Central Administrative Tribunal - Hyderabad
L. Sanyasi Naidu S/O Sri L. Sanni Babu vs Secretary on 30 July, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA No. 33 of 2006 Date of Order : 30-07-2008.
Between:-
1. L. Sanyasi Naidu S/o Sri L. Sanni Babu, Aged about 45 years
2. K.P. Narayanan, S/o K.N. Sankaran, Aged about 44 years.
3. D. Harinadham S/o D. Dandasi, Aged about 51 years
4. V. Lakshminarayana, S/o V.S.Somayajulu, Aged about 35 years
5. T. Venkateswara Rao, S/o late T. Narasayya, Aged about 52 years
6. K.S. Srinivasan S/o K.N. Sankaaran, Aged about 44 years
7. B. Ganesan S/o S.B. Muttu, Aged about 44 years
8. K. Vara Babu S/o Sundara Rao, Aged about 29 years
9. R.D.J.Prakash S/o late Tata Babu, Aged about 51 years
10. M.P.R. Achary S/o late Brahmam, Aged about 41 years
11.Y. Ramappa S/o Y.Nrayanappa , Aged about 41 years.
12. M. Subba Rao S/o late Musalaiah, Aged about 53 years
13. P. Satyanarayana S/o late P. Dhana Raju, Aged about 56 years
14. G. Appala Naidu S/o late G. Ganga Raju, Aged about 48 years
15. M.V. Ramaraju S/o late Venkata Raju, Aged about 56 years
16. K. Ramachandran S/o K. Narayanan Aged about 48 years
17. S.R.Das S/o late S.C.Das, Aged about 47 years
18. S.V.S.N. Rajau S/o S. Padma Raju, Aged about 53 years
19.T.H.M.V. Giri S/o T.V. Ramanujayya Aged about 34 years
20.K. Sundara Rao S/o late K. Marinayya Aged about58 years
21.Asif Shariff S/o Ibrahim Shariff, Aged about 35 years
22.Sridhar Bisoi S/o late P.K.Bisoi, aged about 48 years
23.D. Kondala Rao S/o late D. Apparao, Aged about 50 years
24. K. Narasinga Rao S/o late Rama Rao Aged about 44 years All the applicants are working as Construction Supervisor in the 4th Respondent organization at Visakhapatnam .....Applicants And
1. The Secretary to the Govt. of India, M/o Defence, South Block, New Delhi-110 011.
2. The Secretary to Govt. of India, M/o of Personnel, Public Grievances & Pensions, (Dept. of Personnel & Training), M/o Home Affairs, North Block, New Delhi.
3. The Director General, ATVP Headquarters, Aakanksha Development Enclave, Rowtula Marg, Delhi Contonment, New Delhi.
4. The Project Director, Ship Building Centre, Visakhapatnam.
5. Anil lKumar Srivastava S/o late Kuber Nath Lal, Aged 41 years, Occ: Senior Construction Supervisor.
6. Kuldeep Kumar S/o Sharma Triloknath, Aged 39 years, Occ: Senior Construction Supervisor.
7. Mani Sridhar S/o Manian, Aged 37 years, Occ: Senior Construction Supervisor.
8. S. Ayub Khan S/o late Y. Samas Khan Aged 37 years, Occ: Senior Construction Supervisor
9. Gopal Krishnan S/o late V. Ragavan Nair, Aged 39 years, Occ: Senior Construction Supervisor
10. Kesari Singh S/o Chuhan Shiv Lal Singh, Aged 39 years, Occ: Senior Construction Supervisor
11. S. Radha Mohan S/o late S.L.N. SChary, Aged 39 years, Occ: Senior Construction Supervisor
12. M.A.Sunny S/o Thomas Antony, Aged 39 years, Occ: Senior Construction Supervisor
13. K.P.S. Jaura S/o Jaura Inderjit Singh, Aged 36 years, Occ: Senior Construction Supervisor ....Respondents Counsel for the Applicant : Sri G.T. Gopal Rao for Sri G.Vidya Sagar Counsel for the Respondents : Sri A.Srinivasa Rao, Addl. CGSC Sri S. Ramakrishna Rao for RR 5 to 13 CORAM:
THE HON'BLE MRS. BHARATI RAY : MEMBER (J) THE HON'BLE MR.R. SANTHANAM : MEMBER (A) (Order per Hon'ble Mr. R. Santhanam, Member (A) )
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The applicants in this OA have challenged (i) the SRO 98, dated 17.4.2002 in so far as Column No.11 prescribed for recruitment to the post of Senior Construction Supervisor in the scale of pay of Rs.6500-10500 as discriminatory and violative of Article 14 & 16 of Constitution of India and for consequential provision to make direct recruitment as one of the modes(ii) declaring the filling up of the posts by Ex-Servicemen is illegal and violative of Article 14 & 16 of Constitution of India.
2. The applicants herein are presently working as Construction Supervisors. They joined 3rd respondent's organization during the years 1990-95 and on recruitment they were asked to work at Naval Dock Yard, Visakhapatnam. Their services were utilized in North Yard, Advanced Technology Vessel Project (ATVP), now renamed as Ship Building Center, Visakhapatnam. They have been permanently absorbed in the 3rd respondent's organization and are qualified to hold the post of Sr. Construction Supervisor. The Department of Defence Research & Development, M/o Defence framed Recruitment Rules for ATVP Technical cadre posts. These rules were amended vide SRO 98 which came into force on 11.5.2002. Item No.7 of the Schedule to the said rules specified that the post of Senior Construction Supervisor in the scale of Rs.6500-10500 should be filled up by selection-cum-seniority. Col. 11 of the said schedule prescribe the method of recruitment as follows :-
"75% by promotion on the basis of Selection-cum-Seniority failing which by absorption on deputation/re-employment of ex-servicemen, failing which by deputation failing which by absorption from central/State Government and failing all by direct recruitment.
25% by promotion through Limited Departmental Competitive Examination failing which by absorption on deputation/re-employment of ex-servicemen, failing which by Direct Recruitment".
3. It is the contention of the applicants that the above prescription is contrary to law. The rule requires that one should have put in five years of service in the cadre of Construction Supervisor and also pass the departmental qualifying test. Since there were no candidates with five years service in the regular grade, the only mode available is by absorption of deputation / re-employment of ex-servicemen. The applicant's contention is that the redeployment of ex-servicemen is nothing but recruitment to the post. Direct Recruitment is given the lowest priority and only when there are no candidates available in the different modes of recruitment, the post is available for direct recruitees. According to the applicants, such a prescription of rules is irrational, arbitrary and violative of Article 16 of the Constitution of India. The Ex-Serviceman (Re-employment in Central Civil Services and Posts) Rules, 1979, which is meant to provide rehabilitation to ex-serviceman provides for 10% of the vacancies in Group-C and 20% of the vacancies in Group-D posts. No reservation is contemplated for Group 'B' posts. Though the applicants submitted representations, there was no response from the authorities. They are therefore constrained to approach this Tribunal for relief.
4. The Respondents have filed a reply statement in which they have stated that the proviso at Col.11 of the SRO has been provided to promote feeder cadre personnel, 'failing which' alternative provision has been provided to meet essential organizational requirements through absorption on deputation / re-employment of armed forces personnel in the last year of service with relevant technical qualifications and experience and / personnel from Central and State Govt. establishments prior to initiating direct recruitment. According to them essential requirements of personnel in the grade of Senior Construction Supervisors could not be met through promotions as per the methodology which has been provided at Column-11 of SRO 98. The Respondents further contend that Column 11 of SRO has been prepared as per the guidelines of Department of Personnel & Training OM AB 14017/71/89-Estt.(RR) dated 3-10-1989 which lays down the different methods of recruitment like
(a) Promotion (b) Direct Recruitment
(c) Deputation (d) Absorption
(e) Re-employment (f) Short-term contract The respondents contend that the applicants are totally wrong in equating the number of posts / percentage of posts with provision for 'failing which' clauses in Column 11 under 'method of recruitment' in the SRO's with 'statutory reservations'. Percentage fixed for departmental promotion / absorption of central government employees and direct recruitment prescribed in SRO 98 (Recruitment Rules) cannot be constituted as reservation on the basis of religion, caste, sex, place of birth etc.,. According to the respondents, reservation for ex-servicemen under the recruitment rules of 1979 for ex-servicemen i.e. 10% in Group-C and 20% in Group-D posts are applicable only for direct recruitment and not for filling up of Group-B posts which is in the instant case is by absorption on deputation / re-employment of Armed Forces Personnel. Respondents contend that Col.11 of SRO 98/02 in so far as Sr. Construction Supervisor posts is within the legal frame work and does not violate Articles 14 & 16 of the Constitution of India.
5. The private respondents in their reply affidavit have also stated that Col.11 at Sl. No. 7 of SRO 98 has been prepared as per the guidelines issued by Department of Personnel & Training OM dated 3.10.1989. Though the amendment came into force with effect from 17.4.2002, the applicants have filed the OA nearly four years after the recruitment rule was issued. They have further added that Respondents 5 to 13 were appointed as Sr. Construction Supervisors way back on 26.12.2005 and absorbed regularly in that post on 31.12.2005. They have therefore taken the point of limitation. The private respondents have also stated that the modes of recruitment prescribed in Col.11 i.e. the 'failing which' clause cannot be equated to reservations on caste basis. They have further stated that the induction in Group-A & B posts has been done in accordance with the guidelines to all Ministries regarding lateral induction of Armed Forces Personnel in Civil Posts by Department of Personnel & Training memo dated 3.10.1989. Therefore, the provisions in SRO 98 are within the legal frame work and do not contravene any rules/orders of Government of India.
The private respondents have also stated that they were not recruited from ex-serviceman category to the post of Sr. Construction Supervisor. Respondents 5 to 13 have been appointed in the last year of their Navy service and hence their appointment was to meet the shortfall in vacancies. No undue advantage has been given to them under SRO 98. They have also pointed out that there were 69 posts of Sr. Construction Supervisors available out of which 18 posts only were filled and the remaining posts are vacant. Hence there is much scope for promotion to the post of Sr. Construction Supervisor from the feeder cadre.
6. The private Respondents have also cited the judgment of the Hon'ble Supreme Court in V.K. Sood Vs. Secretary, Civil Aviation & Others (1993 AIR (SC) 2285) and the case of Sanjan Kumar Manji Vs. Chairman UPSC & Others (2006 (SCC) (L&S) 1780) to point out that Recruitment Rules cannot be interfered by the Courts / Tribunals in the circumstances where there is no case for interference. The applicants' have also filed rejoinder.
7. Heard Sri G.T. Gopal Rao, learned counsel representing Sri G. Vidyasagar, learned counsel for the applicants and Sri S. Ramakrishna Rao, learned counsel for Respondents 5 to 13. None appeared for the official Respondents.
8. The issues that arise for consideration are (i) whether the provisions contained in Col.11 against Sl. No. 7 of the SRO 98 of the Department of Defence Research & Development, M/o Defence (ATVP Technical Cadre Posts) Recruitment (second amendment) Rules, 2002, are legally sustainable and (ii) if not, to what relief are the applicants' entitled.
9. Issue No.(i) : The learned counsel for the applicant argued that a similar issue came up for consideration before this Tribunal in OA 495/05 relating to recruitment to the cadre of Dy. Construction Supervisor. This Tribunal by its order dated 21.4.2006 held that Col. No. 11 of the Department of Defence Research & Development, M/o Defence (ATVP Technical cadre posts) Recruitment (second amendment) Rules, 2002, insofar as it pertains to Dy. Construction Supervisor is illegal and directed the respondents to review the same. In terms of the judgment of this Tribunal in OA 445/05, the M/o Defence has amended the Recruitment Rules, 2002, in SRO No. 47 insofar as the Recruitment of Dy. Construction Supervisor is concerned. Subsequently the M/o Defence, Dept. of Defence Research & Development HQ (ATVP) has advised the Project Director, Ship Building Center, Visakhapatnam to make similar proposals to substitute the words "absorption on deputation / re-employment of ex-serviceman" by "deputation / re-employment". The learned counsel submitted that in pursuance of SRO No. 47, Recruitment Rules insofar as Sr. Construction Supervisor are also required to be reviewed. The learned counsel for the private Respondents argued that the applicants' contention that more than 50% of vacancies are reserved for ex-serviceman is totally baseless. Fixing up certain percentage of posts or filling up certain posts available by promotion to departmental candidates on the basis of experience and knowledge when no suitable departmental candidates are available or absorption of Armed Forces personnel are not violative of Articles 14, 15 & 16 of the Constitution of India. He also made a distinction between the Dy. Construction Supervisor's posts and Sr. Construction Supervisors posts. Col. No. 11 at Sl. No. 5 of SRO 98 (for Dy. Construction Supervisor) provided for 50% of posts to be filled by ex-serviceman whereas for the post of Sr. Construction Supervisor, Col. 11 of SRO 98 provides for 75% on the basis of selection-cum-seniority failing which the posts are to be filled by other groups. Moreover provision exists under Col. 11 at Sl. No. 7 of SRO 98 for filling up of 25% quota of Sr. Construction Supervisors post by Limited Departmental Competitive Examination. Therefore the two posts, according to the learned counsel for the private respondents, are not comparable.
10. We have given careful consideration to the submissions made by the learned counsel on both sides. Though it can be wrong to equate 'failing which' clause under Col. No. 11 at Sl. No. 7 under the method of Recruitment of SRO 98 to that of Statutory Reservation, a careful reading of the Recruitment Rule would show that the apprehension of the applicants is not totally unfounded. If 75% of the promotional posts could not be filled up on the basis of selection-cum-seniority, or if 25% of the posts could not be filled through LDCE, then there is a scope for ex-serviceman to enter under both the categories in large numbers, since the Department would not like to keep the vacancies unfilled. There is a theoretical possibility of almost 100% of the posts being filled by ex-serviceman though the chances may be remote. Therefore this Tribunal rightly took the stand, in the case of Dy. Construction Supervisors that a similar though not identical clause was illegal and quashed the same. In the case of recruitment of Sr. Construction Supervisors also we find that Recruitment Rules are weighed heavily in favour of ex-serviceman, which is against the intention of Constitution makers under Article 309. We have also noted that the M/o Defence, D/o of Defence Research & Development has not challenged the orders of this Tribunal but has chosen to implement the same by amending the Recruitment Rules vide SRO 47 dated 27.7.2007. They have also chosen to give instructions to the Personnel Department of Ship Building Center in February, 2008, to send proposals for amendment wherever 'absorption on deputation / re-employment of ex-serviceman' occurs in the Recruitment Rules by 'deputation / reemployment'. We hope that these amendments will also be carried out soon. Since the issue has come to us for adjudication, we have no hesitation in holding that Col.11 against Sl. No. 7 of the Recruitment Rules for Sr. Construction Supervisor, as it stands now is illegal and unsustainable. We therefore decide the first issue in favour of the applicants.
11. Coming to the issue No. (ii), the learned counsel for the applicant also argued that the appointments already made to the post of Sr. Construction Supervisors by recruiting ex-serviceman should be declared illegal and therefore they should be cancelled. We do not find any merit in this statement. As pointed out by the private respondents in their reply affidavit, there were as many as 69 posts of Sr. Construction Supervisors available out of which only 18 have been filled. Therefore, we do not see how the promotion chances are reduced. If the applicants are suitable for these posts, they will certainly be considered for promotion. We also note that two of the applicants have already been promoted as Sr. Construction Supervisors through Limited Departmental Competitive Examination. Since the unofficial respondents have been recruited as per the recruitment rules in force, their appointment cannot be termed as illegal. Therefore, the second issue is decided against the applicants.
12. In the result, the OA is partly allowed. Col. 11 of Sl. No. 7 of SRO 98 of the Department of Defence Research & Development, M/o Defence (ATVP Technical cadre posts) Recruitment (second amendment) Rules insofar as it relates to the recruitment of Senior Construction Supervisor is quashed and set aside. The Respondents are directed to review the same in the light of our observations and the amendment already carried out to the same rules vide SRO 47 dated 27.7.2007. Till such a review is completed, no direct recruitment on a regular basis shall be made in terms of the above rules. This however does not preclude the Respondents from filling up the posts on the basis of promotion-cum-seniority or on the basis of Limited Departmental Competitive Examination.
13. O.A. is accordingly allowed as mentioned above. There shall be no order as to costs.
(R.SANTHANAM) (BHARATI RAY)
Member (Admn) Member (Judl)