Central Administrative Tribunal - Jaipur
Dr S K Gupta vs M/O Water Resources on 2 December, 2020
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A. No.750/2015
M.A. No.256/2020
M.A. No.920/2019
Reserved on :19.11.2020
Pronounced on: 02.12.2020
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
Dr. S.K.Gupta S/o Sh. Lakhpat Rai Aggarwal, aged about 58
years, R/o House No.53/166, V.T. Road, Mansarovar, Jaipur
Rajasthan.
(Presently posted as Scientist-D at Central Ground Water
Board, Jaipur)
...Applicant.
(By Advocate: Shri Amit Mathur)
Versus
1. Union of India through its Secretary, Ministry of Water
Resources, River Development & Ganga Rejuvenation,
Shram Shakti Bhawan, Rafi Marg, New Delhi.
2. The Chairman, Central Ground Water Board, Bhujal
Bhawan, NH IV, Faridabad, Haryana.
3. The Secretary, Union Public Service Commission,
Dholpur House, Shahjahan Road, New Delhi.
4. Shri Sunil Kumar, Regional Director, National Ground
Water Training Institute, Second Floor, Block A1, Pujari
Chamber, Pachepedi Naka, Raipur-492001
(Chhatisgarh).
5. Shri Utpal Gogai, Regional Director, Central Ground
Water Board, North Eastern Region, Bhujal Bhawan
(Opp.ISBT), Betkuchi, Guhati-781035 (Assam).
(OA No.750 /2015)
(2)
6. Dr.(Mrs.) Uma Kapoor, Regional Director, Central
Ground Water Board, 18/11, Jam Nagar House, Mam
Singh Road, New Delhi-110011.
7. Shri Y.B.Kaushik, Regional Director, Central Ground
Water Board, Northern Region, Bhujal Bhawan, Sector-
B, Sitapur Road Yojna, Ram Ram Bank Chauraha,
Luckno-226021.
...Respondents.
(By Advocate: Sh Rajendra Vaish for respondents No.1 & 2
Shri Anupam Agarwal for intervenors)
ORDER
Per: Dinesh Sharma, Member (A):
The case of the applicant, in brief, is that he, after joining as Assistant Hydrologist in the respondent Ground Water Department in the year 1982, was promoted as Junior Hydrologist/Scientist 'B' on regular basis w.e.f. 01.10.1988. He was subsequently promoted as Scientist 'C' w.e.f. 01.01.1993 and thereafter to the grade of Scientist 'D' w.e.f. 01.01.1998. In pursuance of the floating of a scheme of promotion called Flexible Complementing Scheme (FCS) scientific persons were to be promoted after completion of requisite period of eligibility without reference to availability of posts. Following a prolonged litigation in this matter, the Hon'ble Andhra Pradesh High Court passed a judgment in Writ Petition No 22349 of 1999 (Annexure A/4) directing the (OA No.750 /2015) (3) respondents therein to implement the FCS. In pursuance of this judgment, orders were issued ante-dating the promotions of the applicant from 01.10.1988 to 28.05.1986 (for Scientist 'B'), from 01.01.1993 to 01.01.1992 (for Scientist 'C') and from 01.01.1998 to 01.01.1997 by orders dated 19.02.2013, 03.02.2014 and 13.07.2015 respectively (Annexures A/5 to A/7). However, instead of revising the combined seniority list issued on 01.01.2013 (Annexure A/3) on the basis of the ante-dating order of 13.07.2015 (Annexure A/7), the respondents have promoted officers to the level of Regional Directoron the basis of the unrevised seniority list. The applicant has prayed for quashing the actions of the respondents in conducting DPC on the basis of un-updated/unrevised seniority list in ignorance of the order dated 13.07.2015 and for directing the respondents to revise the seniority list of Scientist 'D' on the basis of the Office Order dated 13.07.2015 before convening any DPC for the post of Regional Director. He also prayed for directing the respondents to conduct a review DPC for all the promotions for Regional Director, as per the judgment of V. Sambasiva Raoand Ors Vs Union of India and on the basis of the revised seniority list of Scientist 'D' and to make promotion of the applicant on the basis of recommendations of the DPC.
(OA No.750 /2015) (4)
2. A reply has been filed by the official respondents denying the claim of the applicant. It is stated that the promotions, following the verdict of the Andhra Pradesh High Court, were in situ promotions under the FCS and these concern the individuals on personal basis. The order dated 13.07.2015 (Annexure A/7) itself reveals that the list of officers is without any order of merit and there is no linkage of this order in reckoning the seniority of the officers. There were other officers (Shri SSP Mishra and Shri Y.B. Kaushik) who had been regularly promoted as Scientists 'B' (in the year 1987), superseding the applicant, against the vacancies of the year 1985. The applicant was promoted to the post of Scientist 'B' in 1995, against the vacancies pertaining to the year 1988. This fact has been purposefully not revealed by the applicant and this shows he has not come before the Tribunal with clean hands. The supersession happened in the year 1987 and the applicant cannot challenge that fact after so many decades now as the same is barred by the law relating to limitation. The reply also states that the FCS is mainly intended for giving time bound financial upgradation and cannot be treated as a functional promotion against a regular post. The reply also raised the issue about not impleading the persons who would be affected if the applicant's prayer was granted.
(OA No.750 /2015) (5)
3. The applicant filed a rejoinder stating that the promotions following the DPC convened in 1987 were a mistake that was corrected following the Judgment of the Hon'ble High Court of Andhra Pradesh in V.Sambasiva Rao's case. He reiterated his earlier claim stating that promotion under the FCS is nothing but recruitment under the Recruitment Rules for posts of scientists at various levels (Scientist 'A' to Scientist 'D') and "it is trite that seniority on particular post is based on the date of joining on that particular post." He also denied that the FCS promotions were only of financial nature, since posts of scientists at various levels were linked with functional posts (senior most 16 Scientist 'D' to be functionally deployed as Director, next seniormost 91 as Senior Hydrogeologist and remaining as Junior Hydrogeologist). Since the applicant's promotion, following the Andhra High Court's order, is given effect from a date almost one year earlier than the date of promotion of some others, the applicant must be given benefit of seniority over them and promoted to the post of Regional Director, to which some of these persons have already been promoted.
4. The Tribunal had issued an interim order, at the time of filing of this OA on 01.12.2015, directing the respondents to conduct a review DPC to consider the case of the applicant. On their failure to comply with these orders, contempt (OA No.750 /2015) (6) proceedings were initiated against the respondents. However, following the order of the Hon'ble High Court of Rajasthan in DB Civil Writ Petition No.15042/2016, dated 02.11.2016, and since the pleadings in this case were now complete, it was decided to hear and decide the main matter finally before proceeding further with the contempt action. The applicant requested for allowing him to join 4 persons, who despite being allegedly junior to him, were promoted before him, as respondents. This was allowed on 06.09.2017. However, despite notice, no reply has been filed by them. 8 other persons filed an M.A. (713/2019) requesting for impleading them as respondents. This was objected to by the applicant. However, the applicant had no objection to them being allowed to join as interveners and the same were permitted.
5. An additional affidavit has been filed by the respondents, re-stating that the promotions as per the FCS are not connected with seniority. They informed that a revised seniority list, as on 01.04.2017 (Annexure R1-2/6) has been issued in the year 2017, after seeking objections. The applicant had filed a representation, dated 14.06.2017 (Annexure R1-2/7) against this list and it has been rejected by a detailed order dated 20.07.2017 (Annexure R1-2/8). The additional affidavit also quotes from a decision bythe (OA No.750 /2015) (7) Ernakulam Bench of this Tribunal(Dr. B.Indira Scientist-3 vs. Union of India & Others) in support of their contention that the FCS promotions, which are in situ promotions, are not relevant for determining seniority.
6. The applicant has filed a reply to the additional affidavit,denying the averments of the additional affidavit and repeating his earlier claim that promotions under the FCS are real promotions and must be reflected in seniority. It is also claimed that the posting against the functional posts is on the basis of seniority amongst scientists at various levels, which is itself dependent on promotion to those levels.
7. During the course of hearing this matter on 27.01.2020, this Tribunal directed the respondents to provide the rules relating to FCS as well as rules governing the appointment promotion and seniority of Scientist 'B', 'C', 'D' and the Regional Director. The respondents sought to file these along with M.A. No.256/2020. The applicant, in their reply to this MA, opposed this stating that some of the documents (orders of earlier appointments of the applicant at lower levels ad combined seniority lists as on 01.01.1996 and 31.12.2000; Annexure R-1-2/11 Annexure R-1/12) cannot brought on record at this stage (of final hearing).
(OA No.750 /2015) (8) These were not the ones that this Tribunal had directed to produce. The applicant, however, had no objection to taking into records the documents relating to FCS (Annexures R-1- 2/13 to R-1-2/15) and the same are therefore taken on record and the MA disposed of accordingly.
8. We have gone through the pleadings and heard the arguments of the learned counsels of the applicant and the official respondents through video conferencing. Shri Anupam Agarwal, who appeared in this video conference as the counsel for the interveners, was also allowed to argue on their behalf.
9. After going through the pleadings and hearing the arguments, it is clear that the only issue that needs to be decided, is whether an ante-dated promotion under FCS, following a Court decision to extend the benefit of the FCS to Group 'B' employees, entitles a person to have his seniority refixed on the basis of such promotion. The applicant insists it is so since FCS promotions are part of the Recruitment Rules and seniority should be determined from the date of joining at any level following the Recruitment Rules. The respondents insist that the FCS promotions are in situ promotions, a kind of financial upgradation personal to the promoted employee, irrespective of seniority and does not (OA No.750 /2015) (9) have a consequential effect on seniority. They have cited the decision of the Ernakulam Bench of this Tribunal, to support their claim that in situ promotions cannot determine seniority. The applicant's reply to this additional affidavit is silent about the Ernakulam Bench decision and it reiterates the claim about FCS promotions, being part of the Recruitment Rules, to be the sole determinant of seniority. The applicant has already retired and the Contempt Petition for not following the interim direction of this Tribunal is pending before us. The respondents have not complied with the interim direction of this Tribunal. Instead, they have issued another seniority list rejecting the objections of the applicant.
10. The issue has arisen, in the present case, since the applicant was superseded twice earlier and was not promotedwhen some of his junior colleagues were promoted and had thus become senior to him. The promotion granted under the FCS, following the Andhra Pradesh High Court decision, has caused the anomalous situation of applicant getting such promotion w.e.f. a date earlier than that of those who had,in fact, been promoted before him. The applicant wants the seniority to be revised while the respondents say that it is neither intended nor specified (OA No.750 /2015) (10) anywhere in the rules to do so on the basis of FCS promotions.
11. In the absence of any specific direct rule or judicial pronouncement before us which mandates re-fixing of seniority on the basis of FCS promotions, we have no option but to decide this matter before us on the basis of soundness of the logic behind the claims of the parties. There is no doubt that the applicant would have had no claim for promotion as Regional Director but for the ante dating of promotion following the judgment of the Hon'ble Andhra Pradesh High Court. We have gone through the said judgment and found it that it is in the context of a request to extend the benefit of FCS already given to Group 'A' employees, to Group 'B' employees also. It cannot be read as an authority mandating revision of an already established seniority list to undo the effects of regular promotions of the past. The order granting FCS makes it clear that it is an in situ promotion. It also mentions that it is not in order of seniority. The Department is firm in their opinion that this promotion does not change the seniority and it does not create any right with the applicant to be considered for promotion against a substantive vacancy if he does not fall within the zone of consideration (based on a seniority list prepared without considering the dates of FCS promotions).
(OA No.750 /2015) (11) While the respondents call the FCS as a scheme of financial upgradation personal to the persons upgraded, the applicant considers it as a scheme of recruitment (through promotion) to various levels of scientists. Even if we accept the argument of the applicant, it cannot, ipso facto, in the absence of any clear rule or judicial pronouncement, lead to an assumption that such promotion can upset the seniority list prepared on the basis of dates of regular promotions in the past. The learned counsel for the applicant would like us to believe that that is the most natural meaning of the words "with effect from" when promotion is given from a back date. We do not agree with this proposition. The effects of promotion under FCS are clearly mentioned in the promotion order itself. The salary and the designation of the officers given FCS changed with effect from a past date, though they continued to do the same work. A consequential change in the seniority list, amongst similarly placed persons (amongst those who are found eligible for promotion under FCS), can still be thought of as a logical consequence. However, it would be stretching the logic too far, if the effect of FCS promotion were interpreted to remove all other reasons (e.g. supersession in the past, as in the present case) which impact a person's position in the seniority list.
(OA No.750 /2015) (12)
12. We are, therefore, inclined to accept the reasons given by the respondents for not changing the seniority of the applicant based on the ante-dating of FCS promotion. Thus, the claim of the applicant, to be considered for the post of Regional Director, on the basis of such revision in the seniority list, fails.The OA is dismissed and our interim order in this regard is revoked. There would be no orders as to costs.
13. MA No.920/2019, for clarification of our earlier order, thus, becomes infructuous and is disposed of accordingly.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/