Central Administrative Tribunal - Delhi
H.N. Saini S/O Late Sh. L.R. Saini vs Union Of India (Uoi) Through The ... on 20 August, 2008
ORDER Shanker Raju, Member (J)
1. Applicant, a retired Administrative Officer, by virtue of this OA has assailed respondents' order dated 15.11.2007 where his request for promotion to the post of Deputy Director (Admn.) was turned down for non-availability of a vacant post. Applicant has also sought consideration for promotion with consequential benefits.
2. Applicant got his last promotion as Administrative Officer and as per the Recruitment Rules, 1999, the promotional post of Administrative Officer with 8 years regular service is Deputy Director (Admn.), the cadre strength was two posts. Applicant, who was regularly promoted as Administrative Officer on 6.4.1998, on 5.4.2006 has completed eligibility to be considered for promotion as Deputy Director (Admn.). Two posts of Deputy Directors fell vacant on 1.10.2004 and 5.3.2005 respectively. Names of four persons were forwarded for consideration and one Shri R.K. Kanth was promoted on 28.8.2006 as Deputy Director. Applicant was also directed to officiate as Deputy Director since 5.3.2006 till the date of his retirement on superannuation against the vacant post of Deputy Director. A representation preferred to has not been responded to.
3. Staff Inspection Unit (for short, SIU) of Ministry of Finance carried out work study of respondents' officer and submitted its report on 29.3.2004, which was considered by the Ministry of Statistics and Programme Implementation and in consultation with the Financial Advisor, an order passed on 15.2.2006 by the Director, the recommendation of SIU was accepted by the competent authority with concurrence of AS and FA, which, inter alia, included the erstwhile abolished post of Chief Administrative Officer in respect of which, Recruitment Rules exist to be revived and upgraded to the scale of Rs. 12000-16500/-. Out of two posts of Deputy Director (Admn.), one post was ordered for abolition. As no vacant post of Deputy Director was available, representation of the applicant was turned down.
4. Subsequently, an order passed on 23.11.2007 by the Joint Secretary to Government of India in the Ministry of Statistics, order dated 15.2.2006 on re-examination was superceded and accordingly, SIU recommendations in concurrence with Ministry of Finance, Department of Expenditure on 16.11.2007 was accepted with deemed abolition of the post and also creation of the post. The aforesaid has given rise to the present OA.
5. Learned Counsel for the applicant states that if despite SIU recommendations, an order passed by the respondents on 15.2.2006 was not accepted and till the retirement of the applicant on superannuation i.e. 31.3.2007 when one post of Deputy Director, which fell vacant in 2006 was available and had not been abolished by lapse of one year time. Applicant, who has a fundamental right to be considered on fair and equitable basis for promotion, his claim was not considered, is against law.
6. Learned Counsel has also stated that Government of India's OM dated 14.12.2000 and 25.1.1990 issued by DOPT prescribes strict following of the time frame so that the officers approaching superannuation are not denied promotion, for this DPC is to be held well in time.
7. Learned Counsel states that when till the retirement, applicant had performed the duties attached to the post of Deputy Director (Admn.), including all the financial power and power of Head of the Office certainly rules that the post of Deputy Director had existed till his retirement and was only abolished on 23.11.2007.
8. Learned Counsel also states that the decision of the Tribunal in Ravinder Singhal v. Union of India and Anr. OA-1767/2006 decided on 12.3.2007 covers the claim of the applicant. Learned Counsel also states that the post of CAO when deeming the order of the respondents dated 15.2.2006 came into force with prior approval of Ministry then the post is deemed to have been created and the applicant should have been considered even in the post of CAO. Non-consideration thereof is deprivation of fundamental right of the applicant.
9. Lastly, it is stated that the respondents are estopped from approbating and reprobating simultaneously.
10. On the other hand, respondents' counsel Shri R.N. Singh vehemently opposed the contentions and stated that the recommendation of SIU dated 15.2.2006, was accepted and as a result thereof, one post of Deputy Director was abolished. Learned Counsel states that for the post of CAO, though it was recommended by CIO but was to be filled up after due procedure has been followed and till the date of retirement of the applicant, the post was not created.
11. Learned Counsel states that chances of promotion would not vest the applicant an indefeasible right. Shri R.N. Singh states that in 2005, applicant was brought eligible for the post of Deputy Director (Admn.) and Shri Kanth, who was promoted as Deputy Director held this post beyond the date of superannuation of the applicant.
12. Rejoinder reiterates the contentions put forth by the applicant.
13. We have carefully considered the rival contentions of the parties and perused the material on record.
14. Optimization of direct recruitment to the civil post is governed by the DOP&T OM dated 16.5.2001 and the SIU under the Ministry of Finance has been constituted to examine the feasibility as per the Annual Plan and Financial Commission recommendations to regulate the organizational set up in each Ministries and departments.
15. Creation of non-planned and planned post has a defined methodology laid down by the Ministry of Finance OM dated 28.3.1990. However, before abolition and creation of post, prior concurrence of Ministry of Finance when such a creation and abolition is beyond the power of Administrative Ministry is a mandatory condition to be discharged. Though in the Ministry and Departments internal work study unit in consultation with the FA study each and every case for signing the staff structure of the organization. However, the SIU of Ministry of Finance has to conduct its studies in any Ministry/departments in accordance with the programmes and standards evolved by it for job common to several Ministries/Departments will be made available to all the Ministries.
16. Power to abolish any civil post is inherent in every sovereign Government. As a result of abolition, holder of the post ceased to be a Govt. servant. This has an underlined object of as a measure of economy and to streamline the administration to make it more efficient by way of making alterations in staffing patterns of the civil services either by increasing or decreasing the number of posts or abolition of posts. The aforesaid is ruled by the Apex Court in Awas Vikas Sansthan v. Engineers Association .
17. In the matter of abolition of post, the Apex Court in Notified Area Council, Pipili and Anr. v. Gahar Mohammad and Anr. ruled that continuance or abolition of post though within the power of employer and any decision arrived at shall not be interfered unless vitiated by malafides or arbitrariness.
18. In B.K. Behera v. Satya Prakash Dass 2008(1) SCC (L & S) 159, it is ruled that any direction to appoint a person against a post, which has been abolished is not legal.
19. In State of Haryana and Ors. v. Navneet Verma 2008(1) SCC (L & S) 373 on judicial review on abolition of post, further guidelines have been laid down as under:
17. We summarize the power of government in abolishing a post and role of the court for interference:
(a) the power to create or abolish a post rests with the government;
(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;
(c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all decided by the government in the interest of administration and general public;
(e) the court would be the least competent in the face of scanty material to decide whether the government acted honestly in creating a post or refusing to create a post or its decision suffers from malafide, legal or factual;
(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted.
With the above principles, let us consider whether the abolition of the posts of Accounts Executives are justified and consequential order of termination terminating the respondent-herein from the said post is sustainable.
20. If one has regard to above, if a decision to abolish the post is not taken in good faith and is arbitrary, the same has to be interfered in a judicial review.
21. With the above position of law discerns from the ratio (supra) an order passed by the Government would not be effective unless it is published or when a definite methodology of its being approved by higher authority is adopted or unless the approval is given, it will not come into effect.
22. As per the laid down methodology, in case of abolition of post on SIU study and recommendations, when the Administrative Ministries competent to take a decision, it attains finality as to the abolition of the post but once the decision to be concurred by the Ministry of Finance, it has to be effective from the date the concurrence of Ministry of Finance is accorded and the posts are abolished from that date. There cannot be a retrospective abolition of the post. As abolition of the post is by an administrative order, it cannot be operated retrospectively. An order passed without jurisdiction and without following the proper procedure of the statute is a nullity and would not be an order passed in the eye of law, as held by the Apex Court in Devender Singh v. State of Punjab 2007(12) SCALE 496.
23. Also held by the Apex Court in Dhampur Sugarmill v. State of Uttaranchal 2007 (11) scale 371 held that if a public authority acts with oblique motive, bad faith or irrelevant consideration, the exercise conducted can never be in accordance with law.
24. Right to be considered for promotion on a fair and equitable basis is a right guaranteed under the Constitution of India, as per the decision of the Apex Court in S.B. Bhatacharjee v. S.D. Mazumdar 2008 (1) SCC (L & S) 21.
25. Promotional avenues in the service tenure of a Government servant are must, as ruled in FCI v. PD Bansal . Though promotion has to be made effective from its grant and cannot be from the date of occurrence of vacancy or creation of post, as ruled by the Apex Court in Nirmal Chand Sinha v. Union of India and Ors. .
26. In the instant case, abolition of the post was undertaken on SIU study where report was submitted on 29.3.2004. Though the Administrative Ministry was not competent to accept it, it has to be concurred by the Ministry of Finance, Department of Expenditure. The order passed on 15.2.2006 though states that abolition has been accepted by the competent authority, yet in the order in para 3, the proposal was directed to be forwarded to IWS of the Ministry and also SIU of Ministry of Finance, this clearly shows that the decision to abolish the post was not final. The above review is reiterated from a subsequent order passed on 23.11.2007 where the earlier order passed on 15.2.2006 has been superceded and on the issue of creation and abolition of post in FOD of NSSO on concurrence by the Ministry of Finance on 16.11.2007, the posts are deemed to have been abolished.
27. In our considered view, for abolition of the post, the condition precedent would be that it remained vacant and lapsed on expiry of one year. As the post was abolished by a communication dated 23.11.2007, one of the post of Deputy Directors was available in 2006, when the applicant had acquired eligibility for consideration for promotion to the post of Deputy Director. No DPC was conducted in the years 2006 and 2007. Though the applicant performs the duties of Deputy Director till his retirement on officiating basis, yet the post was abolished only when the SIU recommendation was accepted on 23.11.2007 and before it despite availability of a post, non-consideration of the claim of the applicant in the wake of his superannuation is certainly against the guidelines issued vide DOP&T OM dated 25.1.1990. Though abolition as a policy decision is not to be interfered but in the wake of the subsequent order issued on 23.11.2007, the post of Deputy Director is deemed to have been abolished only from a prospective date. As one post was available till the retirement on superannuation of the applicant, non-consideration is certainly without any reasonable basis violated his fundamental right.
28. There may be a situation where after the SIU study for abolition of certain post when a person has discharged the duties of that post and till the proposal is accepted by the Ministry of Finance and the post is abolished by the order issued by the Government, Sword of Damocles is continuously hanging over the head of an incumbent. It is a situation, which would frustrate a Govt. servant on uncertainty of his future. No doubt, on SIU study, as per the organizational set up, the right to abolish the post may vest in Government but it has to be exercised on acceptance and on completion of the process so that the employee should not suffer and consequent action under the re-deployment rules in the surplus cell is initiated. A considerable gap between the SIU acceptance by the Administrative Ministry and the concurrence of the Ministry of Finance is not only arbitrary but also not congenial to the interest of the administration. This should be avoided. Moreover, SIU along with Ministry of Finance and Ministry of Administrative Reforms co-jointly on deliberation may evolve a foolproof methodology for the abolition of the post and the consequences thereof so that neither the interest of the employee nor the administrative exigency of the Government is put to loss or suffers on any count.
29. Another aspect of the matter, which is to be gone into that the respondents being a model employer and Govt. should not approbate and reprobate simultaneously, which, is not in consonance with the law, as ruled by the Apex Court in SRTC v. Bheeku Bhai Patel 2005 SCC (L & S) 273. On one hand, tenor of order dated 15.2.2006 is effective for abolition of the post from the same date but it is not considered to be good for creation of post of CAO, which is made effective from 23.11.2007. No different yardsticks can be adopted by the Government with inconsistency. If the SIU proposal was composite both for abolition and creation, it has to be made effective from a common date. Accordingly, if it is so, the post of CAO was in existence when the applicant was in service. As such, he should have been considered for the post. By not considering him for promotion as Deputy Director and also CAO, the action of the respondents has an impact of a double-edged knife upon the applicant.
30. Be as it may, the right to be considered for promotion has been denied to the applicant despite existence of posts in both the cadres ibid.
31. Resultantly, OA is partly allowed. Impugned order is set aside. Respondents are directed to consider the claim of the applicant, as if the post of Deputy Director (Administration) was in vogue when the applicant was in service through a DPC for promotion to the post of Deputy Director (Administration) or in the alternative, he may be considered for the post of CAO on the same methodology. If found fit, applicant shall be entitled to notional promotion and revision of his retiral dues with arrears. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.