Central Administrative Tribunal - Kolkata
S Ratnam vs A P W D on 18 September, 2019
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH, CIRCUIT AT PORT BLAIR O.A.NO. 351/ 16 36 /2017 IN THE MATTER OF:
An application under section 19 of the Central Administrative Tribunal Act, 1985.
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IN THE MATTER OP:
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S.Ratnam S/o Late S. Jagannathan, presently working as Junior Engineer (Civil), Construction Division No. 1, Andaman Public Works Department, Andaman & Nicobar Administration, Port Blair, R/o L-18, Link Road, Goal Ghar, Port Blair Tehsil, South Andaman District-744101.
Applicants
-Versus-
1. Union of India, Service through the Secretary, Ministry of i ?
Urban Development, Govt, of India, Shastri Bhavan, New \ Delhi-110001.
I 2. The Lt. Governor (Administrator), Andaman 8s Nicobar Islands, Raj Niwas, Port Blair-744101.
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% 3. The Chief Secretary, Andaman 8s Nicobar Administration, t $ Secretariat Building, Port Blair-744101.
-# 4. The Secretary (APWD), Andaman & Nicobar Administration, f 31 Secretariat Building, Port Blair-744101. Ii 5. The Chief Engineer, Andaman Public works Department, ft Nirman Bhawan, Port Blair-744101 3 & £4 Respondents v| % Ir:;
k I a ; ■ & t 1 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA No.O A.35J/1636/2017 Date of order:
Coram : Hon'ble Mrs. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member S. RATNAM VS.
UNION OF INDIA & OTHERS
(A.P.W.D.)
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For the applicant ■?-s
For the respondeiw* : Mr-.R^Balder, counse
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Bidisha ^^riee, Jiidicial M^rnber y ^ ; Thgpplicant^gpir^fg^^^^^lhe V postpSA ssistant * i T/ gN)_has.soupbljontft^dl^^g^li§fs:-
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'%) An oitie&beytaBtdKdirecting the respqntfentfauthprity to consider the cose, of %h€j6ppiicdn(jor the CDC promotion to^fyk lost Jf Assistant Engmeerfavjlfffotn the dbtejiis juniorjiave been fjrahtea CD($romotion to the poslof Assistant EhgineerfCivii); „ ^ ^ ^ ' -^uTi ' Bj^Anysuctbgrder/orders-be-pbssed-and-or^dire'ctionjor-directionsJye.given as this Hon'ble thbunahnayxieeTn<fiPanS"pfope^^ C) Cost and incidentals to tiTisvpplication.
2. The grievance of the applicant is as under:-
On the recommendations of a Selection Committee, applicant holding a diploma in Civil Engineering was appointed to the post of Junior Engineer in the scale of pay of Rs.1400-40- 1800-EB-50-2300 vide Office Memorandum dated 04.12.1989 in the establishment of the Andaman Public Works Department and joined service as Junior Engineer with effect from 11.12.1989.2
The Andaman & Nicobar Administration nominated and recommended the applicant against the reserve seat in B.E.(Lateral) Course for diploma holder for the session 2005-2006 to the Principal, V.R. Siddhartha College of Engineering, Vijya Wada and vide Office Order No.829 dated 19.09.2005 respondent authority granted study leave for 12 months for joining the course. During 2005-2006, he could not be admitted due to delay in seeking admission and. as a result he was \fvi sr ra/.\ admitted durin^the session 2006-200/,£nd completed three ,■ *J>V © \ yeafs~de£fee c^^^^^Apri| 20J^^^^^s awa^l|a^egree of J&chlteT-of U^|rs|y.' The • Rufes
-d of 08.1266Q6ff$uJa|^pt^fe^eth^p)f I S recruittrlntio ^ 1 the d jT / f f Qi | ost^bf Executive^Engineer(pi\4J) &^ssistant Engineer(Civil) at \ ter*"**.
lumn/ll* fiCT2^ for promotion 4>cost of Assistant \ s E n gihe la e rjch/i l)^v h i ch^Tead s:a s,u n d ef^ ^ A A
11. Method^of reeruitrnent, whetherw *^*l.£Sh/o by promotion by direct'^recruitment or by ^^Mrailing which by promotion Deputation including \ deputation/absorption and short term contract.
percentage of the post to be filled 2. 15% by direct by various methods recruitment.
12. In' case -of. -recruitment by Promotion (Out of 85% promotion/deputation/absorption, promotion auotal grade from which promotion/deputation/transfer to (a) 10% by Junior be made Engineer(Civil){Non Diploma) with 15 years regular service in the grade and possessing 2 years III Certificate of Draftsmanship and Surveyor.
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3•Vv.. ^ Note : The promotion quota for Non-Dipioma Junior Engineer(Civil) is applicable only for those who are matriculate and III certificate holder and holding the post of Junior Engineer(Civil) on regular basis on the date of the notification of the A&N Administration PWD Group 'B' posts of assistant engineer(Civil) Recruitment (Amendment) Rules.
(b)(i) 45% by Junior Engineer(Civil) in the scale of Rs.5000-8000 and holding diploma in Civil Engineering .with ten,:years regular service in C ¥/]de:X.
(ii) 45% ^|luni^Digineer(Civil) |n the scale of Rs.5000-8000 r Jn& holding^^gree in Civil / if ^ngfigering six years I ^rteguiar^service ipethtl grade.
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•-Notea^A/here jumor who have mm, ^completed their ^aualiSing/eligibility4en^te are !\ considered I for miomotion. their*seniorf would ^flso .be considered Provided thev^ap^not short# of the fequisIte.'V q^alifvin^eligibilitv s^fvice M^t^hiore ti^an half of such Vbrvief or^two vears t \w'fiicheverP is ^less. and have successfully^rcompleted their
-probatiorf'period to the next jjnadtfalong with their juniors who have completed such i qualifying/eligibility service.
Thus the entire scheme of Rules makes dear-
fa) That out of 85% promotion quota, the 10% is fixed for non r diploma, 45% fordiploma-and 45% for degree holder or in ii
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4other words quota is fixed for each category of Junior Engineer(Civil).
(b)That to be eligible forpromotion in 45% quota reserved for diploma holder out of total 85% quota reserved for promotion, a Junior Engineer(Civil) apart from diploma in Civil Engineering, such diploma holder should have 10 years ! regular service in the grade and for a degree holder Junior Engineer, the degree^should be ac'coirypanied with 6 years ifl'fSif ^ % regular-serfcice% the grade to Hgtole fbr^promotion in O ,45% quota Teseg^^Sl gree^ifo!^r out ofJgtari85% quota 0 /x / rd^rved byOTomotion.% I # ! / C „ zc8 jagmasynloritjpst % Non f(c{^^ponde^E&SS fi c i. 'I I □ as <gjfeloma, d^oma^ndflil^^^lfer^ |(d)"N6te in the^le^pmvide for Hi i ^i|raeration of s^FFtorf when ( i the case. of^JhiVs are considered^f^ftprombtion subject to \fulfillment •'bf .th^eJig[bll|ty^slrvice Jy'.'SyJ / Vndyothef condition 'V ■<>
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stipulated therein.
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The applicant's'representation, dated 29.01.2013 requesting for grant \
of Current Duty Charge(CDC) promotion to the-post-of Assistant Engineer(Civil) was rejected on 11.03.2013 stating that "os on date as per i the-roster-adopted in last DPC no junior Engineers(Civil) possessing degree in Civil K Engineering-junior to you have been -given CDC promotion to the post~of Assistant EngfneerfCfW/J.*(Annexure A/6). Being-dissatisfied with the rejection he preferred further-representation-dated 18.04.2013 indicating therein H r l! I li .//
-iM V ■ mt // 5 fi ■/ f h.ms J those Junior Engineers possessing degree in Civil Engineering, junior to him at serial No.64, 65, 66 and 68 have granted CDC promotion ignoring the applicant at serial no.45 in the seniority list of Junior Engineer(Civil) as on 01.01.2012. Till date the respondent authorities are sitting tight over the matter.
A combined seniority list of Junior Engineer(Civil) APWD as on 01.08.2014 was published in which the name of the applicant figured at serial No.31. Having acqu|jedi|l|^e|r|B^hiel;or of^chnology in April 2009 and having-|b^^ed 6 years of regula^sIf^Gfir^he grade on ■*mw!3k April 2015^ he was iMiy ^eiigii5l|^f( luty^Ch algeHGDG) W'% 111' '*a I r^jiu^fa r ^eg1%eVlfofdl }^e 4i promotion against but the|T^ppodents 4m. SBgR 7 B.. . ., ; L_. .l_ I r r, without ^siderlrOTT^pap^Mbwiapresteijiation, granted CDC i I m promptiOTto degree^i^ej4umorEngin'e^sTTCjn serial npyj8,69, 82, ^ I 1. 1 W w// i ; 83 an|95-who^^u^fe|^w^l^he^pto^figured serial no.31 in\the ^piori^li^^s on 01.08.2014^JHfe application seeking inf^tnatron but irprespect of appjlcatlbn sought at^erial no.(iii) V V" '^3 ^ the respondent atithoritv^info.rmed thatJ;he^foster^Operated for giving promotion is not available- Aggrieved and dissatisfied due to the arbitrary and unreasonable acts of commission and omission of the f respondent authority he has come up with this O.A.
3. The respondents have by way of reply averred as under:-
That "applicant cannot claim promotion as a matter of right.
Furthermore, he does not fulfil the criteria for consideration for 6 the post of promotion including CDC promotion to the post of Assistant Engineer(Civil)".
That "as-per foot note of Recruitment Rule, which is reproduced below:-
"Where Junior who have completed their qualifying/eligibility service are being considered for promotion, their senior would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years whichever is less, and have successfully completed thejr$robation-perjpd for promotion to the next higher grnde^bn^wli) fhejrjufiio&who Ifaye already completed such qudifjying/eligibility service." ' As perfftisHoot not^^SilFBi% of Diproma 'holder who / 1 \ I I y* \ subse^fently ad^iiree^rielwIil^j^bSibw:-
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. Date of ac-quirJng3^f^S£liglmty£semieejM2 of eligi&ijfty s 'ice or
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J/n this casek^wijfbe ^Da^e\f^^^iring degre$*6*2=fj>ate of 1 acquiring'+OSy&arjiy! I a\* Per the^applicant ffim^rfete'd 3.egree^in April, \i!i x ^v>y / 2009^,Hehce Hfs eligibilily"for*degFee=Aprii)2009+08S\pril, 2017.
p/t '•'Zs / However, ha is cbvered withimthe prppt«al fpFfDromotion under .......
Diploma category a Iso [
And "that a proposal for 14 posts of promotion to the post of Assistant
Engineer(Civil) ■ on CDC basis is sent. to ..Administration- vide No.B-
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3/CC/CE/APWD/2017/1112 dated 19/12/2017 and the proposal is approved by the competent-authority. In the said proposal the applicant's name is also 4 !■ considered as Assistant Engineer(Civil) on CDC basis under Diploma category.
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Their promotion and posting orderto be issued by the competent authority if shortly^ / t h.
/ 7 It is evident that the respondents have cleverly refrained from addressing the grievance of the applicant as contained in his latest representation enumerated supra, that having completed 6 years of regular service in the grade on April 2015 he was fully eligible for CDC promotion against the degree holder quota, yet the respondents without considering his case and his representations granted CDC promotion to such degree holder Junior Engineers who were junior to the applicant, as they figure at^ertal^nos.68,69,-82,83 and 95 while the ■ ■ s' 9 saw.
% iir ■■n applicant figures ats^vamo.Bl in the seniofityiisl^as orf^^.08.2014.
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4 vy|Y^of writte^te^ t|e|a^pton|t^reagitafFd as^under:-
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f'AjSegree hoger^lunrOrJpg^^™0ly5>6^y^rs regular selyice in !»s?e I thlwsgrade isfeligibif^^R^n^ioh^ojtfe post ©f*Assistant Engifreer. The R^cruTtmenfRules stip^laKsthefollov^ilTg:-
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sei^cerfolQi&tfeiCOnsidefed for prom<rtforffiheir$eniors would also i
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^tjsidel^dfprovided they are%Rm s*^. \ qua!ifym$fe(igimity^ service by-^rnore^fhan^ half of such ^^uanfy,ing/eligiWity semce^twgj/e^s whi^fver i^less, and have successfully compleledithefr pKp%d$on perido for^romotion to the : next^highergrade alongwith their juniorwho hatfe already completed such qu^lifying/el^ii^lity^rvide.'"^ The 'applicant is aggrieved asTiTtRe^final seniority list his name is at ! serial No.31 while the candidates appearing at serial No.68 & 69 have i >, i; been granted Current Duty Charge of the post of Assistant Engineer ii ■ f vide orderdated 23rd August 2016(Annexure A-10, Page 55 of the O.A.).
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The applicant has* been denied such posting on the ground that he is !' not eligible, and would become only eligible in April 2017 which is far j l u ( f4 S! ■% SL •-
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5. According to the respondents, the eligibility ought to be reckoned as under:-
Date of acquiring degree+Eligibility service+1/2 of eligibility service or 02 years whichever is less.
In this case it will be =Date of acquiring degree+6+2=Date of acquiring degree+08 years, i.e. in 2017.
6. According to the applicant^hfe ?obtaineci^B.E. degree in April, 2009, so on April 2013-fie was short of the reqtnslfee^ualif^ing/eligibility /.
service by two years and|he wasveligible to%%considere^^fbr promotion / from Aprif^^.3. Whth ' Jjh % ** F flu ^jgjurKOfvapfpealing in ^ior% list at I V & § y&gg# serial|no^&&.& 69 w^e^bein f?r ^re,| DutV i i Charge ol&ie post o8AssfstarfM|Sr^r^wi!)^^d of hirrvhe ought to ^ ^ \ ® ^V i hU1 - & i I b. e,Sj,.d EbgW,, «, ;• f he, by that tin^^d^lrea|ly completed OG^^p^^allfyir^p^'gibility service prescribed under>the rafes^foTtlegree holde^ Therefore, the X^v':f^m °X> applicant prayed^tbat fhe.j^espondent authofity be^oirected to grant current duty charge of the ^?t^#A^tisfantEngineer(Civil) with effect from 23rd August, 2017, the date from which applicant's juniors were granted such postings.
7. Per contra the respondents have reiterated that the applicant Shri S. Ratnam became eligible only during April 2017, as such, his claim by way of his Representation dated 21/07/2015, which is the foundation for the instant O.A. is devoid of any merit. The respondents 'j i lVi fc' fy-9
have emphatically admitted that when the earlier promotion order granting CDC-to the post of Assistant Engineer was issued on 23/08/2016, Shri S. Ratnam was not fulfilling the requisite qualifying service after-acquiring Degree in Engineering. Therefore, his case was not considered during August 2016. In the subsequent promotion in 2017 since he was qualifying in both the categories his case was considered and given the CDC by an order dated 08.02.2018. They would further submit that the^preyiQurpropbsai for grant of CDC was : ■% initiated on 05il 2%20|pM'Annexure R-l) subject ^to the^jondition that _such-promotio^^Irried^^^^S^^^p^a^p n on gran|Sof% DC to the
- - post'of4ssfent-En^^^CM)|^^^^^^^^Jf the inG^iblms can claim/anfr^ht-t® onrthe blsis of c such fCDGfJI ^ W 3fla iI ' I ! /
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9. The discernible fa
(0 The RecruitmenfHlules clearlvLJwitlTOUt•. any ambiguity or
ambivalence^ mandates that-"o.degree ho/der Junior Engineer with 6 years regular-service' in the grade is eligible for-promotion- to the post of Assistant Engineer."
00 The applicant irrefutably and indubitably acquired degree in . April,,2009 and in terms of Recruitment Rules he-eminently acquired eligibility for promotion to Assistant Engineer in April 09+6=Aprir 15 ■ f 10 fl
(iii) It Is evident that his juniors have been given CDC in August 2016 i.e. after he acquired such eligibility for'promotion. His case was deliberately orunder a misconception, overlooked.
(iv) His case has been erroneously turned down on the ground that in terms of note in Recruitment Rules, he would acquire eligibility only in : 2017 which demonstrated'an-arbitrary and malafide exercise of power by thexompetentrespondent authority.
10. We are disma^d^^lw, the^respon3e|h^could whittle down a straight' forward ^im intojpmf^ecruitmentQuI ^A . ^ I* X es feand take a circuitous- r^ute of cogputing^eligibilityin tem^f Notej6(supb) which co m eftogid t h e se rm a I Idle rili. ! | C' ■ 1
11. |Th^pplicant#toih^^TOW^te^u^h 2016, w«felldW the O.A. Iar^2lirect"the '^thoritiei JtA eith^^^tably ante^orate his grievarfce by pirfiml^h'rnijti CDt of^r^with^is-jmtiior^pr grant regular \ x.aV 7 •promotiorkas-oegfdfe5- holder^o^-as 'diplpmfa,holdlr; \yftichever can be provided- ^
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12. Appropriate'orders be isstrethw 2 months. No costs.
(Dr. Nandita Chatterjee) (Bidisha BanerjeeT Administrative Member Judicial Member sb ir-
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