Central Administrative Tribunal - Lucknow
Vashesh Vyas Aged About 38 Years Son Of ... vs Union Of India Through Ministry Of Urban ... on 13 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No. 411/2005
This, the 13th day of February, 2012
Honble Mr. Justice Alok Kumar Singh, Member (J)
Honble Sri S.P.Singh, Member (A)
1. Vashesh Vyas aged about 38 years son of Sri Mahesh Kumar Vyas, resident of MD/S-72, Sector G LDA, Colony Kanpur Road, Lucknow.
2. Ashutosh Kumar Sahu, aged about 29 years son of Sri Nand Kishore Sahu, resident of S-III/21, Akansha Parisar, Sector F, Jankipuram, Lucknow
Applicants
By Advocate: Sri M.M.Srivastava
Versus
1. Union of India through Ministry of Urban Developmen
and Poverty Alleviation, New Delhi.
2. Director General (Works), Central Public Works Department, Nirman Bhawan, A Wing, New Delhi.
3. Senior Architect NZ-II, Central Public Works Department, IVth Floor, Kendriya Bhawan, Aliganj, Lucknow
4. Chairman, Union Public Service Commission, New Delhi.
Respondents.
By Advocate:.Sri R. Mishra for respondents No.1,2 and 3
Sri Pankaj Awasthi for Sri A.K. Chaturvedi for
Respondents No.4
(Reserved on 7.2.2012)
ORDER
By Honble Mr. Justice Alok Kumar Singh , Member (J) This O.A. has been filed for the following reliefs:-
8(A) issue an appropriate order or direction to the opposite parties not to hold departmental promotion committee for promotion on the post of Architects from Assistant Architects without considering the case of applicants for promotion on the said post.
8(A)(i) issue appropriate order or direction to the opposite parties to consider the case of the applicant for promotion on the post Architect in accordance with the available promotion quota in the rules applicable prior to 2004 by relaxation with the consultation of the Union Public Service Commission within stipulated time.
2. The case of the applicant is that they were appointed by direct recruitment on the post of Assistant Architects in Central Public Works Department on 12.10.2000 and 20.12.2000 respectively. Presently, they were working under the Opposite Party No. 3 at Lucknow . Their names find place at Sl. No. 29 and 32 respectively in the seniority list (Annexure No.1). Earlier, Central Architects Service Group A Rules, 1989 (in short Old Rule) was applicable on the services of the applicants. According to those rules, 50% posts of Architects were to be filled up by promotion from Assistant Architects. Remaining 50% posts were to be filled up by promotion from Deputy Architects. These old rules were subsequently amended by Central Architects Services Group ARule 2004 (In short New Rule). These rules came into force w.e.f. 27.2.2004. According to new rules, the post of Architect can only be filled up by way of promotion by Deputy Architects. Further, as per new rules, 33.33 % posts of Deputy Architects can be filled up by way of promotion from Assistant Architects and remaining 66.66 posts of the Deputy Architects would be filled up by direct recruitment (Annexure 3).
3. It has been further said that opposite parties are not promoting the applicants on the post of Architect whereas they are promoting other Assistant Architects to the said post which is in violation of Articles 14 and 21 of the Constitution of India, being discriminatory . The applicants moved a representation raising such grievance (Annexure-4) but no communication has been made by any order passed on such representation.
4. The claim has been contested by filing C.A. saying that under old rules, the eligibility for promotion from the grade of Deputy Architect to that of Architect was 4 years regular service in the grade, whereas the eligibility criteria for promotion from the grade of Assistant Architect to the grade of Architect was 8 years regular service in the grade. It has also been said that at that time, the grade of Dy. Architects was Rs. 2200-4000 whereas the grade of Assistant Architect was Rs.. 2000-3500/- In the replacement scale given by Vth Central Pay Commission, the corresponding scales for Dy. Architects and Assistant Architects were Rs. 8000-13,500 and 6500-10,500/- respectively. Nevertheless, the Commission recommended the pay scales with an upgraded revision of 7500-12000 for Assistant Architects , which they are now drawing. It has been further said that under the old rules, the difference of 4 years and 8 years of regular service for promotion from the channel of Dy. Architects and Assistant Architects respectively was precisely due to the guidelines issued by Department of Personnel and Training in respect of framing of Recruitment Rules (in short RR). When the draft Recruitment Rules were referred to the DOP&T, they advised that Assistant Architects shall be made feeder cadre for the post of Deputy Architects. Therefore, considering comprehensively, the recruitment rules were accordingly issued providing vacancies in the grade of Architects will be filled 100% by promotion from Dy. Architects with 4 years regular service in the grade and further that vacancies in the grade of Deputy Architects will be dully filled in by two modes i.e.2/3rd by direct recruitment through UPSC and 1/3rd by promotion of Assistant Architects with two years regular service in the grade. Thus, a total eligibility of six years (two years for promotion from the grade of Assistant Architects to the grade of Dy. Architects and four years for promotion from the grade of Dy. Architects to the grade of Architects) was stipulated in the draft revised recruitment rules . At the time of notification of revised RRs, there were 13 Assistant Architects, who had completed the required eligibility service of 6 years required for promotion to the grade of Architects. But all of them could not be promoted due to dearth of vacancies in their own quota. Therefore, a provision was made in the draft revised RR that those Assistant Architects who completed six years as on the date of notification of revised RR will be considered for promotion direct to the post of Architects. This provision was objected by the DOP&T on the specific ground that dual channel of promotion is not permissible in RRs. DOP&T further stated that for such affected persons, the department may make a reference to DOP&T after notification of RRs for one time relaxation in RR. In accordance with those instructions, after notification of the revised Rules on 27.2.2004, opposite parties requested the DOP&T to allow one time relaxation for promotion of 13 such Assistant Architects who had completed 6 years of regular service, on the date of notification of the revised recruitment rules direct to the post of Architects. This proposal was agreed by the DOP&T but before that a reference was made to UPSC for deciding the mode of recruitment for considering promotion of 13 such Assistant Architects. The UPSC concurred with the proposal submitted in this regard and convened a DPC on 22.8.2005. Minutes of the DPC was approved by Honble Urban Development Minister and thereafter the promotion order was issued on17.10.2005 (R-1). The case of both the applicants could not be considered for promotion direct to the post of Architects due to the reasons having not completed the minimum stipulated eligibility of 6 years.
5. Though no merit was found in the representation made by the Assistant Architects of 2000 batch including the applicants yet the respondents No. 1 and 2 actively considered for filling all the 14 vacancies in the grade of Deputy Architects for the year 2003-04 so that the Assistant Architects of 2000 batch including the applicants are immediately promoted to the grade of Deputy Architects. Thereafter, they will be required to render 4 years service in the grade of Deputy Architects for being considered for promotion to the grade of Architects.
6. The applicants filed Rejoinder Affidavit, reiterating their own pleadings and also refuting some of the pleadings of the official respondents. It has been further said that relaxation was given to the earlier batch of Architects whereas the petitioners and some other similarly situated persons were deprived and this act is in violation of Articles 14 and 21 of the Constitution of India.
7. Written arguments have also been filed in this case from both the sides which are on record.
8. We have heard the learned counsel for the parties and carefully perused the material on record.
9. By means of this O.A. provisions contained in Articles 14 and 21 of the Constitution of India has been sought to be invoked on the ground that the action on the part of the respondents is discriminatory in not promoting the applicants on the post of Architects while promoting other Architects to the said post. But at the out set, it may be mentioned that the persons with whom the equality and parity is being claimed , admittedly, belong to senior batch. There is also no quarrel on the point that those 13 Assistant Architects who had been promoted had already completed 6 years of regular service on the date of notification of revised RR, whereas both the applicants had not completed 6 years of regular service on the said date. Their names may have found place in the same civil list at lower serials but that itself does not make them equal with their senior batch officers. The perusal of this civil list filed by the applicants shows that it consists of several batches. Those 13 persons belong to 97 batch whereas these applicants belong to batch of 2000, who joined after about 3 years of the joining of those 13 persons. That is why, those persons had completed 6 years of regular service on that date of notification of revised RR, whereas these applicants could not complete six years of regular service on that date. Apparently, therefore, there was an intelligible differentia and reasonable classification. Therefore, the question of discrimination or violation of Articles 14 and 16 of Constitution of India does not arise.
10. It is also worthwhile to mention here that it has been satisfactorily and convincingly explained in the CA as to why and under what circumstances and in what manner this exercise was done. Undoubtedly, it was done in a transparent manner after taking advice/ guidance of the nodal Department i.e. DOP&T and the promotion of those 13 Architects were made after the UPSC concurred the proposal and also convened the DPC for the purpose. The minutes of that DPC were also duly approved by the then Honble Urban Development Minister and then only the promotion order was issued on 17.10.2005 (Annexure R-1). Earlier when the draft RR were referred to DOP&T , they advised that the Assistant Architects be made feeder grade for the post of Dy. Architects. On that basis it was to be provided that vacancies in the grade of Architects will be filled 100% by promotion from Dy. Architects with 4 years regular service in the grade and further that vacancies in the grade of Dy. Architects will be dull filled by two modes i.e. 2/3 by direct recruitment through UPSC and 1/3rd by promotion of Assistant Architects with 2 years of regular service in the grade. Thus a total eligibility of six years (2 years for promotion from the grade of Assistant Architects to the grade of Deputy Architects and 4 years for promotion from the grade of Deputy Architects to the grade of Architects) was stipulated in the draft revised RRs as per DOP&T guidelines. At the time of proposed notification of the revised RRs, there were 13 Assistant Architects who had completed the required eligibility service of 6 years but all of them could not be promoted due to shortage of vacancies in their own quota. Therefore, a provision was made in the draft that those Assistant Architects who had completed 6 years as on the said date will be considered for promotion direct to the post of Architects. But the DOP&T objected to this proposal on the specific ground that dual channel of promotion is not permissible in the RR. The DOP&T further suggested that after notification of the RR, one time relaxation may be sought in respect of such officers which shall be duly considered by the DOP&T on merits. In accordance with the instructions/ suggestions of the DOP&T, the provision of considering certain Assistant Architects for promotion direct to the post of Architects was accordingly deleted and thereafter revised RRs were duly notified on 27.2.2004. Thereafter, the said relaxation was sought in respect of 13 such Assistant Architects. That proposal was agreed by the DOP&T. But as said before, the DOP&T further advised for concurrence of the UPSC. Therefore, a reference was also made to the UPSC also for deciding mode of recruitment of such Assistant Architects and the UPSC concurred with the proposal and convened a DPC which was held on 22.8.2005 the minutes whereof were duly approved by Urban Development Minister and then promotion order was issued. Therefore, we don not find any substance in the claim made by the applicants.
11. The learned counsel for applicants also placed reliance on the following case law:-
(i) State of Orissa and others Vs. Titaghar Paper Mills Company Limited and another reported in AIR 1985 Supreme Court Cases 1293.
12. The facts of the above case law are totally different from the present O.A. therefore the applicants cannot derive any benefit from this case law. The learned counsel for the applicants specifically referred to para 126 (6) of this case law which is as under:-
126(6) The word supersession in the Notifications dated Dec. 29,1977 is used in the same sense as the words repeal and replacement and, therefore, does not have the effect of wiping out the tax liability under the previous notifications. All that was done by using the words in supersession of all previous notifications in the Notifications dated Dec. 29,1977, was to repeal and replace previous notifications and not to wipe out any liability incurred under the previous notifications.
13. On the strength of the above, learned counsel for the applicant submits that the new recruitment rules will not have the effect of wiping out every thing. This submission has no substance. In the above para, only the word supersession in a particular notification has been defined. This word is used in the sense as the words repeal and replacement It was explained by the Honble Apex Court that all that was done by using the word was to repeal and replace previous notification and not to wipe out any Tax liability incurred under the previous notifications. In the case before us, there is no question of wiping out any liability incurred under the previous RRs. Otherwise also the promotion of 13 persons has not been challenged and they have also not been impleaded in this O.A. Both the applicants could also not show any vested right in their favour. They also failed to show any alleged discrimination in violation of Articles 14 and 21 of the Constitution of India.
14. Finally, therefore, in view of the above, this O.A. deserves to be dismissed and accordingly it is so ordered. No order as to costs.
(S.P.Singh) (Justice Alok Kumar Singh) Member (A) Member (J) HLS/-