Central Administrative Tribunal - Delhi
Mrs. Anju Chhabra vs Union Of India Through on 7 December, 2011
Central Administrative Tribunal Principal Bench TA No.10/2011 New Delhi this the 7th day of December, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) 1. Mrs. Anju Chhabra, W/o Shri S.K. Chhabra, R/o BG, 1/261, Paschim Vihar, New Delhi-110 063. 2. Smt. Vinod Malhotra, W/o Shri Ashok Malhotra, R/o A/580, Sector-19, Noida, UP. 3. Shri A.K. Malhotra, S/o late Shri R.C. Malhotra, R/o A/580, Sector-10, Noida, UP. 4. Mrs. Meena Malhan, W/o Shri C.S. Malhan, K/12, Akash Bharti Apartments, Patparganj, Plot No.24, Delhi-110 092. 5. Shri H.P. Sinha, S/o Shri D.P. Sinha, R/o F/110, Indira Enclave, Loni Road, Loni (UP). -Petitioners (By Advocate Shri Pawanjit Bindra) --Versus- 1. Union of India through its Secretary, Ministry of Commerce, Udyog Bhawan, New Delhi. 2. India Trade Promotion Organization, through its Chairman-cum-Managing Director, at Pragati Bhavan, Pragati Maidan, New Delhi. 3. Shri Harsh Gupta, Executive Director, India Trade Promotion Organization, Pragati Bhavan, Prgati Maidan, New Delhi. 4. Ms. K. Saroja 5. Shri Suresh Kumar 6. Shri V.P. Malik 7. Shri Gaje Singh 8. Shri Ram Avtar 9. Shri D.S. Bisht 10. Shri A.S. Patwal 11. Shri A.P. Salvi -Respondents (Respondents No.4 to 11 all at India Trade Promotion Organization at Pragati Bhavan, Pragati Maidan, New Delhi. (By Advocates Ms. Nidhi Bisaria and Shri L.K. Khatana) O R D E R Mr. M.L. Chuahan, Member (J):
The petitioners, five in number, have filed CWP No.2265/1995 before the High Court of Delhi, which was subsequently transferred to this Tribunal and registered as TA-10/2011, thereby praying for the following reliefs:
(i) A WRIT, ORDER, AND/OR DIRECTION IN THE NATURE OF CERTIORARI FOR QUASHING IMPUGNED COMMUNICATION/ORDER BEARING No.ADMN.116295 DATED JUNE 14, 1995 ISSUED BY THE RESPONDENT NO.3 PURPORTING TO KEEP IN ABEYANCE THE PROMOTION TO THE POST OF ASSISTANT MANAGER (GENERAL CADRE), WHEREIN THE PETITIONERS HAVE ALREDY JOINED THEIR PROMOTED POST OF ASSISTANT MANGAER (GENERAL CADRE) AND ARE PRESENTLY PERFORMING THE DUTIES AS ASSISTANT MANAGER (GENERAL CADRE) IN THE RESPONDENT NO.2 ORGANIZATION:
(ii) SUCH OTHER, FURTHER ORDERS IN THE NATRUE AND CIRCUMSTANCES OF THE CASE AS THIS HONBLE COURT MAY DEEM JUST AND EQUITABLE MAY ALSO KINDLY BE PASSED IN FAVOUR OF THE PETITIONERS.
2. Briefly stated, facts of the case are that the petitioners, who were Personal Assistants (PA) were promoted to the post of Assistant Manager (AM, for short) (General Cadre) on ad hoc basis with immediate effect vide order dated 7.6.1995. Against this promotion order representation was made by some Senior Investigators/Investigators on the ground that as per the recruitment rules 75% of these posts were required to be filled in from their quota and being eligible and much seniors to the PAs they were entitled to promotion against the vacancies falling in their quota. One of such representations filed by Suresh Kumar, Senior Investigator has been placed on record at pages 156-158 of the paper-book. Acting upon the representation, impugned order dated 14.06.1995 was passed whereby order dated 7.6.1995 was kept in abeyance. Feeling aggrieved by such action of the respondents the aforesaid petitioners filed Writ Petition (Civil) before the High Court of Delhi, which was registered as CWP No.2265/1995.
3. Notice of this Writ Petition was issued to the respondents on 16.06.1995. However, vide order dated 19.06.1995 passed in CM No.2265 & 3816/1995 operation of the impugned order dated 14.06.1995 (Annexure P-1) was stayed until further orders.
4. However, in view of the competing claims between the petitioners and private respondents in this Writ Petition (now TA) the respondents got the matter examined from the Senior General Manager Ms. Bindu Batra. The Senior General Manger submitted her report dated 25.07.1995 in which she opined that 72 Senior Investigators/Investigators have been promoted as Assistant Managers since 1.3.1982 against promotion quota of 50% whereas only 18 persons have been promoted from the quota of PAs from 16-2/3%. Thus, there is a shortfall of 6 posts. It was further pointed out that when the DPC meeting held on 30.7.1986, 2 posts of Assistant Manager under the quota for PAs were filled up on ad hoc basis from among the Senior Investigators/Investigators, as PAs/Senior Stenographers had not completed minimum qualifying period of service, i.e., 8 years. It was further oberved that in the DPC meeting held on 1.8.1988 it was recommended that 3 posts of AMs due to the PA category be kept vacant. This it was concluded that 5 posts calculated by the Administration as backlog for promotion of AM from the category PAs/Sr. Stenos is correct in order to maintain the ratio of 50% by promotion from Senior Investigators/Investigators and 16-1/2% from PAs/Stenos. From the material placed on record, it is evident that India Trade Promotion Organization (ITPO) has also referred the matter to Department of Personnel & Training (DoP&T) for their opinion on the issue raised. The DoP&T opined that the quota for PA/Senior Stenos cannot be accumulated and treated as backlog. Consequently, if some posts are not filled up, alternative method of recruitment have to be adopted for filling up such posts. The implication of this opinion given by the DoP&T was that the PAs and Senior Stenographers, who are petitioners in this Writ Petition, could not have been considered for promotion in excess of their quota and therefore, all vacancies in the post of AM could not have been filled up by the petitioners.
5. As is evident from the above, the view of the Senior General Manager of ITPO was in favour of the petitioners while the view of the DoP&T was against the petitioners. From the material placed on record it is also evident that the petitioners represented against the view expressed by the DoP&T by making a representation to the Secretary of DoP&T on 17.2.1997, which representation made by the petitioners has been placed on record at page 196-198 of the paper-book. While considering the said representation DoP&T informed the General Manager (Admn.) of ITPO to place full facts of the case along with all details so that the matter can be effectively considered by the Secretary, DoP&T.
6. However, when the matter was listed before the Delhi High Court on 2.8.2002 learned counsel for ITPO was unable to inform the Court as to whether full facts of the case were placed before the Secretary, DoP&T and whether the Secretary of the Department has taken a decision in this regard in the matter. Accordingly, the learned Judge vide its order dated 2.8.2002, passed the following order:
Under the circumstances, the ITPO should send the full facts of the case, as required by the letter dated 21st February, 1997, if the same has not already been done, to the Secretary, Department of Personnel & Training within a period of four weeks from today. On the other hand, if the letter dated 21st February, 1997 has been complied with by the ITPO and a decision taken by the Secretary, Department of Personnel & Training, then that decision should be placed on record by way of an affidavit. In the event the Secretary, Department of Personnel & Training has not taken any decision in the matter, he should take a decision within a period of four weeks and communicate the same to the ITPO who will then place it on record.
To be listed for directions on 13th September, 2002.
7. Respondents have placed on record the decision so taken by the DoP&T by filing an additional affidavit dated 20.02.2003, to which we well advert to, in the later part of the judgment.
8. It is on the basis of these facts that the petitioners have filed the aforesaid Writ Petition, thereby praying for the aforesaid reliefs.
9. Official as well as private respondents have filed their reply to the Writ Petitioner, wherein the facts, as stated above, have not been disputed. In the reply affidavit official respondents have stated that some employees belonging to the category of PA/Sr. Stenos made a representation that there was a backlog. It was under these circumstances that the DPC was held on 5/7.6.1995 when 5 PAs (petitioners) were promoted as AMs in the general cadre on the basis of the recommendations of the DPC vide office order dated 7.6.1995. It is further stated that the employees belonging to Senior Investigators/Investigators represented against these promotions on the ground that there was no such backlog of the posts available in the category of AM, as these posts had already been filled up earlier from amongst Senior Investigators/Investigators when the eligible employees belonging to the PA/Senior Stenos were not available. According to the respondents, it was under these circumstances that the office order dated 14.06.1995 keeping the promotion order dated 7.6.1995 in abeyance pending re-examination of the issue involved came to be passed and it was decided to re-examine the whole issue. It is further stated that the matter was entrusted to the Senior General Manager Ms. Bindu Batra to re-examine certain issue, including the issue involved. According to her report there was a shortfall of 5 posts, therefore the promotion of the petitioners was proper. It is further stated that the answering respondents has also referred the matter to the DoP&T for their opinion on the issue, namely, whether it could be stated that there was a backlog in the quota for PAs/Sr. Stenographers in the facts of the case and whether DPC could be held on 5/7.6.1995 for filling up the posts of AMs from amongst the PAs. The DoP&T, however, opined that the qota for PAs/Sr. Stenographers cannot be accumulated and treated as backlog at a particular point of time, according to which necessary action has to be taken to fill up the vacancies in both the quota as per the recruitment rules and in case some posts are not filled up due to any reason, alternative method of recruitment has to be adopted by filling up such posts. Thus, according to the respondents, in terms of the opinion given by the DoP&T it is implied that when the eligible PAs/Sr. Stenographers were not available for consideration for promotion to the posts of AM at a particular point of time, the vacancies would not have been accumulated and it could be filled up through alternative methods of recruitment. Thus, according to the official respondents the aforesaid two reports/opinions are contradictory to each other and therefore the matter was kept in abeyance continuously.
10. The private respondents have also filed reply, whereby stating that none of the petitioners have qualifying service of 4 years, as required under the recruitment rules. It is further stated that the posts of AM (now DM) belongs to two feeder cadres and promotion from one category alone could not have been resorted, especially when 15 candidates in Sr. Investigator category with qualifying service of 6-16 years were available for consideration. It is also stated that all the 5 posts, which were reserved for SC/ST in direct recruitment quota were diverted and given to the general category candidates.
11. We have heard learned counsel of the parties and gone through the material placed on record. As can be seen from the facts, as stated above, the dispute relates to appointment to the posts of AM (now DM) in ITPO. The recruitment rules provide for the following methods of recruitment:
33-1/3% by direct recruitment; 66-2/3% by promotion, divided as under:
50% from amongst Sr. Investigators/Exhibition Organisers, 16-2/3% from amongst PAs.
12. As can be seen from the material placed on record and more particularly the report submitted by the Senior G.M., Ms. Bindu Batra, which has been placed on record as Annexure R-3, it is evident that there has been a continuous shortage of officials in the feeder grade of PAs/Stenographers for promotion as Assistant Managers/Deputy Managers. As such, 2 vacancies for the quota of PAs were filled up on ad hoc basis from amongst Senior Investigators/Investigators on the recommendation of the DPC dated 30.07.1986 and similarly 3 posts of AM due to the category of PA were recommended to be kept vacant as per the recommendations of the DPC in terms of the DPC meeting held on 1.8.1988, which appears to have been filled up by promotion of the officials from Senior Investigators category. From the material placed on record it is also evident that thereafter DPC for 15 vacancies of AM/DM was held in the year 1993 and vide office order No.ADMN./392/93 dated 12.07.1993 15 persons were promoted to the posts of AM on the recommendations of the DPC (Annexure P/6, page 47 of the paper-book). As can be seen from this office order promotion to the cadre of AM was made inconformity with the quota prescribed for Senior Investigators/PAs. From the material placed on record it is also evident that thereafter the DPC for 5 posts of DM, which was re-designated from AM was held by diverting 5 posts from the quota of direct recruitment to that of promotion quota. However, the official respondents on the basis of the representation made by the PAs treated these vacancies as shortfall and thus granted promotion to the PAs only. Thus, in the light of the facts, as stated above, the question, which requires our consideration, is whether it was proper on the part of the official respondents to divert the future vacancies to the share of the PAs in the promotional posts in the grade of DM/AM, especially when in the past the respondents have proceeded to fill up the posts falling under the quota of PA/Senior Stenos from Senior Investigators/Investigators on account of non-availability of suitable PAs/Senior Stenos in terms of the recruitment rules. In other words, when the eligible PAs/Senior Stenos were not available for consideration for promotion to the posts of AM at a particular point of time whether such vacancies could have been filled through alternative methods and such vacancies cannot be permitted to be accumulated.
13. In order to decide this issue, it will be relevant to quote the following provisions stipulated in the recruitment rules for the posts of AM:
(1) The provisions of Rule XI provide that vacancies which are not filled in accordance with the roster of vacancies will be carried forward for filling up in accordance with the Recruitment Rules on a future date. (2) The provisions in Rule XV provide that the Departmental Promotion Committee/Departmental Selection Committee is empowered to relax the requirement in specific cases on merit, provided that in case of educational qualification such relaxation is considered only for posts upto and including the level of Senior Manager and not above.
14. If the matter is examined in the light of the aforesaid statutory provisions and also in the facts and circumstances of the present case, it is clear that it was not permissible for the competent authority to fill up the vacancies, which were in the share of PA cadre by promotion of the Senior Investigators/Investigators. Further, the Department as well as Senior General Manager proceeded on the wrong presumption that 2 vacancies in the year 1986, which have fallen in the share of PA/Stenographers but was filled in from Senior Investigators/Investigators, as no eligible PA/Senior Stenographers was available and further that 3 vacancies of the PA, which could not be filled in the year 1988 from the quota of PA should have been ignored and treated as backlog, even after a lapse of 9/7 years, especially when subsequent DPC was also held in the year 1993. At this stage, it may be stated that the quota has to be worked out on the basis of the vacancies which fell for consideration of the DPC at the relevant time and the quota cannot be worked out on the basis of the overall cadre strength of the posts in respective category, which was done in the instant case, as according to the respondents/as per the report of the Senior General Manager Ms. Bindu Batra, 72 AMs have been promoted from the quota of Senior Investigators/Investigators, whereas in the quota of PAs/Senior Stenographers against 24 posts only 18 posts have been filled in.
15. The view, which we have taken is also inconformity with the opinion given by the DoP&T at the earlier instance and pursuant to the directions given by the High Court vide its order dated 2.8.2002, relevant portion of which has already been reproduced in the earlier part of the judgment. At this stage, it will be relevant to quote para-4 of the Additional Affidavit filed by respondents 2&3, which thus reads:
4. That I further states that while considering the issue, the Department of Personnel & Training has taken into consideration the Recruitment Rules of the Respondent Organisation. The Department of Personnel & Training has observed as under:
On an analysis of the facts and circumstances in the present case, it becomes clear that the Recruitment Rules do not empower the CMD of the ITPO to fill vacancies which were in the share of the P.As cadre by promotion of Investigators. The Recruitment Rules provide for carry forward of vacancies to a future date. The provisions have not been followed in the instant case as by diversion of the vacancies from the P.As cadre to the Investigators cadre, these were filled up. An infraction of the relevant rules is clearly evident. The vacancies which arose in the relevant years could not have been filled from the Investigators. The question is whether these appointments came to be challenged by the P.As. The action of the ITPO in filling up fresh vacancies which arose in year 1995 by promotion of P.As alone is also not sustainable. It is notable here that in terms of the pronouncement of the Honble Supreme Court of India in case cited as Y.V. Rangaiah vs. J. Sreenivasa Rao (1983) 3 SCC 284, vacancies are required to be filled in terms of the provisions of the rules existing on the dates of vacancies. In the present case, the rules which existed on the relevant dates were inoperable on account of the non-availability of officers in the feeder grade.
16. At this stage, we also wish to refer to the decision of the Apex Court in the case of State of Punjab and others v. Dr. R.N. Bhatnagar and Another, (1990) 2 SCC 330. That was a case where the respondent was a Senior Lecturer in the Department of Ophthalmology in Government Medical College, Patiala. The question arose as to how the vacancy in the post of Professor of Ophthalmology was to be filled in on the retirement of one Dr. R. The relevant rule governing such posts was Rule 9(i)(d) of the Punjab Medical College Education Service (Class-I) Rules, 1978. The said rule reads as under :
(9) Method of Appointment :
(d) In the case of Professors :
(i) 75 percent posts by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the service of the Government of India, or the State Government;
(ii) 25 percent posts by direct recruitment;
According to the appellant-State, as there were five posts in the cadre of Professors of Ophthalmology in the said college, on the basis of the aforesaid quota rule governing the recruitment in question, every three vacancies of Professors in the said cadre had to be filled in by departmental promotees while the fourth vacancy would be filled in by direct recruitment and thereafter succeeding vacancies to be filled in by promotees and direct recruits in the successive cycles of 3:1. The case of the appellant-State was that in the cadre of Professors of Ophthalmology in the said college, right from the beginning when the erstwhile executive instructions on the same lines operated till the date of the falling of the vacancy in question, there were in all 15 Professors including the said Dr. R., who retired, as aforesaid, and, therefore, on his retirement the 16th vacancy arose. As per the appellant-State, on the operation of the quota rule and the roster cycles of 3:1, the 16th vacancy would be available to a direct recruit as under: 1st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to direct recruit, 9th, 10th and 1lth to promotees, 12th to direct recruit; 13th, 14th and 15th to promotees and the 16th to direct recruit.
Consequently, the said vacancy was advertised for being filled up by direct recruitment. That brought the respondent to the High Court by way of writ petition. His contention in the writ petition was that in the light of the Constitution Bench judgment of the Supreme Court in R.K. Sabharwal. v. State of Punjab, as there were total five posts in the cadre of Professors of Ophthalmology 75% thereof, namely, 3.75 posts had to be reserved for promotees and 1.25% of the remaining posts had to be reserved for direct recruits. Rounding up these figures by taking digits upto .50 as nil and beyond .50 as 1, four posts in the said cadre had to be filled in at a given point of time by promotees and one post had to be filled in by direct recruitment and as at the time when the vacancy arose by retirement of Dr. R., there was already one direct recruit holding the post of Professor, the vacancy in question had to go to the departmental promotee as he was the senior most Assistant Professor in the Department of Ophthalmology. His claim to be promoted to the said post should have been processed in accordance with law and the said post should not have been advertised for direct recruitment. This contention of the respondent was accepted by the Division Bench of the High Court. While dismissing the appeal on alternative ground, the Supreme Court disagreeing with the above reasoning of the High Court in para 9 & 11 held:
As per Article 16(4) which carves out a separate field for itself from the general sweep of Article 16(1) which guarantees equality of opportunity in matters of appointments in Govt. services to all citizens of India, the reservation for these categories in employment has to be achieved by earmarking requisite percentage of posts for the reserved category of candidates and by pitchforking these posts on roster points on requisite points roster and when such a roster takes a full cycle, posts earmarked on reserved points will enable the requisite reserved category of candidates to fill up these posts. After that is done, the roster would be treated to have achieved its purposes. Whenever a reserved candidate vacated a reserved post, the said post was liable to be filled only by a candidate belonging to the reserved category. If after the roster is first operated and thereafter it is again operated on future vacancies also, a situation may arise wherein a cadre may get reserved category exceeding permitted quota of reservation. It is to avoid this contingency that the Constitution Bench laid down in the aforesaid decision as indicated therein. So far as Rule 9 of the Rules in the present case is concerned, it has nothing to do with reservation of posts in the cadre of Professors. It is not a rule of reservation envisaged for a specified category of persons as permitted by Article 16(4) of the Constitution. On the contrary, it is a rule of recruitment from two different sources, namely, in case of Professor's cadre 75% of posts has to be filled in by promotion while 25% by direct recruitment. These two sources of recruitment permit departmental promotees and direct recruits from the open market to get absorbed in the cadre. They merely serve as two entry points for the cadre. Rule 9 deals with reservation of appointment to the posts of Professor and does not deal with reservation of posts of Professor for any special class or category of candidates. It is well-settled that once recruitment is made from two sources i.e. departmental promotees and direct recruitment from open market and once the concerned candidates enter into any cadre through entry point reserved for them, they get fused and blended into one single cadre and their birth marks get obliterated. This would be in consonance with the thrust of Article 16(1) of the Constitution of India. No question of exception to the said general thrust of the constitutional provision would survive as Article 16(4) would be out of picture in such a case. Consequently, the decision rendered by the Constitution Bench in R. K. Sabharwal's case (1995 AIR SCW 1371) (supra) in connection with Article 16(4) and the operation of roster for achieving the reservation of posts for SCs, STs and BCs as per the scheme of reservation cannot be pressed in service for the present scheme of Rule 9(1) is not as per Article 16(4) but is governed by the general sweep of Article 16(1).
When under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit. Consequently, learned Counsel for the appellant and learned Senior Counsel for the intervenor were right when they contended that the High Court in its impugned judgment had patently erred in invoking the ratio of decision of this Court in R. K. Sabharwal's case (1995 AIR SCW 1371) (supra) which was rendered in an entirely different context for resolving an entirely different controversy which did not arise on the facts of the present case. They were also right in contending that the ratio of the decision of this Court in Paramjit Singh's case (AIR 1979 SC 1073) (supra) read with the decision of this Court in the same case reported in (1982) 3 SCC 191 : (AIR 1983 SC 314) would get squarely attracted in the facts of the present case. Once that conclusion is reached, the result becomes obvious. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits.
17. Thus, from the ratio, as laid down by the Apex Court in the case of Dr. Bhatnagar (supra) it is clear that the quota rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. In other words, the quota rule prescribed for recruitment to a cadre co-relates to the vacancies to be filled at a particular point of time in terms of the mandate contained in Article 16 (1) of the Constitution of India and the quota cannot be co-related to overall cadre strength of the posts, as Article 16 (4) relates with reservation of posts, which cannot be made applicable while making recruitment/promotion in terms of Article 16 (1).
18. Thus, according to us, we see no infirmity in the action of the respondents, whereby the promotions granted to the petitioners vide order dated 7.6.1995 has been kept in abeyance. Accordingly, TA is dismissed and the interim stay granted by the High Court on 19.06.1995 shall stand vacated. Respondents may take follow up action in accordance with law. No costs.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.