Central Administrative Tribunal - Delhi
Dr. B. N. Srivastava vs Union Of India Through on 20 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.245 of 2011 This the 20th day of January, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Dr. B. N. Srivastava, Deputy Director (Horticulture), Horticulture Division No.II, CPWD, 5th Floor, I.P. Bhawan, New Delhi. Applicant ( By Shri S. M. Garg, Advocate ) Versus 1. Union of India through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 2. Director General, Central Public Works Department, Nirman Bhawan, New Delhi. 3. Shri M. P. Nim, Deputy Director (Horticulture), CPWD Presently on deputation to DDA as Director (Horticulture), South Zone, 15th Floor, Vikas Minar, New Delhi-110002. Respondents O R D E R Justice V. K. Bali, Chairman:
B. N. Srivastava, Deputy Director (Horticulture), the applicant herein, in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, claims to be senior to Shri M. P. Nim, also a Deputy Director (Horticulture), the 3rd respondent, and inasmuch as, vide impugned order dated 16.12.2010 such claim of the applicant has been rejected by overruling the objections raised by him on the seniority list prepared by the respondents of the grade of Deputy Director (Horticulture), the obvious prayer of the applicant is to set aside the seniority list as also the said order, and in consequence of setting aside thereof, to issue a direction to the official respondents to assign him seniority above the 3rd respondent in the grade of Deputy Director (Horticulture), with all consequential benefits.
2. Brief facts on which the reliefs as indicated above are sought to rest and as projected in the Original Application reveal that the applicant joined CPWD as a direct recruit Assistant Director (Horticulture) through UPSC on 5.9.1988, whereas the 3rd respondent belonging to the reserved category of Scheduled Caste, also a direct recruit, joined on the said post on 23.11.1992. In the seniority list of Assistant Directors (Horticulture) as on 1.8.1997 issued on 1.9.1998, whereas the applicant was shown at serial number 19, the 3rd respondent was shown at serial number 34. In another seniority list issued on 31.12.1998, the applicant was placed at serial number 15, whereas the said respondent was placed at number 33. In yet another seniority list issued on 7.5.2002, whereas the applicant was shown at number 4, the respondent was shown at number 17. It is pleaded that there are 17 posts of Deputy Director (Horticulture) (14 unreserved, 2 for SC and 1 for ST) in the 2nd respondent organization. Reservation was made applicable to the said cadre based on 200-point post-based roster, and point numbers 7 and 15 are reserved for SC candidates as per the roster. The mode of recruitment to the post of Deputy Director (Horticulture) is 100% by promotion of Assistant Directors (Horticulture) on the basis of seniority-cum-fitness. It is the case of the applicant that roster point 7 reserved for SC in the grade of Deputy Director (Horticulture) was occupied by Shri D. C. R. Azad, and point 15, also reserved for SC, was occupied by Shri Bankey Lal, who was due to retire on 31.1.2003. For the year 2002-03, six vacancies arose in the grade of Deputy Director (Horticulture). On 29.8.2002, DPC met and the following officers were selected:
7. Shri A. K. Chaddha
8. Shri Santosh Kumar
9. Shri H. D. Bansal (SC)
10. Shri B. N. Srivastava (Applicant)
11. Shri Randhir Singh
12. Shri M. L. Verma was also selected in extended panel vide retirement of Shri H. D. Bansal who was due for retirement on 28.2.2003. On selection by DPC, the applicant was appointed on the post of Deputy Director (Horticulture) on 26.2.2003. The applicant pleads that as per provisions of OM dated 2.7.1997, if there is an excess representation of any of the reserved categories, or if the total representation of the reserved categories exceeds 50%, it shall be adjusted in the future recruitment, and there being three SC candidates, i.e., S/Shri D. C. R. Azad, Bankey Lal and H. D. Bansal occupying three posts of Deputy Director (Horticulture) against the two posts reserved for SC in the grade, the representation of SC became in excess on appointments made on the basis of recommendations of DPC held on 29.8.2002 and the same required adjustment in future recruitment. It is pleaded that as Shri Bankey Lal who was occupying roster point 15 reserved for SC was due to retire on 31.1.2003, the 3rd respondent filed OA No.3086/2003 in this Tribunal seeking that the post of Deputy Director (Horticulture) against point 15 of the roster, which was held by Shri Bankey Lal, should be filled up by promoting a Scheduled Caste candidate, and the fact that on appointment of Shri H. D. Bansal, who belonged to SC, on the post of Deputy Director (Horticulture) the representation of SC in the said grade was already in excess and on retirement of Shri Bankey Lal it stood adjusted, and thus there was no vacancy available for SC, was not brought to the notice of the Tribunal. Vide order dated 13.5.2004, the OA filed by the 3rd respondent was allowed. On 31.1.2003 Shri Bankey Lal retired from the post of Deputy Director (Horticulture), and on recommendations of DPC the 3rd respondent was promoted to the said post presumably against roster point 15 vacated by Bankey Lal, in accordance with the directions of this Tribunal. In the manner aforesaid, even though as per seniority in the grade of Assistant Director (Horticulture), the 3rd respondent would have got promotion on the post of Deputy Director (Horticulture) much later, i.e., after Shri P. K. Tripathi, however, due to application of the roster for reservation, the 3rd respondent was given accelerated promotion against roster point 15 reserved for SC, the same having fallen vacant on 31.1.2003. It is the case of the applicant that inasmuch as, the 3rd respondent obtained accelerated promotion on the post of Deputy Director (Horticulture) due to application of the rule of reservation/roster against a point reserved for SC, he would be entitled to seniority below all general category candidates who were senior to him in the grade of Assistant Director (Horticulture), though promoted later, in view of the judgment of the Honble Supreme Court in Ajit Singh v State of Punjab [(1999) 7 SCC 209]. The 2nd respondent, however, issued provisional seniority list of Deputy Directors (Horticulture) as on 1.7.2007 inviting objections within one month. In the said seniority list, the 3rd respondent was shown senior to the applicant. Constrained thus, the applicant filed objections and as the same were not taken up for decision, he filed OA No.3524/2010 before this Tribunal, wherein a direction came to be issued to the respondents to deal with the objections of the applicant. It is pursuant to the directions issued by this Tribunal that the impugned order holding that the 3rd respondent would be senior to the applicant has been passed.
3. Shri S. M. Garg, learned counsel representing the applicant, contends that in the feeder post of Assistant Director (Horticulture) the 3rd respondent was junior to the applicant, and if he got promotion being a Scheduled Caste candidate on the basis of roster point, which would be an accelerated promotion, on the promotion of the applicant, on the basis of catch-up rule, as enunciated by the Honble Supreme Court in Union of India v Virpal Singh Chauhan [(1995); Ajit Singh Januja v State of Punjab [(1996) 2 SCC 715]; and Ajit Singh v State of Punjab [(1999) 7 SCC 209], the applicant would regain his seniority over the respondent, and, therefore, on the post of Deputy Director (Horticulture) the applicant would be senior to the respondent. While raising the contention as noted above, it appears that the counsel for the applicant is not aware of the 85th Constitution Amendment, vide which Article 16(4A) was substituted. Article 16(4A), as it stands today, reads as follows:
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. During the course of arguments, when the counsel was confronted with the position aforesaid, he could not further support his contention based upon catch-up rule evolved by the Honble Supreme Court in the judgments referred to above. We may only add that the substituted Article 16(4A) was challenged, but the vires of the same has been upheld by the Apex Court in M. Nagaraj v Union of India [(2006) 8 SCC 212].
4. The only other plea raised by the learned counsel in support of the Application is that there are two reserved points on which promotions can be made of SC category candidates, and once two SC category candidates were already in position on the post of Deputy Director (Horticulture), the 3rd respondent could not be promoted against the roster point 15, and since this factual aspect was not brought to the notice of the Tribunal in the OA filed by the 3rd respondent, a direction came to be issued by the Tribunal to consider his promotion against the roster point. It may be recalled that the 3rd respondent has been promoted pursuant to directions issued by this Tribunal in the OA filed by him, and admittedly the roster point 15 occupied by a reserved category candidate got vacated prior to the promotion of the applicant on the post of Deputy Director (Horticulture). We do not find any merit in the aforesaid contention of the learned counsel. It is the case of the applicant himself that two roster points, i.e., 7 and 15 were occupied by Shri D.C.R. Azad and Shri Bankey Lal. Insofar as the third candidate belonging to SC category occupying the post of Deputy Director (Horticulture) is concerned, he is Shri H. D. Bansal. Shri Bansal was promoted on the same date when the applicant was promoted. As per seniority list placed by the applicant himself on records of the case, Shri Bansal, even though belonging to SC category, is at serial number 17 of the seniority list in the grade of Assistant Directors (Horticulture) issued in 1998. He is admittedly senior to the applicant. It is not even the case of the applicant that Shri Bansal was promoted against a roster point. He appears to have been promoted on his turn as per the seniority list of Assistant Directors (Horticulture). He came to be promoted thus on the dint of his seniority in the feeder grade and not against a roster point. No other point has been raised in support of the Application.
5. Finding no merit in this Original Application, we dismiss the same in limine.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/