Central Administrative Tribunal - Cuttack
Shyam Prasad Bhutia vs Survey Of India on 17 March, 2020
1 OA 787/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 787 of 2014
Present: Hon'ble Mr. Gokul Chandra Pati, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
Shyam Prasad Bhutia, aged about 39 years, S/o Anmada Shankar Bhutia,
permanent resident At-Jubli town, PO/Dist-Dhenkanal, presently working as Sr.
Geologist, Geological Survey of India (State Unit of Assam), Guahati, residing at
44 Lakhminagar, Path R.G.Borma Road, Guahati, Assam-5.
......Applicant
VERSUS
1. Union of India represented through its Secretary, Govt. of India, Ministry of
Mines, A-Wing, 3rd Floor, Shastri Bhawan, New Delhi-110001.
2. The Director General, Govt. of India, Ministry of Mines, Geological Survey
of India, 27, J.L.Nehru Road, Kolkata-700016.
3. The Dy. Director General & HOD, Govt. of India, Ministry of Mines,
Geological Survey of India, Eastern Region, Bhubijan Bhawan, DK-6, Sector-
2 Karunamoyee, Salt lake City, Kolkata-700091.
4. The Dy. Director General Govt. of India, Ministry of Mines, Geological
Survey of India, State Unit Odisha, Unit-VIII, Nayapalli, Bhubaneswar-12.
5. The Dy. Director General Govt. of India, Ministry of Mines, Geological
Survey of India, State Unit of Assam, Guahati.
6. Smt. Debashree Pratap Singh, Sr. Geologist, Geological Survey of India,
53/C, Road No.1, Ashok Nagar, Ranchi, Jharkhand-834002.
7. Sanjeev Bhatacharya, Sr. Geologist, Geological Survey of India, A/2 Puspa
Bhawan, Madnagiri Road, New Delhi-110062.
8. Harish Kumar, Sr. Geologist, Geological Survey of India, Northern Region,
Sector-E Ahganj Lucknow-226024.
9. Dr. Shiv Ranjan Kumar Bharti, Sr. Geologist, Geological Survey of India,
CHQ, 15 A & B, Paleontology Divn., Kyd Street, Kolkata-700016.
10. Shri D.Bhoopati, Sr. Geologist, Geological Survey of India, Basant Nagar,
Chennai, Tamilnadu - 600090.
11. Shri S.Venketaswar Rao, Sr. Geologist, Geological Survey of India, GSI
Complex, Bandiaguda, Hyderabad, AP-533003.
12. Dr.Klyanam V.S.S. Krishna, Sr. Geologist, Geological Survey of India, CHQ,
15 A & B Geochronology Divn., Kyd Street, Kolkata-700016.
13. Shri Pitambar Pati, Sr. Geologist, Geological Survey of India, GSI Complex,
Seminary Hills, Nagpur, Maharashtra-440006.
14. Smt. M.Anbu, Sr. Geologist, Geological Survey of India, Vasudha Bhawan,
L.S.Layout, Bangalore, Karnataka-760078.
......Respondents
For the applicant : Mr.Sambit Rath, counsel
Mr.D.K.Mohanty, counsel
For the respondents: Mr.D.K.Mallik, counsel
Heard & reserved on : 26.2.2020 Order on : 17.3.2020
O R D E R
Per Mr.Gokul Chandra Pati, Member (A) 2 OA 787/2014 The applicant has filed this OA seeking the following reliefs as under:-
"(i) To quash the final gradation list under Annexure A/5 and to quash order dt.
27.3.2014 under Annexure A/12;
(ii) To revive the final Gradation list published under Annexure A/5 showing the Respondent No. 6 to 14 below the applicant.
(iii) To quash the order of promotion to the post of Sr. Geologist in respect of Respondents No. 6 to 14 made in Annexure A/7.
(iv) To direct the Respondents to promote the applicant to the post of Sr. Geologist from the date his juniors (Respondents No. 6 to 14) were so promoted to the post of Sr. Geologist and grant the applicant all consequential service and financial benefits.
(v) To pass any other order/orders as deem fit and proper in this case."
2. The applicant joined as Assistant Geologist Grade-I under the respondents on 31.7.2001 and was eligible for promotion to the post of Geologist after 3 years of service as Assistant Geologist Grade-I as per the Recruitment Rules. It is averred that although the applicant became eligible for promotion on 9.1.2005, but he was promoted as Geologist per the recommendation of the DPC on 12.6.2008 against the vacancy for the year 2005-06. The applicant, being aggrieved with the delay in promotion, had filed the OA No. 466/2009 before Calcutta Bench of the Tribunal claiming to antedate his promotion as Geologist. The said OA was allowed. The respondents have challenged the order of the Tribunal by filing a writ petition before Hon'ble Calcutta High Court [W.P.(C) No. 7 of 2011] which is sub judice.
3. When the matter stood thus, the respondents issued the provisional gradation list of Geologists on 22.6.2012, which was objected by the applicant by filing a representation dated 4.7.2012 (Annexure-A/4 of the OA). But the authority published the final gradation list on 30.11.2012 as on 1.1.2011 and 1.1.2012 (Annexure-A/5) ignoring the representation of the applicant. The applicant submitted another representation dated 4.12.2012 (Annexure-A/6) for modifying his seniority position in the final gradation list (in short FGL). It is averred in the OA that without considering the representation dated 4.12.2012, the authorities allowed promotion to the applicant's juniors (private respondents) to the post of Senior Geologists on the basis of the defective FGL, which was disputed by the applicant. He submitted another representation on 6.9.2013 (Annexure-A/10) which has been rejected by the official respondents vide order dated 27.3.2014 (Annexure-A/12) which is impugned in this OA. It is averred that the UPSC 2005 batch of Geologists have been placed above the applicant in the gradation list which is not tenable. The applicant is entitled for seniority and promotion to the post of Geologists from the year 2005-06 when the vacancy was available.
4. Counter filed by the respondents states that promotion of the applicant could not be done earlier than 2008 as the vacant posts had lapsed and it took some time to revive the posts. The seniority of the applicant and the private respondents selected in UPSC 2005 examination was fixed at 1:1 ratio as per the DOPT guidelines. It is further averred that the applicant's seniority was never placed above the officers who are the private respondents. It is stated that the seniority 3 OA 787/2014 position of the applicant as on 1.1.2006 was 50 in the feeder grade which was much below the seniority of other promoted officers who are the private respondents in this OA.
5. Rejoinder has been filed by the applicant stating that when the issue of antedating of the applicant's promotion was pending before Hon'ble Calcutta High Court, the respondents have finalized the gradation list of the Geologists dated 30.11.2012, which is not in accordance with the rules. Seniority of any officer cannot be counted prior to his date of joining in service.
6. Heard learned counsel for the applicant who also filed a written note of submissions. It is stated that the applicant's seniority should be placed above the seniority of the respondent nos. 6 to 14 for which he had submitted a representation dated 6.9.2013 (A/10) followed by reminder dated 3.1.2014, which were rejected vide order dated 27.3.2014 (A/12). The ground of rejection is that the gradation list was prepared by dovetailing the promoted and direct recruit officers at the ratio of 1:1 as per the DOPT OM referred by the respondents. It is further stated that the rotation of quotas will be on the basis of the year of appointment. It is further submitted that the DOPT OM dated 4.3.2014, which was issued based on the judgment of Hon'ble Apex Court in the case of Union of India & Others vs. N.R. Parmar 2012 (11) SCALE 437, is not applicable in this case. It is also submitted that the judgment in N.R. Parmar case has been overruled by the judgment in the case of K.M. Singh & others vs. Ningam Siro & others. In the gradation list dated 30.11.2012, although the applicant joined as Geologist on 12.6.2008, his seniority has been placed at 82, which is not as per the DOPT OM dated 3.3.2008. It is also submitted that the respondents have rejected his representation without application of mind.
7. Heard learned counsel for the official respondents. In the written note of arguments filed by the respondents' counsel, it is submitted that the relative seniority of the direct recruits and the promotees has been has been finalized as per the available vacancy and the DOPT OM dated 3.7.1986. It is also submitted that the applicant's claim for antedating of his promotion is not tenable in view of the judgment of Hon'ble Apex Court in the case of N.C. Murali & ors vs. UOI in Civil Appeal No. 4156 of 2008. No one appeared on behalf of the private respondents.
8. We will first consider the judgments cited by both the parties before proceeding to examine the facts and circumstances of this OA. In the case of N. Murali (supra), Hon'ble Apex Court has held that an employee cannot claim promotion from the date of the vacancy unless the Recruitment Rules provide for such promotion from the date of occurrence of the vacancy. This may also be possible if the rules mandate holding of the DPC every year to fill up the vacancy occurring in that year. In other cases, the date of promotion will be from the date of actual appointment/promotion to the promotional post. Hon'ble Apex Court in the judgment dated 19.11.2019 in the case of K.M. Singh (supra), which is cited by the applicant's counsel, has overruled the judgment in the case of N.R. Parmar (supra). It is held by Hon'ble Apex Court in the aforesaid case as under:-
"40. The Judgment in N. R. Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar (Supra) had incorrectly distinguished the long-4 OA 787/2014
standing seniority determination principles propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. State of J&K & Ors. and Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors.(Supra). These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement."
9. In the case of The Direct Recruit Class-II Engineering Officers Association and others vs. State of Maharashtra and others, AIR 1990 SC 1607, cited by the applicants' counsel, it is also held that the seniority of an employee has to be counted from the date of his appointment and not from the date of his confirmation and ad hoc or provisional promotion cannot be taken into account for the purpose of seniority. In the State of U.P. & Ors. vs. Ashok Kumar Srivastava & Anr. in Civil Appeal No. 6967 of 2013, it is held by Hon'ble Apex Court that the claim for retrospective seniority is not tenable unless the Recruitment Rules provide for it.
10. From the judgments discussed above, the law governing the field is very clear that the seniority has to be reckoned from the date of promotion or appointment to a service and retrospective seniority from the date of occurrence of vacancy is not permissible unless the Recruitment Rules specifically provide for it. It is noticed that applicant in his representation dated 6.9.2013 (A/10) has stated that the seniority has to be reckoned from the date of promotion and he pointed out that in some cases, those who joined in service after him, have been assigned higher seniority in the gradation list. The seniority cannot be decided on the basis of the date of joining in view of the DOPT OM dated 3.7.1986 in which it is stipulated that for direct recruits, the relative seniority will be decided as per the merit list of the UPSC based on which they are appointed and for the promotes, the relative seniority is determined by the merit list prepared by the DPC. This implies that if a person with higher merit. Joins later than another person with lower merit, then the former will still be senior to later in view of his/her higher merit. Hence, the contention of the applicant to be senior to another candidate in the selection/merit list joining later, is not acceptable.
11. It is also noticed that the order dated 27.3.2014 by which the applicant's representation has been rejected, is a non-speaking order since the points made by the applicant in the representation have not been considered. Such order also states as under:-
" The point raised by the Officer at para 1 of his representation dated 03.01.2014 wherein the officer states that "some junior officers of 2005 UPSC Batch have been placed above him" is not exactly clear and needs some specific elaboration by the officer(namewise)."
12. It is appears from above that the grievances of the applicant in this regard have not been considered fully by the respondents since no specific cases was cited by the applicant. It is seen that the same has not been explained in the OA also. From the written note of argument filed by the official respondents' counsel, it is seen that vide letter dated 10.5.2007, the DG, GSI has been instructed to appoint the officers selected by the UPSC on the basis of 2005 Geologists' Examination and this letter has been issued prior to the applicant's promotion to the cadre of 5 OA 787/2014 Geologists which was issued on 11.6.2008. If all the officers of 2005 examination batch direct recruits were appointed prior to 11.6.2008, then the applicant's contentions that some of the officers of 2005 examination batch are junior to him, has no basis. Similarly, the basis on which the applicant claims seniority over some of the promoted officers, who are private respondents in the OA, are not very clear from the OA. Many of the private respondents were senior to the applicant in the gradation list of the Assistant Geologists as on 1.1.2006, copy of which has been enclosed by the official respondents' counsel in his written note of arguments.
13. For the reasons as discussed above, it was not correct on the part of the authorities to have rejected the applicant's grievances regarding seniority without obtaining full details of the case from him. The applicant should have been asked by the authorities to inform who, according to him, were his juniors assigned higher seniority in the FGL dated 30.11.2012 and the justifications/reasons for claiming that the applicant was senior to the private respondents. It was also improper on the part of the authorities to have gone ahead with the promotions without properly disposing of the grievance of the applicant regarding his seniority claim.
14. In the circumstances as discussed above, we dispose of this OA with liberty to the applicant to submit a detailed representation to the respondent No. 2, explaining the details of his juniors, who had been assigned higher seniority in the final gradation list dated 30.11.2012 (Annexure-A/5), and the reasons and documents, if any, based on which the applicant is claiming seniority vis-a-vis those juniors and enclosing documents in support of his claim within ten days from the date of receipt of a copy of this order. On receipt of such a representation, the respondent No. 2 will consider such representation with reference to the reasons/grounds/documents referred by the applicant in the representation and dispose of such representation in accordance with law, by passing a speaking and reasoned order copy of which is to be sent to the applicant within two months from the date of receipt of the representation from the applicant as above. While considering such representation, the decision of Hon'ble Calcutta High Court in W.P. (C) No. 7/2011 filed by the official respondents challenging the Tribunal's order on the applicant's claim for antedating the date of promotion, is also to be taken into account by the respondent No. 2. If after such consideration the applicant's claim for higher seniority is found to be genuine, then his position in the gradation list will be changed accordingly and other service benefits including notional promotion to higher post from the date of promotion of his junior will be granted to him within two months after disposal of the applicant's representation.
15. The OA is disposed of as above with no order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) I.Nath