Central Administrative Tribunal - Chandigarh
Unknown vs Post Graduate Institute Of Medical ... on 22 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 153 -CH of 2011
Chandigarh, this the 22nd day of August , 2012
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR. RANBIR SINGH, MEMBER(A)
Narinder Malik, aged 48 years, son of late Sh. Som Parkash Gupta, Assistant Engineer (Civil), Department of Hospital Engineering and Planning, Post Graduate Institute of Medical Education and Research, Chandigarh.
APPLICANT
BY ADVOCATE: SHRI KARAN SINGLA
VERSUS
1. Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh through its Director.
2. Dr. K.K. Talwar, Director, Postgraduate Institute of Medical Education & Research, Sector 12, Chandigarh.
3. Sh. Prem Chandra, Assistant Engineer (Civil), Department of Hospital Engineering and Planning, Post Graduate Institute of Medical Education and Research, Chandigarh, Sector 12, Chandigarh.
4. Sh. Ashok Shreedhar, former Superintending Hospital Engineer, A-203, GH-II, Shekhar Apartments, Sector 5, Panchkula.
5. The Dean and Chairman, Departmental Promotion Committee (Group B Employees), Postgraduate Institute of Medical Education and Research, Chandigarh, Sector 12, Chandigarh
RESPONDENTS
BY ADVOCATE: SHRI DEEPAK SIBAL
ORDER
HONBLE MR. RANBIR SINGH, MEMBER(A):-
As per the Original Application, the applicant had joined the respondents organization as a Junior Engineer on 24.6.1988. He was granted in-situ promotion on completion of 5 years service w.e.f. 24.6.1993 vide order dated 25.10.1994. He was given the Current Duty Charge of Assistant Engineer (Civil) . He was duly considered by the Departmental Promotion Committee (DPC) for the above benefit. The DPC in its meeting held on 13.1.2003 had considered the applicant for regular promotion to the post of Assistant Engineer (Civil). On 25.1.2003 he was promoted as Assistant Engineer (Civil). On 11.2.2006 an office order was issued, implementing the cadre review report w.e.f. 3.10.2000 in the respondents organization. The applicant was to be considered for placement w.e.f. 3.10.2000 as Assistant Engineer (Civil) under the cadre review. The DPC was held on 21.8.2006 and 4.9.2008, but the applicant was not promoted w.e.f. 3.10.2000.
2. The relief sought in this O.A. is as follows:-
i) The record of the case may kindly be called for perusal of this Honble Tribunal.
ii) The office order dated 13.7.2010, Annexure A-20 be quashed. iii) The respondents be directed to convene a review D.P.C. to consider the claim of eligible candidates including the applicant for placements as Assistant Engineer (Civil) under the Cadre Review w.e.f. 3.10.2000.
iv) The respondent no.5 be directed not to be prejudiced with the illegally written/changed ACR grading of the applicant for the year 2003-04, 2004-05, 2005-06, 2006-07 and 2007- 08 after 5-6 years of relevant period in August, 2009.
v) The damages, compensation and costs be imposed against respondent no.2 and 4 and awarded in favour of the applicant for causing him undue harassment, mental torture and waste of time.
3. The grounds for relief with legal provisions taken in the O.A. are as follows:-
a) Because the respondents have acted in violation of the Rules and Instructions issued by DOPT from time to time for making fresh Reservation Roster by not taking into account the past recruitment/promotions after the cadre Restructuring/ amendment of Recruitment Rules/Mode of Recruitment.
b) Because the respondents have acted in violation of the law laid down on grant of reservation benefits on cadre restructuring by the Honble Supreme Court, Honble High court and Honble CAT Benches just to grant illegal and undue favours to respondent no.3.
c) Because the respondents have singled out the implementation of cadre review report for the post of Assistant Engineer (Civil) for discriminatory and biased treatment by following the old reservation roster since 1980 to benefit the respondent no3.
d) Because the respondents have acted with mala fide and bad intentions to victimize the applicant and rearward the respondent no.3, who has been following the dictates of respondent no.2 and 4 in corrupt and irregular activities as evident from the submissions made above and the documents annexed with this O.A.
e) Because the fresh reservation rosters have been started in each and every category/cadre of employees for making placements of Engineering Staff and other categories of employees on up-graded posts, where the total number of posts in the cadre/establishment have remained unchanged, after the amendment in recruitment rules/mode of recruitment w.e.f. 3.10.2000 or 1.3.1992 as the case may be, however, the rule and instructions have been bypassed and gone by just to reward and favour the respondent no.3.
f) Because the respondents have illegally and arbitrarily held a combined meeting of Departmental Promotion Committee on 8.6.2010 for making placements against up-graded posts under the Cadre Review w.e.f. 3.10.2000 where reservations could not be allowed by taking into account the old reservation roster and to fill up subsequent vacant promotional posts of Assistant Engineer (Civil) where reservation roster applied till the roster is completed.
g) Because the respondents have acted with mala fide and bad intentions to spoil the career and chances of placement of applicant as Assistant Engineer (Civil) w.e.f. 3.10.2000 and give benefit his junior (respondent no.3) by keeping the rules and law under the carpet.
h) Because the respondents have pasted a wrong and incorrect picture of the service record of the applicant before the D.P.C. by making illegal, unconstitutional and arbitrary manipulations in his ACR gradings of 2003-04, 2004-05, 2005-06 and 2007-08 by reviewing them in August, 2009.
4. The applicant contends that the principle and rule of reservation does not apply in the case of cadre restructuring where the recruitment rules are amended and a few posts are upgraded, but the total number of post in the cadre remains the same. He has placed reliance on All India Non-SC/ST Employees Association (Railways) Vs. V.K. Aggarwal and Others in Civil Appeal NO. 1481 of 1996 (2001) 10 SCC 165, contending that if as a result of re-classifications or re-adjustment no additional posts are created, and it is a case of up-gradation only, then the principle of reservation will not be applicable. The applicant contends that the respondents have not applied the principle of reservation while implementing the cadre review w.e.f. 3.10.2000 for various categories of engineering staff and have singled out the category of Assistant Engineer (Civil) for adverse treatment by applying the principle of reservation whereas no new post has been created in the cadre of Civil Engineers except that two posts of Jr. Engineer (Civil) have been up-graded as Assistant Engineer (Civil) and the total number of posts in the Civil Engineers cadre has remained unchanged i.e. 17.
5. The applicant further contends that the respondents have started fresh roster after the amendment of Recruitment Rules/up-gradation of posts under the cadre review w.e.f. 3.10.2000 for each and every category of engineering staff. However, in the case of Assistant Engineer (Civil), the posts filled up prior to cadre restructuring since 1980 have been taken into account. The applicant contends that he is being subjected to malicious campaign because he is a union member and a whistle blower against corruption. A charge sheet was issued to him on 28.4.2009 and he has been wrongly subjected to disciplinary action. The respondents have obtained fresh ACRs Grading for the years 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08 from respondent no.4 in the month of August 2009 which is irregular. The DPC held on 8.6.2010 has been wrongly informed that the integrity of the applicant is adverse for the years 2006-07 and 2007-08. It has been stated in the O.A. that the applicant will be filing a separate O.A. for the quashing of the ACRs changed/written with malfide and bad intention and in violation of the principles of natural justice and rule and instructions on the subject of ACRs. It has been contended that Respondent no.3 is a history sheeter yet he has been given Very Good ACR Grading and Un-doubtful Integrity Certificate. Respondent no.3 is hands-in-globe with the respondents no. 2 & 4. The respondents have implementing cadre review report in respect of the post of Assistant Engineer (Civil) in order to benefit respondent no.3
6. Respondents no. 1,2,& 5 have filed a common written statement. They have pointed out that as per the recommendations of the cadre review committee, the strength of Assistant Engineer (Civil) was increased from four posts to six posts. Prior to the cadre review 50% of the posts of Assistant Engineer (Civil) were to be filled up by way of promotion and the remaining 50% by direct recruitment. Consequent, to cadre review 100% of the posts of Assistant Engineer (Civil) are to be filled up by way of promotion from the eligible Junior Engineer/Technologists Grade II etc. The recommendations of the cadre review committee were notified on 11.2.2006. A DPC meeting was held in June 2010 for filling up four posts of Assistant Engineer (Civil) including one of Scheduled Castes (SC). Sh. Kishori Lal and Sh. Prem Chandra (SC) were considered for promotion w.e.f. 3.10.2000, Sh. Narinder Malik (Applicant) was considered for promotion w.e.f. 4.4.2002 and Sh. Rajan Aggarwal was considered for promotion w.e.f. 1.8.2004. Before recommendations of the cadre review committee had been accepted he had been promoted on 24.6.2003 after the acceptance of the recommendations of the cadre review he became entitled to be considered for promotion w.e.f. an earlier date i.e. 4.4.2002. The recommendation of the DPC in respect of the applicant was kept in a sealed cover since disciplinary proceedings were pending against him at that time and the same are still pending. Sh. Prem Chandra belonging to the SC category was recommended to be promoted as per the roster position and the instructions of the Govt. of India pertaining to roster based promotion of SC category employees.
7. Respondents No. 1,2 & 5 have further pointed out that the following position of roster applicable to the cadre of Assistant Engineer (Civil):
Roster No. 1 Arun Kumar (UR) Roster No. 2 R.K. Goyal (UR) Roster No. 3 Rajneesh Puri (UR) Roster No. 4 R.C. Sharma (UR) Roster No. 5 Parveen Kumar (UR) Roster No. 6 Kishori Lal (UR) Roster NO.7 Prem Chandra (SC) Roster No. 8 Narinder Malik (UR)
8. The official respondents have further pointed out that between the date of implementation of cadre review i.e. 3.10.2000 and the date of its notification i.e. 11.2.2006, twenty five new posts of the Engineering Department of various cadres were created and at the time of notification cadre strength became 815+25=840. Therefore, the contention of the applicant that the cadre strength of the Engineering Department remained the same before and after cadre review is incorrect. The official respondents have contended that the plea of the applicant that fresh roster was started is baseless. They have pointed out that due to incomplete formalities the DPC held on 4.9.2008 could not take a decision and many of the ACRs had not been reviewed. They have denied that any undue benefit was given to respondent no.3. The official respondents have furnished Annexure R-14 as the proceedings of the DPC held on 17th, 20th and 26th March, 2010. They have pointed out that disciplinary proceeding is under way against the applicant in a case of mis-appropriation of Cement.
9. The applicant has filed rejoinders dated 4.7.201 and 31.7.2011 to the reply statement of the respondents. It has been contended therein that new/fresh roster was to be started by taking into consideration the Assistant Engineers in position as on 3.10.2000 while making placement under the second cadre review and then fill up the subsequent vacancies by applying the post based reservation roster of 2.7.1997 on the basis of new eligibility criteria to fill up the posts of Assistant Engineer 100% by promotion. It is incorrect to suggest that the applicant became eligible for promotion w.e.f. 4.4.2002. It is misleading, wrong and incorrect to suggest that additional posts were added to the cadre. The applicant has not challenged the sealed cover w.e.f. 4.4.2002 because he has challenged the illegal, unconstitutional and arbitrary placement of respondent no.3 as Assistant Engineer w.e.f. 3.10.2000 made by applying reservation against the upgraded post under the cadre review exercise where the number of posts in the cadre of Civil Engineer have not been increased or decreased and the eligibility criteria and recruitment rules have been amended w.e.f. 3.10.2000. The respondents are supposed to make placements of eligible incumbents against the posts upgraded under the cadre review w.e.f. 3.10.2000 and start model roster afresh by taking into account the existing Assistant Engineers as on 3.10.2000 and not by counting the recruitment/promotions of the incumbents who had retired or were promoted before 3.10.2000. The applicant has objected to the inclusion of Sh. Rajneesh Puri in the model register. If the name of Sh. Rajneesh Puri is deleted from the model register of existing Assistant Engineers then the applicant would become entitled for placement under the cadre review w.e.f. 3.10.2000 against point no.6 marked for (UR) . The applicant contents that confusion was created by the respondent by holding a single DPC for placement under the cadre review w.e.f. 3.10.2000 and for making promotions against the subsequent vacancies. He has reiterated reliance on the Judgment in the case of SC/ST Employees Association (Railways) Vs. V.K. Aggarwal and Others in C.P. in Civil Appeal NO. 1481 of 1996 reported in (2001) 10 SCC 165 which has been followed by C.A.T. in various cases. The Apex Court in Union of India Vs. V.K. Sirothia (2008) 9 SCC 283: 1999 SCC (L&S) 938 decided on 19.11.1998 has reiterated that the promotion as a result of redistribution of posts is not promotion attracting reservation. On facts, once it is seen that it is a case of up-gradation on account of restructuring of cadre, there is no question of reservation. It has also been reiterated by the applicant that after cadre review new/fresh model register was to be started by placement under the second cadre review by taking in consideration the existing Assistant Engineers as on 3.10.2000 and not by counting the recruitment/promotions made prior to 3.10.2000 for the purpose of model roster. He contends that the respondents have illegally and arbitrarily clubbed the roster of direct recruitment and promotion quota as is clearly evident from the reservation roster Annexure R-15 placed before DPC dated 8.6.2010. The applicant has in his rejoinder referred to the cases of Sh. Parveen Kumar, Sh. Avtar Singh, Sh. A.P. Wassan and cadre of Assistant Engineer, Technician, Telephone Operator, Cutter, Dark Room Attendants, Sister Grade-I etc. in support of his contention. He has further contended that the DPC held on 21.8.2006 had not recorded any reason or ground for deferring the meeting and has not pointed out any deficiencies in the ACRs Grading of the candidates including of the applicant. There is no justification for not having completed the ACR of the applicant till the DPC held on 4.9.2008. The DPC held on 4.9.2008 had exceeded its powers and authority because it sought more information then was within its competence to seek. The respondents have taken different stands in the DPCs held on 21.8.2006, 2.9.2008, 8.6.2010. The claim of employees who were recruited/promoted prior to 3.10.2000 were not included in the DPC memo dated 21.8.2006 and 4.9.2008 for calculating the vacancies position or roster point. The DPC has not recorded or pointed out any deficiency in the ACRs in the meeting held on 21.8.2006 and 4.9.2008. The contentions made in the O.A. have been reiterated in the rejoinder dated 4.7.2011.
10. The applicant has filed the statement of Sh. Prem Chandra made in the disciplinary case alongwith his rejoinder dated 31.7.11 in connection with the departmental proceeding and the remarks in the ACRs.
11. We have heard the learned counsel for the parties and perused the pleading.
12. As far as the averment made regarding the ACRs of the applicant is concerned, the applicant has contended in the O.A. that he will be filing a separate O.A. for the quashing of the ACRs/change/written with malafide and bad intention and in violation of the principles of natural justice and rules and instructions on the subject of ACRs. The relief sought regarding the ACRs is only direction to the respondent no.5 not to be prejudiced with the illegally written/changed ACRs grading of the applicant for the year 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08. Therefore, there is no need to go into the issue of the ACRs.
13. Although the applicant has devoted considerable space in O.A. as well as in the rejoinder to the pending disciplinary case against him relating to the shortage of Cement, he has not sought any relief in the matter of the disciplinary case. In the rejoinder he has also stated that he has not challenged sealed cover w.e.f. 4.4.2002. Therefore, we need not go into this matter also.
14. The basic contention of the applicant is that the principle of reservation does not apply to the cadre of Assistant Engineer (Civil) in the respondents organization after the implementation of cadre review. Reliance has been placed on All India SC/ST Employees Association (Supra), which stated as follows:-
It appears from all decisions so far that if as a result of reclassification or readjustment there are no additional posts which are created and it is a case of upgradation, then the principle of reservation will not be applicable. It is on this basis that this Court had held that reservation for SC and ST is not applicable in the upgradation of existing posts and Civil Appeal NO. 1481 of 1996 and the connected matters were decided against the Union of India. The effect of this is that, where the total number of posts remains unaltered, though in different scales of pay as a result of regrouping and the effect of which may be that some of the employees who were in the scale of Rs. 550-770 will go into higher scales, it would be a case of upgradation of post and not a case of an additional vacancy or the post being created to which the reservation principle would apply. It is only if in additional to the total number of existing posts, some additional posts are created that in respect of those additional posts the reservation will apply, but with reference to the additional posts the dispute does not arise in this case. The present case is restricted to all exiting employees who were redistributed into different scales of pay as result of the said upgradation.
15. During the course of arguments a reference has been made to the Judgment dated 6.9.2011 In Civil Appeal NOs. 5286-87 of 2005- Bharat Sanchal Nigam Limited Vs. R. Santhakumari Velusamy & Ors. wherein it was held that where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation. Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and it therefore a promotion, rules of reservation will apply. On the one had, where there is restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, the rules of reservation will apply. On the other hand, where the restructuring of posts does not involve creation of additional posts, but merely result in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process dos not invite reservation.
16. The respondents have placed reliance on the case of Union of India Vs. Pushpa Rani and Other reported as 2009 (1) SCT 267 wherein the Apex Court had dealt with the question whether the policy of reservation for posts for SC/ST can be applied at the stage of giving effect to cadre restructuring exercise undertaken by the Railway Board. It was held as follows:-
25. Once it is recognized that the additional post becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. It has been further held therein that:-
The policy envisaged that additional post becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection. This cannot be equated with upgradation of posts which are required to be filled by placing the existing incumbent in the higher grade without subjecting them to the rigor of selection. The Apex Court has gone on to state as follows:-
28. In view of the above discussion, we hold that the Railway Board did not commit any illegality by directing that the existing instructions with regard to the policy of reservation of post for Scheduled Castes and Scheduled Tribes will apply at the stage of effecting promotion against the additional posts.
17. In the instant case, the cadre of Assistant Engineer (Civil) has been increased from four to six. All posts are to be filled up by promotion which involves selection and recommendations of the DPC. The respondents have pointed out that they have followed the OM dated 2.7.1997 of DOPT regarding roster. The respondents have also pointed out the provisions in OM dated 2.7.97 of DOPT according to which whenever there is any increase or decrease in the cadre strength the roster shall be correspondingly expanded or contracted. The same will also apply whenever there is a change in the recruitment rules which affects the proportion of posts to be filled by a particular mode of recruitment. Placing reliance on Annexure R-15 the roster register the respondents have pointed out that the officials working as Assistant Engineer (Civil) on the date of the DOPT instructions dated 2.7.97 alone were taken in roster and those promoted/left out latter stand there as per rule position mentioned above.
18. The main relief sought in the O.A. is the quashing of office order dated 13.7.2010 (Annexure A-20). In the Index given in the paper book, at Sl. No. 21 is Annexure A-20, which is dated 8.6.2010 and referred to as DPC memorandum , It is shown to be at pages 108-111 At Sl. No. 22 of the Index, Annexure A -21 is shown to be dated 13.7.2010 and given at page 112. But in the paper book at page 112, we find Annexure A-21 which is office order dated 1st July, 2010. At page 108-111 is given Annexure A-20 which is proceedings of the DPC held on 17th,20th and 26th March, 2010 for filling up the post of Assistant Engineer (Civil). On the other hand, Annexure A-20 is not an office order. Rather it is only proceedings of the DPC. On the other hand Annexure A-21 is dated 1.7.2010 and is an office order which states that the applicant was considered for the vacancy as on 4.4.2002 against the unreserved point and the recommendation in that regard was kept in a sealed cover . That order was issued vide endorsement no. PGI/Engg/SHE/2010/4100-4115 dated 13.7.2010. The applicant does not challenge the keeping of the recommendation in a sealed cover. He also does not seek consideration for promotion w.e.f. 4.4.2002. Rather, he seeks consideration w.e.f. 3.10.2000. On 3.10.2000 there was only one unreserved vacancy and one (SC) vacancy. Sh. Kishori Lal who is senior to the applicant was promoted against the unreserved point w.e.f. 3.10.2000 and Sh. Prem Chandra was promoted against the SC point w.e.f. 3.10.2000.
19. In view of the aforesaid discussion, we find no merit in the O.A. It is dismissed accordingly. No costs.
(RANBIR SINGH)
MEMBER(A)
(JUSTICE S.D.ANAND)
MEMBER(J)
Dated: August 22nd , 2012
`SK
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(OA No.153-CH-2011 )