Central Administrative Tribunal - Ernakulam
P. Vijayakumar vs Union Of India on 8 October, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 836 of 2012
Thursday,this the 08th day of October, 2015
CORAM:
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
P. Vijayakumar, aged 55 years,
S/o. M. Balakrishna Menon,
Assistant Director (Implementation),
Regional Implementation Office,
Department of Official Language,
Ministry of Home Affairs,
Kendriya Bhavan, CSEZ PO,
Cochin-682 024, residing at Sowparnika,
Vattekunnam, Edappally North,
Cochin - 682 024. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
Versus
1. Union of India,
represented by the Secretary,
to the Government of India,
Ministry of Home Affairs,
Department of Home Affairs,
2nd Floor, Lok Nayak Bhavan,
Khan Market, New Delhi - 110 003.
2. The Director (Research/Implementation),
Department of Official Language,
Ministry of Home Affairs,
2nd Floor, Lok Nayak Bhavan,
Khan Market, New Delhi - 110 003.
3. The Union Public Service Commission,
New Delhi-110 066, through its Secretary. .... Respondents
[By Advocates - Mr. N. Anil Kumar, Sr. PCGC (R) (R1&2) &
Mr. Thomas Mathew Nellimoottil (R3)]
This Original Application having been heard on 14.09.2015, the
Tribunal on 08.10.2015 delivered the following:
ORDER
By Hon'ble Mrs.P.Gopinath, Administrative Member The applicant who is presently working as an Assistant Director (Implementation), Regional Implementation Office, Department of Official Language, Ministry of Home Affairs, in Group -'A' service with PB-3+GP Rs.5400 is aggrieved by the refusal on the part of the respondents to grant the applicant the benefit of the above promotion with effect from the date from which the actual promotion fell due. The applicant who was working in the Directorate of Cashewnut Development in the Ministry of Agriculture, was having the educational qualification of MA in Hindi (I class), B.Sc with English as a subject, Postgraduate Diploma in Translation, Administrative Drafting and Reporting in Hindi, B.Ed and Postgraduate Diploma in Public Relations and Journalism. He was appointed on deputation as a Research Officer (Implementation) with effect from 01.08.1996 in the present Department of Official Language, Ministry of Home Affairs. This is a Group 'B' Gazetted post carrying a scale of pay of Rs.6500-10500. The applicant was later regularly absorbed as a Research Officer (Implementation) in the Department o Official Language on and with effect from 05.06.2000. The applicant submits that his next promotion in the hierarchy is to the post of Assistant Director which is filled by promotion/deputation. A Research Officer (Implementation) with 5 years regular service in the grade will also be considered along with outsiders in case he is selected for appointment to the post, the same shall be deemed to have been filled by promotion. There were 5 vacancies in the cadre of Assistant Directors (Implementation) as on 2005. The applicant was the senior- most among the Research Officers (Implementation) and this is evident from the seniority list produced. In terms of Government of India, Department of Personnel & training, OM No.22011/9/98-Estt (D) dated 08 September 1998 read with OM of even number dated 13 October 1998, a model calendar for convening of DPCs and instructions regarding the same was communicated. The applicant submits, going by the above O.M, the next promotion for an Assistant Director (Implementation) is to the post of Deputy Director (Implementation) for which, the residency period is 5 years as Assistant Director (Implementation). If only the applicant were to be granted the benefit of promotion with effect from 01.04.2006, he would have become eligible to be considered for promotion as on 01.01.2012 However, since the applicant was de-facto promoted by respondent only with effect from 14.09.2007, he would be eligible to be considered for his next promotion only with effect from 01.01.2013. The applicant submits that aggrieved by the total inaction on the part of the respondents in settling the applicant's grievances, the applicant approached this Hon'ble Tribunal by filing O.A No.314/2012, inter alia praying for a declaration that the applicant is entitled to have his promotion as Assistant Director (Implementation) ante-dated to 01.04.2006 and for incidental directions. The original application was disposed of by order dated 10th April 2012 directing the applicant to submit a detailed representation to the 2 nd respondent within a period of two weeks from the date of the order with a further direction that the 2nd respondent shall consider and dispose of the same in accordance with law. In obedience to the above directions, the applicant submitted a detailed representation dated 24.04.2012 addressed to the 2nd respondent. The applicant submits that Annexure A-12 has now been disposed of by an order No.12020/597- OL(imp) dated 31.07.2012 issued from the office of the 1 st respondent.
2 Respondents submit that the vacancies in the grade of Assistant Director (Implementation) as on 2005 were 4; 1st vacancy arose in April 2003, 2nd vacancy arose in April, 2004, 3rd vacancy arose in July, 2005, 4th vacancy arose in September, 2005 - due to repatriation of deputationist. The DoPT issued OM No.22011/5/86-Estt (D), dated 10.04.1089 pertaining to guidelines for promotion which was amended from time to time. The subsequent instructions contained in DoPT OM No.22011/9/98-Estt(D) dated 14th Dec 2000 for holding DPC financial year/calendar year-wise pertains to convening normal departmental DPCs where method of recruitment involved is by promotion only. Strict adherence to these instructions is not always possible in cases where the dual composite method of recruitment is prescribed by promotion/deputation.
3. The post of Asstt. Director (Impl.) is filled up on promotion/deputation (Composite method) basis. As per Recruitment rules of Assistant Director (Impl.), feeder cadre officers who have completed 05 yeas service as Research Officer (Impl.) are considered along with outsiders and in case he/she is selected, he/she is deemed to have been appointed on promotion. There were two vacancies of Assistant Director (Impl.) in April, 2003 and April, 2004 (in RIO Guwahati and Kolkata). The action to fill up these vacancies was initiated on 23.01.2004. These vacancies were circulated vide Department's OM No.12013/02/2004-OL (Impl.) dated 03.03.2004. Subsequently a corrigendum was issued on 14.04.2004 as the vacancy was inadvertently mentioned as one instead of two. Against these two vacancies 18 candidates had applied which did not include the name of the applicant as he was not eligible at that point of time. He became eligible with effect from 5.6.2005 only. The proposal for filling up these two posts was forwarded to UPSC vide this department's letter dated 14.10.2004.
4. In the meantime, while the proposal for filling up of the above said posts was still pending with the UPSC for want of certain documents, in the interest of the departmental officers it was decided by the department to forward names of the departmental officers who were likely to become eligible for promotion to the post of AD (Impl.) in near future. Therefore, names of three departmental officers working in the cadre of Research Officers (Impl.), namely Shri P. Vijay Kumar (applicant), Shri Jasvant Singh and Shir Ashok Kumar Mishra were also included in the proposal and forwarded to UPSC vide office letter F. No. 12013/2/2004, dated 26.4.2005 to ensure that interest of the feeder grade officers is protected. Hence it is evident that the applicant's name was sent to the UPSC as early as on 26.4.2005 even before the applicant completed 5 years regular service prescribed in the recruitment rules required for promotion as AD (impl). Hence, no delay has been caused on the part of the department in considering his candidature for the post of AD (Impl.). Thereafter, UPSC vide its letter No. 3/24(23)/2004-ADT-3, dated 7.12.2004 asked for certain documents which were sent to UPSC vide letter No. 12013/2/2004-OL(Impl.-1), dated 8.2.2005. In response to respondent department's letter dated 26.4.2005, the UPSC vide its letter No. 3/24(23)/2004-ADT-3, dated 2.6.2005 asked for authenticated copy of seniority list of feeder grade officers in order to ascertain and analyze the eligibility of the incumbents along with documents of other candidates. Documents asked for were sent vide this office letter No. 12013/2/2004-OL(impl.-1), dated 8.8.2005. The UPSC again requested respondent to complete certain formalities in respect of some documents forwarded to them vide their letter dated 6.7.2005 which was sent to UPSC vide respondent department's letter No. 12013/2/2004-OL(impl.-1), dated 8.8.2005. The UPSC vide its letter No. 3/24(43)/2004-ADT-3, dt. 13.9.2005 in response to Department of Official Language's letter dt. 8.8.2005 intimated that the posts of AD (Impl.) are to be filled by composite method (i.e. promotion/deputation) and keeping in view the interest of departmental officers it was advised by UPSC to re-advertise/re- circulate the vacancies.
5. Accordingly, the vacancies were circulated vide DOL OM F. No. 12013/13/2005-Ol(impl.-1), dt. 19.7.2005 and the same was published in the employment news dated 8-14 October, 2005 wherein the number of vacancies were inadvertently mentioned as 1 instead of 4. Accordingly, a corrigendum was issued on 28.9.2005 for 4 vacancies of Assistant Director (Impl.) and the same was published in employment news dated 24-30 December, 2005. This proposal was sent to UPSC vide respondent Department's letter F. No. 12013/13/2005-OL(impl.-1) dated 11.5.2006. The UPSC vide their letter No. 3/24(26)/2006-ADT-3, dated 7.6.2006 sought certain documents which were sent to them vide this Department's letter dated 19.6.2006. Thereafter, the UPSC further vide their letter No. 3/24(26)/2006-ADT-3, dt. 6.7.2006 asked for certain information which was furnished vide respondents letter dt. 4.10.2006. The UPSC constituted a selection committee wherein Chairman/Member of UPSC is Chairman of the committee and Joint Secretary, Official Language was member along with other members. Normally 60 days time is given to the candidates to submit their applications from the date of publication in the Rozgar Samachar/Employment News. Subsequent to this, the applications received are scrutinized by the department and a lot of time is taken to get the deficiencies rectified in respect of shortfall in ACRs/APARs/Vigilance/cadre clearance etc. from the concerned departments of the candidates. Thereafter the complete proposal is sent to UPSC for holding of DPC. At this stage also in case any further deficiencies are noticed by the UPSC the same are rectified in consultation with the respondent department.
6. Heard the counsel for applicant and respondents and the written submissions made.
7. The process of recruitment as detailed above is an inherently complex and time consuming one. Since 4.10.2006 there had been a continuous exchange of communication between UPSC and Dept. of Official Language and various other departments of the candidates who had applied against the above said vacancies. The delay caused in filling up the posts of AD (Impl.) was certainly not deliberate but due to the inherent complex and time consuming nature of composite method of recruitment to be completed in coordination with multiple government department. Hence, the procedural delay so occurring in no case can be attributed to the respondents. The applicant has been given promotion to the post of Assistant Director (Impl.) w.e.f. 14.9.2007 as per the government policy and recruitment rules for the post.
8. Respondent drew attention to para 6.4.4. of DOP&T OM F. No. 22011/5/86-Estt (D) dated 10.4.1989 wherein it is directed that promotions are to be granted with prospective effect only. Para 6.4.4 provides 'Promotions only prospective - 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 year(s).' Hence, allowing retrospective promotion to the applicant would violate the policy of the Govt. of India envisaged in the said OM. Applicant completes 5 years of substantive service in the grade of Assistant Director (Impl.) only on 13.9.2012. So far as vacancies in the grade of Deputy Director (implementation) are concerned as per this Tribunal's order dated 13.12.2012 in OA No. 202/2012 the Department has re-advertised the vacancies of Deputy Director (Impl.). The delay which occurred during the process of holding DPC was genuine and beyond control of the respondents who had to comply with the various steps leading to the recruitment process, and due to the intrinsic complex nature of composite method of selection/recruitment.
9. The Apex Court in Nirmal Chandra Sinha v. Union of India (2008) 14 SCC 29 held that in a series of decisions, the apex court has held that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancies or creation of post vide Union of India v. K.K.Vadera 1989 Supp (2) SCC 625 : 1990 SCC (L&S) 127; State of Uttranchal v. Dinesh Kumar Sharma (2007) 1 SCC (L&S) 594; K.V.Subha Rao v. Govt of Andra Pradesh (1998) 2 SCC 201 : 1988 SCC (L&S) 506 : (1988) 7 ATC 94; Sanjay K.Sinha-II v. State of Bihar (2004) 10 SCC 734 : 2005 SCC (L&S) 169 etc. The Department of Personnel O.M circulating the model calendar referred by the applicant cannot be read out of context. The said O.M relates to promotions by D.P.C whereas this is a case of recruitment by composite method of promotion/deputation. The procedure for effecting promotion by the composite method has two components i.e; direct recruitment by inviting applications by a public notice and secondly promotion. In the context of the dual procedure the respondents 1,2 and 3 in a joint effort had the responsibility of ensuring that the procedure of recruitment comprising several steps was followed diligently so that injustice was not done to any applicant/candidate, being promoted by deputation or by promotion. Applications of all applicants had to be scrutinized to ensure that they fulfill the recruitment conditions stipulated in the rules. This procedure is onerous and time consuming, it is to ensure that confidential reports and vigilance clearance of the applicants are available in full. If such reports/records are not available they have to be called from the various departments in which the deputation - applicants had worked.
10. Promotion is a normal incidence of service but the process of promotion cannot be vitiated by non-observance of procedures and formalities and should ensure that the cases of all (eligible/ineligible) applicants who are aspirants for the post are properly considered to ensure that justice is done to all. It is not the function of the Court to direct the executive the manner in which the relative merits and fitness of the candidates applying for a post should be assessed or the time-period in which this exercise should be completed. On a perusal of the sequence of activities associated with the selection process, it is clear that the effort of respondent nos.2 and 3 was to ensure that compliance of due procedures of the composite method of recruitment was correctly and properly observed to render justice to all the applicants.
11. There was no unreasonable or unexplainable delay that can be attributed to the respondents. The procedure for selection was neither arbitrary, illegal or vitiated by malafides.
12. The Original Application is dismissed. No costs.
(P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv