Central Administrative Tribunal - Delhi
P.K.Dixit vs Union Of India on 8 January, 2009
Central Administrative Tribunal Principal Bench OA No.2120/2007 MA No.2141/2007 New Delhi this the 9th day of January 2009. Honble Mr. Shanker Raju, Member (J) Honble Mrs. (Dr.) Veena Chhotray, Member (A) 1. P.K.Dixit S/o Shri S.D.Dixit 112, Gayater Vihar Near Chambal Colony Thatipur Gwalior. 2. Sabir Mohammed S/o Shri Raheem Babsh 3rd Division, Narcotics Office Mandsaur 458 001 (M.P.) 3. Vaqar Ahmed S/o Shri Nisar Ahmed III/109, Kendranchal Colony Sector K Aliganj Lucknow (U.P.) 4. H.R.Baman S/o Shri Hans Raj Shamrav Baman 2nd Division, Narcotics Office Mandsaur 458 001 (M.P.) 5. L.N. Yadav S/o Shri D.L. Yadav Scheme No.10, Neemuch City House No.9 Neemuch. 6. K.S.Kandurkar S/o Shri S.G.Kandurkar 3rd Division, Narcotics Office Mandsaur 458 001 (M.P.) 7. N.S.Shaktawat S/o Shri Gopal Singh Shaktawat Village Admaliya Tehsil Neemuch Neemuch. 8. A.D.Ketkar S/o Shri D.V.Ketkar Vithal Mandir Mamoolkar Ki Goth Kapoo, Lashkar Gwalior 474 001. 9. A. Bhatnagar S/o Late Shri M.C.Bhatnagar 5, Geeta Bhawan, Mandsaur. 10 Atanu Chaterjee S/o Late Shri P.K.Chaterjee V-10/Type-II, Narcotics Colony Neemuch. 11 Sandeepa Chaterjee W/o Atanu Chaterjee V-10/Type-II, Narcotics Colony Neemuch (M.P.) 12 Smt.Arti Rani Sarkar W/o Late L.C.Sarkar Qr.No. Type-II/119, Narcotics Colony 19, Mall Road, Morar Gwalior 474 006. 13. K.Shankhwar S/o Late Shri S.K. Shankhwar A-2, Narcotics Colony Nai Abadi Mandsaur. 14 Hoti Lal Verma S/o Shri C.G.Verma A-10, Krishna Nagar Neemuch (M.P.) 15 Arnab Ganguly S/o Shri Chinmoy Ganguly Qr.No.Type-II/59, Narcotics Colony 19, Mall Road, Morar Gwalior 474 006. 16 Vikas Kumar S/o Shri Naresh Prasad V-9/Type-II, Narcotics Colony Neemuch. 17 Madan Gopal Shukla S/o Shri Suresh Chandra Shukla Qr.No. Type-II/53, Narcotics Colony 19, Mall Road, Morar Gwalior 474 006. 18 R.K.Agarwal S/o Shri O.P.Agarwal V-7/Type-II, Narcotics Colony, Neemuch. 19 Sunil Kumar S/o Shri Krishna Das V-8/Type-II, Narcotics Colony Neemuch. 20 R.K.Chaudhary S/o Shri Dhanraj Chaudhary F-6, Type III, Narcotics Colony Neemuch. 21 Sishutosh Panigrahi S/o Shri Dhirendra Nath Panigrahi Qr.No. Type-III/29, Narcotics Colony 19, Mall Road, Morar Gwalior 474 006. 22. B.L.Meena S/o Shri R.P.Meena 13, Nanesh Nagar Mandsaur. 23. Ravinder Singh S/o Shri O.N.Negi 56, Vedant Vihar Mandsaur. 24 Shri Ravi Ranjan S/o Shri Gopal Prasad Sharma R/o Type-III/32, Narcotics Colony 19, Mall Road, Morar Gwalior (MP). Applicants (By Advocate: Shri Suresh Singh) -Versus- 1. Union of India through its Secretary Ministry of Finance Department of Revenue North Block, New Delhi-110 001. 2. The Chairman Central Board of Excise & Customs North Block, New Delhi-110 001. 3. The Narcotics Commissioner Central Bureau of Narcotics 19, The Mall, Morar Gwalior (MP). 4. The Chief Controller of Factories (C.C.F) Government Opium and Alkaloid Factories 27, Nehru Place, New Delhi. Respondents. (By Advocate: Shri R.N.Singh for Shri R.V.Sinha) O R D E R Mr. Shanker Raju, Honble Member (J):
MA-2141/2007 for joining together is allowed.
2. Applicants, all Sub Inspectors in Department of Narcotics, challenge the validity of Narcotics Department Group C Recruitment Rules, 2000 as well as amended Rules of 2004 insofar as fixation of illegal and arbitrary quota of 33-1/3% for promotion to the posts of Inspector from amongst Sub Inspectors as feeder category is concerned.
3. On 6.6.1975 pursuant upon Shiv Nabh Singh Committee and on reorganization of Narcotics Department the posts of Kothir Moharrir and Sub Inspector were clubbed and promotion to the post of Inspector (Executive) from Sub Inspectors and other ministerial cadre of UDC/Stenographer were decided and 33-1/3% of posts of Inspector will have to be filled by promotion of Sub Inspectors with three years service. As a result thereof, Narcotics Department Group C and D posts Recruitment Rules, 1979 were promulgated where the posts of Inspector were in senior and ordinary grade with 33-1/3% of direct recruitment and rest of the quota was utilized equally by ministerial cadre, i.e., UDC and Stenographers as well as by promotion from the grade of Sub Inspectors. However, Government of India, Ministry of Finance vide letter dated 23.2.1993 on reorganization of Narcotics Department the revised strength of Inspectors to 170 and 169 posts were upgraded by upgrading the posts of Sub Inspectors. As a result thereof, recruitment rules were amended in 2000 with promulgation on 10.10.2001 with nomenclature of Narcotics Department Group C Recruitment Rules, 2000 whereby Inspectors in ordinary and special grade were unified into the posts of Inspector with 177 number of posts whereby the percentage existing under the 1979 Rules was maintained. The nomenclature of the post was selection-cum-seniority for Inspectors, which was amended in 2004 in respect of Sub Inspectors getting promotion to Inspectors where the post was nomenclatured as non-selection as seniority-cum-merit criteria.
4. Learned counsel of applicants has assailed the arbitrary fixation of quota for Sub Inspectors on the ground that the same is illegal, arbitrary and is opposed to quota and fair play as well as violative of Articles 14 and 16 of the Constitution of India.
5. By relying upon the decision of the Apex Court in Ajit Singh-II v. State of Punjab, 1999 (7) SCC 209, it is contended that the word employment on the aspect of promotion to the post at the initial level of recruitment guarantees as a fundamental right consideration for promotion and it is stated that whereas UDCs and Stenographers have been fixed in 33-1/3% they have other avenues of promotion in their cadre available and against their total strength of 87, 92 promotional posts are available, they have more avenues for promotion, whereas in the strength of 87 of Sub Inspectors only 57 promotional posts are available, which has cropped up inequality among the feeder category insofar as consideration for promotion is concerned. It is stated that as a result thereof, the LDCs appointed in 1984 and who had become UDC in 2002 get promotion within a short span, whereas the Sub Inspectors directly recruited in 1980 are yet to be considered for promotion.
6. Learned counsel would also contend that as ruled by the Apex Court in Dwarka Prasad v. Union of India, 2004(1) ATJ SC 591 that fixation of quota for different categories in feeder cadre is the prerogative of the employer but fixation requires consideration of various relevant factors, including cadre strength in feeder quota, suitability of the holder, nature of duties etc. In such view of the matter it is stated that whereas ministerial staff do not perform the technical duties attached to the post of Inspector but yet are given more than their due share and the quota fixed is arbitrary.
7. On the other hand, learned counsel of respondents vehemently rebutted the contentions and stated that a valid statutory rule framed under proviso to Article 309 when does not suffer from the vice in legal parlance is not amenable in judicial review. Learned counsel would contend that there is no disparity in chances of promotion or arbitrary fixation of quota and UDC and Stenographers Grade-III discharge the duties in overall functioning of Central Bureau of Narcotics whenever they are asked to do so and as there is combined seniority at all India level in posts of all grades it has been done to remove the imbalance and anomaly in the career prospects of the employees.
8. Learned counsel would contend that merely because UDCs and Stenographers have promotional avenues in their own hierarchy they are not precluded to be considered for promotion as Inspectors, which is permissible under the statutory rules and the quota fixed is rationale.
9. Learned counsel states that the issue has already been considered by the Tribunal in R.C. Kaushal & Ors. v. Union of India & Ors., OA No.1246/2003, decided on 5.6.2006.
10. On careful consideration of the rival contentions of the parties, as ruled by the Apex Court in Dwarka Prasad (supra) that while fixing the quota relevant factors have to be considered within the prerogative of the Government. However, such fixation would inter alia consider the cadre strength in feeder quota also. In the instant case whereas as per the sanctioned strength of Inspectors 92 promotional posts are available to UDCs whereas their strength is only 87, whereas the strength of Sub Inspectors is 160 and for them only 57 promotional posts are made available.
11. In the matter of policy decision, which is the prerogative of the Government, judicial review is not barred, it is open when the policy decision suffers from malafide, arbitrariness and contrary to the rules and the Constitution of India as ruled by the Apex Court in Union of India & others v. Pushpa Rani and others, 2008 (9) SCC 242. In Official Liquidator v. Dayanand, 2008 (10) SCC 1, policy decision is not held to be immune from judicial review. In the matter of promotion right to be considered on fair and equitable basis and creation of promotional avenues are must, as ruled by the Apex Court in S.B. Bhatacharjee v. S.D. Mazumdar, 2008 (1) SCC (L&S) 21 and in F.C.I. v. P.D. Bansal, 2008 (2) SCALE 205. In the matter of promotion a right to be considered implies that promotional chances cannot be foreclosed forever. The very basis of promotion and its performance is to remove stagnation and avoid frustration amongst the employees as ruled by the Apex Court in A. Satyanarayana v. S. Purshottam, 2008 (2) SCC L&S) 279.
12. With the above view though a statutory rule and the percentage fixed by the Government in its prerogative has to pass the test of reasonableness and is to be in consonance with the principles of equality enshrined under Article 14 of the Constitution of India. No doubt, the feeder category may have another avenue of promotion in their own hierarchy like ministerial staff of UDC and Stenographers, yet the same has not been provided to a Sub Inspector, seeking promotion as Inspector in 33-1/3% fixed for them. Moreover, in 1993 the cadre strength on reorganization was raised, yet there is imbalance and inequality as to the quota fixed for various feeder categories for the post of Inspectors. The cadre strength in feeder quota was never considered for promotion as Inspector except on 6.6.1975 where 50% quota was fixed for Sub Inspector, seeking promotion as Inspector. As a result thereof, whereas 92 promotional posts are available for LDC and Stenographer Grade-III against their total strength of 87. However, for Sub Inspectors when their total strength is 160, only 57 promotional posts are available. Though chances of promotion is not a legal right but a valid consideration with all fairness and equality would not be possible if against number of posts in a feeder category are less in promotional avenues but their cadre total strength is more. This aspect has to be considered, failing which the applicants would be deprived of promotion and consideration thereof as a fundamental right.
13. Any policy decision if we find an infirmity and inequality, violative of principles of equality enshrined under Article 14 of the Constitution of India, the way out is to send back the case to the Government for reexamination, as ruled by the Apex Court in Basic Education Board, UP v. Upendra Rai, 2008 (3) SCC 432.
14. In the result, for the foregoing reasons, this OA stands disposed of with a direction to the respondents to reconsider fixing appropriate quota for applicants in the present case for promotion as Inspectors, strictly in consonance with their total strength and the promotional posts available to them. The methodology approved by law shall be adopted. The reconsideration would culminate into a reasoned order to be passed within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.