Central Administrative Tribunal - Delhi
Bayyapu Reddy vs Defence on 3 May, 2024
1
Item No. 33
Court-2 OA No. 151/2024
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 151/2024
This the 03rd day of May, 2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
1. Bayyapu Reddy VG Reddy, aged 51 years
S/o Shri B Chinamalakondareddy
R/o P-19/2, Second Floor
MES Officers Enclave
HQ CE(N), Station Road, Vizag-530004
Working as Executive Engineer(QS&C)
2. N Nagshwara Rao, aged 55 years
S/o Late Shri N Sreerama Murthy
OMQ P-36, Air Force Station
Bareilly, UP-243002
Working as Executive Engineer(QS&C)
... Applicants
(By ADVOCATE: Sh. Rajiv Manglik)
VERSUS
1. Union of India through
Secretary to the Government of India
Ministry of Defence
South Block, New Delhi-110011
2. Engineer - in - Chief
Kashmir House, Rajaji Marg, New Delhi-110011
3. Director General(Pers)
Military Engineer Services
E-in-C's Branch, Kashmir House, Rajaji Marg
New Delhi-110011
4. Sujay Kumar Gupta
SE (QS&C)
Director (Contracts)
S/o Late Shri Anil Kumar Gupta
R/o P-163, 2B-MES Pinnacla
MES Civilian Officers Accommodation
Kabul Lines
Delhi Cantt-110010
... Respondents
(By Advocate: Sh. Gyanendra Singh)
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Item No. 33
Court-2 OA No. 151/2024
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) This Original Application was heard along with OA No. 3671/2023 extensively on several dates of hearing and arguments were concluded on 19.04.2024 and judgment pronounced in open Court in OA No. 3671/2023. However, since the learned counsel for the applicant in the present OA was not present on the said date to assist us on account of personal difficulty, we de-tagged the present OA. Since, this Tribunal had already taken a view to hear both the OAs together and dispose them of by way of a common order, we proceed to do the same. Accordingly, the order passed in OA No. 3671/2023 on 19.04.2024 is reproduced below:
"Vide a communication dated 09.10.2023, the office of the Director General (Personnel), Military Engineer Services (MES) has circulated an updated status of Departmental Promotion Committee (DPC) of various positions including Surveyor Cadre. The said proposal includes the proposed DPC from the post of SE (QS&C) to CE (QS&C) for the vacancy year 2021-23 and indicates that there were some observations made by the Ministry of Defence (MoD) upon the proposal which have since been attended to and now the proposal is awaiting approval of the Ministry. The apprehension of the applicant is that if this proposal is finalized without correcting the mistakes of the past by way of reviewing the DPC for the lower positions i.e. ASW to SW, for the vacancy year 1990-91 to 2005-06, the bonafide right and interest of the applicant shall be permanently jeopardized considering that he is going to retire in a couple of months on attaining the age of superannuation. Ventilating his grievance, the applicant has made the following prayer vide paragraph 8 of the OA:3 Item No. 33 Court-2 OA No. 151/2024
"(a) Set aside/quash order dated 09.10.2023 in so far as it proposes to go ahead with the promotions from SE (QS&C) to CE (QS&C) for vacancy year 2021 to 2023;
(b) Direct the respondents to conduct a review DPC for the vacancy year 1990-1991 to 2005-06 for promotion to the grade of ASW to SW (QS&C) Cadre of MES in terms of the undertaking given by them before the Ld. CAT, Guwahati Bench and vide order dated 19.02.2015 and accordingly grant/restore applicant's seniority as per the outcome of said review DPC and grant all consequential benefits;
(c) Pass such other and further order as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case"
2. Briefly stated and as explained by both the learned counsel for the applicant, learned counsel for the respondents as also by Sh. Rakesh Kureel, the private respondent, both the applicant and the private respondent joined the MES as a direct recruit to the post of Assistant Surveyor, a Group A post on their successful participation in the Engineering Services Examination. The applicant belongs to the 1989 batch of the Engineering Services whereas the private respondent belongs to 1987 batch. It is pertinent to mention here that the Engineering Services Examination is an All India Examination conducted by the Union Public Service Commission (UPSC). The initial appointment of both the applicant and the private respondent was to the post of Assistant Surveyor of Works which has now been re-designated as AEE (QS&C). The next post in the hierarchy of promotion was SW, now re-designated as EE (QS&C). The qualifying service for promotion to the post of SW, now rechristened as EE (QS&C) was four years regular service in the grade of ASW with an additional condition of having passed the Direct Final Examination conducted by the Institution of Surveyors or equivalent. Both the applicant and the respondent, as also quite a few other officers who too probably had entered into the service of MES through the Engineering Services Examination, while possessing the qualifying service did not hold the certificate of having passed the examination conducted by the Institution of Surveyors. Accordingly, they were denied the benefit of promotion despite possessing the qualifying service of four years and persons who were stated to be their juniors but had passed the examination of Institution of Surveyors, got promoted. The issue had had a chequered history of litigation and was finally put to rest by the Hon'ble Supreme Court in Civil Appeal No. 5944/2015, SLP (C) No. 35675/2011 vide its order dated 04.08.2015. It would be pertinent to quote the opening para of the said judgment which reads as under:
"The only question for consideration is the interpretation of the requirement for promotion to the post of Surveyor of works under the Military Engineering Services (Surveyor of Works Cadre) Recruitment Rules, 1985."4 Item No. 33 Court-2 OA No. 151/2024
3. The Hon'ble Apex Court had answered this question as follows:
"From the record, it appears that the respondents have a degree in Civil Engineering while the appellants have not only a degree in Civil Engineering but had passed the final Direct Final Examination of the Institution of Surveyors (India) prior to the respondents.
The question that arises is whether the civil engineering degree is equivalent to having passed the final Direct Final Examination of the Institution of Surveyors (India).
In our opinion, since these two qualifications have been treated as equivalent for the purposes of promotion to the post of Assistant Surveyor of Works, there is no reason why they should not be treated as equivalent for the purposes of promotion to the post of Surveyor of Works."
4. This precisely is the limited issue which has already since then been determined, and it is indeed surprising that nine years down the line, corrective steps are yet to be taken by the official respondents to rectify both the seniority as also the promotions made in the past against the background of this judgment of the Hon'ble Apex Court. We do appreciate the arguments put forth by the learned counsels as also the private respondent who has appeared in person that multiplicity of litigations in different Benches of this Tribunal, including interim restraint placed by the Guwahati Bench of this Tribunal, may have been the reason for such a long pendency. However, this reasoning is not very convincing because various Court orders/pronouncements shown to us are events much later to the judgment of the Hon'ble Apex Court.
5. This OA has been heard on different dates in the past and a sequential reproduction of the orders recorded on the earlier dates of hearing would throw more than adequate light on the sequence of events as also the issue involved.
"Order sheet dated 24.11.2023
1. By way of the present OA filed under Section 19 of the A.T. Act, 1985, the applicant has prayed for the following relief(s) :-
"a) Set aside/quash order dated 09.10.2023 in so far as it proposed to go ahead with the promotions from SE(QS&C) to CE (QS&C) for vacancy year 2021 to 2023;
b) Direct the respondents to conduct a review DPC for the vacancy year 1990-1991 to 2005-06 for promotion to the grade of ASW to SW (QS&C) Cadre of MES in terms of the undertaking given by them before the Ld. CAT, Guwahati Bench and vide order dated 19.02.2015 and accordingly 5 Item No. 33 Court-2 OA No. 151/2024 grant/restore applicant's seniority as per the outcome of said review DPC and grant all consequential benefits;
c) Pass such other and further order as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case."
2. Learned senior counsel appearing for the applicant submits that the applicant, an officer of 1989 Engineering Service Examination batch, who joined the respondents in Group 'A' post. He further submits that in view of the qualifications of the applicant, he was not being considered for promotion on the premises that though he is having the Degree of engineering, however, he is not qualified as he has not obtained the requisite certificate course from the Institute of Surveyor of India. This issue of qualification got finally adjudicated by the Hon'ble Apex Court in Civil Appeal No.5944/2015 titled Akhilesh Shukla & Ors. Vs. Union of India & Anr. ( Annexure A/6). The respondents took the decision to implement the order/judgment of the Hon'ble Apex Court in the case of Akhilesh Shukla (supra) and pursuant to such decision of the government, the respondents started correcting the seniority of the persons as similar to the applicant, however, in piecemeal and by adopting pick and choose policy. The applicant's seniority, pursuant to the order/judgment of Hon'ble Apex Court in case of Akhilesh Shukla (supra), is yet to be finalized by the respondents. He submits that once the seniority of the applicant is corrected, he will become senior in the grade of SE(QS&C) and will fall in the zone of consideration for being considered for promotion to the post of Chief Engineer (QS&C).
3. The learned senior counsel further submits that in OA No.100/2021, Guwahati Bench of this Tribunal has passed interim order dated 29.03.2021 restraining the respondents from acting upon the review DPC for promotion from Assistant Surveyors of Works (Assistant Executive Engineer) to Surveyor of Works (Executive Engineer) against the vacancy year, 1990 onwards without the leave of the court. Aggrieved by such interim order of Guwahati Bench of this Tribunal, the respondents approached that Bench through MA No.103/2021 in the said OA No.100/21 praying therein for vacation of the said interim order. It was submitted before the Bench that the candidates who were eligible for promotion from 1991 to 2004 were being deprived in view of the said interim order dated 29.03.2021 and, therefore, 6 Item No. 33 Court-2 OA No. 151/2024 the vacation/modification of the interim order was pleaded and prayed by the respondents.
4. In the facts and circumstances, the Tribunal disposed of the said MA vide order dated 21.12.2023 (Annexure A/9) para 6 whereof reads as under:-
"6. In view of the above, we hereby modify the interim order dated 29.03.2021 in O.A. No.040/00100/2021 to the effect that - 'Respondents would be at liberty to hold review DPC. However, the result of such review DPC and any seniority subsequently out of that DPC, cannot be published without the leave of the court and will be abide by the outcome of this O.A.'
5. Learned senior counsel appearing for the applicant submits that in view of the aforesaid judgment of the Hon'ble Apex Court in Akhilesh Shukla (supra) and decision of the respondents to give effect to that judgment/direction, respondents were expected to correct the seniority of the applicant at their own. However, despite representation from the applicant the needful was not done by the respondents, compelling the applicant to approach this Tribunal earlier by way of OA No.2237/2023 which was disposed of by the Principal Bench of this Tribunal vide order/judgment dated 01.08.2023 (Annexure A/11), para 4 whereof reads as under :-
"4. In view of the limited prayer made by the learned counsel for the applicant, the competent authority amongst the respondents is directed to dispose of the pending representation dated 28.03.2023 of the applicant by passing a reasoned and speaking order within a period of six weeks from the date of receipt of a certified copy of this Order. A copy of the speaking order so passed be given to the applicant."
6. Learned senior counsel for the applicant further submits that in place of correcting the seniority of the applicant in view of the Order/Judgment of Hon'ble Apex Court in the aforesaid case and respondents' own decision to do the same, respondents have not corrected the seniority of the applicant in the grade of ASW to SW (QS&C) till date. However, they are going ahead to fill up the post of CE (QS&C) vide impugned order dated 09.10.2023 (Annexure A/1)
7. Issue notice. Dr. Khan, learned counsel, who appears for respondents on advance service, accepts notice.
7 Item No. 33 Court-2 OA No. 151/20248. Learned senior counsel for the applicant presses for grant of interim relief in the form of stay of impugned order dated 09.10.2023 to the extent of the same being in respect of promotion from SE(QS&C) to CE(QS&C) for the vacancy year, 2021-2023.
9. On the other hand, Dr. Khan, learned counsel for the respondents submits that he needs some time to file reply/short reply or at least to be able to take some effective instructions as the brief has been assigned to him only yesterday.
10. Learned senior counsel appearing for the applicant, in the fact and circumstances, submits that in view of inaction at the end of respondents in the matter making correction in the relevant seniority related to the applicant's post, the applicant has already suffered a lot in the matter of promotion. Despite there being conscious decision of the respondents to correct the seniority of the applicant keeping in view the judgment of Hon'ble Apex Court under reference, till date his seniority has not been corrected. Where it has been corrected, the same has been done by adopting pick and choose policy. He further submits that till date the matter of promotion from SE(QS&C) to CE (QS&C) has not been finalized.
11. We have considered the submissions made by the learned counsels for the parties.
12. In the facts and circumstances, as an interim measure, respondents are directed not to act pursuant to their impugned order dated 09.10.2023 to the extent the same relates to promotion from SE(QS&C to CE (QS&C)) for the vacancy year 2021-2023 till the next date of hearing.
13. Learned counsel for the respondents seeks and is allowed four weeks' time to file counter reply. Learned counsel for the applicant seeks two weeks' time thereafter to file rejoinder, if any.
14. List on 17.01.2024.
15. It is provided that in case the respondents are advised, they may approach this Tribunal for modification/vacation of the aforesaid interim order through miscellaneous application, however, of course, after filing of the counter/short reply to the OA .
Order sheet dated 02.02.2024 8 Item No. 33 Court-2 OA No. 151/2024 "MA No. 358/2024 The present MA has been filed by the applicant therein seeking his impleadment. Learned counsel for the applicant submits that if the relief sought by the applicant in the OA is granted, his interest is likely to be prejudiced and, therefore, he is a necessary party.
2. Issue notice. Learned counsel for the applicant in the OA as well as learned counsel appearing for the respondents in the OA accept notice.
3. For the reasons given therein in the MA and keeping in view no objection from the learned counsel for the applicant as well as learned counsel for the respondents, MA is allowed.
4. Sh. Manglik, learned counsel submits that he has already filed an amended memo of parties. The same be taken on record.
MA No. 359/2024The present MA has been filed by the newly impleaded respondent seeking vacation/modification of the interim order passed in the impugned OA.
MA No. 77/2024The present MA has been filed on behalf of the official respondents seeking vacation/modification of the interim order passed by the Tribunal in the captioned OA. Sh. Manglik, learned counsel appearing for the newly impleaded respondents submits that he does not wish to file any separate reply and he will place reliance if required, on the reply filed on behalf of the official respondents. He further submits that as the pleadings in the OA are complete, if the OA is taken up for final consideration, he has instructions not to press the MA filed for seeking vacation/modification of the interim order. Dr. Khan, learned counsel appearing for the official respondents also submits that if the OA is taken up for final hearing, the MA filed on behalf of the official respondents for vacation/modification of the interim order may be closed.
2. Sh. Garg, learned senior counsel appearing for the applicant submits that he is ready to argue the matter.
9 Item No. 33 Court-2 OA No. 151/20243. In view of the aforesaid, with the consent of the learned counsel for the parties, the OA is taken up for final hearing.
4. The aforesaid two MA No. 359/2024 and MA No. 77/2024 are disposed of as having being not pressed.
OA No. 3671/2023The prayer of the applicant for relief as set forth in paragraph 8 as also the facts and the background of the case have been outlined in order dated 24.11.2023 vide which an interim direction has also been given to the respondents, therefore, we are not repeating the same. The order dated 09.10.2023 which is impugned in the present OA to the limited extent of the proposal for promotion from SE(QS & C) to CE (QS & C) is in fact not an order but a detailed note giving status of various personnel matters. One of the several matters which are listed in the said communication pertains to the status of DPC from SE to CE which is the subject of this OA. A careful reading of the said communication indicates that various proposals are in different stages. Some are with the UPSC, some proposals have been accepted and some meetings of the DPC have been held, etc, etc. As regards the subject of this OA i.e. SE to CE, the status is mentioned as under:
"Observations on DPC proposal resubmitted to MoD on 03 Aug 2023. Presently proposal is with MoD/D (Apptts)."
2. We do not know what the observations on DPC are, what the proposal is and what has been resubmitted. For any further consideration it is essential that the relevant documents i.e. the specific observation and proposal which has been resubmitted for consideration is placed before us. We do not find any document on record to throw much light on this nor are the learned counsel for either of the parties aware.
3. Accordingly, we deem it appropriate to issue a direction to the respondents to ensure that the relevant information through documents on record is produced before us on the next date of hearing.
4. Further, the applicant seeks a direction to the respondents to conduct a review DPC for the vacancy year 1990-1991 to the year 2005-2006 for promotion from ASW to SW (QS & C).
10 Item No. 33 Court-2 OA No. 151/20245. Annexed to the counter reply is a detailed note which is in response to the representation of the present applicant which records that a consolidated review DPC proposal which indicates the name of the applicant for promotion from AEE (QS &C)(erstwhile ASW) to EE (QS & C) (erstwhile SW) for review of the DPC for the years 1990-91 to 2005-06 has already been submitted to the Ministry of Defence and the proposal is under consideration of the Ministry. It goes on to mention that the Ministry had made certain observations which also have been attended to. For the sake of clarity, the relevant paragraph of the said communication is reproduced below:
"6. In light of above referred court orders, a consolidated review DPC proposal including applicant name for promotion from AEE (QS &C)(erstwhile ASW) to EE (QS & C) (erstwhile SW) for the vacancies of the years 1990-91 to 2005-06 have been re-submitted to MoD dated 23 Jun 2022 with due replies to the observations raised by MoD. The DPC proposal is still under consideration at MoD."
6. Again, no one knows as to what this DPC proposal is, what were the observations of the Ministry and how they have been attended to. Again, in the absence of this information and the relevant document it would virtually be impossible to give due consideration and further adjudicate the prayer made in the OA.
7. Accordingly, the respondents are directed that relevant information and documents with respect to this proposal be also submitted on the next date of hearing.
8. We have taken note of the objections raised by Sh. Manglik, learned counsel appearing for the newly impleaded respondents that prayer made in the OA is highly misconceived as the issue has already engaged the attention of the Guwahati Bench of this Tribunal and further there is a stay on the DPC proceedings ordered by the Guwahati Bench in the OA which is under their consideration. Hence, the prayer which the applicant has made cannot be interfered with at this stage. Sh. Manglik, learned counsel has also raised the issue of limitation and argued that what the applicant seeks is a review of the position which has been settled more than 15 years back.
9. Dr. Khan, learned counsel for the official respondents and Sh. Gyanendra Singh, learned senior Central Government standing counsel 11 Item No. 33 Court-2 OA No. 151/2024 question the maintainability of this OA and points out that the relief sought for in paragraph 8 would not be permissible in terms of Rule 10 of CAT (Procedure) Rules, 1987 as multiple reliefs not related to each other and not necessarily flowing out of each other are being sought.
10. We reject this objection outrightly. We have no doubt in our mind that the prayer made in paragraph (a) and paragraph (b) are closely interlinked with each other and outcome of one would necessarily affect the outcome of the other.
11. Learned counsel have also raised the issue of applicant being a fence sitter and hence, cannot be allowed to derail the entire administrative process by filing the present OA. While we take note of this objection, we find that what the applicant is praying for is what the respondents have already initiated, as the documents on record indicate. There is a proposal for promotion from SE to CE and as we have referred above, we do not know what the proposal is and secondly there is a proposal as borne out from the documents to review the DPC from AEE to EE for the vacancy years 1990-91 to 2005-06. What does the applicant seek ? Merely that the proposal be taken forward to a logical conclusion in terms of Rules and it is also admitted by the respondents that such proposal also contains the name of the applicant. Therefore, we do not consider that the applicant is a fence sitter in the matter.
12. List the matter as 'part heard' on 09.02.2024 when the respondents shall produce the relevant information and documents as directed.
13. Sh. Manglik, learned counsel for the newly impleaded respondents at this stage has raised another objection qua the maintainability of the OA when an identical issue has been raised before the Tribunal in another OA, however, without any success and the said order has attained finality. This aspect shall be considered on the next date of hearing. Interim order dated 24.11.2023 to continue till further orders.
14. Order dasti.
Order sheet dated 01.03.2024 "OA No. 3671/2023 12 Item No. 33 Court-2 OA No. 151/2024 Sh. A.K. Behera, learned Senior Advocate for respondent no. 4 submits that though on the previous date submission was made on behalf of the respondent no. 4 that no separate reply will be filed and they may refer and rely on the reply already filed by the remaining respondents, however, subsequently it has been realized that for effective adjudication of the issue involved in the present OA, an affidavit along with certain relevant documents is required to be placed on record. He has already filed such affidavit and documents on 28.02.2024 vide diary no. 1940 after supplying a copy thereof to the learned counsel for the applicant. He requests for taking the same on record.
2. Sh. Garg, learned Senior Advocate for the applicant is having no objection.
3. In the facts and circumstances of the case, the said reply/affidavit filed by respondent no. 4 be taken on record.
4. Sh. Garg, learned Senior Advocate for the applicant submits that in the facts and circumstances, no affidavit in response to such reply/affidavit of respondent no. 4 is required.
5. Learned counsels for the parties submit that the pleadings otherwise are complete in the matter. Dr. Khan, learned counsel for respondents no. 1-3 submits that keeping in view the directions dated 02.02.2024 of this Tribunal, read with that of 09.02.2024, respondents have brought copy of the relevant DPC proposal for perusal of the Tribunal. However, he adds that he has not been able to supply a copy thereof to the learned counsels for the applicant for the reason that he has been instructed to submit that those are only for persual of the Tribunal. However, he does not dispute that there is an order dated 09.02.2024 to supply a copy thereof to the applicant.
6. In view of the above, he seeks a short adjournment in order to enable him to take fresh instructions/steps in the matter.
OA No. 151/2024Sh. Gyanendra Singh, learned counsel for the respondents submits that the pleadings in the matter are complete. The fate of this matter depends upon the outcome of the aforesaid OA No. 3671/2023.
13 Item No. 33 Court-2 OA No. 151/20242. In view of the aforesaid, re-notify on 08.03.2024. Interim order to continue till further orders."
Order sheet dated 18.04.2024 "OA No. 3671/2023 Continuing the arguments, learned Senior Advocate for the applicant submits that the core issue under consideration and adjudication in this OA has already been settled by the Hon'ble Supreme Court in Civil Appeal No. 5944/2015 vide its order dated 04.08.2015. The relevant extract of the said judgment of the Hon'ble Apex Court reads as under:
"From the record, it appears that the respondents have a degree in Civil Engineering while the appellants have not only a degree in Civil Engineering but had passed the final Direct Final Examination of the Institution of Surveyors (India) prior to the respondents.
The question that arises is whether the civil engineering degree is equivalent to having passed the final Direct Final Examination of the Institution of Surveyors (India).
In our opinion, since these two qualifications have been treated as equivalent for the purposes of promotion to the post of Assistant Surveyor of Works, there is no reason why they should not be treated as equivalent for the purposes of promotion to the post of Surveyor of Works."
2. He submits that once the issue had been adjudicated to finality by the Hon'ble Apex Court, the respondents were obliged to review the earlier promotions after conducting a review of the seniority list which had been drawn by giving preference/precedence to such officials as had also passed the Institution of Surveyors Examination in addition to the Degree in Civil Engineering. Reiterating the arguments put forth here on the earlier occasion, learned counsel also draws attention once again to communication placed at page 43 of the counter reply of the official respondents, which is a communication dated 23.11.2023 which unambiguously states that in view of the various Court orders, DPC proposal including the name of the applicant for promotion from the post of AEE(QS & C) (erstwhile ASW) to EE (QS&C) (erstwhile SW) w.e.f. 1990-91 to 2005-06 requires a consolidated review for which 14 Item No. 33 Court-2 OA No. 151/2024 a proposal has been re-submitted to the Ministry of Defence after replying to the observations raised by them.
3. This communication leaves no doubt that positive steps have been initiated by the respondents to redress the grievance of the applicant as also to rectify the mistake committed in the past by way of non-consideration of the degree of Civil Engineering possessed by the applicant for further promotion. Learned counsel adds, however, that the apprehension of the applicant is that before conducting such a review, the respondents may go ahead with their proposal for promotion to higher cadres or higher promotions i.e. promotions from SE to CE, thus, shutting the doors for applicant for future promotions.
4. Dr. Khan, learned counsel appearing for the respondents and Sh. Gyanendra Singh, learned Senior Central Government Standing Counsel clarify that the observations/judgment of the Hon'ble Apex Court which had settled the issue with respect to the equivalence of qualification could not be carried forward on account of the multiplicity of litigation as several affected persons approached different Benches of the Tribunal in different Original Applications. The Guwahati Bench of this Tribunal in OA No. 100/2021 vide an order dated 29.03.2021 put a restraint upon the respondents from conducting a review DPC. The said interim restraint was later on modified vide order dated 21.12.2022 however, while allowing the respondents to conduct the review DPC, they were directed not to notify its results. Further, learned Senior Central Government Standing Counsel has argued that the applicant herein is a fence sitter and he cannot claim the benefit of the judgment of Hon'ble Apex Court at such a belated stage.
5. Learned counsel for the private respondents has argued that there is no dispute with respect to the need for conducting a review of the DPC from the year 1990-91 onwards however, such an exercise is an exhaustive one which shall consume a reasonable amount of time and with the passage of time, neither the applicant nor respondent no. 4 can get any respite. He submits that admittedly respondent no. 4 is senior to the applicant and even if there was to be a review of the DPC, the present applicant cannot claim any priority or precedence over respondent no. 4 who belongs to 1987 batch whereas the applicant belongs to 1989 batch.
15 Item No. 33 Court-2 OA No. 151/20246. Learned counsel further argues that in terms of the elaborate instructions of the DoP&T, when a review DPC is necessitated, the existing promotions are effected on the basis of the seniority list which is prevalent at the relevant time and merely because the exercise of review has been undertaken, it cannot put on hold the regular or routine promotions.
7. In the instant case, if the entire chain of promotions is put on hold till a review of DPC takes place, it would result in administrative complications as for the next three or four years, no promotions are likely to take place. Thus, putting an enormous administrative burden not only in terms of efficiency in administration but also denial of bonafide claim of the persons who are eligible for promotion. He further submits that the total number of available vacancies for the post of CE is 8 out of which only one has been filled up and seven are vacant and this vacancy exists only on account of pending litigation which has resulted in non-filling up of six posts which has resulted in administrative difficulties. In terms of instructions of DoP&T, if these posts are not filled up and remain vacant for a period of three years, the post shall stand abolished. Learned counsel clarifies that this would neither be in the interest of efficient administration nor in the interest of any of the officers who are in the zone of consideration. Therefore, he argues that it would be in the best interest of everyone that promotions are allowed to take place on the basis of existing position while simultaneously the exercise of review can also go on.
8. Respondent no. 4, who is present in person too explains the situation mentioning that if his case for promotion to the post of CE is considered, it is not going to have any adverse impact either on the applicant or any other person who is admittedly his junior. He further submits that the applicant is likely to retire on attaining the age of superannuation in the month of July, 2024 whereas he himself shall be retiring on attaining the age of superannuation in the month of June, 2025. The practical scenario is that even if this OA were to be decided, the applicant herein is not likely to get any relief by way of getting any promotion whereas he himself would be put to a permanent denial of the position of CE for which he is eligible.
9. Learned counsel for the parties confirm that for now they have concluded their arguments, however, request has been made by Sh. Manglik, 16 Item No. 33 Court-2 OA No. 151/2024 learned counsel for respondent no. 4 that since arguments are to be led by Sh. A.K. Behera, learned Senior Advocate, a short adjournment may be given. We note that even on the last date of hearing, an adjournment was given to enable Sh. Behera to put in appearance to argue the matter, however, despite the fact that extensive arguments have been led by both the learned counsel including Sh. Manglik, as also the fact that despite respondent no. 4 himself also arguing the matter, written arguments have also been submitted on behalf of respondent no. 4. we adjourn the OA for further hearing for only one day to enable Sh. Behera to supplement any of the arguments, if required. Let the matter remain on board.
OA No. 151/2024Since the arguments have been put forth extensively only with respect to OA No. 3671/2023, let OA No. 151/2024 be de-tagged and heard separately.
2. At the request of learned counsel for the parties, list the OA on 26.04.2024."
6. As recorded in one of the orders reproduced above, we had drawn attention of both the learned counsel for the applicant and the learned counsel for the respondents that we were not aware as to what the proposal is which is pending consideration of the Ministry of Defence and hence, we are moving forward only on the presumption that the said proposal may not be in tune with the judgment of the Hon'ble Apex Court. Further, our attention had been drawn to a communication dated 23.11.2023 which had given a clear indication that the various pronouncements of the Courts had engaged serious attention of the respondents and a consolidated review DPC proposal which included the name of the applicant for promotion from the post of AEE (QS&C) to EE (QS&C) had been submitted to the MoD and as clarified earlier, the observations of MoD too had been attended to. Accordingly, we had sought assistance from the learned counsel for the official respondents to place before us a copy of the proposal which had been prepared for finalization. We have given a careful reading to the said proposal. We have no doubt in holding that the proposal is not only a consolidated one, covering all the relevant vacancy years, but is also a comprehensive proposal. The said proposal takes into consideration year wise vacancies available for the post of SW and also contains panel for each year for promotion from ASW to SW. In our view, the proposal is at a ripe stage which can now be given effect to after adhering to the procedural obligations. The proposal is dated 09.03.2020 and four years have gone by.
7. Let's not dwell upon the reasons for such a long delay and look forward. There may have been a restraint put forth by Court, there may have been administrative complications, however, we 17 Item No. 33 Court-2 OA No. 151/2024 also have to take into consideration that the directions of the Hon'ble Apex Court are also now nine years old and remain unimplemented; such a situation is not a happy one for either of the parties. Moreover, future promotions would be squarely dependent upon the review of the promotions to the post of SW carried out earlier and unless the earlier promotions are rectified by way of conducting a review, the passage to further promotions would always remain blocked. Both the applicant as also private respondent are one of the several sufferers on this count.
8. We are also informed, as has also been recorded in one of the orders of a previous date that seven positions of Chief Engineer are lying vacant. An important organization like the MES which is one of the supporting backbones of the Defence organization, is functioning without as many as seven out of eight Chief Engineers; this is certainly not a desirable situation. Therefore, it would be imperative that a workable solution is found out so that the rights and interests of all the parties are protected, the judgment of the Hon'ble Apex Court is implement in right earnest, and in letter and spirit, and the proposal already formulated and submitted in a comprehensive and consolidated form on 09.03.2020 taken to a logical conclusion.
9. In view of what has been elaborately discussed and outlined above, the present Original Application is allowed with a direction to the respondents that review DPC in terms of their communication dated 23.11.2023 read with the comprehensive proposal submitted on 09.03.2020 be conducted and finalized within a period of four weeks from the date of receipt of a certified copy of this order. Meanwhile, the respondents are further directed, in the interest of administrative exigencies and convenience to consider promotion of eligible candidates to the post of Chief Engineer on adhoc/provisional basis, seven of which posts are said to be lying vacant, in accordance with the panel drawn and reflected in the proposal dated 09.03.2020. The claim of both the applicant and private respondent, as also other eligible persons shall be duly considered in terms of the seniority as reflected in the panel contained in the comprehensive proposal on 09.03.2020.
10. In the facts and circumstances of the case, there shall be no order as to costs."
2. In view of the aforesaid, the present Original Application stands disposed of with a direction to go ahead in the matter of promotion to the relevant post(s) in the light of what has been directed by us vide order dated 19.04.2024 in OA No. 3671/2023 which has been quoted above.
18 Item No. 33 Court-2 OA No. 151/20243. The OA stands disposed of in the aforesaid terms.
4. In the facts and circumstances of the case, there shall be no order as to costs.
(Tarun Shridhar) (R.N. Singh)
Member (A) Member (J)
/NS/