Central Administrative Tribunal - Kolkata
Sofia Alex vs A & N Administration on 26 June, 2024
1 OA 1627/2023/AN
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
(THROUGH AUDIO/VIDEO CONFERENCING)
O.A. 351/01627/2023/AN
DATE OF HEARING : 13.06.2024
DATE OF ORDER : 26.06.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
1) Smt. Sofia Alex,
Daughter of K. A. Jacob, aged about 58 years, by occupation
service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Keralapuram village, Diglipur Tehsil, North
& Middle Andaman District, Pin- 744202.
2) Miss Lata Rani Mazumdar,
Daughter of B. R. Mazumdar, aged about 55 years, by occupation
service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Delanipur Village, Port Blair- Tehsil, South
Andaman District, Pin- 744102.
3) Smt. G. V. Ajitha,
Daughter of Late G. V. Krishnan, aged about 55 years, by
occupation service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Haddo Village, Port Blair Tehsil, South
Andaman District, Pin- 744102.
4) K. Biju,
Son of Late A. Krishnankutty, aged about 52 years, by occupation
service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Garacharama Village, Port Blair Tehsil,
South Andaman District, Pin- 744105.
2 OA 1627/2023/AN
5) Smt. Anitha Purushothaman,
Daughter of Late P. V. Purushothaman, aged about 46 years, by
occupation service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Garacharama Village, Port Blair Tehsil,
South Andaman District, Pin- 744105.
6) Shri S. Pradeep,
Son of Late A. S. Subramaniam, aged about 57 years, by
occupation service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Abeerdeen Bazaar Village, Port Blair Tehsil,
South Andaman District, Pin- 744101.
7) Smt. Mariamma,
Daughter of Late Nagaiah, aged about 55 years, by occupation
service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o South point Village, Port Blair Tehsil, South
Andaman District, Pin- 744106.
8) Shri Mohammed Rafi,
Son of P. Veeran Kutty, aged about 54 years, by occupation
service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Phoenix Bay Village, Port Blair Tehsil, South
Andaman District, Pin- 744101.
9) Shri Abdul Basheer,
Son of A. Kunjarama, aged about 57 years, by occupation service
as Panchayat Secretary, Directorate of Rural Development,
Panchayati Raj Institutions and urban Local Bodies (RD, PRIs &
Urban Local Bodies) of Andaman and Nicobar Administration,
R/o Nayapuram, Wimberleygunj Village, Port Blair Tehsil, South
Andaman District, Pin- 744206.
10) Shri Emmanuel Patrick,
Son of Patrick, aged about 50 years, by occupation service as
Panchayat Secretary, Directorate of Rural Development,
Panchayati Raj Institutions and urban Local Bodies (RD, PRIs &
Urban Local Bodies) of Andaman and Nicobar Administration,
R/o Middle Point Village, Port Blair Tehsil, South Andaman
District, Pin- 744101.
11) Smt. Deepa Ramanan,
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Daughter of K. Ramanan Pillai, aged about 46 years, by
occupation service as Panchayat Secretary, Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, R/o Goalghar, Junglighat Village, Port Blair
Tehsil, South Andaman District, Pin- 744103.
12) Non-Gazetted Government Officers' Association, Andaman
and Nicobar Islands, (Panchayat Secretary Sub Committee)
(Recognised by Andaman and Nicobar Administration &
Affiliated to Confederation of Central Government Employees &
Workers, New Delhi), a registered Association represented by its
Secretary Shri Mohammed Waseem, son of Shri A. Hamza, having
its Headquarter Office at Crusade House, Phoenix Bay, Port Blair-
744102.
Post Held : Group 'C'
Subject : Failure of the respondent authorities to consider the
comprehensive representation dated 13.09.2023 of the applicant
Association praying for preparation of combined seniority list of
Panchayat Secretaries and Extension Officers in view of the
parity of pay scale and work profile inspite of the order dated
16.10.2023 of this Learned Tribunal directing expeditious
consideration but on the other hand considering / granting
promotion to Extension Officers, much junior to the applicants in
service, to the post of BDO with Ex-officio Executive Officer of
Panchayat Samity which would result in the applicants becoming
junior and being forced to report to the said BDOs & Ex-officio
Executive Officers in violation of established principles/ norms
of service jurisprudence.
.............Applicants
VS.
1. The Union of India through the Secretary to the
Government of India, Ministry of Home Affairs, Govt. of
India, Shastri Bhawan, New Delhi-110001.
2. The Andaman & Nicobar Administration service
through the Lt. Governor (Administrator), Andaman &
Nicobar Islands, Raj Niwas, Kamraj Road, Port Blair-
744101.
3. The Chief Secretary, Andaman & Nicobar
Administration Secretariat, Kamraj Road, Port Blair-
744101.
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4. The Secretary, Rural Development, Panchayati Raj
Institutions and Urban Local Bodies of Andaman and
Nicobar Administration Secretariat, Port Blair- 744101.
5. The Director, Directorate of Rural Development,
Panchayati Raj Institutions and urban Local Bodies (RD, PRIs &
Urban Local Bodies) of Andaman and Nicobar Administration,,
Port Blair- 744101.
6. Shri A. Arulananda Swamy, Extension Officer under the
Directorate of Rural Development, Panchayati Raj Institutions
and urban Local Bodies (RD, PRIs & Urban Local Bodies) of
Andaman and Nicobar Administration, service through the
Directorate of Rural Development, Panchayati Raj Institutions
and urban Local Bodies (RD, PRIs & Urban Local Bodies) of
Andaman and Nicobar Administration, Port Blair- 744101.
7. Shri Belthazer, Extension Officer under the Directorate of
Rural Development, Panchayati Raj Institutions and urban Local
Bodies (RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, service through the Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, Port Blair- 744101.
8. Shri Shekhar Rai, Extension Officer under the Directorate
of Rural Development, Panchayati Raj Institutions and urban
Local Bodies (RD, PRIs & Urban Local Bodies) of Andaman and
Nicobar Administration, service through the Directorate of Rural
Development, Panchayati Raj Institutions and urban Local Bodies
(RD, PRIs & Urban Local Bodies) of Andaman and Nicobar
Administration, Port Blair- 744101.
.........Respondents
For The Applicant(s): Mr. S. Samanta, Counsel
Ms. S. Samanta, Counsel
Mr. K. Sabir, Counsel
Ms. A. Roy, Counsel
Mr. B. Samanta, Counsel
For The Respondent(s): Dr. D. Chowdhury, Counsel
Mr. Gopala Binnu Kumar, Counsel
Mr. Satadru Chakraborty, Counsel
5 OA 1627/2023/AN
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a). Direction do issue quashing and/ or setting aside the reasoned order dated 22.02.2024, being Annexure A-12 hereto;
b) DIRECTION do issue upon the respondent authorities To consider and finalize the proposal of preparation of combined seniority of Panchayat Secretaries and Extension Officers for promotion to the post of BDO with necessary amendments in the recruitment rules for the post of Block Development Officer OR To make necessary provisions in terms of para 3.11.8 of O.M. No. AB.14017/48/2010-Estt. (RR) dated: 31.12.2010 of Government of India, Ministry of Personnel, PG & Pensions (Department of Personnel & Training) New Delhi, the option of considering the Panchayat Secretary as feeder grade to the Post of Block Development Officer by prescribing percentage of feeder grade in the RR in proportion to the total Strength of Posts of Extension Officer and Panchayat Secretary OR To forthwith frame promotional policy for Panchayat Secretaries considering the relevant factors therefore within such time frame as may commence to this Learned Tribunal and pending such consideration to refrain from granting promotion to the post of Block Development Officers from Extension Officers;
c) INJUNCTION do issue restraining the respondent authorities from acting in any manner or any further manner on the basis of the Interdepartmental Review Meeting dated 28.11.2023, being Annexure A-6 hereto in so far as it relates to grant of promotion to the post of Block Development Officers from Extension Officers;
d) DIRECTION do issue upon the respondent authorities directing them to produce and / or cause to be produced the entire records of the case and upon such production being made to render conscionable justice by passing necessary orders thereon;
e) Cost and costs incidental hereto;
f) And/or to pass such other or further order or orders as to your Lordships may seem fit and proper."
6 OA 1627/2023/AN
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
2.1 The applicants are directly recruited Panchayat Secretaries under the Directorate of Rural Development, Panchayati Raj Institutions and Urban Local Bodies (RD, PRIs & Urban Local Bodies) of Andaman and Nicobar Administration.
2.2 The Private Respondents, respondent nos. 6 to 8, are holding the posts of Extension Officers on promotion/ direct recruit and their dates of appointment are later than those of the applicants. 2.3 The applicants made representations to the authorities for preparation of a common seniority list of Panchayat Secretaries and Extension Officers, so that Panchayat Secretaries are also considered for promotion to the post of Block Development Officer (BDO) which at present is being filled up only by promotion of Extension Officers. On not getting a positive response from the authorities, the applicants filed OA No. 351/389/2023/AN and MA No. 351/986/2023/AN which were disposed of by this Tribunal by order dated 16.10.2023 directing the respondents to consider the representation of the applicants expeditiously. Respondents issued a speaking order dated 22.02.2024 after considering the representation of the applicants, and rejected their claim. Hence, this OA where the speaking order dated 22.02.2024 as well as the Recruitment Rules for BDOs are under challenge.
3.1 Learned Counsel for the applicants submits that there are genuine issues concerning the Panchayat Secretaries which have led to unfair hierarchy of Panchayat Secretaries in the department.
7 OA 1627/2023/AN 3.2 He submits that in 1995, the creation of 67 posts of Panchayat Secretaries for the 67 (formerly) Gram Panchayats was accompanied by framing of recruitment rules stipulating a minimum qualification of Graduation. These posts were classified as Group 'C' Non-Gazetted (Ministerial) on the then Pay band -I (i.e., 5200/--20200/-) with grade pay Rs. 2800/- and revised Pay Level-5. Recently, the classification has been amended as non-ministerial. These posts have been filled exclusively through direct recruitment. However, due to lack of any promotional avenue Panchayat Secretaries retire without getting a single promotion throughout their careers. 3.3 Learned Counsel for the applicants further submits that the two departments viz Rural Development and Panchayat were amalgamated in the year 2004 by issuing an Order No.2166 dated 29.06.2004. During the process of amalgamation, certain higher posts of panchayats underwent re- designation. However, no opportunity for career advancement was provided to the group "C" post of Panchayat Secretaries whereas, while examining the proposal of merger, A & N Administration was alive to the impending issue of need for opening of promotional avenues for the Panchayat Secretaries. The department had then proposed two options for the promotions viz (1). Promotion to Office Superintendent of Panchayat Samities. (2). Promotion to the post of Block Development Officer by preparing combined seniority of Extension Officers of Rural Development and Panchayat Secretary of Panchayats. Promotion to the post of Office Superintendent, which happens to be an AC Cadre Post was dropped. The department remained silent on the second option.
8 OA 1627/2023/AN 3.4 Learned Counsel for the applicants submits that the applicants' paramount concern is the impending promotion of Extension Officers of Rural Development Department to the prestigious position of Block Development Officer (BDO). These Extension Officers are junior to Panchayat Secretaries appointed in 1995, 2000 and 2001. These promoted Extension Officers will also concurrently hold the role of Executive Officer in Panchayat Samiti, which is highly unjustified and may further damage the morale of the Panchayat Secretaries who are holding, discharging duties of rural development works and other welfare schemes directly at the grassroot level besides dealing with financial matters of Gram Panchayats.
3.5 Learned Counsel for the applicants submits that the applicants and their Association have repeatedly represented to the authorities for preparation of a combined seniority list of Panchayat Secretaries and Extension Officers for promotion to the post of BDO with necessary amendments in the Recruitment Rules for the post of Block Development Officer or consider the Panchayat Secretary as feeder grade to the post of Block Development Officer by prescribing percentage of feeder grade in the Recruitment Rules in proportion to the total strength of posts of Extension Officer and Panchayat Secretary. Learned Counsel submits that the above issue transcends mere fairness; it profoundly impacts the morale and motivation of the Panchayat Secretaries. Their unwavering commitment to public service deserves to be rewarded with opportunities for professional growth and equitable treatment within the organisation.
3.6 Learned Counsel for the applicants submits that the applicants have come to know that an Interdepartmental Review Meeting has been held under 9 OA 1627/2023/AN the Chairmanship of the respondent no. 3, Chief Secretary, on 28.11.2023 and promotional posts in different major Departments are being sought to be filled up within a fortnight. Thus 3 posts of BDO would be filled up from Extension Officers and the private respondents would be the beneficiary of such decision.
3.7 Learned Counsel for the applicants submits that at the time of merger of the departments of Rural Development and Panchayat in 2004, the case for preparation of combined seniority list of Panchayat Secretaries (in short PS) and Extension Officers (in short EO) was to be taken up for the purpose of promotion to the post of BDO with necessary amendments in the RR for the post of Block Development Officer and therefore any action to the contrary by grant of promotion to Extension Officers to BDO, prior to such preparation of combined seniority list of the said two cadres would have the effect of depriving Panchayat Secretaries i.e. the applicants who are much senior to the private respondents Extension Officers.
3.8 Learned Counsel for the applicant states that the BDOs are the Ex-officio Executive Officer of the Panchayat Samity, and the Panchayat Secretary will become subordinate to the said BDO even though the applicants are senior to the private respondents in service and will thus be forced to report to their juniors in service.
3.9 Learned Counsel submits that the nature of duties of the posts of Panchayat Secretaries and Extension Officers are almost similar with same pay scale (Pay Level Rs. 29,200- 92,300 as per Seventh CPC). Further, the PS implement the scheme and development works including financial matters whereas EO and BDO only carry out the work relating to the scheme. Since 10 OA 1627/2023/AN inception in 1995, PS are recruited through Graduate level exam whereas EO are from Xth and XIth, Diploma and Degree which essentially means that the PSs are better qualified to hold the higher post of BDO. He further submits that recently a Combined Graduate Level exam is being conducted for direct recruitment of PS and EO with common merit list, common educational qualifications, etc. 3.10 Learned Counsel for the applicants submits that a perusal of the reasoned order dated 22.02.2024 would show that the same does not reflect the application of mind to the materials on record and hence it suffers from the vice of malice in law and malice in facts. Learned Counsel submits that the respondent authorities are violating Articles 14 and 21 of the Constitution of India and that the action of the respondent authorities is contrary to service jurisprudence, illegal and is not sustainable in the eye of law.
4. Per contra, Learned Counsel for the respondents submits that the question of junior and senior does not arise, as the cadres of EO and PS are completely different from each other. The Department also has a technical engineering wing created consequent to the introduction of PRIs, these posts cannot be compared in any way.
4.1 Learned Counsel for the respondents submits that during the amalgamation of the Department of RD and Panchayat, step was taken to bring better coordination of developmental schemes as evident from the Order No. 2166 dated 29th Jun, 2004. There was no merger of the Departments and the various cadres functioning under the departments as claimed by the applicants. The amalgamation of Two Directorates into One as Directorate of Rural Development and Panchayat has not brought any 11 OA 1627/2023/AN change in the nature and duties of the functioning of panchayat and rural development functionaries. Within the Department, the Rural Development wing consisting of the Community Development Blocks and the Panchayati Raj Institutions (PRIs) i.e. Zilla Parishad, Panchayat Samiti and Gram Panchayat are parallely functioning till date. The Directorate of RD and Panchayat was merged only with the view to have effective co-ordination and functioning and optimum utilization of resources. Similar other cadres like engineering wing also exist within the ambit of the same department.
4.2 Learned Counsel for the respondents submits that the Department is bound to abide by and adhere to the DoPT rules and regulations in the matter. The Department is bound to fill up the posts as being filled on regular basis in the past as per the Recruitment Rules in force and as per the DoPT instructions.
4.3 Learned Counsel for the respondents further submits that the seniority within the cadre and hierarchy is maintained by the Department as per the Recruitment Rules of the respective posts. However, inter cadre seniority cannot be maintained.
5. Heard the parties. Perused material on record.
5.1 The primary claim of the applicants is that the Recruitment Rules for BDOs should be amended to include the post of Panchayat Secretaries as a feeder post. Applicants have made the following points in support of their claim :-
(i) Panchayat Secretaries have no avenue of promotion and the Administration is duty bound to provide such avenue.
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(ii) Duties and responsibilities of PS and EO are similar in nature and the PSs are eminently suited to be promoted to the post of BDO.
(iii) Upon merger of the Departments of Panchayat and Rural Development, efforts were made by the Administration to consider promoting PSs to the post of BDO. This proposal needs to be followed through and implemented.
(iv) EOs who are in the zone of consideration (private respondents herein) for promotion as BDOs joined as EOs much later than the applicants who joined as PSs in the same grade of pay.
(v) Applicants have been discriminated against and their right to equality granted by Article 14 has been violated.
5.2 Respondents, both government and the private, have on the other hand, refuted the claim of the applicants on the following grounds:-
(i) ACP and MACP schemes have been introduced in 1999 and 2009 for granting financial upgradation to employees in a time bound manner in lieu of promotion. PSs are an isolated category and the lack of their promotional avenue has been offset by granting them financial upgradation under ACP and MACP schemes.
(ii) Duties of PSs and EOs are substantially different from each other.
There is no parity between the duties and responsibilities of the PSs and EOs.
(iii) PS cadre has been categorised as Ministerial whereas EOs belong to Non-Ministerial category. Duties of BDO are primarily Non- Ministerial in nature and the PSs are not suitable for appointment as BDOs.
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(iv) Merger of Panchayat and Rural Development did not involve merger of the posts of PSs and EOs who continue to be governed by separate sets of rules and hierarchy.
(v) EOs and BDOs are parts of block level Administration since the 1960s. Posts of Panchayat Secretaries were created in 1993 to aid the functioning of Gram Panchayats.
(vi) PSs will continue to function under the Pradhans of the Gram Panchayat and are not required to be under the BDOs.
(vii) There is no common seniority between PSs and EOs so the question of private respondents, who are EOs, being junior to PSs does not arise. 5.3 The respondents have given a detailed description of the duties of PS and EO respectively. These duties are not only dissimilar but are different to the extent of being Ministerial and Non- Ministerial in nature. In our opinion, no parity can be claimed between the two posts on the basis of their respective functions. Applicants' submission that the recruitment to the posts of PSs and EOs is being done through a common merit list is of no assistance to their primary claim of parity between the two posts. Merely recruitment through a common recruitment process and common eligibility criteria do not make the posts equal and at par in matters of either their job description or the nature of the posts. Recruitment of various categories of officers through a common Civil Services Examination by the UPSC is a case in point. 5.4. PSs and EOs belong to two different cadres. We agree with the submission of the respondents that the question of interse seniority between 14 OA 1627/2023/AN PSs and EOs does not arise given this scenario. Mere date of appointment does not determine relative seniority across different cadres. 5.5 Framing of Recruitment Rules for a post is a part of policy formulation which is in the domain of the Executive. Judicial intervention in such matters is ordinarily not called for unless there is a violation of the equality principle under the Constitution. We have already determined that the applicants and the private respondents are not identically placed. Therefore, it is further concluded that there has been no denial of equal opportunity to the applicants.
5.6 An employee upon joining a permanent establishment under the government has a legitimate expectation of getting an opportunity to be promoted in hierarchy. ACP and MACP Schemes are not substitutes for an avenue of promotion. They are merely a compensation for lack of promotional avenue which should ideally be in place for an employee. At the same time, existence of promotional avenue is not a vested right of an employee. Hon'ble Supreme Court in a catena of judgements has ruled that promotion is not a fundamental right. Also, inclusion of the posts of PSs as a feeder grade for promotion to the post of BDOs will inevitably disturb the promotion prospects of the EOs and will be prejudicial to their existing right. In addition, the duties and responsibilities of the lower post have to meet the requirements of the promotional post. In the instant case, it is clear from the duties of PS that they are Ministerial in nature implying that the duties do not involve field activities which an EO and a BDO are expected to perform as a part of their primary official duty.
15 OA 1627/2023/AN 5.7 In view of the discussions above, in our view, the applicants have failed to substantiate their claim that the PSs should be included as a feeder post for promotion to the post of BDO. We do not find any discrimination against the applicants nor do we find any violation of the principles of equity or of equal opportunity qua the applicants. We also do not find any legal infirmity in the speaking order dated 22.02.2024.
6. OA stands dismissed being devoid of merit. No order as to costs.
7. While parting with the subject, we are of the considered opinion that it is desirable on the part of the Administration to take appropriate steps to address and redress the grievances of the PSs in respect of lack of their promotional avenue.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl