Central Administrative Tribunal - Delhi
Presently Working As Registrar vs Union Of India on 5 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1343/2007
New Delhi this 5th day of December, 2008
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. L.K. Joshi, Vice Chairman (A)
Raghubir Singh,
S/o Shri Sheo Dhan Singh,
R/o 674, Sector 22/B,
Urban State, Gurgaon,
Haryana
Presently working as Registrar
(on deputation)
Ravi & Beas Water Tribunal,
East Block-VII,
R.K. Puram, New Delhi. Applicant.
(By Advocate Shri S.K. Gupta)
Versus
1. Union of India
Through Secretary
Department of Personnel & Training
Ministry of Personnel, Public Grievance
And Pension,
North Block, New Delhi.
2. Central Administrative Tribunal
Principal Bench, New Delhi
Through Principal Registrar,
61/35, Copernicus Marg,
New Delhi.
3. Shri A.K. Ajmani
4. Shri V.K. Bawa
5. Shri Govind Ballabh
6. Shri S.P. Singh
7. Shri B. Stephen
8. Shri N.N. Pradeep
9. Shri A.V.S. Raju
10. Smt. V.P. Kamallama
11. Shri K Raja Ram
12. Shri Diwakar Kukreti
13. Shri M. Ramachandran
14. Shri Rama Nath Panda
15. Shri J.M. Bhattacharya
16. Shri G.C. Sharma
17. Shri N. Ramamurthy
18. Shri V.C. Vijay
(Through Principal Registrar,
Central Administrative Tribunal,
Principal Bench, New Delhi). Respondents.
(By Advocate Shri A.K. Behera for Respondents 1 and 2, none for other respondents)
O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
By an order dated 03.06.2008, a Division Bench had referred the above O.A. to a Full Bench, especially taking notice of the circumstance that they had reservations about the conclusion which had been arrived at in Sanyukta Arjuna Vs. UOI & Ors. (ATJ 2003 (1) 559). From the submissions made at the bar, Bench had noticed that but for the decision, it would not have been possible for the applicant to highlight his contentions. This was because, taking note of the judgment of the Honble Supreme Court in S.I. Roop Lal & Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Ors. (JT 1999 (9) SC 597), Govt. of India by O.M. of 27.03.2001 had laid down instructions, which, inter alia, provided that the directions in the judgment could have been effective from the date of the judgment, namely, 14.12.1999. If that would have been the case, the applicant could not have had justification to put up a claim for seniority, by virtue of his service rendered during the period prior to his deputation to the CAT, in an analogues post. Sanyukta Arjuna (supra) referred to earlier, had held that the instructions as above restricting the impact of the judgment would not have been sustainable. In fact, we notice that the Bench had followed an earlier judgment rendered on 04.04.2002 in OA 2174/2001.
2. But, however, submissions made on behalf of the respondents, indicate that the claims of the applicant could not have been sustainable even otherwise, and the relevance of the office memorandum need not be gone into. Therefore, counsel were requested to address us on the merits of the case as such. The reference order also had suggested that totality of the facts and circumstances of the case required to be gone into and matter be heard and disposed of by a Full Bench on all questions finally. Resultantly, we were of the opinion that the issue could be given a quietus since we had opportunity to hear the full submissions, with reference to the facts, as highlighted. In the aforesaid circumstances, whether or not the order of the Sanyukta Arjuna (supra) requires reconsideration, is not being looked into, and the matter appropriately could be examined, later on when the question comes up.
3. The applicant had retired from the cadre of Registrar of C.A.T. but while working as Registrar of Ravi & Beas Water Tribunal, to which post he had been sent on deputation. He had come to service of the Administrative Tribunal, on 08.05.1992, initially on deputation, as Deputy Registrar. Before the above date, he was holding the post of Civilian Staff Officer in the Ministry of Defence. The applicant had been absorbed on a regular basis in the CAT on the recommendations of a DPC, effective from 06.08.1995. Of course, at the time of consideration by the DPC, the files had shown that the officer concerned was holding the position of CSO on regular basis w.e.f. 01.07.1982. But, however, it had later come to be recorded that in view of certain legal proceedings, pertaining to matters of seniority of the said organization, subsequently his date of commencement in the post of CSO had come to be refixed as 01.10.1988. But this did not result in change in the decision of regularization in the CAT. But for all practical purposes, thereupon it were to be presumed that the applicant had been working in an analogous post of Deputy Registrar of CAT in the erstwhile Department from 01.10.1988 onwards alone.
4. The applicant had been promoted as Registrar in the CAT effective from 22.02.2000. At that time, the seniority list in the cadre of Deputy Registrar was yet to be finalized. We need only note that a seniority list was published on 17.02.2005. He had been assigned rank No. 12. Applicant submits that he had no cause to complain about the rank so assigned. Of course, it is pointed out that certain discrepancies were there in matters of minor details, which also had been got rectified on his representation.
5. But to his surprise, according to him, a draft revised seniority list had come to be published on 26.04.2006 as Annexure A-1 and his position had been shown as having been pushed down. This resulted in a representation about the loss of seniority but, however, as no orders were forthcoming, he had chosen to file an Original Application as OA 947/2006. The sum and substance of the submission was that while seniority had been fixed, the analogues service rendered by him in another Government Department was omitted to be taken note of. At the stage of admission, OA had been disposed of by a Single Member with direction to the respondents to dispose of the pending representation. A detailed order in the light of the decision in S.I. Rooplals case (supra) was required to be passed. When the Administration had found that this would have been unworkable, a writ petition is seen to have been filed as Writ Petition (Civil) No. 14051/2006, inter alia, contending that the restriction imposed as such would not have been warranted.
6. Taking notice of the submissions, the Division Bench had on 06.09.2006 held that it would be open for the administration to distinguish the case and give reasons as to why SI Roop Lals case was not attracted, but, however, a decision was to be taken and communicated to the applicant. Such a decision is found in the form of Annexure A-2 dated 06.10.2006. The applicant had been informed that there was no error in treating his date of absorption in the Tribunal as 06.08.1995. It had also been observed that the occupation of analogous post in his parent department could have been counted as 01.10.1988. As the contentions highlighted by the applicant against the revised seniority list viz Annexure A-1, thus stands rejected, he has come up with the present Original Application, although he had approached the High Court with a contempt petition, complaining that the manner in which the OA was disposed constructively violated the directions given in the writ petition.
7. Mr. S.K. Gupta appearing on behalf of the applicant submits that the view taken by the respondents that SI Roop Lal had no relevance as far as claim of the applicant was concerned, could not have been legally sustainable. In view of the fact that he was entitled to a date of 01.10.1988 reckoned for the purpose of his seniority, the benefit could not have been denied to him. The full service as above required to be counted. This is because as emanating from the observations of the Supreme Court in SI Roop Lal, any rule, regulation or executive instructions, which have the effect of taking away the service rendered by a person, who had come on deputation, in an equivalent cadre in the parent Department, would have violated Article 14 and 16 of the Constitution and was liable to be struck down. Counsel contends that the reason given in Annexure A-2 was, therefore, illogical. In fact, no valid reasons have been given for not following the law of the land.
8. A reading of the Original Application would indicate that to a great extent, the contention raised was that observations in SI Roop Lal should have been applied to his case. Private respondents have been impleaded to the proceedings, as according to him, they could have been only assigned a position lower to him. Mr. Gupta submits that if the analogous service was taken into consideration, he should be deemed as senior, and entitled to get service counted from 1988 as if this was rendered in the cadre of Deputy Registrar. Naturally, the claims put in by the private respondents for seniority over him on the basis of their earlier appointment as Deputy Registrars in the CAT, would have had no legal impact.
9. Mr. Behera, appearing on behalf of the respondents, however, submits that the claim of the applicant is totally misconceived. It may be true that in the seniority list published in 2005, the applicant had been given a rank above the private respondents, but necessarily the matter had to be subjected to a review because of the pronouncement of the Madras High Court in Writ Petition No. 11256 of 2003. The decision was rendered on 06.01.2005. Counsel submits that it was a case where the High Court had overruled the decision rendered by CAT Madras Bench in OA 255/2002. Smt. V.P. Kamlamma, a Deputy Registrar, had put up a claim that her case for promotion required to be antedated, as some of her juniors had been promoted as Joint Registrars overlooking the legal position. The parameters required to be applied as on the date of occurrence of vacancy and a rejection of claims later on, on the plea of change in procedure was neither legal nor proper. The Original Application had been dismissed. However, the High Court had overruled the position and held that in matters of service, there was necessity to come up with seniority lists, which were appropriately revised from time to time. It was invaluable right of the individuals, and if seniority list could not be published every year, such list should be published at least once in two years in respect of all the cadres in service. It was mandatory that the rules for promotion as prevailing in the year when vacancy arose were to be strictly followed. The claim of the applicant was that she had a claim to be considered when a vacancy arose in 1988, but no panels for promotion had been prepared during 1988 as well as 1989 in spite of existence of vacancies. When revised rules came in the year 1991, they were applied in respect of those vacancies arisen in 1988, which prejudiced her.
10. High Court had held that for a vacancy of the year 1988, the panel should have been prepared promptly. Tribunal had been directed to prepare the panel for promotion yearwise to the cadre of Joint Registrar and give promotions to the eligible persons as per the rules that were in force in those years. The judgment had attained finality. Therefore, it was obligatory for the Tribunal to come up with revised seniority list, and also examine the promotability of the officers concerned with reference to the years, in which vacancies had arisen. In the course of this exercise, a revised list had been published and it is evident that at no time, the rights of the applicant had been negatived nor he had been subjected to any arbitrary treatment. We, therefore, find that although a seniority list had been published in the year 2005, taking notice of the directions of the decision of the Madras High Court, it required to be revised. Publication of a seniority list in the year 2006, therefore, could not have been objectionable. On the other hand, it was a duty that was mandatorily to be carried out.
11. The argument of Mr. Gupta that settled position of seniority could not have been unsettled, cannot be accepted nor could it be possible for him to suggest that the decision of the Madras High Court could not have been confined to certain cadres alone. It would have been only a self-serving argument that it was not to result in recasting the seniority list. If different yardsticks were to be employed with reference to different cadres, it would have been not only inequitable, but also would have led to total disruption of the fabric.
12. The next question, which arises, is as to whether the applicant could have complained about a position that he had been assigned consequent to the exercise or whether private respondents had gained a march over him, arbitrarily and without justification.
13. The applicants date of assumption of duty as Deputy Registrar was taken as 06.08.1995, namely, his date of absorption. But Mr. Gupta states that as far as the private respondents are concerned, who are already working in the Tribunal, and who had also come on deputation, they had been absorbed in the grade of Deputy Registrar by a DPC held on 17/18.05.1994 and the benefit of regularization had been given effective from 18.05.1994 but such proceedings had come to be finalized, on 01.07.1997. However, it is conceded that these orders were not challenged. Nor were they possible to be characterized as irregular. Thus, the position was indisputable that the private respondents were to be deemed as having come to the cadre on 18.05.1994.
14. Applicants date of commencement of service was recommended as 06.08.1995. If that be the case, normally the private respondents are to be considered as senior in the cadre because of the date of entry assigned to them. Therefore, the only aspect, which remains to be looked into, is as to whether the applicant was entitled to an earlier date of reckoning of having come to the cadre of Deputy Registrar, on the basis of his holding an analogous post in the parent organization. Mr. Gupta submits that this was indisputable, and the procedure was to be wholly based on the observations of SI Roop Lal. But Mr. Behera submits that the statutory rules, which are mandatorily to be followed, cannot at all be overlooked to favour an incumbent, and the observation in S.I. Rooplal was not to be mechanically followed.
15. Mr. Behera also submits that the applicant may not be justified to press reliefs on the basis of SI Roop Lal, in view of the observations, which are already there against his cause as recorded by Annexure R-3 of the Delhi High Court in CC (C) 1361/2006. As referred to earlier, applicant had at one stage approached Delhi High Court pointing out that there was a contumacious conduct on the part of the respondents since follow up orders were not passed strictly as envisaged by WP (C) No. 14051/2006. However, such application filed by him had been rejected and the petition dismissed. In the course of the order, learned judge had held as following:
The contention of Shri Raghubir Singh to rely upon the decision of SI Roop Lals case is totally misplaced. The issue is regarding date of his regular appointment in his parent department. Mr. Behera pointed out that it was specifically observed by the court that SI Roop Lals case was not attracted. Regular appointment indeed was to be the criterion.
16. But, nevertheless, we may deal with the case of the applicant and examine whether it may be possible for him to press the claims for antedating his date of absorption. In spite of the observations made by SI Roop Lal, it has to be established that the applicant had a legal claim to hold the post of Deputy Registrar in CAT in terms of the statutory rules, which govern the service. He had come to be appointed in the year 1992. But that was on purely deputation basis. The Central Administrative Tribunal (Group `A posts) Recruitment Rules, 1988 are the governing rules. By GSR 1036 (E), the Central Government had brought in the rules regulating the method of recruitment to Group `A posts in the CAT. Rule 5 provides that persons holding the posts of Registrar, Joint Registrars, and Deputy Registrars on the date of commencement of the rules, who fulfil the qualification and experience, would be eligible for absorption/regularization, subject to the condition that they do exercise their option for absorption and if their parent departments do not have any objection to their being absorbed. The suitability had to be considered by the DPC constituted. Mr. Behera submits that although the rules as above had come into force in 1988, in the matter of absorption of deputationists, it continued to apply, as there were no other rules. This position, it appears, is required to be accepted.
17. Schedule-II to rules provide that the posts of Deputy Registrar have to be filled up 50% by promotion and 50% by transfer and transfer on deputation. In the case of promotion, it is clarified that a deputationist in the Central Administrative Tribunal will not be eligible for consideration against the promotion channel. This clause may not be relevant here as it was not a case of promotion and the applicant wanted to come through the method of deputation and absorption. In case of transfer/transfer on deputation, schedule provided that officers possessing a Degree in Law or holding analogous post in Central/State Government/High Court or holding posts of Deputy Registrar in High Court or officers of Central/State Government/High Court, in the scale of Rs.2000-3500 with a minimum of eight years regular service, are to be considered as eligible. This is the crucial issue.
18. When it is admitted that he was to be considered as having come to the cadre of CSO in the Defence Establishment only effective from 01.10.1988, he could have been possible to be considered for appointment on a regular basis to the post of Deputy Registrar only on his completing eight years service. This position he would have attained only by 02.10.1996. But, as a matter of fact, he had been absorbed on 06.08.1995. This benefit was available to him because at that point of time, as per records he had come to the cadre of CSO as early as in the year 1982. It was only subsequently the service records were corrected to show the year of promotion as 1988. Therefore, in retrospect, it could be stated that the applicant has got a benefit of regularization earlier than his due date, by an accident, and he was a beneficiary when we examine the case dispassionately. If this could be the position, he could have had no grievance when the administration assigned seniority to the private respondents, who came to be appointed as Deputy Registrar on 18.05.1994. A person, who was on deputation, could have come over to the new department only after completing the procedural formalities prescribed by the rules. When statutory rules provided for a clearance by the DPC, it should have always been possible that the claims depended on the decision of the DPC. While SI Roop Lal was decided, Honble Supreme Court was not called upon to examine the possible impact of statutory rules governing different services. We have to hold that the applicant will not be justified in contending that the directions issued by the Supreme Court were in absolute terms so as to hold that the rules were to be given a go by.
19. The Principal Bench had occasion to consider some of these aspects in a decision rendered on 10.08.2007 in OA 1535/2005. We may extract herein the observations in Paragraphs 17 to 19 therein:
17. In the matter of adjudging seniority, on absorption of a deputationist, the Supreme Court had occasion to consider the issue in the case of Indu Shekhar Singh and Ors. Vs. State of U.P. and Ors. (2006 (8) SCC 129). The Court had held that there is no fundamental right in regard to counting of past services rendered by a person. Past services can be taken into consideration only when the rules permit the same or where a special situation exists entitling the employee to obtain such benefit by express terms.
18. As pointed out by the counsel for respondents in Ramchandrans case (supra), reliance had been placed on R.S. Makshi Vs. I.M. Menon (1982 (1) SCC 379) and it was a case of transfer when persons stood drawn from different sources and were absorbed in a new department. It will be unjust in such circumstances to deny them seniority. But in the case of deputation, normally there is no compulsion and the employee opts for green pastures taking notice of the advantages that may out weigh disadvantageous. In such circumstances, when with open eyes, a new service is opted, in respect of claim for seniority, it may be difficult for him to successfully urge that the past service also has to be tagged on as essentially it could affect the persons, who had already joined service. For the purpose of fixation, etc. if the rules permit, the service rendered could be useful, but not beyond that. It is, therefore, possible to assume that the proviso to Rule 5 (2) had been incorporated in the rules, only to dispense with the heart burn arising out of an instance where a senior person, will have to work under a junior where both of them earlier belonged to the same department, and because he had opted for deputation on a later date. This strain cannot be there when the deputationists are drawn from different sources/departments.
19. We also notice that the Supreme Court had occasion to explain what is meant by source of recruitment in Mervyn Continho and Ors. Vs. Collector of Customs, Bombay and Ors. (AIR 1967 SC 52) for understanding a situation. It is different from the phraseology, method of recruitment. The expression is explained in R.S. Makshi (cited supra) in paragraph 31. In Pramod K. Pankaj Vs. State of Bihar and Ors. (2004 (3) SCC 723) (paragraph 12), the Supreme Court held that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of such appointment. These, according to us, clinch the issue.
20. After the matter was reserved for orders, on behalf of the applicant Mr. Gupta had submitted a short gist of the case and had also made reference to certain judgments, which, according to him, would have helped the cause of the applicant. One of the additional contentions raised was that the applicant had been promoted as Registrar counting his service of parent department from 01.10.1988, and the resultant benefits, as incorporated in the seniority list of 2005, should not have gone unnoticed. But we find that the above submissions, may not be acceptable as such, since it was a case where a DPC had cleared him for appointment to the post of Deputy Registrar and he had thereafter worked up his way to the post of Registrar after working in the intermediary cadre of Joint Registrar. This situation could not have been ignored, especially when seniority lists from time to time were required to be drawn up in view of the decision of the Madras High Court. In the light of the discussions made by us earlier, it may not be possible for the applicant to highlight the observations made in K. Madhavan & Anr. Vs. Union of India & Ors. (JT 1987 (4) SC 43) or the case of Vinita Verma Vs. Union of India & Ors. (SLP (C) No. 8702 of 1994), as the facts involved in the above two cases, ought to have been specifically noticed.
21. In the light of the foregoing discussions, we do not think that there has been any error in preparation of Annexure A-1 seniority list. Nor the stand taken by the Administration as evident from Annexure A-2 in the matter of adjudging the seniority position of officers of CAT is irrational. The Original Application is, therefore, dismissed. We make no order as to costs.
(L.K. JOSHI) ( M. RAMACHANDRAN ) (V.K. BALI) VICE CHAIRMAN (A) VICE CHAIRMAN (J) CHAIRMAN SRD