Central Administrative Tribunal - Madras
B Adisegaran vs Ut Of Pondicherry on 18 December, 2023
1 : OA 1504/2013 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH Hy OA/310/01504/2013 Dated the 18° day of DecebeTwo Thousand 'Twenty Three CORAM: HON'BLE MS. LATA BASWARAJ PATNE, Member (J) HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A) B.Adisegaran, S/o. Balaiyan, No. 31, 11 Cross, Sudhakar Nagar, Reddiarpalayam, Puducherry. ....Applicant By Advocate M/s. V. Ajayakumar Vs Union of India, rep by the Government of Puducherry, through the Secretary to Government, DP&AR, Chief Secretariat, Puducherry. . -...-Respondent By Advocate Mr. R. Syed Mustafa Ses | 2 OA 1504/2013 ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this OA, the applicant has prayed the following relief :-
"To direct the respondent to promote the applicant to the post of Superintendent under the Scheduled Caste/Scheduled Tribe quota with effect from 07.08.2013, the date on which the respondent has filled up 151 vacancies by way of promotion with all other consequential benefits including difference of wages, seniority, ete and pass such other or further orders in the interest of justice and thus render justice."
2. The brief facts of the case are as under:-
The applicant was originally posted as Lower Division Clerk on 22.03.1993 and subsequently on 27.08.2003, he was promoted to the post of Upper Division Clerk and further on 25.06.2008, he was promoted to the post of Assistant, in which he is presently working. On 07.08.2013, the respondent department had promoted 151 Assistants to the post of Superintendent through an Order No.A-48013/3/2013-DPAR/SS.I(1VPF, dated 07.08.2013. However, the respondent did not follow any reservation policy earmarking the posts to the various vacancies, while filling up the said post. Since there is no person identified as Scheduled Tribe in the Puducherry region, so long as the posts earmarked in the roster point, it has to be exchanged by the next near deprived category of Scheduled Caste, supporting which, the Hon'ble High Court had issued orders in the Writ Petition previously, that the Scheduled Tribe vacancies have to be summarily be filled up by the Scheduled Caste category. But, actually the respondent kept the Scheduled Tribe vacancies unfilled or otherwise it is exchanged with the vacancies of General Category, which is most arbitrary and 3 OA 1504/2013 unconstitutional in nature. The applicant claims that the earmarked vacancies for Scheduled Tribe have to be exchanged with Scheduled Caste and the respndents have to follow Reservation Policy while filling up the said post. Hence, the applicant is entitled for the promotion to the post of Superintendent and the same has to be considered. Hence, this Original Application is filed.
3. After notice, the respondents have appeared through their counsel and filed detailed reply opposing the relief prayed by the applicant. It is contended that the applicant was appointed as Lower Division Clerk on 12.03.1993 and thereafter, he was promoted to the post of Upper Division Clerk w.e-f. 27.08.2003. Subsequently the applicant was promoted and posted in the post of Assistant w.e.f, 25.06.2008 on ad-hoc basis and w.e.f. 27.08.2011 on regular basis. The post of Assistant is the feeder post for promotion to the post of Superintendent Gr.I] (erstwhile). The Government of Puducherry amalgamated the erstwhile posts of Superintendent Gr. II (Rs. 5500-9000) and Gr.I (Rs.6500- 10500) and designated the amalgamated post as Superintendent (Rs.6500- 10500) vide G.O.Ms.No.106, dt. 07.01.2006. Aggrieved on the said amalgamation, the Executive and Technical Officers Association, Puducherry filed O.A. before this Tribunal and the Tribunal quashed the said G.O. However, Government preferred Writ Appeal (WP No.26237/2009) before the Hon'ble Madras High Court. The Hon'ble High Court of Madras on 09.07.2013, allowed the said Writ Petition of the Government and quashed the Tribunal's order. Earlier, the draft Recruitment Rules submitted to UPSC for the amalgamated post of Superintendent was returned citing the pendency of court case. Now, the Q) 4 OA 1504/2013 litigation is over and RRs are being taken up with UPSC for approval. In the draft Recruitment Rules of Superintendent sent to UPSC, the Assistants with six years qualifying service who have passed Accounts Test (Higher) are stated to be eligible for promotion. But, the Govt. of India had issued revised guidelines consequent on the notification of CCS (Revised Pay) Rules, 2008, in O.M.No.AB.14017/61/ 2008-Estt. (RR), dt. 24.03.2009, wherein five years minimum qualifying service has been prescribed for promotion from the Grade pay of Rs. 4200 to Rs. 4600. After getting the approval of the Appointing Authority, viz. the Lt. Governor, Puducherry, 151 Assistants were promoted to the post of Superintendent (Group 'B' Gazetted) on ad-hoc basis, according to their seniority, vide Memorandum No.A.48013/3/2013-DP&AR/SS-H(1 VPF, dated 07.08.2013. Among the 151 Assistants who have been offered promotion to the post of Superintendent, 37 officials belong to Scheduled Caste. The Promotion has been effected for the vacancies that arose between 2010 and 2013, in which 37 SC representation is available. While making regular promotion, year wise panel will be prepared and the extent of shortage of SC representation, if any, will be made good. The respondents have pointed out that though the applicant belongs to Scheduled Caste, he was regularly appointed to the feeder post of Assistant only on 27.08.2011. Therefore, he would become eligible for promotion to the post of Superintendent only after 26.08.2016 i.e. on completion of his five years of regular service in the feeder post of Assistant. As he is not eligible for promotion to the grade of Superintendent till August 2016, the demand of the applicant is not at all maintainable. Further, it is submitted 6 OA 1504/2013 policy earmarking the post to various vacancies and when no person is identified as ST in the region, the post earmarked in the roster point has to be exchanged by the next near deprived category of SC. However, the government kept the ST vacancy unfilled or otherwise it is exchanged with the vacancy of General Category which is most arbitrary and unconstitutional in nature. Since the said vacancy has not been exchanged with the SC category, injustice has been done to the applicant who belongs to the SC category. According to him, he is eligible and entitled for promotion to the post of Superintendent Grade II.
7. On the other hand, the learned counsel for respondents has vehemently opposed the relief on the ground that the applicant was appointed as Lower Division Clerk (LDC) on 22.03.1993. Thereafter, he was promoted to the post of Upper Division Clerk (UDC) w.e.f. 27.08.2003. Subsequently, he was promoted and posted in the post of Assistant w.e.f. 25.06.2008 on ad hoc basis and w.e.f. 27.08.2011, on regular basis. The post of Assistant is the feeder post for promotion to the post of Superintendent Grade II and as per the Recruitment Rules, he would become eligible for promotion to the post of Superintendent only after completion of 5 years of regular service in the feeder post of Assistant ie., on 26.08.2016. Moreover, among the 151 Assistants who have been offered promotion to the post of Superintendent (Group B Gazetted) on ad hoc basis, according to their seniority, vide memorandum, dt. 07.08.2013, 37 officials belonged to SC category. The said promotion has been effected for the vacancies which arose between 2010 and 2013 in which 37 SC representatives were available. While making regular promotion, year-wise panel would be ) 5 OA 1504/2013 that the respondent had followed the guideline in granting promotion to the post of Superintendent and had not done any injustice as claimed by the applicant, Therefore, the respondent has prayed for dismissal of the OA.
4, Heard both sides and perused the records,
5. The learned counsel for the applicant argued on the issue that the reservation policy has not been followed strictly in accordance with the direction of the Hon'ble Supreme Court in the matter of R. K. Sabharwal as well as the roster policy has to be followed and if the person belonging to Scheduled Tribe (ST) category is not available to be promoted, the same cannot be carried forward, thay has to be shifted and the person belonging to the Scheduled Caste (SC) category has to be accommodated, He further relied upon the judgment, dt. 21.01.1997, passed by the Hon'ble Supreme Court in SLP (C) No. 492 of 1997 in the case of Superintending Engineer, Public Health, UT Chandigarh and ors Vs. Kuldeep Singh and ors wherein it was held that in case of absence of ST population, the SC candidate should have been considered for the vacancy reserved for ST. The issue in respect of promotion to the reserved category has been settled by the Hon'ble High Court of Madras in WP No. 25785 of 2005 in the case of E. Sayed Ali Vs. Union of India, Chief Secretary, UT of Pondicherry and ors, As such, the respondents are not following the roster policy, which has been already settled.
6. The learned counsel for the applicant further argued on the point that when the respondent government had promoted 151 Assistants to the post of Superintendent by an order, dt. 07.08.2013, without folowing the reservation ' ea 7 OA 1504/2013 prepared and the extent of shortage of SC representation, if any, would be made good. Though the applicant belongs to the SC category, he was appointed to the feeder post of Assistant, on regular basis, on 27.08.2011 only. During the pendency of the OA, the applicant came to be promoted to the post of Superintendent, vide memorandum, dt. 03.10.2016, and he has accepted the same, The learned counsel for the respondents also relied upon the Recruitment Rules, dt. 07.05.1991, for the post of Superintendent Grade I, as well as Recuitment Rules, dt. 01.10.1991, for the post of Superintendent Grade II. As per the Recruitment Rules, for promotion to the post of Superintendent Grade I, it is stipulated that by non-selection method, Assistants and Assistant-cum- Translator in the Finance Department, with 5 years of continuous service in either of or both the posts, failing which 10 years of continuous service, both as Assistant and UDC, of which at least one year should be regular service in the post of Assistant would be eligible. In respect of amalgamation of the posts of Superintendent Grade I and Grade II, the same has been effected on 07.01.2006. As such, the applicant, who has availed promotion, vide memorandum, dt. 03.10.2016, has not raised any objection. He himself had given undertaking that, if the DPC, when it meets to consider him for regular promotion to the post of Superintendent, found him as unfit, he shall be reverted and he shall have no claim whatsoever for having officiated in the post of Superintendent, on ad-hoc basis. The applicant was granted ad hoc promotion on 03.10.2016 and the applicant gave undertaking to this effect and reported for duties. As such, the applicant does not have any claim as he is not eligible to claim such promotion 8 OA 1504/2013 w.e.f. 07.08.2013. Hence, the relief cannot be granted.
8. It is to be noted that the promotion granted to the applicant, on his attaining eligibility in the year 2016 in the promotional hierarchy, is not in dispute. As far as the RRs are concerned, the applicant has not challenged the same. No specific allegation is made out in the OA. Though the applicant is seeking promotion at par with his juniors, he has not made them necessary parties in the OA. Moreover, it is not permissible to exchange the said post under law. The applicant who has accepted the ad hoc promotion to the post of Superintendent on 07.10.2017 has been given regular promotion to the said post of Superintendent on 01.11.2019, It is also to be noted that the averment made in the reply has not been refuted by the applicant. No rejoinder to the reply has been filed.
9. In view of the aforesaid facts, we do not find any merit in the matter. Hence, no case for interference by this Tribunal is made out.
10, Accordingly, OA is dismissed. No order as to costs.