Central Administrative Tribunal - Bangalore
B M Vijayshankar vs M/O Personnel,Public Grievances And ... on 12 November, 2018
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OA.No.170/00556/2018/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00556/2018
DATED THIS THE 12TH DAY OF NOVEMBER, 2018
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI DINESH SHARMA, MEMBER (A)
B.M. Vijayshankar,
S/o H.S. Munikrishna Chari,
Aged 56 years, I.A.S. (Karnataka Cadre)
Presently working as Special Commissioner,
Bruhat Bengaluru Mahanagara Palike,
N.R. Square,
Bengaluru - 560 002
And residing at No. 623,
22nd Main, 36th Cross,
4th 'T' Block,
Jayanagar, Bengaluru - 560 041 .....Applicant
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OA.No.170/00556/2018/CAT/BANGALORE
(By Advocate M/s Subbarao & Co.)
Vs.
1. Union of India,
Represented by its Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances
& Pensions,
North Block,
New Delhi - 110 001
2. Union Public Service Commission,
Represented by its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110 069
3. State of Karnataka,
Represented by its Principal Secretary,
Dept. of Personnel & Administrative Reforms,
Vidhana Soudha,
Dr. B.R. Ambedkar Veedhi,
Bengaluru - 560 001 ....Respondents
(By Shri V.N. Holla, Senior Panel Counsel and
Shri Sathyanarayana Singh, Counsel for Respondent No.3)
O R D E R (ORAL)
(HON'BLE DR. K.B. SURESH, MEMBER (J) 3 OA.No.170/00556/2018/CAT/BANGALORE Heard. The matter is in a very small compass. An officer claims that his date of promotion must be dated back to accommodate a vacancy along with the senior colleague who was first in the list. Since he claims that, going by the Hon'ble Apex Court ruling given by Hon'ble Justice Altamas Kabir and Justice Raveendran, it is almost a fundamental right of an employee to have a correct placement in the seniority list to enable him to get an appointment or a promotion. This has been preceded by a judgment of Chief Justice Haq of Pakistan Supreme Court which held for the first time in the administrative history that career enhancements can be termed as a fundamental right. This was followed by Justice Barak Aharon of the Supreme Court of Israel which expanded its horizons. Therefore with anxious eyes we examined this matter as to:
1) What should be the cut off date in accommodating promotion of service officers into All India Service,
2) In what way the promotion shall be accommodated so as to correctly align and place all claimants in the list.
2. The DoPT had filed a detailed reply indicating that for purpose of universal application there have to be one cut off date. Since these promotions are based on vacancies which arose in a particular calendar year, they have put 1st of January of each year as the cut off date and this is a practice in vogue for many decades now. Therefore the legitimate expectation of an aspirant will be satisfied if the cut off date of 1 st January of 4 OA.No.170/00556/2018/CAT/BANGALORE a particular year is taken as the basis for determining the vacancies which have arisen in a preceding year.
3. The cause of the applicant is that applicant is second in the list with Smt Sathyavathi as the first in the list. Since there was only vacancy sufficient enough to accommodate upto Smt Sathyavathi as on the crucial date of accommodation, i.e., 1st of January of the year in relation to the preceding year's vacancy, only Smt Sathyavathi could be accommodated and the second in line applicant could not be accommodated. The claim of the applicant is that, next year one Shri Puttaswamy retired on 31st of March and therefore since the actual promotion had taken place after 31st of March there was no reason to ignore this newly arisen vacancy also and had it been done then the applicant also would have been placed along with Smt Sathyavathi in the prior list and would have been given a previous year promotion which would have merited him further promotions.
4. But the claim of the DoPT is that, for the purpose of universal application and certainty which must be present in all authoritative procedures, they have to take only the vacancy which have arisen in a particular year to grant promotion. If they have to go more elastic by holding that any further arising vacancies also have to be accommodated or a future arising vacancy also have to be accommodated then the process will be a non-ending one and cannot be concluded at any level. They cite the example of an examination to be held. If an examination is held on a particular date and results announced in relation to it, the claim of the 5 OA.No.170/00556/2018/CAT/BANGALORE applicant to say that the examination could have been held on an earlier date may not be applicable because that is the date on which the cut off had occurred, therefore, the relevance and juncture so far as time is concerned it is that date which is crucial. If we are to go by the date of arising of vacancies and to grant it a retrospective effect it will defeat the purpose of certainty and uniformity.
5. We have examined this matter with great anxiety as the Hon'ble Supreme Court have held that the career enhancement is also, if not a fundamental right something akin to it. Assume a person is standing just outside the door and another person is standing just inside the door and that door is half an inch thick. Therefore the difference between them is only half an inch but the actual effect is that one person is inside while the other person is outside. The logic of this will apply to this matter also. Smt Sathyavathi and applicant may be first and second in the list but since there was only one vacancy to accommodate, rightly and correctly Smt Sathyavathi was accommodated and the future arising vacancy of Shri Puttaswamy cannot be taken into account as then it will create uncertainty which is against public policies. Therefore we cannot, by no stretch of imagination, deem that the future arising vacancy of Shri Puttaswamy could be held to be retrospectively applicable to the applicant and particularly so as the weightage to be applied is in relation to 1st January. There is no rule which will support this neither any ruling also as we have found out after serious examination. Therefore the case of the applicant fails.
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OA.No.170/00556/2018/CAT/BANGALORE
6. At this point of time the learned counsel makes a submission that the vacancy had arisen earlier prior to the amendment. The amendment, we feel, has no relevance since this is a practice that has been followed and amendment's focus is on other matters. The issue is that the applicant being the second in the list cannot claim parity or equality either in law or in equity with Smt Sathyavathi who is first in the list. Had the applicant been the first he would naturally have got it or had Shri Puttaswamy died on 31 st of December of the preceding year then the applicant would have got in but since Shri Puttaswamy demitted office only on 31st of March in the next year Shri Puttaswamy's vacancy has arisen only on 1st of April of that year. There cannot be any retrospective operation of vacancies in such way. By no stretch of imagination can we assume that vacancy has arisen prior to 1st January of that particular year. Therefore no merit in the case.
7. At this point of time one more issue had been raised by the learned counsel now. How to grant weightage according to the new amendment? Weightage is a totally different issue and will have an operation only if the applicant is in the zone of consideration. As on 1 st of January of that particular year, the applicant is not in the zone of consideration and he will be in the zone of consideration only on the next January 1st. That being so, the weightage as according to the amended rule will only be applicable to him. The previous year's weightage will go only to the person who was in the list in the preceding year and who was admittedly his senior. 7
OA.No.170/00556/2018/CAT/BANGALORE
8. Therefore there is no further merit in the matter. The OA is dismissed. No order as to costs.
(DINESH SHARMA) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ksk/
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OA.No.170/00556/2018/CAT/BANGALORE
Annexures referred to by the applicant in OA No. 170/00556/2018 Annexure A1 Copy of the notification dated 16.09.2011 Annexure A2 Copy of the notification dated 04.07.2014 Annexure A3 Copy of the order dated 22.12.2014 Annexure A4 Copy of the I.A.S. (Regulations of Seniority) Rules 1987 Annexure A5 Copy of the I.A.S. (Regulations of Seniority) amended Rules 2012 Annexure A6 Copy of the representation dated 12.12.2017 with enclosures Annexure A7 Copy of the representation dated 26.04.2018 Annexure A8 Copy of the notification dated 10.10.2017 Annexures with reply statement Nil *****