Central Administrative Tribunal - Ernakulam
O.A. No. 824/2 vs Union Of India on 15 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 824 of 2010
w i t h
Original Application No. 886 of 2010
Tuesday, this the 15th day of November, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. O.A. NO. 824/2010
Baiju N.V,
S/o. Velayudhan,
Working as Supervisor,
(Computer Cell),
E.P.F. Organisation.
Sub Regional Office,
Kochi - 17 ... Applicant.
(By Advocate Mr. N. Unnikrishnan)
v e r s u s
1. Union of India, represented by
The Principal Secretary to the Govt.,
Ministry of Labour and Employment,
Government of India,
Shram Shakti Bhavan, Rafi Marg,
New Delhi - 110 001.
2. The Central Board of Trustees,
Employees' Provident Fund Organisation,
Ministry of Labour & Employment,
Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066,
Represented by its Secretary.
3. The Central Provident Fund Commissioner,
Employees' Provident Fund Organisation,
Head Office, Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066.
4. The Regional Provident Commissioner-I (HRM),
Employees' Provident Fund Organisation,
Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066.
5. The Regional Provident Commissioner-I,
Employees' Provident Fund Organisation,
Regional Office, Pattom P.O.,
Thiruvananthapuram. ... Respondents.
(By Advocate Mr. N.N. Sugunapalan (Sr.) with Mr. S. Sujin for R2-5,
Mr. S. Jamal, ACGSC for R1.)
2. O.A. No. 886/2010
Baiju N.V,
S/o. Velayudhan,
Working as Supervisor,
(Computer Cell),
E.P.F. Organisation.
Sub Regional Office,
Kochi - 17 ... Applicant.
(By Advocate Mr. N. Unnikrishnan)
v e r s u s
1. Union of India, represented by
The Principal Secretary to the Govt.,
Ministry of Labour and Employment,
Government of India,
Shram Shakti Bhavan, Rafi Marg,
New Delhi - 110 001.
2. The Central Board of Trustees,
Employees' Provident Fund Organisation,
Ministry of Labour & Employment,
Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066,
Represented by its Secretary.
3. The Central Provident Fund Commissioner,
Employees' Provident Fund Organisation,
Head Office, Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066.
4. The Regional Provident Commissioner-I (HRM),
Employees' Provident Fund Organisation,
Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066.
5. The Regional Provident Commissioner-I,
Employees' Provident Fund Organisation,
Regional Office, Pattom P.O.,
Thiruvananthapuram.
6. The Departmental Promotion committee,
Employees' Provident Fund Organisation,
Head Office, Bhavishya Nidhi Bhavan,
14, Bikaji Cama Palace,
New Delhi - 110 066, Rep. by Chairman,
Central Provident Fund Commissioner ... Respondents.
(By Advocate Mr. N.N. Sugunapalan (Sr.) with Mr. S. Sujin for R2-6,
Mr. George Joseph,ACGSC for R-1)
These Original Applications having been heard on 03/09.11.2011, the
Tribunal on 15.11.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER Having common facts, these O.As were heard together and are disposed of by this common order.
2. The applicant who joined the Employees Provident Fund Organization (EPFO) as Supervisor (Computer) on 16.09.2004, is promoted as Assistant Programmer with effect from 10.08.2010. He is aggrieved by the issuance of Annexure A-2 notification dated 20.05.2009 restructuring the Information Services (IS) Division of EPFO and Annexure A-3 O.M dated 10.03.2010 inviting applications for filling up the posts of Programmer alongwith other posts in the EPFO on deputation basis.
3. The EDP Cell/Information Services Wing of the EPFO was operated by the Data Entry Operators (DEO), Supervisor (Computer), Assistant Programmer (AP) and the Programmer. The entry cadre for the DEO was Grade-A. Grade-A, Grade-B and Grade-C were the rungs in the DEO cadre. The Information Services Wing was restructured as Data Processing Assistant (DPA), Programmer, Assistant Director (IS), Deputy Director (IS) and Director (IS) as approved by the 65th Executive Committee meeting held on 22.02.2009. All DEO Grades 'A', 'B' and 'C' were converted to DPA. The draft RRs for all cadres in the IS Wing were sent to the Ministry for approval. The RRs for the post of DPA were approved vide letter dated 13.05.2009 and notified as per Annexure A-2 dated 20.05.2009. For other posts, consultation with UPSC is necessary for amendment of the RRs. The revised RRs for those posts were forwarded by the EPFO to the Ministry vide letter dated 10.11.2010. Promotion to these posts can be made only after getting the RRs finalised with the concurrence of Union Public Service Commission (UPSC).
4. Aggrieved by the delay in getting promoted as Programmer, the applicant has filed O.A. No. 824/2010 for the following reliefs :
(i) Call for the records leading to the issuance of Anenxures A2 and A3;
(ii)To declare that Annexures A-2 and A-3 are unsustainable in the eyes of law;
(iii)Declare that any promotion to the post of Programmer should be made first by promotees like the applicant and only thereafter, should be resorted to deputation without violating quota earmarked;
(iv)declare that applicant is entitled to be promoted as Programmer without delay;
(v)issue appropriate order or direction to respondents to promote the applicant to the post of Programmer either by promotion or by deputation before the post is being filled up by any other method;
(vi)Declare that any promotion or deputation to the post of Programmer cannot be made from DEO Grade A & B till superior claim of Assistant Programmer and Supervisor (Computer Cell) is considered and granted the benefits;
(vii)To grant such other reliefs as this Hon'ble Tribunal may deem fit, just and necessary; and
(viii)To grant the cost of this Original Application.
5. O.A. No. 886/2010 is filed by the same applicant as in O.A. 824/2010 mainly for granting him the Grade Pay of Rs. 4600/- with effect from 01.01.2006 or before 30.05.2009.
6. By Annexure A-2 dated 20.05.2009 (OA 824/10), as one time relaxation on cadre restructuring, the existing DEOs Grade-A, Grade-B and Grade-C possessing minimum educational qualifications with six years of regular service are deemed to have been appointed as DPAs with higher pay than the applicant who ranks higher in the hierarchy. His legitimate expectation for promotion as Programmer is belied by Annexure A-3 O.M. Dated 10.03.2010 (OA 824/10) which seeks to fill up 140 posts out of 145 posts of Programmers on deputation basis. The applicant has filed Annexure A-11 representation dated 06.04.2010 pointing out various anomalies in regard to the RRs for the post of Programmer. Till date, no reply is received. The 4th respondents cannot take a decision to fill up 140 posts out of 145 posts of Programmers on deputation basis which can arise only when employees for promotion are not available. While Grade Pay of Rs. 4600/- has been granted to the DPAs consisting of DEO Grade 'C', 'B' and 'A' with effect from 30.05.2009, the applicant holding higher post of Supervisor (Computer)/Assistant Programmer has been granted Grade Pay of Rs. 4600/- with effect from 10.08.2010 only.
7. The respondents contested the O.A. In their reply statement, they submitted that as a part of restructuring of IS Wing all the officials holding various posts in the old structure are proposed to be promoted to the next higher post. The Supervisor (Computer) and the Assistant Programmer will be considered for promotion to the post of Programmer as and when the revised RRs are notified. The existing Supervisor (Computer) and Assistant Programmer will be considered for promotion to the restructured post of Programmer subject to their fitness in accordance with the new RRs. As per the draft RRs 70% of total posts of Programmer is proposed to be filled up by promoting existing Supervisor (Computer)/Assistant Programmer and the applicant will be given priority according to his seniority in the post of Supervisor (Computer)/Assistant Programmer. A provision for one time relaxation to the existing Assistant Programmer/Supervisor (Computer) due to cadre restructuring has been included in the revised RRs. Since there was no eligible official in the cadre of Assistant Programmer for promotion to the post of Programmer as per the existing rules of the Programmer, the vacant posts were advertised for filling them on deputation basis. The DEO cadre was abolished absorbing the existing incumbents who have 6 years or more experience in DEO Grade 'A', 'B' and 'C' and possessed the required qualification as DPA. There is a delay in converting the Supervisor (Computer)/Assistant Programmer to the post of Programmer as proposed in Annexure A1, which is not deliberate. The respondents are making efforts to get concurrence of the UPSC for amending the RRs for Programmer post and other higher posts. No DEO Grade 'A' and 'B' have been promoted as Programmer. At present, there is not proposal to promote the DPAs to the post of Programmer. As and when the revised RRs for the post of Programmer are notified, the Supervisor (Computer)/Assistant Programmers, like the applicant, will be promoted first before considering the case of DPA. The anomaly which the applicant tries to point out as higher pay in lower post and lower pay in higher post would be set right only when RRs for the remaining posts of restructured IS Wing are notified. Based on the above facts, the O.A. may be dismissed.
8. We have heard Mr. N. Unnikrishnan, learned counsel for the applicant, Mr. S. Jamal, learned ACGSC & Mr. George Joseph, ACGSC for the respondent No.1 and Mr. N. Sugunapalan (Senior) with Mr. S. Sujin, learned counsel for the respondents 2 to 5 and respondents 2 to 6 in respective O.As.
9. The applicant is aggrieved that his eligible juniors drawing higher pay than he, as DPAs as a part of restructuring of the cadres of EPFO as per Annexure A-2. To the credit of the respondent Nos. 2 and 3, they had sent to the Ministry all the draft RRs for restructuring at one go. The RRs of DPA were approved and implemented but the RRs for other posts, like the Programmer, to which post the applicant aspires, are not yet approved primarily due to the requirement of consultation with the UPSC. The piece- meal implementation of restructuring has resulted in avoidable heart burning and misapprehension in the mind of the applicant and presumably in other employees, like him.
10. Restructuring of the organizational set up is a matter of policy. It squarely lies within the domain of the executive. We do not find any illegality or arbitrariness in Annexure A-2 in O.A.No. 824/10 / Annexure A-8 in O.A. No. 886/10 warranting interference by this Tribunal.
11. The proposal sent to the Ministry of Labour and Employment on 10.11.2010 has not yet been approved. True, the delay in getting the approval is not deliberate on the part of the EPFO. But we do not see any urgency either on their part to get the approval fast for smooth functioning and better efficiency in service. In the letter dated 04.11.2011, the EPFO stated that a reminder is being sent to the Ministry which is not the same as vigorous pursuance of the matter. The representation of the applicant dated 06.04.2010 is not yet replied to by the respondents. It was possible for the respondents to clear major part of the misapprehension of the applicant by sending a reply stating the factual position as now made in the reply statement in these O.As. Transparency, speed and employees' motivation are characteristics of a robust organization. We would expect the respondents to pay due attention to these aspects of good administration henceforth for greater efficiency and effectiveness in rendering the service they are expected to provide.
12. The applicant, now an Assistant Programmer, will be considered for promotion to the post of Programmer in the revised structure once the RRs are notified. He also, like his juniors, will be eligible for a one time relaxation and he would be promoted first before considering the DPAs for promotion to the post of Programmer, as per the say of the respondents. The submission of the respondents is good as far it goes. The alacrity and the earnestness on the part of the respondents to fill up 140 posts out of 145 posts of Programmers as per the existing RRs in the absence of eligible employees for promotion could have been appreciated if the same are evident in getting the new RRs approved. As per the RRs, 70% of the posts of Programmer is to be filled up by promotion. In that case we do not find any justification to fill up 140 posts on deputation basis right now instead of expediting the approval for the new RRs. The respondents may consider filling up the 70% posts of Programmer by existing employees on ad hoc or temporary basis pending notification of the new RRs. Such a positive approach would be fair and just in the facts and circumstances of this O.A.
13. It is admitted that the applicant who is on a higher post is having a Grade Pay of Rs. 4600/- with effect from 10.08.2010 only whereas his juniors are having the same Grade Pay with effect from 30.05.2009. Evidently, there is an anomaly in senior drawing less Grade Pay than junior during the period from 30.05.2009 to 10.08.2010. The respondents submit that this would be set right when the RRs for the remaining posts are notified. Since they are aware of the issue, it is expected of them to sort it out in a fair and just manner at the earliest.
14. In the light of the above observations, it is ordered as under.
15. The respondents are directed not to fill up more than 30% of the posts of Programmer on deputation basis pursuant to Annexure A-3 notification dated 10.03.2010. The remaining posts of Programmer, if need be filled up on ad hoc or temporary basis by the existing employees by granting them such a relaxation or on such conditions as deemed fit by the respondents pending notification of the RRs for the post of Programmer. The respondents are further directed to expedite the notification of the RRs for the remaining posts in the restructured IS Wing and to set right the anomaly of the applicant drawing less Grade Pay than his juniors during the period from 30.05.2009 to 10.08.2010 as early as possible, at any rate within a period of four months from the date of receipt of a copy of this order.
16. The O.As are disposed of as above with no order as to costs.
(Dated, the 15th November, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.