Central Administrative Tribunal - Delhi
Davender Verma, S/O Late Ajeet Singh ... vs Union Of India (Uoi) Through Its ... on 18 February, 2008
ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicant belongs to the Indian Statistical Service. The grievance highlighted is with reference to the disinclination shown by the respondents in the matter of not granting him promotion to the Senior Administrative Grade (SAG). This is in spite of the circumstance that the Departmental Promotion Committee (DPC) had recommended him for promotion on 17.08.2006. It is stated that the ACC had approved his candidature. Twenty-four officers junior to him as well as some seniors have already been promoted to SAG on ad hoc basis. He could not have been, therefore, subjected to discrimination.
2. The applicant submits that but for the circumstance that he was on foreign assignment, he would have been promoted to the said grade along with his colleagues. He had been available for promotion from 01.06.2007, after his foreign assignment. His representations submitted from time to time were not being properly attended to, the first of which was sent on 07.05.2007 intimating the respondents that on conclusion of the deputation, he was to join duty in the Department effective from 01.06.2007.
3. The applicant is aware that the situation is not entirely the handiwork of the Department. He refers to two orders passed by this Tribunal, one in OA No. 1831/2006, disposed of on 11.01.2007 and another in OA 1381/2007, which had been finally decided on 10.10.2007. Although it had been submitted that the promotion has been denied to him, because of the specific direction made in OA 1381/2007, it is conceded that even before this judgment had come to be passed, he had been in unsure waters, perhaps because of the presence of the judgment in OA 1831/2006. Mr. Rungta, Learned Counsel appearing for the applicant, submits that the applicant was not a party to any of the above said proceedings and the observations that might have led to his disadvantage could not have been binding on him. Denial of promotion operates so as to violate his fundamental rights of equality. He submits that he is entitled to promotion from 17.08.2006 notionally as on that date his junior had been promoted on ad hoc basis to the SAG cadre.
4. On the suggestion made by us, the applicant had taken steps to implead the present second respondent, who was the applicant in the two Original Applications referred to in the OA. We had heard Mr. Gangwani, appearing on behalf of the first respondent. Second respondent had appeared in person. We had been taken through the counter replies filed, and had been given a comprehensive picture of the situation that were and are prevailing. It is not disputed that the two orders referred to earlier, are presently the subject matter of writ petitions, but there are no interim orders whereby their operation has been stalled.
5. The DPC, in the meeting held on 17.08.2006, had cleared a number of officers for promotion on ad hoc basis to SAG cadre. A select list had been drawn and it is not disputed that the applicant herein was included in the select list. There was a supplementary list as well, and it appears that the second respondent had come to this Tribunal on a second occasion when this was also about to be put into operation.
6. According to the second respondent, the DPC had deliberately overlooked his claims for promotion by incorporating unwarranted entries in his service records and, as a matter of fact, by the order in OA 1831/2006, such remarks were directed to be expunged and he was, in effect, thereby directed to be considered for promotion by a review DPC. The second Original Application was constrained to be filed because in spite of the above directions, no DPC had been convened and the supplementary list was arranged to be put in operation. Taking notice of the submissions made, it had been directed by the Bench in OA 1381/2007 on 10.10.2007 that the respondent was to take immediate steps, as are required to assess the credentials of the applicant there for promotion to SAG cadre, forthwith. This was to be carried out as time bound and was not to await consideration of any other cases/claims and it had been directed that no promotions from the list of candidates cleared by the DPC held on 17.08.2006 were to be made till such time such claims had been appropriately examined.
7. We, of course, note that after 10.10.2007, because of this order, the applicant's claim would not have been possible to be considered by the Department, prior to consideration of the case of Mr. Mohanty (second respondent herein). By carrying an appeal, the Department had practically permitted itself to be in a situation of stalemate.
8. However, from materials produced, it could not be stated that the applicant herein has been effectively prevented from getting promotion in spite of the clearance by the DPC and ACC only because of the later judgment. He was available in the Department from 01.06.2007 onwards. Judgment dated 10.10.2007 was only a later hurdle. The Department apparently had taken up the issue of promotion of the applicant partly in response to his representations. On the basis of the materials collected under the RTI Act, Learned Counsel for the applicant submits that his claims have been cleared by all concerned. But we do not think, the position as asserted, was available.
9. In the above background, we had adverted to the order passed in OA 1831/2006. We are convinced that it would not have been possible for the Department to oblige the applicant with promotion for more reasons than one and that was the reason why his claims were not favorably taken up.
10. The Bench had examined the issues with particular reference to the special rules governing the service, namely, the Indian Statistical Service Rules, 1961 issued under the proviso to Article 309 of the Constitution of India by the Ministry of Home Affairs on 01.11.1961. As could be gatherable from Paragraph 41 of the judgment, the Tribunal was of the opinion that under Rule 8 (1) (f), a Junior Administrative Grade officer with eight years of regular service alone could have been considered for promotion to the next grade of SAG. The Department had contended that a relaxation had been made after consultation with the DOPT on 24.05.2006. This conduct was not approved, as could be gatherable from the order. The Tribunal had noted the minutes of the internal Selection Committee that excepting four officers, no officers were eligible to be promoted to SAG level since they had not completed eight years of regular service. Notes indicated that there was necessity to fill the post, created on the basis of cadre review.
11. DOPT had been requested to accord relaxation in the qualifying service for promotion to SAG grade for the year 2006-07. They had agreed to the proposal as a special case in respect of the posts for the year 2006-07. The promotions were granted on ad hoc basis. The Bench had observed that Rule 10, though it referred to powers of the controlling authority, nevertheless held a mandate under Sub-rule (iii) that ad hoc promotions could have been resorted to, only after following the procedure laid down in Rule 8 employed for filling regular vacancies. Sub-rule (f) of Rule 8, while dealing with promotion to Senior Administrative Grade required that promotions were to be on the basis of recommendations by a DPC presided over by Chairman/Member of the UPSC. This had not been there. The Tribunal was also of the opinion that, of course, there was power for relaxation but the Authority was empowered to relax any of the provisions of the rules only in consultation with the U.P.S.C. Therefore, the relaxation given by the DOPT alone was noticed as incompetent, when persons with less than eight years of service were permitted to be promoted.
12. Per se, coming to notice that irregularities of this nature, the promotions had been frowned upon in the proceedings but the Bench was reluctant to pass orders which would have adversely affected persons who were already on ad hoc promotion, since they were not parties to the proceedings. By directions in paragraph 44, in effect, the proceedings of the DPC dated 17.08.2006, were declared as bad in law and quashed. More importantly, the respondents were directed to convene a fresh DPC on the basis of Rule 8 (1) (f) of the ISS Rules, 1961 and consider the case of eligible officers for regular promotion from JAG to SAG. The second respondent points out that this could not have been construed as unreasonable by any standards as the directions were to follow the Rules.
13. We have to take notice of the observations made by the Tribunal as above in the earlier proceedings. The operation of the order had not been stayed. The judgment entirely rests on provisions of the rules binding the Department as well as the officers and by any process known to law, it may not be possible for us to water down the directions, review it or annul the impact created thereby. The Department appears to be justified in taking a stand that after the judgment dated 11.01.2007, it would not have been possible to promote the applicant to SAG even if he had been cleared by the DPC as also the ACC. By the time they were to consider applicant's promotion, the position of law had been explained and they were obliged to hold a regular selection. The perfunctory select list was held as irregular as well. The applicant has no case that on the date of DPC meeting he had the qualifying service prescribed by the rules for promotion to SAG. To direct him to be promoted, when we have been made aware of the facts, ignoring the circumstance, plainly will be irregular and contrary to rules.
14. The second respondent also points out that the relaxation given by the DOPT itself pertained to the year 2006-07 and although the beneficiaries were continuing, the applicant could not have posed himself as a person, to be accommodated against the said year, as he was available only after 01.06.2007. We do not think, we are to examine or pronounce upon these aspects. The applicant has not been able to establish that the Department is in error in not conferring him with promotion. It may be that his juniors on ad hoc basis are continued in the SAG grade, but we hope better sense will prevail upon the Department to see that rule of law is permitted to have its operation, and the temporary arrangements are replaced by proper selection and appointment. The arrangements are continuing far too long, and without authority of law. We need now only refer to the gist of observations of the Supreme Court in A.K. Bhatnagar v. Union of India 1991 (1) SCC 545. Once Government frames Rules, follow up steps should be regulated by them alone. Rules under Article 309 of the Constitution are solemn, having binding effect. Often Government gets themselves trapped by overlooking the presence of Rules, and it is essential that they should refrain from pursuing such a conduct.
15. Mr. Rungta submitted that the orders of the Tribunal, where his client was not a party may not bind him, and at least it should not result in his client's rights getting jeopardized. But we have to notice that the judgments bind the Department. At every stage, it had been specifically made known that the consequential steps to DPC were subject to the final directions to be passed. The submissions, therefore, cannot be accepted so as to further the interests of the applicant. While disposing of OA 1381/2007, these aspects had not been closely gone into. Even now it would be, therefore, fair for the Department to examine the matters purposively, and come up with proceedings whereby the just claim of officers are appropriately attended to.
16. In the course of the proceedings, finding that the applicant was not being paid his salary, we had directed payment of a lump sum to the applicant, to be adjusted appropriately, as the applicant was available for duties from 01.06.2007. The first respondent is to ensure that salary as admissible to him is paid in the Junior Administrative Grade, uninterruptedly. Any other interim orders passed will stand vacated. The OA is dismissed. Parties to suffer their own costs.