Central Administrative Tribunal - Delhi
Vijay Kumar Bawa Son Of Late Shri Dayal ... vs Union Of India Through The Secretary To ... on 31 May, 2010
Central Administrative Tribunal Principal Bench OA No.337/2007 New Delhi this the 31st day of May, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Vijay Kumar Bawa son of late Shri Dayal Dass Bawa, aged about 53 years, working as Registrar (on adhoc basis), Central Administrative Tribunal, Chandigarh Bench, Chandigarh. -Applicant (By Advocate Shri L.R. Khatana) -Versus- 1. Union of India through the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi. 2. Central Administrative Tribunal, Principal Bench, New Delhi through its Registrar. 3. Smt. V.P. Kamalamma, Registrar, Central Administrative Tribunal, Jodhpur Bench, Jodhpur. 4. Shri N.N. Pradeep, Registrar, Central Administrative Tribunal, Hyderabad Bench, Hyderabad. 5. Shri Govind Ballabh, Joint Registrar, Central Administrative Tribunal, Principal Bench, New Delhi. (By Advocate Shri M.M. Sudan) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, working as Registrar on ad hoc basis in Central Administrative Tribunal, Chandigarh Bench, has sought for the following reliefs:
(i) Order No.12013/9/2005-A dated 2nd March, 2006 (Annexure A-1) issued by the office of Respondent No.1, whereby respondent No.3 alongwith two others have been promoted as Joint Registrar from the post of Deputy Registrar on Regular basis w.e.f. 01.04.2002, may be quashed.
(ii) Order No.PB/1/1/2005/E-I 6977/A dated 17.10.2006, whereby Respondent No.4 and 5 have been promoted as regular Joint Registrar w.e.f. 01.01.2003, (Annexure A-2) issued by the Principal Bench, Central Administrative Tribunal, New Delhi may be quashed.
(iii) Order No. PB1/6/2005/Estt-I/6656/A dated 01.09.2006, whereby Respondent No.3 along with 3 others has been promoted as Registrar on regular basis w.e.f. 01.01.2003, (Annexure A-3), issued by Principal Bench, Central Administrative Tribunal, New Delhi, may be quashed.
(iv) Order No.12013/6/2006-AT dated 17.10.2006 (Annexure A-4) issued by the Respondent No.1 whereby applicant has been ordered to be appointed as Joint Registrar on Notional basis w.e.f. 01.01.2003 and actual basis from the date of taking over charge of the post of Joint Registrar against the vacancy caused by refusal of promotion by Sh. B. Stephen Swamidoss Sunderaja may be quashed.
(v) Order No.A-12013/4/2006-AT dated 07.12.2006 passed by the Respondent No.1, whereby Respondents No.4 and 5 have been promoted as Registrar on regular basis in Central Administrative Tribunal, (Annexure A-5) and applicant has been kept in the waiting list may be quashed.
(vi) Order No.PB/1/6/2005-Estt-I/590 A dated 19.01.2007 (Annexure A-6) posting the Respondents No.4 and 5 as Registrar, Central Administrative Tribunal, Hyderabad and Chandigarh Bench respectively, may be quashed.
(vii) Direction may be issued to the respondents to fix the seniority of applicant in the cadre of Section Officer in terms of directions of the DOPT as contained in letter No.12013/2/2003-AT dated 11th August, 2003 etc. upholding the entitlement of the applicant for seniority in the cadre of Section Officer in C.A.T. w.e.f. 1.7.1983 as against 1st January, 1986 already granted by the official respondents with all the consequential benefits including re-consideration of claim of the applicant for promotion to the post of Deputy Registrar, Joint Registrar and Registrar accordingly.
(viii) Issue any other order or direction deemed fit and proper in the facts and circumstances of the case to which applicant is held entitled to.
(ix) Award costs of the petition in favour of the applicant.
2. An interim order has also been sought to stay the operation of Annexures A-5 and A-6, whereby respondent No.5 Shri Govind Ballabh takes the charge of Registrar on promotion on regular basis at Chandigarh Bench of this Tribunal.
3. An order passed on 31.01.2007 stayed the operation of Annexure A-6 qua respondent No.5, which was made absolute on rejection of request of respondent No.5 for vacation of interim order on 23.02.2006 by the Bench of the Tribunal at Chandigarh Bench. However, exercising power under Section 25 of the Administrative Tribunals Act, 1985 the then Honble Chairman of the Tribunal transferred the above OA to the Principal Bench. On 27.02.2007 the interim order was modified on clarification to enable respondent No.5 to draw salary and to continue him on at least on a supernumerary post, which was complied with and respondent No.5 while working as Joint Registrar retired on superannuation from Principal Bench.
4. Before we proceed to adjudicate the issue involved, a brief factual matrix is relevant to be highlighted, so it is. Applicant had worked as Section Officer (SO) w.e.f. 2.5.1983, on ad hoc basis while working in the Ministry of Shipping and Transport. He appeared in the Section Officers Grade Limited Departmental Examination (LDCE), 1983 and on being declared qualified was allotted Ministry of Urban Development where he joined w.e.f. 1.1.1986 as Section Officer on regular basis. As per the instructions of the Government on seniority the relative seniority of direct recruits is determined by the order of merit in which they are selected on the recommendations of the Union Public Service Commission (UPSC). Hence the applicant was entitled to seniority as per his position in the panel, i.e., with effect from 1st July, 1983.
4. Thereafter the applicant was appointed as Section Officer on deputation basis in the Central Administrative Tribunal (CAT) at Chandigarh Bench w.e.f. 3.3.1986 and was absorbed there on framing of the recruitment rules for various categories w.e.f. 1.11.1989. In terms of the instructions of the Department of Personnel & Training (DoP&T) dated 3.7.1986 a person appointed on deputation on absorption is entitled to the seniority from the date of his holding the post on deputation basis or the date from which he has been appointed on regular basis to the same or equivalent grade in the parent department, whichever is later, which on amendment has been changed to whichever is earlier.
5. The applicant was promoted as Deputy Registrar on ad hoc basis w.e.f. 17.8.1982 but continued as such upto June, 1997, when he was made regular Deputy Registrar w.e.f. 18.5.1994, vide order dated 1.7.1997. The seniority of the applicant in the cadre of Section Officer was taken from the date of joining CAT, i.e., w.e.f. 3.3.1986 as per the instructions of 1986. On challenge to seniority and instructions of 1986 by respondent No.5, who was absorbed on deputation to count regular service in the parent office, OA was allowed and the matter had gone to the Apex Court, whereby in M. Ramachandran v. Govind Ballabh, 1999 (5) SLR SC 318, on the issue of seniority, the following observations are made:
9. We are of the considered opinion that sub-rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under sub-rule (1) of Rule 5. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under sub-rule (2) as is the present case of the persons appointed/recruited on the same date. In such a case the seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being specific rule, resort be had to the Official Memorandum relied upon by the respondents. Seniority is a relevant term having reference to the class, category and the grade to which the reference is made. Length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length of service for the purposes of determining the seniority. In other words the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the Rules does not, in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.
6. As a result thereof, the seniority in all the cadres have been reviewed as per interpretation given to Rule 5 (1) and (2) of the Service Conditions Rules, where the objection of applicant regarding reckoning his seniority on regular promotion w.e.f. 1.7.1983 was considered and it was decided that the applicant cannot be treated to hold the post of Section Officer w.e.f. 1.7.1983. Applicant also submitted a representation in this regard on 23.10.2002 with a request that he may be granted seniority from 1983, i.e., the date of the panel in which he was appointed as Section Officer and started performing his duties and hence entitled to seniority w.e.f. 1983 in terms of the directions of the Apex Court in M. Ramachandran (supra) and accordingly his date of promotion as Deputy Registrar may be antedated w.e.f. 1.4.1991 but his request for reckoning seniority from 1.7.1983 instead of 1.1.1986 was turned down. The benefit of past service rendered in the parent office has not been allowed to the applicant.
7. The respondents circulated the draft seniority list of the Deputy Registrars, inviting objections from the applicant and others. As applicant was not accorded seniority as Section Officer in terms of the decision of the Apex Court in M. Ramachandran (supra) applicant submitted another representation on 29.11.2002, stating that his earlier representation dated 23.10.2002 be taken as objections to the draft seniority list. The respondent No.2 took up the matter of seniority of applicant with respondent No.1 vide letters dated 18.2.2003 and 24.3.2003 seeking details of regular appointment/select panel of applicant as Section Officer (CSS) permanently absorbed as Section Officer in the CAT. Respondent No.1 examined the matter in consultation with CS Division, who also confirmed vide OM dated 4.8.2003 that the applicant belongs to the select list of Section Officers for the year 1983 (LDCE), is to be given seniority from 1.7.1983 and thereafter the DoP&T vide letter dated 11.8.2003 addressed to respondent No.2 informed that the applicant is entitled to seniority w.e.f. 1.7.1983. Hence, the Govt. of India had directed that the applicant be given seniority as S.O. w.e.f. 1.7.1983 as back as on 11.8.2003 but respondent No.2 did not paid any heed to it, even after lapse of more than three years.
8. A departmental promotion committee (DPC) meeting was held in September, 2001 for anticipated vacancies of Joint Registrar in which all the eligible candidates, including the applicant and respondents No.3-5 were considered. The applicant was promoted as Joint Registrar w.e.f. 26.4.2002 vide order dated 27.2.2002 issued by the DoP&T and order dated 4.3.2002 issued by the CAT, Principal Bench, New Delhi and accordingly joined on 26.3.2002 in CAT, Principal Bench. New Delhi.
9. A representation was preferred by the applicant on 23.10.2002 for grant of seniority w.e.f. 1983, as the DoP&T vide its communication dated 4.8.2003 decided that applicant belongs to the select list of SOs for the year 1983 and is entitled to seniority w.e.f. 1.7.1983. However, this has not been paid any heed to and a draft seniority list of Deputy Registrars was circulated when in view of M. Ramachandran (supra) his seniority was not correctly decided.
10. During this interregnum respondent No.3 V.P. Kamalamma filed OA No.255/2002 before the Madras Bench of the CAT, seeking setting aside order dated 27.2.2002 and also promotion w.e.f. 4.3.2002 with all benefits. The OA was dismissed, against which Writ Petition (Civil) No.11256/2003 was filed before the High Court of Judicature at Madras, which was decided on 6.1.2005, whereby all the prayers made in the OA were not granted, but finding that no seniority list was maintained, which resulted in promotion of juniors in violation of the Service Rules. Further the rules for promotion in the year when vacancy arose should be followed. The panel for promotion was not prepared in 1997, 1998 and 1999 when there were vacancies. The amended rules which came into existence in 2001 have been applied for promotion to a vacancy which arose in 1998. Therefore, respondents have been directed to prepare the panel for promotion year-wise for 1997, 1998, 1999 and 2000 to the cadre of Joint Registrar and give promotion to the eligible persons as per the Rules that were in force in those years.
11. It is pertinent to note that neither the promotion of applicant nor the procedure adopted by the DPC held in September 2001 were in dispute or any finding pertaining to that has been recorded. As a result of the above, the respondents have revised seniority by circulating final seniority list on 17.2.2005 against which applicant had preferred a representation, seeking setting right his seniority in the cadre of SO and then consequently changing his promotion date from 1994 to 1991 as Deputy Registrar and thereafter antedating his promotion as Joint Registrar, which has not yet been decided.
12. Following the decision of the Madras High Court respondents have promoted one Shri Raghubir Singh and N. Rama Murthy as Joint Registrar on regular basis w.e.f. 1.4.1997 and 18.1.2000 by an order passed on 8.4.2005 along with one Shri N.N. Pradeep for a period of six months till the post is filled up on regular basis, whichever is earlier and they have been continuing. However, one Mr. N.N. Pradeep has been promoted as regular Registrar w.e.f. 20.05.2004 vide impugned order dated 7.12.2006/ 19.01.2007.
13. A review of DPC of 2000 in which applicant was promoted was undertaken, as a result of which Mrs. V.P. Kamalamma was promoted as Joint Registrar w.e.f. 1.4.2002 on notional basis and the applicant, who was holding the post of Joint Registrar w.e.f. 26.3.2002, the promotion date of Shri N.N. Pradeep and Shri Govind Ballabh has been changed. Applicant has also been on the basis of seniority and decision of Madras High Court in Kamalamma (supra) was promoted on the post of Joint Registrar on notional basis w.e.f. 1.1.2003 and on actual basis from the date he took charge on refusal of promotion by Shri B. Stephen from 27.9.2006, which order was cancelled.
14. Being aggrieved by the same, learned counsel of applicant has stated that non-grant of seniority to the applicant in the cadre of SO when the DoP&T had already taken a decision to relate back seniority of applicant w.e.f. 1.7.1983, which in all legal implications antedated his regular appointment as SO from this date and applying the principle in M. Ramachandran (supra) the date now being treated as in the case of the applicant in the SO cadre as 1.1.1986 if is related back to 1.7.1983 the seniority list of SOs the consequent promotions as Deputy Registrar, Joint Registrar and Registrar including seniority further as a consequence and ripple effect would antedate his promotion as Joint Registrar as well as he would be entitled to be promoted earlier to the private respondents as Registrar.
15. Another contention put-forth is that in Kamalammas case (supra) when the promotion of applicant effected by DPC held in September, 2001 when DoP&T instructions of 8.2.2002 were not in vague and the respondents categorical assertion before the High Court of Madres to this effect, now approbating, taking a different view and stand the DPC of 2001 held in case of applicant, where he was prooted w.e.f. 26.3.2002 cannot be reviewed, which is a malafide act on the part of respondent No.5 to benefit himself and has greatly prejudiced applicant, as a review DPC is permissible only when certain conditions are met with, when not fulfilled as condition precedent in the instant case the DPC and promotion of applicant in 2000, 2001 and 2002 respectively when suffers from no legal infirmity, postponing the date of promotion of applicant is not in accordance with law.
16. Learned counsel would also contend that as postponement has caused civil consequences upon applicant, as per FR 31-A and principles of natural justice, action of respondents is against law, which deprived applicant of a reasonable opportunity, which cannot be countenanced in law.
17. On the other hand, learned counsel of respondents has vehemently opposed the contentions and Shri M.M. Sudan, learned counsel stated that insofar as seniority on the basis of select list of SOs is concerned, a similar plea of Shri Raghubir Singh is turned down, the seniority now in the cadre of SOs, which is not relevant for the cadres of Deputy Registrar, Joint Registrar and Registrar cannot be unsettled after a long lapse of time. It is also contended that as per M. Ramachandran (supra) in terms of Rule 5 (1) of CAT (Group B & C Misc. Post) Recruitment Rules, 1989 the seniority is required to be determined with reference to the date of regular appointment to the post. Accordingly, the seniority of SC/CO/PS was revised as per the date of regular appointment and since the applicant had been regularly appointed as Section Officer in his parent department w.e.f. 1.1.1986, he was placed in the seniority list accordingly and this seniority list having since attained finality, this issue cannot be agitated at this belated stage. Moreover, the applicant is disputing the promotion of respondents No.4 and 5 to the grade of Registrar, which has no relevance to the present seniority, which is correctly determined on 17.3.2005, against which applicant has not objected to.
18. Learned counsel would further contend that earlier request of applicant while finalizing seniority pursuant upon M. Ramachandran (supra) has been turned down and having not challenged the same, he has acquiesced to that seniority by non-challenge. Hence, his claim is misconceived.
19. As regards advancing the promotion of Joint Registrar is concerned, it is stated that direction of the Honble High Court was to prepare panel for the years 1997 to 2000 only. Restricting the implementation of the judgment upto the year 2000 only and not beyond would have resulted in miscarriage of justice. The applicant was considered by the DPC for the year 2002 for promotion to the post of Joint Registrar as he was in the zone of consideration as per his position in the seniority in the grade of Deputy Registrar but he could not be promoted since he was junior to the other officers who were selected and met the Benchmark.
20. It is further stated that on refusal of promotion by Mr. B. Stephen applicant was granted promotion. He has been considered for promotion as Joint Registrar in his turn and has been promoted w.e.f. 1.1.2003 on notional basis. He has not so far assumed charge of the post of Joint Registrar and as per the recruitment rules for the post of Registrar (OB) unless the person has put in 10 years combined service as Deputy Registrar and Joint Registrar, he cannot be promoted as Registrar (OB). There is no post of Joint Registrar in Chandigarh Bench and hence he has been posted to Principal Bench where the post of Joint Registrar would have become available after promotion of respondent No.5. Applicant, therefore, has no right to claim a post, which he is neither holding nor has attained eligibility for promotion.
21. It is further stated that in implementation of the judgement in the Writ Petition the applicant was promoted as Joint Registrar w.e.f. 2002 and the earlier DPC promoting him as Joint Registrar thus stood annulled. Applicant was allowed to continue as Registrar on ad hoc basis till 17.5.2006, which has come to an end.
22. Respondent No.5 did not appear, who was appearing in person and has since retired, in his reply stated that as per M. Ramachandran (supra) and Rule 5 (2) of the Rules the seniority to the applicant in the cadre of SO has been rightly given and assuming that two vacancies, which accrued in January and February, 2000 could be considered by one DPC. The applicant was not eligible on 1.1.2000 and hence was not within the zone of consideration. Thereafter the instructions of 8.2.2002 have since been followed, applicant being not within the zone of consideration for Joint Registrar, erroneously a DPC held in September 2001, without finalization of seniority of Deputy Registrars excluded the Deputy Registrars eligible for the post and as appointments made on the basis of such DPC have been declared illegal by the Madras High Court, the claim of applicant being multiple, cannot be sustained in law.
23. Respondent No.3 has also opposed the contention. Since we find from the record that respondent No.3 Smt. V.P. Kamalamma and respondent No.5, Shri Govind Ballabh have sine retired from service Shri N.N. Pradeep, who has been promoted as Registrar w.e.f. 20.4.2004, has to retire in 2012, the claim is to be now adjudicated.
24. We have carefully considered the rival contentions of the parties and perused the material on record. We have also been given record by the CAT pertaining to determination of seniority pursuant upon the decision of the Apex Court in M. Ramachandran (supra), determination of seniority of Deputy Registrars consequent upon revised final seniority list of 17.2.2005 and the record of relating to review DPC for the post of Joint Registrar/Registrar (OB) in CAT, which we have perused and considered the rival contentions of the parties.
25. The following issues, from the facts enumerated above, are relevant for our determination and adjudication:
i) Whether applicant is entitled for seniority from the select year 1983 instead of 1.1.1986 as per the communication of DoP&T dated 4.8.2003; and
ii) whether advancement of promotion date of applicant and cancelling the earlier promotion w.e.f. 26.3.2002 is legally tenable or not?
26. The seniority has been held to be a civil right and has to be operated as per rules and regulations to this effect by a Constitution Bench of the Apex Court in Praffula Kumar v. State of Orissa, (2004) SCC (L&S) 121. Also held by a catena of decisions that seniority once settled cannot be unsettled after a long lapse of time, as ruled in S.C. Mishra v. State of Orissa, 2006 (1) SCALE 9. However, in the matter of seniority as ruled by the Apex Court in M.S. Prasad v. Comptroller General, 2007 (5) SCALE 173 that for want of rules even instructions are valid to be followed. As also held in Ashok Kumar Srivastava v. Ram Lal, 2008 (1) SCALE 176 that in the matter of seniority ad hoc period, if the initial appointment is substantive, is to be counted towards seniority. It is also held in S. Sumanyan and others v. Liminiari & Ors., 2010 (4) SCALE 164 that when ad hoc service is in accordance with rules, it has to be counted towards seniority.
27. In the matter of seniority if a final seniority is not challenged, it cannot be corrected M. Panchiappan v. S.S. Markandam, 2009 (8) SCALE 775. It is also held in Mansoor Ahmed v. State of J&K, (2009) 1 SCC (L&S) 915 that unless seniority is settled, no promotion could be made.
28. With the above background of law, in M. Ramachandran (supra) the Apex Court while discussing the set of employees in CAT disputing inter-se-seniority where one set of employees claim their seniority from the date of their deputation to the service of the CAT and the other set of employees pray for counting of the period of their service to the equivalent post held by them in their parent department, before their deputation and absorption in the service. It was held that Length of service is a recognized method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length of service for the purposes of determining the seniority. In other words the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. This has been reiterated in conclusion by the Apex Court by observing that a perusal of the Rules does not, in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.
29. In the above backdrop when the respondents have been re-assigning seniority on determination pursuant upon the decision in M. Ramachandran (supra) applicant had raised an objection through his representation dated 23.4.2000 clearly apprised the respondents as to his ad hoc service in the Ministry of Shipping and Transport w.e.f. 2.5.1983 and was based on S.O. Grade LDCE for the year 1983 conducted by the UPSC and once he was allocated Ministry of Urban Development on regular basis from 1.1.1986 UPSC released a supplementary list of examination of 1983 where applicant was declared successful and the seniority and eligibility for the next promotion in his parent department, i.e., his ad hoc service from 2.5.1983 and approved service w.e.f. 1.7.1983 on the basis of his inclusion in the list of select list of 1983 showed that there were vacancies in the year 1983 when he qualified the examination. As such, his appointment w.e.f. 2.3.1983 against regular vacancy the OM of 5.7.1991 would apply to treat his appointment on regular basis on consequential seniority from 1.7.1983. This has been examined on perusal of the file by the respondents vide their note dated 3.3.2000, which has the approval of issuance of the seniority list by the then Chairman. The plea of the applicant was not found entertainable on the ground that since he was appointed as SO on 1.1.1986 in the select list of 1983 for the post of SO, his appointment on regular basis w.e.f. 1.1.1986, i.e. the date of regular appointment in the parent cadre, which is reckoned as initial point of his seniority as per the decision of in M. Ramachandran (supra). It is also decided that CCS Rules are not applicable and are relevant only in the parent department for inter-se-seniority amongst the CSS officers in the grade of SO is protected by the cadre controlling authority subsequently by an order passed on 4.8.2003 where on representation by the applicant and even referral by the CAT through Chairman in reference to the grievance raised by the applicant once DoP&T decided that the applicant, SO, who belongs to the select list for the year 1983 on the basis of LDCE is entitled for the seniority w.e.f. 1.7.1983 is nothing but antedating his date of appointment on regular basis to 1.7.1983 but as the decision has been taken as late as on 4.8.2003 as per the decision of the Constitution Bench in Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra, JT 1988 (4) SC 182 as well as State of West Bengal v. Aghor Nath Dey, JT 1993 (2) SC 598 the seniority if relates back to 1.7.1983, which is nothing but on relation back, gives regular appointment to the applicant from 1.7.1983. The only impediment is that at that time applicant was in his parent department, i.e., Ministry of Urban Development which should have passed the order, since applicant had joined the CAT for all purposes and DoP&T being the cadre controlling authority not only of SO in CSS but also SO in the Tribunal this decision would hold good for antedating the regular appointment of applicant in parent department to 1.7.1983, which on a legal fiction now to be deemed. As such the date of regular promotion in the parent cadre if being treated as 1.7.1983 as per M. Ramachandran (supra) as well the seniority in the cadre of SO if allowed to the applicant from 1.7.1983, would also have repercussion of advancement of his promotion as Deputy Registrar in 1991 with grant of seniority and this would necessitate as a ripple effect and natural consequence of grant of promotion, antedating his promotion against the earlier vacancy as per the decision of the Madras High Court in Kamalammas case (supra) earlier to 2002 and promotion as Registrar on regular basis on fulfillment of 10 years joint service, as stipulated under the Rules. Because of inaction of the respondents to deny this benefit to the applicant, which has been allowed by the DoP&T, we have no option but to construe as grant of seniority to the applicant from 1.7.1983, is deemed regularization of period of ad hoc service and in such an event the appointment on regular basis would relate back to 1.7.1983. The contention put-forth by the respondents and their justification to deny seniority to the applicant in the SO cadre on the basis that CSS rules would not apply and the decision in M. Ramachandran (supra) are misconceived submission, as it is the stage prior to the decision in M. Ramachandran (supra), i.e., determination of regular date of promotion of applicant in his parent cadre now being operated vide order dated 4.8.2003 when on relating back his appointment on regular basis from 1.7.1983 the same has to be construed as per the decision in M. Ramachandran (supra) and this would be valid and legal as per the principle culled out in Rule 5 (1) and (2) of the Rules. It is not the case of the respondents that earlier the deputationists have been denied seniority in the initial cadre from the date of regular holding/promotion in the parent cadre. As such, applicant when treated to be regularly appointed as SO on 1.7.1983 cannot be meted out a differential treatment with others, which would violate the principles of equality enshrined under Articles 14 and 16 of the Constitution of India as well as the dicta laid down in S.I. Rooplal v. Lt. Governor, JT 1999 (9) SC 597.
30. Insofar as non-challenge is concerned, having issued seniority after M. Ramachandran (supra) this issue of seniority has also been raised by the applicant when seniority list of Deputy Registrar was being finalized by the respondents. From the notings we find that on the basis of DoP&T decision of 2003 the issue of seniority of applicant when favorable was also dealt with on reference by the then Vice-Chairman (Judicial) on administrative side whereby the seniority list circulated on 30.10.2002 was found to be in order. The representation of the applicant was dealt with separately and the opinion of the Vice-Chairman was to the effect that while considering the seniority in the cadre of Deputy Registrars SO is not relevant. The Deputy Registrar (E) on 1.6.2005 has forwarded a note on the basis of clarification by Government of India dated 11.08.2003 and Vice-Chairman (J) observation that seniority in the grade of SO is to be construed. A proposal to constitute a DPC for reviewing the panel year in the case of applicant on the post of Deputy Registrar from 1991 through note agreed upon by respondent No.5 vide his note dated 8.6.2005, whereby the only defence was in the guise of Rule 5 (2) and decision in M. Ramachandran (supra) and also the year of LDCE the seniority is relevant only in CSS cadre. However, despite this a note on 11.7.2005 clearly shown that the D.R. (E) again forwarded a note, which has not been considered apt by respondent No.5 on 19.7.2005 and as such the matter was examined by the Vice-Chairman (A) on 16.8.2005, where the decision to count seniority of applicant was not found apt. However, the Chairman on 18.8.2005 directed despite Vice-Chairmans advice to consult DoP&T which when fulfilled espoused the case of the applicant, claim was still rejected and the seniority as revised finally on 17.2.2005 in the cadre of Deputy Registrar since been finalized, the issue regarding seniority of applicant in the cadre of SO and consequently the effect of antedating seniority in all cadres upto Joint Registrar being a valid legal claim of applicant has since been affected adversely.
31. At one point of time the learned counsel of respondents stated that against the seniority list issued on 17.2.2005 no representation has been preferred, we find on record at Annexure A-21 of the OA an objection raised by the applicant reiterating the advice of the DoP&T, which had not been paid any heed to and no final order since been passed individually in the case of applicant he has been taken aback by finalization of the seniority and this issue of seniority has not been decided but decided on papers without any communication to the applicant. Since 2005 the seniority list has further been considered a basis of review DPC belatedly done by the respondents as an aftermath of Kamalammas case (supra) advancing the promotion resulted in grave prejudice to the applicant, which would now be separately dealt with as a second issue framed by us. We find that the present is not a case where the applicant has slept over his right and has lost the remedy. In fact, from the date seniority list underwent a change after the decision in M. Ramachandran (supra) in 2000 the objection raised by the applicant since not been decided in correct perspective, the cause of action is not stale and what applicant would get by antedating his seniority in the SO cadre is not to unsettle the settle position but he would get a civil right in his favour, which is to be operated as per the Rules. The rule making authority, i.e., DoP&T, which is also the cadre controlling authority once decided the issue the official respondents should not have gone against it and should have fairly accepted the decision. Even from the noting in the file we find that this issue of seniority despite being rejected has been re-opened in consultation with DoP&T, which had a stand reiterating their letters dated 4.8.2003 and 11.8.2003, yet this right has been infringed as the rules and instructions warranted claim of applicant in the initial cadre of SO but also antedating his date of regular appointment and which would have formed basis of seniority of applicant in SO cadre after M. Ramachandran (supra), which has not been followed in true letter and spirit by them.
32. We have no hesitation to hold that respondent No.5, who was also a competitor with the applicant and was in a position in Principle Bench, with pre-determination to frustrate the claim of applicant, deliberately took a contrary stand, despite DoP&T letter, in his official position to gain advantageous position in his own seniority and future promotional avenues, which has been ultimately established from the record that by using his official position in Principal Bench he has managed to overreach the conscious decision taken by his subordinates purportedly misapplying the rules, instructions and law on the subject on flimsy grounds but also misled through his notes the higher authorities to approve the order. Despite this, however, we find that even after Vice-Chairman (A) had given a categorical finding. DoP&T was still consulted, as DoP&T advice has not been adhered to, the action of the respondents in rejecting the claim of applicant for grant of seniority from deeming the regular promotion from 1.7.1983 is not only misconceived but also deprivation of right to the applicant, which cannot be countenanced in law.
33. Insofar as affected parties are concerned, as antedating the seniority of applicant now in the cadre of SO would be only academic and relevant for regularization as Joint Registrar on promotion as Registrar the others who would be rendered juniors to the applicant, have either been retired for made parties in the present OA, their right to be defended as per the principles of natural justice since been availed of and considered, the principle of seniority and law when operated, non-impleadment would no more be a legal infirmity in dispensation of justice and also to prevent miscarriage of justice in case of applicants claim.
34. In the matter of seniority a three-Judge Bench of the Apex Court in Delhi Higher Judicial Service case in B.S. Mathur v. Union of India, (2008) 10 SCC 271 on importance of seniority ruled that seniority even by one day may materially affect future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises. The only advancement in the career of a member of Delhi Higher Judicial Service is elevation to the High Court. Therefore, it will not be fair and equitable to give march to a later appointee over a prior appointee of the same year, even if that march is for a few months or even for a few days. It, therefore, cannot be disputed that the application of O.M. dated 3.7.1986, which does not ipso facto apply to officers of Delhi Higher Judicial Service would produce inequity for officers from one or the other source and therefore, has to be avoided if a better principle, which is fair and reasonable to all can be applied.
35. The Apex Court in Balwant Singh Narwal v. State of Haryana, (2008) 2 SCC (L&S) 586 in a matter where appointment in a selection year when delayed protected the seniority of the concerned.
36. In Suresh Chand Jha v. State of Bihar, (2007) 1 SCC (L&S) 267 in a case where appointment has been related back to the date on merit, the period has been treated good for all purposes as if the appointment has been antedated.
37. Moreover, in another three-Judge decision of the Apex Court in M. Subba Reddy v. A.P. State Road Transport Corporation and others, AIR 2004 SC 3517 held that for direct recruits the seniority since been related back to the date of the examination, their appointment is deemed for the purpose of seniority as well.
38. In the above view of the matter, we are of the considered view that the applicant who has since been appointed on ad hoc basis after qualifying the LDCE of 1983 a decision by the cadre controlling authority to relate back the seniority to 1983, in all legal implications has related back on notional basis the appointment of the applicant as Section Officer on regular basis. As such, the contention of the respondents that seniority held only for the purpose of CSS and would not concern the appointment is not only illogical but also misconceived. The communication of the cadre controlling authority of the Tribunal, i.e., DoP&T conveyed to the Principal Registrar on 11.8.2003 regarding confirmation that the applicant has to be given seniority w.e.f. 1.7.1983 had left no discretion with the respondents except to accordingly accord seniority to the applicant as per the decision in M. Ramachandran (supra) and Rule 5 (1) and (2) of the Rules ibid. As the grant of seniority would relate back the appointment of the applicant, which was on ad hoc basis earlier to be a valid appointment from 1.7.1983 and has to be deemed as regular for the purpose of Rule 5 (1) and (2). It appears that a conscious decision of the DoP&T the same has not been followed without any justification. We are of the considered view that the private respondent No.5 had deliberately in order to protect his own interest on disagreement took a contrary view, which does not appear to be in consonance with the rules as well as the law, as cited supra.
39. Accordingly, insofar as issue No.1 is concerned, we are of the considered view that seniority of applicant in the SO cadre, which is still open and has not been settled, as apparent from the record, should be reckoned from 1.7.1983 as well as his regular appointment as SO on the basis of the examination of 1983 w.e.f. 1.7.1983. This would necessitate a correction in the seniority with advancement of promotion of applicant in all the cadres, including Deputy Registrar and Joint Registrar/Registrar (OB) with grant of seniority which would now be purposeful for regular promotion of applicant As Joint Registrar/Registrar (OB) and in such an event the persons above applicant have since been retired and thus their right would not be affected in any manner, as we are not disturbing their promotions and seniority and would only be an academic exercise. However, for others in service who are likely to be affected, the immediate persons in a representative capacity being made parties, there exists no violation of principles of natural justice.
40. As regards second issue of review DPC conducted on the basis of the decision of the Madras High Court in Kamalammas case (supra) and advancement of date of promotion of applicant from 26.3.2002 as Joint Registrar to 1.1.2003 and also promotion from the date the vacancy is caused on refusal of promotion by the incumbent Shri B. Stephen, we find from the record that when the applicant was already promoted on 26.3.2002 regularly on an anticipated vacancy by a DPC held in September, 2001 when the administration instructions issued by DoP&T on conduct of the DPC on 8.2.2002 were not in existence the principle of merit-cum-seniority was followed. Keeping in light the comparative examination of the record of respondents the applicant has been promoted. This fact when known to the private respondent No.3 led to filing of OA-255/2002 before the Madras Bench of the Tribunal, which was dismissed as devoid of merit. However, before the Madras High Court the prayer made in the OA was not acceded to in full and promotion of the applicant effected on 26.3.2002 by a validly constituted DPC in 2001, has not been declared illegal. Accordingly, the direction to prepare panel for promotion year-wise was restricted upto 2000 in the cadre of Joint Registrar and promotions of eligible persons as per the rules, the condition precedent was maintaining of the seniority and non-consideration of the Rules which were promulgated in the cadre in 2001. Accordingly, though the decision of the High Court cannot be interpreted like a statute, yet the ratio decidendi inferred clearly indicates that what has not been done is to cancel the promotion of applicant and also the DPC held in 2001 has not been commented upon. As a necessary corollary in law it has to be inferred that neither the DPC held in September, 2001 nor the promotion of the applicant w.e.f. 26.3.2002 was touched upon and affected in any manner whatsoever by the outcome of judgment by the High Court of Judicature at Madras.
41. We have perused the record regarding review DPC held consequent upon implementation of the directions in Kamalammas case (supra) where on 24.2.2005 respondent N.5 as a Joint Registrar decided to hold a review DPC to consider appointment to the post of Joint Registrar and Bench Registrar for the year 1996-1997 onwards has been undertaken. The review DPC in respect of the applicant has been held, proposed to be held by a noting dated 19.5.2005 wherein it was stated that during the panel year of 2000-2001 there were two clear cut vacancies and what had been applied in a review DPC are the DoP&T guidelines of 8.2.2002, which bar supersession and following principle of seniority on attainment of benchmark. It has been noted in the minutes that on the date of original DPC held on 12.9.2001, where applicant was recommended and ultimately promoted from 29.3.2002 there was neither vacancy nor any appointment were made retrospectively. As such, there is no case for review of the original DPC held on 12.9.2001. This was in regard to the post of Registrar (OB). We have seen the DPC minutes dated 1.2.2006 where the DPC held on 12.9.2004 was reviewed on 16.8.2005 where certain persons have not completed the requisite service as on 1.1.2001 and as a result of which only N. Rama Murthy, Joint Registrar was considered and appointed as Registrar from 11.3.2002. This led to M. Ramachandran being appointed as Joint Registrar on 1.3.2002, Shri K. Rajaram w.e.f. 11.3.2002 and Smt. V.P. Kamalamma from 1.4.2002, as it was found that the applicant was eligible only to be promoted on notional basis from 1.1.2003 and actually from the date he takes over charge from Mr. B. Stephen on his refusal of promotion. The only justification and ground which transpires from the reply filed by the official respondents is that restricting the implementation of the judgement in Kamalammas case (supra) in the year 2000 and not beyond would have resulted in miscarriage of justice. The applicant was considered by the DPC for the year 2002 and being junior to the officers who were selected on seniority principle as per Benchmark, applicants date of promotion was advanced.
42. At the outset, we do not find before an order passed on 17.10.2006 a reasonable opportunity to show cause afforded to applicant, as no direction adverse to the applicant, affecting is promotion from 26.3.2002 have been passed by the High Court of Madras. Despite his being a party therein, yet advancement of his promotion and actual promotion in 2006 has caused civil consequences upon him and as per FR-31-A in case of cancellation and modification of promotion on being given erroneously, a condition precedent of an opportunity to show cause is mandated without which the order passed would not be sustainable in law being contrary to the principles of natural justice, as ruled by the Apex Court in Union of India v. Narender Singh, (2008) 2 SCC 750.
43. Promotion being a condition of service and a right for consideration being a fundamental right, once has been exercised by the respondents and the DPC held in accordance with recruitment rules when followed the laid down guiding principles in vogue at that time, has not been found to have suffered from any irregularity or legal infirmity in the guise of a natural ripple effect of Kamalammas case (supra), which had restricted the consideration upto the vacancy year 2000, affecting the DPC held for the vacancy year 2001-2002 does not come within the ambit of implementation of direction in Kamalammas case (supra). The respondents and more particularly an advice given by respondent No.5, which unfortunately was acted upon had resulted in deprivation of fundamental right of the applicant and civil consequences since been ensued, which not only includes personal right being affected but loss of pay, as he has been deprived despite continuing in promotion on regular basis w.e.f. 26.3.2002 on advancement of promotion on notional basis from 1.1.2003 and also actual charge from 2006 as per the decision of the Apex Court in T. Ghag v. Prakash P. Patil, (2007) 2 SCC (L&S) 451 and Sahara India, Lucknow v. CIT, 2008 (3) AJW 847 is certainly in violation of principles of natural justice. It is not the case of the respondents that before the review DPC was held or promotion has been advanced in case of the applicant, he has been afforded a pre-decisional hearing in the form of show cause notice. On this ground alone the review DPC held in continuation of DPC held on 12.9.2001 and advancement of promotion of applicant cannot be sustained in law. Moroever, the Apex Court in P.S. Sinha v. State of Bihar, 2009 (9) SCALE 529 ruled that for want of show cause notice on ensuing civil consequences the orders passed on administrative side is illegal. The administrative authorities are creature of the statute. They are bound in all four corners by the Statue and are supposed to act within the ambit of the Rules with fairness. In case of abuse of power and the discretion vested is exercised in the decision-making process non-judiciously, the same is amenable to judicial review as held by the Apex Court in Meerut Development Authority v. Association of Management Studies, 2009 (6) SCALE 49. Any administrative decision which involves haste is illegal, as ruled by the Apex Court in Jasbir Singh Chhabra v. State of Punjab, (2010) 4 SCC 192. In the instant case when the High Court of Madras had directed upto the vacancy year 2000 to draw select list on the basis of the seniority, which is a clear direction, to restrict consideration for promotion as Joint Registrar/Registrar (OB) upto the vacancies accrued till the year 2000 but a hasty decision to include further vacancies for which a DPC had already been held for the vacancy year 2001-2002 and reviewing it to the detriment of the applicant is acting beyond the ambit of the directions of the High Court of Madras. We do not find any logic, rationale and purpose as to disturbing the promotion against the vacancy year 2001-2002 when no other private respondent has complained of non-consideration in the DPC held on 12.9.2001. In fact, an afterthought justification as to ignoring the seniority of seniors and reliance on OM dated 8.2.2002 of DoP&T is the gravamen of the defence of the respondents.
44. It is trite that administrative authorities cannot act in a discriminatory manner, as ruled by the Apex Court in F.C.I. v. A.K. Ganguly, (2009) 7 SCC 734 and are precluded from approbating and reprobating simultaneously, as ruled by the Apex Court in Rajasthan State Road Traansport Corporation v. Bhik Nath, (2005) SCC (L&S) 273.
45. It is also mandated upon the administrative authorities not to exercise bias, favoritism, nepotism and arbitrariness, as ruled by the Apex Court in Zenith Metaplast Ltd. v. State of Maharashtra, 2009 (12) SCALE 432.
46. From the perusal of the decision in Kamalammas case (supra) a clear stand was taken by the Tribunal that the DPC held on 12.9.2001 considered and recommended applicant, Shri N.N. Pradeep and Shri K. Raja Ram as Joint Registrar on merit. Since there were only two vacancies the first two candidates were appointed as Joint Registrar in the DPC met on 12.9.2001 to consider appointment to the post of Joint Registrar before the communication dated 8.2.2002 issued by the Government of India is not applicable in the present case as well as the Writ Petition is to be dismissed. With this objection the High Court of Judicature at Madras in Kamalammas case (supra) except directing preparation of panel for promotion upto the year 2000 and give promotion as per Rules that were in force in those years had not directed any methodology for the purpose of holding year-wise DPC for promotion beyond the year 2000 which legally infers that for the vacancy year 2001-2002 and the DPCs which were held after 2000 the Court has not issued any direction. If this is the position after the decision in Kamalamma (supra) has been considered in the DPC when it came to the turn of DPC of applicant held on 12.9.2001. Respondents should not have reprobated by applying in the review DPC held on 1.2.2006 to a DPC held on 12.9.2001 held for anticipated vacancies of the year 2001-2002, which is permissible as per DoP&T OM of 27.3.1997, the methodology for holding DPC before 8.2.2002 the guidelines existed in para 6.1.1 were to be followed, which prescribed selection by merit and even a junior with better service record would have been preferred over a senior with inferior record. The calculation of vacancies in para 4.1 always includes anticipated vacancies and would have to be processed through by the DPC by declaring a panel and on approval the persons in the year of merit being recommended are to be promoted. Accordingly, DPC held on 12.09.2001 where the applicant has been considered with counterparts for the post of Joint Registrar/Registrar (OB) on application of principle of selection-cum-merit even to the anticipated vacancies though may be accruing in 2002 the basic principle, which is to be followed is that the rules and guidelines on the date of DPC would have to be followed irrespective of vacancies the DPC has rightly considered merit-cum-seniority principle. As the principle laid down in the OM of DoP&T of 8.2.2002 was not in existence and could not have been applied. This procedure when vouched on affidavit by the Madras High Court by the official respondents, they cannot under the guise of review DPC change the criteria and applied OM of 8.2.2002. A review DPC as per the guidelines for DPC in Part-VI para 18.1 of the instructions dated 27.3.1997 clearly envisages that the review DPC would have to be in continuation and substitution of the original DPC and is permissible only when eligible persons have been omitted, ineligible persons have been considered by mistake, revision of seniority or some procedural irregularity or toning down of the ACR. Apart from it, there is no scope except the direction of the Court which when construed in its literal sense restricted consideration by the review DPC only upto the year 2000. As such, holding review DPC in continuation of DPC held on 12.9.2001 was a patent illegality on the part of the official respondents. Moreover, the review DPC would not change the criteria and would have to restrict the criteria adopted by the original DPC, which was merit-cum-seniority. As the review DPC held has acceded the jurisdiction and acted contrary to the guidelines which by way of practice has assumed the status of statutory following as per the decision of the Apex Court in S.B. Bhatacharjee v. S.D. Majumdar, (2008) 1 SCC (L&S) 21. It appears that respondent No.5 on a note suggested a methodology which was in juxtaposition of the stand of the Tribunal before the Madras High Court and hence acting contrary to it, is not only an unfair practice adopted by the official respondents but also arbitrary and vitiated by legal malafides. Such a course of action adopted by the respondents without any logical basis and connectivity with the directions issued in Kamalammas case (supra) is an act of coram non-judis and has to be declared as null and void in the circumstances.
47. Accordingly, we hold that the review DPC held by the respondents whereby the promotion of applicant from 26.03.2002 has been advanced to 1.1.2003 and actual promotion from the date when promotion was refused by Mr. B. Stephen in 2006 is not legally tenable. As a result thereof, promotion of applicant as Joint Registrar, w.e.f. 26.3.2002, has to be deemed in law as continued with all consequential benefits, as admissible in law.
48. In the result, for the foregoing reasons, OA is allowed, without disturbing the promotion of both working and retirees on the posts of Joint Registrar, we accordingly set aside order dated 17.10.2006. As a result, order dated 26.3.2002 is restored in respect of promotion of applicant as Joint Registrar, now Registrar (OB) with all consequences and continuity for all purposes.
49. We also direct the respondents to re-determine the seniority of the applicant pursuant upon the decision of the Apex Court in M. Ramachandran (supra) in the cadre of Section Officer by taking the date of regular promotion as 1.7.1983 and thereafter as a consequence consider by an apt methodology in law preponing the promotion of applicant on the post of Deputy Registrar/Joint Registrar (OB) by reckoning this seniority. They shall also necessitate consideration of the claim of applicant for being considered for the post of Principal Registrar, if eligible, as per drawl of seniority, in accordance with law. These directions shall have to be complied with, within a period of three months from the date of receipt of a copy of this order.
50. Before we part with, as disclosed from the perusal of the record produced by the official respondents that applicant has not only been victimized but also suffered prejudice on account of personal bias of certain officers in the Tribunal for their individual gains and as such has been put to a disadvantage position. Keeping in light our observations, we impose a cost of Rs.10,000/- (Rupees ten thousand only) to be paid to the applicant. However, the official respondents are at liberty on fixing responsibility after probe, to recover the cost from the concerned.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.