Central Administrative Tribunal - Delhi
Ms. Ena Passi vs Union Of India Through on 20 February, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3501/2012
Reserved on : 18.02.2015.
Pronounced on : 20.02.2015.
Honble Mr. A.K. Bhardwaj, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Ms. Ena Passi,
D/o Sh. P.S. Passi,
R/o 301 Minto Road Hostel(old),
Minto Road Complex,
New Delhi-2. .. Applicant
(through Ms. Tamali Wad, Advocate)
Versus
1. Union of India through
Its Secretary,
Ministry of Urban Development & Poverty Alleviation,
Nirman Bhawan,
New Delhi-1.
2. Director General of Works,
Central Public Works Department,
A Wing, Nirman Bhawan,
New Delhi-1.
3. Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training through
Its Secretary,
Government of India,
North Block, New Delhi-1.
4. Ms. Bulbul Biswas
5. Sh. R. Radha Krishan
6. Sh. Abhishek Bose
7. Sh. Ajay Keshav
8. Sh. Parthasarathy Nandy
9. Sh. Vijay Prakash Rao
10. Sh. S.S. Rawat
11. Sh. Lazarus Kujur . Respondents
[Respondents No. 4 to 11 All Architects, EC(IX) Section, O/o DG (Works), CPWD, Nirman Bhawan, New Delhi-1.]
(through Mrs. Avinash Kaur, Advocate for official respondents and Sh. S.C. Saxena, Advocate for private respondents)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant joined as Assistant Architect in CPWD on 18.04.1990. According to her, the next promotional post for Assistant Architect was Architect. Under CPWD Central Architectural Services Rules till February, 2004 the post of Architect was to be filled from Deputy Architect with four years service and from Assistant Architect with eight years of service in the ratio of 1:1. The inter se seniority between the two in terms of Rule-9(3) of the Central Architects Service Group-A Rules, 1989 was to be determined in accordance with the general instructions issued in this regard by the Government from time to time. The applicant became eligible for promotion as Architect in the year 1998 but was first considered in the year 2000 along with her batch mates. However, the applicant was not found fit for promotion. The next DPC was held on 20.05.2002 when the applicant was considered and recommended for promotion. She was so promoted and joined the post of Architect on 19.06.2002. On 01.04.2003 the official respondents herein issued a provisional seniority list of Architects as on 01.04.2003. In the said list, her name figured at Serial No. 68 while the private respondents No. 4 to 11 were shown below her. This position continued in the seniority list issued on 16.07.2008 in which also the applicant was placed above the private respondents. Further, vide O.M. dated 17.08.2010, the official respondents rejected all representations received against this seniority list thereby giving the impression that the seniority list had become final and settled permanently. The applicant was also granted NFSG based on this seniority list. The official respondents once again circulated a seniority list on 22.03.2011 in which also the applicant retained her position above the private respondents. According to the applicant on 02.02.2012 the respondents once again circulated a revised seniority list in which she was shown junior to the private respondents No. 4 to 11. On 06.02.2012, the applicant submitted a representation for correction in the seniority list. However, her representation was rejected on 03.05.2012. Thereafter, the applicant filed RTI application through which he came to know that no DPC meeting was convened for her promotion in the year 2001 due to administrative reasons. On 09.07.2012, the official respondents again circulated final revised seniority list of Architects in which the applicant has been junior to the private respondents. Hence, in October, 2012, she has filed this O.A. before us seeking the following relief:-
(a) Call for the records pertaining to the promotion & seniority of the applicant and the Respondent Nos. 4 to 11 in the grade of Architects in CPWD.
(b) Set aside the impugned seniority list issued by the Respondent No. 1 & 2 vide OM No. 37/2/2011-ECIX dated 09.07.2012 to the extent the seniority of the applicant has been downgraded and to restore the applicant to the seniority position as assigned to her in seniority list circulated vide OM No. 37/2/2008-EC-IX dated 16.7.2008 and O.M. No. 37/2/2008-EC-IX dated 22.3.2011 issued by the Respondent No.2.
(c) On granting relief to the applicants in terms of prayer (b) above, to direct the Respondent No. 1 & 2 to grant consequential reliefs to the applicant in accordance with law.
(d) Pass any other and further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The contention of the applicant is that down grading of her seniority by the official respondents was arbitrary and colorable exercise of power. According to her, it was a result of non application of mind as the earlier seniority list had been correctly drawn keeping in mind the rota quota rule. The applicant had been empanelled as Architect for the vacancy year 2001-02 and was, therefore, correctly assigned seniority above the private respondents who had come through the quota meant for Deputy Architects. She has alleged that the impugned action of the respondents was contrary to the principle of promissory estoppel as well as violative of Articles 14,16, 19(1)g and 21 of the Constitution.
3. In their reply, the official respondents have stated that the Assistant Architects who joined during January, 1990 were considered for promotion during 2000. In that selection, the applicant could not be selected. Thereafter, due to administrative reasons, DPC could not be held during the year 2001 in respect of Assistant Architects. Later on, in the vacancy year 2001-02, 13 vacancies occurred in the grade of Architects. Out of these 07 were assigned to the quota of Assistant Architects and the remaining 06 were assigned to the quota of Deputy Architects. DPC was held on 20.05.2002 by UPSC for promotion of Assistant Architects to Architects and 07 such Assistant Architects were recommended for promotion including the applicant herein. On the other hand, DPC meeting for considering Deputy Architects for promotion to the post of Architect was held on 27.07.2001 and the private respondents herein were promoted. Thus private respondents could join as Architects before the applicant.
3.1 The respondents have further stated that separately Deputy Architects had represented to the official respondents that Assistant Architects who had been promoted in the year 2004 i.e. after the promotion of Deputy Architects in September, 2004 had been shown senior to them in the seniority list. This matter was referred to DoP&T for advice. The DoP&T vide their UO No. 101049/10-Estt. DII dated 03.01.2011 advised as follows:-
The contention of Assistant Architects that OM dated 03.03.2008 applicable in case of DR and promotes is not justified. For the sake of brevity, the relevant potion of para 3 of this Department OM dated 03.03.2008 is reproduced below. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or year either by direct Recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year/vacancy/panel or year in which they are promoted on substantive basis. The year of availability will be the vacancy year in which candidate of the particular batch of selected direct recruits of an official of the particular batch promotes joins the posts/service. 3.2 Following this advice, the respondents issued a revised seniority list by which the applicant is aggrieved. The official respondents have admitted that the seniority list was revised only because of the advice given by DoP&T.
4. The private respondents have also filed reply in which they have stated that in the provisional seniority list of 2003 the applicant was erroneously and incorrectly shown senior to them even though they had been promoted before her. They have further stated that as per settled principles of seniority, persons appointed as a result of earlier selection should rank senior to those appointed as a result of subsequent selection. The seniority of direct recruits and promotees has been de-linked from the year of vacancies and the promotions have only prospective effect even in cases where vacancy related to earlier years. Thus, it is not permissible to give seniority to a promotee from the vacancy year. The promotee gets seniority from the date of his promotion. They have stated that the official respondents have only corrected an error that had continued since 2003.
5. We have heard the parties and have perused the material placed on record.
5.1 Learned counsel for the applicant Ms. Tamali Wad relied on the judgment of Honble Supreme Court in the case of UOI & Ors. Vs. N.R. Parmar & Ors., 2012(11)SCALE 437 to say that the process for applicants promotion to the post of Architect had been initiated in the year 2001-02 itself but could not be completed in the same year due to certain clarifications sought by UPSC vide their letter dated 21.09.2001. The DPC was finally held on 20.05.2002. Thus, in terms of the judgment of Honble Supreme Court mentioned above she was entitled for seniority from the year 2001-02. The DPC had also assigned vacancy year 2001-02 to her while recommending her name for promotion.
5.2 Further, she relied on the DoP&T O.M. No. 20011/1/2012-Estt.(D) dated 04.03.2014, which has been issued following the judgment of Honble Supreme Court in the case of N.R. Parmar (supra). The relevant para of the aforesaid O.M. is reproduced hereunder for the sake of convenience:-
5. The matter has been examined in pursuance of Honble Supreme Court Judgment on 27.11.2012, in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar vs. UOI & Ors in consultation with the Department of Legal Affairs and it has been decided, that the manner of determination of inter-se-seniority of direct recruits and promotes would be as under:
a) DoPT OM No. 20011/1/2006-Estt.(D) dated 3.3.2008 is treated as non-existent/withdrawn ab initio;
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPT O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of Inter se seniority between direct recruits and promotees;
c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; In the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.
f) The initiation of recruitment process for any of the modes viz. direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;
h) The above principles for determination of Inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Ors.
i) The cases of seniority already settled ith reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened. 5.3 Learned counsel argued that as is obvious from the letter dated 03.05.2012 of the official respondents (Annexure A-2) by which her representation has been rejected, that rejection was done solely on the ground that fixation of her seniority was contrary to the instructions laid down by the DoP&T vide their O.M. dated 03.03.2008. The aforesaid O.M. provides that for the purpose of determination of inter se seniority between direct recruits and promotees the actual year of appointment was relevant even if the appointments were made against unfilled vacancies in subsequent years. Thus, seniority was to be fixed based on the date of appointment rather than the date of vacancy. This O.M. has, however, been declared to be nonest by Honble Supreme Court in the case of N.R. Parmar (supra). The DoP&T have also stated that the aforesaid O.M. be treated as non existent/withdrawn ab initio. Clause-5(a) of the aforesaid instructions quoted above can be seen in this regard. Learned counsel argued that since the only reason for rejecting her representation was the aforesaid O.M. and now since the same has been treated as non existent, the respondents were duty bound to correct the seniority list as well.
5.4 Learned counsel also argued that several times DoP&T have issued instructions that the model calendar prescribed for holding DPCs must be strictly adhered to. The same have been reiterated vide their O.M. No. 22011/1/2011-Estt.(D) dated 11.03.2011. The respondents failed to adhere to this calendar and delayed holding the DPC. For the fault of the respondents, the applicant cannot be allowed to suffer.
6. We have considered the aforesaid submissions of the applicants counsel. On perusing the material placed before us, we find that in the seniority lists issued on 01.04.2003, 16.07.2008 and 22.03.2011, the applicant had been assigned seniority above the private respondents. This was done in accordance with the prevalent seniority instructions at that time giving the applicant benefit of the vacancy year which had been assigned to her by the DPC at the time of her promotion. However, when in a different matter, the issue of inter se seniority between Assistant Architects and Deputy Architects who had joined in subsequent years was referred to DoP&T, that department advised the official respondents herein to follow DoP&T O.M. dated 03.03.2008 according to which inter se seniority between persons coming from different streams was to be determined based on their appointment/promotion on substantive basis. Following this advice, the respondents changed the settled seniority list and issued the revised impugned seniority list dated 09.07.2012 in which the private respondents have been shown above the applicant. However, now that the O.M. dated 03.03.2008 has been declared as nonest by Honble Supreme Court and has also been withdrawn ab initio and declared as non existent by DoP&T, in our considered opinion, seniority assigned to the applicant on the basis of this O.M. needs to be revisited. We notice that in the O.M. dated 04.03.2014 quoted above, in Para-5(i) the DoP&T has instructed that cases of seniority already settled on the basis of O.M. dated 7.2.86/3.7.86 may not be reopened. However, there is no bar in reopening cases settled on the basis of O.M. dated 03.03.2008. In fact, the very purpose of declaring that O.M. to be non existent/withdrawn ab initio is to revisit all actions taken in pursuance of the same. Had that not been the intention, DoP&T would have issued O.M. dated 04.03.2014 in supersession of O.M. dated 03.03.2008 rather than treating O.M. dated 03.03.2008 as non existent/withdrawn ab initio.
6.1 On the other hand, learned counsel for the private respondents Sh. S.C. Saxena argued that the case of N.R. Parmar (supra) was not relevant to the present O.A. because N.R. Parmars case dealt with determination of inter se seniority between direct recruits and promotees whereas the present case concerns with seniority dispute between two sets of promotees. We are not inclined to agree with this argument. In our opinion, the ratio laid down in N.R. Parmars case would apply in all cases involving determination of inter se seniority of persons coming from two different streams. It is not material whether one stream is of direct recruits and other of promotees or whether both streams are of promotees coming from different sources. We find that in N.R. Parmars case Honble Supreme Court has held that if recruitment process for a particular stream is initiated in a particular year but gets delayed and is completed in a subsequent year then persons participating in the recruitment process should not be allowed to suffer as regards their seniority. In the instant case also the promotion process of the applicant was initiated in the year 2001-02 but was completed in the subsequent year. Hence, this case will be covered by the judgment of the Apex Court in N.R. Parmars case.
6.2 Learned counsel further relied on the judgment of Honble Supreme Court in the case of State of Uttaranchal & Anr. Vs. Dinesh Kumar Sharma, (2007) 1 SCC (L&S) 594 to say that Honble Supreme Court in the above mentioned case has very clearly laid down that persons appointed on promotion shall not get seniority of any earlier year but shall get seniority of the year in which his/her appointment is made. He relied on paras 28 and 29 of the aforesaid judgment, which are reproduced below:-
28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999.
29.In a recent judgment of this court in Uttaranchal Forest Rangers Association (Direct Recruit) & Ors vs. State of U.P.& Ors 2006(9) Scale 577, (Dr. AR. Lakshmanan and Tarun Chatterjee) this Court was of the view that seniority has to be decided on the basis of Rules in force on the date of appointment, no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre. Similar view was taken by this Court in the case of K.C.Joshi vs. Union of India 1992 Suppl (1) SCC. 6.3 We have gone through the aforesaid judgment and we find that in the aforesaid case the respondent Sh. Dinesh Kumar Sharma who had been appointed to the Government of U.P. Subordinate Agriculture Service Class-I on 19.11.1999 against a substantive vacancy for the year 1997-98 was seeking seniority from the year 1995-96. In this case, there was no averment made by the respondent Sh. Dinesh Kumar Sharma that his selection process had been initiated in the year 1995-96. Honble Supreme Court, therefore, ruled that no case for retrospective promotion can be made out. Thus, this case is clearly distinguishable from the present case inasmuch as the present case is covered by the decision of Honble Supreme Court in the case of N.R. Parmar (supra) but Dinesh Kumar Sharma (supra) is not.
6.4 Learned counsel for private respondents Sh. Saxena also relied on the judgment of Honble Supreme Court in the case of Bhey Ram Sharma & Ors. Vs. Haryana State Electricity Board and Ors., AIR 1993 SC 2573 in which also the Honble Supreme Court had ruled that date of appointment was relevant factor for determining inter se seniority. Learned counsel relied on Para-5 of the aforesaid judgment, which is quoted below:-
5. This Court has examined the question of fixation of seniority inter se between officers appointed from different sources i.e. by promotion and by process of direct recruitment. It is almost settled that while determining the inter se seniority amongst officer recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some Rule providing otherwise which can be held to be consistent with Arts. 14 and 16 of the Constitution. Reference in this connection may be made to the cases of N. K. Chauhan v. State of Gujarat, AIR 1977 SC 251, Paramjit Singh v. Ram Rakha Mal, AIR 1983 SC 314 A. Janardhana v. Union of India, AIR 1983 SC 769, A.N. Pathak v. to the Govt. Ministry of Defence, AIR 1987 SC 716. The same view was approved by a Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. (1990) 2 SCC-715 : (AIR 1990 SC 1607). 6.5 On going through the facts of this case, we find that the appellants therein had first been appointed as an Apprentice in terms of Recruitment Rules which provided that they would be considered as Assistant Engineer Class-II only on completion of their Apprenticeship. The issue before the Honble Court was, therefore, to determine whether their date of appointment should be 06 months after their appointment as Apprentice since the Apprenticeship period was to be of 06 months. The Honble Court, however, found that the period of Apprenticeship could be extended and declined to entertain the claim of the appellants holding that their date of appointment would be only after successful completion of the apprenticeship period. Clearly the facts of this case are distinguishable from the facts of the present case. There was no averment with regard to the recruitment process starting in a particular year and extending to later years. Thus facts of this case are also distinguishable from the case of N.R. Parmar (supra) which is relevant to the present O.A.
7. In view of the above, we find merit in the contention of the applicant. We, therefore, allow this O.A. and quash the seniority list dated 01.01.2012 qua the applicant. We further direct the respondents to re-determine the seniority of the applicant based on the observations made above. Since the applicant has not alleged that the private respondents have been promoted to the next higher post, in the meanwhile, the question of granting any consequential benefits does not arise. The above benefit shall be extended to the applicant within a period of two months from the date of receipt of a copy of this order. No costs.
(Shekhar Agarwal) (A.K. Bhardwaj) Member (A) Member (J) /Vinita/