Central Administrative Tribunal - Madras
A Suresh vs Ut Of Pondicherry on 19 January, 2022
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Central Administrative Tribunal
Madras Bench
OA/310/00231/2016
Eb-
Dated _[_ day of gal«egey January Two Thousand Twenty Two
PRESENT
Hon'ble Mr.Swarup Kumar Mishra, Member(J)
&
Hon'ble Mr.T.Jacob, Member(A)
A.Suresh, Station Officer,
No. 5, 1Cross, Kezh Shevarayapet,
Muthialpet, Puducherry- 3. ..Applicant
By Advocate: Mr. J.Srinivasa Mohan
Vs.
l. The Union oflndia,
By Government ofPuducheery,
Rep. By its ChiefSecretary,
Secretariat, Puducherry - 1.
2. The Secretary to Government,
Fire Services Department, Secretariat,
Government ofPuducherry,
Puducherry - 1.
3. The Additional Secretary to Government,
Home Department, Secretariat,
Government ofPuducherry,
Puducherry- 1.
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4. The Divisional Fire Officer,
No. 34, Canteen Street,
Puducherry - 1.
5. Mr. Rithosh Chandra,
Station Officer,
Villianur Fire Station,
Odiampet Road, Villianur,
Puducherry - 605 110.
6. Mr. J. Mugundan,
Station Officer,
Kalapet Fire Station,
Pillaiyar Koil Street,
Kalapet, Puducherry- 605 014. ..Respondents
By Advocate : Mr. R. Syed Mustafa (For Rl to R4)
Mis. R. Nandha Kumar (For R5 to R6)
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ORDER
[Pronounced by Hon'ble Mr.T.Jacob, Member(A)] The OA was dismissed on merits by this Tribunal vide its order dated 02.08.2018, which was challenged by the applicant before the Hon'ble High Court of Madras, which vide its order dated 13.11.2018 setting aside the order of the Tribunal dated 02.08.2016 made in OA 231/2006 and remitted back to the Tribunal for fresh consideration. The Hon'ble High Court while remitting back the matter to Tribunal held that two judgments of the co-ordinate benches of the Tribunal had not been considered and further the merits could not be gone into as two of the seniors of the applicant whose interests may be affected are not arrayed as party.
2. Pursuant to the directions of the Hon'ble High Court of Madras, the applicant had filed an MA. for impleading the necessary parties which was allowed by the Tribunal.
3. The relief prayed for in this OA is as follows:-
a To declare that the current vacancy for the post of Asst. Divisional Fire Officer falls under the seventh point of the post based roaster and b. For a CONSEQUENTIAL DIRECTION to fill up the said vacancy by considering the applicant, the only eligible SC candidate.
c. And pass such other suitable orders as this Hon'ble Tribunal may deem fit in the circumstances of the case and render justice."
4. The facts of the case submitted by the applicant is as follows:-
• The applicant is presently working as Station Officer under the Fire 4 of14 Services Department and he belongs to reserved category namely, Scheduled Caste (SC). The next avenue of promotion is that of Assistant Divisional Fire Officer and the same is filled purely by promotion. The Recruitment Rule (RR) provides that Station Officers with 8 years of service in the grade and who have passed Station Officers and Instructors course conducted by NFSC, Nagpur, will be eligible. The applicant completed eight years of service by August 2014. The course was also successfully undergone by December 2015. Thus the applicant is now fully eligible as per the Recruitment Rules (RR). The applicant also gave a representation dated 04.02.2016 pointing out that a) he's fully qualified & b) Employees accommodated in roaster points 1 to 6, and requested that he may be considered for the current vacancy which falls under point 7 ofthe roaster. In the year 2013 the applicant gave a representation seeking promotion for the very same post. The Fire Service Department responded stating that the applicant had not become eligible as required by the RR and that only 4 persons have occupied the post in the post-based roster. It further added that when the seventh point is reached, an eligible SC candidate will be appointed. As steps are being taken to fill up the vacancy with the general candidate contrary to the roster, the applicant has no option but to approach this Tribunal. Hence, the present application.
5. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
a. The action of the respondents is totally arbitrary and contrary to the law. b. With the advent of post-based roster, instructions were given by the .f
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5 of14 O Government of India as to how the roster is to be operated. The respondents appear to be acting contrary to the same and are maintaining the roster to suit their convenience.
c. Law is very clear that the initial operation of the roster shall be made by plotting the appointments against each point of roster starting with the earliest appointee. In other words the roster shall take into account the earlier appointments made. If this is done then the current vacancy falls under seventh point, as six persons have already been appointed. d. The respondents were following vacancy based roster earlier, though a single post, till the judgement of the Supreme Court in the case of PGIMER, Chandigarh decided on 17.04.1998. The post based roster came into effect from 02.07.1997 and the respondents implemented the same from October 1997 by which time the cadre became dual cadre. The vacancy based roster continued till such time in the respondent establishment. Thus the plotting of post based roster even with reference to vacancy based roster is faulty. It is not known on what basis the current vacancy is equated to the 5" point instead of 7 point. e. The respondents are bound to follow the post based roster and the method of plotting the various points and accommodating the earlier appointees. Any deviation will result in violation of the roster that by resulting in infraction of Articles 14 and 16 of the Constitution.
f. Reservation to single post is different from plotting the post based roster. Every earlier appointee must be taken into account while plotting the roster. The f-
6 of14 respondents by giving up the appointees earlier, appear to have misdirected themselves on this, either intentionally or otherwise. g. Looked at from any angle the action ofthe official respondents cannot be countenanced in law.
6. Respondents have filed reply denying the averments made in the OA. It is submitted that the Fire Service Department, earlier maintained the Post Based Roster on promotion for the post ofAssistant Divisional Fire Officer, which was duly authenticated by the Enforcement Cell during the year 2014. The names of the officers placed in that Post Based Roster on promotion forthe post ofAssistant Divisional Fire Officer, category wise is as follows:-
I SI. Category Name Date of Category Filled as UR or No. earmarked Appointment Reserved for SC I UR B.Natarajan 20/01/1967 UR UR 2 UR S.Vathianathan 01.06.1977 UR UR 3 UR James Trinite 02.04.1993 UR UR I 4 ! UR Balla Kristayya 11.06.2004 UR UR i I 5 I UR V. Harikrishnan 30.09.2005 SC UR ! , :
6 UR K.Ilango 30.04.2013 UR UR 7 SC
7. The respondent submits that the above mentioned Post Based Roster for ..
the Post ofAssistant Divisional Fire Officer was revised as it was later found that ·---------------------------------
..
7 ofl4 no reservation could be made for lone post ofAssistant Divisional Fire Officer and hence the names of officers those who held the post when it was single(Point No. 1 &2) viz. Thim. B. Natarajan, appointed as Assistant Divisional Fire Officer on 20.01.1967 and Thim, S. Vathinathan appointed as Assistant Divisional Fire Officer on 01.06.1977 were removed from the Post Based Roster, on the grounds that:-
(a) Non-Applicability ofreservation in the rosterfor single cadre post vide O.M. No. 36011/1/2011-Estt. (Res) dated 17.11.2011.
(b) Date of Implementation of the Post Based Roster vide O.M. No. 36012/2/96-Est. (Res), dated 02.07.1997 of Ministry of Personnel, Public Grievance andPensions, which was issued in pursuant to the judgment of the constitution Bench of the Hon'ble Supreme Court, in the case ofR.K.Sabharwal Vs. State ofPunjab.
It is further submitted that the sanctioned post of the Assistant Divisional Fire Officer was single until 1 September 1997. Later, the second post was created vide G.O.Ms. No. 38, dated 02.09.1997, ofHome Department, Puducherry. There is no reservation in the roster for single post cadre as per the O.M. No. 36011/1/20011-Estt. (Res), dated 17.11.2011. Earlier, the Post Based Roster for the post of Assistant Divisional Fire Officer was maintained by erroneously including the names of incumbents viz. Thiru. B. Nararajan, Assistant Divisional Fire Officer and Thim. S. Vathianathan, Assistant Divisional Fire Officer those who held the post when it was single.
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8. The applicant has filed rejoinder stating that it was wrong on the part of the respondents to have ignored the reservation for single post cadre based on the OM No. 36011/1/2011-Estt (Res) dated 17.11.2011. There is no relevance for removing the names of officials B.Natarajan and S.Vaidyanathan shown at points No. 1 & 2 in the roster. The principle ofreservation comes to operate when there is plurality of post and the roster would continue to run. Applicability of reservation at a given point of time would not affect the roster. No where the Supreme Court had stated that the roster should start only from the date when the cadre post gets plural and there is no mention that the roster should not carry names of officials who had held the post when the psot was single. The respondents misunderstood the Judgement of the Hon'ble Supreme Court in the 'Post Graduate Institute case. The respondents without understanding the principles behind the non-applicability of reservation in a single post cadre in the Fire Services Department, had removed the names of officials B.Natarajan and S.Vaidyanathan standing at point No. 1 & 2 in the roster. According to the applicant, the Fire Service department used to maintain a 40 point vacancy based roster and it was replaced by 'post-based roster' from 2.7.1997 onwards. No change had taken place regarding the percentage of reservation even though the post-based roster was prepared in 2010. As per the DOP&T OM, at the stage of preparation of the roster, it is necessary to adjust the existing points in the roster for identifying the excess, shortages, if any, etc., in the respective category of the cadre. It may be done starting from the earliest appointee and categorizing them E
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9 of14 O as SC/ST/OBC/General as the case may be. The removal of B.Natarajan and S.Vaidyanathan in point No.1 &2 was against the OM issued on 2.7.1997.
9. Private Respondents 5&6 who have been impleaded in the OA have filed their reply.
10. The applicant, official respondents and Private Respondents 5 &6 have filed their respective written statements.
11. We have heard the learned counsels appearing for the respective parties and perused the pleadings and documents on record.
12. Learned counsel for the applicant submits that the Official Respondents are actually committing the mistake which the Courts and the UOI wanted to prevent. By leaving out officials who held the post prior to 1997, the Respondents, in effect, are diverting the 7th point in the Roster meant for reserved category, thus giving excess representation to the general category. The Respondents are also trying to bring in dual interpretation to the O.M. There is absolutely no substance in the contention of the Respondents.
13. The learned counsel for the respondent submits that the question of Reservation does not arise for the post of Assistant Divisional Fire Officer upto 1" September 1997, as cadre posts got plural in 2 September 1997. Hence the names of the two Assistant Divisional Fire Officers who held the post when it was single viz. Thiru. B. Natarajan and S.Vaithinathan placed in the SI. Nos. 1 & 2 in the old Post Based Roster were removed in the revised Post Based Roster for the post of Assistant Divisional Fire Officer.
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14. According to the private respondents 5 & 6 on the combined reading of Office Memorandums dt.02.07.1997 & 17.11.2011, it could be seen that the Post Based Roster for the post of Assistant Divisional Fire Officer including the name of Mr.B.Natarajan and Mr.S.Vaidyanathan at point No.1 & 2 respectively who held the said post when it was single was not proper and correct.
15. Admittedly the post ofADFO was a single post cadre till it was made dual as per Annexure Al notification dated 18.12.1998. There is no dispute regarding this between the parties. The Hon'ble Supreme Court in the case R.K.Sabharwal vs. State of Punjab reported in 1995(2) SCC 745 has introduced the principle of reservation of 'post' instead of 'vacancy' earlier followed. Accordingly, the Government introduced the 'post-based roster' as per OM.36012/96-Estt (Res) dated 2.7.1997. At this point of time, the post of ADFO was a single post cadre. Thereafter, as per notification G.O. (MS) No. 43 dated 18.12.1998, the Government of Puducherry amended the rules for recruitment to the post of ADFO making the cadre dual.
16. There was a judgment pertaining to this Department about non applicability of reservation in the roster for single post cadre. In the year 1995, when the post of Assistant Divisional Fire Officer was single, an O.A. No. 50/95 was filed before the Hon'ble Central Administrative Tribunal by one Thiru. V. Harikrishnan, the then Station Officer, SC Category, seeking directions to promote him to the post of Assistant Divisional Fire Officer against point No. 3 • of the Vacancy Based Roster which was earmarked for SC category since a
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11 of14 General category candidate namely Thiru, James Trinite, Station Officer (2% respondents in the said OA) was promoted as Assistant Divisional Fire Officer against Point No. 3 of the Vacancy Based Roster. The Hon'ble Central Administrative Tribunal had held that the reservation in the roster has to be applied even in the single post cadre. The directions of the Hon'ble Central Administrative Tribunal Vide Order dated 19.03.1997 are as follows:-
'it is necessary to direct the official respondent to review the promotion of the second respondent This review has to be done keeping in mind that the filling up of the post ofADFO at this stage has to be done by following roster provisions. Such a revision shall be completed within a period of two monthsfrom the date of receipt of a copy of this order O.A. is ordered.'
17. Aggrieved by the orders of the Hon'ble Tribunal dated 19.93.1997, Thiru, James Trinite the then Assistant Divisional Fire Officer filed Writ Petition before the Hon'ble High Court in W.P. No. 19631 of 1998 and W.P. No. 29747 of 1998.
The common order judgment in the above W.P.'S is as follows:-
'Earlier the Supreme Court took view that reservation could be provided even to the isolated post on the basis of the rule of rotation (vide 1997 (2) SCC 332 Union of India Vs. Madhav. This has now been overruled by a Constitution Bench of the Supreme Court in the ruling reported in 1998 (4) SCC I (post Graduate Institute of Medical Education and Research Vs. faculty Association). Wherein the Supreme Court has clearly laid down that there cannot be any reservation in a single post • cadre. In view of this settled legal position the writ petition has
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12 of14 to be allowed.
In this view of the matter, the order passed by the Tribunal is set aside. The writ petition is allowed. No Costs. Connected W.M.Pstands closed. '
18. The Government of India vide O.M.No. 36012/2/96-Estt (Res), dated 02.07.1997 of Ministry of Personnel, Public Grievances and Pensions, implemented the Post Based Roster in lieu of Vacancy Based Roster. The procedure for construction of the Post Based Roster has commenced from 02.07.1997. Accordingly, the corresponding filling up should initiate from then onwards. But contrary to this, the names oftwo officers who held the post prior to 02.07.1997, viz., Thiru. B. Natarajan, appointed on 20.01.1967 and Thiru. S. Vaithianathan, appointed on 01.06.1997, who occupied the post of Assistant Divisional Fire Officer during the period from 20.01.1967 to 26.10.1969 and from 01.06.1977 to 21.10.1992, reflected in the pre-revised Post Based Roster for the post ofAssistant Divisional Fire Officer. This totally runs against, and is contrary to the Government of India instructions issued vide O.M. No. 36012/2/96-Estt. (Res), dated 02.07.1997 of Ministry of Personnel, Public Grievances and Pensions.
19. An Authority always has the right to rectify the mistakes committed and set right any discrepancies, if found at any point of time. That is what happened in this present case too. Based on the above mentioned two legal points
(a) Non applicability of reservation in the roster for single post cadre; and (b) Date of implementation of Post Based Roster in lieu ofVacancy Based Roster, L 13 of14 O the Post Based Roster for the post ofAssistant Divisional Fire Officer was revised by the Government as follows:-
REVISED POST BASED ROSTER AUTHENTICATED BY ENFORCEMENT CELL, CHIEF SECRETARIAT ON 08.04.2016 SI. Category Name Date of Category Filed as Remarks No. earmarked Appointment to which UR or they Reserved belong for SC 1 UR James Trinite 2.04.1993 UR UR 2 UR Balla Krisyayya 11.06.2004 UR UR 3 UR V. Harikrishnan 30.09.2005 SC UR 4 UR K. Ilango 30.04.2013 UR UR 5 UR 6 UR 7 SC
1)
20. As per the revised Post Based Roster, so far only 4 persons have been / accommodated from Point No. 1 to 4 and the next point i.e., point 5 has been earmarked for General category and there are two more General Category candidates who are senior to the applicant now available in the line of promotion.
Thus, the applicant is not entitled to be considered for promotion for the post of Assistant Divisional Fire Officer at this instance.
21. Orders of Emalkulam Bench(C.G. Sarala Vs Union of India) and Delhi Bench (B.L.Meena Vs UOI) has no application to facts and circumstances of the .R
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14 of 14 case as it did not adjudicate any issues relating to operating the roaster points for a single post cadre and consequences thereof. The facts and circumstances ofthe said cases are totally different from. the present case.
22. We do not find any arbitrariness, illegality or malafide in the rejection of the representation ofthe applicant. The applicant has not made out a case to show any illegality in the re-casting or roster done on 8.4.2016. There is no legal bar in correcting the mistakes in the roster and the respondents herein had only corrected the mistakes in the roster prepared first in 2014. The applicant has failed to prove that the current vacancy falls under Point No. 7 and it has to be reserved for a candidate from 'SC' category. We find no reason to interfere in the roster prepared by the Respondent No. 4 herein. Accordingly, we hold that the OA is devoid of merit and is liable to be dismissed.
23. 'in the result, the OA is dismissed. No costs.
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