Central Administrative Tribunal - Lucknow
Gopal Chandra Gupta Dead And ... vs Union Of India on 7 November, 2023
CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 573/2006
Order Reserved On: 31.10.2023
Order Pronounced On: 07.11.2023
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
1. Ratna Gupta,
Aged about 72 years,
Wife of Late Gopal Chandra Gupta,
Resident of Plot No. 289,
Village Khargapur(Near Primary School)
GomtinagarVistar,
Lucknow 226012.
2. Smt. MG Savthri Amma,
Aged about 60 years,
Wife of Shri ORS Nair,
Resident of SaviSadanam,
SubhaniKhera,
Telibagh,
Lucknow.
.....Applicants
By Advocate : Shri B. N. Chaubey
Versus
1. Union of India,
Through Secretary, Ministry of Defence, Parliament Avenue,
South Block, New Delhi.
2. Engineer-in-Chief, Army Headquarters,
Kashmir House,
DGQ New Delhi.
3. Chief Engineer,
Headquarters Central Command,
Lucknow.
....Respondents
By Advocate: Shri M. K. Shukla
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-A This case arises from the grievances of the applicants against the system of maintenance of Command-wise seniority of Lower Division Page 1 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors Clerk (LDC) under Military Engineering Service (MES) organization, because of which, the applicants claim to have been unfairly superseded by officials recruited after the applicants were recruited.
2. The applicants have sought following reliefs from this Tribunal:-
1. This Hon'ble Tribunal may be pleased to quash the impugned order dated 17.07.2006 contained in Annexure No. 1 to this Application passed by the Respondent No. 2.
2. This Hon'ble Tribunal may be pleased to direct the Respondents to promote the Applicants as Upper Division Clerks from the date their juniors have been promoted on the said post within the time stipulated by this Hon'ble Tribunal.
3. This Hon'ble Tribunal may be pleased to direct the Respondents to grant all consequential benefits with regard to promotion from the post of UDC to Assistant, Office Superintendent and Administrative Officer Grade II etc from the dates their juniors have been promoted on the said posts within the time stipulated by this Tribunal.
4. This Hon'ble Tribunal may be pleased to direct the Respondents to grant all financial consequential benefits including arrears of pay and allowances and pensionary benefits etc along with interest, within the time stipulated by this Hon'ble Tribunal.
5. This Hon'ble Tribunal may be pleased to grant any other relief which it may deem just and proper in the circumstances of the case.
6. This Hon'ble Tribunal may be pleased to award exemplary cost as the Respondents have forced the applicants to approach this Hon'ble Tribunal."
3.1 The factual matrix of the case is that applicants were appointed as Lower Division Clerk (LDC) under the respondents in 1965. They were promoted as Upper Division Clerk (UDC) in 1995. The next level in hierarchy is the post of Assistant. The applicants claim that they came to know from the seniority list of Assistants issued by Respondent No. 2 vide letter dated 18th November, 2003 that persons appointed as LDC subsequent to the applicants had been promoted to the post of Assistant while the applicants were not promoted.
3.2 The applicants submitted appeals dated 30.10.2004 to respondent no.1 for their promotion. As the appeals were not decided, the applicants approached this Tribunal in OA No. 483 of 2005 Gopal Chandra Gupta Page 2 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors and Others Vs. Union of India and Others. This Tribunal disposed of the OA vide order dated 16.11.2005 directing the respondents to consider and dispose of the appeals of the applicants by means of reasoned and speaking order.
3.3 Respondent no. 2, vide order dated 17.07.2006, rejected the appeals of the applicants. Aggrieved by the order dated 17.07.2006, the applicants have preferred this OA.
3.4 The OA was dismissed in default on 31.07.2014 for want of prosecution, but restored subsequently based on applicants' submissions.
4. We have heard learned counsels of both the parties. 5.1 It is the case of the applicants that the promotion of their juniors ahead of them is in violation of the guidelines on seniority issued by Department of Personnel & Training vide O.M. dated 03.07.1986 as amended vide O.M. dated 04.11.1992.
5.2 They contend that the power of appointment and maintaining seniority of LDCs rests with the Engineer-in-Chief (E-in-C) of MES as per the Schedule appended to rule 9 of the Central Civil Services (Control, Classification and Appeal), Rules 1965. In the impugned order dated 17.07.2006, respondent no. 2 stated that Engineer-in-Chief had delegated the power of appointment to Chief Engineers Command/Chief Engineers Zone/Commander Works Engineers/Garrison Engineers vide letter dated 17.07.1974. The applicants state that there are 6 Chief Engineers Commands, about 30 Chief Engineers Zones, about 150 Commander Works Engineers and about 600 Garrison Engineers. It is the contention of applicants that the delegation of power of appointment right from Garrison Engineer to Chief Engineer Command is not in order. In their view, the Engineer-in-Chief could have delegated the power of appointment only to the authority immediately below him, but not to Page 3 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors every authority in the hierarchy. Thus, they claim that the delegation order dated 07.06.1994 is without jurisdiction and hence void vide ab initio.
5.3 The applicants further contend that vide paragraph 1 of the letter dated 07.06.1974, the respondent no. 2 has delegated the power to make first appointment to Class III and IV posts, but no delegation has been made with regard to the exercise of power, jurisdiction and duty of the respondent no. 2 for maintaining the seniority list of all appointments made by him or on his behalf throughout the country, thereby, rendering the said delegation redundant and meaningless. In paragraph 2 of the said letter of the delegation, respondent no. 2 has given the powers of the Disciplinary Authority to be exercised even by the officiating incumbent whereas, as per the CCS (CCA) Rules, the officiating incumbent cannot exercise the powers of Disciplinary Authority. Thus the letter dated 07.06.1974 is against the provisions of CCS (CCA) Rules 1965 and is invalid apart from being illegal.
6.1 In response, the respondents have stated that the order dated 17.07.2006, passed by the respondents is a reasoned and speaking order and it is neither illegal nor arbitrary nor malafide. The applicants are not entitled to any relief having raised the grievance at a highly belated stage. 6.2 The respondents contend that the applicants continued to accept the existing system without protest till the date of initiation of their appeal. If the applicants were so convinced that the system was faulty and iniquitous, they should not have accepted their initial appointment as LDC in 1965 from the authority lower than Engineer-in-Chief and continued to serve under the said system till October 2004 without any murmur of protest.
6.3 The respondents state that the seniority in the grade of LDC, is maintained Command-wise. Accordingly, LDC, recruited in a particular Page 4 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors Command can compare his seniority with the LDC recruited only in that Command. In view of this policy, the applicants who were recruited as LDCs in Central Command are prevented from comparing their seniority with those LDCs who were recruited in Southern, Northern, and Western Commands. It is a fact that depending upon the wastage pattern, size of the cadre and passing/non-passing of the prescribed departmental examination, time taken for promotion from the grade of LDCs to UDCs varies from one Command to another. In Northern Command, since size of the cadre is small and wastages are faster, promotions to the grade of UDC take place earlier than in other Commands. This initial earlier promotion the grade of UDC, gets reflected in subsequent promotions to the next higher grades.
6.4 The respondents point out that LDCs are recruited locally, i.e., in respective Command and even after promotion to higher grades they continue to be posted in the same Command except in a very few cases when they are posted outside the Command. This policy is in operation keeping in view the man management aspects, viz., financial situation of affected employees, posting them as near to their home station as possible to avoid harassment to the individual and his family and resultant administrative problems such as refusal to honour posting orders, disciplinary cases and court cases etc. 6.5 The respondents assert that it is not necessary that along with delegation of power to make first appointments, responsibility to maintain seniority list also needs to be specified as there is no necessary and binding relation between the appointing authority and responsibility to maintain seniority list. This means that based on the convenience of the cadre, these two functions can be combined in one authority or given to separate authorities. As regards the contention of applicants that delegated power cannot be exercised by officiating incumbent, the respondents state that there are clear instructions that officiating Page 5 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors incumbent can exercise of power of disciplinary authority, if he has acted for more than 21 days in officiating capacity. 6.6 As per the respondents, the policy of making appointment of LDCs, Command-wise and maintaining their seniority list on Command basis has been in vogue from long time past and the same is well known. The policy has served the interest of the organization quite well. Having accepted this position right from their initial appointment in 1965, till October 2004, the applicants cannot now seek a change in this position merely because, it does not suit a few employees like them. 6.7 In the letter of delegation dated 07.06.1974, it is implied that CE Command/Zone/CWE/GE will function as cadre controlling authority in respect of Group C and D employees for whom they have been given the power to make first appointment. This has been the de facto position all through since the creation of the MES organization as pointed out in paragraph 4 of the respondents' letter dated 17.07.2006 (Annexure 1 to the OA).
6.8 The respondents assert that assumption of responsibility of cadre controlling authority of LDCs by the Engineer-in-Chief is not acceptable, and claim that the applicants are merely driven by a narrow prospective of their own self-interest without any concern for the interest of the organization. In these days of modern man management practices, the stress is on decentralization of administrative power so that authorities at lower level are empowered to administer and look after the interest of their own employee. Considered from this point of view, the applicants' suggestion is retrograde and hence not acceptable. 7.1 We have considered the contentions of both the parties. 7.2.1 The applicants have contended that as per the schedule to CCS(CCA) Rules, appointing authority for Group C & D employees is E- in-C and delegation of this authority to different levels under E-in-C is Page 6 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors impermissible. To examine this issue, we turn to the impugned order dated 17.06.2006 which states that the such delegation has been a long held position which was de facto from the very beginning but has become de jure with the issue of MES HQ letter dated 07.06.1974. 7.2.2 A perusal of the letter dated 07.06.1974 (Annexure 11 of OA) delegating the power to make first appointment to Class III & IV posts reveals that it has been issued under proviso to sub-rule (1) to rule 9 of CCS (CCA) Rules. We quote the sub-rule below:
"9. Appointment to other Services and Posts (1) All appointments to the Central Civil Services (other than the General Central Service) Group 'B', Group 'C' and Group 'D', shall be made by the authorities specified in this behalf in the Schedule:
Provided that in respect of Group 'C' and Group 'D', Civilian Services, or civilian posts in the Defence Services appointments may be made by the officers empowered in this behalf by the aforesaid authorities."
(emphasis supplied) 7.2.3 The proviso to sub-rule (1) of rule 9 quoted above allows the authority mentioned in the Schedule to CCS (CCA) Rules to empower officers to make appointments to Group 'C' and 'Group 'D' posts. The following extracts from judgment of Hon'ble Supreme Court in Sidhartha Sarawgi vs Board of Trustees for the Port of Kolkata & Ors in SLP (C) No. 18347/2013 are relevant on the issue of delegation:
"1. Delegatus Non Potest Delegare: A delegate has no power to delegate, is a well-settled principle. Is there any exception and is there any distinction between delegation of legislative and non-legislative powers, are the moot issues arising for consideration in these cases.
4. .... Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of that policy.... The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the Legislature gives wide powers to various authorities when the situation requires it. Today's governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself.
.....Page 7 of 11
CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors
6. Practical necessities or exigencies of administration require that the decision making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus non potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority.
(emphasis supplied) In the above context, we do not find any infirmity in exercise of the power available under this proviso by E-in-C of MES vide letter dated 07.06.1974.
7.3.1 The next point of contention is the policy of Command-wise maintenance of seniority for which no specific order exists as per the applicants. In the impugned order dated 17.07.2006 deals with this aspect in the following manner:
"It is highlighted that, keeping in view the better man management aspects, a conscious decision was taken from the very beginning to have small manageable cadres in respect of Grp 'C' and 'D' employees of the MES. Hence instead of all India basis, CE Comds were made the Cadre Controlling Authority in respect of Gp 'C' and 'D' employees of the MES. The maintenance of Command-wise seniority of LDCs and carrying out promotion to the grade of UDCs is done Command-wise because of the above policy. Further, all man management functions such as posting/transfer (within the same command), discipline etc are carried out by the respective Commands. The policy serves the larger interests of the employees and hence, it is neither unjust nor inequitable. An LDC of a particular Command can compare himself with another LDC of the same Command but not with an LDC of a different Command."
7.3.2 The scope of judicial review of government's policy is limited. Hon'ble Supreme Court, in Directorate of Film Festival & Ors vs Gaurav Ashwin Jain & Ors (2007) 4 SCC 737 held as follows:
"14. The scope of review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy nor are Courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.Page 8 of 11
CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors In Civil Appeal No. 1422 of 2022, Satyadev Bhagur vs The State of Rajasthan, Hon'ble Supreme Court observed:
"16. It is trite that the Courts would be slow in interfering in the policy matters, unless the policy is found to be palpably discriminatory and arbitrary. This court would not interfere with the policy decision when a State is in a position to point out that there is intelligible differentia in application of policy and that such intelligible differentia has a nexus with the object sought to be achieved."
(emphasis supplied) 7.3.3 In this OA, the policy of Command-wise appointment and seniority has been challenged. The website of MES reveals that the organization has a history more than 200 years old. The organization has evolved in various forms over time and became MES in 1923. The impugned order dated 17.07.2006 brings out that the policy of maintaining Command- wise seniority has been in existence from the beginning and it explains the rationale for such policy. The applicants have emphasized the all India transfer liability of their position now, but have not pointed out whether they sought posting or were ever posted outside their Command in deviation with the Command-wise man management being practiced by MES. In our view, the Command-wise approach followed in MES meets the threshold of making a reasonable distinction in the interest of human resource management, including appointment, seniority and transfer/posting.
7.4.1 As per the OA, the applicants were appointed as LDC in 1965. The impugned order dated 17.06.2006 states that the applicants were appointed by 'an authority of a lower formation under E-in-C' and that the applicants accepted that. This has not been refuted by the applicants. 7.4.2 The applicants, by their own admission, were promoted from the post of LDC to the post of UDC in 1995. They have been silent on the basis of such promotion, i.e., whether such promotion was given on the basis of Command-wise seniority or all India seniority. The respondents, on the other hand, state that such promotions are given on the basis of Command-wise seniority maintained in MES organization. Page 9 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors Subsequently, noticing in a document issued in 2003 that some officials recruited later than them have been promoted as Assistant, the applicants proceeded to question the system of Command-wise seniority as well as Command-wise appointments, in their appeal to the respondents. After their appeal was rejected, the applicants preferred this OA.
7.4.3 The events described above raise the issue whether acceptance of an arrangement, tacit or otherwise, by a party, can be questioned by that party at a later stage. This brings us to the doctrine of "approbate and reprobate". The subject is deal with succinctly by the Hon'ble Supreme Court in State of Punjab & Ors Vs Dhanjit Singh Sandhu (Civil Appeal 5698-5699 of 2009):
"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (vide C.I.T. vs. Mr. P. Firm Maur, AIR 1965 SC 1216).
It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, Amravati & Ors., AIR 1969 SC
329). In R.N. Gosain vs. Yashpal Dhir, AIR 1993 SC 352, this Court has observed as under:- "Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
23. This Court in Sri Babu Ram Alias Durga Prasad vs. Sri Indra Pal Singh (Dead) by Lrs., AIR 1998 SC 3021, and P.R. Deshpande vs. Maruti Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
24. The Supreme Court in The Rajasthan State Industrial Development and Investment Corporation and Anr. vs. Diamond and Gem Development Corporation Ltd. and Anr., AIR 2013 SC 1241, made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding Page 10 of 11 CAT, Lucknow Bench OA No. 332/0057 3 of 2006 -Gopal Chandra Gupta Anr. Vs. U.O.I & Ors effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience."
(emphasis supplied) 7.4.4 The applicants accepted their appointment as LDC in 1965, and promotion as UDC in 1995, based on the Command-wise system of appointments, promotions and cadre management, including transfer and postings, operated by MES. In our view, they cannot 'blow hot and cold', or play 'fast and loose' now by claiming seniority on all India basis from the beginning.
8. In the aforesaid facts and circumstances, the impugned order dated 17.07.2006 (Annexure A-1 of OA) is upheld. Accordingly, Original Application is dismissed alongwith pending MAs, if any. No order as to costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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