Central Administrative Tribunal - Delhi
Shri Balwinder Singh vs Union Of India : Through on 23 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No. 1978/2010 New Delhi, this the 23rd day of December, 2011 CORAM: Honble Mr. Justice V.K. Bali, Chairman Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. Shri Balwinder Singh, S/o Late Shri Prem Singh, Working as DMS-II, Under Dy. Controller of Stores, Northern Railway, General Store, Shakurbasti, New Delhi 110 034 2. Shri N.C. Sharma, S/o Shri C.R. Sharma, Working as DMS-II, Under Dy. Controller of Stores, Northern Railway, General Store, Shakurbasti, New Delhi 110 034 Applicant (By Advocate: Ms Jyoti Singh, Sr. Advocate with Shri Manjeet Singh Reen, Shri Aman Deep Joshi and Ms Saahila Lamba) Versus Union of India : Through 1. The General Manager, Northern Railway, Baroda House, New Delhi 2. The Deputy Chief Material Manager, Northern Railway, General Store Depot, Shakurbasti, New Delhi 3. Shri Hemant Kumar Swamy, S/o Late Shri Har Pratap Swamy, Working as DMS-III, Under Dy. CMM, NR, SSB, New Delhi 4. Shri Randhir Chand Nath, S/o Shri Nek Chand, Under Dy. CMM, NR, SSB, New Delhi 5. Shri Baidya Nath Jha, S/o Shri Kapil Dev Jha, Under SMM/ETD/Ghaziabad (UP) 6. Shri Shyam Bahadur, S/o Shri Ram Bahadur, Working as DMS-III, Under SMM/ETC, Ghaziabad (UP) 7. Shri Dhian Singh, S/o Shri Rikhi Ram, Working as HC, Under SMM/ETC/Ghaziabad (UP) 8. Shri Manvinder Singh, S/o Shri Gulzar Singh, Working as HC, Under SMM/DSL/TKD, New Delhi 9. Shri Shyam Lal, S/o Shri Kishori Lal, Working as DMS-III, Under Dy. CMM, NR, SSB, New Delhi Respondents (By Advocates: Shri V.S.R. Krishna & Shri Rajender Khattar for official respondents, Shri A.K. Behera, Ms Meenu Mainee and Sh. B.S. Mainee for private respondents) O R D E R
By Dr. Veena Chhotray:
A Division Bench of this Tribunal vide its common order dated 28.7.2011 in the OA 2086/2010 and the OA 1978/2010 had placed the matter before the Honble Chairman for referring the issue of maintainability of the two OAs as well as the point of law raised herein for consideration by a Full Bench of this Tribunal. This was done in order to avoid conflicting views between different Benches of the Tribunal.
Para 9 of this Order had recorded the DBs crystallized observations regarding the points deserving consideration of the Full Bench:
9. To conclude, while noting the respective submissions of the parties before us regarding the maintainability of the present OAs, we have refrained from arriving at any conclusive finding about the same. However, in the light of the respective submissions, particularly those by the official respondents, we have not opted for a summary disposal of the OAs. At the same time we have also found relevant the plea taken by the applicants about the need for consideration of the issue of law, which had not been considered by the learned Coordinate Bench of the Tribunal while deciding OA 1649/1997 in its order dated 9.7.2003 and thus the impact of the specific provision under Para 302 of the IREM Vol. I on the issue of reckoning ad hoc officiation of a promotee employee for the purposes of seniority. Being respectfully seized with the decisions of the Honble Apex Court in Suraj Prakash Gupta as also Swapan Kumar Pals cases (supra) and reiterated in the recent judgment in Dharam Pals case also, we find the issue raised deserving consideration by a Full Bench of the Tribunal.
2. The Full Bench, constituted as per the directions of the Honble Chairman, vide its interim order dated 21.9.2011 on consent of the parties took the view that the entire case would stand referred to the Full Bench for determination of all the points raised therein.
After hearing arguments, the OA 2086/2010 was dismissed by dictating an order in the open Court on 19.10.2011.
3. The issues raised in respect of the OA 1978/2010 have been heard at length, keeping in view the reference made by the DB. The learned senior counsel Ms Jyoti Singh would argue for the applicants, the learned counsel Shri V.S.R. Krishna for the official respondents and the learned counsel Shri A.K. Behera for the private respondents.
4. The OA 1978/2010 (Shri Balvinder Singh & Anr vs UOI & Ors): The basic issue in this OA revolves round grant of seniority from the date of ad hoc promotion and its ramifications on other employees. The specific grievances of the applicants pertains to the impact on them as a result of the Tribunals directions vide the order dated 12.12.2008 in the OA 1900/2007 (Hemant Kumar Swamy & Ors vs UOI & Anr.) following the decision dated 9.7.2003 passed in the OA 1649/1997 (Shri Mohender Singh & Ors vs UOI & Anr).
4.1 The basic order in this case was passed in the OA 1649/1997 (Shri Mohender Singh & Ors vs UOI & Anr). In this OA there were 59 applicants, initially appointed as Class IV during the period 1974 1989. They had further been promoted to Class-III as LDCs and MCCs (Mobile Checking Clerks) first on ad hoc basis on various dates from 1981 to 1987 and subsequently on regular basis in the year 1993. The applicants were agitating claims for reckoning their seniority in Class-III from the dates of their ad hoc promotions. The OA had been finally decided in favour of the applicants vide the Tribunals order dated 9.7.2003 (Annex A/3).
4.2 In the OA 1900/2007 (Hemant Kumar Swamy & Ors vs UOI & Anr.), there were 7 applicants working as Head Clerks and Senior Clerks in the Railways. They had approached this Tribunal seeking extension of the benefits in the OA 1649/1997 and grant of seniority from the date of ad hoc promotion as Clerks with consequential benefits. The view taken was that as the Writ Petition filed against the Tribunals order in the OA 1649/1997 had been withdrawn, consequent to an out of Court compromise between the parties, the Tribunals order had attained finality. The OA was allowed partly considering the applicants as similarly situated and treating the earlier order of the Tribunal as a precedent. The consideration was to emanate into a well reasoned order.
4.3 Both the applicants of the instant OA 1978/2010, Shri Balwinder Singh and Shri N.C. Sharma had initially been appointed on regular basis in Class-III as Clerks. After their subsequent promotion as Senior Clerks, Depot Material Superintendent Grade-III, their names had been included in the provisional seniority list of DMS Grade-II circulated in the year 2001. It would also be submitted by the learned counsel, Ms Jyoti Singh that both the applicants had been promoted as DMS-II on 1.11.2003.
The applicants are aggrieved at the series of actions taken by the respondents in pursuance of the Tribunals directions in the OA 1900/2007. This has meant their de-empanelment and reversion from DMS-II to DMS-III. By way of relief, the OA seeks quashing the following impugned orders with all consequential benefits:-
a) The show cause notice dated 20.6.2009 regarding withdrawal of the promotional benefits as DMS-II(Annex. A/1)
b) The show cause notice dated 10.3.2010 for de-empanelment and reservation from the post of DMS-II to DMS-III w.e.f. 1.11.2003, stated to be in implementation of the decision of the Tribunal in OA 1900/2007.
c) The Notice dated 13.5.2010 for modified selection to fill up the DMS-II Grade 5500-9000 on account of restructuring of the cadre w.e.f. 1.11.2003.
d) Order dated 19.5.2010 regarding de-empanelment and reversion from DMS-II to DMS-III.
5. Preliminary Objections:
5.1 The reference from the DB states about preliminary objections having been raised on behalf of the private respondents in respect of the maintainability of the OAs. These essentially were two fold: (i) Issue of Limitation; (ii) the applicants in the OA 1978/2010 being precluded from agitating the claims in view of the compromise effected by Shri J.K. Chadha and Others (the applicants were parties in this OA) and withdrawal of the Writ Petition before the High Court in view of the out of court compromise.
5.2 While arguing before us, the learned counsel for the private respondents, Shri A.K. Behera would admit about limitation issue not being involved in the OA 1978/2010. However, the learned counsel would press the issue of the out of the court compromise by the applicants as parties in J.K. Chadhas case (OA 658/2004). It would also be argued that the applicants had not disclosed about the compromise and thus had suppressed a material fact. To support his contention, the learned counsel would advert to Para 4.10 (iv) of the OA.
Para 4.10 (iv) of the OA, though mentioning about the withdrawal of the Writ Petition after the rival contesting parties having come to an amicable settlement, has not mentioned specifically about the applicants being party to the same. However, despite a query from the Bench as to in what manner such non-disclosure of the said compromise would constitute a material fact that could tilt the balance in favour of a particular party; the learned counsel Shri Behera would not be able to furnish a satisfactory response.
The aforesaid contention would be rebutted by the applicants learned counsel, Ms. Jyoti Singh. Further, the official respondents learned counsel, Shri V.S.R. Krishna too would also not join Shri Behera in raising these objections.
This issue of the out of the court compromise, in which the applicants were also parties, would be discussed a little more in details in the subsequent paragraphs. However, suffice it is to say at this stage that this preliminary objection raised by the private respondents against the maintainability of the OA is not found to be tenable. As stated above, in this OA, the bar of limitation has not been contended even by the learned counsel for the private respondents.
Thus, the issues raised in the OA would need to be considered on merit.
6. The broad framework:
In order to take a clear view on the issues raised for consideration of the Full Bench, we need to delineate the broad framework of such consideration.
6.1 The applicants are aggrieved at the adverse impact on them as a consequence of the Tribunals directions in the OA 1900/2007(Hemant Kumar Swamy & Ors). Since the benefits in this OA had been extended essentially as per the decision in the OA 1649/1997 (Mohinder Singh & Ors); the basic issue for our consideration is the law as laid down by the Tribunal in the OA 1649/1997.
Subsequently a Writ Petition (No.2237/2004) challenging the order in OA 1649/1997 had been filed by the Union of India. The applicants, who along with certain other employees had at that very time filed an OA No.658/2004 (J.K. Chadha & Ors), had been impleaded as interveners before the High Court. An out of court compromise was reached between the contesting parties which included on the one side Shri Mohinder Singh and 58 other applicants in the OA 1649/1997 and on the other side Smt. Renu Sharma & Ors in WP (C) No.6706-10/2004 and Shri J.K. Chadha & Ors in OA No.658/2004 (Annex. RR/3). In the background of this compromise, on the prayer of the Union of India, the Honble High Court of Delhi vide its order dated 14.07.2006 had dismissed the Writ Petition as withdrawn (Annex. A-11).
The Writ Petition in this case was not disposed of by the High Court on merits. The matter came to an end on account of compromise arrived at between the parties. The judgment passed by this Tribunal has neither thus been confirmed nor overruled, and therefore, it would be permissible by this Tribunal to examine the correctness of the decision in the OA aforesaid.
6.2 The learned senior counsel for the applicants, Ms Jyoti Singh would raise two fold objections against the decision in the OA 1900/2007 (Hemat Kumar Swamy & Ors). It would be submitted by her that whereas the applicants in Mohinder Singhs case had started agitating their claims from 1997 onwards; the applicants in Hemant Kumar Swamys case had remained silent for all these years. They had become wiser only after the decision of the Tribunal in Mohinder Singhs case. Thus, this was a case of seeking redressal of grievances in a judicial forum after nearly 17 years of the cause of action. The other contention of the learned counsel would be about the parties likely to be affected adversely (like the applicants) not having been impleaded in Hemant Kumar Swamys case.
As the Full Bench is to consider existing judgments of the Tribunal; as per the mandate, this can only be by way of overruling that judgment and not setting it aside. As per the settled proposition of law, an existing judgment cannot be set aside on grounds of its having been barred by limitation or vitiation by non-impleadment of necessary parties. Hence, these pleas of the applicants learned counsel are not found relevant in the present context.
6.3 It has also been contended on behalf of the applicants that their basic grievance is against the adverse impact on them of the Tribunals directions in the OA 1900/2007 (Hemant Kumar Swamys case). The learned counsel Ms Jyoti Singh would be at pains to reiterate that the applicants are not going back on their commitment as per the out of court compromise. The text of this compromise (Annex RR/3) is reproduced as here under:
(A) Shri Mohinder Singh & 58 others applicants in OA No.1649/97 will accept seniority below those who have already empanelled and promoted as OS-II in August, 1998 and DMS-II in December, 2002 in Grade Rs.5500-9000 only but will not accept lower seniority in the posts like Hd. Clerk/DMS-III, Sr. Clerk & Clerk as the seniority of these grades has already been re-fixed by Administration in compliance with OA No.1649/1997 of CAT/New Delhi.
(B) We, both Smt Renu Sharma & Others in WP No.6706-10/2004 and Shri J.K. Chadha & Others in OA No.658/2004 are also agreed to implement the seniority of Sh. Mohinder Singh & 58 Others as stated in the aforesaid Para-A. We will withdraw the court cases if the Agreement is executed by the Railway Administration accordingly. Thus, as per this compromise, the applicants had accepted seniority below those who had already been empanelled and promoted as OS-II in August, 1998 and as DMS-II in December, 2002.
This aspect too would have an important bearing in the final view to be taken by the Full Bench regarding the Tribunals DB decisions in the OA 1649/1997 and the OA 1900/2007.
7. Examination of the issue on merit:
7.1 The issue involved in the OA 1649/1997 (Mohinder Singh & Ors) pertained to the reckoning of seniority from the date of ad hoc promotion. This was in the context of the relevant Rules under the Railways. The OA had initially been decided by the Tribunals order dated 25.1.2001 with directions to the respondents to determine the seniority of the applicants in Class III posts of LDC/MCC reckoning their ad hoc officiation with all consequential benefits. However, on a challenge to this order vide Civil Writ Petition No.963/2002, the matter had been remitted for reconsideration to the Tribunal as to whether while granting promotion the requirements of Para 216 of The Railway Establishment Manual (Vol-I) had been complied with. Vide the order dated 9.7.2003 the Tribunal had considered this aspect at length and given an affirmative finding. However, the provisions of Para 302 of the IREM Vol-I prescribing the principles for determining seniority of non-gazetted Railway servants in the initial recruitment grades had not been considered by the Tribunal. This was by relying upon certain decisions of the Honble Apex Court. The relevant extracts from para 33 of the order are reproduced below:
The question of applicability of Para 302 of the IREM has no relevance in view of the Constitutional Bench decisions of the Apex Court in Direct Recruit Class II Engg. Officers Assn.s case supra as well as in R.K. Sains case supra. As held by the Apex Court in State of Haryana v. Piare Singh, 1992 (3) SLJ SC 34, if an employee on ad hoc basis continues uninterruptedly for long years, there arises a presumption as to availability of the work as well as vacancy. 7.2 The applicants have questioned the non-consideration of the above IREM Para 302 by the learned DB of the Tribunal while deciding the issues in Mohinder Singhs case. The reasons cited for such non-consideration would also be questioned by the learned senior counsel Ms Jyoti Singh.
7.3 The learned counsel Ms Singh would advert to the Apex Courts decision in Union of India vs Dharam Pal etc., 2010 (1) AISLJ 113, in support of her contentions. It would be submitted by the learned counsel that the facts of this case were quite identical to the present case and reversing the view taken by the Tribunal and upheld by the Honble Delhi High Court, the Honble Apex Court had held that ad hoc service gives no benefit for seniority. The learned counsel would make us run through the important segments of this judgment. It would also be contended that while holding this view, its earlier decision in Direct Recruit Class-II Engineers case (supra) had been duly considered. The following extracts from para 14 of the judgment would be highlighted by the learned counsel:
.. We have noticed hereinbefore that the question in regard to inter se seniority amongst the promotees on the one hand and the direct recruits on the other, are governed by Rule 302 of the Rules. It is now a well settled principle of law and in respect whereof there is absolutely no quarrel that in view of the decision of this Court in Direct Recruit Class-II Engineering Officers' Association & ors. vs. State of Maharashtra & Ors. 1990 (2) SLJ 40 (sc)=(1990) 2 SCC 715], an employee appointed to a post according to rule would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation. It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority. Rule 216 of IREM in no uncertain terms provides that such an appointment should be made for short duration vacancy only. Such orders of promotion are required to be made only upon obtaining the approval of Chief Personnel Officer. xxxx. Further it was held:
When an ad hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit (supra), the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule. (emphasis supplied) 7.4 The learned counsel for the applicant would further submit about the consideration by the Honble Apex Court in Dharma Pal Singhs case of its earlier decision in Swapan Kumar Pal & Ors Vs Samitabhar Chakraborty & Ors, 2001 (3) SLJ 1 (SC). In this case also considering the provisions of Para 302 of the IREM, the Honble Apex Court had held that the seniority could be fixed from the date of promotion after regular selection by due process. Further, it had been held that the period of ad hoc promotion preceding that date was not to count towards seniority. Drawing a contrast with its decision in Suraj Prakash Gupta vs State of J&K, 2000 (4) SLR 486 (SC), the point about the existence of an enabling provision under the rules for such regularization of promotion from an anterior date had also been dealt upon in Dharam Pal Singhs case.
8. The learned counsel for the official respondents, Shri VSR Krishna, would dwell upon the administrative problems arising due to the judgment in Mohinder Singhs case. Further, while commenting upon the merit of the issues, the learned counsel would support the contentions being made on behalf of the present applicants.
9. However, serious objections to the aforesaid contentions made on behalf of the applicants would be coming forth from the private respondents. The learned counsel, Shri A.K. Behera would have a number of arguments to submit:
9.1 It would be contended that both the applicants of the present OA had been appointed as Clerks by way of direct recruitment in the year 1987. By which time a number of Class-IV employees had already been working in Class-III posts on ad hoc basis after clearing a suitability test. The applicants in Hemant Kumar Swamys case were senior to Mohinder Singh & Ors, who had got relief for counting of their seniority from ad hoc appointment as per the Tribunals directions. Thus, as per the learned counsel, the applicants in Hemant Kumar Swamy also deserved to be given a similar relief.
On a specific query from the Bench as to whether such a stand has been taken in their counter reply, the learned counsel would in all fairness submit about a pleading to that effect not having been incorporated therein. That a stand on these lines was taken by the applicants even in the Original Application no. 1900/2007, is not revealed from a perusal of the Tribunals order dated 12.12.2008 (Annex. A/7).
Hence, this submission by the learned counsel in the present context is not found to be relevant.
9.2 Para 216 of the IREM Vol.-I would be adverted to contend that it did contain a provision for making ad hoc promotions. The learned counsel, Shri Behera would particularly refer to the Tribunals observations in para 31 of the order in Mohinder Singhs case holding that the requirements of para 216 had been complied with. This is extracted as here under:
31. Admittedly Para 216 permits ad hoc promotion against selection post pending regular selection. The same is to be accorded on approval of the concerned authorities. In the present case, applicants who were working in Group IV, after being subjected to a suitability test, were promoted on ad hoc basis as per their seniority. It is also not disputed that the above promotion was pending regular selection, and is made against clear vacancies meant for applicants in their quota as prescribed under the Rules. It is also not disputed that subsequently, applicants have appeared in regular selection and were though qualified were not empanelled due to zone of consideration and limited vacancies. In the aforesaid conspectus as the ad hoc promotion which was permissible under the Rules, and has been ordered after adjudging suitability of the applicants with the prior approval of the competent authority, applicants who are undisputedly qualified in all respects as per the recruitment rules for Group III posts, the requirements of Para 216 have been complied with. This is not the case of respondents that ad hoc promotion was either impermissible or the applicants were not qualified to be accorded ad hoc promotions. The Apex Court in T. Vijayans case supra, in identical situation, taking resort to Rule 216 allowed the seniority to be reckoned from the date of continuous officiation on ad hoc basis. This is also in consonance with the Direct Recruit Class-II Engineering Associations case supra. The fact of these applicants having subsequently qualified the written test as well as the viva-voce as required for regular promotion would also be highlighted by the learned counsel.
9.3 It would be submitted that the ad hoc promotions in this case had continued for 11 years. The Para 302 of the IREM, being relied upon by the applicants, would be contended not to deal with a situation under which ad hoc promotions had been allowed to continue for a long period and regularized subsequently. To buttress this argument, reliance placed on the Constitutional Benchs decision in R.K. Sens as reflected from para 36 of the Tribunals Order in Mohinder Singhs case would be adverted to. This is also being extracted below:
36. The Constitutional Bench decision in R.K. Sains case supra, laid down the proposition that who possess the requisite qualification prescribed to a particular post and is appointed with the approval and consultation with the approval of the competent authority, and thereafter continuous in the post for fairly long period, in the case of applicants for more than ten years, such appointment cannot be treated as a stop gap or fortuitous, then extension of those appointees to have their continuous length of services reckoned for seniority is erroneous. We respectfully follow the aforesaid ratio.
10. We have carefully heard the respective submissions by the learned counsels from all the sides and also perused the material on record. The following aspects are found relevant for the issues at hand:-
10.1 Relevant Rules:
The consideration by the Tribunal in its Judgment dated 9.7.2003 in Mohinder Singh & Ors case (supra) was a limited aspect of the requirement of Para 216 of the IREM having been complied with. This was in terms of the specific reference by the Delhi High Court while remitting the case to the Tribunal for fresh consideration. The rule 216 pertains to the guidelines for ad hoc promotion. The other rule regarding determination of inter-se seniority prescribed in Para 302 of the IREM, though referred by the respondents counsel, had not been found relevant by the Ld. Bench.
However, in the case of Union of India Vs Dharam Pal etc. relied upon by the Ld. Senior Counsel Ms Jyoti Singh, while dealing with the same issue of reckoning of seniority in Class III from the date of ad hoc promotion, the Honble Apex Court had reviewed the rules relevant to promotion as well as determination of seniority. Besides, the rules as per Paras 216 and 302, the rule as per para 213 of the IREM had been found relevant.
10.1.1 Para 213 IREM Vol-I:
According to this Rule dealing with promotion, the basic guiding principle is that both in selection as well as non selection posts a person may be promoted only if he is considered fit to perform the duties attached to the post. Further, it has been laid down that for judging fitness to hold the post, the competent authority may prescribe a specified test as a precedent pre-condition.
10.1.2 Para 216 of IREM Vol-I:
One of the foundational premises of the Tribunals order dated 9.7.2003 was that the Rule 216 permitted ad hoc promotion against selection posts pending regular selection. As the applicability of this rule, in isolation of the other relevant provision concerning determination of inter-se seniority, has been questioned by the present applicants in Balvinder Singhs case, the provisions of this rule are extracted below:
216.A. Ad hoc promotion against selection and non-selection posts:-
(i) Ad hoc promotions should be avoided as far as possible both in selection and non-selection posts, and where they are found inescapable and have to be made in the exigency of service, they should be resorted to only sparingly and only for a short duration of 3 to 4 months. The ad hoc promotion should be ordered only from amongst the senior most suitable staff. As a rule a junior should not be promoted ignoring his senior.
(ii) The following further guidelines should be adhered to while ordering ad hoc promotions:-
(a) In case of non-selection posts, which are filled on the basis of seniority cum suitability while there is no provision for any lengthy waiting list. The processing involved being not unduly cumbersome or time consuming the post shall be filled after following the prescribed procedure quickly. When these posts are to be filled by trade test, this should be conducted systematically. Necessity for ad hoc promotion is thus obviated.
(b) In regard to selection posts, it is essential that all the selection should be conducted regularly as per extant instructions. While there is no objection to ad hoc promotions being made in leave vacancy and short duration vacancy, adhoc promotion against regular promotion should be made only after obtaining Chief Personnel Officers approval. Proposal sent to Chief Personnel Officer for ad hoc promotion against regular vacancy should indicate detailed justification as to why regular selection could not be held. Chief Personnel Officer should keep record of having accorded approval to such ad hoc promotion and review the progress made in filling up these posts by selected persons every month. Chief Personnel Officer should also review selection to all posts afresh, whether such posts are controlled either at the Divisional level or at extra Divisional level. He should also keep the record of the categories where he has to approve ad hoc promotions and these records should be available to the Boards Officers on their visit to Railways.
(c) Notification for adhoc promotions against selection posts should specifically include a remark to the effect that the person concerned has not been selected for promotion and that his temporary promotion gives him no right for regular promotion and that his promotion is to be treated as provisional. For the purpose of drawing his pay which should not be drawn for more than three months without General Manager specific sanction. The General Manager should issue provisional sanction for periods exceeding six months at a time and these powers should be exercised by the General Managers/Additional General Managers personally or by his senior Dy. General Manager. While dealing with this rule in Dharam Pals case, the Honble Apex Court had considered the rule in its entirety rather than taking a fragmented view. The consideration as revealed from the judgment in Dharam Pals case is broadly summed up as below:
(ii) The defining postulate of IREM Rule 216 dealing with ad hoc promotion against selection and non-selection post is that such promotions are meant to be resorted to extremely sparingly and only in unavoidable situations. Thus, these enabling provisions have been hedged in with some basic inbuilt safeguards by way of operational guidance.
The first distinction has been drawn on the basis of the nature of posts whether it is a selection or non-selection post. Para 216 (B) dealing with selection post lays down in regard to selection posts, it is essential that all the selection should be conducted regularly as per extant instructions. Besides, whenever ad hoc promotion is otherwise then a leave vacancy or short duration vacancy, it should only be made after obtaining the Chief Personnel Officers approval who is expected to ensure that there is a detailed written justification as to why regular selection could not be held besides expected him to make a detailed and regular periodical review.
The Rule 216 A (i) (c) also prescribes a mandatory stipulation regarding ad hoc promotion being purely temporary, provisional and confirming on the concerned employee, no right for regular promotion. It is, therefore, found that the consideration of Rule 216 as in Mohinder Singhs case is not in consonance with the view taken subsequently by the Honble Apex Court in Dharam Pals case.
10.1.3 Para 302 IREM Vol-I:
This para prescribes principles for determination of seniority of non-gazetted Government servants under the Railways in the initial recruitment grades. In Mohinder Singhs case, vide the OA 1649/1997, the respondents order dated 12.4.1997 was under challenge. By this impugned order referring to Para 302 of the IREM for assessment of seniority from the date of ad hoc officiation had been rejected and their seniority was ordered to be maintained from the date of their regular promotion (Para 12 of the Order). In course of hearing of the case, on behalf of the respondents it had been contended that Rule 216 does not envisage counting of seniority on ad hoc basis and seniority is to be reckoned from the date of regular appointment in case of promotees (para 24 of the Order). However, this had not found favour with the Ld. Division Bench of the Tribunal and in Para 33, the findings had been recorded about Para 302 of the IREM having no relevance to the case in view of certain judgments of the Apex Court Non consideration of the provisions of Para 302 while deciding the OA 1649/1997 in favour of the applicants therein, is a major plank of the case of the present applicants.
10.2 Major judical rulings:
The following major judicial rulings on the subject have been adverted before us:-
Direct Recruit Class II Engineering Officers Association & Ors vs State of Maharashtra & Ors {JT 1990 (2) SC 264} State of West Bengal & Ors vs Aghore Nath Dey & Ors {(1993) 3 SCC 371} T. Vijayan & Ors vs Divisional Railway Manager & Ors {(2000) SCC (L&S) 444} Rudra Kumar Sens case Swapan Kumar Pal & Ors vs Samitabhar Chakraborty & Ors (2001 (5) SCC 581} Union of India vs Dharam Pal etc. {AISLJ 2010 (1) (SC) 110 Central Council for Research in Homeopathy vs Bipin Chandra Lakhera & Ors {AISLJ VIII 2011 (2) 418} Besides, a few OAs have also been referred as per the written submissions dated 30.11.2011 on behalf of the applicants.
The cases at serial nos. 1, 2, 3 and 4 above had been considered by the Division Bench of the Tribunal in its order dated 9.7.2003. Besides, serial nos 3 and 4 have also been relied upon by the learned counsel for the private respondents before us, Shri A.K. Behra. The judgments at serial numbers (v) to (viii) have been cited on behalf of the present applicants.
10.2.1 Direct Recruit Class II Engineering Officers Association: (a) In this case considered by the Constitution Bench of the Honble Apex Court, the basic law on the subject of reckoning of seniority from the date of ad hoc promotion was laid down. The matter pertained to fixation of seniority inter se of promotees and direct recruits in the context of Maharashtra Service of Engineers Rules. The promotees had been appointed to officiate as Deputy Engineers on continuous basis after following the procedure applicable to regular promotions. The issue was whether they should be placed lower in seniority list to the direct recruits entering service after such promotees had been appointed but before they had been confirmed. The Honble Apex Court held that the period of continuous officiation by a Government servant, after appointment according to the procedures, has to be taken into account for determining his seniority, which cannot be determined on the sole test of confirmation.
Certain broad conclusions had been laid down in the concluding para 44 which prescribed the basic law on the subject. We are extracting below sub-para A and B, relevant to the present case:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules the period of officiating service will be counted.
(b) While holding Para 302 of IREM as not relevant to the issues in Mohinder Singhs case, the Ld Division Bench had, inter alia, adverted to the decision of the Apex Court in Director Recruits Class-II Engineering Associations case. This view was not found tenable by the Honble Apex Court in its subsequent judgment in Dharam Pals case as indicated above in para 7.3.
(c) Of the two alternate scenarios mentioned in Direct Recruits Class-II engineers case (conclusions A & B) in which one did the facts of Mohinder Singhs case fall; there was a gray area, as it was not a clear black or white situation. As the respondents learned counsel has submitted, for ad hoc promotion there had been a suitability test through a written test to adjudge the working knowledge of the candidates. However, for a regular selection, there had been a written test with viva voce besides a positive act of selection leading to an empanelment considering the number of vacancies available (paras 22 and 23 of the Order). The applicants, however, were placing reliance on their qualifying the required test for regular promotion on subsequent dates. Whereas ad hoc promotions had been given during the periods 1981 87, the requisite test had been cleared at various points of time, finally upto 1993. A distinction was also sought to be made between qualifying the selection and empanelment.
The Tribunal had found the contention of the applicants as acceptable. The relevant extracts from Para 31 of the Order reflecting the findings of the learned DB have already been incorporated in para 9.2 above.
(d) Suffice it is to note at this stage that it was not a clear case of conclusion A of Direct Recruits Class-II Engineering Association.
Whether the case falls under conclusion B, we would need to refer to the Apex Courts judgment in Aghore Nath Deys case.
10.2.2 State of West Bengal vs Aghore Nath Dey:
(a) In Aghore Nath Deys case, the Honble Apex Court had elucidated further the interpretation of the conclusions A & B as per the Constitution Benchs judgment in Direct Recruits Class-II Engineering Officers Associations case. It was clarified that both these conclusions have to be read harmoniously. Further, it was stated that the corollary in conclusion A expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement. Such a situation could not be covered under conclusion B. As per the Honble Apex Court, conclusion B had been added to cover a different kind of situation wherein the appointments were otherwise regular, except for deficiency of certain procedural requirements laid down by the rules. For determining whether a particular case falls under the purview of conclusion B certain objective parameters were prescribed. These are as below:
(a) Whether the initial appointment was made against an existing vacancy;
(b) whether the initial appointment was limited to a fixed time or performance by the order itself;
(c) Whether it was made subject to deficiency in the prescribed requirement for adjudging suitability which was subsequently cured at the time of regularization. However, after laying down these parameters, the Honble Apex Court had found it necessary once again to emphasize the core points.
xxx. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rule has to be cured at the first available opportunity without any default of the employee ..
(b) The learned counsel for the official respondents, Shri V.S.R. Krishna has once again reiterated his stand before the Ld. Division Bench while considering OA No. 1649/1997. He would seek to impress the point about the applicants in Mohinder Singhs case not having been found fit for empanelment under the regular selection process and certain other candidates, who had been empanelled, deserving a higher seniority than them.
(c) Thus the case of the applicants in Mohinder Singhs case did not fall clearly in conclusion B of the Direct Recruits Class-II Engineering Associations case either.
10.2.3 T. Vijayan & Ors vs Divisional Railway Manager & Ors:
(a) The 2003 order had also relied upon T.Vijayans case while returning a favourable finding in favour of the applicants in the OA 1649/1997.
This was a case pertaining to inter se seniority between direct recruits and promotees. The peculiar facts of the case were that the respondents had been promoted first as Firemen on ad hoc basis between the years 1987-90. The process for regular selection against promotion quota although started in 1987 was completed in 1992, and had culminated in selection of all the respondents, who were consequently regularized with reference to 16.12.1991. During the intervening period, pursuant to the advertisement in 1985 appellants had been selected in direct recruitment quota in 1988 and after two years training had been appointed as first Firemen in the year 1990. The letters of appellants appointments had made clear that there seniority was subject to finalization of selection for the promotion quota which was already in progress. In such circumstances, it was held by the Honble Apex Court that even though the appellants had been appointed prior to the respondents regularization, they could not claim seniority over the respondents. Further, it was held that the respondents were entitled to count their ad hoc service towards seniority.
Para 16 of the Tribunals order in Mohinder Singhs case had recorded the applicants reliance on T.Vijayans case to contend about para 216 entitling the benefit of ad hoc service rendered by the applicants for reckoning their seniority. Their contention had been found acceptable by the learned DB while arriving at its conclusive findings in para 31.
(b) However, the Honble Apex Court in UOI Vs. Dharmapal and Ors. Case had taken a different view. The relevant extracts from Para 14 of the judgment are reproduced as hereunder:-
Apart from the fact that in T. Vijayan (supra), the effect of Rule 302 of the Rules had not been taken into consideration, the question as to whether the seniority of the employees could have been reckoned only on the basis of their date of initial appointment irrespective of the fact as to whether in doing so the mandatory procedure laid down in the rules have been followed or not, had not been taken into consideration. It proceeded on the premise that as IREM permits ad hoc promotion, the date on and from which the employee concerned was promoted on an ad hoc basis would be relevant. It was decided keeping in view the peculiar fact situation obtaining therein.
(c) Thus, the reliance placed by the learned DB on T.Vijayans case while deciding the OA 1649/1997 is not found to be tenable as per the subsequent view taken by the Honble Apex Court in Dharampals case. We may also at this point mention once again that this is one of the cases relied upon by the learned counsel Shri A.K. Behera representing the private respondents.
10.2.4 Swapan Kumar Pal & Ors. Vs. Samitabhar Chakraborty & Ors.
(a) The basic contention of the present applicants about the decision in Mohinder Singhs case not propounding valid law on the subject is reinforced by their contention of non consideration of the Apex Courts decision in Swapan Kumar Pals case. The importance of this judgment is because, developing the law on the subject further, it held that while considering a claim for reckoning of seniority from the date of ad hoc promotion, there must be an enabling provision under the rules for such regularization from an anterior date.
In Swapan Kumar Pals case, the issue involved was inter se seniority between promotees through limited departmental examination and promotees on the basis of seniority-cum-merit. Rules prescribing the criteria of seniority-cum-merit for promotion had required holding of suitability test at regular intervals. However, such tests were delayed on account of stay order from the courts and, therefore, ad hoc promotions had been made. In such circumstances, although the suitability test conducted later had culminated in regular promotion of the ad hoc promotees, it was held that the period of their ad hoc promotion could not be treated as regular promotion so as to count towards seniority. Further, holding the relevant rule for the purpose as prescribed in para 302 of the IREM; it was also held that in the absence of a rule to the contrary, the subsequent regular promotion would not relate to the date of ad hoc promotion.
In this case a contrast had been drawn with Suraj Prakash Gupta Vs. State of J&K (supra), where J&K Engineering Rules had provided specific provisions enabling regularization from an anterior date subject to fulfillment of certain conditions. Even the plea of delay in the departmental authorities organizing the suitability test at regular intervals, by way of reinforcing the justification for reckoning of ad hoc service towards seniority, was brushed aside. The relevant extracts as quoted in the judgment in Dharama Pals case are reproduced below:-
.The next case relied upon by Mr. Rao is the case of Suraj Prakash Gupta v. State of J&K. In the aforesaid case, on consideration of the relevant rules governing the service conditions of the Assistant Engineers of the Jammu and Kashmir Government, the Court had observed that ad hoc or temporary service of a person, appointed by transfer as an Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularized through the Public Service Commission and Departmental Promotion Committee from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and his seniority will count from that date. The aforesaid conclusion was drawn because of the provisions of Rule 23 and Rule 15 of the Jammu and Kashmir Rules but in the case in hand, there is no provision, which has been brought to our notice, which enables the appointing authority to regularize a promotion from an anterior date, though the suitability test is held at a later date. In the absence of any such provision in the Rules in question, the ratio of the aforesaid decision, on interpretation of the relevant rules of the Jammu and Kashmir Engineering Rules will have no application. In the aforesaid premises, we have no hesitation in coming to the conclusion that merely because a suitability test had not been held at regular intervals an employee promoted on ad hoc basis can claim that it is a regular promotion after due process of selection. As such the seniority of promotees in the cadre of senior Clerk can be counted only from the date of regular promotion, after due process of selection.
(b) The DBs order dated 28.7.2011 while recommending the OA for consideration of the Full Bench, has in para 8.3 noted that the decision of the Tribunal 9.7.2003 had not considered either Swapan Kumar Pal & Ors. or Suraj Prakash Gupta Vs. Jammu & Kashmir (2000 (4) SLR 486 (SC)]-relied upon in the former case-even though both these judgments had been delivered anterior in time.
The contentions by the private respondents learned counsel Shri AK Behera - about para 216 or para 302 not envisaging a situation of an ad hoc promotion, allowed to continue for a long period and regularized subsequently - are found to be misconceived. The relevant point is about there being no rule providing for antedating regularization from the date of ad hoc promotions and consequent reckoning of seniority. On the other hand, the relevant rule in para 302 stipulates about determination of seniority only from the date of regular promotion.
Even at the cost of repetition, we would like to once again refer to the observations of the Honble Apex Court in para 14 of the judgment in Dharam Pals case:
When an ad hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit (supra) the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule. (emphasis supplied)
(c) Non-consideration of the decisions of the Honble Apex Court in Swapan Kumar Pals case (supra) and Suraj Prakash Guptas case are certainly vital omissions in interpretation of law by the learned DB in Mohinder Singhs case.
10.2.5 Rudra Kumar Sain & Ors. Vs. Union of India & Ors.
(a) One of the cases relied upon by the learned DB, while allowing the claims in Mohinder Singhs case, was the Apex Courts judgment in R.K. Sains case. Relevant para 36 of the order has already been incorporated in Para 9.3 above.
(b) In R.K. Sain & Ors, the Honble Apex Court was dealing with the issue of determination of inter se seniority between promotees and direct recruits under the Delhi Higher Judicial Service Rules, 1970. The question raised was whether while determining inter se seniority between promotees and direct recruits, the guidelines and directions given by the Apex Court in the case of OP Singla & Anr. Etc. Vs. Union of India & Ors., 1985(1) SCR 351, had been duly followed or not. In O.P. Singlas case, the view taken was that the seniority was to be determined on the basis of length of continuance of service in the cadre. This, however, was in the context of appointments made under promotees quota, as per Rules 16 and 17, which could not be termed as ad hoc fortuitous or temporary if they were made after due consultation with the appropriate authority (High Court in this case) and the appointees possessed the qualifications prescribed under Rule 7 (a). The appointments made under Rule 16 and 17 had been distinguished from appointments made purely as stop gap measures without satisfying the prerequisite conditions under Rule 16 and 17.
It was in this context that para 20 of the judgment had recorded the following conclusive observations:-
20. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
(c) Thus, the reliance placed on R.K. Sains judgment in the order dated 9.7.2003 in Mohinder Singhs case, is also not found to be tenable, considering the distinguishable facts of both the cases.
10.2.6 UOI Vs. Dharam Pal & Ors.
(a) Overwhelming reliance has been placed by the present applicants on the Apex Courts decision in Dharam Pals case. The learned counsel Ms. Jyoti Singh would contend about the facts being similar as also the issues involved in both the cases. Further, she would argue that after a review of the relevant rules and landmark judgments, the Honble Apex Court had upheld that for reckoning seniority from the date of ad hoc officiation, it was imperative that initial ad hoc promotion should have been after following the prescribed procedures as per rules and taking into account the relevant provisions regarding determination of seniority, including the enabling provision if any, for reckoning of seniority from the date anterior to that of the regular promotion.
(b) Dharam Pals case pertained to promotion from the post of Signal Khallasis Group D in S&T Department to the post of Material Checking Clerk (MCC), Group C against the promotion quota whereas the rules specifically prescribed a mandatory procedure of selection consisting of written test and interview, the same had not been followed while allowing the respondents and several other employees to officiate on ad hoc basis as MCC in 1986. The respondents had also not been covered by one time dispensation taken in 1987 by the departmental authorities to regularize the ad hoc services of MCC completing three years of such service on the basis of service record and viva voce test. In fact, on completion of three years ad hoc service, the representation of the respondents (before the Apex Court) for regularization in 1988 had been rejected, leading the respondents to approach the Tribunal for a direction for regularization of MCC benefit of ad hoc officiation with seniority and promote them further to the post of UDC from the date they had become eligible.
In the meanwhile respondents had taken part in selection process for appointment of MCC on the basis of viva voce test and the successful candidates had been appointed as MCC on the basis of a provisional panel prepared in 1997. Their services were regularized with immediate effect and subsequently also given retrospective regularization w.e.f. 10.8.1988.
The Tribunals decision, upheld by the Honble High Court, had allowed the OA and granted the benefit of counting their ad hoc service between 1986 to 1988 for the purposes of normal service benefits like seniority, fixation of pay etc. This was done on ground that despite the fact that the initial appointment was dehors the rules but in view of the perpetrated decision taken by the department of regularization, the claim of the applicant was found to be sustainable.
The Apex Court, however, had disagreed that it was not inclined to extend the benefit of one time dispensation of the Railway Authorities for regularization in a general manner. Further the plea of discrimination vis-a-vis a set of employees i.e. of Ambala Division having been similarly regularized had also not weighed with the Apex Court. In para 15, the following conclusive findings were observed:-
15. We, therefore, are of the opinion that the Tribunal and consequently the High court committed a serious error insofar it failed to taken into consideration the binding authorities of this court.
(c) While holding the view as contended by the applicants learned counsel, the Honble Apex Court had laid emphasis on (i) The basic guiding principle of promotion being subject to fitness for performing the duties (Rule 213/IREM). (ii) Disfavouring a fragmented view of the provisions of IREM Rule 216 in disregard of the inbuilt safeguards prescribed in the matter of ad hoc promotions. (iii) The importance of Rule 302 in the matter of determination of inter se seniority, including issues such as reckoning of seniority from the date of ad hoc promotion.
While reviewing the landmark judgments on the subject, the basic law as propounded by the Constitution Bench in Direct Recruit Class II Engineering Officers case had been reiterated, taking into consideration the further elucidation of the guiding principles as per the two alternative conclusions (A) and (B) in Aghor Nath Deys case. The decision in T. Vijayans case had been found to have been taken in view of the peculiar fact situation obtaining therein, and without taking into consideration the effect of Rule 302 and instead proceeding on the premises of Rule 216 permitting ad hoc promotion. The decision in Swapan Kumar Pals case, laying down the law of the imperative necessity of an enabling provision for regularization of promotion from an anterior date had been found to be a material aspect. The final view taken was that where the initial appointment is only ad hoc, not according to rules and made as a stop-gap arrangement, the period of officiation in such posts cannot be taken into account for considering the seniority. Further, it had been held it is one thing to say that an appointment is made on an ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.
(d) The interpretation of law by the learned DB while allowing the OA in Mohinder Singhs case vide judgment dated 9.7.2003, is not in consonance with the propounding of law on the subject by the Honble Apex Court in UOI Vs. Dharam Pals case. The broad similarity of the issues involved in both these cases, coupled with the fact that in Dharam Pals case the Honble Apex Court had reviewed the rules relevant to promotions as well as determination of seniority under IREM Volume I, besides taking into account the entire gamut of landmark judicial rulings on the subject, lends a special significance to this judgment.
10.2.7 Other cases relied upon by the present applicants:
(a) The written submissions dated 30.11.2011 refer to the Apex Courts judgment in Central Council for Research in Homeopathy Vs. Bipin Chandra Lekhra & Ors., 2011(2) AISLJ 418.
In this case also, the Apex Court had taken the view that if ad hoc appointment is made without following prescribed regular procedure, ad hoc service cannot be counted for seniority. The applicant who had initially in the year 1984 been appointed on ad hoc basis, was admittedly without any advertisement for the post. Besides, the prescribed procedure for making regular selection had also not been followed. The tenure had been extended from time to time. On a subsequent advertisement in 1986, though called for an interview he had not been found suitable. However, the ad hoc appointment had continued in view of the interim direction by the High Court. It was only on the basis of an advertisement in 1995, that the applicant was found suitable and had been given regular appointment w.e.f. 5.1.1996. His claim was for counting his ad hoc service from 1984 onwards for the purposes of seniority, which was not found tenable by the Honble Apex Court.
Though, the basic proposition of law endorses the view as taken in Dharam Pals case; in view of the linear factual matrix of the case, it may not have a close bearing on the issues involved in the OAs at hand.
(b) The written submissions have also referred to the decision of the Honble Apex Court in State of Rajasthan Vs. Jagdish Narain Chaturvedi [(2010) 1 SCC (L&S) 105] where it was held that service rendered on ad hoc daily wages or work charged basis, prior to being born on a cadre in service does not count for the purpose of determining eligibility of promotion.
Besides, the decision of the Tribunal (PB) in OA 2485/2002 Meena Satpal Vs. UOI & Ors., decided on 22.5.2003 has been referred. However, the issues involved were different and the claims had arisen from the case of an initial appointee as a Typist subsequently changing to the cadre of Clerks.
Considering the issues engaging our attention in the present context, it is not found necessary to go into details in these cases.
11. To conclude, for the detailed reasons elaborated in Para 10 above, the judgment rendered by the learned DB vide its order dated 9.7.2003 in the OA 1649/1997 (Mohinder Singh & Ors. Vs. UOI & Ors.) has not been found to be a valid proposition of law.
However, since, as per their own compromise, the present applicants of the OA 1978/2010 (Shri Balwinder Singh & Ors. Vs. UOI & Ors.), as parties in the OA 658/2004 (Shri J.K. Chadha & Ors.) had agreed to implement the seniority of Shri Mohinder Singh and others as per the terms of the compromise, the benefits of the judgment in the OA 1649/1997 cannot be overturned against the applicants therein.
11.1 As per the stand of the present applicants, their basic grievances are against the ramifications of the follow-up decision rendered in the OA 1900/2007 (Hemant Kumar Swamy & Ors. Vs. UOI & Ors.) vide the Tribunals order dated 12.12.2008. The direction in this case had been issued for consideration of the claims of the applicants by extending the benefits of the decision in Mohinder Singhs case, purely treating the decision in Mohinder Singhs case as final and hence a binding precedent. As has already been discussed above, since the Writ Petition filed against the OA 1649/1997 had not been dismissed on merit, but only allowed to be withdrawn in the background of out-of-court compromise, this view has not been found to be tenable. Besides, it has also been clarified above that the compromise in question would be binding only to the concerned parties and as per the terms contained therein.
Under the circumstances, the decision in Hemant Kumar Swamys case is of no meaning and consequence.
12. Resultantly, on a careful consideration of the DBs reference dated 28.7.2011, the following are the conclusive findings of the Full Bench:-
(i) The OA 1978/2010 is found to be maintainable.
(ii) The interpretation of law vide the Tribunals order dated 9.7.2003 in the OA 1649/1997 is not found to be sustainable. Though, as per the out of court compromise between the parties, the benefits rendered to the applicants of this OA are not to be negated; the decision in this judgment is not to be treated as a precedent.
(iii) The decision in the OA 1900/2007 is not sustainable.
(iv) The OA 1978/2010 is referred back to the DB for consideration and decision on merit.
(Dr. Veena Chhotray) (G. George Paracken) (V.K. Bali)
Member (A) Member (J) Chairman
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Post script:
After pronouncing the order on 23.11.2011, it came to our notice that vide our interim order dated 21.9.2011, the entire case was decided to be referred to the Full Bench for determination of all the points raised therein. It is found that besides the points already considered, there is no other substantive point involved in the OA No.1978/2010. Hence there is no need for referring back this OA to the Division Bench for consideration and decision on merit. Accordingly our findings in Para 12 (iv) of the above order are obliterated and the order stands modified to that extent.
The OA 1978/2010 impugns certain orders and prays for their quashing. These Orders/Notices 4 in number are the sequel to the implementation of the decision of the Tribunal in OA No.1900/2007. As the aforesaid Order has now been held by us as unsustainable, the impugned Orders/Notices in the instant OA would also not be in consonance with law. We, therefore, give the following directions:-
The impugned Notice No.1719/2007 dated 20.6.2009 (Annex. A/1) is against the withdrawal of promotion to the post of DMS-II (Rs.5500-9000) under the restructuring scheme w.e.f. 1.11.2003. The promotional benefits are to be withdrawn from the applicants on the ground their being junior to the applicants in Hemant Kumar Swamys case. Hence this Show Cause Notice is quashed and set aside.
The impugned order No.1900/2007 dated 10.3.2010 (Annex. A/2) has been issued on consideration of the reply in pursuance of the aforesaid Show Cause Notice. The applicants are held to be juniors as DMS-III to the applicants in the OA No.1900/2007. Hence the decision for their de-empanelment t from the post of DMS-II and reversion to the substantive post of DMS-III on completion of requisite formalities has been ordered. This order also is quashed and set aside.
The Order dated 13.5.2010 (Annex. A/3)is with regard to modified selection to fill up the posts of DMS-II (Rs.5500-9000) w.e.f. 1.11.2003. As the applicants have been found junior to some of the applicants in the OA 1900/2007, owing to interpolation of the names of these persons (as a result of the decision in the said OA); the directions are for excluding their names from the panel. This order is also quashed and set aside to the extent it affects the present applicants.
The impugned order dated 19.5.2010 is with regard to the modified empanelment as DMS-II. Consequent to the effect of the OA 1900/2007 and as a sequel to de-empanelment of the present applicants, the orders for empanelment of three of the applicants in the OA No.1900/2007 to DMS-II on proforma basis w.e.f. 1.11.2003 has been ordered. This order would also stand quashed and set aside to the extent it affects the applicants in the instant OA.
The orders dated 10.3.2010, 13.5.2010 and 19.5.2010 also contain a mention of some other OAs besides the OA 1900/2007. Further on that basis adverse orders have been issued in respect of one Shri Ajay Bhagat not an applicant in the OA 1900/2007. The repercussions of these OAs would also be considered by the official respondents in the light of the principles of law already delineated by the Full Bench in this judgment and accordingly a speaking and reasoned order passed in respect of the persons affected as well. Needless to say, such an order would be after giving an opportunity to show cause in due observance of the principles of natural justice.
Parties may be informed of the post-script, and copy of the same be supplied to them. Surely, if the certified copy of the judgment is applied by any of the parties, post-script, being part of the judgment, shall also be supplied to them.
(Dr. Veena Chhotray) (G. George Paracken) (V.K. Bali)
Member (A) Member (J) Chairman
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