Central Administrative Tribunal - Delhi
Sh.Mahesh Chand S/O Late Sh.H.O. Ram vs Union Of India on 28 May, 2013
Central Administrative Tribunal
Principal Bench
OA No.2328/2012
MA No.1909/2012
Reserved on: 18/02/3013
Pronounced on: 28/05/2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Mr. Birendra Kumar Sinha, Member (A)
Sh.Mahesh Chand s/o Late Sh.H.O. Ram
Permanent R/o H. No.1711, Gali No.3
Govindpuri Extn., New Delhi- 110 019,
Presently posted as Atache/PS,
Ministry of External Affairs,
Embassy of India, Kuwait Applicant
(By Advocate: Sh. K. Venkatraman)
-VERSUS-
1. Union of India
Through its Foreign Secretary
Ministry of External Affairs
South Block, New Delhi 110 011.
2. Union of India
Its Under Secretary
GA & Cadre, South Block
New Delhi.
3. Union Public Service Commission
Through its Secretary
Dholpur House, Shahajan Road,
New Delhi. Respondents.
(By Advocate: Mr. M.K. Bhardwaj)
O R D E R
By Mr. Birendra Kumar Sinha, Member (A):
The applicant, who was a Personal Assistant (PA for short), qualified for the Limited Departmental Examination for SO/Grade-I Stenographers, 2004 result of which was declared in the month of March April, 2006. On 11.07.2006, the applicant, on account of some personal problems, communicated his decision to continue in the PA line. He further informed that he attempted the examination in the year, 2006 in order to get his desired preference. The same was forwarded to the Ministry of External Affairs which considered his request and deleted his name from the Select List of SO through departmental examination in the year, 2004 vide communication dated 02.08.2006 (Annexure A2), Subsequently, the applicant filed another representation dated 18.12.2006 retracting from his earlier application dated 11.07.2006 writing the reasons of mental disturbances on account of family problems and made a fresh request to join in the Integrated II and III of IFS (B). Thereafter, several representations were filed by him. The matter was also referred to the DOP&T seeking opinion of the UPSC which did not prefer any reply within time. The Ministry examined the request of the applicant and came to a considered view that the request of the applicant could not be acceded to. The same was communicated to the applicant vide the communication dated 08.07.2008 of the respondent-organization. Thereafter, the applicant served a Legal Notice to the Ministry dated 11.04.2011 in response to which the respondent- organization rejected the claim of the applicant vide order dated 16.05.2011. The representation of the applicant dated July, 2010 was re-examined from a different angle where DOP&T guidelines for refusal of promotion, inter-alia state as under:-
(iii) However, since it may not be administratively possible or desirable to offer appointment to the persons who initially refused promotion, on every occasion on which a vacancy arises, during the period of validity of the panel, no fresh offer of appointment on promotion shall be made in such cases for a period of one year from the date of refusal of first promotion or till a next vacancy arises, whichever is later.
These guidelines conveyed the administrative discrepancies while dealing such matter. The impugned order further deals with comparison made by the applicant in acceptance of representation and withdrawal after acceptance. The applicant find that both the examples are not applicable to the facts of this case, as the competent authority had accepted the representation to decline the offer of promotion in July, 2006 and decision was formerly communicated vide the order dated 02.08.2006 with a copy to the applicant. Rule 26 (4) of CCS (Pension) Rules states that an appointing authority may permit to a person to withdraw his resignation, fulfillment of condition, namely, that period of absence of duty is not more than 90 days and the post vacant by the Government employee is still available. In the instant case, impugned order takes note that the period of 90 days is over and resultantly vacancy has already been filled up by another SC candidate from LDE, 2005. Moreover, the impugned order further states that there are no rules available to that effect. Feeling aggrieved, present Original Application has been filed by the Applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the impugned order placed at Annexure A-1. The applicant has sought the following relief :-
To call for the relevant records from respondent No.1/2 for taking final decision dated 16.05.2011 and also other relevant records as to how the application/ representation of the applicant was deal with ;
Set-aside the impugned final decision dt.16.05.2011 passed by Under Secretary (GA&Cadre), Ministry of External Affairs being illegal/untenable in law as arbitrary.
Issue of appropriate directions to the respondent 1/2 to accept a request of the application of the applicant dt.18.12.2006 and permit the applicant to join the duty as Section Officer based on limited departmental SO Grade Examination 2004 on notional basis without any claim on monetary benefits with other consequential benefits including seniority etc. based on the select list of 2004 Exam;
Pass any other relief deemed fit and proper may also be given to the applicant.
The applicant has raised number of grounds in this OA. The learned counsel for the applicant argued that the impugned order has been passed without having obtained the advice of the UPSC which was mandatory in this case. In the second instance, the learned counsel argues that once the reference was made to the DOP&T, no decision could be have been taken without the concurrence of the DOP&T. In the third instance, the applicant referred an internal note dated 20.08.2007 obtained under the Right to Information Act, 2005 stating that the case of the applicant had been submitted by some officials. The respondent nos.1 & 2 were not aware as to how to handle this situation and the fact that the department had no authority to take a decision on the subject, which clearly indicates that the vacancy occurred due to non-acceptance by the applicant had not been filled up as late as February, 2009, when the result of the LDE had been declared. Meaning thereby, during this period, the post was lying vacant and the department could easily permit the applicant to join the post of SO. The applicant being SC candidate alleges prejudice in the instant case and submits that since he had qualified and after short-listing was placed in the merit list could not have been prejudiced. He has also assailed the impugned order as being arbitrary and violative of Article 14 of the Constitution.
The respondents have filed the counter affidavit and have strongly resisted the OA. The principal grounds which have been adopted or rebutted of the facts in the OA are more or less contained in the impugned order dated 16.05.2011. The learned counsel for the respondents has submitted that it was on the request of the applicant that the decision was taken to remove his name from the select list whereas applicant has another request for inclusion of his name in the select list. Learned counsel for the respondents has strongly argued that the department is cadre controlling authority and the decision was taken by the competent authority. Moreover, UPSC has informed that it is concerned with pre-recruitment that the role of the UPSC has restricted to held up the vacancy and Ministry of Department in the SO grade Examination in accordance with the rules framed and notified by the Government of India i.e. Department of Personnel & Training since the issue relates to the post examination states that the Commission has no role to pay in the matter as it is exclusively within the domain of the Ministry of External Affairs.
Learned counsel for the respondents further argued that acceding to such request would set up wrong precedence and would open up flood gate and expose the organization respondents which would tantamount to open the Pandora box of the litigation.
We have carefully gone through the pleadings of the parties and have also heard the submissions made by the learned counsels of the rival parties. Further, we gone through the documents submitted by both the parties.
On the basis of the documents and submissions made on behalf of both the parties, the only issue to be decided is that whether the relief is being sought by right structure or within by that of conception. It is to be noted that the Office Memorandum dated 10.05.2006 vide which the result was published states that the inclusion of name of any officer in the selected list does not confer him to claim promotion on any particular date. However, the applicant had submitted his request for deletion of his name declining the promotion and the same was accepted vide the communication dated 02.08.2006. It has also to be clearly understood that there are no rules regarding the withdrawal of application and in absence of the same the advice of the DOP&T as quoted in the impugned order dated 16.05.2011 is that the Government employee refusing such promotion will have to withdraw the same within a period of 90 days that too prior to filling up the vacancy or till the next vacancy arises, which is later. In absence of any clear reason in this matter, this advice remains binding. The analogy extended to the withdrawal of resignation as it has rightly pointed out in the impugned order is misplaced as the period of 90 days had already elapsed. In any case, it is our considered opinion that where relief is being sought within legal right structure this will not hold good. Unless, there were two specific provisions relating to that, once the applicant has declined to avail of the promotions and the same has been accepted, his rights to recall the same stands extinguished upto the date of acceptance i.e. 2.08.2006 and there are no rules under which the same could be revived. This Tribunal is still to be distinguished from the Honble High Court and the Honble Supreme Court. Since it is a court of law whose duty is to decide within the four structure of law and is not a court of equity, therefore, it lacks jurisdiction. We, further, fully endorse the stand of the learned counsel for the respondents that allowing such cases would open the Pandora box and numerous such requests that had been made in the past would become alive. This Tribunal would have without any hesitation ruled in favour of the applicant had his plea would have been in the right structure. However, without having the legal force of right, we take full cognizance and dismiss the OA leaving the parties to bear their own costs.
(Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
/uma/