Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 5 July, 2013
1 OA.526/2007CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI.
O.A.526/2007.
Date of decision : July 5, 2013.
Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A).
Ramesh Ramchandra Bagaskar, Gr. D employee, Nasik H.O. Residing at At-Post-Chandori, Tal:- Niphad, District Nasik, Nasik 422201. .. Applicant.
( By Advocate Shri K.R. Yelwe ).
Versus
1. Union of India, through the Chief Postmaster General, Maharashtra Circle, Department of Posts, Government of India, G.P.O. Mumbai 400 001.
2. The Sr.Superintendent of Post Offices, Nasik Division, Nasik-422 001.
3. The Sr. Post Master, Nasik H.O., Nasik 422 001.
4. Shri K.M. Khurkute, GDS BPM, At-Hatrudi, B.O., Tal-Surgana, Dist.-Nashik.
5. Shri Bhika Sonu Kadali, GDS BPM, At-Aswali Harsh, Tal-Trambeashwar, Dist-Nashik.
6. Shri Shankar L. Deshmukh, GDSDA, At-Haste, Post-Vani, Tal-Dindori, Dist.-Nashik.
7. Shri Kashinath D. Gaikwad, 2 OA.526/2007 GDSDA, At-Post-Devthan, Tal Dindori, Dist. Nashik. ..Respondents. ( By Advocate Shri V.S. Masurkar ). Order (Oral) Per : R.C. Joshi, Member (A).
In this Original Application the Applicant has impugned order dated 16.07.2007 cancelling his selection to Group 'D' post and his reversion as GDS MD.
2. Briefly, the Applicant in the pleadings has stated that he was appointed as E.D.A. at Chandori Post Office on 23.10.1979 (Annexure A-2) and has been thereafter working in the said post for the last 27 years. He submitted his application in the prescribed form for being considered to the Group 'D' post on the basis of seniority-cum-fitness and he was selected in the vacant post of Group 'D' vide letter dated 12.01.2006 read with letter dated 16.01.2006 issued by the Sr. Superintendent of Post Offices, Nashik Division, Nashik. He joined the said Group 'D' post on 17.01.2006. According to the Applicant, he was working in the post of Group 'D' post for more than 16 months. Subsequently, he received a notice dated 01.05.2007 asking him to show cause as to why his promotion to the cadre of Group 'D' should not be cancelled and as to why he should not be reverted as GDS. The Applicant represented vide dated 05.06.2007 3 OA.526/2007 and was informed vide dated 16.07.2007 that his selection to the post of Group 'D' was found irregular and his promotion to Group 'D' vide orders dated 12.01.2006 and 16.01.2006 was, therefore, cancelled. He was directed to join his parent post as GDS MD Chandori S.O. It is Applicant's contention that his initial selection was not challenged by any aggrieved EDAs and no complaints or any grievance were made about his selection and appointment to the Group 'D' post. It is also contended that the person senior to the Applicant has refused promotion to Group 'D' cadre. It is further stated that although the Applicant was at Sl.No.5 in the seniority list and he was selected and appointed to Group 'D' post but in the same selection another candidate at Sl.No.13 was selected but no irregularity was found in his appointment. It was also maintained that the Applicant fulfills all the eligibility conditions as prescribed in the Rules and he has been duly selected by a properly constituted Departmental Promotion Committee (DPC), therefore, his appointment cannot be said to be irregular or illegal. It is also maintained that Respondent No.3 could not review his own order of appointment.
3. The Applicant has sought the following reliefs:
4 OA.526/2007(a) This Hon'ble Tribunal be pleased to call for the records and proceeding leading to the issuance of memo dated 16.7.2007 and after ascertaining the propriety and legality thereof, quash it and set it aside.
(b) This Hon'ble Tribunal be pleased to direct the respondents to reinstate him as Group D with all consequential benefits;
(c) Such other orders as deemed fit in the facts of the case.
(d) Cost of the application be provided for.
4. We have gone through the pleadings, carefully perused the case papers placed on record and have extensively heard Learned Counsel Shri K.R. Yelwe for the Applicant and Shri V.S. Masurkar, learned counsel for the Respondents.
5. It is seen from the case papers that the Applicant had applied for the post of Group 'D' in Nasik H.O. and he was appointed to the said post vide order dated 17.01.2006. Subsequently, during the inspection undertaken by Preventive Vigilance Inspection of Nasik Division during the period from 13.11.2006, serious irregularities were observed in the selection of Group 'D' cadre. It was also noticed that the selection ought to have been held on the basis of seniority and the senior most GDS should have been selected. However, the Departmental Promotion Committee selected the Applicant who was 5 OA.526/2007 listed at Sl.No.5 of the list ignoring the candidature of candidates at Sl.No.1 to 4 as per the procedure prescribed. Further, no reason was attributed for non-consideration of the four employees who were senior to the Applicant.
6. The proceedings of the Departmental Promotion Committee Meeting held on 06.07.2005 is reproduced herein below for convenience:
As notified by P.M.G. Aurangabad No.AR/StaffIII/ RECTT.GR.D.05 Dtd 31-5-2005 the D.P.C. Meeting is held on 06.07.2005 for considering GDS for promotion to Gr.D Cadre to fill O/C and OBC category.
Following were present:1.
Shri. Y.P. Salve, SSPOs Nashik :Chairman
2.Shri K.W.Kambale Sr.Post Master :Member
3.Shri M.M. Peerzada Supdt.(T) Central Excise :Member The members are approved by RO Aurangabad L.No.AR/Staff-III/Rectt/Gr.D/05 dated 31-05-05.
Records of the 17 officials who was due for promotion as per seniority cum fitness were screened with the, Seniority list, the DPC members considered and recommended the following official for promotion to Gr.D cadre.
The examination for recruitment to the Gr.D cadre held on 10-04-05. No application from NTC was received therefore the unfilled vacancy of examination will go seniority quota.
Vide RO Aurangabad letter No. AR/StaffII/ Rectt/Grd.D/05 dated 15-0305. The posts are marked as 1 for O/C and 1 for OBC. According called application were scrutinized by the DPC. Out of the list of O/O candidate the official at Sl.No.5:
Name of official & Designation Date of Birth Date of app-Educational ointment Qualification Shri.R.R.Bagaskar GDS Chandori is
07.01.60 01.1.79 Xth Pass approved as Gr.Dand Shri R.B. Wagh BPM Ambad is 02.03.56 01.03.84 Xith Pass approved for waiting list.
However the clarification from RO be sought for the filling of the vacancy.
6 OA.526/2007From OBC list official at Sl.No.4:
Name of official & Designation Date of Birth Date of app-Educational ointment Qualification Shri.A.S.Aher 28.04.65 01.05.83 IX Pass GDS DA Ojharkhed is selected as Gr.D from OBC category subject to production of Cast Certificate from the competent authority as the cast certificate is issued by Executive Magistrate Dindori. He belongs to Hindu Pareet community.
Sl.No.5:Name of official Date of Birth Date of app-Educational & Designation ointment Qualification Shri.W.D.Waghmare 01.06.58 04.07.83 IX is selected for waiting list candidate subject to production of cast certificate from competent authority. The above proceedings reveal that 17 officials for promotion as per seniority-cum-fitness were screened and no justification was given for non- consideration of the candidates at Sl.No.1 to 4. Accordingly, R.O. Aurangabad vide dated 12.03.2007 issued directions to revert the Applicant posted as Group 'D' at Nasik H.O. to his original post of GDS after following due process. A notice was accordingly issued by the Sr. Post Master, Nasik H.O. being the Appointing Authority for Group 'D' cadre on 01.05.2007 to show cause as to why his promotion to the cadre of Group 'D' should not be cancelled and why he should not be reverted as GDS. Applicant thereafter submitted his representation on 05.06.2007 and after considering the same, the Appointing Authority ordered vide dated 16.07.2007 for termination of the services of the Applicant as Group 'D' and directed him to join the post of GDA DA 7 OA.526/2007 Chandori SO.
7. The case papers, therefore, establish that the selection of the Applicant by the DPC was in violation of orders contained in the Department of Personnel & Training OM dated 02.07.1997. The criteria of seniority was not followed and the candidates at Sl.No.1 to 4 who were senior to the Applicant were not considered although they were eligible for consideration. No cogent reasons or any justification was given by the DPC for non-
consideration of the candidates at Sl.No.1 to 4. In accordance with the OM dated 27.03.1997 issued by the DOP&T a provision exists that any decision taken by the DPC can be further reviewed by the review DPC. In pursuance of this OM, a review DPC meeting was held on 04.12.2007 and after following prescribed process the selection of eligible candidate was done.
8. It is also seen that the representation preferred by the Applicant vide dated 30.07.2007 was duly replied by the Respondents vide their letter dated 16.08.2007 which is reproduced herein below for convenience: Department Of Posts, India Office Of The Senior Superintendent Of Post Offices Nasik Division Nasik 422 001 No:PF/RRB/Gr.D/2007 dated 16/08/2007.
To Shri R R Bagaskar, 8 OA.526/2007 GDS DA Chandori SO.
Sub:DPC for promotion to GrD cadre and to continue as Gr D. Ref:Your application dated 30/07/2007.
With reference to your application cited above it is to intimate that selection of candidate at Sl No 13 was done against OBC quota. Against OBC quota there was only one vacancy and one candidate is selected. You have been selected against OC quota ignoring four seniors belonging to reserved community. The guideline on reservation stipulates that OC vacancy can be filled by a candidate belonging to reserved community if he is otherwise entitled.
The candidates at Serial No. 10,11 and 12 belonging to OBC Category were not selected by the DPC. The candidate at Serial No.13 is selected. DPC filters list of candidates and select suitable candidate for promotion. However whatever the criteria used for selection of candidate at Serial No.13 do not effect the selection process for the other vacancy under OC category to which you have been irregularly selected.
As regards your selection, four senior eligible candidates were ignored and therefore the selection is irregular as already intimated.
Under the circumstances given above, it is found that the selection is irregular and the orders issued vide this office letter No.PF/RRB/Gr D/2007 dated 16/07/2007 are Correct.
You are hereby advised not to resort to any illegal activity like hunger strike etc. (K RAVI BABU) Senior Superintendent Of Post Offices Nasik Division Nasik 422 001
9. It is an admitted fact that the selection for the post of Group 'D' was to be based on seniority-cum-fitness and the Applicant was junior to the candidates at Sl.No.1 to 4 who were eligible and had applied for the said post. Therefore, the selection of the Applicant by the DPC was correctly held irregular by the Respondents and the Applicant was issued a notice vide dated 01.05.2007 to show cause as to why his promotion to the cadre of Group 9 OA.526/2007 'D' should not be cancelled and why he should not be reverted as GDS. Full opportunity was given to him to present his case before the Competent Authority and the principles of natural justice were not violated in the present case.
10. It is also seen that after considering the Applicant's case alongwith his representation, a decision was taken by the Postmaster General, Aurangabad vide order dated 12.03.2007 communicated by SSPO, Nasik Division, Nasik letter dated 01.05.2007 to revert the Applicant to his original post of GDS.
11. In view of above, therefore, it is apparent that Group 'D' post was to be filled up on the basis of seniority-cum-fitness criteria, but the Departmental Promotion Committee had without any justification, selected the Applicant ignoring the candidature of the four candidates who were senior to the Applicant and, therefore, the entire selection was abinitio irregular and, therefore, void. A surprise check by Preventive Vigilance revealed the glaring omission and the Applicant was issued a show cause notice and after considering his reply, a decision was taken to terminate his appointment to the cadre of Group 'D' and was accordingly reverted. A review DPC was thereafter held and eligible 10 OA.526/2007 candidates were considered and selected. The Respondents have followed the principle of natural justice and a decision was taken to terminate is appointment to Group 'D' post after considering his representation. We, therefore, do not find any merit in the present Original Application.
12. In view of the above, therefore, the Original Application is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.