Central Administrative Tribunal - Mumbai
Dated This Tuesday vs Union Of India on 10 July, 2012
1 OA No.694/2006 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION NO.:- 694 OF 2006 Dated this Tuesday, the 10th day of July, 2012 CORAM:- HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J) HON'BLE SHRI R.C. JOSHI, MEMBER (A) Shambhu Prasad Sinha, R/at. Building No.45/4, L, Navare Nagar, "B", Cabin Road, Ambarnath (East). ... Applicant. (By Advocate Shri. G. K. Masand) Versus 1. Union of India through the Secretary, Govt. of India, Ministry of Shipping Road Transport & Highways, Deptt. of Shipping, Parivahan Bhavan, 1, Parliament Street, New Delhi - 110001. 2. The Director General of Shipping and ex-officio Addl. Secretary to the Govt. of India, Directorate General of Shipping, Jahaz Bhavan, W.H. Marg, Mumbai - 400 001. 3. Mrs. Sakshi Wadhwa nee Ms. Rejani C. Nanwani, Working as Stenographer Grade II in the office of Director General of Shipping, Jahaz Bhavan, W.H. Marg, Mumbai - 400 001. ... Respondents. (By Advocate Shri. R. R. Shetty) 2 OA No.694/2006 OR D E R (Oral) Per : Shri R. C. Joshi, Member (A)
In this OA, the Applicant is aggrieved by the action of the Respondent No.2 in assigning seniority to Respondent No.3 above the Applicant even though he is admittedly junior to the Applicant. The Applicant is further aggrieved due to grant of promotion to Respondent No.3 as Stenographer Grade-II inspite of the representations given by the Applicant in this context. The Applicant has, therefore, impugned communication dated 17/18.10.2006 (Exhibit A-1).
2. Ld. Counsel on behalf of the Applicant in the pleadings has stated that the Applicant's name was sponsored by Employment Exchange, Mumbai for appointment as Stenographer Grade-III and an offer of appointment vide dated 13.10.1992 was made to him for said post in the office of Respondent No.2. The offer of appointment contained the usual terms and conditions prescribed for appointment as recommended by the Staff Selection Commission. The offer of appointment stipulated that the appointment would be temporary and the Applicant would be on probation for a period of two years which could be extended or curtailed at the 3 OA No.694/2006 discretion of the Competent Authority. The letter of appointment also stipulated the liability to serve in any part of the county and that the appointment will be governed by the relevant rules and orders in force from time to time (Exhibit A3). The Applicant conveyed his acceptance of the offer of appointment and was appointed as Hindi Stenographer Grade-III on 19.10.1992. It is further stated that the Applicant was subjected to rigorous method of selection conducted by the Selection Committee comprising of written Test, Hindi Stenography Test and visa vice prior to its appointment. The order of appointment was issued on 31.10.1992 stating that the appointment was for a period upto 07.06.1993 on the terms and conditions given in the letter dated 13.10.1992 (Exhibit A-4). It has been stated by the learned counsel on behalf of the Applicant that Respondent No.3 on the other hand was appointed as Stenographer Grade-III on 14.10.1993 nearly one year after the Applicant's appointment w.e.f. 19.10.1992.
3. The Applicant's service was regularised vide order dated 27.01.1994 (Exhibit A-6). While referring the office order No.7 dated 27.01.1994 it 4 OA No.694/2006 was noticed by the Asstt. Director General of Shipping that all the facts of the case were not brought to the notice of the Director General Shipping since the Applicant's name was not sponsored by the Staff Selection Commission. It was, therefore, decided to cancel the office order appointing Applicant as Stenographer Grade-III on regular basis vide dated 27.01.1994. It was further stated in the said letter dated 10.05.1995 that the Applicant would further continue to work as Stenographer Grade-III on temporary basis in accordance with office order dated 07.06.1993. By subsequent office order dated 07.06.1995 the appointment of the Applicant was converted into an Adhoc appointment for a period of six months from 08.06.1995 although the Applicant had been continuously working since 19.01.1992. It was further stated that the temporary post in which the Applicant was appointed, had been abolished on 08.06.1995. It was also mentioned that the appointment would not bestow on Applicant any claim for regular appointment and the Adhoc service rendered by him would not count for the purpose of seniority. It is the contention of the Applicant that all these grounds appear to have been made 5 OA No.694/2006 just to facilitate gaining of seniority by Respondent No.3 over the Applicant. The Applicant being aggrieved by treatment of the regular appointment as Ad-hoc and withdrawal of his seniority and other privileges attached to the post, filed an OA No.1390/1995 in this Tribunal seeking quashing of the order dated 10.05.1995/12.05.1995. This Tribunal vide order dated 31.10.2000 held that the orders dated 10/12.05.1995 and 07.06.1995 passed by the Respondents were unjust, arbitrary and bad in law and, accordingly, the same were quashed and order dated 27.01.1995 was held as valid and the OA was allowed (Exhibit A-9). The Respondent challenged this matter before the Hon'ble High Court in Writ Petition No.1704/2001 and vide order dated 13.09.2001. The Hon'ble High Court upheld the judgment and order of this Tribunal and dismissed the said Writ Petition (Exhibit A-10).
4. The Respondent No.2 accordingly implemented the judgment and order dated 31.10.2000 in OA No.1390/1995 vide their order dated 11.10.2002/14.10.2002 (Exhibit A-11). While the Applicant's OA No.1390/1995 was pending in this Tribunal, the Respondent No.3 who was junior to the 6 OA No.694/2006 Applicant, was promoted to the post of Stenographer Grade-II on Adhoc basis. The Applicant represented for giving a similar treatment. The Applicant also sought a copy of seniority list which was not furnished to him inspite of representation dated 07.11.2002 and subsequent reminders. Thereafter, the Applicant was informed Respondent No.2 vide letter dated 23.12.2002 that the seniority list would be finalised as on 01.01.2003 and issued within 15-20 days. The Applicant, however, sought details with regard to the seniority list from the date of his appointment showing his position in the seniority list at that time onwards. The Applicant was furnished the seniority list as on 01.01.2003 vide letter dated 15/23.01.2003 which showed the name of the Applicant at Sr. No.1. It was also stated that at that time there was one post of Stenographer Grade-III lying vacant. The Applicant's date of entry to the Government service was shown as 19.10.1992 and the date of regular appointment was shown as 18.1.1994. However, vide letter dated 27.02.2003, the Respondent No.2 referred to Applicant's letter dated 27.12.2002 and 21.01.2003 and stated that the Applicant would be regularised in accordance 7 OA No.694/2006 with the order of this Tribunal vide dated 31.10.2000 in OA No.1390/1995 which was upheld by the Hon'ble High Court vide order dated 13.09.2001 in Writ Petition No.1704/2001 and a regularisation order had been issued on 11/14.10.2002. It is further contended that in the Recruitment Rules, the post of Stenographer Grade-II is described as a 'non-selection' post. It was further stated that the Recruitment Rules also show that the post of Stenographer Grade-II is to be filled by promotion, failing which by transfer on deputation and failing both, by direct recruitment. For promotion, the requirement specifies that the candidates should have 5 years regular service in the grade and should possess a speed of 100 w.p.m. in stenography (English/Hindi) and 40 w.p.m. in typing and the post is classified as 'non-selection'.
5. In response to the Applicant's representation dated 27.01.2003, Respondent No.2 vide letter dated 27.02.2003 clarified that the Respondent No.3 had been appointed through Staff Selection Commission w.e.f.14.10.1993 whereas the Applicant was appointed and regularised w.e.f.18.01.1994. It was further stated that the seniority of the incumbent counts from the date of 8 OA No.694/2006 regular appointment and hence, the Respondent No.3 was senior to the Applicant. It was further contended that the Applicant's case would be submitted to the DPC for favourable consideration. The Applicant had represented to the various authorities including the Secretary, Directorate of Public Grievances, Cabinet Secretariat at New Delhi. However, his grievances were not redressed and he was finally given a letter dated 17.10.2006 (Exhibit A-1) in which it has been mentioned that a decision taken by the Respondents has already been communicated to the Applicant vide dated 26.06.2003 and there is no reason to change the said decision. The Applicant was directed not to forward any application/representation to any Officer outside the Directorate General of Shipping unless it was routed through that office.
6. The Applicant has, therefore, preferred this Original Application for redressal of his grievances and has sought the following reliefs:
"(a) That this Hon'ble Tribunal will be pleased to hold and declare that the Applicant's continuous appointment w.e.f.19.10.1992 in pursuance of offer of appointment contained in letter dated 13.10.1992 as his regular appointment and that the action of the official Respondents in denying to the Applicant the benefit of service rendered between 19.10.1992 and 27.01.1994 is an arbitrary act 9 OA No.694/2006 impermissible under Article 14 read with Article 16 of the Constitution of India.
(b) That this Hon'ble Tribunal will be pleased to quash and set aside the order contained in letter No.PB-3(1)/92 dated 09.05.2003/12.05.2003 (Exhibit A-25) in so far as it relates to rejection of his representation dated 26.03.2003.
(c) That this Hon'ble Tribunal will be pleased to quash and set aside the order contained in letter No.PB-3(1)/92 dated 25.06.2003/26.06.2003 (Exhibit A-30) by which official Respondents have alleged that Applicant's case for seniority and promotion had been reviewed in the light of judgment of Hon'ble Tribunal in OA No.1390 of 1995 and contended that seniority list had been drawn out in perfect compliance thereto.
(d) That this Hon'ble Tribunal will be pleased to direct Respondents to restore the Applicant's seniority in the post of Stenographer Grade-III from the date of his initial appointment on 19.10.1992 with all consequential benefits including promotion to the post of Stenographer Grade-II from the date Respondent No.3, thought junior to the Applicant, was promoted to the said grade of Stenographer Grade-II inclusive of payment of arrears arising therefrom.
(e) That costs of this Application be awarded in favour of the Applicant;
(f) That such other and further reliefs as are expedient be granted in favour of the Applicant.
7. The learned counsel on behalf of the Respondents in the pleadings has stated that the issue relating to the date of regularization of the Applicant for the post of Stenographer Grade-III 10 OA No.694/2006 has been settled by this Tribunal vide order dated 31.10.2000, which has become final. It has also been stated that the Private Respondent No.3 has been appointed regularly on 14.10.1993 as a Stenographer Grade-III and he is senior to the Applicant. It has been further mentioned that the Applicant was appointed as Hindi Stenographer Grade-III on a temporary basis vide order dated 30.10.1992. The Applicant's name was sponsored by the Regional Employment Exchange against the temporary vacancy of Hindi Stenographer Grade-III and the aforesaid offer of appointment clearly stipulated that the appointment was in a temporary capacity. The Applicant accepted the offer of appointment and joined the office of the Respondent w.e.f.19.10.1992 for a period upto 07.06.1993. Thereafter, the Respondent extended the term of employment and the Applicant was continued in the same post of Hindi Stenographer Grade-III w.e.f.08.06.1993 for a period of two years or till further orders, whichever is earlier, vide letter dated 07.06.1993. Thereafter, vide office order dated 27.01.1994, the Respondent No.2 regularized the service of the Applicant. However, the Respondent No.2 vide order dated 10.05.1995 11 OA No.694/2006 cancelled the office order No.7 dated 27.01.1994 on the ground that the above office order was isued 'erroneoulsy' since the Applicant was not a candidate sponsored by the Staff Selection Commission. Further, there was no substantive post of Stenographer Grade-III available and the Appointing Authority i.e. Director General of Shipping did not have the authority to create a substantive post. Consequently, on 10/12.05.1995 the regular appointment of the Applicant was reconverted into temporary one and the Applicant was continued in the post of Stenographer on an adhoc basis for a period 6 months from 08.06.1995 to 07.12.1995. The order dated 10/12.05.1995 was challenged by the Applicant before this Tribunal vide order dated 31.10.2000, the orders dated 10/12.05.1995 and 07.06.1995 were quashed and the order dated 27.01.1994 was restored. According to order dated 27.01.1994 the date of effect of regularisation is 18.01.1994 and, therefore, the seniority of the Applicant was to be counted from the date of effect of his regularisation to the service i.e. from 18.01.1994. Respondent No.3 was appointed as Stenographer Grade-III on 14.10.1993 on a regular basis w.e.f. 18.01.1994. It is 12 OA No.694/2006 Respondent's contention that Respondent No.3 is senior to the Applicant which has been communicated to the Applicant through various letters. It was also pointed out that the present OA is barred by limitation and also on the ground of resjudicata.
8. We have gone through the pleadings and documents enclosed and have extensively heard learned counsel on behalf of the Applicant and the Respondents.
9. The main issue in this OA pertains to the grievance of the Applicant regarding the grant of seniority above him to the Respondent No.3 who has been promoted to the post of Stenographer Grade-II.
10. It is seen from the case papers that the Applicant had joined the office of the Respondent w.e.f.19.10.1992 as Stenographer Grade-III while the Respondent No.3, was appointed on 14.10.1993 and his services were regularised vide order dated 27.01.1994 as Stenographer Grade-III with effect from 18.01.1994.
11. A perusal of the Respondent's written statement at para 2 at page 113 of the OA reveals that Respondent No.3 was appointed as a Stenographer Grade-III on 14.10.1993 and then was appointed on regular basis w.e.f.18.01.1994. The 13 OA No.694/2006 Respondents have maintained that the Respondent No.3 is senior to the Applicant and this has also been communicated to the Applicant vide letters/notes from February, 2003 to October, 2006.
12. In this Context, Exhibit A-6 dated 27.01.1994 is reproduced hereinbelow for convenience:
DIRECTORATE GENERAL OF SHIPPING, BOMBAY No.PB_5(41)/93. Dated 27.01.94 OFFICE ORDER NO.7 In continuation of this office Memorandum No.PB_3(1)/92 dated 30.10.1992 and office order No.70 dated 07.06.1993, the Director General of Shipping is pleased to appoint Shri Shambhu Prasad Sinha as Steno Gr.III on regular basis with effect from 18.01.1994 in this Directorate in the pay scale of Rs.1200-30-1560-EB-40-2040 plus usual allowances as admissible to Central Government servant in that grade.
sd/ (H.P. Sharma) ASSTT. DIRECTOR GENERAL OF SHIPPING
13. The above order very clearly shows that the Applicant was appointed on temporary basis as Hindi Stenographer from 30.10.1992 and was, thereafter, appointed on regular basis vide office order No.7 dated 27.01.1994 as Stenographer Grade-
III w.e.f. 18.01.1994. However, the Respondent No.3 was appointed on 14.1.1993 as Stenographer Grade 14 OA No.694/2006 III. Further, the issue of date of regularisation was settled in the OA No.1390/1995 dated 31.10.2000 wherein it has been clearly pointed out in para 6 of the judgment that the "offer of initial appointment was made after the entire process of regular selections had been gone through as described when the Staff Selection Commission of Western Region had been unable to provide Hindi Stenographer/s and it was only because of this reason that the Respondents had gone to the Employment Exchange for selection of candidates as Hindi Stenographer.
14. It is further seen from para 12 of the OA No.1390/1995 dated 30.10.2000 wherein this Tribunal has made the following observations:
"12. We notice, at the first instance, from a study of overall facts in the case that a conscious process of recruitment had been undertaken by the Dte. General of Shipping. Not only were candidates called from the Employment Exchange, but a regular process of testing through Written Test, viva voce and Stenographic test was undertaken. It has been stated by Applicant (not rebutted) that there was a regular committee of officers which undertook the selection process. It is seen that this Committee comprised inter alia the D.G. and though the composition of the committee was not as exactly as per Recruitment Rules, it, in fact, more than met the requirements in that the D.G. himself chaired the Committee, as against the requirement in Recruitment Rules is for a Committee headed by Dy. director General".15 OA No.694/2006
Further the observations of this Tribunal in the said OA (supra) in para 13 are also reproduced herein below for convenience:
"13. Another point that is relevant in the case is the time lag involved. The offer was made in October, 1992. Thereafter, through a conscious decision in 1993, there is an extension for two years made vide order dated 07.06.1993. It is not as though for all this time, the Respondents could have continued the appointment without need for work or were totally oblivious to the rules regarding the post. In the absence of the file not being available, as explained, for production, it would be reasonable to assume in the circumstances described above that regular candidates from the Staff Selection Commission were indeed not available for one reason or the other. The appointment does not have the ingredients of a mere stop-gap arrangement as per law settled."
15. It is apparent from the case papers that the Applicant was initially treated as an adhoc employee and after his regularization, his appointment was itself cancelled which was challenged before this Tribunal in OA No.1390/95. A Perusal of the OA No.1390/1995 dated 31.10.2000 reveals this Tribunal after consideration quashed and set aside the impugned orders dated 10/12.05.1995 and 07.06.1995. However, in this O.A., the issue of seniority was not raised by the Applicant. Therefore, we are not convinced by the arguments defence by the Applicant that the present 16 OA No.694/2006 OA is barred by res-judicata.
16. In the present OA, the Applicant has mainly sought relief against the seniority granted to Respondent No.3 who was appointed subsequent to the Applicant. It has been clearly argued before us that the Applicant was appointed in the year 1992 and was superseded by Respondent No.3 who had been appointed in the year, 1993.Both the Applicant and the Respondent No.3 were regularised with effect from 18.01.1994.
17. The issue relating to the recruitment of the Applicant through Employment Exchange as against recommendation of the name of the Respondent No.3 by Staff Selection Commission is not an issue before us which has been discussed in the OA No.1390/95 (supra) at para 12 and 13 of the judgment. We are, therefore, not inclined to go into this issue at all. We are convinced that the recruitment of the Applicant through Employment Exchange was a conscious decision taken by the Respondents in the year 1992 as suitable candidates were not available through the Staff Selection Commission. Therefore, the appointment of the Applicant in 1992 would have to be reckoned for grant of seniority. Further, the order dated 17 OA No.694/2006 27.01.1994 clearly brings out that the Applicant was appointed on 13.10.1992 and was regularly appointed as Stenographer Grade-III w.e.f.
18.01.1994. The Respondent No.3, however, was appointed as Stenographer Grade-III on 14.10.1993 and was regularised on 18.01.1994.
18. It has been contended by the Respondents that the present OA is barred by limitation. However, considering the facts and circumstances of this present case, we hereby condone the delay involved in filing the present Original Application before this Tribunal.
19. In view of the above, the OA is allowed in terms of the relief sought at 8(a), (b)&(c). The Respondents are directed to issue appropriate orders regarding restoration of seniority of the Applicant vis-a-vis Respondent No.3 without any consequential benefits within a period of two months from the date of receipt of a copy of this order. Parties to bear their own costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma.