Central Administrative Tribunal - Delhi
Anuruddha Kumar Soni vs Gnctd on 21 November, 2024
1
Item No.26/ C-3 OA No.528/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 528/2023
This the 21st day of November, 2024
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. SH. ANURUDDHA KUMAR SONI
S/o- Sh. Prem Lal Soni
R/o-41A, Delhi Govt. Admin Flat,
Pocket B, Block A, Mayur Vihar Phase 2,
Delhi-110091
Email: [email protected]
...Applicant
(By Advocate : Applicant in person)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary
3rd Delhi Secretariat, IP Estate,
Delhi-110002
Email: [email protected]
2. Dept. of IT (Cadre Controlling Unit)
Through its Secretary,
Govt. of NCT of Delhi
Level-9, Wing-B, Delhi Secretariat,
Delhi-9
3. Dy. Secretary
Dept. of IT (Cadre Controlling Unit)
Govt. of NCT of Delhi
Level-9, Wing-B,
Delhi Secretariat,
Delhi-9
...Respondents
(By Advocate: Mr. Amit Anand)
2
Item No.26/ C-3 OA No.528/2023
ORDER (ORAL)
By Hon'ble Ms. Pratima K Gupta, Member (J):-
The applicant, who is present in person, submits that he has joined as Assistant Programmer on 19.07.2010 under the PWD quota. He claims the promotion for the post of System Analysis under the said quota. He submits that he was eligible for consideration for promotion in the year 2019 itself under the PWD quota and, therefore, preferred representation dated 18.11.2019 (Annexure A-9) seeking promotion, which has not been responded to by the respondents. Feeling aggrieved, he has preferred the present OA seeking the following reliefs:-
"A) Quash/Set aside the impugned letters dated
02.03.2022 bearing No F.20(1)/2020/ITC/811 and Letter dated 14.11.2022 bearing no. F.20(1)/2020/ITC/7365 issued in response to the various representations made by the applicant to the respondent no. 2. B) Direct the Respondents to give regular promotion to the applicant for the post of System Analyst or any other higher post applicable in terms of law under the reservation in promotion in the category of Persons with disabilities with immediate effect, Direct the respondents to produce all the records including entire communications related to the present case for adjudication of this present case before this Hon'ble Tribunal, C) Direction to the respondents to file roaster of vacancies in the promotion and the number of posts filled by promotion for employees with disabilities. D) Direction to the respondents to provide the status of Backlog vacancies for promotion to employees with disabilities in the cadre of IT Dept. to the posts of System Analyst as well as Senior System Analyst since 1996 till date in all the separate categories of disabilities entitled for reservation in promotion in Disability Quota.
3Item No.26/ C-3 OA No.528/2023 E) Direct the respondents to take necessary actions against the Nodal officials for non obedience of directions passed by Hon'ble Supreme Court of India in Union of India & Anr. Versus National Federation of the Blind & Ors. Civil Appeal No. 9096 of 2013 (Arising out of SLP (Civil) No. 7541 of 2009) for the proper strict implementation of reservation for person with disabilities in government departments.
F) Allow the cost of this application to the applicant. G) Pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in the favour of the applicant and against the respondent."
2. The applicant submits that in terms of the roster and the decision dated 03.02.2017 of the Hon'ble Apex Court in Civil Appeal No. 1567/2017 titled Siddaraju Vs. State of Karnataka & Ors. reiterated in judgment dated 30.06.2016 in W.P.(C) No. 521/2008, titled Rajeev Kumar Gupta Vs. Union of India, the Hon'ble Apex Court has conclusively decided the issue and as a consequence, the DOPT has issued an OM on 28.12.2023. He prays that the OA be decided in light of the aforementioned Apex Court judgments and DOPT OM dated 28.12.2023.
3. Mr. Amit Anand, learned counsel for respondents vehemently opposes the present OA. He submits that the applicant preferred the representation in the year 2019 and at that relevant point of time, though the decision of Hon'ble Apex Court was there, however, the DOPT had not issued any instructions on the subject. Therefore, the respondents could not extend the reliefs prayed for by the applicant. He reiterates the submissions of para 4.5 of the counter reply which are reproduced hereinbelow:-
4Item No.26/ C-3 OA No.528/2023 "4.5 That the averments made this para are wrong, misleading and hence vehemently denied. It is submitted that there had been some litigation in the year 2016-17 with regard to reservation in promotion. The Services Department of Govt. of NCT of Delhi, being the Nodal Department in Service Matter was taking care of the matter. Subsequently, Services Department issued OM dated 30.11.2017 on the subject "Action Plan for filling up of all the vacant posts under promotional quota in the Govt. of NCT of Delhi." This OM dated 30.11.2017 is annexed as Annexure-R-2. The mandate conveyed in this OM reads as under:
"... it has been decided that in view of the orders of Hon'ble Supreme Court of India and Hon'ble Delhi High Court, need to fill up the promotional vacancies in a timely manner to boost the morale of the employees and in the interest of ensuring efficiency of administration, the vacancies shall be filled up on Ad-hoc basis based on the principle of seniority (based on the principle of seniority- cum-fitness wherever DoPT guidelines provide so) without relying on the DoPT O.M. dated 13.08.1997. For example:- if there are 100 vacancies available for promotion, the first 100 employees as per the seniority list shall be promoted irrespective of their category i.e. General/SC/ST. The departments should also mention in the promotion orders that the present promotion is subject to the final outcome of the pending cases in the Hon'ble Supreme Court of India and the decision of Gol in this regard.
All the Heads of Departments/Autonomous Organisation should follow the above instructions while filling up the vacancies of promotional quota in their departments. Action taken in this regard may be regularly/periodically reviewed and a monthly progress report indicating the status should be sent to Services Department on the first working day of every month.
This issues with the approval of the Hon'ble Lt. Governor, Delhi."
In view of the above guidelines/mandate, the office of the answering respondent vide Order No. 29/2017 dated 29.12.2017 Promoted 29 Assistant Programmers from Seniority No. 36 to 64 including the present applicant having seniority No. 63, to the post of System Analyst on ad-hoc basis. The said order reads as under:
5Item No.26/ C-3 OA No.528/2023 "On the recommendations of the Screening Committee, the Hon'ble Lt. Governor, Delhi is pleased to appoint the following Assistant Programmers (Group-'B' Gazetted in Level 7 of the pay matrix of Rs. 44,900 - 1,42,400/-) to the post of System Analyst Group-'A' Gazetted in Level 10 of pay matrix of Rs. 56,100 1,77,500/-) with immediate effect on ad-hoc basis, carrying higher responsibilities, for a period of six months i.e. upto 30.06.2018 or till the posts are filled up on regular basis or till further orders or till the date of retirement whichever is earlier. This ad-hoc promotion was granted with the further following conditions:
a) That ad-hoc promotion shall neither bestow the claim for regular appointment nor confer any right to continue in the ad-hoc promotional grade, on any officers.
b) The services rendered by an officers on ad-hoc basis as System Analyst would neither count for the purpose of seniority in the System Analyst nor for eligibility for promotion to the next higher grade.
c) Ad-hoc appointment is liable to be terminated at any time without assigning any reason and the officers concerned may be reverted to their substantive post.
d) The appointment on ad-hoc basis will take effect from the date of assuming the charge of the post of System Analyst.
e) Any Officer, who is eligible for promotion as System Analyst on Ad-hoc basis and is on deputation, may be given option to revert within 15 days with a view to avail himself of the promotion on ad-hoc basis, failing which ad-hoc promotion is liable to be cancelled.
f) The present promotion is further subject to the final outcome of the pending cases in the Hon'ble Supreme Court of India and the decision of Government of India in this regard.
The said Order No. 29/2017 dated 29.12.2017 is annexed as Annexure-R-3.
In this connection it is relevant to submit that the above discussed promotion was given on ad-hoc basis after obtaining due approval of the Hon'ble Lt. Governor, on the recommendation of Screening Committee constituted in Govt. of NCT of Delhi in terms of para 3 & 4 of Services Department, 'General Guidelines' regarding Screening 6 Item No.26/ C-3 OA No.528/2023 Committee of candidates for ad-hoc promotion vide letter No. F.(2)/23/2001/S-I/1211 dated 27.06.2002, which is annexed as Annexure-R-4. However, as per Recruitment Rules, the promotion of Assistant Programmer (Group-'B' Gazetted in Level - 7 of the pay matrix of Rs. 44,900- 1,42,400/-) to the post of System Analyst Group-'A' Gazetted in Level 10 of pay matrix of Rs. 56,100- 1,77,500/-) is made on the recommendations of the DPC constituted in the Union Public Service Commission, GoI. The hierarchy of promotion of IT Cadre Staff is submitted as under:
1) The hierarchy of promotion of IT Cadre Staff is submitted as under:
ii) System Analyst (Group-'A' Gazetted) are promoted to the post of Senior System Analyst (Group-'A' Gazetted).
iii) Senior System Analyst (Group-'A' Gazetted) are promoted to the post of Joint Director (IT) (Group-'A' Gazetted).
Subsequent to grant of above discussed ad-hoc promotion, the matter of regular promotion of Assistant Programmer to the post of System Analyst, in accordance with the Recruitment Rules, was taken up with UPSC. A DPC was convened in the UPSC on 15.11.2019 for the promotion to the post of System Analyst (Group A post in Level-10 in the Pay Matrix, Rs. 56,100- 1,77,500/-). The DPC considered all relevant rules vis-à-vis the suitability of candidates as per the RRs of the post for promotion. Minutes of the said DPC meeting convened in the UPSC on 15.11.2019 is annexed as Annexure-R-5.
Accordingly, Information Technology Department, Govt. of NCT of Delhi, vide Order No. 43/2019 dated 09.12.2019, on the recommendation of the DPC convened in UPSC, promoted 31 eligible Data Processing Assistants (earlier known as Assistant Programmer) on regular basis with immediate effect. The said order reads as under:
"On the recommendations of Union Public Service Commission, the Hon'ble Lt. Governor, Delhi is pleased to promote the following Data Processing Assistants (earlier known as Assistant Programmers), Group-'B', Gazetted in the Level-7 of Pay Matrix (Rs. 44,900 1,42,400/-) as System Analyst, Group-'A' Gazetted in the Level 10 of Pay Matrix (Rs. 56,100-1,77,500/-) plus other allowances as admissible under the rules, in the Information Technology Cadre, Govt. of NCT of Delhi, on regular basis 7 Item No.26/ C-3 OA No.528/2023 with immediate effect." The said Order No. 43/2019 dated 09.12.2019 is annexed as Annexure-R-6. It is most relevant to submit here that the UPSC did not recommend the present applicant Sh. Anuruddha Kumar Soni, Data Processing Assistant (earlier known as Assistant Programmer) having Seniority No. 63 including other 04 other Data Processing Assistants, who were earlier given ad-hoc promotion to the post of System Analyst, for promotion. Accordingly, vide Order No. 44/2019 dated 09.12.2019 they were reverted to their substantive posts i.e. Data Processing Assistants (earlier known as Assistant Programmer) with immediate effect. This Order dated 09.12.2019 is annexed as Annexure- R-
7. Thus the present applicant was reverted back to his substantive post of Data Processing Assistant. It is significant to submit that at present there are total 43 sanctioned posts of System Analyst to which the present applicant is seeking promotion including three posts for ST candidates. Out of these 43 sanctioned posts, 41 posts are filled. Therefore, the candidature of the present applicant being Data Processing Assistant will be placed before the UPSC for convening the DPC to consider promotion to the post of System Analyst as and when sufficient vacancy arises. The present applicant has made several representations to the office of the answering respondent which had been examined and suitable replies have also been given to him vide letters dated 02.03.2022 and 14.11.2022. Copies of these letters are annexed as Annexure-R-8 (Colly). The present applicant has separately approached the Hon'ble State Commissioner for PwD twice. The position in the matter has been conveyed to the Hon'ble State Commissioner for PWD on both the occasions vide letters dated 11.03.2022 and 24.03.2023. The Hon'ble State Commissioner for PwD has also been informed vide letter dated 24.03.2023 sent on 2nd occasion of the fact that Sh. Anuruddha Kumar Soni, the present applicant has approached Hon'ble CAT for his promotion. Copies of these letters are annexed as Annexure-R-9 (Colly)."
4. In rejoinder, the applicant submits that he is entitled for promotion w.e.f. 09.12.2019 itself when his juniors and incumbents were extended promotion to the post of System Analysis.
8Item No.26/ C-3 OA No.528/2023 5.1 Heard the applicant and the learned counsel for respondents. 5.2 From the roster placed on record, it has not been disputed
that there was a vacancy in the year 2019 against which the applicant should have been considered in this category. The contention of the respondents that the benefits could not be extended to the applicant in the absence of OM, cannot be accepted for the reason that the decision of the Hon'ble Apex Court in Siddaraju (supra) and Rajeev Kumar Gupta (supra) were there and the respondents were obliged to follow the same. It would be worthwhile to reproduce the relevant portion of the DOPT OM dated 28.12.2023:
"5(1) PwD employees in posts and services of the Central Government, will be considered for grant of the benefit of reservation in promotion up to the lowest rung of Group 'A' on notional basis w.e.f. 30.6.2016 subject to their fulfilment of the eligibility conditions as laid down in the DOPT OM of even number dated 17.5.2022 regarding reservation in promotion to PwDs. However, the extent of reservation in promotion may be in accordance with the relevant provisions contained in the PwD Act 1995 and RPWD Act 2016. Further, this benefit may be extended after holding Review DPC as per the extant instructions issued by DOPT on the subject. In case the PwD employees are found eligible and suitable for promotion from any date subsequent to 30.6.2016, then the benefit of reservation in promotion may be extended to them from the date they become eligible for promotion. This promotion on notional basis Includes promotion on seniority quota as well as Departmental Examination/Departmental Competitive Examination. In case of Departmental Examination/Departmental Competitive Examination, which has already been held during the period from 30.6.2016 to 16.5.2022, the eligibility of the PwD candidates may be assessed on the basis of their performance in the said examination. The concerned 9 Item No.26/ C-3 OA No.528/2023 Administrative Authorities are given discretion to consider holding of special examination for assessing the suitability or eligibility of PwD employees for such Departmental Competitive Examination."
5.3 Since the issue has been conclusively decided by the Hon'ble Apex Court and the DOPT OM reproduced hereinabove, clearly the applicant is entitled for the reliefs prayed for. Accordingly, the OA is allowed. The respondents are directed to consider the cause of the applicant for promotion against vacancy of the year 2019 strictly in terms of the DOPT's OM relevant portion whereof has been reproduced hereinabove, by conducting a Departmental Promotion Committee (DPC) meeting. In case the recommendation of the DPC finds favour to the applicant, he should be entitled for benefits from the date of the vacancy notionally and from the promotion on actual basis. The said exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Dr. Chhabilendra Roul) (Pratima K Gupta)
Member (A) Member (J)
/daya/