Central Administrative Tribunal - Delhi
E.Nagachandran vs Union Of India Through The Chief ... on 16 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1831/2007 New Delhi this the 16th day of July, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) E.Nagachandran, S/o Shri P. Eeaswaran, Senior Research Officer, Planning Commission, Room 550, Yojana Bhavan, Parliament Street, New Delhi-110001 Applicant Applicant in person. VERSUS 1. Union of India through the Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001 2. The Secretary to the Government of India, Department of Personnel and Training, North Block, New Delhi-110001 3. Shri V. Parmeswaran 4. Shri Hari Singh Neharia 5. Smt. Shobha Marwah 6. Dr. Savita Sharma 7. Dr. Harcharan Singh 8. Dr. Ravinder Singh 9. Shri Jitender Kumar 10. Shri Ramesh Kumar Khurana 11. Shri Rajeev Lochan 12. Dr. Dipankar Sinha 13. Shri Mohan Singh 14. Shri Ashok Kumar Vishandas 15. Shri Kanchan Dyuti Maiti 16. Shri Ravi Kant Bhatnagar 17. Dr. Vijay Prakash Goel 18. Shri Paritosh Chand Sarkar 19. Dr. Rattan Chand 20. Shri Vinod Kumar Srivastava 21. Shri G.Subramaniam 22. Shri Nilachal Ray 23. Shri Subrata Kumar Das 24. Shri Prakash H.Khopkar 25. Smt. S.A. Bhoyar 26. Shri Shiv Kumar 27. Shri M.R. Meena 28. Shri G.R.Meena 29. Shri Om Prakash Misra 30. Shri Bimal Kumar Giri 31. Dr. Satish Prasad Sharma 32. Shri Devi Lal Meena 33. Shri G.Sivasubramanian 34. Shri P.S.Bose 35. Shri Dasarathi Sahoo 36. Shri Pratap Kumar Bisi 37. Shri Tapas Kumar Dutta 38. Shri Sunil Kumar Chakrabarti 39. Shri Ashok Kumar Mathur 40. Shri Deepak Rastogi 41. Shri Aloke Kar 42. Shri Ghanshyam Punjabi 43. Shri Surender Singh Shokeen 44. Shri Sumedh Sopan Nagrare 45. Shri R.C. Gautam (Potpose) 46. Shri S.P. Singh 47. Ms. Renuka Ravindran 48. Ms. Ranjana Singh 49. Shri T.K.Lahiri 50. Shri Purushottam Lal 51. Shri F.U.Khan 52. Shri Yogesh Goel 53. Shri A.K.Aggarwal 54. Shri Anoop Kumar 55. Smt. Hans Raj Sharma 56. Shri R.K.Gupta 57. Dr. P.C.Mishra 58. Dr. Dalip Singh 59. Shri D.K.Pandey 60. Shri J.S. Venkateswarlu 61. Shri Sanjay 62. Shri P.K.Banerjee 63. Shri Siddhartha Kundu 64. Shri Praveen Shukla 65. Smt. Bandana Sen 66. Shri Ajay Bakshi 67. Dr. Chandramani Sharma 68. Shri P. Manickam 69. Shri Kishore Kumar 70. Shri M.K.Ujjainia 71. Shri Raj Kumar 72. Shri Kishore Baburao Surwade 73. Shri Jyoti Prasad Arya 74. Shri M.M.Singh 75. Shri Kiran Kumar Ravuri. Respondents (By Advocate Shri H.K.Gangwani ) Address for Service of respondent Nos 3 to 41 Ad-hoc SAG & Regular NFSG/JAG Officers of the Indian Statistical Service, C/o Secretary to the Government of India, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001 Address for Service of Respondent Nos 42 to 75: Ad-hoc JAG & Regular STS Officers of the Indian Statistical Service, C/o Secretary to the Government of India, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi-110001 O R D E R Honble Mrs. Meera Chhibber, Member (J) :
2 Applicants had initially challenged OM dated 30.3.1988 (page 31), order dated 2.11.2006 (page 33) whereby Junior Administrative Grade Officers (hereinafter referred to as JAG) Officers of the Indian Statistical Service (hereinafter referred to as ISS) were promoted to the Senior Administrative Grade on ad hoc basis till further orders and order dated 15.6.2007 whereby Senior Time Scale (hereafter referred to as STS) Officers of the ISS were promoted to the JAG on ad hoc basis in the scale of Rs.12000-16500 till further orders.
2. Initially, the OA was filed by 2 applicants, namely, E. Nagachandran and Tushar Ranjan Mohanty. E. Nagachandran was aggrieved by order dated 15.6.2007 while applicant No.2 was aggrieved by order dated 2.11.2006. However, applicant No.2 was subsequently deleted from the array of parties in view of Tribunals order dated 6.1.2009 passed in MA No. 26/2009 as he had himself prayed that he be deleted from the array of parties. In view of above, we have to consider the grievance of applicant No.1 only.
3. It is stated by applicant No.1 that he was appointed to Grade-IV (Jr Time Scale) of ISS as direct recruit through the Indian Statistical Service Examination, 1998 and joined the Grade-IV (Jr Time Scale) in 1999. He was granted Sr. Time Scale and was entitled to be considered for JAG.
4. His grievance is that vide order dated 15.6.2007 respondents have given promotion to respondents No.42 to 75 in the Junior Administrative Grade on ad hoc basis after giving them relaxation, which, according to the applicant, is absolutely illegal and contrary to the RRs inasmuch as according to him no relaxation could have been given to STS Officers, as none of them were eligible as per the RRs. As per Rule 8 (C) of Indian Statistical Service Rules, 1961, all the posts in the JAG could be filled by promotion from amongst Senior Time Scale Officers who had completed not less than 5 years of service on regular basis in that grade. Promotions were to be made only on the basis of merit with due regard to seniority on the recommendations of the Departmental Promotion Committee (page 193). Moreover, Rule 10 (iii) of the above rules specifically deals with the procedure to be followed even for ad hoc promotions, therefore, no other procedure could have been followed by the respondents. According to Rule 10 (iii) even ad hoc promotions were to be made in accordance with the procedure laid down in Rule 8, therefore, ad hoc promotions could have been made only on the basis of merit-cum-seniority whereas respondents have given promotions to the private respondents on the basis of seniority alone.
5. He further submitted that since none of the STS Officers were eligible for promotion to the post of JAG in accordance with the rules, seniority is not relevant. Applicant also had a right to be considered along with those officers as he falls at Sl.No.109 of the seniority list of STS Officers. There were 53 vacancies of JAG and respondents ought to have considered 53 multiplied by 2 plus 4 candidates for promotion to JAG on ad hoc basis, whereas he has wrongly been deprived of his right for consideration for promotion to the post of JAG on ad hoc basis.
6. He further submitted that respondents have got the relaxation approved from DOP&T whereas there is no such power of relaxation in the rules. Had the respondents considered the officers on the basis of merit alone, applicant could have been promoted because all his ACRs are outstanding. On the question of relaxation, he also submitted that the OM dated 30.3.1988 would not apply in applicants department because their rules specifically deal with ad hoc promotion. In any case respondents cannot claim unrestricted power to relax the rules. He also referred to the OM dated 29.10.1975 issued by the Department of Personnel & Administrative Reforms wherein para 3 specifically referred to Regulation 4 (1) of the UPSC (Exemption from Consultation) Regulations and Ministries/Departments were requested to ensure strict compliance with the requirements of the said regulation in such cases. He thus submitted that UPSC could not have been ignored and ad hoc promotions could not have been issued without taking prior permission of the UPSC. He thus prayed that the order dated 15.6.2007 may be quashed and respondents be directed to consider the applicant for ad hoc promotion in accordance with statutory rules.
7. Respondents, on the other hand, have opposed this OA. They have submitted, the OM, which lays down the policy guidelines for ad hoc promotion were issued by the DOP&T in 1988 as such applicant cannot challenge it after more than 19 years, that too, when no cause of action has arisen in his favour. It is within the realm of Central Government to frame a policy and policy matters cannot be challenged unless it is proved that they are against the public interest. He has failed to prove how this policy has adversely affected his service interests. In fact the present OA has been filed in the nature of Public Interest Litigation, which cannot be entertained or adjudicated upon by the Tribunal.
8. They have further stated that applicant did not even fall within the zone of consideration so all the points raised by him are absolutely irrelevant. They have placed reliance on OM dated 6.1.2006 to state that zone of consideration has been reviewed and it has now been decided by the Department of Personnel & Training that for vacancies exceeding 10, the normal size of zone of consideration will be one and a half times the number of vacancies, rounded off to next higher integer, plus three but shall not be less than the size of zone of consideration for 10 vacancies. According to this formula, only 93 officers would have come within the zone of consideration who were duly considered. Since applicant was admittedly at Sl.No.109, he did not even fall within the zone of consideration, therefore, he cannot have any valid grievance nor can raise any objection to the promotion of officers, who were senior to him and were within the zone of consideration. They have specifically stated that none of his junior was either considered or promoted on ad hoc basis. In any case the regular promotion orders have been issued on 27.07.2009 promoting STS officers to the JAG. Applicants name does not figure in this order also, therefore, this OA has become infructuous.
9. They have explained the background in which ad hoc promotions were made by stating that keeping in view the service interest of the cadre, cadre review was carried out but since none of the STS officers fulfilled the qualifying services for being considered to the next post of JAG, respondents proceeded to fill up the posts after obtaining due relaxation/clearance from the authorities concerned. This was only a stop gap arrangement subject to the condition that officers promoted on ad hoc basis would not be entitled to count such period of officiation for regularisation, seniority etc. This is permissible in order to run smooth functioning of the Government.
10. They have explained that applicant is a direct recruit of 1999 batch officer who was promoted to STS on regular basis vide order dated 22.9.2005. In order to fill up the vacancies at the JAG level arising during 2006-07 as a result of regular promotion to the SAG made vide order dated 26.7.2006 and vacancies which arose on account of promotion of 39 officers from JAG to SAG on ad-hoc basis vide order dated 2.11.2006 etc., a proposal was mooted some time in December 2006. During the course of scrutiny, it was found that excepting two officers, none of the STS level officers had completed required qualifying service of five years as on 1.1.2006 (i.e. crucial date of eligibility). Since the order of restructuring of ISS was issued on 5.1.2006 after the approval of the Cabinet and the cadre review was done with the intention to reduce the stagnation, the matter was considered at the appropriate level and in the overall interest of the service, it was decided to approach the DOPT to accord one time relaxation in the qualifying service in respect of 40 officers who were found to have worked continuously on ad-hoc basis at the STS level ranging from 2 years nine months to 5 years seven months. It was also found that most of these officers belong to 1993/1994 batch (along with promotees who had joined ISS in 1990). A detailed proposal seeking the relaxation was accordingly sent to the DOPT (Respondent No.2) and the DOPT, after considering/scrutinizing the proposal in detail, accorded their relaxation (in February, 2007) for ad-hoc promotions only. After receipt of relaxation, appropriate action was taken in the matter. A meeting of the Internal Selection Committee was finally convened on 15.6.2007 and based on the recommendations of the Committee, the impugned order dated 15.6.2007 promoting 35 STS level officers to JAG on ad-hoc basis was issued. They have thus stated that the officers who were promoted were much much senior to the applicant as they belong to 1993 and 1994 batch along with promotees who had joined in ISS in 1990 whereas applicant had joined ISS only in the year 1999. They have specifically stated that no junior to applicant was considered or promoted to JAG on ad hoc basis vide order dated 15.6.2007, therefore, applicant cannot have any grievance.
11. They have further explained after issuance of the promotion order dated 15.6.2007, the vacancies at the JAG level for the year 2007-08 was also worked out at 35. However, no officer was found eligible as per the RRs. In the interest of service, it was decided to move a proposal for relaxation (as done on the earlier occasion) to the DOPT. Accordingly, a detailed proposal seeking relaxation was sent to the DOPT to fill all the available vacancies. The DOPT, after considering the Respondent Ministrys proposal, accorded relaxation in the eligibility criteria for officers up to 1997 batch only (including promotees) for ad-hoc promotion to JAG level. After receipt of the relaxation from DOPT, further appropriate action was taken and an order promoting 18 STS level officers to JAG on ad-hoc was issued on 30.10.2007. As the Applicant No.1 belongs to 1999 batch, he was not considered/covered in the promotion order dated 30.10.2007. They have categorically stated that no junior to the applicant has been promoted in the said promotion order. They have thus prayed that the OA may be dismissed as none of the rights of the applicant have been violated.
12. As far as challenge to OM dated 30.3.1988 is concerned, they have submitted, no prejudice has been shown by the applicant. Even in these instructions it has been reiterated that the post shall be filled in accordance with the RRs on a regular basis. Ad hoc promotions are limited to posts which cannot be kept vacant until regular candidates become available. Relaxation of RRs providing for ad hoc appointment has been prescribed to check appointment of very junior/ineligible departmental officers. These instructions are required to be followed to maintain day to day functions. ISS Rules do not deal with ad hoc promotions. Rule 10 (iii) of ISS Rules, 1961 deals with only temporary arrangements for filing up of duty posts against vacancies, other than regular, which are not to be brought on the recruitment roster by ad hoc promotion whereas these promotions were made on ad hoc basis against the regular and notified posts, therefore, Rule 10 (iii) would not be applicable in the present case.
13. They have also stated that the ad hoc promotion is no longer in existence as the STS officers have already been given regular promotions in JAG after holding a regular DPC vide order dated 27.7.2009. Applicants name does not even figure in this order. They have thus prayed that the OA may be dismissed as it has become infructuous.
14. We have heard applicant, who appeared in person and the counsel for the respondents.
15. Applicants whole case is that he has been wrongly denied the right of consideration for promotion to JAG on ad hoc basis whereas respondents have stated applicant was not even in the zone of consideration. In these circumstances we will have to first decide which instructions would apply in the given case for fixing the zone of consideration.
16. Applicant has stated since posts were created on 5.1.2006, instructions dated 6.1.2006 would not apply and zone of considerations should have been as prevalent earlier viz. number of vacancies multiplied by 2 plus 4 which would come to 110 and since he was at Sl.No.109 he should have been considered.
17. We are unable to accept this contention of the applicant because size of zone of consideration was earlier also issued by DOP&T by way of administrative instructions. It was not part of the statutory rules. Administrative instructions can always be reviewed.
18. In the instant case if DOP&T after reviewing the earlier instructions of 22.4.1992 modified the zone of consideration to 1.5 times the number of vacancies plus 3. No fault can be found in it. Since DPC was convened after 6.1.2006, naturally respondents adopted the formula as laid down in instructions dated 6.1.2006. According to this formula, zone of consideration would be 53 x = + 3 = 83. Admittedly, applicant was at Sl.No.109 so he did not even come within the zone of consideration as such he cannot question the promotion of others who were admittedly much senior to him and were considered as they fell within the zone of consideration. Moreover, respondents have explained that the proposal to fill up the pot of JAG was mooted in December, 2006 for filling up the vacancies of JAG arisen during 2006-07 as a result of regular promotion to the SAG made vide order dated 26.7.2006 and the vacancies which arose on account of promotion of 39 officers from JAG to SAG on ad hoc basis vide order dated 2.11.200.
19. From above, it is clear that the vacancies had arisen after 6.1.2006, therefore, naturally the instructions of 6.1.2006 would apply while filling up those posts. Since as per instructions dated 6.1.2006 the zone of consideration would be 83 as against 53 vacancies, applicant was not even in the zone of consideration as he was as per his own case at Sl.No.109 in the seniority list, therefore, he cannot have any grievance if persons above him were granted relaxation. None of his rights can be said to have been violated. All the issues raised by him would have been relevant, if he was within the zone of consideration.
20. Since he was not even in the zone of consideration, we need not go to the other questions raised by the applicant. OA can be entertained only if a person is able to demonstrate his legal rights have been violated. In the instant case, applicant was not even in the zone of consideration so it cannot be stated that any of his legal right has been violated, therefore, OA is not maintainable.
21. In any case respondents have held a regular DPC and issued order dated 27.7.2009 whereby regular promotions have been given to the STS officers to the JAG. Applicants name does not figure even in this order, therefore, if he is aggrieved, he should have challenged the final order. The present OA has become infructuous, therefore, it is liable to be dismissed on this ground also.
22. In view of above, the OA is not maintainable. The same is accordingly dismissed. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh