Central Administrative Tribunal - Ernakulam
Sunny Joseph vs Union Of India on 22 September, 2011
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 718 of 2010
Thursday, this the 22nd day of September, 2011
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
Sunny Joseph, aged 46 years, Senior Engineering Assistant,
Doordarshan Kendra, Thiruvananthapuram-43,
Residing at Kalliyadickal House, H. No. K.P.1/774(1),
Madankovil Lane, Muttada P.O.,
Thiruvananthapuram-25. ..... Applicant
(By Advocate - Mr. M.P. Krishnan Nair)
V e r s u s
1. Union of India, rep. by The Secretary,
Ministry of Information & Broadcasting,
Government of India, New Delhi.
2. The Chief Executive Officer,
Prasar Bharati (Broadcasting Corporation of India),
Prasar Bharati Secretariat, PTI Building,
Sansad Marg, New Delhi - 110 001.
3. The Directorate General, All India Radio,
Akashvani Bhavan, Sansad Marg, New Delhi-110 001.
4. The Directorate General of Doordarshan,
Doordarshan Bhavan, Coppernicus Marg, New Delhi-110 001.
5. The Chief Engineer, Prasar Bharati (Broadcasting Corporation of
India), Office of the Chief Engineer (SZ), All India Radio &
Television, Swami Sivananda Salai, Chennai-600 005.
6. The Superintendenting Engineer, Doordarshan Kendra,
Thiruvananthapuram-43. ..... Respondents
[By Advocates - Mr. Sunil Jacob Jose, SCGSC (R1, 2 & 5) &
Mr. N.N. Sugunapalan (Sr.) with
Mr. S. Sujin (R4&6)]
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This application having been heard on 15.09.2011, the Tribunal on
22.09.11 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member -
This is the 3rd round of litigation. After 19 years of service as Engineering Assistant in the Doordarshan Kendra, Thiruvanathapuram, the applicant was promoted as Senior Engineering Assistant on 24.12.2008 and posted at Bangalore. He had represented to the 5th respondent on 23.04.2008 highlighting the pathetic condition of his family to retain him at Trivandrum at least for two years consequent upon promotion as Senior Engineering Assistant. But he was posted at Bangalore on promotion. His wife is working at State Bank of India, Mulavukadu Branch, Ernakulam. She stays away from home in a working women hostel, Ernakulam. Therefore, he has the entire responsibility of looking after his two children. His younger son is suffering from acute cerebral palsy and is under treatment in the Government Medical College Hospital, Trivandrum. As per DOP&T O.M. No. AB14017/41/90- Estt.(RR) dated 15.02.1991, an employee parent of a mentally retarded child can be given posting at a place of his choice on the ground that the facilities of medical aid and education of such children are not available every where and looking after such children does require special care and patience and is expensive. O.A. No. 763/2008 filed by the applicant was disposed of vide order dated 30.12.2008 with a direction to the Director General of Doordarshan to pass a speaking order on the representation of the applicant and till then he 3 may not be compelled to join Doordarshan Kendra, Bangalore. His place of posting was modified as Trivandrum vide order dated 15.01.2009. The representation of the applicant dated 16.01.2009 for treating his promotion as Senior Engineering Assistant, Trivandrum, with effect from 24.12.2008 was rejected vide order dated 23.01.2009 on the ground that the revised order was issued only on 15.01.2009 and required him to submit his joining report with effect from 16.01.2009. Accordingly, he submitted his joining report with effect from 16.01.2009 vide letter dated 28.01.2009. He filed another representation on 10.02.2009 for making his posting at Trivandrum as Senior Engineering Assistant with effect from 24.12.2008. Later, he filed O.A. No. 815/2009 seeking a declaration that he was promoted to the post of Senior Engineering Assistant with effect from 24.12.2008 or at least with effect from 30.12.2008, i.e. the date of order of this Tribunal in O.A. No. 763/2008 and to get all service benefits including the right to appear for the Departmental Competitive Examination for the post of Assistant Engineer to be held in 2010 against the vacancies for the year 2009-10. The O.A was disposed of on 10.12.2009 with a direction to the Chief Engineer, Prasar Bharati (Broadcasting Corporation of India), Chennai, to dispose of the representation of the applicant dated 10.02.2009 by a reasoned speaking order within a period of 2 months. The operative portion of the order is reproduced as under :
"5 In our considered opinion by delaying the matter further, the interim relief sought for by the applicant will get frustrated and the OA itself will become infructuous. We have, therefore, considered the entire issue. In our view, the ends of justice will be met if the 5th respondent 4 may consider the Annexure A-11 representation of the applicant dated 10.2.2009 and to dispose of it by a reasoned and speaking order within a period of two months. Meanwhile, if the departmental examination for the post of Assistant Engineer takes place, the applicant shall be provisionally allowed to appear for the same subject to the outcome of the decision of the Competent Authority on Annexure A-11 representation.
6 With the aforesaid direction, the OA is disposed of. There shall be no orders as to costs."
Consequently, the order dated 04.08.2010 at Annexure A-15 was issued rejecting his request. Challenging the said order, , this O.A. has been filed for the following reliefs:
(a) To call for the entire records leading to the issuance of Annexure A-5 stating that applicant's promotion cannot be given effect to from 24.12.2008 but only from 16.01.2009 and quash the same and all actions pursuant thereto;
(b) To declare that applicant is entitled to get promotion as Senior Engineering Assistant with effect from 24.12.2008 or at least from the order dated 30.12.08 in O.A. No. 763/08 of this Hon'ble Tribunal and to get all service benefits and right to appear for the Departmental Competitive Examination for the promotion of Senior Engineering Assistant to the grade of Assistant Engineer to be held in the year 2010 for vacancies of 2009-10.
(c) Pass any other appropriate order or orders, directions which are deemed just and necessary in the facts and circumstances of the case.
2. By order dated 08.09.2010 an interim order was granted to the applicant permitting him to appear in the examination with a rider that the result of the examination should not be published until further orders from this Tribunal. 5
3. The applicant contended that the duties of the Engineering Assistant and the Senior Engineering Assistant are one and the same as per clause 4.2.45 of the Doordarshan Manual (Volume I, Part I and II - B Engg. Wing). The applicant had as early as 23.04.2008 made a representation to th 5th respondent highlighting his difficulties in case he is transferred on promotion to some other station taking into consideration the difficulties of the applicant due to ailment of his child. His representation to treat him as promoted to the post of Senior Engineering Assistant from 24.12.2008 was rejected even though the same will not adversely affect anybody in the department. In case his promotion is not given effect to from 24.12.2008, he will be loosing one full year and just not 24 days and he will get a chance for appearing in the examination as Assistant Engineer only in 2011. Although he has 20 years of regular service as Senior Engineering Assistant as he was permitted by the 5th respondent to join the said post only on 16.01.2009, he became ineligible for taking part of the Limited Departmental Competitive Examination (LDCE) against the vacancies of Assistant Engineer arising in 2009-10. With effect from 01.01.2006, the pay scales and grade pay of Engineering Assistant and Senior Engineer Assistant are merged into the pay band of Rs. 9300-34800 with grade pay of Rs. 4600/-.
4. The respondents contested the O.A. In their reply statement, they submitted that any relaxation to one person for promotion will amount to 6 favouritism and malefic action. Had the applicant joined on promotion as Senior Engineering Assistant before 31.12.2008, he would have completed the required years of regular service and would have been eligible to appear in the LDCE under the 75% quota for promotion to the Assistant Engineer grade. The Doordarshan Manual mentions only the primary responsibilities which are common to both, the Engineering Assistant and the Senior Engineering Assistant, and does not cover the entire responsibilities of the cadres. The duties and responsibilities of the Engineering Assistant and the Senior Engineering Assistant are not the same. Separate DPCs are held for promotion from these posts. As per the Recruitment Rules, Senior Engineering Assistant with 8 years of regular service in the Senior Engineering Assistant and Engineering Assistant together, as on 1st January of the year in which the examination is held, shall be eligible to participate in the LDCE for promotion from Senior Engineering Assistant to Assistant Engineer grade. As the applicant has not completed 8 years combined regular service in the grade of Senior Engineering Assistant/Engineering Assistant as on 01.01.2009, he is not eligible to appear for the aforesaid examination. He will be considered for the post of Senior Engineering Assistant with effect from 16.01.2009, i.e., the date of his joining. Had he joined as Senior Engineering Assistant before 31.12.2008, he would have been eligible to appear in the examination. In compliance of the direction of this Tribunal in O.A. No. 875/2009, a speaking order has been issued by the 5th respondent on 04.08.2010 after thoroughly examining his representation.
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5. We have heard Mr. M.P. Krishnan Nair, learned counsel for the applicant, Mr. Sunil Jacob Jose, learned SCGSC for respondents 1, 2 and 5 and Mr. N.N. Sugunapalan (Sr.) with Mr. S. Sujin, learned counsel for respondents 4 and 6 and perused the records.
6. As per Annexure A-15 order, the representation of the applicant to consider his promotion as Senior Engineering Assistant with effect from 24.12.2008 instead of his actual date of joining as Senior Engineering Assistant on 16.01.2009 was rejected on the ground that it is against the rules. The said order is reproduced as under :
"PRASAR BHARATI BROADCASTING CORPORATION OF INDIA OFFICE OF THE CCHIEF ENGINEER (SOUTH ZONE) ALL INDIA RADIO & DOORDARSHAN Swamy Sivananda Sdalai, Chennai : 600 005 No.CESZ/3(2)/Transfer/2010/2087 Date : 04.08.10 With ref. to CAT, ERNAKLAM BENCH order on O.A. No. 815/2009 dtd. 10.12.2009, this is to inform Sh. Sunny Joseph, S.E.A that his request vide representation dated 10.02.2009 (Annexure A-11 in the said O.A.) and 26.12.2009 to consider his promotion as S.E.A w.e.f 24.12.08 instead of his actual date of joining as S.E.A. i.e., 16.01.2009 have been examined, but could not be acceded to as it is against the rules.
The duties and responsibilities are are different for E.A and S.E.A and separate D.P.Cs are held for promotion Doordarshan Manual mentions only the primary responsibilities which are common to both the cadres and does not cover the entire responsibility of the cadres.
Any relaxation to an individual will amount to favouritism and malefic action. If he had joined on promotion as S.E.A before 8 31.12.2008, he would have completed the required years of regular service and would have been eligible to appear in the Limited Departmental Competitive Exam under 75% quota for the promotion to A.E grade.
Hence, his date of joining as S.E.A at D.D.K,
Thiruvananthapuram is 16.01.2009.
Sd/-
(T.S. Thyagarajan)
Dy. Director (Engg)
For Chief Engineer (SZ)
Mr. Sunny Joseph
Senior Engg. Asst.
Doordarshan Kendra
Thiruvananthapuram : 695 043
Kerala"
(emphasis supplied)
The order does not specify the rules which stand in the way of granting relaxation to the applicant.
7. The 5th respondent has treated 16.01.2009 as actual date of joining of the applicant as Senior Engineering Assistant. The order of promotion dated 24.12.2008 posting him to Bangalore was modified as posting to Trivandrum vide order dated 15.01.2009. While rejecting his representation dated 16.01.2009 for treating his promotion to take effect from 24.12.2008, he was permitted to join the post of Senior Engineering Assistant with effect from 16.01.2009 vide letter dated 23.01.2009. The joining report with effect from 16.01.2009 was actually dated 28.01.2009. The applicant could not have worked as Senior Engineering Assistant till 28.01.2009, yet as per averment by the respondents, he is treated as having joined the post of Senior Engineering 9 Assistant on 16.11.2009. For 13 days from 16th to 28th January, 2009, the respondents have treated the applicant as Senior Engineering Assistant even though he gave his joining report on 28.01.2009. The respondents have allowed antedating the joining of the applicant as Senior Engineering Assistant on 16.01.2009 vide letter dated 23.01.2009. If so, there is no valid ground not to extend the antedating further back to 24.12.2008 as requested by the applicant. Not extending the pre-dating of joining as Senior Engineering Assistant to 24.12.2008 because it would make the applicant eligible to appear in the LDCE for Assistant Engineer against the vacancies for the year 2009-10, is arbitrary and therefore, illegal.
8. Further, the applicant had represented on 23.04.2008, eight months prior to the order of promotion, to retain him on promotion at Trivandrum on the ground of having a handicapped child to be looked after only by him giving him the benefit of Office Memorandum dated 15.02.1991 issued by the DOP&T. The relevant part of the said O.M. is reproduced as under:
"The undersigned is directed to say that there has been a demand that an employed parent of a mentally retarded child should be given posting at a place of his / her choice. This demand has been made of the plea that facilities of medical aid and education of such children are not available everywhere. Also looking after such children does require special care and patient and is expensive. Hence some concessions from the Government at least in matters of posting at a place of choice is called for.
The matter has been examined. Considering that the facilities for medical help and education of the mentally retarded children may not be available at all stations, a choice in the place of posting is likely to be some help to the 10 parents in taking case of such a child. While administratively it may not be possible in all cases to ensure posting of such an employee at a place of his/her choice, Ministries/Departments are requested to take a sympathetic view on the merits of each case and accommodate such requests for posting to the extent possible."
Non consideration of the request of the applicant to retain him at Doordarshan Kendra, Trivandrum, is quite insensitive and against the spirit of O.M. dated 15.02.1991. True, the respondents have modified the order of posting on 15.01.2009. It is not clear from the order whether they acted in compliance with the order of this Tribunal to consider his representation to retain him at Trivandrum or not. The delay in considering the representation of the applicant in the light of the O.M. dated 15.02.1991 is solely attributable to the respondents. The delay on the part of the respondents cannot be permitted to recoil on the applicant in the form of ineligibility for appearing in the LDCE for the post of Assistant Engineer in 2010 against the vacancies arise in 2009- 10, as per the ratio of the decision of the Apex Court in Bhoop vs. Matadin Bharadwaj, 1991 (2) SCC 128. In the above case, the Apex Court has held that "The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants". It should be remembered that there were 2 posts of Senior Engineering Assistant lying vacant at Trivandrum when the applicant was posted to Bangalore. It is stated in the impugned order that any relaxation to an individual will amount to favouritism and malefic action. Again, in the reply statement, it has been stated by the respondents that any relaxation to the applicant will amount to favouritism and malefic action and 11 may be an injustice to the similarly placed persons in the past. It would mean that if no relaxation was given in the past, it can never be given. This amounts to perpetuation of injustice. If justice was not given to a similarly placed person in the past, it cannot be a reason to deny relaxation to the applicant in this case if there are justifiable grounds to do so. The relaxation in the form of ante-dating the promotion of the applicant as Senior Engineering Assistant for the purpose making him eligible to appear in the LDCE for promotion to the post of Assistant Engineer in the year 2010 against vacancies of 2009-10 is not likely to adversely affect any other employee or cause financial burden. Not doing so would cause irreparable loss and injury to the applicant. The need for the above relaxation has arisen only because of the delay caused by the respondents in deciding the representation of the applicant for his retention at Trivandrum in the light of the O.M. dated 15.02.1991.
9. For the above reasons, we find that the impugned order at Annexure A-15 is untenable and liable to be quashed. The ends of justice would be met if the applicant is deemed to have joined the post of Senior Engineering Assistant with effect from 24.12.2008 and if the applicant is allowed to appear in the examination for promotion as Assistant Engineer for the year 2010 against the vacancies for the year 2009-10. The period of service as Senior Engineering Assistant from 24.12.2008 to 15.01.2009 will be purely notional and only for the purpose of granting eligibility to appear for the examination in 2010 for promotion as Assistant Engineer. The applicant will be eligible to 12 have his seniority as Senior Engineering Assistant from 16.01.2009 only. The interim order dated 08.09.2010 permitting the applicant to appear for the examination is made absolute. The respondents are directed to publish the result of the examination in regard to the applicant and to take appropriate action within 2 months from the date of receipt of a copy of this order. Ordered accordingly.
10. The O.A is allowed to the extent indicated above with no order as to costs.
(Dated, the 22nd September, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.