Central Administrative Tribunal - Delhi
Gurdeep Singh vs M/O Defence on 13 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1568/2014
Reserved on: 21.08.2018
Pronounced on: 13.09.2018
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Gurdeep Singh
S/o Late S. Gurbachan Singh
DPA „B‟ (Retd.), AFHQ,
B-39, Paryavaran Complex,
1st Floor, IGNOU Road,
New Delhi-110030.
-Applicant
(By Advocate: Shri Inderjeet Singh)
Versus
1. Union of India- through
Secretary, Ministry of Defence,
South Block, New Delhi-110011
2. Joint Secretary (Training) &
Chief Administrative Officer,
Ministry of Defence,
C-II Hutments, New Delhi.
-Respondents
(By Advocate: Shri Rajinder Nischal)
ORDER
By Hon'ble Mr. A.K. Bishnoi, Member (A):
The present Original Application (OA) has been filed by the applicant, seeking the following reliefs:-
"(1) Quash and set aside the impugned order dated 14.09.2011, rejecting the genuine claim of the applicant for promotion to the post of Programmer and further to Deputy Director from the due date when his similarly placed colleagues/employees in the EDP cadre stood promoted to the said post;2 O.A. No.1568/2014
(2) Direct the respondents to consider the claim of the applicant for the post of Programmer in the EDP cadre of the organization vis-a-vis other similarly placed colleagues/employees working in the organization with all consequential benefits including computation of pension and pensionary benefits in the higher post;
(3) Direct respondents to make payment of the arrears accruable to the applicant along with 12 per cent interest per annum from the due date till the date of actual payment;
(4) Direct respondents to pay the costs of this uncalled for litigation;
(5) Pass such further or other order(s) in favour of the applicant as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case".
2. Briefly the facts of the case, as stated by the applicant, are that the applicant was initially appointed as Junior Computer on 26.03.1962 with the 2nd respondent. Thereafter he earned his regular promotions as Senior Computer on 26.03.1975 and Statistical Assistant (SA)/Data Entry Operator (DEO) „D‟ on 08.06.1989.
2.1 Based on the recommendations of the IV Central Pay Commission (CPC) a Committee, viz. Seshadri was constituted by the Department of Personnel & Training (DoPT) for Electronic Data Processing (EDP) cadre for grant of separate revised pay scales. In 1991, the said Committee submitted its report to DoPT for implementation of revised pay scale to the EDP cadre. Thereafter, respondents issued letter dated 06.12.1994, delineating the pay scales for EDP posts based on the report of the said Committee. 3 O.A. No.1568/2014 2.2 In the event of non-implementation of the revised pay scale to the EDP staff, as recommended by the Seshadri Committee, the applicant along with Shri Jaspal Singh and others belonging to categories of EDP staff approached the Tribunal for redressal of their grievance in OA No.1520/1997, which was reflected in the subsequent OA No.1462/2007.
2.3 The Tribunal disposed of OA-1462/2007 vide its order dated 20.10.2008, directing the respondents to implement the scale of SA/DEO „D‟ (Rs.2000-3200) from June, 1989 and Rs.6500-10500 w.e.f. 1.1.1996 (V CPC). It is pointed out by the applicant that the respondents took two years to make payment of all dues as per the above order of the Tribunal dated 20.10.2008.
2.4 It is the grievance of the applicant that he was working as Senior Computer in 1986 when the IV CPC recommendations came into being w.e.f. 1.1.1986. However, he was made to work on ad hoc basis as SA w.e.f. 8.6.1986 to 7.6.1989 and thereafter he was regularly promoted as SA w.e.f. 8.6.1989. Relying on the Ministry of Defence letter dated 6.12.1994 applicant should have been re- designated as Data Processing Assistant (DPA) Grade „B‟ in the scale of Rs.2000-3200 or alternatively in the pay scale of Rs.1600- 2600 w.e.f. 1.1.1986, i.e., DPA Grade „A‟ and in the pay scale of Rs.2000-3200 and DPA Grade „B‟ w.e.f. 8.6.1989, without insisting 4 O.A. No.1568/2014 on the educational qualification, as this part had already been decided by the Tribunal and Hon‟ble High Court of Delhi in a number of cases, holding that the higher qualifications required are for new entrants in the EDP cadre and not applicable to those who are already in service.
2.5 Denial of placement of applicant, re-designating him as DPA grade „B‟ in the pay scale of Rs.2000-3200 w.e.f. 1.1.1986 resulted in miscarriage of justice thus denying him the post of Programmer while the similarly placed colleagues were promoted to the said post. In this connection, the applicant made a number of representations to the respondents but to no avail. 2.6 As per record and in accordance with PE of ADG system, 15 vacancies of Statistical Investigator (SI)/DPA „B‟ Programme Assistant were kept in abeyance and remained unfilled upto 06.12.1994 without any valid reasons, whereas panels are being drawn on year to year basis for Ministerial staff. In the case of EDP cadre no regular panels on yearly basis were drawn which is in total disregard and violation of the extant instructions/guidelines on the subject.
2.7 It is further stated that 04 more vacancies were caused due to retirement of four persons, which made the total number of vacancies to 19 that remained to be filled up as per the seniority list 5 O.A. No.1568/2014 in which the applicant‟s name stood at serial no.18, as per the averments made by the respondents in their Counter-Affidavit in MA Nos.1832 and 1833 of 2005.
2.8 It is stated by the applicant that denial of promotion to the post of Programmer from the year 1995 as per the record and as per the Gradation List, has resulted in miscarriage of justice against which he has filed various representations to the authorities but no action has been taken thereon.
2.9 Left with no alternative, the applicant has filed the present OA, praying for the reliefs as indicated in para-1 supra.
3. In support of the reliefs claimed, the applicant has pleaded the following main grounds:
3.1 Denial of promotion to the post of Programmer from the year 1995 and Deputy Director from 1999 deprived the applicant of his due promotions vis-a-vis other similarly placed colleagues that resulted in fixation of lesser pension and retiral dues.
3.2 The applicant had been denied promotion in the EDP cadre despite the fact that 19 vacancies in the post of Programmer and higher post of Deputy Director were available even though his name in the Gradation List stood at serial no.18.6 O.A. No.1568/2014
3.3 The applicant is entitled in law and equity to be given promotion to the post of Programmer and Deputy Director from the date when his similarly placed colleagues in the EDP cadre stood promoted to the said post as per the Gradation List in vogue/operation during the relevant years.
4. The respondents in their Counter-Affidavit have stated that the EDP cadre of AFHQ/ISOs in Ministry of Defence, including in DG IS/MIS was first rationalized vide Govt. of India‟s letter dated 8.1.1991. However, the rationalization was to take effect from 11.09.1989 in the following manner:
Existing Post & Pay Scale Revised Designation & Pay Scale
(a) Statistical Assistant (SA) Data Entry Operation Grade „D‟(DEO „D‟) (Rs.1400-2300) (Rs.1600-2660)
(b) Statistical Investigator Data Processing Assistant „B‟ (DPA „B‟) (SI)/Programme Assistant (Rs.2000-3200) (PA) (Rs.1640-2900) Accordingly, the applicant, who was holding the post of SA in September, 1989, was re-designated as DEO „D‟ in the pay scale of Rs.1600-2660 along with other SAs.
4.1 Recruitment Rules (RRs) for the post of DPA „B‟ (erstwhile SI/PA) along with other posts of EDP cadre of AHFQ/ISOs were notified on 3.9.1994. As per the RRs, the post of DEO „D‟ was the feeder grade of DPA „B‟. A DPC was held on 9.9.1994 to draw a panel of DEO „D‟ for filling up of 11 (07-UR and 04-SC) posts in the 7 O.A. No.1568/2014 grade of DPA „B‟. The applicant‟s name stood at serial no.28 in the seniority list of DEO „D‟ and as such was not considered for promotion to the post of DPA „B‟ against 07 unreserved vacancies. Hence, he could not be empanelled for DPA „B‟ in the DPC held on 9.9.1994.
4.2 The EDP cadre of AFHQ/ISOs in Ministry of Defence, including in the DG IS/MISO was further rationalized vide Govt. of India‟s letter dated 6.12.1994 in the following manner:
Existing Post & Pay Scale Revised Designation & Pay Scale
(a) Statistical Assistant (SA) DPA „B‟ With EQ (Rs.1400-2300) (Rs.2000-3200) Statistical Assistant (SA) DPA „A‟ Without EQ (Rs.1400- (Rs.1600-2660 2300
(b) Statistical Investigator Programmer (Rs.2375-350) (SI)/Programme Assistant (PA) with EQ (Rs.1640- 2900) Statistical Investigator DPA „B‟ (Rs.2000-3200) (SI)/Programme Assistant (PA) without EQ (Rs.1640- 2900) Accordingly the applicant was placed in the pay scale of Rs.1600-
2660 as he was not fulfilling the eligibility criteria for holding the post of DPA „B‟ as on 6.12.1994, he was not placed in the grade of Programmer (Rs.2375-3500)/DPA „B‟ (Rs.2000-3200). 8 O.A. No.1568/2014 4.3 The respondents have further stated that the rationalization of EDP cadre on the basis of educational qualification was not upheld by the Hon‟ble High Court of Delhi in CWP No.1212/1999 in the matter of Union of India & Anr. v. Shri B.N. Sharma & Others, decided on 10.01.2002 and as such the benefit of placement was confined to the petitioners therein and the applicant herein, who was not a party to the Writ Petition, was denied the said benefit, i.e., he was not placed in DPA „B‟. As he was holding the post of DEO „D‟ as on 6.12.1994, he was placed as DPA „B‟ by doing away with the EQ as per the orders of the Tribunal dated 20.10.2008 in OA No.1462/2007 ibid retrospectively w.e.f. 8.6.1989. The applicant who has been placed as DPA „B‟ as per the rationalization letter dated 06.12.1994, in compliance of the directions of the Tribunal cannot ask for double placement as Programmer assuming himself equivalent to erstwhile SI by way of placement as DPA „B‟. 4.4 On notification of new RRs for DPA „B‟ the DPC was held in October, 1994 and immediately thereafter the EDP cadre was further rationalized on 6.12.1994 and the RRs were again processed for revision which were finally notified in 2001. As there were no RRs for the post of Programmer, DPC for that post could not be held in the intervening period from 9.9.1994 to 19.7.2001. DPC to the post of DPA „B‟ was held on 9.9.1994 to draw a panel of DEO „D‟ for filling up of 11 (07-UR & 04 SC) posts in the grade. The applicant‟s 9 O.A. No.1568/2014 name stood at serial no.28 (Annexure R-5) in the seniority list of DEO „D‟ and as such he was not considered for promotion to the post of DPA „B‟ against the 07 unreserved vacancies and hence could not be empanelled for DPA „B‟ in the DPC held on 9.9.1994. The cadre restructuring done through letter dated 6.12.1994 necessitated revision of RRs which were notified in 2001. The applicant was promoted in the grade of DPA „B‟ on 28.08.2001 and in 2001 also only 11+4 anticipatory vacancies against promotion quota were available out of which 03 belonged to reserved categories, the applicant‟s name stood at serial no.5 of seniority list as on 1.5.2001.
4.5 The respondents further submitted that the applicant was promoted to the grade of DPA „B‟ on 28.08.2001 and was retired on 28.02.2003. During this interregnum, two DPCs were held for the grade of Programmer. For year 2001-02, DPC was held for 14 vacancies (11 Gen., 02 SC, 01 ST) and for year 2002-03 DPC was held for 04 vacancies (02 UR, 01 SC, 01 ST). The applicant was down below in the seniority to the empanelled candidates of UR categories in DPC year 2002-03. He was not eligible as he had not completed the qualifying service of two years in the grade of DPA „B‟ as prescribed in the relevant RRs, SRO-45 dated 19.02.2001.
5. The applicant has filed rejoinder to the counter-affidavit filed by the respondents, more or less reiterating the averments made in 10 O.A. No.1568/2014 the OA. Additionally, the applicant has also filed written submissions wherein he has stated that his being a graduate in Maths and Economics and having taken training in Computer Application Course, DOS, WS, Lotus and Data Base ought to have been placed in the pay scale of Rs.2000-3200 w.e.f. the date of promotion as SA i.e., 1.1.1996 on ad hoc basis and 7.6.1989 on regular basis. However, he was illegally reverted as DPA (A) after having served as SA for 07 years on the ground that he had not fulfilled the eligibility criteria for holding the post of DPA „B‟ as on 6.12.1994.
6. The respondents have also filed an additional affidavit wherein they have also reiterated their earlier stand.
7. Heard the learned counsel for the parties, who have primarily repeated their averments made in their respective pleadings.
8. It is not in dispute that the relief granted to the applicant vide order of the Tribunal in OA No.1462/2007 dated 20.10.2008 was implemented and applicant was given benefits of pay scale of Rs.2000-3200 in the grade of DPA „B‟ w.e.f. 08.06.1989 (i.e. from the date of his promotion to the grade of Statistical Assistant prior to issue of order of Rationalization).
9. Prior to this, in the normal course of events, the applicant was holding the post of SA from 08.06.1989. DPC was held on 11 O.A. No.1568/2014 09.09.1994 for filling up of 11 (07-UR & 04-SC) posts in the grade of DPA „B‟. As the applicant was at Sl No. 28, he was not considered for promotion. The applicant was subsequently promoted in the grade of DPA „B‟ on 28.08.2001. Till the date of his retirement on 28.02.2003, two DPCs were held for the grade of Programmer but he was not promoted, as he did not complete the qualifying service of two years in the grade of DPA „B‟ as prescribed in the relevant RRs SRO 45 dated 19.02.2001.
10. It has been clarified by the respondents that though through the judgment in OA No.1462/2007, the applicant was placed in the pay scale of Rs.2000-3200 in the grade of DPA „B‟ w.e.f. 08.06.1989, his seniority in the grade at the time of DPC for promotion to the grade of Programmer was not likely to change and they have further clarified that none of his juniors was ever promoted to the grade of Programmer or any higher grade in unreserved category till his retirement. It has also been mentioned that in the hierarchy of the EDP Cadre of AFHQ, there was no post of Deputy Director. Hence the question of depriving him for promotion to the grade of Deputy Director does not arise. None of this has been disputed by the applicant by bringing any material on record.
11. The contention of the applicant is that he was adversely affected because of the fact that the DPCs were not held year-wise, also cannot be accepted. The applicant cannot claim as a matter of 12 O.A. No.1568/2014 right that DPCs be held year-wise or that any benefit be granted to him if they are not so held.
12. In his averments, the applicant has not made any claim that any person junior to him has been promoted to the post of Programmer or subsequently to the post of Deputy Director. It is abundantly clear that the order of this Tribunal in OA No.1462/2007 (supra), granting the applicant the pay scale of Rs.2000-3200 in the grade of DPA „B‟ w.e.f. 08.06.1989 was duly implemented by the respondents and even with such placement of the applicant, he could not come up in the seniority for available vacancies. Admittedly, no one junior to the applicant even in the revised seniority as per the order of the Tribunal, referred to above, was ever promoted to the grade of Programmer. As regarding promotion to the post of Deputy Director since the post does not even exist in the hierarchy of the EDP Cadre of AFHQ, the question of consideration for promotion to this post does not arise.
13. The claim of the applicant for promotion to the grade of Programmer and Deputy Director is without merit and the OA is accordingly dismissed. No costs.
(A.K. BISHNOI) (V. AJAY KUMAR) MEMBER (A) MEMBER (J) cc.