Central Administrative Tribunal - Kolkata
K Rajkumar vs A P W D on 26 August, 2019
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1 MA. 468/2019, 38/18, 393/19, 537/18
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I'-. CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH, KOLKATA
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M.A.468/2019, 38/2018, 393/2019, 537/2018
O.A.1621 of 2017
CPC. 23 of 2018
Coram Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
K. RajKumar,
Aged about 52 years,
Son of Late V. Karuppaswamy,
Residing at^M-B-88, M.A. Road, Phoenix Bay,
Port Blair ■r' ri f %
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t\^At Present working as Assisl^fcngineer^
Andamajj„|(|bl|!^!:ks Departmefl ^
V: posted at Kamorta-744101. >,
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...Applicant.
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2. The Lieutenant Governor,
Andaman and Nicobar Islands, .y*' /■
RajiNiwas, Port Blair-744 101;
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,3. The Ghief Seeretary,
Andaman & Nicobar.Administration,
Secretariat, Port Blair - 744 101;
4. The Secretary (PWD),
Andaman & Nicobar Administration,
Secretariat, Port Blair - 744 101;
5. Andaman Public Works Department,
Nirman Bhawan, Port Blair,
Through the Chief Engineer APWD,
Port Blair;
6. The Chief Engineer,
Andaman Public Works Department,
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2 MA. 468/2019, 38/18, 393/19, 537/18
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Andaman & Nicobar Administration,
Port Blair-744 l6i;
7. The Superintending Engineer,
Nicobar APWD,
Car Nicobar, Pin - 744 102;
8. The Executive Engineer,
Construction Division, APWD,
Kamorta, Pin - 744 303;
9. The Assistant Secretary (PWD),
Andaman and Nicobar Administration,
Secretariat, Port Blair-744 101;
10. Shri K. MoorthyHST);- , ,
Shri H.M. Lin'garaju (ST)/ at
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J|3|are'Wbi|in| tf thl p^f Assistffi|ngi^ier under
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IfDepartrhent at IPb^'Blai^ se%rice througlf thjs Chief
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For the respondents ^ ^ / Mr. R. Haider, Coufeel/ 4 4
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ORDER
Per; Bidisha Baneriee, Judicial Member Heard, Id. Counsel Mr. P.C. Das for the applicant and Id. Counsel Mr. R. Haider for the respondents.
2. The reliefs sought for in the O.A. are as follows:
"8.(a) To rectify ond/or modify the provisional seniority fist of Assistant Engineer (Civil) of APWD as on 01.06.2017 which was published vide impugned office memorandum • -> 3 MA. 468/2019, 38/18, 393/19, 537/18 fi i dated 5th July, 2017 and to assign your applicant appropriate seniority in the said list_by V rectifying the provisional seniority Hit in light of the decision made by the Hon ble Tribunal dated 30.09,2015 in O.A. No.70/AN/2013, order dated 04.04.2017 in O.A. 78/AN/2011 and in light made by the Division Bench of the Hon'ble High Court in WPCT No. 188 of 2016 vide order dated 10th June, 2016 and in. light of another order passed by the Hon'ble High Court at Calcutta, Circuit Bench at Port Blair dated 14th June, 2016 in WPCT No. 221/2016 and to give all consequential benefits including the ad hoc payment
(b) To pass an appropriate order to rectify and/or modify the impugned office memorandum dated 13.09.2017 by which the impugned final seniority list to the post of Assistant Engineer (Civil) of APWO as on 01.06.2017 has been published by the Chief Engineer, APWD without considering the objection submitted by your applicant vide his representation dated 01.08.2017 and 25.09.2017 which is absolutely illegal and arbitrary and further directed the Chief Engineer to rectify the seniority position of the applicant by modifying the final seniority list as on 01.06.2017 in accordance with the judgement and order passed by this Hon'ble Tribunal dated 30.09.2015 in O.A. 70/AN/2013 and 04.04.2017 in O.A. 78/AN/2011 to rectify the original position of the applicant in the said seniority list along with all consequential benefits accordingly.
(c) To pass dm aboroDriate order by directing uponthe respondent Authority to regularize the ad-hoc service renderedbwour applicant to the post of Assistant Engineer (Civil) as pehdifection of this HPn'bie Tribunal affirmed by the Hon'ble High Court and to assign your applicant's .appropriate seniority in terms of the aforesaid decision of the Hon'ble /Ugh Court as/well as of this Hon'ble Tribunal- along with 'all co'nsequential benefits." u :While-''the CPC has been filed'alleging violation of interim orders pf this Tribunal.
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3. The summary of .eyenfs^demonstratihg violation of the interim orders of this Tribunal, as furnished.by the applicant would run thus:
"SUMMARY OF EVENTS AND DATE OF OCCURANCE WITH RESPECT TO O.A NO.78/AN/2011 AND M.A. 351/1621/2017, MiA./351/38/2018. C.P.C./351/23/2018 OF K. RAJKUMAR -1//S- APWD.
Dot DETAILS OCCURANCE By whom Action taken by
e/Yeor approached/decidin authority
g authority
2011 The O.A. No.78/AN/2011
and M.A.351/00275/2017
was filed by the applicant
with a prayer for
regularization of ad-hoc
services rendered w.e.f
05.03.1984 to 30.07.1985,
i.e. from initial date of
appointment and for grant
of 2*. financial uo
gradation under the ACP
scheme.
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4 MA. 468/2019, 38/18, 393/19, 537/18
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04/04/2017 The O.A and M.A were disposed of by this Tribunal m (Circuit at Port Blair) vide ■h order dated 04/04/2017 with direction to the APWD extend those benefits to the applicant by granting liberty to make a comprehensive i representation with direction to the department, for considering the representation within one month, from the date of receipt of copy of representation 07/04/2017 As directed by this Tribunal No action taken in iits\: : order doted by CE/APWD 0mf20i7, Shri K. ::U:
until 05/07/2017 % %« %■ Rajkumar, V. % ^Engineer ,submitted ■ a X comprehensive fit representation^ dated:
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___ w 07/04/2017 CE, APWD : { / m.
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05/07/2017 dated. ..s V.vV'-
07/04/2017 '' ' wasV ' still, I It'i
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seniority, fof of Assistant vf.'-i,.-- St
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Engineer (Civil) / wos ■;
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published on 01/05/2017 1
vide "%SE's / office *
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memorandum / E.No. VI-
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A 3814 (Bf dated 05* July,
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J' 2017 B'y.the (thief Engineer,
; Andaman Public Works
'i. Department
01/08/2017 Objection .letter was
h. submitted by the appficaht /
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Shri K. Rajkumar, AE vide '.V
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representation ■dated
01/08/2017 against
Provisional Seniority List of AE to the The Chief Engineer, Andaman Public Works Department 25/08/2017 in reply to the objection (Violation -2 and Letter The Chief Engineer, no action taken APWD informed by The by CE/APWD till Chief Engineer, Andaman 25/08/2017) Public Works Department vide letter F.No.VI-
3/CE/PW/ES-1/2017/4819 dated 25th August'2017, that the matter related to regularization of ad-hoc period is under process and 1 5 MA. 468/2019, 38/18, 393/19, 537/18 appropriate action will be taken after obtaining approval from the competent authority____ _ 13/11/2017 A final seniority list of (Violation3) Assistant Engineers (Civil) was published vide CE's office Memorandum No. W-
3/CE/P W/ES-i/2017/516 dated 13.11.2017, without considering the representation/ objection by The Chief Engineer, Andaman Public Works Department.
22/11/2017 Since, the final seniority list was published and Shri K. Rajkumar.^ ;; : %suffered irr[epqfdbiexl6ss and injury, he sprdyed for an interim ;■ protection before^: This; sV, £.
' tribunal by filing O.A. \
22/11/2Q17 Accordingly this Tribunal Hon'ble Interim/ order
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directed/ respondents not; Administrative granted \ upto
to tilie ^any 'action in JTribunai,- -Kolkata •A Bench seniority list pubiishedyide > I CE's- office memorandum •?
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dated 13.09.2017, till the
next date of listing. The -
interim^protection order, t
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06/12/20171 ^ i'
06/12/2017 ,.vFour ^ Weeks ' time- . was $
allowed'to the respondent -r
/b/file 'Teply.,'-interim order £
■::-4 dt./22/11/2017 continued «-■ \ •*
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Jill ' the next' date, on
13/02/2018 .
08/01/2018\ In -spite of' interim /(Violation-4)
protection-given by the this
Tribunal, a promotion
order was issued by The
Chief Engineer, APWD to
assign the Current-Duty-
Charge of Executive
Engineer (Civil) of APWD,
to the Junior most
Assistant Engineer to
frustrate the interim order.
12/01/2018 Appeal to CE/APWD No action was
against the unjust order to taken on the
assign CDC of Executive representation
Engineer (Civil) to juniors
vide letter No.Nil.dated
12.01.2018
12/02/2018 Appeal to the Chief
Secretary for regularization / f *> 6 MA. 468/2019, 38/18, 393/19, 537/18 r m of Ad-hoc period and financial benefit.
21/03/2018 interim order dated 22/11/2017 continued tifl next date on 15/05/2018 02/04/2018 Contempt application filed, by the applicant_________ 23/04/2018 Status report furnished by The Chief Engineer, Violation - 5. No the Chief Engineer, APWD APWD action taken on mentioned that the issue representation of speaking order to Shri. dated K. Rajkumar is under 07/04/2017, yet.
process and also clarified
that the CDC promotion is
temporary arrangement
and they will not eligible
for any financial benefit or
the post \oft. Executive
Engineer, ' 1
14/05/2018 The\.A&N Administration The SecretarypUPSC Violation - 6
hhs' requested the since the interim
Secretary, UPSC, New- order is live Final
Delhi fafi/tonvening DPC seniorityJist was
for prorfiOtidh of Assistant: sent to. UPSC
■- f. Engi0rl&yil) : without \
t-.y. of Executive Engineer(Gvii): considering' the
of APWD representation of
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Shri.. Rajkumar
dated .
i . U 07/04/2017 j
; 220/2018 !;
Intenifi/ff ordir / doted, "W
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Interim order
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i * 22/ll/^QjL.Z>continued ahd i-..
extend^ .. Jupto
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listed on 29/06/2018 29/06/2018.
15/06/2018 Agdinst 'CDC drdeny issued.
■p Violation-J.since J t<? We Vuhiqr vide order the interim 7 ,No.l929 dated 15.06.2018 Order is Jive 29/06/2018 No/action ^taken on the 7 representation 6y v t/ie / / applicant on 07/04/2017 ..;
upto 29/06/2018 ie. More than a year. This Tribunal's direction has been violated of (east 06 times by not considering the application
(l)No action taken by the Chief Engineer, APWD with effect from 07/04/2017 to 29/07/2018 (2)Provisional seniority published (3)Final(4)while interim order continued CDC order was issued (5)in the interim order period to UPSC was requested to t conduct DPC for promotion without considering applicants representation 7 MA. 468/2019, 38/18, 393/19, 537/18 ■:
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l6)Again CDC order issued.
In the interim order period and also after contempt notice issued the Department violated this Tribunal's order.
4. Whereas, refuting the allegation of violation of any directions the respondents, by way of written arguments have defended their action. They have categorically submitted as under:
(i) Firstly, they have disclosed the fact that the applicant, way back in 1994 :
had jointly preferred O.Al5/94, alongwith 9 Junior Engineers;"of APWD, to seek inter alia the following reliefs:
"i "(a) Ap, order direc0g the-f.esppndent authorities to regularise the dbplicdnts in their respective? posts with Effect 'from, the dates of, their Initial appointments Thereby modifying the OfficeWrder. No. 768 dated;:22/8/1986 and 468 dated 21s^f/lay, W86 with >all Sfrsequential benefits" 4vjr % -M, % V •f The'0!A. stood dishriissed on 8.12.94 as hopelessly barred by lifnitati|n. The '• '*••;. '-Vfev .s' . .'V i ■ '■{ ! .<• * /■ •••'.?■• s' •?' ■' • ' 'l^- M. . ;V SIP, preferred against the df&erdated 8.12:94, was'admitted having noted UOI -
vs - Sanjay Pant reported in 1993 Supp (2) SCC 494, but was finally dismissed on .•i it \ c1 K 8.1.96.
O.A. 70 of 2011 was, of one Bina Parmar who was .allowed to treat her r adhoc service as regular one, on the basis .r of Sanjay Pant (supra). But in the present case the applicant's claim for counting adhoc service as regular stood rejected in O.A. 5 of 1994.
Hence, the respondents would contend that the claim put forth about s seniority and other benefits in this O.A., being based on the claim for regularisation of adhoc service which already stood rejected in 1994, the present O.A. was barred by principles of Resjudicata. 'i / $ 8 MA. 468/2019, 38/18, 393/19, 537/18 ' %
(ii) The respondents have disclosed the speaking order dated 10.7.18 issued pursuant to the direction dated 4.4.17 in O.A. 78/A&N/2011 and M.A. 275/17.
The speaking order is extracted herein below:
tt ANDAMAN AND NICOBAR ADMINISTRATION OFFICE OF THE CHIEF ENGINEER ANDAMN PUBLIC WORKS DEPARTMENT NIRMAN BHAWAN Port Blair, dated the 10th JULY, 2018 SPEAKING ORDER o Whereas, O.A.Nfe^ f8/)$Np2d'll-in M-A No. 3500275/2017 (K. Raj Kumar-Vs - UOI & Others) was disposed on 04-04-2017 by the fiafrbfe £AJ, CirEujt Bench, Calcutta with the followitifftibservations:
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"By granting libertyj-td'-the applicant to make a comprehensive-representation by enclosing these/tw/q order Within a period ofcone month from today to the Respondent ^^6 and. the Respondent No. 6 '^directed to consider the said . cbrhprehensfip represehtqtTon\as Well as the appli'cable these ivy.o orders and the
-^settled posifjpn^ofj.gw^i'ni 'ihefB'sM)fpa^ and«dis$i>se of the same byway of a ^^Thasoned affd Speakirig^Order wlfhik a period of dhe month from thd\date of /'^receipt of dcopy of the said-representation " i •H-h t •'i* % ■:
A/And whereas^hrfKfRapKumqr, AE (Civil.} submitted representation dated 07-04- 120V, 12-01-2018 ah%B2-O20bl0 wjthttfte r&cjuest to r^ularize his adhbj: peripd from '05-03-1984 to 30-07-l^^andps well ds extending o0eniority benefitMnr,purs§ance of order passed by the id. (^^■fiircuii Benchi'n ]/fypC0No. 188 of 2016 in BinaParmar's iasein.lewo^^islirnilamm^RalmamSm: 1 \ % I ■■■■■ i And,whereas, &A. 351/1621/2017 (K. Raj Kumar- Vs -APWD, the tfbn'ble Court has passed intdrim^order 6n^22-11-2017 directed not to take/any action iprpursuance of final senipritwlist published vidfdffice-.memord'ndum d.ated'13-09-2017jAowever, liberty is granted*,to thebRespondhhtsrto put up their application for:vacatidn / modification / cancelfatiori 'of the -Jnterim order, 'if they so desire, it.ds needless to mention that meanwhile the Respondent No. 6 shall consider the representation of applicant dated 07-04-2017.
And whereas, the issue, of seniority list as on 01-06-2017 published by the- department vide Memorandum No. VI-3/CE/APWD/ES-I/2017/5161 DATED 13-09-2017 on the basis of existing seniority list 2014 and earlier dates, the seniority list was already established earlier because in the seniority list of 2017 only the new incumbent are added and retired incumbents are removed from the list.
f And whereas, the judgement passed in WPCT No. 188 of 2016 in Bina Farmer's case was in personam in nature and not applicable to those, who were not party / party's in the said case.
And whereas, you are appointed to the post of JE (Civil) on adhoc basis vide PE's Office Order No. 193 dated 02-03-1984 and reported for duty on temporary and adhoc basis for a period upto 31-07-1985.
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9 MA. 468/2019, 38/18, 393/19, 537/18 w m And whereas, your service was regularized w.e.f 01-08-1985 after obtaining approval from the Administration following procedure laid down in the Ministry of Home i Affairs letter No. 14039/5/79 ANL dated 12-09-1980.
And whereas, as per various orders of the Supreme Court regarding regularization of adhoc service, it has been categorically ordered that the adhoc service cannot be regularized, subsequently and it will be not counted for seniority and other consequential benefit.
Therefore, the representations dated 07-04-2017, 12-01-2018 and 12-02-2018 examined in terms of Rules and Regulations and the department arrived in a conclusion that request of the applicant is not justified as per terms and conditions laid down in the appointment order issued vide PE's Office Order No. 193 dated 02-03-1984, the department had already considered the case of the applicant and regularized his appointment w.e.f. 01-08-1985 vide PE's Office Order No. 768 dated 22-08-1986, hence the request of the applicant to regularize his adhoc appointment is in breach of terms and conditions laid down in above said appointment order and not considered, the request is hereby disposed off:
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This issuje'd% in compliance of order dated 22/M/2017 passed in OA No. s:.
351/1621/2017 by the Hon'ble CAT, Kolkata Bench, Kolkata.
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3? CHIEF ENGINEER
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In view of the dis&usstofts therein, it was submitted that speaking order and . K t not be interfered with, .t $ \ $ a £ ■h r f '*? > .y
(iii) The respondenfehave.howeverjustified the delay in issuing speaking order ■/ .
in the following words;
•a. :• / "any insertion of adhoc period in gradation list of only one -engineer or two and publication aftehthat creates_more hazards and as.such the,.cfe> partment send proposal to highest authority to take d' policy decision in that^regord and that reply and preparation of policy decision are. under process, this is why the delay occurred to give the reasoned order dated 10/07/2018 and there is no challenge of that order so far by* filing any original Application. The reasoned order speaks about itself."
(iv) The respondents have disclosed a Recruitment Rule (RR) of 2017, introduced w.e.f. 20.9.2017 that provides for mode of induction to AEN as under:
(i) 45% by Junior Engineer (E&M) in Level-6 in the pay Matrix possessing Degree in Electrical or Mechanical Engineering from a recognized University or having passed Part A & B Examination of the Institution of Engineers (India) with 05 years
10 MA. 468/2019, 38/18, 393/19, 537/18 b ?• 7 il u V*! !.# regular service in the grade; (ii) 45% by Junior Engineer (E&M) in Level-6 in the I'M i pay Matrix possessing Diploma in Electrical or Mechanical Engineering from a recognized the Institution and with 05 years regular service in the grade and (iii) 10% by Junior Engineer (E&M) Non-Diploma with 05 years regular service in the grade and possessing two years III Certificate of draughtsman ship (E&M).
Since the degree holders and diploma holders have separate channels of entry to AEIM, the respondents would plead as follows:
"It is the duty of the^i'Cithprity concerned to publish such list for the benefit of the employees ih betw^in bhiich the applicant is one of the candidate^nioreso the point to be noted that rffere are two sepanate^anadation list maintained in the department of APWD, onSifor^he gradatiortMisffof Degree 'holder engineers anckthh other for the Diploma holder engineers,'the applicant is of the second grade, morefd thhauota of the Degree holder is different with that of the: Diploma holder and as such it ihunjust and illegal tBtdeprive anvSearee holder tnaineenfoathe claimof a Diolomattiblder- Engineer aboutiseniorlty listj)$gs beefrxfaye&faheh /he'te is: specificdlly no comnfSp sehiority list applicable to both^e'Wtegori^whipff^iQuld be modified to place the degree holder engineers out of mkpur^iew^ofi7flei$fhtml6jf the applicaninwho approach the tribunal
- completely suppressing the Supreme Court judgement against their claim as passed on 08/01/1996" i 'i 6, ..:v ■V;
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'w*would plead thUwithin'Apfil, 2017>tp:7u' January, 2018, 4 $o$ts t of Executive Engine'ers^of PWDrDepartment of A & N admihistratibn fell vacant due \ / to retirement of ^such -Degree holder Engineers. As such posts were of great \ \ /■ / importance and'^huge'-development works were in ..progress at Andaman & Nicobar Islands due to huge sanction' of the Central5 Government; there was hardly any scope to execute those works without anyone in charge of the offices.
and so the authority issued the Order no. 60, dated 8th January, 2018 [assigning i current duty charge] considering their to 4 engineers seniority position in the 2011, 2014, 2015, 2016 in the seniority list. The Respondents have clarified that Seniority List of 2017 is nothing but a reiteration of earlier one eliminating the retired and dead Civil engineers from the previous seniority list and that no i i / ./ ■! /
11 MA. 468/2019, 38/18, 393/19, 537/18 «/ * inclusion was done and/or no change of position was made since 2011 seniority w list was published. The would further state that, considering the two categories, one of the Degree Engineers and other for the Diploma Engineers, posting of 4 Assistant Engineers to hold the Current Duty Charge (CDC) against four important vacant post of Executive Engineers was made to run the department with specific noting in such order that "However, the above officers will neither be eligible for any financial benefit for the post of Executive Engineers (Civil), nor their services rendered on Current Duty Charge will be counted towards seniority for regular r;
promotions." The Respondents would further contend} that Shrj Alex Varghese ■M:'-
and Shri G D Rajaffboth was;>Degree holders and therefore their promotional !.,.r ' .5:
avenues were^not at pagwith that of. the Applicant (a !diploma holder) and such degree ho.l|^rs were |j|t1tT^to^aiL45% quota fixed f®| then (degree Iplders) I ■ pv* jf^ " " * * " f W whereas the applicant and aliketdiploma holdersj'have tdlgo throughthe channel of Diploma holders for Vtfhom a separate quota of 45% posts exists as per RR.
i. i Moresb from the pan(elftself iWould by clear that ShriK Devraju, Shri V fubbaraj l .;C.X . # v / . \ i and Shri Hpradeep ...Prasad, wdre Diploma holders, but their date of entry into ■ .• • service as well as the date of regular appointment in the post of AE (Civil) was 'H .-: -v'.' much before that-,of the. applicant, and as such they were entitled to get promotion before the Applicant as per seniority.
(V) The respondents have further referred to a full Bench decision in O.A. 148/AN/2011, O.A. 164/AIM/2011, O.A. 165/AN/2011, heard by 5 Members of CAT on 08th September, 2014 where prayer for counting of Adhoc service was rejected. They would contend that regularisation of adhoc service being not i permissible the claim put forth by way of this O.A. to seek seniority on the basis of adhoc service from 5.3.84 instead of 1,8.85 is not tenable.
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5. We have heard the Id. Counsels, perused the materials on record and given our anxious consideration to the merit of the claim.
We discern that the applicant's claim for assignment of seniority w.e.f.
5.3.84 stood already rejected in O.A. 5 of 94. Therefore he cannot claim assignment of seniority from 1984. The reason for CDC posting have also been adequately justified, we find no deliberate violation of the directions. Further that, the applicant in his representation dated 1.8.17 has claimed that "as per the seniority list, vide serial No. 17 my date of entry in service is wrongly mentioned as 01/08/1985 instead of 05/03/1984 and then another representation dated sr-
25.9.17" that "1 have submitted my representation,/ objection letter vide no.
Nil.dated.01st August '2017. In reply to my representatidn / objection JettbrT have been inforfned vide your office letter No. Vl-3/CE/PW/ES-l/20174819.25THyVugust '2017 mentioning that the matter related to the regularization of adhoc period is i under process and appropriate action will be taken after approvaLof competent > authority". Thereforejnarguably and.irrefutably, he has sought for a change in Z "v"■" '■ / seniority list oh, the basis''of his adhoc entry w.e.f.' 5.3:84 which claim stood rejected way back in 1994, as enumerated supra.
6. In the aforesaid backdrop and having noted that the applicant is guilty of suppression of material fact that his claim for grant of seniority with effect from the date of adhoc entry in service stood already rejected in O.A. 5/94, we dismiss all the applications filed by the applicant. However, there shall be no order as to costs.
/ (Dr. Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member 7