Central Administrative Tribunal - Madras
T K Krishnakumar vs M/O Shipping on 2 June, 2022
1 OA 537/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00537/2017
nd
Dated the 02 day of June Two Thousand Twenty Two
CORAM : HON'BLE MR. T. JACOB, Member (A)
HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
T.K.Krishnakumar,
S/o. Late T.K.Krishnan,
employed as Deputy Director/Deputy Shipping Master,
MMD, DSEO,
Anchor Gate Building, Rajaji Salai, Chennai. ....Applicant
By Advocate M/s. Giridhar & Sai
Vs
1.Union of India,
rep by the Secretary to Government,
Ministry of Shipping, Transport Bhavan,
Government of India,
1, Sansad Marg, New Delhi 110001.
2.The Director General of Shipping (Ministry of Shipping),
9th Floor, Beta Building,
i-Think Techno Campus,
Kanjurmarg (East), Mumbai 400042.
3.Mukul Dutta,
Deputy Director/Deputy Shipping Master,
Government Shipping Office,
10, Nau Bhavan, R.K.Marg,
Ballard Estate, Mumbai 400001. ....Respondents
By Advocate Mr. M. Kishore Kumar (R1 & R2)
2 OA 537/2017
ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member(A)) The reliefs prayed for in this OA is as follows:
"i. To call for records related to order No. F. No. PB-11-SOM(1)/2016, dated 30.11.2016, and order No. PB-11-SOM(1)/2016 dated 21.02.2017 passed by the 2nd respondent and order No. F. No. PB-23(1)/2010-Vol II dated 16.03.2018 and quash the same;
ii. To direct the 1st respondent and 2nd respondent to treat the applicant as senior to the 3rd respondent in the post of DSM/DD w.e.f. 27.05.2002, with all consequential benefits, including arrears of pay and allowances flowing therefrom;
iii. To direct the 1st respondent and the 2nd respondent to promote the applicant to the post of Shipping Master/Director w.e.f. 01.01.2010, all consequential benefits, including arrears of pay and allowances flowing therefrom;
iv. To award costs, and pass such further and other orders as may be deemed fit and proper and thus render justice."
2. The facts of the case as stated by the applicant are as follows:-
The applicant and 3rd respondent were appointed to the post of Assistant Shipping Master / Assistant Director (ASM/DD) following their selection in UPSC during the year 1999 in the same batch. On 27.05.2002, the applicant was promoted to the post of Deputy Shipping Master/Deputy Director (DSM/DD) on ad-hoc basis which was extended from time to time. But the 3 rd respondent who has offered ad-hoc promotion on 10.05.2002 and again on 03.12.2003 declined the same and hence by order dated 22.12.2003 he was debarred from promotion for two years. In the meantime, regular DPC was convened and on the basis of its recommendation, the applicant was promoted to the post of DSM/DD of officiating basis. Subsequently based on the request of 2 nd respondent & in 3 OA 537/2017 relaxation of debarment order 3rd respondent was promoted to the post of DSM/DD on 29.07.2004. But in provisional seniority list dated 21.06.2005, applicant who was promoted much earlier to the post of DSM/DD was placed below 3rd respondent who was promoted subsequently. Applicant submitted several representations seeking to review seniority. In the meantime, by order dated 17.01.2014, applicant and 3rd respondent were promoted to the post of DSMDD w.e.f. 30.11.2004 during which time, the 3rd respondent was debarred for promotion. Hence he cannot be granted seniority in a post which he was not holding as on 30.11.2004. But by order dt. 30.11.2016, applicant's claim was rejected and seniority list dated 21.12.16 and 21.02.2017 were issued wherein applicant is placed below the 3rd respondent. Hence the present OA.
3. The grounds relied upon by the applicant are as follows:
A. The impugned order is arbitrary and unreasonable and violative of rights of the applicant under Articles 14 and 16 of the Constitution. B. The impugned order has been passed on the basis of a decision by the DPC which has no jurisdiction over the issue of seniority. It is well established that the DPC is empowered only to consider the suitability of persons for promotion to a higher post but does not have any jurisdiction to determine inter se seniority on 2 candidates in the lower post. Hence the impugned order is liable to be set aside.
C. The impugned order has been passed by the official respondents relying upon the decision of the DPC which amounts to an abdication of power and 4 OA 537/2017 jurisdiction vested in them by law. Hence, the impugned order is liable to be set aside.
D. The impugned order is also violative of extant DoPT instructions governing seniority and well established norms laid down by the Supreme Court in various cases including those in Direct Recruits Class II Engineering Officers Association and Rudhra Kumar Sain. Hence the impugned order is liable to be set aside.
E. The 3rd respondent has already been debarred for a period of 2 years from promotion on 22.12.2003, which expires only on 21.12.2005 and as such he cannot be regularised with effect from a date which falls within the debarment period. The department does not have any jurisdiction or power to condone the debarment. In any case, even if the same is condoned it cannot be to the detriment of the vested rights of the applicant.
F. It is also well established that a person cannot be granted regularisation in a post with effect from a date when he was not actually holding the post. Hence the impugned order is liable to be set aside.
G. It is significant that vide order dt. 20.08.2004 one, Debasis Das, Superintendent was promoted as ASM, "vice Shri. T. K. Krishnakumar promoted" thereby confirming that the applicant's promotion on 08.04.2004 was a regular promotion and as such, he acquired a lien in the post of DSM/DD. Further, the third respondent was debarred during the said period and in any case, promoted subsequently and there was also no vacancy. Hence, the 5 OA 537/2017 impugned order is liable to be set aside.
H. The impugned order is also contrary to well established principles governing seniority which recognise 'length of service' in a particular post as the operating principle and DoPT instructions which clearly stipulate that where DPC finds a person unfit and is superseded then the latter cannot claim seniority over a person who has been recommended for such promotion; in the present case the DPC found the 3rd respondent unfit as he was debarred. Moreover, when persons promoted initially on temporary basis are confirmed, their seniority would be from the date of initial appointment and not from the date of confirmation.
I. The impugned order has been passed for collateral reasons on extraneous considerations, without reference to established norms and legal principles applicable. It is a clear case of colourable exercise of power. J. The other reasons stated by the respondents in the impugned order are unsustainable in law.
K. When the matter pertaining to seniority of the applicant and the 3 rd respondent is sub judice before the Hon'ble Tribunal the official respondents ought not to have promoted the 3 rd respondent to the post of SM/Director. Hence, the impugned order of promotion is liable to be set aside. L. When there is no clear vacancy in the promotion quota of the post of Shipping Master/Director, the action of the respondents in granting regular promotion to the 3rd respondent to the post of Shipping Master/Director is 6 OA 537/2017 arbitrary and unreasonable and it is clear case of colourable exercise of power.
4. The respondents have filed reply. It is submitted that the applicant, Shri. T. K. Krishnakumar and the 3rd respondent, Shri. Mukul Dutta were appointed during the year 1999 to the post of Assistant Shipping Master (ASM)/Assistant Director (AD) in Shipping Office/Seamen's Employment Office which are subordinate offices under the control of the Director General of Shipping. According to the UPSC merit list, Shri Mukul Dutta stood first in the seniority list as Asstt. Shipping Master/Assistt. Director, SEO. Hence Shri. Mukul Datta shown above the petitioner in the seniority list in accordance with DoP&T OM No. 22011/7/86-Estt(D) dated 03.07.1986. The post of Assistant Shipping Master is the feeder post for Deputy Shipping Master. There are three (3) sanctioned posts of Dy. Shipping Master/Dy. Director, in the Directorate General of Shipping. As on 1.1.2004, there were three serving officers of the rank of Dy. Shipping Master/Dy. Director, Seamen's Employment Office. Out of these three serving officers, one serving officer was on deputation to Dredging Corporation of India, Chennai since 25.7.2003. As the post was lying vacant on temporary basis. Shri. Mukul Dutta was first offered the officiating promotion to officiate in the temporary vacant post which he refused. Hence the petitioner, T.K. Krishnakumar was then offered to officiate on this post, which he accepted. As per the minutes of the DPC, the period of promotion was till Shri. R.M. Elango repatriated back from deputation or until further orders, whichever is earlier. Any regular promotion can be given only against the clear 7 OA 537/2017 vacancy. Since there was no clear vacancy as on 5.4.2004, the promotion of the applicant, Shri. T.K. Krishnakumar has to be considered as purely officiating promotion as a temporary arrangement. Since Shri. Mukul Dutta had refused to accept the officiating promotion, he was, vide order dated 5.1.2004, debarred from being considered for promotion for a period of two years. Shri. Mukul Dutta vide his letter dated 30.07.2004 requested for withdrawal of the debarment order. Since the officiating promotion that was first offered to Mr. Mukul Dutta for a temporary period, debarring Shri. Mukul Dutta for granting promotion for a period of two years had no legal validity, his request was considered and his debarment order was withdrawn by the competent authority. The rules quoted by Shri. T. K. Krishna Kumar on loss of seniority on refusal of promotion cannot be applied for temporary officiating promotion. Such debarment orders can be issued only when a regular promotion is being refused. Hence the applicant's application has no merit and is liable to be rejected.
5. The respondents submit the parawise replies for the respective averments made in the OA.
6. The applicant T.K. Krishna Kumar has been appointed through UPSC in the grade of Asst. Shipping Master/Asstt Director, Seamen's Employment Office w.e.f. 17.02.1999. Prior to this he had served in the Indian Navy for a period from 08.01.1983 to 19.01.1999. He has been promoted as officiating Dy. Shipping Master w.e.f. 05.04.2004. Subsequently he was promoted to the post of Dy. Shipping Master in the scale of Rs. 9300-34800/- + Grade Pay Rs. 4600/- 8 OA 537/2017 (pre-revised) on regular basis w.e.f. 30.11.2004.
7. Mukul Dutta and T.K. Krishnakumar (applicant) were appointed on regular basis through UPSC. Mukul Dutta stood first in the merit list as Asstt. Shipping Master/Asstt. Director, SEO and accordingly he was shown above Shri T.K. Krishnakumar in the seniority list in accordance with DoP&T O.M. No. 22011/7/86-Estt (D) dated 03.07.1986. Both Mukul Datta and T.K. Krishnakumar were considered for officiating promotion for the post of Dy. SM/Dy. DSEO in the year 2004. There was no clear vacancy on 5/4/2004. The officiating promotion given to T.K. Krishnakumar was a temporary arrangement to officiate the temporary vacant post occurred due to deputation of R.M. Elango to Dredging Corporation of India.
8. It is submitted that, subsequently Shri. Mukul Dutta vide his letter dated 28.07.2004 had requested to reconsider his case for promotion. Observing that refusal of the officiating promotion that was first offered to Mr. Mukul Dutta was for a temporary period, debarring him for granting promotion for a period of two years had no legal validity, his request was considered and his debarment order was withdrawn by the competent authority. The rules quoted by the applicant on loss of seniority on refusal of promotion cannot be applied for temporary officiating promotion. Such debarment orders can be issued only when a regular promotion is being refused.
9. The guidelines of the DoP&T, GoI are categorical that a given entry level seniority stays put, unless otherwise altered by a DPC (etc.) for a regular 9 OA 537/2017 promotion. Officiating/ad-hoc promotions do not lend themselves to any claim for seniority. That being the laid down desiderata, the stake of T.K. Krishna Kumar, who is junior to Mukul Dutta, in the original & substantive seniority of ASM, is untenable. The joining of the former, earlier, as an officiating Dy. Shipping Master, does not enable him, for the said considered reasons, to be superceeding/overtaking the latter, in seniority (determined at the entry point of ASM, in 1999, in bot their cases).
10. It is submitted that the guidelines of the DoP&T, GoI are categorical that a given entry level seniority stays put, unless otherwise altered by a DPC (etc.) for a regular promotion. Officiating/ad-hoc promotions do not lend themselves to any claim for seniority. That being the laid down desiderata, the stake of T.K. Krishnakumar, who is junior to Mukul Dutta, in the original and substantive seniority of ASM, is untenable. The joining of the former, earlier, as an officiating Dy. Shipping Master, does not enable him, for the said considered reasons, to be superseding/overtaking the latter, in seniority (determined at the entry point of ASM, in 1999, in both their cases).
11. In view of the foregoing, the applicant's grounds with legal provision in the OA are misplaced and denied except those that are specifically admitted in above paras. Hence the application filed by the applicant is not maintainable. For the reasons stated above, it is therefore prayed that this Tribunal may be pleased to dismiss the OA as it is devoid of merits.