Central Administrative Tribunal - Mumbai
Sajjan Mogal Kale vs M/O Defence on 5 December, 2018
1 OA No. 329/2015
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
O.A. No. 329/2015
Date Of Decision: 5th December, 2018.
CORAM: HON'BLE SHRI. R. VIJAYKUMAR, MEMBER (A).
HON'BLE SMT. RAVINDER KAUR, MEMBER (J).
Sajjan Mogal Kale,
Age about 59 years,
S/o Mogal Kale,
R/a- Navjeevan Society, Devlali Camp,
Nasik- 422 401.
....Applicant.
(By Advocate Shri P J Prasadrao)
Versus
1. The Union of India,
Through the Secretary,
Ministry of Defence, South Block,
New Delhi- 110 011.
2. Director General of Artillery(Arty-10)
General Staff Branch,
IHQ of Ministry of Defence(Army),
422-A, B Wing Sena Bhavan,
New Delhi- 110 011.
3. The Commandant School of Artillery,
Devlali Camp, Nasik- 422 401.
....Respondents.
(By Advocate Shri R R Shetty)
Reserved on : 02.11.2018
Pronounced on : 05.12.2018
ORDER
PER:- R. VIJAYKUMAR, MEMBER (A). This application has been filed on 07.11.2014 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
2 OA No. 329/2015
"a) To allow this Application.
b) This Hon'ble Tribunal be
pleased to quash and set aside
the impugned order dated 12th
March 2015 and direct the
Respondents to consider the
Applicant for promotion to the Grade of Civilian Gazetted Officer(Administration) as one vacancy exists under the sanctioned strength of the establishment.
c) This Hon'ble Tribunal be pleased to direct the Respondents to consider the Applicant's promotion on time bound manner with effect from 18th January 2011, the day on which the Applicant become eligible for promotion as he will be superannuating on 31 st March, 2016.
d) This Hon'ble Tribunal be pleased to direct the Respondents to grant all the consequential benefits including arrears of pay with interest @12% per annum as the Respondents deliberately delayed to conduct the DPC and promote the applicant in the vacant post.
e) Any other or further order(s) may be granted in the interest of justice.
f) Cost of the application may be awarded in favour of the Applicants."
2. The applicant joined the respondents as LDC on 07.03.1979, was promoted as UDC on 01.04.1985 and was promoted as Assistant from 08.01.2008. The applicant also retired from 3 OA No. 329/2015 service on 31.03.2016 during the pendency of this application. Prior to this, there were separate posts of Assistant, Head Clerk, Office Superintendent Level-II & Office Superintendent Level-I and mergers were ordered of the posts of Assistant, Head Clerk and Office Superintendent Grade II in Respondent's letter No. 11(6)/97/D(Civ.I) dated 18.11.1997 as also of Superintendent and Office Superintendent Level-I. From that point onwards, these three categories especially Assistant and Office Superintendent Level-II in addition to Head Clerk were re-designated as Assistant. At that point in time, the Recruitment Rules for the post of Civilian Gazetted Officer(Administration) or CGO issued on 10.10.1998(page 82) is noted as required to be filled up by promotion as below:-
"i)Office Superintendent Grade.I with 3 years regular service in the grade.
ii)Failing (i) above, Office Superintendent Grade.II with 8 years regular service in the grade of Office Superintendent Grade.I and Office Superintendent Grade.II combined together.
iii)Failing (i) and (ii) above 4 OA No. 329/2015 Office Superintendent Grade.II with 8 years regular service in the Grade."
3. Thereafter, the posts of Assistant(which included Office Superintendent Level-II from 1997) and Office Superintendent(includes Office Superintendent Level-I from 1997) were merged in consequence of the fact that their grades of pay prior to the Sixth Central Pay Commission recommendations which were 5000-150-8000 and 5500-175-9000 respectively were merged into a single grade of PB-II with Grade pay of Rs. 4200/- and these posts were re-designated as Office Superintendent. These orders were contained in respondents orders No. A/10061/Merger/GS/Artv-10B dt. 03.10.2013. On this basis, the applicant also received this benefit of his post being re-designated as Office Superintendent from the previous post of Assistant w.e.f. 08.01.2008 which is the date on which he has received his promotion as Assistant. The respondents have also furnished a common seniority list for seven persons holding the post of Office 5 OA No. 329/2015 Superintendent as at 14.10.2013 which finds place in the notes enclosed as Annexure R-16 as below:
Name Whethe Date of Date of appt Date of r Birth holding SC/ST, the OBC/Gen present rank Sajjan Mogal SC 23/03/56 07 Mar 1979- LDC 08/01/08 Kale 01 Apr 1985- UDC PR Mohanan OBC 10/11/53 22 Dec 1971- LDC 17/02/09 18 Jul 1987- UDC Smt Anasuyamma Gen 16/05/54 02 Nov 1981- LDC 01/02/11 30 Oct 1995- UDC AW Parkar Gen 18/07/54 27 Jul 1977- LDC 01/03/11 30 Jan 1999- UDC K L Chavare Gen 22/09/54 11 May 1978- LDC 01/09/11 28 Mar 2000- UDC S B Kshirsagar Gen 19/03/61 23 Mar 1979- LDC 01/12/12 21 Nov 2003- UDC S L Mhaske Gen 15/10/55 03 Apr 1980- LDC 01/01/13 21 Nov 2003- UDC
4. The applicant has argued that since he received the designation of Office Superintendent w.e.f. 08.01.2008 by the orders dt. 19.03.2013, he was entitled to promotion when he completed three years of service in the re-designated cadre from 08.01.2011. The applicant states that the respondents had conducted the DPC for filling up the posts of CGO(Administration) for the year 2013-14 in the unreserved category and had recommended his name at serial No. 1 for 6 OA No. 329/2015 appointment in the vacant post. These were also forwarded to respondent No.2 by respondent No.3 in letter No. 7404/DPC CGO/ADM/53 dt. 18.10.2013. He states that there is no standing order by which unfilled vacancy will automatically get lapsed in the Ministry of Defence and that respondents had not given any specific reasons. He made representations on 19.01.2015 and on 10.02.2015 to which the impugned reply was received from respondent No.3 on 12.03.2015 stating that the vacancy of CGO(Administration), Group-B Gazetted occurred on 01.08.2010 due to retirement of the incumbent. The respondent No. 2 had communicated their decision on the recommendations of the DPC to respondent No.3 on 21.03.2014. In this case, this letter instructed respondent No.2 to send proposals for revival of the posts which had lapsed after one year from date of vacancy. The matter, it is stated, had been examined several times in correspondence with the Ministry and it was finally decided to return 7 OA No. 329/2015 the matter without approval stipulating that revival would be considered only under very rare and unavoidable circumstances and after seeking clearance of Department of Expenditure. The respondent No. 2 was asked to bring these matters to the notice of the applicant.
5. The respondents have questioned the computation of his eligibility under the Recruitment Rules and have stated that he became an Office Superintendent by virtue of the orders of 2013 and not before. They refer to the manner in which the posts of Office Superintendent level-II were re- designated as Assistant and the Office Superintendent Level-I was merged with Office Superintendent with a single designation. Therefore, the applicant only completed three years of service as Office Superintendent by 03.10.2016 which is based on his re- designation as Office Superintendent on 03.10.2013. On the lapse of post, they refer to the instructions of the Ministry of Finance, Department of Expenditure in OM No. 8 OA No. 329/2015 7(7)-E(Coord)/93 dated 03.05.1993 by which it is stated that a post remaining unfilled or vacant for a period of one year or more is deemed to be abolished and revival of vacancy is mandatory before approving appointment. The OM also specifies that a revival can only be done in the rarest of rare categories. The respondents also assert that the demand of the applicant for promotion to the post of CGO in 2011 is barred by limitation since the OA has been filed on 09.06.2015 and deserves to be dismissed on that ground. They also state that the post available was not a reserved category post and applicant can have no prior claim on that basis. They state that the claim for promotion arises only from the orders of respondents dt. 03.10.2013 and there was no way in which the Department could have anticipated if the applicant is eligible for promotion.
6. In his rejoinder, the applicant denies the relevance of the discussion on Office Superintendent Level-I & II since they no longer exist and that he automatically 9 OA No. 329/2015 became eligible for promotion from 11.01.2011. He refers to the model calender for DPCs issued by the Department of Personnel and Training in OM No. 22011/9/98- Estt.(D), dt. 08.09.1998 read with O.M. Of even number, dt. 13.10.1998 and states that these instructions imposed a duty on the employer to fill up the vacancy to promote its employees in the prescribed periods and therefore, a lapse of a vacancy does not arise.
7. During the final hearing, learned counsel for applicant summarized his arguments as based on the application. The learned counsel for respondents emphasized that none of the juniors of the applicant have been promoted and therefore, applicant can have no grievance in this regard. They state that even if the posts are revived, such revival can only be a prospective benefit and refers to the decision of the Hon'ble Apex Court in Dr. Amarjit Singh Ahluwalia Vs. State of Punjab & Ors.[AIR 1975 SC 984] in C.A. No. 624/1971 decided on 10 OA No. 329/2015 20.12.1974 which ruled as follows:-
"(4) Where the order of appointment appoints a person with effect from the date he assumes charge of the post, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. Where he is appointed with immediate effect, the appointment would be effected immediately, irrespective as to when the person appointed assumes charge of the post."
8. Also, in the case of Union of India Vs. K K Vadera & Ors.[AIR 1990 SC 442] in C.A. No. 4494 of 1989 decided on 26.10.1989, the Hon'ble Apex Court held as follows:-
"We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post."
9. He also referred to the case of Government of Orissa Vs. Haraprasad Das & Ors.[AIR 1998 SC 375] in C.A. No. 858 of 1997 decided on 24.11.1997 in which it was held "it should have been appreciated by the Tribunal that mere empanelment or inclusion of one's name in the selection list does not give him a right to be appointed." 11 OA No. 329/2015
10. Learned counsel for respondents also referred to the case of Food Corpn. Of India & Ors. Vs. Bhanu Lodh & Ors.[AIR 2005 SC 2775] in C.A. Nos. 1402-04 of 2005 with SLP(c) No. 11475 of 2004 decided on 24.02.2005 where it was held in para 14 as below:-
"14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision, not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. (see in this connection Govt. Of Orissa V. Haraprasad Das and State of Orissa V. Bhikari Charon Khuntia.)".
11. In this regard, the posts had been abolished by virtue of lapse and were not available to be filled in and therefore, there was no arbitrariness that required judicial review and intervention in this 12 OA No. 329/2015 matter.
12. We have considered the views of the learned counsel for the applicant as well as learned counsel for the respondents and carefully considered the facts and circumstances, law points and rival contentions in this case.
13. The applicant supports his claim that his application is within the limitation period based on the letter issued by respondent No. 2 dt. 12.03.2015. The respondents have not produced any previous letter advising the applicant on the status of his claim although they refer to the fact that since he was handling the Administration wing with respondent No. 3, he was fully aware of the matter. Therefore, we may not be able to hold that this application is barred by limitation on this ground.
14. The applicant's single case is for promotion as CGO(Administration). The applicable Recruitment Rules for this post state a requirement of three years as Office Superintendent Level-I and eight years as 13 OA No. 329/2015 Office Superintendent Level-II or eight years including the periods of Office Superintendent Level-I & Level-II. Subsequent mergers of the posts of Head Clerk, Office Superintendent Level-II and Assistant and of Office Superintendent Level- I in the year 1997 and 2006 do not significantly alter the impact of these changes with reference to the Recruitment Rules and will necessarily need to be read harmoniously. However, the merger of pay scales and posts that came about in October, 2013 taking forward the recommendations of the Sixth Central Pay Commission have evidently lead to a disharmony in application of these two aspects which are necessary to decide the career movements of individuals falling into the various feeder categories. The applicant who was only an Assistant or equivalently, an Office Superintendent Level- II on 08.01.2008 should have, in the normal course, completed eight years that is by 08.01.2016 to expect promotion to the post of CGO. Neither the applicant nor the 14 OA No. 329/2015 respondents have produced the Recruitment Rules for the post of Office Superintendent Level-I but it would appear that a residency requirement exists for Assistant or Office Superintendent Level-II to be promoted to a post of Office Superintendent Level-I and should not have been more than five years given that the total requirement for the CGO post was itself only eight years in case a person held both these categories during that period. Until the year 2013, the applicant had no legitimate expectations that he could become CGO and it was only after the notification on merger of posts that he started agitating for promotion as CGO by antedating his date of assumption of charge as Office Superintendent to the year 2008. Until that point of time, the applicant was holding the lower post and was clearly not eligible for promotion as CGO. When these actions of the Administration of merger and the career path of the applicant are seen together with the Recruitment Rules for the post of CGO, it is quite apparent that for 15 OA No. 329/2015 obtaining the post of CGO, a combined service at the level of Assistant and Superintendent for a period of eight years of experience and residency would be essential since all these posts had been merged together and there was no other person who had been originally holding the post of Office Superintendent at the time when the orders of 2013 were issued. It is not the contention of the applicant that a lower experience requirement equivalent to residency in the feeder posts was sufficient to become CGO. If such had been the case, the applicant may have mounted a challenge to the failure to amend the Recruitment Rules or else, could have challenged the Recruitment Rules themselves. This has not been done by the applicant.
15. The rule of harmonious construction enables the interpretation of a statute or rule in order to make a consistent whole by which we may avoid inconsistency or repugnancy between various posts, in this case the Recruitment Rules and evolving designations of posts. The related principle 16 OA No. 329/2015 of beneficial construction is aimed at suppressing mischief and advancing the remedy.
16. Therefore, adopting these approaches for appreciating the situation, given the fact that the Recruitment Rules had not been modified pursuant to the changes of designation, it can only be held, within the bounds of reason, that the applicant had to complete eight years to become CGO which makes him eligible on 08.01.2016.
17. On the aspect of lapse of post, the orders of the Ministry of Finance are a reflection of the need for conserving expenditure. In case work is progressing without a post being filled in for as long as one year, the directions of the Ministry of the Finance essentially argue that such an employee was never required and therefore, any attempt to revive such a post will need to be supported with extraordinary reasons citing extraordinary circumstances. The basis for such a determination cannot be held, under any circumstances, to be 17 OA No. 329/2015 arbitrary and it lies entirely within the executive domain to arrive at a decision on the lapse or need for revival of various posts. The applicant can have no grievance in this regard nor can this Tribunal exercise any judicial review as set out in the orders of the Hon'ble Apex Court in Food Corpn. Of India & Ors. Vs. Bhanu Lodh & Ors.(supra).
18. Having decided on the position taken by respondents that they were unable to revive the lapse post, the reference to Union of India Vs. K K Vadera & Ors.(Supra) and Dr. Amarjit Singh Ahluwalia Vs. State of Punjab & Ors.(Supra) may not be necessary since no promotion has actually been given to the individual and therefore, the question of retrospective effect cannot arise.
19. In passing, we also observe from the seniority list enclosed in DPC notes(page
115) and which have been tabled at para 2 above, it is noticed that the applicant joined in 1979 as LDC and stole a march over serial No.2, who had joined as LDC in 1971, and by becoming UDC in 1985 whereas serial 18 OA No. 329/2015 No. 2 became UDC in 1987. Serial Nos 4, 5 & 6 also joined as LDC in 1977, 1978 & 1979 but were promoted as UDC in 1999, 2000 & 2003. However, under the catch-up rule, the seniority of the unreserved candidates in the promoted post would be restored despite the accelerated promotion given to the reserved candidate. It appears that the catch-up rule has not been properly considered by the respondents although that is not an issue that has been disputed by parties in this application. The application of the catch-up rule has been and settled by the Apex Court in the cases of Ajit Singh Janjua-II & Ors Vs. State of Punjab & Ors,(1999) 7 SCC 209 and S. Panneer Selvam & Ors. V. Government of Tamil Nadu & Ors., (2015)10 SCC 292. In the case of M.Nagaraj & Ors. Vs. Union of India(2006)8 SCC 212, the Apex court held as under:-
"35.In the absence of any provision for consequential seniority in the rules, the 'catch up rule' will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior 19 OA No. 329/2015 general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained."
20. In the circumstances, this application has no merits and is accordingly dismissed without any order as to costs.
(Ravinder Kaur) (R.Vijaykumar)
Member (J) Member (A)
Ram.