Central Administrative Tribunal - Delhi
Ajay Gautam vs Union Of India Through Secretary on 10 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2942/2012 MA No.3552/2012 MA No.2033/2013 MA No.2336/2013 New Delhi this the 10th day of January, 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Ajay Gautam Section Officer Indian Council of Agricultural Research (ICAR) Headquarters, Krishi Bhawan, New Delhi-110001 Applicant (Through Mr. Seeraj Bagga, Advocate) VERSUS 1. Union of India through Secretary Ministry of Agriculture, Krishi Bhawan, New Delhi-110001 2. Secretary Department of Agricultural Research And Education (DARE), Krishi Bhawan New Delhi-110001 3. Secretary, Department of Personnel & Training (DoP&T) Ministry of Personnel, Public Grievances & Pensions North Block, New Delhi-110001 4. Secretary, Indian Council of Agricultural Research, (ICAR) Krishi Bhawan, New Delhi-110001 5. Shri Rajeshwar Dayal Section Officer, Personnel III Section, Room No.308, IIIrd floor, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi-110001 Respondents (Through Mr. Gagan Mathur, Advocate for official respondents And Mr. S.K. Gupta, for private respondent) O R D E R Mr. P.K. Basu, Member (A):
The applicant and Shri Rajeshwar Dayal (respondent no.5) were both posted as Assistants in the ICAR. Both belong to the Scheduled Caste (SC) category. As per the Recruitment Rules (RRs) dated 20.06.2005, the recruitment to the post of Section Officer was through two modes i.e. 50% by Limited Departmental Competitive Examination (LDCE) and 50% by seniority mode. For the recruitment/ select year 2005-06, 17 vacancies were notified/ earmarked under the LDCE and a requisition was sent to the Agricultural Scientific Recruitment Board (ASRB) on 12.09.2005. Out of the 17 vacancies, 1 vacancy was reserved for SC category. The examination was held on 22-24.08.2006 and the result was declared on 2.01.2007. The applicant was placed at serial number 5 in the merit list and respondent no.5 was placed last at serial number 17. The applicants claim is that thus he became senior by virtue of merit. Both the applicant and respondent no. 5 joined the regular post of Section Officer on 4.01.2007. The next promotional post from the grade of Section Officer is the post of Under Secretary and two posts were reserved for SC category candidates.
2. Respondent no.5 made a representation that his promotion to the post of Section Officer for the Select Year 2005-06 under the 50% available vacancies in LDCE mode be changed to the seniority mode for the subsequent Select Year 2006-07 and he be accorded promotion from a subsequent date i.e. 1.02.2007 when his erstwhile junior in the grade of Assistant was promoted in respect of anticipated vacancies for the Select Year 2006-07. The said request was rejected by the ICAR on 27.02.2009. Again a representation was made by respondent no.5 to the National Commission for Scheduled Caste which directed the respondents to grant necessary relief. On 5.09.2011, the respondent ICAR rejected the request for change of mode of promotion and change of Select Year from 2005-06 to 2006-07. According to the applicant, he thus remained senior to respondent no.5 from 2007 till 30.01.2012 and became the senior most SC candidate for one post of Under Secretary reserved for SC category. From 18.01.2011 to 30.01.2012, the applicant made nine written and personal representations to the official respondents for granting him promotion to one vacant post of Under Secretary in the SC category. None of these were answered.
3. The respondents, instead, sent the third representation of respondent no.5 to the DoP&T for advice on the request for change of mode of promotion from LDCE quota to seniority quota and from one recruitment year to another. However, it was clearly stated that respondent no.5 was promoted through LDCE mode only. The DoP&T vide its advice dated 24.03.012 opined that as respondent no.5 was promoted under both the modes i.e. by LDCE and seniority mode, he could take promotion under the mode which is more beneficial. Based on this advice, the ICAR offered the post to respondent no.5 under seniority quota for the select year 2006-07 on 18.05.2012 and he accepted the same on the same day. It is stated by the applicant that on 7.08.2012, review DPC was directed to be held on 8.08.2012 and the review DPC while reviewing eight previous DPCs and reverting 28 officers, granted promotion retrospectively to respondent no.5 from 1.02.2007 on non-existent post. Consequent to the review DPC on 8.08.2012, a provisional seniority list (calendar year wise as against required financial year wise) was issued on 29.08.012 and respondent no.5 was made senior to the applicant. Subsequently, the final seniority list was issued on 16.10.2012, rejecting representations against provisional seniority list on 19.10.2012. The applicant had learnt about the advice of DoP&T dated 24.03.2012, which he alleges to be erroneous, and he made three representations dated 12.04.2012, 11.05.2012 and 26.06.2012, pointing out violation of mandatory provisions and prayed that advice of DoP&T may not be accepted and review DPC be not held. In the above background, the present OA has been filed.
4. According to the applicant, the respondents have relied on DoP&T instructions/ OM dated 7.02.1986, 3.07.1986 and 3.03.2008. They have also relied on OM dated 24.06.1978 and the respondents contention is that since the select list of respondent no.5 was prepared prior to the result of the applicant, the respondent no.5 was rightly placed senior. The applicant states that as per the parent DoP&T OM dated 22.12.1959, in such circumstances, rotation of quota in the two categories has to take place. Thus, determination of seniority between direct recruit/ LDCE and promotees has to be in terms of OM dated 22.12.1959 and such rotation can only take place between direct recruits and promotees of the same select year. Rotation of vacancies and consequent determination of seniority cannot be between direct recruits and promotes of different select years. The applicant relied upon the judgment of the Honble Supreme Court in Union of India Vs. N.R. Parmar, 2012 (11) SCALE 437 where it has been held that inter spacing or rotation of quota has to be between candidates of the same recruitment year. The Honble Supreme Court held as follows:
33..The facts only reveal that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/ amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the rotation of quotas principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotes of the same recruitment year. Thus, it is argued by the learned counsel for the applicant that in the present case, applicant of the select year 2005-06 could not be placed under respondent no.5 and Smt. Tulsa Gupta (we will refer to her case presently) or other candidates of the select year 2006-07 by rotation of quotas of two different select years and the seniority list prepared is contrary to law. In this regard, the applicant relied on Central Secretariat Service (Preparation of Select Lists for the Section Officers and Assistants Grades) Regulations 2013, especially Regulation 4 which reads as follows:
4. Preparation of Select List Section Officers Grade:
Select List for the Section Officers Grade shall be published every year as on the first of July of the year in accordance with the strength of Select List Inclusion in the select list for the year shall be made by the Central Government by taking one person each by rotation from out of the categories of persons specified below and become available against the strength determined for that year. It was also argued that in N.R. Parmars case (supra), the Honble Supreme Court has held that the seniority has to be determined from the date of initiation of the process and not from the date of appointment. Relevant portion of the order reads as under:
34. In view of the above, the Civil Appeals, the Transferred Case, as well as the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined.
5. Similarly, our attention was drawn to the DoP&T and UPSC instructions in the case of LDCE 2006, 2007 and 2008 for SO/ Stenographers which read as follows:
8.(1) After the examination, candidates shall be considered for vacancies in all the 3 years i.e. 2006, 2007 & 2008 subject to their eligibility for any or all the years and will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate subject to qualifying standards for each paper/ part of the examination as decided by the Commission.
Year wise and category wise merit lists for inclusion in the respective Select List will be based on the number of vacancies, candidates merit and choice (preference of year and category, as eligible) and fulfillment of all other eligibility conditions. The Commission reserves the right to fix minimum qualifying standards for any or all stage(s) or paper(s) of the examination.
..Year-wise and category-wise merit list will be made based on number of vacancies, candidates merit, the preference indicated by the candidate and other eligibility conditions, if any. Similarly in LDCE of UDC Grade 2006 for which result was declared in 2007, vacancies were filled up for the year 2006 as the process was initiated in the recruitment year itself.
6. It was also emphasized that date of preparation of select list is not a proper criteria to determine inter se seniority. It was further argued that even if, for the sake of argument, rotation of quota in respect of candidates of two different categories i.e. direct recruits and promotees of two different select years i.e. 2005-06 and 2006-07 is allowed, even then the applicant would remain senior to respondent no. 5 and his immediate junior Smt. Tulsa Gupta as both of them were promoted on 1.02.2007 whereas the applicant was appointed on 4.1.2007. The applicant cited the judgment of the Honble Supreme Court in Mrs. Shakuntala Sharma Vs. High Court of Himachal Pradesh at Shimla & anr., JT 1994 (1) SC 335 and brought to our attention the following observations of the Honble Court:
12.The basic weakness in the present Rule -10 is that it places two unequal sets of posts on par with each other and also prescribes qualifying service for the higher post as well.
7. It was argued that once respondent no.5 was selected as SO and joined on that post on 4.01.2007, his name should be removed from the panel of the year 2006-07. Once the name was removed from the panel, he could not be considered for the same after five years in view of Regulation 7 of the Central Secretariat Service (Preparation of Select List for the Section Officers and Assistants Grades) Regulations, 2013, which provides that where a person is yet to be appointed to the respective grade, then it cannot be done till an annual review of the select list is undertaken for the reason that there may be deterioration of the record or conduct or he may have fallen below the required standard. Regulation 7 is quoted below:
Removal of names from the Select List The name of the persons of the following categories shall be removed by the Central Government from the Select List:
Persons appointed to the concerned Grade;
Persons transferred to another service or post;
Persons who die or retired from service or whose services are otherwise terminated; and
(i) persons officiating in the respective grade beyond the period of probation specified in Rule 13, who are reverted there from as result of a departmental enquiry or proceedings under the Central Civil Services (Classification, Control and Appeal) Rules, 1965; or
(ii) Persons who, either during or at the end of the period of probation in the respective Grade prescribed in Rule 13, are reverted there from under sub-rule (4) of Rule 15, on the ground of unfitness to continue in that Grade; or
(iii) persons yet to be appointed to the respective Grade, who on an annual review of the Select List are found, because of deterioration in their record or conduct since inclusion in the Select List to have fallen below the required standard. The applicant also relied on DoP&T guidelines dated 10.04.1989 which, in para 17.3, provide as follows:
If a persons name is included in the panel for promotion to the higher post (to which appointment can be made by promotion as well as by direct recruitment) and also in the panel for direct recruitment to the said higher post, he should be appointed as a direct recruit or as a promote, having regard to the fact whether his turn for appointment comes earlier from the direct recruitment list or from the promotion list, as the case may be. Para 17.4 of the guidelines provides as follows:
The select list should be periodically reviewed. The names of those officers who have already been promoted (otherwise than on a local or purely temporary basis) and continue to officiate should be removed from the list and rest of names, if they are still within the consideration zone, alongwith others who may now be included in the field of choice should be considered for the `select list for the subsequent period.
8. According to the applicant, the OMs dated 7.02.1986, 3.07.1986 and 3.03.2008 have no applicability to the facts of the present matter which are governed by OM dated 22.12.1959 which provides that inter se seniority between direct recruits and promotees should be by rotation of quotas and rotation necessarily has to be in respect of the same recruitment year. Moreover, it is stated that all the three OMs have been considered by the Honble Supreme Court in N.R. Parmars case (supra) and it has been held that OM dated 3.03.2008 is non est and in derogation of OMs dated 7.02.1986 and 3.07.1986. It was argued that seniority in the feeder cadre is not relevant for determining seniority in the promotional grade as held by the Honble Supreme Court in Kaushal Kishore Singh Vs. Dy. Director of Education and others, 2002 (9) SCC 634. It was further argued that on going through the DoP&T guidelines and 2013 Regulations along with the law laid down by the Honble Supreme Court, it is manifest that mere inclusion of the name in the select panel for unavailable anticipated vacancies does not tantamount to promotion. The applicant also pointed out that advice given by the DoP&T was contrary to the record as it stated that respondent no.5 had been promoted through both the modes whereas the department had clarified that he had been promoted through LDCE mode only. The applicant contended that holding of review DPC was also contrary to DoP&T guidelines dated 10.04.1989, which in para 18.1 stipulates as follows:
The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g. Where eligible persons were omitted to be considered; or Where ineligible persons were considered by mistake; or Where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or Where some procedural irregularity was committed by a DPC; or Where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer. It was, therefore, argued that decision of the DoP&T dated 8.08.2012 deserves to be quashed.
9. On the question of objection under Section 20 the Administrative Tribunals Act, 1985 raised by the respondents, the applicant states that only when the final seniority list was issued on 29.08.2012, the OA was filed and was heard in detail on 18.12.2012 and remained part heard till 30.05.2013. From 18.01.2011 till 26.06.2012, the applicant gave nine representations but nothing happened. The official respondents rejected the claim of respondent no.5 twice and referred the matter to DoP&T for advice on 30.01.2012. On receipt of the advice of DoP&T dated 24.03.2012, the applicant made further representations in April, May and June, 2012 and only when the DPC was held and respondent no.5 shown senior to him, that the applicant approached this Tribunal. It was stated that the objections raised are misplaced as it is settled law that there is no absolute bar under Section 20 of the AT Act and the Court has to consider the facts of each case. In this regard, following judgments were cited:
Sajal Chakraborty Vs. Union of India and ors 2003 (3) JCR 142 D.B. Gohil Vs. Union of India and others, 2010 (12) SCC 301 Charan Singh Vs. Union of India, SLR 1986 (4) 108 Dinkar Anna Patil and another Vs. State of Maharashtra and others, 1999 (1) SCC 354
(v) Shaikh Salim Haji Abdul Khayumsad Vs. Kumar and others, 2006 (1) SCC 46
10. It was further contended that once the ICAR has rejected application of respondent no. 5 twice, no power of review/ reconsideration is available to ICAR. However, they went ahead and held the review DPC and made respondent no.5 senior to the applicant. It was also brought to our notice that there was no provision in the rules permitting change in mode of promotion from one to another. Secondly it is argued that even if the option has to be exercised, there has to be a vacancy and it is stated that promotion under seniority mode was not available as there was no vacancy, as such there was no question of exercising option.
11. The respondents case is that in the Assistant Grade seniority list dated 28.08.2003, the seniority as on 31.03.2003 of respondent no.5 was at serial no.97, of the applicant at serial no.151 and Smt. Tulsa Gupta at serial no. 99 i.e. below respondent no.5 and above the applicant. The main distinction being drawn by the respondents is that this is not a case of direct recruit versus promotee. This is a case in which both the modes of recruitment are through promotion. Within the promotion, one route is through seniority-cum-fitness and the other route is LDCE. In April 2006, DPC was held and Smt. Tulsa Gupta was considered. In August 2006, the examination was held, results announced in January 2007, where respondent no.5 was below the applicant in the merit list. On 28.05.2008, the seniority list of SOs was published wherein Smt. Tulsa Gupta was at serial no.52, applicant at serial no.55 and respondent no.5 at serial no.77. Respondent no.5 filed an objection on 28.05.2009 and he was informed that once he had opted for LDCE, his case could not be considered for change of mode but the respondent no.5 stated that in fact, no option was called for. Respondent no.5 again made representations and the matter was finally sent to the DoP&T, which opined that respondent no.5 should be given the option. The respondent no.5 drew our attention to office order dated 5.08.2011 which pertains to promotion of UDC to the post of Assistant in which clause 4 reads as follows:
4. Those who have already been promoted under promotion quota may exercise option within period of seven days from the date of issue of this Order either to accept promotion through LDCE-2010 or they may continue as Assistant through promotion quota. No benefit of pay and seniority from the year 2010 will be given in case they opt for promotion through LDCE quota. Thus there was provision of giving option which was not given to respondent no.5, initially.
12. The respondents relied on circular dated 24.06.1978 of the Department of Personnel and Administrative Reforms on the subject of starting point in the recruitment roster for the purpose of seniority. For convenience, the contents of the circular are quoted below:
The undersigned is directed to say that from the reference received in the Department and the representations made by the affected individuals, it has been noticed that there is no uniform practice in regard to the starting point in the recruitment roster when recruitment is made by more than one method, namely, direct recruitment/promotion/transfer on deputation etc. The following are the among the diverse methods being adopted by various departments in regard to the starting point of the roster:
(a) the mode of recruitment for which action has been initiated first;
(b) the mode of recruitment through which first appointment was made after the notification of the recruitment rules;
(c) the mode of recruitment mentioned first in the recruitment rules for the post concerned.
(d) the mode of recruitment which is the most predominant.
In some other cases, the roster has been maintained according to the illustration given in General principle (6) in the annexure to M.H.A.O.M.No.9/11/55-RPS dated 22.12.1959.
2. This question has been examined in detail by this Department in consultation with the UPSC and it has now been decided that the starting point in the roster should be that mode of recruitment prescribed in the Recruitment Rules for which the selection process had been completed first. For this purpose, the date of completion of the selection process will be determined as follows:
Direct recruitment Date of completion of Selection Process
(a) Through examination conducted by UPSC or any other authorities. Date of publication/announce-ment of results
(b) Through interviews conducted by UPSC or any other authorities. Date of commissions letter containing their recommendations Promotion Date of completion of Selection Process
(a) Where UPSC is associated Date of UPSCs letter containing their recommendations ratifying the promotion
(b) Were UPSC is not associated or its formal concurrent is not required. Last date of DPC meeting ) Limited Departmental Examination.
Date of announcement of results
3. A new roster will have to be started in the following cases:
(i) From the date the recruitment rules are notified in the gazette.
(ii) When there is an amendment to the Recruitment Rules which changes the percentage allotted for the various modes of recruitment.
4. These instructions shall come into force with effect from the date of issue of this Office Memorandum and recruitment rosters already maintained/started need not be reviewed on the basis of the above instructions. However, where the persons concerned have been approved for appointment but the Recruitment roster has not been started this may be started in the light of the instructions.
Sd/-
( N. Rangarajan ) Deputy Secretary
13. As would be seen, for promotion where UPSC is not associated or its formal concurrence is not required, the date of completion of selection process will be the last date of DPC meeting whereas for the LDCE, it would be the date of announcement of results. Para 2 of the OM also provides that starting point in the roster should be that mode of recruitment prescribed in the recruitment rules for which the selection process had been completed first.
14. It was further submitted on behalf of respondent no.5 that the DPC held by the respondents ICAR on 28.04.2006 inter-alia considered the name of the answering respondent for promotion to the post of Section Officer under first mode of seniority-cum-fitness basis as per the recruitment rules. DPC recommended a panel of Assistants to be promoted as Section Officer during the year 2006-2007. The name of Shri Rajeshwar Dayal, Respondent No.5, also figured in that panel above the name of his junior Ms. Tulsa Gupta. Smt. Gupta was promoted to the post Section Officer w.e.f. 01.02.2007. Ms. Gupta was at Sr. No.99 and the answering respondent was at Sl. No.97 in the aforesaid seniority list dated 28.08.2003 in respect of Assistants. But the answering respondent was not shown in the promotion order at all. The Respondent No.5 was having no knowledge about his empanelment as Section Officer in first mode i.e. seniority-cum-fitness. A provisional seniority list of Section Officers for the period 1.1.2003 to 31.12.2007 was circulated by the ICAR vide circular dated 28.05.2008 (Annexure-R7) and the answering respondent came to know that his name appears at Sl. No.77 whereas, the name of Ms. Gupta appears at Sl. No.52 and name of the applicant appears at Sl. No.55 in the aforesaid list. Respondent no.5 argued that he was put to a great loss by not informing him about the recommendations of the DPC held on 28.04.2006 recommending him for promotion to the post of Section Officer. Had he been informed or asked for his option to be considered against the seniority-cum-fitness mode of recruitment, he would have been promoted w.e.f. 01.02.2007 before Ms. Gupta and his place in the aforesaid list of Section Officer would have been at Sl. No.52. Thus, violation of his right to be considered under seniority-cum-fitness mode lead to great injustice and this has resulted his juniors shown Senior to the answering respondents. It was stated that he immediately submitted a representation dated 6.06.2008 requesting official respondents to treat his promotion to the post of Section Officer through LDCE as cancelled and give him promotion to the post of Section Officer w.e.f. 01.02.2007 under seniority-cum-fitness quota as granted to his junior Ms. Tulsa Gupta in the Assistant grade and re-fix his seniority to the post of Section Officer, accordingly. But the answering respondent was informed vide memo dated 27.02.2009 that the request cannot be exceeded to once he opted for promotion through LDCE and finalized seniority list in the grade of Section Officers on 28.05.2009. Respondent no. 5 made a detailed representation dated 02.07.2010 addressed to Director General ICAR clarifying the position that he was never given any opportunity for exercising option either for promotion on the basis of seniority or on the result of LDCE for Section Officer. It was pointed out that there have been precedent cases in which options were obtained from the concerned persons before promoting them under alternative mode of promotion. But no option was given to the Respondent No.5. Therefore, in the light of 1978 circular, the case of respondent no.5 is that the seniority list as brought out in order dated 29.08.2012 is in order.
15. On the question of applicability of Section 20 of the AT Act, the respondent no.5 cited the following judgments of the Honble Supreme Court/ Honble High Court/ Central Administrative Tribunal:
Tin Plate Co. of India Ltd. Vs. State of Bihar, 1998 AIR SCW 3398, decided by the Honble Supreme Court on 5.11.1998 Government of Andhra Pradesh & anr. Vs. P. Chandra Mouli and anr., Civil Appeal No.2588/2009 decided by the Honble Supreme Court on 16.04.2009
(iii) P. Rathnakaran Vs. The District Police Chief, Kasaragod & ors., OP (KAT) No.1739/2013 decided by the Honble Karnataka High Court on 21.05.2013
(iv) Order dated 29th September 2011 passed by the Principal Bench of the Central Administrative Tribunal in OA No.2737/2010, Sh. Ashish Aggarwal Vs. UOI and ors.
(v) Order dated 26th September 2011 passed by the Principal Bench of the Central Administrative Tribunal in TA No.22/2011, P. Jayaprakash Vs. UOI and ors.
(vi) Order dated 10th May 2011 passed by the Allahabad Bench of the Central Administrative Tribunal in OA No.524/2011, Raj Veer Singh Vs. UOI and ors.
16. The respondents also cited order of this Tribunal in OA No.2456/2008, Shri Arun Kumar Srivastava Vs. Union of India and ors. decided on 13.12.2013. In the cited case, the applicant raised his claim stating that it is settled law that since the applicant had been selected against an earlier process of selection, he stands senior to the person appointed as a result of the process started subsequently on account of a process of selection initiated later by Respondent No.3, the recruiting authority for the post. The Tribunal decided the matter on the basis of OM dated 24.06.1978, referred to above.
17. The official respondents also supported the stand of respondent no.5 and in addition, raised the issue of Section 20 of the Administrative Tribunals Act, stating that the OA was premature. Given the explanation of the applicant, we feel that there was sufficient reason for him to approach this Tribunal as his repeated representations were not being answered and were never replied to. We hold that this OA is not hit by Section 20 of the AT Act, 1985.
18. From the facts of the case, it is clear that in the original seniority list of Assistants, respondent no.5 was at serial no.97, Smt. Tulsa Gupta at serial no.99 and the applicant at serial no.151. There was a DPC held on 24.11.2006 in which respondent no.5 was also considered but for some unexplained reasons, his name did not appear in the final list of recommended Assistants to be promoted as SOs. Smt. Tulsa Guptas name was there. The applicant had no knowledge of this DPC and consequential order thereon. In the meantime, exams for LDCE were held in 2006 and results declared in 2007. Respondent no.5 and the applicant joined the post of Section Officer on 4.01.2007. When the seniority list was issued on 28.05.2008, respondent no.5 came to know that Smt. Tulsa Gupta was at serial no.52, applicant at serial no.55 and he was at serial no.77 though in the Assistant seniority list, he was above both of them. To cut the story short, the matter was referred to the DoP&T and the DoP&T advised that respondent no.5 should be given an option to either opt for LDCE or the seniority mode. This was only for the reason because he was considered by the DPC held on 24.11.2006 but not promoted, though being senior to Smt. Tulsa Gupta. The point raised by the applicant that the DoP&T made an error is not valid. Actually the respondent no.5 had been wronged because though being senior, he had been superseded for no fault of his. Therefore, DOP&Ts advice is perfectly in order. Based on DoP&Ts advice, DPC was held and respondent no.5 placed above Smt. Tulsa Gupta in the seniority list. To this extent, decisions taken by DPC meetings dated 28.04.2006, 26.02.007, 29.03.2007, 27.03.2008, 1.05.2009, 28.04.2010, 29.10.2010 and 3.06.2011 were suitably modified. In fact, respondent no.5 should have been given option earlier in which the respondents failed. We also agree with the contention of the respondents that N.R. Parmars case (supra) and the circulars relied upon by the applicant do not apply in the present case as those apply where the recruitment is through two different modes namely direct recruitment and promotion to a particular post. The present matter relates to promotion and within the promotion mode, there are two channels and this is squarely covered by the 1978 circular. Applying 1978 circular, date of completion of selection process for the promotion route should be taken as last date of DPC meeting, which in this case is 28.04.2006. For the departmental examination, it will be taken as the date of announcement of results, which is January, 2007. Therefore, the period of 4.01.2007 to 1.02.2007 held by respondent no.5 will be treated as ad hoc but he would definitely be treated senior both to Smt. Tulsa Gupta and the applicant as per 1978 OM.
19. We see no irregularity or malafide in the action taken by the respondents and dismiss the OA. There shall be no order as to costs.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /dkm/