Central Administrative Tribunal - Gauhati
Shri Utpal Saikia vs Ssb on 23 July, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/0027/2023
Date of order: This, the 23rd day of July, 2024
HON'BLE SMT. URMITA DATTA SEN, JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
Between
1. Sri Utpal Saikia,
S/o Late Dutiram Saikia,
Assistant Engineer(Grade-II),
Frontier Headquarter,
Sashastra Seema Bal, Tezpur,
Dist. - Sonitpur, Pin - 784001.
2. Sri Sankar Banik,
S/o Late Monaranjan Banik,
Assistant Engineer (Grade -II),
Sector Headquarter, Sashastra Seema Bal,
Rangia, P.O.:- Rangia, Dist- Kamrup(R),
Assam, Pin - 78.
.....Applicants
-V/s-
1. The Union of India,
Represented by the Secretary to the
Government of India, Ministry of Home
Affairs, North Block, New Delhi - 110001.
2. The Director General,
Sashastra Seema Bal, East Block -V,
R.K. Puram, New Delhi - 110066.
3. The Commandant(Pers.-I),
O.A.No. 040/0027/2023
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Sashastra Seema Bal,
East Block -V, R.K. Puram, New Delhi - 110066.
4. Second-in-Command (Rectt.)
FHQ Sashastra Seema Bal,
East Block -V, R.K. Puram, New Delhi - 110066.
5. The Union Public Service Commission,
Represented by the Secretary, Dholpur House,
Shahjahan Road, New Delhi - 110011.
6. Sri Dipak Kumar Nath,
S/o Late Bholaram Nath,
Assistant Engineer (Gr. II)
Force Headquarter, SSB, New Delhi,
East Block-V, R.K. Puram, New Delhi - 110066.
7. Sri Bhuban Gogoi,
S/o Late Kolia Gogoi,
Assistant Engineer (Grade -II),
Sector Headquarter, Sashastra Seema Bal,
Pilibhit, Uttar Pradesh - 735101.
8. Sri Uma Kanta Singh,
S/o Ashok Kumar Singh,
Assistant Engineer (Grade-II),
Frontier Headquarter,
Shashtra Seema Bal,
Sector HQ, Gangtok, Sikkim, Pin -
9. Sri Gokul Rajkhowa,
S/o Late Deba Rajkhowa,
Sector HQr, SSB, Jalpaiguri,
West Bengal, Pin - 735101.
10. Sri Jasbir Singh,
S/o Shri Dharam Pal Singh,
Assistant Engineer (Grade -II),
Ftqr, Sashastra Seema Bal, Lucknow,
Uttar Pradesh, Pin-
O.A.No. 040/0027/2023
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....... Respondents
Date of Hearing: 22.05.2024 Date of Order: 23.07.2024
Advocate for applicant: Sri S. Nath, Dr. G.J. Sharma
Advocate for respondents: Sri A. Kundu, Addl. CGSC for
R.Nos. 1 to 4; Dr. A. Todi, UPSC
Counsel for R. No. 5; None for
Prvt. Res. Nos. 6 to 10
ORDER
PER SMT. URMITA DATTA SEN, MEMBER (J):
It has been submitted by the learned counsel for the applicants that since the issue involved in this case is identical one, therefore, applicants' prayer to join together in a single application may be allowed; and is, therefore, allowed.
2. The brief facts of the case are that the applicants were initially appointed as Sub Inspector (Pioneer) and thereafter promoted as Assistant Engineer Grade II. They are diploma holders in Civil Engineering. As per the applicants, in their entire service career, they have got only one promotion that is from Sub Inspector (Pioneer) to the grade of Assistant Engineer Grade II. It O.A.No. 040/0027/2023 4 has been further submitted that earlier, the conditions of services were governed by "Cabinet Secretariat, Special Service Bureau(Engineer Recruitment) Rules, 2000" (which was made under proviso 309 of the Constitution). Therefore, in terms of the said Rule, the next available hierarchy of promotion is to the cadre of Executive Engineer. The applicants were eligible for promotion to the post of Executive Engineer under the Rules, 2000 and as such, vide Memorandum dated 27.10.2017 (ANNEXURE- A/4), the applicants along with others have been declared as falling under zone of consideration for promotion to the rank of EE for the vacancy year 2017-18 and vide Order dated 05.12.2018, the seniormost AEs had been promoted to the post of EE. In the meantime, the Under Secretary, Ministry of Home Affairs, Govt. of India vide Letter dated 18.10.2017(ANNEXURE- A3), conveyed the approval for creation/abolition of posts by cadre review/restructure in non-combatised cadres in SSB. It is submitted that 11 posts of Executive Engineers were created by adding with the existing 10 posts of EE and altogether 21 posts were included in cadre strength of EE. It is further stipulated at para 2 of the said Executive Instructions that some 858 posts O.A.No. 040/0027/2023 5 were created which would come into existence from the dates when they will be filled up and appointment to such posts would be made after the finalization of the new recruitment rules.
3. Further, it is submitted that the applicants were waiting for framing of new recruitment rules providing adequate opportunity for their promotion to the post of Executive Engineer. However, the respondents without notifying new Recruitment Rules for Engineering cadre had issued an Advertisement vide Notification No. 315/RC/SSB/Advt./2018/03 in Employment News on 26 January-01 February, 2019 to fill up all the 10 (ten) newly created posts of Executive Engineers by deputation/absorption in violation of condition laid down in para 2 of the cadre review Letter dated 18.10.2017. Meanwhile, two Assistant Engineers had approached this Tribunal through OA No. 71/2019 (Sri Dipak Kumar Nath and another) against the said advertisement. As such, this Tribunal after hearing both sides on 12.03.2019 had issued notice in the said O.A. with a direction that the proceedings of the Advertisement dated 26 January- 01 February, 2019 to the extent of Sl. No. 7 shall be kept in O.A.No. 040/0027/2023 6 abeyance till the next date. However, during the pendency of the said OA No. 71/2019, the Ministry of Home Affairs on 25.02.2021 by exercising proviso under Article 309 of the Constitution had notified Sashastra Seema Bal, Group 'A' (Non- combatised) Engineering Cadre Recruitment Rules, 2021 (ANNEXURE-A/11). In the Recruitment Rules, 2021, 21 numbers of posts of Executive Engineer in Level-11 in the pay matrix Rs. 67700-208700/- were earmarked in which method of recruitment is by "promotion failing which by deputation". The posts are to be filled up by promotion from the grades of:
(i) Assistant Engineer (Grade-1) of Sahastra Seema Bal in level-8 of the pay matrix Rs. 47600-151100 with six years regular service in the grade failing which Assistant Engineer (Grade-11) of Sashastra Seema Bal in level-7 of the pay matrix Rs. 44900- 142400 with seven years regular service in the grade; and
(ii) should have successfully completed two to four weeks promotional training as specified by the Director General of Sashastra Seema Bal from time to time."
The applicants as well as the proforma respondents fulfil the qualifications as per the Recruitment Rules, 2021 for promotion to the posts of Executive Engineers. Accordingly, the DIG (Trg) vide one Notification dated 16.04.2021 (ANNEXURE-A/12) scheduled the mandatory pre-promotional Course for promotion O.A.No. 040/0027/2023 7 from Assistant Engineers to the rank of Executive Engineer for a duration of 03 weeks from 19.04.2021 to 08.05.2021. Pursuant thereto, the applicants and other 8 AEs have qualified the mandatory pre-promotional Course for promotion from the post of Assistant Engineers to the rank of Executive Engineer. Accordingly, the Commandant (Trg) vide letter dated 19.05.2021 (ANNEXURE- A/13) forwarded the final result sheet to the concerned offices for taking further necessary action wherein the names of the applicants figured at Sl. Nos. 6 and 7 respectively. Subsequently, the D.G, SSB vide Memorandum dated 20.09.2021 (ΑΝNEXURE-A/15) has stated that the Sashastra Seema Bal Recruitment, Group 'A' (Non-Combatised) Engineering Cadre Recruitment Rules, 2021 has been notified on 25.02.2021. Consequent upon its notification, a proposal for consideration of promotion of Assistant Engineers to the rank of Executive Engineer has already been forwarded to UPSC for holding DPC through MHA. In the meantime, the applicants of the said OA No. 71/2019 were advised to withdraw the said application so that their names may be forwarded for consideration for promotion. Accordingly, those applicants had O.A.No. 040/0027/2023 8 withdrawn the said OA. Thereafter, the Commandant (Pers-
1), office of the FHQ, SSB, New Delhi vide Fax dated 13.12.2022 had forwarded the list of Assistant Engineer (Grade-I) and Assistant Engineer (Grade-II) who are falling under the zone of consideration for promotion to the rank of Executive Engineer for the vacancy year 2022, wherein it was requested to forward the documents/information of the officers concerned with regard to (i) Departmental Enquiry/Vig Clearance certificate (ii) Major/ Minor penalty statement with currency of penalty, if any. Subsequently, it is stated that out of 21 posts of Executive Engineer, 9 posts have been filled up and 12 posts are lying vacant. However, the applicants fulfil the promotional norms for promotion to the post of Executive Engineer as they have completed the mandatory pre-promotional Course for promotion from Assistant Engineer to the rank of Executive Engineer for duration of 03 weeks from 19.04.2021 to 08.05.2021. Further, as per the applicants, after more than 1 year and 9 months of completion of mandatory pre-promotional Course, they have not been promoted to the post of Executive Engineer against the existing vacancies which have violated the O.A.No. 040/0027/2023 9 Articles 14 and 16 of the Constitution. As per the applicants, it is a settled position of law as laid down by the Hon'ble Supreme Court in the case of Union of India Vs Hemraj Singh Chauhan [(2010) 4 SCC 290] that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. Being aggrieved with such arbitrariness on the part of the respondents, the applicants have been incurring huge loss in the matter of promotion and further service prospects. As such, the applicants have approached this Hon'ble Tribunal by way of the instant OA.
4. Respondent nos. 1 to 4 have filed their written statement wherein it has been stated that the SSB vide ID No. 7/SSB/Pers-I/2017 (13)/143 dated 07.07.2021 forwarded a DPC proposal to MHA to fill up 10 vacant posts of Executive Engineer for vacancy year 2021 in terms of Recruitment Rules, 2021. Thereafter, the MHA vide letter no. 7/SSB/Pers- 1/2017(13)/143/3539441/Pers-III dated 24.09.2021 forwarded O.A.No. 040/0027/2023 10 the same to the UPSC. Further, the DIG (Pers) has stated that the UPSC has returned the documents with remarks that since all the officers in the feeder grade have completed the mandatory training from 19.04.2021 to 08.05.2021 i.e. after a crucial date (01.01.2021) of determining eligibility for the vacancy year 2021, therefore, all the officers are eligible for the vacancy year 2022 in normal circumstances as per the provision stipulated in RR. In view of such categorical findings of the UPSC, the MHA was requested to forward the requisite proposal to UPSC for holding DPC for promotion to the post of Executive Engineer in SSB for the vacancy year 2022 at an early date. It is also apprised to this Tribunal that at the time of Cadre Review of Non-Combatised Cadre of SSB, 11 Additional Posts of Executive Engineer were created by MHA vide letter No. 1/149/CR(NC)/SSB/Per- V/2016(CF-3352813)/Pers-III dated 18.10.2017(Annexure-R/4).
At para No. 2 of ibid MHA Letter dated 18.10.2017, it is mentioned that "upgraded/newly created posts will come into existence from the date/dates these are filled up". Further at Para No. 6 of ibid MHA Letter dated 18.10.2017, it is also mentioned that above proposal is concurred by the IFA Division, MHA & O.A.No. 040/0027/2023 11 approved by the M/o Finance, Department of Expenditure notes bearing No. 2 (49)/E-III Desk/2017 dated 19.09.2017(Annexure- R/12). It is apt to mention here that these newly created posts (11 posts) of Executive Engineer could not be filled up prior to vacancy year 2022 as these posts were earmarked under deputation quota as per provisions contained in Recruitment Rules, 2000 notified vide Cabinet Secretariat Notification dated 05.04.2000. Present Recruitment Rules i.e., Recruitment Rules, 2021 notified on 25.02.2021 and after its notification, 10 posts (out of 11 new created posts) earmarked under promotion quota. Therefore, to fill up such 10 vacant posts of Executive Engineer through promotion DPC proposal was forwarded by MHA to UPSC vide MHA letter dated 06.01.2022(Annexure-R/11). UPSC vide Letter No. 1/24/(5)/2022-STF dated 20.09.2022(Annexure- R/13) had returned the DPC proposal with remarks that these posts fall under 'Deemed Abolished' category and advised the Department to first get these posts revived from the Department of Expenditure as these posts were created through MHA letter dated 18.10.2017 and have not been filled up so far. Since, as per the direction of UPSC & MHA, 10 posts of Executive Engineer O.A.No. 040/0027/2023 12 falls under 'Deemed Abolished' category, DPC for promotion of Assistant Engineer (Grade-I) and Assistant Engineer (Grade -II) could not be convened for the vacancy year 2022.
5. Respondent no. 5 has filed their written statement wherein they have averred that the Government of India (Department of Personnel & Training) vide their O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989 have issued guidelines/instructions, as amended from time to time, on the issue of holding meetings of the Departmental Promotion Committee(DPC). The Commission holds various DPCs/BoAs, strictly in accordance with the Recruitment Rules and the provisions of aforesaid OM and other guidelines/instructions issued by the DoP&T from time to time on the subject, after receipt of specific proposals from the concerned Ministries/Departments, complete in all respects, while also taking into consideration various essential inputs given by the concerned Department, such as, Seniority Lists, Eligibility Lists, ACRs and also various certificates of critical importance viz. Integrity Certificate, Vigilance Clearance, Major/Minor Penalty Statement etc., of feeder category officers, received along with O.A.No. 040/0027/2023 13 such proposals. Thereafter on 25.01.2022, the Department i.e. SSB had submitted a DPC proposal for filling up 11 vacancies to the post of Executive Engineer for the VY-2022 on promotion basis as per notified Recruitment Rules dated 25.02.2021. The names of the applicants had been included in the Eligibility list for the VY-22. After scrutiny of the proposal, the Department i.e. SSB was requested to provide Department of Expenditure ID Note bearing No. 2(49)/E.III Desk/2017 dated 19.09.2017 through which approval of newly created 11 posts of Executive Engineer(which were proposed to be filled up through that proposal). Afterwards, the Department furnished the said ID Notes on 20.06.2022. After going through the contents of the aforesaid ID note dated 19.09.2017, it was observed that the condition that "the upgraded/newly created posts will come into existence from the date/dates these are filled up", as mentioned in the MHA's letter dated 18.10.2017, ibid, was not mentioned therein. However, the Department had relied upon this condition only in their proposal to contend that these newly created posts were outside the ambit of the category of "Deemed Abolished." Since, the above stipulation was not found mentioned in the ID O.A.No. 040/0027/2023 14 note of Department of Expenditure and it is Department of Expenditure which is the authority competent to allow the existence of the posts which remained vacant for a period exceeding 02 years, the Department was advised to first get these posts revived from the Department of Expenditure, as these posts were created through MHA's Order No. 1/149/CR(NC)/SSB/Per- V/2016(CF-3352813)/Pers-III dated 18.10.2017 and had not been filled up till then.
6. Applicants have also filed rejoinder against the written statement of the respondent no. 5(UPSC) wherein they have taken the stand that the respondents have arbitrarily deprived the applicants from their right of consideration for promotion to the post of Executive Engineer as the Ministry of Home Affairs, Sashastra Seema Bal, Group 'A' (Non combatised) Engineering Cadre Recruitment Rules, 2021 has been notified on 25.02.2021 wherein there are 21 numbers of posts of Executive Engineer. However, in the instant case, the UPSC has ignored the provisions of Recruitment Rules of 2021 and proposals sent by the respondent nos. 1 to 4 vide Letter dated 24.09.2021(Annexure-R/8) and 06.01.2022(Annexure-R/11) of O.A.No. 040/0027/2023 15 written statement filed by the Respondent nos. 1 to 4. As such, the action of the UPSC as well as the respondent nos. 1 to 4 is arbitrary and illegal. In view of the such facts and circumstances, the instant O.A. may be allowed and the respondents may be directed to hold DPC within a period of 1 month and to promote the applicants to the post of Executive Engineer. It is pertinent to mention here that the applicant no. 1 has already retired on superannuation on 31.01.2024.
7. We have heard the parties and perused the records. It is noted that the applicants were earlier governed by the "Cabinet Secretariat, Special Service Bureau(Engineer Recruitment) Rules, 2000." Though, they fell under the zone of consideration for promotion to the post of Executive Engineer for the vacancy year of 2017-2018; however, due to lack of vacancy, they could not be promoted in the year 2018 but their senior Assistant Engineers were promoted to the post of Executive Engineer vide Order dated 05.12.2018. In the meantime, the Under Secretary, Ministry of Home Affairs, Government of India vide Letter dated 18.10.2017(Annexure- A/3) conveyed the approval for creation/abolition of posts by O.A.No. 040/0027/2023 16 cadre review/restructure in non-combatised cadres in SSB, wherein para 2 of the Executive Instructions dated 18.10.2017 stipulates inter alia:
"2. The above approval involves creation of 858 posts and abolition of 1425 posts (i.e. net abolition of 567 posts) in 24 (Twenty four) Non-combatised Cadres of SSB per Annexure I to II. The upgraded/newly created posts will come into existence from the date/dates these are filled up. The appointments to the posts sanctioned above would be made in accordance with the rules/regulations governing such appointments to the posts sanctioned above would be made in accordance with the rules/regulations governing such appointments except where change in cadre structures has been approved and in such cases the posts shall be filled up after finalisation of Recruitment Rules. These posts shall carry their usual Grade Pav/level of pay matrix and allowances as per orders issued by the Govt. of India, from time to time."
However, the applicants were languishing for the legitimate expectation of consideration for promotion but the respondents had notified the SSB, Group -'A'(Non-combatised), Engineering Cadre Recruitment Rules, 2021 only on 25.02.2021. It is further noted that the applicants were already eligible for promotion to the post of EE(Executive Engineer). Thereafter, the DIG(Training) vide Notification dated 16.04.2021(Annexure- A/12) scheduled the mandatory pre-promotional course for promotion from the post of Assistant Engineers to the rank of Executive Engineers for a duration of 3 weeks i.e. from O.A.No. 040/0027/2023 17 19.04.2021 to 08.05.2021, whereby the applicants after following the due procedure had qualified the said course. Subsequently, the Commandant(Trg) vide Letter dated 19.05.2021(Annexure- A/13) had forwarded the final result sheets to the concerned officers for taking further necessary action followed by issuance of one Memorandum dated 20.09.2021(Annexure-A/15) by the DG, SSB which was forwarded to the UPSC for holding DPC through Ministry of Home Affairs.
Now, as per the restructuring or reviewing of the cadre, it has come to the light that out of 21 posts of Executive Engineer, 9 posts have already been filled up and 12 posts are still lying vacant. However, the UPSC did not held the DPC on the ground that upgraded newly created posts have become "Deemed Abolished" i.e. 10 posts of Executive Engineer were being fallen under deemed abolished category. Therefore, the promotion of Assistant Engineer Grade - I and Assistant Engineer Grade - II could not be convened for the requisite vacancy year of 2021. Moreover, the Department was advised to revive the posts from the Department of Expenditure and as a result, till date, the applicants are not being promoted by holding any DPC.
O.A.No. 040/0027/2023 18
8. It is noted that the Hon'ble Apex Court in the case of Union of India and Anr. -V/s- Hemraj Singh Chauhan and Ors. arising out of Civil Appeal No. 2651-52 of 2010 decided on 23.03.2010 had observed and held inter-alia:-
"36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
37. In Government Branch Press and Anr. vs. D.B. Belliappa - (1979) 1 SCC 477, a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason".
38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy." Further, the Hon'ble Apex Court in the said case had observed and directed inter-alia:-
"48. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
O.A.No. 040/0027/2023 19
49. With the aforesaid modification/direction, the appeals filed by the Union of India are disposed of. There shall be no order as to costs."
In the instant case also, it is an admitted fact that though the applicants became eligible in the year 2017 for promotion to the post of Executive Engineer with respect to the vacancy year 2017- 18 but could not be promoted due to the non-availability of vacancies. However, in the year 2017 itself, the Ministry had sanctioned 10 posts, obviously, with the concurrence of the Ministry of Expenditure. Further, in the said Memorandum, they had made it clear that those newly created posts would be filled up after the Recruitment Rules and posts would be operative from the date of their filling up. However, the reasons best known to the respondents and due to their lackadaisical approach, the Recruitment Rules were notified only in the year 2021 and in the meantime, if those posts came under the "Deemed Abolished"
category; in that case, the applicants have no fault on their part, who were languishing for their promotion to the post of Executive Engineers since 2017-18 and till date, the respondents did not take any firm steps to hold the DPC and promote them, if they would be found eligible.
O.A.No. 040/0027/2023 20
9. In view of the above, in our considered opinion, the applicants are entitled to be considered for promotion immediately as they have lost their precious seven years due to the inaction on the part of the respondent authorities. Therefore, we direct the respondents to take appropriate steps to hold the DPC with respect to the applicants and grant them promotion, if they would be otherwise found fit, within a period of Three(03) months positively from the date of receipt of a certified copy of this Order.
10. Accordingly, the instant O.A. stands disposed of with the above observations and directions with no order as to costs.
(DR SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
/Sk/
O.A.No. 040/0027/2023