Central Administrative Tribunal - Delhi
Shri S.K. Pawa vs Union Of India : Through on 5 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. NO.938/2008
New Delhi, this the 5th day of December, 2008
CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J)
HONBLE DR. VEENA CHHOTRAY, MEMBER (A)
1. Shri S.K. Pawa,
Employee Code No.A057187
2. Shri Asha Mishra,
Employee Code No.A056838
3. Shri Gurcharan Singh,
Employee Code No. A057091
4. Shri A.K. Bajaj,
Employee Code No.A057116
All C/o The Joint Cipher Bureau
Ministry of defence,
Matcalf House Complex,
M G Road, Delhi
.Applicants
(Advocate: Shri P.K. Sharma)
VERSUS
Union of India : Through
1. The Secretary,
Defence (Research & Development),
DRDO Bhawan, New Delhi-110011
2. Joint Secretary (Training) & CAO,
Office of the J S & CAO,
Ministry of Defence,
E Block, Opposite to Sena Bhawan,
New Delhi
..Respondents
3. Smt. Indu Ahluwalia,
Employee Code
4. Mr. Kiran Kumar,
Employee Code
5. Mr. A.K. Mahajan,
Employee Code
6. Mr. Harinder Singh,
Employee Code
7. Mr. Gajraj Singh,
Employee Code
All C/o The Joint Cipher Bureau,
Ministry of Defence,
Matcalf House Complex,
M G Road, Delhi
.Pvt. Respondents
(By Advocate: Shri B.K. Berara for Respondents 1 & 2
Shri Ravi K. Jain, for Respondents 3 7)
O R D E R
By Dr. Veena Chhotray, Member (A):
MA No. 1706/2008 filed by the applicants for substitution of legal representative in respect of applicant no.1 under Section 18 of the Administrative Tribunals (Procedure) Rules, 1987 is allowed.
2. The basic issue involved in the instant OA pertains to interpretation of the methodology for operating the promotion ratio from feeder categories for appointment to the post of Data Processing Assistant Grade-A under the Ministry of Defence, Joint Cipher Bureau (Group A & Group B Posts) Recruitment Rules, 2000. As per the said Rules, the post of Data Processing Assistant (DPA) Grade-A classified as General Central Service, Group B, Non-gazetted, Non-Ministerial post in the scale of Rs.5500-9000/- are to be filled 50% by promotion. This is from the two feeder categories i.e. Data Entry Operator Group-C/B and Reader Grade-I. The relevant column 12 prescribes the following methodology:-
Promotion:
(i) Reader Grade I with six years regular service in the grade.
(ii) Data Entry Operator Grade C with three years regular service in the grade, failing which with six years combined regular service in the grades of Data Entry Operator C and Data Entry Operator B.
Note 1: The promotion ratio from feeder category of Reader Grade-I and Data Entry Operator Grade C shall be in ratio of 1 : 2 respectively.
3. The applicants (four in number), Data Entry Operators Grade-C under the Joint Cipher Bureau, seek promotion as DPA Grade-A. Their contention is that the Respondents have not been maintaining the prescribed ratio of 1 : 2 for filing up the promotional quota vacancies as per the Recruitment Rules (RRs). This has allegedly resulted in taking excess officers from the feeder cadre of Reader Grade-I and consequently depriving the applicants of their legitimate chances of promotion.
The OA seeks a direction for maintaining the promotion ratio as per the RRs and for revision of the panel for promotion to this post while considering the applicants promotion as senior to the private respondents. A prayer for quashing the promotion order as DPA Grade-A of the private respondents has also been sought. Besides, by way of interim relief, the official respondents are sought to be restrained from considering the private respondents for any further promotion on the basis of the present seniority list/promotion as DPA Grade-A.
4. The stand of the Applicants is that as per the RRs the prescribed ratio of 1 : 2 between the feeder channels of Data Entry Operators and Readers has to be based on the total number of such promotional posts available. However, the Respondents case is that this will be as per the year-wise number of vacancies, a practice that has been followed.
5. The above issue is no more res integra in view of the earlier order of the Tribunal in OA No. 916/2007 decided on 26.10.2007. This was a case in which the Applicant, a DPA Grade-A had sought revision of his seniority in that grade and consideration for further promotion as DPA Group-C. The basic issue involved in this OA also related to the right methodology for maintenance of promotion ratio from the feeder cadres. On consideration of the issue on merit, the following view as taken.
7. When a thing is to be done by administrative authorities in a particular manner, no other manner is to be adopted. Accordingly, the statutory rules unless amended would remain in vogue. As such while considering feeder categories for promotion to DPA Grade, the feeder categories are to be considered in the ratio as stipulated in the rules, i.e., 1:2. The aforesaid consideration of ratio would not be in the context of the year-wise vacancies accrued but should have to be proportional to the total cadre strength otherwise the very purpose of maintaining 1:2 ratio would get frustrated.
8. It is also trite that once a legislature makes a rules, the rules are not to be otiose or redundant by the methodology, which goes against the very scheme. This order of the Tribunal has attained finality and admittedly has been implemented by the Respondents. The applicants grievance in the present OA is that the benefit of the reconsidered promotion ratio as per the order of the Tribunal has not been put into general practice with the result those in the feeder channel of Readers stream continue to enjoy the benefits of promotion far in excess of the stipulation under the RRs.
6. The learned counsel appearing on behalf of the official Respondents would cite the recent decision of the Apex Court in K.K. Tiwari & Ors v. Union of India & Ors, (2008) 5 SCC 741, to contend that when there are different feeder channels, the promotion ratio has to be applied to vacancies and not to the total number of posts. He would be supported in this averment by the learned counsel appearing for the private respondents. With due respect, we do not find this view tenable.
6.1 In K.K. Tiwaris case (supra), the issue for consideration had arisen in the context of an interpretation of the relevant Rules for promotion as Executive Engineer under the Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 1991. The specific point was in relation to Rule 7 read with the relevant entry in Schedule-II. These are extracted below:
7. After the commencement of these Rules, the vacancies, excluding the vacancies reserved for army officers under the Military Engineer Services (Army Personnel) Regulations, 1989 shall be filled in the manner as provided in Schedules II, III and IV. Schedule-III provided the method of recruitment, field of promotion and minimum qualifying service. Entry 6 related to Executive Engineer. For Executive Engineers while mentioning the two feeder channels and their promotion ratio it spoke of posts:
EEs posts in terms of Column 4 of the Schedule are to be filled in by two channels of promotions viz. (i) 66-2/3% posts are to be filled on non-selection basis from the grade of AEEs with four years regular service in the grade with a degree in Civil, Mechanical or Electrical Engineering or equivalent from a recognized university/institution and 33-1/3% posts to be filled on selection basis from the grade of AE with eight years regular service in the grade and possessing degree in Civil, Mechanical or Electrical Engineering or equivalent from are recognized university/institution (see Column 5). Applying the principle of harmonious construction in interpretation of statutes, the Honble Apex Court opined as under:
23. Rule 7 on its bare reading does not make reference to Schedule I, which provides that 445 numbers of posts are to be held by civilian officers in the cadre of EEs. The Rules nowhere provide that the total strength of the cadre of EEs has to be consistently maintained in a manner that 2/3rd cadre is manned by those who are promoted from the posts of AEEs and 1/3rd cadre is manned by those who have been promoted from the post of AEs. On this basis a view was taken that the ratio 2/3rd and 1/3rd in this case was to be observed with respect to vacancies in a year and not to the total number of posts.
6.2 It is, therefore, evident that the decision of the Honble Apex Court in K.K. Tiwari (supra) was in view of the peculiar facts and circumstances of that case rather than laying down a general law on this point. Therefore, the view already taken by the Co-ordinate Bench of the Tribunal in OA No.916 of 2007 would prevail on the principle of binding precedent. This would as a logical corollary necessitate the requirement for the Official Respondents to maintain the ratio in the two feeder channels on the basis of the total number of promotional posts.
As regard the claim for quashing the promotion order of the private respondents and considering the claims of the applicants for preparation of a revised panel for promotion to the post of DPA Grade-A, this would be as per the logical follow-up in accordance with the rules and extant instructions.
Since the basic issue agitated herein has already been decided by this Tribunal in OA No. 916/2007, we have not gone into other averments in the present OA.
7. For the foregoing analysis, the prayer in Para 8 (a) of the OA is allowed. Further the official respondents are directed to consider the other prayers in the light of the rules and extant instructions and pass a reasoned and speaking order within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/