Central Administrative Tribunal - Bangalore
J Jayasamraj vs National Power Training Institute on 5 August, 2024
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O.A.No.170/00024/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00024/2023
DATED THIS THE 5th DAY OF AUGUST, 2024
Order Reserved on: 24.7.2024
Date of Order: 5.8.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
J.Jayasamraj
S/o.V.Janakiraman
Aged 55 years
Working as Director
National Power Training Institute
Power System Training Institute
Bhanashankari 2nd Stage
Bengaluru - 560 070
Residing at No.204
Executive Hostel
National Power Training Institute
Banashankari 2nd Stage
Bengaluru - 560 070 ...Applicant
(By Advocate: Mr.A.R.Holla)
Vs.
1. Union of India
By Secretary (Power) & Chairman
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O.A.No.170/00024/2023/CAT/BANGALORE
Governing Council, NPTI
Ministry of Power, Govt. of India
Shram Shakti Bhavan
Rafi Marg, New Delhi -110 001
2. The Director General
National Power Training Institute Head Quarters
Sector - 33, Faridabad-121 003
Haryana State
3. The Director (Administration)
NPTI Complex, Sector-33
Faridabad-121003
4. Dr.S.Selvam
Director, (Tech./ Faculty)
Now promoted as Principal Director
National Power Training Institute (SR)
Block 14, Neyveli - 607 303 .... Respondents
(By Advocate Shri.S Prakash Shetty for R1 to 3)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following relief:
"i) To quash (a) Office Order
No.1/1/Admn./NPTI/2020/6432-83 dated
12.12.2022, Annexure A12 and (b) the Order No.4(A)/136/93-NPTI/HQ/2993 dated 20.12.2022, Annexure A15.
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O.A.No.170/00024/2023/CAT/BANGALORE
(ii) Direct the respondents Nos 1 and 2 to hold a review DPC and consider the applicant for promotion to the post of Principal Director in NPTI, in pursuance of the representation of the applicant dated 16.12.2022, Annexure A-14 and
(iii) Grant such other relief deemed fit, having regard to the facts and circumstances of the case. "
2. The brief facts of the case, as explained by the applicant, are that he was working as Director (Tech./Faculty) in National Power Training Institute, Neyveli and he was seeking promotion to the next higher post of Principal Director in National Power Training Institute. He was transferred from Neyveli to Guwahati on 18.7.2017. He did not join his duties immediately in Guwahati but remained absent unauthorizedly till 5.12.2017. He was proceeded with disciplinary action for unauthorized absence resulting in imposition of penalty of reduction of his pay for 5 years. The appellate authority reduced the penalty to 2 years and the penalty period was over on 22.09.2014. He was transferred to NPTI (PSTI) Bengaluru on 5.5.2022. The applicant was senior in the list of Directors, disregarding his seniority, his junior, Dr.S.Selvam was promoted as Principal Director, by order dated 12.12.2022. The applicant submits that he belongs to SC category and worked in 4 O.A.No.170/00024/2023/CAT/BANGALORE Assam for about 5 years and as such, he is more suitable for the post of Principal Director than the respondent no.4. Hence, he seeks the relief claimed by filing the O.A.
3. On notice, the official respondents have filed their reply statement and the applicant has filed his rejoinder. Further, additional reply statement has been filed by the respondents.
4. The case came up for final hearing on 24.7.2024. Shri.A.R.Holla for the applicant and Shri.S.Prakash Shetty for respondent nos.1 to 3 were present and heard.
5. In spite of the notice, private respondent no.4 Dr.S.Selvam, Director (Tech/Faculty) of NPTI has remained absent and has not filed any reply statement. Respondent no.4 is the successful candidate who has been promoted. The respondent no.4's promotion had been challenged by the applicant. As he has not appeared in spite of due notice, respondent no.4 has been kept as ex-parte.5
O.A.No.170/00024/2023/CAT/BANGALORE
6. We have carefully gone through the entire record and considered the rival contentions.
7. From the facts as mentioned in the Original Application and in the reply statement of the respondents, the basic facts of the case are not disputed that the National Power Training Institute is an autonomous body, formed in 1980 in the name of 'Power Engineers Training Society (PETS)'. This Power Engineers Training Society was registered as a Society under the Societies Registration Act, 1960; and in 1993, it was renamed as 'National Power Training Institute' (NPTI for short) which was also registered as a Society under the Societies Registration Act, 1960 in Haryana by Registration No.1184 of 1992-1993, Gazette Notification dated 3.7.1993. NPTI was re-registered as a Society under the Haryana Registration and Regulation of Societies Act, 2012 in the office of the District Registrar Faridabad, Haryana vide Registration No.02508 in 2017. It is managed by the Governing Council and it has 11 training institutes and that this Original Application is filed challenging the promotion of Dr.S.Selvam as Principal Director, NPTI (SR), Neyveli vide office order no.1/1/Admn./NPTI/2020/6432-83 dated 12.12.2022 which was 6 O.A.No.170/00024/2023/CAT/BANGALORE passed with the approval of the Secretary (Power) & Chairman, Governing Council of National Power Training Institute, Faridabad. The applicant had been working as Director (Tech./Faculty) in the Pay Band of Rs.15600-39100 + Grade Pay of Rs.7600 in Level 12 in NPTI (PSTI), Bengaluru. As given in paragraph 4(v), the seniority list in respect of Director(Tech.Faculty) as on 31.3.2022 was notified as per annexure A-9 titled as 'Seniority List in respect of Director (Tech.Faculty) in the Pay Band of Rs.15600- 39100 plus Rs.7600/- Grade Pay - 7th CPC (Level 12) borne on the strength of NPTI as on 31.3.2022'. This seniority list is not disputed or contested.
8. Respondents, in their own reply statement, about paragraph 4(v) regarding this document state that 'other points raised in the paragraph are matter of record hence needs no comment'. Meaning thereby that genuineness and veracity of this document is not in doubt or contested. In that, the basic facts which comes before us is that the name of the applicant Shri.J.Jayasamraj is at Serial No.1 and his cadre is Director and his date of appointment in the cadre is 8.8.2013. Whereas by the impugned order, respondent no. 4 Dr.S.Selvam has been promoted to the cadre of Principal 7 O.A.No.170/00024/2023/CAT/BANGALORE Director and his cadre as per Annexure A-9, as on 31.3.2022, was Director and he was appointed in that cadre on 23.8.2018. For comparison, we may tabulate the information in the following manner, which are not disputed.
Serial Name Designation Date of No. appointment 1. J.Jayasamraj Director 08.08.2013 2. Dr.S.Selvam Director 23.08.2018
9. The basic contention of the applicant is that Dr.S.Selvam, respondent no.4, on the day of DPC when he was selected and promoted to the post of Principal Director, was not eligible for promotion to the post of Principal Director as he had not completed 6 years in the cadre of Director, which is level 12.
10. The applicant put forth in support of his case, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training F.No.AB-14017/4/2021-Estt.(RR) dated 20th September 2022 wherein in Annexure I, it is given at Serial No.26 that anyone who is given promotion from a Level of 12 to the Level 13A needs 6 years minimum qualifying service for promotion in the lower 8 O.A.No.170/00024/2023/CAT/BANGALORE grade whereas as the respondent no.4 had completed less than 6 years of service. As per Annexure A-9, Dr.S.Selvam was promoted to the grade of Director only on 23.8.2018, the DPC was held on 22.11.2022 and the promotion order came on 12.12.2022. So that on those relevant dates, respondent no.4 had only completed, as per the version of the applicant, 4 years and 6 months as Director and he was not eligible to be promoted to the post of Principal Director. This is also clear from Annexure A-9, which is not denied by the respondents. But the contention of the respondents is that the respondent organization which is a registered society has its own C&R Rules and as per their existing C&R Rules, in the name of Power Engineers Training Society (Recruit) Rules, 1988 (adopted by the NPTI with effect from 1.4.1993, as amended from time to time) which came into force from the date of its issue, in its Annexure A-1. In respect of Principal Director mentions the essential eligibility as :
" (i) Degree or equivalent in Electrical or Mechanical Engineering
(ii) Director/Superintending Engineer or equivalent with 3 years service in the grade with a total of 15 years experience including 10 years experience in design, construction/erection, operation and maintenance of power general stations, transmission system and training. "9
O.A.No.170/00024/2023/CAT/BANGALORE Hence, the respondents assert that only three years are required for a person to be eligible to be considered for promotion to the grade of Principal Director from the grade of Director.
11. It is not contested that the Principal Director is in the Level of 13A as per the 7th CPC recommendations and the Director is in the Level of 12. So the disputed promotion in the impugned order was from Level 12 to Level 13A.
12. Hence, from the contention of both parties, the only short issue for reconsideration is whether the respondent no.4 was eligible to be promoted to the post of Director on the day of DPC on 22.11.2022 and promotion on 12.12.2022 by the respondents.
13. The respondents have mainly argued that the applicant is not eligible for promotion as Principal Director. They argue that he has not achieved the prescribed bench mark as per the record of his ACR/APAR for the years 2016-2017, 2017-2018, 2018-2019 and his representations to the higher authority ie., the Secretary, Ministry of Power, Government of India have been disposed off.. 10
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14. The only limited question to be decided is whether respondent no.4 was eligible or not and whether he was lawfully selected and promoted as per eligibility criteria laid down.
15. The respondents have relied on the rules named as Power Engineers Training Society (Recruitment) Rules, 1988 (adopted by the NPTI with effect from 1.4.1993 as amended from time to time) and its Annexure I which mentions the method of recruitment of Principal Director is a promotional post as the method of filling up of the post is by promotion, failing which by deputation/transfer, failing both by direct recruitment (including short-term contract). That means it could have been a promotion post and essential qualification given therein are as follows:-
"(i) Degree or equivalent in Electrical or Mechanical Engineering.
(ii) Director/Superintending Engineer or equivalent with 3 years service in the grade with a total of 15 years experience including 10 years experience in design, construction/erection, operation and maintenance of power general stations, transmission system and training."
In case of promotion/Deputation, it reads as follows: 11
O.A.No.170/00024/2023/CAT/BANGALORE " Engineering Officer of the level of Director or equivalent with 3 (three) years' service in the grade rendered after appointment thereto on a regular basis with a total of 15 years experience including 10 years experience in design, construction, erection, operation and maintenance of power generation stations, transmission system and training. The period of deputation/short-term contract including the period of deputation/contract in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of Central Govt. shall be not exceeding 5 (five) years. "
So it is essentially a promotion/deputation post, but promotion has to be not on seniority basis. So it is clearly mentioned in column 6 therein that it is by selection. The information has been tabulated as below:
Sl. Name of Scale of Whether Educational and other In case of rectt. By
No post pay selection or qualifications required for promotion/deputation grades
non- direct recruitment from which
selection promotion/deputation to be
post (for made
posts to be
filled by
promotion)
1 Principal Rs.16400- Selection i)Degree or equivalent in By Promotion/Deputation:
Director 450- Electrical or Mechanical
20000 Engineering Engineering Officer of the
ii)Director/Superintending level of Director or
Engineer or equivalent equivalent with 3 (three)
with 3 years service in the years' service in the grade grade with a total of 15 rendered after appointment years experience thereto on a regular basis including 10 years with a total of 15 years experience in design, experience including 10 construction/erection, years experience in design, operation and construction, erection, maintenance of power operation and maintenance of generation stations, power generation stations, transmission system and transmission system and training training. The period of deputation/short-term 12 O.A.No.170/00024/2023/CAT/BANGALORE contract including the period of deputation/contract in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of Central Govt. shall be not exceeding 5 (five) years
16. Whereas the applicant has asserted in his rejoinder dated 27.9.2023 that their eligibility for promotion from Level 12 to Level 13A is governed by DoP&T Order No.AB.14017/13/2016-Estt.(RR) dated 9th August 2016. The respondents have not further replied or controverted the same.
17. Further we see that the Rules furnished by the respondents themselves at Power Engineering Training Society (Recruitment) Rules, 1988 at paragraph 9 mentions following:
"9. Extension of the application of rules, regulations etc. of the Central Government.
Rules, regulations, orders and instructions issued by Government from time to time regulating the following matters shall be applicable to the Society, subject to the Rules and Regulations and the Power Engineers Training Society (Conditions of Service) Rules, 1988 (adopted by NPTI) as well as such modifications as may be made by the Governing Council with the approval of Government from time to time, namely: ' 13 O.A.No.170/00024/2023/CAT/BANGALORE Further in the same rule at item 9, it is mentioned:
" ii) Promotion "
Insertion of the term 'promotion' gives us the idea that general rules and regulations of Central Government as updated from time to time is applicable in the case of this Institution. It is also evident that the respondents have relied on 1993 rules wherein the scale of pay noted in the post of Principal Director is in Pay Band of Rs.16400- 450-20000 and for Director it is mentioned as in the Pay Band of Rs.12000-375-16500 which means that they have been harmonizing their C&R rules by adopting various Pay Commission recommendations either expressly or by implication and changing the scale of pay within their C&R Rules.
18. From Annexure A-9 which gives seniority list in respect of Director (Tech.Faculty) in the pay band of Rs.15600-39100 + 7600 Grade Pay - 7th CPC (Level12) borne on the strength of National Power Training Institute as on 31.3.2022 one may gather that the respondents have adopted 7th CPC Level 12 for the Director and other posts. Meaning thereby that they are using the DoP&T O.M dated 20th September 2022 in F.No.AB-14017/4/2021-Estt.(RR) relied by the applicant, wherein it is mentioned that for promotion from the Level 14 O.A.No.170/00024/2023/CAT/BANGALORE 12 to Level 13A i.e, from the post of Director to the Principal Director, 6 years of minimum qualifying service for promotion is required.
19. Now the question is, can part of the O.M of the DoP&T can be relied by the respondents and part can be not relied by picking certain aspects selectively? The respondents have no clear answer to the said question. Based on Rule 9 of the Power Engineering Training Society (Recruitment) Rules, 1988, only inference can be that they are adopting DoP&T Memorandum, or sometimes applying them without even formally adopting them as such. And hence they are estopped from saying that for the promotion from Level 12 to Level 13A the required minimum qualification was not 6 years of service in the feeder cadre.
20. Further, in the Rule Power Engineering Training Society (Recruitment) Rules, 1988 adopted by the National Power Training Institute (NPTI) with effect from 1.4.1993 as amended from time to time mentions Rule 13 which reads as follows:
" Power to relax 15 O.A.No.170/00024/2023/CAT/BANGALORE Where the Governing Council is of opinion that it is necessary to expedient so to do, it may by order, for reasons to be recorded, in writing, relax any of the provisions of these rules with respect to any class or category of persons or posts. "
But whether this rule they have applied and the Governing Council have actually relaxed the said rules, is not clear, as nothing to that effect is placed before us.
21. From the affairs of the respondent department, in their documents and various orders, it is clear that they are not clearly adopting and updating their own C&R Rules as and when the Pay Commission makes necessary changes; nor at the time of various decisions they are utilizing the empowering provisions provided in the Rules and ensuring that their decisions are as per law and procedures. We do not find that the Governing Council has ordered and recorded any reasons in writing and relaxed the provisions of the said eligibility rules before appointing respondent no.4 and selecting him in the DPC. Hence, clearly the selection of respondent no.4 was not in consonance with the existing rules. The respondents are bound by law and procedure to precisely refer to the rules while taking important 16 O.A.No.170/00024/2023/CAT/BANGALORE decisions/relaxations in all cases where the civil rights of other employees are affected. Although the Governing Council has inherent power to relax any rules but from the record we are unable to find that the respondents have obtained any such relaxation from the Governing Council.
22. Based on the above discussion, we are of the considered opinion that the applicant has made out a case before us to interfere with the impugned order. Hence we partly allow the Original Application and set aside the impugned office order dated 12.12.2022 (Annexure A-12) issued by respondent no.3. As another letter impugned dated 22.12.2023 (Annexure A-15) is not in the nature of an order and the said document only furnished some information, hence, it is not significant and we leave it as such. The respondents are free to exercise their power as given in the rules and further update their rules and take a decision for promotion to the vacant post of Principal Director strictly as per the rules and procedure laid down. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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