Central Administrative Tribunal - Delhi
Dil Preet Singh Nagi vs M/O Defence on 24 March, 2023
1
O.A. No.1236/2021
Item No.32 (C-II)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1236/2021
This the 24thday of March, 2023
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
1. Dilpreet Singh Nagi (Group B),
S/o Shri Narinder Pal Singh Nagi,
Age 35 years,
Working as Senior Scientific Assistant,
Directorate General of Aeronautical Quality
Assurance,
Ministry of Defence, Government of India,
R/o F-84, 2nd Floor, Gali No.3A, Virender Nagar,
New Delhi-58.
2. Surender Singh Rawat (Group B),
S/o Shri Ranjit Singh,
Age 52 years,
Working as Senior Scientific Assistant,
Directorate General of Aeronautical Quality
Assurance,
Ministry of Defence, Government of India,
R/o Plot No.143, Vaishali, Sector-2A, Ghaziabad,
U.P.
3. Satish Chandra Gautam (Group B),
S/o Shri Kumar Adya Prasad Singh,
Age 44 years,
Working as Senior Scientific Assistant,
Directorate General of Aeronautical Quality
Assurance,
Ministry of Defence, Government of India,
R/o Q.No-CRI/08, HAL Township,
Harjinder Nagar, Kanpur-208007.
4. Madhav Prasad Karn (Group B),
S/o Shri Late Radhika Das Shastri,
Age 43 years,
Working as Senior Scientific Assistant,
Directorate General of Aeronautical Quality
Assurance,
Ministry of Defence, Government of India,
2
O.A. No.1236/2021
Item No.32 (C-II)
R/o Quarter no.791, Sector-12,R.K. Puram,
New Delhi-22.
...Applicants
(By Advocate :Shri Padma Kumar S. with Ms.
Thithiksha Padma )
Versus
1. Union of India, through
Secretary,
Department of Defence Production,
Ministry of Defence, Govt. of India,
South Block, New Delhi-110011.
2. Director General,
Directorate General of Aeronautical Quality
Assurance,
Ministry of Defence, Govt. of India,
'H' Block, New Delhi-110011.
3. Director (HR),
DGAQA, H Block,
DHQ POST.,NEW DELH-110011
4. Secretary
Department of Personnel and Training
North Block
New Delhi
5. Syed Ali Ashraf, SSA
ORDAQA (KORWA), DGAQA
C/o HAL,Korwa. Sultanpur-227412
(Through Respondent No3)
6. Ravi Gupta, SSA
ORDAQA (ADL) Lucknow, DGAQA
C/o HAL, Lucknow- 226 016
(Through Respondent No.3)
7. Durgesh Naman, SSA
ORDAQA (Korwa), DGAQA
C/o HAL, Korwa, Sultanpur-227 412
(Through Respondent No.3)
8. Avanish Mishra, SSA
3
O.A. No.1236/2021
Item No.32 (C-II)
OADG, DGAQA)
OJHAR, Nasik- 422207
(Through Respondent No.3)
9. Arindam Halder, SSA
Alisda, DGAQA
Jalahalli Camp Road
Yeshwantpur PO, Bengaluru-560 022
(Through Respondent No.3)
10.Prabhat Kr Pandey, SSA
ORDAQA (Ghaziabad), DGAQA
C/o Bel Post, Bharat Nagar,
Ghaziabad (UP)- 201 010
(Through Respondent No.3)
11. Ankur Goyal, SSA
ORDAQA (Korwa), DGAQA
C/o Hal, Korwa, Sultanpur-227 412
(Through Respondent No.3)
12. Abhishek Ranjan, SSA
ORDAQA (Ghaziabad), DGAQA
C/o Bel Post, Bharat Nagar
Ghaziabad (UP)- 201 010
(Through Respondent No.3)
13. Srihari Merugu, SSA
Alisda, DGAQA
Jalahalli Camp Road
Yeshwantpur PO, Bengaluru-560 022
(Through Respondent No.3)
14. Gaurav Sharma, SSA
ORDAQA, DGAQA
Hal Post, Hyderabad- 500 042
(Through Respondent No.3)
15. Narendra Mohan Jha, SSA
ORDAQA,DGAQA (Helicopter)
PB No. 1782 Vimanapura Post,
C/O Hal, Bengaluru-560 017
(Through Respondent No.3)
16 Nidhin R A,SSA
ORDAQA (Ghaziabad), DGAQA
C/O Bel Post, Bharat Nagar
4
O.A. No.1236/2021
Item No.32 (C-II)
Ghaziabad (UP)- 201010
(Through Respondent No.3)
17. Akhil Sai PK, SSA
Alisda, DGAQA
Jalahalli Camp Road
Yeshwantpur PO, Bengaluru-560 022
(Through Respondent No.3)
18. Pankaj Kumar, SSA
ORDAQA (LCA-TEJAS), DGAQA
Marathahalli Post,
Near Yemlur Gate Bengaluru - 560 037
(Through Respondent No.3)
19. Vimal Kr Meena, SSA
ORDAQA (ASERDC) Lucknow, DGAQA
C/o Hal, Lucknow- 226 016
(Through Respondent No.3)
20. Kuldeep Singh Rawat, SSA
ORDAQA, DGAQA
Chakeri, Kanpur- 208 008
(Through Respondent No.3)
21. Satish Kumar, SSA
ORDAQA,DGAQA (Helicopter)
PB No. 1782 Vimanapura Post,
C/O Hal, Bengaluru-560 017
(Through Respondent No.3)
22. Murugesh S ,SSA
OADG, DGAQA
C/O Hal PB No. 06 Sunabeda,
Koraput, Odisha-763002
(Through Respondent No.3)
23. Nanthkumar M, SSA
OADG, DGAQA
C/O Hal PB No. 06 Sunabeda,
Koraput, Odisha-763002
(Through Respondent No.3)
24. Rathnam A J, SSA
OADG, DGAQA
Ojhar, Nasik- 422207
(Through Respondent No.3)
5
O.A. No.1236/2021
Item No.32 (C-II)
25. Abir Bagchi, SSA
Hq, DGAQA
H' Block, DHQ Post, New Delhi - 110011
(Through Respondent No.3)
26. Sourav Khan, SSA
ORDAQA(Overhaul), DGAQA
C/o Hal (BC) Vimanapura Post
Bengaluru- 560 017
(Through Respondent No.3)
27. Dr Subhash, SSA
Hq, DGAQA
'H Block, DHQ Post, New Delhi - 110011
(Through Respondent No.3)
28. Pawan Kumar,SSA
Alisda, DGAQA
Jalahalli Camp Road
Yeshwantpur Po, Bengaluru-560 022
(Through Respondent No.3)
29. Manish Rah Shivare, SSA,
Alisda, DGAQA,
Jalahalli Camp Road,
Yeshwantpur PO, Bengaluru-560 022.
(Through Respondent No.3)
30. Prashant Kumar.SSA
ORDAQA, DGAQA,
Hal Post. Hyderabad- 500 042
(Through Respondent No3)
31. Lakhan Bhagwat Kamble, SSA
OADA, DGAQA
Ojhar Nasik- 422207
(Through Respondent No.3)
32. Hemant Dhanraj Wagh, SSA
OADG, DGAQA
Ojhar, Nasik- 422207
(Through Respondent No.3)
33. Sharad Shekhar Palariya,SSA
ORDAQA (ASERDC), Lucknow, DGAQA,
C/o Hal, Lucknow-226 016
6
O.A. No.1236/2021
Item No.32 (C-II)
(Through Respondent No3)
34. Digvijay Singh, SSA ,
ORDAQA (Overhaul), DGAQA,
C/o Hal (BC) Vimanapura Post,
Bengaluru-560 017.
35. Gaurav Tyagi, SSA,
HQ, DGAQA,
H Block, DHQ Post,
New Delhi-110011
(through Respondent No.3)
36. Kumar Sampann, SSA
OADG, DGAQA,
Ojhar, Nasik-422207
(Through Respondent No3)
37. Bikash Kumar Sahoo, SSA
ORDAQA (Engine), DGAQA,
CV Raman Nagar, Bengaluru-560093.
(Through Respondent No3)
38. Roshan S Lal, SSA
ORDAQA(Engine), DGAQA
CV Raman Nagar Bengaluru 560093
(Through Respondent No.3)
39. Simranjot Singh Bual, SSA
ORDAQA,DGAQA (Helicopter)
PB No. 1782 Vimanapura Post,
C/O Hal, Bengaluru-560 017
(Through Respondent No.3)
40. Gullipalli Prakasarao, SSA
ORDAQA(Engine), DGAQA
CV Raman Nagar Bengaluru 560093
(Through Respondent No.3)
41. Swatantra Vishwakarma, SSA
ORDAQA (Adl) Lucknow, DGAQA
C/o Hal Lucknow- 226 016
(Through Respondent No.3)
42. Sumit Prajapat, SSA
ORDAQA, DGAQA
Chakeri, Kanpur- 208 008
7
O.A. No.1236/2021
Item No.32 (C-II)
(Through Respondent No.3)
43. Devendra Kumar K Kushram, SSA
ORDAQA (Overhaul), DGAQA
C/O Hal (Bc) Vimanapura Post
Bengaluru- 560 017
(Through Respondent No.3)
44. Swapnil Vasantrao Meshram, SSA
OADG, DGAQA
Ojhar, Nasik- 422207
(Through Respondent No.3)
45. Rakesh Kumar, SSA
ORDAQA, DGAQA
Chakeri, Kanpur- 208 008
(Through Respondent No.3)
46. Vasu H, SSA,
ORDAQA (AARDC),
PB No.1782, Vimanapura Post,
C/o Hal, Bengaluru-560017
(Through respondent No.3)
...Respondents
(By Advocate :Shri Shri Gyanendra Singh)
8
O.A. No.1236/2021
Item No.32 (C-II)
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):
The applicants, who are working as Senior Scientific Assistants in the Organisation of the respondents, place a challenge to the seniority list dated 25.05.2021 (Annexure-A/1), an order dated 24.05.2021 (Annexure-A/2), and simultaneously, seek restoration of the seniority list dated 20.04.2017 (Annexure-A/3). The primary ground on which such a relief is being sought in the present OA is that certain officials who are stated to be their juniors have been given a higher position in the impugned seniority list. The reliefs prayed for in para 8 of the OA are reproduced in verbatim :-
"i) Quash and set aside the impugned seniority list dated 25.5.2021 (ANNEXURE A-1) and the Order dated 24.5.2021 (ANNEXURE-A-2) as arbitrary and illegal.
ii) Direct the respondents to restore the settled seniority list dated 20.4.2017 (ANNEXURE A-3) and consider the applicants strictly as per the said list for promotion to the post of Junior Scientific Officer (JSO).
9O.A. No.1236/2021 Item No.32 (C-II)
iii) Grant any other relief as deemed appropriate under the facts and circumstances of the case."
2. Pursuant to the notice, the official respondents i.e. respondents No.1 to 4 have filed their reply and pleadings qua them are complete. However, respondents No.5 to 46 who are the private respondents and necessarily the interested parties have neither made appearance nor filed reply despite service and adequate opportunities.
3. The brief facts and history of the case, as explained by the learned counsel for the applicants are that the applicants got promoted as Senior Scientific Assistant during the year 2015 and were accordingly assigned an appropriate place in the seniority list dated 20.04.2017. However, vide a seniority list dated 25.05.2021, this seniority list was reviewed. Some direct recruits, who have been impleaded as private respondents though recruited and appointed much after the appointment/promotion of the applicants, got assigned position in the seniority list above the applicants. While unsettling the already finalised seniority list, this has caused serious prejudice to the 10 O.A. No.1236/2021 Item No.32 (C-II) future career progression of the applicants. Learned counsel argues that the action of the respondents is in contravention with the law laid down by the Hon'ble Apex Court in K. Meghachandra Singh Vs. Ningam Siro (2020) 5 SCC 689, which has further been reflected in a large number of judgments rendered by this Tribunal. He emphasises that in K. Meghachandra Singh's case (supra), it was categorically held by the Hon'ble Apex Court that right for an appropriate place in the seniority list cannot accrue on a date when the concerned official was not even in service. In the instant case, learned counsel clarifies that some of the officials who were recruited and appointed in the year 2020 have been assigned seniority with effect from the year 2017, the date on which they may not even have been eligible to be appointed on such a post. He submits that the DOP&T's Office Memorandum of 1986, which the respondents have relied upon while unsettling the settled position would not be applicable in the instant case. Moreover, he points out that the respondents have been taking shelter behind the judgment of the Hon'ble Apex Court in Union of India Vs. N.R. Parmar & Ors. (2012) 13 SCC 340, 11 O.A. No.1236/2021 Item No.32 (C-II) which however, has been overturned by the subsequent judgment of K. Meghachandra Singh (supra).
4. To cut his arguments short, the learned counsel draws support from a series of judgments passed by this Tribunal on identical issues, beginning with OA No.1545/2020 decided on 12.07.2022. The learned counsel reiterates that the judgement in this aforequoted OA has discussed at length both the N.R. Parmar and K. Meghachandra Singh (supra) judgements of Hon'ble Apex Court as also the DOP&T Office Memoranda which are the outcome of these judgments and thereafter taken a very considered view that even the N.R. Parmar's case (supra) followed by the DOP&T Office Memorandum of 04.03.2014 do not give the liberty to the respondents to assign the seniority from a date on which the person was not even borne on the cadre and further not even entered the service in the organisation of respondents. Accordingly, the impugned seniority list being in contravention to the judgment of the Hon'ble Apex Court and Rules and considering the fact that the matter has been conclusively settled by 12 O.A. No.1236/2021 Item No.32 (C-II) this Tribunal in the aforementioned OA, followed by a large number of other OAs, there could be no cause not to apply the same principle and law in the instant matter. Accordingly, he prays to quash and set aside the impugned seniority list.
5. The learned counsel for the respondents vehemently contests the averments made in the OA and the arguments put forth by the learned counsel for the applicants. He argues that no doubt the Hon'ble Apex Court in K. Meghachandra Singh's case (supra) has overturned the guiding principles laid down in the N.R. Parmar's case for determining the inter-se-seniority, however, the judgment in K. Meghachandra Singh (supra) clearly stated that its implications and implementation of directions shall be prospective. It was further clarified that action of the Government Organisations, which includes the respondents, taken in pursuance to the N.R. Parmar's case (supra) would remain protected during the period from the said judgment till the judgment in the K. Meghachandra Singh (supra). Learned counsel further submits that in terms of the N.R. Parmar (supra) judgment read with the DOP&T 13 O.A. No.1236/2021 Item No.32 (C-II) Office Memorandum dated 04.03.2014, seniority to the direct recruits is to be assigned with reference to the year of vacancies for such recruits. He submits that he has made detailed averments explaining the entire history and background of the issue pertaining to inter-se-seniority in the counter reply filed on 15.12.2021. The said counter reply also extensively discusses the two judgments of the Hon'ble Apex Court on the subject which have been repeatedly referred to in the instant judgment. While quoting from the said counter reply, learned counsel draws specific attention to what has been recorded in the para 11 of the reply. For the sake of better appreciation of the arguments put forth by the learned counsel for the respondents, the said para is being reproduced below :-
"11. The seniority roll of SSA was issued on 20.4.2017 which contained names of only the Promotee SSAs of the year 2015-16. The seniority list of2017 had no direct recruit of the year 2015- 2016 as by that time the direct recruitment by the Union Public Service Commission was in process and the same got finalized only by 2020. As no direct recruit SSA was available at that time for rotation, the promotee SSAs, including the applicants, who had become available on that date were placed in the seniority roll. Thus, the seniority list of 2017 represented only 14 O.A. No.1236/2021 Item No.32 (C-II) 9% of the total strength as per RRS i.e. promotees and 91% of the strength comprised of direct recruit candidates, who were not available at that point of time were not included in the seniority list. Thus the seniority list of 2021 is now representing both, promotees and direct recruits. Hence the seniority list of 2021 so promulgated cannot be said to be unsettled as is being made out by the applicants. The seniority list of 2017 can be called settled to the extent that it represented only those who were present in that grade at that point of time. Those who were present were only the promotees. No representation of direct recruits was there in that seniority list. The representation of Direct Recruits could be incorporated in the latest seniority list of 2021."
6. He further submits that para 7 of the DOP&T Office Memorandum dated 04.03.2014 also conclusively substantiates and justifies the action of the respondents in issuing the impugned seniority list, strictly in accordance with the law governing the subject and such rules have been derived on the basis of the N.R. Parmar (supra). Para 7 of the said Memorandum reads as under :-
"7. As the conferment of seniority would be against the Recruitment Year in which the recruitment process is initiated for filling up of the vacancies, it is incumbent upon all administrative authorities to ensure that the recruitment process is initiated during the vacancy year itself. While requisition for filling up the 15 O.A. No.1236/2021 Item No.32 (C-II) vacancies for direct recruitment should be sent to the recruiting agency, complete in all respects, during the vacancy year itself, the timelines specified in the Model Calendar for DPCs contained in DoPT O.M. No.22011/9/98-Estt(D) dated 8.9.98 and the Consolidated Instructions on DPCs contained in O.M. No.22011/S/86- Estt(D) dated April 10, 1989 should be scrupulously adhered to, for filling up the vacancies against promotion quota."
7. We have given a patient hearing to the learned counsels for the parties. We also meticulously examined the pleadings on record. Despite the fact that the issue has been engaging the attention of various legal fora for quite some time and there are innumerable Office Memoranda and also instructions on the subject, and further the file of this OA has also become very voluminous, we have no doubt in our mind that the issue at stake is a limited one. The seniority list issued by the respondents in the year 2017, precisely on 20.04.2017 had assigned a particular place to the applicants in the list. The same got disturbed on 25.05.2021 by way of placing certain direct recruits at positions higher than them.
8. Now, the respondents' stand is that even though these direct recruits had not been appointed in the 16 O.A. No.1236/2021 Item No.32 (C-II) year 2017 when the said seniority list was issued, however, there were vacancies for direct recruits in the said year and accordingly, the ones who were recruited on a later date, were assigned appropriate positions in the seniority list of 2017, thus necessitating its revision by issuance of a fresh seniority list dated 25.05.2021. Point to be noted is that the private respondents who were direct recruits, were not part of the organisation, least to say of the cadre of Senior Scientific Assistants in the year 2017, but still managed, in the year 2021, to find their names in the seniority of 2017. It is a highly incongruous situation. The respondents have justified this action by terming it as strictly in accordance with the judgment of the Hon'ble Apex Court in N.R. Parmar's case (supra), further finding reflection in DOP&T OM dated 04.03.2014. While we have quoted, through the arguments of the learned counsel for the respondents para 7 of the said OM, it would be worthwhile to quote para 5, which outlines the principles to be adopted in determining the seniority. The same reads as under
:-17 O.A. No.1236/2021
Item No.32 (C-II) "5. The matter has been examined in pursuance of Hon'ble Supreme Court Judgment on 27.11.2012, in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar vs. U01 & Ors in consultation with the Department of Legal Affairs and it has been decided, that the manner of determination of inter-se-seniority of direct recruits and promotes would be as under:
a) DoPT OM No. 20011/1/2006-
Estt.(D) dated 3.3.2008 is treated as nonexistent/withdrawn ob initio;
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPT O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees;
c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.
18O.A. No.1236/2021 Item No.32 (C-II)
f) The initiation of recruitment process for any of the modes viz.
direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;
h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. U01 & Ors.
i) The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened."
9. We have elaborately discussed this issue while deciding the OA No1545/2020, as has already been mentioned in one of the preceding paragraphs. We have also elaborately discussed the judgement of the Hon'ble Apex Court in N.R. Parmar (supra) which has further been reflected in the aforementioned OA. N.R. Parmar's case (supra) was not simply overturned by K. Meghachandra Singh (supra). 19 O.A. No.1236/2021 Item No.32 (C-II) However, it was also interpreted by observing as under :-
"The term "recruitment year" does not and cannot mean the year in which, the recruitment process is initiated or the year in which vacancy arises. The contrary declaration in N.R. Parmar in our considered opinion, is not a correct view."
10. The Hon'ble Apex Court had also held that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. Persons cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued. As in OA No.1545/2020 and also the present one, we have gone through the judgment in N.R. Parmar (supra) carefully. We have also read this judgment against the background of the facts and circumstances of the present OA, and the relief being sought. No matter how many times we read, we do not find that this judgment gives a blanket liberty and scope to interpret it in a manner as the respondents have been doing i.e. to assign seniority 20 O.A. No.1236/2021 Item No.32 (C-II) from a back date when the person was not even in service. If inter-se-seniority is to be assigned in terms of the vacancy year, does it give liberty to the respondents to assign seniority from a date when the person had not even entered the service? Our emphatic answer to this question is 'No'; and this is what we have elaborately discussed in the judgment in OA No.1545/2020. We had recorded in the said judgment as under :-
"9. We have gone through the said judgement time and again and we do not find that judgement gives liberty or scope to anyone to interpret it in a manner as to assign seniority from such a back date when the person was not even in service."
11. We had further recorded in the aforesaid order as under :-
"20. Moreover, the seniority list of 2019 assigned seniority to various persons with effect from the date when they were neither recruited nor appointed. No doubt both the learned counsel for the respondents have vehemently argued that this seniority list adheres to 2014 DOP&T memorandum which itself was an outcome of the judgement rendered by the Hon'ble Supreme Court in N.R. Parmar case (supra), we are not inclined to agree to this interpretation of the Hon'ble Supreme Court in N.R. Parmar case nor does the DOP&T 21 O.A. No.1236/2021 Item No.32 (C-II) memorandum anywhere state that the seniority is to be assigned in the vacancy year for which the recruitment is made. At the most it allows assignment of the seniority during the year when the recruitment process was set in motion. No where has it been established that the recruitment process has been set in a motion w.e.f. the date on which the seniority has been assigned to various persons."
12. Since the matter has been thrashed out thread bare, there is no cause before us to take a view which is divergent from the one which has already been expressed by way of a judicial order.
13. In the light of what has been detailed and discussed above, the present OA is allowed and the seniority list dated 25.05.2021 accompanied by order dated 24.05.2021 is quashed and set aside. Further, the seniority list dated 20.04.2017 stands restored to the extent that the respondents shall be at liberty to issue a subsequent seniority list after assigning appropriate place to the direct recruits including the private respondents, however, strictly in accordance with the directions and observations contained in this order read with the instructions of the DOP&T as are in vogue on date. The aforesaid directions shall 22 O.A. No.1236/2021 Item No.32 (C-II) be complied with, as expeditiously as possible, and in no case later than a period of 12 weeks from the date of receipt of a copy of this order.
14. The OA stands allowed against the background of these observations and directions.
There shall be no order as to costs.
( Tarun Shridhar ) ( R.N. Singh )
Member (A) Member (J)
/rk/