happened in the stand alone case of respondent no.6. Hence, both (i) change of cadre and 7
(ii) change of nomenclature of the post is not as per the extant Recruitment Rules.
1.7 In the absence of any provision for transferring of post in the Recruitment Rules published so far, it is clear that respondent no.6 has been re-deployed from Administrative Officer Cadre to Accounts Officer Cadre on permanent basis as surplus employee in the Administrative Officer Cadre. In this regard, DOP&T guidelines issued from time to time clearly stipulate that seniority of the redeployed staff will be counted from the date of assuming the charge of new post only. Moreover, private respondent no.6 has been co-accused in CBI case with one Sh. Kapil Dahiya, UDC at RMRCT, Gorakhpur and a vigilance enquiry has also been pending against him since 2017. Hence, the question arises as to how private respondent managed to get vigilance clearance to be promoted as Sr. Accounts Officer on 31.01.2020 and got the benefit of MACP on 14.10.2021.
1.8 If one goes through the advertisement published in Employment News 3-9 November, 2001, for the post of Administrative Officer (Finance & Audit), experience required was of ten years, out of which at least six years should be in supervisory capacity/Section Officer in the 8 scale of pay of Rs.6,500-200-10,500 or its equivalent. While applying for the post in question, against the column of experience, private respondent no.6 mentioned
- "More than 10 years of experience in Auditing and Finance in a Chartered Accountants Firm including supervisory work". The aforesaid experience possessed by private respondent no.6 by no stretch of imagination can be held to be equivalent to the experience essentially required for the post.
1.9 Aggrieved, the applicant submitted a representation dated 20.10.2023 before the competent authority and Chief Vigilance Officer, ICMR. Since no action has been taken on his representation, the applicant has filed the present Original Application seeking the following relief:-
"(i) Allow the applicant's Original Application;
(ii) Set aside the seniority list published on 25.01.2020 by the respondent to the extent it shows the applicant below private respondent no.6;
(iii) Set aside the order dated 31.01.2020 to the extent it promotes private respondent no.6 on the post of senior accounts officer by showing him senior to the applicant;
(iv) Set aside the Office Memorandum of ICMR dated 28.03.2023;
(v) Direct the respondents to revise the seniority list published on 25.01.2020 thereby showing applicant as the senior most accounts officer;
(vi) Award cost of the application in favour of applicant and against the respondents; and/or 9
(vii) Pass any other order(s)/direction(s) as this Hon'ble Tribunal may deem fit and proper in facts and circumstances of the present case in favour of the applicant and against the respondents, in the interest of justice."
2. Per contra, official respondent nos.2 to 5 filed a counter affidavit denying the claim of the applicant. They have taken a preliminary objection that the instant OA is hopelessly barred by limitation. However, on merit, they have stated that vide letter dated 02.09.1999 conveying approval of the DG, ICMR to transfer one vacant post of Administrative Officer from National Institute of Epidemiology, Chennai to RMRI, Patna and re-designate the said post as Administrative Officer (Finance & Audit), it was also clearly mentioned that the diverted post of Administrative Officer may be filled up with the qualification meant for Accounts Officer. Further, application dated 06.12.2019 submitted by the applicant concerning draft seniority of Accounts Officer issued vide OM dated 27.11.2019 was examined. While deciding the issue of placing the post of Administrative Officer (Finance & Audit) within the cadre of Administrative Officer or Accounts Officer, the factors like conditions prescribed at the time of filling up of the post, responsibilities being assigned to the post and channel of 10 reporting for the post were analyzed and the post of Administrative Officer (Finance & Accounts) was considered as Accounts Officer for the purpose of common seniority list with the approval of the competent authority.
2.1 A revised draft seniority of Accounts Officer including the Administrative Officer (Finance & Accounts) within the accounts cadre was prepared and issued vide OM dated 15.01.2020 requesting all concerned officers to check their seniority and to furnish objection/ representation, if any, latest by 25.01.2020. The applicant received the said revised draft seniority of ACO on 16.01.2020. Though several representations were received from various employees, but the applicant did not choose to represent against the said draft seniority. After examining all representations so received by the respondents, a final seniority list of ACO was issued on 25.01.2020. Subsequently, in the year 2021, a common seniority list of Accounts Officer (including the incumbents promoted against the vacancy of Administrative Officer (Finance & Accounts) was issued with the approval of the then DG, ICMR.
112.2 The applicant preferred representations dated 09.12.2022 and 20.01.2023 regarding seniority of Accounts Officer and wrong appointment of private respondent no.6 as Administrative Officer (Finance & Accounts) and regular promotion to the post of Senior Accounts Officer. The aforesaid representations of the applicant were examined and he was informed vide order dated 28.03.2023 stating that the competent authority of ICMR, vide letter dated 02.09.1999 decided to transfer one vacant post of Administrative Officer from National Institute of Epidemiology, Chennai to RMRI, Patna with the condition that the same post may be filled up with recruitment qualification prescribed for the post of Accounts Officer and re-designate as Administrative Officer (Finance & Accounts). Subsequently, vide letter dated 13.06.2000, ICMR (HQ) allowed the ICMR-Director, RMRI, Patna to advertise the post of the Institute in leading newspaper with the terms and conditions required for the post of Accounts Officer. The issue of transfer of post is prior to issue of draft Administrative Group-A Cadre Recruitment Rules, 2020, hence, the order for transfer of post of Administrative Officer was issued with the approval of DG, ICMR and eventually this 12 post was shown again at ICM-RMRIMS, Patna in the approved Recruitment Rules of 2017.
2.3 Insofar as the allegation of applicant that private respondent no.6 has been co-accused in CBI case with one Sh. Kapil Dahiya, UDC at RMRCT, Gorakhpur and a vigilance enquiry has also been pending against him since 2017, it is stated that while forwarding the complaint, CBI clearly mentioned that no enquiry is being done by CBI, Patna and submitted "NIL" report dated 11.06.2018 to the office of SP and Head, CBI, Patna. Hence, there is no case pending against private respondent no.6. It is also pertinent to mention here that the applicant and private respondent no.6 were promoted to the post of Senior Accounts Officer vide order dated 31.01.2020 based on the final seniority list of Accounts Officer issued on 25.01.2020 duly recommended in order of seniority by the DPC and approved by the then DG, ICMR. Therefore, the applicant is estopped from raising objections against the said final seniority list. 2.4 In view of the above submissions, the applicant has no case and the instant OA deserves to be dismissed. 13
3. Private respondent no.6 has also filed a separate reply raising preliminary objection of limitation. He has stated that the applicant has impugned order dated 28.03.2023 whereby his earlier representations dated 09.12.2022 and 20.01.2023 had already been disposed of. The applicant has not shown any explanation as to why order dated 28.03.2023 should be quashed. Rather, the said order has been used to bring the OA within limitation. On merit, private respondent no.6 has adopted the grounds taken by the official respondents in their counter affidavit.
4. The applicant has filed rejoinders to the respective replies filed by official as well as private respondents reiterating the contents of the OA.
5. We have heard Mr. Ajesh Luthra, learned counsel for the applicant; Mr. A.K. Behra assisted by Ms. Neha Bhatnagar, Mr. Vaibhav Kalra and Mr. Amarendra Pratap Singh for R-6; Mr. Shashwat Sharma and Mr. Arun Sanwal, learned counsel for for R-2 to R-5 and Mr. S.K. Tripathi, learned counsel for R-1.
6. The genesis of the issue on hand dates back to 1998 when one Sh. T. Jagan, who was working as Assistant 14 Accounts Officer (AAO) at ICMR-RMRI, Patna, requested for transfer to his home town, i.e., Chennai. His request was accepted by the DG, ICMR and he was transferred to Chennai along with the post. Due to his departure, there was no Accounts Officer left at RMRI, Patna and, therefore, DG, ICMR issued letter dated 02.09.1999 whereby the post of Administrative Officer (Finance and Accounts) with the nomenclature of AO (F&A) was transferred to RMRI, Patna from Chennai with the condition that the said post may be filled as per recruitment rules for the post of Accounts Officer and designated as Administrative Officer (Finance and Accounts). Based on this, an advertisement for recruitment to the said post was issued. Private respondent no.6 was selected by the respondents and he joined the said post on 02.05.2002. Qualifications prescribed for the post of Administrative Officer (Finance and Accounts) and Accounts Officer were the same. Private respondent no. 6 was also granted the benefit of MACP by granting Grade Pay Rs.6,600/- (in pay scale of Rs.15,600-39,100) of the next promotional post of Senior Accounts Officer.
156.1 On 15.01.2020, a common seniority list of Accounts Officer in Level-10 was circulated and the same was finalized on 25.01.2020 after receiving objections/ comments from officials and examining them. Private respondent no.6 was at serial no.1 with date of joining on the post of Accounts Officer as 02.05.2002 and on the other hand the applicant was at serial no.2 with date of joining as 16.04.2012. Thereafter, vide order dated 31.01.2020, private respondent no.6 along with the applicant were promoted to the post of Senior Accounts Officer. It is worth mentioning here that the applicant accepted the said promotion, which was based on the seniority list dated 25.01.2020. Surprisingly, the applicant is challenging the same seniority list and also the order dated 28.03.2023 vide which his representations dated 09.12.2022 and 20.01.2023 have been rejected giving full details of the issues raised by him.
7. After examining the issues raised by learned counsel for both the parties, the following points emerge for discussion:-
i) The post of Administrative Officer (Finance and Accounts) was transferred from Chennai to RMRI, Patna 16 in terms of DG, ICMR's letter dated 02.09.1999 carrying his approval along with the directions that the said post may be filled up with recruitment qualifications prescribed for the post of Account Officer and designated as Administrative Officer (Finance and Accounts). A draft circular for the post of Administrative Officer (Finance and Accounts) was also sent along with the said letter;
ii) Private respondent no.6 was recruited as Administrative Officer (Finance and Accounts) as he fulfilled the requisite qualifications etc.;
iii) Private respondent no.6, right from the date of his appointment, has been discharging the same duties as Accounts Officer doing accounts related work. The Reviewing Officer of his ACRs/APARs is Senior Accounts Officer (HQ) ICMR. His duties include preparation of annual budget, compilation of accounts (including balance sheet), scrutiny of financial proposals, etc., which is clearly accounts related work;
iv) The date of appointment of the applicant is 16.04.2012 whereas that of private respondent no.6 is 02.05.2002, i.e., private respondent no.6 is about ten years' senior to the applicant;17
v) While preparing the seniority list of Accounts Officer, the respondents have given the following reasons for including the name of private respondent no.6, in the seniority list of Accounts Officer:-
"Respondent no.6 was doing accounting and auditing work, his ACR's are reviewed by the Sr. Financial Advisor, whereas if the Respondent No.6 would have been working as an Administrative Officer, his ACR would have been reviewed by Sr. DDG (Deputy Director General). Thus, the Respondent No.6 has been rightly included in the Seniority List dated 25.01.2020 and further by virtue of his appointment almost 11 years prior to the Applicant has been rightly placed at Sl. No.1 in the said list. That it is further apparent that the post Department has only changed the nomenclature of the said post as AO (Finance & Accounts)."
vi) In the Seniority List dated 25.01.2020, the applicant was clearly shown at Sl. No.2 and private respondent no.6 at Sl. No.1. The applicant, who duly accepted his promotion along with private respondent no.6, as Senior Accounts Officer based on the said seniority list, is now estopped from questioning the said seniority list based on which he has already enjoyed the promotion to the post of Senior Accounts Officer; and
vii) The claim of the applicant that private respondent no.6 should be shown against the seniority list of Administrative Officer (Finance and Accounts) is also not 18 tenable for non-joinder of necessary parties in the present OA.
8. In the conspectus of facts and circumstances of the case and discussion brought out above, we are of the considered opinion that the instant OA lacks merit and the same is accordingly dismissed. MA No.3851/2023 also stands disposed of.
9. No order as to costs.
(Anand Mathur) (Justice Ranjit More) Member (A) Chairman /na/