Central Administrative Tribunal - Ernakulam
Jessy Alias Jessy Kuriachan vs M/O Defence on 10 August, 2022
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Central Administrative Tribunal
Ernakulam Bench
O.A No.180/00102/2016
Wednesday, this the 10th day of August, 2022
CORAM:
Hon'ble Mr. Ashish Kalia, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Jessy James @ Jessy Kuriachan,
D/o. V. D. James, Aged 45,
Valiyaveettil House, Kadavanthra,
Kochi - 682 020. Electronic Fitter, HS-II,
NSRY, Naval Base, Kochi - 4 - Applicant
(By Advocate: Ms. Niharika Hema Raj)
Versus
1. Command Administration and Personal Officer,
Head Quarters, Southern Naval Command,
W/Island, Kochi - 4.
2. The Flag Officer, Command-in-Chief,
Southern Naval Command,
W/Island, Kochi - 4.
3. Union of India represented by Secretary,
Ministry of Defense, Raksha Bhavan,
New Delhi - Respondents
(By Advocates : Mr. Thomas Mathew Nellimoottil, Sr. PCGC)
The O.A having been heard on 10th August, 2022 through video
conferencing, this Tribunal delivered the following order on the same
day:
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O R D E R (ORAL)
Ashish Kalia, Judicial Member This Original Application has been filed by the applicant seeking the following reliefs:
"(i) To call for the records leading to Annexure A3 dated 19.06.2013 and quash the same.
(ii) Direct the respondents herein to re-fix the applicant's seniority in the appropriate category namely Control Fitter Electric(SK) from 24/08/2001 notionally and grant her all other benefits accruing from such re-fixation however without any back wages.
(iii) Issue necessary orders or direction directing the 2nd respondent herein to consider and pass necessary orders in Annexure A4 representation submitted by the applicant herein taking into consideration Annexure A1 and A5 orders passed by this Hon'ble Tribunal.
(iv) Grant such other and further reliefs as are just, proper and necessary or this Hon'ble Tribunal may deem fit to grant; and
(v) Award to the applicant the costs of these proceedings.
(vi) Call for all the records leading to the decision reflected in the minutes communicated to the applicant vide Annexure A10 and quash the same;
(vii) Declare that the applicant is eligible to be granted the benefits of the Central Civil Services (Pension) Rules of 1972;
(viii) Direct the respondents herein to grant the applicant the benefits provided in the Central Civil Services (Pension) Rules of 1972."
2. The brief facts of the case are as follows:
The applicant was an Ex-Naval Apprentice who was absorbed as Control Fitter Electric (SK) in the Naval Ship Repair Yard at Kochi for the vacancy which arose on 24.08.2001. The applicant was appointed in pursuance to the direction of this Tribunal dated 06.08.2004 in O.A No. 159/2002 which is as follows: -
"In the result, in the light of the above discussions we set aside Annexures A7 and A9 and direct the respondents to consider the absorption of the applicant in her turn against the vacancy of Control Fitter (SK) as she is eligible for such absorption despite the crossing of 27 years of age which limit does not apply for absorptionists. The respondents are directed to complete the exercise as aforesaid and issue resultant orders as expeditiously as possible at any rate within two months from the date of receipt of a copy of this order."
After considering the order passed by this Tribunal, applicant was given 3 appointment to the post of Fitter Electric Control (SK) with effect from 11.07.2006. In the present O.A the grievance of the applicant is that, she should have been given this post as well as seniority with effect from the date of vacancy, i.e., 24.08.2001. The applicant feeling aggrieved by this has again approached this Tribunal for getting seniority. M.A 182/2016 was also filed for condonation of delay of 576 days with effect from 19.06.2013 when the cause of action started.
3. On the contrary, counsel for the respondents filed a detailed reply statement submitting therein that the applicant actually is claiming seniority from 2001 after more than a decade and this application should be rejected on the ground of limitation alone without looking into the merit of the case. It is further stated in paragraph 3 and 4 of the reply statement as follows: -
"3. At the outset, it is humbly submitted that the applicant was appointed as Fitter Electric Control (SK) on 03 May 05 and the applicant is agitating the matter before this Hon'ble Tribunal after a period of more than 10 years. Hence, the O.A is barred by limitation and for that reason alone, it is not maintainable under Section 21 of the Administrative Tribunal's Act 1985 and hence the O.A is liable to be rejected.
4. Not withstanding the above, it is humbly submitted that, Smt. Jessy James is an ex-apprentice, who had undergone apprenticeship training in the trade of Control Fitter in the non-designated trade during the year 1990-1991. On successful completion of apprenticeship, her name was kept in the waiting list as per the procedure in vogue for consideration of appointment against vacancies arising in future. As per the then existing Recruitment Rules/practice, the apprentices in the waiting list were considered for absorption/appointment against vacancies that arose in the respective trades according to their seniority. The upper age limit for absorption/appointment of ex-apprentices to the post of Tradesman (Skilled) was prescribed as 40 years as per SRO 339(SI.3) dated 19 Nov 1979. However, this Recruitment Rules have been revised by SRO 150/2000 fixing upper age limit as 27 years, which came into force with effect from 29 July 2000, which was further brought down to 25 years vide SRO 262/2002. In terms of Government of India instructions contained in SRO 150/2000 of 01 Jun 2000, the applicant had crossed the upper age limit of 27 years (even after applying the age relaxation as admissible including apprenticeship period) and 4 therefore the name of this individual was deleted along with 100 similarly placed ex-apprentices in different trades from the list of ex- apprentice candidates, who were waiting for appointment against regular vacancies which may arise in future. This fact was duly communicated to the applicant. Aggrieved by the communication; Smt Jessy James had filed O.A 159/2002. The Hon'ble Tribunal disposed the O.A vide order dated 06 Aug 2004 with an observation that the prescription of upper age limit in the Recruitment Rules applies only to the direct recruits and not ex-apprentices and further directed the respondents to consider the applicant for absorption according to her turn against the vacancy of Control Fitter (SK). Accordingly, the applicant was appointed as Fitter Electric Control (SK) on 03 May 05 in compliance to Hon'ble CAT, Ernakulam order dated 06 Aug 04 in O.A 159/2002. In this regard a copy of the appointment letter CS 2764/53 dated 29 Apr 2005 in respect of the applicant is produced herewith and marked as Annexure R-1. It is further submitted that in accordance with the Department of Personnel and Training OM No 20011/1/2006-Estt. (D) dated 3 rd March 2008 "when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. Year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. As such seniority of any employee is to be reckoned from the date of actual appointment/absorption in the post/trade and not based on the date of occurrence of vacancy. In this connection a copy of Department of Personnel and Training OM No 20011/1/2006-Estt.(D) dated 3 rd March 2008 is produced herewith and marked as Annexure R-2.
Hence the contention of the applicant that she should be granted seniority from the date occurrence of vacancy is unsustainable on law or facts. Accordingly, the O.A is liable to be dismissed being devoid of merits."
3. Counsel for the respondents submits that when the vacancy arose, immediately they took steps to implement the order of this Tribunal and they have given appointment to the applicant with effect from 11.07.2006.
4. Heard counsel on both sides at length and perused the records and legal decisions.
5. Now the point to be determined by this Tribunal is whether the applicant should have been given seniority with effect from the date of vacancy or from the 5 date of joining. In this regard counsel for the applicant submits that since the applicant has already approached this Tribunal and the Tribunal was taking cognisance of his grievance, the cause of action is continuing one and the delay in filing the O.A can be condoned.
6. On the contrary, counsel for the respondents argued vehemently opposing this application by citing judgment of Hon'ble Apex Court in the matter of K. Meghachandra Singh &Ors. Vs. Ningam Siro & Ors [2020 (5) SCC 689] where the Hon'ble Apex Court has held that the date of joining in service is the thumb rule for direct recruits. The relevant portion of the judgment reads as under: -
"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 had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, J.C. Patnaik, Suraj Prakash Gupta & Ors. vs. State of J&K and Pawan Pratap Singh & Ors. v Reevan Singh. 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 Jagdish Ch. Patnaik and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar. 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."
7. This Tribunal while considering the rival contentions, relies upon the judgments of Hon'ble Supreme Court in Suraj Prakash Gupta and Others v State of J & K and others [2000 (7) SCC 561] wherein it is held as under: -
"This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled."
(emphasis supplied) 6 In N.K. Chauhan & Ors v. State of Gujarat & Ors [1997 SCC (1) 308] the Hon'ble Apex Court has held as under: -
"The quota rule does not, inevitably, invoke the application of the rota rule. The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim 'deemed' dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits' vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier."
(emphasis supplied) In A. N. Pathak & 5 Ors v Secretary to the Government, Ministry of Defence & Anr [1987 SCC (Supl.) 763] it is held that slots cannot be kept reserved for direct recruits for retrospective appointments. The relevant portion of the judgment is as under: -
" The learned counsel for the respondent found it difficult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently leaned in favour of the promotees based on their length of service and seniority, in cases where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with this explanation since that is little consolation to the petitioners. We are of the view that the grievance of the petitioners is justified in law. The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefit of their service. The learned counsel for the respondent Nos. 1 and 2 made a fervent plea that, being a sensitive department, relief may be granted to the petitioners by way of monetary compen- sation and requested us to desist from upsetting the list. We cannot accede to this request."
8. Lastly, as per the Hon'ble Apex Court judgment in the matter of B.S. Bajwa & Anr v State Of Punjab & Ors, [CA 761614/96] it is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that may result in unsettling the settled position which is not justifiable. Delay in making the grievance itself is sufficient reason to decline to interfere under Article 226. As per the judgment of Hon'ble 7 Apex Court in L. Chandra Kumar v Union Of India And Others this Tribunal now vested with power to deal with writ petitions as regards the service matters.
9. After taking clue from these judgments, we are of this view that the settled decision of seniority cannot be reopened. In case of direct recruitment, the date of joining is a thumb rule. From that date, seniority will be given to them. The grievance of the applicant is that had she been given appointment from the date when vacancy arose she might have been much senior.
10. Be that as it may, the fact remains that as per the judgments narrated herein above the applicant has no right to claim seniority with effect from the date of vacancy. On the contrary, counsel for the respondents has drawn our attention to the fact that as soon as the vacancy arose the applicant's case was considered and she was given appointment which suffice the purpose of decision of this Tribunal in the earlier O.A No. 159/2002.
11. In view of the above, we find that this application can be dismissed on the ground of delay laches as well as on merit. Accordingly, the O.A is dismissed. No order as to costs.
(K.V. Eapen) (Ashish Kalia)
Administrative Member Judicial Member
bp
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List of Annexures
Annexure A1- True copy of the order dtd. 06/08/2004 in O.A No. 159/2002
Annexure A2- True copy of the representation submitted by the applicant to the 2 nd
respondent dt. 21.8.12.
Annexure A3- True copy of the reply issued to the applicant dtd. 19/06/2013.
Annexure A4- True copy of the representation dtd. 19/11/2015 filed by the applicant
nd
to the 2 respondent.
Annexure A5- True copy of the order in O.A No. 446/2011 dt. 26.8.11.
Annexure A6- True copy of office Memorandum CS No. 2764/53 dtd. 25/04/2005.
Annexure A7- True copy of letter of appointment ref No. CS 2764/53 dtd.
29/04/2005.
Annexure A8- True copy of the said Office Memorandum No. 57/04/2019-
P&PW(B) dated 17.02.2020.
Annexure A9- True copy of the representation dated 17.02.2020 made by the
applicant to the Under Secretary of the Department of Pension and PW through proper channel.
Annexure A10- True copy of the said staff minute sheet dated 31.12.2020 issued to the applicant.
Annexure A11- True copy of memorandum dated 26.04.2021 issued by the Admiral Superintendent, Naval Dockyard, Mumbai.
Annexure R1- Copy of appointment letter CS 2764/53 dated 29 Apr 2005. Annexure R2- Copy of DoPT O.M. No. 20011/1/2006-Estt(D) dated 03 Mar 2008.
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