Central Administrative Tribunal - Delhi
Sansar Chand vs Union Of India on 29 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2091/2010 New Delhi this the 29th day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Sansar Chand, SFA (Homeo), Quarter No. 540, Sector-5, R.K.Puram, New Delhi-110066 Applicant (By Advocates Ms. Avni Singh and Shri Raunak Jain) VERSUS 1. Union of India, Through Union Home Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Directorate General, Sashastra Seema Bal, Through Director General, SSB Force Headquarters, East Block-V, R.K.Puram, New Delhi-1100066 Respondents ( By Advocate Shri Rajesh Katyal) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
The Applicant, Senior Field Assistant (Homeopathy) (hereafter SFA), is aggrieved that his representation for promotion to the post of Assistant Field Officer (Homeopathy) (AFO) and Deputy Field Officer (Homeopathy) (DFO) has been rejected by order dated 29.10.2009 on the ground that it is an abolished cadre and the posts of AFO an DFO do not exist.
2. The facts of the case are that the Applicant joined the Sashastra Seema Bal (SSB) in 1978 as Constable (General Duties). The SSB (Homeopathy) Service Rules, 1992 (Recruitment Rules) were notified on 28.02.1992. The Recruitment Rules provided for a hierarchy of posts as follows:
Designation Number of Posts Senior Medical Officer 1 Medical Officer 9 DFO 10 AFO 48 SFA 89 The Applicant was appointed to the post of SFA with effect from 02.04.1994 on transfer basis. He was confirmed to the post by order dated 26.07.1996. He became eligible for promotion to the post of AFO after completion of three years service in the grade of SFA in 1997. However, there was no consideration for promotion to the post of AFO in 1997. The Cabinet Secretariat issued an order dated 20.05.1999 following the directive of the Government of India for 10% cut in the sanctioned strength, abolishing 590 posts in SSB as per the annex-1. As per the annex-1 to the order, 10 posts of DFO, 48 posts of AFO and 8 posts of SFA were abolished with immediate effect. These were the posts, which were lying vacant. It was also stated in the order that the remaining posts would be abolished by attrition. By an order dated 05.07.2001, the SFAs were transferred back to their parent units/ cadres. Some of the SFAs, including the Applicant herein, approached the Chandigarh Bench of the Tribunal against the order of repatriation in OA number 640-HP-2001. The Tribunal quashed the order of abolition of posts, qua the applicant therein by its order dated 5.12.2001. The Respondents complied with the aforesaid directions and by order dated 17.01.2003 cancelled the earlier order dated 05.07.2001 transferring 79 SFAs to their parent units/caders. Subsequently, by order dated 07.05.2003 the Central Paramilitary Forces, including the SSB, were granted exemption from 10% cut in the strength.
3. The learned counsel for the Applicant would contend that with the grant of exemption to the SSB from 10% cut, the situation post-cut would be restored, that is, its effect would be as if there had been no abolition of any posts. Therefore, the question of abolition of the posts of AFO an DFO would not arise. He would further contend that all the posts were not abolished immediately and only 103 posts out of 590, destined for abolition, were abolished in the first go. As a result, the learned counsel would contend, the posts of AFO and DFO were not abolished.
4. The learned counsel for the Respondents would, per contra, contend that the posts of AFO an DFO had been abolished and these were never revived. Moreover, it was argued that the applicants in OA number 640-HP-2001 had only sought the relief against repatriation and did not seek revival of the posts. Moreover, he would contend that the Applicant had been given the benefit of Assured Career Progression (ACP) scheme and would be given the benefit of Modified ACP also, pursuant to the directions of the sixth Central Pay Commission.
5. Two things stand out in the facts of this case. First, in effecting the 10% cut, the Respondents had abolished the vacant posts of DFO (10), AFO (48) sand SFA (8). Once the cut was restored by order dated 07.05.2003, it would stand to reason that the vacant posts, as mentioned above, would also be restored. If those posts were not restored, it would be against the order dated 07.05.2003, by which 10% cut in sanctioned strength was withdrawn for the SSB. It would, in effect, mean that there had been no compliance of the directions restoring the 10% cut. Second, there has not been any amendment of the Recruitment Rules, which would show that the posts of AFO and DFO still remained in existence. There was no need for the Respondents to pass an order to restore the posts of AFO and DFO, because these will stand revived by virtue of the order dated 07.05.2003 and the Recruitment Rules, which has not been amended. There is no basis for the contention of the Respondents that the posts of AFO and DFO have ceased to exist. The only reason for abolition of the posts of AFO and DFO was the 10 % cut imposed by the Government of India in the sanctioned strength of the departments of the Government. There was no other reason for that. Once the Respondent-SSB has been exempted from the cut, status quo ante will be revived. The Respondent would have to pass a fresh order abolishing these posts, if in their view it was not necessary to operate these posts. It would otherwise be unreasonable to abolish the posts meant for promotion and make the SFAs post an isolated one.
6. It is clear, therefore, from the above discussion that the contention of the Respondents that the posts of AFO and DFO do not exist any more has no force. The Applicant will be eligible for consideration for promotion to these posts, from the date of his eligibility for the same. It was wrong for the Respondents to have given the Applicant the benefit of ACP scheme, instead of promoting him in the normal channel of promotion.
7. In the light of the above discussion, the OA succeeds. The Respondents are directed to consider the Applicant for promotion to the posts of AFO and DFO from the date of his eligibility and, if found fit by the DPC, promote him retrospectively on notional basis to these posts. He would not be eligible for back wages, but the promotion would count for the purposes of seniority and calculation of increments. These directions would be complied with within three months from the date of receipt of a certified copy of this order. No costs.
( L.K.Joshi) ( V.K.Bali) Vice Chairman (A) Chairman sk