Central Administrative Tribunal - Mumbai
Mohandas Govind Nair vs M/O Defence on 12 January, 2018
1 OA No. 161/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION NO. 161/2017.
Dated this the 12th day of January, 2018.
CORAM:- HON'BLE SHRI ARVIND J. ROHEE, MEMBER (J)
HON'BLE SHRI R. VIJAYKUMAR, MEMBER (A)
Mohandas Govind Nair,
S/o late Shri V.T.G. Nair, DOB: 02.10.1958,
Age: 58 years, working as Chief Administrative Officer,
(Group "A" Post), Under Chief Staff Officer,
(Personnel & Administration), Headquarters,
Western Naval Command, Mumbai- 400 023.
And residing at: P-68/1, Ground Floor, Defence Colony,
Mankhurd, Mumbai- 400 088, State Maharashtra.
...Applicant
(By Advocate Shri R G Walia)
Versus
1) Union of India,
Through: Secretary,
Ministry of Defence,
Integrated Headquarters (Navy),
New Delhi- 110 011.
2) UPSC (Union Public Service Commission)
Through - The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi- 110 069.
3) The Chief of the Naval Staff,
Integrated Headquarters,
Ministry of Defence(Navy),
New Delhi- 110 011.
4. The Flag Officer Commanding-in-Chief,
Headquarters, Western Naval Command,
Mumbai- 400001.
...Respondents
(By Advocate Shri R A Rodrigues )
Reserved on :- 04.01.2018.
Pronounced on:- 12.01.2018.
2 OA No. 161/2017
O R D E R
Per:- Hon'ble Shri R. Vijaykumar, Member (A)
The Applicant is a member of the General Central Service, Group A, Gazetted, Ministerial in the rank of Chief Administrative Officer. He had joined on 16.07.1985 as an Administrative Officer - Gr-II and was promoted as Administrative Officer - Gr-I on 21.11.2001 and then as Senior Administrative Officer(SAO) on 02.07.2003 from which he received his promotion to the present post on 31.12.2014. Based on the recommendations of the Sixth Pay Commission, two posts of Principal Administrative Officers with Pay Scale of PB-IV and GP Rs. 8700/- were created by the respondents in the selection category. However, Recruitment Rules were not framed for these Posts. The respondent Department, with the approval of the UPSC, issued orders for Cadre restructuring on 29.11.2016 which created these two posts, added posts at the level of CAO, SAO and Administrative Officer Gr-I while reducing an equivalent number of posts at the Grade- II level and keeping the total number of posts in this division at 71. In the interim, two officers in the CAO Grade, who were eligible by virtue of completing 15 years and 14 years in that capacity 3 OA No. 161/2017 were promoted as PAO in the new posts created. Both these Officers have retired on 31.08.2017 and 31.12.2016, the latter served for exactly one day before retirement. The Applicant's request for promotion as a senior most CAO available, was turned down on the basis that he had not completed 5 years in that capacity for consideration to be promoted as PAO. As on 01.01.2017, the Applicant had completed only 3 years and which was also the case for his immediate junior. This case was examined based on the recommendations of his Departmental Head, The Flag Officer Commanding-in-Chief, Western Naval Command, Mumbai and their letter No. CP(G)/2603/Representation/CAO dated 10.01.2017, Integrated Headquarters, Ministry of Defence(Navy), Directorate of Civilian Personnel, New Delhi- 110 011, informed the applicant that he could not be considered for the DPC held on 30.12.2016 since he had not completed 5 years of service as required in the post of CAO. They have also advised that as post of PAO carries the Pay Scale of PB-IV with Grade Pay of Rs. 8700/-, both DoPT and the UPSC consider this experience requirement as mandatory and do not wish to consider combining the service period as SAO and CAO for determining eligibility. The Department has, 4 OA No. 161/2017 however, noted that in the case of Director(NS), DoPT had considered combined service of 10 years in the grade of SNSO and NSO with minimum 3 years service in the grade of SNSO for promotion. Based on this parallel, draft rules were being framed for communicating to the DoPT and the UPSC.
2. During the hearing on 04.01.2018, the respondents produced a fax message from the Integrated Headquarters, MoD(Navy) which confirms that draft recruitment rules on the above lines had been processed and sent for approval by DoPT and UPSC, the latter has been cited as Respondent No.2 in this matter. A copy of the proposal was also furnished by which persons in the combined cadre of CAO and SAO with 10 years of service and minimum 3 years as CAO would be considered for promotion as PAO.
3. The Applicant has sought the following reliefs:
"a) This Hon'ble Tribunal will be pleased to call for the records which led to the passing of the impugned orders dated 10.01.2017 i.e. Annx.
"A1" and impugned Order dated
09.09.2016 i.e. Annx. "A2",
respectively, and after going through its proprietary, legality and constitutional validity be pleased to Quash and Set aside the same.
b) This Hon'ble Tribunal will be 5 OA No. 161/2017 pleased to hold and declare that the Applicant was entitled for promotion to the post of Chief Administrative Officer(CAO) with effect from 01.09.2011 or in the alternative with effect from 01.04.2012 and accordingly direct the Respondents to antedate the promotion of the Applicant with effect from 01.09.2011 or 01.04.2012 with all consequential benefits.
c) This Hon'ble Tribunal will be pleased to hold and declare that the Applicant was entitled to be considered for promotion to the post of Principal Administrative Officer(PAO) with effect from 01.01.2017 and accordingly direct the Respondents to consider his case for promotion and if found fit to promote him to the post of PAO (Principal Administrative Officer) with effect from 01.01.2017 with all consequential benefits.
d) This Hon'ble Tribunal will be pleased to order and direct the Respondents to issue Regular Promotion Rules for the post of Principal Administrative Officer(PAO) as posts are available; however, the same are not filled up in absence of the Recruitment Rules.
e) Any other and further Orders as this Hon'ble Tribunal deem fit, proper and necessary in the facts and circumstances of the case.
f) Costs of this Original Application is provided for."
4. In this application, the applicant has urged his request of promotion. The application essentially reflects the facts cited in the first paragraph above. He also contends that he had completed five years of service as SAO as early as July 2008 but he had not been promoted on the 6 OA No. 161/2017 vacancies in 2011 and 2012. Although the post of CAO was to be filled 50% by Deputationists and 50% by Promotion from SAO, not a single deputationist was available or was selected for these posts and they remain vacant until his appointment in 2014. He refers to the Model Calender prescribed by the DoPT which should have been followed and alleges that it was the Department's mismanagement that led to his delayed promotion and which had consequently made ineligible for the post of PAO because if he had been promoted in 2011, he would have put in five years of service by the time the first PAO post fell vacant consequent to the retirement of the incumbent on 31.12.2016. The applicant also urges that the respondents are delaying the framing of the Recruitment Rules for the post of PAO and which is affecting him both from the aspect of his career expectations and his finances.
5. On the aspect of the applicant's delayed promotion from SAO to CAO, the respondents have explained the process by which the CAO post was being filled with alternate vacancies being kept for deputationists and promotees. The 2011 vacancy was kept for a deputationist and that was the earliest point of time when the vacancy was available and for 7 OA No. 161/2017 which a claim could have been made by the applicant. However, in accordance with UPSC guidelines, the posts remained unfilled, although attempts were made to persuade the UPSC to accept the case of the applicant against the deputationist vacancy. Thereafter, one more vacancy arose in 2012 and after keeping aside the previous vacancy for promotion cases as already referred to the UPSC, this new vacancy was kept for deputationist and two applicants were interviewed but were not found eligible. Thereafter, the SRO was amended and the post of CAO has been made 100% by promotion. Thereafter, DPC was conducted for three posts including one anticipated vacancy on 05.12.2014 and the applicant was promoted w.e.f. 31.12.2014. They have denied any delay on their part and have also denied any delay in framing of the Recruitment Rules for which necessary procedures had to be gone through.
6. In rejoinder, the applicant has reiterated his request for counting his date of promotion as CAO from the date of actual vacancy at the level of CAO in 2011 for the purpose of promotion as PAO.
7. In sur-rejoinder, the respondents reiterate their previous reply and denied any mistakes on their part.
8 OA No. 161/2017
8. We have heard both the learned counsels and have carefully considered the facts and circumstances of the case, law points and contentions by parties in the case.
9. On the issue of delay in promotion of the applicant from SAO to CAO, it is quite clear that the CAO post that arose in 2011 should have been filled by a deputationist, as per the extant rules. It appears that the respondents attempted to alter these rules to favour the applicant and engaged in protracted correspondence with the UPSC with no result. Meanwhile, another vacancy arose in 2012 and they were able to keep the vacancy for deputationist but for which they received no useful or eligible candidates. At this stage, the case of the applicant could have been sponsored against the previous vacancy after the rejection was communicated by the UPSC. Instead, the respondents were engaged in altering the rules itself and making the CAO post entirely reserved for promotees and some valuable time was lost in this process and it could be argued that better oversight of these developments could have enabled earlier promotion for the applicant. However, it is difficult to hold the respondents responsible for the delay to the extent of entitling 9 OA No. 161/2017 the applicant to an antedated promotion of the year 2011 or 2012 or early 2013 for the purpose of making him eligible for a post of PAO which arose on 31.12.2016 A.N. For gaining this eligibility, he should have been promoted by 31.12.2011 whereas the person who retired in 2011 actually superannuated on 31.08.2011. During the process and discussions undertaken by the respondents which was against their own rules, this was expectedly futile. The applicant, in terms of these rules and the vacancies that arose, could only have expected to be promoted if the proper order had been undertaken by 31.03.2012 when the next vacancy arose. That date would not still have entitled him for eligibility as PAO on 31.12.2016.
10. From 2013 to 2014, there have clearly been delays in processing the applicant and other SAO cases for promotion but that will not help the applicant in terms of eligibility for the post of PAO. While on this matter, this Hon'ble Tribunal also observes from the seniority list of the entire office comprising CAO, SAO, AAO-I, AAO-II as on 01.11.2006, that by the time the applicant retires in 2018, only 9 officers will be available out of 31 officers in that list. After the applicant and his 10 OA No. 161/2017 junior are promoted as PAO, the rest would qualify in their turn if the model calender of DoPT is followed properly.
11. The above observation has its reflection upon and provides the basis for the applicant's request that his service period as CAO should be merged with his service period as SAO to be considered for the post of PAO. It is noticed that after the applicant superannuates in October 2018, the next senior would be eligible for the post of PAO only after completing 5 years as CAO by 31.12.2019 and it could be reasonably expected that this post of PAO which is 100% reserved for promotion would again fall vacant for more than a year. It is, therefore, no surprise that the Department itself has initiated a proposal for combining the period of service as SAO and CAO for the purpose of effecting promotions to the level of PAO. These proposals by way of Recruitment Rules are at an advanced stage as has been intimated during the last hearing and is now available in the DoPT and the UPSC and is awaiting their approval.
12. The scope for judicial review by this Hon'ble Tribunal is limited and the Tribunal cannot substitute itself and its judgment for the 11 OA No. 161/2017 administrative duties and cadre management functions that have to be carried out by the DoPT to whom these proposals have been submitted and through whom it would go to respondent No.2(UPSC). Since respondent No.2(UPSC) have alone been impleaded in the matter, it is, therefore, considered appropriate to direct Respondent No.2, UPSC, to consider the Recruitment Rules proposed for the post of PAO in the light of the situation in the Department and the case of the applicant and to take a decision within six weeks of this order that would be in the overall interests of orderly administration which was the purpose for creating a post of this kind and for cadre restructuring in accordance with the directions of the Sixth Pay Commission. To enable this process, we also direct Respondent Nos. 3 & 4 to send proposals to the Respondent No.2 to convene the DPC and decide the matter in the time limits set above.
13. In these circumstances, this OA is allowed to the extent of the directions given above without any order as to costs.
(R. Vijaykumar) (Arvind. J. Rohee) Member (A) Member (J) Ram.