Central Administrative Tribunal - Bangalore
E Rajashekar vs E.S.I.C. on 30 August, 2023
1 OA 305/2019/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00305/2019
ORDER RESERVED ON : 01.08.2023
DATE OF ORDER : 30.08.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri E.Rajashekar,
E.Raj
S/o L.Eashwarappa,
Aged about 39 years,
Working as Assistant,
Office of the Additional Commissioner
And Regional Director,
ESIC, Regional Office (Karnataka),
R/a LF-3/25,
LF ESIC Staff Quarters,
Nandini Layout,
Bengaluru
Bengaluru-560096. ...Applicant
(By Advocate, Shri Vishwantha Bhat)
Vs.
1. The Union of India,
Representation by its Secretary,
Department of Labour and Employment,
Ministry of Labour,
No.110, Shrama Shakthi Bhavan,
Rafi Marg, NEW DELHI.
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2. The Employees State Insurance Corporation,
Represented by its Director General,
Panchadeep Bhavan,
CIG Marg,
NEW DELHI - 110002.
3. The Deputy Director,
D
ESIC, Panchadeep Bhavan,
CIG Road,
NEW DELHI -110002.
4. The Additional Commissioner and
Regional Director,
ESIC Regional Office (Karnataka),
No.10, Binnypet, Binnyfields,
Bengaluru -560023.
5. Shri Prashanth Kumar G.,
Aged about 38
3 years,
Working as Assistant,
ESIC Sub Regional Office,
Peenya,
Bengaluru -560057.
6. Shri Manjunath C.R.,
Aged about 36 years,
Working as Assistant,
ESIC Corporation,
Regional Office,
Offi
No.10, Binnyfields Binnypet,
Bengaluru 560023.
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7. Smt.Divyashree A.,
Aged about
abou 35 years,
Working as Assistant,
ESIC Corporation
Regional Office,
No.10, Binnyfields Binnypet,
Bengaluru -560023.
8. Shri Tejus Devegi,
Aged about 39 years,
Workings as Assistant,
ESI Corporation
1st Floor ESI Hospital,
J.N.Road Dandeli, Haliyala District,
Karwar, Uttara Kannada -581325.
9. Shri Kammari Maheshwari,
Aged about
abou 39 years,
Working as Assistant,
ESIC Corporation, Branch Office,
No.2nd Floor ESI Dispencery Building,
Shirur Park Road Sheshadripuram,
Benguluru 560020.
10. Smt. Umadevi M.,
Aged about 35 years,
Working as Assistant,
As
ESI Model Hospital Rajajinagar,
Rajajinagar
Bengaluru
Bengaluru-560010. ...Respondents
(By
By Advocate, Shri N.Amaresh for Respondents No.1 to 4, None
for Respondents No.5, Shri A.R.Holla for Respondents No.6 and 9,
Smt.Akkamahadevi Hiremath for Respondents No.7, None for
Respondents No.8 and 10)
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O R D E R (ORAL
ORAL)
Per: Justice S.Sujatha ...........Member(J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, Act, 1985 seeking the following reliefs:
"ii) ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION, to quash impugned order bearing Ref. No.A No.A-36/11/LDCE(NEW) 2013-
16/EXAM/COL 16/EXAM/COL-VI 2019 passed by the 3rd dated 15-02-2019 Respondent, a true copy of which has been produced and marked as Annexure-A12 Annexure in so far as it relates to respondents 5 to 10 are concerned for the vacancy 2014 2014-15 and also the order bearing Ref.No.53/A/36/33/08/ 2018/Estt. dated 07.03.2019 passed by the 4th Respondent, a true copy of which has been produced and marked as Annexure A13, in so far as it relates to respondents 5 to 10 Annexure-A13, are concerned for the vacancy year 2014 2014-15 as the said orders are illegal, arbitrary, unjust, ccapricious, and the same is in utter contravention of Articles 14, 16 and 21 of the Constitution of India.
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ii) ISSUE a writ of mandamus or any other appropriate writ, order or direction directing the official respondents to consider the case of the applica application for promotion to the post of SSO/Manager Grade-II Grade II in pursuance of the earlier select list and based on All India level seniority list dated 27.12.2018 from the date on which he is eligible and grant him all the consequential benefits to which he is llegally entitled to;
iii) Issue any other incidental or consequential relief/s as deemed fit in the facts and circumstances of the case and in aid of the main relief sought for, in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that he was appointed as Lower Division Clerk (LDC) on 20.02.2008 in the ESIC Karnataka Region. After declaration of his probationary period successfully, successfully he appeared for Limited Departmental Competitive Examination (LDCE) under 25% quota and being successful, successful he was promoted as Upper Division Clerk (UDC) on 11.02.2011. The applicant having completed three years of service, became eligible and entitled for promotion to the post of Head Clerk/Assistant both under 25% quota under LDCE and 6 OA 305/2019/CAT/BANGALORE BENCH 75% quota on the basis of seniority. It is submitted that relating to the vacancy of the vacancy year 2014-15 2014 15 under 25% quota, a letter has been addressed by the Joint Director to the Regional Office intimating that the proposed Department Departmental Competitive Examination will be held as per the schedule mentioned in the letter dated 05.05.2014. The date of the examination was declared on 25/26.09.2014 for SSO, Assistant and UDC. The applicant being eligible, his name has been forwarded under Proforma roforma-'A' 'A' & 'B'. However, the said examination was not held for the vacancy of the year 2014-15.
2014 15. Subsequently, a letter dated 20.08.2015 has been addressed by the Assistant Director to all the Regional Directors Director intimating that LDCE for promotion tto the post of Assistant/Head Clerk is tentatively proposed to be conducted on 25.10.2015 for the vacancy year of 2013 2013-14 and 2014-15. In the said letter, it has been stated that candidates who had already applied for the vacancy of 2014-15 2014 15 and the vaca vacancy year of 2013- 14 will invariably be considered against the vacancies for the year 2013-14 14 and 2014-15.
2014 15. Such candidates need not apply again against the vacancy of the year 2014--15. Hence a request was 7 OA 305/2019/CAT/BANGALORE BENCH made to the Regional Director to submit details of eligible candidates' particulars in Proforma-'A' Proforma 'A' & 'B' on or before 31.08.2015. The applicant submitted application in terms of letter dated 25.08.2015, but no examination was held. In the meantime, thee applicant's case was considered for promotion under 75% quota for the post of Assistant/Head Clerk. Accordingly, he was promoted omoted to the post of Assistant/Head Clerk by Office Order dated 31.08.2015 and he reported for duty in terms of order of promotion.
on. Examination was held for the post of Assistant on 20.02.2016 and the applicant appeared for the said examination. The result of the written examination was declared on 22.07.2016 wherein the applicant has secured 177 marks out of 300. Accordingly, the applicant was selected for the vacancy year of Accordingly, 2014-15 15 against the reserved post as he belongs to SSC category. The applicant claimed reservation under physically handicapped quota. In the selected list of candidates against the vacancy year 2014-15, 15, the name of the applicant figures at Sl.No.15.
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3. In terms of the order of promotion, the seniority list of Group 'C' in Karnataka Region as on 31.03.2015 came to be published by a memorandum dated 25.09.2018 by the 4th Respondent. In the said seniority list, the name of the applicant finds place at Sl.No.175.
Sl.No.1 . He was assigned the date of promotion/appointment in the cadre of Assistant as 27.07.2015 . On the basis of the Regional wise seniority, the 2nd Respondent prepared and published an All All India Official Gradation/Seniority list of Head Clerk/Assistant as on 31.03.2015, wherein the applicant's name finds place at Sl.No.84.
Sl.No. . When things stood thus, the office order dated 15.02.2019 i.e., revised result of LDCE for promotion to the post of Assistant was prepared and published by the 2nd Respondent against the vacancies of the years 2013 2013-14, 2014-15 and 2015-16.
2015 16. In the revised list, the name of the applicant did not figure. The applicant claims that though he secured more marks, his name was not included in the revised merit list on the ground that the applicant has been promoted on regular basis under 75% 9 OA 305/2019/CAT/BANGALORE BENCH quota. Being aggrieved by the said revised list, the applicant has preferred this OA.
4. Learned Counsel Shri Vishwanath Bhat representing the applicant submitted that the applicant is eligible for promotion under 75% quota on the basis of seniority aand eligible to appear for Departmental Competitive Examination under 25% quota. He was eligible to compete for 25% quota for the vacancy of the year 2014-
15. In the said LDCE, the applicant stood at 20th rank and on the basis of the marks he was promoted to the post of Assistant under 25% quota. Accordingly, the seniority list was prepared by taking into consideration the quota rule, the applicant was assigned seniority,, Region wise and all India level on the basis of the merit list prepared by the Respondent No.2 under 25% quota despite he was promoted earlier under 75% quota. As the applicant secured highest marks in the LDCE, LDCE, he was accordingly promoted under 25% quota for the vacancy of the year 2014 2014-15. Seniority was fixed in proper place accordingly. The revised list of selected candidates came to be published after about lapse of 2 1/2 years by revising the earlier select list. Hence, the impugned order is illegal, 10 OA 305/2019/CAT/BANGALORE BENCH arbitrary, unjust and violative of Articles 14, 16 and 21 of Constitution of India. The applicant was promoted as Assistant for the vacancy of the year 2014-15 2014 15 as per quota rulings and he has been shown shown senior to the private respondents. It is the grievance of the applicant that now the official respondents without authority of law revised the merit list after lapse of 2 1/2 years and in the revised select list, the name of the applicant has been dele deleted. Owing to which the applicant has been deprived of, not only seniority but also promotion to the vacancy of the year 2014 2014-15. The applicant was not heard before passing the impugned order. Thus the learned Counsel submitted that the impugned or order suffers from legal infirmities, being violative of Articles 14, 16 and 21 of the Constitution of India and the principles of natural justice. The delay in conducting the LDCE cannot be a ground to deny the promotion from f m earlier date. lapse of 2 1/2 years the Now after lap official respondents have unsettled the things already settled settled, by passing the impugned order.
5. Learned Counsel further submitted that UO Note dated 30.08.2012, wherein it was mentioned that "regular 11 OA 305/2019/CAT/BANGALORE BENCH Assistant/UDCs are not eligible to apply for the LDCE to the post of Assistant & UDC keeping in view the conditions for RRs for the respective post", has been withdrawn with the approval of the Director General General vide letter dated 08.06.2021 ffurther clarifying that all officials eligible eligible as per the RR with reference to the crucial date for the vacancy year concerned, even if they are holding the same post from a date later than the crucial date, will be eligible to apply for the LDCE to the post concerned for the relevant vacancy yyear for which they were eligible to apply. On these grounds, learned Counsel sought for the reliefs claimed.
6. In support of his contentions, the learned Counsel has placed reliance on the following citations:
1) 1992 (2) SLR 336 - Shriram Singh Chauhan vs. Haryana State Electricity Board and others.
2) 1991 Supp(2) Supreme Court Cases 363 - Nirmal Chandra Bhattacharjee attacharjee and others vs. Unio Union of India & others.
3) (1998) 5 Supreme Court Cases 246 - Surendra Narain Singh & others vs. State of Bihar and others.
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4) ILR 2004 (KAR) 3802- Sri M.V.Dixit and others vs. State of Karnataka and others.
5) Judgment dated 01.09.2003 in W.P.No.20665/2003
- P.Shiva vs. the Union of India and others.
7. Learned Counsel Shri N. Amaresh representing the official respondents espondents justifying the impugned order order, submitted that ESIC had issued instructions to all Region of ESIC vide note No.A No.A-33/19/1/2003- E-II II dated 30.08.2012 (Annexure R1) wherein it was clarified that UDCs having requisite qualifying service are eligi eligible to apply for the promotion to the post of Assistant. Further, it was also clarified that Assistants working on regular basis are not eligible to appear in LDCE for the post of Assistant. These instructions have been followed in all the regions of ESIC ESIC except Karnataka Region. Inviting the attention of the Bench to ESIC Headquarters Office (Recruitment Division) letter dated 20.08.2015, 20.08.2015 learned Counsel submitted that it was clarified that all candidates need to apply afresh even if they have already applied against vacancies for a particular year and their eligibility to the post of Assistant should be as per the provisions of Recruitment Regulations namely, Limited Departmental Competitive Examination confined to 13 OA 305/2019/CAT/BANGALORE BENCH UDC/UDC Cashier with three years reg regular service in the Grade, regular Assistants already promoted through DPC, are not eligible to apply for the LDCE to the post of Assistant Assistant. As such, the applicant was not eligible to apply for LDCE quota quota, after being promoted to the post of Assistant on on regular basis with effect from 27.07.2015 as per the decision of the DPC DPC vide office order No.292/2015 dated 26/31.08.2015. Regional Office, Karnataka had erroneously allowed the applicant to appear in the LDCE held on 20.02.2016 ignoring the fact that at applicant had already been promoted to the post of Assistant on 27.07.2015 i.e., even before the examination notification dated 28.09.2015. It was noticed that a total of 15 candidates who were already holding the post of Assistant on regular basis ha had appeared for LDCE. The same being in contravention of provisions of Recruitment Regulation for the post of Regulations Assistant Assistant, the result declared vide notification dated 22.07.2016 was revised in respect of Karnataka Region vide officer order No.10/2019 dat dated 15.02.2019. The learned Counsel has placed placed the original file for perusal of this Bench.
8. Shri A.R.Holla representing the Respondents No.6 & 9 submitted that the Respondents No.6 & 9 were selected to the post of Assistant based on the results declared by the ESIC Headquarters 14 OA 305/2019/CAT/BANGALORE BENCH Office order No.10/2019 No.10/2019 (Examination) dated 15.0 15.02.2019. Two avenues were open for promotion to the post of Assistant, one is through LDCE from the post of UDC UDC and another through assessment by DPC. Respondents No.6 & 9 have appeared for LDCE held on 20.02.2016 .02.2016 for the vacancy year 2014 2014-15. The contention of the applicant that he should also be considered against the vacancies of 2014-15 15 as he had appeared for the said examination is not tenable being contrary to Recruitment Rules and also clarification issued by ESIC HeadQuarters Establishment Branch Branch-II vide Note dated 30.08.2012, wherein it has been stated that the candidate who is already working as a regular regular Assistant is not eligible to apply for the LDCE to the post of Assistant. The applicant ceases to be UDC since 27.7.2015, the date of his promotion. As such he was not eligible to appear for LDCE to the post of Assistant through 25% LDCE quota. The same should be disregarded. The applicant having not waited for LDCE LDCE, got accepted the promotion under DPC quota and enjoyed the promotion from 2015, again cannot seek retrospective promotion on the basis of LDCE quota.
9. Learned Counsel Smt.Akkamahadevi mahadevi Hiremath representing Respondent No.7 supporting the arguments advanced by the learned 15 OA 305/2019/CAT/BANGALORE BENCH Counsel appearing for the the private respondent No Nos.6 & 9, submitted that the applicant knowing fully well that he cannot appear for the LDCE while working as Assistant, as the same has been stated categorically while calling for the application for for LDCE and the circulars dated 20.05.2014, 0.05.2014, 20.08.2015 and 25.08.2015 issued by the respondents Head Office and Regional Office (Karnataka), participated for LDCE and has been promoted to the post of Assistant vide office order dated 18.08.2016. As against the said infraction, the Respondent No.7 has made several representations vide her letters dated 14.02.2018, 21.06.2018 and 02.07.2018. The Assistant Director (Ad (Admn) vide his letter dated 25.06.2018 had asked the ESIC Headquarters to revise the result of the applicant and several others on the ground that they were ineligible for LDCE once they had availed of the promotion by DPC. Pursuant to the said request, the anomaly was corrected by the Respondent ESIC Regional Office (Karnataka) vide its office order dated 07.03.2019. The applicant had blocked one vacant post for the year 2015-16 2015 16 availed by him by way of promotion as per the DPC with effect from 27.07.2015 27.07.201 and another post by way of LDCE held on .2016. The 7th Respondent has been selected for promotion to the 20.02.2016 post of Assistant on the basis of the revised results declared by the 16 OA 305/2019/CAT/BANGALORE BENCH Respondent ESIC office (Karnataka) vide its office order dated 07.03.2019 at Sl.No.7 pursuant to the ESIC Headquarters' Office order No.10/2019. Learned Counsel further submitted that the applicant has not challenged the notification issued for LDCE where this respondent has been selected, which itself puts a condi condition that candidates who are already Assistants cannot appear for LDCE quota and therefore the applicant is estopped esto ped from seeking to shift his promotion from 75% DPC quota to 25% LDCE quota. Thus learned Counsel sought for dismissal of the application.
10. We have carefully considered the rival arguments advanced by the learned Counsel for the respective parties and perused the original record placed by the learned Counsel appearing for the official respondents.
11. The Employees State Insurance Corporation (Head Clerk/Assistant) Recruitment Regulation, 1997 (Annexure A1) has come into force on the date of its publication publication in the official Gazette, i.e., 1st March, 1997. In terms of the said Recruitment Rules Rules, for the post of Head Clerk/Assistant, Clerk/Assistant method of recruitment is prescribed as under:
17 OA 305/2019/CAT/BANGALORE BENCH Method of Rectt. Whether by Direct In case of Rectt. By Promotion/Deputation Rectt. Or by Promotion or by /Transfer. Grades from which Deputation/Transfer & % of the Vacancy Promotion/Deputation/Transfer to be made.
to be filled by various Methods (11) (12)
1) 75% by Promotion on the Basis PROMOTION of Seniority Subject to Rejection of Unfit. From UDC/UDC -Cashier with Three years of Regular service in the Grade.
2) 25% by Promotion on merit on the basis of Departmental THROUGH COMPETITIVE Competitive Examination DEPARTMENTAL EXAMINATIO EXAMINATION confined to UDCs with 3 years of Regular Service.
S By Limited Competitive Departmental Examination confined to UDC/UDC Cashier NOTE: The Inter-se Inter Seniority among with three years Regular Service in the those Promoted through DPC and through Grade. Limited Competitive Examination shall NOTE 1. The eligibility of the Candidate be determined according to the Rotation for promotion will be reckoned with of vacancies which shall be based on the reference to 1st October of the financial year quota of vacancies reserved for each of vacancies.
cancies.
category of posts in the Recruitment NOTE 2 The Eligibility or Admission to Regulations. be Limited competitive Departmental Test will be reckoned from the Date Notified in the Memorandum calling for Applications for the said Examination.
12. It is not in dispute that the LDCE for promotion to the post of SSO, Assistant and UDC relating to the Recruitment year 2014 2014-15 (Vacancy year 2013-14) 2013 14) was proposed to be conducted on 25/26.09.2014, as per the action plan for LDCE 2014 2014-15. The said examination nation not being held, the same was again proposed to be conducted on 25.10.2015 for the vacancy year 2013 2013-14 and 2014-15 18 OA 305/2019/CAT/BANGALORE BENCH (Annexure A3). In Annexure A3 dated 20.08.2015 as per para para-1, the candidates who had already applied during the Recruitment year 2014-15 15 against the vacancies for the vacancy year 2013 2013-14, will invariably be considered against the vacancies for the vacancy years 2013-14 14 and 2014-15, 2014 , such candidates need not apply again against the vacancies for the vacancy year 2014 2014-15. However, as per er Establishment Branch-II Branch II Headquarters UO note dated 30.08.2012 regular Assistants already promoted through DPC are not eligible to apply for the LDCE to the post of Assistant and UDC keeping in view the conditions for RRs for the post and therefore reg regular Assistant are not eligible to appear in the LDCE, which is confined only to eilgible UDCs.
13. In the he Circular dated 25.08.2015 issued by the Deputy Director(Admn), ESIC (Annexure A4), it has been made clear that as per Headquarters Office letter dated dated 20.08.2015, applications for the departmental examination from eligible candidates as on 01.04.2015 may be obtained and forwarded to th the said office on or before 27.08.2015 for onward transmission to Headquarters office. Further, itt was made clear that that the candidates who had already applied during 19 OA 305/2019/CAT/BANGALORE BENCH the Recruitment year 2014-15, 2014 against the vacancies for the vacancy year 2013-14 2013 14 will invariably be considered against the vacancies for the vacancy year 2013-14 and 2014-15.
15. Such candidates need not applyy again against the vacancaies for the vacany year 2014 2014-15.
15.However, as per Establishment Branch II Headquarters UO Note d dated 30.08.2012 regular Assistants already promoted through DPC are not eligible to apply for the LDCE to the post of Assistant, in view of the conditions for RRs for the post and therefore, regular Assistants are not eligible to appear in the LDCE, which is confined only to eligible UDCs.
14. Indisputedly, the applicant was promoted to the post of Assistant/Head Clerk on regular basis with effect from 27.07.2015 on the recommendation of the review DPC meeting held on 05.08.2015 as per the office order No.292/2015 No.292/2015 dated 26/31.08.2015.
15. Since no examination was conducted as scheduled earlier, again it was proposed to hold LDCE for the post of SSO, Assistant, P.A., UDC and Stenographer as per the following crucial dates of eligibility in Proforma 'B' enclosed thereto, by 12.10.2015 in terms of the letter 20 OA 305/2019/CAT/BANGALORE BENCH dated 28.09.2015 issued by the Assistant Director (Recctt.) (Anenxure A6).
"Table 'A' Sl.No. Vacancy Crucial Date of Eligibility Vacancy position to be furnished year for candidates taking into account vacancies in L.D.C..E quota upto
1. 2013 2013-14 01.04.2013 31.03.2014
2. 2014 2014-15 01.04.2014 31.03.2015
3. 2015 2015-16* 01.04.2015 31.03.2016 *Including anticipated vacancies against retirements and clear/existing vacancies against promotions and deaths.
As per the note appended thereto, all candidates need to apply afresh even if they have already applied against vacancies for a particular vacancy year. Similarly, vacancy position is also to be furnished afresh even if already furnished by any region. Separate Proforma 'A' and 'B' are to be used for furnishing details of vacancies and list of eligible candidates in respect of each vacancy year.
16. In terms of Note-iii iii of Annexure A6, as per RRs RRs, candidates eligible as on 01.04.2013 shall be consider considered for the vacancies of the vacancy years 2013-14, 2013 2014-15 15 and 2015 2015-16, but the candidates who become eligible as on 01.04.2014 shall be considered only for the vacancies es of the vacancy year 2014-15 15 (with back back-log vacancies, if any) and 2015-16 2015 irrespectivee of their overall merit position. It is also
21 OA 305/2019/CAT/BANGALORE BENCH not in dispute that the applicant applied afresh pursuant to this Annexure A6. Learned Counsel Shri Vishwanath Bhat appearing for the applicant heavily placed reliance on this Annexure A6 to contend that thee crucial date of eligibility for candidates regarding vacancies for the vacancy year 2014-15 2014 15 was 01.04.2014, as on that crucial date the applicant was working as UDC and was not promoted as Assistant. Hence UO Note dated 30.08.2012 0.08.2012 has no relevance. This argument though sounds attractive, cannot be countenanced for the reason that the RR specifically provides 25% promotion by merit on the basis of Departmental Competitive Examination confined to UDCs with three years of regular service. Note-ii Note of the RRs provides, the eligibility or admission to the LDCE will be reckoned from the date notified in the memorandum calling for applications for the said examination examination.
Annexure A6 cannot be read in isolation. A conjoin conjoint reading of RR with Annexure Annexu A6, makes it clear that 25% by promotion through LDCE is confined to UDCs with three years regular service in order to reckon the eligibility. In this context, possessing of three years of regular service on the crucial date of eligibility of candidat candidates has to be determined. The language employed "who become eligible on 01.04.2014" in Annexure A6 plays a significant role. In our 22 OA 305/2019/CAT/BANGALORE BENCH considered view this crucial date of eligibility is to be considered to determine the eligibility of UDCs as far as thre three years of regular service is concerned. If the applicant intended to participate and opt for 25% LDCE quota, he would not have accepted the regular promotion quota of 75%, having accepted the same and enjoyed the benefit of promotion from 2015, now cannot ot seek for retrospective seniority. The applicant cannot have his cake and eat it too. As per the memorandum and circular at Annexure A3 and A4 respectively, regular Assistants already promoted through DPC were not eligible to apply for the LDCE to th the post of Assistant, which is confined only to eligible UDCs. Admittedly LDCE for the promotion to the post of Assistant/Head Clerk was held on 20.02.2016 for the vacancy year 2013 2013-14 to 2015-16 in respect of Karnataka Region and the results were declare declared on 22.07.2016. Promotion order was issued on 18.08.2016 vide office order No.297/2016, wherein the applicant's designation and present place of posting is shown as Assistant(Regular -LDCE), Ins.I, R.O, ESIC, Bangalore and the place of posting now ord ordered is shown as Assistant (Regular) , Audit, Audit, R.O, ESIC, Bangalore. In seniority list in respect of Assistants of Karnataka Region as on 31.03.2015 applicant's name figures at Sl.No.175. Now by virtue of all India seniority list of 23 OA 305/2019/CAT/BANGALORE BENCH Assistant/Head Clerk dated 27.12.2018,, the applicant's name is found at Sl.No.84, wherein the date of regular appointment/p appointment/promotion is shown as 27.07.2015 through LDCE 25% quota. Representations were moved by the affected parties to set right the said anomaly.
17. It is discernible scernible from the notings in the original file, the representation submitted from Smt.Shobha Shobha M and Shri Manjunath C.R., Assistants, Karnataka Region regarding declaration of result of LDCE for the promotion to the post of Assistant held on 20.02.2016, were re put up before the Deputy Director (Rectt). Following submissions were brought forward by both the candidates through their representations :
1. "DPC DPC for the post of Assistant was held on 14.07.2015 for SCs/STs as special drive wherein 20 officials got promotion on regular basis w.e.f. 14 14-7-2015 and in continuation of this, review DPC held on 55-8-2015 thereby 16 officials got promotion on regular basis w.e.f. 27.7.2015.
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2. Further DPC for the post of Assistant was held on 27-7-2015 2015 thereby one official got promotion on regular basis w.e.f. 01.02.2016.
3. LDCE for the promotion to the post of Assistant for the vacancy year 2013-14 14 to 2015 2015-16 was held on 20 Feb., 2016 and result was declared on 27 27-7-2016 and 14 officials, who already got promoted through DPCs held on 14 14-7-2015, 5-8- 15 and 1-2-2016 2016 on regular basis, appeared in the aforesaid LDCE and declared qualified for the vacancy year 2014 2014-15 as per order dated 22-7-2016.
2016. The copy of Combined Merit List is also attached.
4. Both the candidates have raised their objection for eligibility of a regular Assistant to appear in LDCE thereby quoting the reference of Hqrs. Office letter issued by E E-II vide letter No.A-33/19/1/2003 33/19/1/2003-E-II dated 30-08-2012 wherein it is informed ormed that regular Assistant/UDCs are not eligible to apply for the LDCE to the post of Assistant & UDC. Regular Assistant & UDCs are not eligible to appear in the LDCE which is confined to only for UDC & LDC respectively.
5. Hqrs. Office vide letter N No.A-36/34/2013-14 Exam dated 27-5-2014 2014 cancelled the result of two candidates selected in respect of Rajasthan region for the reason that they were already holding the post of Assistant on regular 25 OA 305/2019/CAT/BANGALORE BENCH basis on the date of conduct of LDCE and as per the instruction conveyed by E-II II vide letter No.A No.A-33/19/1/2003- E-II dated 30-8-2012 both the candidates were in in-eligible.
eligible.
Consequently, supplementary result of LDCE was declared." Both the candidates requested for re-verification re verification of result of LDCE for the promotion to the post of Assistant for the year 2014 2014-15 held on 20.02.2016 and to consider their promotion. In this regard, comments/opinion of Regional Director, Karnataka was sought. With reference to the same, same Regional Office, Karnataka informed that inadvertently the officials who were promoted before the date of conduct of LDCE on 20.02.2016 were permitted to appear for the examination. On receipt of the result, it was noticed that officials who had promoted on regular basis qualified in the LDCE were promoted under LDCE quota.
18. It has been observed that similar error also happened in Rajasthan Region, where vacancies were not reported initially and the same was rectified subsequent to declaration of select list and two candidates' name got included in the select list subsequently cancelling the result of two candidates.
candidates. Accordingly, it was opined to recast the result for the post of Assistant for Karnataka Region Region. Opinion of the 26 OA 305/2019/CAT/BANGALORE BENCH legal advisor, Director (Legal) taken would indicate that oonce the candidate has taken charge of Assistant, he is no more a UDC and the RRs does not allow Assistants to appear in the LDCE. Based on the said opinion of the legal Advisor, recasted result was approved and revised selection panel was declared. But no reasons are forthcoming in the file for withdrawal of UO note dated 30.08.2012 on 08.06.2021. On the other hand, hand the notings of 08.06.2021 indicates about the legal notice received through learned Counsel of Shri Prashanth Kumar G., Assistant ESIC SRO Peenya, Bangalore w Assistant, whereby it was requested to recall/revoke the order of promotion to SSO SSO/Manager Grade II, of such candidates of Karnataka Region, Region who cleared ared LDCE 2016 for promotion to the post of Assistant for the year 2014 2014-15 and whose result has been revised as they were already working as regular Assistants (promoted through DPC). There is no satisfactory answer or any additional reply filed on behalf of the official respondents in furtherance to the memo dated 03.02.2022 submitted by the learned Counsel for the applicant along with the copy of the letter dated 08.06.2021 withdrawing the Note dated 30.08.2012 and the circular dated 15.06.2021 issued in this regard by the Deputy Director (Admn) (Admn), for Regional Director.
Director 27 OA 305/2019/CAT/BANGALORE BENCH
19. We have perused the memo dated 03.08.2023 submitted by the learned Counsel for the official official respondents (after reserving the matter for orders) along with the copy of UO Note No.A No.A-36/11/2009-E-
V dated 23.08.2012. UO Note dated 23.08.2012 reads thus:
"Sub:
"Sub:- Regarding Limited Department Competitive Examination.
Kindly find enclosed the representation received from the effective employees for taking further necessary action. It is also requested to issue appropriate directions to the R.O. Delhi as well well as to other Regions.
Encl: As above.
(N.K.LUTHRA) DY.DIRECTOR (E-V) E-II/Recruitment Branch E U.O.Note No.A-36/11/2009-E-V No.A V Dated: 23.08.2012"
20. It appears pursuant ursuant to that, clarification dated 30.08.2012 was issued by the Establishment Branch-II Branch II vide UO Note dated 30.08.2012, but the same was circulated vide Circular dated 25.08.2015 (Annexure A4) andd implemented in many Regions. Had the said circular instructions tions were not issued by the competent authority, many of the Assistants promoted under 75% DPC quota would have participated in 28 OA 305/2019/CAT/BANGALORE BENCH 25% LDCE. Circular dated 25.08.2015 being acted upon, withdrawal of the same for the reasons best known to the respondents iis wholly unsustainable. Declaration of LDCE vide office order No.20/2016 dated 22.07.2016 makes it clear that every care has been taken in preparing the said result, the competent authority reserves the right to rectify errors/omissions, if any, at later stage. The circulars/clarifications issued by ESIC are applicable uniformly to all the Regions. If the results of Rajasthan Region are revised, considering the UO note dated 30.08.2012 inasmuch as the ineligibility of the Assistants promoted by DPC und under 75% quota appearing for LDCE - 25% quota being selected, given promotion under 25% quota quota, no discrimination could be meted out to the other Regions as well.
21. It is trite that the administration has to give reasons for withdrawal of the clarification issued through UO note dated 30.08.2012 which was holding the field for a long time and moreover based on the said UO note revised results of the LDCE held on 20.02.2016 .2016 were published on 15.02.201 15.02.2019, which is impugned in this OA before this Tribunal. The conduct of official respondents in issuing the withdrawal order on 08.06.2021 and circular instructions on 15.06.2021 when the matter is ceased of by this Tribunal, is highly 29 OA 305/2019/CAT/BANGALORE BENCH deprecative Employer/ESIC deprecative. er/ESIC cannot act according to their whims and fancies, changing the views/colour like a chameleon without assigning any reasons much less valid valid reasons for change of opinion after nearly 9 years. It is nothing but abuse of power power. It is apparent that the Assistant Director (Admn) vide its letter dated 25.06.2018 requested the ESIC, Headquarters Office to revise the result of LDCE on the ground that Assistants - ineligible for LDCE having availed promotion by DPC participated and selected selected in the said LDCE, the official respondents took the necessary remedial action in revising the results vide impugned order dated 15.02.2019 (Annexure A12) and hence the subsequent volte face decision in issuing the order dated 08.06.2021 cancelling the UO note dated 30.08.2012 is bad in law. Such conduct is highly deplorable and cannot be appreciated. Consistency and firm decision/certainity /certainity are the hallmark of adminis administration and the same cannot be given a go-bye in moving like an oscillating pendulum leading to uncertainty and chaos.
22. Be that as it may, the interpretation of RRs assumes significance. As per the RR, 25% by promotion on merit on the basis of LDCE is confined to the UDCs with three years of regular service. Applying pplying the cardinal principle of harmonious construction, Clauses 11 30 OA 305/2019/CAT/BANGALORE BENCH and 12 requires to be read in its entirety. On harmonious reading of Clause 11 and 12 with Note-2 therein, 25% quota of LDCE has to be confined to UDCs with three years of regular service. In oth other words, no Assistant is eligible to participate under 25% LDCE quota. It goes to the root of the matter. It is well settled that the provision provisions of one clause cannot be used to defeat the provision contained in another, unless the court despite of its effort, is unable to find way to reconcile their differences. Effect is to to be given to the both the provision as well as possible. One provision cannot be red reduced to a useless number..
No provision could be destroyed or rendered fruitless in giving effect to another provision. This principle applies to the interpretation of RR as well. In reading Note-2 Note to Rule-12, 12, the main provision cannot be rendered red ineffective ineffective or dead. A conjoint reading of Clause-11 and 12 with Note-2 Note of the RR is necessary. Inn our considered view, Note-2 cannot override the main Clause-12 12 i.e., eligibility by Limited Departmental Competitive Examination confined to UDC/Cashier with three years regular service in the grade. As such the impugned order dated 15.02.2019 15.02.2019 (Annexure A12) and office order dated 07.03.2019 (Annexure A13) cannot be held to be unjustifiable.
31 OA 305/2019/CAT/BANGALORE BENCH
23. We have carefully analysed the case on hand in the background of the judgments judgment cited by the learned Counsel for the applicant.
24. In Shriram Singh Chauhan supra, the Hon'ble Punjab and Haryana High Court, Court while considering the claim of the petitioner therein, that he was not considered for promotion before the orders regarding the promotion of Respondent Respondent No.5 therein, were issued, held that a senior person has a right to be considered and if he fulfils the qualifications and is otherwise found suitable for promotion, the employer is not entitled to supersede him merely because the processing of the case takes sometime. On some procedural delay, the claim of the petitioner therein, vis-a-vis vis vis Respondent No.5 therein, was ignored and as such it has been held that petitioner's grievance therein, in thatt behalf has to be sustained.
25. In Nirmal Chandra Bhattacharjee supra, the Hon'ble Apex Court in the context of the eligibility for further promotion observed that it will be unjust to deny promotion to the appellants therein, as Ticket Collector; A rule cannot work to the prejudice of an employee 32 OA 305/2019/CAT/BANGALORE BENCH who was in service prior to that date. The appellants therein, by virtue of restructuring came in class 'C' could not be promoted to the post of Ticket Collector which is in Class 'III, whereas the respon respondents who had been rejected in the selection along with the appellants and could not come in 65% quota of the 'D' class when it was restructured, had chance of being promoted against 33 ½ per cent in class 'C' to the post of Ticket Collector and then further further on. By this process the juniors and those who could not be selected, are likely to become senior and better placed than those who were placed in class 'C'. In that background, it was held that the mistake or delay on the part of the department, shou should not be permitted to recoil on the appellants (therein).
26. In Surendra Narain Singh supra, in the dispute relating to inter se seniority of Munisiff recruited by two different modes of recruitment. Respondents No.3 to 34 therein, belong belonged to the batch of 15th examination held under the 1955, Rules and if supplementary list nominating their names would have been sent along with the main list prepared in terms of Rule 19, then obviously there would have been no difficulty. But the difficulty arose because the supplementary list nominating the respondent Nos.3 to 34 came to be forwarded after nominating 23.07.1975. The date 23.05.1975 was relevant, since no one appointed 33 OA 305/2019/CAT/BANGALORE BENCH subsequent to 23.05.1975, on account of there being no vacancy, will rank in the seniority according to the length of service, fr from the date of their actual appointment. In such circumstances, it was held that they should not suffer for no fault of theirs.
27. In Sri M.V.Dixit supra, one of the point for consideration was whether the order dated 5.12.2001, downgrading certain pposts of Accounts Superintendents and directing that those downgraded posts be filled up by promotion from the cadre of First Division Assistants or First Division Store Keepers in the Public Works/Irrigation Departments, violate the provisions of Section 3 of the Karnataka Civil Services Act, 1978 and therefore invalid? It was held that notifications dated 18.06.1999 and 05.12.1999 downgrading certain posts of accounts Superintendents to a lower scale are invalid being contrary to section 3(1) and 3(3) of the Karnataka State Civil Services Act, 1978.
28. In P.Shiva supra, the principles relating to promotions based on examination has been summarised by the Hon'ble High Court of Karnataka as under:
i) The examination result of a candidate, published andd given effect cannot be altered: a) where the candidate is not guilty of mal-practice practice or misrepresentation or any 34 OA 305/2019/CAT/BANGALORE BENCH blameworthy conduct: or b) where there is no fraud or irregularity in the conduct of examinations or evaluation or tabulation: or c) where thee Rules do not provide for change of results on the basis of review or revaluation of the answer scripts.
ii) Where the Rules governing recruitment provide for empanelment or preparation of select list based on the result in an examination, and a candidate empanelled or placed in the selection list on being declared as successful in the examination, is promoted on the basis of such selection, such promotion cannot be cancelled or withdrawn on the ground that on a revaluation which is not a part of the process of selection under the Rules, he was found to have failed in the examination. Any revaluation or review of the examination results, necessarily, should be prior to the promotion or appointment based on the selection list.
iii) But, where there ere is fraud, or irregularities in the conduct of examinations/valuation/tabulation or malpractice or blameworthy conduct on the part of the candidate himself, the result of an examination can be altered and all consequences can be set at naught, as discovery ery of fraud override doctrine of estoppels or Rule of finality or principle of equity.
35 OA 305/2019/CAT/BANGALORE BENCH
17. We are, therefore, of the view that once the petitioner was selected and empanelled on the basis of the marks secured in the examination, and promoted as Ticket Collector in pursuance of such selection, his promotion cannot be cancelled merely on the ground of a error in evaluation, in the absence of any circumstances mentioned in para 15(iii) above. To hold otherwise, would mean that there can be no finality to any process of selection thereby leading to uncertainty and chaos." These judgments judgment are distinguishable and not applicable to the facts of the present case.
case The delay caused in conducting LDCE is common to all the promotion aspiring candidates. The app applicant would not have accepted the promotion under 75% quota, if he was very particular about 25% LDCE quota. We are conscious that the applicant has been further promoted to Social Security Officer vide order dated 05.05.2021 issued by the ESIC, Respondent Respondent No.4 and further vide Office Order dated 06.05.2021 issued by Respondent No.5, during the pendency of this OA proceedings.
proceeding . The said promotion orders are challenged in the connected matters - OA No.45/2023 and OA No.46/2023. Having accepted the promotion promotion under 75% quota, applicant cannot turn around and seek promotion under LDCE 25% quota. In the present case, 36 OA 305/2019/CAT/BANGALORE BENCH promotion of the applicant is not cancelled, but has to be placed under 75% regular promotion quota.
29. Thus,, we have no hesitation to hold that impugned orders are in conformity with the RRs applicable for promotion to the post of Assistant from UDC. Hence Relief No. No.(ii) claimed by the applicant does not survive for consideration.
30. For the reasons aforesaid, OA lacks merit. Resul Resultantly, OA is dismissed No order as to costs.
dismissed.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.