Central Administrative Tribunal - Ernakulam
Jayachandran.P vs The Central Provident Fund ... on 9 December, 2015
Author: P.Gopinath
Bench: P.Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.658/2012,
Original Applicaton No.741/2012
& Original Applicaton No.768/2012,
Wednesday this the 9th day of December 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
Original Applicaton No.658/2012
Jayachandran.P.,
S/o.P.S.Balakrishna Menon,
Senior Social Security Assistant (TBP),
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
Residing at House No.PURA-120, 'Ayodhya',
Parayil House, Pandathil Lane, Eroor North,
Tripunithura, Kochi - 682 306. . . . . Applicant
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. The Central Provident Fund Commissioner,
EPF Organization, Bhavishyanidhi Bhavan,
14, Bhikaji Cama Place, New Delhi - 110 066.
2. The Regional Provident Fund Commissioner - I,
Employees Provident Fund Organization,
Regional Office, Kerala, Bhavishyanidhi Bhavan,
Thiruvananthapuram - 695 004.
3. Shri.K.Padmakumar (TBP),
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Eranjipalam,
Calicut - 673 006.
4. Shri.S.Jaigopal,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
5. Ms.Meena C Rao,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
6. Ms.Rajalekshmy,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017. . . . . Respondents
(By Advocates Mr.N.N.Sugunapalan,Sr.[R1-2]
& Mr.P.Ramakrishnan[R3-6])
Original Applicaton No.741/2012
1. Sureshkumar.T.,
S/o.A.K.Kuttykrishnan Nair,
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Bhavishya Nidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
2. Ratnakaran P.,
S/o.late P.Kunhikannan,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, V.K.Complex,
Fort Road, Kannur.
Residing at Paya House,
P.O.Aroli, Kannur - 670 566.
3. Muraleedharan.L.M.,
S/o.P.Kunhiraman,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, V.K.Complex, Fort Road, Kannur.
Residing at Marvel, K.Kannapuram, Kannur - 670 301.
4. A.K.Sreekumaran,
S/o.late T.V.Mukundan Nair,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, V.K.Complex,
Fort Road, Kannur.
Residing at Chaitram, Parapoil,
Mattannur P.O., Kannur - 670 302.
5. Surendran.K.,
S/o.late M.Kunhiraman Nair,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, V.K.Complex,
Fort Road, Kannur.
Residing at Koyithatta House,
Pudukal P.O., Nileshwar (via),
Kasargod - 671 314.
6. Dayanandan.K.,
S/o.G.K.Chathukutty,
Section Supervisor,
Employees Provident Fund Organization,
Sub Regional Office, V.K.Complex,
Fort Road, Kannur.
Residing at Sreelakam, Kunnemmal House,
Payyoli P.O., Kozhikode - 673 522.
7. Syed Mustafa K,
S/o.Syed Gulam Hyder,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Snowshaan, Ponnath Thazham,
Chevarambalam P.O., Kozhikode - 673 017.
8. Jagathkumar G.,
S/o.P.A.Gangadharan Nambiar,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Jagath Vihar, Vengeri P.O.,
Kozhikode - 673 010.
9. Harimohan.A.,
S/o.late A.Narayana Kurup,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Vrindavanam, Koothali P.O.,
Koyilandi, Kozhikode - 673 532.
10. Anilkumar M.D.,
S/o.late M.E.Damodara Kurup,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Brindavan, Madhuravanam Road,
Civil Station P.O., Kozhikode - 673 020.
11. Krishnan M,
S/o.late C.P.Ramachandra Menon,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Indeevaram, Manakavu P.O.,
Kozhikode - 673 007.
12. N.V.Narayanan,
S/o.late Mani Deekshithar,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at 18/697, Puthen Kovilakam,
Thali, Kozhikode - 673 002.
13. Vipindas V.M.,
S/o.late V.E.Madhavan,
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Krishna, 18/642, Thavitterichalil,
Ummalathoor Road, Velliparamba P.O.,
Kozhikode - 673 008.
14. Premakumaran P., S/o.P.Ganapathy,
Enforcement Officer, Employees Provident Fund Organization,
Sub Regional Office, Bhavishyanidhi Bhavan,
Eranhipalam P.O., Kozhikode - 673 006.
Residing at Paladan House, Thokkampara,
Kottakkal, Malappuram P.O. - 676 503. . . . . Applicants
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. The Central Provident Fund Commissioner,
EPF Organization, Bhavishyanidhi Bhavan,
14, Bhikaji Cama Place, New Delhi - 110 066.
2. The Regional Provident Fund Commissioner - I,
Employees Provident Fund Organization,
Regional Office, Kerala, Bhavishyanidhi Bhavan,
Thiruvananthapuram - 695 004.
3. Shri.K.Padmakumar (TBP),
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Eranjipalam, Calicut - 673 006.
4. Shri.S.Jaigopal,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
5. Ms.Meena C Rao,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
6. Ms.Rajalekshmy,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017. . . . . Respondents
(By Advocates Mr.N.N.Sugunapalan,Sr. & Mr.S.Sujin [R1-2]
& Mr.P.Ramakrishnan[R3-6])
Original Applicaton No.768/2012
1. V.R.Ajithkumar,
S/o.N.R.Varma,
Senior Social Security Assistant,
Employees Provident Fund Organization,
IAP Trivandrum Regional Office,
Pattom, Trivandrum.
Residing at Aravindam, Temple Road,
Thrikkakkara, CUSAT P.O., Kochi - 22.
2. M.Anand Ram,
S/o.R.Mahadeva Iyer,
Senior Social Security Assistant,
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at TC.20/2604(1), S.S.Street,
Karamana, Trivandrum.
3. P.V.Samuelkutty,
S/o.P.C.Varghese,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at Pulipreth House,
Netaji Road, Vattiyoorkavu, Trivandrum.
4. Smt.Malini Ramesh,
W/o.R.Ramesh,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at TC.52/1312(4), Pranavam,
Vishnu Nagar, Poozhikunnu,
Pappanamcode, Trivandrum.
5. Smt.K.C.Seena,
W/o.R.Sundaresan,
Senior Social Security Assistant,
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at TC.3/535(1), Souparnika,
Gandhi Smaraka Nagar, Muttada P.O.,
Trivandrum.
6. Sheela G Menon,
W/o.B.Gopalakrishna Menon,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at Gokulam, Kuthirakulam P.O.,
Vembayam, Trivandrum.
7. L.Geetha,
W/o.G.Sugopakumar,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at H.No.50, Sree Nagar,
Paruthippara, Thiruvananthapuram.
8. K.V.Pradeep,
S/o.K.V.Vijayaraghavan,
Senior Social Security Assistant (TBP),
Employees Provident Fund Organization,
Regional Office, Pattom, Trivandrum.
Residing at 2B, Samrudh Hill Apartments,
Navodaya Gardens, Panavila,
Nalanchira P.O., Trivandrum.
9. Ashokakumar.P.,
S/o.Padmanabhan Nair,
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Kollam.
Residing at Pooyampallil, Vettuveli . . . . Applicants
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. The Central Provident Fund Commissioner,
EPF Organization, Bhavishyanidhi Bhavan,
14, Bhikaji Cama Place, New Delhi - 110 066.
2. The Regional Provident Fund Commissioner b� I,
Employees Provident Fund Organization,
Regional Office, Kerala, Bhavishyanidhi Bhavan,
Thiruvananthapuram - 695 004.
3. Shri.K.Padmakumar (TBP),
Senior Social Security Assistant,
Employees Provident Fund Organization,
Sub Regional Office, Eranjipalam,
Calicut - 673 006.
4. Shri.S.Jaigopal,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
5. Ms.Meena C Rao,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017.
6. Ms.Rajalekshmy,
Senior Social Security Assistant,
Office of the Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub Regional Office, Kaloor, Cochin - 682 017. . . . Respondents
(By Advocates Mr.N.N.Sugunapalan,Sr.[R1-2]
& Mr.P.Ramakrishnan[R3-6])
These applications having been heard on 11th November 2015 this
Tribunal on 9th December 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants herein working as a Senior Social Security Assistant (TBP) in PB-2 with a Grade Pay of Rs.4200/- in the Sub Regional Office of the Employees Provident Fund Organization are aggrieved by (A1) Circular dated 21.2.2012 issued from the office of the 2 nd respondent upsetting the seniority of the applicants in the cadre of Upper Division Clerk/Social Security Assistant vis-a-vis the respondents 3 to 6. The applicants initially joined as Lower Division Clerks and their next promotion is to the cadre of Upper Division Clerks. The vacancies in the cadre of Upper Division Clerks are to be filled - 50% by Departmental Examination (called as Examination Quota - EQ) and the remaining 50% based on seniority cum fitness. The applicants participated in the examination and qualified in the same. Against the substantive vacancies of Upper Division Clerks some of the applicants were promoted. Though A-3 and similar orders as regards other applicants state that the promotions were on adhoc basis, as a matter of fact the promotions were on regular basis. The applicants continued to hold the post without break until they were shown to have been regularly appointed as an Upper Division Clerk with effect from various dates. Subsequent to the applicants' regular promotions, the applicants were promoted as Senior Social Security Assistants.
2. The applicants submit that the official respondents conducted another departmental qualifying examination against the 50% quota during the year 1999 after the 1997 panel was exhausted. The 7 th applicant Smt.L.Geetha in O.A.No.768/2012 is the 3 rd rank holder in 1999 Examination. The Respondent No.3, Shri.K.Padmakumar, qualified during 1997 along with the applicants except Smt.L.Geetha and his name is at A-2 at Sl.No.29. In A-5 other respondents 4 to 6, namely, M/s.S.Jaigopal, Meena C Rao and S.Rajalakshmy are persons who qualified in the 1999 examination and their places can be seen at Sl.Nos.1, 5 and 7 respectively. The applicants submit that apart from the first three in A-5 (order communicating the result of the examination conducted during the year 1999) no others were promoted on adhoc basis. The applicants submit that while they were regularly promoted with effect from the date shown in column (4) of the table at para 4(f) of the O.A, respondents 3 and 4 were regularly promoted with effect from 22.3.2005 as evidenced by an Office Order No.55/2005 dated 1.4.2005.
3. In the meanwhile, the designation of Upper Division Clerks was revised as Social Security Assistants. Some of those who had succeeded in the 1999 qualifying test and who were not promoted on adhoc basis had approached this Hon'ble Tribunal in O.A.No.691/2009 and O.A.No.709/2009 and later the Hon'ble High Court of Kerala and based on the decisions the 2nd respondent passed Annexure A-9 Office Order bearing No.196/09 dated 23.9.2009. In A-9 the 5 th respondent at Sl.No.2 and the 6 th respondent at Sl.No.4 have been promoted as Upper Division Clerks on adhoc basis with retrospective effect from 31.3.2001, though most of them had not held the post de-facto or on any other temporary arrangement. Subsequently, it is submitted that the party respondents were proposed to be regularly promoted as Upper Division Clerks with effect from 31.3.2002.
4. Almost simultaneously, one Ms.Hajira.P.K had also approached this Hon'ble Tribunal by filing O.A.No.725/2009 which was decided by order dated 15.3.2011 marked as Annexure A-12. In A-12 the adhoc promotion of Ms.Hajira.P.K., who had qualified along with the applicants except the 7 th applicant Smt.L.Geetha, in the 1997 examination can be seen to have been directed to be regularized with effect from date of her adhoc promotion, namely, 19.2.1998. It is seen from A-2 that Ms.Hajira.P.K is at Sl.No.31 as against the applicants' positions at Sl.Nos.10, 8, 11, 17, 21, 3, 19 & 28. It is not known whether the decision of this Hon'ble Tribunal in Ms.Hajira's case has been implemented or not, but to the best of the applicants' knowledge, the same has so far not been varied or modified by any process known to law. However, the official respondents implemented the decision as regards the respondents 3 to 6 herein and it also appears that they have been treated to have regularly appointed as Upper Division Clerks/Social Security Assistants with effect from 31.3.2002 as evidenced by A-10 and A-1. The applicants submit that they were not aware of the litigations set in motion by the respondents 3 to 6 nor were the applicants a party to the same. The applicants produced Annexure A-14 the final seniority list of Social Security Assistants updated as on 31.3.2011, published by the 2nd respondent. In A-14 the name of the applicants No.1 to 9 can be seen at Sl.Nos.275, 277, 270, 318, 326, 246, 337, 320 and 330 respectively. The respondents 3 to 6 are at Sl.Nos.331, 335, 339 and 341 respectively in A-14. This was the position remaining settled for about 9 years. It is this settled final seniority which has now been upset by the issuance of A-1 Circular.
5. Having come to know of the developments and the decision of the Hon'ble Tribunal in Ms.Hajira's case and the other decisions, the applicants submitted representations addressed to the 2 nd respondent. The applicants were informed that their cases could not be considered since the department had decided to file a review application before this Tribunal. The applicants submit that prior to the assignment of seniority of the respondents 3 to 6 over the applicants, the applicants were not given a reasonable opportunity to show cause nor was the applicants heard at any point of time.
6. Respondents in their reply statement submit that the post of UDC was filled up from the eligible LDCs by promotion on the basis of seniority cum fitness (DP) and by qualifying in the departmental examination (EQ) on the ratio 1:1. The departmental test conducted for this purpose was qualifying in nature and not competitive. Thus all the candidates who secured the minimum qualifying mark were placed in the select panel without regard to the actual vacancy at the time of notifying or conducting the examination.
7. A new cadre of Social Security Assistant (SSA) was introduced in the year 2004 merging the posts of LDC and UDC. On introduction of the new cadre, all regular UDCs were converted and re-designated as SSA. Subsequently all adhoc UDCs were also allowed conversion giving a onetime exemption. Further, all existing LDCs were allowed conversion to the post of SSA, on their passing of computer skill test conducted for the purpose. At present SSA is the entry level of the clerical cadre in EPFO.
8. During the year 1996, Departmental examination in Kerala Region was notified for promotion to the post of UDC under examination quota. The examination was a qualifying examination and 32 officials under General category and 2 officials under SC category were declared successful. In the year 1997, the post based roster system was introduced in the place of vacancy based system vide Office Memorandum No.36012/2/96-Estt. (Rew.) dated 2.7.1997. Due to the ambiguity in the procedural aspects of changing over from the existing vacancy based roster, the actual vacancies against each quota could not be ascertained at that time. However, considering administrative exigency all the candidates declared qualified, including the 3rd respondent herein who secured 29th rank in the examination held in the year 1997, were given adhoc promotion with effect from various dates as evidenced from Annexure A-3 and Annexure A-6, as a stop gap arrangement, without considering the category to which they belong. Again during the year 1999, another departmental examination was held for promotion to the post of UDC at all India level. Though there was no identified vacancy in Kerala Region, in order to have a panel, examination was held for general category also, irrespective of the fact that the successful candidates of 1997 batch were still waiting to get promotion on regular basis against their respective Examination Quota. The departmental examination for promotion to the post of UDC is a qualifying examination, 25 candidates under General Category were declared successful but no SC/ST candidate was declared successful in the examination held in January, 1999. Out of the successful candidates, the first 3 rank holders ie. 4th respondent herein and 2 others were given promotion to the post of UDC on adhoc basis on 12.11.1999 against short term adhoc vacancies. Subsequently in 2002, a DPC was convened to identify the vacancies and to regularize the eligible incumbents against the regular vacancies from 2.7.1997 onwards after introduction of post based roster. It can be seen from the proceedings that the vacancy under Examination Quota against General Category has been recalculated and in that process 14 persons were found excess in position as on 2.7.1997 against 3 vacancies reported earlier for conducting the examination. The Committee, however, identified 11 posts under EQ in General Category as on 31.3.2002 after taking into account the additional posts sanctioned, post released due to retirement, promotion etc. and the 11 top ranked officials in the Annexure A-2 list (1997 examination) were recommended for promotion on regular basis to the post of UDC. The 11 vacant positions available to the general category as on 31.3.2002 were consumed by the officials ranked 1 to 11 in the 1997 select list. Subsequently 2 vacancies fell due under the general category in examination quota during 2002-03 and 7 vacancies in 2003-04. The officials having rank 12 to 20 in the 1997 list were accommodated against the said vacancies.
9. During the year 2004, new SSA cadre was introduced having the same pay scale of UDCs and the UDC cadre was declared dying cadre. All existing regular UDCs were re-designated as SSA in relaxation of the initial constitution clause of the Recruitment Rules for SSA. During February 2005, Head Office vide letter No.HRM-III/1(1)/2004/SSA/Pt./82967 dated 15.2.2005 allowed regularization of the officials holding the post of UDC (since re-designated as SSA) on adhoc basis. The reasoning behind the decision was that 2592 posts of LDCs were merged in the cadre of SSA which created sufficient number of posts in SSA cadre to accommodate the adhoc UDCs also. The rank holders from 21 to 32 of 1997 examination batch and the first three rank holders in the 1999 examination batch were accordingly regularized with effect from 22.3.2005, giving benefit of the above decision. None of the above officials more particularly the applicants in O.A.No.691/2009 & O.A.No.709/2009 who are also respondents 3 to 6 in this O.A expressed any dissent or dissatisfaction to the above decision and accepted the conversion. The existing LDCs including the persons ranked 4 to 25 in the 1999 select list, who could not secure promotion to the post of UDC as on the date of notification of the post of SSA were given an opportunity to become SSA by passing a computer skill test. However, 10 similarly placed LDCs who had also qualified in the Departmental Examination for promotion to the post of UDC held in 1999, refused to undertake the skill test and filed O.A.No.281/2005 and 341/2005 before this Tribunal seeking directions to promote them in any of the 27 carried forward back log vacancies in the cadre of UDC and to declare that they are eligible to get promotions to UDC post prior to the issuance of Recruitment Rules of SSA and also to direct the respondents to grant exemption to the applicants who secured rank in the departmental examination for promotions to UDCs from passing the proposed skill test. The Tribunal allowed the O.As vide common order dated 28.2.2006 observing :
'in the result, considering the special circumstances that the cadre of UDC in this Department is a vanishing cadre and the one time measure adopted by the Department to regularize all the adhoc promotions, we are inclined to allow the prayer of the applicants for considering them against the backlog of vacancies in the UDC cadre during the period 31.3.1998 to 31.3.2004 and to extend to them the same benefits of regularization against these vacancies irrespective of the category of the vacancies. Accordingly, we direct the respondents to determine the year wise vacancies in the examination quota and to give them all consequential benefits.'
10. The applicants in the O.As as well as the respondents approached the High Court of Kerala with WP(C) Nos.15787, 15888, 17045 & 20680 of 2006 against the Annexure A-11 order. The High Court vide common judgment observed that :
'the direction issued by the Tribunal without any reference to rules, or rather in violation of the rules to accommodate the remaining Lower Division Clerks as Social Security Assistant cannot be sustained. The Tribunal cannot act as a knight errant and help everyone in distress. It can act only according to law.'
11. The High Court taking note of the extract of post based roster furnished in paragraph 8 of the order of the Tribunal, directed the competent authority, who is the 2nd respondent herein, to promote the persons included in 1999 list after excluding the first three who were already promoted, to the four vacancies available as on 31.3.2001 and eleven vacancies available as on 31.3.2002. This direction was issued without appreciating the fact that only 11 vacancies were available cumulatively upto 31.3.2002 and these position were actually consumed by the first 11 rank holders of the earlier 1997 batch when the regularization was done on 28.5.2002. These positions were shown as vacant as on 31.3.2002 due to delay in conducting DPC consequent upon the revision of rosters and the said vacant position got nullified when DPC meeting dated 28.5.2002 placed the eligible persons from the 1997 exam to vacancies in the respective slots. The 2nd respondent admits that it was a failure on his part, though inadvertently, to get the above order of the High Court reviewed by bringing out the factual position then and there itself. A DPC was held on 23.9.2009 on the basis of order dated 7.8.2009 of the Hon'ble High Court and the DPC recommended promotion of all the remaining candidates in the select list of 1999 batch to the erstwhile UDC post as in the case of the first 3 candidates in the rank list and conversion to the post of Social Security Assistant. The first three candidates were granted promotion on adhoc basis and were regularised in the SSA post with effect from 22.3.2005. Accordingly, the remaining 21 candidates, excluding Shri.Sumul Das (rank 21) who had been appointed as Data Entry Operator on regular basis earlier, were promoted to the erstwhile UDC post with effect from 31.3.2001, 31.3.2002 & 31.3.2003 on adhoc basis and regularized in the cadre of SSA with effect from 22.3.2005. At that juncture, applications were invited from eligible candidates for appearing in departmental examination for promotion to the post of Enforcement Officer/Accounts Office vide Circular dated 11.9.2009. The eligibility criterion for appearing in the above departmental examination was 5 years regular service in the case of Social Security Assistants. Some SSAs who had less than 5 years regular service applied for the examination and their applications were summarily rejected. Aggrieved by the rejection of the applications Shri.S.Jaigopal (rank no.1 - 1999 list) and Shri.Padmakumar (rank 29 - 1997 list) filed O.A.No.691/2009 before this Bench. Similarly O.A.No.709/2009 was filed by Smt.Meena.C. Rao (rank 5
- 1999 list) and Rajalekshmi.P (rank 7 - 1999 list) and O.A.No.725/2009 was filed by Smt.P.K.Hajira (rank 31 - 1997 list). All these officials were promoted to the post of Social Security Assistant on 22.3.2005 and had less than 5 years service on the cut off date of eligibility for appearing in the examination thus rendering them ineligible for the examination. However, they were permitted to appear in the examination on the strength of an interim order of the Tribunal in these O.As. But Smt.P.K.Hajira did not appear in the examination. The above O.As were filed mainly on the question of eligibility for appearing in the examination for the post of EO/AO. However, the Tribunal while allowing the above O.A.Nos.691/2009 & 709/2009 vide common order dated 4.11.2010 in Annexure A-11 declared that the applicants, who are respondents 3 to 6 herein, are to be treated as promoted to UDCs with effect from 31.3.2002 and on assigning such promotion, the applicants are entitled for appearing in the examination and that the applicants are entitled for consequential benefits based on their seniority position for appointment to the higher post keeping in view the direction of the Hon'ble High Court in WPC No.15787/06 and connected cases. The Tribunal erred in equating the cases of the applicants in both O.As. The applicants in O.A.No.691/2009 were not party to the said WP or any connected matter and they cannot derive any benefit out of it. In the case of the applicants in O.A.No.709/2009 also they had already been granted all the eligible benefits pursuant to the judgment dated 7.8.2009 and no further benefit were due to them.
12. In O.A.No.725/2009 filed by Smt.P.K.Hajira, the Tribunal vide order dated 15.3.2011, directed the respondents to promote the applicant to the post of UDC on regular basis with effect from 19.2.1998, ie. the date on which the applicant was promoted on adhoc basis against the vacancy pertaining to SC/ST category, with all consequential benefits. As the said order of the Tribunal is not in conformity with EPF staff (Fixation of Seniority) Regulations, 1989, Review Application No.35/11 had been filed against the above order which is pending at CAT, Ernakulam Bench. When the Review Application was not allowed by the CAT, Ernakulam Bench, the department approached High Court with OP (CAT) No.2966/2011 in OA No.691/2009 and OP (CAT) No.3149/2011 in OA No.709/2009. As the applicants in these O.As had relied on the judgment dated 7.8.2009 of the Division Bench of High Court in WPC No.15787/2006 & connected cases, R.P.Nos.662/2011, 709/2011, 710/2011 & 712/2011 were filed in order to get the said order reviewed by the Court detailing the factual position of non availability of regular vacancy to accommodate the applicants in O.A.Nos.281/2005 and 341/2005. In the meanwhile RPFC, Kerala issued an updated seniority list of Social Security Assistants appointed/promoted up to 31.3.2007 updated as on 31.3.2011. The said list is only an updated and consolidated position of the already finalized seniority in the cadre vide several office orders, removing the names of persons who had already left service, promoted regularly to higher post etc. and also correcting typographical mistakes in names etc. No attempt was made to alter the seniority already finalized. The High Court was not inclined to review its order dated 7.8.2009 in WPC No.15787 and connected cases and dismissed the Review Petition No.662/2011 and connected cases along with OP (CAT) No.2966/2011 and OP (CAT) No.3149/2011 vide order dated 12.1.2012 stating that :
'The present stand is that the said statements by the Department before the Tribunal were factually incorrect and the tabulation of those facts by the Tribunal in its order has led to its decision. That error of fact is said to have been carried over in the judgment of the Division Bench of this Court, which is now sought to be reviewed. This means that the so called error is in the proceedings before the Tribunal. No review was moved before the Tribunal for correction of those errors. The rectification of those alleged errors, at this distance of time, in our view, is unnecessary on the totality of the facts and circumstances and no useful purpose will be served except to create heartburn for the employees in view of the settled position obtained by the DPC's decision dated 23.9.2009. We do not find any ground justifying exercise of the power of review even in that regard.
For the aforesaid reasons, the captioned review petitions are dismissed. As a consequence, the original petitions, which are dependent on the outcome of the review petitions, would also stand dismissed.'
13. It is submitted that in fact there were no errors in the tabulations in the order dated 28.2.2006 of this Tribunal in O.A.No.281/2005 and 341/2005. The Review Petition was mainly filed bringing out the factual position that the vacancies as reflected in the tabular form in para 8 of order dated 28.2.2006 in said O.As were actually filled up by first 11 rank holders of 1997 examination. Hence the respondents contend that the High Court failed to notice this factual position. It is submitted that while dismissing the OP(CAT) No.2966/2011 & 3149/2011 along with RP No.662/2011 and connected cases, the High Court failed to notice that the position of applicants in O.A.No.709/2009 were actually settled by the DPC's decision dated 23.9.2009. With the dismissal of Review Petitions and OP(CAT)s vide the order/judgment dated 12.1.2012 the 2 nd respondent was left with no other option but to implement the order dated 4.11.2010 of the CAT vide which the Tribunal had declared the applicants in O.A.No.691/2009 & 709/2009 to be treated as promoted as UD Clerks with effect from 31.3.2002, though there was no regular vacancy to promote them on the said date and it also upsets the settled position obtained by the DPC's decision dated 23.9.2009 in the case of applicants in O.A.No.709/2009. By doing so the department was compelled to treat the applicants in the O.As, who are eligible for regular promotion to the post of UDC from 22.3.2005 only, to be promoted from 31.3.2002, thereby upsetting the seniority of more than 100 senior officials, including those who had secured higher ranks in the 1997 UDC examination than the applicants in O.A.No.691/2009 and O.A.No.709/2009. It is submitted that Annexure A-1 was issued in compliance with the common order dated 4.11.2010 of this Tribunal in O.A.No.691/2009 and 709/2009 in view of dismissal of petitions bearing numbers OP (CAT) No.2966/2011 and 3149/2011 filed by the department vide common judgment dated 12.1.2012 by the High Court of Kerala and in view of the Contempt Petition No.63/2011 filed by the applicants in O.A.No.691/2009. Since there was no regular vacancy to accommodate General category candidates under Examination Quota during the relevant periods promotions were made on adhoc basis only as a stop gap arrangement as evidenced from Annexure A-3 order. It is not correct to state that some of the applicants were promoted to substantive vacancies.
The order dated 15.3.2011 in O.A.No.725/2009 directing the respondents to regularize the applicant Ms.P.K.Hajira who secured 31 st rank in the departmental examination held in 1997, with effect from 19.2.1998 - ahead of first 30 rank holders in the said examination, is in violation of EPF Staff (Fixation of Seniority) Regulations 1989 and hence, the respondents have filed R.A.No.35/2011. The order dated 15.3.2011 of this Tribunal in O.A.No.725/2009 filed by Smt.P.K.Hajira is pending for review in R.A.No.35/2011. In this regard it is submitted that there was no vacancy available to accommodate any of the candidates declared successful in the 1997 UDC examination under general category as on 31.3.1998. The vacancies available belonged to SC/ST candidates against which promotions were given to general candidates only on adhoc basis as a stop gap arrangement in the absence of SC/ST examination qualified candidates. In para 4 and 5 of the judgment dated 7.8.2009 in WPC No.15787/2006 and connected case, the High Court has observed that the claim of the petitioners for reserved vacancies cannot be upheld and the direction issued by the Tribunal without any reference to rules, or rather in violation of the rules to accommodate the remaining Lower Division Clerks as Social Security Assistants cannot be sustained.
14. Heard the counsel for the parties and considered the detailed submissions made in the long history of litigations in the matter under consideration in the judicial forum. This is a case where piecemeal presentation of facts arising out of insecurity in implementing changes in an organization has resulted in orders which has overlooked the existence of statutory orders. The three O.As are being heard together and disposed of by this common order. The impugned order in all the three O.As is the same. The facts in O.A.No.768/2012 is being referred in this judgment. This is a case where compliance of continuous litigations have made the respondents overlook the staff regulations which lay down how interse seniority of persons promoted on the basis of departmental examination is to be fixed.
15. Promotion to the post of UDC was 50% by seniority cum fitness and 50% by departmental examination. Applicants are from 1997 examination. Party respondent no.3 is qualified in 1997 examination and other party respondents have qualified in 1999 examination at position 1, 5 and 7. Hence there was a seniority established by the year of exam and the rank obtained in the exam which was sought to be disturbed. Annexure A-2 examination result shows the rank in the last column and all applicants have a higher rank than party respondent no.3 who is at rank 29. The ranking drawn up as a result of departmental examination should be final and not disturbed.
16. In the O.A.No.691/2009 and 709/2009 filed by party respondents, applicants were not made parties. The applicants in the O.A relied on the statement in the rejoinder that there were vacancies to promote the applicants as per judgment of the High Court. But this statement could not have been made in a vaccum but under the surmise that the vacancies should be filled up as per year of examination and the rank so held in the said examination as stipulated in the Examination Quota. One party respondent is junior to the applicants in the 1997 examination and three party respondents have qualified in subsequent examination in 1999. As per R-4 (ii) of the Employees Provident Fund Staff (fixation of seniority) Regulation, 1989, which is statutory in nature, the inter se seniority of persons promoted to various grades is to be fixed on the basis of departmental examination; the persons qualified in an earlier examination will be senior to those qualified in subsequent examination. But the 2nd respondent had to promote party respondent 3 to 6 with effect from 31.3.2002 and place them above their seniors, in violations of above regulation 4(ii) in compliance of orders dated 4.11.2010 in O.A.No.691/2009 and 709/2009. This was despite the fact that there were no vacancies to accommodate the applicants in the O.A supra. The respondents filed OP (CAT) against the above order of 4.11.2010 which was dismissed and hence 1 st and 2nd respondents had no option but to implement the order. Respondents admit their failure in getting the order of High Court reviewed by placing the factual position of filling up the examination quota as per vacancies existing and the reservation roster maintained. They simply implemented the orders without analysing or realising the consequence of violating the fixation of seniority regulations. The official respondents state that O.A.No.691/2009 and 709/2009 were filed on the question of eligibility of appearing in the examination for the post of EO/AO and this Tribunal in its common order permitted the applicants therein (who are respondents 3 to 6 in these O.As) to be treated as promoted as UDC and on assigning such promotions, applicants therein were made entitled to appear in the examination and consequential benefits based on their seniority position for appointment to the higher post. The decision in those O.As gave benefits to applicants in O.A.691/2009 who were not party to WPC in High Court and who were not entitled to the seniority as per Staff Regulations only because all the facts were not placed before the Hon'ble High Court.
17. Party respondents in their arguments submitted that they would have no objection if the seniority established as a result of ranking generated by the 1997 examination result in Annexure A-2 and subsequent examination in 1999 is followed as per Staff Regulation and seniority allocated accordingly as per statutory staff regulation. Therefore, 1 st and 2nd respondents are directed to fix the seniority of applicants and party respondents as per clause 4 (ii) of fixation of seniority regulation which lays down that inter se seniority of persons promoted to various grades on the basis of departmental examination will be fixed in a manner that persons qualified in an earlier examination will rank senior to those qualified in a subsequent examination. In a particular examination the ranking allotted to candidates who qualify the examination will also be strictly adhered to for the purpose of promotion and as per vacancies available. In both cases the reservation roster will be followed for filling up vacancies in the departmental examination quota. Accordingly, the reliefs (iii) and (v) sought for by applicants are hereby allowed. No costs.
(Dated this the 9th day of December 2015)
P.GOPINATH N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp