Central Administrative Tribunal - Delhi
Avani Chaudhary vs Union Of India on 5 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1773/2013
MA 1046/2014
New Delhi this the 5th day of December, 2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. P.K. Basu, Member (A)
Avani Chaudhary
812, Kedar Building,
Subzi Mandi, Clock Tower
Delhi-7 Applicant
(Through Ms. Jyoti Singh, Senior counsel with Sh. Padma Kumar
S., counsel
Versus
1. Union of India, through
The Secretary,
Ministry of Home Affairs,
North Block, New Delhi-1
2. Director General
National Crime Records Bureau
East Block 7, R.K. Puram,
New Delhi-66
3. Secretary
Union Public Service Commission
Dholpur House, Shahjahan Road,
New Delhi-11
4. Secretary,
DoP&T,
North Block
New Delhi-110001 Respondents
(Through Shri R.V. Sinha and Shri R.N. Singh, Advocates)
ORDER
Mr. P.K. Basu, Member (A) The applicant was appointed to the post of Data Processing Assistant (DPA) Grade `A on 1.02.1999 in the National Crime Records Bureau (NCRB). He was promoted to the post of DPA Grade `B on regular basis with effect from 13.06.2005. The next promotional post in the hierarchy is Junior Staff Officer (JSO). The Recruitment Rules (RRs) for the post of JSO were initially framed in the year 1988 vide notification dated 16.12.1988. As per these RRs, Inspectors (re-designated as DPA-B) with five years regular service in the grade are eligible for promotion to the post of JSO. The applicant completed five years of regular service on 12.06.2010. A Departmental Promotion Committee (DPC) meeting was held on 31.05.2013 for promotion to the post of JSO in NCRB. The applicant is aggrieved by the fact that his name is not included in the eligibility list for promotion in the DPC. He has pleaded that the DPC should consider the case of the eligible candidates as per old RRs of 1988 instead of new RRs notified on 15.02.2011 as the vacancies pertained to a period before the new rules came into existence. The applicant got left out because under the new rules, the candidates have to possess at least a Post Graduate diploma in a relevant discipline from a recognized University or Institute, viz. Post Graduate Degree in Computer Application (PGDCA) whereas old rules did not have this stipulation. The result is that some seniors who did not possess PGDCA got left out for inclusion, including the applicant, whereas their juniors in DPA-B cadre, who had acquired this qualification, became eligible.
2. The applicants argument is that he is the senior most ST candidate and has completed five years of service on 12.06.2010, therefore, he is eligible for promotion as per 1988 RRs, which were followed till 2011 RRs came into existence i.e. 15.02.2011. It has been stated that as per the final seniority list of DPA-B as on 21.11.2011, the applicant Shri Avani Chaudhary, is senior to Shri Rajendra Lakra, both Scheduled Tribe (ST) candidates, but Shri Rajendra Lakra was considered by the DPC and not the applicant. As a result, his junior has superseded him due to this wrong application of rule by the respondents. It is stated that the Honble Supreme Court in Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, (1983) 3 SCC 284 has laid down the law that vacancies falling under the currency of a particular RR are to be filled in terms of the provisions of the said RRs. It was further argued that in OA 3091/2010 decided by this Tribunal on 23.02.2012, the Tribunal has declared that even when the deemed abolished vacancies are revived, they are to be filled up as per year-wise select list made for the relevant years. This OA also related to NCRB and the applicants therein were Sub Inspectors (later re-designated as DPA Grade `A) and their principal claim was with respect to retrospective regularization of their promotion to DPA Grade `B with effect from the date they became eligible as the vacancies existed. The Tribunal held that the argument of the respondents that vacant posts were not available upto the date of holding regular DPC for promotion to DPA Grade `B was not convincing and while allowing the OA, held as follows:
11. Pursuant to the above, the 2nd respondent undertook further processing and pending notification of RR convened the DPC on 10.06.2005 and granted regular promotion to the applicants in the DPA Grade B with effect from 13.06.2005. Our careful scrutiny of the pleadings manifest that the respondents are responsible for not granting regular promotion. Non-availability of vacancy was problem initially but once some posts were revived and Model RR of 1998 was available with the respondents, even if the DPC met in the year 2005 and RR was notified in the year 2010, the respondents were duty bound to draw up annual promotion panel for regular promotion to the post of DPA Grade-B. However, the applicants may have fulfilled 4 years of regular service on the dates from which they are claiming regular promotion to DPA Grade B, but there are many other factors which are to be examined by the respondents even to consider their claim. Those factors are vacancy position year wise, seniority list of DPA Grade-A Officers and eligibility of the applicants in all aspects including educational qualification. It is trite law that the DPC must meet for every vacancy year to prepare a Panel for promotion. In the present case, the above position would be fully applicable. For the above reasons, we direct the 2nd respondent to examine the case of the applicants along with other eligible officers of DPA Grade-A for each vacancy year for the post of DPA Grade-B w.e.f. 1995, and if the applicants are found fit for any earlier year prior to 2005 (the year of their regular promotion), they shall be granted promotion to DPA Grade-B on notional basis. As three of the applicants have been promoted on ad hoc basis on 6.03.2000, and 19.06.1998 they shall be granted actual pay benefits from their respective date of ad hoc promotion.
3. The respondents reply is that the incumbent DPAs-B became eligible to be considered for the post of JSO only in June, 2010. The crucial date for determining eligibility for consideration for promotion for 2010-11 is 1st January 2010 and, therefore, none of them were eligible for consideration for promotion to the post of JSO in January 2010. In the mean time, Recruitment Rules (RRs) for the post were revised and, on the date of notification of the revised RRs (15.02.2011), only five posts out of 22 were filled up and the remaining 17 posts stood deemed abolished. Six of these 22 posts were revived on 24.02.2011 and remaining 11 on 02.02.2012 i.e. after the notification of the RRs on 15.02.2011. As such, on the crucial dates of 01.01.2010 and 01.01.2011, even though RRs were in operation up to 23.02.2011, no vacant post was available to be filled by old Recruitment Rules. Therefore, the case of incumbent DPA-B could not be considered for promotion as per old Recruitment Rules. It was argued that in accordance with the judgment of Honble Supreme Court in Y.V. Rangaiah (supra), vacancies are to be filled in terms of the RRs in vogue on the date of vacancy. As such, since the posts revived on 24.02.2011 and 02.02.2012 i.e. after date of the notification of revised RRs on 15.02.2011, they could be filled up only as per the aforesaid revised RRs.
4. The respondents stand is that in view of the notification dated 15.02.2011, the DPCs for the vacancy year 2010-11 and 2011-12 have been conducted as per the appropriate Rules, and year-wise panels have been prepared for the vacancy years 2010-11 and 2011-12 as per the DPC guidelines issued vide DOP&T O.M. dated 10.04.1989, and does not be required to be reviewed.
5. The learned counsel for the applicant argued that there is no dispute that the applicant became eligible in June 2010 and since the crucial date for determining eligibility for 2010-11 is 1.01.2010, he does not become eligible for 2010-11. But for 2011-12, since the crucial date for determining eligibility is 1st January 2011, the applicant becomes eligible as on 1.01.2011 and as on that date the 1988 RRs were in vogue and the PGDCA is not required. Therefore, the applicant should be considered eligible for promotion. Moreover, it is argued that since the posts were not created `afresh but were only `revived from a state of `deemed abolishment these vacancies should be counted against the year in which they originally arose. In which case vacancies are available on the date the applicant became eligible. However, the respondents have argued that on the date of notification of the revised RRs (15.02.2011), only 5 posts out of 22 were filled up and the remaining 17 posts were deemed to have been abolished. Six of these posts were revived on 24.02.2011 and the remaining 11 posts on 2.02.2012. By that time, the amended RRs were notified on 15.02.2011 and, therefore, the position is that since there were no vacancies at the time the applicant became eligible and these vacancies came much later, by which time the RRs were revised, there is no question of considering the case of the applicant as per earlier Rules.
6. The respondents also argue that the prayer of the applicant in this OA is to fill up vacancies from 2002 of 2011 as per old RRs of 1988 and questioned this on the ground that since the applicant became eligible only in 2010, there is no question of seeking relief from 2002. To this, the reply of the learned senior counsel for the applicant is that the vacancies existed from 2002 onwards and no DPCs were convened from 2002 as is clear from Annexure A-3, which is in reply to an RTI application in which the respondents have stated as follows:
S. No. Date of occurrence of vacancy No. of vacancy Reasons for vacancy Remarks
1. 30.04.2002 02 Promotion in the higher grade In the year 2004, a proposal to fill up the post on deputation basis was sent to UPSC. But UPSC returned the proposal citing that the existing RRs notified in the year 1987 have become inoperative and insisted for amendment of the RRs. The proposal to amend the RRs was sent to DoPT. DoPT suggested to keep the proposal pending, as they are reviewing the model RRs. Moreover, the post also could not be filled up by promotion, as there were no regular incumbents available in the feeder grade i.e. DPA-B till the year 2005. Therefore, these vacant posts could not be filled up and fell under deemed abolished category In the light of this explanation, the objection raised by the respondents does not remain valid.
7. Another objection of the respondents is that the OA is bad for non-joinder of parties because if the OA is allowed, then someone has to be reverted but that person has not been made a party. In this regard, learned counsel for the applicant cited the judgment in A. Janardhana Vs. Union of India and others, AIR 1983 SC 769, where the Honble Supreme Court observed as follows:
36. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellant. By an order made by the High Court, the names of respondent 3 to 418 were deleted since notices could not be served on them on account of the difficult in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this Court by 9 direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr. P. R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to General Manager, South Central Rly., Secundrabad v. A. V. R. Sidhanti (1974) 3 SCR 207 at p. 212: (AIR 1974 SC 1755 at P. 1759). Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and, therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived. The learned senior counsel for the applicant stated that in view of this judgment, there is no requirement to implead anybody as a private party other than the UOI.
8. On the other hand, the learned counsel for the respondents relied on Union of India and anr. Vs. Indian Railways Civil Engg. Officers Association & ors., WP (C) 1353/2011 in which the Honble High Court held as follows:
14. In the case at hand, as is noticeable, the Tribunal has repelled the plea of non-joinder of parties on the ground that the direct recruits were not necessary parties to the original application as the grievance of the applicant was against the respondents. The only illegalities and irregularities was the delay that occurred in holding the DPCs in time. For the aforesaid purpose, the tribunal has based its foundation on the decision rendered in A.P. Wasan and others (supra). On a perusal of the authorities in the field, it is quite vivid that unless the very principle of determination of seniority or promotion is called in question, the necessary parties are to be impleaded. If the policy is basically illegal or a rule is constitutionally invalid, then there may not be a necessity to implead an affected person but in the case at hand, the whole thing hinges on the fact whether the DPCs were belatedly conducted and whether the promotion relates back to the date of arising of the vacancy. This would certainly affect third persons who were appointed/ promoted.
15. True it is, the tribunal has directed that their promotion shall relate back to the date of vacancy but they would not have seniority over others who were promoted earlier. But, this situation is inconceivable. This is likely to create anomaly. In our considered opinion, the finding recorded by the tribunal on this score is absolutely pregnable and vulnerable and, accordingly, we set aside the same. Once we set aside this finding, other findings are to be set aside as the matter has to be remitted to the tribunal for a fresh adjudication after granting opportunity to the applicants therein to implead the affected persons as parties and thereafter proceed to deal with the matter in accordance with law.
9. Though the learned counsel for the respondents tried to distinguish OA 3091/2010 from the present case on the ground that in that case vacancies were available, we find from the perusal of the order that the case is similar as there was a ban on recruitment by the government and, even if vacancies were there, recruitment could not be made and in that case also, the issue of revival of posts was involved.
10. In conclusion, the learned counsel contended that vacancies which were revived, cannot be taken as vacancies which existed in the year the vacancies originally arose as they had been abolished. They should be taken as fresh vacancies in which case, there were no vacancies on the date the applicant became eligible and, therefore, DPC not considering his name is perfectly in order.
11. The whole issue, therefore, boils down only to one question which is whether the deemed abolished posts which are revived later, have to be treated as fresh vacancies or vacancies of the year in which they originally arose before they were deemed abolished. Clearly the rules are silent on this issue. The Rangaiah judgment (supra) only specifies that old vacancies will be governed by the RRs at the time the vacancy arose. Therefore, in case we hold that deemed abolished vacancies when revived will be counted as vacancies in the year they originally arose and were later abolished, then as per the Rangaiah judgment (supra), the applicant should be considered for promotion under the old RRs. We have to also consider the reliance placed by the learned senior counsel for the applicant on the order of the Tribunal in OA 3091/2010 (supra) in which, under similar circumstances, taking note of the DOPT advice, the revived deemed abolished vacancies were directed to be considered as per old model RRs of 1988.
12. As regards non-joinder of necessary parties, we are of the view that in this case also the applicant has not raised a grievance against an individual in the background of any particular fact controverted by that person against whom the claim is made. What has been questioned here is the decision of the respondents to apply the new RRs while the law as settled in Rangaiah case (supra) is that the RRs which are valid at the time the vacancy arose, should be considered. Thus, in this case the judgment of the Honble Supreme Court in A. Janardhans case (supra) would fully apply as the judgment of the Supreme Court will hold the field and not that of the Honble High Court in WP (C) 1353/2011. In fact, even the Honble High Court has held in its order that If the policy is basically illegal. there may not be a necessity to implead an affected person. The OA will thus not fail on this ground of non-joinder of parties.
13. As stated earlier, the question revolves around whether the revised vacancies should be treated as new vacancies or old vacancies. If we look at the meaning of the word `revive in the Concise Oxford Dictionary, it means come or bring back to existence, use, notice etc. That is the reason the government does not state that the posts were abolished but it stated that the posts were deemed abolished and later revived. The posts continued to exist, only they were `deemed non-existing for the purpose of filling up, much akin to a person in `coma who is later revived is not considered `dead during the period he is in `coma. The `vacancy has two aspects. One part is the post and the vacancy per se. The other part is the act of filling it up. In deemed abolishment the vacancy (post) exists but the act of filling up is kept in abeyance. This could be for several reasons no one is eligible, lack of finances etc. When that situation changes, the second part gets reactivated i.e. the vacancy (post) can now be filled up or, in other words, the vacancy always existed, it is the act of filling up that gets revives. The respondents may be right in saying that the posts were treated as deemed abolished because they were lying vacant for more than a year as no one was eligible to be promoted and, therefore, treated as deemed abolished. But in our considered opinion, and also keeping in view the order of this Tribunal in OA 3091/2010 (supra), these revived vacancies should be treated as vacancies of the year in which they became available and as such, the applicant should be considered for promotion from the date he became eligible i.e. 13.06.2010.
14. Therefore, we allow this OA and direct the respondents to hold a DPC to consider promotion of the applicant to the post of JSO with effect from 13.06.2010, within a period of three months from the receipt of a copy of this order.
M.A. 1046/2014 also stands disposed of. No costs.
( P.K. Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/