Central Administrative Tribunal - Lucknow
Rajendra Kumar Gautam Aged About 36 ... vs Union Of India Through The Secretary on 18 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW
BENCH LUCKNOW
Original Application No.19 of 2001 and O.A.No. 20/2001
Order Reserved on 2.2.2015
Order Pronounced 18.2.2015
HONBLE MR. NAVNEET KUMAR MEMBER (J)
HONBLE MS. JAYATI CHANDRA, MEMBER (A)
(O.A. No. 19/2001)
Rajendra Kumar Gautam aged about 36 years son of Sri Rilak Dhari Ram, resident of village and post office Pipri District, Varanasi, presently posted as Constable in Central Bureau of Investigation, Lucknow.
Applicant
By Advocate: Sri R.K. Upadhyaya
Versus
1. Union of India through the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Administrative Officer (Establishment) Central Bureau of Investigation, Administration Division, Block No. 3, CGO Complex, Lodi Road, New Delhi-110003.
3. Deputy Inspector General of Police, CBI, Lucknow Region, Lucknow.
4. Superintendent of Police, CBI, 7 Nawal Kishore Road, Lucknow.
Respondents
By Advocate : Sri S.P.Singh
(O.A. No. 20/2001)
Hari Kant Pandey, aged about 31 years son of Sri Sridhar Pandey, resident of Village Padit Purwa, P.O. Amaniganj, Lucknow presently posted as Constable in Central Bureau of Investigation, Lucknow.
Applicant
By Advocate: Sri R.K. Upadhyaya
Versus
1. Union of India through the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Administrative Officer (Establishment) Central Bureau of Investigation, Administration Division, Block No. 3, CGO Complex, Lodi Road, New Delhi-110003.
3. Deputy Inspector General of Police, CBI, Lucknow Region, Lucknow.
4. Superintendent of Police, CBI, 7 Nawal Kishore Road, Lucknow.
Respondents
By Advocate : Sri S.P.Singh
ORDER
By Honble Mr.Navneet Kumar, Member (J) The facts and issue involved in both the OAs are identical as such they are taken together and disposed of by common order.
2. By means of the present O.As, the applicants are challenging the orders dated 15.11.2000 and 13.12.2000 through which the claim of the applicants in appearing in the Limited Departmental Competitive Examination for promotion of Constables to the grade of Head Constables in CBI was rejected only on the pretext that the applicants belong to M.T. Cadre Constables, hence they are not eligible to appear for the said selection. The order dated 13.12.2000 is the fax message is also in regard to eligibility of applicants to appear in the limited departmental competitive examination scheduled to be held on 16.12.2000.
3. The brief facts of the case are that both the applicants joined the respondents organization as Constables in the year 1990. Subsequently, in 2000, a notification is issued in regard to Limited Departmental Competitive Examination for promotion of Departmental Constables to the grade of Head Constables clearly indicating therein that the Departmental constables with at least five years of regular service (and not adhoc service, if any) in the grade in the SPE/CBI as on 1.8.2000 would be eligible to appear in the said examination and deputationist/MT Cadre Constables are not eligible. The learned counsel for the applicants has categorically indicated that since the applicants are not deputationist/ MT Cadre constables , as such not allowing them to appear in the examination is unlawful and is liable to be interfered with. Not only this, it is also argued by the learned counsel for the applicants that the applicants has not given any option for inclusion of their names in the MT cadre. The said letter was given by the applicants in February, 1996 itself which was subsequently forwarded on 6.2.1996 as such not allowing the applicants only on the ground that the applicants belong to MT cadre is wrong and is liable to be interfered with.
4. The learned counsel for the applicants has also indicated that for the inaction on the part of the respondents, both the applicants have also submitted representation which was rejected by means of fax message which is also challenged in the present O.A. Not only this, it is also argued on behalf of the learned counsel for the applicants that the respondents vide letter dated 4.7.1995 has also enclosed the list of constables who have opted for inclusion of their names in MT (cadre) has also been examined in Head Office and the Constables/Head Constables who are performing the duties of drivers in CBI is prepared. It is also indicated that the names of the applicants find place at Sl. No.23 and 24. Not only this, the respondents have again issued a circular dated 19.9.1995 which is in regard to the formation of MT cadre in CBI and it is also mentioned that the Govt. has notified the recruitment rules in the grade of Constable (MT), Head Constable (MT) and ASI (MT). Along with the said list, a provisional list is prepared basing on the information submitted by the Branch SSP in response to the Head Office Circular dated 4.7.1995. It is also to be indicated that the name of the applicants find place at Sl. No. 32 and 34 in the said list. Not only this, subsequently, again a list of Head Constables (MT) and Constables (MT) is published through circular dated 16th September, 1999 and name of the applicants find place at Sl. No. 36 and 38. The said seniority list of Head Constables (MT) and constables (MT) is as on 31.8.1999. The applicant also appeared in the driver trade test in terms of circular dated 6.2.1996 and were also paid the rewards granted for the said purpose.
5. On behalf of the respondents, detailed counter reply as well as Supple. Counter reply is filed and through which it is categorically indicated by the respondents that the Govt. of India through their letter dated 16.5.1999 conveyed the sanction of the competent authority for the formation of MT cadre by way of diversion of 216 posts in the respective grades from the Executive cadre of CBI. The applicants name find place in the said list in July, 1995, thereafter in September, 1995 and again in September, 1999. Not only this the applicants also given trade test in 1996 and they have not indicated this fact that they do not wish to opt for MT Cadre during that period and only when they were denied the benefit for appearing in the Limited Departmental competitive examination for the post of Head Constables by means of the impugned orders, they decided to challenge the action of the respondents by means of the present O.A. The learned counsel for the respondents has also categorically indicated that the applicants never raised the objections when the list of MT cadre was published in July, 1995, September, 1995 and in September, 1999 and even they have not raised any objection when they were called for trade test in 1996. As such, it is vehemently argued and submitted by the learned counsel for the respondents that raising any objection at this stage when they have denied the benefit to appear in the limited departmental competitive examination of Head Constables is unjustified and the O.A. is liable to be dismissed. Not only this, it is also submitted on behalf of the respondents that the list issued by them on 15.3.2000as existing on 29.3.2000, the name of the applicants have erroneously mentioend and the same can therefore not be the basis that the applicants were not in the MT cadre , as such respondents are not under obligation to consider the candidature of the applicants for Head Constables whereas it was subsequently mentioned that the MT cadre constables would not be entitled to appear in the said examination.
6. On behalf of the applicants, Rejoinder and Supple. Rejoinder Reply is filed and through which the applicants mostly reiterated the averments made in the O.A. and denied the contents of the counter reply as well as Supple. Counter reply filed by the respondents. The learned counsel for the applicant also relied upon two decisions of Honble High Court which are Smt. Prabha Bhatnagar Vs.State of U.P. reported in [1992 (2) LBESR 859 (All)] and Tehsildar Singh and others Vs. State of U.P. and others reported in [2010 (1) LBESR 194 (All)] and submitted that cadre of an employee cannot get changed without the consent of concern employee.
7. Heard the learned counsel for the parties and perused the records.
8. The applicants were initially appointed in the respondents organizations as Constables in 1990. Subsequently, the respondents issued a circular for formation of MT Cadre in CBI wherein 119 Constable drivers are mentioned in the said circular. The list of constables who have obtained for inclusion of their names in MT cadre and Constables and Head Constables who are performing duties of constables (MT) was prepared and the said list was duly circulated and Branch Superintendent of Police were requested to sent their report regarding correctness of service particulars of drivers to the Head Office latest by 20th July, 1995. It is also mentioned in the said circular that the service particulars are correct in respect of respective branches, a certificate to this effect may also be sent to the Head Office latest by 20th July, 1995 positively.
9. It is to be mentioned that along with the said circular, list enclosed pertaining to Constables (MT) in which the name of the applicants find place at Sl. No. 23 and 24.
10. In pursuance of the said circular, the respondents have again issued a circular on 19.9.1995 which is in regard to formation of MT Cadre in CBI and in which it is mentioned that the Govt. of India , Department of Personnel and Training vide their notification dated 31.8.1995 have notified the recruitment rules for the grade of Constables (MT), Head Constables (MT) and ASI (MT) and the said recruitment rules were circulated to all Regional Branches of CBI through letter dated 11.9.1995. The said circular also provided a provisional revised list which is prepared basing on the information submitted by the Branch SSPs in response to the Head Office circular dated 4.7.1995 and again all the concerned authorities were requested to sent their lists latest by 30th September, 1995 to the Head Office so that final list is prepared and circulated. It s to be mentioned again that along with circular dated 19.9.1995, list of Constables (MT) was enclosed and as per the said list , names of the applicants find place at Sl. No. 32 and 34.
11 It is to be pointed out that no objection was filed by the applicants in 1995 neither the learned counsel for applicants has placed any letter through which it could be indicated that any objection to the said list is submitted by the applicants.
12. After the said list was published, the respondents have again issued a letter on 6.2.1996 taking into account the letter dated 29.11.1995 and asked certain drivers for trade test in which the name of the applicants find place at Sl. No. 2 and 3.
13. The learned counsel for the applicant placed a letter dated 2.2.1996 indicating therein that they have given in writing that they are not willing to be included in MT Cadre but they participated in the trade test as per the letter dated 6.2.1996 and they were found suitable in driving staff car.
14. After the said trade test was held, the respondents again issued a seniority list of Head Constables (MT) and Constables (MT) vide circular dated 16.9.1999 and the said seniority list of Constables MT Cadre is as on 31.8.1999 and in the said list, name of applicants found place at Sl. No. 36 and 38.
15. It is also to be pointed out that the learned counsel for the applicants has also failed to point out that at this stage also the applicants have again any objection in regard to inclusion of their names in the MT cadre. Not only this, the applicants were also granted the cash rewards for accident free driving of Govt. vehicles and for good maintenance and economy of fuel vide office order dated 13 of 2001 as well as 146 of 1995.
16. It is also to be pointed out that no objections were raised by the applicants at that material time and accepting the cash rewards as well.
17. On the other hand, the applicants have raised this ground at this stage and they have never opted for MT Cadre whereas they have never raised any objection when their names were included in the seniority list of MT cadre. Not only this, the learned counsel for respondents has also brought to the notice of the bench a letter dated 18.7.1995 written by Hari Kant Pandey , applicant of O.A. No. 20 of 2001 asking and requesting for correction of the seniority list of Constables Drivers and has indicated that his seniority may be corrected and instead of placing him at Sl. No. 24 , he should be placed at Sl. No. 23.
18. As such, it is explicitly clear that the applicants willingly accepted the MT cadre right from 1995 onwards and when they were not allowed to appear in the Limited Departmental Competitive Examination for the post of Head Constable, they thought to raise the objection and approached the Tribunal to challenge the rejection order.
19. Considering the submissions of the parties and also on the basis of pleadings available on record, we do not find any reason to interfere in the present O.A. As such, the O.As. are liable to be dismissed. Accordingly, it is dismissed. No order as to costs.
(Ms. Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-