Central Administrative Tribunal - Delhi
Rajesh Malhotra vs Union Of India on 5 March, 2012
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.4269/2011
Reserved on: 29.02.2012
Pronounced on: 05.03.2012
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Rajesh Malhotra
S/o Shri Karta Krishan Malhotra
Block-S, Flat No.47,
Hudco Place, Andrews Ganj,
New Delhi-49. Applicant.
(By Advocate : Shri Santosh Singh)
Versus
1. Union of India
through Secretary
Government of India,
Ministry of Information & Broadcasting
Shastri Bhawan,
New Delhi.
2. The Secretary
Union Public Service Commission,
Shahjahan Road,
New Delhi.
3. Shri S. Venkateswar
Director (News),
All India Radio, Akashwani Bhawan,
Kolkatta-I.
4. Shri K. Shyama Prasad
Joint Director (IEC),
National Aids Control Organisation,
Chandralok Building,
Janpath,
New Delhi.
5. Shri B. S. Kainthola
Director
Directorate of Films Festivals,
Siri Fort Auditorium,
Khel Gaon Marg,
New Delhi.
6. Shri Nitin D. Wakankar
Deputy Press Secretary
Rashtrapati Bhawan,
New Delhi. Respondents.
(By Advocate : Mrs. B. Rana counsel for Respondent No.1
Sh. S. M. Zulfiqar Alam for Respondent No.2
Sh. Alok Gupta counsel for Respondent No.4.
Sh. S. K. Singh counsel for Respondent No.6)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
The applicant is an officer of the Indian Information Service (IIS) and belongs to 1989 batch. He is aggrieved by the seniority list issued by the official respondents dated 1.04.2009 and corrected up to 30.10.2009 vide their order dated 9.11.2009 (Annexure-A1) wherein the applicant is likely to be prejudiced in the ongoing Departmental Promotion Committee (DPC) process which was actively considered by the 1st and 2nd respondents. Feeling that his interest will be prejudiced by the said DPC, the applicant has approached this Tribunal with the following prayers:-
A. Seniority list issued vide I.D No.A.23012/1/2009-IIS on 9.11.2009 as contained in ANNEXURE A-1 may be declared as null and void and non-est in the eye of law as it stands superseded or substituted by ID Note No.A-32013/4/2009-IIS (PT)/97 dated 8.4.2011/9.5.2011 Annexure A-9 far as the applicant and Respondents No.3 to 6 are concerned.
B. The Respondent No.1 and 2 may be directed not to conduct any DPC from JAG to SAG considering any officer who is junior to the Applicant of this OA as per ANNEXURE A-9.
C. The Respondent No.1 and 2 may be directed to complete the process of rectification/restoration of seniority retrospectively of the Applicant vis-`-vis Private Respondents by convening review DPC/DPCs for senior time scale to Junior Administrative Grade of IIS Group A and placing the applicant and private Respondents in terms of Annexure A-9 and IIS Group A Amendment Rules, 2008 before conducting the proposed/scheduled DPC.
D. This application may be allowed with costs in favour of the applicant and against Respondents No.1 and 2 as they have completed the applicant to follow legal course because of their misfeasance and malfeasance in discharging their legal duty they owe towards the applicant.
E. This Honble Tribunal may allow and grace the applicant with any other relief their Lordships may feel fit and appropriate in the circumstances of the case.
2. The applicant moved MA No.71/2012 in which notice was issued to the respondents and the same came up for hearing on 10.01.2012. After hearing the parties, the MA was disposed of with a direction that if any promotion is made on the basis of DPC proceedings held on 28.12.2011, the same would be subject to the final outcome of the OA. The said interim direction has been continuing to till date.
3. The brief factual matrix of the case would disclose that the applicant who belongs to 1989 batch could join the IIS only on 20.08.1990. His seniority was fixed in terms of DOPT OM dated 7.01.1993 as per the merit list of CSE-1988. He could not be promoted to senior time scale along with other 1989 batch officers against 1993-1994 vacancies as he was short of requisite 4 years of qualifying service at that point of time. However, he was promoted in the next year i.e. 1994-1995. It is stated that the DPCs for promotion to the Senior Time Scale was held for four years i.e. 1993-94 to 1996-97 in the year 1996. However, the applicant represented in the year 2000-2002 stating that his seniority should be restored in Senior Time Scale along with his batchmates of 1989. It is stated that in 1987 Recruitment Rules, the junior-senior clause existed but in the amended Recruitment Rules notified in 1991 the said junior-senior clause was omitted and the said provision was again brought in the amended Recruitment Rules of IIS notified in the year 2008. Consequent to the retrospective effect of the junior-senior clause w.e.f. 25.03.1996, the review DPCs for STS of IIS Officers was held for the years 1993-94 to 2007-2008 and the seniority of the affected officers was restored. Hence, the final seniority list was circulated on 9.05.2011 which also benefited the applicant and other officers in the STS grade. The dispute at present raised by the applicant is that though his seniority was restored in the STS grade but his seniority in the Junior Administrative Grade (JAG) was not restored. In view of the fact that his seniority has not been restored in the JAG grade, his promotion from the JAG to the SAG grade could not be considered for the vacancy year 2010-2011. Feeling aggrieved by the same, the applicant has visited this Tribunal in the instant OA.
4. Referring to the above background of the case, Shri Santosh Kumar, learned Counsel for the applicant would submit that if promotion from JAG to SAG takes place, the applicant would become junior to his juniors as the review DPC would correct the seniority of the applicant which has not taken place from STS to JAG level. His main contention during the final hearing was that the respondents need to be directed to convene the review DPC for JAG level first and correct the seniority position at the JAG level, thereafter to conduct further review DPC to consider the applicants case at the SAG level.
5. We have heard Shri S. M. Zulfiqar Alam, learned counsel for respondent No.2 & 3, Shri Alok Gupta, learned counsel for respondent No.4 and Shri S. K. Singh learned counsel for respondent No.6.
6. Shri Alam would submit that the review DPC for correcting seniority of the applicant as well as other officers in the JAG grade would shortly take place. Therefore, the apprehension of the applicant would not arise, as the seniority and juniority issue would get corrected through the review DPC for JAG.
7. Learned counsel appearing for the private respondents would submit that if a review DPC could be held their position would not get disturbed and review DPC would obviously take into account the seniority of the officers available in the respective years in the JAG level.
8. Having heard the rival contentions of the parties, we have perused the pleadings as well.
9. At this stage, we may refer to the statutory rule position. The Note-1 and Note-2 of the Recruitment Rules of IIS Group-A notified in the year 2008 and available at Annexure-A4 envisage the following:-
Note 1: If an officer is appointed to any post in the service is considered for the purpose of promotion to a higher post, all persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years of service.
Note 2: With effect from 25th March, 1996, where juniors who have completed their qualifying/eligibility services are being considered for promotion, their seniors would alsobe considered, provided they are not short of the requisite qualifying service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying service.
10. The insertion of retrospective effect of the junior-senior clause through the above notes w.e.f. 25.03.1996 is a correction of the omission that has taken place inadvertently in the amended Recruitment Rules for the year 1991. It is appropriate to note that the Recruitment Rules of 2008 is not under challenge in the present OA.
11. We notice that the 1st respondent has admitted in counter reply that the DPC for JAG is being processed and the review DPC would be held shortly. Only after the completion of the review DPC process for the JAG, the review DPC for SAG would take place as the JAG is the feeder category for promotion to the SAG level. It is appropriate to take the extract of the reply affidavit of Para 5.8 and 5.9 of the OA, which thus reads:-
That the contents of Para 5.8 to 5.9 of the ground of OA under reply are absolutely wrong, false fabricated and hence vehemently denied. However, it is submitted that the averments in these paras are denied. However, the ministry is in the process of revising the seniority list in each grade from STS and above wherever required. The seniority list of STS has already been revised by conducting the review DPC. Likewise review DPC of JAG is underway and thereafter review DPC of SAG will also be conducted wherever required. And the applicant will get his due seniority/promotion in this process.
12. In view of the above admitted position, we are of the considered opinion that the applicants grievances is being properly looked into by the 1st respondent who is proposing to conduct the review DPC of JAG after which review DPC for SAG will take place. We have to only issue a directions that the said review DPC for JAG and SAG should take place in a time bound manner.
13. Having considered the totality of facts and circumstances of the case and taking note of the commitment given by the respondents in their reply affidavit, we direct the 1st respondent (a) to convene the review DPC for the JAG within a period of three months from the date of receipt of a certified copy of this order and (b) as a follow up measure within three months thereafter to convene a review DPC for promotion to the SAG level. The entire exercise for the above review DPCs should be completed within next six months.
14. Resultantly, in terms of our above directions and observations, the OA is disposed of leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/