Central Administrative Tribunal - Delhi
Smt. Vidya Wati Arya Wd/O Const. Om ... vs Union Of India Through on 13 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3098 of 2011 Order reserved on : 9th July, 2012 Pronounced on : 13th July, 2012 HONBLE SHRI JUSTICE ALOK KUMAR SINGH, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Smt. Vidya Wati Arya wd/o Const. Om Prakash, R/o Quarter No.137/6, Type-II, Sec.-1, Pushp Vihar, New Delhi-110017. Applicant ( By Shri Naender Dutt Kaushik, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Director General BSF, HQ DG BSF, CGO Complex, Block 10, New Delhi. 3. Inspector General Training, HQ DG BSF, New Delhi. 4. Satbir Singh MSGR (NC), Staff Section, HQ DG BSF, New Delhi. 5. Smt. Meena Kumari MSGR (NC), Adm. Directorate, HQ DG BSF, New Delhi. Respondents ( By Shri D. S. Mahendru, Advocate ) O R D E R Justice Alok Kumar Singh, Acting Chairman:
This Original Application has been filed seeking following reliefs:
A. Call for the record specially. (As typed in the OA).
B. The respondent be directed to specially Seniority List year wise be maintained by the respondent, Promotion orders of LDCs and details of direct recruitments etc. C. Quash and set aside the Promotion order dt. 31.3.2010.
D. To grant Seniority and Promotion to the applicant as per her Seniority i.e. w.e.f. 2008 effect from the date his juniors have been so promoted, as per the rules with consequential benefits. E. Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant. F. Cost of the proceedings be awarded in favour of the applicant and against the respondent.
2. The case of the applicant in brief is that she lost her husband Constable Om Prakash in an accident on 12.05.1980. Thereafter, she was given appointment on compassionate ground in BSF as Peon (Non-Combatized) w.e.f. 10.03.1987. The official respondents were not justified in employing her only as a Peon, and that too after about seven years of the death of her husband. Her request for appointment on the post of Clerk was turned down in the year 1994. But no prayer has been either made in the OA or insisted upon to treat the applicant as having been appointed as Clerk from the very inception. Presently, the applicant appears to be aggrieved by her non-promotion to the post of LDC. In this context, she has sought quashing of the impugned promotion order dated 31.03.2010, by means of which Shri Satbir Singh and Smt. Meena Kumari (respondents 4 and 5) have been promoted as LDC. It is claimed that they are junior to the applicant. Before approaching this Tribunal, the applicant sent a legal notice dated 03.04.2011 to the official respondents seeking her promotion. The respondents have given a detailed reply to the said legal notice on 24.05.2011 (Annexure A-2). In support of her claim, the applicant has annexed a seniority list as on 09.12.1996 (Annexure A-7) showing her name at serial number 13. This list starts from page 2, and the names from serial numbers 1 to 12 which might have been mentioned at page 1, have not been brought on record. Reference has also been made in the pleadings (para 4.6) to a paper dated 24.12.1997 by means of which four persons, including the applicant shown at serial number 1, were informed that they had been found eligible for departmental examination for appointment as LDC, and that they may prepare themselves accordingly (Annexure A-10). In para 4.24, it has been also pleaded that on 04.01.2010, Training Directorate was informed that DPC was likely to be held to fill up the vacancies of LDC against promotion quota, and that if there is any disciplinary/vigilance case pending against the applicant and other persons named in this letter, the same may be informed. It is pleaded that in this letter also the name of the applicant is at serial number 1 (Annexure A-12). But ultimately, the applicant was not promoted as LDC. Instead Shri Satbir Singh and Smt. Meena Kumari (respondents 4 and 5) were selected, in respect of whom even disciplinary/vigilance clearance was not sought. The said promotion order is dated 31.03.2010, which has been impugned.
3. The OA has been contested by the official respondents by filing a detailed counter affidavit, admitting that the applicant was appointed as Peon (Non-Combatized) in BSF on 10.03.1987 on compassionate grounds. She was further promoted to the post of Daftry (Non-Combatized) w.e.f. 31.10.2007 on the basis of her seniority-cum-fitness (Annexure R-2). She was also granted second financial upgradation under Modified Assured Career Progression Scheme (MACPS) in Pay Band-1 w.e.f. 01.09.2008. The applicant had earlier submitted her educational certificates of matriculation and intermediate, which were got verified in the year 2003, and as per intimation received from UGC, the Mahila Gram Vidyapith, Allahabad, from where the applicant claimed to have passed her matriculation and intermediate, was a fake institution. In view of this, the applicant was treated as class 8th pass for the purpose of service matters, about which she was informed in writing on 16.07.2003 (Annexure R-4). Thereafter, she had passed secondary school examination on 12.06.2008 through National Institute of Open Schooling (Annexure R-5). She submitted the said certificate to the department on 17.07.2008 (Annexure R-6). Thus she became eligible for promotion to the post of LDC only w.e.f. 12.06.2008, as the minimum educational qualification for the post of LDC is matriculation or equivalent, as per the relevant recruitment rules. It has been further pleaded on behalf of the official respondents that there are 41 sanctioned posts of LDC (Non-Combatized) at HQ DG BSF. Out of these, 35 posts (85%) are required to be filled by direct recruitment through Staff Selection Commission (SSC); 4 posts (10%) are required to be filled on the basis of Limited Departmental Competitive Examination (LDCE) from amongst Group D staff (Non-Combatized) of HQ DG BSF, BSF Signal Regiment, New Delhi, who possess matriculation or equivalent qualification, and who have rendered five years of regular service in Group D posts, and are below 45 years of age; and 2 posts (5%) are required to be filled by promotion on the basis of seniority-cum-fitness from Group D employees. By the time the applicant submitted her above matriculation certificate, she had already completed 54 years, and as such she was not eligible for consideration on the basis of LDCE. Hence, she could be considered only against 5% quota for the post of LDC subject to her seniority and fitness. Accordingly, the case of the applicant was considered by the DPC held for the vacancy year 2010-11 in which four eligible Group D employees, including the applicant, were considered as per recruitment rules, and finally the DPC found two employees, namely, respondents 4 and 5, who were senior to the applicant, fit for empanelment for promotion to the grade of LDC. As there were only two vacancies in the promotion quota, the name of the applicant could not be recommended. It has also been asserted that the seniority list of non-combatized personnel is properly maintained and circulated from time to time.
4. Rejoinder affidavit has also been filed in this case, wherein the pleadings contained in the OA have been reiterated.
5. We have heard the learned counsel for parties and perused the entire material on record. At the outset, it may be mentioned that three main reliefs have been sought in this OA as contained in para 8(B), (C) and (D). Under para 8(B), relief has been sought for directing the respondents to maintain year-wise seniority list and promotion orders of LDCs, and details of direct recruits. The respondents have specifically pleaded in para 5.19 of the counter affidavit that seniority list of non-combatized personnel is properly maintained and circulated from time to time. In the rejoinder affidavit, paras 5.9 to 5.19 have been replied conjointly saying that the contents thereof are wrong, and hence denied, and that corresponding paras of the OA are reiterated as true and correct. This is merely a general denial. There is no specific plea either in the OA or in the rejoinder affidavit that seniority list of non-combatized personnel is not being properly maintained and circulated from time to time. Moreover, this plea could not be substantiated by the applicant on the basis of any material on record. During the course of arguments also, no relevant rules could be shown to indicate that seniority list of non-combatized personnel is required to be maintained in a particular manner, or in the manner as claimed by the applicant. Similarly, it has not been specifically pleaded or refuted that such seniority list is not being maintained properly or in accordance with rules, and it is not being circulated from time to time, as has been specifically pleaded by the official respondents. Therefore, we do not have any reason to discard or disbelieve the aforesaid averments made in the counter affidavit which has been duly verified by a responsible officer of the rank of DIG (Pers.), HQ DG BSF, New Delhi. Otherwise also, the main relief appears to be for quashing and setting aside the impugned promotion order dated 31.03.2010, and to grant her seniority as claimed in para 8(C) and (D) of the relief clause, which we would be discussing hereinafter. Therefore, as far as the relief claimed under para 8(B) of this OA is concerned, it is devoid of any merit, and hence cannot be granted.
6. Now we take up both the above remaining reliefs jointly. The impugned promotion order dated 31.03.2010 can be quashed only if the applicant is able to show that both the persons who have been promoted vide this order were junior to her, or, in other words, she was senior to both of them. Admittedly, according to the relevant recruitment rules, 15% of the total vacancies/posts have to be filled up by promotion, and the remaining 85% by direct recruitment. Out of the 15%, 10% posts are to be filled on the basis of limited departmental examination amongst Group D by persons who possess matriculation or equivalent qualification and have rendered five years regular service in Group D post, and are below 45 years of age. There is an uncontroverted pleadings from the official respondents that the applicant was initially considered as eligible to appear in the departmental examination which was conducted on 24-26th March, 1998 on the basis of her service profile and educational certificates submitted by her, and assessed by a duly constituted DPC, but on account of insufficient vacancies and not gaining any merit, she could not be picked up for promotion. Later on, during 2003, it was revealed that the certificates of matriculation and intermediate submitted by her were fake, about which she was informed in writing on 16.07.2003 (Annexure R-4). Then after about five years she passed the secondary school examination on 12.06.2008 and submitted her certificate. Therefore, any claim for appointment/promotion to the post of LDC before 12.06.2008 cannot be considered, because the basic qualification for appointment/promotion to the post of LDC is matriculation or equivalent qualification, as per the notified statutory rules.
7. Thus, the only option left for the applicant was to get promotion against the remaining 5% posts on the basis of seniority-cum-fitness. At the time of relevant exercise for giving promotion, there were only two posts for the purpose. On this point also, there does not appear to be any dispute. Again, there is a specific pleading in the counter affidavit (verified by a responsible officer of the rank of DIG (Pers.), HQ DG BSF, New Delhi) that both the persons, i.e., private respondents 4 and 5, who were found fit for empanelment for promotion to the grade of LDC, were senior to the applicant. This specific pleading is contained in para 11, 1(A) and para 5.1 of the counter affidavit. Besides, in para 7 of the counter affidavit, particulars of all the four persons who were considered by the DPC have been given in a tabular form. In column 6, the dates of joining of all the four have been indicated. The dates of joining of Satbir Singh, the 4th respondent, and Smt. Meena Kumari, the 5th respondent, have been shown as 01.03.1977 and 22.03.1986 respectively, whereas the date of joining of the applicant has been shown as 10.03.1987. All these specific pleadings have been denied merely in a general manner in the rejoinder affidavit. There is no specific denial in the rejoinder affidavit. Concededly, the applicant was initially appointed on 10.03.1987 and she could not bring anything on record to show as to how she would be senior to the above two persons, who entered into service about ten years and one year before the applicant, i.e., in the year 1977 and in the year 1986. The applicant has placed reliance on a seniority list dated 09.12.1996 (Annexure A-7). It is an incomplete document. It starts from page 2. Though the name of the applicant is on the top of this page 2, but her serial number is 13, as admitted by the applicant herself in the OA in para 4.11. We do not find in this entire list the names of both the above persons, i.e., respondents 4 and 5, who have been promoted. That means both the above persons were not junior to the applicant. Obviously, their names must have been above the applicant in the said seniority list between serial numbers 1 to 12 on page 1, which has been withheld. The applicant has to stand on her own legs. It is really pitiable that she has based her claim on the basis of this seniority list, which is an incomplete document. It is not understandable as to how she could get an incomplete list. There is no contention on record as to why the applicant could not get the first page of the seniority list. There was also no specific request for summoning the first page from the respondents. It amounts to a futile effort on the part of the applicant to mislead this Tribunal. The second document to which reference has been made in the OA is dated 24.12.1997, placed at Annexure A-10 (wrongly mentioned as Annexure A-9 in para 4.16). According to pleading contained in this paragraph, the applicant has been shown at serial number 1 in order of seniority with other three persons. This is again a misleading averment. Perusal of this document would show that by means of this circular, four Group D employees of a particular HQ were informed that they had been found eligible for departmental test for appointment as LDC, and that the date of test would be communicated separately. It is true that the name of the applicant is at serial number 1 in this letter, but it cannot be construed a seniority list, and secondly, it is nowhere mentioned that the four names appended below are according to seniority. Thirdly, it is also not relevant because it pertains to departmental examination (for 10% posts) amongst Group D staff who possess matriculation or equivalent qualification, and have not crossed the age of 45 years, whereas the applicant cannot claim any appointment/ promotion to the post of LDC before 12.06.2008, as already said above, because the institution from which the applicant had claimed to have passed high school and intermediate was found to be fake, about which she was informed in 2003, which she never challenged. Instead, she passed an equivalent matriculation examination on 12.06.2008, and submitted it with the official respondents. Nevertheless, prior to 2003, as the fakeness of the institution could not be noticed/ascertained, therefore, the applicant was even permitted to appear once in the year 1998 in the departmental examination, which was conducted on 24-26th March, 1998, as averred in para 4.6 of the counter affidavit, but she could not succeed. We have also noted hereinbefore that now the applicant is about 54 years of age, whereas the cut off age for appearing in such test, according to rules, is 45 years. Therefore, from any point of view, the above document is not relevant. In para 4.24 of the OA, reference has been made to another document filed at Annexure A-12 dated 27.02.1998. In this document also four persons have been informed about the date of departmental examination for appointment as LDC. In this paper also name of the applicant is at serial number 1. Again, it is a misleading averment for the same reasons as mentioned above, because this document also pertains to same departmental examination which was held on 24-26th March, 1998, in which she appeared but could not succeed, and which is not under challenge before us. The impugned order dated 31.03.2010 pertains to promotion on the basis of seniority-cum-fitness in respect of only 5% posts. It has nothing to do with the departmental examination, which is available to Group D employees below 45 years of age in respect of 10% posts for promotion. Hence the above documents are not relevant for the present case. There is no other material on record to substantiate the claim of the applicant. Therefore, we do not find any good ground to quash and set aside the impugned order dated 31.03.2010.
8. As far as the other relief for granting seniority and promotion with effect from 2008 is concerned, it also appears to be misconceived. Firstly, this relief appears to be suicidal and contradictory to the whole stand taken by the applicant who was appointed on compassionate ground as Group D employee in 1987 itself, and, therefore, where is the question for granting seniority with effect from 2008. As far as granting promotion from 2008 is concerned, we have already discussed at length hereinbefore the point of promotion in case of the applicant. The applicant has also failed to prove that any of her juniors have been promoted with effect from 2008 on the basis of which she is claiming promotion from the date her juniors were promoted. The only promotion which has been impugned is dated 31.03.2010, which we have already discussed. Therefore, the applicant is not entitled to get this relief as well.
9. In para 5.27 of the rejoinder affidavit, it has been pleaded that no DPC has been conducted after a lapse of approximately two years. Under relief clause 8(E) the applicant has sought any other suitable relief. In the interest of justice we are giving necessary directions in this regard in the concluding paragraph.
10. In view of the discussion made hereinabove, reliefs A to D are declined. This OA is finally disposed of with the direction to the official respondents to conduct expeditiously, and in any case, within three months, the next DPC in respect of 5% posts (subject to availability of vacancy, if any) for considering promotion on seniority-cum-fitness basis from amongst Group D (non-combatized) employees of HQ DG BSF and BSF Signal Regiment (including the applicant) for the post of LDC in accordance with relevant rules. No order as to costs.
( Dr. Ramesh Chandra Panda ) ( Alok Kumar Singh )
Member (A) Acting Chairman
/as/