Central Administrative Tribunal - Delhi
M.S. Mandhaiya S/O Shri Harphul Singh vs Union Of India (Uoi) Through Foreign ... on 6 November, 2007
ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicant has filed the present O.A. after his superannuation. While working as Consul General of India, Medan, Indonesia, it is pointed out that in respect of certain grievances, he had, in fact, filed a Writ Petition No.16004/2006 before the Hon'ble High Court of Delhi. However, he was permitted to withdraw the Writ Petition, as requested for by him, on 04.04.2007 and liberty had been rested with him to approach the Central Administrative Tribunal. It is submitted that the present application is filed in the said circumstances.
2. The averments in the application show that he had been recruited to the Indian Foreign Service, Branch `B' on the basis of a competitive examination, on 15.05.1976 against the reserved quota of SC/ST in the integrated Grades-II and III. He had been promoted as Section Officer on 08.06.1983. During the said period, certain proceedings were pending before the High Court as well as Supreme Court, and the applicant points out that finally a principle had come to be adopted that continuous officiation was to be accepted as the basis for fixation of seniority. However, in the seniority list published, his name had been initially placed far below his actual date of eligibility in the General Cadre of IFS (B) personnel and as 27.01.1984 but submits that it had been later on corrected to 08.06.1983 by Exhibit P-6. However, according to him, the above mistake had nagged him all throughout his career and his due position of seniority had not been recognized and the normal promotions admissible to him evaded him. The applicant submits that an Original Application at his instance had come to be filed as OA 566/1995, and there was a peremptory order to expedite decision but there was no compliance made with the directions. Applicant also refers to a second Writ Petition filed in the year 1997 but he had opted to withdraw it on advise. Although he had not referred to the adverse orders passed in a petition filed by him as OA 306/1997 dated 17.08.2000, a copy of the order is seen to have been produced as Annexure R-1 along with the counter affidavit. Challenging the above said order, the applicant had filed Writ Petition No. 155/2001 and heavily relies on its outcome. A copy of the order produced, dated 13.9.2001 indicates, however, that the applicant had sought to withdraw the petition. The High Court had been apprised that a seniority list of Section Officers had been published on 20.7.2001 wherein he has been assigned a proper place. He wanted only his claims for consequential benefits to be considered. The Court had directed that sustainability of consequential benefits were to be examined in accordance with the rules, within a short period of time. The applicant submits that after the above orders, he had been constrained to make dozens of representations, but no positive steps had been taken, and this amounted to violation of the orders passed by the High Court, as could be gatherable from the circumstances.
3. He has specifically impugned, however, an order passed by the respondents dated 12.01.2006 whereby he had been informed that a few of the grievances were looked. In the order he had been categorically advised that he could not have been granted the rank of First Secretary from a retrospective date but nevertheless the matter too was being re-examined. However, the order advised him that there was no possibility of changing grant of year of appointment of 1996 already endorsed in the records of his service.
4. The relief prayed for in the application is to direct the respondents to grant him IFS `B' Grade-I effective from 23.12.1992, as per the revised seniority list of 20.07.2001 and also to direct the respondents to promote the applicant to the First Secretary rank with retrospective effect from the date when promotion was due in normal course taking his date of eligibility w.e.f. 23.12.1992. Consequential reliefs also have been sought for.
5. Dr. K.R. Punia had addressed us, on behalf of the applicant and we had also heard Shri A.K. Bhardwaj appearing on behalf of the respondents. Dr. Punia had highlighted the claims principally on the basis of G.S. Lamba and Ors. v. Union of India and Ors. (Writ Petition(Civil) No. 13248 to 13257/83) where the Supreme Court had examined the issue of quota and rotation in very minute terms. Counsel points out that so long as the decision binds all concerned, it should have been held that applicant's due position, in the matter of his promotions ought to have been appropriately refixed, and the error which had been committed by the respondents, and which ultimately had led to a set back in his service, ought to have been rectified. He submits that the single circumstance where he had not been given his due place, as Section Officer, in the year 1983, had fundamentally interfered with his career, and the authoritative pronouncements of the Supreme Court should have been taken cognizance of and implemented in his case in letter and spirit. The counsel further submits that in view of the directions passed by the Delhi High Court in Writ Petition No. 155/2001, there was a duty cast on the respondents for examining the applicant's case for grant of consequential benefits pursuant to the revised seniority and the issue has not been approached by the respondents, with any sense of justice, and, therefore, the applicant was entitled to the reliefs prayed for. The monetary benefits also ought to have been released as the denial of due promotions required to be compensated, since in any case he was not answerable for the imbroglio.
6. Mr. Bhardwaj, on behalf of the respondents, however, submits that the applicant is under a misapprehension, especially all of his sustainable claims have been duly taken notice of and he had been advised appropriately in the matter. He points out that after the impugned order dated 12.01.2006, admittedly communications have gone to him, on 01.03.2006 as well as 15.06.2006. The applicant had been advised that the issues raised by him had been re-examined. It is submitted that the applicant could not have harped on a position that he had not been granted the benefit of the Supreme Court judgment in G.S. Lamba and Ors. (cited supra). On the other hand, it is submitted that the benefits had come to him, as the Department had retraced their steps and it had been found that there was some error while conferring of due date of promotion to certain personnel, as Section Officers. He submits that it is rather strange that the applicant is complaining that judgments obtained by him have not been duly implemented. The applicant could not have gained any benefits because of the judgment obtained by him in O.A.306/1997 dated 17.08.2000. Identical claims, as presently urged, had been raised by him, but a Bench had dismissed the claim on merits. The judgments had not been interfered with, later on. Of course, the applicant had filed writ petition challenging the order, but had withdrawn the proceedings, by making a submission that the reliefs prayed for by him had already been granted to him by the Department. However, care was not taken by the individual to get the observations as against him expunged.
7. Mr. Bhardwaj invited our attention to OM dated 20.7.2001, which had been referred to by the applicant as well. In OA 567/1999, the Principal Bench of Central Administrative Tribunal had issued general directions to review, recheck and reconsider the seniority lists of Grade II and Grade III of IFS (B) Officers, by giving general notice to all concerned. After receiving representations, a final list was to be formulated. The list appended to the order was after following such procedure, and the applicant was a beneficiary, although in his challenge earlier, he had lost the case. But the Department had taken note of the general pattern, and the applicant thereby had conferred benefits as made admissible to other officers as well. The applicant alone, however, had remained disgruntled, he suggests.
8. Counsel submits there was some delay in the full implementation of the order because of certain other pending proceedings. But, however, on 01.03.2006, applicant had been advised that the grant of year of allotment being governed by Rule 15 (4) of IFS (RC SP) Rules, and since the proviso to the rule stipulated that year of allotment cannot be earlier than 8 years preceding the date of actual promotion, his further claims could not be conceded.
9. We find that when the rules provide that retrospectivity could not have been granted earlier than 8 years preceding the date of actual promotion, the year of allotment had been adjudged as 1996. It was as per the rules and the applicant could not have successfully raised any valid grounds or grievances in the face of the rules.
10. In respect of the claim of the applicant for grant of a rank position as First Secretary from an earlier date, he had been advised that since the date could not have been pushed back from 1996, his claim on the basis of a notional date of 1992 could not at all have been possible to be granted. Officers, who had completed six years service in the grade alone, were entitled to grant of rank of First Secretary by the Foreign Service Board. However, this also was not automatic. The claim had to be appropriately adjudged by the competent authority.
11. There was no rule authorizing grant of rank from any retrospective date and it is submitted that there were no instances, of any persons being picked up from First Secretary status on the date of eligibility. Therefore, the claim for a rank from 1998, as requested for was purely inadmissible. Mr. Bhardwaj submits that an equitable treatment was meted out, and also adverts to the order dated 15.06.2006 (Exhibit P-16) and points out that the revision of seniority list of Section Officers led to a revision in promotion in Grade-I of IFS `B' officers in respect of a large number of persons. An equal number had lost their position because of the exercise. Counsel also submits that the applicant had been advised that the claim for grant of arrears of pay and allowances in respect of the persons whose promotions have been antedated, had been examined and it had been decided that the fixation can be prospective only and from the date of review DPCs held. It is submitted that the position of law is clear on the subject since, as far as applicant was concerned, it should have been presumed that a review of his seniority position has been examined by the Department suo moto, as his application seeking such dues had been rejected by the Tribunal. Since he had not discharged the duties attached to the higher post, it could not have been possible for extending the monetary benefits.
12. We find that the position, as emerging out of the disputed issues, have been explained in sufficiently clear terms. It is the case of the applicant, evidently he was the beneficiary of certain judgments, to which he was not a party, and his dates of promotions and position of seniority, had been consequently subjected to review and to his advantage. When the rules prescribe that it may not be possible for antedating promotion beyond prescribed levels and when we find that an exercise had been carried out by the Department to confer admissible benefits on the applicant, as permissible by the parameters, it may not be possible for us to suggest that a special treatment has to be extended to the applicant vis-`-vis claims.
13. In the counter statement, it has been explained that the seniority list of Section Officers had been redrawn and issued in July, 2001. The promotions effected to Grade-I since 1983 to 1998 were also reviewed in consultation with the UPSC and it is claimed that it was done in August, 2002. Revised select list for promotion had been also worked out. The department's stand that when retrospective promotions are granted, the incumbents would not be entitled to claim arrears of pay in the higher scale, but for a fixation alone have gained acceptance by rulings of the Hon'ble Supreme Court, as it involves a sound principle. Taking into account the totality of the circumstances, we do not think, therefore, any further directions are called for in this application. It is dismissed. There will be no order as to costs.