Central Administrative Tribunal - Delhi
K R Rajan vs Ministry Of Ayush on 20 February, 2024
(OA No.1556/2020)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1556/2020
Reserved on :05.02.2024
Pronounced on :20.02.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Sh. K.R.Ranjan, S/o Late B.S.Krishnamurthy,
SMRA-14, Shankrapuram Road,
Mulankunnathukavu, Thrissur -680581. ...Applicant.
(By Advocate: Shri S.K.Pandey)
Vs
1. Union of India
Through Ministry of Ayurveda, Yoga and Naturopathy,
Unani, Siddha and Homoeopathy,
Through its Secretary,
Ayus Bhawan, B, Block, GPO Complex,
INA, New Delhi-110023.
2. Central Council for Research in Ayurveda Sciences
Through its Director,
Jawahar Lal Nehru Bhartiya Chikitsa Evam
Homoeopathy, Anusandhan Bhawan,
61-65, Institutional Area, opp. D Block,
Janakpuri, New Delhi-110058.
3. Central Vigilance Commission,
Through its Secretary
Satarkta Bhawan, A-Block, GPO Complex,
INA, New Delhi-110023. ...Respondents
(By Advocate: Shri Gyanendra Singh)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) Quash the order dated 14.08.2020 of the Respondent no.2 rejecting the appeal of (OA No.1556/2020) (2) the applicant against the order dated 29.01.2020.
(b) Quash the order dated 29.01.2020 of the Respondent no.2.
(c) Direct the Respondents to reinstate the Applicant in the post of Administrative Officer with full consequential benefits, with immediate effect'
(d) Any other relief which this Hon'ble Tribunal deems fit and proper may also be awarded to the applicants."
2. The facts of the case, in brief, as indicated in the OA are that the applicant while working as Administrative Officer in Central Council for Research in Ayurvedic Sciences (CCRAS) (Respondent No.2) and during his posting at CCRAS Hqrs. Office, New Delhi, he processed the matter of promotion of officers for the post of Director (Ayurveda) as per rules of the Respondent no.2. Respondent no.1 is the controlling ministry of Respondent no.2. The respondent no.3 had forwarded a complaint on which the disciplinary proceeding against the applicant was initiated.
3. Vide Memorandum dated 28.12.2016 of the respondent no.2, conveyed its decision to hold inquiry against applicant, the statement of imputation of misconduct in support of the single Article of charge framed against the applicant, reads as under: -
(OA No.1556/2020) (3) "That while Shri K.R. Rajan was working as Administrative Officer at CCRAS Hqrs., a DPC was held on 17.7.2009 for the promotion from Assistant Director (Ayurveda) to Director (Institute). Till holding of DPC, the methods adopted by office like calling candidates for interview in DPC was not as per Recruitment Rules for the said post. Then the draft Minutes of DPC was also prepared by Mr. K R Rajan on their dictation also contained text wherein Dr. M.M. Rao was promoted from the post of Assistant Director (Ayurveda) to Director (Institute) by superseding three seniors namely Dr. M.V. Acharya, Dr. R.K. Swamy and Dr. N. Jaya. Thereafter Shri K.R.Rajan put up a note on 21- 07- 2009 for sending the minutes of DPC to Department of AYUSH for obtaining approval of HFM, without pointing out the rule position that as per DoPT O.M. No.35034/7/97-Estt. (D), dated 8.2.2002 in selection post fit and unfit is only in relation to benchmark of ACR and in any case there will be no supersession. In this way Shri K. R.Rajan misled and gave wrong information to the higher authorities which led to forfeiture of legitimate right of promotion of deserving senior officers and undue promotion of junior officer who was at Sl. No.4 of the seniority list. Shri K R Rajan has acted in a manner unbecoming of a public servant by doing above, which also exhibits his doubtful integrity. He has, therefore, contravened the rule 3 (1)(i) and (iii) of CCS Conduct) Rule, 1964."
4. The applicant has submitted that before going into the merits of the charges framed by CCRAS against the Applicant, the relevant provisions of Rules, Regulations and Bye-Laws of the Respondent no.2 and also the instructions issued by Department of Personnel & Training and Department of Administrative Reforms & Public Grievances (OA No.1556/2020) (4) which have a direct bearing on the charges framed against the Applicant are to be seen, which are as follows: -
(i) Rule 25(b) under Conditions of Service' of the Bye-
laws of the Council stipulates that "Recruitments, appointment and promotions to all posts shall be made according to the Recruitment Rules laid down by the Governing Body or designated competent authority for the posts."
XXXX XXXX XXXX XXXX
(iii) As per Proviso 5.9 under Rule 6 of CCRAS Recruitment Rules, "Selection" posts shall be filled on the basis of merit-cum-seniority. "Non-selection posts shall be filled on the basis of seniority subject to rejection of unfit persons."
(iv) The post of Director (Institute) was a 'Selection' post as per the recruitment rules as on the date of the DPC.
5. The applicant has submitted that the Standing Finance Committee of the Respondent No.2 in their 56th meeting held on 8.8.2008, in response to Agenda Item No.FC.56.14 1.e. to consider the proposal for rectifying the anomaly in the Recruitment Rules for the post of Director (Institute) of CCRAS in respect of eligibility service for direct recruitment and promotion, proposed amendment of Column No.12 of the Recruitment Rules of the post of Director (Institute) whereby the minimum number of years of service to be put in the post of Asstt. Director (Ay.) was reduced (OA No.1556/2020) (5) from 6 years to 5 years, together with the following observations: -
"It was observed that it is difficult to evaluate officers on the basis of their Confidential Reports. Therefore, the Committee resolved that all pending promotions should be made on merit-cum-seniority. The candidates in the zone of consideration may be called for interview by an Expert Committee and the selection should be made on the basis of their dossiers and assessment in the interview."
(vi) It is also averred that the 19th meeting of the Governing Body of respondent no.2 held on 23 December, 2008, the recommendations made the Standing Finance Committee (SFC)of the Respondent no.2 from their 49th meeting to 56th meeting were ratified/ approved by the Governing Body of the Council. As such, the recommendations of the SFC in response to Agenda Item 56.14 also stood approved/ ratified by the Governing Body of the Council.
(vii) The applicant also submits that the Department of Personnel & Training (DOPT) issued O.M. No.35034/7/97- Estt. (D), dated 8.2.2002, on the subject of "Procedure to be observed by Departmental Promotion Committee (DPCS) - No supersession in 'selection' promotion Revised guidelines regarding", and on Page-6 of the said Ο.Μ., it stipulates as (OA No.1556/2020) (6) under: -"Ministries/ Departments are requested to give wide circulation to these revised instructions for general guidelines in the matter so that immediate steps are taken to amend the Service Rules / Recruitment Rules of various services/ posts / grades so as to appropriately incorporate the mode of promotion as 'selection' (in decide its own method and procedure for objective assessment of the suitability of candidates".
(x) It is also submitted that in the Manual of Office Procedure issued by M/o Personnel, Public Grievances & Pensions, D/o Administrative Reforms & Public Grievances, regarding "Confirmation of Oral discussions" under the Chapter "File Management", it is instructed as under: -
"If an officer seeks confirmation of oral instructions given by his superior, the latter should confirm it in writing whenever such confirmation is sought."
6. The inquiry officer submitted his report and vide order dated 29.01.2019, the Respondent No. 2 imposed major penalty of compulsory retirement. The applicant filed appeal before the Governing body of the Respondent No.2 being the Appellate authority as per the rules of the Respondent no.2 (OA No.1556/2020) (7) and the same was dismissed vide order/OM dated 14.08.2020.
7. The sole charge against the applicant is that in the Note which he had put up for sending the Minutes of DPC to Department of AYUSH for obtaining approval of HFM (Health & Family Welfare Minister), he did not point out the rule position that as per DoPT O.M. dated 8.2.2002, in selection post fit and unfit is only in relation to benchmark of ACR and in any case there will be no supersession. In this way, he misled the higher authorities which resulted in forfeiture of legitimate right of promotion of three officers senior to Dr.M.M.Rao. As per the inquiry report, one of the primary findings is that Dr. M.M.Rao was not fulfilling the qualifying service of 6 years of regular service as Assistant Director. It may, therefore, be seen that the inquiry report had held the applicant guilty of something which is not even a part of the Charge-sheet.
8. As per the Recruitment Rules stated above, the post of Director is a 'selection' post and as per Proviso 5.9 under Rule 6 of CCRAS Recruitment Rules, 'Selection' posts shall be filled on the basis of merit-cum-seniority. The following points will corroborate the averments of the applicant that (OA No.1556/2020) (8) the DPC was conducted in keeping with the applicable rules and regulations of respondent no. 2.
(a) As may be seen from the Minutes of the meeting of the DPC held on 17.7.2009, there were two vacant posts of Director (Institute) to be filled up. The DPC found Dr. M.M. Rao suitable for promotion and recommended that the 2nd vacancy may be advertised for being filled up by Direct Recruitment.
(b) It was not promotion of Dr. M.M. Rao which caused the officers senior to him to lose out but the views of the DPC that those senior to Dr. M.M. Rao were found not suitable to be promoted to the post of Director (Institute).
9. Rule 25(b) of the Bye-laws of the Council stipulates that 'Recruitments, appointment and promotions to all posts shall be made according to the Recruitment Rules laid down by the Governing Body or designated competent authority for the posts. The Governing Body of the Respondent no. 2 in its meeting held on 23.12.2008 approved the recommendations of the SFC whereby the minimum numberof years of service to be put in the post of Assistant Director (Ay.) was reduced from 6 years to 5 years.
10. It is contended that it is important to note that the Applicant had no role in the proposal for conduct of DPC for the post of Director (Institute) as it had been initiated in (OA No.1556/2020) (9) October, 2008, itself, i.e. many months prior to the Applicant joining CCRAS as Administrative Officer.The Respondent No.2 did not take any steps to amend the Recruitment Rules to bar supersession in promotions to the post of Director (Institute), neither in pursuance of DoPT O.M. dated 8.2.2002 nor its subsequent instructions issued as a reminder in February, 2005. The Inquiry Officer has admitted in Para 9.5 of his Report that it is the stand of the Disciplinary Authority that the method of promotion of the post of Director (Institute) is Selection' and the same was never amended.
11. It is submitted that Dr. M.M.Rao was promoted as Director (Institute) in August, 2009, for 4 long years, i.e., till August, 2013, none of the so-called affected persons, who are senior officers, had anything to complain and even the Vigilance of CCRAS did not come to know of its so-called "irregularity" until Central Vigilance Commission forwarded a complaint. This speaks volumes about the worthiness of this aspect of the complaint and the disgraceful readiness with which Vigilance of CCRAS lapped up the allegations of an unrelated person/ outsider, claiming denial of promotion.
(OA No.1556/2020) (10)
12. The respondents in their counter reply have submitted that the applicant functioning as Administrative officer with the answering respondent No. 2 was in the realm of affairs for promotions to the other employees of the answering respondents and during this process, he was responsible for lapses in facilitating out-of-turn promotion to one Dr. M.M. Rao by superseding three senior officers. As per DoPT'sO.M. dated 8th February, 2002 3 guidelines, there cannot be supersession in matter of selection (merit) promotion at any level. It is submitted that the said misconduct of the applicant came to the notice of the answering respondents when Respondent No. 3 forwarded a complaint and thereafter, the matter was dealt with at various levels including the CVC. The inquiry was initiated and Order dated 29.01.2019 was issued to the applicant imposing major penalty of Compulsory Retirement' after following all rules and procedures. The applicant preferred appeal against the aforesaid Order which was rejected by the Governing Body of CCRAS and same was communicated to the Applicant vide Letter No.2-1/2016- CCRAS/Vig. (Vol.11)/2036 dated 14.08.2020, which has been challenged by the applicant in present OA.
(OA No.1556/2020) (11)
13. It is submitted that the applicant being Group 'A' officer who was supposed to know the rules, ignoring the same and failed to mention the correct Rule position in the promotion matter when he was working as the Administrative officer. This was a serious lapse on his part. it is further submitted that vide DoPT's O.M. No 35034/7/97-Estt (D) dated 8th February, 2002, the earlier guidelines were revised by the DoPT and it superseded the earlier OM'S and guidelines. The 2002 guidelines of DoPT, provides and clearly states that there should be no supersession in matter of 'Selection promotion at any level. The applicant, thus, failed to point out the correct Rule position, which was as per the aforesaid DOPT OM. The failure of the applicant resulted in promotion to Dr. MM Rao superseding his seniors. It is submitted that the applicant being an Administrative Officer, should have been conversant with the Rule position regarding promotions and appointments and as such, there was a serious lapse on his part. Moreover, the applicant by misrepresenting the annexed OM's in the OA is trying to put onus on the respondents and misleading the court. Whereas the applicant never pointed out the rule position as per DoPT's O.M. No. 35034/7/97- Estt (D) dated 08.02 2002.
(OA No.1556/2020) (12)
14. We have perused the pleadings on record and also heard Shri S.K.Pandey, learned counsel for the applicant and Shri Gyanendra Singh, learned counsel for the respondents.
15. The undisputed facts are that the applicant was working as Administrative Officer with Respondent No.2 at the relevant time. The applicant had prepared a draft minutes of DPC held on 17.07.2009 for promotion from Assistant Director (Ayurveda) to Director (Institute). Vide Memo dated 28.12.2016 nearly after 7 years, a departmental enquiry was initiated against the applicant for allegedly called the candidates for interview against the Recruitment Rules wherein the candidates selected superseding three seniors. As opposed to criteria ,seniority- cum-merit was followed which was against the RRs as alleged. It was also alleged that he had called candidates having less than 6 years of experience which was also against the rules.
16. We have seen that rule position governing recruitment process for the post which is as follows:
i) Rule 25(b) of the By-laws of Respondent No.2 states that recruitment, appointments shall be done as per rules laid down by the Governing Body.
(OA No.1556/2020) (13)
ii) Post of Director is a selection post to be filled on the basis of merit-cum-seniority.
iii) On 28.08.2008 amendment was proposed to reduce minimum years of service than 6 years to 5 years ratified by Governing Body on 23.12.2008.
5. Thus, the applicant acted upon the rules approved by the Governing Body of the Respondent No.2. The enquiry officer in his report accepted the fact that Governing Body has reduced minimum years of service from 6 years to 5 but had said that the applicant could not have acted upon the same as the same was not incorporated in the Recruitment Rules.
17. It will be re called that during the course of hearing of the instant OA on 26.04.2023, the following order was passed by this Bench-
"2.He submits that the applicant has submitted the relevant file quoting the rules approved by the evening boy Whereas it is case of the rests that approval of the governing body for amendment of the rules has since not been notified. The Respondents shall file an affidavit indicating therein as to whether the amendments approved by the governing body have since been notified or not, if notified a copy of such notification shall also be brought on record. The said affidavit shall also contain as to whether the amendment approved by the governing body has been acted upon or not by the residents before notification thereof."
18. We have perused the reply furnished by the respondents in response to order dated 26.04.2023. It is indicated therein that the proposal for rectifying the anomaly in the old Recruitment Rules in respect of eligibility service (OA No.1556/2020) (14) for direct recruitment and promotion to the post of Director (Institute) was placed before the meeting of the Standing Finance Committee (SFC). The SFC approved the amendment Column 12 of the Recruitment Rules for the post of Director (Institute) as follows:
12 In case of recruitment by From amongst promotion/deputation/transfer, Assistant Directors grades from which (Ay.)/(Siddha) with promotion/deputation/transfer 5 years regular to be made service in the grade.
19. The SFC was of the view that it is difficult to evaluate Officers on the basis of their Confidential Reports alone and observed that all pending promotions should be made on merit-cum-seniority. The approval accorded by the SFC regarding amendment in recruitment rules was ratified by the Governing Body in its 19th meeting held on 23.12.2008. Based on these amendments in the recruitment rules which were duly approved by the SFC and ratified by the Governing Body, the DPC meeting for promotion of Dr. M.M.Rao to the post of Director (Institute) was convened on 17.07.2009.
20. The eligibility condition for the post of Director (Institute) as per the old recruitment rules was of 6 years of (OA No.1556/2020) (15) regular service in the grade of Assistant Director (Ayurveda) and the same was changed to 5 years after ratification by the Governing Body. As per the approved directions of Governing Body, selection criteria to be followed and adopted was a merit-cum-seniority. Therefore, it is evident that the applicant has acted upon the rules approved by the Governing Body and accordingly the DPC recommended the name of Dr. M.M.Rao for the post of Director (institute) which was incidentally never challenged by the respondents. The respondents have also contended that since the Council is an autonomous body, it does not notify the amended RRs and in the instant case the amended RRs were not circulated. Based on the amended RRs approved by the Governing Body on 23.12.2008, the Respondents have acted upon the same and conducted the DPC accordingly on 17.07.2009.
21. From the above submissions of the respondents through an affidavit, it is clear that the applicant was merely following the amended RRs approved by the Governing Body on 23.08.2008. We find it difficult to appreciate as to how he has been held guilty for following the directions of the Governing Body.
(OA No.1556/2020) (16)
22. In view of the above discussions and more specifically the submissions made by the respondents through affidavit 11.07.2023, we do not find that the applicant has acted in a manner unbecoming of a public servant or has committed any illegality and thus afore mentioned charges are not sustainable. Therefore, we set aside the impugned orders dated 14.08.2020 and 29.01.2020 and direct the respondents to reinstate the applicant with all consequential benefits as per extant rules as expeditiously as possible and preferably within eight weeks from the date of receipt of a certified copy of this order. No costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/