Central Information Commission
Sharad Kumar vs Department Of Revenue on 12 September, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के यसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOREV/C/2020/681024
Sharad Kumar ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Department of Revenue,
RTI Cell, Room No. 55,
North Block, New Delhi - 110001. .... ितवादीगण /Respondent
Date of Hearing : 12/09/2022
Date of Decision : 12/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 30/06/2020
CPIO replied on : Not on record
First appeal filed on : Not on record
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : 07/08/2020
Information sought:
The Complainant filed an RTI application dated 30.06.2020 seeking the following information:
1. Information in respect of all officers of DoR looking after the matters related to ED (specially handling and approving Recruitment Rules, Pay Upgradation and DPC) w.e.f 01.01.2018 till date, from the post of Under Secretary and above (Name and designation) may please be provided.1
2. Following Information & documents with reference to upgradation of post of Assistant Director in Directorate of Enforcement (ED) from Grade Pay of Rs. 5400 in PB-2 to PB-3 (Level-9 to Level-10 in 7th CPC), as conveyed vide letter dated 29.10.2018 issued under F No.-K-11022/53/2017-Ad.ED-
2.1 Information may be provided as to whether assessment of suitability of Assistant Director in Directorate of Enforcement (ED) is/was required or is applicable while allowing such upgradation or not in view of para-2(iii) of DoPT OM No. AS 14017/66/2008-Estt (RR) dt. 09.03.2009 (with reference to OM No. 22011/10/84 - Estt.(D) dated 04.02.1992) as the upgraded pay scale of level-10 fall in Group - A. It is submitted that as per para-2(iii) of this OM, suitability of the officer who has been placed in a upgraded/replacement pay scale which fall in Group 'A' by recommendation / award of the Pay Commission will continue to be assessed. This upgradation was not awarded by the pay commission but was subsequent one.
2.2 Information- Is it true that no such assessment of suitability is/was required due to which no such directions or compliance of such directions as mentioned in the DoPT OM No. AS 14017/66/2008-Estt (RR) dt. 09.03.2009 was mentioned in the letter of DOR and due to which the Directorate of Enforcement (ED), Head Office conveyed upgradation of post vide letter dated 05.11.2018 without any suitability assessment.
2.3 If assessment of suitability is/was required, information may be provided as to why compliance of such directions not mentioned in letter dated 29.10.2018 issued under F No.-K-11022/53/2017-Ad.ED by the DOR.
2.4 Information may be provided that at what stage such assessment of suitability is/was required, if any required, i.e. before allowing upgradation of pay scale/fixation of pay or at any stage including the stage of promotion.
2.5 Information- Whether the DOR sent any such proposal for assessment of suitability to the Directorate of Enforcement (ED) after upgradation of post or it was obligatory on part of Directorate of Enforcement (ED) to submit such proposal before allowing such upgradation. If any such letter issued to ED or received from ED, a copy of the same may be provided (Documents).
3. Following Information & documents with reference to Pending DPC for the post of Deputy Director in Directorate of Enforcement (ED) after upgradation of post of Assistant Director-
23.1 Information may be provided about suggestions of UPSC/DoPT to the DOR with regard to holding of DPC for the post of Deputy Director on the situation of upgradation of post of Assistant Director from level 9 to 10 (i.e. to Group A pay scale) i.e. whether DOR sought any such opinion from the UPSC or not. If yes copy of such reply may be provided (Documents).
3.2 Information - Is it true that the UPSC advised the DOR to conduct DPC in two phases i.e. proposal to UPSC for conducting DPC for the vacancies upto 28.10.2018 considering the post of Assistant Director as Group-B for promotion to Group-A and subsequent DPC by the DOR in respect of vacancies arise in the post of Deputy Director w.e.f. 29.10.2018 i.e. date of upgradation of levels of Assistant Director. If yes, copy of all such correspondences i.e. proposal sent to the UPSC and received from the UPSC may be provided (Documents).
3.3 It is submitted that DPC for the vacant post of Deputy Director as on 28.10.2018 i.e. before upgradation of post, was conducted by the UPSC, through which 13 Assistant Directors got promoted to the post of Deputy Director vide order dated 26.09.2019 of the ED. Information may be provided about status of DPC for the remaining post of Deputy Director w.e.f. 29.10.2018 (after upgradation of levels of Assistant Director) i.e. what process of DPC has been initiated by the DOR as advised by the UPSC.
3.4 Till date no DPC has been held by the DOR for the vacant post of Deputy Director. Information may be provided as to why further DPC for the vacant post of Deputy Director was not initiated by the DOR despite the advice of the UPSC to fill the vacant post for the vacancy year 2018-19 i.e. the reason for not holding such DPC may be informed in view of DoPT OM No. 22011/6/86-Est(D) dated 10.04.1989 which provides that holding of DPC should not be delayed or postponed on the ground that RR for the post are being reviewed/amended.
3.5 Copies of Note sheets of all such files in which issues related to further DPC for the vacant post of Deputy Director was handled may be provided (Documents). 3.6 Copies of correspondences from 01.04.2018 till date made with the UPSC, DoPT, Law Ministry, ED or any other Department/Ministry may be provided which related to further DPC for the vacant post of Deputy Director (Documents).
3.7 It is submitted that the Hon'ble Supreme Court, in its judgment dated 24.3.1983 in Civil Appeal No.2954-55 and 2956-57 of 1980-Y.V. Rangaiah and Ors. Vs J. Sreenivasa Rao and Others has held that "the vacancies are governed by the 3 Recruitment Rules in force as on the date of occurrence of vacancies, and that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules". Similarly, the DoPT OM No. 22011/6/86-Est(D) dated 10.04.1989 provides that holding of DPC should not be delayed or postponed on the ground that RR for the post are being reviewed/amended. It has also been remarked that amendment to the Recruitment Rules can normally have only prospective application and as such the existing Recruitment Rules would continue to be in force till the new Rules come into force. The Supreme Court has also ruled that vacancies should be filled according to the Rules in force when the vacancies arose. The DPCs should therefore be convened in time and the panel of officers finalised in accordance with the existing Recruitment Rules. [Refer DOP & T OM No 28034/6/86-Estt(D) dated 17-11-86.] a. Information may be provided as to why DPC for the post of Deputy Director was not held by the DOR as per the existing RR i.e. before issuance of new RR on 10.06.2020, despite clear opinion of the UPSC/DoPT and guidance of the Hon'ble Supreme Court.
b. Copies of relevant opinion of the authorities in DOR may please be provided (Documents).
4. Following Information & documents with reference to Recruitment Rule for the post of Deputy Director in Directorate of Enforcement (ED), notified by G.S.R. 367(E) 10.06.2020 issued under F. No. F. No.A-12018/2/2015-Ad.ED-
4.1 The revised Recruitment Rule notified under G.S.R. 367(E) 10.06.2020 provides that Assistant Director of Enforcement with five year service in the grade rendered after appointment thereto on a regular basis in pay matrix level-10 (Rs. 56100- 177500) will be eligible for promotion to the post of Deputy Director. It is submitted here that the post of Assistant Directors was in pay matrix level-09 as per 7th CPC and got upgraded to pay matrix level-10 after 29/10/2018 vide order of DOR. Thus, if go by word to word of the new RR, all existing Assistant Directors has to complete 5 year service in pay matrix level-10 i.e. calculation of service period will be made from 29/10/2018 in respect of all feeder cadre Assistant Directors and their previous service in the same post will not be considered, meaning thereby that the existing Assistant Directors will be eligible for promotion after 29.10.2023 (5 year service). It was found that no saving clause for protecting the interest of Assistant Directors was made in the new RR due to which the 4 Assistant Directors of ED have to suffer and wait for 3 more years to become eligible for promotion.
Information may be provided as to whether the Assistant Directors who had served in pay matrix level-09 and in pay matrix level-10 jointly after upgradation of pay scale will be covered for next promotion i.e. whether the complete service of Assistant Director w.e.f. the date of promotion to the post of Assistant Director will be counted as minimum service or 5 years in pay matrix level-10 will be counted.
4.2 It is submitted that the Office Memorandum dated 31st December, 2010 issued by the Department of Personnel 85 Training in F. No. AB.14017/48/2010- Estt..(RR) provides that "Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issues by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules. It was found that no such note was included in the new RR for the post of Deputy Director.
a. Information may be provided that whether such note was required or not. b. Information may be provided as to why such note was not included in the revised RR for the post of Deputy Director.
c. Information may be provided that whether such note was placed in the proposed RR by the ED or not. It yes, the reasons for not incorporating the same in RR be provided and if not, why such mistake was not pointed out by the DOR and ED was not advised for the same.
d. Information -is it a fact that such note was not included as the new RR will not affect the Assistant Directors of feeder cadre holding posts on regular basis on the date of notification of the revised rules and they will be included in the revised rules.
Having not received any response from the CPIO, the complainant approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Not present.
Respondent: Vivek Mishra, US & CPIO present through intra-video conference.5
The CPIO submitted that the reply to the instant RTI Application was duly provided on 10.08.2020 incorporating the available information, subsequent to which, the Complainant also filed a First Appeal, in response to which the FAA upheld the reply of the CPIO. He further invited the attention of the bench to an email of the Complainant addressed to him on 07.09.2022 wherein he has expressed that due to the efflux of time the matter has lost its relevancy and has desired to withdraw the case.
Decision The Commission based on a perusal of the facts on record and in the absence of the Complainant to plead his case or contest the CPIO's submissions finds no scope of intervention in the matter.
The Complaint is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 6