Central Administrative Tribunal - Hyderabad
Vijaya Kumar Kola vs Eastern Naval Command on 11 September, 2023
OA.No.020/435/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
O.A No.020/435/2022
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M.A.No.65/2023 in OA.No.020/435/2022
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M.A.No.274/2023 in OA.No.020/435/2022
ORDER RESERVED ON 25.07.2023
ORDER PRONOUNCED ON :11.09.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER
1. Vijaya Kumar Kola, s/o K.Appa Rao,
Aged 34 yrs, Occ:Multi Tasking Staff
(Ministerial) (Group 'C), O/o Assistant
General Manager (PP), Naval Dock Yard,
Visakhapatnam, r/o Visakhapatgnam.
2. S.M.K.Anil Kumar, s/o S.M.K.Amarnath Gupta,
Aged 31 years, Occ:Multi Tasking Staff (Ministerial),
Naval Dock Yard, MCW, Visakhapatnam.
3. Guntla Sravan Kumar, s/o G.Seshu Kumar,
Aged 32 yrs, Occ:Multi Tasking Staff (Ministerial),
CEO, HQENC, Visakhapatnam.
4. M.Rama Narayana Reddy, s/o M.V.V.S.N.Reddy,
Aged 30 yrs, Occ:Multi Tasking Staff (Ministerial),
Naval Dock Yard, MPS, Visakhapatnam.
5. D.Ramesh Kumar Reddy, s/o D.Swamy Ranga Reddy,
Aged 36 yrs, Occ:Multi Tasking Staff (Ministerial),
Naval Dock Yard, Visakhapatnam.
6. D.Reddi Srinivasulu, s/o D.Rama Subbaiah,
Aged 52 yrs, Occ:Multi Tasking Staff (Ministerial),
Naval Dock Yard, O/o SO, CRC, Visakhapatnam.
7. Darana Divya Bala Swathi, d/o D.Subba Rao,
Aged 29 yrs, Occ:Multi Tasking Staff (Ministerial),
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OA.No.020/435/2022
Naval Dock Yard, O/o SO, Pay, Visakhapatnam.
...Applicants
(By Mr.K.R.K.V.Prasad, Advocate)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Defence, Government of India,
South Block, New Delhi.
2. The Chief of Naval Staff, Integrated Headquarters,
MoD (Navy), New Delhi-110 011.
3. The Flag Officer, Commanding-in-Chief,
Head Quarters, Eastern Naval Command,
Visakhapatnam.
4. The Admiral Superintendent, Naval Dockyard,
Visakhapatnam.
5. The Secretary, Government of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110 001.
....Respondents
(By Advocate Mr.V.Vinod Kumar, Sr.PC for CG)
ORDER
PER HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER This OA.No.020/435/2022 has been filed under Section 19 of the Administrative Tribunals Act 1985, seeking the following main relief:
P a g e | 2 of 10 OA.No.020/435/2022 "(i) To call for the records pertaining to result of Departmental Qualifying Examination dated 31.12.2018 and Notification issued vide letter No.CE/2004/16/DP, dated 08.12.2021 and reply dated 28.03.2022 in the matter of promotion of Group 'C' employees as Lower Division clerk along with the Model Recruitment Rules for the post of Lower Division Clerk issued by the Ministry of Personnel, PG & Pensions, Department of Personnel and Training vide O.M.No.AB- 14017/32/2009-Estt (RR), dated 07.10.2009;
(ii) Declare the action of issuing the fresh notification without promoting the applicants who qualified in the departmental examination as LDC; and
(iii) direct the respondents to promote the applicants as Lower Divisional Clerks with effect from the date on which the notified vacancies have occurred and grant all consequential benefits, duly quashing the letter dated 28.03.2022 by declaring that the Note appended in the said Model Recruitment Rule with reference to filling up of vacancies against the quota of departmental examination to be considered as part of the Recruitment Rule notified by the respondents and to pass such other order or orders as deemed fit in the interest of justice."
2. The brief facts of the case are that the applicants, who are currently working as Multi Tasking Staff (MTS) in the Eastern Naval Command (ENC), Visakhapatnam, were aspirants for the post of Lower Division Clerk and have accordingly qualified in the Limited Departmental Qualifying Examination (LDQE) held on 17 & 18.12.2018. It is to be noted that the Recruitment Rules (SRO 80/2011) for the post of Lower Division Clerk as amended vide SRO P a g e | 3 of 10 OA.No.020/435/2022 82/2013, are notified in the Gazette of India. The Recruitment Rules (RR) stipulate three streams for filling up the vacancies of LDC viz.,
(i) 85% of the LDC posts will be filled up by Direct Recruitment, (ii) 10% by LDQE from amongst Group 'C' staff in the Grade Pay of Rs.1800/- and who possess 12th Class pass or equivalent qualification and have rendered 3 years regular service in the grade, and (iii) 5% to be filled up by seniority-cum-fitness basis.
3. There is no dispute regarding the method of recruitment for filling up of these LDC vacancies through 85% by direct recruitment quota and 5% to be filled on seniority-cum-fitness basis. The dispute is only about the filling up of these LDC vacancies through 10% of candidates who have qualified in the LDQE.
4. It is the contention of the applicants that the Department of Personnel & Training, which is the Nodal Ministry for all Government of India Ministries including respondents' Organization, have in their OM No.AB-14017/32/2009-Estt (RR), dated 07.10.2009, have circulated their Model Recruitment Rules for adherence to all the Government of India Departments, wherein they have stated that "If more of such employees than the number of vacancies available under Clause (ii) qualified at the examination, P a g e | 4 of 10 OA.No.020/435/2022 such excess number of employees shall be considered for filling the vacancies arising in the subsequent years so that the employees qualifying at an earlier examination are considered before those who qualify at a later examination".
5. It is the contention of the applicants that having passed the qualifying examination on 31.12.2018 and eagerly waiting for promotion, the respondents had initially promoted 12 of those who had passed LDQE on 31.12.2018, and subsequently promoted another 2, who have passed LDQE, on 05.08.2019, raising the hopes of the applicants that they are next in line for such promotion having qualified the LDQE. But, suddenly the respondents vide their letter No.CE/2004/16/DP, dated December 2021, have issued notification for conduct of the next departmental qualifying examination for promotion to the post of LDC against 10% quota without exhausting the names of the applicants and others, who are waiting in the list of qualified candidates having passed the earlier LDQE.
6. The applicants have drawn the attention of this Tribunal that Departments like Ministry of Labour & Employment, Ministry of Communications & IT, Ministry of Science & Technology and the Ministry of Health and Family Welfare, have followed the Model P a g e | 5 of 10 OA.No.020/435/2022 Recruitment Rules circulated by the DOP&T vide their OM issued in 2009, and accordingly modified their own Recruitment Rules published in the Gazette of India to the effect that the candidates (like the applicants), who have qualified in the LDQE earlier, would be given preference for filling up the vacancies of LDCs that would arise in future before the issuance of any fresh LDQE notification.
7. In support of his contentions, the learned counsel for the Applicants has cited the following judgments passed by the Hon'ble Supreme Court and the Central Administrative Tribunal, Principal Bench:
(i) Union of India v. Sadhana Khanna (Smt) (2008 (1) SCC 720),
(ii) Pankaj Nayan & Others v. UOI & Others dated 12.05.2016 in OA.No.3405/2014 of CAT, PB.
8. However, the respondents have strongly refuted the stand of the applicants and in fact, when the 3rd Respondent had written to the 2nd Respondent seeking clarification on this point, vide their letter dated 10.12.2020, the 2nd Respondent vide letter No.CP(NG/2803/GEN, dated 17.09.2021, has clearly stated that the posts under 10% quota be filled strictly in accordance with the provisions contained in SRO 80/2011. In other words, it is the P a g e | 6 of 10 OA.No.020/435/2022 contention of the respondents that the Recruitment Rules, duly notified in Gazette of India, will have precedence over the Model Recruitment Rules circulated by the DOP&T.
9. Having heard the learned counsel on both sides and perusing the material placed on record, we are of the view that the Gazette of India notified Recruitment Rules (SRO 80 of 2011 as amended in SRO 82 of 2013) for the respondents i.e., Eastern Naval Command, will have precedence over the Model Recruitment Rules circulated by the DOP&T. This is because Model RRs circulated by DOP&T are only Guidelines to various Departments/Ministries of Government of India to prepare the RRs and so leaves it open to the Department's discretion to adopt it in 2009 or not incorporate it in their RRs after giving cogent reasons. This exercise does not appear to have been done by the Respondents, but that does not undermine the supremacy of SRO 80/2011 as amended in SRO 82/2013 and duly Gazette notified. It is clear from the RRs (SRO 80 of 2011 as amended in SRO 82 of 2013) that the LDQE is only a qualifying examination and not a competitive examination, and therefore, does not bestow any right for promotion to those who have passed LDQE earlier to supersede their seniors who may have passed the LDQE later.
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10. A careful reading of the Judgment of the Hon'ble Supreme Court in Union of India v. Sadhana Khanna (Smt) (2008 (1) SCC
720), quoted by the learned counsel for the Applicants, reveals that the said judgment goes against the contention of the applicant's counsel. It only states that "where the juniors had completed the eligibility requirement of promotion then their seniors will also be considered even if they have not completed the eligibility period". Therefore, the judgment of the Hon'ble Supreme Court is not relevant to the facts and circumstances in the instant case. It is also seen that the Order passed by the Principal Bench of this Tribunal dated 12.05.2016 in OA.No.3405/2014 in PankajNayan & Others v. UOI & Others, is not relevant to the facts and circumstances in the instant case.
11. The supremacy of the duly Gazette notified Recruitment Rules has been emphasised by The Hon'ble Supreme Court in its judgment in K.Jagadeesan v. Union of India & Others (1990 SCC (2) 228/1990 SCALE (1) 238) has held as under:
"The appellant, a diploma holder, was, in 1964, appointed as Transport Officer (Class-I Technical Grade, Group A), which post was later redesignated and merged with the post of Mechanical Engineer (Junior) in 1968. The Geological Survey of India (Group 'A' and Group 'B' posts) Recruitment Rules, 1967, framed under Article 309 of the Constitution P a g e | 8 of 10 OA.No.020/435/2022 were brought into force in 1969. The appellant was promoted as a Mechanical Engineer (Senior) in 1973 and his conditions of service were governed by the said Rules, which had been amended from time to time. One such amendment made in 1984 prescribed that for promotion to the post of Director (M.E.), a degree in Engineering was a requisite qualification. The appellant challenged before the Central Administrative Tribunal, the validity of the said notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director (M.E.). It was contended that applying the amended Rule, in so far as the appellant was concerned, would amount to giving retrospective effect to the operation of the rule, and no retrospective rule could be framed under Article 309 of the Constitution. The Tribunal rejected the contention and held that it was for the Government to prescribe such qualifications as it considered fit, and the Tribunal could not interfere unless it was shown to be perverse. Aggrieved against the Tribunal's order, the appellant has preferred this appeal by special leave. Dismissing the appeal, this Court held as follows:
1. Mere chance of promotion is not condition of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. (State of Maharashtra and Anr. v.
Chandrakant Anant Kulkarnt and Others, [1981] 4 SCC 130, relied on. T.R. Kapur and Others v.
State of Harvana and Others , [1986] (Suppl.) SCC 584, referred to).
2. In the instant case, no retrospective effect has been given to the said amended rule. It is not the case that the appellant has been reverted from the post which he occupies on the ground of lack of any qualification. The only effect is that his chances of promotion to the higher post is P a g e | 9 of 10 OA.No.020/435/2022 adversely affected. Alteration of rules of eligibility cannot be invalidated on the ground that an employee's claim to be eligible for promotion is adversely affected. This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the Notification and the challenge to the said notification on that ground must fail.
3. The fact that for the higher post of Deputy Director General (Engineering Service), it is not necessary to hold a graduate degree is no reason why a degree requirement for the post of Director (Mechanical) should be regarded as unreasonable or bad in law. It is for the Government to decide what qualification was required for promotion to the post of Director (M.E.) and, unless that requirement was totally irrelevant or unreasonable, it could not be said to be bad in law."
12. Thus the Gazetted notified Recruitment rules will have precedence over the Model Recruitment rules. In view of the above position, the OA is dismissed being devoid of merits. The Miscellaneous Applications also stand disposed of. There shall be no order as to costs.
( B.ANAND ) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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