Central Administrative Tribunal - Chandigarh
Suresh Kumar Singla vs Comptroller And Auditor-General Of ... on 29 November, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.060/769/2017
PRONOUNCED ON: 29.11.2024
RESERVED ON: 05.11.2024
CORAM:
HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Suresh Kumar Singla S/o Sh. Banarsi Dass Singla, age 59
years, Sr. DAO, O/o Executive Engineer, Construction Division,
PWD (B&R), Patiala R/o H. No. - B-112, Azad Nagar, Sirhind
Road, Patiala (Group-B).
.... Applicant
(By Advocate: Sh. D.S. Rawat).
Versus
1. Union of India through Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and
Training, North Block, New Delhi.
2. Comptroller & Auditor General of India, Pocket - 9, Deen
Dayal Upadhyaya Marg, New Delhi.
3. Accountant General (A&E), Punjab, Sector-17, Chandigarh.
4. Ram Krishan Haldu, Sr. DAO (Retd.), R/o H. No. 928, Near
Jain Mandir and Gurudwara Agithe Sahib, Gobind Bagh Colony,
Patiala.
5. Harmesh Kumar Loi, Sr. DAO (Retd.), H. No. 628, Ravidas
Nagar, Shiv Mandir Wali Gali, Hoshiarpur.
6. Satyapal Singh, Sr. DAO, Central Works, Division No. 3, B &
R Complex, Ludhiana.
....Respondents
(By Advocate: Sh. Sanjay Goyal, Sr. CGSC, for R. No.1, Sh.
Barjesh Mittal for R. No.2 and 3, None for R. No.4 to 6).
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ORDER
PER: MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
(i) That the impugned seniority list of Sr. DAOs Punjab Cadre (as on 01.03.2016) (A-1) and impugned order dated:
01.05.2017 (A-2) and impugned order dated: 15.05.2017 (A-
3) vide which the representation of the applicant for preparing/issuing seniority list of Sr. DAOs Punjab Cadre by applying principle of 'catch up' as enunciated by the Hon'ble Supreme Court of India in "Ajit Singh Janjua Vs. State of Punjab & ors." 1999 (4) RSJ (4) 211 (SC) and "S. Panneer Selvam and others Vs. Government of Tamil Nadu and others", 2015 (4) RSJ 74 (SC) has been rejected, be set aside.
(ii) That it is further prayed that the applicant (General Category Employee) be declared as senior to the private respondents Caste Category Employees) with all consequential benefits by applying "Principle of Catch up" on the post of Sr. DAO in accordance with the law laid down by the Hon'ble Supreme Court in the case titled as "Ajit Singh Janjua Vs. State of Punjab & ors." 1999 (4) RSJ (4) 211 (SC) and "S. Panneer Selvam and others Vs. Government of Tamil Nadu and others", 2015 (4) RSJ 74 (SC by treating the OM Dated:
21.02.2002 (A-4) as null and void as after decision passed by the Hon'ble Supreme Court of India in "M. Nagaraj Vs. Union of India & ors." any Executive Instruction issued by Government of India granting promotion in reservation and consequential seniority to Scheduled Caste Category Employees has to be treated null and void till the Government of India collects quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 and thereafter takes a conscious decision to grant benefit of accelerated seniority to the Scheduled Caste Category Employees on account of their backwardness and inadequate representation in Government Services.
2. Facts of the case as per the applicant are that the applicant, was appointed as Divisional Accountant on 3 01.02.1983, whereas the private respondents were appointed later as Divisional Accountant in July, 1983 and therefore were junior to the applicant in the cadre of Divisional Accountant. After appointment to the post of Divisional Accountant, the respondents issued seniority list of Divisional Accountant for the first time on 01.03.1992 and as per the said seniority list of Divisional Accountant, the applicant was shown much senior to the private respondents (Annexure A-5). However, by taking advantage of reservation policy of the Union of India, the private respondents despite being junior to the applicant in the cadre of Divisional Accountant got promoted as DAO II, DAO I and Sr. DAO much before the applicant. However, the applicant catched up with the private respondents on the post of Sr. DAO on 05.08.2010 and therefore, became entitled to be declared senior to the private respondents on the post of Sr. DAO. However, when official respondents prepared the seniority list of Sr. DAOs Punjab Cadre, as on 01.03.2016, the official respondents prepared the same by granting benefit of "accelerated seniority" to the private respondents (i.e. Scheduled Caste Category Employees) i.e. all the General Category Employees despite catching up with the private respondents were shown as junior to the 4 S.C. Category Employees. True copy of the said seniority list of Sr. DAOs Punjab Cadre as on 01.03.2016 is attached herewith as Annexure A-1. Before circulating the aforesaid seniority list of Sr. DAOs Punjab Cadre, the respondent nos. 3 did not ask for any objections from any Sr. DAO by initially issuing tentative seniority list. and the said seniority list of Sr. DAOS Punjab Cadre was circulated only in June/July 2016 by the official respondents. The applicant moved a representation dated 27.03.2017 (Annexure A-6) to the respondent no. 3 to fix the seniority of the applicant on the post of Sr. DAO by applying Principle of "catch up. Before making representation, the applicant even requested the respondent no.3 personally to reframe the seniority list of Sr. DAOs by applying Principle of "catch up". However, the respondent No.3 rejected the representation of the applicant vide impugned order dated 01.05.2017 stating that though the case of "Ajit Singh Janjua Vs. State of Punjab" is applicable in the present case but as per rules the applicant is not entitled to be declared senior to the private respondents by applying Principle of "Catch up" (Annexure A-2). Respondent No.3 in continuation of impugned order dated 01.05.2017 (A-2) issued another order dated 15.05.2017 saying that the 5 case of "Ajit Singh Janjua Vs. State of Punjab" is not applicable in the present case (Annexure A-3). On asking of the applicant that which Rule says that the applicant is not entitled for benefit of "catch up", the office of respondent no. 3 supplied the applicant OM No. 21.01.2002 (Annexure A-4).
3. Respondents No.1 to 3 have filed written statement dated 28.11.2017 stating that the applicant was promoted to the post of Sr. DAO in August, 2010 vide order dated 04.08.2010 (Annexure R-1) and the seniority lists are circulated every year regularly with no objection since 2010 by the applicant. Hence, the challenge to the impugned seniority list of Sr. Divisional Accounts Officer, Punjab Cadre as on 01.03.2016 after an inordinate delay of more than 5 years is not maintainable and is hopelessly barred by limitation as provided under Section 21 of the Administrative Tribunals Act, 1985. It is further submitted that the applicant was promoted as Sr. DAO vide order dated 4.8.2010(R-1) and thereafter, the seniority list of Sr. DAO Punjab Cadre have been regularly circulated every year. Hence, the challenge to the seniority list as on 01.03.2016 (A-1) without there being any challenge to the earlier seniority list issued between 2010 to 2016 and without their 6 being any fresh cause of action to challenge the seniority list as on 01.03.2016 is not maintainable as such, the OA filed by the applicant is liable to be rejected outrightly being not maintainable and misconceived in the interest of justice. It has also been submitted that the O.A. is also not maintainable and bad for non-joinder and mis-joinder of necessary parties as there are more persons below private respondent No.4 to 6 and above the applicant who are senior to him who have not been impleaded as parties to the present, as such, his prayer qua setting-aside of seniority list of Sr. DAO's Punjab Cadre as on 01.03.2016 and placing him above private respondent No.4 to 6 is not made out and is bad for non-joinder of the said senior persons to the applicant.
4. The cause of action arose to the applicant in 2010 when he was promoted to the cadre of Sr. Divisional Accounts Officer. However, the non challenge to the seniority list issued during 2010 to 2015 and assailing the seniority list of Sr. DAO's as on 01.03.2016 without explaining the delay of more than 5-6 years is not maintainable. In view of the judgments passed by Hon'ble Supreme Court in RK Sabharwal's case, the vacancy based rosters were replaced by post based rosters and reservation points for persons 7 belonging to reserved categories were fixed by the Government of India in implementation of the said Supreme Court judgment and 15% and 7.5% posts were reserved for SC and ST categories respectively in the promotion quota in the said reservation rosters which till date holds the field and persons belonging to SC/ST category are promoted to the next hierarchical posts on the said roster points. Further it is submitted that the respondent department is governed by rules and orders issued from time to time by Government of India which are endorsed by the Comptroller and Auditor General of India. Benefit of promotion to SC/ST is governed as per rules framed by Government of India as contained in the browser on reservation and concessions in appointment/promotions for SCs/STs and further instructions issued from time to time. As per instructions on regular on seniority as contained in Government of India, MOH OM dated 22.11.1959 read with DOPT letter dated 03.07.1986 and OM dated 04.11.1992, copies appended as Annexure R-2, the seniority on promotion is determined in the order of their selection for such promotion. Private applicants No.4 to 6 were promoted earlier to the applicant under the reservation policy of the 8 Government of India and their seniority in the cadre of Sr. DAO in Punjab Cadre was fixed under the extant rules and the pay of these officials was also fixed in the cadre on their assuming the charge of higher post. Instructions issued vide Government of India OM dated 30.01.1997 relating to modification in procedure for fixation of seniority of SC/ST official vis. a vis. the General category officials were withdrawn vide Government of India OM dated 21.01.2002 (Annexure R-3) from the date of issue itself i.e. 30.01.1997 presuming as if the OM was never issued. Hence, the applicant is not entitled to be declared as senior to private respondents No.4 to 6. Moreover, the applicant is himself admitting that on 05.08.2010 he catched up with private respondents on the post of Sr. DAO. However, the applicant has filed the present OA on 01.06.2017 i.e. after a period of more than 612 days without any justification/explanation for approaching this Hon'ble Court after such a belated period as such the present OA being hopelessly barred by limitation and abuse of process of law is liable to be out rightly rejected in the interest of justice. The procedure for fixation of seniority of SC/ST officials viz- a-viz general category officials has already been explained in detail in the preceding para which may be read as part 9 and parcel of reply to this para as well.
5. Respondents No.4 to 6 have filed written statement submitting therein that the answering respondents had joined as Divisional Accountant in the office of Respondent No. 3 on 15.07.1983. Their seniority was fixed by the Accountant General (A&E) Punjab Chandigarh i.e. Respondent No.3 as per approval of Respondent No.2 and similarly promotions were also ordered by the office of respondent No.3 with approvals of Respondent No.2. The Applicant was well aware about the seniority at the time when the answering respondents were promoted as Divisional Accounts officer-II (w.e.f. 13.10.1995, 03.11.1995 and 04.09.1996 respectively). So the applicant did not knowingly file any representation in the year 1995 before the Respondent No.3 to get approved from respondent No.2. So he has not come before this Court with clean hands even after a gap of 21 years (i.e. after dated 13.10.1995, of the time of promotion of Respondent No.4), when respondent No 4 and 5 are already retired and respondent No.6 is on the verge of retirement on 30.04.2018 and applicant himself retired on 31.12.2017. Hence the O.A is an afterthought, baseless, devoid of merits, time barred and the same is liable to be dismissed as in fructuous. It has further been 10 stated that the Judgment of Ajit Singh Janjua V/S State of Punjab cannot be made applicable in the Government of India Departmental promotions, where the Central Civil Services Rules are applicable and promotional Policies of Punjab State Government, are also different than the Central Government, hence said Judgment in mentioned O.A has been misinterpreted. The judgment of Ajit Singh Janjua vs. State of Punjab has already been negated (nullified) by the Government of India vide No. 2001/1/2001-estt. (D) Government, of India DOPT New Delhi, dated the 21.01.2002 (Annexure A-4) and also the Government, of India implemented 85th amendment of Constitution of India, hence the instant O.A is liable to be dismissed.
6. The National Commission for Scheduled Castes New Delhi after the judgment of M. Nagraj Vs Union of India, collected the quantifiable data about position of representation of Scheduled Caste candidates in all the State Government, services and Central Government services and found that the ratio of Scheduled Caste candidates is still less as compared to their population. The seniority list dated 01.03.2016 of Sr. Divisional Accounts Officers of Punjab Cadre has been rightly prepared by the Respondent No.3 duly getting approved from Respondent No.2 as per rules, 11 since the Principal of 'Catch up' has been nullified vide Government of India, DOPT OM dated 21.01.2002 (Annexure A-4). However the applicant had become Junior on 13.10.1995, 03.11.1995 and 04.09.1996, when the Respondent No.4 to 6 were promoted as Divisional Accounts Officer-II and the applicant kept on sleeping at that time. Applicant knew that the Principal of 'Catch up' was not applicable upon him. Now on the verge of his own retirement and retirement of respondent no 6 (as on dated 30.04.2018) and after the retirement of respondent No.4 and 5, the applicant knowingly filed instant time barred O.A after a gap of 21 years. The promotions of Respondent No.4, No.5 and No.6 were rightly approved by the Respondent No.2 and only office order of Promotions were issued by the Respondent No.3 as per Government, of India instructions/guidelines on reservation policy of scheduled Castes and Scheduled Tribes categories employees under the directions of Constitution of India and for these promotions the Applicant was very well known from the year 1995. Respondents were promoted as DAO II in the year 1995 & 1996 respectively before the applicant they became senior to the applicant for all times to come. Principal of 'Catch up' was not applicable at that time.
7. We have heard learned counsel for the parties and perused 12 material available on record.
8. We find that the applicant is asking for his seniority to be fixed in the cadre of DAO by applying catch up as the seniority list has been prepared in contravention of principle of catch-up. He is not challenging promotion qua private respondents. According to applicant, it is settled principle of law that seniority of General category employee vis. a vis. S.C. category employees is to fixed applying principle of catch up rules. As the applicant states he had got seniority as per catch-up rule on the post of Sr. DAO on 05.08.2020. The cause of action now for catchup will arise at next level of promotion only i.e. Sr. DAO as per seniority list in 2016. Hence the cause of action arose in 2016 and O.A. cannot be said to be barred by limitation as O.A. was filed after duly submitting representations.
9. This Tribunal has taken view on applicability of catch up rule in bunch matters leading case being O.A. No.1435/2018 (Anupam Yadav vs. Union of India & Ors.) decided on 26.02.2024, wherein in paras 60, 62 and 66 case laws relied upon by applicant has been discussed in detail as under:-
"60. That meanwhile the Hon‟ble Supreme Court in Ajit Singh Januja (1996) 2 SCC 715, relied on the principle of "catch-up rule‟ as laid down in Virpal Singh Chauhan (1995) 6 SCC 684 observing that the balance must be maintained in such a manner that there was no reverse 13 discrimination against the general category candidates and that any rule, circular or order which gives seniority to the reserved category candidates promoted at the roster-point would be violative of Articles 14 and 16 of the Constitution of India.
Rights of reserved classes must be balanced against other segments of society and Hon‟ble Supreme Court in the case of Ajit Singh (supra) upheld catch up rules as evolved in Virpal case and Ajit Singh Januja case.
62. That the constitutional validity of Article 16(4A) and 16(4B) came to challenge in M. Nagaraj (2006) 8 SCC 212, which upheld the constitutional amendments with rider that the impugned provision is an enabling provision and the State is not bound to make reservation for SCs and STs in matters of promotions. However, if the State wishes to exercise its discretion and make such provision, it has to first comply with the riders as already discussed hereinbefore, i.e., (i) to collect the quantifiable data with respect to backwardness of class, (ii) the inadequacy of representation of that class in public employment and (iii) overall administrative efficiency before making provision for reservation.
66. The Hon‟ble Supreme Court in S. Panneerselvam, (2015) 10 SCC 292 has held that in absence of provision for consequential seniority, the „catch-up rule‟ will be applicable (paragraph 35)......."
10. In view of the above, as discussed in detail by this Tribunal in the case of Anupam Yadav & Ors. (supra), we find merit in the O.A. We are of the view that seniority list of Senior DAO Punjab Cadre as on 01.03.2016 (Annexure A-1), impugned orders dated 01.05.2017 (Annexure A-2) and dated 14 15.05.2017 (Annexure A-3) need to be set aside and to be recast as per principle of catch up rule.
11. Respondents are directed to restore the seniority of the applicant as per catch-up rule and provide consequential benefits to the applicant, if due, as per extant rules. Impugned seniority list (A-1), order 01.05.2017 (A-2) and order dated 15.05.2017 (A-3) are quashed. The O.A. is accordingly allowed. The process to be completed within four weeks from receipt of a certified copy of this order No costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA) MEMBER (A) MEMBER (J) /kr/