Central Administrative Tribunal - Allahabad
P.S. Arya S/O Late Sri B.R. Arya vs Union Of India Through Secretary on 21 March, 2013
Reserved on 04.03.2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Original Application No. 1059 of 2010
Allahabad this the, 21st day of _March, 2013
Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD
Honble Ms. Jayati Chandra, Member (A)
1. P.S. Arya S/o Late Sri B.R. Arya, R/o Arya Niwas, Agra-Mathura Road, Runkta, Agra, working as Store Keeper in C.O.D. Agra.
2. Mahesh Chandra Narottam S/o Sri S.L. Narottam, R/o 21/14, Nagla Mohan, Shah Ganj, Agra, working as Store Keeper in C.O.D., Agra.
3. Munni Lal S/o Babu Lal, R/o Village & Post Mangrol Jat, Achchnera, Agra, working as Store Keeper in C.O.D. Agra.
4. Lalta Prasad S/o Sri Gulab Singh, R/o 3/271, Rai Ki Mondi, Shah Ganj, Agra, working as L.D.C. Agra in C.O.D. Agra.
Applicants
By Advocate: Sri D.K. Pandey
Versus
1. Union of India through Secretary, Ministry of Defence South Block, New Delhi.
2. Director General of Ordnance Services Army, Head Quarter, New Delhi.
3. Personal Officer, C.O.D., Agra.
4. Commandant, C.O.D., Agra.
Respondents
By Advocate: Sri R.K. Srivastava
O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Instant O.A. has been filed by the applicants for the following relief (s): -
I. Quash the impugned orders dated 15.01.2010 being arbitrary and illegal.
II. Further direct the respondents to grant fixation of notional pay to the applicants from 22.10.1990 to 25.03.2002 and assigned their seniority in the panel of 1990 from the date of juniors and grant other service benefits admissible under the rules.
III. Issue any other and further order or direction which this Court may deem fit and proper by honorable Tribunal in the facts and circumstances of the case.
2. The brief facts of the O.A. are as follows: -
That the applicants belong to reserved category of Scheduled Caste, and were registered with the Employment Exchange, Agra for employment during the year 1990. A Special Recruitment Drive (hereinafter referred to as SRD) was made by the Central Ordnance Depot (for short COD), Agra to fill up the shortfall by filling up the posts in various categories in the Ordnance department, and accordingly a requisition was sent by the COD, Agra for filling up three posts of Store Keepers, and one post of Lower Division Clerk through Employment Exchange, Agra in the month of August, 1990. In pursuance of the same, names of applicants were sponsored by the Employment Exchange, and the applicants were accordingly called for a Written Test and Interview on 24/25-09-1990 in COD, Agra. After the selection process, the applicants were issued letters on 22.10.1990 by the respondent No. 3 informing them that they have been selected for the post and they were directed to report within seven days along with all original certificates in support of their date of birth and education qualifications etc. The applicants appeared accordingly before the authority and their documents were verified, and they were asked to wait for their appointment letters. But, respondent No. 3 did not issue the appointment letters in favour of the applicants rather gave them copy of a letter dated 23.09.1992, issued by the Army Headquarters Office, informing that the appointment of all the candidates under Special Recruitment Drive for SC/ST had been frozen and subject matter regarding release of vacancy was under consideration at higher level up to the level of P.M. Office. Thereafter, Ministry of Finance, Government of India issued an Office Memorandum dated 03.05.1993 regarding ban on creating/filling up of posts and the procedure for relaxation in exceptional circumstances. Further, Office Memorandum dated 06.04.1994 was issued in clarification of the instructions dated 03.05.1993 to the effect that the ban will not be applicable to the posts reserved for SC/ST, necessary for maintaining reservation quota. Despite the above circulars in favour of SC/ST candidates, the Ordnance department did not fill up the posts by issuing appointment letters in favour of the applicants even in the light of Office Memorandum dated 12.03.1996 issued by the Ministry of Personnel, Government of India. On the representations dated 30.09.1993 and 02.02.1994, submitted by the applicants, the respondent No. 2 informed them on 18.01.1995 regarding the existing ban on issue of appointment letters against SRD of SC/ST candidates. The applicants further submitted that despite the alleged ban, the respondents-officers of COD, Agra issued appointment letters to Adarsh Kumar Jayant on the post of Store Keeper under SC/ST category vide order dated 20.12.1993, which shows the arbitrariness and discriminatory act of the respondents. Ultimately, a Writ Petition No. 34953/1998 was filed by the applicants before the Honble High Court, Allahabad. During the pendency of that Writ Petition, appointment letters were issued to the applicants on 25.03.2002 for the posts they had applied. The Writ Petition was accordingly dismissed as infructuous. Since the delay in posting of all the applicants was on account of administrative reasons, and lapse on the part of respondents, the applicants are entitled for notional fixation of pay from 22.10.1990 to 25.03.2002. Despite the existing vacancy, they were not issued the appointment letters during the aforesaid period. When the representation of the applicants was not considered, they filed O.A. No. 1456/2006, which was disposed of by this Tribunal on 06.10.2009 by issuing direction to the respondents to decide the representation of applicants within a period of three months. The said representation was decided by the respondents by passing impugned order dated 15.01.2010, which was rejected by the aforesaid order. It is further contended by the applicants that if really there was ban imposed by the Government on such recruitment, how several CODs appointed Store Keepers under the SRD of SC/ST candidates. Details of CODs have been given by the applicants in the O.A. Since seniority roll is prepared on all over India basis, seniority of the applicants is adversely affected as the junior persons have been declared senior to the applicants on account of discriminatory approach by the respondents. Hence, this O.A. has been filed for the aforesaid relief(s) mainly on the ground that the delay of 13 years in applicants appointment has been caused due to administrative lapse of the respondents for which the applicants are not responsible. Despite issuance of Office Memorandums dated 03.05.1993, 06.04.1994 and 12.03.1996, by the Government of India, no appointment was given to the applicants against the existing vacancies. The seniority of applicant will be adversely affected by this act of the respondents. The action of respondents in not allowing seniority to the applicants vis-`-vis other employees of the same cadre on all India basis is arbitrary and discriminatory.
3. The respondents have filed the Counter Affidavit wherein they have submitted that three vacancies for the post of Store Keeper and two vacancies for the post of Lower Division Clerk were released to this Depot against SRD for SC/ST panel 1990 vide AOC Record letter No. 28976/CST-90/CA 6 dated 27.08.1990 for which names were called for through the Employment Exchange, Agra which sponsored approximately 55 candidates of Scheduled Caste and 18 candidates of Scheduled Tribe for test/ interview. A Board of Officers was convened accordingly for holding the aforesaid tests in which applicants were declared successful for the aforesaid posts against SRD Panel 1990, and they were directed accordingly to produce their documents/ certificates for verification. In the meantime, the IHQ of MoD (Army), New Delhi had imposed a ban in November, 1990 and issued instructions that no vacancies falling under purview of ban orders will be filled and all action like interview/screening test of candidates be frozen immediately. Hence, all the selected candidates were informed accordingly. When the ban was lifted in the month of May, 2001, case of the applicants were processed to Officer in Charge, AOC Records for issuing appointment letters after lifting the ban vide this depot letter No. 23201/SK/10/Estt-Ind dt. 09.07.2001. The candidates were called for medical examination and after fulfilling the mandatory requirements, appointment orders were issued to the applicants vide letter dated 25.03.2002, and they have joined their duties. It is further submitted by the respondents that one of the applicants namely Lalta Prasad had made a representation on 25.07.1998 during the period of ban for getting appointment for the post of L.D.C., which was examined by the IHQ of MoD (Army), New Delhi and the request was turned down vide IHQ of MoD (Army), New Delhi vide letter No. 93669/Gen/MCN/8/OS-8C (i) dated 17.08.1998. Since the applicant joined their duties on 25.03.2002, the question to grant fixation of notional pay w.e.f. 22.10.1990 does not arise. The representation, submitted by the applicant, dated 08.02.2003 was disposed of by a reasoned and speaking order. In view of the above facts and circumstances, O.A. moved by the applicants has got no force and it deserves to be dismissed.
4. The applicants filed Rejoinder mainly reiterating their stands taken in the O.A., again placing reliance on the circulars dated 06.04.1994 and 12.03.1996 issued by the Government of India, Ministry of Finance and Ministry of Personnel and Training.
5. The respondents have also filed the Supplementary C.A. mainly reiterating their stands taken in the Counter Affidavit.
6. The applicants have also placed reliance on documentary evidences which are annexure A-1 to A-16, filed on record. These papers include copy of the impugned order dated 15.01.2010, copy of letters issued to the applicants on 22.10.1990 directing themselves to appear before the concerned authorities for verification of their date of birth and educational certificates, copy of circular letters dated 03.05.1993, 06.04.1994 and 12.03.1996. They have also filed copy of the Order passed in the Writ Petition by the Honble High Court vide order dated 25.02.2009, copy of O.A. in which direction was given to the respondents to decide applicants representation, and a copy of seniority roll of Store Keepers. On the other hand, the respondents have placed reliance on annexures filed by them as annexure CA-1 to annexure CA-5, which are mainly relating to the ban imposed by the Government of India on the appointment of SC/ST candidates under SRD and the copy of Order lifting of ban on filling up of Group C and D vacancies dated 0907.2001.
7. We have heard the learned counsel for the parties and perused the documents on record.
8. It is an undisputed fact that the COD, Agra under SRD of SC/ST candidates demanded names of candidates from the Employment Exchange, Agra for employment during the year 1990 and the present applicants appeared in the Test/Interview organized by the respondents in pursuance of the aforesaid SRD. It is also an undisputed fact that the applicants cleared the Test/ Interview for the aforesaid posts and they were directed by the respondents to produce the original documents regarding their educational qualifications as well as their date of birth. It is also not a disputed fact that in the meantime, a ban was imposed on the recruitment of SC/ST candidates under the SRD and it was intimated to the applicants accordingly. The case of applicants is that this ban imposed by the Government was not applicable to SC/ST candidates under SRD and the applicants placed reliance on three Circulars, filed by them, which are dated 03.05.1993, 06.04.1994 and 12.03.1996. On the strength of these Circulars/ Office Memorandums, learned counsel for the applicants has argued that this ban was not applicable to the applicants case as they were SC/ST candidates and there was relaxation for them through the aforesaid Office Memorandums. On the other hand, learned counsel for the respondents has argued that actually the aforesaid Circulars/Office Memorandums dated 03.05.1993, 06.04.1994 and 12.03.1996 were not applicable to the case of applicants rather these Circulars were issued by the Government clarifying some queries made by the departments. A perusal of Office Memorandum dated 03.05.1993 (annexure A-6) shows that it was issued by the Government of India, Ministry of Finance, Department of Expenditure in which two queries were made by the department, who were asked to observe economy in administrative exigency of the Government. First point was whenever higher level posts are abolished, whether junior level posts are also to be abolished as a consequence thereof. It was clarified by the Government as Yes whenever higher level posts are abolished, it will be necessary to abolish personal/supporting staff of that higher level post(s) simultaneously. In addition to such abolition, it will also be desirable to have a work study conducted to determine what other restructuring and abolition of lower level posts would be required as a result of abolition of the higher post(s). Similarly second point of query was if a post is vacant or held in abeyance for some time, whether the post can be filled up or revived, as the case may be, by the administrative Department/Ministry. To this query, the clarification was given by the Ministry as if a post is held in abeyance or remains unfilled for a period of one year or more, it would be deemed to be abolished. Integrated finance of each Ministry/Department may monitor abolition of such posts and ensure that abolition orders are issued within one month of the post remaining unfilled/held in abeyance for the period of one year. If the post is required subsequently, the prescribed procedure for creation of new posts will have to be followed and for that purpose a procedure was laid down in the above O.M. by dividing it into Plan posts and Non Plan posts. Similarly, in the Office Memorandum dated 06.04.1994 (annexure A-7) certain guidelines were again issued for processing of case, stating as follows: -
The undersigned is directed to refer to this Ministrys OM No. 7 (7)-E (Coord)/93 dated 3.5.93 on the above subject wherein it has, inter alia, been indicated in para 1 (b) that if a post is held in abeyance or remains unfilled for a period of one year or more it would be deemed to be abolished and that if the post is required subsequently the prescribed procedure for creation of new post will have to be followed. References seeking clarification have been received as to whether exemption from these instructions can be granted in respect of posts reserved for SC/ST lying vacant for one year or more. It is hereby clarified that the above instructions of 3.5.93 will not be applicable to posts reserved for SC/ST vacant for one year or more to the extent necessary for maintaining reservation quota taking into account filled up general quota posts. Similarly, Office Memorandum dated 12.03.1996 was also a clarification to the queries and representations made by some Department. On the other hand, a perusal of annexure CA-1, filed by the respondents, dated 19.12.1990, it is revealed that in regard to filling up the vacancies and issue of appointment orders in respect of candidates selected against SRD 1990, it was intimated that the Army Headquarters dated 23.11.1990 has issued a instruction that no vacancies falling under purview of ban orders will be filled and all action alike interviewing/screening of candidates under Special Recruitment Drive-90 be frozen immediately. Similarly, annexure CA-2 also supports the factum of ban regarding appointment of SC/ST candidates in respect of vacancy as they have been frozen immediately. Annexure CA-5, filed by the respondents, further shows that it is a memorandum dated 18.01.1995 issued on behalf of Director General Ordnance Services, Master General of Ordnance Branch, Army Headquarters, DHQ, PO, New Delhi-110011, in which it is stated that This is with reference to your application dated 30.09.93 addressed to the Chairman, National Commission for Scheduled Castes & Scheduled Tribes, New Delhi. You are hereby informed that there is a ban on issue of appointment letters against Special Recruitment Drive for SC/ST candidates imposed by Ministry of Defence. This reply was given on an application dated 30.09.1993 addressed to the Chairman, National Commission for Scheduled Castes & Scheduled Tribes, New Delhi. The respondents have further placed reliance on annexure CA-3, which is a letter dated 09.07.2001 whereby the ban imposed on filling up of Group C and D vacancies was lifted to some extent and after lifting of this ban appointment letters were issued to the applicants and others who were selected in 1990 and 1993. The applicants have not anywhere, in their Rejoinder, stated that the aforesaid annexures, filed and relied upon by the respondents, are not reliable or they are not correct documents. In the face of these facts and circumstances, it may be concluded that the respondents were not at fault in not issuing appointment letters to the applicants before 09.07.2001.
9. Learned counsel for the applicants has further argued that several other CODs, for example, COD, Cheoki, COD, Agra, COD, Delhi and COD, Jabalpur have made recruitment of candidates in several CODs on the post of Store Keeper and SRD of SC/ST candidates. Had there been a ban, as alleged by the respondents, how the appointments by the above COD could be made? In reply, learned counsel for the respondents has submitted that the applicants have not given any specific detail of such appointments and in absence of specific details, this plea of the applicants cannot be accepted. It is true that only reference has been made by the applicants in para-4.21 of the O.A. without giving any specific details of such persons, year of their appointment, their category etc. In absence of required details, this plea of the applicants has got no force.
10. Learned counsel for the applicants has also argued that the applicants have become junior to several other persons who have been appointed by different CODs as Store Keeper, and seniority roll of candidates ranging between 300 to 400 has been filed as annexure A-16. Again, at the cost of repetition, same observation can be made that in absence of specific evidence and specific details on record, regarding their appointment, it can be said that the applicants cannot get any benefit of this paper. Moreover, the applicants contention that their seniority will be adversely affected in view of aforesaid seniority roll, filed as annexure A-10, it is worth to mention that these persons have not been made as party in the O.A. against whom seniority has been claimed by the applicants. If for the sake of argument, case of the applicants is accepted to be correct, seniority of these employees will be affected which cannot be done without hearing them. In view of this fact also, this argument of applicants have got no force.
11. Thus, it is concluded that the applicants cannot be given notional pay and seniority for the period, they were not in service, nor even their medical examination was done, nor any appointment letter was issued to them. In other words they are claiming seniority and pay for the period when they were not born even in the department.
12. In the light of above discussions, we are of the view that the applicants have got no case and the O.A. is devoid of merits. Accordingly, O.A. stands dismissed. No order as to costs.
(Ms. Jayati Chandra) {Justice S.S. Tiwari}
Member A Sr. Member (J)/HOD
/M.M/
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