Central Administrative Tribunal - Chandigarh
By: Mr. Dinesh Singh vs Union Of India & Others). The Said ... on 16 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.145-CH-2012 Order pronounced on: 16.01.2014 (Order reserved on: 06.01.2014) CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) Mahender Singh (M.S. Meena) So of Shri Kuria Ram, Superintendent, Custom and Central Excise Commissionerate, Jammu (J&K), resident of House No. 4092-C, Sector 37-C, Customs & Central Excise Colony, Chandigarh. By: Mr. Dinesh Singh, Advocate. Applicant 1.Union of India through its Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 2.The Chairman, Customs & Central Excise Board, Department of Revenue, North Block, New Delhi. 3.The Chief Commissioner, Central Excise, Chandigarh Zone, Plot No. 19, Sector 17-C, Chandigarh. By: Mr. Ashwai Kumar Sharma, Advocate. Respondents O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1.Shorn of unnecessary superfluities, the facts in brief are that the applicant, who belongs to S.T. category, came to be appointed by way of promotion as Inspector on 24.11.1994. The next promotion is to the post of Superintendent Group-B on completion of 8 years of service in feeder cadre which is governed by Superintendents of Central Excise Recruitment Rules, 1986. He became eligible for promotion, on completion of 8 years of service on 23.11.2002. The applicant has annexed instructions dated 12.10.1990, 22.4.1992 and 20.4.1998 relating to conduct of meetings by DPC in time etc.
2.In the year 2002, the department held two meetings of DPCs on 24.7.2002 and 19.12.2002 for promotion to the post of Superintendent against 80 and 38 vacancies respectively which caused prejudice to the applicant as a joint meeting would have helped increase in consideration zone and falling of name of the applicant therein.
3.As per the instructions dated 18.6.2004 (A-6) if eligible officers are not available in feeder cadre, one years relaxation in qualification is granted, as a onetime measure, which was not done in case of the applicant causing prejudice to him.
4.The applicant along with Ramji Lal filed O.A.No. 503-CH-2006 for considering his case for promotion to the post of Superintendent by creating a separate zone of Inspectors of S.T. category. The O.A. was allowed on 22.11.2007 in term of a decision of Principal Bench, New Delhi, in O.A.No. 688/2005 (Gopal Meena & Another Vs. Union of India & Others). The said decision was upheld by Honble jurisdictional High Court in CWP No. 5771/2008 on 31.7.2009. The issue is pending in Honble Supreme Court in C.A.No. 5933 of 2010.
5.The applicant was promoted as Superintendent Group-B (Adhoc) vide order dated 23.3.2007. However, vide order dated 30.6.2010 the applicant was appointed as Superintendent, Group-B on regular basis.
6.The Honble Calcutta High Court passed an interim order dated 2.3.2010 in W.P. C.T. No. 261 of 2008 (Samiran Roy etc. vs. Union of India & others) that from this date there should not be any order of promotion in the concerned promotional post of Superintendent and to further promotional post of Assistant Commissioner in the concerned hierarchy, without leave of the Court. The Honble High Court modified the order on 27.8.2010 with a mention that respondents would be at liberty to implement the OM dated 10.8.2010 which means to decide the promotional issue by implementing the decision of the review DPC held on 9th September, 2004 by giving its effect from 2nd July, 1997 and thereby to provide respective promotional berth to the respective candidates who would come within the zone of consideration on the basis of review DPC decision dated 9th September, 2004 etc. These orders were notified vide letter dated 16.9.2010.
7.The Department issued another order No. 96/2010 dated 30.9.2010 promoting 8 officials as Superintendent Group-B in which name of applicant and one Sh. Ram Ji Lal Meena belonging to S.T. category did not figure. The respondents issued order dated 30.06.2011 vide which applicant and 11 others were promoted as Superintendent Group B in which name of applicant is at Sr. No. 8. Another order dated 8.7.2011 was issued vide which applicant and 11 persons were appointed as Superintendent Group B in which name of applicant is at Sr. No.11.
8.From the minutes of Review DPC held on 30.6.2010, it is clear that same was held for 47 vacancies out of which 26+6 were temporary and 15 were on adhoc basis. Resultantly, the applicant was promoted as Superintendent Group B on regular basis. His name is at Sr. No.40. Four vacancies belonging to S.T. category were kept unfilled due to non-availability of eligible candidates even in the extended zone of consideration, meaning thereby that at that time 8 vacancies of ST category were available out of which only 4 vacancies were filled up. Another DPC was held on 28.9.2010 for 46 vacancies which includes 25+6 temporary + 15 adhoc and the applicant was shown to have been promoted on adhoc basis but no order was issued. It is not understood as to how the regular promotion of the applicant was converted into adhoc promotion in the Review DPC meeting held on 28.9.2010 and there is no explanation as to how one vacancy was decreased from 47 to 46.
9.Further review DPC was held on 23.3.2011 and 26.3.2011 in which 31 vacancies were shown to have been filed on regular basis and the name of the applicant does not find mention in the select list. On same day another review DPC was held for 19 vacancies of Superintendent Group-B on adhoc basis and the applicant was recommended for adhoc promotion as Superintendent Group-B. There is no provision for holding separate DPCs in a vacancy year and the total 50 vacancies were split and separate DPCs were held only with a view to squeeze the zone of consideration to the prejudice of the applicant.
10.As per information provided under RTI Act, 2005, DPC was conducted on 30.6.2011 for 43 vacancies and the applicant was recommended for promotion on regular basis. 6 Vacancies were kept unfilled due to non-availability of ST candidates even in the extended zone of consideration.
11.The applicant served a legal notice on 17.6.2011 for his promotion from due date, which has been rejected vide order dated 30.11.2011 (Annexure A-17) on the premise that the reservation is not applicable in case of restructuring which is false as in this case it is not a placement but a full-fledged promotion and as such reservation would apply.
12.The applicant has, therefore, sought quashing of the order dated 30.11.2011 vide which his claim has been rejected and to quash order Annexure A-1 dated 30.6.2011 vide which the promotion already granted vide order dated 30.6.2010 (A-8) has been withdrawn and to command the respondents to hold the action of the respondent department in holding separate DPCs and bifurcating the vacancies and consequently shortening the zone of consideration as illegal and command the respondents to restore the promotion of the applicant as Superintendent Group B on regular basis w.e.f. 30.6.2010.
13.The respondents have contested the Original Application on the ground that no doubt on the recommendation of the DPC held on 30.6.2010, the applicant was promoted as Superintendent vide order No. 66/2010. However, these promotion orders had to be withdrawn vide order dated 13.8.2010 in view of interim order dated 2.3.2010 passed by High Court of Calcutta in WPCT No. 261/2008. In terms of Ministrys letter dated 16.9.2010 (A-9), DPC meeting was held on 28.9.2010 to review the minutes of Review DPC/DPC held on 30.6.2010 for the recruitment year 2010-11. The name of the applicant did not figure in the extended zone of consideration for the year 2910-11 and as such he continued on ad-hoc basis. The vacancy position can vary as per administrative reasons. There is no merit in claim for conduct of a joint DPC as though applicant belongs to ST category, he was not eligible for promotion to the grade of Superintendent in the Recruitment year 2002-03 as he had not completed 8 years of service as on 1.1.2002 which was crucial date. The DPC which was held on 24.7.2002 for promotion of Inspector to the grade of Superintendents for the Recruitment Year 2001-02 and 2002-03, was for a total of 69 regular and 14 anticipated vacancies and the DPC which was held on 19.12.2002 was against 20 vacancies and 18 anticipated vacancies. The vacancies for both the DPC could not be clubbed as the 38 vacancies were not anticipated at the time of 1st DPC which was held on 24.7.2002, as the same had accrued only after promotion of 33 Superintendents to the grade of Assistant Commissioner purely on ad-hoc basis for a limited period of 6 months and due to retirement of 5 officers. The instructions regarding DPC are clear that vacancies can be clubbed in review DPC only if (a) where eligible persons were omitted to be considered; (b) where ineligible persons were considered by mistake (c) where the seniority of a person is revised with retrospective effect resulting in a variance of seniority list placed before the DPC; where some procedural irregularity was committed by a DPC or where adverse remarks in the CRs were turned down or expunged after the DPC had considered the case of the officer. These conditions never existed and as such joint DPC was not held by clubbing the vacancies. The claim of applicant for inclusion of his name qua vacancy year 2002-03 as he had completed 8 years of service is also denied in view of instructions dated 8.9.1998 (R-1) of DOPT Suggested Model Calendar for DPCs as crucial date for eligibility is 1st January of relevant year. Two different DPCs were held as in one vacancies were regular and another these were adhoc only. The relaxation of 1 years service in eligibility service was a one time policy decision to fill up vacancies arising out of restructuring of the cadre. As per decision in O.A.No. 388-PB-2005 Rajesh Rai etc. vs. UOI etc. decided on 5.5.2006, reservation policy is not applicable for the upgraded posts created due to cadre restructuring. As per law settled in All India Non-SC/ST Employees Association Vs. V.K. Aggarwal & Others, Contempt Petition (Civil) No. 304/1999 in C.A.No. 1481/96 and Union of India v. V.K. Sirothia (1991) SCC (L&S) 938, no reservation is required to be made in cases of classification, readjustment and restructuring of posts without there being creation of new posts.
14.We have considered the rival contentions thoughtfully and have examined the material on the file with the able assistance of the learned counsel for the parties.
15.In so far as plea of the applicant regarding clubbing of vacancies is concerned, the respondents have explained in detail as to why the same were not clubbed by relying upon the instructions and none of the eventualities as mentioned therein being available in the case, the vacancies were not clubbed in review DPC and in any case for making promotion against regular posts / adhoc vacancies a combined DPC cannot be held. In that view of the matter, we do not find any merit in the plea qua clubbing of vacancies and same would stand rejected.
16.The applicant has strongly pleaded that reservation policy was to be followed in the case including against vacancies arising due to restructuring of cadre and if that is done, it would help the applicant in grant of promotion to him from due date. Reliance has been placed on decisions in the cases of R. Santhakumari Velusamy (supra). The plea taken by the applicant and resisted by respondents qua reservation loses significance altogether in view of the latest law that there cannot be any reservation in promotion. In that view of the matter the applicant cannot get any benefit on the premise of extended zone of consideration by clubbing of vacancies.
17.The plea that the applicant stood promoted on regular basis vide order dated 30.6.2010 (A-8) and as such his date of promotion could not be changed more so in violation of principles of natural justice for which he has cited decisions in the cases of Sridhar vs. Nagar Palika, Jaunpur & Others, 1990 (1) RSJ 30 (SC), State of Orissa Vs. Dr. (Ms.) Binapani Dei, 1967 SLR 465 SC, A.K. Kraipak and Others Vs. Union of India & ors, AIR 1970 SC 150, Sayeedur Rehman Vs. The State of Bihar & Others, AIR 1973 SC 239, Smt. Maneka Gandhi Vs. Union of India, AIR 1978 SC 597, Olga Tellies vs. Bombay Municipal Corporation, AIR 1986 SC 180, Raj Kumar Jindal Vs. State of Punjab, 2002 (2) RSJ 69 DB P&H; Sarabjeet Kaur Dhaliwal Versus Punjab Agricultural University, Ludhiana, 2003 (4) RSJ 549 DB (P&H). He claims that he had got a vested right to hold that post on regular basis. It is not in dispute that there was a stay by Honble Calcutta High Court on 2.3.2010 on promotion of Superintendent and as such the applicant could not be promoted and as such it was reviewed by conduct of a review DPC in pursuance of modified interim directions dated 27.8.2010 of the Honble High Court. In view of these facts it cannot be said that the applicant can be allowed to hold a post on the basis of recommendations of DPC which have lost their relevance in view of review DPC. Even if we quash impugned order on the ground of violation of principles of natural justice it would not change the factual position and it would be an exercise in futility as facts speak for themselves. Thus, the reliance placed by the applicant on various decisions is misconceived.
18.In view of the above discussion this O.A. turns out to be devoid of any merit and is dismissed.
19.No costs.
(SANJEEV KAUSHIK) MEMBER(J) (UDAY KUMAR VARMA) MEMBER (A) Place: Chandigarh Dated: 16.01.2014 HC*