Central Administrative Tribunal - Ernakulam
P G Ramachandran vs M/O Labour on 20 March, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00237/2016
Wednesday this the 20th day of March 2024
CO RAM :
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
P.G.Ramachandran,
Sub Regional Employment Officer,
Coaching-cum-Guidance Centre for SC/STs,
Thycaud, Thiruvananthapuram - 695 014.
Residing at Chandrasudha 36, CGS Nagar,
Pappanamcode, Thiruvananthapuram - 695 018. ...Applicant
(By Advocate Mr.Vishnu.S.Chempazhanthiyil)
versus
1. Union of India represented by its Secretary,
Ministry of Labour & Employment,
Shram Sakthi Bhavan, New Delhi - 110 001.
2. The Director General & Joint Secretary,
Ministry of Labour & Employment (DGE&T),
Rafi Marg, Shram Sakthi Bhavan,
New Delhi - 110 001.
3. The Deputy Secretary (Admn.II),
Employment Directorate,
Ministry of Labour & Employment,
Shram Sakthi Bhavan, New Delhi - 110 001. ...Respondents
(By Advocate Mrs.Mini.R.Menon)
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This application having been heard on 6 th February, 2024 the
Tribunal on 20th March 2024 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER This Original Application (OA) is an example of how an application originally filed asking for a specific set of reliefs later morphs into in effect a very different set of reliefs. The applicant had initially filed the O.A seeking the following relief :
1. Call for the records leading to the issue of Annexure A-9 and Annexure A-10 and set aside Annexure A-9 and Annexure A-10.
2. Call for the records leading to the issue of Annexure A-2 Recruitment Rules and set aside Annexure A-2 Recruitment Rules.
3. Direct the respondents not to proceed with Annexure A-17, as the same takes away/diminishes the promotional prospects of qualified persons in the feeder category awaiting promotion.
4. Declare that amalgamation of posts as done in Annexure A-9 and Annexure A-10, solely on the basis of identically of pay scales/grade pay, without due regard to educational qualification, nature of duty and work for each posts, is illegal and arbitrary and the same is vitiated by non application of mind.-3-
5. Direct the respondents to consider the promotion of the applicant in terms of the Recruitment Rules that was in force prior to 04.03.2015 (date of commencement of Annexure A-2 Recruitment Rules) towards the vacancies that existed prior to Annexure A-2.
6. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
7. Award the cost of these proceedings to the applicant.
The broad issues in the O.A are as follows :
2. The applicant submitted that he had entered service under the respondents as a Sub Regional Employment Officer (SREO). At the time of filing the O.A on 16.03.2016 he had also submitted that he had not secured any promotion for a period of 25 years. Further, he submitted that he had been working as SREO at the Coaching-cum-Guidance Centre for SC/STs at Thiruvananthapuram, an office of the Ministry of Labour and Employment (MoLE) of the Government of India which is directly under the Directorate General of Employment and Training (DGET). Such Coaching-cum-Guidance Centres for SC/STs have been functioning in the country since 1969. Their aim is to provide vocational -4- guidance and career information at appropriate stages to the SC/STs population. The aim is to increase their employability through coaching and training. The applicant at the time of filing the O.A was in the pay scale of Rs.9300-34800 with a Grade Pay of Rs.4600/-. He submitted that he had been drawing this pay with effect from 19.10.2005. He had filed the O.A aggrieved by his non promotion from the post of SREO to the next higher post of Assistant Director of Employment Exchange. He was also aggrieved by the fact that he could have been further promoted as Deputy Director of Employment Exchange if he had been promoted to the post of Assistant Director of Employment Exchange, prior to his date of superannuation on 31.08.2018.
3. It is submitted that the Recruitment Rules called the Directorate of Employment, Directorate General of Employment and Training (Group 'A' Gazetted Post) Recruitment Rules, 1994 provided for promotion of persons like the applicant from the grade of SREO to the level of Joint Director of Employment Exchanges. A copy of these Recruitment Rules of 1994 has been produced at Annexure A-1. The applicant submits that while he was awaiting promotion to the posts of Assistant Director of -5- Employment Exchange/Deputy Director of Employment Exchange under the Rules of 1994, the Directorate General of Employment and Training (2nd respondent) issued revised Recruitment Rules for Group 'A' posts, to take effect from 04.03.2015. A copy of these Rules named the Ministry of Labour and Employment, Directorate General of Employment and Training, Directorate of Employment (Group 'A' posts) Recruitment Rules, 2015 has been produced as the impugned order at Annexure A-2.
Soon after the notification of these rules on 04.03.2015, it appears that the respondents issued a final seniority list in respect of SREOs as on 31.03.2015, on 22.05.2015. A copy of this final seniority list has been produced at Annexure A-3. The applicant is shown at the 3 rd position in the list. He submits that, in effect, he was occupying the 1 st position, since those indicated at Sl.Nos.1 and 2 of the list had already been retired.
4. In any case, it is submitted that consequent to the above Recruitment Rules of 2015 as produced at Annexure A-2 being issued on 04.03.2015, the respondents had published another seniority list on 10.08.2015. A copy of this list is produced at Annexure -6- A-4. This list contains the combined final seniority list of Group 'B' officers in the grades of Research Officer (RO)/Planning Officer (PO)/Sub Regional Employment Officer (SREO)/Officer on Special Duty (OSD)/Junior Scientific Officer (JSO), Psychologist of DGE&T and Technical Assistant (Senior)/Senior Technical Assistant/Psychologist/Rehabilitation Officer of ERC under DGE&T, as on 01.01.2014. In this list, published on 10.08.2015, the applicant's position has slipped to Sl.No.19.
5. The applicant submits that the DGE&T has 57 Group 'A' posts. These 57 posts earlier were covered under 4 separate Recruitment Rules. These Recruitment Rules were the following :
(a) The Recruitment Rules 1969 related to the Group 'A' posts of the Central Institute of Research and Training in the Employment Service, New Delhi. This is a National Institute responsible for conducting research and training for the better functioning of the Employment Exchanges all over India.
(b) The Recruitment Rules 1988 related to the post of Senior Programmer of Data Processing Unit in Pay Band of Rs.15600-39100 with Grade Pay of Rs.6600/-. The Rules related to the Senior Programmer and Programmer who are engaged in Data Processing Unit of DGET. It is submitted that these posts are purely technical posts requiring qualification and background of computer application and programming. The Senior Programmer is the head of the Data -7- Processing Unit of Employment Directorate which is responsible for system analysis, designing and development of software used for processing data collection by various Employment Market Information units.
(c) The Recruitment Rules 1994, (a copy of which was produced at Annexure A-1) related to the Group 'A' posts of Director of Employment Exchange, Joint Director of Employment Exchange, Deputy Director of Employment Exchange, Assistant Director of Employment Exchange and Senior Scientific Officer Grade I and Grade II. These officials were engaged with the works relating to Employment Exchanges across the country. The SREO was the feeder cadre to the post of Assistant Director of Employment Exchange. The post of Senior Scientific Officer (SSO) Grade I and Grade II were related to construction of tests for mental abilities and its analysis. The qualification requirement for the post of SSO Grade I was Master's Degree in Psychology or Education of a recognized University with papers either in Mental Testing or Educational and Vocational Guidance and Statistics and Ph.D Degree in the area of test construction or Ph.D degree with at least five years experience in the construction of tests of Mental Abilities or at least 7 years experience of constructing tests of mental abilities.
(d) The Recruitment Rules 2004 related to the Group 'A' posts of Deputy Director (Rehabilitation), Assistant Director (Rehabilitation) of Vocational Rehabilitation Centre for handicapped. This was headed by Deputy Director (Rehabilitation) and Assistant Director (Rehabilitation) etc., and the officials holding these posts required Post Graduation qualifications, different nature of experiences and were to be engaged in different varieties of jobs in the field of rehabilitation of handicapped persons. As per the Recruitment Rules, 2004 these posts were maintained as separate unit with separate seniority and the feeder cadre official working in the set up of Vocational Rehabilitation Centre for Handicapped only considered for promotion according to their seniority.-8-
6. It is submitted by the applicant that it is obvious from the above description of the posts and duties as well as qualification requirements/nature of experiences that these different Recruitment Rules for the Group 'A' posts had been specifically designed for the development and career management of officers, who were working in separate units though under the DG E&T. The officers were working with separate seniority lists as the qualifications as well as the requirement of their jobs were different. While all these 57 Group 'A' posts under DG E&T which arose from these 4 separate Recruitment Rules were functioning, it is submitted that a decision was taken, through an official note moved on 08.06.2006 in the Ministry of Labour and Employment, to amalgamate these cadres. It was recorded in the note that interchangeability between posts will not be a problem as the qualifications prescribed for recruitment and functional aspects 'are more or less the same'. It is submitted by the applicant that, in effect, what the office note at Annexure A-8 proposed was for an inexplicable interchangeability of posts. For example, a Senior Scientific Officer Grade I with qualification of Post Graduation in Psychology/PhD degree with 5 years experience could, as per the note, be interchanged with a -9- post of Senior Programmer with a qualification of Computer Programming and 5 years experience in Electronic Data Processing and vice versa. In other words, irrespective of the qualifications and nature of duties, it was proposed that posts could be interchanged if identical pay scale exist.
7. It is submitted that based on this note produced at Annexure A-8 which was moved in June, 2006, the Department issued Office Orders dated 16.01.2008 and 06.12.2010 by which, Group 'A' posts in identical pay scales under the Employment Directorate under DG E&T were clubbed and amalgamated. They were redesignated to bring out uniformity in nomenclature of the posts with a view to have combined Recruitment Rules for all the Group 'A' posts in the Employment Directorate. By the Office Order dated 16.01.2008 produced at Annexure A-9 only 4 revised designation of posts were identified ie., Director of Employment (Rs.14300-400-18300), Joint Director of Employment (Rs.12000-375-16500), Deputy Director of Employment (Rs.10000-325-15200) and Assistant Director of Employment (Rs.8000-275-13500). The total number of posts covered -10- by the order dated 16.01.2008 (Annexure A-9) and 06.12.2010 (Annexure A-10) were 57, broken up as 1 post of Director of Employment, 5 posts of Joint Director of Employment, 28 posts of Deputy Director of Employment and 23 posts of Assistant Director of Employment.
8. When the applicant filed the O.A it was thus with the specific intent, as may be seen from the reliefs sought (at paragraph 1 above), to set aside the issuance of these Annexure A-9 and Annexure A-10 Office Orders, even though they had been issued more than 6-8 years before filing the O.A. Further, the Recruitment Rules, which were notified vide Annexure A-2 (herein after the Recruitment Rules of 2015) were also sought to be set aside. These Rules were issued long after the issue of the Office Order at Annexure A-9 and Annexure A-10 i.e., there was a period of 7 years from the issue of the Annexure A-9 order and the Annexure A-2 Rules of 2015. These were considered by the applicant to be discriminatory and arbitrary. He submitted that the amalgamation of posts as done in Annexure A-9 and Annexure A-10, solely on the basis of identicality of pay scales/grade pay without due regard to educational -11- qualifications, nature of duty and work of each post is vitiated by non application of mind. He thus prayed for his promotion in terms of the Recruitment Rules, in force prior to 04.03.2015, ie., the Recruitment Rules produced at Annexure A-1 of 1994. He brought out a series of examples in the O.A to prove how impractical the 2015 Recruitment Rules would be in practice, as they sought to mix up, as was noted earlier, Senior Programmers with those with a background of Sociology and vocational Rehabilitation or those with qualifications of Psychology and M.A in Economics. The anomalies that he brought out, as examples, sought to establish that officials having different qualifications and experience, even if they are all working in the Employment Department under the DGET, cannot be interchanged on just the criteria of being in an identical pay scales. It was submitted that while the idea behind the amalgamation of these posts was purported to be to provide better promotional prospects, the actual fact, in practice, would be to wreak havoc. As he pithily put it 'a person with psychology background will be posted as a Computer Programmer and vice versa'. The Recruitment Rules of 2015 at Annexure A-2 were thus strongly resisted as were the Office Orders at Annexure A-9 and Annexure A-10 -12- along with the original note at Annexure A-8, as totally unsustainable, arbitrary and discriminatory, not having nexus with the object sought to be achieved.
9. Further, in respect of his own case the applicant submitted that he had been working as SREO with effect from 23.05.1990 at the Coaching- cum-Guidance Centre for SC/STs, Thiruvananthapuram in the Pay Band (PB) of Rs.9300-34800 with a Grade Pay Rs.4600/-. He had not got any promotion in the previous 24 years. He was due to retire on 31.08.2018 on superannuation. As per the earlier Recruitment Rules of 1994, as a SREO he had been eligible to be promoted to the post of Assistant Director of Employment Exchanges (ADEE) in the PB of Rs.15600- 39100 with a Grade Pay Rs.5400/- on completion of 3 years of service as SREO, subject to availability of vacancy and seniority. Thereafter, he would have become eligible for promotion as Deputy Director of Employment Exchanges (DDEE) in the PB of Rs.15600-39100 with a Grade Pay Rs.6600/- on completion of 5 years of service as Assistant Director of Employment Exchanges or after 8 years of combined service as SREO and Assistant Director of Employment Exchanges, subject to -13- availability of vacancy. Further, since he belongs to the SC category, he could have become eligible for promotion as Assistant Director of Employment Exchanges as well as Deputy Director of Employment Exchanges in view of his seniority position on account of the promotion of a Deputy Director of Employment Exchanges at that time to the post of Joint Director of Employment Exchanges (JDEE). He submitted that it is clear from the seniority list produced at Annexure A-3 that this was very much possible as, at that stage, there were 2 posts of Assistant Director of Employment Exchanges and 4 posts of Deputy Director of Employment Exchanges lying vacant. Thus, just when he was expecting promotion as Assistant Director of Employment Exchanges, all on a sudden the Directorate of Employment revised the Recruitment Rules for the post of Assistant Director, Deputy Director and Joint Director as per Annexure A-2.
10. It is submitted that the entire service conditions have been altered and many other posts have been clubbed into feeder category to the post of Assistant Director of Employment Exchanges as per Annexure A-2 Recruitment Rules of 2015, solely on the basis of identicality of pay -14- scales. As a result, therefore, the promotion quota from the post of Assistant Director of Employment Exchanges to the post of Deputy Director of Employment Exchanges has been reduced from 60% to 30%. The applicant had brought out in the O.A that this step taken by the respondents is also against the instructions of the DoP&T, issued in the O.M.No.AB-14017/12/88-Estt.(RR) dated 25.03.1996. This provided for retention of existing eligibility service when new Recruitment Rules are introduced. It had been laid down that where the eligibility service for promotion prescribed in the existing Rules was being enhanced (to be in conformity with the guidelines issued by the DoP&T) and the change was likely to affect adversely some persons holding the feeder grade posts on a regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised Rules could be included in the revised Rules. It is submitted that these guidelines, a copy of which is produced at Annexure A-11, have been flouted. Further, the action of notification of the Annexure A-2 Rules was without giving any notice to the affected employees and without giving an opportunity to represent their grievances to the Government. It is submitted by the -15- applicant that these Rules can have application only in respect of vacancies that arose after 04.03.2015, ie., the date on which they were published in the Gazette. It is contended that he is eligible for consideration against vacancies in terms of the Rules that were in force prior to Annexure A-2 in accordance with seniority.
11. The respondents filed a reply statement on 17.12.2016 countering the above contentions. A rejoinder to this reply statement was then filed by the applicant on 25.10.2018. In the reply statement the respondents submitted that the applicant had been first appointed on deputation/absorption as SREO on 19.10.2005 in the scale of pay of Rs.6500-10500 (pre-revised). He was later permanently absorbed in the cadre with effect from the date when he joined ie., 19.10.2005 vide their Office Order dated 26.09.2008. As such it is submitted that he had completed only 10 years and 9 months service under the Directorate General of Employment, as on date, and not 25 years as mentioned by him. However, the applicant explained in his rejoinder that he was even earlier employed in the Employment Directorate of Directorate General of Employment, in the pre-revised pay scale of Rs.9300-34800 with -16- Grade Pay Rs.4600/-. This was with effect from 23.05.1990 and it was only with effect from 19.10.2005, that he started working as SREO in the same pay scale and Grade Pay. He, therefore, submitted that, as on the date of filing the rejoinder, he had been working under the same respondent, Employment Directorate of the DGE for more than 27 years in the same pay scale, without promotion.
12. Further, in relation to the matter of the applicable Recruitment Rules, the respondents have submitted that the Recruitment Rules of 1994 had been revised in March, 2015 by the Directorate General of Employment & Training. This had been done in consultation with the Union Public Service Commission (UPSC), Department of Personnel & Training (DoP&T) and Department of Legal Affairs (DoLA). The intention for the revision was to provide better promotional prospects as well as equal opportunities. It is submitted that after clubbing/amalgamation of the posts, the total number of posts in all categories ie., Assistant Director of Employment, Deputy Director of Employment and Joint Director of Employment have substantially increased. It is submitted that a total of 57 posts in 15 categories have -17- now been clubbed/amalgamated/re-designated into 57 posts in 4 categories. Overall, this clubbing has increased the chances of incumbents under the Directorate General of Employment as a whole for promotion. It has also provided more chances of promotion to many senior officers in the combined seniority list who had been earlier suffering under the segmented Recruitment Rules for the 15 categories. The respondents also point out that they had issued the Office Order dated 16.01.2008 (produced at Annexure A-9 by the applicant), by which they had clubbed/amalgamated and redesignated the posts, in order to bring in some uniformity in the nomenclature of the posts. This decision had been taken with a view to have combined Recruitment Rules for all Group 'A' posts in the Employment Directorate.
13. The respondents further submit that the applicant had joined the Directorate General of Employment on 19.10.2005 on deputation. He had got permanently absorbed on 26.09.2008. Since the Office Order at Annexure A-9 is dated 16.01.2008, he should have been well aware about the clubbing/amalgamation of Group 'A' posts even before his date of absorption. It is submitted that more than 8 years have passed after -18- the Office Order of 16.01.2008 had been issued with the intention of amalgamation/redesignation. However, applicant has approached the Tribunal against the same only in March, 2016. Further, they have addressed the averment that the respondents had issued a final seniority list as on 31.03.2015 vide letter dated 22.05.2015 in respect of SREOs. It was contended by the applicant that this shows that such seniority lists were being maintained cadre wise. Also, it was pointed out that he was in the 3rd position in the said list. In this regard it is submitted by the respondents that the new Recruitment Rules were notified on 04.03.2015. Previously, there were separate Recruitment Rules for different categories of posts at Group 'A' level in Employment Directorate of DGE&T. These posts had different designations with different job specifications/duties but were in the same pay scales. The amalgamation had been done in order to provide better promotional prospects and equal opportunities to all categories of Group 'A' posts. Accordingly, the Group 'A' posts in identical pay scales in the Employment Directorate were clubbed/amalgamated and redesignated. This was done in order to bring out some uniformity in the nomenclature of the posts with a view to have combined Recruitment Rules for Group 'A' posts in the -19- Employment Directorate. This was the intention behind the Office Order dated 16.01.2008 (Annexure A-9) which had been issued with the advice of the UPSC and the DoP&T.
14. The respondents submit that in view of the above, the fact that a final seniority list as on 31.03.2015 had been issued in relation to SREOs need not be given any additional importance. They point out that the Office Order dated 16.01.2008 had carried a stipulation that "the incumbents of the redesignated post will have no claim to seniority/promotion in respective cadres of Employment Directorate and will be governed by the inter-se seniority drawn by the Employment Directorate." It is reiterated by the respondents that as a result of the clubbing/amalgamation, the avenues for promotion had substantially been increased. The Recruitment Rules were amended accordingly later and notified on 04.03.2015. A provisional combined seniority list of all Group 'B' Officers of all the different cadres under the Directorate General of Employment as on 01.01.2014 was also circulated to all the Group 'B' officers, vide Circular dated 10.08.2015 for making representations, if any, within 15 days from the date of circulation. It -20- was indicated that no representation would be entertained thereafter and that the combined seniority list, as circulated, would be treated as final. In this context it is submitted by the respondents that the applicant had submitted a representation on 18.08.2015. However, the representation did not object to the provisional combined seniority list of Group 'B' Officers, but was only for adding his educational qualifications of B.Tech Degree in Electronic and Communication Engineering in the seniority list. A copy of the said representation has been produced at Annexure R-2. The representation was considered positively by the Directorate. Necessary changes were incorporated in the seniority list and, thereafter, the final seniority list as on 01.01.2014 of all the Group 'B' officers under the Directorate General of Employment & Training was issued vide Circular dated 19.09.2015 with the approval of the competent authority. This list has been produced by the applicant at Annexure A-4 and by the respondents at Annexure R-3. It is submitted by the respondents that the DoP&T had been consulted before revising the Recruitment Rules. The DoP&T had noted that the qualifications prescribed for recruitment and functional aspects are more or less the same and that interchangeability between the posts will not be a problem. The DoP&T had accordingly -21- approved the said Recruitment Rules. It also advised to obtain the concurrence of UPSC and Ministry of Law. Subsequently, the approval of UPSC and Ministry of Law had been obtained and the revised Recruitment Rules were notified on 04.03.2015. It is further submitted that as per the new Recruitment Rules, 2015, promotion to all Group 'A' posts would require successful training in the field of duties and responsibilities of the higher promotional posts from the Central Institute for Research and Training in Employment Service, Directorate General of Employment, Ministry of Labour and Employment or any other Institute notified by Government of India. This training was also made mandatory.
15. The applicant has contested the above contentions of the respondents. He submits that the so called increase in the total number of posts in all categories is not correct. He submits that the total number of Group 'A' posts ie. ADE, DDE and JDE in the Employment Directorate before and after the revision of Recruitment Rules remained at 57. Hence, there had been no increase or decrease in the number of Group 'A' posts of Employment Directorate after the revision of the -22- Recruitment Rules. Accordingly, the statement that there has been an improvement in the chances of promotion for the incumbents is wrong. It is submitted that when the posts remain at 57 how can the promotion chances increase? Further, due to the said amalgamation of the posts, the promotional prospects of the applicant had been ruined. The new Rules have drastically affected the entire recruitment process through promotion for all the Group 'A' posts in the Employment Directorate. In addition to this, the Employment Directorate had mislead the UPSC, DoP&T and Department of Legal Affairs about the qualification requirements for all those 57 posts by wrongly stating that the qualifications are more or less the same and that the interchangeability between the posts was not at all a problem. As pointed out earlier it was illogical to redesignate all the posts in similar designations if the posts were in the same grade pay. As brought out in the O.A in detail this made no sense without considering the requisite qualifications, nature of duties and responsibilities. The applicant further submits that it is surprising as to how the UPSC, the DoP&T and the Department of Legal Affairs had allowed and approved such interchangeability of the posts since the qualifications and nature of duties of each and every post are different. -23- He submits that even a layman would know that a post of a Computer Programmer having a qualification of B.Tech Degree in Computer Science with experience in doing electronic data processing work cannot be interchanged with the post of a Scientific Officer Grade I, with a qualification requirement of Ph.D in Psychology, with experience in conducting psychological tests.
16. The applicant submits that the above details show that the revised Recruitment Rules of 2015 by merging all posts on the basis of same Grade Pay, without considering the necessary qualification requirements, experience and nature of duties have been issued without any detailed consideration The entire process has, therefore, been vitiated. All these details were suppressed by the Employment Directorate while moving the files to the UPSC, the DoP&T and the Department of Legal Affairs. Further, the applicant reiterates that if the Recruitment Rules of 1994 were applied, he would have been able to go up the ladder up to the level of Joint Director. The 1994 Recruitment Rules had mandated that SREO could get promotion as Assistant Director (ADEE) on completion of 3 years service. Further promotion as Deputy Director (DDEE) would be -24- on completion of 5 years as Assistant Director or after 8 years of combined service of SREO and Assistant Director. On completion of another 2 years service the applicant would have become a Joint Director (JDEE). Further, even after the new Rules have been notified, there were still large number of vacancies to be filled at the level of ADEE/DDEE and JDEE. This was due to the confusion and problems created by the amalgamation of posts in the revised Recruitment Rules of 2015. The applicant submits that as many as 80% of Group 'A' posts are vacant, at the time of filing the rejoinder on 25.10.2018. He, himself, retired on 31.08.2018 in the same Grade Pay of Rs.4600/- which he was drawing with effect from 23.05.1990. This was solely due to the amendment of the Recruitment Rules, 1994 and their replacement by the Recruitment Rules of 2015.
17. The applicant then brought out details of cases of some officials, who were still being promoted to the post of Deputy Director (Rehabilitation) from the post of Assistant Director (Rehabilitation). This was done inspite of the Recruitment Rules of 2015. However, the respondents have explained this by stating that such promotions were -25- done on an adhoc basis. Their appointment were issued with the rider that it would not bestow any claim for their continued appointment to the post or for the purpose of seniority in the grade and that their adhoc appointment can be terminated at any time without assigning any reason. In fact, the respondents have also pointed out that the concerned Deputy Director was reverted to his substantive post of Assistant Director on expiry of the period of his adhoc promotion. However, the applicant has submitted in the rejoinder that there was at least one promotion of an employee on a regular basis by ignoring the order dated 16.01.2008 at Annexure A-9. This also showed that even after the order dated 16.01.2008 which had changed the designation had been issued, the respondents were still even using the earlier designation while giving adhoc appointments. Hence, the Office Order of 16.01.2008 at Annexure A-9 had not been implemented by the Employment Directorate for years together.
18. It is further submitted by the applicant that even after the promulgation of the 2015 Recruitment Rules, the post of Director of Employment was being filled up through direct recruitment by -26- ignoring promotion. This only establishes that the Employment Directorate not only ignored the order dated 16.01.2008 at Annexure A-9, but also the Recruitment Rules of 2015. It is submitted that it is only the Recruitment Rules of 1994 which had the provision for direct recruitment to the post of Director of Employment. The Recruitment Rules of 2015 had clearly stated that it can only be done through 100% promotion. It is submitted that at the time of retirement of the applicant on 31.08.2018, as many as 8 posts of Assistant Director of Employment (ADE) were vacant. The Directorate General of Employment had not filled up these 8 posts at that time due to administrative delays. As per the seniority list according to the new Recruitment Rules the applicant was in the 7 th seniority position. It appears that the Department had started the process of filling up the vacant posts of ADE through promotion after his retirement in which case he should come under the zone of consideration. Thus, even going by the present Recruitment Rules, he could get a chance for being considered for promotion as Assistant Director as 8 vacant posts were available as on 31.08.2018 and he was at the 7 th position in terms of the date of occurrence of vacancies to be considered for promotion. Hence, -27- refusing to consider the applicant in terms of the existing Recruitment Rules would also be nothing but a violation of his fundamental right for being considered for promotion.
19. It is due to the above contention of the applicant in the rejoinder that we noted in the beginning of this order that the reliefs sought by the applicant appears to have moulded slightly into another set of reliefs. The last contention appears to indicate that the applicant seems to have more or less resigned to the fact that there was no getting over the Recruitment Rules of 2015 at this late stage. In effect, therefore, the reliefs sought originally, which was to quash the Annexure A-2 Recruitment Rules of 2015 and to set aside the Annexure A-9 Office Order of 16.01.2008 and the Annexure A-10 Office Order of 06.12.2010 seem to be not strongly pressed. This is amplified by the fact that there were no further pleadings for a very long time after filing the rejoinder in October, 2018 even though the respondents filed a short affidavit/additional reply statement in response on 31.12.2018. The next set of pleadings restarted much later in terms of new affidavits, responses and statements only with effect from October, 2021. These then continued till date. Thus, for a period of -28- almost 3 years from 2018 to 2021, there had been no additional pleadings or documents filed. Going by the later pleadings before us, it appears that the prayers in the Original Application were almost been given up. The applicant now claims that he should be considered in spite of his retirement, under the Recruitment Rules of 2015 for promotion to the post of Assistant Director (ADE).
20. The applicant filed an M.A.No.180/655/2021 in October, 2021 to implead the Union Public Service Commission (UPSC) as additional respondent No.4 in the proceedings. No orders have been issued so far in the said M.A. The respondents then filed an affidavit on 12.11.2021, in which they produced a copy of the minutes of a Departmental Promotion Committee (DPC) held on 30.04.2019 in the matter of selection of officers for promotion to the post of Assistant Director of Employment in the Directorate General of Employment. The respondents stated that they had submitted a proposal for filling up 10 posts of Assistant Director for the vacancy years 2015-16, 2016-17, 2017-18 and 2019 to the UPSC. These posts were in the General Category (UR) and consisted of 2 vacancies occurring in 2015-16, 1 vacancy in 2016-17, 1 vacancy in -29- 2017-18 and 6 vacancies in 2019. It is submitted in their affidavit that as per the Zone of Consideration, the name of the applicant would appear under the vacancy year 2017-18. However, there was only 1 vacancy available in that year and the applicant was at Sl.No.5 in the zone of consideration. The DPC found the officer at Sl.No.1 in the zone as 'FIT' for promotion against the vacancy and, thus, the applicant was not assessed by the DPC. It is pointed out that as per the combined seniority list of Group 'B' officers under DGE&T as on 01.01.2014 (produced at Annexure R-11), the officer who was promoted against the vacancy year 2017-18, Shri.Biswajit Mohanty, was at Sl.No.8 whereas the applicant was at Sl.No.19. The respondents have also produced a copy of the minutes of the meeting of the DPC held in UPSC on 30.04.2019 at Annexure R-12.
21. As we noted, the filing of the above affidavit was among a flurry of filings and counter filings in the O.A post October, 2021. The respondents seem to have been establish through these documents that the applicant appeared in the zone of consideration at Sl.No.5, even after his retirement, for the 1 vacancy in the vacancy year 2017-18. However, -30- as stated, he was not assessed by the DPC, as the officer at Sl.No.1 in the zone of consideration, Shri.Biswajit Mohanty had been found 'FIT' for promotion. Thus, all other officers in the zone of consideration were not required to be assessed. It is also contended that in the combined seniority list Shri.Biswajit Mohanty was senior to the applicant. It is further submitted that another 6 vacancies for the vacancy year 2019 had been also considered as per the revised Recruitment Rules of 2015, as they were taken as applicable as per the date of occurrence of vacancy. It is submitted that, as per the latest Recruitment Rules dated 13.07.2017 two weeks of training is mandatory to be eligible for being considered for promotion in the DPC. It appears that the 6 vacancies for the year 2019 consisted of 1 vacancy from the year 2017-18, 4 vacancies for the year 2018 and 1 vacancy for the year 2019. (We are presuming that this took place because of the switch in regard to the calculation of vacancies from financial year wise to calender year from 2019 onward and vacancies which occurred during the latter part of the year 2018 as well as in the whole year of 2019 were included in the vacancies for the calender year 2019). The respondents have submitted that the officers coming under the zone of consideration had not completed their -31- mandatory training as on the crucial date and hence were not eligible for being considered in the DPC. However, they completed the mandatory training during November, 2018 and become eligible for considering in the DPC for the 6 vacancies of the year 2019.
22. It is submitted by the respondents that the applicant had retired on 31.08.2018 on attaining the age of superannuation. The crucial cut off date for the 6 vacancies in the year 2019 for consideration of eligible candidates was 01.01.2019. The applicant was thus not included in the zone of consideration as he had already retired from service on 31.08.2018. The person who was below him in 2015 combined seniority list but was still in service, one Shri.B.P.Bhajantri, was thus promoted against the vacancy year 2019. It is reiterated that since the applicant was not in service as on the crucial date of 01.01.2019, he was not eligible for inclusion in the zone of consideration for the vacancy year 2019. He thus has no case as he had already retired on the date of the DPC. It is also submitted by the respondents that the promotion takes effect and is applicable from the prospective date subject to assumption of charge to a promoted post. In addition to this, it is submitted that even -32- though the applicant's claim in the O.A is for promotion to the post of Assistant Director of Employment, which is in Level 10 of the Pay Matrix Rs.56100-177500, he had already retired from the higher level of pay in Level 11 of the Pay Matrix Rs.67760-208700. This was because he had been granted third financial upgradation under the Modified Assured Career Progression Scheme (MACPS) with effect from 06.02.2012, which was equivalent to the pay of a Deputy Director of Employment. His last pay drawn was Rs.96600/-. Hence, there would have been no financial benefit to him, in any case, if he got promotion to the next grade of Assistant Director of Employment which was at Level 10 in the Pay Matrix, as he had retired from the pay at Level 11.
23. The applicant again contested all these points in his own affidavit by producing Annexure A-18 which is a reply to a RTI Application filed by him. He submits that this gives the details of the dates of occurrence of vacancies from 2015-16 to 2019. He submits that according to the respondents, in 2017-18 an officer senior to him appearing at Sl.No.8 of the combined seniority list had been recommended by the DPC. The respondents also claimed that the latest Recruitment Rules had come into -33- effect on 13.07.2017 and that all the vacancies that have arisen after 2017-18 have to be filled up as per the new Recruitment Rules dated 13.07.2017. It was also claimed that the 6 vacancies shown for the year 2019 had consisted of 1 vacancy of the year 2017-18, 4 vacancies of the year 2018 and 1 vacancy of the year 2019. It is submitted by the applicant that the reply to the RTI Application shows how the vacancies have arisen. Further, the respondents had asserted that in order to be considered for promotion the candidate would have to undergo a mandatory training of 2 weeks. According to the respondents, since he had retired on 31.08.2018, he could not be considered for the 6 vacancies taken into account for the year 2019. Thus, his junior Shri.B.P.Bhajantri had been promoted against a vacancy of the year 2019. It is submitted by the applicant that the details given in the reply to the RTI Application at Annexure A-18 however categorically establishes that for the year 2019 only 1 vacancy had arisen on 01.01.2019. For the year 2018, 4 vacancies had arisen due to the retirement vacancy of Shri.Narendra Kumar on 01.04.2018 and three newly created vacancies on 29.05.2018. There was a vacancy which had arisen on 13.12.2017 due to promotion of one Shri.Aswani Kumar, which had to be filled up under the Recruitment -34- Rules which came into effect on 13.07.2017. The applicant submits that Shri.B.P.Bhajantri, who was admittedly his junior, was appointed against the Unreserved vacancy of 2019. Shri.B.P.Bhajantri was at Sl.No.20 at the Annexure A-4 seniority list produced by him, whereas he was at Sl.No.19. Further, in the year 2018-19, 4 vacancies were available, as can be seen from the above details. All these 4 vacancies had arisen prior to the retirement of the applicant on 31.08.2018, which is evident from Annexure A-18 RTI Reply. In such circumstances to promote the applicant's admitted junior as the fourth person recommended in the DPC, by excluding him from being considered against a vacancy which was available prior to his date of retirement was totally unjust, illegal and arbitrary. Even in the Annexure A-3 seniority list, the applicant was at Sl.No.3 whereas Shri.B.P.Bhajantri was at Sl.No.4.
24. The applicant submits that regarding the contention of having to complete mandatory training, it is clear even as per the new Recruitment Rules those who have less than two years service to retire, are to be exempted from undergoing the training. Thus, in such circumstances, there was no basis to deny consideration in the matter of his promotion to -35- the post of Assistant Director of Employment (Group 'A'). It is submitted that the contention in relation to grant of 3 rd MACP and being placed in Level-11 makes the claim for promotion to the post of Assistant Director of Employment in Level 10 not in his interest is immaterial. It is also a misconceived contention, because on promotion to the post of Assistant Director of Employment in Level 10, he would have got the 'status' of a Group 'A' officer. The applicant has also produced a copy of the 2019 Recruitment Rules published in the Gazette of India dated 23.12.2019 at Annexure A-19. He submits that the most important aspect to be noted is that he had entered service in the cadre of SREO on 19.10.2005 (Group 'B' post) and had retired in the very same cadre on 31.08.2018 without getting any regular promotion.
25. We have gone through all these overly detailed contentions and counter contentions carefully. As we noted new contentions were made in the course of pleadings which are far removed from what was earlier brought in the O.A. This is in relation to promotion of the applicant even after his retirement, on the strength of the -36- 2015 Recruitment Rules. As noted, the original prayer 'quashing' these Rules seem to have been given a quiet burial during the course of these pleadings. The respondents have submitted in their pleadings that even by the new Rules the applicant was not discriminated. They point out that Shri.Biswajith Mohanty was senior to the applicant when the applicant was being considered in the year 2017-18 in the zone of consideration along with Shri.Biswajith Mohanty. Similarly, one Smt.Bhooma Devi Rajan, who was senior to the applicant was considered by the DPC for the year 2015-16, but was not promoted since she had already retired from service on 30.06.2015. Shri.B.P.Bhajantri who was junior to the applicant in service was considered and promoted against the carry forward vacancies of 2019, only after the retirement of the applicant. In fact, none of the juniors of the applicant was promoted when he was in service. It is pointed out that if the applicant was to be considered at that stage, he was not in a position to assume the charge of the post since he had already retired on 31.08.2018 and promotions are effective from a prospective date. It was submitted that the 4 vacancies of the vacancy year 2018 had been carried forward to the year 2019 due to ineligibility -37- of officers, who had not completed the mandatory training, even though falling in the zone of consideration as on 01.01.2018, the crucial date for the vacancy year 2018.
26. It was also pointed out that the officers senior to the applicant have been considered even against the carried forward vacancies in the year 2019. The applicant himself could not be taken up for consideration for the year 2019 since he was not in service on the crucial cut off date of 01.01.2019, to be eligible in the zone and considered by the DPC. We also noted that his contention that he was still in service in 2018, when 4 vacancies had arisen ie., 1 vacancy on 01.04.2018 on account of retirement and 3 newly created on 29.05.2018, cannot also be taken into consideration. This is clear from the DPC minutes produced by the respondents along with their affidavit at Annexure R-12. It had classified the vacancies in 2015-16, 2016-17 and 2017-18 to be filled up as per the old Recruitment Rules dated 04.03.2015 and the 2019 (calender year) vacancies to be filled as per the new Recruitment Rules dated 13.07.2017. It had been noted in the DPC minutes that the 1 vacancy of 2019 plus the 1 unfilled vacancy of 2017-18 and 4 unfilled -38- vacancies of 2018 had been carried forward to the year 2019 due to non availability of eligible officers. The DPC went by the Rules of 2017 for fillling the vacancies of 2018 and 2019. These Rules had mandated compulsory training for promotion and recommended the names accordingly. After considering all these contentions in detail, we do not find any lacunae in the procedure adopted by the DPC or by the respondents. The applicant is not able to establish any clear error in the procedure so adopted.
27. Coming to the reliefs originally sought in the O.A, we note that the impugned office orders at Annexure A-9 and Annexure A-10, had been passed in January, 2008 and December, 2010 respectively. The O.A was filed much later on 16.03.2016. Hence, there is, to our mind, a clear issue in relation to limitation in seeking to quash these orders. Further we note that the applicant had accepted permanent absorption in the post of SREO on 26.09.2008, after the Annexure A-9 Office Order was passed on 16.01.2008. The Annexure A-9 order restructured the Group 'A' posts of the DGE, Employment Directorate into 4 singular designations, viz., Director of Employment, Joint Director of Employment, Deputy Director -39- of Employment and Assistant Director of Employment. Hence, a case can be made that the applicant is now estopped from contesting these Office Orders, since he had joined the department on a permanent basis after these orders were passed. Further, it is also not clear as to how he can be covered under the DoP&T O.M dated 25.03.1996, produced at Annexure A-11. The Annexure A-9 order had indicated clearly that the incumbents of the redesignated posts would have no claim to seniority/promotion in their earlier respective cadres in the Employment Directorate for the same or higher posts. They would be governed by the inter-se seniority drawn for the whole Employment Directorate. Of course, we note an inexplicable delay in passing the Recruitment Rules 2015, after the Annexure A-9 orders were issued. This does not militate these Rules as we can only attribute the delay to usual administrative procedures involving consultation with different departments etc. We also note that the applicant had not objected to the combined provisional seniority list of Group 'B' officers which was issued vide Annexure A-4/Annexure R-3 on 19.09.2015. The only correction he seems to have asked for, was in relation to his educational qualifications. Thus, all these facts together seem to establish that the applicant did not seriously -40- oppose the 2015 Recruitment Rules till he abruptly decided to file the O.A, perhaps on the late realisation that his promotion was affected by the Recruitment Rules.
28. In light of the above, other issues raised by the applicant like the apparent incongruity in merging different posts requiring different skills, ie., as he puts it, "a Computer Programmer doing the job of a Rehabilitation Specialist etc." may no longer be that relevant, since the Rules were not objected to at the relevant point of time. These Rules were issued with the clearance of the appropriate authorities and departments. It was possibly rationalized in the larger interest that with some training many of the jobs were interchangeable and thus could be amalgamated. The intention appeared to be to reduce the number of categories in order to give greater chances for promotion to those in categories with less promotional avenues. It is significant, as brought out by the respondents in their reply statement, that as many as 15 existing categories in the DGE were merged/collapsed to just 4 categories, as a result of the amalgamation. Thus, even if the number of Group 'A' officers as a whole remained at 57, this exercise possibly was -41- to give officers in many of the other categories promotional scope, even as some other categories, like that of the applicant's, were adversely affected. However, the right time to protest had passed by them. Thus, we do not think that sufficient case has been made in the O.A in the above facts and circumstances to justify an intervention on our part at this stage. We cannot disprove the contention that an overall interest of the department in terms of administrative and functional efficiency, as well as necessity, had been kept in mind, while the decision for amalgamation was taken in 2008 and followed up with the Recruitment Rules issued in 2015.
29. As we have noted, the above issue seems to be fairly academic, in any case, with the nature of reliefs sought by the applicant now being changed. He confined his demand for consideration of his case for promotion to the post of ADE under the same Recruitment Rules of 2015 which he originally sought to be quashed. However, given all these reasons specified above even that is not in order and we are not in a position to allow the O.A. -42-
30. The O.A is accordingly dismissed. We make no order as to costs.
(Dated this the 20th day of March, 2024)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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List of Annexures in O.A.No.180/00237/2016
1. Annexure A-1 - A copy of the Directorate of Employment, Directorate General of Employment and Training (Group 'A' Gazetted Post) Recruitment Rules, 1994.
2. Annexure A-2 - A copy of the Directorate of Employment (Group 'A' Post) Recruitment Rules, 2015 notified vide No.DGE&T-A- 12018/1/2004-Adm.II dated 04.03.2015.
3. Annexure A-3 - A copy of the Final Seniority List of Sub Regional Employment Officers as on 31.03.2015.
4. Annexure A-4 - A copy of the Final Combined Seniority List of Group 'B' Officers in the grade of Research Officer (RO)/Planning Officer (PO)/Sub Regional Employment Officer (SREO)/Officer On Special Duty (OSD)/Junior Scientific Officer (JSO)/Psychologist of DGE&T and Technical Assistant (Senior)/Senior Technical Assistant/Psychologist/Rehabilitation Officer of ERC under DGE&T as on 01.01.2014.
5. Annexure A-5 - A copy of the Recruitment Rules of 1969.
6. Annexure A-6 - A copy of the Recruitment Rules, 2000 in respect of the post of Senior Programmer.
7. Annexure A-7 - A copy of the Recruitment Rules, 2004.
8. Annexure A-8 - A copy of the Note prepared by the Directorate dated 08.06.2006.
9. Annexure A-9 - A copy of the Office Order no.DGE&T-A- 12018/1/2004-ADM.II dated 16.01.2008 issued by the Directorate General of Employment & Training.
10. Annexure A-10 - A copy of the Officer Order No.DGE&T-A- 12018/1/2004-ADM.II(Pt.) dated 06.12.2010 issued by the Directorate General of Employment & Training.
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11. Annexure A-11 - A copy of the DoP&T O.M.No.AB-
14017/12/88-Estt.(RR) dated 25.03.1996.
12. Annexure A-12 - A copy of the File No.A-12018/1/2009-W-1 of Under Secretary, Ministry of Labour and Employment.
13. Annexure A-13 - A copy of the Officer Order No.54/2013 vide No.DGE&T-A-32013/05/2012-Adm.II datd 24.06.2013 issued by the Directorate General of Employment & Training.
14. Annexure A-14 - A copy of the Office Order No.94/2013 vide No.DGE&T-A-32013/4/2012-Adm.II dated 08.10.2013 issued by the Directorate General of Employment & Training.
15. Annexure A-15 - A copy of the Officer Order No.9/2013 vide No.DGE&T-A-32013/05/2012-Adm.II dated 31.01.2013 issued by the Directorate General of Employment & Training.
16. Annexure A-16 - A copy of the Details of Group 'A' post compiled by the applicant under the Employment Directorate governed by different Recruitment Rules.
17. Annexure A-17 - A copy of the Circular No.DGE&T-A- 12025/01/2015-Adm.II dated 24.09.2015 issued by the Directorate General of Employment.
18. Annexure A-18 - A copy of the Information supplied under RTI Act vide No.DGE-Z-55017/01/2021-Adm.II/EE-II(pt) dated 20.12.2021 issued by the Under Secretary to the Government of India/CPIO.
19. Annexure A-19 - A copy of the Ministry of Labour and Employment, Directorate General of Employment, Assistant Director of Employment (Group 'A' posts) Recruitment Rules, 2019 published in the Gazette of India dated 23.12.2019.
20. Annexure R-1 - A copy of the Order No.DGET-A-23011/1/2014- EE-III dated 22.05.2015.
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21. Annexure R-2 - A copy of the Letter No.CGC-T-A-
19018(1)/2008/2954 dated 18.08.2015.
22. Annexure R-3 - A copy of the Circular F.No.DGE&T-A- 23024/01/2015-Adm.II dated 19.09.2015.
23. Annexure R-4 - A copy of the Note dated 08.06.2006.
24. Annexure R-5 - A copy of the Order No.DGE&T-A-
12018/1/2004-Adm.II dated 16.01.2008.
25. Annexure R-6 - A copy of the Order No.DGE&T-A-
12018/1/2004-Adm.II (Pt) dated 02/06.12.2010.
26. Annexure R-7 - A copy of the Office Order No.09/2013 dated 31.01.2013.
27. Annexure R-8 - A copy of the Office Order No.54/2013 dated 24.06.2013.
28. Annexure R-9 - A copy of the Office Order No.41/2016 dated 22.07.2016.
29. Annexure R-10 - A copy of the List of eligibility officers for promotion to ADE, DGE, Ministry of Labour and Employment for the year 2018 (as on 01.04.2018).
30. Annexure R-11 - A copy of the Circular F.No.DGE&T- A23024/01/2015-Adm.II dated 19.09.2015.
31. Annexure R-12 - A copy of the Minutes of the meeting of the DPC held in UPSC on 30.04.2019.
32. Annexure I - - A copy of the Notification dated 04.03.2015 (Ministry of Labour and Employment, Directorate General of Employment and Training, Directorate of Employment (Group 'A' Posts) Recruitment Rules, 2015.
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33. Annexure II - - A copy of the Circular F.No.DGE&T-A- 23024/01/2015-Adm.II dated 19.09.2015.
34. Annexure III - - A copy of the Office Order No.33/2019 dated 11.06.2019.
35. Annexure IV - - A copy of the Revised Recruitment Rules dated 13.07.2017.
36. Annexure V - - A copy of the Order No.DGET-A-32012/9/2008- EE-III dated 05.11.2014.
37. Annexure VI - - A copy of the Last Pay Certificate of the applicant.
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