Central Administrative Tribunal - Chandigarh
Krishan Lal vs Mes on 2 May, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.60/840/2022
PRONOUNCED ON: 02.05.2024
(RESERVED ON: 22.04.2024)
CORAM:
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
MES-314675 Krishan Lal, EE, S/o Late Shri Mool Chand, age 58
years, resident of 785PH-3 Model Town Bhatinda. Presently
posted as Deputy Director in the office of Chief Engineer
Bhatinda Zone Bhatinda Cantt, Punjab,
.... Applicant
(By Advocate: Mr. H.S. Sandhu).
Versus
1. Union of India, Through Secretary Ministry of Defence,
South Block, New Delhi 110011
2. Union Public Service Commission, Dholpur House,
Shahjahan Road New Delhi 110069
3. Engineer-in-Chief, Engineer-in-Chief's Branch, IHQ of MoD
(Army), Rajaji Marg, Kashmir House, DHQ PO New Delhi-
110011
4. Chief Engineer Southwestern Command Jaipur Cantt-
(Rajasthan) Pin-302012
5. Chief Engineer Bhatinda Zone, Bhatinda Military Station,
Bhatinda (Punjab)-151004
6. MES-186251 Shri Vishal Dwivedi, EE(SG) Presently working
as Joint Director, HQ Chief Engineer South Western Command
Jaipur (Rajasthan) Pin-302012 (Ex-parte vide order dated
12.10.2023).
....Respondents
(By Advocate: Mr. K. K. Thakur, Sh. B.B. Sharma, Advocate).
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ORDER
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
(i) That the AISL of EE as on 03 Jan 2022 circulated by respondent No.3 vide letter dated 03.01.2022 (A-8) be quashed.
(ii) (ii) That directions be issued to respondents to fix the seniority of the applicant in the grade of AE with effect from 01.04.2001 and place the applicant appropriately in AISL above his juniors.
(iii) That directions be issued to the respondents to consider the applicant for promotion to the grade of EE against the vacancies for the year 2012-13, fix the seniority in the grade of EE with effect from 01.04.2012 and draw fresh AISL of EE.
(iv) That directions be issued to respondents to circulate fresh Seniority list of EE with seniority of the applicant in the grade of EE with effect from 01.04.2012 before conducting further DPC against the vacancies for vacancy year 2022- 23 for promotion from the grade of EE to SE.
(v) That directions be issued to respondents to consider the applicant for promotion to the grade of SE as per revised seniority list.
2. Facts of the case, as per the applicant, are as follows.
The applicant belongs to SC community and was appointed in Military Engineers Services (MES) Superintendent Building & Roads (In short Supdt. B&R) Grade II on 10.07.1987 through direct recruitment and he was further promoted to the grade of Supdt B&R Grade-l with effect from 09.12.1994. The posts of Supdt 3 B&R Grade II and Supdt B&R Grade-I were merged and re-designated as Junior Engineer (Civil) vide MoD letter dated 09.07.1999 which becomes feeder cadre for promotion to A.E. and redesignated as Junior Engineer (Civil) (In short "JE Civil"). The applicant passed AMICE Section A&B from the Institute of Civil Engineers (India), an AICTE approved institution, which is equivalent to BE Civil Engineering. Necessary entries have been recorded in the service record of the applicant.
3. As per DOPT OM dated 19.07.1989 amended vide OM dated 17.09.1998 the eligibility dates for determining the eligibility of officers for promotion is first day of the crucial year i.e., January 1st of vacancy year irrespective of whether ACRs are written financial year wise or calendar year wise. Further instructions have been issued by DoPT vide OM dated 17.11.1986 that the DPC should be convened at regular interval to draw panels which could be utilized for making promotion against the vacancies occurring during the course of year. Therefore, in this case for vacancy year 2001-0, DPC was required to be finalized before 01 April 2001. It also is well settled law that if DPCs are delayed then notional seniority from vacancy year to be given to the employees to avoid loss 4 of seniority for further promotion (Annexure A-1).
4. The applicant was considered by respondent No 2 for promotion from JE (Civil) to Assistant Engineer (Civil) (In short "AE Civil") against vacancy year 2001-2002 and Select Panel for promotion of JE (Civil) to AE Civil against the vacancy year 2001-02 and 2002-2003 was issued by respondent No 2 vide letter dated 16.09.2002 and name of applicant was included at Ser No 18 in Select Panel for the year 2001- 02 (Annexure A-2). Applicant was promoted to the grade AE Civil against vacancy year 2001-02 by respondent No 2 vide letter dated 07.10.2002. In pursuance to the promotion order applicant assumed the designation of AE Civil in the office of Garrison Engineer Kamptee on 11.11.2002. All India seniority list for AE (E/M) and AE (Civil) for promotion to EE was inculcated by respondent No.2 vide letter dated 19.07.2016 and applicant was placed at S.No.46 based on the date of assumption of charge in grade on AE (Civil) w.e.f. 11.11.2002 instead of granted notional seniority w.e.f. 1.4.2001 and qualification of AMIE was also mentioned therein.
5. The next promotion from AE(Civil) to Executive Engineer is governed by the statutory recruitment rules framed 5 under Article 309 of the constitution of India on 29.06.2004 known as "Indian Defense Services of Engineer (Recruitment and Conditions of Service) Rule, 2004" (In short "Recruitment Rules") As per revised Recruitment Rules of 29.06.2004, total 530 posts of Executive Engineers were sanctioned and method of recruitment to the post is by way of promotion. 66-2/3% of the total posts to be filled on non-selection basis from the grade of AEE and 1/3% of the posts by selection basis from the grade of AE. The Field of Selection, minimum qualifying service and education for promotion is:-
(a) Assistant Engineer with eight years of service in the grade and possessing degree in Civil, Mechanical or Electrical Engineering and equivalent from a recognized University/ Institution.
(b) Assistant Engineer with ten years regular service in the grade and possessing Diploma in Civil, Mechanical or Electrical Engineering or equivalent from a recognized University/ Institute.
6. The applicant was considered for promotion from AE to EE being considered against vacancy years 2012-13 and 2013-14 was circulated by respondent No.2 vide letter dated 08.09.2014. DPC for promotion of AEs to EE last 4 AEs was finalized by Respondent No 2 (Engineer-in- Chief). Select panel for promotion to the grade of EE was issued on 27.05.2019 for 124 AEs vide letter dated 27 6 May 2019. Name of the applicant has been included at Ser No 24 against vacancy year 2013-14. The Promotion order of 79 officers to the grade of EE was issued by Respondent No 2 (Engineer- in-Chief) on the same day vide letter dated 27 May 2019 and applicant was promoted to the grade of EE against the vacancies for vacancy year 2013-14 and he assumed the designation of Executive Engineer on 29 May 2019.
7. Thereafter, tentative All India Seniority List of Executive Engineers for promotion to the grade of Superintending Engineer has been circulated by respondent No.2 vide letter dated 03 January 2022 (A-8) for checking of particulars of the officers and return the same duly authenticated by 30 April 2022. The name of the applicant has been included at ser No.130 i.e. from the date of physical promotion in the grade of EE i.e. w.e.f. 28.05.2019 whereas seniority is to be fixed from date of vacancy years. Thus, the seniority of the applicant has been wrongly fixed from the date of regular appointment on promotion to EE instead from the date of vacancy year and certain other details were missing.
8. Applicant submitted representation dated 03.03.2022 (A-
9) for correction of Seniority list, and same was 7 forwarded to respondent No 3 by respondent No 4 (CE SWC) through proper channel. Applicant submitted another representation dated 31.05.2022 (A-10) for correction of All India Seniority List of AE and represented that he was eligible for promotion against the vacancies for the year 2012-13 instead of 2013-14 as applicant was approved for promotion to the grade of AE against vacancy year 2001-02 while considering his promotion to grade of EE seniority in the grade of AE has been considered from date of assumption of designation of AE on 11.11.2003 instead of 1.4.2001. Applicant also submitted Legal notice (A-11) through his counsel to respondent No 2 amongst others for consideration of his representation and to provide relief. Respondent No.3 (Engineer-in-Chief) has rejected the representation of the applicant dated 31.05.2012 vide letter dated 07.06.2022(A-12) as communicated by respondent no 4 vide letter dated 02.07.2022 (A-13) stating that applicant was promotion AE on 11.11.2002 and did not complete 10 years of regular service as on 01.01.2011 crucial date of eligibility for promotion to EE. Against this, the applicant again submitted detailed representations to respondent No.2 for correct fixation of seniority in the 8 grade of EE.
9. Respondent No.3 circulated update on Personnel matters vide Note dated 01.09.2022 (A-14) wherein it has been intimated that DPC proposal from the grade of EE to SE against the vacancy year 2022-2023 has been returned by UPSC on 05 Jun 2022 and case is being submitted to UPSC along with relaxation of qualifying service criteria. According to applicant, respondents have initiated process of DPC without circulating the final Seniority List of EE without after addressing the representations of the applicant and with relaxation in qualifying service to junior officers which is against the "Natural Justice".
10. Respondents are conducting DPC for 78 vacancies for vacancy year 2022-23 based on the tentative seniority list. Since zone of consideration will be up AISL S.N.94 due to superannuation of officers in between and since seniority of applicant is to be fixed at AISL No.81, officers junior to him will be considered by DPC is against natural justice. Hence this OA has been filed.
11. The case of applicant has stated that his case is squarely covered by the recent judgement of Hon'ble High Court in the case of Union of India and others Vs. Deep Chand Sharma and others decided on 27.09.2019, W.P. No. 9 2904 of 2014. The Hon'ble High Court has upheld the order of the Tribunal granting promotion from the date of the occurring of vacancies. The Hon'ble Apex Court's decision in K. Madhavan Vs. Union of India [(1987) 4 SCC Para 15] where it was held that is scheduled DPCs meeting got cancelled or postponed arbitrarily, retrospective promotions were justified. The Apex Court in the case of P.N. Premachandran Vs. The State of Kerala and Ors, (Civil Appeal No 4100/1998 decided on 6.11.2003) held that employees cannot be made to suffer on the basis of administrative lapses as a result of which DPC was not conducted in due time. It has further been laid down that the promotion in case of late holding of DPC shall relate back to the date on which the vacancy actually arose in such cases. Recently the Hon'ble Allahabad Bench has allowed O.A. No 330/1077/2019 filed by Sh. Sandeep Kumar Pandey, SAA and Ors Vs. Union of India decided on. 09.09.2020 wherein Hon'ble Tribunal has held that the employees are entitled promotion from the date of vacancy year and not from the date of assumption of charge and they are entitled for notional pay fixation etc from the date of vacancy year. The aforesaid order has already been implemented 10 and the individuals therein has already been assigned the promotion from the date of vacancy year and further pay has been fixed notionally. The aforesaid case pertains to the same department i.e. MES. The case of the applicant is squarely covered under aforesaid judgements and his seniority in the grade of Assistant Engineer is to be fixed from 01.04.2001, and seniority in the grade of EE is to be fixed with effect from 01 April 2012. The representation of the applicant has been rejected by the respondent arbitrarily in cyclostyled manner without considering the instructions on the subject and various judicial pronouncements which is against the natural justice. Now respondent is in the process of holding the DPC for promotion from EE to SE based on the Tentative seniority list without considering the grievances of the applicant which is against the natural justice and violation of Articles 14 & 16 of the Constitution.
12. Respondents No.1, 3, 4 and 5 have filed reply on 09.03.2023 submitting therein that the applicant is seeking fixation of seniority from 1.04.2001 instead of 01.112002, when he assumed charge and seeks promotion from 2012. The cause of action, if any arose to the applicant in 2016 whereas he has filed this OA in 11 2022. Hence the OA is barred by law of limitation. the applicant joined as AE (Civ) on 11 Nov 2002 and as per AISL 2009 his qualification is DCE and he passed AMICE Sec A & B during Nov 2011, thus he became eligible for promotion to the grade of EE against the vacancies for the year 2012-13, therefore not eligible for promotion, against the vacancies for the year 2011-12 as he does not fulfil requisite eligibility of 10 years of regular services as on 01 Jan 2011. All India seniority list of AE (Civil) as on 1.4.2016 was issued on 19.7.2016 (Annexure A-4) in which also applicant has been shown as promoted w.e.f. 11.11.2002 which has not been challenged by him. Unless that seniority list is challenged, O.A. challenging subsequent events is not maintainable. The respondents have relied upon following judgments:-
a. State of Haryana vs. Subhash Chander Marwaha and others AIR 1973 SC 2216 b. Union of India and others vs. K.K. Vadera and others, AIR 1990 SC 443 c. T.N. Administrative Service Officers Assn. Vs. Union of India, 2000 (5) SCC 72 d. State of Uttaranchal vs. Dinesh Kumar Sharma 2007 (1) SCC 683 e. Nirnam Chandra Sinha vs. Union of India 2008 (14) SCC 29.
f. Union Territory, Chandigarh & Others vs. Tarlochan Singh & Others.
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13. Respondent No.2 has filed short reply on 02.02.2023 submitting therein that DPC has already been held in the office of Commission on 19.12.2022 for promotion to the grade of Superintending Engineer in the Military Engineer Services under the Ministry of Defence for the vacancy year 2022 and 2023. Accordingly, the Department has also issued promotion order subject to final outcome of the instant O.A. It is further stated that the said DPC was based on AISL of EEs as on 01.01.2022 and the Department has certified that the same was circulated to all the concerned officers and no representation has been received. The name of the applicant was not included in the eligibility list of 2022 by the Department as his name was beyond zone of consideration against the vacancies for the year 2022. Names of the some of the feeder grade officers along with name of the applicant were also not included in the eligibility list for the year 2023 also as they were not completing requisite qualifying service as on crucial date of eligibility i.e. 01.01.2023. It has further been stated that the core issue involved in the OA is relating to fixation of seniority position which is purely an administrative matter and commission has no role to play in that. Neither the action of the Commission has 13 been challenged nor has any relief sought against the Commission hence the Commission has been impleaded unnecessarily.
14. From the facts on record, we find that the applicant was promoted as AE against vacancy for the year 2001-02 and physically assumed charge as such on 11.11.2002. Since he completed 10 years of regular service after assumption of charge and acquired qualification of AMICE he was considered during November 2000 on 10.11.2012, he was considered eligible for promotion to the grade of AE against vacancy year 2013-14 as per SRO 94 of 2004. Applicant is seeking seniority of year 2012-2013. However, respondents have challenged the same on the ground that cause of action, if any, arose to the applicant in the year 2016 whereas he filed this OA for the year 2022 hence the OA is barred by limitation. Since seniority list of FE vide which applicant was promoted to EE has not been challenged, OA challenging the subsequent events is not maintainable. The respondents have relied upon several case laws in their support.
15. We have considered this issue of reopening of seniority list of AE and we agree with the respondents that since it 14 was not challenged earlier hence the relief qua that is barred by limitation. The applicant cannot be allowed to unsettle seniority list which has already been settled. During the course of hearing also, counsel for the applicant has not pressed his claim for the year 2012-13 and accepted that he is to be considered eligible for vacancy year 2013-14. Consequently, his case has been examined by us with reference to eligibility for promotion for vacancy year 2013-14. Now he is due for promotion as SE and even if his service is counted from 2013-14, he is due for promotion as per RRs for 2023. Further as stated by respondent No.2, the name of the applicant was not included in the eligibility list of 2022 by the department as his name was beyond zone of consideration against vacancy year 2022. Further, name of some of the feeder cadre officers along with name of the applicant was also not included in the eligibility list for 2023 as they did not complete qualifying service as on crucial date i.e. 01.01.2023.
16. We find that respondent department has counted seniority of the applicant from 29.05.2019, when he assumed charge of EE post on interpretation of para 6.4.4 of DoPT OM dated 10.04.1989, which reads as 15 follows:-
"6.4.4 While promotions will be made in the order of the consolidated select list. Such promotions will have only prospective effect even in cases where the vacancies relate to earlier years (s)"
From a plain read, it is very clear that while promotion is to be prospective from the date of assumption of charge for the purpose of drawing actual pay and allowances. In terms of seniority, it will have to be vacancy year. This principle has also been upheld in the case of P.N. Premachandran (supra). We are of the view that his seniority will have to be counted against penal year 2013-14 and he will have to be given notional promotion from the date for the penal year 2013-14 and the period will have to be counted as period for qualifying service for further promotion. This position has also been upheld by the Hon'ble Supreme Court vide judgment dated 28.03.2020 in the case of Union of India & Others vs. K.B. Rajoria. Since the applicant completed 10 years in November 2022, his seniority is to be counted w.e.f. 01.01.2013 as per DoPT OM dated 19.07.1989 amended vide OM dated 17.09.1998. Hence, he is eligible for promotion to the post of SE as on 01.01.2023 but has been ignored.
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17. In view of the above discussion, we direct the respondents to according fix seniority of the applicant w.e.f. 01.04.2013. The department is directed to hold review DPC for placing the applicant at an appropriate position in the AISL and if found eligible grant him promotion as SE for the vacancy year 2023.
Respondents are directed to complete the entire exercise within a period of three months from the date of receipt of a copy of this order. The O.A. is allowed.
18. With the disposal of the O.A., interim order dated 12.09.2022 stands vacated. Pending MA(s), if any, stand disposed of.
(RASHMI SAXENA SAHNI) (RAMESH SINGH THAKUR) MEMBER (A) MEMBER (J) /kr/