Central Administrative Tribunal - Chandigarh
Deepak Sharma vs Comptroller And Auditor General Of ... on 7 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(ORDER RESERVED ON 29.08.2016)
Date of filing: 17.08.2015
O.A No. 063/00125/2015 Date of decision:07.09.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. Deepak Sharma, Assistant Audit Officer (Audit).
2. Mahender Singh, Assistant Audit Officer (Audit).
3. Rakesh Kumar, Assistant Audit Officer (Audit).
4. Shuvdeep Singh, Assistant Audit Officer (Audit).
5. Vipan Kumar, Assistant Audit Officer (Audit).
6. Yogender Yadav, Assistant Audit Officer (Audit).
7. Kunj Lal, Assistant Audit Officer (Audit).
(All the applicants from Sr. nos.1 to 7 are working in the office of Principal Accountant General (Audit) Himachal Pradesh, Shimla.
8. Chirstoper Lepcha, Assistant Audit Officer (Audit), presently on deputation to the office of Sr. Deputy Accountant General Local Bodies (Audit), Calcutta (West Bengal).
APPLICANTS
BY ADVOCATE: Sh. Hamender Goswami.
VERSUS
1. Comptroller and Auditor General of India, 9 Deen Dayal Upadhyay Marg, New Delhi 110124.
2. Principal Accountant General (Audit), Himachal Pradesh, Shimla.
3. Suresh Kumar Negi, Audit Officer, O/o Principal Accountant General (Audit), Himachal Pradesh, Shimla.
4. Manohar Lal Grewal, Audit Officer, O/o Principal Accountant General (Audit), Himachal Pradesh, Shimla.
RESPONDENTS
BY ADVOCATE: Sh. Barjesh Mittal, counsel for respondents no.1 & 2.
Respondents no.3 & 4 Ex-parte.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A):-
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8. (i) Vires of para 5.6.2 and 5.6.6 of the Rules/instructions called the Comptroller and Auditor Generals Manual of Standing Orders (Administrative) Volume-I (Third Edition) (A-4), to the extent it does not include the period of 2 years probation of the applicants while computing the length of their regular service for the purpose of Seniority and for all other intents and purposes being ultra-vires to the constitutional right of the applicants be quashed/set aside.
(ii) That impugned order dated 23.04.2015 (A-1) rejecting the representation of the applicants for promotion to the post of audit officer be quashed/set aside. Further the impugned promotion orders of respondent no.3 dated 01.01.2015 (A-2) and impugned promotion order respondent no.4 dated 06.02.2015 (A-3) be also quashed/set aside.
(iii) That directions be issued to respondents no.1 and 2 to consider the case of the applicants for promotion to the post of Audit Officer from the date juniors respondents no.3 and 4 were promoted with further direction holding that the service of the applicants since the initial date of appointment shall be considered as regular service for all intents and purposes and further direct that their seniority shall be fixed from the date of their regular initial appointment to the post and not according to the date of their confirmation in view of the constitutional mandate of Honble Supreme Court of India in Direct Recruit Engineers case as well as DOPT OM dated 04.11.1992 with all consequential benefits in the interest of justice.
2. It is stated in the OA that the applicants after qualifying the Section Officer (Audit) Examination conducted by the Staff Selection Commission during different years were recommended for appointment to the post of Section Officer (Audit) in pay scale of Rs.6500-200-10500 revised to 9300-34800 + GP 4800 in the office of respondent no.2. The cadres of Section Officer (Audit) and Assistant Audit Officer were merged by the orders of the competent authority i.e. respondent no.1 w.e.f. 27.05.2009. Consequently, respondents no.3 & 4 who were working as Section Officer (Audit) were redesignated Assistant Audit Officer w.e.f. 27.05.2009. As per the terms and conditions of the appointment letter (A-6), the candidates were to qualify in both Part-I and II of the Section Officers Grade Examination (SOGE) conducted by the Indian Audit and Accounts Department during the period of probation/extended probation and after passing the said examination, the candidate was to be appointed as regular Section Officer (Audit).
3. Applicant no.1 after his joining on the post of AAO w.e.f. 07.03.2008, availed his first attempt for appearing in Part-I of the SOGE Exam in March/April, 2009 since the said exam was being conducted by the respondent department once a year. Thereafter, in the year 2010, the office of respondent no.1 issued a Circular dated 07.06.2010 (Annexure A-7), revamping the SOGE Examination procedure by renaming it as Subordinate Audit/Accounts Services (SAS Examination) which would be held once in a year in the month of November and the exam would be a computer based test (Online Exam). Further, the candidates were allowed maximum of 6 chances to pass all the papers of Part-I and Part-II of the said examination. Consequently the first online examination was held in November/December, 2010. Subsequently the office of respondent no.1 issued another circular dated 05.04.2011 (Annexure A-8) relaxing the provisions contained in para 9.2.6 of CAG MSO (Admn.) Vol.I by allowing eligible officials with two years continuous service in one or more capacity as specified in the said letter to appear in the Subordinate Audit/Accounts Service 2011 exam and again in 2012 vide circular dated 17.02.2012 (Colly with A-8) on account of the deficit in the AAO Cadre in the field offices, instead of minimum of three years of continuous service as prescribed earlier. Thereafter the second online examination was held in August, 2011. Respondent no.1 issued another circular dated 24.11.2011 (Annexure A-9) whereby it was decided to conduct the Subordinate Audit/Accounts Service (SAS) Exam twice in a year i.e. Main and Supplementary Exam and it was further clarified that directly recruited AAOs were required to pass this SAS Examination within six chances taking together both the Main and Supplementary SAS Exam within the probation period. All the directly recruited AAOs who were yet to qualify SAS Exam despite exceeding their maximum probation period of four years were allowed to avail the remaining attempts of the said exam within the overall limit of six chances. Applicant no.1 cleared the Subordinate Audit/Accounts Service (SAS) Examination within the prescribed six attempts i.e. First Attempt in March/April, 2009, Second attempt in November/December, 2010, Third Attempt in August, 2011 and Fourth Attempt in March, 2012. Similarly all the other applicants also cleared the Subordinate Audit/Accounts Service (SAS) Examination within the allowed attempts.
4. It is further stated that the promotion from the post of Assistant Audit Officer to the post of Audit Officer is governed by the Rules called the Indian Audit and Accounts Department (Accounts Officer/Audit Officer) Recruitment Rules, 1989 and Recruitment (Amendment) Rules, 2005 (Annexure A-10) as incorporated in CAGs MSO Administrative Vol.III. The relevant provisions are reproduced hereunder:-
1.
Name of post Audit Officer
2. Number of Posts .
3. Classification
4. Scale of pay ..
11. Method of recruitment whether by direct recruitment or by promotion or by deputation/absorption and percentage of the vacancies to be filled by various methods.
By promotion failing which by transfer on deputation.
12. In case of recruitment by promotion /deputation / absorption grades from which promotion /deputation/absorption to be made.
Promotion:-
Assistant Audit Officer with six years of combined regular service as Assistant Audit Officer or Section Officer.
Note:- Where juniors who have completed their qualifying / eligibility / service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/ eligibility service by more than half of such qualifying/ eligibility service or two years whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying / eligibility service.
Deputation:- .
In these rules, for promotion to the post of Audit Officer, it is specified that Assistant Audit Officer with 6 years of Combined Regular Service as Assistant Audit Officer or Section Officer is eligible for promotion. However, it is nowhere provided that 6 years of combined regular service as AAO or SO would be after successful completion of the probation period. Recruitment Rules of 1989 have been promulgated by the President of India in exercise of powers under Article 148 (5) of the Constitution of India and thus, the CAG, respondent no.1, does not have the power to issue any instructions as mentioned in para 5.6.2 and 5.6.6 of MSO (Administrative) Vol.I which are not inconsonance with the Recruitment Rules of 1989. Besides, the seniority of govt. servants is determined in accordance with the general principles of seniority which have been enunciated by the Honble Apex Court in its Constitution Bench judgment titled Direct Recruits Class-II Engineering Officers Association Vs. State of Maharshtra decided on 02.05.1990 reported as JT 1990 (2) SC 264 whereby in para 47 (A) of the said judgment, the Honble Court has categorically held that once an incumbent is appointed to a post accordingly to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Consequently, the Govt. of India, Ministry of Personnel (DOPT) issued OM dated 04.11.1992 (Annexure A-5), clarifying that in modification of OM dated 22.12.1959 and OM dated 03.07.1986, it has been decided that seniority of a person regular appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation. However, the office of respondent no.1, i.e. CAG, issued Manual of Standing Orders (Administrative) Vol.I that includes para 5.6.2 and 5.6.6 (Annexure A-4). The respondents are emphasizing and implementing the above mentioned provisions as incorporated in their MSO to the effect that directly appointed Section Officer (Audit) shall rank immediately below the Section Officer (Audit) Grade Examination passed persons officiating in the Section Officer (Audit) Cadre on the date on which he/she takes over charge as a regular Section Officer (Audit), meaning thereby the date on which the directly recruited candidate who clears his probation as well as passes the SOGE Examination will be the date of his confirmation on regular basis as a Section Officer (Audit)/Assistant Audit Officer and not the date of his initial joining the department on regular basis on the post of Assistant Audit Officer. This is violative of the directions issued by DOPT as well as against the law laid down by the Honble Apex Court in catena of judgments. The judgments of the Apex Court in the cases of K. Madhavan and Anr. V. Union of India and Ors., (1987) 4 SCC 566, L. Chandra Kishore Singh V. State of Manipur and Ors., (1999) 8 SCC 287 and Keshav Chandra Joshi and Ors. Vs. Union of India and Ors., AIR 1991 SC 284 have been cited to press the claim of the applicants.
5. It is further stated that the similar controversy pertaining to the respondent department came up for consideration before CAT, Jaipur Bench, in case titled as Sanjay Yadav & Others Vs. UOI & Others, 2003 (3) SLJ 378 CAT wherein the Divisional Accountants working under respondent no.1 i.e. CAG approached Honble CAT praying for direction to the respondents to include the two year probation period while computing the length of their regular service for promotion from the post of Divisional Accountants to the post of Divisional Accounts Officer Grade-II. The CAT, Jaipur Bench, relying upon the judgments passed by Apex Court allowed the OA filed by the applicants and held that the period of service spent by the applicants therein on probation is to be counted towards regular service. The respondent department challenged the order passed by CAT, Jaipur Bench before Honble Rajasthan High Court by filing CWP No.5715 of 2013 which was dismissed and respondent no.1 has duly complied with the orders of CAT, Jaipur Bench by amending the CAG MSO (Administrative) Vol.I qua the cadre of Divisional Accountants. Similar is the prayer of the present applicants in the present OA for counting the period of service spent by them on probation as regular service and for fixing of their seniority from the initial date of appointment on the post of Assistant Audit Officer for all intents and purposes.
6. The applicants have appended the seniority list of the cadre of Assistant Audit Officers (Civil) as on 01.03.2011 (Annexure A-11) wherein the name of applicant no.1 Sh. Deepak Sharma is at Sr. No.37 and name of respondents no.3 & 4 is at Serial no.38 and 39 i.e. they are shown junior to the applicant no.1 in the seniority list. The applicant no.1 joined the respondent IA&AD Department as directly recruited Assistant Audit Officer on 07.03.2008. On the said date respondents no.3 & 4 were working as Senior Auditor and Clerk respectively and were promoted as Section Officer w.e.f. 04.12.2008. Further on merger of cadre of Section Officer with cadre of Assistant Audit Officer, they were redesignated Assistant Audit Officer w.e.f. 27.05.2009. Meaning thereby, on 07.03.2008 when applicant no.1 joined the post of Section Officer (Audit) now redesignated as Assistant Audit Officers, Respondents no.3 & 4 were not even borne in the cadre of Section Officer (Audit)/Assistant Audit Officer and as a consequence of merger have come in the cadre of AAO w.e.f. 27.05.2009 only. Upto the year 2013, the office of respondent no.2 was maintaining a common seniority list qua the departmental candidates vis-`-vis direct recruits of the post of Assistant Audit Officers. However, w.e.f. 01.03.2014 the respondents have prepared separate seniority list of departmental candidates and direct recruit candidates who are governed under New Pension Scheme. Perusal of seniority lists circulated by office of respondent no.2 of the cadre of Assistant Audit Officers (Departmental Candidates and Direct Recruits) as on 01.03.2014 (Annexure A-12), show that in the seniority list of departmental candidates the names of respondents no.3 and 4 are at Sr. No.3 and 4 whereas in the seniority list of all Direct Recruits, the name of applicant no.1 is at Sr. no.1. In the remarks column it has been mentioned as Seniority Provisional qua all the Direct Recruit candidates. Office of respondent no.2 on the basis of seniority list of Assistant Audit Officers as on 01.03.2014 (A-12) promoted respondent no.3 i.e. Suresh Kumar Negi from the post of Assistant Audit Officer to the post of Audit Officer vide order dated 01.01.2015 (A-2) by treating him as senior to applicant no.1 and considering him eligible under the 1989 Recruitment Rules to have completed six years of regular service w.e.f. 04.12.2008 the date he was promoted as Section Officer (Audit) by totally ignoring the prior claim of applicant no.1 who had joined the cadre of Section Officer (Audit)/Assistant Audit Officer as a Direct Recruit on 07.03.2008 i.e. 9 months prior to the coming into the cadre of respondents no.3 & 4 on the premise that the regular length of service for promotion to the higher cadre of Audit Officer qua the direct recruit candidates shall be reckoned from the date of confirmation / passing of probation after passing SOGE/SAS Examination. Office of respondent no.2 totally ignoring the mandate of law as well as DOPT OM dated 04.11.1992 (A-5) to the effect that seniority of a person regularly appointed to a post has to be determined from the date of initial appointment and not according to the date of his confirmation, in a most illegal and arbitrary manner further promoted respondent no.4 i.e. Sh. Manohar Lal Grewal vide order dated 06.02.2015 (A-3) by sticking to their own interpretation of CAG MSO to the effect that length of service for the purpose of seniority is reckoned from the date of confirmation and not from the date of initial appointment on regular basis to a post.
7. Applicant no.1 aggrieved by promotion of his junior respondents no.3 & 4 vide orders A-2 and A-3 moved a representation dated 10.02.2015 (Annexure A-13) to respondent no.2 praying for reconsideration of his case for promotion to the post of Audit Officer and also quoted the note as mentioned in Column-3 of Clause 12 of Recruitment Rules (A-10) which is reproduced hereunder:-
Note:- Where juniors who have completed their qualifying / eligibility / service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility/service by more than half of such qualifying /eligibility service or two years whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service. The case of the applicant no.1 for promotion to the post of Audit Officer alongwith his juniors, respondents no.3 & 4, was also squarely covered by this provision as mentioned in the recruitment rules but the respondents did not consider the case of applicant no.1 in the right perspective and rejected his representation vide communication dated 23.04.2015 (Annexure A-1). Hence this OA.
8. In the grounds for relief it has, interalia, been stated as follows:-
1. The provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.
2. The seniority and regular service in all other cadres namely Divisional Accountant, Auditor, Senior Auditor etc. is reckoned from the date of initial regular appointment to the post and not according to the date of confirmation as is being done in the cadre of Assistant Audit Officers, thus, said discrimination and exception to the cadre of Assistant Audit Officers is highly discriminatory, arbitrary and illegal. On this ground also the provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.
3. In the recruitment rules of 1989 for the post of Audit Officers, it is nowhere provided that 6 years regular service of Assistant Audit Officer would be after the successful completion of probation period and moreover the said rules of 1989 and Amendment Rules 2005 have been promulgated by the President of India in exercise of power under Article 148 (5) of the Constitution of India and Respondent no.1 CAG did not have the power and authority to issue instructions through MSO which are not in consonance with the statutory recruitment rules. Thus on this score as well, the provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.
4. The Honble Supreme Court of India and other Honble Courts have in unambiguous terms held that the period of service spent on probation by the candidate is to be counted towards regular service for the purpose of seniority and for all other intents and purposes and that the seniority has to be delinked from confirmation and incumbent who is regularly appointed to a post, his seniority has to be reckoned from the date of his appointment and not according to the date of his confirmation.
9. In the written statement filed on behalf of the respondents, the facts of the matter have not been disputed. It has further been stated that as per Indian Audit and Accounts Department (Accounts Officer/Audit Officer) Group B Post, Recruitment Rules, 2001, Assistant Audit Officers with six years combined service as Assistant Audit Officer and Section Officer will be eligible for the promotion to the post of Audit Officer. The requisite length of service for promotion to the higher post of Audit Officer in case of AAO shall be reckoned from the date of confirmation or date of passing SOGE/SAS examination or on successful completion of probation of two years, whichever is later, i.e. the date on which the incumbent is treated as regular Assistant Audit Officer. The applicant no.1 had passed the SAS examination during March 2012 and was confirmed w.e.f. 18.03.2012, and accordingly treated as regular AAO on this date. His service in the cadre of SO/AAO for the promotion to the post of Audit Officer had to be reckoned from 18.03.2012 as also clarified by Headquarters Office (respondent no.1) vide letter dated 01.04.2015 (Annexure R-3). Thus, he was not included in the zone of consideration for promotion during panel year 2015 as he was not fulfilling the eligibility condition of regular service of six years, as prescribed in Rules/CAGs MSO (Administrative). Similarly, applicants no.2 to 8 were also not fulfilling the requisite eligibility. Hence the contention of the applicant no.1 that he should have been included in panel for promotion to the post of Audit Officer during panel year 2015 is wrong and unjustified.
10. In the rejoinder filed on behalf of the applicants, the content of the OA has been reiterated.
11. Arguments advanced by learned counsel for the parties were heard, when learned counsel for the applicants put forth the grounds for relief taken in the OA. He stated that the applicants no.2 to 8 had no claim against the private respondents. They only wanted that the service rendered on probation by them as AAO be counted as regular service. Moreover, the provisions of the paragraphs 5.6.2 and 5.6.6 of the Manual of Standing Orders were administrative instructions and these could not supersede the statutory rules. In any case these related to the service of Section Officers, while the present OA related to the promotion of SOs, AAOs and Audit Officers. There was ample case law to support the contention of the applicants that service rendered by an employee during probation period had to be treated as regular service and seniority in the post had to be reckoned from the date of being appointed to the post and not on the basis of date of confirmation. Once the applicants had passed the Departmental Examination which entitled them to be confirmed in service, their seniority had to be reckoned as per their date of appointment. Learned counsel also referred to OM no.20011/5/90-Estt.(D) dated 04.11.1992 (Annexure A-5) through which directions had been issued by Government of India delinking seniority from confirmation. The respondents had also ignored Note below provision in the Rules relating to promotion of AAOs as Audit Officer. As per this, where juniors had completed their qualifying service and were being considered for promotion, the seniors would also be considered for promotion alongwith their juniors who had already completed such qualifying service provided they were not short of the requisite qualifying service by more than half of such qualifying service or two years whichever is less, and had successfully completed their probation period for promotion to the next higher grade. In the eligibility criteria there was no requirement that the qualifying service had to be regular in nature.
12. Learned counsel for the respondents referred to Annexure A-10 regarding the RRs for the post of Audit Officer notified in 2005. He stated that as per these rules the eligibility criteria for promotion was six years of combined regular service as AAO or Section Officer. He also referred to clarification issued by the respondents department vide letter no.621-Staff (Appt)/129-2015 dated 01.04.2015 (Annexure R-3), wherein it had been stated that the length of service of an AAO for promotion to the cadre of Audit Officer is to be taken from the date of confirmation after passing the SAS Examination. The applicant no.1 Sh. Deepak Sharma had qualified the SAS Examination in March, 2012. Although he belonged to SSC 2006 batch some officers belonging to 2007 batch passed the SAS Examination prior to him and hence were confirmed as regular AAOs earlier. Learned counsel also stressed that the seniority of the applicants had been determined, keeping in view paragraphs 5.6.2 and 5.6.6 of the Comptroller and Auditor Generals Mutual of Standing Orders and hence there was no merit in this OA.
13. We have given our careful consideration to the matter. Learned counsel for the parties have referred to the Rules of 2001, while learned counsel for the respondents has referred to the Rules of 2005 which appear to have been notified as an amendment to the earlier Rules of 1989. There is some confusion here as it is not understood how the Rules of 2001 could have been notified without repealing the Rules of 1989, and how the amendment of the Rules of 1989 was notified in 2005, although Rules of 2001 had been notified earlier.
14. It is also well settled by now that for determination of seniority of members of a cadre, date of confirmation is not relevant. The seniority of an employee regularly appointed to a post would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation. Moreover, there is no basis for disregarding the service rendered while on probation for determination of seniority in view of the OM dated 04.11.1992 (Annexure A-5). To this extent the provisions of paragraphs 5.6.2 and 5.6.6 of MSO are violative of the principles enunciated by the Apex Court regarding determination of seniority.
15. In view of the discussion above, paras 5.6.2 and 5.6.6 of MSO are set aside. The applicants who commenced government service in 2008/2009/2010 and who have already passed the SOGE Examination would be entitled to reckon their seniority as AAO/SO from the date when they were appointed to the service and in the order of merit of their selection. Their eligibility for promotion as Audit Officer has to be considered accordingly. Hence, impugned order dated 23.04.2015 (Annexure A-1) is quashed and the respondents are directed to consider the claim of the applicants for promotion as Audit Officer counting their seniority as AAO/SO from the date when they joined service, rather than from the date when they were confirmed in their posts after having passed the SOGE Examination. Action in this regard may be completed within a period of three months of a certified copy of this order being served upon the respondents. No costs.
(RAJWANT SANDHU) MEMBER (A) (JUSTICE L.N. MITTAL) MEMBER (J) Place: Chandigarh.
Dated: 07.09.2016.
rishi 17 O.A No. 063/00125/2015 (Deepak Sharma & Ors. Vs. CAG & Ors.)