Central Administrative Tribunal - Delhi
Om Pal Singh S/O Ram Das vs Union Of India Through on 29 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2246 of 2011 Order reserved on : 23rd March, 2012 Pronounced on : 29th March, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Om Pal Singh S/o Ram Das, R/o 136, Ashapushp Vihar, Sector 14, Kaushambi, Ghaziabad (UP). Applicant ( By Shri L. R. Khatana, Advocate ) Versus 1. Union of India through Secretary to Government of India, Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi-110001. 2. Director General/Joint Secretary, Directorate General of Employment & Trg., Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi-110001. 3. Union Public Service Commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi. Respondents ( By Shri Rajesh Katyal for Respondents 1 & 2; Mrs. Brinda Rana for Respondent No.3, Advocates ) O R D E R Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
A. That the impugned action of going ahead with process of promotions and holding DPC for the post of Joint Director without preparing the inter se seniority of the feeder grade be declared as illegal, arbitrary, unjust, unreasonable, improper and discriminatory and be quashed and set aside and the respondents be directed to prepare the inter se seniority of the feeder grade as per law and their own admission in the amalgamation order dated 16.1.2008 and then hold the DPC to consider the case of all eligible persons including the applicant for promotion to the post of Joint Director in terms of the provisions of the relevant rules, instructions and the law and render justice.
B. That award exemplary costs against the respondent No.1 Department and in favour of the applicants.
C. Pass any such other order or direction as this Honble Tribunal may deem fit and proper in the facts and circumstances of this case.
2. Pleadings of the parties in nutshell are as follows:
It is stated by the applicant that he joined the services of the respondent No.1 Ministry as a direct recruit Programmer through UPSC on 13.09.1996, and thereafter promoted on 27.12.2001 as Senior Programmer in the pay scale of Rs.10000-325-15200, which is identical to the post of Deputy Director of Employment in the respondent Ministry. Vide office order dated 16.01.2008, with the objective of providing better promotional prospects and equal opportunities to each category of Group A posts in the identical pay scales in the Employment Directorate under DGE&T, various posts were clubbed/amalgamated and re-designated. It was specifically provided that the incumbents of the re-designated posts would have no claim to seniority/promotion in respective cadres of Employment Directorate for the same or higher posts and would be governed by the inter se seniority drawn for the Employment Directorate. Copy of the order dated 16.01.2008 has been annexed with the OA. On 02/06.12.2010, another office order was issued by the respondents in partial modification of the office order dated 16.01.2008, providing for the post of Senior Programmer to be re-designated as Deputy Director of Employment, and in this manner the total cadre strength of Deputy Director of Employment was shown as 28. A representation was made by the applicant on 13.12.2010 to the respondents that he is in the feeder grade for promotion to the post of Joint Director of Employment w.e.f. 27.12.2001, and requested that the inter se seniority list be circulated so that he was considered for promotion to the post of Joint Director against the two posts of Joint Director lying vacant. It is alleged that in spite of making representation by the applicant, nothing has been done by the respondents, and that they are proceeding with making promotions by convening Departmental Promotion Committee (DPC). As the respondents have not redressed the grievance of the applicant, hence this OA.
3. The respondents have contested the case and filed their counter reply, denying the allegations made in the OA. However, it has been alleged by the respondents 1 and 2 in their counter reply that in DGE&T under Employment Directorate, there are so many small cadres. In the year 2004, it was proposed that the posts having the similar scales of pay in the DGE&T (Hqrs.) as well as in CIRTES and VRCs may be clubbed in a single unified cadre, which would provide uniformity and give equal opportunities to all for betterment of career prospects of promotion, timely filling up of the posts and availability of sufficient number of persons in the feeder grade for promotion. It is pleaded that the proposed amendment was also necessitated due to upgradation of the posts of Joint Director of Employment Exchanges in the scale of Rs.15600-39100 (PB-3) + Rs.7600 Grade Pay (revised) [Rs.12000-16500 (pre-revised)], and merger of the post of Additional Director of Employment Exchanges with the former. For amendment in the recruitment rules, approval of the DOP&T, UPSC and Ministry of Law is required, and when the proposal was referred to DOP&T for its approval, it was initially not agreeable to the insertion of the proposed amendment. However, later on the DOP&T agreed to the proposal on 08.06.2006 when the matter was discussed and taken up with higher officers. The proposal for amendment of combined recruitment rules was also referred to UPSC on 10.07.2006. After approval of the DOP&T, the proposal for amendment of combined recruitment rules for different Group A gazetted posts was sent to UPSC for its approval and the UPSC suggested that the specific orders regarding clubbing/amalgamation of different categories of posts needed to be issued by the Ministry before the proposal was processed by the UPSC. As per advice of UPSC and after obtaining approval of the Labour Ministry, an order No.DGE&T-A/12018/1/2004-Adm.II dated 16.01.2008 was issued regarding re-designation of various posts. Under these circumstances, vide the order aforesaid all Group A gazetted posts in the identical pay scales in the Employment Directorate under DGE&T were clubbed/amalgamated and re-designated. In the order it has been mentioned that the incumbents of the re-designated posts would have no claim to seniority/promotion in respective cadres of Employment Directorate for the same or higher posts, and would be governed by the inter se seniority drawn for the Employment Directorate. The above mentioned order is a departmental order and can be replaced/modified at any stage on the advice of UPSC/DOP&T/Ministry of Law. The recruitment rules are statutory rules and cannot be replaced or modified by executive order/instructions, and the executive order/instructions cannot give any right to any person, including the applicant, to base his claim on the same. The post of Senior Programmer in the pay scale of Rs.10000-15200 (pre-revised) [Rs.15600-39100 (PB-3) Grade Pay Rs.6600 (revised)] and Programmer in the scale of Rs.8000-13500 (pre-revised) [Rs.15600-39100 (PB-3) Grade Pay Rs.5400 (revised)] was not included in the proposed recruitment rules as the duties and educational qualifications of the above said posts are different from that of the Deputy Director of Employment Exchanges and Assistant Director of Employment Exchanges. There was no similarity between the posts of Senior Programmer and Deputy Director, and that of Programmer with Assistant Director. There is no promotional avenue for the post of Senior Programmer, as this is an isolated post. A representation was submitted by the applicant for inclusion of the post of Senior Programmer in the proposed recruitment rules, but his request was not acceded to. However, the request of the applicant was acceded to for inclusion of the post of Senior Programmer in the combined recruitment rules, and office order dated 06.12.2010 was issued, but prior approval of DOP&T and UPSC has not been obtained. The post of Joint Director of Employment Exchanges is the promotional post for Deputy Director of Employment Exchanges and Senior Scientific Officer Grade-I. As per existing recruitment rules, the post of Joint Director is required to be filled by promotion failing which by transfer on deputation (including short-term contract). Deputy Director of Employment Exchanges and Senior Scientific Officer Grade-I with two years of regular service in their respective grade are eligible for promotion to the post of Joint Director of Employment Exchanges. Two vacancies of Joint Director were available due to ad hoc promotion of Shri K. S. Meena to the post of Deputy Director and due to retirement of Shri S. K. Seth w.e.f. 29.02.2008. Proposal for one time relaxation was sent to UPSC, but it was returned with the remarks that the existing recruitment rules for the post of Joint Director are inoperative. The proposal for determination of mode of recruitment for filling the post in question as a one time measure pending amendment/notification of revised rules cannot be entertained. The proposal for filling up of the two posts of Joint Director on the basis of existing recruitment rules was sent to UPSC, and they recommended the names of Shri B. L. Meena, Shri R. D. Meena and Shri A. S. Khan for promotion to the post of Joint Director. The recommendations relating to Shri R. D. Meena were kept in sealed cover as he was facing disciplinary proceedings. Order was passed in the OA for maintaining status quo. Hence, the promotion orders have been kept pending. The name of the applicant, Senior Programmer, was not included in the combined seniority list as the proposal for filling up of the two posts of Joint Director of Employment Exchanges was based on the existing recruitment rules, and the proposal was returned by the UPSC. It is pleaded that issuance of orders dated 16.01.2008 and 06.12.2010 would not confer any right on the applicant or any other person concerned, and it cannot be enforced. The OA is stated to be bad for non-joinder of necessary parties, as also lacking merit, and needs to be dismissed.
4. Separate counter affidavit has been filed on behalf of respondent No.3, UPSC. It has specifically been alleged by the respondent UPSC that it is not dealing with the facts of the OA. The UPSC is an advisory body set up under Article 315 of the Constitution, having the constitutional obligation to ensure that the selections made for regular appointments to the services/posts under the Union are made strictly in accordance with the relevant rules and instructions issued by the Government from time to time. Parameters have been provided for consideration of the candidature of a person for promotion and he must at least secure four benchmarks out of five ACRs. The DPC held on 10.06.2011 was convened strictly as per the DPC guidelines issued by the DOP&T. Regarding rest of the facts, the respondent UPSC has nothing to say.
5. In response to the counter replies filed on behalf of the respondents, rejoinder affidavits have been filed on behalf of the applicant. The applicant reiterates the facts which have been alleged in the OA. It is not necessary to repeat the same facts which have been alleged in the OA.
6. We have heard Shri L. R. Khatana, advocate, for the applicant and Shri Rajesh Katyal for respondents 1 and 2, and Mrs. Brinda Rana for respondent No.3, UPSC, and perused the entire record of the case. Much of the facts have been admitted by the respondents. It is undisputed that at present with effect from 27.12.2001 the applicant has been working as Senior Programmer in the respondent department in the pay scale of Rs.10000-325-15200 (pre-revised). It has also not been disputed that this is also the grade for the post of Deputy Director of Employment in the respondent Ministry. It is also an admitted fact that an office order was issued on 16.01.2008 with the objective of providing better promotional prospects and equal opportunities to each category of Group A posts in the identical scales in the Employment Directorate under DGE&T, and various posts were clubbed/amalgamated and re-designated. Annexure A-2 is the copy of order dated 16.01.2008. The applicant also alleges that subsequently on 02/06.12.2010, another office order was issued by the respondent department so as to include the post of Senior Programmer, DGE&T (HQ) Rs.15600-39100 (PB-3) + Rs.6600 Grade Pay (revised) [Rs.10000-325-15200 (pre-revised)], and that the post of Senior Programmer is an isolated post and it has also been shown in column number 4 that the revised designation and pay scale will be as Deputy Director of Employment. After including the post of Senior Programmer, the total number of the posts of Deputy Director will be 28. Earlier, there were seven different cadres in the respondent department drawing the same pay scale of Rs.15600-39100 (revised), and it has been provided in the office order dated 16.01.2008 that in order to provide better promotional prospects and equal opportunities to each category of Group A posts, the posts mentioned therein in the identical pay scales in the Employment Directorate under DGE&T have been clubbed/amalgamated and re-designated as mentioned against each, to bring out uniformity in nomenclature of the posts, with a view to have combined recruitment rules for Group A posts in the Employment Directorate. Earlier, the feeder category for promotion to the post of Joint Director of Employment was that of Deputy Director and Senior Scientific Officer Grade-I, drawing the same scale of pay, but afterwards in pursuance of the order dated 16.01.2008, seven cadres in the same scale were clubbed/amalgamated and re-designated as Deputy Director of Employment. Earlier, in the order dated 16.01.2008 only six cadres were included in order to club/amalgamate the same, but vide order dated 02/06.12.2010, the post of Senior Programmer, DGE&T (HQ) in the same scale has also been clubbed/amalgamated and the post was re-designated as Deputy Director of Employment. The number of post of Senior Programmer was one, and the applicant was holding the post of Senior Programmer.
7. It is the contention of the applicant that vide order dated 16.01.2008 read with order dated 02/06.12.2010, different cadres were amalgamated in one cadre of Deputy Director of Employment, hence the applicant is also entitled to be considered for promotion to the post of Joint Director of Employment, and representations in that regard were made. It has been provided in the order dated 16.01.2008 that incumbents of the re-designated posts will have no claim to seniority/promotion in respective cadres of Employment Directorate for the same or higher posts and will be governed by the inter-se seniority drawn for the Employment Directorate. It has been stated on behalf of the respondents that it has been specifically been provided in the office order that the incumbents of the re-designated posts will have no claim to seniority/promotion in respective cadres of Employment Directorate, and hence the applicant is debarred from claiming seniority/promotion in the respective cadre of Deputy Director, but it has also been provided in the office order and the respondents were under an obligation, rather liable, to frame the rules so as to determine the inter se seniority drawn for the Employment Directorate. If different streams of services or cadres are amalgamated, then a unified seniority list is to be prepared by the respondents. They will have to provide the rules as to how the seniority is to be reckoned of the individuals of different cadres. It is the main contention of the applicant that the respondents have not framed rules so as to determine the inter se seniority of different cadres, and the unified seniority list was not prepared, and without preparation of the unified seniority list, they are going to convene the DPC in order to promote Deputy Directors to the post of Joint Director. Copies of the representations have also been filed as annexures.
8. The main contesting parties are the respondents 1 and 2. There is no denial of the fact that office orders dated 16.01.2008 and 02/06.12.2010 were not issued. It has been contended in the counter reply filed by the respondents that issuing these orders would not confer any right of any kind on any of the persons/employees, including the applicant, and that these are mere administrative orders and cannot be enforced until and unless the same are culminated into statutory recruitment rules. It has also been argued by the learned counsel for these respondents that these office orders will not be deemed to be statutory recruitment rules and these are simply administrative orders. We tried to ascertain from the advocate of these respondents as to whether these rules were enforced and implemented by the respondents, and the respondents advocate would insist that these rules were not implemented or enforced. We have tried to ascertain as to what is the present designation of the applicant after issuance of the order dated 02/06.12.2010. No satisfactory reply was given by the respondents of this query. However, on behalf of the applicant, certain papers were produced before us in order to demonstrate that the order dated 02/06.12.2010 had already been implemented and the applicant has been re-designated as Deputy Director. He produced an identity card issued by the Ministry of Home Affairs, and in this identity card the designation of the applicant has been shown as Deputy Director, DGE&T. One more order dated 11.05.2011 issued by the Ministry of Labour and Employment, DGE&T has been produced, wherein also the designation of the applicant is shown as Deputy Director. Certain duty has been entrusted to the applicant, and in the order aforesaid the applicant has been shown to be Deputy Director. Hence, this contention of the learned counsel for the respondents is unjustified that the orders dated 16.01.2008 and 02/06.12.2010 have not been implemented. The only question that remains is whether any rules were framed as to how the seniority of the re-designated employees shall be determined, and whether any seniority list was prepared. This argument of the learned counsel for the respondents is not tenable that even after issuing the office orders dated 16.01.2008 and 02/06.12.2010, the cadre of the employees would remain the same, although they were called as Deputy Directors. It has been stated by the respondents in their counter reply that the posts of Senior Programmer in the pay scale of Rs.10000-15200 (pre-revised) and Programmer in the scale of Rs.8000-13500 (pre-revised) were not included in the proposed recruitment rules, as the duties and educational qualification of the above said posts are different from that of the Deputy Director of Employment and Assistant Director of Employment, and hence the posts of Senior Programmer and Programmer were not included in the said proposal. These posts are stated to be technical posts having no similarity with the posts of Assistant Director and Deputy Director. There are no promotional avenues for the post of Senior Programmer as this is an isolated post, and the applicant is the Senior Programmer and hence, he has no claim for the promotional post of Joint Director of Employment.
9. It has further been alleged by the respondents that the post of Joint Director of Employment is the promotional post for the post of Deputy Director of Employment and Senior Scientific Officer Grade-I, and the post of Deputy Director of Employment is the promotional post for the post of Assistant Director of employment. As per the existing recruitment rules, the post of Joint Director is required to be filled by promotion failing which by transfer on deputation (including short-term contract). This is the main contention of the respondents that for promotion to the post of Joint Director of Employment, the feeder cadre is Deputy Director of Employment and Senior Scientific Officer Grade-I, and the Senior Programmer is a technical post, and there is no identity of the post of Senior Programmer with that of the Deputy Director and Joint Director, and there are no promotional avenues for the post of Senior Programmer.
10. We have perused the order dated 16.01.2008. It has been stated in the said order that in order to provide better promotional prospects and equal opportunities to each category of Group A, the posts mentioned therein in the identical pay scales in the Employment Directorate under DGE&T have been clubbed/amalgamated and re-designated as mentioned against each to bring out uniformity in nomenclature of the posts, and when the intention and spirit of the order is to provide better promotional prospects and equal opportunities to each category of Group A employees, then we fail to understand as to how in spite of this office order, the employees of the amalgamated cadre will continue to maintain their separate identity. When different cadres have been clubbed/amalgamated, then a unified cadre of Deputy Directors has come into existence. We have tried to ascertain from the respondents that whether any such order has been issued by the respondents to state that irrespective of the order dated 16.01.2008 the amalgamated/clubbed cadres will continue to have separate identity, and they will not be re-designated as Deputy Directors. No such office order has been issued by the respondents. The respondents cannot be permitted to blow hot and cold in the same breath. On the one hand, the respondents issued different orders and also approached DOP&T and UPSC for providing approval to frame the rules, but at the same time, they will say that the different amalgamated cadres would continue to have their separate identity. As nothing has been alleged, hence we disagree with the contention of the respondents, and it cannot be believed by any stretch of imagination that in spite of the order dated 16.01.2008 the cadres continued to have their separate identity. Number of the posts of Deputy Director has been shown as 28, after calculating the number of the clubbed/amalgamated posts. At the time of issuing order dated 16.01.2008, the number of posts of Deputy Director was 27, including all the posts, except the post of Senior Programmer, and when vide order dated 02/06.12.2010 the post of Senior Programmer was also clubbed/amalgamated, then number of posts of Deputy Director became 28. This contention of the respondents appears to be ridiculous.
11. It has been contended by the respondents also that the recruitment rules were in existence from earlier, and in accordance with the earlier rules, the promotion shall be made to the post of Joint Director of Employment from the feeder cadre of Deputy Director of Employment, which was existing from earlier. Annexure A-6 is the copy of the recruitment rules, and in view of these rules the post of Deputy Director is the feeder category for promotion to the post of Joint Director. When different cadres have been amalgamated, then a unified cadre has come into existence and a unified seniority list ought to have been prepared and promotions should have been made in accordance with the unified seniority list, but the respondents are proceeding with the promotions on the post of Joint Director without preparing the unified seniority list.
12. Learned counsel for the applicant cited judgments of the Honble Supreme Court reported in (2007) 10 SCC 513 S. B. Bhattacharjee v S. D. Majumdar and others, and (2011) 8 SCC 115 D. P. Das v Union of India & others. In these rulings, it has been provided that for promotion inter se seniority list is the main criteria, and in view of the facts of the present case, unified seniority list must be prepared.
13. Learned counsel for the respondents also produced the judgments of the Honble Supreme Court in AIR 2007 SC 2733 Hindustan Aeronautics Ltd. v Dan Bahadur Singh & others, and AIR 2007 SC 254 Sanjay Kumar Manjul v Chairman, UPSC & others. We have perused the judgments of the Honble Supreme Court, but in the facts of the present case, these judgments are of no help to the respondents.
14. For the reasons mentioned above, we are of the opinion that office orders were issued by the respondents on 16.01.2008 and 02/06.12.2010 in order to club/amalgamate different cadres and re-designate them so as to bring about uniformity in nomenclature. The dispute is regarding the cadre in the scale of Rs.10000-15200 (pre-revised). We are of the opinion that these orders issued by the respondents were complied with and the applicant was re-designated as Deputy Director. The post of Deputy Director is the feeder category for promotion to the post of Joint Director. In pursuance of the order dated 16.01.2008, the respondents have not framed rules for determination of the inter se seniority of different cadres, and they have also not prepared the unified seniority list after amalgamation of different cadres. Prior to making any promotion on the post of Joint Director, the respondents ought to have prepared a unified seniority list, and thereafter promotions should have been made on the post of Joint Director. Without undertaking this exercise, the respondents are proceeding to convene DPC in order to make promotions to the post of Joint Director from the post of Deputy Director. We are unable to understand as to how the respondents are going to make promotions on the post of Joint Director without first preparing a unified seniority list. The applicant has got a legitimate expectation for his promotion on the post of Joint Director after the above mentioned office orders. In our opinion, the act of the respondents is unjustified and the OA deserves to be allowed.
15. The OA is allowed and the respondents act of going ahead with the process of promotions and holding DPC for promotion to the post of Joint Director without preparing the inter se seniority of the feeder grade is declared illegal and unjustified. The respondents are directed to prepare a unified seniority list of the feeder cadre of Deputy Directors prior to conducting the DPC for promotion on the post of Joint Director of Employment. In case the DPC has been convened, then it shall be kept in abeyance till the unified seniority list is prepared. The unified seniority list shall be prepared as per directions of this Tribunal within a period of three months from the communication of this order. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/