Central Administrative Tribunal - Delhi
Shanti Mahendran vs Employees State Insurance Corporation ... on 22 March, 2023
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Item No. 18 (C-5)
O.A. No. 1234/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1234/2022
This the 22nd day of March, 2023
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Shanti Mahendran, Group 'B'
Aged about 48 years
D/o Srinivasan
Posted as Assistant Director (Adhoc)
ESIC, Panchdeep Bhawan
CIG Marg, New Delhi
R/o House No. C-1/21F, Near Dwarka Mor
Metro Station, Rama Park, Uttam Nagar,
New Delhi-110059.
...Applicant
(By Advocate: Mr. K.K. Patel)
Versus
1. Employees' State Insurance Corporation (ESIC)
Through
The Director General,
Headquarter's office
Panchdeep Bhawan, CIG Marg,
NEW DELHI-110002.
2. The Secretary
Department of Personnel and Training
North Block, Central Secretariat,
New Delhi, 110001.
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Item No. 18 (C-5)
O.A. No. 1234/2022
3. Shri Mrigendra Kumar
Posted as Assistant Director
ESIC, Panchdeep Bhawan
CIG Marg, New Delhi.
4. Shri Deepak Kumar
Posted as Assistant Director
ESIC, Panchdeep Bhawan
CIG Marg, New Delhi.
5. Shri Satyajeet Kumar,
Posted as Assistant Director,
ESIC, Panchdeep Bhawan
CIG Marg, New Delhi.
6. Shri Neeraj Kumar,
Posted as Assistant Director,
ESIC, Panchdeep Bhawan
CIG Marg, New Delhi.
...Respondents
(By Advocate: Mr. Manish Kumar)
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Item No. 18 (C-5)
O.A. No. 1234/2022
O R D E R (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):-
In the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following relief(s):-
" (a) Call for the records of the case
(b) Quash and set aside the impugned Office Order No. O.A-
2623/2021-E.I dated 04.03.2022 issued by Director General Employees State Insurance Corporation (ESIC). (Annexure A/1)
(c) Quash and set aside the impugned office order no. 195 of 2020 dated 23/12/2020 issuing promotion order for the post of Assistant Director on regular basis, based on seniority list dated 15/03/2016 and 24/06/2016. (Annexure A/2) and further Direct the Respondent to conduct Review DPC as per procedure.
(d) Quash and set aside the impugned seniority lists/ orders dated 15/03/2016, 24/06/2016. (Annexure A/3 and A/4).
(e) Direct the Respondent to restore the seniority dated 2/4/2013 (already finalized) or the draft seniority dated 3/12/2010 (based on the DOP&T instruction dated 07.02.1986/03.07.1986), which was on the verge of its finality but could not be finalized due to instruction dated 3/3/2008, may be finalized.
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(f) Direct the respondents to consequential benefits to the applicant. grant
(g) Award exemplary costs of the proceedings.
(h) Pass such further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case."
2. The applicant has put to challenge the seniority list of Social Security Officer/Branch Managers Grade-
II/Superintendents issued by the respondents on 15.03.2016 and 24.06.2016. It is stated that the applicant preferred a representation against the said seniority lists and the same has been rejected by the respondents vide order dated 04.03.2022.
3. Learned counsel for the applicant draws attention to Annexure A1 which is the impugned order dated 04.03.2022 (page 63 of the O.A.) wherein the following has been mentioned:-
" She had given representation to the Administration and to the National Litigation Committee against the final seniority dated 15.03.2016 on 27.04.2016. The said seniority is already under challenge before the Hon'ble Tribunal, Principal Bench, Delhi vide OA No. 141/2017, OA No. 1715/2017 and OA NO. 235/2017 and the outcome shall be binding to all once the cases are decided."5
Item No. 18 (C-5) O.A. No. 1234/2022
4. Learned counsel for the applicant states that the said O.A., as referred to above, has already been disposed of by the Tribunal on 30.08.2022. He has supplied a copy of the same to us which is taken on record.
5. In view of the specific averments made in the impugned order and the fact that the issue, facts and circumstances in the present case have already been decided by a Coordinate Bench of this Tribunal in another O.A., the present O.A. is also disposed of in similar terms. For the sake of better understanding and clarity the order passed by the Tribunal in O.A. No. 141/2017 is reproduced verbatim below:-
"The applicants by virtue of the present Original Application have put a challenge to the seniority list for the post of Social Security Officer/Branch Managers Grade-II/Superintendents issued by the respondents on 15.03.2016, 24.06.2016 and 08.11.2016.
2. Brief facts of the case are that the applicants by way of participation in Limited Departmental Competitive Examination (LDCE) got promoted to the aforesaid post and were accordingly assigned a place each in the impugned seniority list. While challenging the same, they seek the following relief(s) :
"a. Quash and set aside the impugned seniority lists/orders placed at Annexure A/1, A/2 and A/3and ;6
Item No. 18 (C-5) O.A. No. 1234/2022 b. Direct the respondent No. 1 to recast the seniority list of SSOs/Branch Managers Grade-II/Superintendents applying DoPT OM dated 24/06/1978 on year wise basis.
c. Accord all consequential benefits.
d. Award costs of the proceedings; and
e. Pass any order/relief/direction(s) as this
Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants."
3. Although a large number of grounds to assail the said seniority list have been taken in the Original Application, however, during the course of the arguments, the learned counsel for the applicants draws attention to two orders passed recently by this Bench of the Tribunal in OA No. 1545/2020 on 12.07.2022 and OA No. 2586/2019 on 02.08.2022.
4. Learned counsel points out that the facts and issues involved in the present Original Application have been discussed and examined in great detail in the aforementioned Original Applications. Accordingly, there is no cause to deviate from the position already taken in the instant OA.
5. The primary grounds for the challenge to the impugned seniority lists is that many of the direct recruits have been assigned seniority with effect from the date they were not even borne on the cadre. Accordingly, they have been placed above the applicants as also several other promoted officials despite the fact that these were appointed to the said post on a much earlier date. Drawing attention to the detailed judgment passed by the Hon'ble Apex Court in K. Meghachandra Singh & Ors. vs Ningam Siro & Ors. case (2020) 5 SCC 689, learned counsel argues that in view of the clear 7 Item No. 18 (C-5) O.A. No. 1234/2022 and unambiguous law laid down by the Hon'ble Apex Court, these seniority lists deserve to be set aside. The relevant direction of the Hon'ble Apex Court reads as under :-
"The term "recruitment year" does not and cannot mean the year in which, the recruitment process is initiated or the year in which, vacancy arises. The contrary declaration in N.R. Parmar in our considered opinion, is not a correct view."
Further, the said judgment holds that "the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. Persons cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued."
7. On the other hand, learned counsel for the respondents traces the history of the aforesaid judgment of the Hon'ble Supreme Court and points out that the impugned seniority lists are squarely based on the earlier judgment rendered by the Hon'ble Supreme Court in N.R. Parmar vs. Union of India & Ors., (2012) 13 SCC 340 case. She also points out that although the principles laid down in the N.R. Parmar case (supra) were later on set aside by the K. Meghachandra Singh's case judgment (supra), however, the actions taken pursuant to the N.R. Parmar case judgment (supra) which had attained finality were to be protected and, hence, the seniority lists impugned in the present O.A. cannot be put to challenge. She points out that the principle laid down in the N.R. Parmar case judgment (supra) was clear that the seniority whether of direct recruits or the promotees shall be determined with reference to the year on which such vacancy accrues, be it for the direct recruit quota or the promotion quota. She particularly draws attention to para 28, 34, 52 and 53 of the N.R. Parmar's case judgment (supra) and argues that there is no scope for any other interpretation, except, for the fact that the right of a direct recruit for assignment of seniority shall accrue from the date of requisition of the vacancy for a 8 Item No. 18 (C-5) O.A. No. 1234/2022 particular year. Although, she concedes that this principle has later been turned aside in the K. Meghachandra Singh case but in view of a specific stipulation which also finds mention in the DOP&T Office Memorandum, the seniority list already drawn based on the principles of N.R. Parmar's case judgment (supra) would remain protected.
8. We have heard learned counsels for the parties and have also gone through the documents on record. We have also carefully perused the judgment rendered by the Hon'ble Supreme Court in the N.R. Parmar case (supra) on which the learned counsel for the respondents rests her case. We have time and again given a careful reading to the specific paras to which our attention has been drawn. The N.R. Parmar case judgment (supra) was translated into an Office Memorandum by the DOP&T on 04.03.2014. It would be pertinent to quote from para 5 of the said Office Memorandum to clarify the matters:
"5. The matter has been examined in pursuance of Hon'ble Supreme Court Judgment on 27.11.2012, in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar vs. UOI & Ors in consultation with the Department of Legal Affairs and it has been decided, that the manner of determination of inter-se- seniority of direct recruits and promotes would be as under:
a) DoPT OM No. 20011/1/2006-Estt.(D) dated 3.3.2008 is treated as non-
existent/withdrawn ab initio;
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPT O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees;
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c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.
f) The initiation of recruitment process for any of the modes viz. direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;
h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI &Ors. The cases of seniority 10 Item No. 18 (C-5) O.A. No. 1234/2022 already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened."
9. We do not find that the action of the respondents in assigning an ante dated seniority to the direct recruits finds any justification in the law laid down in the N.R. Parmar case judgment (supra). While passing an order in O.A. No. 1545/2020, we had discussed this issue at great length. We are not inclined to agree with the interpretation very emphatically put forth by the learned counsel for the respondents because nowhere does the Hon'ble Supreme Court in N.R. Parmar's case (supra) nor the DOP&T's Office Memorandum referred to above, which was an outcome of the said case, mentions anywhere that seniority is to be assigned in the vacancy year in which the recruitment is made or in the year requisition is sent. The said judgment and the DOP&T OM merely say that the inter-se seniority is to be assigned with reference to the year. Subsequently, it has been categorically laid down in the K. Meghachandra Singh's case judgment (supra) that a right cannot accrue to an official with effect from a date when he had not even entered into service or was not into the cadre.
10. Learned counsel for the applicant has drawn attention to several names in the impugned seniority lists, who have been placed above the officials, who were actually appointed/promoted to the said post much earlier. For the sake of illustration in the seniority list dated 24.06.2016 which is for the period 01.04.2006 to 31.03.2009, there is one Sunny Kumar at Sl. No. 2080. The said official was only 19 years & three months as on 01.04.2006 and did not even enjoy the basic eligibility to hold the said position. Similarly, at Sl.No. 296, 297 and 299 are the names where the anomaly is glaring. While one Sh. Anil Katiyal at Sl. No. 299 was appointed on 30.11.2007, the officials at Sl. Nos. 296 and 297, who got appointed in 2009 and 2008, have been placed above him.
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11. Without further commenting or dwelling upon the reasons given to draw the seniority lists, we find this position to be unacceptable in view of the law laid down in the K. Meghachandra Singh case judgment (supra) which has been subsequently incorporated in the detailed guidelines issued by the DOP&T vide Office Memorandum dated 13.08.2021. Moreover, the limited protection of the actions already taken subsequent to the N.R. Parmar (supra) case judgment is also not available in the instant case.
12. In view of the facts and arguments detailed above, we cannot sustain the impugned seniority lists. Accordingly, the Original Application is allowed and the impugned seniority lists (A-1, A-2, & A-3) are set aside. The competent authority amongst the respondents is directed to re-draw the seniority list strictly in accordance with the observations made hereinabove and the instructions & guidelines issued by the DOP&T on the subject. These directions shall be complied with, as expeditiously as possible, certainly not later than a twelve weeks from the date of the order. No costs
13. All associated MAs stand disposed of accordingly."
6. Learned counsel for the respondents states that in view of the fact that the said impugned order itself reflects that the representation of the applicant would meet the same fate as that to the applicants in O.A. No. 141/2017 and the same has been decided the respondents be accorded some time to examine the matter and process the case of the applicant accordingly.
7. Heard the learned counsel for the parties.
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8. In view of the fact that the O.A. No. 141/2017 mentioned in the impugned order has been decided (quoted herein above), this O.A. is also disposed of in similar terms.
The impugned orders/seniority lists dated 04.03.2022, 15.03.2016 and 24.06.2016 are quashed and set aside. The competent authority amongst the respondents is directed to re-draw the seniority list strictly in accordance with the observations made hereinabove and the instructions & guidelines issued by the DOP&T on the subject. These directions shall be complied with, as expeditiously as possible, certainly not later than a period twelve weeks from the date of receipt of a certified copy of this order. It is made clear that the in-situ promotions shall be effected from the date the same has been granted to the juniors of the applicant.
There shall be no order as to costs.
(Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dd/