Central Administrative Tribunal - Delhi
Shri Ashok Kumar vs Union Of India on 4 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3743 OF 2011 New Delhi, this the 4th day of August, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER 1. Shri Ashok Kumar, S/o late Sh.R.C.Dhiman, C-19 Palika Milan, NDMC Colony, S.P.Marg, Chanakyapuri, New Delhi 110021 2. Shri Kokula Sreedhar, s/o Kokkula Rajaram, A-28, Hyderabad Estate, Nepeansea Road, Mumbai, Mumbai 400036 3. Smt. Ruby Kaushal, w/o Sanjay Kaushal, D-138, Pushpanjali Enclave, Pitampura, Delhi. 4. Shri Hemchandra Singh Nikhurpa, S/o late Sh.L.S.Nikhurpa, 21/5 Sector 1, Pushap Vihar, New Delhi. 5. Shri Anil Kumar, S/o Sh.R.B.Piple, B-3/28, Janakpuri, New Delhi 110058 6. Smt. Hemlata, s/o Shri Ramesh Chand, House no.184, A.G.C.R.Enclave, Delhi 110092 . Applicants. (By Advocate: Ms. Tamali Wad) Vs. 1. Union of India, Through its Secretary, Ministry of Urban Development & Poverty Alleviation, Nirman Bhavan, New Delhi 110001 2. Director General of Works, Central Public Works Department, A Wing, Nirman Bhavan, New Delhi 110001 3. Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Through its Secretary, Government of India, North Block, New Delhi 110001 4. Union Public Service Commission, Through its Chairman, Dholpur House, Shahjahan Road, New Delhil 5. Shri Som Nath Adhikari, Office of CA (NR), 6th Floor, Nizam Place, 234/4, AJC Bose Road, Kolkata 20 6. Smt. Yasmeen Abidi, Architect, Room No.307, A-Wing, Nirman Bhawan, New Delhil. 7. Smt. Kamini Sharma, Architect, SA (JLB), Site Office, Jawahar Lal Nehru Bhawan, Near Nirman Bhawan, New Delhi 8. Smt. Manjula Inian, Office of SA (SZ 1), 3rd Floor G-Wing, Rajaji Bhawan, Bwsant Nagar, Chennai 600090 . Respondents (By Advocates: Dr.Ch.Shamsuddin Khan for Respondents 1 & 3, and Ms. Sumedha Sharma for Mr.Arun Bhardwaj for Respondents 5 to 8) .. ORDER Raj Vir Sharma, Member(J):
Brief facts of the applicants case are that they joined as Assistant Architects in the Central Public Works Department in the year 1996 pursuant to their selection made by the Union Public Service Commission. The next promotional post for Assistant Architect was Architect. Under the Central Architects Service Group A Rules, 1989 (hereinafter referred to as the 1989 Rules), recruitment to the post of Architect was made by promotion from two feeder cadres by operation of rota-quota rule. Vacancies in the grade of Architect (Group A in the pre-revised pay scale of Rs.3000-4500) were filled up 50% by promotion from Deputy Architects (Group A in the pre-revised pay scale of Rs.2200-4000) with 4 years of regular service, and 50% by promotion of Assistant Architects (Group B in the pre-revised pay scale of Rs.2000-3500) with 8 years of regular service. After implementation of the recommendations of the 5th CPC, the post of Architect was placed in the pay scale of Rs.10000-15200/-, the post of Deputy Architect was placed in the pay scale of Rs.8000-13500/-, and the post of Assistant Architect was placed in the pay scale of Rs.7500-12000/-, instead of Rs.6500-10500/-, with effect from 1.1.1996. Upgradation in the pay scale of Assistant Architect necessitated revision of the 1989 Rules. As per the Department of Personnel & Trainings guidelines, the eligibility for promotion from the grade of Rs.6500-10500/- to the grade of Rs.10000-15200/- was 8 years regular service in the grade, whereas the eligibility for promotion from the grade of Rs.7500-12000/- to the grade of Rs.10,000-15200/- was six years of regular service in the grade. Therefore, according to the applicants, they having completed six years of regular service in the grade of Assistant Architect in the pay scale of Rs.7500-12000/- became eligible for promotion to the grade of Architect in the year 2002-2003. Respondent nos. 1 and 2 attempted to divert six vacancies in the grade of Architects from the Assistant Architects quota to the Deputy Architects quota, and submitted a proposal to the UPSC and DoP&T. The proposal having been turned down by the UPSC and DoP&T, respondent nos. 1 and 2 in a discriminatory and arbitrary manner held a DPC meeting in August 2004 to consider Deputy Architects for promotion to the post of Architect, leaving the Assistant Architects high and dry, even though by then there were 13 Assistant Architects who had completed 6 years of regular service in the grade and sufficient number of vacancies were available in their quota. By the time the DPC meeting was convened in August 2004, respondent no.1 had already received the approval of the UPSC, vide letter dated 31.3.2003, for filling up 8 vacant posts of Architect by way of promotion of Assistant Architects in the pay scale of Rs.7500-12000/- with 6 years of regular service in the grade. The said approval was accorded as a one time measure pending finalization of the Recruitment Rules in order to protect the interest of those Assistant Architects who had completed 6 years of regular service in the grade and were eligible for promotion. In the meanwhile, respondent nos. 1 and 2 amended the Recruitment Rules on 27.2.2004 changing the channel of promotion for Assistant Architects. Under the amended Rules, an Assistant Architect was no longer eligible for promotion directly to the grade of Architect. An Assistant Architect in the pay scale of Rs.7500-12000/- with 2 years of regular service became eligible for promotion to the grade of Deputy Architect and thereafter to the post of Architect in the pay scale of Rs.10000-15200/- on completing 4 years of regular service in the grade of Deputy Architect. In August 2005, the applicants were granted promotion to the grade of Architect against 50% vacancies earmarked for their quota as per the 1989 Rules for the years 2003-2004 and 2004-2005 by way of one time relaxation obtained from the UPSC. On their promotion as Architect, respondent-Department fixed their relative seniority in the grade of Architects by following the rota-quota system. In the seniority list of Architects as on 1.6.2008, circulated vide O.M. dated 16.7.2008 (Annexure A-6), the applicants and private respondent nos. 5 to 8 were assigned their due and correct seniority positions. Representations made by some Architects, promoted from the grade of Deputy Architect, against the said seniority list circulated vide O.M. dated 16.7.2008 were considered and rejected by respondent no.2, vide O.M. dated 17.8.2010 (Annexure A-7). Although the seniority list, circulated vide O.M. dated 16.7.2008, became final, yet respondent no.2 entertained representations from some other Architects, who were promoted from the grade of Deputy Architects, and, vide its notes dated 12.11.2010 (Annexure A-8), referred the matter to the Department of Personnel & Training (respondent no.3) for its advice and clarification. The Department of Personnel & Training, without considering the validity of the seniority list circulated vide O.M. dated 16.7.2008, gave a general clarification on the principles of seniority enunciated in its O.M. dated 3.7.1986. On the basis of this clarification, respondent nos. 1 and 2, without issuing any notice to the applicants, revised the seniority list dated 16.7.2008 and circulated the revised seniority list vide O.M. dated 22.3.2011, in clear violation of the principles laid down by the Department of Personnel & Training in its O.M. dated 11.11.2010 (Annexure A-12) that where promotions to a grade are made from more than one grade and quotas have been laid down for each feeder grade, the eligible persons shall be arranged in separate lists in order of their relative seniority in their respective grades, and that the officers in each grade assessed as fit by the Departmental Promotion Committee shall be interpolated in the ratio prescribed for each grade in the recruitment rules for the post. Hence, the applicants have filed the present O.A. seeking the following reliefs:
(a) Call for the records pertaining to the promotion & seniority of the applicants in the grade of Architects in CPWD.
(b) Set aside the impugned seniority list issued by the Respondent No. 1 & 2 vide OM No.37/2/2008-EC-IX dated 22.3.2011 to the extent the seniority of the applicants has been downgraded and to restore the applicants to the seniority position as assigned to them in seniority list circulated vide OM No.37/2/2008-EC-IX dated 16.7.2008 as further clarified by O.M.No.37/2/2008-EC-IX dated 17.08.2010 issued by the Respondent No.2.
(c) On granting relief to the applicants in terms of prayer (b) above, to direct the Respondent No.1 & 2 to grant consequential reliefs to the applicants in accordance with law.
(d) Pass any other and further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Respondent nos.1 to 3, in their counter reply, have stated that as per the Recruitment Rules, 1989, there were two feeder grades for promotion to the grade of Architect. The first one was (i) 50% from Deputy Architects with 4 years of regular service in the grade; and (ii) 50% from Assistant Architects (Group B) with 8 years of regular service in the grade. The Recruitment Rules, 1989 were amended in 2004. In the new Recruitment Rules, 2004, there is no provision for promotion from the grade of Assistant Architect to the grade of Architect, and Deputy Architect with 4 years of regular service is eligible to be considered for promotion to the grade of Architect. The changed method of recruitment by way of promotion to the post of Architect adversely affected those Assistant Architects who had already completed 6 years of qualifying service but could not be promoted for want of vacancies. A proviso to safeguard the interest of such Assistant Architects could not be incorporated in the Recruitment Rules, 2004. However, the Department of Personnel & Training observed that one time relaxation in case of Assistant Architects who had completed 6 years of regular service on the date of notification of the Recruitment Rules, 2004, would be considered on merit in case the respondent-Department makes a reference. Accordingly, the respondent-Department approached the Department of Personnel & Training to accord one time relaxation in the Recruitment Rules, 2004, for considering promotion of 13 Assistant Architects directly to the grade of Architect subject to 50% vacancies in the grade of Architect. The same was agreed to by the Department of Personnel & Training. Thereafter, the DPC meeting was convened by the Union Public Service Commission on 22.8.2005. The DPC, vide its minutes dated 22.8.2005, recommended names of 13 Assistant Architects for promotion to the grade of Architect as per the following three panels:
Panel for the year 2003-2004 (Vacancies: 7 UR & 1 ST) Sl.No. Name 1 Smt. Arunima Chattopadhyay 2 Smt. P.Malarvizhi (SC)-against UR vacancy 3 Shri B.Kumarvel (SC) against UR vacancy 4 Smt. Srabani Mukherjee 5 Shri Ashok Kumar (SC) against UR vacancy 6 Shri Kokula Sreedhar 7 Smt. Ruby Nee Kaushal 8 Shri Hemchandra Singh (ST)-against ST vacancy Panel for the year 2004-2005 (Vacancies: 3 UR) 1 Shri Biplab Nath 2 Shri Anil Kumar (SC) against UR vacancy 3 Shri Smt. Hemlata (SC) against UR vacancy Panel for the year 2005-2006 (Vacancies: 3 UR) 1 Smt. Sabita Kumari Sahoo 2 Shri Madugula John Peter Prior thereto, the DPC meeting was held in August 2004 to consider Deputy Architects, who were appointed during 1994, 1995 and 1996 for promotion to the post of Architects against the vacancies for the years 2003-04 and 2004-05. As per the old Recruitment Rules notified on 20.10.1989, vacancies in the grade of Architect were to be filled up in the ratio of 1:1 by promotion of Deputy Architect and Assistant Architect. The Rota Quota System was followed while preparing the seniority list of Architects which was circulated on 16.7.2008. In the seniority list circulated on 16.7.2008, the applicants were placed at sl.no.55, 56, 57,58, 62 and 64 respectively. They and seven others were promoted to the grade of Architect in October/November, 2005 and were placed against the vacant slots belonging to backlog vacancies of the years 2003-04, 2004-05 and 2005-06 consequent to the one time relaxation granted by the DoP&T for promotion of Assistant Architect to the grade of Architect. The officers, who were initially appointed as Deputy Architect and promoted to the grade of Architect in the year 2004 represented that Assistant Architects, who were appointed between 1994 and 1997 and were promoted to the grade of Architect in 2005, were shown senior by placing them against the vacant slots of earlier years. Accordingly, the matter was referred to the Department of Personnel & Training for clarification/advice. The Department of Personnel & Training, vide its U.O.No.101049/10.Estt.D.II dated 03.01.2011 furnished the following advice:
The contention of Assistant Architects that O.M. dated 03.03.2008 is applicable in case of DR and promotees is not justified. For the sake of brevity, the relevant portion of para 3 of this Department OM dated 03.03.2008 is reproduced below:
.It is further clarified that 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 promoted on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotes joins the post/service. Accordingly, the revised seniority list of Architects as on 1.6.2008 was issued on 22.3.2011. In the above view of the matter, the official respondents submit that the O.A. filed by the applicants being devoid of any merit is liable to be dismissed.
3. Private respondent nos. 6 to 8, in their counter reply, have stated that the recruitment rules were amended in 2004. The DPC, which met in 2005, was to effect promotions in accordance with the amended recruitment rules. At that point of time, the applicants were holding the post of Assistant Architect. As per the amended recruitment rules, an Assistant Architect could only be considered for promotion to the post of Deputy Architect and could not be promoted directly to the post of Architect. The effect of the amended recruitment rules in 2004 was that an Assistant Architect would first be promoted as Deputy Architect and only thereafter, with four years of regular service as Deputy Architect, could be considered for promotion to the post of Architect. Since the applicants had put in eight years of service as Assistant Architect in 2004 and there were others like them, an effort was made by the respondent-Department to grant one time relaxation to such Assistant Architects for considering them for promotion to the post of Architect. This exercise of seeking relaxation from the Department of Personnel & Training failed to materialize as no such relaxation was ever granted by UPSC. In the absence of grant of such relaxation, promotion in 2005 could only be effected as per the amended recruitment rules of 2004. Since the actual recommendation had been made by the DPC in 2005, it cannot confer on the promotee any right for retrospective promotion. The applicants claim that since there were vacancies in 2003 and DPC was belatedly convened in 2005, they should be promoted with retrospective effect is untenable. It is stated by the private respondents that they had joined as Deputy Architects in the year 1996. They completed four years of service as Deputy Architects in the year 2000. They also became eligible in 2000 for being considered and promoted to the next higher post of Architect as per the unamended recruitment rules. In their case also, the DPC was belatedly convened in the year 2004. They were promoted to the grade of Architect on 6.9.2004, 7.12.2004 and 8.12.2004. Under the amended recruitment rules, the applicants could be considered for the post of Deputy Architect after 2004 only. It is also submitted by the private respondents that if the plea of the applicants that their promotion as Architect should be antedated because DPC was convened belatedly is accepted, then the respondent-Department has to promote them also retrospectively w.e.f. 2000, in which event they would stand senior to the applicants. The private respondents have denied the statement of the respondent-Department that the DoP&T had agreed to grant one time relaxation of the amended recruitment rules for considering promotion of 13 Assistant Architects to the grade of Architects. The private respondents have stated that the DoP&T had stated that upon concurrence of UPSC only, one time relaxation could be effected. There was no such relaxation granted by the competent authority and, hence, such promotion of the Assistant Architects to the post of Architect is illegal and invalid. In view of the above, the private respondents pray for dismissal of the O.A.
4. Private respondent no.5 has neither appeared nor filed counter reply.
5. In their rejoinder reply, the applicants, while refuting the stand taken by respondent nos. 1 to 3, have, inter alia, stated that they were promoted against 50% vacancies in the post of Architects earmarked for Assistant Architect Quota for the years 2003-2004 and 2004-2005 as per the 1989 Recruitment Rules. The UPSC way back on 31.3.2003 had already granted approval to promote the applicants who had completed 6 years of regular service as Assistant Architects. This was by way of a one time relaxation, pending revision of the Recruitment Rules. Hence, the amended Recruitment Rules of 2004 have no relevance in their case. Respondent nos. 1 and 2 deliberately delayed the promotion of the applicants. At the time the DPC meeting was held in August 2004 to consider Deputy Architects for promotion to the grade of Architect, the approval of the UPSC dated 31.3.2003 had already been received by respondent nos.1 and 2. There were adequate number of vacancies available to consider the applicants for promotion. The promotion of the applicants could have been made even before the amended Recruitment Rules were notified in March 2004. The DoP&Ts O.M. dated 3.1.2011 on the basis of which the impugned seniority list has been issued was merely a clarification with respect to its earlier O.M. of 1986 which is applicable to the posts filled by way of direct recruitment and is not applicable to the post of Architect, the recruitment to which is 100% by promotion. As the promotion of the applicants was given effect to in terms of the 1989 Recruitment Rules, their seniority ought to have been determined on the basis of rota-quota principle. As respondent no.1, vide order dated 17.8.2010, had declared the seniority list dated 16.7.2008 to be correct requiring no further modification and, accordingly, rejected the representations made by some Architects promoted from the grade of Deputy Architects, there was no scope for the respondent-Department to entertain any further representations on the subject. Therefore, their positions as reflected in the seniority list dated 16.7.2008 have to be restored.
6. Refuting the stand taken by private respondent no. 6 to 8, the applicants have also filed a rejoinder reply wherein, besides reiterating more or less same averments and contentions as in their O.A. and rejoinder reply to the counter reply of respondent nos. 1 to 3, it has been stated by the applicants that private respondent nos. 5 to 8 were promoted against the vacancies for the year 2004-2005. The applicants have also stated that since they were promoted against the vacancies for the years 2003-2004 and 2004-2005 in accordance with the Recruitment Rules of 1989, their seniority has to be fixed by following the rota-quota principle.
7. On 16.4.2015, after hearing Ms.Tamali Wad, learned counsel appearing for the applicants, and Dr.Ch.Shamsuddin Khan, learned counsel appearing for the respondent-Department, and Ms.Sumedha Sharma for Mr.Arun Bhardwaj, learned counsel appearing for private respondent nos. 6 to 8, we reserved the order.
8. On 8.7.2015, the Registry of the Tribunal received and registered MA No.2182 of 2015 filed by the applicants. In MA No.2182 of 2015, the applicants made the following prayer:
(a) take on record the OM No.20/15/2012-EX-IX dated 26.06.2015 issued by CPWD and in light thereof.
(b) Allow the present O.A. filed by the Applicants.
( c) Pass any such further or other orders as this Honble Tribunal may deem fit and appropriate. The Registry of the Tribunal did not bring to our notice the fact of filing of the said O.A. No.2182 of 2015 filed by the applicants on 8.7.2015.
9. The O.A. was listed on 10.7.2015 for pronouncement of order by us. As one of us was on leave, the Division Bench did not function and the order could not be pronounced on 10.7.2015. On 10.7.2015, Ms.Tamali Wad, learned counsel for the applicants, moved the Division Bench presided over by the senior most Member of the Principal Bench for issuing a direction to the Registry to get the said MA No.2182 of 2012 listed before us when the O.A. would be taken up for pronouncement of order. That is how, the MA No.2182 of 2015 was taken up by us on 14.7.2015 when the O.A. was listed for pronouncement of order. Accordingly, deferring the pronouncement of order in the O.A., we directed issuance of notice on MA to the official respondents to make their submission, if any. Thereafter, the matter was taken upon 22.7.2015 and further time was granted to the official respondents to file their reply, and the matter was adjourned to 30.7.2015. On 30.7.2015, the learned counsel for the respondents submitted that they did not have any objection if the facts averred in MA No.2182 of 2015 are taken on record for adjudicating the issues raised in the O.A. Accordingly, MA No.2182 of 2015 filed by the applicants was disposed of.
10. In MA No.2182 of 2015, it is stated by the applicants that in compliance with the order dated 20.2.2015 passed by the coordinate Bench of the Tribunal in O.A.No.3501 of 2012 (Ms.Ena Passi v. Union of India and others), on 26.6.2015 the official respondents have issued a revised seniority list of Architects as on 1.1.2012, whereby their seniority positions vis-`-vis the private respondents in the present case have been restored. In view of this, it is submitted and prayed by the applicants that the OA filed by them has to be allowed. Before considering the submission and the prayer of the applicants, as made by them in MA No.2182 of 2015, we would like to deal with the contentions of the parties and the issues as originally raised by them in the O.A.
11. Ms.Tamali Wad, learned counsel appearing for the applicants, submitted that the respondent-Department initiated the process for promotion of the applicants to the post of Architect in the year 2002-03, but could not complete the process during 2003 due to administrative reasons. By the time the applicants were considered by the DPC and promoted to the post of Architect in 2005, respondent-Department had already held DPC for promotion of private respondents and promoted them to the post of Architect in August 2004. The respondent-Department has, thus, acted in clear violation of the Model Calendar prescribed for holding DPC. It was also submitted by the learned counsel that the Honble Supreme Court in Union of India and another v. N.R.Parmar and another, 2012 (11) SCALE 437, has declared the DoP&Ts O.M. dated 3.3.2008 as non est, and the DoP&T, vide its O.M. dated 4.3.2014, has treated the said O.M. dated 3.3.2008 as non-existent/withdrawn ab initio. Since the seniority of the applicants has been revised adverse to them only on the basis of the DoP&Ts clarification dated 3.1.2011, wherein the DoP&T has referred to its instruction contained in O.M. dated 3.3.2008, the respondent-Department is duty bound to restore the applicants seniority to the positions as reflected in the seniority list dated 16.7.2008. It was further submitted by Ms.Tamali Wad that the promotions granted to the applicants against the vacancy years 2003-04 and 2004-05 in relaxation of the amended Recruitment Rules of 2004 have attained finality and, therefore, their seniority has to be fixed by applying the rota-quota rule as if they were promoted under the Recruitment Rules of 1989 and the provisions of the amended Recruitment Rules 2004 cannot work to the prejudice of the applicants. In support of her contention, the learned counsel invited our attention to the decision of the Honble Apex Court in Ashok Kr.Uppal & others v. State of J&K & others, (1988) 4 SCC 179, wherein it has been held that power of relaxation of the Recruitment Rules has necessarily to be conceded to the employer, particularly to the Government, especially in all those cases in which hardship is caused in the implementation of the rules to meet a particular situation or where injustice has been caused to either an individual employee or a class of employees. Ms.Tamali Wad also invited our attention to the decision of the Honble Supreme Court in Nirmal Chandra Bhattacharjee & others v. Union of India, 1991 Supp.(2) SCC 363, wherein it has been held that a rule cannot work to the prejudice of an employee who was in service prior to the date of operation of the rule.
12. On the other hand, the learned counsel appearing for the respondents submitted that the applicants, having been promoted from the grade of Assistant Architect to the grade of Architect in the year 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004, are not entitled to claim seniority above the private respondents who were promoted from the grade of Deputy Architect to the grade of Architect in the year 2004 in accordance with the Central Architects Service Group A Rules, 2004. It was also submitted by the learned counsel for the respondents that the rota quota principle for fixation of seniority is not applicable to the case of the applicants inasmuch as the Central Architects Service Group A Rules, 2004, do not provide for promotion of Assistant Architect to the grade of Architect.
13. From a perusal of the materials available on record, we find that as per the recommendation of the DPC, which met on 22.8.2005, applicant nos. 1 to 4, along with four other Assistant Architects were included in the panel for the year 2003-2004 for promotion from the grade of Assistant Architect to the grade of Architect, and they were promoted to the post of Architect with effect from 18.10.2005, 24.10.2005, 18.10.2005 and 8.11.2005 respectively, and applicant nos. 5 and 6, along with another Assistant Architect, were included in the panel for the year 2004-2005, and they were promoted to the grade of Architect with effect from 28.11.2005 and 10.11.2005 respectively. On the basis of the recommendation of the DPC, which met in August 2004, private respondent nos.5, 6, 7 and 8 were promoted from the grade of Deputy Architect to the grade of Architect with effect from 7.9.2004, 6.9.2004, 7.12.2004 and 8.12.2004 respectively.
14. As per the provisions contained in the Central Architects Service Group A Rules, 1989, both Deputy Architect with 4 years of regular service, and Assistant Architect with 8 years of regular service formed feeder grades in the ratio of 50:50 for promotion to the post of Architect.
15. The Central Architects Service Group A Rules, 1989 were superseded by the Central Architects Service Group A Rules, 2004, which came into force with effect from 27.2.2004. In the Central Architects Service Group A Rules, 2004, there is no provision for promotion from the grade of Assistant Architect to the grade of Architect. Under the Central Architects Service Group A Rules, 2004, the post of Deputy Architect is filled 66.66% by direct recruitment through Union Public Service Commission, and 33.33% by promotion of Assistant Architect with two years of regular service in the grade. The post of Deputy Architect is the only feeder post for promotion to the grade of Architect, and Deputy Architect with four years of regular service is eligible to be promoted to the grade of Architect under the Central Architects Service Group A Rules, 2004.
16. The applicants contention is that they completed 6 years of regular service as Assistant Architect (in the pay scale of Rs.7500-12000) in 2002 and, thus, became eligible to be promoted to the grade of Architect against the 50% quota meant for Assistant Architects under the Central Architects Service Group A Rules, 1989. According to them, there were in total eight vacancies in the grade of Architect, four vacancies in the year 2002-03 and four vacancies in the year 2003-04, which were to be filled up by promotion of Assistant Architects, and they were entitled to be considered for promotion to the grade of Architect as per their seniority positions in the grade of Assistant Architect. Therefore, delay on the part of the respondent-Department in convening DPC and promoting them to the grade of Architect would not deprive them of seniority in the said grade above the private respondents. We do not find any substance in the contention of the applicants, because they accepted their promotion from the grade of Assistant Architect to the grade of Architect with effect from 18.10.2005, 24.10.2005, 18.10.2005, 8.11.2005, 28.11.2005 and 10.11.2005 respectively without any demur, and because the question of delay, if any, on the part of the respondent-Department in holding DPC and promoting them with effect from the said dates cannot be gone into by the Tribunal in the present proceedings. If at all there were vacancies in the grade of Architect available during 2002-03 and 2003-04 under Assistant Architects promotion quota in accordance with the Central Architects Service Group A Rules, 1989, and if they were not considered for promotion and/or were not promoted to the grade of Architect, they could have approached the respondent-Department agitating their claim at the relevant point of time, and in the event of their being unsuccessful to get their grievance redressed by the departmental authorities, they could have filed applications under Section 19 of the Administrative Tribunals Act, 1985, before the Tribunal for redressal of their grievance, if any, with regard to non-consideration of their case for promotion, but they appear to have not done so. After the Central Architects Service Group A Rules, 1989 were superseded by the Central Architects Service Group A Rules, 2004, which came into force with effect from 27.2.2004, the respondent-Department moved the Department of Personnel & Training for granting one time relaxation of the provisions of the said Central Architects Service Group A Rules, 2004, to consider the cases of the applicants and seven other similarly placed Assistant Architects for promotion to the grade of Architect subject to 50% vacancies in the grade of Architect. Such proposal of the respondent-Department having been agreed to by the Department of Personnel & Training, the DPC meeting was convened by the Union Public Service Commission on 22.8.2005, and on the basis of the recommendation of the DPC, applicant nos. 1 to 4, along with four others, were included in the panel for the year 2003-04, applicant nos. 5 and 6, along with another, were included in the panel for the year 2004-05, and two Assistant Architects were included in the panel for the year 2005-06, for promotion to the grade of Architect, and, accordingly, they were promoted on different dates during 2005. The applicants have not produced before this Tribunal any material to show that their promotion and promotion of other Assistant Architects to the grade of Architect were considered and made under the Central Architects Service Group A Rules, 1989. The materials available on record show that the applicants and seven other Assistant Architects were considered and promoted on different dates during 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004. Thus, it cannot be said that in the year 2005 the applicants and seven other Assistant Architects were promoted to the grade of Architect in accordance with the Central Architects Service Group A Rules, 1989. In view of this, we have no hesitation in holding that for fixation of their seniority in the grade of Architect, the rotation of quotas principle is not applicable to the case of the applicants and seven other Assistant Architects who were promoted to the grade of Architect in the year 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004. When the Central Architects Service Group A Rules, 2004 do not provide for promotion from the grade of Assistant Architect to the grade of Architect, and the respondent-Department promoted the applicants from the grade of Assistant Architect to the grade of Architect in the year 2005 by way of one time relaxation of the provisions of the Central Architects Service Group A Rules, 2004, the applicants cannot be allowed to claim determination of their seniority in the grade of Architect by applying rota quota principle so as to steal a march on private respondent nos. 5 to 8, who duly were promoted from the grade of Deputy Architect to the grade of Architect in the year 2004 under the Central Architects Service Group A Rules, 2004. As a consequence, the DoP&Ts O.Ms. dated 7.2.1986, 3.7.1986, and 4.3.2014 ibid, and the decision of the Honble Supreme Court in N.R.Parmars case (supra) are not applicable to the case of the applicants. On the facts and in the circumstances of the case, the decisions in Ashok Kr.Uppals case (supra) and Nirmal Chandra Bhattacharjees case (supra) also do not come to the aid of the applicants. Therefore, the seniority list, as circulated by the respondent-Department, vide its O.M. dated 22.3.2011, qua the applicants and the private respondents remains unassailable.
17. In Ms.Ena Passis case (supra), to which our attention has been drawn by the applicants by way of MA No.2182 of 2015, thirteen vacancies in the grade of Architects occurred in the year 2001-02, out of which 7 vacancies were assigned to the quota of Assistant Architects, and the remaining 6 vacancies were assigned to the quota of Deputy Architects. DPC meeting for considering Deputy Architects for promotion to the grade of Architect was held on 27.7.2001, and the private respondents were promoted. DPC meeting was held on 20.5.2002 for promotion of Assistant Architects to the grade of Architects, and 7 such Assistant Architects including applicant-Ms.Ena Passi were recommended for promotion. As a consequence, the private respondents were promoted as Architects, and they joined as such earlier than the applicant-Ms.Ena Passi. The promotions of applicant-Ms.Ena Passi and the private respondents were made in accordance with the Central Architects Service Group A Rules, 1989. Therefore, by applying rota quota principle, the respondent-Department assigned position to the applicant above private respondents in the provisional seniority list/final seniority list of Architects circulated up to 22.3.2011. In the revised seniority list circulated by the respondent-Department on 2.2.2012, applicant-Ms.Ena Passi was shown junior to the private respondents. This revised seniority list was issued by the respondent-Department on the basis of clarification issued by the Department of Personnel & Training, vide its letter dated 3.1.2011, wherein reference was made to the DoP&Ts letter dated 3.3.2008. Relying on the decision of the Honble Supreme Court N.R.Parmars case (supra), which has been complied with by the Department of Personnel & Training, vide its O.M. dated 4.3.2014 ibid, the coordinate Bench of the Tribunal allowed the O.A. and quashed the impugned seniority list qua the applicant, with direction to the official respondents to re-determine the seniority of the applicant.
17.1 In the instant case, as already found by us, the applicants were promoted from the grade of Assistant Architect to the grade of Architect in the year 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004, and that the applicants not having been promoted to the grade of Architect under the Central Architects Service Group A Rules, 1989, are not entitled to claim determination of their seniority in the grade of Architect by application of rota quota principle. Therefore, the decision in Ms.Ena Passis case (supra), besides being inapplicable to the case of the applicants in the present O.A., does not support their claim for assigning them seniority position above the private respondents.
18. For considering the plea of the applicants that in compliance with the Tribunals decision in Ms.Ena Passis case (supra), the respondent-Department has already restored their seniority positions vis-`-vis the private respondents, vide revised seniority list of Architects as on 1.1.2012 and, hence, the present O.A. may be allowed, we would deem it proper to reproduce the O.M.No.20/15/2012-EC-IX, dated 26.6.2015 (Annexure B to MA No.2182/2015 filed by the applicants) as follows:
OFFICE MEMORANDUM Sub: Re-Revised Provisional Seniority List of the grade of Architects, CPWD as on 1.1.2012.
Smt.Ena Passi, Architect filed an OA No.3501/2012 in the Honble CAT, PB, New Delhi aggrieved by alleged anomaly in the seniority lists of Architects circulated vide O.M.No.37/2/2011-EC-IX dated 09.07.2012. The Honble CAT, PB, New Delhi, vide its order dated 20.2.2015 has quashed the above seniority list and has directed to re-determine the seniority of the applicant. Accordingly a revised seniority list as on 1.1.2012 in respect of Architects, Central Architects Service, Group A has been prepared and enclosed herewith for circulation and information to all concerned.
While compiling it, every efforts have been made to make it free from omission/error but in case, if there is any objections/error/omissions, viz., date of birth, date of joining, name etc. in the list, the same may be brought to the notice of this office along with supporting documents within 15 days from the date of issue of this O.M. In case no representation is received within the stipulated time, the same will be treated as final and will not be amended thereafter. A plain reading of the above O.M. makes it clear that only a provisional re-revised seniority list of Architects as on 1.1.2012 has been circulated by the respondent-Department inviting objection/representation, if any, from all concerned with regard thereto. Thus, the applicants are not correct to contend that the respondent-Department has already issued the revised seniority list restoring their positions vis-`-vis the private respondents. Therefore, solely on the basis of the said provisional re-revised seniority list of Architects as on 1.1.2012, we are not inclined to grant the reliefs claimed by the applicants in the present O.A., more so when we have already found that the applicants are not entitled to claim seniority above the private respondents in the grade of Architects under the rules. We would like to observe here that the decision of the Tribunal in Ms.Ena Passis case (supra) is confined to the case of applicant-Ms.Ena Passi and private respondents in OA No.3501 of 2012 ibid.
19. In Kumaravel v. Union of India & others, OA No.2165 of 2013, decided on 14.7.2015, which is more or less identical to the present O.A., we have held thus:
.The materials available on record show that the applicant and 12 other Assistant Architects were considered and promoted on different dates during 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004. Thus, it cannot be said that in the year 2005 the applicant and 12 other Assistant Architects were promoted to the grade of Architect in accordance with the Central Architects Service Group A Rules, 1989. In view of this, we have no hesitation in holding that for fixation of their seniority in the grade of Architect, the rotation of quotas principle is not applicable to the case of the applicant and 12 other Assistant Architects who were promoted to the grade of Architect in the year 2005 by way of relaxation of the provisions of the Central Architects Service Group A Rules, 2004. When the Central Architects Service Group A Rules, 2004 do not provide for promotion from the grade of Assistant Architect to the grade of Architect, and the respondent-Department promoted the applicant from the grade of Assistant Architect to the grade of Architect in the year 2005 by way of one time relaxation of the provisions of the Central Architects Service Group A Rules, 2004, the applicant cannot be allowed to claim determination of his seniority in the grade of Architect by applying rota quota principle so as to steal a march on private respondent nos. 3 to 5,who were promoted from the grade of Deputy Architect to the grade of Architect in the year 2002 under the Central Architects Service Group A Rules, 1989, and on private respondent nos. 6 to 12 who were promoted from the grade of Deputy Architect to the grade of Architect in the year 2004 under the Central Architects Service Group A Rules, 2004. As a consequence, the DoP&Ts O.Ms. dated 7.2.1986, 3.7.1986, and 4.3.2014 ibid, and the decisions in N.R.Parmars case (supra) and Ms.Ena Passis case (supra) are not applicable to the case of the applicant. Therefore, the seniority list, as circulated by the respondent-Department, vide its O.M. dated 22.3.2011, qua the applicant and the private respondents remains unassailable. The applicants in the present case are similarly placed as applicant in OA No.2165 of 2013 ibid.
20. The applicants have not brought to our notice any other material, or rule, or instruction issued by the Government of India which goes to support their claim.
21. In the light of the above discussions, we hold that the applicants have not been able to make out a case for the reliefs claimed by them, and that the O.A. is devoid of any merit.
22. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBMER AN