Central Administrative Tribunal - Jabalpur
Ashok Kumar Khandelwal S/O Shri B.M. ... vs Union Of India Through Comptroller & ... on 18 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: GWALIOR
Original Application No. 202/00828/2014
Gwalior, this Thursday, the 18th day of February, 2016
SHRI JUSTICE HARUN-UL-RASHID, JUDICIAL MEMBER
SHRI UDAY KUMAR VARMA, ADMINISTRATIVE MEMBER
Ashok Kumar Khandelwal S/o Shri B.M. Khandelwal, Age 58 years,
Occupation Service R/o Khandelwal Bhawan, Hotel Mayur, Station
Road Padav, Gwalior 474002 (M.P.) -Applicant
(By Advocate Shri S.C. Sharma)
V e r s u s
1. Union of India Through Comptroller & Auditor General of India
9 Deen Dayal Upadhayaya Marg, New Delhi 110124
2. The Secretary Ministry of Personnel and Public Grievances Department
of Personnel and Training New Delhi 110001
3. Shri A. Paramsivan, IAAS, 29-IV ICISA Comples, A-52 Sector-62
Noida 201301 (U.P.)
4. Shri Om Prakash (1) IAAS Director (Insurance), Office of the Principal Director of commercial Audit & Ex Officio Member Audit Board-II 4th and 5th Floor, CAGs Annexe Building Indraprashtha Estate, 10 Bahadur Shah Zafar Marg New Delhi-110124 -Respondents
(By Advocate Shri M.K. Sharma)
O R D E R (ORAL)
By Justice Harun-Ul-Rashid, JM:-
The Original Application is filed seeking the following reliefs:-
8.1 The content of impugned letter No.1209-RTI/515-2012 dated 3-10-2012 issued by Respondent No.1 may kindly be deprecated and be set aside and quashed.
8.2 The impugned order No.231-GE./K-204/PF dated 20-1-2014 issued by Respondent No.1 contained in Annexure A/7 may be quashed.
8.3 The Respondents may further be directed to re-fix the year of allotment of and seniority of the Applicant under the Rule 8 (2) (c) of the relevant Recruitment Rules granting the seniority to the Applicant just below the last direct recruitee of the year 2005 after giving benefit of weightage of two years considering the year of allotment of the applicant as 2007 instead of 2009 along with other consequential benefits.
2. The applicant has claimed seniority from the year 2005 in the Junior Time Scale (for short JTS) cadre of Indian Audit and Accounts Service (for short IAAS) on the post of Assistant Accountant General.
3. The applicant who is initially appointed as Clerk was later promoted successively as Auditor, Section Officer, Assistant Audit Officer, Audit Officer, Senior Audit Officer and then Assistant Accountant General (JTS) in the cadre of IAAS (Group A Post). The applicant submits that the Section Officers Grade Examination is the criterion for determining the seniority in preparing the combined eligibility list for further promotion to Group-A JTS of IAAS which is an All India Cadre.
4. It is submitted that respondent No.1 in terms of Para (3) of Schedule III of Indian Audit and Accounts Service (Recruitment) Rules, 1983 prepared combined eligibility list on 01.07.2007, the name of the applicant was placed at serial No.2 in the combined eligibility list at Annexure A-1. It is pointed out that the name of the applicant was included in the select list with promotion into the JTS cadre against the vacancies for the year 2007. The combined eligibility list was approved by Union Public Service Commission (for short UPSC) in the year 2009. The respondents issued promotion order dated 11.08.2009 (Annexure A-2). The applicant is claiming promotion and the applicants case is that he should have been given seniority just below the direct recruitee in the year 2005. It is pointed out by the applicant that he should have been promoted with effect from the year 2007 that is the year of select list for vacancies. The applicant prays for similar relief based on the decision of Honble Supreme Court in the matters of Devendra Narayan Singh Vs. State of Bihar 1996 (11) SCC 342; Syed Khalid Rizvi Vs. Union of India 1993 (Supp)(3) SCC 575. The learned counsel for the applicant also cited the decision of the Central Administrative Tribunal, Chandigarh Bench, in Original Application No.800 of 2011, the paragraph extracted in the Original Application is as follows:-
Availability of a vacancy and the eligibility thereof when they co-exist, if the consideration for promotion gets delayed for no fault of the employee, who is found fit for promotion in that vacancy, then natural justice would require grant of benefit of promotion with retrospective effect from the date of occurrence of the vacancy.
5. The applicant canvassed for the compliance of the provisions of 8(2) (c) & (d) of the IAAS (Recruitment) Rules in his case. The applicant has to be given two years weightage in determining the seniority and should have been placed just below junior most direct recruit of the year 2005. His contention is extracted as under:-
That the Applicant should have been given seniority just below the direct recruitee of the year 2005 appointed through the competitive examination viz. Shri a. Paramsivan, Respondent No.3 and above Shri Om Prakash (1), Respondent No.4, as the Applicant has been promoted from the select list of 2007, since under the rules, he is entitled for weightage of two years on and above the direct recruitee of 2007, appointed through competitive examination. Thus, from above, it is clear that the year of allotment in case of Applicant should have been termined as 2007 (i.e. year of select list/vacancies). This contention of determination of allotment year has also been confirmed by the Honble Supreme Court of India in their Judgment / order in the cases of Devendra Narayan Singh Vs. State of Bihar, 1996 (11) SCC 342, Syed Khalid Rizvi Vs. Union of India, 1993 (supp) (3) SCC 575. The learned CAT Chandigarh, in OA No.800 of 2011 in the case of Vin Dosajh Vs. Secretary, Technical Education Chandigarh Administration, relief on this judgment and held as under:
Availability of a vacancy and the eligibility thereof when they co-exist, if the consideration for promotion gets delayed for no fault of the employee, who is found fit for promotion in that vacancy, then natural justice would require grant of benefit of promotion with retrospective effect from the date of occurrence of the vacancy. Thus, by applying Rule 8 (2) (c) of the above recruitment rules, the applicant has to be given two years weightage for determining the seniority and should have been placed just the below the direct recruitee of 2005 viz. Shri A. Paramsivan, Respondent No.3 and above Shri Om Prakash (1) Respondent No.4.
6. Rule 8 (2) (b) (c) & (d) of IAAS (Recruitment) Rules, 1983 relates to seniority of the officers promoted in JTS cadre, reads as under:-
Rule 8(2)(b). The seniority inter-se of persons appointed by promotion to all grades of the service shall be determined in the order of their position in the Select list; those promoted on the basis of an earlier section being ranked senior to those promoted on the basis of a later selection.
Rule 8(2)(c) The Officers appointed to the service in terms of provisions of sub rule 2 (ii) of Rule 7 shall be given two years weightage in seniority vis a vis the officers appointed in the same year through competitive examination.
Rule 8(2) (d)-Among the officers appointed through the competitive examination in a particular year and the promoted officers assigned to that year after allowing weightage in terms of sub rule (c) above, the later shall be placed enbloc below the junior most direct recruit of that year.
7. The applicant alleges that the respondents without taking into consideration the said rules for determining the seniority of the applicant had erroneously and illegally given the seniority from 2007 in the JTS cadre on a false plea that the applicant was promoted in the year 2009. The applicant being aggrieved by the action of the respondent No.1 preferred a representation dated 18.12.2013 (Annexure A-6). The respondent No.1 rejected the same vide letter dated 20.01.2014 (Annexure A-7) which is challenged in this Original Application. In the impugned order passed by the Assistant Comptroller & Auditor General (P), the authority has considered the request for re-fixation of seniority and the year of allotment in the IAAS cadre as per IAAS (Recruitment) Rules, 1983. It is clearly stated that [y]our seniority on your promotion to the IA&AS cadre has been fixed correctly in terms of provision of Indian Audit and Accounts Service (Recruitment) Rules, 1983. However, we notice that none of the reasons stated in Annexure A-6 dated 18.12.2013 has been addressed in deciding this representation. The applicant has highlighted, in his representation, the rules applicable but we find that vide Annexure A-7 a non-speaking order has been passed, and the representation disposed of by a single statement order that [y]our seniority on your promotion to the IA&AS cadre has been fixed correctly.
8. In the reply statement of the Original Application the respondents extracted Para 7(2) of the Recruitment Rules 1983 and contended that in terms of Para 8 (2) (c) & (d) of the Rules, the applicant is not entitled to any relief and that the applicant was promoted in the year 2009 and he was given two years weightage mentioned at para 8(2)(c) &(d) of IAAS (Recruitment) Rules, 1983. It is also pointed out that they have enbloc been placed below the junior most direct recruit of that year.
9. It is clear from the material placed on record that the claim of the applicant in providing two years weightage in seniority vis-`-vis the officers appointed in the year 2007, appointed through competitive examination was not considered nor addressed in their communication to the applicant ivde Annexure A-7.
10. On going through the contention raised by the applicant in the Original Application and after hearing the learned counsel for the applicant we find some force in the arguments raised by the applicant which needs to be addressed by the respondents concerned. Since respondents did not apply their mind to this issue, we consider it proper to direct the respondents to pass a reasoned and speaking order. We have also decided to examine the issue if necessary, after proper and fair disposal of his representation namely Annexure A-6.
11. Original Application is allowed. Accordingly, we direct the respondent No.1 to examine the contentions raised on the strength of the Rules applicable to the promotees and pass a reasoned and speaking order within a period of three months from the date of receipt of copy of this order. The applicant shall produce the order within 15 days from today to the respondent No.1 with copy of the Original Application and the annexures produced before us.
(Uday Kumar Varma) (Harun-Ul-Rashid)
Administrative Member Judicial Member
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