Central Administrative Tribunal - Delhi
Sandeep Singh vs Union Of India on 18 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1288/2009 Order reserved on: 30.09.2013 Pronounced on:18.02.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V.N. Gaur, Member (A) 1. Sandeep Singh, S/o Shri B.P. Singh, R/o S-2, 4/327, Vaishali, Ghaziabad, U.P. 2. Raghbir Singh, S/o Shri Mehar Chand, R/o B-121, Hari Nagar, New Delhi-110064. 3. Shiv Prasad, S/o late Shri Ram Prasad, R/o H-11, Shakarpur, New Delhi-110092. -Applicants (By Senior Advocate Ms. Jyoti Singh with Shri Ajesh Luthra and Mr. Tinu Bejwa, Advocates) -Versus- 1. Union of India Ministry of Defence, South Block, New Delhi-110011 Through its Secretary. 2. The Joint Secretary (T) & CAO, Ministry of Defence, E Block, New Delhi-110011. -Respondents. (By Advocate: Shri Amit Anand) O R D E R Mr. V.N. Gaur, Member (A):
The applicants in this case, who were appointed as Section Officers after qualifying in Limited Departmental Competitive Examination (LDCE) held in the years 2003, 2002 and 2004 in the Armed Forces Headquarters Civil Service (AFHQCS), have sought the following reliefs:
(i) Call for the relevant records of the respondents;
(ii) Declare the Letter No.A/47995/CAO/P-1 dated 30.9.2008 (Annexure-A Impugned) as illegal, arbitrary and discriminatory and quash the same;
(iii) Declare the Annexure-III to Letter No.A/47955/NFS /CAO/P-1 dated 15.12.2008 (Annexure-A-1 Impugned) to the extent it indicates the reckoning of the approved service of the applicants and other similarly placed persons one year later than the actual date from which the applicants and similarly placed persons have become eligible to have the benefit of non-functional-pay scale of Rs.8,000-13,500 (pre revised and revised to pay scale of Rs.15600-39100 in the Pay Band-3 with grade pay of Rs.5400/-) as illegal and arbitrary and quash the same and declare such list annexed with their letter dated 11.9.2008 (Annexure-A-4) as correct and the persons, including the applicants, to be entitled for the benefits of approved service as per such list.
(iv) Declare that in view of the provisions of Rule 2 (b)(ii) of AFHQCS Rules, 2001 coupled with the decisions/orders dated 11.9.2008, 22.9.2008 and 25.9.2008 of the respondents, the applicants and similarly placed persons are entitled for grant of the Non-functional pay-scale of Rs.8,000-13,500 (pre-revised and revised to pay-scale of Rs.15600-39100 in the Pay Band-3 with grade pay of Rs.5400/-) on completion of 4 years in the grade of Section Officer from the 1st day of January of the year for which the Limited Departmental Competitive Examination was held for filling up the post of Section Officer;
(v) Direct the respondents to accord the consequential benefits viz. refixation of pay from the correct date, arrears of pay and 12% interest on such arrears;
2. The applicants were promoted to the grade of Section Officer on the basis of the Limited Departmental Competitive Examination (LDCE) held in the years 2002, 2003 and 2004. According to the order issued by the respondents on 25.09.2009 they were entitled to grant of Non-Functional pay scale of Rs.8000-13500 (pre-revised) after completion of 04 years of approved service. The respondents are counting their approved service w.e.f. 01.01.2003, 01.01.2004 and 01.01.2005 while the applicants claim that the same should be counted from 1st January of the year in which the LDCE was held, i.e., 2002, 2003 and 2004 respectively.
3. The respondents had introduced the amended AFHQCS Rules, 2001 with a provision for 40% promotion to the grade of Section Officer through LDCE from the year 2001. As the vacancies for 2001 could not be communicated to the UPSC and required formalities not completed well in time, the Department could not participate in the LDCE 2001. The applicants, therefore, appeared in the LDCE, 2002 held from 26th to 29th December, 2002, which, according to the applicants, was conducted for the carried over vacancies of 2001, vacancies of 2002 and the anticipated vacancies of 2003-2004 for preparing year-wise select list for these years. In support of their arguments the applicants have drawn parallel with the advertisement issued by the respondents (UPSC) for filling up LDCE quota vacancies for three years 2006, 2007 and 2008 wherein separate vacancies have been mentioned for each year. Similarly the seniority quota vacancies of the years 2001-02 to 2007-08 were also filled up by preparing year-wise select list on 11.06.2009 in terms of the same recruitment rules. Thus the respondents should have prepared year-wise panel for the years 2002-03 and 2003-04 on the same analogy.
4. The respondents have, however, taken a stand that the LDCE conducted in December, 2002 was for the vacancy year 2003-04. The applicants had approached this Tribunal through OA-766/2007 where this Tribunal had directed the respondents vide order dated 26.10.2007 to pass a speaking order with regard to the question of granting Non-Functional Selection Grade (NFSG) to Section Officers of AFHQ at par with Central Secretariat Service (CSS). The respondents passed an order dated 25.10.2007 in compliance of the aforesaid direction on 22.09.2008. The respondents also issued sanctioned order on 25.09.2009 for extending the provision of NFS to AFHQCS at par with the CSS Rules, i.e., from 1.1.996 with actual benefit accruing from 03.10.2003. Vide a Note dated 11.09.2008, the respondents no.2 clarified to Deputy CAO (A) and Director (PC), Air Headquarter that the approved service in respect of the LDCE qualified officers will be counted from 01 January of the year for which examination was held. This Note was subsequently held in abeyance vide order issued by respondent no.2 dated 30.09.2008. It was followed by another order issued by respondent no.2 on 15.12.2008 superseding the earlier notes dated 11.09.2008 and 30.09.2008 and in effect altering the approved service of LDCE mode to be counted from 2003 instead of 2002. No such change was made in the service of direct recruits and seniority mode promotees to the grade of Section Officers.
5. The applicants approached this Tribunal again vide OA 1288/2009 seeking relief that they should be granted NFS on completion of 04 years approved service from the year of examination. This Tribunal dismissed that OA vide order dated 23.12.2009 holding that the words of the year for which such examination is held would therefore mean the vacancy year and in accordance with the interpretation put forward by the respondents. It would not be the year by which the Departmental examination is merely designated. The applicants then filed W.P.C. no.7538/2010 in the matter of Raghbir Singh and others v. Union of India and Anr. against the decision of the Tribunal in OA-1288/2009 before the Honble High Court of Delhi. This Writ Petition was dismissed, in limine, by the Honble High Court vide judgment dated 10.11.2010 with the following order:
12. We entirely agree with the reasoning of the Tribunal.
13. Suffice would it be to state that the expression from the first day of January of the year for which such examination was held plainly and simply read means the first day of the month January of the year for which the examination was held and not the year in which the examination was held.
14. A feeble attempt has been made to argue that the examination in question was not held for the anticipated vacancies.
15. To sustain the argument reliance is sought to be placed on the notification at page 153 of the writ petition. It is urged that the notification does not state that the examination is for anticipated vacancies.
16. The argument is rejected for the reason firstly we do not find it being urged before the Tribunal. Secondly, it is true that the notification does not state that the examination is being held for the ensuing vacancies, but it does not even state that the examination is being held for the vacancies which have already arisen. We have no reason to disbelieve the stand taken by the respondents in the counter-affidavit filed before the tribunal that the examination was held for the ensuing vacancies for the year 2003-2004.
17. Writ Petition is dismissed in limine. Since the writ petition has been dismissed in limine the application is dismissed as infructuous.
6. The applicants filed review petition no.246/2011 in W.P.C. no.7538/2010 before the Honble High Court of Delhi mainly on the ground that there existed LDCE quota vacancies of the year 2001-02 and 2002-03 which the respondents as per the recruitment rules and DoP&T instructions on the subject were bound to consider and the LDCE 2002 was actually held for the vacancies of the year 2002-03. The Honble High Court vide judgment dated 04.08.2011 disposed of the RA-246/2011 by recalling the order dated 10.11.2010 by which order the Review Petition was dismissed in limine and passed the following order:
1. Review of the order dated 10.11.2010 is being sought with reference to the documents and the pleadings before the Central Administrative Tribunal wherefrom it is sought to be projected that the Limited Departmental Competitive Examination was not only for the anticipated/ensuing but even for the existing vacancies.
2. Learned counsel concedes that in para 16 of the order sought to be reviewed, it is correctly recorded that this argument does not find a mention in the impugned decision of the Tribunal.
3. However, counsel states that as a matter of fact, the pleadings in the Original Application were not abandoned and an argument was advanced before the Tribunal on the ground that the examination in question was not limited for the ensuing/anticipated vacancies but embraced the existing vacancies as well. 4. Settled position of law is that where an argument is advanced before a Fora and is not dealt with by the Fora, an application needs to be moved before the Fora drawing attention of the members of the Fora that an argument advanced has not been dealt with.
5. The reason for law so requiring is that many a times arguments are taken up by way of pleadings but abandoned during hearing.
6. To resolve the dilemma, learned counsel for the petitioner states that if this Court were to recall the order dated 10.11.2010, petitioners would be willing to make a statement that they do not press the writ petition so that they can move an application before the Tribunal pointing out to the Tribunal that arguments were advanced with reference to the pleadings and the documents annexed, that the examination in question was not restricted to the ensuing/anticipated vacancies but embraced the existing vacancies as well.
7. Accordingly we dispose of R.P.No.246/2011 by recalling the order dated 10.11.2010, by which order the writ petition was dismissed in limine.
1. Having recalled the order dated 10.11.2010 dismissing the writ petition, we highlight that the principle of merger of the impugned order in the order dated 10.11.2010 would not be applicable.
2. We take on record the statement made by learned senior counsel for the petitioners on instructions from the briefing counsel that the writ petition may be permitted to be withdrawn with right reserved for the petitioners to move an application before the Tribunal pointing out thata submission pleaded and urged at the oral hearing has not been dealt with by the Tribunal.
3. The writ petition is dismissed as not pressed.
4. Needless to state, if an application is filed before the Tribunal, the same would be decided in accordance with law and for the purposes of limitation the Tribunal would take cognizance of the fact that the instant writ petition was dismissed in limine on 10.11.2010. Review of the said order was sought vide R.P.No.246/2011, which review application has been disposed of today.
5. No costs. Liberty was granted to the applicants to move an application before this Tribunal. The applicants accordingly filed RA-314/2011 which was allowed by the Tribunal vide order dated 05.12.2012.
7. Referring to Rule 2 (b) of AFHQCS Rules, 2001 the learned counsel of the applicants submits that the approved service of an entrant to Section Officers grade through LDCE is counted from the 1st day of January of the year for which such an examination was held and accordingly a Section Officer appointed through LDCE 2002 will reckon his approved service w.e.f. 1.1.2002. In accordance with this understanding of approved service the respondents had directed the concerned authority vide note dated 11.09.2008 to fix the pay of all eligible SOs who had completed 4 years of approved service as on 1.1.2006 inter alia, including the SOs of LDCE 2002 by reckoning their approved service w.e.f. 1.1.2002. This was subsequently reversed vide note dated 15.12.2008. The learned counsel referred to the advice of DoP&T as contained in Annexure X-36 (page 450 of the paper-book) advising the Ministry of Defence to follow the procedure adopted in CSSS where the system of holding examination two years in advance was not followed.
8. It was submitted that the vacancies pertaining to the year 2001-2002 and 2002-2003 were available at the time of holding LDCE examination in December 2002 and the mandate of the 2001 Rules was to fill those vacancies through LDCE-2002. 40% of the vacancies in the grade of SO for each of the year 2001, 2002 and 2003 onwards were mandated to be filled by LDCE and, therefore, it was an arbitrary decision on the part of the respondents not to fill up the vacancies for 2001-2002, 2002-2003 and subsequently divert it to the seniority mode of selection on 07.04.2011 giving illegal benefits at the cost of LDCE mode officers in violation of Articles 14 and 16 of the Constitution of India. If the respondents were not in a position to communicate LDCE vacancies to the UPSC in time for the examination held in 2001, it cannot result into lapse of those vacancies from the LDCE quota.
9. Further, as per DoP&T OM dated 19.07.1989 and 17.09.1989 (Annexure X-22 colly.) the crucial date for determining eligibility for promotion will always be with reference to the vacancy year and as per the aforesaid OMs with reference to crucial date of eligibility of 01.07.2002 or 01.10.2002 or 01.01.2002, referred to in the OMs, the vacancy year would be either calendar year 2002 or financial year 2002-2003. In no case it would be 2003-2004. Accordingly, all other sister services participating in LDCE 2002 considered the vacancies of the year 2002-03. Since there cannot be two vacancy years with reference to one crucial date of eligibility of 01.07.2002 as stipulated in Rule 3 of Rule for LDCE 2002, vacancy year in respect of AFHQCS would also be 2002-2003.
10. It is further contended that if the respondents stand is accepted, then by fixing crucial date of eligibility in the year 2002 the candidates who were eligible to appear in LDCE only against the vacancies of the year 2003-04, were not even allowed to sit in the LDCE 2002. For example one Rajay Kumar Dubey was directly recruited to the grade of Assistant through examination of the year 1996 which was held on 27th July 1997 and his date of appointment to the grade of Assistant was 30.06.1998. Hence, he was completing both the eligibility conditions, as prescribed in Schedule IV (Sl. No.5, col.4) of Rules 2001 and Rule 3 of the Rules for the departmental examination as on 27.07.2002 and was duly eligible to appear in LDCE 2002 against the vacancies of the year 2003-04. But, he was not allowed to appear in LDCE 2002 by UPSC, which according to the contention of the respondents was for the vacancies of the year 2003-04. Such persons have suffered double jeopardy as they were not allowed to participate in the LDCE 2002 by determining their eligibility in 2002 and when declared successful in LDCE 2003 by UPSC (Sl. No.08 of Supplementary List (Annexure X-28 colly.) the respondents have added them to the select list of the year 2004-05 and counted their approved service from 01.01.2004, which is in contradiction to Rule 2 (e).
11. The learned counsel for the applicants further submitted that while communicating the tentative number of vacancies to the UPSC for LDCE 2002 vide letter dated 21.05.2002 there was no such indication that these vacancies were not meant for 2002-2003. It was also submitted that the vacancies for 2001-02, 2002-03 were filled up by the respondents wrongly using Rule 7 (5) and proviso to Schedule IV (sl. No.5, column-3 II (proviso) through seniority mode on 07.04.2011. When the candidates were available in LDCE 2002 for filling up vacancies for 2001-02 and 2002-03 the respondents could not have resorted to the aforesaid provision of the rules for diverting the vacancies for promotion purpose. The respondents have used the order passed by this Tribunal on 23.12.2009 in this OA as legal support for their action. This action of the respondents has also been challenged by other similarly placed LDCE mode officers in OA-2145/2011 in the matter of Shri Mohinder Sigh & Ors. v. UOI & Ors.
12. The applicants have further submitted that filling up of LDCE quota vacancies by seniority by conducting examination for the vacancies in question by reporting the vacancies to the recruiting agency UPSC is not permissible in law, as is evident from the decision of the Honble Supreme Court in Suraj Prakash Gupta v. State of J&K, 2000 (7) SCC 561, where the Honble Supreme Court ruled that:
39. Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided that in case suitable candidates are not available for promotion, the posts shall be filled up by direct recruitment and vice versa. Thus, there must be evidence that suitable candidates were "not available" for direct recruitment. Such non-availability cannot be inferred when, as a fact, not even a reference is made to the Commission to find out if upon advertisement, anybody will respond. Thus there is no breaking down of the quota rule. On the issue of inter-changeability between the quotas earmarked for two sources of recruitment not being permitted the applicants have further relied on the Honble Apex Court decision in Civil Appeal No.1384 of 2008, AFHQ/ISOs SCs (DP) Association & Ors. v. Union of India & Ors. with Civil Appeal No.1325/2008 AFHQ Officers Association & Ors. v. Union of India & Ors., V.P. Badami etc. v. State of Mysore and Ors., [1976] 1 SCR 313, M. Subba Reddy & Another v. A.P. State Road Transport Corporation & Others, Civil Appeal No.4907 of 1999 and S.G. Jaisinghani v. Union of Inida & Ors., AIR 1987 SC 1427.
13. The Honble Apex Courts decision in Union of India & Ar. V. Hemraj Singh Chauhan & Ors. in Civil Appeals No.2651-52 of 2010 has also been relied on the point that the right of eligible employees to be considered is virtually part of their Fundamental Right guaranteed under the Constitution of India. The following citations have also been relied upon:
(i) Jagdish Prasad v. State of Rajasthan & Ors. in Civil Appeal nos.5102-5103 of 2011 (Arising out of SLP (C) no.20693-20694 of 2009).
(ii) Union of India & Ors. v. N.R. Parmar & Ors. in Civil Appeal nos.7514-7515 of 2005.
(iii) Gonal Bihimappa v. State of Karnataka & Ors. (1987 Supp. 207).
14. The learned counsel for the respondents refuted the averment of the applicants that there was any error to the effect that the approved service of LDCE, 2002 selectees will be counted from 1.1.2002. It was submitted that the note dated 11.09.2008 was an internal communication and not an administrative order for grant of NFSG and as such this order has no legal sanctity. Referring to copies of notings in the relevant file of the Ministry annexed to the MA-292/2013 in the present OA, the learned counsel sought to establish that the respondents had taken a conscious decision to communicate only the anticipated vacancies for 2003-04 for the LDCE 2002. It is a natural corollary that for the vacancies of 2003-04 the approved service will be counted from 1.1.2003. The entire thrust of the argument of the learned counsel was that since the vacancies for 2002 were not communicated, and the LDCE 2002 was held for the anticipated vacancies of 2003-04, the claim of the applicants cannot be entertained. He also referred to the earlier order of this Tribunal in this OA (1288/2009) where the issue regarding interpretation of clause of the year for which such an examination is held has already been settled by saying that mere nomenclature of LDCE 2002 does not automatically imply that the vacancies relate to that year. With regard to the decision of the respondents of not communicating the 2002 vacancies to UPSC for LDCE, 2002 the learned counsel asserted that the decision as to the vacancies of which year are to be included in an examination for a year was an administrative matter. The respondents had detailed deliberations before taking a conscious decision to indicate the vacancies for LDCE for SO grade one year in advance. He did not deny the availability of vacancies for that year but emphasized on the prerogative of the Department to decide the year of the vacancies to be intimated for LDCE. The learned counsel pointed out that the respondents had powers as per Rule 7 (5) read with Schedule IV of AFHQCS 2001 to divert LDCE vacancies to seniority quota in the event of sufficient number of candidates not being available to LDCE. Accordingly, the LDCE vacancies pertaining to the year 2002 were diverted to promotion by seniority quota. He further stated that the judgments of the Honble Supreme Court quoted by the applicants are not relevant in this case, as the LDCE 2002 was never held for the vacancies for 2002. It related to vacancies for 2003-04 and, looking at these judgments from that perspective, there was no contradiction.
15. We have gone through the pleadings on record and the oral submissions made by the learned counsels from both the sides. The applicants have sought to establish that the LDCE 2002, notwithstanding the averment of the respondents that it was meant for the vacancies for 2003-2004, could not have excluded the vacancies for 2002. Once the statutory rules came into force in 2001, it was the duty of the respondents to fill up LDCE quota vacancies in accordance with the statutory provisions. The applicants case is primarily based on three grounds:
i) Since the LDCE was held in 2002, the selectees of that examination are entitled to their service being counted from 01.01.2002.
ii) Since the respondents or the UPSC in their communication had not explicitly communicated as to which year the vacancies pertained to, it was obvious that the 2002 vacancies were included in the LDCE for which the LDCE, 2002 was held.
iii) The respondents had no authority to withhold the LDCE vacancies of 2002 from the LDCE, 2002.
16. On the first issue this Tribunal has already come to the conclusion that there were no ambiguities as far as the provisions of the recruitment rules are concerned. The approved service of a selectee will have to be counted from the 1st day of January of the year for which such examination was held and this position was also accepted by the Honble High court in Writ Petition (Civil) no.7538/2010 (supra). We will, therefore, deal with the remaining two issues, which is also the term of remand in Honble High Courts order in R.P. no.246/2011. The respondents have produced copies of original record where the decision was taken by the respondents to communicate the vacancies for the LDCE, 2002. From the discussion in the notings it is clear that it was a conscious decision of the respondents to restrict to the anticipated vacancies for 2003-04 and not to communicate the vacancies of 2002 or earlier. Once we accept this position, most of the arguments of the applicants become irrelevant because it automatically implies that the approved service will have to be counted from 1.1.2003 since the recruitment was done for the vacancies for the year 2003-04. Even the judgments of the Honble Apex Court cited by the learned counsel for the applicants would not apply, as they refer to the approved service being counted from the vacancy year and that is being done in this case. Therefore, the only issue that needs to be explored further is whether the respondents had the discretion of withholding existing vacancies from LDCE, 2002?
17. It is an admitted fact that the vacancies did exist in the year 2002 while notifying to the UPSC the vacancies for LDCE, 2002. Now the question is as to why the same were not communicated. Here neither the extracts of the notings annexed by the respondents with their reply nor any averments throw any light except the statement that it was an administrative matter. During oral arguments the learned counsel for the respondents even submitted that it was the prerogative of the respondents to fill up or not to fill up the vacancies occurring in any grade. We accept this argument provided the decision taken by the respondents not to fill up the vacancies is based on some reasoning and it is consistent over a period of time. In the present case we do not find these conditions to be fulfilled. No reason has been given as to why the respondents decided not to notify the existing vacancies for the LDCE 2002 and if the same were not to be filled up for some cogent and logical reasons, then they also did not have the liberty to divert the same to the promotion quota and fill it up by promotion in the year 2011. The administrative discretion cannot be exercised arbitrarily to promote discrimination or to favour one group or other. In this regard we draw upon the Honble Apex Court judgment in M. Subba Reddy (supra) where the Honble Court held that having fixed the quota between the two sources of recruitment, there is no discretion with the corporation to alter the quota or to deviate from the quota and another judgment of the Honble Apex Court in S.G. Jaisinghani (supra) where the Honble Court reiterated the above proposition and held that having fixed the quota between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. We, therefore, hold that the respondents erred in not communicating the existing vacancies at the time of notifying the vacancies for LDCE, 2002. Had they notified the existing vacancies to LDCE being held in the same calendar year, i.e., 2002 the selectees of the LDCE, 2002 would become entitled for counting approved service w.e.f. 1.1.2002 in accordance with the settled position with regard to the rules, as mentioned above. Thus, in respect of applicant no.2, who is a selectee of LDCE, 2002, the panel will have to be redrawn with reference to the existing vacancies for the year 2002 and if he gets selected on the basis of his position in the merit list of LDCE, 2002, the date for counting approved service will be fixed as 1.1.2002.
18. The case of applicants no.1 and 3 is based on interpretation of the rules to the effect that the seniority of a selectee of LDCE of a particular year will be counted from the 1st January of that year. This issue has already been settled (supra). Once we accept the principle that the respondents have no discretion to withhold any LDCE vacancies and are bound to notify the same for the LDCE of the year, there will be cascading effect of redrawing the panel for the vacancies of 2002 and there will be unfilled vacancies available in the years 2003 and 2004 also which should have been notified to the LDCE of those years (2003 & 2004), had the respondents not withheld the existing vacancies of 2002 from being notified. As a result, the panels for LDCE of 2003 and 2004 will also have to be redrawn and the positions of applicant nos.1 and 3 decided based on their respective merit position in those examinations.
19. In view of the aforementioned facts and reasons we quash the letter dated 30.09.2008 issued by the respondents and order that the panels for the LDCE held in the years 2002, 2003 and 2004 will be redrawn, taking into account the vacancies existing in each of those years along with the anticipated vacancies for the next year. If the applicants on the basis of their position in the merit list for the respective years get selected for that year, their seniority will count from the 1st January of the vacancy year and they will be entitled to Non-Functional Grade after completion of four years from that date. They will, however, be entitled for arrears for two years preceding the date of this order. Considering the circumstances in this case, the applicants will not be entitled to any interest. This exercise shall be completed by the respondents within a period 03 months from the date of receipt of a copy of this order and NFSG of Rs.8000-13500 (pre-revised) and revised to Rs.15600-39100 in the Pay Band-3 with Grade Pay of Rs.5400/- will be given to the applicants, if they become entitled for the same in terms of the orders of this Tribunal.
20. The OA is allowed in the aforesaid terms with no order as to costs.
(V.N. Gaur ) (V. Ajay Kumar ) Member (A) Member (J) San.